EVIDENCE
[Recorded by Electronic Apparatus]
Wednesday, June 3, 1998
• 1533
[English]
The Joint Chair (Mr. Roger Gallaway (Sarnia—Lambton, Lib.)): I wonder if we could begin this meeting by first asking our witnesses to come to the table, please. While they're doing that, I want to make our usual announcement that this is the 34th meeting of this joint committee studying custody and access under the Divorce Act.
Today, colleagues, I want to point out that this is the last day for our colleague, Senator Duncan Jessiman. He is leaving us, as Senator Pearson said, not by choice but by the effluxion of time. It has something to do with a calendar. On behalf of us, Senator Jessiman, I want to say how much we have enjoyed having you here and what a grand contribution you have made to this committee. I think we will be calling you back when we get to the report-writing stage because you have been very much involved in this process. I know your involvement precedes the formation of this committee. Thank you on behalf of everyone.
Senator Duncan J. Jessiman (Manitoba, PC): Thank you, Mr. Chairman.
Senator Anne C. Cools (Toronto Centre, Lib.): I would also like to join with Chairman Gallaway to wish Senator Jessiman well in his next career. I also want to say, quite frankly, that it has been a pleasure and an honour to have known him and to have had him in the Senate with us for the years he has been there. I wish him well in the future.
• 1535
The Joint Chair (Mr. Roger Gallaway): I think we all echo that around the table, although I would make one comment, Senator Cools, that you used the past perfect “to have known him”, and I would say “to know him”.
Senator Anne Cools: That's right, but at least, Chairman, you recognize the tenses. We're now into an era where scripted English and the knowledge of grammar are rare phenomena.
The Joint Chair (Mr. Roger Gallaway): Having said all that, I'm sure our witnesses are quite confused and mystified by what's going on here today.
We have with us, for the first half hour, Mr. James Atwill, Ms. Lynne Cohen Ben-Ami, Mr. Joseph Ben-Ami, and Mr. George Lloyd. I assume you've been told, but I will repeat it, that we ask that you keep your comments very brief, five minutes or less. We will begin with Mr. Lloyd.
Mr. George Lloyd (Individual Presentation): Thank you very much, distinguished ladies and gentleman of this committee, for allowing me to appear here today. It would take me at least two hours to say what I have to say, but I'll make a few brief points. I haven't made any notes, so I'm just going to speak off the top of my head.
I would like to read two direct quotes to you. The first is “Fathers who complain that they cannot enforce their access orders are all liars”. I understand I have parliamentary privilege here, but I am very reluctant to tell you who said that, except to state that he is a well known person in public life.
The next quote is “Ontario's family laws are designed to protect women in traditional marriages”. That was made by a lawyer by the name of Bob Charney, who was representing the Government of Ontario before the Supreme Court of Ontario on March 18 of this year. I note with interest, to combine those two quotes together, that fathers simply are not protected in family law.
I have not seen my 15-year-old daughter in 11 years, and the reason for that is—and I want this committee to understand very clearly—it is not possible in Canada to enforce a court order for access. Court orders for access are totally, completely, fundamentally, absolutely, and utterly unenforceable in this country, and that is unacceptable.
Why do I come here today? I've been after this for well over 11 years, but basically I was referred here by lawyers. I was referred here by judges because of the nature of their rulings from the bench. I was referred here by the Ontario ombudsman. I was referred here by the Attorney General's office at Queen's Park, and I have no other place to go.
I want to see my daughter. I do not understand why that cannot happen. I'm a father and I've done nothing wrong. There is no question of any inappropriate behaviour on my part and there never has been. But I cannot see my daughter because courts do not respect themselves.
I go before a court and the judge issues a court order that he willingly and knowingly has no intention of enforcing. That judge should not be sitting on the bench. I do not understand why our justice system lacks integrity. The result of all of that is people like myself simply do not respect it, and that cannot be allowed to continue. A court order is the law, and I'm of the opinion that the law must be respected. That is contrary to the opinion of many judges.
• 1540
Lawyers in private practice have told me they are of
the opinion that the justice system is in the process
of collapsing. I am of the opinion that the justice
system has collapsed. The law must have integrity.
The law must be respected, and it must be respected by
everybody in the justice system, which means I should
be allowed to see my daughter. Why can't I?
Why does my ex-wife do this? I have no idea. You're asking the wrong person. I have no idea why she doesn't want me to see my daughter, our daughter. I have no idea whatsoever, and she is not required to explain that in court either.
It is useless to go to court to deal with this question. It costs tens of thousands, hundreds of thousands of dollars in legal fees, and you will get absolutely nowhere. It's a make-work project for lawyers. I don't mean to denigrate lawyers here, but that's what the justice system does.
First of all, I want to describe something, if I haven't run out of time.
The Joint Chair (Mr. Roger Gallaway): You have one minute.
Mr. George Lloyd: Okay. I have a couple of recommendations.
First, I think it's imperative that there be a policy statement from the Government of Canada that fathers, in principle, must be allowed to see their children. Without that I don't see progress being made.
I believe that family law must be transferred to the exclusive and sole jurisdiction of the federal government. I do not believe the provincial government should have anything to say in family law whatsoever.
Denial of access must be dealt with under the Criminal Code. Denial of access is child abduction and must be dealt with by the crown attorney.
You must limit the mother's mobility rights. If she's allowed to move any distance away, you're essentially saying the father cannot see the child any more. The Supreme Court has upheld that and it's unacceptable.
The other major issue is compensation. How much compensation am I entitled to receive—are fathers entitled to receive—due to the wilful, deliberate, and illegal actions of the mother, due to the wilful and outrageous behaviour of the justice system that does not believe fathers should be allowed to see their children because it won't enforce access orders? It is unacceptable for the justice system and judges to declare that whereas it is in the best interests of the child for the father to have access to the child, it is however not in the best interests of the child for the court to enforce the father's access orders. That is all the proof you need to accept the fact that court orders for access are worthless. Thank you.
The Joint Chair (Mr. Roger Gallaway): Thank you, Mr. Lloyd.
Mr. Ben-Ami, I understand that you and your wife will be sharing the time. Whichever one is going to speak, please proceed.
Mr. Joseph Ben-Ami (Individual Presentation): I'll be speaking on our behalf, sir.
First of all, let me thank you, ladies and gentlemen, for giving us the opportunity to speak to the committee today. Because time is limited, I'll get right into the meat of our presentation.
Lynne is my second wife. My first wife left me and our two children, a boy and a girl, aged nine and seven, in December 1995. For three years prior to her leaving, I was the stay-at-home parent. I worked part-time while the children were in school. My ex-wife was and remains a full-time employee of the federal government.
In early 1996 we attended some mediation sessions. The outcome was an access agreement, the specifics of which aren't important to our story today. The children were to remain in my physical custody, as they were at that time.
Four months later my ex-wife changed her mind regarding the mediated agreement, and when I refused to renegotiate, her second lawyer at the time served me with a motion asking the court to award her full custody of the children on the grounds that I was abusing them. This motion included no exhibits to substantiate these horrendous allegations and no report was made to the police or to Children's Aid. Indeed, the motion itself was not filed with the court. Instead it was used as blackmail to try to force me into acceding to her demands. I did not acquiesce at that time and the motion was never filed.
This incident cost me much time, stress, and money. I was angered that a lawyer, an officer of the court, would participate in such a mercenary strategy. I complained to the law society that he had made false charges in the name of advocating on behalf of his client. Their response was that it happens all the time and there's nothing illegal about it. I was stunned at their lack of concern for his unethical behaviour. However, in the interest of the children, I decided to let the matter drop.
• 1545
In the meantime, my children introduced me to a woman,
a single mother, who they had known for some time, and
after a brief courtship, we decided to get married.
When our intention became public, my ex-wife again came back on the scene. She stopped submitting drug and dental claims on their behalf to her public service health plan. She withheld the children on several occasions, once for almost a week, until I agreed to do certain things that would postpone my marrying and us settling down. To every outside observer, she was acting out of malice and in a manner that was most harmful to the children.
Lynne and I married in February 1997. In March 1997 I was forced to set down a motion with the court asking for interim sole custody and a change in the access schedule due to certain medical conditions that I won't elaborate on right now. In response, my ex-wife filed a cross-motion asking for sole custody of the children and a restraining order, preventing me from seeing the children, alleging once again, although it was 17 months after the separation, that I had abused her and them. Again no evidence was submitted in support of these outrageous accusations.
On the other hand, I obtained a great deal of testimony disputing the allegations, from several doctors. I also obtained testimony from neighbours, former housemates, friends, the school principal, and our rabbi, contradicting her allegations and proving that she was being dishonest.
Much to our dismay, the first words of the judge at our first hearing, Madam Justice Cathy Aitken, here in Ottawa were, “Sorry, I haven't read the material.” Imagine being compelled to prepare this material in great form and detail by the ponderous rules of civil procedure. Imagine the rush to file it with the court before the deadline so that the evidence is in the judge's hands well before the hearing, ostensibly to give them the opportunity to review it. Imagine the expense of preparing the material, and then the frustration of having all this effort expended, with trust and good faith shattered by the casual, dismissive “I haven't read the material.”
After listening to the accusations of physical and sexual abuse made by opposing counsel, all without any evidence, and the vehement denials by my counsel, the judge proceeded to pay homage to that great Canadian tradition of not taking a stand on anything and ruled not that I was abusive, but rather that I might have abused my former wife and the children and that I might be abusing them now. After writing this gratuitous observation into her endorsement, an observation that I might add has followed us for the last 18 months through the court system, Her Honour then ordered that the children's primary residence remain with us, Lynne and I.
Ladies and gentlemen, parents often lose their children due to false accusations of abuse. Tragic though this may be, one can take some comfort in the fact that at least judges are taking the best interests of the children into account, making sure that their orders, if mistaken, at least err on the side of caution. But in our case, that didn't happen. Our judge was singularly uninterested in the children's best interest. Otherwise, how could she order that the children live with us if she thought I might be abusing them?
The access schedule ordered has been disastrous for the children. Even though Lynne and I are looking after the children 75% of the time, the judge ignored my financial statement, my tax returns, and my bank records and accepted the unsupported allegation that I was hiding money. She ruled that I had not provided her with enough information for her to rule on support, a mere five days before legislative changes made that information irrelevant. Instead, she ordered that the children's mother was to purchase all their clothing, as if we could all simply get along.
The order was not just inconsistent with evidence, it contradicted itself. It said the children were to be returned to us at completely different times in two separate paragraphs. It also made access for the children's mother contingent on her fulfilling a number of conditions, but did not spell out what was to occur in the event that those conditions were not met. As a result, we were forced to return to the same judge three months later to obtain clarifications regarding access, clothing purchases, and so on.
