SPECIAL JOINT COMMITTEE ON THE CHILD CUSTODY AND ACCESS

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

EVIDENCE

[Recorded by Electronic Apparatus]

Wednesday, May 27, 1998

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[English]

The Joint Chair (Mr. Roger Gallaway (Sarnia—Lambton, Lib.)): Good morning, everyone. Welcome to our meeting this morning.

I want to first say how pleased we are to be in Charlottetown. This committee is a joint committee of the House of Commons and the Senate of Canada that was created by a resolution of both chambers to examine and study custody and access under the Divorce Act. This is our 31st meeting, and we're pleased that we were able to come to Prince Edward Island and hear the concerns and issues that exist here.

I should also make some other announcements. This is in fact a proceeding of the Parliament of Canada, and we would ask that there not be any applause or any verbal expressions of approval or disapproval of what anyone might say.

We have with us this morning Sara Underwood, Janet MacLeod, and soon Lillian Mead, who had to step out just for a minute but will be here. Oh, here she is.

Good morning and welcome to our meeting. This being the first session, I should tell you we have to ask you to limit your comments to five minutes and then they're followed by a series of questions from members. I'll tell you when your five minutes are up. We'll begin with Ms. Underwood.

Ms. Sara Underwood (Individual Presentation): I have shared joint custody of my three children with their father since 1992. At the time the agreement was first signed, the older children were 11 and 9 years old and the youngest was 18 months. The agreement specifies that the children are with their father two nights per week and alternate weekends from Friday evening to Sunday afternoon. The document names me as custodial parent.

I don't think any responsible, caring parent wishes to place their children in the position of being split between two households. I know in my case it was only after pursuing every alternative that I came to the decision to end the marriage. It was not a decision taken lightly. At that point my primary concern was the well-being of the children. Their father was concerned that he would be denied access to the children. This agreement assured him that he would be treated fairly.

• 0855

The first few months of the arrangement were of course a period of adjustment for all of us. Often a painful and frustrating time, it was sometimes difficult to distinguish what was truly best for the children from my personal feelings. Prior to the separation and subsequent divorce, I had been a homemaker for the better part of a decade, taking the bulk of responsibility for the children. The shifting of roles caused by the break-up of the marriage meant a relinquishment of responsibility by me and a new set of responsibilities for my ex-husband. Nevertheless we all managed to cope reasonably well.

It is very important to me that the children feel they have a specific location they can call home, rather than feeling they are refugees left to shuttle from pillar to post at the whim of adults. Consequently they always come to my home after school and they almost always return to my home on school mornings if they have spent the night with their father. This arrangement seems to have worked reasonably well, with only the occasional border skirmish from time to time. Whether it has been the best arrangement is debatable.

Just as a family can no longer be regarded as a unit following a marital break-up, the children are not a unit. They are a collection of individuals, each with his or her own personality, fears, and needs. I would argue that it would be impossible to determine a specific arrangement that could suit all of the children all of the time. What I try to do is provide a framework flexible enough to allow each individual's needs to be met.

There have been times when one or the other of the children has been less inclined to go for the required visit, and each incident has been assessed separately. If I feel, for example, that the child is simply not getting along with their father, I might not think that a good enough reason not to go. On other occasions, I may feel that the child needs a break and, providing their father agrees, keep that child home with me. Because this option is implicitly available to the children, they tend not to exercise it very often. Conversely, if their father has a specific event he wants to take any or all of the children to, I make sure they are free to go.

At first they did seem to regard their father's home as a place they visited and my home as theirs. But as time passes, especially for the two older children, they tend to see both places as home.

Of course, the fact that there are different rules in each house has caused more than a few problems. One child might regard it as his or her responsibility to ensure that my rules are enforced in both houses, which leads to disputes amongst the children and between the children and their father. Good communication between their father and me has lessened these disputes somewhat.

The unexpected gift that joint custody has given to me and to my ex-husband is the ability to be better parents to our children. Prior to the separation, I was often exhausted and frustrated with the role of primary caregiver. Conversely, my ex-husband may have felt alienated from his son and daughters. The arrangement we have allows for tag-team parenting. Dealing with an awkward adolescent is far easier when one knows that within a few days the other parent will be jumping into the ring.

One of the disadvantages of the agreement is the impediment it places upon my ability to find long-term employment. Opportunities are limited here on Prince Edward Island, but leaving to find employment elsewhere would quite probably lead to an expensive, prolonged, and, for the children, painful custody battle. Consequently, I have to accept whatever short-term contract work is available, as opposed to seeking a more lucrative, secure position in another province.

Any reasonable agreement is workable, provided both parents are willing to set aside their animosity toward each other and have a genuine desire to act in the best interests of the children. I believe the children come to realize that both parents are eager to provide them with the love and security they need and that this realization can form the foundation upon which these children can base their self-image and develop into healthy, well-rounded individuals.

The Joint Chair (Mr. Roger Gallaway): Thank you very much. And I didn't have to don my black and white striped shirt to tell you, as a referee, that your time was up.

Ms. MacLeod.

Ms. Janet MacLeod (Individual Presentation): My name is Janet MacLeod and I'm appearing at this hearing both as a survivor of a violent relationship and as a volunteer who has for eight years supported other victims through the family court system.

My first recommendation comes directly from my own experience and as a result of the work I've been doing for the last eight years.

Recommendation one: That anyone going through the family court system who feels the need should be provided with access to a support person advocate trained to recognize and deal with the effects of abuse and to help victims through the process. This support should be provided on a no-charge or sliding scale basis, depending on income.

When my abusive relationship began in the late spring of 1987, I was a single mom with a nine-year-old son. For six months the relationship was bliss. Just before Christmas he hit me for the first time, and the next two years are a jumble of memories of being hit, choked, punched, kicked, burned, stalked, and raped. I know from the records that the police were through my house more than 50 times, and I remember frequent visits to the hospital.

• 0900

My abuser, a boxer who liked to say he'd had 37 fights and had never lost one, never lived with me, and has never contributed financially to my home. Though he never had a key to my door, I had to move three times before I found a house I could actually keep him out of. The violence got worse between September and May of that year. Finally, on Mother's Day in 1988, he lifted me up and snapped my back on his shoulder and then raped me.

Our son was born in January. In May I finally found a house I could keep him out of. After a year and a half, I was finally able to hope that I could get on with my life and live without fear. My abuser was visiting the baby whenever he felt like it, and I had resigned myself to the fact that though life was not great, I knew when he was in the house he wasn't hiding behind mine or out hurting somebody else.

He had consistently made threats against my parents, my friends and my oldest son, to the point where I was no longer in contact with any friends. In September, I walked into the living room and saw my abuser sitting on my 10-year-old, who was crying. My abuser had the knuckles of his index finger jammed into the gap in my son's rib cage, and was saying, “That's right, wimp. Call your mommy. Call your mommy, wimp”. That was the last time he was in my home.

September through December were nightmare months, with one charge against him growing to three, the police putting a restraining order on him, and constant middle-of-the-night calls and visits. Through it all, he kept saying he just wanted to visit his son, but I had made arrangements for visits, with the stipulation that I would have no dealings with him. Though he did call to arrange one visit, he never called again.

Recommendation two: If at any time during the family court process it can be shown that the behaviour of one parent or the other consistently indicates that the best interests of the child are secondary to other motives, the family court process itself can recommend intervention.

In December 1989 my abuser was arrested, remanded and kept in jail, until in May when he plead guilty to 11 of 13 charges and was sentenced to a year in jail and three years' probation. It was during his sentencing hearing that I heard my son's counsellor testify that my son had been hurt and threatened for months. This was devastating news to a mother who believed she had protected her family.

Recommendation three: That members of the family court system be educated in the dynamics of abuse to the extent that they understand it is completely out of character for a victim to exaggerate abuse done to herself or her children.

On the contrary, in my work with victims, the challenges have been that victims minimize. They do not exaggerate. Although agencies and individuals who work with victims encourage counselling, often those counsellors are ignored at the court level. Somehow all the degrees in the world don't matter once professionals take the stand.

Recommendation four: Family court should hear evidence from every professional the child has dealt with, be they child support workers at the local shelter or any other professional. If the judge decides to ignore the information presented, the decision should clearly reflect the reasoning.

Recommendation five: Any time there is any question as to whether a child has lived in a home where there is violence, intervention and assessment are mandatory before the best interests of the child are defined.

Recommendation six: Any time the conditions as set out by a family court judge are varied, a new application should be heard before that judge, to explain and justify the variation.

Thank you.

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

Now Ms. Mead.

Ms. Lillian Mead (Individual Presentation): Hello. My name is Lillian Mead. I am a survivor of domestic violence. Four years ago I left my husband for the fourth and final time, I hope. After 12 years of marriage, living in an insane, hopeless situation, I found the violence was more frequent, and escalated. His focus had turned to the children, and I could not stop him or help them. I couldn't stand it any more. I didn't think or plan. I just ran.

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I went to the Anderson House with nothing, two children and two bags of winter clothes, no money. I wasn't allowed to have money.

Living in that relationship was hard, but trying to get out of it was even harder.

After a week of hiding in the safe house, we went for a walk on the street. David jumped out of a strange truck. He took the children from me and said, if you want to see them again, you'll have to go back to the house. I was there before and I didn't want to go back.

Because of the threats he made in the presence of the children and the police officer to kill himself, child protection was called. The children were returned to me. He spent the night in custody, for his own sake, they say. He was put on a short probation. I received recognizance, but he continued to stalk me and cause problems through the children.

I agreed to the facilitator he had picked and the visitation schedule that he wanted. Even with all the people involved, and all the requests he made were met, seldom did the visits run smoothly.

I had to go on social services for the first time in my life. I tried to replace the bare necessities. Without money and support of any kind, that was a hardship for us. It took a long time to get the division of assets settled, and by that time David had sold most of the things that we needed, like a couch, beds, furniture, a washing machine. Even the children's pets were put to death without our knowledge.

We lived in the security house for safety. I qualified for legal aid.

Four years have passed. I'm worse off now than I was before. I'm a single mother, working poor, no longer qualified for legal aid.

There are three issues that I have wanted resolved since the beginning. They are: no contact with me; visitation agreement set; and child support, which was supposed to start last January. Now I need a lawyer, but I have no money to get one. I don't know what to do, and I don't know where to go. I have no time and energy to waste hoping to find some answers in the dark.

My children and I have been hurt from this experience. We need a safe place to live and some time to heal. I have to build protection around myself, but the children don't have that luxury. I need to find a way to help Chris catch up in school, where his reading level is at grade 2 1/2 and he's in grade 6 and going on to junior high this fall.

The children need clothes. Nicole needs braces, according to the dentist, and she certainly does.

These are the recommendations that I have found. I recommend that the custody and access should be finalized right away. This will ensure routine and ease from stress.

A base amount of maintenance should be set right away after the separation. Then the details could be worked out later. Both parents are responsible to pay for the children's expenses. The amount of maintenance should not be connected to the time spent with the child.

Legal aid needs to be improved. Quality of legal services and legal advice should be available to all who need it, whether they can afford it or not.

Thank you.

The Joint Chair (Mr. Roger Gallaway): Now we'll move to questions. It being the first session in the morning, people are rather quiet here. Who would like to start this morning?

Mrs. Finestone.

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Mrs. Sheila Finestone (Mount Royal, Lib.): I was just waiting for everybody else to wake up. Thank you very much.

I must say that it's always very difficult for us here in a committee of this nature to hear these personal cases and realize that we don't have the ability to intervene directly. I think it's important because I believe a lot of us think that we can be direct interveners.

In your case, Ms. Mead, and in yours, Ms. MacLeod, I'm sure things are very difficult. I must tell you, Sara Underwood, it's been heart-warming to hear in regard to a divorce and settlement situation, when divorce is so high in our country, that it can work and that the best interests of the child can be addressed. I hope this kind of model can be something whereby, by the time we're finished and we get some recommendations to the minister and see them come into effect, more and more witnesses will be able to speak as you speak, even though I know that the period of mourning and difficulty that takes place before, during and after is a very long period. It's like a death and dying and renewal, and I'm sure it's not easy. So I thank you for that.

I'd like to come back to you, Lillian. What was the role of the Children's Aid? Where was the support mechanism and the financial support to enable you to see yourself through, and to prevent a violent husband both from threats and from putting you into such a difficult situation?

Ms. Lillian Mead: I think part of the problem was my ignorance. I had difficulty reading, I was living in an abusive situation for a long time. I didn't know where to go—

Mrs. Sheila Finestone: You had no neighbours? Were you living in an isolated area? Were you living in a rural area? Did you not have neighbours, or some friends or a church to whom you could go for some guidance and help?

Ms. Lillian Mead: Living in insanity, one tends to go insane, and that's why I had to get out, because I was on the road to insanity and I wasn't able to think for myself. I believed my husband. He's a very intelligent and evil person, and I believed what he was saying. I believed him when he was hitting me and hurting me and telling me he was going to hurt me. I believed him when he said, “If you go to the psychiatrist or you go for help, they're going to lock you away, and you'll never see your kids again.” Lots of things.

Mrs. Sheila Finestone: I understand that.

Ms. Lillian Mead: It's different when you read a story about violence and insanity, but it's a whole lot different when you have to live there. When you're living there, you're dealing with hopelessness and despair, fear, and all of the bogeymen in the dark, and even if you know there is help, it takes a strong person to go get it. I didn't know what to do.

Mrs. Sheila Finestone: I think you've been very brave, first of all, so you have much more strength than perhaps you realized, and I'm pleased to note that you're able to express it, which is a huge step forward. I would hope that would give you some encouragement, and the fact that we would recognize a tremendous self-worth that you should have for yourself and pride in yourself. Really, you are to be admired for having been able to come out of that, and to come before a committee like this is extremely draining, and it's a strain. You've presented yourself beautifully, and if you continue in that vein, I have the sense that you will make it. So I wish you luck.

It really depresses me that the legal aid is not available, that social services is not adequate, and that you weren't able to be protected from the stalking issues. I hope you now have some kind of support, and through some of the women's networks I'm sure you'll be able to get some friendship support network, I would hope. So I wish you well.

Ms. Lillian Mead: Thank you.

• 0915

Mrs. Sheila Finestone: With respect to what you had to say, it is very true, and all the research shows that if there is violence in a family it's very difficult to find the mechanism to stop this violence, or to remove women from the violence and to give them a kind of protection. I think your recommendations will help us.

I don't have any questions, because everything you've said are issues we have heard. But as we build the body of evidence, it's much more helpful. And in that regard I thank you and I hope you will be able to come someday to think of your life somewhat like what Sara was able to express, which wasn't easy for her either. If you have questions of me, I'd be very pleased to answer.

Ms. Janet MacLeod: I would like to add that my situation started in 1987—and ended. My ex-partner has visitation every second weekend; and we worked it out. This has all worked out absolutely fine since his being around me stopped being an issue for him. Once visitation began, there was no problem. I have never had problems with his having access to his child, but for him, that was contingent on having contact with me.

Mrs. Sheila Finestone: I know there is that link. If they're broken, good, and there's no more tying the finances to—

Ms. Janet MacLeod: I have never got support from him, I will never get support from him. I've never got maintenance from him, I'll never get it from him. I'm on social services. I can't afford a lawyer. We have no legal aid. The trial judge at our family court where the visitation was decided did not see fit to make sure that he was— I cannot afford to go back to court, so that's a non-issue with me, because I can't afford to make it an issue, basically. But I feel quite content with our own resolution to a lot of this.

Mrs. Sheila Finestone: I would really hope that the members of the legislature in Prince Edward Island, and particularly the members of the executive, start to realize that it's costing them a heck of a lot more money by not having a proper legal aid service than by putting one in place; and if they had installed and would look at the issues and cost out the factors of legal aid versus social welfare and social assistance, I think they might come to realize that it would be a better avenue of approach.

Thank you.

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

Mr. Lowther.

Mr. Eric Lowther (Calgary Centre, Ref.): Ms. Underwood, you talked about how you have “joint custody”; these were words you used. You felt, I think you said, that it was better than some other option. I'm not quite sure what the other option was, but can you explain a little bit about what you mean by joint custody in your situation as opposed to some other kind of arrangement you might have had. It seemed to me this might have been just the visitation access arrangement that would have been normal through the court, or is it more than that?

Ms. Sara Underwood: I don't know how a lot of other people's custody agreements work. In this particular instance what I had wanted was an agreement that not only was fair but also appeared fair to my ex-husband, because he was actually terrified that he wasn't going to get to see the children as much as he wanted. But his choice was he wanted to see them whenever he could. I felt this perhaps would mean that as long as he felt guilty he'd be seeing them a lot but that then, as summer wore on and golf season came, perhaps they might not see him on a regular basis. I wanted something that was structured enough that he would know when his obligations were to take place, when he had to come and get them.

So the way the agreement is actually written is joint custody, as opposed to sole custody for me with liberal access for him. But it does say in the agreement that the children reside primarily with me. It's not a 50-50 split, but it's pretty close to it.

I'm in a position, or I have been over most of the years, where I can be home by the time the kids get home from school. When I went to university I majored in being home by 3 o'clock. So that was the way we had worked it out. He had actually originally said that he would take them two evenings a week and have them from 7 p.m. until 9 p.m., or 5 p.m. until 9 p.m., but I said, if I have to go out and get a job, or go back to university, then I think you should share the responsibility of having them overnight and getting them up and out in the morning, too.

Mr. Eric Lowther: Did you work that out just between the two of you, or was there a third party who helped you come to that?

• 0920

Ms. Sara Underwood: Actually, I worked it out on my own. I wrote it down and gave it to Lorne because it was the only way I could get him out of the house. He refused to leave until he had an agreement that said he could see the kids.

Mr. Eric Lowther: Did you use legal aid?

Ms. Sara Underwood: No.

Mr. Eric Lowther: You used your own lawyer.

Ms. Sara Underwood: Yes.

Mr. Eric Lowther: Was there any third-party counselling or mediation of any sort?

Ms. Sara Underwood: Do you mean to work out the agreements, or through the whole process?

Mr. Eric Lowther: Through the whole process.

Ms. Sara Underwood: Things weren't great for a long time, but when they started really going wrong we went to see a counsellor a couple of times. She said she'd never seen two people less compatible than him and me, so that was the end of that. Then there was counselling for the middle child afterwards for a little while. The older one seemed to take it hardest at first, but by the end of the summer he seemed to have got over it. My middle child had been so strong for so long, but then it kind of hit her too.

Mr. Eric Lowther: This is a bit of an unfair question, so forgive me. If you don't want to answer it, that's fine. But if he were here today, would we get a similar kind of story that it's working pretty well?

Ms. Sara Underwood: Yes, I'm pretty sure. He's not here today because he's in Halifax on business for the week, which means he can't take the kids for his two nights this week, but he'll make them up later on. He seems pretty happy with it.

Mr. Eric Lowther: Great, thank you.

I have one other question for Ms. MacLeod. It's just a tragic situation. Did this fellow who abused you so badly eventually go to jail?

Ms. Janet MacLeod: Yes, he did. He was remanded for five months and then he was sentenced for another year with three years' probation on top of that. The criminal court judge took the evidence of abuse against my older son so seriously that she put provisions in the probation order to cover visitation. When he got out of jail he went immediately to a lawyer to seek visitation. I had already left instructions with the legal aid lawyer I had at that time, because it was a criminal case, how to carry out that visitation but he never bothered to go to the lawyer. He just went back to court.

Mr. Eric Lowther: Right. As I think the chairman put forward at the beginning, this committee is looking in the context of the Divorce Act. Were you married to this fellow or was this a relationship that was after another marriage?

Ms. Janet MacLeod: I'm divorced and was divorced before I met him.

Mr. Eric Lowther: Okay, so you weren't married to this particular fellow at any point.

Ms. Janet MacLeod: I never lived with this man. He was a boyfriend.

Mr. Eric Lowther: I see.

Ms. Janet MacLeod: I was quite literally stalked and terrorized for two years by a man the police told me they couldn't do anything about because he didn't live with me.

Mr. Eric Lowther: That's a tragic story. Thanks.

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

Senator Cools.

Senator Anne C. Cools (Toronto Centre, Lib.): Thank you, Chairman.

I'd like to thank the witnesses for coming before us. I would also like to thank Sara Underwood for working hard to make her joint custody work. I praise you for that and I thank you for that.

Just for clarification, the second witness, Janet MacLeod, just told us she was not married to the man she described as an abuser. Is that what she said?

Ms. Janet MacLeod: Yes, that is what I said.

Senator Anne Cools: How long were married?

Ms. Janet MacLeod: It was seven years.

Senator Anne Cools: Just out of curiosity, how long after your first divorce was the relationship with your abuser?

Ms. Janet MacLeod: It was 10 years exactly.

Senator Anne Cools: You said this prolonged abuse went on for many years.

• 0925

Ms. Janet MacLeod: The relationship lasted for two and a half years, and two years of it were abusive. For two years I didn't consider I was having a relationship; I just wanted away from this person who wouldn't leave me alone. So I qualify it as a relationship for the first six months.

Senator Anne Cools: The second witness, Ms. Mead—

I beg your pardon? Go ahead.

Mrs. Sheila Finestone: If I may add, as a point of question for the RCMP, please, and the Minister of Justice, on stalking, I would like to ensure that anyone who is attacked—or what is the word?—who has a problem with a stalking issue— I want to know if you have to have any formal relationship, through marriage contract, lack of which would prevent the RCMP from looking after any individual, irrespective of marital status.

If I understood the question, Janet, you point out that they said there was no help to you for stalking because you weren't living with this person?

Ms. Janet MacLeod: That was one of the—

Mrs. Sheila Finestone: What has that to do with anything? That's what I want to know from the RCMP when they appear before us. I didn't want to forget that. Shouldn't we have it on our record?

Thank you very much.

Ms. Janet MacLeod: That's one of the things I heard. I mean, I also heard they couldn't do anything—

Mrs. Sheila Finestone: And they didn't do anything, according to what you've just told the senator.

Ms. Janet MacLeod: No. Finally someone who had known him as a younger man—

Senator Anne Cools: Ms. MacLeod, perhaps you could put the name of the RCMP who declined to help you on the record, since we're going to bring the RCMP before us to ask—

Ms. Janet MacLeod: It wasn't the RCMP. I live in Charlottetown. It was Charlottetown city police.

Senator Anne Cools: Oh, it was Charlottetown—what we call the local police.

Ms. Janet MacLeod: There were 50 visits to my house, on record, in that two years, so remembering which specific officer said what at which time—

Senator Anne Cools: But you're saying very clearly that they declined to help you on the grounds that you didn't live with him.

Ms. Janet MacLeod: On two occasions that was the reason given. On other occasions it was because they had no grounds, and on some of those times I had obviously been beaten, and property had been destroyed.

Senator Anne Cools: My understanding of the Criminal Code is that it doesn't discriminate by who lives where. The Criminal Code is enforced regardless of where people live. That is certainly something we should look at.

