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]

Thursday, May 28, 1998

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[English]

The Joint Chair (Mr. Roger Gallaway (Sarnia—Lambton, Lib.)): I would ask the first witnesses, Mr. Haines and Ms. Baird from the GRAND Society, New Brunswick Chapter, to come forward and take their places at the table.

While they're doing so, I just want to make a couple of comments.

Firstly, I heard on a local radio station this morning that this was a Senate committee appearing here, and I want to dispel that notion and that idea. This is actually a joint committee of the Senate of Canada and the House of Commons, and as such it's unusual. It's not unheard of, but it's not often that there are joint committees. However, in this session of Parliament, in the 36th Parliament, this is in fact the third special committee that combines members of both houses.

We're very pleased to be here. This is our 32nd meeting, and we're very pleased to be in Fredericton. We will be here for the day, and we know we're going to hear from a good cross-section of witnesses from this part of the country and from this province.

I want to acknowledge and thank Mr. Andy Scott, the member of Parliament for Fredericton and the Solicitor General, for facilitating our visit here. I appreciate that very much. He's been very helpful. Also Senator Mabel DeWare, who unfortunately, due to other commitments, cannot join us here today, has been very helpful. We also have with us Senator Erminie Cohen, who is from Saint John.

I want to also announce that this is a proceeding of the Parliament of Canada, and we ask that there be no applause or reaction to testimony—no noises. This is a proceeding of Parliament, and although it is conducted with some degree of informality, we cannot allow reactions to what is said or asked in this room.

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Having dealt with all those housekeeping matters, as I refer to them, we're pleased to welcome as our first witnesses this morning, from the GRAND Society, New Brunswick Chapter, Mr. Wally Haines, who's the president, and Ms. Barbara Baird, who is the legal adviser to that group.

Welcome. I don't know if you have been told, but we would ask that you limit your comments to about five minutes if possible, and that will be followed by a round of questions. I don't know who's going to speak. It looks as if Mr. Haines is, so if you want to proceed, please do so.

Mr. Wally Haines (President, Grandparents Requesting Access and Dignity Society, New Brunswick Chapter): Barbara is going to make a presentation. I'm here for questions afterwards.

Ms. Barbara Baird (Legal Adviser, Grandparents Requesting Access and Dignity Society, New Brunswick Chapter): Thank you, Mr. Chairman. I have some remarks that I would like to read, and then certainly we hope we will be able to answer the questions the committee has, if any.

As introduction and background information, the New Brunswick Chapter of GRAND was formed in 1992. It was felt at that time that the issue of grandparents' rights to access and visitation on separation and divorce had long been overlooked by legislatures, the legal community, and jurists. As many who have experienced separation and divorce know, often the positions between the mother and the father become polarized over the question of the ongoing custodial care of children, and often lost in that battle are the fundamental rights and interests of the children.

Many of us who practise in the area of family law are well aware of the chattel battle that occurs over the children of the marriage. Instead of considering the best interests of the children and their need to have continuity in their lives, not only with their immediate family but with their extended family as well, the children are left out of the dialogue and debate and are often the losers.

The New Brunswick Chapter of GRAND has worked with the New Brunswick government these past few years with a view to creating legislative change to our Family Services Act. The Family Services Act is the provincial legislation governing issues relating to marriage breakdown, adoption, child abuse, elder abuse, and all other matters relating to the family. This legislation was given royal assent July 16, 1980, and subject to various regulatory changes and some legislative changes to the act itself, it has been the governing piece of legislation in this area since that time.

I have brought with me some brochures for our organization that we circulate in the community. The aims of GRAND are sixfold. They are centred on creating a support system for the children on separation and divorce, promoting always the best interests of the child, facilitating mediation when and where possible, promoting public education and awareness of this situation, preventing alienation of grandchildren from their extended family members through family life education, and facilitating legislative change.

Although the Family Services Act in this province is more open to applications by third parties for custody, access, and visitation, it was felt there should be a specific reference in the legislation to the right of children to have a continuing relationship with grandparents on separation and divorce and to be protected from the termination or obstruction of that right, if contrary to the best interests of the child.

As you are aware, the Divorce Act presently does not allow a person to automatically make an application for access to a child of the marriage except by leave of the court. This is an expensive and complicated process and is very seldom used. In our province, subsection 129(3) of the Family Services Act permits an application without leave. I provided the committee with photocopies, translated, of our subsection 129(3). This morning when I came, I gave the clerk copies of the section.

Subsection 129(3) of our legislation states as follows:

Upon application the court may order that either parent or any person shall have access to a child, whether or not an order for custody has been made with respect to the child, subject to such terms and conditions as the court determines, such order to be made on the basis of the best interests of the child; and the court may at any time vary or discharge the order.

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That section has been in existence since 1980. Any person in this province may make an application for access to or custody of a child. It could be a grandparent, an aunt or an uncle, a significant extended family member, or a friend, whatever the case may be. But that section always has to be read within the context of the best interests of the child, and of course the judge must use his or her discretion when determining that. And those applications do not require leave, nor have they ever required leave. That has been one of the problems I have had, as a practising lawyer, with the leave requirements in the Divorce Act. I'm happy to see that the proposed bill takes the leave requirement away.

I want to talk about why I believe our section is a bit better than that proposed in Bill C-340. In the preamble to the New Brunswick Family Services Act there is a specific recognition that children have basic rights and fundamental freedoms no less than those of adults. This is a child-centred approach to family law. I believe that all of us who are concerned with this issue—whether we are legislators, whether we are writers, whether we are social workers, psychologists, people practising in family law—have to accept that we need to adopt a child-centred approach to family law and the issues surrounding particularly custody and access and visitation.

In our preamble to the Family Services Act it requires the courts and the people involved in interpreting the legislation to consider in all applications the Canadian Bill of Rights. Our New Brunswick court of appeal has specifically stated that access and visitation is a right of the child and not that of the adult. That is a significant principle, which we commend to the committee.

GRAND three years ago pursued a legislative change to our Family Services Act, specifically requesting that the government include as part of the best interests of the child test a reference to the ongoing relationship between grandparent and grandchild. After several meetings with the Minister of Justice and an appearance before the legislative assembly, we were able to achieve a legislative amendment. Paragraph 1(d) of our legislation was changed. I have provided a copy of that paragraph to the committee today. Paragraph 1(d) of our legislation was changed to read as follows:

“best interests of the child” means the best interests of the child under the circumstances taking into consideration

...

(d) the love, affection and ties that exist between the child and each person to whom the child's custody is entrusted, each person to whom access to the child is granted and, where appropriate, each sibling of the child and, where appropriate, each grandparent of the child;

This was the first opportunity that we had as an organization to see a specific reference in our New Brunswick legislation to the relationship a child has with his or her grandparents.

We had a copy of the Quebec Civil Code at that time, and we are aware of the provisions in the Quebec Civil Code that have talked about the alienation of the relationship between grandparent and grandchild. We are also aware of the legislative change that is proposed in Alberta, which would open that door as well.

I want to tell the committee that we have not seen a floodgate of court applications in this province since the legislative change. There have been a number of applications by grandparents for custody and access and visitation. In some cases the applications have been successful, in others they have not been. But always the court has a mandate to exercise its discretion under the best interests of the child test. And where the court finds that it is in the best interests of the child to have a continuing relationship with the grandparents, under conditions that are not hostile or adverse to the ongoing developmental needs of the child, then that access and visitation has been allowed and ordered.

Once again, I repeat that access and visitation is the right of the child. That has to always be considered when any of these matters come before the courts.

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We would respectfully suggest that the language used in the New Brunswick Family Services Act be seriously considered by this committee when reviewing the changes to the current Divorce Act.

We suggest that Bill C-340 may be deficient, in that it is quite narrow in its application. We are happy to note that the leave provision is taken out, but to limit the application to a spouse or a parent of a spouse precludes any other significant person in the child's life. For example, if both grandparents are deceased, there may be a significant aunt or uncle or a significant other extended family member who has been a caregiver to the child or who may have a meaningful relationship with the child. Bill C-340 does not address that. Section 129 of our Family Services Act does; it is not limiting by its wording.

The Joint Chair (Mr. Roger Gallaway): I'm sorry to interrupt, but we are under time constraints. Just on a point of clarification, could you tell us what Bill C-340 is? That is a House of Commons number, but it's a private member's number. Is this a revival of the former bill that was presented in the 35th Parliament by Miss Jennings?

Ms. Barbara Baird: This is the bill that was forwarded to Mr. Haines on March 9, 1998.

The Joint Chair (Mr. Roger Gallaway): If you look on the front cover, down at the bottom, it will tell you who's proposing it.

Ms. Barbara Baird: Mr. Harb.

The Joint Chair (Mr. Roger Gallaway): Oh, Mr. Harb. Okay.

Could you tell us the name of it?

Ms. Barbara Baird: It's called “An Act to amend the Divorce Act—right of spouses and parents to access to or custody of a child”. It was given first reading February 13, 1998.

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

Ms. Barbara Baird: This is the bill we are addressing in our presentation this morning.

The Joint Chair (Mr. Roger Gallaway): Yes, I understand that, but the numbers don't always ring a bell.

Ms. Barbara Baird: I'm sorry. I apologize.

The Joint Chair (Mr. Roger Gallaway): No, that's quite okay.

Ms. Barbara Baird: I just want to thank the committee for the work you have done this past year. I am certain you've heard some heart-rending tales. For any of us who practise in the area, we realize it's a very difficult area, such an emotionally charged area.

If we could say anything at all in terms of your deliberations today, always consider the fact that children do not live in bubbles; they have relationships with other people in their lives. And those other people sometimes have a profound impact on their ongoing development and on separation and divorce. One of the primary focuses should be to try to limit a child's sense of disruption in the relationships they have with significant others in their lives, whether those significant others are parents or grandparents or extended family members.

I'm out of time anyway, so I thank you.

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

We're going to start with questions and we'll start with Senator Cohen.

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

Thank you for your presentation this morning.

We have heard some very moving testimony from grandparents across the country. The aims that GRAND has expressed to us are very commendable and are really something we probably will consider. I think they've got vision and foresight.

On the rights of the child, the convention on the rights of the child that Canada signed gives the rights and responsibilities of the extended family. We've signed that, so it's something we have to bear in mind as we progress.

I have a question for you, Mr. Haines, and it's a personal question.

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I'm a grandparent and we adore our grandchildren, and we would be devastated if that relationship were to break down. In times of stress when families are breaking up, I think the stability of an intact family, for instance with grandparents, is very supportive for a child in turmoil.

There is a personal question I want to ask, because we've heard it brought up. In the event that the couple is in a crisis situation—for instance, my daughter and her husband—how does a grandparent stay neutral when their grandchild and their child are in this bad zone? That's the worry some people have expressed, that the neutrality is difficult to maintain, and that parents are still parents and grandparents can still love.

Could you answer me?

Mr. Wally Haines: I think it's difficult to stay neutral because the system is adversarial to begin with, but I think you have to stay focused on the child, on the best interests of the child, and go from there. It's a difficult question because of the fact that when affidavits are presented in the court there's some pretty graphic information that attacks the person. You don't really expect that sort of thing when both parents have been on an even playing field through the life of the child. Everybody's friends with everybody, and all of a sudden one parent or the other attacks you in a really bad manner.

The first tendency, I guess, is to retaliate, but as I say, you have to stay focused on the best interests of the child, and if the child is in danger, then you have to take the means that are before you to protect that child, whether it be the courts or whatever means are available.

Senator Erminie Cohen: Thank you, Mr. Haines.

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

Mr. Eric Lowther (Calgary Centre, Ref.): Thanks for the presentation. It was very good.

I noticed your presentation came back many times to a child-centred focus. That theme was repeated, and I appreciate that. I wonder, though, how you see that working out in some situations. I'm thinking back to some of the earlier testimony we've had.

Imagine for a moment a situation where two parents are splitting up. One is the primary caregiver or has the place of residence, or whatever terminology we want to use, and the other one who has the access order comes to the door to pick up this child. But there's this emotional turmoil going on. He is cared for by one parent in the home, and then the other parent comes to the door and he is told that it's time for him to go with the parent at the door. They think, “Gee, what am I supposed to do here?” They decide to say they don't want to go, because they feel they may offend the one they're staying with, or something. You can imagine all the confused emotions in the heart of that child.

Now, when we get to the rights of the child, do we say to that child that he has a right, then, to not go with the access parent because their rights are 100% equal and all that? If we're that far down that continuum, I'm wondering if we're actually working in the best interests of the child—if we don't recognize that in fact he is still a child and may not be at a level of maturity to understand all the emotional dynamics of the situation.

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I'd appreciate some feedback on that type of situation.

Ms. Barbara Baird: That happens all too frequently. Just so you are aware, it will be 22 years next month that I have practised family law in this province, and I've seen a lot of changes, legislative and otherwise, in the way the judicial system has approached these issues. I can speak from some experience.

We have always taken the position that when a child reaches a certain age, what we call the age of reason—maybe 10, 11 or 12—if you have a mature child at that age there is not one thing you are going to be able to do to change that child's mind if that child does not want to visit with the other parent. I've seen cases where children have been forced to go and visit with the other parent and have run away.

So the courts have taken a hands-off approach when you have a child that age. Those children, their views and their preferences, will be respected at that age.

When you have a very young child who is standing at the door crying, saying, “I don't want to go with daddy”, and there's a big scene, then I think both parents have a responsibility, if they truly love that child, to sit down and try to work together, cooperatively, to make it work. Oftentimes in family law we don't see that happening. We see this adversarial environment that is all-consuming, and they get so embroiled in their own emotional hostility they forget about the child.

I ask people if they remember the story of Solomon in the Bible. King Solomon was sitting there before two women who were fighting over a child. They both said they were the mother of the child. What did King Solomon do? He said the only thing he could do, then, was to cut the child in two. One of the women said no, he couldn't do that; the other woman could have the child.

It is just so important at the very initial stages of marriage breakdown that the family have counselling, and if they can get that counselling, to sit down and become fully aware of the long-term negative impact their hostility will have on this child.

When a child has lived in a home with two parents, both of whom have parented the child—diapered the child, fed the child, taken the child to school, babysat the child, looked after the child, loved the child, gone to birthday parties with the child—you can't tell me that just because the marriage breaks down, all of a sudden one of those two parents is no longer a parent and there is no love or affection or tie or bond between the child and the parent. That just doesn't happen overnight. There has to be some intervening factor that creates the fear or the reaction you're talking about in that child. If that child is standing at the door, saying he or she doesn't want to go with mom or dad for visitations, it just didn't happen overnight.

If the other parent in that household is influencing that child against the other parent, or doing anything to take the marital battle into the life of that child, that is despicable. It is shameful. It's terrible. It has a terrible long-term consequence.

I know later on today Mr. Borland is going to be testifying before this committee in terms of the struggles he has had, as an access parent, to get compliance with the court orders on access.

I don't know how we do it, but I think at some point the parents have to realize that in some respects, alienation like that is child abuse. It's a form of child abuse. It's emotional abuse of that child. It's despicable, it's shameful, and it happens every day of the week.

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

Ms. Baird, you referred to a New Brunswick Court of Appeal case. Is there a citation for that in your brief?

Ms. Barbara Baird: No.

The Joint Chair (Mr. Roger Gallaway): I wonder if you can tell us the name, if you don't mind.

Ms. Barbara Baird: I can't give you the name, but I can certainly provide it to this committee.

The Joint Chair (Mr. Roger Gallaway): Could you, please? Thank you very much.

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I want to thank you for coming here. Somebody has to be first in the morning. I want to thank you for a very invigorating beginning to our day.

Ms. Barbara Baird: Thank you.

The Joint Chair (Mr. Roger Gallaway): I would now ask the next group of witnesses to come forward, please.

Senator Anne C. Cools (Toronto Centre, Lib.): Mr. Chairman, on a point of information, because we keep hearing of the example of Solomon deliberating between the two women whom the Third Book of Kings describes as harlots— What everybody forgets is that one of the reasons one of the women was childless was that she had killed her child. The Third Book of Kings says very clearly that she “overlaid” her child.

So I'll just bring it out, because I think it's the same point: how does one get to the issues? I just thought we should put in the whole truth. Obviously, I read the Bible; it's a vanishing thing.

The Joint Chair (Mr. Roger Gallaway): We have witnesses before us. From the New Brunswick Shared Parenting Association, we have Melynda Jarratt and Dan Weston. Both of them are members of that group.

Alison Grenon is here as an individual.

Mr. Lane MacIntosh was inadvertently left off the list. Now Mr. MacIntosh is a member of a group called Custody, Access, Rights, Equality, or CARE. Apparently, the group, due to the nature of the notice given, was not able to meet in time to compile a brief, as I understand it. You're here speaking on your own, but we're pointing out that you are a member of that group.

So we'll begin with Ms. Grenon for five minutes.

Ms. Alison Grenon (Individual Presentation): My name is Alison Grenon and I'm appearing as a child witness at this committee hearing on child custody and access. I am 18 years old, and I will graduate this year from grade 12 at École Sainte-Anne in Fredericton, New Brunswick.

In many ways, I have been very lucky. This year, my soccer team won the provincial championships and I was the high school yearbook editor. In one month, I will deliver the valedictory speech to my graduation class. I am fully bilingual, and I plan to attend St. Thomas University in the fall.

My interest in the subject of child custody and access comes from personal experience, but as someone who believes in fairness, I think I would have been drawn to the issue even if I hadn't been at the centre of a custody dispute myself.

In 1991, two months after I turned 11 years old, I left my mother in Quebec and came to live with my aunt, with whom I have lived ever since. In 1992, when I was 12, my aunt got custody of me and I have grown up with her and my uncle every since.

I have access to both my mother and father any time I want. So access has never been a real problem except for the distance and cost. My mother lives in Quebec and my father lives in Bathurst. I thought I would have liked to see my mother more often, but I wasn't able to because it cost too much money.

In addition to having dealt with that experience, I am part of a so-called blended family that everybody talks about. In fact, in our house, no one has the same last name.

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This is my family. My mother had a child when I was just two years old. That's my stepbrother, who's now 15. My father married and had a child, who's my stepbrother who's now 10 years old. My mother had a child just last year, a girl who's now one and a half. My aunt married a man in 1993 who had a child, a daughter, now nine years old, from a previous relationship. It's a great big family, but it's mine.

So you see, I really have a lot of experience in this area, and don't be surprised to hear that most kids are used to the idea of stepsisters, step-cousins, etc., because it is a reality for most children.

What the politicians, courts, and parents do not seem to notice about us children is that we are observers, quiet listeners. Our early years in life teach us how to act as an adult.

Please put yourselves in this situation. You are a child new to this whole life business, and your needs and wants are not respected because everyone just assumes that you do not know what your needs and wants are. That is not true. We are very aware of what we want and need, and it is crucial to our understanding of life and relationships, and future parenting of our own.

Children do not know how to voice their needs of seeing mom or dad. They do not have the words to tell them what they need from both their parents. They need complete love from both, and they need to be taught how to be an adult. They are too young to voice their opinions so they cry, scream, stop speaking, and pull away from social activities that are normal for a child. They become more troublesome.

This is a cry for the parents to pay attention to them, see their needs, and figure out what they need and want. This becomes a strange guessing game between the child and the parent. What most forget is that parents do not remember what a child feels because life's experiences have matured them and they know the words to say to express an important need.

When a child finally does learn the words, they've become strangers to their parents. They do not have the same values or thoughts as them. They know that their parents love them, but what makes them forget is the constant feud between mom and dad. They find themselves in a small boxing ring with each parent in a corner. The child receives the punches because children are their weapon. Children become a way of emotional pain to each parent.

In some cases, when the custody of a child has been reversed to non-custodial parents, they can become like the other parent in that they want their ex to suffer the same way they have, so once again the child is used by them to hurt each other. They become a weapon of war used by both sides.

When this happens, the child asks: Is this responsible parenting? Who's being childish and immature here?

Our future is based on what our parents teach us, and so are our relationships and future relationships. Is this going to happen when we have kids? Are our parents going to argue over their grandchildren? How can children learn responsible parenting when all they remember are the arguments, pain, tears, and hate expressed by their parents? Why would they want children if all they've learned is that children can be weapons to hurt or that children can bring misery? Why should they risk making the same mistakes their parents did?

You must understand that my generation is the most affected by divorces, family courts, and lots of changes, and we learned to adapt. But we're also the most confused and hurt, and we're the rebels in life. We want to understand why our needs and wants were ignored and why we did not see our parents when we wanted to.

You must understand that I'm not a lawyer and I'm not a judge, but if I could speak to them in this situation, I would say that there has to be a better solution to this particular but common problem, which is the child who wants and needs to be with both non-custodial and custodial parents without the law getting involved.

I know there are other people who are saying the same things, and I think we all have a few things in common: a true compassion for children and a will to stop them from being used, manipulated, and forced to be weapons in big battles in family courts. It's cruel and inhuman in my opinion.

What has happened to our values and our morals? I think the root of the problem lies in the family courts, where judges' decisions allow this sort of behaviour to continue. This is where it has to change, with more focus put on parental responsibilities in a shared parenting framework.

Most of you sitting here today have had children, and some even have grandchildren and great-grandchildren. I am a member of the next generation of parents who will have children and raise them according to our values and experiences, such as living in blended families or stepfamilies with non-custodial parents who have been through hell.

We can be sure that we will not make the same stupid mistakes as did the last generation. We will try to teach our children new values and not ruin them by letting the system use them as a weapon in custody battle. You can rest assured that I will promote shared parenting for all in any situation.

Thank you.

The Joint Chair (Mr. Roger Gallaway): Thank you very much. Now, I don't know which of you two are going to speak, or are you going to share your time?

Ms. Melynda Jarratt (Member, New Brunswick Shared Parenting Association): Oh we believe in sharing, equality for all.

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The Joint Chair (Mr. Roger Gallaway): Having said that, we'll now hear from the New Brunswick Shared Parenting Association.

Ms. Melynda Jarratt: Okay. My name is Melynda Jarratt and I am one of the members of the New Brunswick Shared Parenting Association.

I think there's a little bit of confusion. The New Brunswick Shared Parenting Association grew out of CARE, an organization of which Lane is— We were, at one point, all together with CARE, and the Shared Parenting Association still is. I just wanted to make that clear to you. We are now called the New Brunswick Shared Parenting Association, but individuals have taken it upon themselves to make presentations to you today on their own specific issues outside of the issues that we are talking about specifically as the organization.

First of all, I would like to tell you right now that we are not a father's rights group. We are not here to provide a forum for angry parents. We represent good parents, and we think that most parents are good parents and that children have a right to see good parents.

It seems to be pretty obvious to me, but for some crazy reason, every time there's a divorce or a separation, suddenly one parent is removed...torn from one of the parent's lives. That parent suddenly becomes a non-custodial parent, because that's the way the system is set up presently, and that person then gets relegated to the status of visitor in the child's life, and, well, you've heard plenty along your route. I don't need to reiterate the painful, agonizing stories that you've heard about this, of which you'll hear more today, I'm sure.