Surprisingly, at that meeting the judge made a new access order, placing the children in our care up to 80% of the time. Instead of awarding statutory support, she told us to bring a new motion.
• 1550
Rather than writing her order, this time she made it
verbally. The lawyers agreed to a draft order, which
was subsequently registered with the court but which
did not include the instructions that we were to bring
a separate motion for support. I brought that motion
in the fall of last year, without a lawyer, because I
can't afford a lawyer any more.
During the hearing before Mr. Justice Doug Cunningham, again here in Ottawa, my ex-wife's fifth lawyer argued not that there was no need for support, but rather that the motion should never have been made on the grounds that Justice Aitken had already ruled on it, even after decreasing the mother's access time.
I was unable to provide any evidence to the contrary because, shockingly, no record was made of the August meeting with Justice Aitken. Indeed, I learned that no record was ever kept of proceedings and interim motions unless specifically requested by the parties in advance. Unless the lawyers and judges remain the same throughout the litigation, which is rarely the case—
The Joint Chair (Mr. Roger Gallaway): I really hate to bother you, but you're over time.
Mr. Joseph Ben-Ami: I'm sorry, sir. I thought we were sharing the time.
The Joint Chair (Mr. Roger Gallaway): You are. But it's five minutes, I was led to believe.
Mr. Joseph Ben-Ami: You mean, it's five minutes for both of us?
The Joint Chair (Mr. Roger Gallaway): Yes.
Mr. Joseph Ben-Ami: Oh, combined.
The Joint Chair (Mr. Roger Gallaway): Under the circumstances...have you almost finished?
Mr. Joseph Ben-Ami: Yes, I have almost finished, sir.
The Joint Chair (Mr. Roger Gallaway): How long do you think you'll be?
Mr. Joseph Ben-Ami: One minute.
The Joint Chair (Mr. Roger Gallaway): All right. That's fine.
Mr. Joseph Ben-Ami: I know I'm running overtime, but I have some recommendations to make.
The point I'm making with respect to this is that Justice Cunningham, first of all, dismissed my motion and even ordered me to pay my ex-wife's legal costs.
When we approached Justice Aitken to resolve the issue, since she was the only one who would have kept notes of her decision, she refused to meet with us and opposing counsel on the grounds that Justice Cunningham was the last person to rule in the matter.
Justice may have been denied and the law may have erred, but the rules of procedure were meticulously followed. As a result, the children and I have been without financial support for two and a half years, and my wife and I are out several thousands of dollars in wasted legal bills.
Sir, I'll just cut right to my recommendations, if I may.
The first recommendation we have, from our experience—and this is only a very small part of our horrendous experience—is that obtaining child support payments should be an administrative procedure, rather than one that should be litigated.
The only thing judges should rule on is access and custody. Once that has been sorted out, a custodial parent should be able to provide a valid court order spelling out access to a family support office for a garnishment of wages.
We do not agree that support payments should be contingent on access or vice-versa. Receiving financial support from parents should be an inalienable right of the children and should never be denied to them for any reason.
On the other hand, many people who are desperate to see their children believe withholding support payments is the only leverage they have. To remedy this, we suggest legislation making violation of court orders, be it with respect to access or support, a summary offence in its own right, with clearly spelled out minimum penalties for such violations.
It's simply ridiculous that anybody should have to make an application for an order that someone follow a court order already entered. Orders should be automatically enforceable by authorities.
Uttering a false document is already an offence. We suggest that lying on affidavits or perjuring oneself in a custody and access dispute should become a summary offence in its own right as well, again with clearly spelled out minimum penalties.
Finally, we also believe judges must be held accountable for their actions. It's true that there is an appeal process, but that's far too long and prohibitively expensive. Something has to be done to streamline that particular side of the process.
Thank you very much, sir.
The Joint Chair (Mr. Roger Gallaway): Thank you.
Mr. Joseph Ben-Ami: I appreciate the committee's indulgence.
The Joint Chair (Mr. Roger Gallaway): Mr. Atwill.
Mr. James Atwill (Individual Presentation): Good afternoon.
My court file number is 33565, in 1998, Atwill v. Atwill.
Thank you for the opportunity to speak to you today. My only child, Jamee Beth, was born 12 years ago. I spent a lot of time with her, probably more than most fathers are able to, because of my job with the Gloucester Fire Department.
From the first night that Jamee Beth was born, I participated in taking care of her. I prepared her food, fed her, bathed her and clothed her, played with her, and put her to bed. I spent so much time with her that she was called my shadow. Whenever you saw me, you would see my daughter.
All of this came to an end with the break-up of my marriage in early 1988. On March 17, 1988, when I arrived home from work I found out that my wife had taken my daughter and gone to her mother's home in Saint John, New Brunswick, to live. Communications between my wife and I were through lawyers. Despite repeated requests to see my child, I did not see her until the court ordered access in September, some six months later. This was the beginning of the end of my relationship with my daughter.
• 1555
During this time, I had no idea of what was ahead for
Jamee and I, and I agreed to my wife having custody
of our daughter. I had never heard stories of any
problems with access to children from friends who were
separated or divorced. In June 1988 an order was
issued giving my wife interim custody, child support,
reasonable access to me, and advising that Jamee Beth
was to remain in the province of Ontario, even though
my wife had moved in March 1988.
In September I had the first of what would be seven access visits in New Brunswick over a period of two years. After waiting almost six months to see Jamee Beth, I was advised by my lawyer that my wife had put in a motion that would be heard the morning of the first day of my access visit.
She wanted to restrict the hours of visitation I had been given, and she wanted to be with my daughter and I or have one of her family members present during my access. She was not successful in this motion. However, she was not discouraged. Between her and her family she could ensure that there would not be a relationship between my daughter and I.
My first visit with my daughter was a disaster. No care or preparation had been given to this little girl. Upon arriving at the house, I could hear her yelling she didn't want to go with me. Her mother, aunt, uncle, and grandmother all taunted me, and visibly made it clear they did not like me. I had not seen my daughter in several months. She had turned two years old the day before her mother took her away to New Brunswick. I was almost a stranger to this little girl, who had been my shadow only six months before.
My wife was smart to keep a child this young away from her father for as long as possible. There are no long memories for two-year-olds, not like there would be for ten-year-olds.
I have talked to other fathers who have been through this, trying to have access to a child when the mother just wants them to go away. You hear about the police being called; the child is sick and can't be taken out of the house; you can't have full hours of your access visit because they are taking dancing or swimming lessons; or that weekend isn't good because the child is going to be on holidays with the custodial parent.
I know all of these reasons. I've been through them. Most of the other fathers who've had troubles with access know them too.
The worst part for me was either seeing in person or by telephone just how badly Jamee had been manipulated by my wife and her family. She was a scared little girl who did not know what to expect from me. I was the bogeyman from Ottawa who was going to take her away. I would telephone her in between visits, and she would tell me she didn't want to speak to me, or that she hated me. A little girl at this age doesn't speak like that. She had been fed what to say. My wife was quite clear in letting me know she did not want me to have any contact with Jamee.
In October 1988, a signed proposal from her was received by my lawyer, by fax, offering me the opportunity not to pay child support, spousal support, pensions, claims, costs, etc., in return for me giving up all access to my child.
My last visit was in 1990. As usual, my wife and her family clearly showed that I was unwelcome. My daughter was so overwrought she became sick to her stomach. I decided at that point that the only pleasure, even though it wasn't much, was the fact that I could physically see my daughter. She was getting nothing out of my access visits, only being manipulated by her mother and her family to ensure that no relationship would develop between her and I.
It has been eight years since I saw my daughter. She was four years of age then. Today she is twelve. I don't know what she looks like. I have never gotten a picture of her. I don't know whether she likes school, whether she is healthy, goes to church, or if she has been told about me.
I miss her every day, and pray for her. I write her every two weeks and send cards, gifts and letters to her for her birthday, Christmas, Valentine's Day, and Easter. I don't know whether she gets any of these.
• 1600
Other people in my life miss Jamee.
My mother's only grandchild was lost when she was
two years old. My brother, sister, aunts, uncles,
and cousins have also missed out on giving her their love
and support. She will never know her heritage.
I have always paid child support. I'm not a deadbeat dad. I'm coming here today not because I think you can do anything for me. I think it's too late. I'm here because I would like to do whatever I can to make sure other fathers and their children won't have to go through what Jamee and I did.
My recommendations are four. First, we've all heard about deadbeat dads. Penalties are in place to deal with them. What about deadbeat moms? Let's put measures in place to deal with them. Where they are not in compliance with access three times, they should be jailed. If they again don't comply, custody should be given to the non-custodial parent.
Two, custodial parents should not be allowed to move from the non-custodial parent's city or town unless it's within a reasonable driving distance—for example, thirty or forty miles.
Three, custody should automatically be joint unless there are exceptional reasons against it.
Four, if custody must go to one parent, do not automatically assume the mother is the best parent. Society has changed. Both parents work, and both parents are involved in the care and feeding of children. Put some criteria on which parent will involve the other parent freely to be part of the child's life.
Thank you for your time.
The Joint Chair (Mr. Roger Gallaway): Thank you very much, Mr. Atwill.
Colleagues, we'll start with questions, but I have to remind you that this is only a half-hour session. Try to limit your questions and make them brief.
We'll start with Senator Cohen.
Senator Erminie J. Cohen (Saint John, PC): Thank you very much.
Thank you so much for your presentations. As usual, they're very painful to hear. We haven't experienced them ourselves, but we certainly feel the pain you're expressing.
I want to tell you, Mr. Atwill, in terms of the whole problem of denial of access and your recommendation that the spouse who denies access should be allowed three times and then there has to be some intervention by an authority whereby there would be penalties, I wasn't in agreement with it, I must say, at the very beginning. I was wondering about the best interests of the child. But the best interests of the child also include the love and attention from a father as well as a mother. So I want you to know that I think that particular recommendation has merit.
To any of you, if the divorce proceedings and everything involved with it had been taken out of a court setting, the whole area of a court and maybe looked at by a tribunal that might be in place, or by another group, do you think it would have made any difference in the hostilities? No?
Mr. James Atwill: Not in my case. We went to discovery court and my wife didn't want to hear about it. Before we even went to it I suggested we have counselling, and she was dead against it.
The Joint Chair (Mr. Roger Gallaway): Mr. Ben-Ami, do you wish to respond to that?
Mr. Joseph Ben-Ami: Senator, in our case we did have mediation at first, and changes were made. Minds were changed, so it wouldn't have made a difference in our case either.
The Joint Chair (Mr. Roger Gallaway): Mr. Lloyd.
Mr. George Lloyd: I would also like to state that the question of mediation, or an attempt to take it out of the court system, is going to be met with a certain response. For instance, my wife simply wouldn't show up to the mediation. She sent her lawyer to represent her on her behalf.