Ms. Janet MacLeod: According to the Criminal Code it doesn't— That was back in 1987-88. In the law books of Canada in 1981, if a police officer had reasonable grounds to believe an assault had taken place, he was to arrest, but—

Senator Anne Cools: Well, that is quite true, but a police officer is not allowed to say abuse doesn't exist or that he can't attend to it because that person is not living with you.

Ms. Janet MacLeod: That's right.

Senator Anne Cools: There are no grounds for that. If police forces are doing that, we should certainly know, because that is unacceptable.

The last witness, Ms. Mead. I've forgotten—somebody was married ten years. How long were you married?

Ms. Lillian Mead: I was married 12 years.

Senator Anne Cools: Twelve years, yes. I thought it was 10 or 12 years.

Okay, thank you.

The Joint Chair (Mr. Roger Gallaway): I think Mrs. Finestone had one final question, and I have to ask you to keep it short.

Mrs. Sheila Finestone: I understand there's domestic violence legislation in Prince Edward Island, Alberta and Saskatchewan, and it's supposed to do something. I want to know what it does.

Ms. Lillian Mead: I do too. I'd like to know.

Mrs. Sheila Finestone: Well, if you don't have answers, then I think I'm going to ask the other groups that come up, so that I can get some clarification.

Thank you very much.

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

Mrs. Sheila Finestone: That's forewarning of our question to the groups coming up.

The Joint Chair (Mr. Roger Gallaway): We want to thank you for coming here this morning. We know this is in a sense a revelation of very intimate details of your life, and we know it is difficult to do it. I know that sometimes people feel intimidated coming before a committee. I don't know why they do, but they do!

We very much appreciate the fact that you've come here this morning. You've started our morning, and you've contributed to the work of this committee, so thank you very much.

Witnesses: Thank you.

The Joint Chair (Mr. Roger Gallaway): Before we start with the next grouping, I wonder if Elaine Rabinowitz is in the room?

The Joint Chair (Senator Landon Pearson (Ontario, Lib.)): Yes, she's here.

• 0930

The Joint Chair (Mr. Roger Gallaway): Oh, I'm sorry, I'm looking for the wrong person. I'm looking for Mr. Ian MacDonald from the P.E.I. Association of Social Workers.

I wonder if Ms. Rabinowitz then could come forward.

Colleagues, you'll see on the schedule that the P.E.I. Association of Social Workers was to be represented by Mr. Ian MacDonald. Is Mr. MacDonald here? I saw someone come into the room.

We have then only the one association.

We have been approached this morning by a group called CHANCES, which is Caring, Helping And Nurturing Children Every Step. It's an organization that exists here on Prince Edward Island and is sponsored by Health Canada. I was wondering if they would meet with your approval. They may come in and join us shortly. We're going to make arrangements for them to come in.

Having said all of this, good morning and welcome. I know you've been in the room, so you know how we operate.

I don't know which of you is going to speak, but I should tell my colleagues that this is Elaine Rabinowitz and Rona Brown. I know that when I was here earlier Ms. Brown did not wish to speak, she was just here to answer questions.

Ms. Rona Brown (Co-Chair, Prince Edward Island Provincial Child Sexual Abuse Advisory Committee): I don't even want to do that.

Mrs. Sheila Finestone: Mr. Chairman, just as a point of information, you know the problems that we're having with the House and the vote. I'm am very anxious to hear about the Community Legal Information Association of Prince Edward Island. It's scheduled for 10.30 a.m. Is it possible to have them join this group so that we could hear both of them?

The Joint Chair (Mr. Roger Gallaway): That's if they're here. I'm not certain—

Mrs. Sheila Finestone: Would you mind?

The Joint Chair (Mr. Roger Gallaway): Not at all, I don't mind. Would others mind?

Some hon. members: No.

The Joint Chair (Mr. Roger Gallaway): All right. So we have Ms. Ann Sherman from the Community Legal Information Association of Prince Edward Island, who will now form part of this grouping. We're very flexible.

Ms. Ann Sherman (Executive Director, Community Legal Information Association of Prince Edward Island): That's fine.

The Joint Chair (Mr. Roger Gallaway): Okay. We'll begin with Ms. Rabinowitz.

Ms. Elaine Rabinowitz (Member, Prince Edward Island Provincial Child Sexual Abuse Advisory Committee): The P.E.I. Provincial Child Sexual Abuse Advisory Committee appreciates the opportunity to make this brief presentation today. While we are primarily an advocacy body for issues associated with the sexual exploitation of children, we are here today to give a voice for children whose lives are turned topsy-turvy when their parents separate. We will not be speaking to the issue of child sexual abuse.

In December 1991, Canada ratified the UN Convention on the Rights of the Child. This was a step in recognizing children as citizens with unique needs. It was also an illustration of Canada's belief that children do matter. It is within the framework of the UN convention and with a focus on your committee's mandate to assess the requirements for a more child-centred approach to family law policies and practices that we wish to make the following brief comments in three separate categories: the language of legislation, the best interests of the child, and joint parental responsibility.

First, the language of legislation. The current language in child custody statutes is problematic in that it connotes the ownership of children. This perpetuates the notion that children are chattel, is antithetical to what is implied in the UN convention, and is disrespectful to children. The inference of ownership serves to sidetrack what is meant to be a child-centred focus. In turn, it may fan the fires of what may already be an emotionally charged situation. Furthermore, the current legislative language can be disempowering to parents.

The power of language is cited by the following statement: “Children are equally at home in the non-custodial parent's home, not just visitors that belong to the custodial parent”.

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Several jurisdictions have already acknowledged the power of language by discarding previously used terminology. For example, in 1991 British courts began using more neutral terms such as “contact order” or “residence order”, and in some courts in the United States terms such as “residential parent” instead of “custodial parent” and “access parent” instead of “visiting parent” are now being used. A change in language may help to develop a mindset on how we wish our society to view and care for children.

Category two concerns what's in the best interests of the child. Although well intended, this phrase means different things to different people. Its deficit lies with the fact it lacks definition and substance. As a result, its present state does not serve children well. In fact, in custody disputes, this phrase often becomes an umbrella for the competing interests of one or both parents. Guiding principles should become part of a substantive definition for this phrase. These principles may include, but are not limited to, the following:

Principle one is the child's developmental needs. It's critical in determining a child's living arrangement that attention be focused primarily on how best to meet the needs associated with the child's age and stage of physical, emotional, social, cultural, and spiritual development. It must be acknowledged that as the child matures, these needs will change, which in turn necessitates that the parent's foci of attention will need to shift as well. Parents need to adapt to their children's changes.

As well, it's also critical that children be part of the process, even very young children, and this should be done in a very sensitive way without creating divided loyalties.

Principle two is continuity of care. The continuity of care and nurturing in an emotionally and physically safe environment is critical. Children's coping skills are yet to be refined, therefore they have difficulty making sense of their new world. They experience a multitude of feelings, such as fear and anxiety. It is particularly important that if one parent has essentially been in the role of the primary caregiver, this role should continue, as it provides constancy and security, and serves as a well-needed anchor at a time of upheaval.

Principle three is continuity of relationships. It's critical that children continue to have relationships with both mother and father provided the environment in which this occurs is physically and emotionally safe for the parties. Abandonment fears and anxieties are heightened when parents separate.

Statistically and historically, most children have remained and continue to remain in the physical care of their mother following separation and divorce. The importance of the father remaining actively involved in the child's life cannot be underestimated. The adverse consequences for children from disengaged fathers has been very well documented.

Principle four concerns the least detrimental alternative. Parenting plans for children must consider what are the least detrimental alternatives to the child. Attention must be focused from the child's needs, temperament, age, stage of development, and sense of time. A child's sense of time differs greatly from that of adults and is critical in understanding how children adapt to changes in their lives. It must also be acknowledged that parenting plans will need to change and be altered as children mature.

Principle five is the family context. It is critical that the family context prior to the separation be considered in matters regarding parenting plans. This includes who assumes what roles and level of involvement with the child. This lends to a child's needs for continuity and sense of security, and it combats some of the abandonment fears associated with separation.

The family context also seriously addresses any matters associated with emotional abuse or violence toward people or property. The impact of family violence on children has been well documented. Personal issues that either parent may have had that may interfere with strengthening and building relationships with their children need to be seriously addressed and considered. These include, but are not limited to, such issues as substance abuse and anger management.

The last category is joint parental responsibility. As with the phrase “in the best interests of the child”, this too must be given substance, as it means different things to different people. It's not synonymous with the phase “equal time”. Guiding principles may include, but are not limited to, the following:

Principle one is shared decision-making. Parents should share the responsibility for all major decisions affecting their child provided that the relationship between the two remains cooperative, non-combative, and psychologically neutral.

This ultimately benefits the child emotionally. It has been well documented that shared decision-making and joint custody arrangements do not work well and ultimately have a negative effect on children when parents remain combative, embittered, or when there are major power imbalances that are negatively employed.

Principle two is parenting plans. Parenting plans shall at all time reflect the needs of the child. It should be acknowledged that as the child's needs change, so will the plan.

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Principle number 3 is financial support. Both parents have an equal responsibility to financially support their children. Access arrangements shall not be used as leverage in disputes over child support. To do so brings the child into the adults' conflict and has adverse emotional consequences for the child.

And principle number 4 is conflict resolution. Adult conflict shall at all times remain between the adult parties involved, with realistic attempts towards resolution. Parents must be held accountable and responsible for the consequences of embroiling and engaging their children in any ongoing conflicts.

To summarize, we make the following four recommendations: one, that the current legislative language in family law be revised; two, that guiding principles be developed to give substance to the phrases “in the best interests of the child” and “joint parental responsibility”; three, that lawyers practising family law be required to explain these guiding principles to their respective clients; and four, that the judicial system must be treated as a last resort to resolve issues associated with child custody and access.

A system of easily accessible, affordable, highly trained mediators who are specifically trained in the associated issues would be a much wiser use of resources. In an adversarial system, no one wins, least of all the children.

In conclusion, we would ask that in your deliberations, the child's view of the world be considered on par with that of others. To children, we as adults are seen as giants. At times life among the giants can be a frightening place. As adults we are therefore obligated, responsible, and accountable for creating processes that will make a child's world a more pleasant, safe, and less frightening environment.

Thank you.

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

Ms. Sherman.

Ms. Ann Sherman: Good morning. My name is Ann Sherman. I'm here on behalf of the Community Legal Information Association of P.E.I. This organization provides free legal education and information to islanders on all aspects of the law and our justice system. One of the services we provide is an island-wide, toll-free legal information line.

You should understand that my presentation is in the context of the fact that we have no family legal aid program on Prince Edward Island. We have three different programs that attempt to address some family problems, but there is no general family legal aid program. Our legal aid program is a staff-run program with priority being given to criminal law. Since 1991 or 1992 they have not accepted family cases except in emergency situations where there is a present threat of violence.

We have a program funded through the Law Foundation of P.E.I. that donates money to legal aid to take some cases. These are strictly on a first-come, first-served basis. The application is from the private lawyer. The funds are limited to $500 to $1,000 per client, and the fund has run out of money for this calendar year.

Thirdly, we have what's called a family support orders program, where three staff lawyers work for Health and Social Services, and it is essentially their work to provide child support for their clients who have partners or parents of children who are not presently paying child support.

That's the context within which I'd like to speak.

Last year we recorded some 1,700 inquiries. Over 900 involved family law. Women call us about twice as often as men. In the past six months we've recorded 120 inquiries specifically about custody and access. These fall into two categories: 47 inquiries were for general information because of an impending or a recent separation, but 73 inquiries concerned complex, painful situations where legal advice was essential and where callers felt they had no recourse, because they could not afford to pay for legal advice and they could not get legal aid.

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We hear painful stories every day. From a letter sent to our Attorney General and copied to us, I quote:

I received 10 hours for my lawyer through the Law Foundation program in April '97. I have 4 left. I need a $1,000 retainer to take him to court, and the bill may go as high as $5,000.

In the meantime I am paying all the household bills, trying to keep our home for my boys. The family income has gone from $60,000 to $14,000. We are living well below the poverty line.

When I first separated I went on Social Assistance, but I soon found myself a full-time job. No longer on assistance, Social Services lawyers are not available to me. I have spoken to Legal Aid, Community Legal Information Association, Social Services, lawyers, mediators, financial advisers, and other divorced women. So many women in the same situation as myself have just given up.

From calls to our inquiry line—and these are paraphrased, not verbatim:

My husband and I have joint custody of our six-year-old son. He has day-to-day care and control. His girlfriend kicked him out, so he brought our son and all his belongings to me in my motel room. I go to my new place tomorrow and home study begins on April 2. I'm hoping to get full custody.

My husband drinks and has now gone out for a beer. Child welfare has been involved and I have a worker at Health and Social Services. He is willing to sign a paper stating he left our son with me, but he has in the past said I stole my son without his permission in a similar situation to this. How do I protect myself and my son, and who do I talk to? My husband doesn't want any legal or social services involvement and gets angry and unpredictable about this at times. I'm concerned that if I don't do anything, I will hurt my chances of getting custody. What should I do? I have no money and I'm nervous about my husband's response if I get others involved.

Another caller said:

My wife left me three weeks ago. We have two girls, nine and 12. She wants to take them to Ontario. I'd rather this didn't happen and that they don't live there. Can she take them? What are my rights?

It's not my job to test the validity of the stories I hear. It's my job to respond as best I can with legal information and/or referrals that could help provide resolution. I must tell you, though, that I hear daily about how the legal process is manipulated to cause the maximum amount of distress for the ex-partner. We hear about how the courts are clogged with people representing themselves without understanding what they are doing or how they should do it.

We have published a financial variation kit and we are working on a divorce kit for uncontested divorces. I'm not sure if these kits will help or hinder the process and add to the problem. The bottom line is that we hear daily from people in great emotional distress, and frequently in tears, because they have nowhere to turn to for help.

I have some questions for this committee, and I'm sure you've heard these before. Can you legislate good parenting? We're talking about people in conflict who have perhaps lost sight of the best interests of the children. We're not talking about the people who can deal with the problems and have a commitment to working things out.

And if you believe you can legislate good parenting, how will you legislate in the best interests of the children when those interests compete with the interests of the parents? A great deal of work has to go into defining what in fact are the best interests of the child.

I have some recommendations for the committee from my perspective.

Don't change the current Divorce Act at this time. We're struggling with the child support guidelines, and we should try to find out how they're going to settle and work themselves out before making new amendments.

Provide additional resources to the provinces so that family legal aid, mediation, and conciliation are available for those who need these services and for whom they are appropriate.

Don't link custody and support.

Don't legislate mediation, because it's not appropriate in all cases.

Take the time to develop child-centred directives that will enable decisions to be made on a case-by-case basis to ensure the least amount of distress for children whose parents have separated.

Madam Chair, I'll just quote from a presentation to the International Bar Association conference in Berlin in 1966:

In many jurisdictions access to the courts and to lawyers is strictly circumscribed, either because of oppression or lack of funding— The lack of information, access to lawyers and access to the courts means that enormous numbers of people— have no chance whatever of having their personal legal problems dealt with promptly and efficiently.

This is as true in Canada as it is in most other countries of the world. All of us are grappling with the problem of providing some degree of access to justice in an often cruel and unfair world.

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Public legal education and information is only one way of levelling the playing field and providing increased access to justice. Finding a way to provide legal advice and redress to those who are presently unable or unwilling to resolve their custody and access issues is an enormous challenge, and one that will require more than the wisdom of Solomon, and I wish you well.

Thank you.

The Joint Chair (Senator Landon Pearson): Thanks very much indeed.

Mrs. Finestone.

Mrs. Sheila Finestone: Thank you very much.

First of all, Ann Sherman, that was a very thoughtful brief with some extremely helpful ideas, and I hope with the wisdom of Solomon we'd be able to address a few of them.

Certainly justice delayed, even, is justice denied, and although it may be a trite phrase, it's a realistic phrase, and I don't think only Canada suffers from that. It doesn't mean that it shouldn't be improved.

I have been told that there is new legislation here called domestic violence legislation, which is based on an experience and the legislation found in Saskatchewan.

Ms. Ann Sherman: Yes.

Mrs. Sheila Finestone: Could you tell me something about that?

Ms. Ann Sherman: It's actually the Victims of Family Violence Act, and we have published a booklet about that.

Mrs. Sheila Finestone: Would you be good enough to table that?

Ms. Ann Sherman: There are five copies available here for you on that particular act.

Mrs. Sheila Finestone: Good.

Ms. Ann Sherman: It's provincial legislation; it's not criminal legislation. And the intent is that it provides two orders to victims of family violence. These may be victims of spousal abuse. They may be incidents where children are being abused in a family. It may be in cases where children are in fact abusing adults in a family. So it's not specifically spousal. It's any sort of family violence.

Mrs. Sheila Finestone: I'm sorry, I have to get on a plane and leave, and I regret that most sincerely. I want to make sure this testimony is in.

Could I ask you, in Janet MacLeod's case, which we heard before, where stalking was a problem and she and her children were at risk, would that case fall under this new legislation?

Ms. Ann Sherman: Janet's case occurred some years ago. I don't remember the exact years, but we can tell you—

Mrs. Sheila Finestone: That wasn't my point. My point was, would the present new legislation handle that kind of case today?

Ms. Ann Sherman: This has to do with families. Janet's case is difficult, because there was a lot of confusion—

Mrs. Sheila Finestone: A woman with two children is not a family?

Ms. Ann Sherman: No, she wasn't living with the person who was abusing her.

Mrs. Sheila Finestone: I don't care. A family doesn't have to be defined by husband and wife or two partners.

Ms. Ann Sherman: But he didn't actually live there. This legislation removes the abuser from the family home and provides that he doesn't contact.

At that time, there was a peace bond in place. The fact is that the police didn't enforce that—

Mrs. Sheila Finestone: Please, I want to address the impact potential of this new domestic violence legislation.

Then we'll remove Janet from this picture. In the instance where a woman with children or a man with children is in a situation of potential violence from stalking, will this legislation be enforceable and ordered to the police to protect that family, that parent and children? It does not have to be a husband and wife. It doesn't have to be two women living together or two men living together with children. It has to do with the identification of a family. A family relates to a person and children.

Ms. Ann Sherman: A family relationship— yes, I understand that. This supports the Criminal Code, which was always in place to protect Janet. This supports it, and it gives the police clear indications of how to respond.

Quite frankly, Senator, Rona Brown is better able to answer this question than I am.

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Mrs. Sheila Finestone: Thank you.

Ms. Rona Brown: I'd be pleased to answer that. With this provincial legislation, the Victims of Family Violence Act, we have to go on the definition of family relationship. In the brochure Ann is going to pass along, the definition of family includes those relationships where a man and woman have lived together—it doesn't have to be a marital relationship but would include a common-law relationship—have been married to each other, or have shared a child together. I'm not sure of the details in Janet's situation.

Mrs. Sheila Finestone: If there's offspring, I would presume it was at least a one-night stand, so they shared something.

Ms. Rona Brown: If the man who was being abusive had parented one of her children, this act would apply.

Mrs. Sheila Finestone: Thank you very much.

Secondly, Elaine gave some excellent guidelines, which I appreciated very much. Under point five of the initial list you gave us, under the best interests of the child, you talk about continuity of the relationship. You then add the need to adapt a parenting plan, of course, which I think is perfectly intelligent.

You then talk to the family context. You talk about prior to divorce. There have been a number of suggestions that in the development of parenting plans the judges take a look at what those shared responsibilities were prior to the initiation of the steps toward divorce, so you can develop a shared parenting plan that will be more reflective of that family when it was at peace and not at war, if I could put it that way.

I want to ask you two things about that. First of all, do you think that's realistic? Secondly, where in those family or parenting plans does the role of the extended family of grandparents, aunts, uncles on both sides, come into the picture?

Ms. Elaine Rabinowitz: I work in the field of mental health, and a large percentage of that time, over the last 20 years, has been spent with children and families. I think each individual family situation needs to be considered on its own merit. I think you need to provide for the continuity of what worked well before. If you're looking at what children's needs are, their whole world is turned upside down. If you can provide any amount of routine, stability and continuity— Dad takes Charlie to hockey games, and that needs to continue and whatever else.

Mrs. Sheila Finestone: And if grandma has sabbath dinner—

Ms. Elaine Rabinowitz: Right.

Mrs. Sheila Finestone: I had to get it in, Ann. You're invited.

Ms. Elaine Rabinowitz: Okay. In terms of extended family, I think it's really critical that children maintain and continue to maintain those relationships, because children need family and need to know their roots.

Mrs. Sheila Finestone: Thank you. Thank you, Madam Chair.

The Joint Chair (Senator Landon Pearson): Mr. Lowther, do you have a question?

Mr. Eric Lowther: Are we on schedule, Madam Chair?

The Joint Chair (Senator Landon Pearson): We're not bad.

Mr. Eric Lowther: Okay. I have a bit of a question. I appreciated both presentations. I thought they were pretty well balanced and thought out. I appreciate the time you put into them.

Ms. Rabinowitz, your organization is called the P.E.I. Provincial Child Sexual Abuse Advisory Committee. This doesn't directly pertain to your topic area, but can you explain a little about what you do?

Ms. Elaine Rabinowitz: Okay. The Provincial Child Sexual Abuse Advisory Committee has a long history. I don't think time permits me to go into that, but we have about 40 members representing professionals, community members, law enforcement, individuals, teachers and guidance counsellors. We look at issues in the province that deal with children and child sexual abuse.

Mr. Eric Lowther: So if there were a case of child sexual abuse, would they call you?

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Ms. Elaine Rabinowitz: No. If I may continue, our primary mandate was to follow up on a rural child intervention model in dealing with child sexual abuse in P.E.I., which we do. Also, we look at prevention activities and other issues that pertain to children. We're often consulted by other agencies or even businesses who want to do something on child safety.

Mr. Eric Lowther: Okay. So you don't get called if there's a situation or somebody thinks their child's being abused—those kinds of things.

Ms. Elaine Rabinowitz: No, and should any one of us get those kinds of calls, we would direct them to the appropriate agency, which would be Child and Family Services.

Mr. Eric Lowther: Right; Child and Family Services.

In your studies, then—and this is directing my question, now that I know what you do—or your research, do you get a sense that we're getting better at actually determining if the abuse is actually going on, or whether it's some other agenda? Can we sift out the real from the imagined, or accusations that are—

Ms. Elaine Rabinowitz: In all fairness to your question, I don't think that time permits to even address that, because it's very complicated, and I think it's only one subject in a very broad spectrum. I don't think I can really fairly give you any kind of answer to that, because I think it's just a piece of the pie, basically. I can't answer that question.

Mr. Eric Lowther: That's kind of been the answer we've been getting to that question all across the country, so I think you're pretty much on track there.

Thanks. That's all I have on this, to see if there are any nuggets there, but thanks.

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

Senator Anne Cools: Thank you, Chairman. I'd like to thank the witnesses again.