Nonetheless, we believe that it is in fact not a gender war out there, although the media certainly loves to talk about it. I think it's hilarious the way the media report on this issue in this province, especially when you have one family that runs the entire media. They decide to clamp down on this issue or present a certain perspective on it, and you can forget trying to get notions about rational, moderate political analysis of this issue. It's not going to happen.

In fact this morning, if anyone read the Telegraph-Journal, this committee grew out of deadbeat dads. Did you know that? It was all because of deadbeat dads. I made a little telephone call this morning to the Telegraph-Journal and let them know what the real history was.

It's very difficult for us here in a small province to penetrate that kind of media stranglehold. Nonetheless, we do try, because we do present a rational, reasoned approach to this issue. We are, we believe, representing a third way in this issue, and the third way is one of shared parenting. It's neither one that accepts the right-wing reactionary so-called men's groups views, and neither does it accept the liberal feminist perspective that says men don't have a role to play in their children's lives.

Granted, we do recognize that men do make up the vast majority of non-custodial parents. At the same time, to ignore women who are non-custodial parents in this province who have been through it is to say that they don't exist. We know in the province of New Brunswick there are at least 5,000 non-custodial women, so God knows how many there are in a province like Ontario. You can't ignore those numbers.

These women really exist. They're real non-custodial parents. They have children whom they have trouble seeing, just like everybody else. I think there might be a couple here this morning. Right now I can't point one out, but there are a couple of our people here this morning who are non-custodial women, who have experienced the exact same difficulties that non-custodial men experience, which to us is proof in the pudding that this is not strictly a man's issue, and neither can it be defined as such.

With that in mind, this is something I want to do, because I know you people have seen all kinds of stuff and are going to ask me questions. I don't need to reiterate all this material over and over again. You know it's bad. You know it's based on an unequal premise.

On Monday morning I listened to an interview on CBC, on “This Morning”, with Senator Cools and Michael Enright, at which time Senator Cools said that the whole fundamental basis of the family law in this country is unequal. Well, I must say I have to agree.

I want to show you something that I have shown to a number of people. I call it the jelly bean trick, and the last time we did it, we did it to the Solicitor General of New Brunswick. We've also spoken to a number of prominent politicians and other people, on whom we use the jelly bean trick to show them how unequal the system is.

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I use jelly beans because children love jelly beans and I want to make this very simple so that even a child can understand how unequal the fundamental basis of the family law system is in this country.

So if you'll indulge me, I will show you. As you know, access to children runs in two-week cycles. Most parents who have access to their children have it every two weeks. There are 336 hours in two weeks. There are 336 jelly beans in this bottle I have here.

I'm going to show you how many hours—or jelly beans—a non-custodial parent gets during those two weeks compared to the amount of jelly beans—hours—that a custodial parent gets. This is the basis upon which relationships are defined after separation and divorce. It couldn't be more unequal. How is anything going to be equal afterwards if the fundamental basis is unequal?

Here we go. These jelly beans represent the average access to their children that most non-custodial parents get in a two-week cycle. I'll just use my husband's example, because it's an easy one and it's generally what most men get—as do women who are non-custodial parents. Tuesday night: 4.30, 5.30, 6.30. That's Tuesday night of the first week. Thursday night: 4.30, 5.30, 6.30. There's one week's access right there: 6 jelly beans. Does everybody see that? That's a whole week. In the next week it's Tuesday again: 4.30, 5.30, 6.30. And Thursday: 4.30, 5.30, 6.30. There's week number two.

Then on Saturday starting at 2 o'clock, my husband has access to his daughter, until Sunday at 6. So that's: 2.30, 3.30, 4.30, 5.30 and so on, 28 hours. So there is the total amount of time during which a non-custodial parent sees his child in two weeks.

This pile of jelly beans represents the total amount of time that a custodial parent sees the child in two weeks. Does everybody see that? Does everybody see how big the difference is? Look at that. Is that equal? I don't think so.

So how can we possibly talk about changing a system that is so unequal in this country without changing the whole fundamental premise in the family law system upon which custody and access are based?

We need shared parenting and good parents. Most people are good parents. You hear about all these right-wing reactionaries, deadbeats, and wife abusers. I know they exist and these are people who have to be dealt with. But most people are not deadbeats. Seventy-six percent of the child support payers in this province pay their child support, and on time. But you never hear about that. You only hear about the 24% who don't and the reasons they don't. You never hear about moderate opinions. You only hear about the men's groups and right-wingers who have these crazy attitudes about feminists and transition houses and all this crazy crap.

It's time we started looking at the whole issue in a more balanced fashion. And the only route for that is a shared parenting model of family relations after separation and divorce that will replace the current model of family relations, which is based on an ultimately discriminatory model called “custody and access”.

We have some issues dealing with human rights that I'm obviously not going to get a chance to talk about in these five minutes, but I hope you'll be able to ask me about them, because we are in the vanguard here in New Brunswick in terms of human rights complaints and we are making some great strides.

We have had success. We are the first in Canada to actually have a human rights commission say that a non-custodial parent has been discriminated against on the basis of marital status in service delivery. We show this at the back of our attachments to the document that we have presented to you today, which is called “Shared Parenting: Creating New Options”. All the documentation to support that is there.

• 0855

What you will see is what I call the domino effect, which is sort of like my jelly bean trick. The domino effect is that we started with the medicare cards and identified a service that a non-custodial parent was being denied simply on the basis of marital status. Just because they weren't married, he couldn't get the medicare card. We fought it and we won it.

The next step was report cards. They can't get report cards. My husband's daughter is in grade four and is going into grade five. He's had three report cards, and you know that kids get three to four report cards a year. He's only received three—in total. These are the kinds of things that are so frustrating. You're left out of the picture.

The RCMP refused to enforce the non-custodial parents' access to their children, even though the court orders said they had it. Yes, they would willingly enforce the custodial parent's custody. It looks like different treatment to me on the basis of marital status. It's totally insupportable in terms of the human rights legislation. In fact, we have challenged that and won. The RCMP have changed—you will see the document in our brief—their policy to enforce equal service provision in terms of the custody access orders.

So now we're on number four. We have a fourth human rights complaint, which we announced this morning to the public on the radio and through the media. We have a complaint about a doctor who absolutely refuses to consider the needs and priorities of a child whose father is a non-custodial parent and who knows his child very well. The father is here today. He can stand up if he would like. If he doesn't like, he doesn't have to. He will remain unnamed.

He has taken a very brave step. He is fighting a system that refuses to consider a non-custodial parent as having any value or worth whatsoever in the child's life. This is a man whose child spent 233 nights at his home last year. What I mean is that not every situation where non-custodial parents are involved with their children is the every-second-weekend situation. Most of them are, but you do have people like him who have extended access and visitation.

So there I go—

The Joint Chair (Mr. Roger Gallaway): Your five minutes has grown a lot.

Ms. Melynda Jarratt: Yes, I'm sure it has.

The Joint Chair (Mr. Roger Gallaway): That's very good.

Mr. MacIntosh, I hesitate to say five minutes after that.

Mr. Lane MacIntosh (Individual Presentation): Thank you, Mr. Chairman. I'd just like to say I'm on the second day of a gruelling diet and those jelly beans are looking pretty good.

I am a feature writer, a professional writer, and an idea consultant here in Fredericton. Thank you for the opportunity to address this committee. In keeping with my profession, I will be as clear and succinct as possible. After I finish, I'll leave you with one good pragmatic idea.

I'd like to read a letter I sent in February of last year to Peter Gzowski on “Morningside”. It's a very short letter. This was read to a national audience, which made me feel good, because it gave me an opportunity to speak for a lot of individuals who are blatantly being disenfranchised from their children's lives.

This is in response to an interview that was done with Senator Cools last year and is dated February 4, 1997:

Dear Peter,

I listened with great interest to your interview yesterday morning with Senator Anne Cools. Like thousands of other Canadian men and women who believe in the democratic principles upon which our nation is founded, Senator Cools has become a hero for me. By taking a stand against Bill C-41 as it is currently written she is helping me reestablish faith in my country, faith in the Canadian legislative system, and, most important of all, faith in myself.

Out of respect for my children, and their mother, I will not go into all the details of my story. It is enough to say that my ten-year-old son and eight-year-old daughter live in Victoria with their mother. When they left on Feb. 12, 1993, I was not told they were moving until I got the call from the airport just before they boarded the plane. I will never, ever forget the awful sound of the click hanging up the phone that night. I remember running outside into the cold night air, tears pouring out of my eyes, hoping to at least see the jet flying overhead. But all I could do was hear it. Like an arrow into my heart, the sound moved swiftly across the sky—westward.

• 0900

I was alone. They were gone.

When I was four my father was killed in an automobile accident. Because I was so young Peter, I don't remember much. I knew I was afraid though. I knew I was alone. It seems I have spent most of my life asking: Where did he go? Whatever happened to him? Questions that went unanswered until the birth of my children in 1986 and 1988. After that, that great gaping hole inside my soul was filled with joy and love. Just looking into their eyes made me feel whole.

And then there was that call. Click. Alone. Gone.

In the four years that have followed since that awful night, I have managed to make it through. I have even managed to tell the mother of my children that I forgive her for what she did. I know she is doing the best she can.

I have a good life here in Fredericton. I have a good job, many friends, a loving family and the love of a good woman who looks forward to my children's annual summer visits almost as much as me.

My children love me and, they say, when they're old enough they will come live with us. And I believe they will. But if they don't, I will try to understand. Just as I have tried to understand why my country, through the justice system, has told me I have no rights when it comes to my children. Cloaked in the legal jargon of the judge's decision is the real message—the subtext: “...your role as a father is solely as an economic generator. That's it. Nothing more. Nothing less. It's right there in black and white.”

Well the law is wrong because it shows a profound lack of respect for the rights of my children to spend time with me.

Out of my $39,000 salary...I invest about $15,000 a year in my children, including support payments, telephone bills and travel costs. Like thousands of other Canadian noncustodial fathers who do the same, I know it will pay off. We understand that our children need our love. Being close to our children, reading to them, hugging them and telling them we love them are important parental responsibilities. Child support means more than money. How many times does it have to be said? Please listen.

We are good, honest men whose voices, which reflect the pain we feel every moment of every day, are rarely heard. All too often these voices are silenced forever through suicide.

That's why, when I heard the law was going to be changed, I was encouraged. Surely, I thought, the lawmakers will understand that a father's love, a father's time should be considered. But the law passed by parliament last year reflects none of this. There is nothing that says “...you're important in your child's life—”

There is great concern in this country about setting up a two-tiered health system, but little concern about setting up a two tiered justice system. I fail to understand, for example, why my married male friend up the street is not legally bound to pay for his children's university education when, according to Bill C-41, I am. I gratefully accept the moral obligation of educating my children. But to be ordered by a court to do so?

That is wrong!

Thank God Senator Cools has been thoughtful enough, and respectful enough of the legislative system, to take the time to tell Canadians that some—not all—of Bill C-41 goes too far.

The current system of custody, access, support payments...is based on an outdated, 50-year-old social model. Everything has changed; we are a different society now. It's time we really paid attention to the best interests of children and make changes that will make it easier for Canadian parents to give their children all the love they can.

Thank you, Senator Cools, for upholding the democratic principles I believe in. And thank you all for listening.

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

We'll begin questioning with Mr. Lowther followed by Mrs. Finestone.

Mr. Eric Lowther: A sincere thank you to all the witnesses. Senator Cools got lots of accolades today, probably well deserved, I'm sure.

I have a question to ask all the witnesses that may not be fair, because I'm throwing a situation at you to which your time to react and think about is fairly short. However, I'd ask you to give us your first reaction, recognizing that you haven't had a lot of time to consider it.

• 0905

If there are two people married with children and they decide the marriage is not working any more and they want to go their own way, what would be your position if the family court required that with an arbitrator or an effective counsellor and child impact training given to the parents, a parenting plan that included a problem resolution component be developed before divorce proceedings could proceed into the courts?

Mr. Dan Weston (Member, New Brunswick Shared Parenting Association): I'd like to answer that, please.

My name is Dan Weston and I'm with the Shared Parenting Association. Essentially, the problem right now is that the system is backwards. You can't have meaningful mediation and counselling unless both people are operating on a level playing field where true negotiation can take place.

What we suggest at the Shared Parenting Association is exactly what you have just described but in a more modified sense. We feel that at the moment people who are divorced and separated are being thrust into a criminal milieu where their activities are being monitored.

You know, Andy Scott wants to eliminate petty criminals from the jail system. We don't want them filled with custodial and non-custodial parents who are running into problems with the law because they have not had a just adjudication of the situation involving their children.

What we feel is that there has to be an umbrella law, simply an umbrella law, called shared parenting. It's a natural extension of the family situation. The parents are still jointly responsible for their children, and in order to facilitate negotiation we have to take the children out of the power equation.

What we have in place now is a situation under shared parenting where, through state-supplied or assisted and also private enterprise consultation and mediation, parents undergo divorce education. They undergo the development of parenting plans. If it's a male who has not been involved very much with the caregiving of the child because they've been out working, such as Mr. Gallaway, for example— I did read an article about you a couple of weeks ago in the paper suggesting, sir, that you have children, and I know that you do a lot of travelling, etc., and you must feel at various times when you're away that you'd like to be with your children.

We feel that these roles that people are thrust into are roles that are based on the economy and on the historical development of these social roles in society. We feel that what we need to foster here is a situation where the family keeps control of the agenda and can continue to negotiate and that children are taken out of the power situation so that parents can begin to untangle their interpersonal problems from their ability to parent and their necessity to parent. We also believe that the child, as it grows older, should have more of a say about going back and forth. But parenting plans should come to some workable arrangement so that the family structure stays, even though the marriage identification with the family has evaporated, for the moment at least, between those two parents.

There's no reason, for example, when I go to court as a non-custodial parent that I should be proving in court that I am a good parent, when no one worried about that when we were living together. The fact that we two adults couldn't live together doesn't mean that I still don't have a great relationship with my daughter and my daughter with me. But all of a sudden, my fatherhood status is being challenged before the courts; my ability to parent is questioned.

I hope this answers your question. We feel there has to be a security umbrella where the agenda stays in the hands of the family, where the parents are actually forced to negotiate. They can negotiate whatever they want. If it turns out to be equally shared parenting, equal time, fine. If it doesn't, then there's compensation from one parent to the other. But the main thing here is that we all talk about the best interests of the child, but the best interests of the child are predicated on one thing much more fundamental and that is the right of the child to the whole family. The sanctity of a parent's relationship with his children and vice versa has to be respected by each parent. These are the kinds of things we have to foster.

You know, we changed the smoking laws before we changed attitudes, and lo and behold attitudes began to change. We do not wait for changing attitudes in order to change this particular paradigm called custody and access. Once you begin to change the paradigm, you begin to change the attitudes.

• 0910

As far as we're concerned, the marital status complaints we have been lodging and the fact that these are being taken up by the Human Rights Commission—seriously being investigated at the moment—mean that the effect of the custody and access policy is one of discrimination. The system is rife with it. It is throughout the system. Therefore, the law does have to be changed.

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

Mr. MacIntosh also wants to respond.

Mr. Lane MacIntosh: Thank you. I'd like to add a little bit to what Dan said.

I think as much intelligence and wisdom as is possible should be used vis-à-vis the children before a couple breaks up. We have to have plans; we have to have a strategy.

One of the things I've discovered, with 4,000 miles between me and my children, is that for me to exercise my access it's a remarkable cost. The one pragmatic, doable idea I would like to leave with the committee—and I challenge the committee to move forward on it—is for those parents who are separated from their children to be allowed to write off some of the expenses they incur to visit their children and to have their children visit them. Why on God's earth isn't this a tax deductible write-off? Surely it's perfectly natural that it should be.

I challenge the committee to look at that seriously. We can't give lip service to the fact that we support the family; we have to take some action here. I think that's one way the government can do that. That is a child-centred piece of legislation that could happen. It just takes somebody's signature.

I challenge the committee to look at that suggestion because it would encourage more people to visit their children. A big complaint about fathers is that they don't visit their children. I hear that in the media all the time. Let me tell you that it costs me about $12,000 to $15,000 a year to exercise my access. I have to make my child support payments on top of that. So that write-off would be a huge help.

I'll wrap up now, but I ask the committee to take a serious look at that idea.

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

Mr. Lowther, do you mind if we pass? We're under very—

Mr. Eric Lowther: No, that's fine.

The Joint Chair (Mr. Roger Gallaway): Mrs. Finestone, I have to warn you we've got to limit the time. We have a long list this morning.

Hon. Sheila Finestone (Mount Royal, Lib.): Thank you, Mr. Chairman.

I first of all want to say that you've brought a very well-founded perspective that we've been listening to, but you've articulated it extremely well, Madam Jelly Bean.

Voices: Oh, oh!

Mrs. Sheila Finestone: The question is, how do you, in the best interests of the child, redivide your jelly beans? Do the children go from one house to the other? Do the parents change houses? What happens when you come back into the mixed family? It is a very interesting visual display, but its practicality leaves much in question. And I just want to point out it's not as simple as the jelly bean story. I'm sure you're aware of that.

I want to thank you for your tax deduction idea. The point and goal of this committee is to look for experiences from people like yourselves that can give us some concrete recommendations to put before the minister for consideration. It is in that light that I will be rather pragmatic, warned by the chair, and move forward.

I want to say to you, young lady, that I know now why you're the valedictorian of your school. You are a very thoughtful, articulate, well-informed, and sensitive woman, because that's who you are today: a young woman. I have every confidence that the shared values you talked about and the learning...that the silent observers into these homes have some hope for tomorrow, although the research shows there is an unfortunate replay of the lifestyle they've been witness to. I hope that in some way the work we are doing might sensitize adults to how important it is to watch their tongues and their attitudes when they are personally having problems, because it does affect the children and it is repeated in the second and third generations. I wish you well in your schooling.

• 0915

I'd like to come to two issues. I was just delighted to hear about your success with the Human Rights Tribunal. I do believe the issues around separation and divorce and parenting are human rights issues and that the children fall right within those rights. I'd like to have recorded, please, the case that you referred to, the hearings that were before your human rights tribunal here in New Brunswick, for the record. I would ask you to please deposit the case into the record.

Secondly, I'd like you to tell me if, in your view, the use of the Human Rights Commission findings will be more constructive for parents to use, rather than going to the family court.

Last but not least, I want to know how you think access rights can be attributed, particularly where there needs to be visitation that's supervised, in provinces and in remote regions where there is not proper staffing.

Ms. Melynda Jarratt: Okay, I'll try to remember your first question—

Mrs. Sheila Finestone: You probably should take a pencil and paper.

Ms. Melynda Jarratt: With regard to the human rights complaints, there have been two officially accepted and two threatened, and they worked. The fourth one, which I've mentioned, the gentleman standing behind us here—

Mrs. Sheila Finestone: Could we have the names of the cases, please, and the dates?

Ms. Melynda Jarratt: The first case at the Human Rights Commission was Weston v. Health and Community Services, June 6, 1996. The second case was a complaint to the RCMP, and the documentation is here—

Mrs. Sheila Finestone: That's fine, but the people who are reading the records need to know.

Ms. Melynda Jarratt: Okay, I'm sorry. Well, it was the New Brunswick Shared Parenting Association that brought the RCMP issue forward. Mr. Weston also brought the report card issue forward, and now Mr. G., who will be unnamed, is the person who is bringing the fourth case forward. That is Mr. G. versus also an unnamed doctor, who we do not want to name right now, but let's just say Dr. M.

Mrs. Sheila Finestone: This is on the health care issue, or a health card issue.

Ms. Melynda Jarratt: The health card issue was Weston v. Health and Community Services. The case of the prescription of Ritalin, to which the non-custodial parent objected, is Mr. G. v. Dr. M. Those are in the records of the New Brunswick Human Rights Commission in Fredericton, New Brunswick.

You asked me about whether this was a good avenue to take rather than family court. Well, you have to understand that we're talking about service delivery here, which is different from, say, the custodial parents saying they are just going to be disagreeable, or whatever. We're talking about professionals in Health and Community Services, for example, the police, educators, who deal with children and parents every single day in their professional lives and who have decided in their minds that non-custodial parents don't count. This is what we're calling discrimination on the basis of marital status. It's very important. It's not sex; it is not because he's a man—

Mrs. Sheila Finestone: No, I would suggest that you're— I'm very pleased that you brought the gender issue into the picture, because I do not believe it to be a gender issue, although a lot of people would like to make it into a gender issue.

Go ahead, please.

Ms. Melynda Jarratt: We have gone in under the marital status provisions of the Human Rights Act on purpose to point out how obvious this is, that it is because the parents aren't married any more. That's the only reason the service is not being provided. If they were married, they'd have to have the service provided to them. For example, in this man's case, I was present at a meeting in which the doctor said, “I don't have to listen to you. You're the non-custodial parent.”

Mrs. Sheila Finestone: So do you believe we should be changing the nomenclature as well?

Ms. Melynda Jarratt: Absolutely. I think terminology such as “custodial access” has to change. In the attachment you will find new proposed draft legislation that another person is going to be speaking about here this morning, Mr. Giovanni Merlini. We have the proposed legislation to replace the present Family Services Act and Divorce Act, which deal with custody and access after separation and divorce. It is a shared parenting model. It provides equally for both parents and it takes out all this—

Mrs. Sheila Finestone: It therefore removes the whole question. Do you take the question of violence and sexual abuse out of your shared parenting program?

Ms. Melynda Jarratt: Well, we address the issues of violence and sexual—

• 0920

Mrs. Sheila Finestone: Do you suggest a list that would be helpful to define the best interests, as guidelines?

Ms. Melynda Jarratt: I think we could do that, yes.

Mrs. Sheila Finestone: Would you please look at that, and would you include the question of mobility and job access?

Ms. Melynda Jarratt: Yes.

Mrs. Sheila Finestone: Thank you very much.

The Joint Chair (Mr. Roger Gallaway): Mr. Mancini, followed by Senator Cohen.

Mr. Peter Mancini (Sydney—Victoria, NDP): Thank you.

There is one point that I do think I have to make, and this is in particular to the question from the last witness, Mr. MacIntosh. A statement we've heard over and over again is the question you ask: why is it that my neighbour up the street isn't forced to pay for his child's education and I am because I'm non-custodial? I think that's a misnomer, and I say that for this reason.

I was a lawyer practising family law before I came to this. Children, at least in the province where I worked, have the right to seek support from their parents. I think we have to put this on the record, so that if two parents who are married decide they don't want to pay for their child's post-secondary education, that child has a right, through the family court structure, to seek that maintenance.

I say that because there's this image growing that because one parent is non-custodial and the other is married they don't have the same obligation to fund their child's post-secondary education, and that is incorrect, at least in the province in which I practised. It's just that the party who is seeking the support in one case is the custodial parent; in the other it can be the child himself.

Mr. Lane MacIntosh: Thank you very much. I remind you that this letter was written a year ago in response to a lot of media reports—

Mr. Peter Mancini: Sure, and I appreciate that.