That's what's going to happen all the way down the line. Every time you try to do something you're going to be met with a lawyer, and it's going to wind up in court. I don't think it's possible to keep it out of court.
The Joint Chair (Mr. Roger Gallaway): Ms. Cohen Ben-Ami.
Ms. Lynne Cohen Ben-Ami (Individual Presentation): I would say when you're dealing with a psychopathic, pathological liar, it has to be in the court system. But there have to be penalties.
The Joint Chair (Mr. Roger Gallaway): Thank you.
Mrs. Finestone.
Mrs. Sheila Finestone (Mount Royal, Lib.): Thank you very much, Mr. Chairman.
• 1605
It's not easy for us to hear this, and I know it
hasn't been easy for you to live through these
circumstances, but we are looking for some concrete
recommendations that we can place before the minister
for consideration with respect to change. So I'd like
to ask, on the first hand, in the court orders that
were originally issued, whether there was a directive
such that the police have the right to ensure or
enforce the court orders.
Mr. George Lloyd: Initially, the court order simply says reasonable access, and then you get it varied for a specific order whereby you see the child on a specific date, at a specific time, in a specific place, and even in a specific manner.
But your question is whether there is a directive for the police to enforce the order. The answer is no. The response I got from lawyers is that the court may put something in there to the effect that—I think you used the phrase—“the police may—
Mrs. Sheila Finestone: “Shall”.
Mr. George Lloyd: —intervene” but it will not use the word “shall”. That does not appear on a court order, and my legal advice is that it's unobtainable. My legal advice is also that the Solicitor General has instructed the police not to enforce court orders unless the police are specifically instructed to do so, and to the best of my knowledge, that's never happened.
Mrs. Sheila Finestone: Thank you.
My question then would change its focus. Say that if in amendments we would recommend the court shall order that the enforcement orders are carried out. That would be a recommendation with respect to ensuring that access is accorded.
Mr. George Lloyd: I would be thrilled to see that. I would be thrilled to see, as an automatic thing in court orders that the police will enforce the court order upon first access denial, immediately.
Mrs. Sheila Finestone: Thank you.
Second, if any of you want to add to that, please feel free to say so.
Mr. James Atwill: I had an order to see my child after waiting six months. When I finally got there—this is just the tip of the iceberg, so I'm not going through everything—they called the police on me. The police did arrive. Meanwhile, my child was hysterical. It was a circus what they did to her. When the police did arrive and saw my documents, they said that I was in my rights and that there was no problem, but my little girl was so petrified that I ended up going inside my ex's house for an hour to stay there. I was supposed to have her for so many hours. The whole day was ruined.
Then the next day, with court orders again, they just called a child care worker from New Brunswick, because a friend of theirs is a doctor. Again, I didn't see her. I drove back to Ottawa. I'm just showing the tip of the iceberg here.
Mrs. Sheila Finestone: Thank you. I understand that. I know how painful that must have been.
The second issue I wanted to ask you about was the false allegations.
Mr. Joseph Ben-Ami: Can we just respond to that first question?
Mrs. Sheila Finestone: Yes.
Mr. Joseph Ben-Ami: I am against the police enforcing court orders per se because it's a fairly traumatic experience for the children.
Having said that—
Mrs. Sheila Finestone: How can you ensure that court orders are respected? It's a very disturbing issue. When you understand that judges give contradictory—as in your case—and confusing advice, you have to go back, and it's very costly. If in the first instance the order had been clear and unadulterated, would that have been better? The next question I want to ask you is on the whole question of false allegations.
Go ahead.
Mr. Joseph Ben-Ami: Just briefly in response to your question about access and court orders, I think the number one reason why court orders aren't being followed is because people have learned that these are not to be taken seriously. It's not that the police can't enforce them; it's that nobody takes them seriously in the first place.
Mrs. Sheila Finestone: The recommendation from this committee to the Minister of Justice and the Solicitor General is that they have to be taken seriously and they must be applied.
Mr. Joseph Ben-Ami: Absolutely.
Mrs. Sheila Finestone: The second question now involves the manner and mechanism of police enforcement. Am I right? It has to be police enforcement. How else are you going to do it unless there is a neutral ground on which the children can be visited and supervised?
Ms. Lynne Cohen Ben-Ami: On the same topic, I was just going to mention that sometimes.... In our case, we're dealing with an access parent. We're the primary care parents. This access parent has called the police on us five times to make false—
Mrs. Sheila Finestone: On what grounds?
Ms. Lynne Cohen Ben-Ami: Oh, different grounds. One was to enforce access that she had never used. At 1 a.m. the police came to our door. She came in with the police. They wanted to see this court order. There was no police enforcement. She had never, ever once taken the children at this particular time, but all of a—
• 1610
Mrs. Sheila Finestone: At 1 a.m., I should hope not.
Ms. Lynne Cohen Ben-Ami: On this particular evening, they were supposed to.... Anyway, that's one, and she called—
Mrs. Sheila Finestone: Here's what I'm gathering from this. I don't want to cut you short, but we have a short time. I just want it on the record that false allegations.... Respecting access orders, there has to be a mechanism in place by which that is effected. There have to be penalties if this is not undertaken and respected. The police have to know that they're in their rights to do this, and judges have to respect their own issue.
I wanted to ask a question about the records that are not kept. Is there not something that you would like us to say with respect to whether the hearing is within a judge's chambers or before the court and that there must always be a written record?
Mr. Joseph Ben-Ami: Yes. There aren't always written orders. Sometimes that's left for the lawyers—
Mrs. Sheila Finestone: There's no written record. I believe, Mr. Chairman, that there is a problem about hearings in the chambers of the judges in that there are no records necessarily kept and there's no obligation to keep such records.
Mr. Joseph Ben-Ami: Mrs. Finestone, the problem is far more widespread than that. As it turns out, there are no recorders in the courtrooms recording proceedings of interim motions unless they're asked for. There are no transcripts. There's no way that testimony can be given in open court and then brought later on at another hearing if the judge is different, or if the lawyers are different, in order to be used as evidence. So basically, there's a fresh start every time there's another hearing.
Mrs. Sheila Finestone: That's very important, and I thank you for bringing that to our attention. We've heard it before, but I want it permanently on the record that this is an issue that we wish to address in our report.
Mr. George or Mr. Lloyd, to have a name like George Lloyd instead of Lloyd George is very interesting.
Mr. George Lloyd: Yes, I know. When I was in high school, I got both.
You raised the point of something to the effect that police shall enforce court orders. The law is already in place to do that. In Ontario's Children's Law Reform Act, it doesn't say the police shall enforce the orders, but it says that the court may order the police to do so. To the best of my knowledge, that has never happened, and I wonder what is the response of Parliament when the courts ignore the laws Parliament enacts.
Mrs. Sheila Finestone: Mr. Lloyd, this issue has been brought to our attention before, and we have been advised that in many cases the judge writes that the orders shall be enforced, but where the judge has not written it, then the police refuse to exercise what we would see right now as an obligation to be exercised.
The last issue was false, unsupported allegations. I don't know, I thought your presentation and suggestions for a procedure with respect to false allegations were good ones in terms of reinforcing the fact that this is, under the Criminal Code, a criminal offence, and I think that's an issue that we should bring to the committee in our report and that should be supported.
Is there any observation you wish to make to this effect?
Mr. Joseph Ben-Ami: Mrs. Finestone, I think the only comment we would make on that is that as I am not a lawyer, I'm not sure, but I don't think it's a summary offence. I think it's something that would be dealt with later on.
I believe that judges should have it within their power.... It should be a separate offence in its own right. I believe that when incontrovertible evidence is brought refuting the allegations, then the people making it should be made to.... I don't agree with jailing mothers and fathers per se. I don't think that's in the interests of anybody, especially the children, but certainly hit them where it hurts. This is Canada, ladies and gentlemen, so where it hurts isn't jail, it's in the pocketbook. Levy some fines, heavy ones.
The Joint Chair (Mr. Roger Gallaway): Thank you very much.
Senator Jessiman.
Senator Duncan Jessiman: Mr. and Mrs. Ben-Ami, we're know there's a problem about access, but you've told us that in your case, part of your problem was that there was maintenance payable to you that was not paid.
Mr. Joseph Ben-Ami: And it's still not being paid, sir.
Senator Duncan Jessiman: Right. Well, we've strengthened the Divorce Act. I know from actual experience that the provincial governments do enforce those orders. You can garnish this person. She works for the government, I understand, but it should be garnished. Two, her driver's licence should be able to be taken away, and it should be possible to take away her passport. Have you tried any of those things?
• 1615
Mr. Joseph Ben-Ami: Sir, the problem isn't that we have an order we can't enforce; the problem is that we haven't been able to get a darn judge to give us an order. We care for the children, according to the statute, well over 60% of the time on an annual basis. At the last hearing we had with respect to support before Mr. Justice Cunningham here in Ottawa, basically he said notwithstanding the fact that we do have the statutory amount of time, it had already been adjudicated by Madam Justice Aitken and therefore he wasn't going to overturn her decision. We believe, sir, he was wrong in law and we were advised to appeal it. However, the appeal process in itself is long, cumbersome, and, as I said, prohibitively expensive. What we've done is basically shrugged our shoulders and said, we'll put off support until such time as we can get this thing to trial and get it dealt with in trial. It's not us who have lost the money; it's the children who have been out literally thousands of dollars. They haven't received a penny in support in over two years, sir.
But that's the problem. The problem isn't that the enforcement mechanism isn't there.
Senator Duncan Jessiman: But you don't have an order. I thought you had an order to get in compliance—
Mr. Joseph Ben-Ami: No, sir.
Mrs. Lynne Cohen Ben-Ami: We have a right. We have a statutory right by law.
Mr. Joseph Ben-Ami: We have a right, but we can't get a court to respond to us.
Mr. George Lloyd: I would like to point out that there is in fact a clear connection in fact and in law, contrary to what lawyers may tell you, between access and support. You yourself, Senator, just referred to Bill C-41, which takes away a passport, and Ontario's Bill 82 or 128—I forget the number—which takes away a driver's licence. That, in effect, denies access. So a non-custodial parent, who, for whatever reason, illegally—and I don't agree with it—withholds support will be denied access.
The Joint Chair (Senator Landon Pearson (Ontario, Lib.)): We have already gone a quarter of an hour over time. Thank you very much for all of your presentations, which were indeed very moving.
Senator Anne Cools: I believe, Chairman, the second set of witnesses, Cohen Ben-Ami, didn't put their style of cause on the record? Or did they? Perhaps we could have the report—
The Joint Chair (Mr. Roger Gallaway): I was going to ask that question.
Mr. Ben-Ami, I wonder if you could put your file number on the record for us.