To the witness sitting at microphone 11, you said something that I wonder if you could expand on. As you were speaking about the courts and the problems that you hear about, the problems that people relate to you, you made a statement to the effect that individuals sometimes lack financial resources and access to the courts. I think your exact word was “circumscribed”.

I wonder if you could amplify on that a little bit more, because it's fascinating. If Parliament passes laws and then one party is at the mercy of the other because one party has more financial resources— Basically I think we've all learned that justice has price tag. I wonder if you could comment, please.

Ms. Ann Sherman: I think you're quite right. This should teach me never to quote from somebody else who used the word “circumscribed”, right?

Senator Anne Cools: Well, I thought it was a very eloquent speech.

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Ms. Ann Sherman: I want to emphasize that people very often call us when there is nowhere else to go, so we do hear the desperate stories and we're often the last resort.

From us, people will often try to represent themselves, often to their detriment, because they will, as a friend of mine said, find themselves in court looking like a bunny in the headlights. They're totally overwhelmed, totally intimidated. They don't have all of the complex information they need to present their case properly. It's beyond my mandate to do that—to tell them exactly what forms they need, to find out what their situation is, to show them how they should fill those forms out. That is moving into the realm of legal advice, and it is something I cannot do.

All I can do is tell them the basic how-tos. What they do with that information is then their responsibility. We are at a crisis point, I think, here on P.E.I. I'll think you'll hear this reinforced by the two lawyers you have presenting to you. The courts are literally clogged up by people representing themselves without fully understanding what they're doing, how to do it, and what the ramifications of losing are.

Senator Anne Cools: Chairman, could I interrupt her for a moment? She used a pretty strong word. She said when the courts are “clowned” with people representing themselves. Perhaps you could clarify that a bit, because clowned means—

Ms. Ann Sherman: Clogged.

Senator Anne Cools: Okay; just as long as we're speaking the same language.

Ms. Ann Sherman: Clogged, yes.

It's anecdotal. I don't have figures for you. I'm sure we could find out how many people are representing themselves in family court. I know it's of great concern to the judges.

Senator Anne Cools: Do you have any idea of the breakdown by gender of the persons who are clogging the courts?

Ms. Ann Sherman: No, I don't. My colleagues coming later may or may not have, but I can find that out and provide that information to the committee, Senator.

Senator Anne Cools: I have one other quick question. You've also, and I think rightfully and properly, raised this issue of people being compelled to represent themselves because they lack resources. This is a problem the committee as of yet has not spoken to—the enormous burden to the individual and to the taxpayer of all of these endless processes. You said that frequently people represent themselves, frequently to their own disadvantage.

Some time ago I read a review of the civil justice system in Ontario called precisely that, the Civil Justice Review, and somewhere in the section on family law they speak to the fact that because of the overall crisis in the economy and the lack of work for lawyers, many non-family lawyers had turned to family law to make money, and consequently people who were getting representation from lawyers were basically procuring poor representation.

The question I have for you is the following. Yes, people are compelled not to have representation, but as all of these laws are made, and as all of these lawyers are gaining clients, how does a citizen, one of your clients, really know whether or not a lawyer can do him a good service or a disservice?

We had presentations on this in Regina, I think it was, and I think it was from the Merchant Law Group, who basically said leave it all to the marketplace—marketplace justice—and the situation will sort out itself, because the best lawyers, the highest paid and the most competent will eventually all rise to the surface. It was sort of laissez-faire.

I'm saying a lot of things, but they relate to the very profound point you raised. I wonder if you have any thoughts.

Ms. Ann Sherman: I think the situation here in P.E.I. is different from the situation in Ontario. Many of our lawyers are general practitioners, and family law is part of their practice. I know that many of the lawyers here on the island provide endless hours of pro bono work to family law clients. Of course there is a limit to the amount they can do.

Many of our lawyers will accept a lawyer referral through the lawyer referral service, which is a half hour for ten dollars, which anybody can access, and they do far more hours than that ten dollars—

The lawyers that take the cases under the Law Foundation program, where they're paid $50 an hour to a maximum of $500 or $1000, provide far more hours than they're paid for. There are many people who are doing their best to resolve the problem here. I don't think we have the same problem as occurred in Ontario.

Senator Anne Cools: Also of interest is the fact that Prince Edward Island is a smaller community, and consequently people will tend to know each other more and better, so any lawyer who is representing certain individuals will tend to see and interact with that individual more in the wider community.

I think we should remember, as we are arriving at our thoughts on some of these matters, that in smaller communities there's greater community interaction and involvement. So yes, I can quite easily believe that in a place like this there's a lot of pro bono work and there's a lot of concern being acted upon by professionals, by nature of the proximity and the closeness of the community.

Ms. Ann Sherman: If I may add one more thing, Madam Chairman, I've brought other publications with me. Apart from the Victims of Family Violence Act, we have Islanders' Guide to the Family Law Act, which is provincial legislation, and a pamphlet on child support guidelines, and the lawyer referral service pamphlet that I mentioned before. I'll leave all of these copies with the committee.

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The Joint Chair (Senator Landon Pearson): Mrs. Finestone has a small question.

Mrs. Sheila Finestone: On the issue of your hotline, if I could use it in that terminology, do you look to the retired lawyers to lend a hand?

Ms. Ann Sherman: The lawyers on P.E.I. provide us with endless hours of volunteer work. They support Community Legal Information Association, and we would not be able to do our work if it were not for those lawyers who give us thousands and thousands of dollars worth of volunteer time each year, all of which is reported to the federal Department of Justice, because they provide our basic funding.

The line is staffed actually by two non-lawyers, because we are unable to provide legal advice. That line only provides information, not advice. There was a discussion about whether to have it staffed by lawyers or non-lawyers. It was decided that given the mandate and the focus on information and education, not legal advice, it could be staffed by laypersons.

The Joint Chair (Senator Landon Pearson): Just a minute, there is a photographer and a journalist here from the Charlottetown Guardian. Do we have the permission of the committee for a couple of still photographs? Fine.

Sure, go ahead.

Mrs. Sheila Finestone: On child support guidelines, those have been established under Ann's favourite bill, Bill C-41. What are you doing with this particular piece of information that you've just put together for people? Is it not a government responsibility to publish and distribute?

Ms. Ann Sherman: Yes. The federal child support guidelines implementation team actually gave us some project money to develop written information here and to provide public presentations.

We've done a series of family law presentations across the province. We generally do about six of them each year, and this year we've been focusing on the child support guidelines, the legal issues, the tax issues, parenting issues, and we've just completed a series of three public information sessions.

Mrs. Sheila Finestone: Are you able to cover the entire province?

Ms. Ann Sherman: Like dew, which is the Guardian's motto.

Mrs. Sheila Finestone: Like the dew.

As an outer, I have to know what the inners are doing—and that's not belly buttons.

Senator Anne Cools: I have one little question, just out of curiosity. Because Prince Edward Island is a small, relatively intimate community, how did you hear of these hearings and what prompted you to apply to come as a witness?

Ms. Ann Sherman: In regard to the initial hearings, I'm not sure, because we're going way back now, but I know I had heard about the hearings before I read about them in the newspaper. I contacted people, and at that point you didn't have a date.

Senator Anne Cools: You contacted our committee?

Ms. Ann Sherman: I'm not sure who I contacted way back when, but there was no date for P.E.I.

Eventually a fax arrived in my office—from whom, I have no idea—that said the committee was in fact coming to Charlottetown and gave a date and a place.

At that time, I must tell you, Community Legal Information Association sent a memo out to individuals and organizations around Charlottetown, saying, the committee is coming, and it's important that you get there and that you're heard; go for it.

I know other people in the community had been contacted by various other people involved with the committee or who knew about the committee. We did a real networking job.

Senator Anne Cools: That is very healthy. I would be very curious to know who sent you the original fax—

Ms. Ann Sherman: I'm not sure.

Senator Anne Cools: —if you could search into your memory somewhere. I think I know who, but you may have a copy of the fax transmission.

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Ms. Ann Sherman: I did get a copy of the original press release too, and then I went on the Internet and found out more about the committee.

Senator Anne Cools: Good. Well, thank you.

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

I have one quick question for Ms. Rabinowitz.

Would you add to your recommendations anything related to the role of children in the process?

Ms. Elaine Rabinowitz: As I stated earlier, the children need to be part of the process and it needs to be done in a very sensitive, delicate way, and even with young children, as long as the process does not create divided loyalties. There's a way of working with children and consulting children and understanding how they feel about the situation without getting them into the situation and creating divided loyalties between mom and dad. So I would add that as a recommendation, yes.

The Joint Chair (Senator Landon Pearson): Have you any knowledge or experience here in Prince Edward Island as to how this is being done or whether it's being done?

Ms. Elaine Rabinowitz: I know just from anecdotal evidence, in terms of some of my clinical experience with specific families, that there are some really good mediators who work with families and who also meet with the children and consult with them about their feelings regarding the family separation and how they feel about a whole variety of issues. These mediators I'm aware of are fairly well skilled.

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

Ms. Elaine Rabinowitz: Thank you.

The Joint Chair (Senator Landon Pearson): Thank you, all three of you, for coming with the two presentations.

We'll just take a 10-minute break before I call the next two witnesses.

• 1017

• 1037

The Joint Chair (Mr. Roger Gallaway): Would Ms. Craig and Ms. Dumont please come forward.

I must make two apologies to you, or one is an apology and one is an explanation. I'm sorry for the lateness; we are running late this morning. Secondly, it appears our members have been possessed or seized with the congeniality of the island and are moving all over the place this morning and quite enjoying themselves here.

Colleagues, we have with us two representatives of the bar of Prince Edward Island, Kathleen Craig and Daphne Dumont.

Welcome. You've been here, and I know you know the procedure. We'll start with Ms. Dumont.

Ms. Daphne Dumont (Macnutt and Dumont): I'm going to make three observations from my role as a family lawyer and three recommendations. I have a brief, which I will be leaving with the committee when I'm finished.

Just to explain why I came, I'm a private practitioner in a small firm with 20 years' experience in family law. I regularly take legal aid cases. I teach family law in the P.E.I. bar admission course. I write for the federal government family law information publications and I work with Prince Edward Island implementing the child support guidelines.

I'm also the chair of the P.E.I. Law Society's legal aid committee, which will show a bias, as I repeat what Ann Sherman has so eloquently said already. I'm on the Federation of Law Societies' national legal aid committee. I'm famous for having got my QC for settling 2,000 family law cases. So if you have any practical questions, I'd be happy to answer them.

My first observation is that children suffer when families can't get legal aid. New legal rights are useless without a means of access to justice. With cuts in federal-provincial transfer payments, the poorer provinces, such as P.E.I., are reducing their family legal aid budgets to embarrassingly low levels.

P.E.I. glories in a fragmented family legal aid system that is nationally recognized as the worst-funded in Canada. It is held together by overworked public servants and by family lawyers who donate a substantial portion of their time to poorer clients who are bold enough to ask for help. Those who are too proud to beg get nothing. Prince Edward Island's family legal aid system was saved from total extinction, in my personal opinion, only through the extraordinary efforts of the Honourable Catherine Callbeck during her tenure as premier of this province.

Currently the maximum practical funding available for a complete custody and access case is $500 per case, all-inclusive. There's a theoretical limit of $1,000, but we rarely get it.

• 1040

A massive set of reforms to the Divorce Act has just been completed. The new federal child support guidelines brought us a complex list of changes and the introduction of so many new variables that it took me and I'm sure Kathleen as well, who are experts in family law and write and teach regularly in this area, well over 50 hours of close study to arrive at an understanding of what our federal government had thought up for its citizens.

Along with this pile of child support legislation and regulations, which probably cost the taxpayer hundreds of thousands of dollars to produce, came not one cent for legal aid. Citizens therefore cannot use the new laws, which purport to guarantee them more support, fairer support, better balanced support, or whatever.

Now representatives of the Senate and House of Commons have come to Prince Edward Island to discuss reforming the Divorce Act again. Believe me, custody and access reforms will be worse than useless if legal aid funding is not secured to help our citizens access the new rights you may produce. A disabled father, whose ex-wife won't give him access to the children because he can't pay child support, will not benefit from an elegant restatement of his parental rights unless he can get some help from a lawyer and obtain an enforceable court order.

I've attached to my brief a copy of a very recent case in which the Chief Justice of Prince Edward Island includes a cri de coeur begging for legal aid assistance, as he found himself struggling to help litigants on their own, without any assistance from lawyers, try to work through cases. He's beginning to question the judicial independence of judges because of the lack of actual practical help for litigants.

My first recommendation is to do nothing to the already complex Divorce Act until you are certain that your reforms will help the most disadvantaged citizens benefit. You should be able to state exactly how your ideas can become reality for that poor disabled father in a province with no legal aid before you table your recommendations to the government. The access to justice arrangements, i.e. legal aid, mediation or whatever, should be part of your recommendation, preferably in the same sentence, so they can't be cut out when the matter goes to the House committee.

It's better to leave things as they are than to dangle inaccessible guarantees just beyond the fingertips of the most deprived citizens. Indeed, since all new laws are open to interpretation, if you change the Divorce Act and establish new access standards, you will be invalidating our solid old precedents and giving parents a whole new set of undefined guidelines to argue about. Before you do this radical act, make sure parents of children in poorer families will have resources to add their voices to the arguments that will certainly result if you change the Divorce Act.

My second observation is that negotiation is actually more common and more important than litigation. We constantly hear of a contrast between the horrors of litigation and the benefits of mediation; the horrors of lawyers being involved and the benefits of some sort of other structure being set up. To me, the real contrast is the negotiation professionals provide versus litigation.

In my practice, I find the refusal of non-custodial parents or access parents to visit is a much bigger problem than the refusal of visits by custodial parents. I hear a lot more complaints about people who have the children waiting with the luggage packed and the parent who has access not coming or coming late, than I do about people who don't get access, although I do hear those as well. Poor access styles, if I can coin a phrase, are also a constant problem. Children are often collected late, there are last-minute cancellations and early drop-offs. These all cause problems.

In general, I find the justice lawyers can provide is like beauty in the details, the unique arrangements and customised schedules lawyers or mediators can negotiate in the interests of the children involved. However, we negotiators are well aware it is the vague—or called vague—best interests of the children test in the Divorce Act that gives us this flexibility to create detailed schedules.

It would be devastating to formalize one type of custody arrangement, 50-50 for example, and then require everyone who needs permission to deviate from this to go to court. It wouldn't solve anything, because access arguments centre on the fine details, like what time after school will Johnny be picked up, rather than the general principles of 50-50, 40-60, or whatever.

So my second recommendation is please do not establish presumptions that will require parents to go to court. Under no circumstances should the federal government establish presumptions that custodial parents must rebut in order to protect their children. Custodial parents tend to be poorer than non-custodial parents, particularly before the child support starts to flow, and it rarely flows early. The need to agree on the terms of access in order for access to occur is a great encourager of agreement. If you impose some sort of 50-50 parenting time arrangement, we will lose that benefit.

• 1045

My third and last observation is that child support and access are beginning to be legally joined together again. The new federal child support guidelines allow non-custodial parents or access parents to pay less support if they can prove they have the children with them for 40% of the child's time. This provision, which reconnects custody and access, has caused many cases to be reopened and brought us many claims for increased visitation.

In my view, the better approach would be to allow a reduction in support to non-custodial parents if they contribute heavily to the capital purchases necessary for their children. As long as the caregiving parent continues to make all the child's medical and dental arrangements, continues to take time off work to care for sick children, continues to buy the clothing, gifts and other necessities of the children, they should get their full child support, no matter how much time the non-custodial parent spends.

My last recommendation is that we should again disconnect child support and access. Every effort should be made to disconnect them. It has taken 20 years to convince our citizens that there is no truth in the pernicious assumptions that used to be so common, such as, “Well, if I don't request child support, I won't have to give him visits”. That's not true any more. “If I don't come to see my children, I won't have to pay support”. That used to be true; it's not true any more. And the third, the saddest one, “Well, I won't even try for access, since I'm not earning enough to pay my wife child support”.

The benefit some children might get from a law that will force unreasonable custodial parents to grant access in order to get child support will be massively offset by the harm thousands of other children will suffer if we revive what I consider to be the toxic “no visits equal no payment” equation. It has taken us so long to eradicate this.

My last recommendation is that in whatever you do, try to remember the most disadvantaged. Please don't leave us again with what one perceptive observer of federal policy development calls “all possible aid, short of actual help”.

Thank you.

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

And now, Ms. Craig.

Ms. Kathleen Craig (Individual Presentation): You'll never get two lawyers in a room and find that they will ever totally agree with each other.

Mrs. Sheila Finestone: Whenever you find two lawyers who know the difference between black and white— They only know grey, either side of the coin.

Ms. Kathleen Craig: Family law is definitely many shades of grey.

I'm not here to critique or criticize, but I do want to make one very important point. I've practised law since 1985, and I don't have a problem with the legislation. I think Parliament has good legislation, but I think we have a very serious problem. We have a serious problem that's bigger than the lack of funding for legal aid. We have a crisis in this province, which, in my opinion, is there over and above the lack of funding for legal aid.

I would reiterate the comments that have been made this morning about needing legal aid, but you can be a parent in this province and go through the court system— I've left you two cases, one at the trial level and one at the court of appeal level: two boys who were three when the mother and father separated, and despite thousands of dollars spent by the father to go to court to get access to his children—we were in court for some days—I stand before this committee saying that man still doesn't see his children.

It's not a problem with the legislation. It's a problem with adjudicating enforcement. It's not even a problem getting an order—you read it; there's an order in there for access—but when access is not taking place, you have hollow orders, and you lose respect for the court.

If Parliament can't enforce compliance, judges can, from one end of this country to the other, and they do. In some jurisdictions there's a willingness to change custody when it needs to happen, to enforce access. In some provinces there's a willingness to deal with child support. I'm not saying these are first choices; I'm saying these are very poor choices, but as a last resort—

• 1050

What we need from Parliament is some very clear direction on enforcement. I leave that with you, because that's beyond poverty or beyond— If there's a court order, maintenance enforcement is there to enforce spousal support or child support.

Are we leaving it for children, when they turn 18 years of age, to finally connect with the other parent and use their own efforts? They've lost their childhood as it is, and I'd say, to me, that's crucial.

This is a failure. This isn't the failure this man's lawyer as an advocate; this is a failure of the judicial system to respond to the children's need to have access.

The comment was made: what should I do, physically put these children in the car? No. No judge has to go out and physically put a child in a car to ensure access takes place.

This is a situation where there's no abuse. There's no sexual abuse; there's no physical abuse. There's no history of some of the concerns that you heard this morning before you. This wasn't a case with that kind of history. This is a history of intransigence, a history of a parent who moved home with grandparents, got reinforcement for her position, and saw no need for the access parent to have a role.

What I'm saying is, sure we need to meet the needs of children who are abused in this province, and we need social services, child welfare. But we also need people to assist these children who are falling through the cracks, where there's no abuse other than what I would consider emotional abuse, the refusal to recognize the need of the child for the other parent.

I say that because, to me, this is the fundamental case. I was the lawyer involved in that. These children are growing up with no access, despite the legislation.

I have a problem with the 40% rule, but I don't have a problem in the child support guidelines for 40% custody/access being a consideration. I don't have the same problem as my learned friend Ms. Dumont has. I actually think what you've done is encourage people to try to get 40%, when before they were quite content with 20% or 30%.

I have great respect for the Senate, particularly for your involvement in the child support guidelines, and even in getting the 40% rule, because we were aware through the media of how important a role the Senate played, and I'd like to compliment you on having these hearings and listening to us. But my difficulty is that for parents who visit every other weekend, from Friday night to Sunday, you can work out the hours and say, well, perhaps out of a whole month they have less than 20%. But there are a lot of parents who are quite happy between 20% and 40%.

How do you make somebody fit, or how do you exclude the fact that someone may be financially contributing in a very serious way and visiting— I say visiting, but it's visiting, access, or whatever other name you want to give to the non-custodial parent. How do you ignore the contribution in terms of time and money, and contributions of parents who fall between the 20% and 40%?

What's happening is—I agree with my learned friend—we have cases coming before the court where the incentive is to reduce child support by trying to get access up to 40%. What I think should happen is, leave that somewhere between 20% and 40% and let a judge use his discretion as to when it's appropriate, not on the basis of hardship but on the basis of calculating the child support. Take the motivation away for people to try to get more time, to get a fairer result on the financial end, because they're using access to try to fix another problem, and the problem may not be access. Access is for the child.

And don't penalize the father who is spending 40% of the time. I use father as an example. The non-custodial parent could be a mother, but in this province, a lot of times the custodial parents are mothers, and the fathers are non-custodial parents. If they have the children 40% or greater, don't fail to recognize the contribution they're making financially.

I just had a case—it's under appeal—where the judge imputed income to the father because he was living common-law with a lady who had an income, bumped up the guideline amount, and then reduced it back to what the table amount would have been to begin with. This man no longer can financially afford to take the children to the dentist; he can no longer financially afford to buy their clothing and look after the haircuts, because in this case, that's what he was doing with his more than 40% of the time. He was providing those things.

• 1055

I don't want to open a can of worms, but I say you should not forget about the parents who are between 20% and 40% who are jockeying for position for over 40%, simply because 40% is the arbitrary cut-off.

I think we need to decide custody and access sooner. I'm embroiled in some cases that are three years old and permanent custody hasn't been decided. Do you know what that does to the children in these households and to parents? Why can't we have an encouragement— I heard the comment that justice delayed is justice denied. I truly believe that. Why can't we have these cases come to court sooner? We're waiting for home studies. We're waiting for court dates. While we're waiting, there's no access taking place.

It's bad enough here that there's an order and no access taking place, but we're in a situation where these families are in turmoil because nothing has been decided. If there's one thing I've learned over the years it's that children are harmed by the tension and by the fact that there's a conflict. Even if there's going to be no access at all, it's better to have that decision decided early on than to leave it in limbo for years.

That's a real problem in this province. We can get court dates for an hour for interim custody, interim support. There will be half an hour for each side, which includes cross-examination. Now you tell me how in a case where someone's been married for 20 years and there's abuse and everything else, the judge, in half an hour per side, comes to determine the issue of access and child support in that limited timeframe? Usually both issues are before the court on an interim basis.

If we want trial dates, we need to go to pre-trials and we need to have home studies, sometimes two home studies. It's incredible. The years are going by and these children are stuck in this situation.

That's an issue of the management of the courts, but it's also an issue of funding. You have to pay for a mediator privately in this province. There is mediation available through family court counsellors, but they're so overworked with doing the home studies for the courts that they don't have time to mediate.

You heard from Elaine Rabinowitz this morning. The mental health authority offers counselling, which is paid for by the province. Unless you're suicidal, you can't get in, because they deal with crises first. So the most needy get attention. Those families who really need help, but aren't getting it, are on a waiting list.

The example this morning of going from an income of $60,000 to $14,000 is very real in this province. We have an incredible number of parents who look after households on $14,000 worth of income. How do they pay for a mediator, even if they want one? How do they pay for a counsellor? How do they pay for a lawyer? In other words, the law is there, but people can't touch it because they're not able to access it.