Mr. Lane MacIntosh: —of the possible changes in Bill C-41.

Mr. Peter Mancini: But parents have that obligation whether they're custodial or not.

To the shared parenting group, I have a question. And, Alison, I'd be interested to hear your views on this as well.

When we look at the best interests of the child, what many of the studies tell us is that almost as important as anything else is consistency in parenting. In every parenting book that I've read—and I'm the father of three children—consistency for the child in understanding when they've done something wrong, what the ramifications are in terms of discipline, consistency in all aspects of the child's life, is important. I think when we talk about mobility, when we talk about neighbourhoods, the reality in some situations—

I also think we have to say here we're talking about those situations where the parents can't agree. That's why they end up in a courtroom. That's why there's sometimes one parent who is not happy with the arrangement. If they could come to their own agreement and work out their own joint custody, shared parenting arrangement, they have that. But what we're addressing here are the cases where the parents cannot do that and consequently need either mediation or an arbitrator who happens to be a judge.

In a shared parenting arrangement, how do we address the consistency issue? One parent, when the child is with them, may feel, “Here's how we approach the fact that in their report cards the kids aren't doing as well as they could” or “Johnny stole a chocolate bar from the store and he shouldn't have, and here's how I'm going to address it”. Now, the custodial parent may address it in a different way, and if we're looking at the best interests of the child, surely there has to be consistency in the discipline and in the raising of that child. If we have two parents in two homes who have an inability to come to that agreement, isn't it the child who will suffer without that consistency?

Mr. Dan Weston: May I answer that?

Mr. Peter Mancini: Sure.

Mr. Dan Weston: First of all, my daughter calls my place home and calls her mother's place home, even though, as you see, she only spends a few hours with me. I think that if I lived in an alleyway and she was standing by my side, she would say she was home even though she'd be very insecure.

Mr. Peter Mancini: I appreciate that. I guess my question is, when you have to make a fairly quick decision to deal with your daughter, is your reaction going to be the same and consistent, in the same way and with the same values, as that of the other parent?

Mr. Dan Weston: How many married couples do you know who have some disagreements on how they're going to discipline or relate to their children?

• 0925

A voice: Go ask your father.

Mr. Dan Weston: How many do you know?

Mr. Peter Mancini: All sorts. We could get into this, but I think what happens in that situation is the parents are just looking at each other saying “How are we going to deal with this”?

Mr. Dan Weston: That's right. That's what we're saying. With shared parenting the parents still get together. They may hate each other's guts. They may not like each other at all interpersonally, but they get together to talk about their parental responsibilities. They have to because they've had these children.

Today, under the custody and access regime, you don't have that. The responsibility for the child is foisted on one person, and the other person becomes a childless parent.

Mr. Peter Mancini: This is why we have custody. I don't mean to sound like I'm defending the status quo. I'm looking for answers here, but when the parents are unable to agree on the course of action, what do you do?

Mr. Dan Weston: I have been through mediation 15 times, and it's not mediation, because unless the custodial parent agrees to do something, nothing is done. The mediator throws up their hands, looks at me and says “She doesn't want to do that”. Okay so I don't get Friday nights to go with my Saturdays.

Mr. Peter Mancini: But accepting that consistency is important for the child, if the parents cannot agree, doesn't one parent have to have the final say? Doesn't somebody have to have the final say?

Mr. Dan Weston: All right. You don't eliminate custody and access. You don't eliminate sole custody from this equation. It is the option of absolutely the last resort. Everything else comes before that, especially mediation, counselling, etc. We feel the only way this can happen on an equal basis is if there's a level playing field where the children aren't used as weapons. They're taken out of the power equation. If one parent is still trying to lord it over the other, then they have to go through mediation.

Mr. Peter Mancini: Okay. Alison, if you could respond to that, I would be interested. I'll close my questions.

Ms. Alison Grenon: I don't really have the big words and all the experience everyone has had. I'm not educated at that level yet. I don't have my own kids, so I can't tell you what they may have gone through, but I've seen a lot as a child. I'm going to again put the point that children are being ignored because we are young and don't have a lot of experience. When we voice our opinions or say we need something, our parents shush us and tell us we don't know what we want yet, we're not old enough. We're not being oppressed, repressed or whatever, we're being just plain ignored. We're not being listened to.

I am in a household where they talk about this a lot at night. Of course, the parents need to see their children, but they put their needs first before they ask the children what they want. When they go to mediation—I was going to say meditation—

Mr. Peter Mancini: That sometimes would be helpful too.

Mrs. Sheila Finestone: I think it would be a good idea to meditate.

Ms. Alison Grenon: Yes, they should meditate before they go to mediation.

Maybe we should bring the child in with them and have all three parties, instead of just two parties. The kids will follow whatever we say, but the kids get frustrated when they don't understand what's going on. They can run away and be a lot of trouble. Then it causes more trouble for both parents.

Maybe the parents should learn the basic value of sharing. Go back to the first thing every child learns: share your toys. It's something everyone should relearn as parents, because it doesn't necessarily mean that when you get divorced or separated—

I know for my generation there won't be a lot of marriages because we've seen how much trouble they are. We don't want to make the same mistakes as our parents. Sure, everybody dreams of the perfect marriage, the big wedding, the children, the love and everything, like Celine Dion, for example, and the $3 trillion wedding.

It's hard on the child to know their parents are arguing over them because they can't agree on sharing them. The only thing a child wants is to see both their parents. That's it.

• 0930

They don't understand why they're arguing. It's like, “Shouldn't I be considered in the entire mess? It's me you guys are arguing over.” I'm just using myself as an example here.

I need to see both parties. Why doesn't anybody ask me my opinion? Why doesn't anybody ask me what I need, what I want, instead of arguing over everything? Sure, the parents know what they want, but I find that the child's needs are being ignored and avoided.

Mr. Peter Mancini: Thank you.

Ms. Melynda Jarratt: Could I just say something, please?

I think shared parenting plans are central to this answer you're seeking. I think we need to have a plan to share children after separation and divorce, which is completely ignored in all of the so-called mediation, the family services acts, and all that stuff. There's no discussion of a plan.

When I see a pregnant woman these days, I automatically think, have you thought about what you're going to do after you get divorced? I'm getting to the point now where this is what I think, but of course I don't say it to pregnant people because I know they're in love now. Wait until later.

I really think we need to start talking about this right from the start. They identify children through the education system as needing this, that, and the other thing. Let's start identifying them as needing a little bit of assistance when it comes to these issues.

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

We're going to end this. I'm sorry, Senator Cohen, but we have to try to maintain our schedule, and we will take that into consideration on the next round. I know your name was on the list.

We're going to break now for about seven minutes, and we're going to have to enforce that, so that everyone in the room can have a stretch.

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• 0941

The Joint Chair (Senator Landon Pearson (Ontario, Lib.)): We'd like to welcome the witnesses for this session to the table. Representing Research and Advocacy Services is Tasha Barnett and Vaughn Barnett. From the University of New Brunswick we have Professor Jim Richardson, the chair from the Department of Sociology. And Mr. Giovanni Merlini is a lawyer.

Would you two like to start with five minutes if possible? It's more because we want to ask questions, so the longer you talk the less time we have.

Mr. Vaughn Barnett (Research and Advocacy Services): We'll try. First of all, we'd like to draw your attention to our written submission, which you may have with you—I'm not sure. Our presentation is summarized in the last two pages of that submission. You should find a chart and some tentative recommendations.

The title of our paper is, “A Third Crusade”. The reason why we have chosen that title is because we want to place the child custody and access issue within the context of the progressive movement, because obviously what we are seeking here is a socially progressive resolution of the child custody and access issue, or I should say issues.

I don't know if you have that chart with you, but it shows the progressive movement set out in three phases, and I would just like to summarize that quickly. The first phase was of democracy being sought only for the physically and socially powerful, and of course that would be mostly men. It has a civil libertarian emphasis, and it has provided a somewhat dubious benefit of protecting families from outside interference. But for that very reason, as a lot of men do treat women and children as their property, the result has been that even up until the twentieth century a man could abuse and finally abandon his wife and yet still get sole custody of his children. That definitely was not a satisfactory way of addressing custody and access issues.

During the second phase of the progressive movement, democracy has been sought also for those without physical power but who were able to empower themselves socially. Here women were able to come to the forefront more. The central theme here was the equality of men and women, as parents and otherwise, so there was a shift in the presumption regarding custody from sole custody for the father to sole custody for the mother.

This is essentially where we're at now, and what we're suggesting is that it is time to look at promoting a third phase of the progressive movement, where democracy is sought for everyone, regardless of physical or social power, and of course children would be a large part of that group. Here the central theme would be equality of men, women, and children. The emphasis of reform would be child centred. The model of the family would be one of father, mother, and children, all as equal members of the family unit.

What we are proposing is that the presumption regarding custody, which is appropriate for the third and most inclusive phase of the progressive movement, is one in favour of equally shared parenting. We feel it is progressive because, first of all, and most importantly, it respects children's equality with adults by taking seriously their need to continue a full relationship with both parents. At the same time, we recognize that feminists have valid concerns about division of parental responsibilities and so on, and we are recommending that these kinds of issues be addressed within the framework of equally shared parenting so that children's rights and needs are still respected, but at the same time we can ensure that equally shared parenting is truly equal in a broad comprehensive sense rather than in a narrow sense, which only reinforces male power.

So it's from that more inclusive, progressive standpoint that we make our recommendations, and they are tentative because we recognize the complexity of this issue.

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Ms. Tasha Barnett (Research and Advocacy Services): I'm going to read the tentative recommendations, which are on the back page:

A. Legislate a rebuttable presumption in favour of equally shared parenting upon separation or divorce, to be overridden only by mutual consent, by opting out as a non-custodial parent, or by a judicial finding that shared parenting would probably harm a child more than would a disruption of the parent-child relationship.

B. Provide, for the sake of greater fairness, that the shared parenting presumption will be conditional on the following:

i) that both parental rights and child care responsibilities will be shared equally by both parents and will be co-extensive;

ii) that the separating partners will divide their combined household incomes equally, so that their children may enjoy equal resources at either home (subject to discretion only beyond the point where this equalization would require support payments disproportional to the income left over for a second family);

iii) that abusive or controlling behaviour by one ex-partner against another will be strictly prohibited, and will be accompanied by a penalty, for the sake of both the victimized ex-partner and the children, of having to forfeit any or all rights to shared parenting.

iv) That separated partners will have the right to agree to their own parenting arrangement, equal or otherwise, as long as a judge or other legislatively qualified third party is satisfied that the agreement was made on the basis of equal bargaining power.

C. Guarantee independent representation for any child at risk of being removed from one of her parents by a custody award, and/or guarantee legal aid for each parent as needed, to ensure adequate representation of all the child welfare issues raised.

Thank you.

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

Professor Richardson.

TV New Brunswick is here to take a little footage of our hearing. Do members agree? Is that all right?

Thank you. Go ahead, Professor Richardson.

Professor Jim Richardson (Chair, Department of Sociology, University of New Brunswick): Thank you. I was more or less asked to come to these hearings in the sense that I don't have a particular set of issues that I wanted to promote in terms of reform, but rather to talk perhaps a little bit about context. Initially it was suggested that I talk about unified family courts, partly because I've done research in and on these courts, and of course New Brunswick is unique in that all of our family courts are unified throughout the province. But it seemed to make more sense for me, and maybe be a more efficient use of my time, to talk briefly today about some of my observations from having done roughly two decades of research on family law. In particular, I mentioned the evaluation of the Divorce Act in 1985, which was a two-phased project in which I was the principal investigator for both. In the last few years I worked on a provincial study on our child support enforcement system here in the province and our domestic legal aid program, which assists people to get out of violent situations, violent marriages.

The point I'd like to make is one that you've probably heard a number of times, and in a way listening to CBC a couple of days ago—Monday night, I think—kind of reinforced the idea that at least it's worth my repeating it. The point is simply that I think our policies and our debates to a very large extent are driven by the exceptional cases rather than the norm, and I think there sometimes has to be at least some reflection of that.

• 0950

When the reports were released and we made some presentations on the Divorce Act, I was quite intrigued at the time with the extent to which people were unwilling to accept these findings. They didn't disagree that the research was there, but it appeared to be very irrelevant to various status of women groups, to father's rights groups, and indeed to mediation groups, who'd all had a vested interest in influencing the direction of the then divorce reform.

That was my conclusion at the beginning of the decade, and I guess as I listen to what I've heard about these hearings, which is only partial, it seems to me little has changed. Groups are very often talking past one another, or are basing their conclusions on what I guess as a sociologist I would call suspect methodologies—particularly anecdotal evidence, personal experiences, and what are essentially unsubstantiated and largely ideological kinds of claims.

What began to occur to me as I thought back about this state of affairs is that really what we're looking at, I think, is a very important change taking place in the way in which we deal with knowledge. Feminism in particular I think has challenged most of our orthodox quantitative approaches in social science and has tended to replace these with notions of qualitative research, lived experience, and so on. This is not to denigrate that kind of research, but rather to suggest that it creates some problems for us in generalizing about the divorce process.

I did give out prior to coming in today—and you may have it—a list of what I call sort of unsubstantiated views. Later, if it's of interest, I can fill out some of the gaps in that. I haven't included the data or the evidence or the arguments that show that most of those are unsubstantiated, because given the time, I don't think I can manage that.

I guess where I'd like to end, then—and I'll come back for questions later, of course—is that I think it's very important that Canadians have been given a chance to air their views and to make input into policy formation. Altogether too often policies are made between think tanks and government, and the public are not consulted.

But I urge the committee to look very carefully at the evidential base of many of the submissions that have been made to it. As the brief from the National Association of Women and the Law points out—and there are many other things I disagree with in that report—if I can just finish their line or their statement, it is important to not design a system around problems that occur in a small minority of cases. I would make this my conclusion as well.

Thank you.

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

Mr. Merlini.

Mr. Giovanni Merlini (Individual Presentation): Thank you. I might as well pick up from where Professor Richardson left off, in the sense that I hope to present a view that's practical and that is based on not the exceptional cases, but on the 90% at least of parents out there who are good parents.

In three words, this is what I advocate. It's right in the title of this book. It's called Putting Kids First.

First of all, to restate the problem a little bit, and why this committee is together, I think the very name of this committee states the problem: “Special Joint Committee on Child Custody and Access”. In other words, you have an old stereotype, and that's documented in this book.

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I don't want to go through all the sociological evidence. The stereotype “Daddy goes to work and Mommy stays at home” gives rise to laws that allow a judge to choose between one or the other as to who will be the custodial parent, who will have all the decision-making power, and who will be left with access—and access is the first six letters of the word accessory—left with the accessory role of visitor. In French—look at your title—it's called le droit de visite, and immediately you're talking about a privileged type of situation whereby you really have a say. You have Judge L'Heureux-Dubé of the Supreme Court who has said that the custodial parent has all the decision-making power. You have Julien Payne, an authority on divorce law, who has said that as well.

I hope to propose a solution, but first I want to give you a couple of examples, just to show you what we're dealing with. I work for Maritime Law Book Company, by the way, the publishers of a lot of legal reports.

A husband and wife with a three-year-old child separated after approximately five years of marriage. The husband was a radio announcer earning $869 per month. This is a 1987 decision, by the way. He shared a loft with two male friends. Custody and access is being decided on here.

His wife, who was a dispatcher with the police department, earned $1,342 per month, lived in her own apartment, and had a regular babysitter. The New Brunswick Court of Queen's Bench granted the wife sole custody of the child. The court refused to order joint custody on the grounds that it would be detrimental to the child's need for continuity and stability. The court stated that it is not prudent to provide for joint custody unless both parents can demonstrate that they understand reasonably well the meaning, the responsibilities, and the ramifications attached to joint custody. Moreover, they should be prepared to show that each is willing and able to cooperate in making the arrangement work.

Well, I'm not here to advocate joint custody. In fact, I'm here to advocate shared parenting—in other words, a time-sharing arrangement.

To get back to our example, let's take a compassionate approach to both parties here. This, I think, is what is missing in the law and in the system today—a compassionate approach. That poor mother is probably saying, “Look, I can't have the three-year-old in a loft with two male friends. Does he have a bed? Does he have a changing table or whatever is needed?” And the father is probably thinking, “Gee, I'm earning less. I have to share this apartment to get my life in order.”

I'm trying to propose a system, and since I only have five minutes, let's go through the proposed legislation. I've decided, rightly or wrongly, to rewrite the law. It's based on empirical evidence, on the many people I've heard in my daily life and in meetings I've attended of groups that promote equally shared parenting. It's based on that.

First of all, let's go through this legislation. Let me explain it to you, and then you'll see how it really addresses the issue of how to put kids first.

Of course, all is not lost in the law. There are some laws, namely in Quebec and in Washington State— The Quebec Civil Code says every child has a right to the protection, security, and attention that his parents or the person acting in their stead are able to give him. And there's the Washington State legislation that provides that any person who's applying for separation has to submit a parenting plan. I only have one copy, and it's pretty thick. I'm sorry if I don't have a copy for you.

The Joint Chair (Senator Landon Pearson): It's all right. We have a copy of that.

Mr. Giovanni Merlini: You have a copy of that? All right. It's wise to look at it.

Now, the draft I propose is based on the New Brunswick legislation, but just change the numbers, and you'll have it for the Divorce Act:

129(1) Where a child has more than one parent, both parents shall equally share the parenting responsibilities concerning their child, whether they live together or live separate and apart.

Note right away that the words “custody and access” are out. “Best interests of the child” is out, because here a choice is made as to what the child is entitled to, and it's in 129(2) or section 16 whatever of the Divorce Act:

129(2) If the parents of a child are living separate and apart, equally shared parenting shall be accomplished by the child residing alternately with each parent for periods of time conducive to his overall stability and a proper relationship between the child and both his parents, by the parents equally sharing their decision-making authority and responsibility toward the child and neither parent shall remove the child from the province.

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Subsection 129(3)—here's how to put that in practice:

129(3) The parents shall, by written agreement, set the terms and conditions of their equally shared parenting.

For example, two weeks here, two weeks there, or three months here, one month here, whatever. It's a time-sharing arrangement.

If the parents are unable to reach agreement, the court shall appoint a mediator to help them reach agreement. If agreement cannot be reached

—and this is very interesting—

each parent shall submit a proposal to the court who shall issue an order setting the terms and conditions of equally shared parenting on the basis of the most reasonable proposal before it.

That puts right on the parents the burden of coming up with something reasonable for the children.

Now, we've heard the young girl testify a minute ago, saying “I want to see both parents”. This is, I hope, a legal framework to make that happen.

Subsection 129(4): You make your agreement according to the objectives set out in here, namely time sharing, proper stability, proper relationships.

Next is subsection 129(5)—and I'm sorry about deficit-cutting measures, but I'm slashing right into that:

129(5) The Minister shall make available mediation services to parents who wish to use their services when making an agreement under this section

The minister shall pay. That's what I'm saying. If the minister can pay for mediators and conciliators in labour disputes, he can pay for a mediator in a family dispute.

Subsection 129(6) states that:

disagreement in the interpretation of any agreement or court order under this section shall be resolved by an arbitrator chosen by the parties.

I'm looking here for a way of not returning to court when there's a problem in interpretation. I have chosen arbitration. Now, some people have told me you should add a mediation aspect right there. I'm open to it; this is just a draft.

The arbitrator shall choose the most reasonable proposal—

Mrs. Sheila Finestone: —

[Editor's Note: Inaudible]— mediation and conflict resolution. Okay?

Mr. Giovanni Merlini: Yes.

Mrs. Sheila Finestone: So if you have conflict resolution, mediation, and arbitration, I'd like that.

Mr. Giovanni Merlini: I'm adding it—no problem, Mrs. Finestone, no problem. You have it right in your brief. It's right there, 129(5) and (6), and I will just add mediation and conflict resolution.

The court is the worst place for the children, and I know that myself. I've been divorced. I have three children from that situation. It took us a year and a half to hammer out a deal, and boy, thank God we didn't go to court. It's not the best deal in the world, I might say, but much better— As a lawyer, I can tell you—and if there are lawyers here, they'll tell you—a lousy settlement is better than a good triumph.

The Joint Chair (Senator Landon Pearson): Mr. Merlini, don't lose your time on comments, please. You're already over your time.

Mr. Giovanni Merlini: Okay, let me go through.

Subsection 129(7):

129(7) Any parent may, because of evolving circumstances, request a change to an agreement or court order under this section. The other parent shall not refuse his/her consent to such a change unless there is a valid, practical reason to do so.

For example, abuse.

Let's go back to our example of a minute ago. The man now has a better job. He's out of the loft with his male friend and has a better apartment. He has to go back to court right now to change the arrangement. What I'm providing here is a way of doing it that puts the parties together again, avoids court, and gives the child both his parents.

Mrs. Sheila Finestone: —

[Editor's Note: Inaudible]—

Mr. Giovanni Merlini: That's coming down. It's a couple of subsections down.

Subsection 129(8):

In no case may the father or mother, without a grave reason, interfere with personal relations between the child and his grandparents. Failing agreement

That's taken out of the Quebec Civil Code, by the way.

Subsection 129(9)—this is where we come to the administrative part and then subsection 129.1(1):

Any person violating this section or an agreement or court order made under this section shall be subject to one or more of the following penalties:

(a) a fine of up to

I don't know the numbers; let the experts decide on that one.

(b) loss of passport, driver's licence, hunting licence

(c) contempt of court

If you violate your—

Mrs. Sheila Finestone: We already have that.

Mr. Giovanni Merlini: You already have that.

Then subsection 129.1(1) is your administrative enforcement procedure, which you were referring to.

I hope I haven't exceeded my five minutes.

The Joint Chair (Senator Landon Pearson): You have, but it's all right. It's always hard to calculate time in one's head.

Senator Cohen, please.

Senator Erminie Cohen: Thank you very much, all of you, for your presentations.

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Mr. Merlini, do you believe the child should have rights when it comes to the court procedures and separations? I don't really see that spelled out here. Our divorce laws really ignore the rights of the child. The child has rights, the parents have responsibilities, and I don't see that addressed.

I just wanted to get your opinion on that, and I would also ask Professor Richardson.

Mr. Giovanni Merlini: This is a draft that comes from having listened to many people, and my idea is based on the point of view of the child having both his parents. It's based on that.

Senator Erminie Cohen: I understand.

Mr. Giovanni Merlini: I think you're right in saying it doesn't mention the rights of the child. Maybe it should be spelled out, and frankly, I have tried to keep this short for everybody to understand.

Senator Erminie Cohen: It should be spelled out, because the child is not property.

Mr. Giovanni Merlini: That's right.

Senator Erminie Cohen: The child is not a property or a commodity. So I think if you want to include the whole unit, that has to be included, because we're looking at the best interest of the child, and it's been ignored, even in this new divorce law.

But I want to commend you on that.