Mr. Joseph Ben-Ami: Which file number is that, sir?
Senator Anne Cools: The court file number.
The Joint Chair (Mr. Roger Gallaway): The court file number, yes.
Mr. Joseph Ben-Ami: My goodness. I believe it's 9654404.
The Joint Chair (Mr. Roger Gallaway): And the name of the case?
Mr. Joseph Ben-Ami: Ben-Ami v. Wilcox.
The Joint Chair (Mr. Roger Gallaway): Thank you.
The Joint Chair (Senator Landon Pearson): Thank you very much.
I would like Ms. Leighann Burns-Campagna to come forward, please.
Ms. Burns-Campagna, you're representing Harmony House. Would you please go ahead?
Ms. Leighann Burns-Campagna (Executive Director, Harmony House): Yes, thank you.
Harmony House is a second-stage shelter for abused women and their children, which opened in 1987. The project was originally brought about by St. Matthew's Anglican Church in the Glebe after consultations with the Social Planning Council of Ottawa-Carleton regarding which groups were most in need and how the parish could best direct its efforts to do volunteer work in this community.
At the time Harmony House opened, there was only one other second-stage shelter in Ontario and five others in all of Canada. To this day, Harmony House is the only second-stage shelter for abused women and their children in eastern Ontario. We have 16 units of affordable housing that are available to residents who are survivors of violence at rents geared to income. Originally we opened with ten units and in the 11 years of our existence we've grown to 16 units.
• 1620
The services that Harmony House offers include safe
housing, individual and group support, accompaniment
and advocacy, and referrals. Individual support to
women includes assisting women in talking about what
happened to them, assisting them in understanding the
violence was not their fault, and helping them to
believe in themselves again. Likewise, with children,
support includes the same things, along with assisting
children in understanding that violence is not their
only option, and assisting them in finding other ways
of expressing their feelings without modelling the
behaviour of violent fathers.
The group and mutual support aspect of the shelter is really important at Harmony House because there's often a great deal of isolation that accompanies violent relationships. So through friendships made with other residents, women learn to regain their self-esteem and to find another direction for their lives. Accompaniment and advocacy are more recent additions to the services Harmony House offers.
Many of the women living at Harmony House are engaged in some aspect of the legal system, be it regarding custody and access issues, restraining orders or peace bond, trials regarding outstanding assault charges against ex-partners, and so on. These processes are complex and time-consuming; especially for women and children who have never had dealings with the legal system, they can be difficult, if not impossible, to navigate.
Staff at Harmony House assist women and children in understanding how the system works, what their rights are, who they should speak to about certain aspects of their situation, as well as arranging for volunteers to accompany them to court, the police station, immigration, and so on.
For many of the women who are living with us who have been in hiding since the last assault took place, there's considerable fear in facing their abuser again. Therefore, having a supportive presence in the courtroom can be an extremely important service.
In January 1996 the PC Government of Ontario eliminated program funding to Harmony House and all other second-stage shelters throughout the province. Since that time, several second stages have been forced to close. Others, like Harmony House, continue to struggle day to day to provide much-needed services to survivors of violence. In the time since we lost our money, which is about two and a half years, we've provided safety and freedom to 250 women who have actually lived with us and many others who continue to use our supports.
Harmony House fully supports the briefs submitted by the National Association of Women and the Law and the Ontario Association of Interval and Transition Houses. They elucidate in great detail the particular areas of law and policy that need to be considered by this committee. As a front-line service, Harmony House is well-positioned to speak to the issue of custody and access as it impacts on many of the women and children who live with us and use our services.
Today, due to the shortness of time, I want to simply illustrate for you the reality of custody and access as it pertains to women and their children who have left violence to stay at Harmony House. To this end, I analysed the year 1997. In that year we housed 61 women and 62 children; 34 women, or 55% of our adult residents, had children with them. Of those, custody and access arrangements can be broken down into several categories.
Access, currently in place, 26%; no access, non-custodial parent didn't seek it or exercise it, 41%; no access yet, but mother willing to agree to access provided it is stipulated, 9%; children old enough to decide for themselves, 3%; court ordered no access, 9%; and the mother seeking to deny access, 12%. So in 76% of the cases access was already in place, or was available or was about to become available.
These numbers do not support the claims that are widely reported in the media that non-custodial parents, usually fathers, are routinely denied access to their children. Indeed, the largest category of access situation at Harmony House in 1997 was no access, because fathers didn't seek it or exercise the access they had.
Mothers, on the other hand, were most often willing to grant access, provided they felt their children's father would take adequate care of the children, or would not expose the children to any further violence, or would not use access or exchanges as opportunities to further harass or abuse these women. Even in cases where women feared for the children's emotional well-being, or physical safety during access visits, they were most often actively encouraged by their lawyers to facilitate, encourage, and agree to access so as not to be seen as unfriendly. Furthermore, when children indicated they did not want to go on access visits or were afraid to go, their mothers were still compelled to send their children on visits, against their better judgment and against their desire to do so.
I am gravely concerned about the coverage this issue has received in the media because it doesn't reflect the realities of women living in shelters who are fleeing violence, presumably the category of parent one would most likely be seeing giving no access to their ex-partners. So I trust the committee will make recommendations on the realities that are out there. It seems to me the first step that needs to be taken in this regard is to thoroughly study how many times access is denied.
• 1625
That's my five-minute presentation, and I'm happy to
take questions.
The Joint Chair (Senator Landon Pearson): Thank you very much.
Senator Pépin.
[Translation]
Senator Lucie Pépin (Shawinegan, Lib.): For one group of families, we know that family violence is the grounds for divorce. We know too, as you have pointed out, that visits by the violent parent pose a problem. You have told us that 70% of fathers had access, and 41% of them did not seek it or exercise it.
But what are the needs of the women, of the mothers, and what is their point of view. We are told that the father should not be denied access, even if he is violent, and that visits by the father ought to be supervised in such cases. How can the fact that the mothers are in shelters be reconciled with fathers' rights of access? How do you see this within the perspective of the child's well-being? How can it be facilitated? Is it a good thing? Are some ways of doing it better than others?
[English]
Ms. Leighann Burns-Campagna: That's a fairly complicated question in that in my experience, most often women are most willing to provide access if supervised access is available, accessible, and affordable, if they have concerns about the safety of the children. If they're not concerned about the safety of the children during the access visits, then they're usually already willing to grant access, as long as it's stipulated.
Where it gets complicated is if a father who is an abuser has access. In our case at the shelter, if the access isn't stipulated, then if there can be calls made at any time to arrange access or if there can be unpredictable visits around access and that kind of thing, it's a way an abuser can continue to harass a woman. So often women have to seek out very specific access orders—“You have access from 6.30 to 8.30 on Wednesday evening at such-and-such a place”, that kind of thing—which can control his trying to continue to abuse his partner through the access visits.
Provided those tools are in place, women are often willing to grant access, if they're not concerned about the safety of the kids during the access visit.
[Translation]
Senator Lucie Pépin: Thank you.
[English]
The Joint Chair (Senator Landon Pearson): Mr. Lowther.
Mr. Eric Lowther (Calgary Centre, Ref.): Thank you, Madam Chair.
What is the mandate of Harmony House?
Ms. Leighann Burns-Campagna: We're what's called a second-stage shelter or a longer-term shelter for abused women. There are crisis shelters, which provide up to usually about a six- to eight-week stay, where everyone lives in a communal setting and—
Mr. Eric Lowther: Your mandate is then to meet the needs of abused women? Would that be generally—?
Ms. Leighann Burns-Campagna: That's right, on a longer-term basis.
Mr. Eric Lowther: So the people who come to you are living through violent situations and they're coming for refuge, safety, and that kind of stuff.
Ms. Leighann Burns-Campagna: That's right.
Mr. Eric Lowther: Okay. Then what I'm struggling with is why does that make you a spokesman on child custody and access? It seems to me your sample would be not a representative sample but a sample of a subset. Not every marital breakdown.... In fact many, maybe most—I don't know—don't have a violent component per se to them.
So I'm trying to get the connection, because really here your sample, your position, your data on this are from a very skewed—well, not a very skewed, but a certain—perspective that's only tied to marital situations where there may be violence. And even at that, you're telling me—
A voice: There is violence, not there may be.
Mr. Eric Lowther: Right, thanks.
• 1630
And actually 76% of these still have access. So can
you help me flesh that out a bit? It seems to me that
your expertise and perspective are very limited on
this.
Ms. Leighann Burns-Campagna: Well, the issue of violence against women and their children is crucial to this entire discussion, and the experience of working with women and children who are survivors of violence must be taken into account in any changes or considerations around this issue.
Also, over a quarter of all women report having been physically abused in a marital relationship. The statistic is staggering, and this issue has to be considered.
Mr. Eric Lowther: Where's that stat coming from, a quarter?
Ms. Leighann Burns-Campagna: From the federal Panel on Violence Against Women.
Senator Anne Cools: Sheila Finestone knows a lot about that.
Senator Duncan Jessiman: Of the three-thirds who accuse them, two-thirds are found to be false. That's what we were given in Vancouver.
Ms. Leighann Burns-Campagna: Oh, I—
A voice: No, no, no.
Senator Duncan Jessiman: It came from the—
The Joint Chair (Senator Landon Pearson): Senator Jessiman, is that a supplementary question?
Ms. Leighann Burns-Campagna: This is one of the issues where we need to have some study done. Some of the statistics I've seen reported in the media seem bizarre to me, and I can't imagine how they could be accurate. So prior to coming here, I went to Carleton University and researched this issue on PsychLit computer, which is psychology journals from 1991 to 1997. None of the data I saw there supported those kinds of claims. So I don't know where that comes from. In fact I've been trying to get a hold of some of the data that have been mentioned in these hearings, and I haven't been able to track any of them down.
Senator Duncan Jessiman: If you read the evidence of the person, I think it was in Vancouver, the lady was here from a similar—
The Joint Chair (Senator Landon Pearson): Senator Jessiman, are you doing a supplementary question? Mr. Lowther hasn't quite finished yet.
Mr. Eric Lowther: I just wanted to ask this. Your primary focus is to protect women from violent situations. Do you get involved in the custody disputes these women have, or is that separate? Do you get involved with that?
Ms. Leighann Burns-Campagna: How do you mean, get involved in a custody dispute?
Mr. Eric Lowther: Well, are you advising them on what they should do?
Ms. Leighann Burns-Campagna: We advise them about the written laws, where they can access a lawyer, where they can access legal aid, and those kinds of things. We encourage them to decide for themselves what they're seeking from the system, but we give them the tools to be able to seek it out.
Mr. Eric Lowther: Are they married women?
Ms. Leighann Burns-Campagna: Are they married women?
Mr. Eric Lowther: Yes.