That doesn't just fall on the shoulders of the federal government, but I want this committee to realize how important that is. We're there, but clients can't access us because they're in the $14,000 to $20,000 range and they're not eligible for assistance through the family support orders program because they're not on social assistance. So they're falling through the cracks.

You can say that the Divorce Act is child-centred. I'd argue with you and say it's not child-centred at all. It says it's in the best interest of the children, but it's not in the best interests of the children to have long, drawn-out custody battles. It's also not in the best interests of children to allow children to make the decision.

We have a lot of parents who won't or cannot communicate with each other, but they will delegate power to a child. In other words, it's up to you if you want to go with your father or your mother. It's up to you who you want to live with.

It's not up to my child whether he's in French immersion; I put him there. In grade 1, he didn't want to go. He's doing really well and I'm really glad he's there, but as a parent, I had some decisions to make, and I had to compromise with my husband on them. If anything happens to anyone else's marriage and it ends, they need to still compromise on what's best for the children.

What you're having happen here are children who are growing up with inappropriate power. I say that because, in this case, you will see that the children were coming out to the car and saying they didn't have to go with the father. Someone said to them, “You don't have to go if you don't want to; it's up to you.” Sometimes we need to ensure that parents make the decisions and, if courts make them, that they're lived up to.

• 1100

The Joint Chair (Mr. Roger Gallaway): Ms. Craig, sorry to interrupt you, but we're running short on time. I just wondered if you were almost finished.

Ms. Kathleen Craig: Well, I can be.

The Joint Chair (Mr. Roger Gallaway) All right.

Could I ask that you tell us the name of the case you keep referring to?

Ms. Kathleen Craig: I have left it with you.

The Joint Chair (Mr. Roger Gallaway): Okay, but we'd like it on the record.

Ms. Kathleen Craig: Okay. It's just that the press are here, and I would prefer—

The Joint Chair (Mr. Roger Gallaway): It's a public record, though.

Ms. Kathleen Craig: I know it is. I guess my difficulty is that I'm trying not to draw attention to the children or their names.

The Joint Chair (Mr. Roger Gallaway): If you're going to file it us, if the press want to access it, this is public record also.

Ms. Kathleen Craig: Yes, I realize that. I've only filed one case.

Senator Anne Cools: Can we see the file number, then?

Ms. Kathleen Craig: Okay, sure. The number I would be happy to provide.

Senator Anne Cools: It's easier in future, when we pull the testimony, to read it.

Ms. Kathleen Craig: Do you understand where I'm coming from?

Senator Anne Cools: Absolutely. All we need is something to be able to reference it.

Ms. Kathleen Craig: Okay. For the appeal court, AD0715 was the number, and the date of the decision was November 20, 1997. The trial judge's decision was dated November 6, 1996, and it has the number 1101-02545.

What I would say as a parent, and as a daughter, and as a citizen of this community, is that these children of divorce are growing up, and they will form their own relationships. We have parents who can't compromise or won't compromise, and children are growing up without having learned how to compromise. They will form their own relationships. They're falling through the cracks, and we're all going to regret when we don't do what the Divorce Act allows us to do, which is meet the best interests of children.

Wishes of children are important. I don't disagree that we need to hear from children and they play a role, but I'm talking about delegating the decision to them—making them grow up with the decision that they have chosen which parent they prefer.

Parents need to be encouraged to provide access, even if they're having difficulty with their children. I say that because we need to support custodial parents when they enforce court orders and we need to support non-custodial parents—for parents to help each other parent their children after divorce.

The judicial system is adversarial. It's expensive. We have parents who need to look after their children and can't. They don't have the financial resources. It decreases parents' ability to parent. When you go to mediation you're looking at: where are we going from here? Maybe dad wasn't involved in the past with changing diapers. Maybe he's going to take his 10-year-old to baseball games and hockey games.

When we go to court—you know that saying, “When you throw dirt, you're going to lose ground”?—we're going back to all these examples of how they didn't parent well, or their failures. It's no wonder they don't have any trust for each other, and that by the time they're done with the court system, an adversarial process in court, they can't work together at all, because we've totally destroyed what they have between them to work with as parents.

When you decide to have children, in my humble opinion, you decide to provide a child with parents. It takes a mother and a father—maybe not, as Mrs. Finestone indicated, intimacy always—but generally a mother and a father.

Mrs. Sheila Finestone: Was that the way I should have said it? Thank you.

Ms. Kathleen Craig: No, I wasn't criticizing you. I'm just saying there are two people involved in the parenting.

When parents divorce, some of their rights and obligations change. For example, we make a dad pay for the university education of his or her child, to the first degree. We don't say to them, “What were you going to do if you'd stayed married? Would you have paid that, or would you have made your child pay that himself?” We have definitions of what a child is. We have obligations that they have to meet.

Under the Divorce Act, we have to stop leaving it to parents whether they're going to allow access to take place or not. In other words, we need to ensure that our children's needs after divorce are being met.

• 1105

Again, I would reiterate what I said earlier. The problem is not with the legislation; it's in accessing the judicial system and it's in enforcing the orders that the courts place.

One thing I would mention—I'll just leave this with you—is that our provincial act, the Custody Jurisdiction and Enforcement Act, has a provision in it that you don't have in your federal legislation. I didn't bring it with me, but I can certainly fax it if someone leaves me a fax number.

Our provincial custody act has a deemed custody provision in it, so that if nobody's ever gone to court but they've been separated for two or three years, both parents are equally entitled to custody of their children. However, the right of custody may be suspended when there's been undue delay, acquiescence, etc., which means that parents—

Let's say a mom has remained in custody with the children and dad has just walked away. Mom has never gone to court, never been able to access a lawyer, and never gotten there. She has custody under the custody act, in fact. If her child is kidnapped by the father, she can go to the police and say, “I have lawful custody under the Criminal Code, not by a court order, but lawful custody. Do something.” Now, she may meet the same fate that your earlier witness testified about—the Criminal Code is there, but how do you get the police officers to access it?

Under the Divorce Act, it's possible to come to court two years after these parties have separated, be applying under the Divorce Act, and have the judge say custody has never been decided. What he means is there's no court order; you've never asked for a court order. But there's nothing to say that the parent who has the child without a court order actually has custody.

I just leave that with you, that we actually have better protection.

A voice: —

[Editor's Note: Inaudible]—

Ms. Kathleen Craig: Well, you see, we're not under the custody act when we're under the Divorce Act; we're under federal legislation. So I just leave that with you, that the provincial act actually has something that is very helpful to a custodial parent without a court order.

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

I want to clarify one point that you raised, or appear to have raised, anyway. This is not a Senate committee, this is a committee of the House of Commons and the Senate.

Ms. Kathleen Craig: Right. I—

A voice: The Senate and the House of Commons.

Ms. Kathleen Craig: I don't want to open a can of worms, but I realize this is a joint committee. What I wanted particularly to do, since the Senate is coming under so much criticism publicly, was say that I really appreciated what the Senate had done on the guidelines. But I was aware that this was a joint committee.

Senator Anne Cools: And also you do have Senator Bonnell and Senator Callbeck and all these fabulous Prince Edward Island senators.

The Joint Chair (Mr. Roger Gallaway): Is this a commercial?

Senator Anne Cools: No, it's my Senate moment.

Some hon. members: Oh, oh!

The Joint Chair (Mr. Roger Gallaway): I'm sure that's very rarefied, Senator. In any event, we will start with questions, and we're going to start with the House of Commons, with the Honourable Sheila Finestone.

Mrs. Sheila Finestone: Eric, you don't want to go first?

The Joint Chair (Mr. Roger Gallaway): Oh, I'm sorry. My list showed otherwise, but go ahead. We're going to start with the House of Commons, with Mr. Eric Lowther.

Mr. Eric Lowther: These were good testimonies, and tight.

We've heard a lot from different groups about lawyers, and we've heard from a lot of lawyers, and I get the sense that both of you ladies really have a heart into wanting to help these families, and to really kind of bring to conclusion some of these difficult situations. However, people are faced with the fact that, as you said, the law is okay but people can't access it.

Lawyers, courts, judges. Winners, losers. Custody, access. Is this the wrong way to do this? You know, it seems to me we're taking a blunt instrument, or the wrong instrument, to deal with a marriage breakdown, at least at the first point of contact. People are stressed, there are all kinds of emotions, they're not equipped, and they walk into this meat grinder called the judicial system.

• 1110

Even lawyers with the best of intent, those who really have a heart for these people, are still somewhat constrained by the training they have and the profession they're in. You need to win a case, lose a case, or present your client's case, and you can't advocate for the other client. You know, even if you want to do a good job, it seems to me that your profession makes it difficult.

What do you think about a different filter or some sort of other— I guess I'm talking about mediation, but I hate the word, because everybody has a different picture of what it is. But what about some sort of other process people come through before they ever hit the judicial system, the meat grinder system?

It would be some sort of thing that explains that if you tell your children the other parent is—or you're derogatory to the other parent, it actually separates the children from you. It also goes through some of the impacts of fighting in this situation on the children and on each other.

Maybe show them some scenarios that can work. “Don't be a jerk on this thing, or you're going to hurt yourself and your kids”, basically. Show them what can work. e hope that the ones who fall out of that maybe are forced to go into this judicial meat grinder, but at that point it's a decision they've made.

I know all of this ties back to cost: who's going to pay for it all? You know, I get the sense that both of you have a real heart for the families, but you're also lawyers. I'm wondering, are lawyers the way to go? Alternatively, should we not even get close to lawyers in the court system until this has been addressed?

Ms. Kathleen Craig: What I would say is that lawyers can be good and helpful, and we can be extremely damaging.

When someone comes in to see me I need to know if they are coming to see me for advice, or are they coming to see me for reinforcement? And I get both. It's a wonder I have a client left, because all my clients provide access, or I don't act for them. That's my personal decision, and I have practised that since 1985. As far as I'm aware, I don't have parents who don't provide access.

Now, some of my colleagues will say some of my clients don't provide support too, but maintenance enforcement will go after the child support.

I think sometimes lawyers are very important. And I can't say yes or no to that question in terms of holding the legal professional accountable for the situation we're in. But on the other hand, I also stress counselling and mediation. The Divorce Act mandates me to do that, and I do it. I have seen a great deal of success in getting people to mediators.

We've seen fathers paying child support and visiting with children when they wouldn't do it when they were together, and there's nothing in writing. There's no piece of paper to enforce it. The willingness when you can get them there is incredible.

But it's not mandatory, and I wonder if we wouldn't be half-wise to look at some of the jurisdictions in the United States, for example. I believe there are some jurisdictions, some states, that have mandatory sessions for parents after they separate.

I don't personally know if we have any province doing that. But I think you can't enforce mediation if there has been abuse. There's an unequal playing field, and you have two partners who can't mediate. Some people just can't speak for themselves. They need to have a lawyer or an advocate. But we certainly need a great deal more mediation, counselling and alternatives to the judicial system.

Mr. Eric Lowther: Who's “we”?

Ms. Kathleen Craig: When I say “we”, it's society, parents—

Mr. Eric Lowther: Okay, not lawyers.

Ms. Kathleen Craig: No, no. But I'm saying that I can tell people about mediators, and they can go and spend $1,000 on mediators, and they still have to go to court. Mediation will work for, let's say, 75% of the population. The other 25% perhaps need something else that includes the court system.

If I didn't know better, I would say there wasn't one healthy marriage out there, because what I deal with is separation and divorce. I know there is such a thing as, you know, working, happy, married people out there. I'm just not dealing with them on a daily basis.

You're hearing about the problems. There are lots of successes under the present legislation, too.

• 1115

Ms. Daphne Dumont: Can I comment on that, as well? I think we have to remember that 95% of cases get settled. Those people haven't gone into a meat grinder. They've gone to an intelligent lawyer who has the tools, who can settle the case for them.

We have to remember that a lawyer wants to settle the case. There is the odd one that you can't settle, just like the odd GP can't solve a medical problem.

There are surgeons—we call them judges—you have to refer to on occasion. If you absolutely have someone on the other side who says “I'm not paying one cent of child support to that little rat”, or whatever, a very Neanderthal, horrible person on the other side, male or female, there are times when the lawyers benefit from having all the tools. We have the ability to walk into court and get a court order on that point.

The problem with mediation, particularly compulsory mediation, is that it grinds to a screeching halt at a point where one or the other party becomes unreasonable.

I have no problem with mediation; I recommend it to my clients. And I don't really have a problem with some sort of training about what you're about to go through now that you're separated.

But I really caution the committee against anything being mandatory. Nothing should be set up that bars people from their judicial rights. For instance, you may say, well, you have to take a parenting-through-separation course, as they do in Alberta, before you can get access to court. That assumes that separated parents are somehow stupid and uninformed, whereas parents who are together know what they are doing as parents. In a lot of cases a mother's decision, for example, to leave a situation is the most profoundly responsible, loving thing she can do for her children. And to say to her, well, you can't go to court to get your child support until you've been to this course that's taking place in six months and five cities away is really difficult.

We have a perpetual problem in Prince Edward Island with providing physical access to places where these courses are available, things like drug treatments. You have to come all the way to Charlottetown, you don't have a car, you can't drive. There are problems.

If there were free, regionally available, optional courses like that to which the dear federal government would be happy to provide assistance money— We're deeply dependent on federal dollars.

I think the committee shouldn't rely too heavily on the meat grinder analogy. Yes, litigation is difficult, but it is a rare alternative. In a lot of cases it is either necessary because someone is exceptionally intransigent, or necessary because federal legislators or our provincial legislators have given us new, public, legal definitions and complex new solutions to problems for which we have no definitions.

So we have to litigate to get a judge to tell us what it means, because we don't have a civil code in the rest of Canada outside Quebec.

Diverting from the system should not be a goal if it doesn't allow people to go to their own lawyers. I don't know why we're so comfortable with providing incredibly highly paid judges to sit on the bench.

I think it costs $1,000 an hour to put a federally appointed judge on the bench to do a case when you consider what it cost to set up the courthouse. We're just about to spend millions to build ourselves a fancy new, healthier courthouse here. We don't have any money for legal aid, but we have money for walls.

Being a judge is a very hard job. I don't begrudge them their salary, but it doesn't bother any government to pay that. But it bothers them to give Darlene $20 to go to a lawyer.

We are very comfortable with the idea of setting up paid mediators, paid courses, and all sorts of things for people to go to, but we still won't give her the actual help she needs to go to a lawyer, which is probably what she needs.

Lawyers are like doctors. You can't divert completely away from them. We are the experts. Unless the law becomes a lot simpler, you need us. We are the conduit through which your law will pass to the citizen, clearly explained, efficiently organized, with documents drafted that costly judges can read quickly and not complain about. We are the educators, with the help of public agencies.

Please don't spend a lot of time thinking about how to divert people away from us. Give the people the modest sum; I mean $500 a case. That's not a lot. It probably costs that much to teach a child for one day. Give the clients the money to come to get the service that we are expertly able to provide.

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The Joint Chair (Mr. Roger Gallaway): Senator Cools, did you have a question?

Senator Anne Cools: I have a couple. Thank you, Chairman.

I'd like to thank the witnesses for very good testimony, excellent testimony, and the witnesses before too. After chatting with them outside, with Elaine Rabinowitz and Rona Brown, I wish we'd had them on for a longer period of time. But I just wanted to say that it's no wonder Senator Bonnell and Senator Phillips and all the Prince Edward Islanders say come to Prince Edward Island.

Ms. Daphne Dumont: Senator, we see ourselves as the true Athenian democracy, where everyone feels that they can speak right up and talk to the national chairs and have ourselves heard, which fortunately we usually are.

Senator Anne Cools: I have a couple of questions. I think first I'll go to Mrs. Loo Craig. Is that how you pronounce your name?

Ms. Kathleen Craig: My maiden name was Loo before I was married. So it's Mrs. Craig.

Senator Anne Cools: In terms of the record of the people who appear, I noticed that our list of witnesses says Macnutt and Dumont and then Daphne Dumont, so it's very clear that Daphne Dumont is a lawyer.

I think perhaps when we're making up our list, we should indicate with a bit more clarity who some of these people are, because Kathleen Craig is a lawyer as well, a family practitioner. So our list should be updated, and in general I think we should pay a little bit more attention to those lists because quite often it says “individuals” and they're really quite often accomplished researchers and professionals.

You said in very stunning terms— and I'm coming back to the 50 hours of study that you spent on those guidelines. But before we go into the guidelines, Mrs. Craig, you said some pretty stunning things. Essentially, you said that the problems are not in the law; the problems are in the operation of the law and in the administration of the law, in the management of the courts, and in the reluctance of Parliament and courts to enforce access. You made a statement to the effect that if Parliament cannot or will not enforce orders, then who can or who will?

We've been told this many times. We had a retired lawyer in Vancouver who described the courts' interpretation of the best interests of the child as hogwash, and talked about certain cases of use that exposed the hypocrisy.

I think a part of our problem as a committee is being compelled to face and admit the hypocrisy. There's an enormous reluctance because it is difficult, and I understand all of that.

You were saying basically do not touch the law other than to reinforce those sections of the law that call for the enforcement of the court orders. Am I understanding you correctly?

Mrs. Kathleen Craig: That's correct. Right now the Divorce Act has everything in it that would allow an order to be made and an order to be enforced. What I was trying to say was perhaps we need stronger words from Parliament to confirm that you expect enforcement, that the best interests of the children, including access, requires something—for example, for child support perhaps not to be required until access is provided, or that custody— I have a pile of case law in my office of all the cases where judges have done those things. What I'm saying is I have a case that I've made available to you here. The court of appeal has said all the right things, but there's still no access to this day.

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Senator Anne Cools: Just to—

Mrs. Kathleen Craig: And by the way, this isn't personal. I'm not criticizing a particular judge or any particular—

Senator Anne Cools: No problem. Absolutely.

Ms. Kathleen Craig: I want to highlight the problem of what happens to a child when a parent isn't willing to comply.

Senator Anne Cools: I could give you an example. There was a case—and maybe you've heard of it in this part of the world—in Ontario, Barbosa v. Dadd, in which Judge Dunn a few months ago imprisoned the woman, the mother, after 41 access denials, repeated court violations, use of false allegations of sexual abuse and endless violations.

Ms. Kathleen Craig: I believe I heard that on CBC radio, along with Landon Pearson.

Senator Anne Cools: The case is notorious and I've read the judgment. The behaviour is scandalous. Judge Dunn, somewhere in his statement, says this case and her behaviour cry out for punishment.

I've reviewed a lot of these other cases. I had another case where the woman again took the child and left the country for three years. Another judge, for contempt and whatever else, imprisoned her for 75 days. It went to appeal. The 75 days was diminished to 8 days because there is a terrible niggling, underlying theme that we simply ought not to do anything to women who do these things.

The two of you have put the case of the children so beautifully. Everybody throws this term around. It has become a rhetorical affirmation, but in truth and in fact we are prepared—when I say “we”, I mean societies—to sacrifice the children and it is something that has bothered me, and it bothers a lot of us.

The truth of the matter is that we just have to put some teeth or some muscle behind these orders. And that is a question, quite frankly, as you and I know, of political will, not law.

Ms. Daphne Dumont: We must also, if I may, Senator, remember that hard cases make bad law. That's an extreme example. It is a sad example, but there are thousands and thousands of cases where we're putting nothing behind the people who are raising the children without child support. We are giving no help to the people who can't get their weekend access because mom had to move to a factory 300 miles away to clean fish and that's the only job she can get.

Senator Anne Cools: Yes, but that's a different situation.

Ms. Daphne Dumont: But when you say so passionately that we must put teeth in law to solve that problem you've identified, let's make sure we hand out the teeth to other 99% of the cases that have equally sad situations but don't look so extreme.

Senator Anne Cools: No, I agree with you. There's no end to sadness, there's a lot of suffering, and the particular one we are looking at here is a problem of access.

Ms. Kathleen Craig: Sorry to interrupt, but there's a difference between saying there shouldn't be access—

Senator Anne Cools: Right.

Ms. Kathleen Craig: —and it's not in the best interests of child to have access. Having made an order for access, then what do you do with it to get somebody on side who absolutely, like a donkey, is dug in and will not move?

Senator Anne Cools: It's a terrible atrocity, but the fact of the matter is this intransigence can no longer be ignored by those of us who are in—

Ms. Daphne Dumont: Perhaps a very useful comparative question would be, why are we prepared to establish, at great expense, elite, almost Rolls-Royce, maintenance enforcement offices to enforce child support, and we have no place you can go to get any help on your access?

For instance, you can hardly get supervised access in P.E.I. There are parents denied access because they have a bad criminal record for something or they sexually assaulted someone 10 years ago, and it's rightly denied if they're going to be taking their 9-year-old daughter off to the woods or something. But it's not wrong necessarily to deny it— if they can go for an hour to social services to at least see their child. But there are no resources for that.

Senator Anne Cools: Right, but you're—

The Joint Chair (Mr. Roger Gallaway): We're running very late.

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Senator Anne Cools: Okay.

No, I understand. I think most of us would agree that infinite resources should be given to everything. It's like the Rhinoceros Party fellow who ran for election. He said, “You don't have to worry about me; I promise everything to everyone”, and on and on.

The other question I want to put to you has to do with both of your statements on Bill C-41 and the 40% issue. But what really struck me in the testimony was Ms. Dumont's statement to the effect that she had to put 50 hours of study into these guidelines to be able to comprehend them.

One has to be mindful that the House of Commons and the Senate were both told that Bill C-41 and the child support guidelines would simplify life.

Ms. Daphne Dumont: —

[Editor's Note: Inaudible]—

Senator Anne Cools: I agree with you. I said that all along. Believe you me, they never fooled me. But I find this astounding, because we had a witness who was one of the pillars that the Department of Justice relied upon in the passage of Bill C-41, Carole Curtis, who appeared before another committee looking at the implementation and guidelines. She said the same thing, that it took her endless time to study it.

So we find ourselves in a very unique situation. You take a bill that is before you, you're told it's necessary to give certainty, and then a year later you're told it gives uncertainty and that it's endless. What do we do then with it?

Ms. Daphne Dumont: The problem with federal legislation in any area of family law that involves delicate negotiations of exactly what's appropriate in each individual case is that you will always be leaving an area of judicial looseness, if I can put it that way. There's always going to be some discretion.

When you changed the federal guidelines, you established that if Joe Blow makes x, he pays y. But then, in the 29 pages that follow, about how exactly to calculate what he makes, essentially what happened is you moved the discretion from how much to pay, to how to figure out what he or she genuinely makes. That is inevitable in any legislation in family law.

Senator Anne Cools: I don't believe that.

Ms. Daphne Dumont: You cannot solve that.

Senator Anne Cools: But I don't believe it's inevitable. A baby could have seen that Bill C-41 was a problem.

Back here to Ms. Craig—

The Joint Chair (Mr. Roger Gallaway): This is your last question.