Mr. Giovanni Merlini: With this, I'm just trying to say, all right, how can we provide— I had a phone call from the registrar in the Court of Appeal, and he read this and said, “How do you protect the best interest of the child here?” And I said, “This whole thing is based on it. It's a way to give the child his parents, which is in the best interest of the child.”

Senator Erminie Cohen: Dr. Richardson—or Professor Richardson. I don't know if I've made you a doctor or not.

Prof. Jim Richardson: Well, I am a doctor.

I think one of the most important changes in the 1985 divorce legislation was to do away with parental rights to their children, which is another way of saying they were somebody's property, and to make children's interests the major criterion.

I'm a little nervous, though, when we use the term “children's rights” in that I'm not entirely sure, finally, what we mean by that. Do we really, really mean that children have rights? As we heard from the young woman this morning, she wants her parents to stay together and she says most children want this, and clearly it's not going to happen. So almost from the beginning, it seems to me that children's rights are more of an abstract concept than what's going to make much difference, especially for young children.

So I think children's rights are a little bit of a hollow notion.

Senator Erminie Cohen: What if, during a court procedure, the child, who's 10 and who's able to make a fairly substantial statement, says, “I don't want to live with my mother, I want to go with my father”, or vice versa. Does that child not have the right to have her or his opinion heard by the court and the judge if there's a specific reason, or is that an abstract question? That's what I mean by rights. A child has to be heard.

Prof. Jim Richardson: It seems to me that's a situation to be avoided wherever possible, because it puts children in a terrible bind to ask them to choose one of their parents over another.

Senator Erminie Cohen: I agree.

Prof. Jim Richardson: I think, at the same time, it's a very vague set of guidelines, but surely within those guidelines for establishing the interests of the child is to hear the child's views on where he would like to live, etc. So I'm not sure that isn't there already.

Senator Erminie Cohen: Okay.

Mr. Vaughn Barnett: Yes, I believe children should not only be heard but should have legal representation in all of these situations. We believe in that principle when someone is at risk of being taken out of society and put in prison, and to some people this is worse than imprisonment. In fact, some parents have been willing to go to prison instead of losing their children. So if this is that important to these people, and especially to the children, then they should have representation that's separate from the representation given to the parents and even all the other adults. I think if you have someone there specifically representing the child, then that person can look at the child-related issues you're referring to.

Senator Erminie Cohen: We've heard from some witnesses—and I'll be finished in a minute—speaking of the child advocate, that in the old system and in years gone by, it was the parents who were fighting with each other for individual rights, and the child was the pawn. It was more dollars than it was the best interests of the child.

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So maybe if we change this legislation so that spirit is there, we won't need the child advocate, as the professor said. But in the meantime, I think we should take a strong look at that, because I'm very much in favour of the child's voice being there somewhere, whether privately in the judge's chamber or whatever.

Thank you so much for the opinions.

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

Mr. Lowther.

Mr. Eric Lowther: Thank you.

I want to thank the professor for his examples on widely held views. In all of these testimonies, I think, it's hard to sift through everything to get down to the facts.

As I understand it, what you've given us are positions that are held but can't be substantiated.

Prof. Jim Richardson: I would say that some of them are simply wrong.

Some of them need heavy qualification. And if I could just pick one of them, men generally want more access to their children, which is certainly a fathers' rights position. I think there's no doubt that some fathers feel very aggrieved and have had a very raw deal in the courts. But it seems to me that the bigger social problem for children isn't a small group of fathers who do not have full access to their children or even full rights, perhaps de facto rights, to joint custody. The real issue is that a very large proportion of fathers don't exercise their access rights, or they do it very irregularly and unpredictably. We learned in our—

Mrs. Sheila Finestone: Do you have percentages and figures for that?

Prof. Jim Richardson: I don't have an exact figure with me today, but I would say that probably upwards of at least half of the mothers we interviewed said that the father did not have any contact with the children.

Mr. Eric Lowther: I guess—

Prof. Jim Richardson: Anyway, that's all I will say about that.

Mr. Eric Lowther: Yes. These statements you've made here are fairly profound, and I think that just as you've given them to us, it's not enough. If you're willing to and can do it—

Prof. Jim Richardson: Yes.

Mr. Eric Lowther: —if there are some supportive studies, data, research, whatever, that can—

Prof. Jim Richardson: Yes, those blanks are not filled in.

Mr. Eric Lowther: —bring more substantiation in, I think that would be appreciated by the committee for further review.

Before I leave my question time, Madam Chair, I'd like to also ask a question of the Research and Advocacy Services. We seem to have a kind of a theme going here this morning on this shared parenting idea and the parenting plan and this kind of thing. I'd like to get some feedback from the advocacy groups and perhaps from you, sir.

We have a set of parents, still together, but thinking of splitting. They're at stage one. There are a number of stages here. I want to know where the shared parenting plan or the plan idea comes together. Where in the sequence of events do we build this plan?

They can decide to separate, become legally separated and sometime down the road file for divorce. If that doesn't work, they may end up in court for court orders for various kinds of custody, access, and other problems. They may repeatedly go back to court when those orders aren't enforced or when somebody wants to change them. We have all of these various steps in the cycle. Where does the shared parenting or the parenting plan or whatever we want to call it come in the cycle?

Ms. Tasha Barnett: It comes at the very beginning of the process. It's kind of like what Melynda was saying: someone who's pregnant needs to think then what would happen if she were to separate or divorce in order to try to keep the family unit, the parental contact, in place. By recommending that when people are thinking about separating to have some kind of training or course— That kind of thing should be mandatory for individuals.

Mr. Eric Lowther: Great.

Mr. Giovanni Merlini: I really can't add much more. I agree with the fact that with respect to equally shared parenting you have to come up with a parenting plan at the beginning of the process.

Should it be on a technical thing after you file for your separation or your divorce? Or how many days afterwards? That's technical. As long as you do it at the beginning, as long as you provide both of these people, who are at a very low ebb emotionally—I've been through it myself and I know—with assistance right there at the beginning, in the form of either a parenting course—

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For example—I'm trying to keep the gender issue aside—if you have one parent who has not been that great a parent during the marriage and who suddenly finds out that he or she will not see the children as often, that person might suddenly become a really good parent. It's a wake-up call for them. Good. Let there be a wake-up call. Maybe they'll be better parents after separation. Good. Let that happen. Let's have this assistance right at the beginning.

Mr. Eric Lowther: Thank you.

Professor, do you have a comment on that?

Prof. Jim Richardson: Just a quick one. I think it's probably unrealistic to go to the pregnant young woman and give her advice on what her divorce is going to be like. Certainly, with respect to my students, the 18-year-olds taking my family course don't listen the same way the 30-year-olds do.

Having said that, I think there's a real role for mediation in working out the details of access arrangements. Our research showed very clearly that the major contentious issue was not custody itself or who got custody, but how to work out those access arrangements afterwards. The need for post-divorce counselling and post-divorce education is very pressing, I would say, for very many parents, who are often very well-meaning parents.

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

Ms. Finestone.

Mrs. Sheila Finestone: Thank you very much.

I really am delighted that we have some guidelines we can look at. I'm particularly interested, however, in the guidelines that are not closed and that would define in some more specific measure what “the best interests of the child” means.

As Madam Abella said, changed by the Supreme Court, we are left with a void in legislative law as to what really is in the best interests of the child. We have heard from many that this needs to be better defined, with which I totally agree. I also agree that hard cases make very poor law and I think we have to be very careful to use the hard case to determine good law.

On the other hand, there have been a number of cases that say the changes we have brought with the taxation law—the change in taxation of child support and the deductions in terms of income tax—have brought with them many new variables. People say that to use and change the present Divorce Act at this time, until we see the impact of the changes in taxation law, would be counter-productive. And they say that we need some time to ensure the access-to-justice arrangements are properly put in place.

The whole question of legal aid rights or child advocates' rights or shared parenting or joint parenting with planning— With respect to all of this, there are aspects of it where judges who would be properly trained and far more sensitive could use the present act with good judgment rather than changing everything, until they've had a period of time to adapt to the changed tax circumstances.

The inflow of new tax dollars to the treasuries at both the federal and provincial levels should be looked at as tax revenue that should be dedicated to filling in the gaps and holes that exist within the present services across the land. Hearing about mediators and trained mediators, appropriate styles, arbitrators, the question of having a proper right to legal aid if you are financially incapable of having a lawyer— There are all these things for which services need to be put in and put around the present Divorce Act, and it needs about four or five years to work out under the new system.

The new system, they also indicate, doesn't establish the presumption that parents will go to court. There should be some consideration of an administrative body that would revisit the changing financial plan, because there are changes. Divorce usually takes place in the younger years of a family. The children grow and age and their needs are different, and the parents change jobs, and the issue of mobility is a very serious one.

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In summation, I'd really like to ask you—because you have written and given us some suggestions—whether you accept the fact that any form of real change right now should not be made until the present bugs are worked out with additional financial improvements around the present bill. We have to recognize that while divorce is federal—and that's where we have to address ourselves—you have to address yourselves, as did the groups who appeared before, to the human rights tribunal to ensure there will be a right to access and a right to service in given cases where there are single parent families now, or let us say, residential parents versus non-residential parents.

Mr. Giovanni Merlini: It's incredible how, in five minutes, you summed up the complexity of the problem.

Mrs. Sheila Finestone: Did I?

Mr. Giovanni Merlini: Yes—it was four minutes.

Equally shared parenting is possible under the existing legislation. There's no question about it. You can sit down and come up with a parenting plan. There's nothing that prohibits it.

Again, I have to go back a little to my personal experience when I negotiated my deal. My lawyer advised me my chance of getting custody was just so-so, so I should make deals accordingly. So why don't we have a level playing field for everybody? We start from the child's point of view and ask whether we should wait until the bugs work themselves out fiscally. The children are growing up in the meantime and there will be more heartbreaks going on.

Mrs. Sheila Finestone: Do you think you have to change the law in order for the bugs to be worked out and these children's needs addressed?

Mr. Giovanni Merlini: Yes. It's not wrong for Parliament to have decided to put an end to the strife when it's time to calculate child support. I agree with that objective, but what they did is still a continuation of that old model of custody and access. This is where I think they went wrong with the guidelines. I shouldn't say they; I should say you, because you were the ones involved in it. That social model has evolved. You have working parents nowadays. You have to recognize that as soon as possible.

The existing act doesn't put that aside, but if we said positively and you had a policy that kids' rights are there— Kids are being put first here. They've tried it. They've started with the preamble of the guidelines, but what comes after that? That figure of 40% is a little high in there.

Mrs. Sheila Finestone: By the way, while you're answering me, do you not think both parents are equally responsible and should have an equal obligation to submit their tax returns?

Mr. Giovanni Merlini: Sure.

Mrs. Sheila Finestone: Only the non-custodial, to use the terminology we presently use, has to submit his tax return and file his taxes, whereas there's no obligation on the custodial parent to present and file their returns. You have an imbalance right there, which I think is totally unacceptable. Both have to be taken into consideration, and then you can start to look at the sharing. Never mind the jelly beans, the sharing has to be just as equal on the financial side as it is on the time side.

Mr. Giovanni Merlini: Yes, that's what I'm looking at. I don't know if I understand you correctly. What I propose for time-sharing is trying to get away from this old notion of joint custody where the parents always have to talk to each other. I'm looking for a type of arrangement that basically can work without the parents having to cooperate as much as you'd think.

• 1025

As far as financial responsibility goes, I have to agree that both parents are equally financially responsible. We can write that in this legislation because shared parenting is also shared financial responsibility for the child, and if that has tax consequences, so be it.

The Joint Chair (Senator Landon Pearson): Dr. Bennett has to leave and she may have one question.

Mrs. Sheila Finestone: I'd like to hear an answer for the other one after.

The Joint Chair (Senator Landon Pearson): Afterwards, please.

Ms. Carolyn Bennett (St. Paul's, Lib.): One of the biggest problems seems to be that no matter what the court decides, if it's not exercised, whether that's access or denial of access, the penalties for that are very difficult. I know your two submissions had suggestions of penalties, but every penalty I have thought of ends up not in the best interests of the child. Somehow decreasing the payment, taking away the driver's licence—none of those seem to be good for kids.

I was wondering if you had any suggestion for how, in a law, you could actually encourage the proper behaviour without putting in penalties. Putting the custodial parent in jail doesn't seem to be in the best interests of the child. Anything we've thought of so far seems to be bad for kids.

Prof. Jim Richardson: It is very difficult to enforce or make legislation to make people better parents. There are some problems in the divorce process that really sometimes strike me as quite intractable. One of them certainly is allowing children to have access to both parents and the unwillingness of many men to continue their parenting. There is a process of disengagement when they stop parenting and often turn to new families.

I don't know if there's any resolution to that.

Ms. Carolyn Bennett: Okay, thank you.

Mr. Giovanni Merlini: I might just add that what I'm proposing is based on agreement. Of course, if you try to have agreement between the parties, there's a better chance it'll be respected and you will avoid the penalties altogether.

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

Mrs. Finestone, you wanted an answer. We have a very short period of time. Mr. Mancini also has a question.

Senator Anne Cools: So did I. I've had a question all day, but I can wait.

Mr. Peter Mancini: I'll give my time to Mrs. Finestone. She's on the same track I would go on.

The Joint Chair (Senator Landon Pearson): You want an answer to your question. This will be the last one on this question.

Mrs. Sheila Finestone: I've almost forgotten my question at this point.

The Joint Chair (Senator Landon Pearson): Your question is whether we should change the Divorce Act now or wait until some of the other things had—

Mrs. Sheila Finestone: I think, Madam Chair—

Senator Anne Cools: I have a point of order on this, because we have been told all along by the department that custody and access are different from support. Just remember that. In this committee, we're supposed to be looking at fixing up custody and access. It is illogical to think, therefore, that one should not fix up custody and access for many years until we can find out what's happening on the child support, but that's a different issue.

Mrs. Sheila Finestone: No, it's not. You're entitled to your opinion.

Senator Anne Cools: I did not express an opinion. I related what the department has been telling us for years.

The Joint Chair (Senator Landon Pearson): Professor Richardson is going to make a comment.

Prof. Jim Richardson: Let me respond to both those statements. It seems to me your opening question was whether the financial situation of the parents should be part of that set of guidelines for the best interests. Certainly in case law, people like Dr. Susan Boyd would argue you can find patterns where men are beginning to be favoured in terms of custody. I don't believe you can see that in the big pool of divorce cases.

I think the financial issue is quite separate from support. Support, in and of itself, is only significant in that the vast majority of divorced people connect them together. The lawyers can go on forever saying they're separate issues, but people simply don't buy that. He doesn't pay his support, I'm not going to let him see the children, and vice versa. It's an ongoing vicious circle.

• 1030

Mrs. Sheila Finestone: I thank you for that. The point I was trying to make is if we are going to change custody and access to a parenting plan and good parenting in the interests of the child, one of the fundamentals is the necessary people skills to enable and to effect these changes.

I for one believe that a good mediation team may have to see the father and the mother separately and may also have to see the child. Then hopefully when they get together they will find a plan that will be within that best interest, knowing the bitterness that remains in a divorce circumstance, knowing that it's quite difficult sometimes for two people who have agreed to disagree and have agreed to break up this marriage and know they have a responsibility for this child they have borne. Sometimes they can't, and therefore you need the arbitrator, and you also need all this staff. It all costs money. In some provinces there's no legal aid.

What I'm pointing out is a lot of this is provincial jurisdiction, but there is a free flow of new dollars into both the federal and provincial government coffers. Was it your view that you would use this money in this way, to enable what you have put forward in terms of your observations?

And I hope you will enlarge on that list you have given us, because I think there's a reality to the myths you have put forward. I'd like to be able to see that broadened, because I'm quite fed up, frankly, that we haven't been able to look at this from a non-genderized, gender-neutral perspective. Both exist in our society as problems. I said at the outset that the hard-core case doesn't make the best law, and it doesn't. You have to look at the general law and then you have to deal with hard cases afterwards. You have to have them separated out if they include violence of any nature.

There are two different kinds of divorces, keeping in mind at all times that 80% to 90% of all divorcing parents in this country are able to work out their plans and don't have to go before the courts and have these kinds of fights.

That's my point, Madam Chair, and I think I'll leave it at that for the moment. I'd like to know whether there's any answer—

The Joint Chair (Senator Landon Pearson): There was a supplementary question from Senator Cohen at the same time.

Senator Erminie Cohen: I have to disagree with my honourable colleague in one area.

You said there are moneys coming into the province and coming into the federal coffers. In New Brunswick there's not that much money coming in. Legal aid has been cut back 75% in our province. Poor people have nobody to speak for them. They can't access legal aid. They have to wait months and months.

Mrs. Sheila Finestone: Senator Cohen, what I am saying is—

Senator Erminie Cohen: Can I finish?

Mrs. Sheila Finestone: No, because you're using the wrong— You're misunderstanding. By the very nature of the tax changes—that is, no deduction, no inclusion—there is therefore windfall.

Senator Erminie Cohen: That was my second part. You didn't let me finish. I wanted to say that the federal dollars, because of the tax changes—

Mrs. Sheila Finestone: And provincial.

Senator Erminie Cohen: —should be—

Mrs. Sheila Finestone: There are provincial dollars, Erminie, that you've forgotten.

The Joint Chair (Senator Landon Pearson): Order, please. No cross-discussion.

We have witnesses who we've asked questions to, and because there are two more witnesses waiting before lunch, we would really like any response to be very quick, if it can be.

Mr. Vaughn Barnett: Sure.

I understand one of the main issues being raised here is how to fund this new system, and that raises the underlying issue of how to allocate resources within our society. I'm one of those who believe that there's a lot of money and a lot of resources out there; it's just a question of how you distribute what you have. Corporations and banks could have less and poor people and particularly children could have more.

We have to make it a question of priorities, and children are the most important members of our society, I think we would agree. They're the most innocent. They're the ones who have had the least say in the kind of society we've created thus far, so we owe it to them to spend some resources to make society better for when they grow up.

• 1035

Aside from that, though, what we are proposing is that equally shared parenting involve equality in a broader sense than just equal custody. We're saying if parents are serious about their children and if they each want at least equal time with their children, then they have to share the rights and the responsibilities equally. The rights and responsibilities must be co-extensive, and that means, more particularly in the economic context, that the separating parents have to divide their combined household incomes equally so the children may enjoy equal resources at either home.

In other words, equality is a package deal. You don't just have equality in one area without equality in another area when the two areas affect each other. And you can't raise children without having money. So just as parents are expected to share the resources equally when they're together, they must share the resources equally when they're apart, as far as child-rearing is concerned.

If they're not willing to cooperate, then they have to accept the consequences and be willing to let the other parent take over where they're not willing to do their part. That's why we're saying the feminist issues can be addressed within the framework of equally shared parenting, if we look at the equal aspect of shared parenting in this broader sense. And that might address some of the economic issues as well.

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

Can we come to an end? Thank you very much to the witnesses.

Senator Anne Cools: Madam Chair, I have just one thing.

The Joint Chair (Senator Landon Pearson): Yes?

Senator Anne Cools: Tasha Barnett is the first black woman who has come before us as a witness.

Voices: Hear, hear!

Senator Anne Cools: I just wanted to welcome a sister.

Voices: Oh, oh!

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

Senator Anne Cools: Long live the black sisterhood!

The Joint Chair (Senator Landon Pearson): Our final witnesses of the morning are Mr. Ken Paul and Mr. Terry Park.

There is a group from Global Television. May we have permission from the committee for—

Some hon. members: Agreed.

The Joint Chair (Senator Landon Pearson): Okay.

Mr. Paul, would you like to begin?

Mr. Ken Paul (Individual Presentation): Madam Chairperson and honourable members, my name is Ken Paul and I'm the father of three children: Tracey, aged 19, of whom I have joint custody; Austin, aged 14, of whom I have sole custody; and Jenny Marie, aged 13, of whom her mother and I share custody. I am a member of the Kingsclear First Nation.

The issue I would like to address to you today begins with visitation. As a non-custodial parent of one of my children, I only get to see this child when the mother feels it's appropriate or when the child decides. The court order should be more specific, such as having specific dates, times, etc. Children should not be used by either parent as chattel.

• 1040

My first nation community is fortunate to have a band bylaw entitled “The Rights to Children and Spouses”, which I believe is great if used in conjunction with the courts. This agency is made up of three social workers. Its problem is that it has it has no agreement with the Province of New Brunswick or the family court. I believe these first nation agencies could assist in monitoring these court orders if they were given the mandate.

I have recently reviewed the federal child support guidelines, and I can only assume that the cost of housing is factored in when determining the amount of support ordered by the courts, but because first nation communities have a unique set of circumstances, the support is not adjusted for these.

In my case, the home is occupied by my former mate in my first nation community. We have a certificate of possession in joint tenancy for the former marital home.

It would seem that the marital home in our communities usually goes to the custodial parent, but in my case we had an equal sharing of custody. Having said this, I would add that the provincial court, at the divorce hearing, would not settle the division of equity in the marital home. After spending nearly $30,000 trying to get a decision, I feel that because the marital home was on a federal reserve, I have not been able to have the same rights in a divorce proceeding as are afforded to all other Canadians. Because due process does not allow for the termination of the marital home, there is no closure. The courts do not want to make a decision, nor do the band councils. This leaves the family in chaos.

As for the children's mother, she is a non-native who gained status upon marriage. This was not relinquished upon divorce. She benefits from both worlds, and continues to benefit. She lives in the first nation community, and I do not. This systematic, planned annihilation of our cultural and spiritual world continues to break down the hopes of a strong native cultural community as it stands today by allowing status to be maintained by the mere fact that most women are given custody and because, in my community, most women stay in the marital home.

This leaves men with no housing. If you are a non-custodial parent, you do not qualify for housing. This forces the males who are native by birth from their community. The courts are not doing us any favours.

Where does this leave us in society? I believe that status gained in this way should be automatically relinquished.

We all realize the uniqueness of first nation communities in their set-up. I believe that those who are born native should always get the ownership of the land set aside for them, not the person who attains status by marriage.

I realize that marriages after 1984 do not give status to the new mate, but this does not help those of us caught in what has been a nightmare for me. All my relations live in that community, but because of a process that does not serve men as well as women, I am being denied my cultural heritage and ability to raise children with those values in that community. I feel that the scales of justice are not balanced when it comes to divorces for first nations peoples.

I want to thank each and every one of you today, and I wish you only success for the task you have before you.

Woliwon to all my relations.

Thank you.

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

Mr. Parks.

Mr. Terry Parks (Individual Presentation): I'm Terry Parks. I have been a professional social worker for 25 years, mainly in the field of child protection.

It's ironic that the lawyer representing my ex requested my declaration as an expert witness in criminal court. It was granted. The judge who granted the divorce, custody, access, and financial components also sought me as an expert witness, but chose just to see me as an individual who did not have a lot of say in my children's life. I have two very nice girls, who are fourteen and a half and twelve.

This presentation is from a dad who, prior to separation and divorce, was called by the Ramsay School of Highland Dance “super dad”. This is a father who was seen by his ex, her lawyer, and the courts as a father who is simply a dollar sign, stripped of his role as a true dad.