Ms. Leighann Burns-Campagna: I'm not sure what the relevance of that question is, but certainly many of the women who live with us are married, yes.
Senator Anne Cools: Senator, I would like an answer.
Mr. Eric Lowther: Could we have the breakdown? There is relevance for this committee on that question. I'm just wondering what the breakdown would be in your shelters.
Ms. Leighann Burns-Campagna: I'd have to go back and look at our data, but I can provide that for you.
Senator Anne Cools: I'm sorry; I didn't hear. My colleague was chatting. What was the information?
The Joint Chair (Senator Landon Pearson): She's going back to look up the data and will provide it.
Senator Anne Cools: She's going back to look up that?
The Joint Chair (Senator Landon Pearson): Yes, to get the data and she will provide it.
Senator Anne Cools: As to how many in her client body are married and how many are common-law?
The Joint Chair (Senator Landon Pearson): That's right.
Senator Cools, the next question is yours.
Senator Anne Cools: I have one little question.
I have a copy of a report dated December 19, 1996, called A Framework for Action on the Prevention of Violence Against Women in Ontario. This report was prepared and authorized by the Ontario Women's Directorate in Toronto.
At page iv of that report, section 9, it says, and I quote:
This is a report on the women's shelters and the prevention of violence in Ontario. I wonder if the witness has any opinions on what the Women's Directorate meant by that statement.
• 1635
Ms. Leighann Burns-Campagna: I have no idea what the women's directorate meant by the statement, but I know there's a great deal of controversy in Ontario about that report.
I'm a member of the Ontario Association of Interval and Transition Houses. I've worked in shelters for several years and in several shelters around eastern Ontario, and that certainly is not reflected in my experience in working in shelters or in rape crisis centres or sexual assault support centres, for that matter, which I believe are also referenced there.
Senator Anne Cools: I'm just curious that the Government of Ontario, the Women's Directorate, would—
Ms. Carolyn Bennett (St. Paul's, Lib.): It's called the...
[Editor's Note: Inaudible].
Ms. Leighann Burns-Campagna: In fact, that report wasn't released; it was taken at a....
The Joint Chair (Senator Landon Pearson): Please, continue on the....
Mrs. Sheila Finestone: I think it's important that it be on the record.
Ms. Leighann Burns-Campagna: There's a great deal of controversy about that.
Senator Anne Cools: Chairman, I would like this committee to learn what I would call just plain meeting etiquette.
Ms. Leighann Burns-Campagna: There's a great deal of controversy about that report. I think you'd find women—
Senator Anne Cools:
[Editor's Note: Inaudible]...fit in your view, so you can—
Ms. Leighann Burns-Campagna: My views are that that report—
Senator Anne Cools: Don't you show me—
The Joint Chair (Senator Landon Pearson): Order, please, on both sides.
Ms. Leighann Burns-Campagna: I'd hate to bring any of the kids at the house to this place.
Senator Anne Cools: I still have the floor, quite frankly, Chairman. I've been cut off. I had the floor.
The Joint Chair (Senator Landon Pearson): You have a question and she's answering it.
Senator Anne Cools: I was in midstream in asking a question when I was cut off. The process in this system is that when a person is cut off, it goes back to them, not on to somebody else.
The Joint Chair (Senator Landon Pearson): Yes. Ms. Burns-Campagna is answering your question.
Ms. Leighann Burns-Campagna: There were so many things that were flawed in that report it's difficult to even describe them all to you. I know that some of the recommendations were that shelters should be cut down to 24 to 48 hours and women should be sent back into the community to ask their neighbours to look out for them—that kind of thing.
The report was dismissed by any woman I have ever spoken to in Ontario about it, particularly advocates, but also survivors in the shelter. We certainly discuss these things on a daily basis. The response was complete rejection from every survivor I've ever talked to.
I'd also like to know what sample of women they talked to in that report. They don't describe what sample they used, but it seems to me a very select and limited sample that was providing information they were looking for.
Senator Anne Cools: Chairman, I just want to thank the witness, because I too have had a lot of concerns about this report, but since you said you are with OA, I thought it was important for you to have the opportunity to respond. You may remember that I founded OA.
Ms. Leighann Burns-Campagna: Yes.
The Joint Chair (Senator Landon Pearson): Thank you very much.
Dr. Bennett.
Ms. Carolyn Bennett: In terms of the observation of 41% not exercising access, can you help us with why that is?
Ms. Leighann Burns-Campagna: Yes. I'd have to further break down that statistic, because I would like to see it broken down further. My experience with that is that oftentimes abusers in particular will make frequent visits to court around varying and stipulating access and that kind of thing, but they don't necessarily exercise the access. So women will go to the agreed upon location with their children for access and he won't show up, and he won't show up repeatedly. So she has to make this trip for nothing and go back home, and the children may be upset about not seeing the parent and that kind of thing.
It seems to me to be a tool of harassment for many abusers to get access orders and not use them or use them in a partial way so that it's a continual disruption for the woman's life.
Ms. Carolyn Bennett: A lot of people have been calling for the committee to recommend a presumption of joint custody. I think the more enlightened way is looking at a parenting plan that includes both people. Some of us have obviously looked at the idea of getting rid of the words “custody” and “access”.
Do you think women who have suffered abuse would be in a different category immediately off the mark in terms of some of these suggestions, like mediation and presumed joint custody and all of those; that abuse often comes down a different channel from what I guess a lot of us feel would be a less adversarial and more conciliatory way of dealing with the issue?
• 1640
Ms. Leighann Burns-Campagna: I absolutely think that would need to happen, because the mediation and those kinds of negotiations presume an equal power base to negotiate from and presume a woman will be able to participate fully in negotiating for her rights and her kids' rights. I don't think we can assume that in violent relationships. In fact, I think we can assume quite the opposite—that it's difficult, if not impossible, to negotiate with your abuser what's in the best interests of your kids. I think they should be streamed right off.
On the other hand, I also think we have to be very careful how we streamline those cases, because we know of women who have gone through mediation who should have been streamlined out, who should have been detected, and weren't. So women don't necessarily always disclose that there has been violence. Some kind of very thorough tool needs to be developed to be able to screen out those cases.
Ms. Carolyn Bennett: Do you have a tool that you prefer? The nursing group said they have a tool they like. Is there any tool, in terms of sorting out violence, that you think is a good one?
Ms. Leighann Burns-Campagna: I don't know of a tool offhand. I know there's been a lot of discussion about false accusations, but in my experience women don't falsely describe violence in their lives. In fact, if anything, they hide the violence in their lives. So if a woman is disclosing violence, my feeling is that means there is violence there.
Ms. Carolyn Bennett: Thank you.
The Joint Chair (Senator Landon Pearson): Thank you.
We have a few more minutes. Are there any other questions?
Thank you very much, Ms. Burns-Campagna.
Mr. Tacit, Mr. Gordon Green, and Mr. Michael Blackburn, would you please come to the table? As you understand, we would like you to speak in as short a time as possible so we can ask questions.
Mr. Blackburn, would you like to begin?
Mr. Michael Blackburn (Individual Presentation): First of all, I would like to say thank you very much. Excuse me if I seem a bit awkward. I'm very nervous. I've never appeared in front of something like this.
Just for the record, I want to mention that I am a joint-custodial parent and I have co-residency with my two children—my daughter who is going to be 17 next month, and my son who is going to be 14 next month, that handsome young man right there.
I'm speaking to you, not as a member of any lobby group, and the experience I'm trying to give to you is a very personal one. I just listened to the last presentation, and I want to mention that I think I represent most fathers. We love our kids very much, and if you're like me, you just want to be able to spend some time with your children. Anyway, I'd like to give this little presentation.
I personally believe that custody and guardianship should really be two separate issues, with regard to divorce and separation. I think the majority of parents are good parents—both mom and dad. When it comes to matters of the heart, we all seem to act very irrationally when we go through divorces, and act silly. We try to think of the best interests of our children, but we don't always.
I believe that too often in our courts, particularly in Ontario—I can't speak for the rest of Canada—men are largely regarded as inferior to women as parents. I can cook and sew. I'm just as good as any woman, and I believe that in most cases it's incumbent upon the courts to look at both parents and ask whether they are both good parents. Sure they have their faults, but are they good parents? Yes, they're good parents. What can we do to empower both these parents to still have a good integral part in their children's lives?
The legislation we currently have in Ontario is adversarial. Again, I'm not sure about all the rest of Canada. It places too much emphasis on money.
• 1645
I think guardianship and
custody must be two very separate issues. Custody is
my right to know what doctor my children see, what
school my children attend, things like that.
Guardianship is when my children live with their mother
or when they live with me. I think they are different
issues and I think we have to take that into account.
I think a little bit of the problem that upsets many fathers, including myself, is the fact that there is a lot of bite in the system right now with regard to enforcing support orders. I'm sure I'm not the first one to mention this. Many fathers will say “Yes, but there's no bite for access.”
Recently, the Government of Ontario published a little booklet where they told.... I was so hurt, as a father, reading this. They said, if you don't pay your child support we will garnishee your wages, we'll take away your driver's licence, etc., but if your spouse or ex-spouse denies you access to your children, that's a private matter. That's tough luck. You must hire a lawyer and go back to court.
I should have provided the booklet to you. I'll be glad to hand out copies to every member of this committee.
As a joint custodial parent, my wife technically makes less money than me, so I pay her child support. I've never missed a child support payment—never. Yet my former spouse feels quite comfortable picking up the children and leaving with them when she knows full well it's my time with the children. She already has them most of the time anyway, and I won't even argue. I'm grateful that I've had the opportunity to raise my children, but for the little bit of time that I have my children, I want to have them. I don't feel I should have to go out and pay lawyers, basically putting their children through college instead of mine, because that's what it amounts to.
Personally, I don't mind making the sacrifices, I don't mind paying my child support, providing the money is spent on my children. I can't afford to drive a car any more—I'm employed with the Canadian Forces, so we're not real rich—and that's fine. I take the bus. I ride my bicycle—you'd think I would have lost a bit of weight by now, but I haven't—and I'm glad to do it. But I feel so hurt and offended when I hear about.... It seems to be all the cases we hear about are bad fathers, the fathers who commit violence toward their ex-spouses. I think the majority of fathers are like me. We love our kids. We just want to spend time with our kids and we don't want to have to fight about it.
That's really all I have to say.
The Joint Chair (Senator Landon Pearson): Thank you very much.
Mr. Green.
Mr. Gordon Green (Individual Presentation): Good afternoon, honourable senators and members of parliament.
I appear before you today to share my experience in this custody and access process. I'm of the understanding now that the circumstances under which I've been involved are quite special. I'm simply going to provide you a narrative about them. At some point afterwards, I'll take questions from you.