Senator Anne Cools: Yes.

She has said on the 40% rule, 20% to 40%. What number would you like, 30%?

Ms. Kathleen Craig: No, I'm not that—

Mrs. Sheila Finestone: It's elasticity.

Senator Anne Cools: It's elasticity, okay.

Ms. Kathleen Craig: Yes.

What I want to point out is that you've left a gap between 20% and 40%. What happens to the chap who's at 38%? Do you really want the other lawyer and me to spend all day calculating the hours, to say: Okay, that person's at 37%, so, tough; Parliament said 40%. This other person said 41%, so you know you get the benefit of—

I'm saying you're going to cause people to try to get more access when the issue isn't them wanting more access or what's best for the children; it's to deal with the financial cut-off.

Senator Anne Cools: But you're favouring an elasticity, because the number we were trying to get at the time was 30%, but we couldn't get that 30%.

Ms. Kathleen Craig: I'd be a lot happier with 30% than 40%.

Senator Anne Cools: Okay. So you would support the 30%.

Ms. Kathleen Craig: Personally, I would be happier with 30% than 40%.

Senator Anne Cools: Right.

Finally, the issue of—

The Joint Chair (Mr. Roger Gallaway): Is this truly your last question?

Senator Anne Cools: Truly.

Ms. Kathleen Craig: The judges say that to us, too.

Senator Anne Cools: Surely, truly.

I'd like to commend especially Ms. Craig for bringing forth the point that has been brought forward before and is a point that we need to examine more, the fact that the courts and lawyers and whoever else in the system are not sensitive to what we would call the future relationship of those spouses, of those family members. So I want to underscore that, because I thought—

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

Mrs. Finestone, did you have a question?

Mrs. Sheila Finestone: Was that a rhetorical question or is that a testing question?

The Joint Chair (Mr. Roger Gallaway): That's a rhetorical question.

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Mrs. Sheila Finestone: Thank you very much.

First, let me just say I was pleased to hear both of you point out that between 80% and 90% of all divorces are carried out in a much more civilized environment. Thank God for that.

Now for the crunching machines. I have to say that in listening to both of you I have a sense of discouragement, because the goal— I loved what you said at the end of your brief, as it's in exact contrast to what the goal was. You said that our federal policy development calls for all possible aid, short of actual help.

Ms. Daphne Dumont: I have no copyright on that, so feel free.

Mrs. Sheila Finestone: Irrespective of who has copyright, I think that in listening to both of you, I had the sense that we need to go back and review this. We need to see this from a totally different perspective.

The enforcement of access has really upset me and I insist that we do revisit it. But when I read your brief again as the questions were made, for us to go back and review it based on the child support allocation amount and this 30%, 40%, 20%, 50%, it just drives me crazy.

First of all, it's not feasible to reopen that bill in that way. How can we look at this very poor law that you have described and not have to reopen the law—this is the other thing you've requested, which won't happen until we've had some time for it to sort of be massaged into place, which will probably take about 10 years to figure out in all the various avenues—and at the same time have the detachment of support and access?

Ms. Daphne Dumont: I would say that if you leave the child support guidelines where they are, with that 40% in place, we're starting to be able to deal with that. If you leave things as they are for a while, things do tend to get dealt with.

We've heard on the Internet that there have been submissions—perhaps we're wrong about this—that a person who is denied access can thus go to court or find a way not to pay their child support. That would be adding another access support connection to what I think is the wrong direction that we've already gone in. So as a caution, I would say please don't attempt to solve Senator Cools's enforcement concerns by allowing child support to be the tool that the denied parent can use.

Mrs. Sheila Finestone: I just want to say to you that I see them as two distinct and separate obligations for parents.

Ms. Daphne Dumont: Yes, I think that's very wise.

Mrs. Sheila Finestone: The child is a child of a union, and they both have the obligation to enable that child to grow and develop. The degree to which each is able to do that financially has absolutely nothing— I don't think it was ever the intent of that bill to tie access to payment. If that's what's there, then we will revisit it.

Ms. Kathleen Craig: Could I just interrupt, please? I want to bring to your attention that this shouldn't be tied, but that—

Mrs. Sheila Finestone: They should in no way be linked, never mind tied.

Ms. Kathleen Craig: —the motivation for some parents, however, to seek at least 40% access or higher is sometimes driven by financial concerns.

Mrs. Sheila Finestone: Okay, stop there. I heard you. Please, stop there.

I think the observation that, in hard cases, a minimum percentage doesn't make good law is absolutely vital to keep in mind. I'm not interested in dealing with the hard cases in that way. I'm interested in the enforcement that the court has dictated. This is a democracy, and the judges are there to render decisions. We have judges who are imperfect—that's true—but that does not make it an obligation for us to negate the responsibility that the judiciary has in this society, and to respect the decision.

Ms. Daphne Dumont: I would just like to answer that question a little bit more. For the enforcement of visitation problems, you need to go back to your lawyer.

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We now have a great system that, for enforcement of support, you go to the free service the provincial government provides, the maintenance enforcement office, which is a superb thing, and they bring in billions, and they help their own government because they bring in money that goes to people who are on social assistance. We don't have a place to which you can go to solve your visitation enforcement problems.

Part of visitation enforcement is variation. It's different if they're in two different places. Mom gets a job somewhere else, and they have a problem. It's often that she's moved to Quebec City with the military, or something, and dad can't see the child. It's not her fault. That's her job. She had to go. She was made to go, probably, but they both don't have the money in the middle of all this crisis to get themselves back to lawyers to sort that out.

Perhaps we need some sort of little office where we can go to work out those minor problems, because essentially what happens there is they say, well, let's work up a new deal—and you do get a lot of anger in those situations. But particularly if one is poor and can't travel— and again, the lack of legal aid. I keep talking about that.

Mrs. Sheila Finestone: Excuse me, we have a time constraint here, too. I recognize that we need to have some place, some process, so that we take it out of the judicial and we make it administrative, for the most part, where variation takes place.

Ms. Daphne Dumont: Yes. Not at the beginning.

Mrs. Sheila Finestone: My question to you is, how do we approach the variation process?

In 90% of the cases it's not a problem. There's an agreeable circumstance where that can take place. But what do you suggest we do? You said don't establish presumption. If you do establish presumption, they're always back in the courts.

They're back in the courts, as I understand it, under Bill C-41 because there's a variation or a rearrangement, depending on salary and income. If they're good at their job, they should be getting an increase, and if they're poor at the job or if the job is declared surplus, they're out of a job. So obviously you're going back and forth.

The whole thing ought to be done administratively. Would you agree with that?

Ms. Daphne Dumont: Absolutely not.

Mrs. Sheila Finestone: Why?

Ms. Daphne Dumont: In my view, administrators do not have the tools to sort out visitation.

Mrs. Sheila Finestone: So you believe the visitation options or the mobility problem should go back to the judge, but the readjustment—

Ms. Daphne Dumont: To start with, it should go back to the lawyers who worked it out in the first place, ideally, to see if they can work it out again in the new circumstances. But my problem is that it may take three or four months to get to court if they won't settle.

The great thing about the court is that it makes everybody settle. I've told our judges we should have fake court dates so that other people just think it's coming up and we'll get the settlement, because you inevitably get the thing before you go to court.

I think we need a little variation centre or something, but there would have to be a judge and people would still have to have access to information from lawyers about their legal rights. If they want to go to mediation, having got that information, that's fine, but I just feel it should be prioritized.

Mrs. Sheila Finestone: If you were in charge, first, how would you change the variation?

Secondly, if you were in charge— and I adore Catherine Callbeck and I have great respect for her and for Joe Ghiz, but I can't stand the fact that you are the only place in Canada that doesn't have legal aid. It's an utter disgrace. Could you please tell me what we can do about legal aid?

And don't try to tie that to federal funding in that respect. You've had every opportunity over the last 40 years or more, when legal aid became a part of our lifestyle in the rest of Canada. You haven't put it in. Is it access to federal dollars that's preventing legal aid from coming into this province? That's what I'd like to know.

Ms. Daphne Dumont: Okay, I'll take the second part first.

The Joint Chair (Mr. Roger Gallaway): Qualify that question.

Mrs. Sheila Finestone: Why?

Ms. Daphne Dumont: The nine-part question with four subsections?

Mrs. Sheila Finestone: Just feel free, both of you, and we can ignore the chair then.

Ms. Daphne Dumont: With the utmost possible deference to the learned chair—

It is partly lack of access to federal dollars. It's lack of access to dollars, but it's also poor prioritization.

The interesting thing is there's no problem really in criminal legal aid, because it's a constitutionally entrenched right. The federal government forces the province to contract so that it will continue to provide legal aid to any person who's accused of a serious crime. The federal government considers that so important that they have entrenched it in the Constitution. Consequently, there's lots of money for that.

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Thus far the federal government has not considered the right of family litigants to civil family legal aid to be important enough to entrench it. So the province is not obliged to provide it.

It's particularly annoying when the federal government has jurisdiction over custody and access, etc. through the Divorce Act. It's free to do whatever it wants, but it doesn't say, “But you must provide the assistance.”

Mrs. Sheila Finestone: So that's one of—

Ms. Daphne Dumont: You can either force the province—

Mrs. Sheila Finestone: —the amendments you would make? Is that an amendment you would recommend that we make?

Ms. Daphne Dumont: That would be wonderful.

Mrs. Sheila Finestone: Thank you. You didn't put that in. This is what I'm looking for.

Ms. Daphne Dumont: Okay.

Mrs. Sheila Finestone: Thank you.

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

I just have a point of clarification. You're involved with legal aid here on the island, such as exists. What percentage of divorce cases would require legal aid?

Ms. Daphne Dumont: First, legal aid won't do divorce per se. The little programs we have will only do custody, access, variations and support under the provincial family law act.

What percentage of cases that go through the court would require legal aid? I would say a better answer would refer to the percentage of the separations. In a poor province with a lot of unemployment, probably—and this is off the top of my head—a third would really benefit from legal aid. Not anywhere close to that many receive it, because of the limitations on the program.

Consequently, the people who access the courts are the rich people. The people who get the Rolls-Royce treatment at the support orders office, the support maintenance office, are the people who are rich enough to get their own court orders and don't in fact need that assistance.

So I'd say that probably 20% have legal aid, maybe fewer, but a great many more could benefit from it.

The Joint Chair (Mr. Roger Gallaway): I'm thinking about particular witnesses we had. This one person appeared before us in Regina. That person was 26 years old and had been through three relationships or marriages. What does legal aid do in a case such as that?

Ms. Daphne Dumont: I'm not sure what you mean.

The Joint Chair (Mr. Roger Gallaway): Well, this is a 26-year-old who had been divorced three times and was demanding legal aid. Where is the limit on all of this?

Ms. Daphne Dumont: The limit is when you can say that it is not important to help that person's children. If we could impose—

The Joint Chair (Mr. Roger Gallaway): I'm sorry, I didn't mean to interrupt, but you're making an assumption that there are children of every relationship, or that in fact—

Ms. Daphne Dumont: In most provinces legal aid wouldn't be involved if there were no children. It's child-centred service. It is there for custody, access and child support. So if there are no kids, forget legal aid, unless you're a criminal, in which case welcome to the service. If I sound cynical about that, I am.

If you want to say legal aid should be restricted in some ways to cases where there are children, unless there's violence, in which case there should always be access to justice, I think it's a little—

Lose the idea that legal aid is a big expense. In most of the provinces it's not; it's a small matter. It's so small that it gets lost in the health and services transfer. “That's so unimportant. It's such a small amount, we'll just throw it in. Surely P.E.I. will provide it.”

Where do you stop? Well, if the person has three children and they need three child support orders, then they should get it, as long as they're not employed.

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

Mrs. Sheila Finestone: Mr. Chairman, I really want to say this for the record, because I truly believe—

A voice: —

[Editor's Note: Inaudible]—

Mrs. Sheila Finestone: Well, I can't help it. What can I tell you? I'm just so—

A voice: Oh, oh!

Mrs. Sheila Finestone: I was being very serious. I'm firmly of the view that if you are in a legal system that dictates child support, covers access and covers custody, it means that those who are in need should have access to legal counsel and therefore legal aid as a human right under this country's laws. That is an amendment I would hope we can bring to this bill.

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

We're going to take a break now. We're long past time here.

Thank you very much. I didn't mean to just ignore you. Thank you very much for coming. It's been a very lively session.

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• 1249

The Joint Chair (Mr. Roger Gallaway): We're having a difficult time corralling members to the table. We're really appreciative of the fact that you came to the table, but I have no control over them.

The Joint Chair (Senator Landon Pearson): They're coming. They're actually in the room, so it's perfectly all right if you now start.

Ms. Ings, would you start?

Ms. Joanne Ings (Executive Director, Prince Edward Island Transition House Association): Yes, thank you.

I know our MPs and senators are very busy people, so I don't know if you've had the opportunity to be actually officially welcomed to Prince Edward Island. As a fifth-generation islander—

The Joint Chair (Senator Landon Pearson): Wow!

Ms. Joanne Ings: —may I take it upon myself to welcome you to Prince Edward Island?

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

Ms. Joanne Ings: We're pleased to have you here.

Good afternoon. My name is Joanne Ings and I'm the executive director of the Prince Edward Island Transition House Association.

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Our organization was founded in 1980 and operates Anderson House, the only emergency shelter for abused women and children on P.E.I. Our other services include a 24-hour-per-day crisis and information telephone line, community-based services for children, outreach services in four geographic areas across the island, second-stage housing in three geographic areas of the island, support and information groups for women, and public education and training programs.

We have 17 full- and part-time staff members providing these services, with a combined front-line experience of about 82 years. I ask that you respect and consider this experience as you hear the issues we bring forward today.

I'm probably not going to tell you anything your committee has not already heard from other transition house associations across our country. What happens in the rest of Canada also happens here. Custody and access issues for abused women and their children are similar whether they're in Vancouver, Thunder Bay, or Charlottetown.

The staff asked me to bring three issues to you today.

First, in their experience, the violence that occurs between intimate partners does affect the children, whether or not the child is directly abused. We agree with the statements made by both the National Association of Women and the Law and the Spousal Violence in Custody and Access Disputes: Recommendations for Reform report of March 1988, which state that spousal violence needs special legislative recognition that specifically acknowledges the effects of this violence on children, and it needs to be recognized as relevant in the determination of custody and access.

Secondly, the safety of the child should be considered an essential criterion in custody and access determination, particularly during the parental separation phase, where spousal violence has been identified as an issue. Do not assume that a woman and her child will be safe or safer after separation. Our experience and our service users tell us the violence often escalates and intensifies with separation.

Research from the federal Department of Justice and the Canadian Centre for Justice Statistics reaffirms this. Too often abusive partners “use access as an opportunity to continue the intimidation, control, and violence towards the former spouse”, and that “may endanger the child's mother”. Those statements were made in a 1975 domestic violence report by the Law Reform Commission of Nova Scotia.

Thirdly, an abused woman's access to family legal aid to represent her interests in custody, access, and support is almost non-existent, and again, this is what you've heard quite a bit this morning. If this committee wants to make an impact that will have positive results and promote the best interests of the child in custody and access determinations, please lobby your co-parliamentarians to increase their financial support to the province for family legal aid. Better yet, make it the law, as it is in criminal law, that persons, including children, have the right to legal representation in family law cases involving support, custody, and access.

Do not tie parental access to the financial support of children. It's not fair to the children. Each parent has a proportional financial responsibility to support the child. The time a parent spends with a child ought not to have a financial determinant or ratio.

In summary, our three points are: accept that children who witness violence are affected by it and by those who use violence as a means of control, make safety of the child an essential criterion in custody and access determination where violence has been identified as an issue, and increase access and federal funding to family legal aid.

Thank you.

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

We'll hear now from the P.E.I. Advisory Council on the Status of Women, Ms. O'Brien or Ms. Nicholson, one or the other or both.

Ms. Sharon O'Brien (Chair, Prince Edward Island Advisory Council on the Status of Women): The P.E.I. Advisory Council on the Status of Women is a government agency mandated to advise the provincial government and to help develop public awareness about issues relating to the status of women in Prince Edward Island.

The advisory council decided to present to this committee only two weeks ago. We nevertheless attempted to consult with a number of individuals and groups about the topics, to get grounded on the issues and gauge community opinion.

To better understand the issue of custody and access and related legislation in the P.E.I. context, so that we could determine what areas we needed to include in this brief, we sponsored a community meeting on May 21. Representatives from the Premier's Action Committee on Family Violence Prevention, our provincial rape and sexual assault centre and transition house association, our provincial public legal education association, family lawyers, advisory council members, LEAF-P.E.I. and NAWL-P.E.I. members, and interested women attended the meeting and helped us identify the areas we have included in this brief. We also consulted with several women's organizations that were unable to be at the May 21 consultation.

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To advance the interests of children and equality for vulnerable women and men involved in family disputes, the advisory council makes the following recommendations to the Special Joint Committee on Child Custody and Access.

Establish a family dispute resolution agency. As a positive response to the difficulties faced by families upon marriage breakdown, a family dispute resolution agency should be created to assist women, men, and children negotiate through the steps to resolve custody and access and other family issues. This agency would serve as a first point of entry for case assessment and referrals and would act as a clearinghouse for up-to-date information on programs and services available to islanders.

The development of a family dispute resolution agency could follow the maintenance enforcement system in place today. The maintenance enforcement system of Canada was initiated under the leadership and funding of the federal government, yet it was designed and delivered by provincial governments, depending on the needs and resources of the province. The family dispute resolution agency could be based on the maintenance enforcement model and act as a clearinghouse for information and resources available in areas other than legal issues.

An initial case assessment could be made by a case worker or evaluation team—for example, bureaucrats, counsellors, lawyers, etc.—who would then provide information and referrals for family members to counselling, alternative dispute resolution options, legal aid, legal information, maintenance enforcement, government departments, lawyers, and other social services.

Such an agency, delivered province-wide, could offer a holistic approach to family dispute resolution and breakup that balances the interests, rights, and responsibilities of all of the individuals involved—women, men, and children—including those in same-sex partnerships and common-law unions.

So the recommendation is that a family dispute resolution agency be established as a first point of entry for women, men, and children upon family unit breakdown for information, assessment, and referrals for legal and non-legal remedies.

I'm going to read you just parts of the following. We're not going to read all the text, but we'd still be pleased to answer your questions.

The legal aid program in this province provides adequate coverage in criminal cases and very little for family law cases. In divorce cases, except in exceptional cases of immediate threat of violence, islanders are not eligible for any family legal aid.

Any legislative changes to the Divorce Act must be accompanied by an increase in funding for provincial family legal aid programs. Women who need legal aid but do not have access to it are unlikely to receive justice, even under the best legislation.

The recommendation is that the federal government implement a cost-sharing provision for legal aid tariffs in family law cases. These tariffs should be the same for family law cases and criminal law cases.

Just as an aside, the advisory council endorses the recommendation made by NAWL to the committee in their presentation.

The next issue is separation of financial support from custody and access. Under no circumstances should issues related to custody and access be tied to support awards. Any other arrangement would not focus on the child but rather on the financially supporting parent. Inherent to being a parent is the responsibility to provide financial support, regardless of access to or time spent with the children.

The recommendation is that legislation must clearly state that money issues concerning support arrangements are to be separated from custody and access issues.

On mandated joint custody, the recommendation is that the court should be advised to award joint custody of a child only where requested in advance of the proceeding by both parental parties and where the court has analysis that indicates it would be in the best interests of the child.

As for mandated mediation, mediation should not be considered an automatic alternative to litigation or other non-legal dispute resolution avenues. Mediators are rarely trained in methods to compensate for the power differential in abusive relationships and therefore unfairly assume equality of bargaining power between participants.

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Combined with a lack of access to legal aid, there is a risk that low-income women may enter into mediation-facilitated arrangements without the benefit of legal advice. Suffice it to say that there is a need for clear provincial guidelines for mediation before it is suggested by lawyers or mandated by the court. Recommendation: no mandatory mediation or family law dispute should exist, particularly in areas of custody and access.

Guaranteed child support income: To ensure stability and well-being of the children despite a crisis of a family split, a new system for immediate maintenance support should be put into place. Upon separation, the parent who is the primary caregiver would call a government agency such as the proposed family disputes resolution agency and have the agency initiate an immediate assessment from a judge to put a temporary support order into place. This would ensure that a predetermined amount of money per child was received monthly from the non-custodial parent, while the long process of determining child support and custody access took place. Following temporary court-determined support orders, adjustments could be made to reflect underpayments or overpayments. Recommendation: an interim immediate maintenance enforcement process be established to ensure the ongoing security and needs of the children are met following separation, before long-term agreements are in place between parents.

We have a continued recommendation here, that the committee consider the research and analysis outlined in the 1994 written publications of the now defunct Canadian Advisory Council on the Status of Women concerning custody and access and related matters involved in family disputes. And we have left you a copy of that, so it is available to you.

I thank you. And I have a note here that says I should tell you I'm Sharon O'Brien and I'm the chairperson of the P.E.I. Advisory Council on the Status of Women.

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

We will now proceed to questions. Who would like to start?

Senator Cools.

Senator Anne Cools: Thank you, Chair.

I'd like to welcome the witnesses before us.

My very first question—I'm just a little curious—has to do with how the witnesses heard of this committee. Perhaps they could tell us how they heard of the committee hearings, who informed them or how did they know to come forth.

Ms. Sharon O'Brien: Marie-Paule, who is the regional status of women coordinator.

Senator Anne Cools: Marie-Paule. I'm just wondering, how would Marie-Paule have known?

Ms. Sharon O'Brien: I have no idea.

Senator Anne Cools: It's just that we had a witness earlier who said that a fax just arrived on her fax machine.

Ms. Sharon O'Brien: We were in a meeting with Marie-Paule and she mentioned these meetings. Then we were notified by, I think it was the Nova Scotia or New Brunswick advisory council sometime after that. Then we received a fax from CLIA sometime after that.

Senator Anne Cools: From CLIA?

Ms. Sharon O'Brien: CLIA. Community Legal Information Association—from Ann Sherman, who gave the previous presentation.

Senator Anne Cools: I'm just very curious, and I wonder if you could tell us what your organization's view is on the role of fatherhood in families and in divorces.

Ms. Sharon O'Brien: When you have a family unit, everybody has a responsibility. It's a mutual responsibility, financially and in child caring and child rearing. You wanted more than that?

Senator Anne Cools: I would love some.

Ms. Sharon O'Brien: In what context?

Senator Anne Cools: You've just presented your brief. Divorce is about the separation of a man and a woman, and how to enable them— And as I read or listen to your brief, fathers are only mentioned negatively.

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Ms. Sharon O'Brien: I don't think so.

Senator Anne Cools: Of the father, well—

Ms. Sharon O'Brien: Can you show me where?

Senator Anne Cools: Yes, that the father has alcohol or drug addictions. That the father has refused to cooperate in negotiating, that the father does this, that the father does that.