This is for those dads who are loving, caring, and active, who want equal parenting in their children's lives, not deadbeat dads. Fathers count in their children's lives. Nature even dictates that this is so, because fathers make up 50% of who they are. The father is also 50% emotionally responsible for the children in day-to-day care, discipline, guidance, support, and above all, love.

• 1045

In a recent article printed in Canadian Living magazine called “Why Dads Matter”, research shows that fathers do make a difference, but in order to live up to their potential as dads, they must truly share in their children's daily care.

Prior to my separation, I was married to a professional nurse. We both worked full-time. I worked 8.30 a.m. to 4.30 p.m., Monday through Friday, while my wife worked a 12-hour shift, nights and days, for many years. Therefore, during our marriage it was I who was seldom absent overnight.

Our children's lives were very busy with ballet, highland dance, music, school activities, and drives everywhere to meet their friends. At night, I always checked that their lessons were done and that there was a routine to their lives. I was the constant in their lives and I was involved until a court told me I could not be. About two years ago, my wife told me that she wanted a separation. My role as dad was about to change. After efforts to reconcile, I agreed to leave. For the first time in about 12 years, I would not be there for my girls.

A process would begin that I thought would ensure the equality of parenthood and would take into consideration the wishes of my girls. This was not to be, as no matter what we agreed to, even legal agreements could be manipulated or broken. Then came court and my hope of fairness. This did not happen, and this is why I'm here today.

Why is it that the courts dictate that the father is the main source of financial responsibility for children even when the mother is a full-time employed professional? Courts order that a father has limited access to children: every second weekend and two weeks in the summer, which equates to about 70 days out of the 365 days in a year.

A father is robbed of parental rights, and this is discrimination. Why has the federal government written guidelines governing the father's financial role and not included guidelines about the level of his role as a father? The guidelines do not recognize both parents. Mother and father should be equally responsible for the finances as well as the emotional well-being of children.

This was demonstrated by the court ruling that gave me the standard father package. It was evident in a brief court hearing that the judge favoured the mother. When he implied that someone's lifestyle would change, he meant mine.

Why is it that the mother is automatically granted full custody in most cases unless a father is able to prove the mother unfit? This is discrimination by the family courts in our country.

I will say that my ex is a good mother; that's not an issue here.

To temper the misuse of people by divorce courts, there is a need to have laws that dictate that the children live automatically 50% with the mother and 50% with the father. This should be the starting point of the court and must be stated by law. Any deviation to this must be agreed to by both parents, depending on their circumstances and the wishes or needs of their children, or in cases where one parent is unfit.

Our legal separation became effective in October 1996 with the clear intention that we would both be involved in our children's lives. Within five months, my lawyer was advised that my ex was filing for full custody and support as per the guidelines, not as per the intent of our legal separation.

For the next five months, there was war. At the end of it, my wife confided to a counsellor that she could not owe her lawyer $12,000 and afford to change the court order even if she wanted to. That came after the last six months. It was just set a month ago. It was as a result of a year that she thought was the worst in her life. I think she had stated she wanted to make the changes but could not afford to make the changes because she owed lawyers.

This begs the question: what is the reason for needing additional financial support? Is it for the children or for lawyers? If the New Brunswick Human Rights Act is a protection against discrimination, then I ask the question: why was my right to be a parent not recognized and protected by the court? My experience is showing me that lawyers see the law as a game that gives them the right to change their position from day to day depending on who is paying the bill. Courts seem prejudiced toward fathers and seem to have a preconceived notion that mothers are victims.

The Joint Chair (Senator Landon Pearson): Mr. Parks, your five minutes have expired. Could you come to your recommendation, please?

Mr. Terry Parks: Okay.

With regard to recommendations, financial guidelines must be seen as guidelines, not law. The courts are using it as a law, not a guideline.

Both parents have a right to begin a new life and share responsibility 50-50. I have an attachment that shows you a breakdown of the calculations of child care costs. The children's wishes must be brought to the attention of the judge, and they should not be used as financial guidelines alone.

• 1050

My children had two different wishes and they still want those wishes. There should be a family history presented to court by a third party, such as a mediator or a counsellor. In criminal court a pre-sentence report is automatically done in most cases. Lawyers are not the way to go. The money parents spend on lawyers is better redirected to children.

Divorce must be seen as a breach of contract and should not result in financial unfairness. In most circumstances the mother is given custody and financial support, and the father is unable to provide a similar quality of lifestyle for his children.

Divorces must not be used as a method for financial gain. Revenue Canada must be flexible enough to allow tax deductions that do not favour one parent over the other.

Decisions by the court around the amount of financial support to be paid must be final and drawn from base salary at the time of separation. This must be done to allow the parents to move on with life. When they're constantly facing the threat of review by the court, it only promotes animosity and tension. How well parents do with divorce is related to how well children do after the divorce. Divorce must respect all family members.

Thank you.

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

Senator Cools, did you want a question first?

Senator Anne Cools: I want a question but I didn't want to be first.

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

Mr. Eric Lowther: I'll ask a quick question so that the other people on the committee can have a chance to ask some. I'm not looking for a lengthy response; make it kind of concise if you can.

You've both been through some difficult circumstances. Replay, perhaps, or rewind the tape back to the beginning.

Later on, this idea of a shared parenting approach or the requirement for a parenting plan to be put together before a legal separation could be put in place or before divorce proceedings could proceed, that there be a—I hesitate to say it—legislated requirement for a parenting plan to be in place for the children before these other legal steps could be taken— If that were the case, would it have worked in your situation? Be candid. Maybe it won't work in all situations. In your situation, if that were the case, you'd have to have a parenting plan that we all agree to before we go to step two, legal separation or whatever. Would that have worked?

Mr. Terry Parks: If it was enforceable. In my situation, there wasn't a legal agreement drawn up. I was to be a very active parent; it was agreed to by both parties. I was to be flexible enough around her work situation, because sometimes she'd get called in at the last minute and we live less than a mile apart—

Mr. Eric Lowther: So the key thing there is, if it was enforceable.

Mr. Terry Parks: What happened was, she was not happy with the financial arrangements that equated to more shared parenting. She said, “I've got to go for full custody in order to get financial...”.

Mr. Eric Lowther: Some parenting plans we've heard about even include problem resolution mechanisms.

Mr. Terry Parks: There was one there. There was a refusal to go.

Mr. Ken Paul: In my situation it would have, especially with the child and family services agency monitoring the court orders. The shared custody has worked well in my situation. The downfall of that is that when I go to the agency, they send me to the Province of New Brunswick, to Justice, and once I get there, they send me back to a lawyer. So there's nothing working there. I think it has to stay with the agency to monitor, in my community.

Mr. Terry Parks: In my situation one of the children, the youngest, was with each of the parents 50-50 prior to the divorce hearing. My wife gave a different version. The court heard my version, heard the wishes of the children—my wife did not disagree with the wishes of the children—and the judge just said, “She has the full cost by the guidelines. I have no choice.”

Mr. Eric Lowther: Thank you.

The Joint Chair (Senator Landon Pearson): Mr. Gallaway, did you want to put your question?

Mr. Roger Gallaway: Mr. Paul, a very quick question. With respect to your home, are you awarded what are called locatee rights on a reserve? Is that the problem?

Mr. Ken Paul: The problem I have is that I'm not sure what you're speaking of there, but—

Mr. Roger Gallaway: Well, you don't own the land but you have the right to live on it.

Mr. Ken Paul: Right, right. I only have joint tenancy and the right to occupy.

Mr. Roger Gallaway: Okay. And the court will not make a determination, will not vary that.

Mr. Ken Paul: That's right. When I went to the provincial court in New Brunswick, I had the house appraised at $61,000. What I was looking for was 50% of the equity so that when I departed I could use that equity to build once again, and I was denied that.

Mr. Roger Gallaway: Thank you.

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

• 1055

Senator Erminie Cohen: Mr. Parks, in response to Mr. Lowther's question to you, you said that your ex-wife refused to go for mediation. If it were mandatory, if there were a court-ordered pre-mediation session that would explain to both partners the benefits of mediation as a next step, would she have fought that? I know you can't make mediation mandatory, but court-ordered pre-mediation—

Mr. Terry Parks: To me, when children are involved prior to any legal agreement drawn up or a divorce by a court, it should be mandatory that you attend mediation and that the mediator's report be submitted to the court.

I heard from the back the question, how do you financially afford that within this country? Well, I would have no problem having a means test on the amount of money I was earning or my ex was earning to see how much contribution should come from our salaries and how much should be paid by the province or the federal for that mediator. I would rather spend that on somebody who was looking out for the best interests of myself, my ex—because she has interests—and my children and pay that rather than see bills build up that will keep us both poor for awhile and that mean the kids never benefit.

Senator Erminie Cohen: How old were your children?

Mr. Terry Parks: Ten and twelve.

Senator Erminie Cohen: Were they ever included in the court proceedings? Were they ever asked their views?

Mr. Terry Parks: I knew, because of my experience in family court, that this would have been a strong point, but I felt it would have been very unfair to the girls. So I would not use that as a tactic. I had no problem going to a mediator and talking to a mediator whose report was submitted. But no, it was very clear what they wanted and we both recognized it. I felt the judge would see it, not dispute it.

The court hearing was scheduled for a day, and at the time we were to go into court there were also two other cases to be heard by the judge. There were four people moved into the court hearing for a day.

It should be mandatory that all family members attend mediation prior to drawing it up, and as quickly as we can we should get it away from the lawyers earning the money. It should be done in the best interests of the family, keeping the finances as much as possible for them to administer. You know, we were not unfairly using the money for ourselves.

Senator Erminie Cohen: One of you mentioned that the family history should be considered. That struck a very good note with me, because to create the level playing field, which many of you are saying is not there when you're in court, a family history of the relationship—you have an exemplary history here as a father to your children—may be a very important tool that we should take a look at.

Mr. Terry Parks: In child protection matters, when my department is involved with removal of children, we have to go and prove before a judge and present the history of evidence. In divorce, it's a matter of she's applying or he's applying. There's an application. Both get to testify and nothing is presented as to what is the true history. There's no independent person. It's her word against my word. That is what happened in my situation. In hindsight, I'd rather pay for a lawyer for my children and represent myself.

Senator Erminie Cohen: Thank you.

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

Senator Anne Cools: Yes, thank you very much.

I'd like to thank both of the witnesses and I would also like to encourage and thank the aboriginal gentleman for bringing forward these particulars.

I thank both of you for bringing forward all your concerns, but I would also like to note that the committee, to date, has heard no testimony, other than this gentleman's testimony, on the status of aboriginal men in divorce. I would like to encourage the committee to pursue the questions that this gentleman has raised with some fervour. Unfortunately, I don't know a lot about aboriginal law, but I do know that when we looked at the Indian Act many years ago in terms of returning status to Indian women who had lost status— I'm trying to remember the name of the bill.

• 1100

Mrs. Sheila Finestone: Section 31.

Senator Anne Cools: Okay, that was the section. The bill number doesn't matter. But I do recall at the time certain native people cautioning that what this gentleman is describing might begin to happen, where eventually you would find aboriginals being forced out of their own situation. In any event, I thank him for bringing it forward. Perhaps our researcher could bring forward some information to us on his particular issues.

The Joint Chair (Senator Landon Pearson): We will be having a meeting with aboriginals on June 8, entirely devoted to it, a panel.

Senator Anne Cools: I would like to see our researcher bring forward some information to us before that meeting. My point is that research should be done in advance. I would just like to make that point and to have some information put before us in advance of the meeting, because I would suspect there are large numbers of aboriginal men who are in exactly the same circumstances this gentleman has described. I'm glad he has brought it forward.

Thank you.

The Joint Chair (Senator Landon Pearson): Mrs. Finestone has the final question this morning.

Mrs. Sheila Finestone: Thank you very much.

The more I hear about the true dad being the dad who's the financial pocketbook or the piggy-bank, it just bothers me. I don't think that's right. I have made it quite clear that I believe that you put the change in tax status; it has to be a change in approach to both the financial obligation—

And by the way, I want to put in here as a caveat that women who work in the home do work, and there is a financial commitment within that work that has to be calculated as well. Women who work in the home contribute $11 billion to the economy of the country. So let us not think that because a woman stays at home she isn't in a work-remunerated type of situation. I'd be very pleased to see some changes there with respect to what you said.

What bothers me— I truly believe that judges have a very difficult life. For a million bucks you couldn't get me to be a family court judge. It must be horrible. How are they not able— I just wish they were sitting here and reading and hearing some of this stuff. Maybe they would take a look at what they do and be a little bit more sensitive to the individual cases, because I think each case is a very different case.

I would like to ask you a few questions, if I may, Mr. Paul, and if you want to comment, that's fine. Mr. Paul, when section 31 of the Indian Act was revised, one of the corollaries to that was the financial allocation of dollars to build houses and schools to accommodate the new rights being accorded, and rightly so, to the mothers of Indian children of mixed family, Indian and white families. In the tradition of aboriginal law and lifestyle, where we're learning to appreciate more and more that there are other ways to handle problems than the way we have being doing them, such as the sweathouse and the round table, etc., is there not some kind of custom that was inherent within tribal life or custom life of your people— Your people are Huron or Micmac or—

Mr. Ken Paul: We're Maliseet.

Mrs. Sheila Finestone: You're Maliseet. All right. Is Maliseet a matriarchal or patriarchal society?

Mr. Ken Paul: You've got me there.

Mrs. Sheila Finestone: Well, in the longhouse decision, who chooses the chief?

Mr. Ken Paul: Our chief today would be elected.

Mrs. Sheila Finestone: Elected.

Mr. Ken Paul: Yes, an elected member.

Mrs. Sheila Finestone: An elected member. So it is not the sex of the person that determines the—

Mr. Ken Paul: No.

Mrs. Sheila Finestone: All right. As you know, many of the aboriginal people have either matriarchal or patriarchal lineage, and the chiefs are selected either by the women of the longhouse or the male members of the longhouse. In your case, do both men and women have the right to vote for the chief, or is it a family vote?

Mr. Ken Paul: No. Everyone has their own right to vote. You would have one counsellor for every hundred members registered on the band list.

Mrs. Sheila Finestone: One hundred for every member. All right.

• 1105

Traditionally, what happened when there was a breakdown in relationships in a family in your village or on your reserve?

Mr. Ken Paul: Normally it would be handled internally right within the community and within the family. That system doesn't exist today.

Mrs. Sheila Finestone: So the total system has broken down?

Mr. Ken Paul: Yes.

Mrs. Sheila Finestone: The reason I'm asking you all these questions is that I think it will help us when we meet with the aboriginal groups next week, or in ten days. I'd like the personal testimony so I've got something to think about when they come before us.

Mr. Ken Paul: While you're there, if I can share with you, I sent 12 letters to the band council at Kingsclear to address this issue, without response. So it leaves me without a due process to bring to whatever.

Mrs. Sheila Finestone: Are you part of the first nation?

Mr. Ken Paul: Yes. I'm a member of that community.

Mrs. Sheila Finestone: All right, so you have a lawyer and a very competent president of the first nations.

Mr. Ken Paul: Yes.

Mrs. Sheila Finestone: What's his name?

The Joint Chair (Senator Landon Pearson): Phil Fontaine.

Mrs. Sheila Finestone: Thank you. Mr. Fontaine, who is well known to most members of Parliament, has not addressed this issue at all?

Mr. Ken Paul: Well, in a legal action that I took against the membership, the Kingsclear Band Council, when I approached and wrote a letter to the former leader in that organization, one of his aides made a telephone call to me stating that the agency represented the chiefs in Canada and not members within Canadian society.

Mrs. Sheila Finestone: Okay. That's very important for us to know. Therefore it would be up to each band to have their own rules and regulations. You're telling me that the traditions of long history, for which we are guardians of the land but not owners—

Mr. Ken Paul: Right.

Mrs. Sheila Finestone: Those traditions have broken down within your band. Today, then, if there is a separation, in general, is there not a place for the woman or the man to move to should they not want to live together or choose not to live together?

Mr. Ken Paul: No. The male would normally leave the situation and the female would care for the—

Mrs. Sheila Finestone: Do you have to leave the band or leave the territory?

Mr. Ken Paul: They would either stay with their family or else find additional housing. Since there's a housing waiting list of 30 or 40 applicants, we leave, because housing's more available in the city. My community is 12 miles from Fredericton here.

Mrs. Sheila Finestone: I've visited your community, actually.

Is there anything else you'd like to tell us that you'd like us to bring to the attention of the chiefs when we meet with them?

Mr. Ken Paul: The only issue I'd like to speak on is that in the majority of situations the council does handle the issues within the community, but in this situation it seemed they didn't want to set the case law or the precedent in regard to resolving the certificate of possession. That was the ownership that my former wife and I shared.

Mrs. Sheila Finestone: Of the property.

Mr. Ken Paul: Right.

Mrs. Sheila Finestone: So in actual fact it's property law.

Mr. Ken Paul: Right. They saw it as both owners, as her being a member of the Kingsclear Indian Reserve, Ken Paul being a member of the Kingsclear Indian Reserve, and asking, I guess, that they would take care of that themselves.

Mrs. Sheila Finestone: I see.

Mr. Ken Paul: That's where it broke down with the situation.

Mrs. Sheila Finestone: There was one thing you said that I must admit troubled me. You said that you felt there should be revocation of her Indian status. Now, there can't be a revocation of the fact that these children are the product of your living together.

Mr. Ken Paul: Right.

Mrs. Sheila Finestone: They should have the right to their Indian heritage.

Mr. Ken Paul: Yes.

Mrs. Sheila Finestone: And you wish to remove this woman from their life?

Mr. Ken Paul: I guess it's a position I've been placed in not to remove any of those features. Land within the first nations communities can only be held under certificate of possession through members of that community.

Mrs. Sheila Finestone: You made her a member of that community, didn't you?

Mr. Ken Paul: Yes. Upon the divorce, once the divorce had ended. I thank her for those children, and I want to be a part of that. But at the same time, I lose out giving the native traditional teachings to those children because she is not a part of that process.

Mrs. Sheila Finestone: Where are the grandparents in this picture?

Mr. Ken Paul: My mom and dad live in the first nation community.

Mrs. Sheila Finestone: Have they a close relationship with the children?

Mr. Ken Paul: I went through the divorce in 1992, and it's only been about the last year and a half that the kids have started to go to my mom and dad's more often.

Mrs. Sheila Finestone: Thank you very much.

Mr. Ken Paul: Thank you.

The Joint Chair (Senator Landon Pearson): Thank you very much. Thank you both for your presentations very much indeed.

The committee will now break for lunch. We must resume at 1 p.m. sharp.

• 1109

• 1208

The Joint Chair (Senator Landon Pearson): Ladies and gentlemen, we'd like to begin the afternoon session, please. We're a few minutes late, but we welcome as our presenters this afternoon the New Brunswick Advisory Council on the Status of Women, Lucile Riedle; and from the Muriel McQueen Ferguson—of interest to us as senators—Centre for Family Violence Research, Rina Arsenault and Jennifer Robertson.

Ms. Robertson.

Ms. Jennifer Robertson (Muriel McQueen Ferguson Centre for Family Violence Research): My name is Jennifer Robertson; I'm a lawyer in town and I've done some work with the Muriel McQueen Ferguson Centre for Family Violence Research. Rina Arsenault, who is associate director, has asked me to come along and accompany her with respect to this.

The centre specifically is looking at spousal abuse and how that affects situations of custody and access. They recognize the need and the right of the child to have access to their father or the non-custodial parent, if that may be, and they support in principle the concepts of joint custody and, if reasonable, of shared custody relationships with the children, but only when the circumstances are conducive to such an arrangement. I have a problem with joint and shared custody being mandated in an act such that the court has no power to make decisions with respect to what's in the best interests of the children.

• 1210

Approximately 70% of all custody and access disputes are resolved at the level of mediation or negotiation between the lawyers. Only approximately 30% go into the court, and of course divorce in and of itself is inherently a high-conflict situation where the parties are not getting along or communicating. The ones that have the most difficulty end up in court.

In particular to our situation here is when there is a spousal abuse situation, and spousal abuse covers a variety of abuse. Physical abuse is not the only type of abuse. There is emotional, there is economic, sexual and psychological abuse of a woman; and I say “woman” here, because while we recognize it happens both ways, our research tells us that approximately 92% of the time the spousal abuser is the husband, not the wife. And so we're specifically looking at it from that perspective today.

Very often the spousal abuse case will go to court because there is such a high-conflict situation there and they cannot resolve things. Joint custody in and of itself means that parties make decisions together for the best interests of the children. If they can't get along or communicate, they're going to be in conflict every time they try to resolve something with respect to the children, and this situation is greatly magnified when one of the parties is an abusive spouse.

Spousal abuse crosses all economic levels, all levels of society and all educational levels. It can happen in any family. The survivor of the abuse who has left the marriage often does so after years of continued abuse and they have been beaten down to a point where they have very little self-esteem and very little ability to be self-sufficient, and to put them into a joint custodial relationship with the other spouse continues to perpetuate the abuse that person is going to be subjected to.

An abusive spouse is very controlling and manipulative and will continue to try to control and harass the abused spouse by threatening to take the children away, by telling the spouse that they have the finances to look after the child and that the spouse doesn't, by privately attempting to alienate the children, and by trying to impose their wishes with respect to the children on the abused spouse. They will hold up settlement of legal issues, pursue litigation relentlessly, withhold support and do anything else they can to control the mother.

Unfortunately, although that abuse may be directed toward the mother, the children are caught in the middle. The abuser will do things to put the children in a situation where the children suffer stress, insecurity and other distress because they don't know where to turn, who to believe or what to do.

We have seen cases where the father will refuse to give mother her support cheque and tell the children mommy is taking all daddy's money, where the father will talk about the mother in front of the children and tell terrible things about her to the children or to other people in front of them. We've seen cases where the father will tell the children, “After this goes to court you're coming to live with me”; where the children will go to access because they're scared that if they don't go the father will retaliate against the mother; where an older child will go to access simply because they feel they have to protect the younger child; and where sometimes children will even refuse to go to school because they're scared to death that dad will come in and do something to mom while they're gone.

These children are becoming the adults here, having to develop an adult type of response to what's going on. This is inappropriate and it can have serious psychological effects on the children and create long-term consequences for them.

It's our submission that each case has to be addressed carefully and sensitively on a case-by-case basis. We cannot mandate what custody and access situation or relationship is appropriate without first considering all of the issues in the case and all of the ramifications on the children in that case.

• 1215

Custody and access is the right of the child, but the question isn't what is the principle of maximum contact and how much is maximum contact across the board, it's how much is maximum contact appropriate to this particular case. The courts have recognized that maximum contact is in the Divorce Act and should be considered, but it is not mandatory; and maximum contact is to be encouraged when the situation is conducive to such maximum contact.

Mediation is not appropriate in all circumstances. Psychologists, counsellors and social workers have recognized that mediation doesn't work in an abused spouse situation, because the abused spouse backs down because they've done it all along. They are controlled and manipulated to the point where they feel they're never going to win; so they back down and they let the other party walk all over them.