We were eased into this whole family law process by a simple recognition that the marriage wasn't working. A couple of weeks after we began living apart, I received a phone call from my spouse at work apologizing for what she said were statements her lawyer made about me. I had no idea what those statements were, but I found out about an hour later when I had been served an emergency order that I was plotting to remove my daughter from the city of Ottawa and not return her.
I had absolutely no knowledge of this scheme and I was essentially prevented from taking my daughter to a celebration with handicapped children, children that I used to volunteer with. An agreement was reached in the courts, or outside the courtroom before actually going to court, on when I should have access, how much should be paid and so forth.
The details are really too complicated to get into right now, but two days later, while taking our second car to be fitted with a car seat, I, I....
• 1650
The Joint Chair (Senator Landon Pearson): Would you like a little break?
Mr. Gordon Green: I'd really like to try to get through it, if that's okay.
The Joint Chair (Senator Landon Pearson): Okay.
Mr. Gordon Green: I struck and killed a father and his daughter.
In the months that followed I tried to make sense of what had happened. For a substantial amount of that time I had to use medicine and visit doctors, psychologists and so on. In April of the following year—so this was seven months later—I made my usual telephone call to see when my wife would appear with my child the next day and I got the voice of an operator saying the phone had been disconnected. I had no idea where my daughter was. I called the lawyer. The lawyer called her lawyer. She had no idea where her client was or how to reach her, so I was told to wait in my home and hope that my daughter would show up.
When she did, I tape recorded the conversation we had on the events of her moving—it turned out to be somewhere in Quebec—and what had been done several months earlier. In that conversation it was taped that her lawyer had advised her to essentially perjure herself to get preferential treatment from the courts. This essentially confirmed the telephone conversation of seven months earlier when she had warned me that this was coming.
The tape was played for my lawyer, who then contacted her lawyer, and when news of this reached my wife, I can understand how she felt and I was denied my next access.
Despite that, my wife and I worked and agreed to joint custody on our own outside of the courts. We did this on our own without our lawyers. I contacted my lawyer to tell her of this news. She seemed genuinely excited. Two days later she phoned me back to tell me that joint custody came with a price tag exceeding $ 42,000. It was on sale for the week. The following day she was informed that no attempt would be made to negotiate any further out-of-court settlements.
Toward the end of August, I received an astonishing e-mail from one of my wife's colleagues. I won't get into that now, but if you wish to question me on it later I have a copy of it here. In the meantime, I had met with Senator Cools and a complaint was filed with the Law Society of Upper Canada. We then had our discoveries before the complaint was resolved. There were some incidents in the discoveries that greatly disturbed me, but again, I'll pass over those now.
After the discoveries I received a result of the complaint with the law society. Essentially, they didn't want to referee between my version and my wife's version. I then telephoned them to explain to them that neither version was mine, that both versions came from the same party, to which they issued a second resolution that they didn't want to referee between my wife and her lawyer. Essentially, even though I was completely out of the picture, the law society still didn't want to get involved.
The following Christmas my daughter came down with chicken pox, offering a wonderful opportunity for my wife and I to work together. I was in Mississauga at the time. I haven't been able to drive since the accident and she was barred from taking public transit, so I invited my wife to come down to my parents' place so that the two of us could go back together. We did that. We even stopped at her family's place in Kingston, and the following week, during the ice storm, because it wasn't my access, she chose to take our child out in the storm each night to bathe her at a house where they had running water and power. My house was only 25 kilometres away in a safe area that was unaffected by the storm, but, as she said, it wasn't my turn and therefore she didn't bring the child to a safer place.
• 1655
I think the greatest shock I got was in the pre-trial a
couple of weeks ago, when 18 months after all of this
happened, the lawyer representing my wife blurted out
in the middle of the pre-trial that she had no proof that I
had bought the house. She had had these documents for
18 months. To the judge's credit, she had gone
through the preparation material. She was well
prepared for this. She certainly retorted very quickly
to the lawyer, but the surprise to me was that here it was
apparent to the judge that this lawyer had
consciously made a false statement and yet it wasn't
addressed. She simply said, “That's wrong, let's move
on.”
Yesterday, I spoke with a journalist who seems to have a genuine interest in this committee. He has published some articles recently on the work that's been done here. He asked me how much this has cost me to date. I responded to him that I can no longer drive, that very often I have to take medicine for nightmares, that I have been diagnosed with what they call post-trauma disorder. The psychologist says it's very similar to what soldiers go through when they come back from wars. I have collapsed, unconscious, three times since this court thing 18 months ago, once while working with colleagues.
I work with the North American Free Trade Agreement. I was on site in Georgia and had to be hospitalized. A second time I was volunteering in a hospital here in Ottawa and spent three hours in emergency while they tried to stabilize my pulse and blood pressure. I was given an EKG and my heart was fine. The doctors were baffled. They couldn't figure out why.
I asked the reporter, “How do you put a monetary value on this? How does one assess the cost of not being able to drive your child to a petting zoo, or the loss of confidence from your colleagues not knowing whether you're going to get through the day with them?”
To conclude with the process that I've been through, clearly I feel that the lawyers should be held accountable for knowingly filing false accusations. I think there's a significant difference between reproducing a character assassination and knowingly making a false statement of criminal activity. I have an accounting designation as a certified fraud examiner. I belong to that association. It is a U.S. association. I also have a designation as a Canadian professional accountant. I sit on the board of directors for the fraud organization, on their executive. I state that to indicate that I know a little bit about fraud.
I would also recommend that a more child-centred approach to family law will be required to enable the judges to administer at least the spirit of a body of law that is in the best interests of our children.
I'll leave with you these issues from the pre-trial. What wasn't an issue was that my child and I were left in our house, which filled up with over four feet of sewage during a flood, while the mother preferred to socialize with her office. What was an issue was that that house, they claimed, went up over 20% in value in a three-year period, despite flooding three times and the basement being completely destroyed twice.
The justice read out loud to herself—
The Joint Chair (Senator Landon Pearson): I'm sorry, are you coming to an end? It means very little time will be left for questioning, as you're over 10 minutes.
Mr. Gordon Green: Oh, sorry. This is my wrap-up, but I can leave it for questions if you wish.
The Joint Chair (Senator Landon Pearson): Perhaps you could leave it for questions and give Mr. Tacit a chance to speak.
Mr. Gordon Green: Certainly.
Mr. Christian S. Tacit (Individual Presentation): Thank you very much. I very much appreciate the opportunity to be here today.
I have been through some awkward circumstances and I don't wish to get into them. I think it's more important right now that I try to take from what I've learned and make some recommendations that, hopefully, will be of assistance to this committee.
What I can say is that I am a lawyer. I'm not a family law lawyer, though, but I have had to bone up because I have had so many proceedings instituted against me that I've run out of money. I've had to represent myself while also running my own law firm and trying to look after a second family—my second wife and four children, two from my first marriage, a step-son, and a daughter that we have had together. So I'm a very busy and overwrought person.
• 1700
In fact, it was only yesterday that I finished an
arbitration in a support matter that my former spouse
brought against me, which is why I haven't had time to
prepare any more detailed material other than the
letter dated April 1, which you may have already
received.
I'd like to make six brief observations based on my own experience, and if any of you would like to know how I've come to these conclusions and why, I'd be happy to speak with you after.
First of all, I believe it's important for this committee to take into account the fact that parents are parents before separation and divorce and they continue to be parents after separation and divorce. Nothing in divorce, in and of itself, disentitles a parent to the inherent rights they have as a parent, and there is no reason for the state to interfere with that or to make presumptions contrary to that unless the conduct of a parent is such that it would otherwise invite the child welfare authorities or the criminal system.
Short of that, we're all parents. We all have our good and bad parts as parents. None of us is perfect, and we shouldn't be judged to a standard of perfection. Maybe some of us bathe our kids once a week or twice a week or three times a week. Maybe some of us are better at coordinating their clothes and brushing their hair. I don't know, but that isn't the standard by which parenting should be measured.
The second thing is, I don't believe our family law system should create incentives that allow people in an emotional, irrational state to take each other to task and damage their relationship as co-parents and to damage their children. There are too many incentives in the system right now, the way the Divorce Act and mirror provincial legislation are written, that do just that.
One of the biggest problems is the financial incentives that are linked into the bundle of rights that we've come to know as custody and access, and how, quite genuinely, I can see in certain cases people who feel economically disadvantaged by separation and divorce, or other people who may just be plain angry and want to get even, or who may feel insecure because of the loss of a relationship are suddenly empowered to use that in order to get back at a spouse or to deprive them of their parental right, or to hold over them the prospect that they will only get to exercise their parental rights if they're forthcoming with some other quid pro quo. That has to be addressed, I submit to you today.
Third, the second families are completely ignored by our family law system, absolutely and totally. They don't exist.
I've remarried. I have a stepson that I'm primarily responsible for financially. I have a baby daughter with my current wife. Yet in every case, the legal system gives primacy to my ex and the children from my first marriage. There's nothing wrong with the system trying to look after my ex and the children from my first marriage and making sure there's adequate provision for them. There's an awful lot wrong when the system measures the relative worth of one spouse over another, or one child over another, and that is a serious problem that has to be addressed.
Fourth, it is very easy for false allegations of abuse or deprivation of access to continue, and when somebody tries to make a bona fide effort to stop that, it's my personal experience that little action is taken. In fact, for my efforts—and this is one point at which I will add a personal note—my separation agreement with my ex-spouse had a dispute resolution provision, and part of that was, if we had a problem that we couldn't resolve, we could try to negotiate with or without lawyers, with or without a mediator. If we couldn't do that, there was an arbitration clause.
We all know the courts are overburdened and overwhelmed. I had some access problems. I was having particular access problems on Mondays after school, which is a time clearly spelled out in the separation agreement as my time with the children. I sought to communicate, at first, directly through correspondence and then through my lawyers. There was no response. Finally, in desperation, I brought an application to the court to appoint an arbitrator, thinking, well, at least we'll get this over with. There'll be an arbitrator appointed. She'll have to come. We'll deal with it. Hopefully we can negotiate before we even get to the arbitration, but if not, at least an arbitrator will enforce this order.
• 1705
Her lawyer decided the court has inherent jurisdiction
to overrule arbitration agreements, so let's start
a custody action.
Now, two years later, I'm still waiting to get to trial on a custody action that I didn't start, and all I wanted to do was exercise my access in a manner provided for under my separation agreement.
Therefore, one of the key recommendations I am making is that the Divorce Act be amended and that there be corresponding recommendations made to provinces to amend their respective legislation to make arbitration agreements in respect of custody, access, and child support binding, because right now the inherent jurisdiction of the court is viewed as capable of overriding that.