I'm asking you to tell me what you think the role of fathers in children's life should be.

Ms. Mary Nicholson (Member, Prince Edward Island Advisory Council on the Status of Women): I'm Mary Nicholson, a member of the council.

I believe the points that you raised, which are the preliminary points, are with respect to phone calls that the advisory council receives from people looking for information. The staff resource people have gone through the files and looked to see what kinds of concerns they've received in the recent past with respect to the issues of child custody and access.

But the actual recommendations we make, for instance on the dispute resolution agency, would be equally applicable and useful for all members of a family, the mother, father and children, to help them to solve disputes that arise at the time of a marriage break-up. The recommendations would include the whole family unit.

Senator Anne Cools: I was just wondering if your organization has a point of view on the role of fathers? What I'm hearing you say is that it doesn't.

If I'm wrong, correct me.

Ms. Sharon O'Brien: We have a point of view on the role of the family. The equal responsibility of—

Senator Anne Cools: You have a point of view on the role of women and on the role of the family.

Ms. Sharon O'Brien: Yes.

Senator Anne Cools: But you don't have a point of view on the role of fathers?

Mrs. Sheila Finestone: She said there is an equal responsibility of both parents.

Ms. Sharon O'Brien: Yes, I can't elaborate.

Senator Anne Cools: I'm talking about what is the role, in your view, of fathers.

Ms. Sharon O'Brien: In child rearing?

Senator Anne Cools: In the family and in divorce.

Ms. Sharon O'Brien: Beyond what I've already told you, I don't think I can expand on that. Can you, Mary?

Ms. Mary Nicholson: I think Sharon's point is that parents have an equal responsibility in a family situation. I think what that means in every family is probably different. But in general, parents have an equal responsibility.

Senator Anne Cools: Okay.

To the previous witness from Transition House, do you actually accommodate women?

Ms. Joanne Ings: Yes.

Senator Anne Cools: Or are you a lobbyist representing people who accommodate women? Are you a front-line worker? In other words, is Transition House—

Ms. Joanne Ings: In terms of working with the abused women and children, I do not do front-line service. I provide them with the support for that to happen.

Senator Anne Cools: So you are a lobbyist.

Ms. Joanne Ings: I've never been called that before, actually. I must put that on my resumé.

Senator Anne Cools: Now what is your position?

Ms. Joanne Ings: I'm the executive director.

Senator Anne Cools: Of what?

Ms. Joanne Ings: Of the Prince Edward Island Transition House Association.

Senator Anne Cools: That's what I'm asking you. Therefore, it is an organization that represents transition houses?

Ms. Joanne Ings: We only have one.

Senator Anne Cools: Yes, but the association represents the house?

Ms. Joanne Ings: It's the organization in terms of community development, which I'm sure you're quite familiar with. It starts within the community. The community organizes itself and it named itself the Transition House Association with the goal being to establish a shelter, which it did, in June 1981.

Senator Anne Cools: Thank you.

So you are not a front-line worker? You are the association's—

Ms. Joanne Ings: I'm the executive director of the association.

Senator Anne Cools: In terms of the people on whose behalf you're here to speak, do you have any information about their client body? Could you tell me, for example, in the past year, in 1997, how many women were served or accommodated?

Ms. Joanne Ings: At our shelter?

Senator Anne Cools: At your shelter.

Ms. Joanne Ings: We're just in the process of compiling those. We work on the same fiscal year as a number of other organizations. We're compiling that now. On average, for the last number of years we've accommodated at the shelter 110 to 120 families per year. That does not include our second-stage housing.

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Senator Anne Cools: How many women would be in those 110 families?

Ms. Joanne Ings: It's 110.

Senator Anne Cools: So it's 110 families, not persons.

Ms. Joanne Ings: That's right.

Senator Anne Cools: Okay.

Of those women, the 110, how many were battered women?

Ms. Joanne Ings: I really couldn't tell you that. I didn't bring that kind of information here or ask the staff specifically for it. As for the definition we would use for abuse, we would use the same as that which is currently in our provincial legislation for the Victims of Family Violence Act. It entails all the definitions of abuse.

Senator Anne Cools: I'm hearing you tell me that you cannot tell me how many of those women are actually physically abused.

Ms. Joanne Ings: No.

Senator Anne Cools: Am I right in assuming, then, that if you cannot tell me how many of the 110 are abused and have had acts of violence perpetrated against them, you cannot tell me how many of those women have been involved in divorce proceedings?

Ms. Joanne Ings: You'd be correct, but if you'd like that information, I would endeavour to get it for you and send it to you.

Senator Anne Cools: Could you give me a hint, just a hint? Of those women you've housed, do you have any idea at all how many have been involved in divorce proceedings?

Ms. Joanne Ings: No.

Senator Anne Cools: You have no idea whatsoever?

Ms. Joanne Ings: Not today, no, I don't, because I didn't research that particular information. If you would like to have it, I will attempt to get it and send it to you at a later date.

Senator Anne Cools: I would love to have the information. I've been trying to get it.

Ms. Joanne Ings: Fine.

Senator Anne Cools: Thank you, Chairman.

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

Mrs. Finestone.

Mrs. Sheila Finestone: Thank you very much.

Madam Chair, I would ask your indulgence and ask you to re-invite to the table Daphne Dumont, who appeared before us under Macnutt and Dumont in the prior hearings, particularly because she's a founder of NAWL and she worked for many hours on the definition of child support and how to define it. I'd therefore like to have her back, as well as the advisory council, for the question I'm about to ask.

Would you mind calling her back? Thank you.

Madam Chair, the nature of the question I wish to ask relates to the Income Tax Act changes that were made at the same time the support guidelines were brought into effect in 1997. They changed the whole procedure of child support and how it is determined.

As you were responsible, Daphne, for trying to study that act and trying to divide and design the amount of payments and the payment schedules, I'm very anxious to know something that has bothered me since we've had these hearings.

The guideline amounts are based on the type of custody, the number of children, the paying parent's income. It's the paying parent's income I want to address. The paying parent is the non-custodial parent in most instances, is that accurate?

Ms. Daphne Dumont: That's correct, but just before I answer that fascinating question, I'm wondering if it's going to take time away from the questions.

Mrs. Sheila Finestone: No, I'm sorry, but this committee is free to use whomever they need for witnesses, so please add what you want.

Ms. Daphne Dumont: Okay, fine.

Mrs. Sheila Finestone: Is that right?

Ms. Daphne Dumont: Yes. The new guidelines that have been established are totally derived from the paying parent's income. The recipient parent's income is considered to be irrelevant, which I've always thought was wrong.

Mrs. Sheila Finestone: That's exactly my point, if we believe there is equality within that family and they have joint responsibility for the care, maintenance, affection, love, and whatever, so the children's lives can go on and be as healthy as possible under these changed circumstances. At the same time, the government changed the Income Tax Act. By changing the taxation act, there was an inflow of dollars into the federal and provincial governments' coffers. Is that accurate?

Ms. Daphne Dumont: Absolutely. There was a massive inflow, I would say.

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Mrs. Sheila Finestone: I would tend to agree.

Therefore, my premise has been that it should not only be the paying parent, it should also be the custodial parent's income with tax receipts that are used in the calculation of those tables.

What kind of information do you have on the many instances today where the woman is earning a higher income than the man or an income equal to the man's and she is given the custody—the physical custody and the legal custody—of those children? The non-custodial parent has a paying obligation. Does this sound fair to you?

Ms. Daphne Dumont: I never agreed with the underlying economic premise of the drafters that once they figured out what the payer could pay, it became irrelevant what the recipient earned. P.E.I. has always taken the approach, rightly in my view, sponsored by the judges who basically thought it up, that you need to first figure out what it costs to raise the children and then proportion it between the parents. If you have a $50,000-a-year father and a $10,000-a-year mother, that $50,000-a-year father has to pay more child support than the $50,000-a-year father whose wife makes $60,000, because she can take six-elevenths of it and he can take five-elevenths.

The new system, as well as substantially lowering the level of child support ordered on a standard basis below what P.E.I. was already ordering, completely took out of the mix the ability to pay or support of the “custodial parent”. We found such a dramatic drop in the amounts the courts would be able to order once the Divorce Act became relevant that this province spent a year arguing with the federal government and got permission from the federal government to have higher guidelines than the rest of the country.

We've got the highest child support guidelines, but only through the sweat and labour of about 50 volunteers and 20 government people to come up with another set of complex guidelines, which we apply here because they were so devastating to the social services system. We calculated that maybe 1,000 people might fall back into welfare because of the reductions brought out by the new calculations. It never seemed right that someone who was making $25,000 a year had to pay only $112 per month for their child support, particularly if mom's making $9,000 at Burger King. She ends up with $11,000 and he still has $20,000 or whatever. It just didn't seem fair.

Mrs. Sheila Finestone: Yes, but it did change his tax status, though. He has to pay more taxes.

Ms. Daphne Dumont: Yes, he has to pay more taxes, but the federal government gets that.

Mrs. Sheila Finestone: No, no, no, there's a division. Part of it goes to the provincial government.

Ms. Daphne Dumont: That's fair enough. The thing is I could never lay much consolation on my poor client at Burger King by saying she should be happy because she doesn't have to pay tax. Her right answer was she didn't have to pay tax anyway because she's so poor. The tax break to the recipient meant nothing to the poorer recipient. For the higher-income people, it made a lot of sense.

Mrs. Sheila Finestone: In light of the fact that calculations worldwide, and particularly here in Canada, have indicated that the cost of labour given in the home— Women who stay at home work at home; although they may not receive remuneration, it is work and lots of us think it's too much work. Notwithstanding that, a calculable income is attributable to the work that is done in the home.

Was that ever considered when you were doing your negotiations? Let us say you had a non-labour market working person in her home. Was that amount of money attributable ever considered when you were negotiating for an increase in the payments so that you could fairly decide and figure out the stupid 40% rule?

Ms. Daphne Dumont: Not to my knowledge, but I should state that I didn't do those—

Mrs. Sheila Finestone: Remove that from the record.

Ms. Daphne Dumont: I was just the griever on the outside demanding the government do it. I didn't do the negotiations directly myself.

No, the new “simple system” basically just says if the payer makes x, he pays y. Whether the recipient works in the home or works part-time or full-time outside the home doesn't really come into it, although there is an element of support for the people who work outside the home, in that they can also get an extra payment for child care.

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Mrs. Sheila Finestone: Okay.

I noticed the advisory council brought this. That's what made me ask you to come back, because I noticed the recommendation was made by NAWL. I know of your involvement in NAWL. I had an involvement there too, and I was very pleased to see you bring that recommendation in, because it's something I think needs to be addressed. So I thank you for coming back to the table.

Madam Chair, I have a question to ask around joint custody, if there's time.

The Joint Chair (Senator Landon Pearson): You're over time.

Mrs. Sheila Finestone: Would you mind going to Mr. Lowther if we have time?

The Joint Chair (Senator Landon Pearson): Mr. Gallaway was next on the list—

Mrs. Sheila Finestone: Oh, I'm sorry.

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

Mr. Roger Gallaway: Mrs. Ings, you raised a point we've heard before. Prince Edward Island is number nine on our list of provinces at which we're stopping. It's not a very exact science and it's in no particular order that we're here, so please don't be insulted when I say number nine.

You made a recommendation, which I wrote down. I even have problems reading my writing, even a few minutes after I write, but your recommendation had to do with courts taking cognizance of the safety of the child where violence has been identified as an issue.

What I want to talk about is the phrase “identified as an issue”. We are hearing in certain quarters that identification can take several forms. Identification can be an introduction into court proceedings of the fact that—well, in most cases, a women is staying at a women's shelter. It may be some reference to an allegation of violence by one party or the other. It's hardly proof of anything. It simply colours the proceedings.

So I'd like to know, in your opinion or in the opinion of any of the witnesses here, on the issue of safety of the child, what level of proof we should consider when violence has been identified. Is it an allegation? Is it a conviction concerning a violent act?

Ms. Joanne Ings: A number of systems would probably already have been involved with this family, to use a family example, be it a child protection issue, social services in another context, the school system, or whatever.

We've certainly learned over the years in the field that by the time the family actually gets to a shelter, the abuse has been happening for a long time, but a lot of these families have been in contact with various other parts of formal systems. There's justice, education, social services, whatever it might be. Very often there may be issues of violence already identified within those systems.

Using some of their processes may be a way. A social worker may have identified in a home study that there's been violence in the family.

It may depend on who's looking at it and their deeming of credibility, I don't know. I'm sure you've been struggling with what a definition of abuse is. The provincial legislation here has a definition in it, and some of those pieces of information may be helpful to you.

Again, I don't profess to be an expert in these fields of identifying, but based on the experience within our organization I would suggest that other systems have been involved. Maybe a joint system of all the groups that have been involved with this family can get together and say there's this piece of evidence and that piece of evidence, but formally I think it would be very difficult if only criminal charges were laid, because in this issue that doesn't always come to fruition.

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Mr. Roger Gallaway: It's an interesting point. I think it's something this committee is going to have to come to grips with. For example, the National Association of Women and the Law is calling for the courts to make a determination, yet you're suggesting a social worker can make a determination on a finding of violence.

Ms. Joanne Ings: If systems work more cooperatively, yes, it could certainly work. We've had situations in which the family law piece conflicts with the criminal law piece, and sometimes you almost wish these people could just sit down and talk to each other for a minute and find out if what they've issued in one court is having an impact on the other.

Mr. Roger Gallaway: Okay. I have two very quick questions.

One involves the brief that was submitted from the Advisory Council on the Status of Women. If I go to the second-last recommendation, it recommends that an interim immediate maintenance enforcement process be established. I'm not certain what the situation is on Prince Edward Island, but in many provinces there is already a formal provincial agency that ensures the collection of money and has the power to subtract it at source. In certain provinces your driver's licence may be suspended.

I think what you're suggesting is an extension of that at the beginning of the process, and I wanted to know what you thought about a similar agency, the same agency, or whatever, enforcing access at the front end throughout the system.

Ms. Mary Nicholson: Access in particular, not custody?

Mr. Roger Gallaway: No, I'm talking about access.

Ms. Mary Nicholson: And setting up some sort of a mandated schedule in the legislation?

Mr. Roger Gallaway: No, I'm saying there's a state mechanism to collect money. Why not a state mechanism to enforce access?

Ms. Mary Nicholson: After an order or an agreement has been reached?

Mr. Roger Gallaway: After an order. You're suggesting that there be an agency to collect money. I'm saying an agency to enforce access.

Ms. Mary Nicholson: Similar to the maintenance enforcement office that operates here?

Mr. Roger Gallaway: Yes.

Ms. Mary Nicholson: The court is already mandated to enforce the access orders it makes.

Mr. Roger Gallaway: With all due respect, the court is only authorized to issue orders—for example, to garnishee someone's wages—yet in recognition of that, or despite it I should say, provinces have moved to set up a collection agency.

So why not have under the same roof the same reciprocal recognition that court orders are important? We've recognized it in terms of payment. You've acknowledged that in your brief to this committee, but you have not acknowledged that court orders are important where access is awarded or is acknowledged to another parent.

Ms. Mary Nicholson: I don't think we would have any problem agreeing that court orders with respect to access are important. Any kind of an order a court makes is important. I think—

Mr. Roger Gallaway: But you're saying that—

Ms. Mary Nicholson: The issue—

Mr. Roger Gallaway: Excuse me. In all fairness, because I want to end this, you're saying to me that money is more important than access.

Ms. Mary Nicholson: No, I'm not saying that, but I'm saying that access is a much more difficult thing to enforce than support—at least that would be my perspective. There are a variety of issues that impact on both the parents who are involved and the children, and it would create a great inflexibility with respect to access.

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Think of a situation in which an access order has been made whereby the non-custodial parent, for instance, has Saturdays from 1 p.m. to 4 p.m. At present there is some flexibility for the parent to say the child wants to go to a birthday party during that time. Parents are afforded the flexibility to change that access schedule without going back to the court.

Mr. Roger Gallaway: No, if there's mutual consent, that's not a problem. We're talking now about respect for orders of a court.

You have in your brief acknowledged that you want the state facility, this provincial collection agency, to enter the process sooner, at the time of the interim order. I'm saying to you that if you have such respect for court orders, you insist an addition, over and above a court, be put in place, why would you not want a similar agency, or the same agency, to enforce the same kind of respect for court orders where access is involved?

I have to point out to you that a judge, in determining what is in the best interests of a child, has determined that access at certain times is in the best interests of that child. Likewise, the judge has determined that payment of x dollars to the custodial parent is in the best interests of that child. So I would think we would want to enforce the decision of the court in terms of the best interests of the child and to enforce the access order.

Ms. Mary Nicholson: I have two points. One, I think you're misunderstanding the recommendation you're referring to. We're talking about a system that would make a mandated minimal amount of child support available at the beginning, at the outset of a breakdown of a marriage. It's a little bit different from what you're talking about, and I think you may be importing to us more support for maintenance enforcement than the brief would support.

The second point is that I haven't given that idea of an enforcement agency a lot of thought, but off the top of my head it seems as though it would create a very legalistic environment around access. I recognize that a court order is a very important thing. There are systems in place now to enforce a court order for access—the police can be involved and that kind of thing—so I don't know what another agency would do.

Mr. Roger Gallaway: We have another agency to collect money; that's all I'm pointing out to you.

Ms. Mary Nicholson: That's what it does, that's right. Are you proposing an agency to which children would be taken for their access and picked up there? That's what legal enforcement does.

Mr. Roger Gallaway: No, I ask the questions, you tell me.

What I'm suggesting to you is that you have a provincial mechanism to collect money, because that seems to be important in the best interests of the child. Why not have another state agency or the same state agency to enforce access orders? The court has determined that to be in the best interests of the child. I don't hear you agreeing. You think people should resort to the court, then.

Ms. Sharon O'Brien: We did recommend there be a family dispute resolution agency. Perhaps if the family dispute resolution agency were to be put into place, access enforcement would be automatic. Those things would be in place.

Mrs. Sheila Finestone: Excuse me, with all due respect, the way you've put this family dispute resolution agency—and my colleague is asking a different type of question—you say that's the first point of entry and information for women and children upon family unit breakdown. First of all, is this not a delaying mechanism? Second, is it not another bureaucratic structure? Third, on the question of whether it's violence, are you differentiating between violence and the standard, normal 80% to 90% of the divorces going on in the province?

Mr. Roger Gallaway: I have one final question.

The Joint Chair (Senator Landon Pearson): You're already well over your time, Mr. Gallaway. Mr. Lowther too has a question.

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Mr. Roger Gallaway: I'll make an observation. To suggest that legal aid should be extended to family law on the same basis, the same tariff, as you put it here, as in criminal law cases—

Have you gone back in history to examine the reason for legal aid in criminal law? Is it not a bit presumptuous to then bring it forward and say that somehow a family law case is equivalent to a criminal law case, where the state decides to take action against an individual? The state with all its resources is going to come after you. That was the rationale for legal aid at the criminal law level.

Now you're suggesting we put it in family law. Individuals decide whether they will take action. It's not the state taking the action, it's individuals. I'm not saying there isn't a place for legal aid in family law, but you want to put it on the same level as criminal action. I find that very self-serving for the legal profession. And I'm a lawyer.

The Joint Chair (Senator Landon Pearson): All right. Can we stop? Do you have a comment on it? Then we'll move to Mr. Lowther's concerns.

Ms. Mary Nicholson: I'm also a lawyer, and I don't think it's self-serving for the legal profession. The rates, as you know, aren't particularly high. At least in Prince Edward Island there isn't anyone making a fortune. I know in Ontario it was different at a certain time for legal aid.

There are certain kinds of family law where the state is directly involved in the action. There are, for instance, guardianship proceedings. Those are currently before the Supreme Court of Canada. I don't know if you're stressing that in those cases you would be in favour of mandating family legal aid.

I think in all circumstances in which people are dealing with the most fundamental issues in their lives—and they're doing that in criminal law as well. They're giving up their potential loss of liberty. In family law cases it's the breakdown of their family and those family relationships. Those are fundamental in our society. I think to not fund them is not appropriate for a democratic society like ours.

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

We'll now move to Mr. Lowther, please, and a final question.

Mr. Eric Lowther: Thank you.

To the ladies from the status of women group, I am trying to understand a few things here.

We have had presentations from advisory councils on the status of women in just about every province and certainly in Ottawa. As I understand it, your organization is funded by tax dollars. Your presentations are pretty much the same; they have the same kind of theme at least and some of the points are identical right across the country.

In your brief you make reference to the fact that your council is not mandated to deal with federal government issues such as child custody and access as defined in the Divorce Act, yet we get regular presentations from status of women councils from whichever province.

I'm wondering why we would have you bringing forward your positions—and I'm saying you, the status of women groups funded by taxpayers' dollars. Why shouldn't I start to discount the presentations? You've got the status of women as the primary objective. I guess children are in there somewhere too. You know it's the same theme. I've heard this before. I've seen this before.

I'm wondering where the equality is. One of the things we talk about is equality. In your brief you're concerned about equality. Well, I'm thinking we're hearing one side here, your side. There are a lot of other groups that might want to get their side into this, but they're not funded with taxpayers' dollars to get their side on this table.

I get to the point at which I want to discount your testimony. I've heard it and it's funded, and I wonder how many other voices out there that don't get the funding wouldn't mind being here.

Ms. Sharon O'Brien: I can respond to that a little bit.

You say that our presentation is very much like that of the other advisory councils. We actually thought we had a brand-new idea with the family dispute resolution agency. We actually thought we had brought forward some very new and interesting and exciting possibilities.

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So as for being just like the other advisory council presentations, I would hope that ours aren't. But you will hear many of the same problems that women have been facing right across the country.

Mr. Eric Lowther: Do you consult with the other advisory councils across the country before you present, or during this whole process?

Ms. Sharon O'Brien: No, we had about two weeks, so there was not a lot of time for consulting. We did a lot of consultation here, and we did get in touch with the other advisory councils, but there was very little time for that.

We don't band together as a group. Our mandate is to be the provincial advisory council here and advise our provincial government.

Ms. Mary Nicholson: I think that's a point you raised. Let me just be clear about why we would be making a presentation on the Divorce Act.

Custody and access are areas of shared jurisdiction. So for cases where people live in a common-law relationship, or where they are in a marriage that breaks down and they separate but don't get a divorce, their custody and access would be settled under our provincial Custody Jurisdiction and Enforcement Act.

If there are changes to the federal Divorce Act, similar to what happened in the child support guidelines, it is likely that the rest of the provinces would then fall into place so that there wasn't a two-tiered system, so that custody and access provisions were similar across the country.

That's why we would make a presentation on the Divorce Act.

Mr. Eric Lowther: Well, I can see that, but I see that parents are male and female. I see this as the Status of Women. I see taxpayer money going to the Status of Women. I see parents male and female. And I don't see a status of men, taxpayer-funded effort trying to bring forward the other side of this equation.

So I say that to some degree I have to discount a little of what you say—not everything; I agree with the violence piece. That is very much a concern of mine.