Mediation, if it is mandated by the act, would put the abused spouse in a position of having to prove they're not a candidate for mediation in a situation where they have no financial resources, generally, to go and get somebody to assess whether or not they have been an abused spouse in order to not go to mediation. Mediation is very appropriate in most circumstances, but not when there are abused spouses. There has to be something in there to allow an abused spouse to continue on in the custody and access battle without having to prove their point, and it's becoming very costly for them as they go along.

The Joint Chair (Senator Landon Pearson): I'm sorry to interrupt you, but we're on a very short schedule this afternoon, so if you could get to your recommendations, we'd really appreciate it.

Ms. Jennifer Robertson: We have a few recommendations. In particular, we're concerned with respect to psychological assessments of children in situations where children are in a relationship where there is spousal abuse. It's important to determine how the children are being affected by this. One of the problems we have is that psychological assessments are not paid for by the courts or by the government. They have to be covered by parents, and parents cannot afford this. We recommend that psychological assessments should be paid for by the government and the courts should be able to order it in situations where they believe it's appropriate.

Secondly, we recommend that mediation be an option that is given in the Divorce Act but is not mandated. We recommend that there should be training for lawyers and judges with respect to being sensitive to the needs of spouses who have been abused, so they understand how this can affect the ongoing access with the father. We recommend that joint and shared custody is a consideration judges can consider, but it is not mandated under the act. We recommend that the principle of maximum contact is not how much time I have, but what's appropriate for the child.

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

Ms. Lucile Riedle.

[Translation]

Ms. Lucille Riedle (Chairperson, New Brunswick Advisory Council on the Status of Women): Honourable senators, members, ladies and gentlemen, good afternoon. I'm Lucille Riedle and I've been Chairperson of the New Brunswick Advisory Council on the Status of Women since last April 28. I'd like to thank you for giving me this opportunity to make a few remarks on behalf of the Advisory Council. You will have noticed that our presentation, of which you already received a copy, is brief. We thought it best not to dwell at length on things you've already heard repeated many times. However, we would like to make our positions known.

As my text was prepared in English and we haven't had time to have it translated, I will make my presentation in English. The French version will be sent to the committee as soon as it's available.

• 1220

[English]

I would like to preface my comments by supporting the comments that were just made—that the majority of divorces in this country are obtained without litigation. This means that people manage to negotiate or mediate a separation agreement oftentimes without accessing the courts. There are presumably many success stories among these people. It may be time to listen to them, and try to learn how to divorce in a reasonable and harmonious manner.

I am not going to read our brief. I'm simply going to outline some of the issues we've spoken to. I would like to say that my comments and the brief reflect the concerns of the New Brunswick Advisory Council on the Status of Women on the issues of child custody and access.

Our position on most issues raised in these consultations are based on two principles: (1) of course, ensuring the best interests of the child; and (2) protecting women's equality rights.

As far as we know, no one has argued against the best interests of the child as a guiding principle in this committee's deliberations. It is becoming evident, however, that presenters may have diverging views as to what constitutes the best interests of the child. For our part, we believe that children are not well served when women's equality rights are ignored. For this reason, we ask the committee to view the issues before us in the context of the real lives of Canadians, including the fact that women's life experiences differ from those of men.

We have addressed in our brief the question of child custody and access. I won't read the whole thing, but I would just like to point out that our belief is that the primary caregiver preference—and I'd like to point out that this is gender neutral—which is now the common practice in Canada, should be maintained in custody decisions. We further believe that a primary caregiver presumption should be written in the Divorce Act. This presumption should be rebuttable only in rare circumstances, such as to protect children from physical or sexual abuse.

We also have talked on the issue of joint custody. Joint custody, in our opinion, should never be mandatory. This is particularly important in cases where there has been violence or abuse in the relationship. It's not a question of right or wrong; it's a question of its being mandatory. We have a positive view of joint custody arrangements, and we encourage them when they are truly voluntary.

According to what we know, the final book has not been written on whether voluntary joint custody arrangements have a negative, positive, or neutral impact on the well-being of children. As long as it cannot be shown conclusively that such arrangements are not in the best interests of children, then we suggest that the best-case scenario for a divorcing couple is that the former spouses can get along well enough to agree on what is best for their children. In these circumstances, of course, joint decision-making need not be overly onerous or difficult for the family.

We've talked about maximum access, and I will list our recommendations in a few moments. We have talked about the access denial and non-exercise of access right. We have also addressed the issue of violence and abuse, which seems to come up quite frequently.

The general guidelines we've proposed in the cases of violence and abuse are that: (1) maximum access not be granted to the abusive parent, regardless of whether the violence was directed at the children or at the other parent, or both; (2) in cases of child abuse, access should either be denied or supervised; (3) in case of wife assault, access should be either supervised or restricted; and (4) custody of children should not be awarded to an abusive parent.

We have talked about alternative dispute resolution processes, and we support the processes such as mediation and parent information and education programs. We are not convinced, however, that the idea of making ADR processes mandatory is necessary or well founded. If there's a voluntary decision to access these programs, then of course it is very healthy for the family.

• 1225

We have addressed some of the other issues in the brief. As I said, I'm not going to read the brief. You're all old enough to read. I'm going to skip now to the recommendations, and I'd like to leave them with the committee.

First, the Divorce Act should be amended to include a primary caregiver presumption in the determination of custody, both on interim and permanent bases. The only time this presumption should not apply is when there is evidence of child abuse or neglect.

Second, the sections of the Divorce Act that state a preference for maximum access and joint legal custody should be withdrawn from the Divorce Act. However, joint legal custody should be encouraged when the circumstances are appropriate, such as in the case of low-conflict divorces.

Third, in those cases where access has been denied to non-custodial parents, or where non-custodial parents fail to exercise their access rights, we recommend that appropriate and affordable family court services be made available.

Fourth, child and spousal abuse should be taken into consideration in the determination of custody and access. Custody should not be awarded to a violent partner or parent. Access should be restricted, supervised or denied, depending on the nature of abuse and on the willingness of the abuser to seek help.

Fifth, complaints of child sexual abuse should not be assumed to be false when made in the midst of a divorce. All complaints should be investigated and resolved.

Sixth, alternative dispute resolution processes such as mediation, shared parenting arrangements, and other options should not be made mandatory. All these processes should be made readily available, however, to all of those who wish to use them.

Thank you.

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

We'll now proceed to questions. Senator Cohen.

Senator Erminie Cohen: I didn't have my hand up yet. I'm not ready yet.

The Joint Chair (Senator Landon Pearson): I was going to offer you the first opportunity because we have such a short time.

Senator Erminie Cohen: Give me a minute.

The Joint Chair (Senator Landon Pearson): The next person is Mr. Gallaway.

Mr. Roger Gallaway: To the group from the Muriel McQueen Ferguson Centre, you said in New Brunswick 92% of the time where there's abuse, it's the man. Could you provide us with a copy of the study that led to that conclusion?

Ms. Rina Arsenault (Associate Director, Muriel McQueen Ferguson Centre for Family Violence Research): I will forward it to you.

Mr. Roger Gallaway: Okay, fine.

Senator Anne Cools: You could give us the name of the study.

Ms. Rina Arsenault: It's not a study per se. It was from the police records in 1995.

Mr. Roger Gallaway: Okay, thank you.

Could you tell me what percentage of divorce cases in New Brunswick involve abuse, according to your centre?

Mrs. Sheila Finestone: You could use the translators, if you want.

[Translation]

In what percentage of cases is divorce attributable to violence or abuse?

[English]

Ms. Rina Arsenault: Are you asking how many divorces happened because of abuse?

Mr. Roger Gallaway: No, I'm asking what percentage of divorce cases in New Brunswick involves abuse.

Ms. Rina Arsenault: I'll have to refer to my—

Ms. Jennifer Robertson: We don't have that statistic.

Mr. Roger Gallaway: You haven't done that study at your centre, then.

Ms. Jennifer Robertson: We haven't seen that study at this time, no.

Mr. Roger Gallaway: Mrs. Riedles, you've made a couple of interesting suggestions. We've heard from a number of experts, a number of people who are social workers, and a number of international declarations of convention. The assumption and overriding principle is that it's in the best interests of the child to have both parents involved in their lives on a regular, predictable basis. It's because of this that people start talking about shared parenting, co-parenting and all these terms. I wonder what evidence you have that would lead you to ask us to write in the Divorce Act a primary caregiver presumption. Where's the evidence for that?

• 1230

Ms. Lucy Riedle: That's based on the presumption that traditionally when court decisions are brought down, they are often based on decisions as to who has the most money to defend in the courts, and so on.

What we're saying is that what should be taken into consideration is who traditionally was considered to be the primary caregiver during the upbringing of a child or children in the past, during the family situation. I did mention that this is a gender-neutral thing in the sense that in some cases the primary caregiver could be the man, but traditionally, in a large percentage of the cases, it has been the woman. That's why we say it should be related to whoever the primary caregiver is.

Again, I want to make the comment, as I prefaced the presentation, that in most cases when there is a voluntary agreement between parents that they forget their own difficulties and think about the rearing of the children, that's not a problem.

Primary caregiver in our books means the person who has had the majority of responsibility in the day-to-day care, nurturing, and upbringing of the child, at whatever age.

Mr. Roger Gallaway: Okay, madame. I know there are a lot of questions.

The Joint Chair (Senator Landon Pearson): Senator Cohen now.

Senator Erminie Cohen: To the New Brunswick Advisory Council, you said that you don't recommend mandatory mediation or information sessions like that. How do you get the people to the table, because with anything that's not mandatory, people will say, “Oh, I don't want that”.

If there were some kind of pre-mediation court order that explained the benefits of mediation, wouldn't that be a far more positive move than saying no mandatory mediation? At least then they would have a two-hour education area where they could learn about the benefits, what positive parenting would mean, and how it could benefit the child.

Ms. Lucy Riedle: In a perfect world that would be a perfect solution. However, we all know that the cases that go before the courts usually are not the easy cases. The minute you start asking that things be made mandatory, people will maybe go to these educational sessions, but oftentimes the ones who are against the notion of it will not show up, and that creates additional tension.

If it's voluntary and you can be encouraged to go voluntarily, then of course there will be positive results. When people are forced to do things, often it's a negative result that comes into play. We believe that in a perfect world it would be an ideal solution, but we also know that's not always the case.

Senator Erminie Cohen: I have one other question. What are your views on the rights of a child to view their feelings in the whole process of divorced parents? The divorce law is not child-centred at all—

Ms. Lucy Riedle: No.

Senator Erminie Cohen: —and our focus is on the best interests of the child. Do you feel—and this is open to any answer—that children should be involved, if they're over 10 years old, in any of those proceedings, or that their views should be taken into consideration?

Ms. Lucy Riedle: Again, I think in a perfect world that would certainly be a good solution. However, there are not enough funds available in our system to allow the proper analysis of the children's feelings. That may be an area where we could make changes, and make sure that the children are not being influenced in one way or another, for or against. If enough time and funds are available to have the proper psychologists and services made available to make sure it's an unbiased and very open negotiation with the child, and not something that is influenced by either one of the parents, then of course it's a fair system.

• 1235

Senator Erminie Cohen: Thank you.

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

Mr. Eric Lowther: Thank you.

Mrs. Riedle, I'm a bit confused about your statements. They don't seem to line up for me, and maybe you can help me.

You started out by saying that most of the cases do not go to court, that the majority of divorces or problems resolve without coming to court, and therefore we should interpret from that that things are going generally pretty well.

Your first recommendation is that we should give a presumptive position to the primary caregiver when determining custody. Then your second recommendation says: “However, joint legal custody should be encouraged when the circumstances are appropriate, such as low-conflict divorces.”

So if the majority, according to you, are not in enough conflict to go to court and therefore are good stories, why wouldn't we make that the presumptive position, as per recommendation two of yours, rather than primary care? Why wouldn't we make primary care the exception rather than the presumptive position, based on your opening comments?

Ms. Lucile Riedle: I think we're basically saying the same thing. We may not use the same words, but what I'm saying is we have based our findings on the research available, which says that in 70% of divorce cases, the parents get together, and whatever their conflicts are, they resolve them for the best interests of the child. Where there are problems is in the other 30% of the cases, which we talked about and which was presented earlier also. I'm afraid I don't follow your—

Mr. Eric Lowther: Well, if those 70% of the cases are the good stories, and then I look at the second sentence in your recommendation two, which says, “joint legal custody should be encouraged where circumstances are appropriate, such as low-conflict divorces”, why wouldn't that be your primary recommendation that would apply to the 70%, the number you just quoted, and make the primary caregiver presumption be in those conflict situations? Why not reverse what you've recommended, basically, and change the priorities?

Ms. Lucile Riedle: Well, if you want to put it in number one, that's fine with me. I have no—

Mr. Eric Lowther: So then would you support making a joint legal custody arrangement the presumptive position?

Ms. Lucile Riedle: No, no.

Senator Anne Cools: But you just said that.

Ms. Lucile Riedle: I said if you're not comfortable with the order in which they're put, that's fine; you can shift them around. But it doesn't change the recommendation. It's still the primary caregiver.

Senator Anne Cools: Chairman, perhaps you can clarify the situation, because there seems to be confusion.

Mr. Peter Mancini: I have a point of clarification.

Senator Anne Cools: Yes, there's a need for clarification.

Mr. Peter Mancini: I think what Mr. Lowther is suggesting is that your number one recommendation would say that the Divorce Act should be amended to include a joint legal custody presumption. I don't think he's suggesting that you simply switch the order; he's suggesting a change in the wording. What you do is change the presumption in your first recommendation and replace that with the joint legal custody presumption.

I think that's what you're saying, Eric. I hope I clarified that and didn't muddy it.

Mrs. Sheila Finestone: Madam Chairman, I think that indicates a willingness to change a philosophic base, and that's what I was hoping Mr. Lowther was getting to.

The Joint Chair (Senator Landon Pearson): That's right.

Ms. Jennifer Robertson: May I make a comment to this?

The Joint Chair (Senator Landon Pearson): Yes.

Ms. Jennifer Robertson: The 70% of cases where a joint legal custody presumption would apply are those cases that get settled out of court. The court is mandated to apply the Divorce Act, but individuals negotiating between themselves aren't. They can come up with any workable situation they want in an agreement.

If the court is mandated to consider a joint legal custody presumption first, that is then putting people who are in high-conflict situations in the position of being ordered, unless they can prove otherwise, that joint custody is the only way to go. We're taking the high-conflict cases to court, not the ones where they can resolve them. The Divorce Act should be applied to those cases that are going to court.

• 1240

Senator Anne Cools: On a point of order, could we have some clarification here, because she's using the term “go to trial” interchangeably with the term “going to court”. Many cases go to court, but only a small percentage goes to trial. They're using the words “out of court” when in point of fact many of these cases are “in court”, they just may not go to trial.

On the 70% she's talking about and the 30%, I don't know where those numbers have come from, but we should attempt to clarify very carefully that the ones that go to trial are not necessarily the highest-conflict cases. The ones that end up going to trial are the ones where one or the other party has the emotional or financial resources to complete the process. But many high-conflict cases fall halfway through the process as they are to go to trial.

I would just like some clarification in the use of language, because there's just so much confusion as to what she means by “out of court”, “in court” and “litigation”. I'm not clear at all what she means.

Ms. Jennifer Robertson: When I say go to court, I'm talking about cases that are resolved with a court order. Cases that I'm saying are out of court are those that are resolved by a mutually signed agreement. No court order is applied at all. It's done completely by the parents. The divorce may come through.

Senator Anne Cools: I doesn't matter what they agreed to, but in the end it has to be signed and given the authority of the court.

Ms. Jennifer Robertson: Not in New Brunswick, so perhaps that's the difference.

Senator Anne Cools: This is the Divorce Act, so there cannot be a difference. The Divorce Act in New Brunswick cannot operate differently from the rest of the land.

Ms. Jennifer Robertson: In New Brunswick they enter into an agreement and we append it to any divorce petition. The judge may see it, but they don't stamp it. The judge doesn't approve anything other than the support arrangements for the children. You will get your divorce without claiming any other relief from the court.

The Joint Chair (Senator Landon Pearson): Thank you. We need to move on because time is short.

Mr. Mancini, you're next on the list.

Mr. Peter Mancini: Thank you.

I'm afraid to muddy the waters any more. If I understand what you're saying, when we talk about the primary caregiver test, you say that 70% of the parties don't end up in a contested hearing or trial. The hearing is at a provincial level. Are you suggesting to us that in that situation those parties have resolved custody in favour of the primary caregiver? They've sat down and said they know who the primary caregiver is and won't call it joint custody. Or they may call it joint custody, but when you enumerate in the agreement the responsibilities, the person who has been the primary caregiver tends to end up with full custody. Is that what you are saying?

I like the idea that the primary caregiver is gender neutral, and you've indicated that historically it's been the mother. But would you agree with me that in the changing society in which we live, with the changing nature of work and economic structures, in fact the primary caregiver role is shifting? In my situation the primary caregiver is probably the baby.

But if we look at that, we see that more and more women are working outside the home. More and more men and women are working shift work or part-time work. Careers are taking us across the country from one end to the other on part-time contracts. The whole notion of who is the primary caregiver is moving away from the traditional presumption that it's the mother.

Ms. Lucile Riedle: Exactly. I think our recommendation states very clearly that the custody should be awarded to the primary caregiver, and on the face of it that is gender neutral. Of course, in families where the father has played the role of the primary caregiver, he would presumably be awarded custody if he asked for it. However, the reality until now in most families is that women are the primary caregivers and are perceived that way. There's certainly nothing to prevent men from reversing this alleged bias—and I repeat, alleged bias—easily by assuming half of the parental and family responsibilities during the marriage. Of course, there's a moving trend and we recognize that.

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Mr. Peter Mancini: Or to articulate almost in an agreement who was going to be the primary caregiver.

Ms. Lucy Riedle: Exactly!

Mr. Peter Mancini: I'm going to move on to two more very clearly contentious issues that have caused us a great deal of anxiety. One is the access denial. You mentioned this in your brief, and I agree with you wholeheartedly that the best approach is to make family court services more readily available, because in many cases access is frustrated and made worse because of the delay the process suffers getting into court.

My question to you on that and on the issues of false allegations, where you are at odds with some of what we've heard, is what do we do in those—and I stress this—few cases where there would be a finding of access denial? If we can get people into court faster and the judge can find that there's been a denial of access without justification in the judge's mind—and I stress there are few cases; I don't want anyone to think I'm talking about huge numbers here—or in the results of false accusations, should there then be some kind of criminal prosecution in the secondary category? Can you help us, because I don't know what you do in the primary category?

Ms. Lucy Riedle: We struggled with this and we had a hard time getting a handle on the numbers, first of all. We don't think the numbers are so high that anything new needs to be done, other than what is already being done, because there are provisions in the Criminal Code where individuals who make false and malicious complaints can be charged with a criminal offence.

We don't want to minimize or dismiss the pain that certain individuals have felt as a result of being falsely accused. It's certainly a very serious matter. On the other hand, we can't disregard the real pain that children feel when their disclosure of sexual abuse is not believed or not taken seriously. That's why in our recommendations we say that whatever numbers of allegations are made, falsely or otherwise, they should all be investigated.

Mr. Peter Mancini: Thank you.

The Joint Chair (Senator Landon Pearson): Mrs. Finestone, you're on the list, but in the interests of time, do you want to go? We're already 20 minutes beyond our time for this group and we have to leave, as you know, at 3.15 p.m.

Mrs. Sheila Finestone: Would you agree to the nomenclature of partnership parenting arrangements with definition of best interest of the child, or guidelines on best interest of the child, that would define in each instance how the judge or how the mediators would use the best interest definitions or guidelines? I ask this because if you have an overall caption that talks about partnership parenting, then you put the inclusions and the exclusions, not checkmarks, but guidelines for revision and for examination.

Thank you.

Ms. Jennifer Robertson: Yes, I do believe this is the ultimate way to go.

Mrs. Sheila Finestone: And then the exclusions. Thank you very much.

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

Senator Cools.

Mrs. Sheila Finestone: Was that fast enough for you?

The Joint Chair (Senator Landon Pearson): That was great.

Senator Anne Cools: Thank you, Chairman.

I have a very brief question. I wonder if the Advisory Council on the Status of Women, or any witness who wants to, could tell us the definition of primary caregiver, which is really new to Canadian law. The term is quite new to Canadian law. Second, perhaps they could also share with us the moral and intellectual foundation for the definition of the term.

Ms. Lucy Riedle: We certainly are against the idea that you have a list and you check it off and say this makes you a primary caregiver.

Senator Anne Cools: I just want to know what the term means, “primary caregiver”. It is very new to Canadian law. It's a new concept in Canadian law.

Mrs. Sheila Finestone: The whole concept.

Senator Anne Cools: It is totally new to Canadian statutory law, I can tell you.

Mr. Peter Mancini: In statutory law perhaps— I'm sorry, Madam Chair.

Ms. Lucy Riedle: When we look at the definition, we believe that the primary caregiver is the one who provides the physical, social, emotional and relational task of parenting, and that's as far as we can go in the definition, if that's any help.

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Senator Anne Cools: As it stands, then, you could say the definition is unclear.

Ms. Lucy Riedle: In our minds it's very clear, but if you want—

Senator Anne Cools: In writing statutes, we have to agree on what the term means.

Having said that, what is the moral and intellectual basis for your definition?

Ms. Lucy Riedle: I'm sorry, I can't reply to that because I'm not a philosopher or a psychologist.

Senator Anne Cools: I'll tell you why I asked that. It's my understanding that for 150 years, when we talked about primal needs and primal care it referred to bed and board. This would suggest that, using the traditional definition, primary care meant financial care.

Ms. Lucy Riedle: I think if that's the definition one would use, it's a very raw and unclear definition. Anyone can provide bed and board.

Senator Anne Cools: But that's what it was. That's what primal care meant.

Ms. Lucy Riedle: But I think we're beyond primal—

Senator Anne Cools: I'm just trying to show you that the terminology you have proposed flies in the face of the history of even the term itself. Primal care— I understand what your position is, because I think I know what you mean, but you have not made it clear here. That's quite all right, though, because I know what you mean, but I'm just reminding you that primal care was financial.

That is why 100 years ago custody included financial care. I just put that out to you.

Ms. Lucy Riedle: Maybe I'll go back and try to find a clearer definition.

Senator Anne Cools: No, I was just curious to know your definition, because we are putting— In the last many years, we have been putting many words into statutes that two or three people agree on as to what they mean, and I think we must be crystal clear and vigilant not to put some new unclear term into legislation.

Ms. Lucy Riedle: Can we leave that in your hands?

Senator Anne Cools: No, we cannot leave it because this term “primary caregiver” has only made its rounds very recently into these committees. In Bill C-41 it never came up. But that's beside the point.