Even when people express a clear intent to use alternate dispute resolution mechanisms in those areas, if one party suddenly decides they don't want to, they can totally defeat the very thing to which they themselves have agreed just months before, at huge personal cost. The cost to me has been that for two years I've lived with the uncertainty that I might lose custody and a lot of time with my kids because this has been allowed to happen. An access problem has been turned into a custody problem, unnecessarily, and put into the courts.
The Joint Chair (Senator Landon Pearson): I hate to interrupt, but you're well over five minutes. So please continue with—
Mr. Christian Tacit: Yes.
The last point is that lawyers should not be permitted to engage in sharp practice in this area, above all others, and there should be serious consequences for that.
I want to touch briefly on the financial issues. I know this isn't about support, but the child support guidelines, as currently enacted, are an invitation for litigation on custody and access, pure and simple: first of all, the 40% threshold on access, before the needs and circumstances of parties are taken into account, as opposed to just looking to the tables; second, the presumption that people, after separation and divorce, after they've borne the financial devastation, can just look to the tables without taking into account expenses; third, the fact that the undue hardship test uses a means ratio test that is totally unrealistic, again having regard to the costs that parties bear after divorce and separation. So there are serious problems here.
Also, when looking at child and spousal support, it's crucially important that the rights of second families also be considered equally.
Those are my submissions, and thank you for your attention.
The Joint Chair (Senator Landon Pearson): Thank you very much.
We'll now turn to questions.
Mr. Lowther.
Mr. Eric Lowther: Thank you, gentlemen, for coming forward, taking time out of your day, and contributing to our committee with your testimony. I appreciate that.
I have a question for Mr. Tacit. I didn't quite follow on one thing you said. I think I missed it.
You were talking about an arbitration plan or a parenting plan, an agreement that you had with your ex-partner, and then when it broke down, when that didn't work, you were making some sort of a recommendation as to...I wasn't quite sure what. Is it that there should be some teeth in that, or some way to make that work if it's not working?
Mr. Christian Tacit: Yes.
The problem is this, sir. Under our constitutional framework, the superior courts of a province are viewed as the guardians of the interests of children. So when you have a custody, access or child support issue, no matter what the parties agree to between them, the courts can overrule that and say they know better because they're the guardians of the interests of children.
One of the consequences of that is that even when there's an agreement for parties to take these disputes out of the courts and arbitrate them privately, for example, before an experienced family law practitioner, which they may have signed up to do in a separation agreement or on a consent order previously, one party, if they have a dispute and they don't really want it to be resolved quickly because it's in their interest to create problems or to delay a resolution or enforcement, can turn to the courts and say, well, just ignore the fact that I should be going to arbitration, which can be very quick.
In my case, it would have been resolved more than two and a half years ago if we would have been able to go to arbitration, as our own agreement contemplated, which we both signed.
Mr. Eric Lowther: So what was holding that up?
Mr. Christian Tacit: Her lawyer basically went to court and said, yes, I know she signed an agreement that says you guys should go to arbitration and you can appoint an arbitrator, but you have the inherent jurisdiction; I should be able, if I want, to start a custody action.
• 1710
So instead of having any custody or access issues
resolved quickly by an experienced family law
practitioner within months, and resolving it the way
our separation agreement allowed, if the courts
had been told to stay out of this it wouldn't have
allowed all of this to fester, create a lot more
problems, bad blood, and all of the delay and hardship
there was for two years. It's not as though
the courts need the extra load anyway.
Mr. Eric Lowther: What's the recommendation specifically?
Mr. Christian Tacit: Specifically, that parties—
Mr. Eric Lowther: Go straight to arbitration when it breaks down.
Mr. Christian Tacit: —go to binding arbitration before an experienced person. We're not saying doing it before a cook or a janitor. We're saying if people have agreed, if they have a dispute with regard to anything to do with their matrimonial breakdown—
Mr. Eric Lowther: Then they should be required to honour that agreement and not go outside of the agreement to the courts.
Mr. Christian Tacit: That's right.
Mr. Eric Lowther: Thanks. I appreciate that.
The Joint Chair (Senator Landon Pearson): Thank you very much.
Mrs. Finestone.
Mrs. Sheila Finestone: Thank you very much, Madam Chair.
You're not the first person to raise the serious impact or import of the linkage between access and support payments. Would you agree that it would be better if the support payment decision was done in an administrative environment, with a dollars-and-cents administrative approach?
I believe—and I don't know which one of you said this, but I think it was Mr. Tacit—parents are parents before and after divorce, and there is an inherent right to support the financial needs of those children in a shared way, where it's appropriate. So that should be done through an administrative process.
Mr. Christian Tacit: Well, I'm not sure. Certainly the more things can be taken out of courts, the better, I believe. I don't think the courts are the right place for this, because inherently they invite conflict. So if there was a process that could be followed that was more administrative-like, that would certainly be appropriate.
The other thing is the rules. I know the effort in the guidelines to try to streamline and ensure some consistency is admirable, but the reality is that not all sole or joint custodial relationships are the same. In my situation, for example, I pay a lot more of the direct costs for my own children than my ex does, despite the fact that she has been getting very generous support from me consistently, simply because she chooses not to. I can't stand to see my kids dressed in the hand-me-downs she gets from other people when she's pleading poverty, despite getting thousands of dollars a month. So I buy things.
Those types of things need to be taken into account. You can't just look at the income and say that at this income level, a child is supposed to be able to expect to have this much spent on them, without looking at the particular circumstances. It's not cut and dried, that if they're here 40%, suddenly something magical happens.
Mrs. Sheila Finestone: I heard you about the second family, and the rights of the second family. In the first instance, even with the birth parents, the non-examination of the incomes of both the men and the women seems to present a difficulty. I think sometimes the courts are trapped in the mentality of 20 or 30 years ago, because there has been a tremendous evolution in the earning power of women vis-à-vis men. There's also been a difference in the pattern of what used to be the traditional family role, with the wife working at home while the husband worked in the workforce. The wife working at home had no income, whereas the husband working in the workforce got money, and it was a shared arrangement. There's a change in that, and the support payment examination needs to take both incomes into account and then do apportionment.
Now, if you go beyond that apportionment and move to the next question, there is, hopefully, another life after divorce. If two people can't get along, that doesn't mean they lose their obligation as parents, but it also doesn't mean they both should live in unhappy misery or in unhappy singlehood—or happy singlehood—if they don't wish to. You're suggesting, therefore, we need to review the other obligations and the rights of the second family.
Mr. Christian Tacit: That's exactly what I'm saying. I can tell you, my wife feels miserable. She feels like a second-class citizen. She says, you know, the best job a person can have in the world is to be the first spouse.
Mrs. Sheila Finestone: That's true. In a sense, that's true. But she married you knowing you were the father of other children.
Mr. Christian Tacit: Absolutely. But I also have an obligation toward her, and I have an obligation toward our child and her son.
Mrs. Sheila Finestone: I agree.
• 1715
Mr. Christian Tacit: Those need to be balanced. I'm not saying I'm going to ignore my children from my first marriage, but I'm saying there has to be a rational balance, not an irrational balance whereby our household can be told: Even though you make a good income, Mr. Tacit, you and your household shall live in poverty, because the most important objective is for these people from your first marriage to have a certain standard of living.
By the way, I have my kids from my first marriage with me approximately half the time, and I look after them directly at that point as well, paying directly for their expenses. I also pay more than that because I pay for those things for which my ex-wife chooses not to pay.
Mrs. Sheila Finestone: Okay. Thank you very much.
Mr. Blackburn, first of all, I think you're very fortunate that you have such a delightful young man as a son. Frankly, I would like to ask his opinion, and I'd love him to come to the table. However, you didn't bring him to the table, so I can't.
Mr. Michael Blackburn: Actually, I wanted to, and the clerk said I couldn't.
Mrs. Sheila Finestone: Madam Chair, do you have any objection if the young man would appear?
The Joint Chair (Senator Landon Pearson): Any objections? No.
Would you like to come and join your father?
Mrs. Sheila Finestone: Adrian, would you care to join us?
Mr. Green, I want to say to you that I hope (a) you'll be feeling much better, (b) your problems will be resolved, and (c) I think we're addressing many of the issues you raised, so I don't think I'm going to have time to ask you any questions—although I'm dying to know what the discoveries were in the law society. Maybe somebody else will ask that.
Adrian, what would you like to share with us after having listened? By the way, thank you very much for agreeing to appear before us. I'd love to know what your reaction was to hearing the other two witnesses with your dad.
Have you been here since the beginning? What is your sense from what you've heard and from what you've lived as compared with what you've heard?
Mr. Adrian Blackburn (Individual Presentation): Well, all three of these are similar in one sense. I mean, I know my father. I know he's not lying about any of this, and I know he's basically giving a personal opinion.
Mrs. Sheila Finestone: He's a really good, decent guy.
Mr. Adrian Blackburn: Yes.
Mrs. Sheila Finestone: Okay. That we got, and I think we all sensed that from his remarks, and that you're a terrific son.
Mr. Adrian Blackburn: I don't know. I'm not sure what else to say. I mean, I can't say I disagree.
Mrs. Sheila Finestone: How old are you?
Mr. Adrian Blackburn: I'm 13 years old.
Mrs. Sheila Finestone: How long have you been living separated from your mom and dad?
Mr. Adrian Blackburn: Eight years now.
Mrs. Sheila Finestone: Do you have brothers or sisters?
Mr. Adrian Blackburn: Yes, I have one sister.
Mrs. Sheila Finestone: From the same marriage as your dad?
Mr. Adrian Blackburn: Yes.
Mrs. Sheila Finestone: How does she react? Do you discuss it together?
Mr. Adrian Blackburn: No, we don't discuss it together. Actually, my sister and my father haven't seen each other for about two years now because of an event that happened awhile ago. Since then it's kept my sister and my father separated. It's a personal matter, so I won't discuss it.
So my sister and I don't really talk about it that much.
Mrs. Sheila Finestone: Okay. That's very hard for you, I'm sure.
Do you think there are some things that could have happened that would have made it easier for your dad and/or for your mom?
Mr. Adrian Blackburn: Well, I'm not sure. Maybe for my dad, because the way things ended up after the divorce and the agreement and all that, it didn't seem all that equal, to me. My father, after my parents were actually divorced, had to live in a kind of cheap one-bedroom apartment while my mother kept the house and everything, and my dad paid her child support of $ 600 a month, I think it is. He hasn't missed a single payment, and he's paid her ever since the divorce and the agreement. My father has gotten the worst part of it.
Mrs. Sheila Finestone: The short end of the stick?
Mr. Adrian Blackburn: Pretty much. That's what I'm trying to say.
Mrs. Sheila Finestone: How much time do you spend in your dad's place versus your mom's place?
Mr. Adrian Blackburn: Unfortunately, I have to say I spend only about two days a week with my father. That's not including vacations and all that. On a regular basis, I see my father about two days a week, and my mother and the rest of my family about five days a week.