A couple of things you've put in here are new, but the majority of these recommendations you've made change a few words, but the intent is much the same as what we've seen in other presentations.

You don't need to respond to that unless you wish, but to me personally it seems a little one-sided.

Ms. Mary Nicholson: Just for your information, just so you have this as context, the total budget for the advisory council of P.E.I. is $100,000. That is just so you have an idea that it's not exactly a large amount of money that is provided to that organization.

Mr. Eric Lowther: Thank you.

The Joint Chair (Senator Landon Pearson): Thank you very much indeed for your presentation. I'm sorry that we kept you waiting after lunch.

I'd like to remind my colleagues, as well as others, that we have a bus coming at 4.15 p.m. and we have two hours. If you're not checked out, you'd better be checked out, and we'll need to make our own questions brief in order to give the other people who are coming forward as much attention as possible. Thank you.

The next witnesses, please: from Mediation P.E.I. we have Mr. Frank Bulger, the president, and Diane Griffin; we also have Ms. Judy McCann-Beranger as an individual.

Mr. Bulger, would you like to begin, please.

Mr. Frank Bulger (President, Mediation P.E.I. Inc.): Chair and committee members, we appreciate this opportunity to present our recommendations for changes in the area of family law. We recognize that the present systems must be revamped to reflect the changing family patterns and changes in gender roles.

Mediation P.E.I. Inc. has a membership of approximately 15, comprised of lawyers, social workers, family court counsellors, general counsellors and interested individuals. We are affiliated with Family Mediation Canada.

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We would like to make a number of recommendations to you. First, we believe that the most important factor in any child's life is the involvement of both parents We therefore recommend shared parenting for a maximum involvement of both parents in any parenting arrangement.

Second, we recommend an enforcement program for access, similar to the maintenance enforcement program. It is recognized that a speedy intervention is required to prevent further entrenchment of positions.

Third, we recommend a program for early education in intervention for parents who have separated. This program can outline for participants the emotional and practical implications of life's transitions, and can normalize some of the emotional reactions thereof.

This organization has presented seminars of this nature, and we believe we were some of the pioneers of such in this country. The feedback indicated that participants benefited greatly from their attendance at these seminars.

Fourth, we recommend that the expression “best interests of the child” be broadened and be considered within the entire family setting. Perhaps there is no expression in family law that is used and maligned more than this expression.

Fifth, we recommend that the committee rethink the level of rules for separated families versus intact families. An example of the discrepancy, for example, is that parents of intact families have no obligations to pay for university, while separated parents have a legislated responsibility to pay for university.

Sixth, we recommend that the issue of violence be acknowledged in its many forms—physical, sexual, emotional, property—and that the issue of violence be placed on a continuum. We recommend that an allegation of violence be thoroughly assessed before it is used as a reason to prevent a parent from seeing the child.

Seventh, we recommend that the present laws be examined for gender biases, and that such doctrines as that of the tender years doctrine be revised or deleted to reflect the changing roles in modern society.

We recommend that just as the importance of the child bonding with the parent is recognized, the importance of the parent having the opportunity to bond with the child also be recognized.

Ninth, we recommend that grandparents and other family or involved parties also be recognized as having a vested interest in the child.

In conclusion, we want to emphasize that plaques are not awarded for raising children. Therefore, we recommend that the pleasures of, and responsibilities for, the task of child rearing be shared. Just as children need their parents, parents need their children. They are their future.

We respectfully submit this.

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

Ms. McCann-Beranger.

Ms. Judy McCann-Beranger (Individual Presentation): I have a sketch in the front; I'm not going to go into my biographical sketch. I was called by Elaine Rabinowitz at community mental health in Summerside to ask if I would speak. Also, I was called by somebody in your group from Ottawa.

I'm really pleased to be given the opportunity to address the Special Joint Committee on Child Custody and Access. I'd like to make the following recommendations. The first one is that legislation that promotes respectful language is very important.

I asked a hypothetical question: what would have happened if this committee had called itself the joint committee on parenting after separation and divorce? Obviously half the country wouldn't know what you were talking about. The fact that we are being called to speak about custody and access shows how little our thinking as a country, as the individuals in the country, has truly shifted.

Courts have to start using language that is consistent with their concern about the well-being of children. Awarding the winning parent custody, and allowing the losing parent access through limited visitation, is not respectful of child or parent and greatly adds to the trauma. It is simply not in the best interests of children to use such terminology. I believe this committee could have modelled the beginning of a major paradigm shift, even though no one would have shown up. Our terminology can serve either as an appropriate or a misleading basis for the development of public policies aimed at supporting families through times of change and restructuring.

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As they now stand in current federal legislation, language and terms serve to create that winner-loser scenario that really exacerbates parental conflict during separation and divorce. Such inappropriate language is not family friendly, and it is experienced as demeaning to children who hear themselves referred to in the same language used in the prison system.

I remember what an 18-year-old said to me in the 1980s. At one point he had done a social justice class that day, and he came in during the evening. He had a stepfather, he had his biological father, and he loved both of them. He was very involved with both of them and his mother. He said, “I wondered over the years why it always bothered me when mom and dad were fighting over who had custody. I realized today, when we were doing our social justice and they were talking about the Canadian prison systems, about visitation rights, etc., that I'm not a prisoner. Why do they refer to me like that?”

I've never forgotten that. He taught me more that year than anything else I'll ever learn about language.

The second one is the presumption of shared parenting, acknowledging that there are some parents who need to have supervised time with their children. With respect to violence and sexual abuse, I know there are groups that are speaking to that, so I'm speaking to the mainstream, the majority of people in my experience.

The research is very clear and in agreement that the best parent is both parents. A child's well-being is often damaged because of the unfair rulings in our systems that promote the myth of the mother being the most important parent. Courts continually reinforce this stereotype.

Let's not pretend that a parent, be it mom or dad, who yearns for a meaningful involvement with his or her children can establish a healthy, secure relationship with those children every second weekend and one or two nights a week. Understandably, the self-esteem of that parent wanes considerably. This, in turn, may contribute to a further weakening of this unnatural relationship between parent and child. Thus another injustice, and a further unnecessary trauma, is created for all concerned.

Our culture is changing. For the most part, both parents now want to be as actively involved— This is 1998.

Most would agree that a child's well-being is strongly enhanced by maintaining meaningful relationships with both parents. I use those words. Those are very important words—“meaningful relationships”—yet many court judgments give this only lip service by continuing to “award custody and visitation,” which effectively limits a healthy involvement of one of the parents.

Ironically, every major study you might look at and read reports that divorced mothers feel overburdened with responsibilities that accompany sole custody. You hear how overburdened they are, a burden that limits their choices of leading a satisfying and fulfilling life. At the same time, it deprives the father of meaningful access. That's some research from Warshak, and there's tonnes of research around on that.

Efforts to encourage further progress in this area will help to minimize the adverse effects of divorce by building stronger support systems for mothers, fathers and their children.

I have learned repeatedly from my clients and my studies that it is not divorce but the emotional situation in the home, with or without divorce, that is the determining factor in the child's adjustment. The most critical elements in children's adjustment to divorce is the behaviour of the parents.

My third one is mandatory seminars on parenting after separation and divorce. In just the past 10 years Canada has seen a proliferation of parenting programs aimed at helping families through separation and divorce. It's extremely important that these seminars be made available to all families experiencing separation and divorce, and that they be led by trained professionals. There are hundreds of family service agencies across the country that already have trained staff and are quick to provide such programs.

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Partnerships forged between the local family court and family service agencies could tailor programs to specific community needs. This would not only save precious resources, but would model a collaboration for the community to do what truly is in the best interests of the family and thus, I believe, by extension, in the best interests of the child.

We would like to see a growing interest in parenting courses that would be partnered with schools, churches and others interested in the well-being of families. I really believe the more that's modelled as something being very important and necessary, the more it will be picked up throughout the community.

My last one is an enforcement program that ensures that court orders are honoured. At the present time there is little, if any, recourse for parents who, for whatever reason, are not seeing their children despite an existing court order that provides for it.

More often than not, the explanation is rooted in one parent's anger, bitterness, retaliation and punishment. Such acrimony draws in the children, and often leads to parental alienation.

Early intervention is critical as such repetitive alienating behaviours can lead to long-standing estrangement of parent-child relationships. A child's cognitive capacity is often not developed enough for the child to be aware of both parents' viewpoints, and feelings so aligned with one parent become the resolution of painful loyalty conflicts. I'd like to give a couple of examples from the research.

Johnston speaks of research that suggests that the choice of which parent is more often than not made on the child's inability to free his or her feelings, to extricate his feelings and ideas from an emotionally distressed residential parent. He can't separate, so it's easy to make the decision, I'll just stay here, I can't fight it.

Further research on parental alienation done by Dunne and Hedrick suggests that parental alienation is primarily a function of pathology in the alienation parent and in that parent's relationship with the children. There's a dynamic going on that is definitely not owned by the child.

Another researcher, Gardner, on parental alienation syndrome, describes this parental alienation as a disturbance—and I think this is very important, and I certainly have had lots of clients with whom I've lived through this—in which children are preoccupied with deprecation and criticism of a parent, denigration that is unjustified and/or exaggerated. The real scary part is that after a while they take it on, and they make it their own.

My own experience, supported by Gardner's research, suggests that parental alienation becomes a strategy that some parents adopt to help ensure victory in litigation.

In closing, I'd like to thank you very much for hearing me. I think it is so important to use respectful language, and to include the family, the mom, the dad and the parents. If we're looking at the best interests of the family, I truly believe we're taking care of the best interests of the child.

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

Mr. Lowther.

Mr. Eric Lowther: I have two questions. The first is to Mr. Bulger. Who are Mediation P.E.I. Inc., and what credentials do you have?

Mr. Frank Bulger: In terms of myself, I have a master's degree in social work and approximately 23 years of work in the family court doing custody assessments. I also worked in addictions and probation.

Mr. Eric Lowther: So you are on your own?

Mr. Frank Bulger: No, I'm a civil servant.

Mr. Eric Lowther: Okay. How were these recommendations derived? Is it the world according to Mr. Bulger, or is other input given?

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Mr. Frank Bulger: Approximately seven to nine days ago I heard that you people were coming to town, and I arranged a meeting last Friday at noon. We did a brainstorming session with the members of Mediation P.E.I. We came up with nine recommendations, and you see them here.

Mr. Eric Lowther: Who are the members of Mediation P.E.I.?

Mr. Frank Bulger: We are a collection of lawyers, social workers, private counsellors, and a few interested others—interested others being, for example, people who are interested in mediation but do not work in the health setting as such.

Mr. Eric Lowther: Thank you.

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

Senator Anne Cools: Thank you very much, Chairman. I'd like to thank the witnesses for what I thought was a very good presentation, marked by very attuned sensibilities with a lot of human balance and a lot of humanity.

That's the word I'm looking for, “humanity”, because this is a business that can lose its humanity very quickly.

I'd like to begin first with Judy McCann-Beranger. You referred to respectful language and in your presentation you laid out the presumption of shared parenting and the enforcement program. You go into the phenomenon of parental alienation. It's just a disorder that we've allowed to grow in our midst.

Let me turn to respectful language. Some months ago we had a witness before us who said that in its attempt to be gender neutral the Divorce Act has created so-called androgynous spouses. This was proposing that we go back to the terminology “mothers and fathers”, because children usually have a mother and a father, not spouses, as in the Divorce Act. I wonder if you've wrapped your mind around that.

Ms. Judy McCann-Beranger: I think anything other than what has a prison terminology would be more acceptable than what is. I think that moms and dads are a reality—moms and dads are both important—and that custody can be used. Parenting means custody, and access means time-sharing—

Senator Anne Cools: That's right.

Ms. Judy McCann-Beranger: —and parenting plans.

I really believe that it's a habit of the last millennium, that judges are so used to that habit of using those terms. Somebody, maybe you people here, will be powerful enough to advocate that this is 1998 and it's time we all changed. The only way it's going to happen is if the leaders of this country make it happen.

Senator Anne Cools: What you're saying is very interesting, because 20 years ago we said we were moving towards equality, and marriages were going to be shared. So they were going to share the assets, they were going to share the matrimonial home. Then it went a little further: it was going to share the debts as well.

So what you're saying basically is let's share the children now.

Ms. Judy McCann-Beranger: Exactly.

Senator Anne Cools: Let us share the children now, and let us share the parenting.

I observe a lot of the plays with language. A term for which I have very little regard keeps emerging suddenly in the last several months—it's come into prominence—“primary caregiver”. Even the term is a corruption, because primary care used to mean providing basic needs, food and board. All of a sudden even that word has become corrupted. Primary caregiver—who says which care is primary, and which care is secondary?

Even in social services, those services that provided counselling service and those that provided hard services used to be differentiated by primary needs versus whatever. So even the term “primary caregiver” is a terrible corruption.

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But again, it's the same with the whole process—a constant inoculation of the use of the word until it becomes so commonplace it just makes its way into legislation. I'm opposed to it totally.

So I thank you for holding parenting by both parties and shared parenting especially.

Ms. Judy McCann-Beranger: Yes, and I think we already have turned. We have mom and dad and children. We don't have to get really creative any more. Of the clients I have seen over the years, I have never met parents who are separating from the marital relationship and say, “I'm also separating from my children as part of the plan”. I've never seen that. They've always wanted to be parents.

Senator Anne Cools: Absolutely. I keep hearing about my controversial views. We've raised the novel view that children need both parents and that both parents should have “meaningful”, to use your word— I'm just very pleased with the balance.

I just want you to know— you may not be attending it, but in a couple of weeks I'll be speaking to Family Mediation Canada somewhere or other; I'm not sure where.

My next question comes to the issue— and I'm very pleased that obviously you've done some work on it. On the second page of Mediation P.E.I.'s presentation, you say in item 7 that you recommend that the present laws be examined for gender biases and that such doctrines as the tender years doctrine be revised or deleted to reflect the changing roles in modern society.

I wish we really would do some gender analysis. Let's really look at gender and gender biases. I wonder if you could expand a little bit on what you meant there.

Mr. Frank Bulger: Well, it seems that many people in law, for example, will argue that yes, indeed, we have done away with the tender years doctrine. However, I think we also recognize that when a case comes to court, if the children are young and the two parents are deemed equal, the court will always, in my experience, award the custody to the mother.

To me that's a gender bias issue, because it may not necessarily reflect the reality of the situation, but nevertheless that still happens. A lot of people would deny that it happens, but in reality I know it does.

Senator Anne Cools: We had a witness a couple of days ago who put it very beautifully when he said children are not chattel; they're not material objects.

I would be prepared to pass if Eric wants a question. I wouldn't mind coming back.

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

I fundamentally agree with this idea of it being important to the child to have relationships with both parents. In the cases—and I know of both sides—where either the mother or the father has walked out on the family, how do you help the children or the remaining parent deal with the child's need for a relationship with an abandoning parent? It does happen.

Ms. Judy McCann-Beranger: Well, first of all I want to clarify that when I talk about these, I'm not talking about the exceptions—and to me they are the exceptions. There are very few exceptions. I know if somebody came to me who had been abandoned by a father, I certainly would have them tap into the community resources that are around and help them deal with the reality. They would have to do some self-esteem work, because that is really traumatic for a child.

In my experience it would be very rare for a child— I haven't had an experience where somebody abandoned and didn't want— The experiences I've had are the other type, that some parents do not see their children, but that's because they probably fought all the battles and have given up trying. But I know it would be traumatic, and the very first thing I would do is work with the self-esteem and have that child have a real sense of themselves and the importance of the people around them who do want them in their lives. I'd have them use the grandfather and other male models in their life in the interim.

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I would also spend a little time helping them understand that there might be something going on with dad right here, and that might pass in the future; however, this is what we have to work with, and let's work with that. I certainly wouldn't spend a whole lot of time having them make a judgment on what might have happened, because when that happens, there's a pathology going on.

The Joint Chair (Senator Landon Pearson): Thank you very much indeed for your presentations. We have a few more witnesses to hear from. It's been excellent material.

Mr. Frank Bulger: Thank you.

The Joint Chair (Mr. Roger Gallaway): The next witnesses are Mr. Albert, Mr. and Mrs. MacLellan, Mr. MacKay, and Mr. Dodds.

Mrs. Kathleen MacLellan (Individual Presentation): Mr. Chairman, I'd like to suggest that we do a walk-around, because we've been sitting for a while.

The Joint Chair (Mr. Roger Gallaway): You'd like a break; is that what you're asking?

Mrs. Kathleen MacLellan: Oh no, just around our chairs.

The Joint Chair (Mr. Roger Gallaway): If you want to take a couple of minutes before we start, go ahead, please.

Mrs. Kathleen MacLellan: It's hard sitting on those chairs all day.

The Joint Chair (Mr. Roger Gallaway): It's always the case that someone must be the last group, and I must tell you that you're the last group today.

I want to say we're very pleased to have been here today. I'm afraid what's going to happen is that at the end of this session we're all going to get up and run out the door, so I want to say this now. I know some of you have been here all day, and I want to thank you for coming and showing some interest in this committee.

I also want to thank one of our colleagues from Ottawa, Mr. Wayne Easter from Malpeque, who's facilitated our time here somewhat. I want to thank him and Senator Catherine Callbeck.

We have with us Mr. Bob Albert, Mr. MacLellan, Mrs. MacLellan, Mr. Brian MacKay, and Mr. Dodds.

You've observed today, so you know we try to keep to time, although we haven't been very successful today. I think we'll start with Mr. Dodds.

Mr. David Dodds (Individual Presentation): I'd like to welcome the committee here. I believe you will need the wisdom of Solomon after to listening to all the things you will be.

I'd like to start with some remarks Louis Nizer made. He's a well-known American lawyer. He cautions his divorce clients before they start that anything that happens at the start of a divorce will affect the relationship of both the parents and the child in the future.

In Victorian times, children and the man's spouse were considered the chattel of the husband. We then came to the idea that women were capable and suitable to raise children, and they were the only ones. Now we may be entering the era of children's rights.

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I am a concerned citizen, former house husband, parent, and I have a daughter. I'm a former member of One Parent Family Association, and I was a founding member and treasurer of Transition House, Charlottetown. I am a concerned person who has looked after children, taught them, and a variety of other things.

The idea of a custody hearing is to provide the best arrangement for the child or children, supposedly for the benefit of the child. A lot of us do not feel this has been the case. Some of these people have been labelled a variety of names. I believe today something is wrong, and that's why this hearing is taking place.

The worst custodial situation that I've been told about—and unfortunately I couldn't find the article in the journal of social work—was one where, when custody wasn't granted to one father, the child, after seven attempts of escaping, committed suicide. There are many problems today, and probably not since Dickens has there been this number of children on the street.

I have spent approximately three years as a house husband, at the same time working. I should have known something was wrong when I was told that my ex's boss, the chief justice of the province, thought that men should not be granted custody. When confronted with a forthcoming custody battle, I believed that the system would work—be honest and fair and unprejudicial. Subsequently I found out that it's not. As most people do who go through this, I ended up feeling alienated, hurt, picked on, and disgruntled.

My concerns are not mine now; my concerns are for the children today. I believe that prejudice exists regarding visitation, access and custody, and that this prejudice is both open and also hidden. There are competing interests as to what is best for the child—those of society, the lawyers, the views of the judiciary and social workers, and the children, along with both parents.

The following I think are self-evident. I believe that:

- children are accorded minimal rights;

- men are discriminated against;

- in most cases one or both parents continue to act in an immature fashion;

- children are pawns in what some people refer to as “ownership” of the children once custody is gained, and that it is reinforced by the system and the courts;

- there is incompetence, or something exists that results in an unfair process, whether this is ingrained, personal, or societal prejudice, or due to people who have an agenda; and

- there appears to be no way to address these problems if you are on the “losing” side. You are considered a sore loser and disgruntled, even if you do have some justifiable reasons.

Other problems that people have experienced: There is the use of guerrilla warfare, as I like to refer to it. This is when one person uses the court system to cause hardship, problems, and delays, and wears the other side down by legal moves, accusations and time.

If you are moving from one province to another, it makes it even more expensive, and causes problems. In my case, if you're moving to a province where French is the language, it creates other problems.

As for accountability, the complainants do not receive an open and fair hearing, and if they do complain, they are accused of stirring up trouble.

I have made some suggestions.

Make an attempt to get rid of the adversarial system and that approach. The first step might be a session with the individual, and then combining that with a joint session such as mediation or conciliation. I have enclosed one form in the appendix to my brief, that is from California. It shows that in California anything done before going into court is done through a conciliation hearing. I don't have any more information on that, but if that does not work out, then they can opt for the court process.

If the parents work out the solution together as to how things are going to be broken up and who is going to be responsible for the parenting, there might not be as many sore losers, or as many attempts at creating a problem when the usual person, the man, is the one who seems to lose, and then the end result is lack of payment of bills, or support payments, or other causing of problems. If he is made part of the process, he may not be happy with the whole situation, but if the two of them are there, along with the children, the results might be a lot better.

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The Joint Chair (Mr. Roger Gallaway): Mr. Dodds, I don't like to cut anyone off, but you're a little over time. Okay?

Mr. David Dodds: Okay.

The Joint Chair (Mr. Roger Gallaway): Do you have any other specific—

Mr. David Dodds: Yes, I'll close down, then. I'll finish.

One: take children seriously and accord them rights— and that their parents have rights.

I include an item on hate, as index I. I'd like to see that looked at and taken care of, when it does happen. I've been shown an article out of a Florida newspaper, where a judge had made a suggestion on that.

I also caution listening to experts, and I've included a copy of a reference to the Rosenhan study. It showed that sometimes experts may have monocular vision or be short-sighted or colour-blind.

That's it. Thank you.

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

Senator Anne Cools: I didn't hear—what study?

The Joint Chair (Mr. Roger Gallaway): What is the name of the study you've submitted?

Mr. David Dodds: Rosenhan. It's not the study, but it's a quote out of a textbook on it.

Mrs. Sheila Finestone: There seems to be an indication that we have that brief, Mr. Chairman.

The Joint Chair (Mr. Roger Gallaway): We've just received it, and we only have one copy.

Mrs. Sheila Finestone: Oh, I see. Okay, thank you.

The Joint Chair (Mr. Roger Gallaway): We'll now hear from Mr. MacKay.

Mr. Brian MacKay (Individual Presentation): Did you take into consideration my request for an in camera?

The Joint Chair (Mr. Roger Gallaway): Yes, that was mentioned to me earlier today. You're in a panel that's public. This is a public meeting. I understand the circumstances, and I have been told what you've related to the clerk of this committee.

Under the circumstances, as I see it, you have two choices. One is not to testify. The other is to simply not deal with the specifics of your case.

We appreciate that you have had experience in the system and that you may have recommendations to make to this committee based upon your experience, and you may make those recommendations. The committee has heard from a number of individuals who have not always gone into the details of their case, because we appreciate and acknowledge that everyone is different. Okay?