The Joint Chair (Senator Landon Pearson): Anyway, they have promised to make an effort to go back and look at the issue, and we'd appreciate their response.

Merci beaucoup, Madame Riedle. Thank you very much to the two of you.

Ms. Barbara Gibson is now called to the table.

Mrs. Sheila Finestone: Madam Chair, you're having a problem with timing. Would you consider adding the 2 p.m. to 2.30 p.m. group, Brent Sherrard and Dennis Atchison, to the Barbara Gibson presentation, so we can hear all three?

The Joint Chair (Senator Landon Pearson): They haven't registered yet, but if Ms. Gibson could start, we're going to see— Are Barbara Corbett or Bill Borland here? We haven't received their registrations yet.

Please go ahead, Ms. Gibson, on the understanding you realize that we're running on short time. Please don't feel badly. We're glad to hear you anyway.

Ms. Barbara Gibson (Barbara Gibson & Associates): Thank you, Madam Chairman, honourable senators and members. I appreciate the opportunity to say a few words here.

I am here because I am a clinician who has been involved in far too many child custody assessments and have lived through the pain that families have been experiencing through having made a number of decisions that, perhaps, were not in the best interests of the children.

I'm wishing to speak about something that may help to heal that pain in some way, and that is parenting education programs for divorced and separating parents. This is an increasing trend that is growing by leaps and bounds.

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The first programs appeared in the mid-1970s; by the mid-1980s there were multiple court-mandated parenting education programs established within the U.S. At this time, at least 40 states—and it's growing daily—have programs in many of their counties. A 1996 survey identified 560 programs existing in North America, some of those in Canada. But we have far fewer in Canada, and that's the reason I'm here.

These programs are important, not because of their prolific growth but because the research results indicate that they are really making a difference for the families who participate in them. The methodology of the programs differs widely, but the goals and objectives tend to be consistent, that goal being to help parents and children cope with the difficulties of divorce. Those overreaching goals may be broken down somewhat.

Some of the examples of parent-focused goals in the programs include reducing parental conflict; increasing meaningful communication about the children; facilitating divorce adjustment; teaching parenting skills and co-parenting techniques; increasing social competencies that are critical to the children's post-divorce development; providing normalizing data on the impact of divorce; making the mediation process more effective—mediators indicate that those clients who have already had their divorce education accomplish much more in their mediation process—and helping the parents to understand the emotional and behavioural components of the divorce.

There are also child-focused goals of these programs: to educate the divorcing parents about the effects that could be expected at different developmental ages on their children; to help with creating a safe environment for the children and keeping the children out of the middle; to increase the awareness of the effects and to prevent a lot of errors that are made because people do not have the correct information available to them rapidly enough.

There are also court-focused goals: the reduction of complaints to the court; the reduction of litigation; the resolution of visitation and custody issues; and helping parents in understanding court procedures.

The programs themselves differ vastly. Methodology tends to include videotapes, workbooks, handouts of information, interactive exercises and lectures from persons who usually have a minimum of a master's degree in training in terms of presentation.

The programs vary in length from an astonishing 1.5 hours to 8 hours. It's unusual for any program to be funded or for people to be able to attend 8 hours of presentation; an average is 4 hours, usually broken into 2 sessions.

Some already developed and carefully researched programs are available commercially—for example, Jack Arbuthnot at Ohio University has a program; Sandra Brave or Elizabeth Hickey. There are workbooks, packaged programs, readily available.

Multiple funding sources normally cover these programs. It is very rare indeed for the client to pay for the program. There are some programs that charge as much as $100 for the client's participation. That's rare. Many of the programs charge nothing. In fact, about 22% of the programs in North America have no fee; 8% have a sliding scale. An average fee charged is $30, which of course does not cover an average of four hours of professional presentation in a group format. There are United Way grants. There's substantial funding in many jurisdictions provided under the Department of Justice, and that tends to be the largest chunk of funding.

Client satisfaction surveys that are normally given out when these programs are presented show well over 90% of people would recommend the program to other parents. Although they may have gone not wishing to go, and thinking there was nothing there for them to learn, they did indeed find that there was useful information.

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The Association of Family and Conciliation Courts is an international multidisciplinary organization that distributes survey information, provides workshops for leader training and accumulates internationally relevant materials on the latest in parent education programs. Three international congresses have been held—the first of those in Arizona in 1994; a second one in Florida in 1996; and a third in Colorado in 1997. I attended each of those in terms of looking for methodology for trainers and which of these programs are most effective. There's a great deal of enthusiasm about outcome research with these.

Increasingly stringent research standards are being applied to examining the quality of what goes on in the programs and the quality of the presenters. Presenters come from a variety of backgrounds, and include judges, lawyers, psychologists, mental health professionals of various types, court mediators, sometimes volunteers, etc.

Mrs. Sheila Finestone: Are there any judges?

Ms. Barbara Gibson: There are some judges, yes.

Mrs. Sheila Finestone: Good.

Ms. Barbara Gibson: Normally the judge does not present the whole program, but presents some portion thereof.

Mrs. Sheila Finestone: I meant as students; I didn't mean as giving the courses.

Ms. Barbara Gibson: Oh! Important point.

The importance of promoting parent education programs arises from the dire conflictual situations in which children are involved while their families battle their way through the court system. The legal system does indeed need assistance in enabling parents to help their children find meaningful solutions to child-centred problems. In most cases—and I'm sure you've heard this—courtrooms should be the last stop and the last resort in resolving family disputes.

My clinical experience and research I have read indicates that parents make a lot of harmful mistakes for the best of reasons and for the best of intentions. Very few have malicious motives. The errors are made because they don't have the information available for them.

The Joint Chair (Senator Landon Pearson): I know it's hard to teach parenting in one and a half hours, and it's even harder to do this in five minutes, but could you please come—

Ms. Barbara Gibson: I'll come to my conclusion.

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

Ms. Barbara Gibson: What I would like to advocate is that we do everything possible to enable the establishment of good-quality parent education programs for those 60,000 children involved in custody disputes last year, and all the rest of the children whose parents have been separating and divorcing within this country. And those need to be mandated.

The Joint Chair (Senator Landon Pearson): Thank you. You're recommending to mandate it?

Ms. Barbara Gibson: I strongly recommend to mandate it.

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

Mr. Lowther.

Mr. Eric Lowther: Thank you.

I think some of my questions were answered just at the very tail-end of your presentation, but I have three or four points I'd like you to address.

First, we've heard people say, “Look, I was a good parent before I was divorced. Why in the world do I have to go to any parenting program now? All of a sudden I've become a bad parent?”

Are these programs you're talking about focused on dealing with the trauma specifically surrounding divorce, and do they educate the parents on the effects on their children? That's number one.

Number two is, in your experience, have these educational courses ever been tied into the development of parenting plans? For instance, I can see that they're maybe a precursor to the development of a parenting plan.

Third—and I think you answered it at the end—we've heard people tell us that the ones who sometimes need this most won't go, and the ones who need it least line up for it.

Some of the concerns of people who don't want it to be mandatory are that they see two conflicting people put together in the same room and they think that's an uncomfortable situation, and wonder if they can take it separately.

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First then, is the education focused on the trauma around divorce? Can it be used in development of parenting plans? And can you speak to the positive side of making this mandatory?

Ms. Barbara Gibson: Yes. The answer to all three of your questions is yes, as you originally worded them.

It is not that people who were initially good parents have become bad parents. We never have practice at divorce. We practise keeping house, and there are lots of games of childhood relating to ordinary parenting. There are no games of childhood that relate to what you say to your child about the other parent, or how you carry out those transitions effectively, or what information is appropriate for what age.

So the answer to that first question is yes, it is very specific.

I've just lost the second question.

Mr. Eric Lowther: Can this be a precursor to parenting plans?

Ms. Barbara Gibson: Yes, it certainly can be. It's also found that the sooner the people go to these programs, the better they become at developing a meaningful shared parenting plan.

Mr. Eric Lowther: And the question of mandatory?

Ms. Barbara Gibson: That it be mandatory seems to be absolutely essential. It's mandatory in many states. In Georgia at this time, if you don't attend, you're considered in contempt of court. There are some states in which you cannot be granted your divorce decree until you attend, regardless of your occupation, whether you travel, or whether you already have three degrees in some mental health profession.

Mr. Eric Lowther: Should it be separate or together?

Ms. Barbara Gibson: That varies, depending upon the structure of the program and the degree of violence or specific concerns.

Mr. Eric Lowther: Thank you.

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

Mrs. Finestone.

Mrs. Sheila Finestone: Thank you very much.

I'm just curious; the companies in the organizations you noted are non-profit agencies, are universities. Where are you getting your materials?

Ms. Barbara Gibson: Materials are available through— The first one I noted is someone who is affiliated with a university. I wouldn't consider that it's probably non-profit at this point, given the price of the materials, though he may have started as non-profit.

Mrs. Sheila Finestone: I think the vision and goal behind this are laudable and certainly could be helpful in many, many cases, but one of my concerns is that I'm not interested in having teachers or mediators or anyone in this field that's touching such a vital part of the daily life of this country in many, many families, who is not highly credible, highly trained, and very sensitive and well-informed. I'm not saying this is you, but I'm always concerned when someone comes in selling a project or a program that's quite specific to a university base or a business base or a book base. I really want to know what the accreditation is. What is the training? What would you insist upon as a minimum?

You have a master's degree—I don't know in what, but you're obviously a well-educated person. Do you have, however, a degree that's relevant? These are the kinds of questions I think people have to ask when they go out to look for services of this nature. Is there some good-product stamp that we look for when we're going out to seek this kind of service—something like the Good Housekeeping award stamp that you had because it was a good product?

Ms. Barbara Gibson: I think it's very important and very relevant to examine the credentials of the professionals who are presenting their programs. I happen to be a psychologist, and the major portion of my work is with separated and divorcing families and their children.

Mrs. Sheila Finestone: Private sector?

Ms. Barbara Gibson: Private sector.

It would be the responsibility of those who are developing the programs to insist upon relevant standards, and there are standards available relating to that.

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Mrs. Sheila Finestone: As you well know, we went into the field of mediation, which was a very good concept, a very good idea, but we also noted that there were very few highly skilled and competent trained personnel.

Ms. Barbara Gibson: Yes.

Mrs. Sheila Finestone: Today there is an association of trained mediators. Today you can get a degree as a mediator, and today you can have recognition behind you because they now know input and outcome.

What is credible with input and output that would define for me if I was in the unfortunate position of watching my grandchildren in a difficult situation, or my own children...how would I know how to go and get an accredited source for this think of work?

Mr. Barbara Gibson: You would have to look carefully at the credentials of the people who are presenting. Usually there is a team of persons, often a lawyer, a psychologist and a social worker. You would have to examine that at this point on an individual basis, because this is not a separate profession at this point.

Mrs. Sheila Finestone: All right. Should it be attached, court affiliated, or a unit—let's put it that way—that would have a mediator, conciliator, arbitrator, or whatever you want to call it, psychologist, etc., whereby it would be a discipline, or is it something that your church should offer, or the social service centre? Should it be intimately linked to some kind of structure within your community?

Ms. Barbara Gibson: It is most naturally or realistically linked with the court structure.

Mrs. Sheila Finestone: Thank you very much.

The Joint Chair (Senator Landon Pearson): Senator Cohen was going to ask a question, but she's vanished. Unless there's another question, I think we need to move on if we may.

Mr. Barbara Gibson: Thank you.

The Joint Chair (Senator Landon Pearson): Thank you very much indeed for the useful presentation.

The Joint Chair (Mr. Roger Gallaway): I wonder if Mr. Borland, Mr. Atchison and Mr. Sherrard would come forward, please.

We had originally planned to have two groups of two people for half an hour each, but actually we find that it's more productive to have a small group in for an hour so the exchange is often better.

And I should tell you that Ms. Corbett was to be here, although she apparently hasn't arrived yet. She may join us.

A voice: She's arrived.

The Joint Chair (Mr. Roger Gallaway): Okay. She'll join us.

Perhaps we'll start with Mr. Borland. And I have to ask you to limit it to five minutes, please.

Mr. Bill Borland (Individual Presentation): Ladies and gentlemen of the Special Joint Committee on Child Custody and Access, my name's Bill Borland and it's a pleasure for me to have this opportunity to address you today.

My wife Louise Béland and I believe that we are well placed to comment on child custody and access because as a family we're able to see both sides of this issue.

On the one hand, over the past eight years I've had joint custody of my daughter Jessica, while her primary residency is with her mother. During these eight years I have consistently paid child support on time every month. Today I pay $1,300 per month towards Jessica's care. Jessica's with me in Saint John three weekends out of four.

From the time that Jessica was moved to Fredericton, I've had sole responsibility for her transportation in order to ensure her continued access to her Saint John family. As well, over the past eight years I've been in court three times, spent over $35,000 in legal fees in order to protect my daughter's right of access to me, her father, when attempts were made to arbitrarily have her rights reduced by her mother.

On the other hand, my wife Louise is self-supporting and has for 13 years had sole custody of her son Stan. During that time period support payments have been sporadic at the best. Louise knows first-hand the difficulty of having maintenance orders enforced from out of province and the heartbreak of knowing her son's biological father has no interest in exercising adequate or regular access.

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I believe that our 20 years of combined experience make us adequately qualified to speak on this subject. As a family we live with the fact that the cheque is not in the mail. And we live with the reality that any planned family activity can be cancelled due to a last-minute reinterpretation of the access agreement.

It is not our intent—and I say “our”, I'd like to be speaking on behalf of my wife as well—to try to be advocates for either of our situations. For the past number of months you've heard many a disheartening tale. Worst of all, we have seen far too few advocates for the real victims of marital break-up, the children.

We don't have a heart-wrenching story for you. We are very fortunate ones. My wife and I have the financial wherewithal to support both our children without Stan's support payments. We also, as I have said, have had Jessica home for six days a month. On Friday nights Jessica comes home, to her home, to her family, to her bedroom and sleeps in her bed. It's a luxury that she doesn't have when she returns to her Fredericton home on Sunday.

And why is this so? This is because of an arbitrary decision made eight years ago when only mothers could be primary caregivers.

Much time and effort has been placed on the monetary value and payment of child support at the expense of ensuring adequate custody and access for the child. This situation has deteriorated to the point where our children are becoming commodities. We've created a situation where custodial parents have become economically dependent on having these custodial benefits.

I'm very concerned that children of divorce could be appreciated only for their economic value, as a kind of equalization payment for the custodial spouse. Children are being subjected to the lowest common denominator of standards in Canada.

If I were to miss a child support payment, the family court enforcement people would be on my case immediately. However, if I want to enforce access provisions in New Brunswick I would be offered the following cold comfort: we don't expect parents to be perfect.

Any money spent on enforcing child support agreements is tax deductible. Any money spent on enforcing access comes out of the disposable income of the non-custodial parent. Child support guidelines are very clear and can be easily consulted. Access guidelines speak vaguely of the best interest of the child and shielding the children from the consequence of the divorce. Non-custodial parents are accountable to the courts for child support. Custodial parents, on the other hand, are rarely brought to account for arbitrarily changing or denying access.

There is a warranted concern that an increasing number of children in Canada live below the poverty level. Could this in any way relate to the fact that children of divorce are more often arbitrarily put in custody of single mothers who themselves are living below the poverty level? Why are children not allowed to live with the parent who's most capable of providing primary care rather than making children live with individuals who are not capable of caring for themselves?

In cases where both spousal incomes are low, this forces children to live in poverty in both homes. Again, it's the lowest common denominator. There's no question that children need to be loved and nurtured. This can and should be provided equally by both parents. But children also need to live in an environment where they know they have stability and security. Perhaps the ability to provide emotional, spiritual and financial support is a more important criterion to be considered in selecting primary caregiver than the issue of gender.

The most effective criterion for changing custody arrangements today seems to be to take the child from an unfit parent to a fit parent. Why not allow the child who lives with the fit parent to live with the more fit parent who holds the best interests and needs of the child above their own? Why not expect parents to be perfect? Why don't we get away from this lowest common denominator?

This then allows the child to live in an environment that will optimize the child's emotional and spiritual growth. As well, a regular pattern of contempt of court orders should raise significant doubt in a judge's mind about the wisdom of maintaining a child's primary residence with a non-compliant parent.

I didn't come here today with the expectation that this committee would be able to help the fate of my children. But I hope that, in some way, your committee will be able to make the necessary changes to ensure that the rights of future generations of children of divorce are considered before those of their parents.

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I will continue to use the resources available today to ensure that the rights of my son and my daughter are never compromised and that they are given an opportunity to grow in a physically and an emotionally healthy environment.

The rest of my comments were based on the fact that I thought I was going to be the last speaker of your session. Since I'm not, I won't read them.

Thank you very much.

Senator Anne Cools: Can we take those, Chairman, as read into the record?

The Joint Chair (Mr. Roger Gallaway): Do we have agreement?

Mr. Bill Borland: If you give me the chance to be the last speaker, I will do it.

Senator Anne Cools: Okay, so we'll do it later, then. Thank you.

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

Mr. Dennis Atchison (Individual Presentation): Thank you. My name is Dennis Atchison. Thank you for the opportunity to tell parts of my story.

I'm something of a statistical anomaly in that I'm a stay-at-home dad. I ran Special Olympics in this province for eight years and was married in 1988. We had children in 1991, and in 1992 my ex-wife's career was about to take off through the roof and I was at the end of my time with Special Olympics, with the burnout factor and all, and the children, twin boys, were one year old. So we made the decision that I would stay home and raise the kids and support her career.

We moved twice to support her career. During that period of time her salary tripled, and it was an excellent move for many reasons. It fell apart after two or three years, with all the usual stresses that go with working at the international sales level.

What I'm hoping to convey today is the experience of divorce in current times, being a stay-at-home dad and a man who raises children, and trying to get the system to acknowledge what I've been through.

In coming here today, I thought, “Where do I start?”, because it's been a labyrinth of details. I thought I would try to get to strategy and the process—the process I've been through and the strategy taken on both our parts, by my ex-wife and by me, and trying to find a voice. I found it very difficult, as a man raising children, to have a voice in the concerns of the kids.

Also, I'd like to make one distinction, and I'll do it early. For me, in my experience, there is a huge difference between custody and access.

I've never had an issue with access, except in and around the degree of frequency, based on fatigue factor of the kids as they got older and because my ex-wife lived a distance away and there was a fair amount of travel involved. We were still able to facilitate it and it still goes today, and for the most part that's good.

The issue is on custody and the decision-making for the children. They're very distinct things, and it was very difficult to get that message through the system as we went through different lawyers, different child psychologists, and different mediators. They still lumped them together. As a man trying to speak on behalf of the kids, which was atypical, on the distinction between those two, it was like I was layering too much on top of the system, which was more used to the dad being the access dad.

Basically my strategy and my lawyer's was to duck and cover. We signed a separation agreement. I was fortunate in that I managed to secure work two months after separating from my ex-wife. I secured a $30,000-a-year job. Unfortunately that didn't appease the process, as I was still told I was trying to drain her financially, devastate her financially, etc. We negotiated child support payments based on the information she provided, and I had the job, which then brought them down further, and a pattern finally seemed to unfold for the new structure. This was in September 1995.

By the time we got to January 1996, my ex-wife had filed for an interim motion to reduce child support payments, based on the fact that she was not informed that I had work. She went in front of the judge and said, “Well, he never told me he had a job, so I want to reduce it.” My ex-wife made a fair amount of money, and child support at that time was $1,800 for two boys. It was down from what the formula would be, which is $2,400 or something like that.

As an aside, I had no concern about the money. I was happy about whatever the system said. There's a formula. There's no point in arguing that stuff.

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If I can back up, another point is that there's a process in place to allow both parties to have equal representation in the court system. We were served the papers some five days before the court date. They sat on the information for a month and a week before. There was no informal contact between the lawyers to say that, by the way, we're filing, so get ready. We had five days' notice, and two of those days were on the weekend. My lawyer was busy with another case that week.

So we showed up at court and tried to negotiate a deal. The judge gave a pre-trial briefing. She said that she was kind of inclined, as it was pretty high, to maybe reduce it to $1,500. She said it was an interim thing. She said that if I wanted my 10 days' notice and the proper time to prepare, I had to go up there to do it and that it was going to cost me $1,800 in order to have the extra prep time, travel, etc. So one way or the other, the money was going to go.

So you make the decisions. Duck and cover. Keep it to a minimum. Get it done. Get out of there.

What I didn't know or understand at the time was the hidden agenda about the characterization of how I did this and how I did that. It was constant. It was said that I was not giving her access to the kids, that I was trying to devastate her financially, and trying to do this or that. It's all documented, so I don't need to give all the details.

That set up the next step, which was March 26, which is the one I've got to get to.

The Joint Chair (Mr. Roger Gallaway): You'll have to get to it quickly because your time is pretty well up.

Mr. Dennis Atchison: Yes, sorry. See? I did it.

On March 26, my ex-wife and her lawyer went in front of a judge ex parte. That day, the judge gave away the kids for three days and overturned a payment order because my ex-wife had failed to make child support payments on time and in full for a five-month period. The enforcement officer handling my case said that I didn't have to put up with this any more, and that I should put the payment order through. My ex-wife went in front of a judge ex parte and said that I was trying to embarrass her in the workplace. The judge overturned the payment order with an ex parte motion. I never had a chance to say anything, which goes back to the constant characterization of “the guy”, but as the dad raised the kids, it wasn't the case.

So it was a tough time. That same day, the judge gave away the house. He gave my ex-wife sole signing authority on the house, claiming I was trying to intervene with the sale of the house by taking the fridge, washer, and those sorts of things. Meanwhile, there was a letter of agreement back in September saying that I would get those appliances for the children to set up the new home.

I never had the chance to present that side of the story, which then goes to the process that I'm trying to get to: I never had the opportunity.

If I'm out of time, I should just stop.

The Joint Chair (Mr. Roger Gallaway): You're out of time. I'm sorry about that.

Mr. Sherrard.

Mr. Brent Sherrard (Individual Presentation): I'd like to thank you for the opportunity and privilege of appearing here today. I'm going to make my story short and to the point. You'll find it quite familiar but no less important in my life or that of my children.

I'm not here to make a plea for myself. It's the children involved in these matters who count.

I am the father of three beautiful young children, a son aged eight, a daughter aged five, and a son aged three. I have not seen them for 18 months as of yesterday. I have had no visitation whatsoever.

I was told by my ex-wife that this would happen upon the dissolution of our marriage. She explained to me fully what she could and would do.

The child protection services were contacted. Lies were told and taken as the truth. When I had a chance to prove that these stories were false, they were ignored. I beat my head against the wall for a year and a half.

On November 18, 1997, the family court judge issued a court order stating that the children were to receive counselling toward the end that they would be reintegrated into my life and I into theirs. As of April 9 of this year, the court had not even contacted the mental health clinic in Miramichi, N.B. We were to appear in court on May 12, which we did.

In January, two months after the court order, I took my copies of everything I had, which I got from my lawyer, to the head psychologist at the mental health clinic, who—thank God for him—initiated the counselling sessions with the children. They only went to four of them as a group of three.