Mr. Brian MacKay: I'm a father of three kids, Ashley, Devon and Tyler, and they're the reason I'm here. I didn't prepare a statement or a brief or anything, but this is a little part of the battle that I've gone through so far, just to try to get visitation with my kids.

My little girl I think pretty well summed up how she feels about the divorce laws and custody and access issues with some of the drawings that she's made, with a broken heart in the middle, on numerous occasions, and paintings. I don't know, maybe you've already received a copy of this through the mail from me.

I've gone through now at least five years of court appearances, and I've appeared in front of boards of inquiry—registration boards. I've had numerous lawyers work on my case. When it comes right down to it, there is no justice in a system that protects itself.

For example, if a social worker makes a mistake, where do you go to get a solution? You appear in front of a bunch of social workers. That happened in my situation. They're more concerned with covering up the mistake than in fixing it.

There is no help for fathers out there. I've heard mention of transition houses. Well, in the abusive situation I was in, my sister felt so bad about it that she phoned up a transition house and told them she had a friend who was in a bad spot and who was being abused. The woman at the thing was all sympathetic until she found out it was a man who was being abused. They'd never dealt with a situation where there was an actual male being abused. I never really considered myself as being abused.

At the last of it, things got so bad in our household that I had to get the kids away from that woman. It wasn't until just lately that I found out she was having an affair for a year before we actually separated. I went to the social services when she left, and asked for help with babysitting costs—$200 at most they'd give me—and we came to an agreement on 50-50 custody.

• 1425

Mediation: Mediation is not a binding solution when it goes to court, because I had my kids for four days a week for two and a half years, a 50-50 agreement, and the day after my wife found out she was pregnant she went for full custody and the courts awarded it to her.

But anyway, a suggestion I have is that there are no teeth in this court-ordered enforcement. I pay my child support regularly and I'm supposed to have my kids two days a week. If she says “You're not having them today”, there's nothing I can do about it. I can go to the police, as I have, but they say it's a civil matter and they don't want to get involved in it. And when you catch a lawyer falsifying your records and stuff, the only people who you can complain to is the law society.

I have read a little bit on your Bill S-12. That might be a way to go, but when you go to the RCMP and want to proceed with charges against some of these people for the wrongdoing they've done, that you proved in court, they say they don't want to proceed with charges against these guys because it would ruin their reputations, and for what, to save a few bruises against your kids?

I have a problem with the system that deals with issues like this. But I don't know, it's a lot of stress and tension to be here in places like this, and my kids ask me to keep fighting to try to spend a little more time with them. I did up a little thing here: Parents should be strongly reinforced to make joint custody work; if they fail repeatedly, the parent with the best child-rearing skills should be selected as primary custodian, regardless of gender.

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

I'm not certain if your case is completed, but could you please tell us the file number?

Mr. Brian MacKay: Pardon me?

The Joint Chair (Mr. Roger Gallaway): The style of cause and perhaps the file number.

Senator Anne Cools: Yes, the style of cause and the file number.

The Joint Chair (Mr. Roger Gallaway): You have a bunch of documents there, court documents, I assume.

Mr. Brian MacKay: On the investigation itself into my case?

The Joint Chair (Mr. Roger Gallaway): No, of the divorce proceedings. We'll just take— His name is revealed. Perhaps you can provide it to the clerk.

Senator Anne Cools: If you give it to the staff up there, they can look into the documents and just take the style of cause. The style of cause just means So-and-so versus So-and-so in a court.

Mr. Brian MacKay: Sure.

The Joint Chair (Mr. Roger Gallaway): The clerk can get it from you.

Mr. and Mrs. MacLellan, I don't know which of you will speak.

Mrs. Kathleen MacLellan: May I speak first?

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

Mrs. Kathleen MacLellan: First, what is the status of your committee, please, officially? I'm asking as a voter. I don't see a flag, a P.E.I. flag, or a logo of any sort.

The other thing is, today is 125 years since P.E.I. joined Canada, I mean Canada joined P.E.I. At that time we had a—

Mrs. Sheila Finestone: Are you related to Mr.—

[Editor's Note: Inaudible]—

Mrs. Kathleen MacLellan: No. I am a British Columbian by birth. I married a farmer. I'm a CFA.

Anyway, you were mentioning about having to catch a bus or something to go over to leave the island, but in those days you travelled by a small ferry boat, I presume. In the wintertime, it would have been a boat with a couple of oars on it. But at the same time, though, if you leave today you're going to have to cross over on a billion-dollar blink, otherwise known as the Confederation Bridge, and you'll have to pay $35.50. And this even applies for seniors; they won't even give us a rate, we have to pay that, too.

Anyway, thank you for a little bit of levity.

But I am surprised that there is no flag, or some other insignia of—

The Joint Chair (Mr. Roger Gallaway): If I could stop you there, I must say that this has never been suggested before. You can appreciate that this is what I call a travelling road show, and we do travel with a lot of paraphernalia, as you can see, and I really—

Mrs. Kathleen MacLellan: The hotel should have it.

The Joint Chair (Mr. Roger Gallaway): I think you're suggestion is an excellent idea, and we will investigate that. I also want to tell you that I'm wearing a Prince Edward Island button.

• 1430

Mrs. Kathleen MacLellan: You tell Catherine that Kay told him to do that.

Our complaint really is based on the fact that we are grandparents, a grandmother and a grandfather. When our son's separation and divorce was on the horizon, we were devastated. For a year, I guess, we were zombies. Then all of a sudden we weren't seeing the children. We weren't allowed to see the grandchildren. Things went from bad to worse.

I have a couple of notes here. May I start first with stuff I have written down? This file is just since 1995. I have stuff in here that came out of Ottawa for various presentations that were made by other MPs to the House of Commons, and they passed two sittings, but they were turned down at committee level. I'd like to put it on the record.

Saint Thomas Aquinas, 1225-1274, the angelic doctor, in the Summa theologica questions the essence of law, various kinds of law, effects of law, the eternal law, the natural law, the human law, the power of human law, and changes in law. That's a partial list, and I got it from The Political Ideas of St. Thomas Aquinas, edited with an introduction by Dino Bigongiari, 1952, Columbia University. It's from a textbook that our daughter had at university for her major in political science.

The other thing that has bothered us, apart from the spiritual and the religious aspect, is the way we have had to suffer because of the ubiquitous justice of the P.E.I. Supreme Court appeals division and this business of maintenance enforcement, words we do not like. “Maintenance enforcement”—it just sounds like our son was some kind of crook. We had to suffer because a court order came out from the court.

One day—I think we got prior warning— As I mentioned, we are farmers. Well, my husband's a farmer; I just make beds and wash dishes and read St. Thomas Aquinas. Anyway, we were told the sheriff was coming to our farm. He came, he had a court order, and he had his loading gear for tractors and whatever else, and of course that brought up my Irish. I wasn't going to sit back and let him take them. So we went down and we told them they couldn't take them. They said they had a court order.

Some little deputy sheriff in a—what are those jackets they wear when they go to Africa?—safari jacket did most of the talking. So I got into the warehouse and I said, “You're not taking that plough”, or whatever it was, “because I have to pay for that thing. And I don't care what judge gave you the court order. Those are ours and our son's in conjunction.” They said, “Well, sorry; we can't do anything about it. We'll call the Mounties.” So there's where the Mounties were on the double.

Mr. Brian MacKay: Are you from Indian River?

Mrs. Kathleen MacLellan: Yes.

Mr. Brian MacKay: One of my neighbours.

Mrs. Kathleen MacLellan: Anyhow, so by that time Justin had calmed me down a bit. He said, “Go to the house, Kay. Go to the house. They can't take our roof yet.”

But by gum, since that time—that was a year ago in the spring—this matter has been pursued. We have no confidence in the lawyers, let alone this bunch of maintenance enforcement people. They lied from day one as to our son's ability and other things. They even had somebody break into his truck and steal stuff out of his truck, a datebook that he had maintained. We've never appeared, as a matter of fact.

I'm sorry if I'm taking up time, but this is our first opportunity to voice our concerns as grandparents.

A year ago our grandson made his first communion. We weren't even told about it. We weren't even invited to go, but our son told us about it. In fact he told us not to go. It was so important in our lives, because our five children—or four children; we lost a little girl in a farm accident— We weren't invited to go.

• 1435

When his birthday came along, we couldn't take him any birthday gifts. I had to have somebody else deliver them to the day school where he was going.

Just two weeks ago we received this letter. Somebody asked me if we had a form. It's addressed to Mr. and Mrs. Justin MacLellan and dated May 19, 1998.

We were in Charlottetown on other business and we thought we'd go around and visit our granddaughter. These things have been going on behind our back. We've learned through other ways about— Well, we certainly knew about the financial stuff that these people were going after, and they nearly had the roof over our heads, except that Tom finally found a lawyer who would stand up for him and us as well.

It says: “Mr. and Mrs. Justin MacLellan, You are requested to get permission from”—and this is the name of the mother—“to visit Danielle at Hilda Parsons, the babysitter. These are the instructions I have been given.” And it's signed by her.

When we went to the door, she backed Justin off from the door. She said, “You can't come in”, and the little girl was right behind her. She wasn't going to let him in. Of course I got in behind and I went in then too. The little girl looked at me—and we saw her about three months ago—she skidded away to a corner and she heard the woman telling Justin and me that we had no right to see that child unless we got permission.

Do you think that's the right kind of policy for the people in government or in the government departments to have? Our son has his own lawyer, but I believe we should speak out, because we know we're not the only ones. As grandparents we have no rights at all, apparently. I know from my file here that these grandparents' cases have been going back for years and years.

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

We're a little over time. Mr. MacLellan, do you have a few words to say?

Mr. Justin C. MacLellan (Individual Presentation): Thank you.

Getting back to maintenance and enforcement, I think the maintenance and enforcement people are a lot more concerned about the money than they are about assisting the children. In our case it's been a pretty rough deal. The machine that my wife speaks about was in both father's and son's names. I don't think they had any right to take it.

I had a good talk with the RCMP at different times, but he said, “I'm sorry, Mr. MacLellan; I can't do very much about it. But you'll find out, and it will have to come back.” I said, “Who's going to pay for it?” He said, “Don't worry; the government has to pay for transporting it both ways.”

Our son is paying quite high maintenance and he doesn't have the money. They really put the pressure on him. They really chased him around last winter or two years ago.

Mrs. Kathleen MacLellan: One time, when Adam was home, he said, “Daddy nearly got put in jail today.”

Mr. Justin MacLellan: Yes, they were going to put him in jail. How can anybody make any money being in jail?

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

Now we'll hear from our last witness, Mr. Albert.

Mr. Bob Albert (Individual Presentation): Thank you for enabling me to make this presentation.

Having co-parented for 15 and a half years, I have personal knowledge of the problems, efforts, and rewards that co-parenting can give parents and children alike. I have come to appreciate the problems that stem from the consequences of divorce and the need to consider appropriate child care and access.

Painful as it may be for parents who divorce, the need to separate the wants and rights of parents and the needs of the children is of paramount concern. At a time of turmoil, it is very difficult for parents, as it was for me, to separate the two issues. Parents may not be able to appreciate that there are in fact those two issues, which at times are conflicting. Those issues are the wants of the parents and the needs of the children.

• 1440

The need to separate those two interests must be attempted, so that the interests of the children can be recognized as the most pressing, most delicate, and in need of most protection. In spite of the fact that the parents may seem to have the best interests of the children in mind, that is often clouded with personal self-serving interests as well.

In my opinion, the need for separation of the two must be brought to light in effective counselling to help the parents. We have to help the parents see that the least amount of disruption in the children's lives is the most important. We have to help the parents understand that the rights and interests of each parent are separate and ought not be controlled by the other. We have to help parents understand that it is they who are divorcing, not the children. We have to help the parents understand that the children have a natural longing for each parent. We have to help the parents understand that each parent has the right to respond to the interests of their children, void of any interference by the other parent. We have to help the parents, because they're not able to, when they're in this crisis.

We can't do that by having family law in a confrontational environment. That's why counselling is absolutely necessary. Parents must be helped to understand that they have the ability and responsibility to provide parenting as is requested by their children.

I believe that co-parenting offers the best opportunity to provide children with the least amount of disruption to their lives. It should be recognized that there are pitfalls associated with this type of endeavour. In order to avoid these pitfalls, we have to keep the healthy wishes of the children in mind.

I also believe that the best style, and the one most likely to succeed, is one that incorporates a separation of tasks in a dualistic framework. Each parent has a complete set of the same tasks. They have two homes. The children have one home with the father, and a separate home with the mother.

In my particular experience, after a short six-month period of adjustment to separation, where the parents—myself and the mother of the children—shared two residences, the children remained in the matrimonial home— It was we who were separating, and it was we who should run about from one house to the other, not the children.

After this period, the children shared the two homes. My son and daughter had “my home with mommy” and “my home with daddy”. They had two bicycles, two sets of clothing, two sets of dolls, and it was theirs.

The children need a home with their father and they need a home with their mother. Both homes are theirs, both homes having within them all the personal items desired by the children, not the parents' interests. It costs a lot.

• 1445

As well, responsibility of everyday functioning of the children was separated equally and not interfered with by the other parent. Parenting in our house was my responsibility, and all the rewards associated with those responsibilities were ours—mine and the children's. Parenting in the mother's home was her responsibility, none of my business, and all the pleasures and rewards related to that parenting situation where theirs. I had no right to any of that.

My children are not children any more. After 16 years my daughter is 22 and my son is 18. My daughter is finishing her third year of university, with a point grade average of 3.87. My youngest child is finishing high school this year, with a grade average of 96.75%. He has been accepted to McGill University with a $12,000 scholarship. They are happy children. They are happy because they were given what they wanted most, the love of their parents and step-parents, without any interference with one or the other.

Unless our children are given healthy access to all the important adults they love, there will be difficulties. Unless each parent recognizes he or she must not interfere with the other's freedom to parent independently, there will be problems. Our jails are full of people who have experienced these problems.

Thank you.

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

I'm not certain who would like to begin questions. Mrs. Finestone, please.

Mrs. Sheila Finestone: Thank you very much.

First I'd like to deal with the grandparents, Mr. and Mrs. MacLellan.

I've had a hard time with grandparents' rights, because I am a firm believer that if two adults can't get along and have to separate, the best interests of the child still involves the extended family on both the mother's and the father's side. It includes wondrous matters such as when a child goes through any kind of religious exercise, or Christmas, or New Year's, or Rosh Hashana in my case. I do believe that to be very important, and I would hope, in the course of the development of some guidelines for consideration by the minister under the best interests of the child, that grandparents or extended family rights are to be considered in the court orders.

I just want you to know there's no way we can regulate or have any input into the individual case, but you are reflecting issues we've heard and I've been aware of for a long period of time. I hope we can find some resolution, not necessarily to your particular case, but to the principle that flows from the fact that families go from generation to generation and there are qualities and values in each of those families that you would hope would be transmitted to your grandchildren and down the line.

I don't have any specific questions for you. I just wanted you to know that I heard what you said, and it is an unfortunate reality that many grandparents are living the experience, not necessarily yours.

I must say it's a pleasure, Mrs. MacLellan, to see you haven't lost your sense of humour, and I imagine your home must be lots of fun to live in.

Mrs. Kathleen MacLellan: With the cobwebs.

What about the financial aspect of it? That's what's been devastating to Justin and me. We're part and parcel of the court order or whatever. It's true about taking our house to pay for this—you called it “meat grinder” something or other—to go through this meat grinder with maintenance enforcement payments.

Mrs. Sheila Finestone: Maintenance payments. I don't know how it got linked. Your son might be partners with your husband in the enterprise. I really don't know and I can't address that issue. I would say I think the advisory council's recommendation for consideration of a family dispute resolution agency is a place where we could start to look at how you can bring some issues of this nature into the light. I really don't know.

• 1450

Mrs. Kathleen MacLellan: Incidentally, I have no—what's the word I want?—with the Status of Women. They have to learn a lot yet and to unlearn.

Mrs. Sheila Finestone: I can only tell you that from my perspective gender is a non-sexist word. Issues should be looked at through a gender lens and both have the right to equal treatment. That's my view. It's a proposal I have made over many years, and it is a matter of examining all forms of legislation under the gender lens. The gender lens means men and women. From that perspective I have no discomfort with the recommendation, which I think is gender neutral.

With respect to you, Mr. Dodds, I am hoping that language change—and I agree with every one of you with respect to language. I think the language is derogatory and offensive and unhelpful, and I hope we can find that language change.

With respect to Quebec, Quebec shouldn't have presented a problem to you. It's federal jurisdiction. There are two official languages in the federal courts. That's just for your information. You know that—

Mr. David Dodds: Do you want me to comment on that?

Mrs. Sheila Finestone: Yes.

Mr. David Dodds: I was told it was a French court. English shouldn't be spoken there. They said if you want a translator, you pay for it.

Mrs. Sheila Finestone: What court were you at?

Mr. David Dodds: Shawinigan.

Mrs. Sheila Finestone: Well, we'll discuss it afterwards, because it is incorrect and it is illegal.

With respect to how to respond to some of the things you said— None of the things we've heard today, by the way, are any different from what we've been hearing elsewhere. They're just different versions of the same unpleasant and very difficult conundrums we're faced with as a committee in how to guide the minister, based on what we have heard, so that we can ensure that the best interests of the child are reflected in some concrete guidelines.

If the guidelines are such that there is a recognition of the difference between violence, or assault, and the normal breakdown of family relations and that the interests of the fathers are just as important as the interests of the mothers in terms of the determination— That's not necessarily the separation of legal issues, residential issues, financial issues. I think all of these things have to be thought through very carefully so that guidelines are developed that reflect a gender-neutral situation.

Do you think it would help you if we had guidelines in the distinctive features of the best interests of the child?

Mr. David Dodds: I agree with that, but as they were saying, the “precious years of the child”— I raised my child for three years. My ex did not want anything to do with it. Then came the custody battle and out was wheeled the canons of a variety of things, which included accusations. A year later the government sent back a letter saying they were unfounded, but by that time it had got into the court system. It's like somebody throwing tar. It seems somehow to stick to you and the smell remains a long time.

Mrs. Sheila Finestone: Yes, I would agree with that. It's a very unfortunate reality.

With respect to co-parenting as two separate issues for each and every one of you, it's very nice and it's wonderful, and I'm glad to hear of another case in which things worked out. Again, whether you like the status of women group or not, I think the idea of a family dispute resolution agency, where you could have mediation, conciliation, arbitration, and the whole method of dealing with difference and enabling effective dialogue that keeps a child in focus might be a very interesting kind of undertaking, as long as it doesn't delay a whole series of undertakings. I would think that would have to be looked at.

• 1455

We've got enough layers of bureaucracy and enough staff to use up the money that I'd rather see in legal aid, but if this will help I think we're going to examine it much more closely.

Thank you.

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

Mr. Eric Lowther: I don't really have a question, Mr. Chairman, but before we close the day—and maybe Senator Cools has some questions, I don't know—I want to applaud these witnesses.

We've heard your stories before, as Mrs. Finestone has said. I know I speak on behalf of all the committee—and this is not a partisan comment in any way—in applauding the fact that you would invest the time to bring forward your stories when there's probably not much in it for you in the sense of directly solving your problems. You're investing your own personal time to bring forward these issues for the benefit of others and for the benefit of this committee. I applaud you for it, and I appreciate it. I know we all do on the committee.

Second, I commend your comments about the flag. I hang my own head in shame that I didn't think of it a lot sooner and that we didn't have a flag here.

I appreciate those comments, and I appreciate your giving your personal time to come to this committee. Thank you.

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

Senator Cools.

Senator Anne Cools: It's obviously the end of the day and we're seemingly saying goodbye. I would like to laud these witnesses.

To the very last witness, Mr. Albert, I thought your statements extremely thoughtful and concise and very well honed. I admire that.

Mr. MacKay, I'm glad you came here, and the gentleman at the end, too, Mr. Albert.

I don't want to say my favourite, but to Mr. and Mrs. Justin C. MacLellan from P.E.I., the farmer and his wife, I just wanted to say that you've obviously gone through a lot of shame and obviously a lot of distress. It must be very painful for any parent at your particular age and stage in life to go through this sort of humiliation, where you're watching your own sons and sometimes daughters being so ill treated. It must be very difficult at your age and stage in life to have financial insecurities. I mean, you talk about losing you roof. What I would say to you is there are too many situations like yours in this country.

Hopefully, if nothing else, we will have begun the debate on these terrible wrongs. You said something very profound, Mrs. MacLellan. You said “How can anybody allow all this to go on?” Those are my sentiments. The situation you described, as far as I'm concerned, is a pox upon us all. Hopefully we can at least bring it forward.

I thank you very much. I thank you for your testimony.

I thank you, Chairman, for doing a good job.

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

Senator Anne Cools: I thank you, Chairwoman. I thank our senior statesman over here, and we are going to away.

Mrs. Sheila Finestone: That's right.

Senator Anne Cools: We are going to away. We came from away and now we're going to away. If you say going to away— that's come from away.

Mrs. Kathleen MacLellan: Come from away.

Senator Anne Cools: You've come from away.

Mrs. Kathleen MacLellan: I do come from away.

Senator Anne Cools: If you go, where do you go? To away?

Mrs. Kathleen MacLellan: What's the expression for that?

Senator Anne Cools: Okay, but there's in a way, from away. Anyway, we'll get all sorted out. Thank you very much.

The Joint Chair (Mr. Roger Gallaway): Does anyone mind if I speak now?

I want to say this is much the same way we started out this morning. I think there's something about this place that has infused the members of the committee with a certain sense of relaxation that I have not seen amongst our members in any of our travels until today. Despite the nature of the work and despite the problems we hear, it has been in a sense to the members somewhat uplifting to be here.

• 1500

We appreciate, as Senator Cools has said, that you have taken your time to be here and we appreciate the fact that you have revealed very intimate details of your lives under very difficult circumstances. You have, I can assure you, contributed to the work of this committee. For that, I want to thank you on behalf of all my colleagues.

Mr. Justin MacLellan: Mr. Chairman, may I say one thing, please?

The Joint Chair (Mr. Roger Gallaway): Certainly you may.

Mr. Justin MacLellan: Last winter, I was just going out the door to a doctor's appointment and this van drove in the yard. I hadn't a clue who they were. They turned into the yard, and there were two ladies in the van. One got out of the van, came over to the door, and asked if our son was home.

I said no, he wasn't home, and would be back at 5 or 6 that evening. She wanted to know if he had a telephone number. I said I was sorry, but that he didn't then have a number. I wanted to know why she was looking for him. She said she was from Calgary and knew him quite well; she said she just called in to have a chat with him. I asked her if she had ever been here before. She said no. I asked how she found out where he lived. She said she drove around the country and two or three different neighbours told her.

To find out, the maintenance enforcement hired those two ladies to come up the Indian River to look for our son, and I'd like to know who paid for it.

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

This committee is now adjourned until 9 a.m. tomorrow in Fredericton.