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I now have in my possession a report from the psychologist, which the judge received the day before our May 12 court appearance, that vindicates me. What I said all along was true. I was so important in those children's lives. I had a whole community behind me who could prove it, yet nobody would listen, no matter how hard I pleaded.

The children are being psychologically manipulated. They now have to receive further counselling in order to understand why daddy disappeared. My three-year-old son is quoted in here as saying “Daddy's all gone. I'm going to get a gun and I'm going to shoot Brent”, who is Daddy. When he was questioned “Who is Brent?”, he said, “I don't know. I just know he is bad.” I will have to keep my eye out for a little three-year-old blond with a hand gun, apparently.

If somebody is saying these things in front of the children, the psychologist knows it and the judge now knows it. We have to receive counselling to try to straighten the situation out. It would have been straightened out at the first if only somebody had listened to both sides of the story. That is as plain and simple as I can put it.

I guess that's my story. I would like to say before I finish that I believe you will never again apply yourselves to such a novel and far-reaching endeavour, for the security and very futures of the innocent children rest in your hands. As a society, we have advanced little if we cannot guarantee these children a right to a loving and emotionally stable childhood.

May God be with you all. Thank you once more.

The Joint Chair (Mr. Roger Gallaway): Ms. Corbett.

Ms. Barbara Corbett (Individual Presentation): Thank you. Good afternoon, honourable members of the committee. My name is Barb Corbett and I come to you today with both a personal interest in custody and access as well as the interest of a concerned Canadian citizen.

The goal of my presentation is to offer a rationale for shared parenting and outline some of what I perceive to be the weaknesses in the current family law system. With each problem, I will provide possible solutions to amend the present structure.

It is time to shed our archaic notions of parenting and come to accept that both men and women have active roles to play in the growth and development of their children, both before and after divorce. No longer should men be viewed as the economic providers and women as the primary caregivers in families. The work of Edward Kruk, an assistant professor of social work at the University of British Columbia, provides a strong rationale for the continued involvement of fathers in children's lives after divorce.

He asserts that for those fathers who were highly involved with and attached to their children within the marriage, divorce can have disastrous consequences in the form of actual or threatened loss of one's children and the pre-divorce father-child relationship.

Such fathers facing divorce desperately want to maintain a meaningful relationship with their children, but the nature of traditional custody and access arrangements prohibit such a relationship, hence the need to change the current system so it reflects the best interests of children and both of their parents.

This can be achieved with the use of shared parenting models, as explained by Kruk and other researchers such as Elizabeth Hickey and Elizabeth Dalton, who have co-authored Healing Hearts: Helping Children and Adults Recover from Divorce.

Kruk contends that shared parenting has the ability to alleviate the separation anxiety that parents and children feel at the time of divorce. He says that shared parenting “ensures the preservation of attachment bonds with both parents in a continuous, secure and protected relationship”. He says:

Shared parenting exposes children to two lifestyles and two points of view, offering a larger array of positive characteristics to model, and a greater variety of cognitive and social stimulation;

Our current post-divorce family structure in no way embodies the relationships children enjoyed prior to separation and divorce. This pre-divorce structure saw custody as a joint and equal responsibility, and we must question why the end of a parent's marital relationship signals the end of their rights as equal partners in parenting.

The second portion of my presentation will focus on the inequities, as I see them, in the federal child support guidelines. There is an obvious emphasis on enforcement for support and no enforcement for access. There is more concern for money, both in the form of child support and tax dollars, than there is for the maintenance of family relationships and the quality of those relationships.

First, there should be automatic joint custody, except in extreme cases of abuse. Once children are removed from the divorce equation as a major source of income to one parent or the other, the focus will shift to the children's needs instead of parental conflict.

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If a parent opposes joint custody, that should not determine its barrier. A parent who opposes on the grounds that he or she is incapable of communicating with his or her former spouse should not be given sole custody, regardless of whether it is the father or the mother who makes such a claim.

Second, courses on shared parenting strategies should be made available to divorcing couples so that children can be placed first in the beginning.

Third, mandatory mediation services should be made available during the divorce process and after. For couples who still have difficulty communicating after divorce, it is a venue and a structure by which their children's needs can be discussed and agreed upon.

Most divorcing families do not have the financial means to buy legal advice. Those who must by necessity represent themselves are disadvantaged by the complicated nature of, for example, the software required for the standard of living tests. Materials have to be made more user friendly.

The children of divorce should have age-appropriate counselling to help them deal with their changing family and their own crisis as a result of the divorce.

The problems of divorce sometimes take years to manifest themselves in children. The removal of lawyers from the divorce process would greatly diminish the expense and adversarial nature of divorce cases. Because of legal fees, money is actually taken away from children and more acrimony created between parents because of the winner and loser reality of the current divorce structure.

The new guidelines should remove the consideration of a second spouse's income in the determination of child support in cases where undue hardship is claimed. Frankly, since support is based on the payer's income, this adversely affects the spouses of non-custodial parents. In my opinion, this is discrimination based on marital status.

It erroneously assumes that second spouses do not already contribute to these children's welfare in their own homes but compounds this with the sentiment that money should be transferred to the custodial parent's home based on a new spouse's income. This would negatively impact children of second families. It is also an incentive to custodial parents not to become economically self-sufficient. My view is that this practice will breed intra-gender conflict and add to the current acrimony of divorce.

Further, the economic improvement at the custodial parent's home through marriage should not reduce a non-custodial parent's obligation to support his or her children.

The Joint Chair (Mr. Roger Gallaway): Your five minutes is up.

Ms. Barbara Corbett: Okay. I had a few other points but—

The Joint Chair (Mr. Roger Gallaway): I am sure there will be a lot of questions. We will start with Mr. Lowther.

Mr. Eric Lowther: Thank you, Mr. Chairman.

To all the witnesses today and at the table, I applaud you. It would be easier not to come here. Clearly, anything we are doing is not going to be an instant fix for your own situation, but you have taken time to prepare comments and you are making an investment for the benefit of others who follow you, out of your experience. I applaud you for doing so and I appreciate it, as we all do on this committee.

I do not have a lengthy question but I have a question to Mr. Borland, who has an access plan.

I have read the recommendations you have given us here. One of the things I am curious about—I am glad you have an access plan, but we are talking, as the last speaker mentioned, about parenting plans—is how people make decisions if it is simply an access plan. For instance, what school, what dentist, what doctor, what music lesson, what class? How do you work that out? Is that a point of ongoing contention or is that part of your access plan?

Mr. Bill Borland: The access plan is not as formal and as well described as it may have sounded. To answer your question, I think the reason it works is because she lives in Fredericton and I live in Saint John and they are an hour and a half apart. As to the business of going to school, she goes to school in Fredericton. For the past eight years I've picked her up on Friday afternoon and I bring her back on Sunday night. Her activities through the weekend, which include swim class, dance class, piano lessons, Sunday school and church, are basically at my discretion.

In issues relating to school, I take a very active part in parent-teacher meetings at her school in Fredericton. She has just gone to an orthodontist. I showed up at the first couple of meetings, where there was need for an exchange of information. I would get involved in that.

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I think the reason it works so well is distance. There is no reason for me to get involved in the day-to-day schooling. I get involved in weekend homework.

Mr. Eric Lowther: I do not want to get too far into this, but it could be instructive in the parenting plan development thing. Is there one parent who is seen to be primary or calling the shots on decisions, or when something comes up like, maybe, wanting to send her to a private school, do you say “What do you think?” I want to know if you come together on it, or if one says “I'm the one who decides that”.

Mr. Bill Borland: There is a certain amount of the latter. You've really hit a sore point. I send my stepson to a private school. Jessica would be eligible to go to that private school in September. So that is one that I am going to have to deal with. It has been brought up, and the answer was sort of a qualified no.

Mr. Eric Lowther: You kind of work it out as you go, I guess.

Mr. Bill Borland: That is right. We started out with mediation, which I thought was a really good idea. It did not work.

We have tried in the last number of years to stay away from lawyers because it was getting very expensive. I had to pay for lawyers. The province paid for her counsel, but that was the only approach that I had.

I had another thought, but I just lost it.

Mr. Eric Lowther: Thanks a lot and thanks to all the witnesses.

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

Mr. Peter Mancini: Mr. Chairman, thank you.

I too thank the witnesses for coming before us. Each of the witnesses, Mr. Atchison, Ms. Corbett— Mr. Sherrard, I believe I know your brother. I will remind him you have the height in the family. I will start with Mr. Borland, because he has given us some recommendations that I find interesting.

I have some concerns about one of the recommendations you made, or impressions that I drew from your comments. I'm not sure I'm right on this, but it is something I think I have to explore.

You mentioned single mothers, and at one point you used the line “Why not expect the best from each parent?” I felt there was an indication that part of being the best parent was measured by the one who derived the best income.

I wonder if you would agree with me that in some situations— In fact, Mr. Atchison's situation is a prime example, where one parent will become the primary caregiver, give up their career, give up their earning potential to advance the economic interests of the other partner in the interest of the entire family unit, and then find themselves in a divorce.

Surely you are not suggesting that because they do not have that income or they find themselves without income or below the poverty line, it somehow disenfranchises them from taking full custody of the children, are you?

Mr. Bill Borland: No, not at all. A lot of time was spent on this, trying to make it gender neutral. The one reference to single mothers was the fact that a lot of single mothers who are below the poverty line have access to children, which then puts children below the poverty line.

I think the one thing I would try to advocate here is that you cannot buy your kids. Just because an individual is the higher wage-earner does not make that person a better parent.

Given a situation where there are two loving, nurturing parents, both of whom would like to be the prime caregiver, if the child will be better off with one parent than the other, then I think that needs to be taken into consideration, whatever those criteria are.

The criteria I see being used now are not focused around what is best for the child overall.

Mr. Peter Mancini: What criteria would tell us what is best for the child?

Mr. Bill Borland: I think financial security is an important one. I will give you an example of why I picked the words “security” and “stability”.

When Jessica was moved to Fredericton, we lived in a house in Quispamsis, outside Saint John. I still live there. She still lives in the same home in Quispamsis, the same bedroom. This is her home. It is her family.

During that same time period, she has lived in seven different houses. During that time period, I have heard my daughter say “It is really sad. Mom and I don't have enough money to make ends meet. Mom and I can't do this. Mom and I can't do that”. That is not true. You can't explain to a five-year-old or a six-year-old, “Don't believe a word your Mom says. I'm paying big bucks to keep you secure.” I don't like the idea that my daughter is of the opinion that her security and stability is in question.

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As of the middle of February, my daughter moved with her mother into her aunt's house and shares a room and a bed with her mother. I keep saying the money is not important, but I don't pay $1,300 a month for my daughter to be sharing a bed with her mother.

Mr. Peter Mancini: Do you recognize that upon divorce, almost by necessity, the living standard of the children will go down, because where there was one household with one power bill, one grocery order, one mortgage payment, there are now two rent payments, two power bills and two sets of transportation costs? Almost of necessity, lower living standards are a consequence of divorce.

Mr. Bill Borland: In most cases, yes. It does not have to be, though.

Senator Anne Cools: Is Mr. Mancini saying that women cannot afford to get divorced?

Mr. Peter Mancini: No, I'm not. And I don't know why you would think that from my comments, Senator.

Senator Anne Cools: I am just asking for clarification.

The Joint Chair (Mr. Gallaway): Let Mr. Mancini finish.

Mr. Peter Mancini: I am saying, is there a way around that? In my experience of 14 years of practising family law, almost inevitably my first words of advice were to look at this. When you're in divorce, one has to recognize that somehow the pot of money is going to be depleted to keep the child's standard at some level.

Mr. Bill Borland: In this particular situation, that is happening. As I said in my presentation, my wife and I have the financial wherewithal to support both our children. We do not need the support payment that would come in from Stan's father.

I am not suggesting that the $1,300 is a burden on me. But I do not think that is helping my daughter any. I think she has a lower standard of living where she is now than she would have if she were living with me.

This may be a unique situation, but I do not think we can write black and white rules to relate to our children. There are a lot of grey areas out there. We have to take the time to look at those grey areas, but nobody should be allowed to buy their kids.

Mr. Peter Mancini: I have probably used up my time, Mr. Chairman.

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

Mrs. Sheila Finestone: Thank you very much.

I am particularly interested in the diversity of the cases before us and the witnesses. I thank you all, each with your different approaches to a very serious problem. It is social, legal, cultural, moral and all those things, particularly emotional.

I first would like to speak to the issue of the men as custodial parents. You reminded me, as you started to speak, of the cartoon “Adam”, who is the custodial father, and the problems he has.

I gather that is something that you live. Did you feel that sense of discrimination or some sense that they had no respect for you because you were a custodial father?

Mr. Dennis Atchison: I agreed to joint custody but wanted primary care, primary residence. I was trying to get at the decision-making issue.

Second, all through the process I found an imbalance in the ability to be heard, and I found it to be gender rooted. Whenever I spoke to that, I was quickly tongue-lashed and told, “No, no, that's not the case. That does not happen.” But in every instance through the process, and there were two child psychologists and mediators—

Mrs. Sheila Finestone: I am sorry. Because we have to catch planes, buses and trains, I just want to know something. Is it your recommendation that the language of gender neutral needs to be reinforced?

Mr. Dennis Atchison: In order for fathers to have a voice in raising their children as primary caregivers, you have to take gender out of it. I wish in some ways—

Mrs. Sheila Finestone: Gender means male and female.

Mr. Dennis Atchison: They labelled me the primary caregiver instead of the dad, because as the dad in the conflict situation I am still surviving. I cannot compete with the mothers, even though the mother in this case is the access parent. I can't compete against it. When you adopt a strategy of constant accusation—

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The system is also quite ahistorical. No one went back and checked the facts. There wasn't time, and it drove me crazy, because I didn't have a voice, and no one in the system— I was counting on the judge to look at the facts. I was counting on the child psychologist to look at the facts. As a man who raises children, I'm voiceless. I need a third party to come in and clean that up for me. It didn't happen.

Mrs. Sheila Finestone: Thank you. You speak with the voice of many people, whether male or female—non-genderized, if I can put it that way—who had nothing but aggravation from lack of respect for their opinion before the court.

I wanted to ask you something, Mr. Sherrard. Does the nomenclature of custody and access play any kind of winner-loser aspect in what you've been living through?

Mr. Brent Sherrard: It's the most basic aspect of it. It was explained to me by my wife, “You will never see the children again. I will ruin you.” That's not a normal way for anyone to act. I said, “I'm sorry you feel that way, but it will not happen that way.” She informed me, “Yes, it will. I will say and do what I want. I will be believed and you will be totally ignored.” Unfortunately she was telling the truth, much to the detriment of the upbringing of the children.

I could have filled this room full of witnesses who would have come in and said, “Yes, it was always daddy with those children.” I was removed from their life. As my three-year-old son said, “Daddy all gone.” That's all they know.

My wife won. She had some choice words for me on May 12 at the courthouse. When our daughter, approximately a month before, was mauled by a dog, I made numerous phone calls to counsellors, child protection services, and the hospital to find out how she was. I finally got through and found out she was okay, but it was a month after the fact. I was not even considered in the equation. I know she was looking for her daddy.

Mrs. Sheila Finestone: It sounds to me as though there needs to be some re-education and training. We should be very pleased that the human rights organization was tasked with respecting gender and the right of parents who have partnership and parental responsibilities, even if they can't live together as two human beings.

Mr. Brent Sherrard: Yes.

Mrs. Sheila Finestone: I think and I hope that will have some impact so that you do know where your children are, which is your right.

With respect to your presentation, did you want to add a few last words?

I was going to ask you for your last words, sir.

Ms. Barbara Corbett: I was just going to say I hope it's not going to be me who has the last word in.

I had just a few other suggestions and recommendations, which I do intend to submit in written form to your committee.

Mrs. Sheila Finestone: Instead of reading the whole thing, you can just recap your recommendations, as direction and help.

Ms. Barbara Corbett: Okay.

Currently there are support payment plans in action in provinces. That would be an excellent way to generate information about the status of access for non-custodial parents. You could use that mailing system you currently have in practice, where support cheques are mailed through the family courts to the custodial parents, and use the receipt part as an assistant to finding out information from non-custodial parents about their access problems. Because mail-outs are already going to these people anyway, you could ask for a survey. That could be a source of information.

Another thing is, parents who are non-custodial should have recognition for their parenting that is less than 40% of the time. I realize currently there isn't.

Finally, I have just a couple of ideas about parents who deny access. Perhaps they should carry out community service for the number of hours they have denied access to the non-custodial parent.

Voices: Oh, oh!

Mrs. Sheila Finestone: You know something, young lady? That is marvellous. That's the best and most constructive piece of advice we've been given as a committee. That's perfect. We'll empty the jails of low-threat criminals and we'll also at the same time get back to work with children.

Ms. Barbara Corbett: Thank you for your time tonight.

Mrs. Sheila Finestone: Thank you.

Sir, as you are the high-profile gentleman here—

Mr. Bill Borland: Well, I knew I was going to be the last speaker, and after six months and over 400 witnesses, I knew you were really looking forward to being done.

Mrs. Sheila Finestone: No, I'm really going to ask you a specific question.

Mr. Bill Borland: Oh, I'm sorry.

The Joint Chair (Mr. Roger Gallaway): Could you ask just one question? We're just about out of time and we have two other people who want to ask questions. I want to give Mr. Borland the opportunity to finish his poem or whatever.

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Mrs. Sheila Finestone: Mr. Borland, I would like very much to hear what you have to say about parental responsibility, action, and plans, please.

Mr. Bill Borland: As a society, I think we take parenting a lot for granted when we have a mom and a dad and a family who don't have any conflict at all. When you end up with a situation where you have a mom and a dad and a family that's full of conflict, I think they need help, and you can't leave it to them to go find their own help. I think you have to make them do it. It's not because I want to make the parents feel any better.

For the kids, those parents have to learn how to become parents—this is why I talked from the point of view of a staged plan—to the point when the kids are old enough to take part in that discussion. They have to be a part of it. The whole premise there is that people don't do that because they want to, they should be doing it because we're telling them they have to do it to take care, as a community, of our children.

Mrs. Sheila Finestone: Thank you very much. I hope our children will all be better served in the future, and I hope there will be fewer divorces and more peace. Thank you very much.

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

Senator Cohen.

Senator Erminie Cohen: Thank you. My question is for you, Mr. Atchison. It's just a comment.

This morning, you made the statement that you had never had an opportunity to present your case to the court. We had a witness this morning, Mr. Parks, who had the same problem. He made a recommendation that when you had access to court, a written history of the relationship of the parents with the child—the family history—should be submitted as an official document at that time.

I think we have to take a hard look at that, because you're not the only person who has come before us—I mean especially men—who said that they haven't had such an opportunity. Then boom, boom, boom, it's over, and your whole life is upside down. I just wanted to make that comment and have it on the record. We should have some more discussion on that.

I'd like to hear your opinion, just before we wrap up.

Mr. Dennis Atchison: The ex parte motion that happened that day was unique in that it had never happened before in the history of New Brunswick law. This was the overturning of a payment order with an ex parte motion. It pointed to something wrong in the system. It cost me $4,000 to go back to appeals court get the payment order put back in place and have the system kick back in. But it really did point to the difficulty in being heard and the history.

Anything that will allow some sort of a level playing field— The odd thing was that although I was a stay-at-home dad, I was still characterized with all the negatives about males, for lack of a better expression. What I needed was a level playing field and a system that heard both and made decisions on that test for the best interests of the child. My assumption was that, over time, the system would see the behaviours of both parents through the system, through the constant rain of accusations or the responses to those, and make judgments based on the behaviours. Judgments would be not on what they said they would do but on what they were doing.

If that document could address that, it would be great.

Senator Erminie Cohen: Unfortunately, a lot of the judges who make the decisions don't come from the same world where men were parents. They could never, ever identify with any history like that. Right away, there were two strikes against you.

Mr. Dennis Atchison: Yes, and going into the system, we knew it was going to be difficult, which is why we took the duck-and-cover approach and just let it play out.

I had to turn it around. From March 26 on, I had to turn it around and confront and deal with every accusation one by one. It cost me about $17,000, and we're still not done.

Senator Erminie Cohen: I wish you luck.

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

Senator Anne Cools: I just wanted to give Mr. Borland an opportunity. Perhaps we could just take his statement as read.

The Joint Chair (Mr. Roger Gallaway): Well, I don't know how long it is. Let's find out.

Mr. Bill Borland: It's 45 seconds.

The Joint Chair (Mr. Roger Gallaway): Read it, please.

Senator Anne Cools: Okay, then give your statement.

Mr. Bill Borland: This is my sense. I've been following your tour across the country, and you've taken a lot of abuse. As one of some 400 witnesses who have appeared before you, I want to thank you for your patience and understanding. Your committee has exposed very complicated issues of child custody and access, and I think you have raised an awareness of perhaps the lack of consideration of child rights in this troublesome issue. I wish you luck in your deliberations and I hope you come to some speedy resolutions to solve the problems that plague this entire system.

In the short term, I hope the Canadian judicial system has listened to your proceedings and will be more open-minded and balanced in their future decisions. As one individual who has worked within this system for eight years, I see your efforts as one final ray of hope that I may be able to correct the wrong that was committed some eight years ago.

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I thank you very much for the efforts you've put into this.

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

Senator Cools, you had a question?

Senator Anne Cools: It's not really a question, because my questions have been pre-empted, in a funny sort of way. But I'm used to being pre-empted; I'm a senator, and a Liberal one, too.

I want to thank Mr. Borland and these witnesses, because the situations they have described we have heard bountifully.

The important thing, I think, about Mr. Borland coming to us today is that as a witness he speaks to many different kinds of people, including the individual who is traditionally so well established in the community that their problems are not attended to. It's assumed that highly placed persons in the community have no problems, or can have no problems. I thank Mr. Borland very much for coming forward.

I have heard these stories endlessly. It doesn't matter whether that individual is paying $15,000, $10,000, or $100 a month in child support; problems are across the board. They are rampant.

I really thank you all for coming forward, because what you are speaking to mostly is not even the law itself but prejudice. I think in the newspaper article today that featured you—and I've forgotten the name of the article—they were talking about the parades of political correctness.

So I really thank you, because the real issue before us is that we can no longer ignore the concept of the best interests of the child. It has been our duty to expose, as Donald Moir in British Columbia says, the “hypocrisy and the lie”.

M. Scott Peck, a psychiatrist, has a term for this: “people in the lie”. Well, we have exposed the lie.

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

I also, on behalf of the committee, will thank you all for coming here today. I know you're revealing your personal lives, in a sense, your personal details, and I know it's not easy. We do appreciate the fact that you have taken your own time to come here and to contribute to the work of this committee.

To those in the audience, I know some have in fact travelled with this committee in the maritimes. This is the conclusion of our trip to the maritimes, and we're glad we were able to finish up here in New Brunswick, in Fredericton.

This committee is now adjourned until Monday at 11 a.m., in Ottawa.