Mrs. Sheila Finestone: Do you think it's the quantity of time, Adrian, or is it the quality of the time that counts?
I'm a grandma, and I have a grandson who's just about your age. I'm just curious to know how you're reacting to going from mom's house to, as you said, dad's one-room not-such-a-great apartment.
• 1720
Mr. Adrian Blackburn: It's both, because quantity in a sense means quality, because if you can only spend so much time with your father or your mother, then you only have so much opportunity to have a good time and enjoy yourself while you're doing so.
Mrs. Sheila Finestone: Thank you so much for coming and talking to us. I don't know what the chair would like to do.
The Joint Chair (Senator Landon Pearson): Please stay there. We're very glad to have you here and we'll turn it to Mr. Mayfield.
Mr. Philip Mayfield (Cariboo—Chilcotin, Ref.): Thank you very much, Madam Chair.
I apologize for not being able to be here at the beginning, and I can really only address Mr. Tacit, who I heard from beginning to end.
There was a point in one of your recommendations that I wanted to explore a little bit with you. It has to do with the relationship between the lawyers and their respective clients. You suggested that there should be some regulation of I think you used the term “sharp practices”. Because you're a lawyer, I'm wondering how you would expand on this point so that the job could be done without undue advantage being taken of that position by legal counsel.
Mr. Christian Tacit: Let me be explicit about what's happened in my situation. Up until when this access problem of mine first arose, my ex had very reasonable counsel who was trying to commence the negotiation procedure. She didn't like that advice and she turned to another lawyer here in town, who basically became very aggressive and tried to inflame the dispute as much as possible, on the theory that if you could only do enough of that then the legal test for joint custody wouldn't be met and my ex would have a case for sole custody. In addition to that, she might be able to get me below the 40% threshold, and then there's all the financial rewards of that as well, and that's been happening very consciously.
By the way, he's so far billed her in two years $ 110,000, which she has been able to pay through family loans or other means. All of the time, by the way, I've been paying my generous support to the point where I've been driven close to bankruptcy. If this isn't a perverse result, I don't know what is.
So what I would say is that judges, parents, everybody owes a duty to children to act in their best interests. It doesn't seem like the lawyers acting for parties do. There ought to be a legislated duty on lawyers in family law matters, when advising their clients, to be required to take the best interests of the children into account and to minimize the potential for unnecessary conflict.
I'm not saying that sometimes it isn't necessary to take diametrically opposed positions, but to unnecessarily and deliberately inflame conflict so that you can increase billings and extend something for years that should be resolved quickly is devastating. I cannot tell you the outrage I feel. I'm not so much angry with my ex, because I think in some ways she's been victimized too, as I am with her current lawyer for being allowed to do this with impunity to our family, to my children. There ought to be consequences for that, and at the end of this process there may well be, but I don't have much hope under the current legislative framework.
It has to be made clear that the duty of the solicitor.... There are special duties placed on solicitors when they engage in real estate transactions. For example, when they want to do brokering or private mortgages, there are all sorts of special rules. Why aren't there special rules in family law for them to conduct themselves in a proper manner that doesn't inflame conflict unnecessarily?
That's the problem I have, and the consequences should be severe because the parties who are hurt by misconduct are the most helpless members of society: the children.
The Joint Chair (Senator Landon Pearson): Thank you.
We're going to move on because we have a very short time and we still have three questioners.
Senator Cohen.
Senator Erminie Cohen: I'm glad you just made that comment, because after listening to your presentation and to others, I'm beginning to realize, with all due respect to the lawyers around this table, that our biggest problem is the judges and the lawyers and the courts. I think we have to take a very hard look at that whole situation. In your own personal experience, you and your wife were able to come to a form of resolution until her lawyer got involved.
• 1725
I wanted to just ask you a question regarding the
rights of the second family, because I have children in
that area too. In the event of the second family, is
your spouse responsible at all? Is your combined
income taken into consideration when you make your
spousal payments?
Mr. Christian Tacit: The separation agreement I had with my former spouse was made before I remarried. So none of that would have been taken into account in the current situation, in the arbitration that was just completed yesterday, where my ex is seeking to continue spousal support and obviously also child support remedies.
Mrs. Sheila Finestone: Spousal support.
Mr. Christian Tacit: Yes, spousal support.
Mrs. Sheila Finestone: Plus child support.
Mr. Christian Tacit: Yes, she's seeking to continue those in a certain quantum. I'm not going to get into those details. Her lawyer argued very strenuously that my current wife's income—and by the way, my wife has been off work to look after our two-year-old. Her lawyer argued that she should basically have to go back to work so I can pay support. That was the argument that was made.
Senator Erminie Cohen: What I wanted to tell you was that in my daughter's case, in the event that her husband could not keep up his support payments, her income would be taken into consideration. What's sauce for the goose is sauce for the gander.
So in the first family we should also take a look at combined incomes, because it does happen in the second family. I wanted to assure you I'm sitting on the guidelines committee for review and I will take your recommendations, which we've heard repeated, especially the 40% threshold, to this committee, because we're just beginning to go line by line.
Mr. Christian Tacit: With respect to your first point, Madam Senator, I think frankly it's wrong and divisive to take other spouses' incomes into account, whether it's the first family or the second family. I think all that creates, and I can tell you from personal experience, is a lot of bitterness and division, and it increases the prospect for second families to fail. That's not in the public interest, especially where there may be children of that second family. You can imagine how my current wife feels about the potential prospect that because of my near insolvency she may be forced to go back to work because my first spouse is claiming that she wants more support or longer support. It's putting me and our family in an untenable position.
Senator Erminie Cohen: So what you're telling us is you want a balance.
Mr. Christian Tacit: That's right. It's my responsibility, and I understand that, and within my means I should be the one who's judged as to what I can do. Unless I'm hiding assets or income—which I'm not; nobody has accused me of doing that—it's nobody else's businesses to support my first family. If she married a millionaire it wouldn't be my business.
Senator Erminie Cohen: Thank you.
The Joint Chair (Senator Landon Pearson): Senator Pépin.
Senator Lucie Pépin: Mr. Green, is there a recommendation or a specific point you would like to stress to us? Do you have a recommendation that could help fathers in the situation like yours and that could help ensure the situation would never happen again? What would you like to stress to us specifically?
Mr. Gordon Green: I feel that in what I witnessed with what they call the discoveries, the pre-trial, and with the law society, truly, and I can only speak for my situation and my observation, there seems to be a mens rea or a knowledge of this lawyer that she can do this, she knows the limit that she can push the envelope to, and essentially get away with it. To answer your question directly, I contacted the police and asked them if I had such a tape and the offence on the tape was under the Criminal Code, instead of being policed by the law society, what would be done with the tape. The response I received from the Ottawa-Carleton Regional Police was that the tape would be sent to the crown attorney and the crown attorney would decide whether or not to prosecute. That would seem to me to be a much more consistent treatment of something that, as I say, in my opinion is fraud. It is fraud when a criminal activity is mentioned on an affidavit that is a conscious falsehood, and that is the way it should be treated.
• 1730
The Joint Chair (Senator Landon Pearson): Senator DeWare, do you want to be first on the next one? It's grandparents coming.
Senator Mabel M. DeWare (Moncton, PC): I just want to ask Mr. Green how old his daughter is now, and if he has access. How old is your daughter?
Mr. Gordon Green: She's three, and yes, I do.
The Joint Chair (Senator Landon Pearson): Thank you very much.
Mr. Philip Mayfield: Madam Chair, there's one thing I would like to ask. I'm not going to insist that I be able to ask, but I would like it included in the committee's consideration. It's a point Mrs. Finestone raised, which is looking at an administrative way of dealing with these problems that would perhaps give parents an opportunity to do something besides go to competing lawyers.
The Joint Chair (Senator Landon Pearson): Okay, thank you very much.
Thank you very much, all of you. Thank you, Adrian, for coming as well.
I invite Mrs. Henderson, Ms. Gallinger, and Monsieur Denys to come forward.
Mrs. Henderson, would you like to begin?
Mrs. Linda Henderson (Individual Presentation): Yes.
I became a grandmother for the first time last June. It hasn't been easy for our family. I think the courts are not fair to grandparents. For one thing, the mother uses the children as pawns, or tells you what to do. I've raised my own children. I have been a foster parent for 15 years and had over 75 children. I just feel that grandparents.... I'm so glad that you guys come out like this with a committee, because it's been a long time.
I had put some recommendations down and I will leave them with you. We are behind, and I do have a ride. My neighbour was in a severe accident, so we were at the emergency up here in Ottawa.
I would like to see more grandparents' rights, besides the fathers' rights. In the Ontario court we were in here, if the child.... And it's only a newborn baby; it was only two weeks old when I decided that we were tired of listening to my son's girlfriend threatening him, threatening us that if we didn't provide anything for the child we would not be able to see our grandchild.
I am smart enough as a grandmother.... Unfortunately, the first time I left everything I had bought for the child. The child was never left out of anything. I had all my receipts. If it wasn't for us, the baby wouldn't have had anything.
Right now, the court has allowed her to move to Nova Scotia. It's an 18-hour drive for us to go and see him. My son did get joint custody, which was a bonus, but the courts are letting these mothers take off, too far away for the fathers and the grandparents to see the child. Some things like that have to change, because an 18-hour drive to be able to spend the time with your grandchild—it's awful the pain our family is going through.
The Joint Chair (Senator Landon Pearson): Would you like a glass of water?
Mrs. Linda Henderson: I just don't feel the mother should be dictating how the grandparents should see their grandchildren, or how they look after them, unless it is to do with a medical problem.
When my grandson was born he was diagnosed with Bell's palsy. We were not given all the information. When we asked, we were told that because they were not married, we were not entitled to it.
• 1735
And we're denied access for telephone calls. The
baby's going to be two now, coming up in July.
According to them, the baby can't talk, but he can say
a few words. They don't feel it should be right, yet
it's in the court order. But the mother does not
follow it.
The other grandparents are allowed to see the child whenever they want. They can take the child and go where they want. Yet when it's our turn, we're told where we're allowed to have him, when we are allowed to have him, the whole thing.
There are a lot of fathers and grandparents out there who want to spend the time with their child. I know I'm definitely one of them, and my husband is the same way. We both want equal rights as grandparents, not just giving one side of the grandparents rights and leaving the others out.
The Joint Chair (Senator Landon Pearson): Thank you.
Mr. Denys.
Mr. Laurent Denys (Individual Presentation): Madam Chairman, ladies and gentlemen, I'm privileged to speak to you in our national Parliament. I'm pronouncing the word deliberately because I hope it will continue to be the highest court in our land. Thank you.
At the presentation by the GRAND Society some weeks ago, one member of the committee—it may have been you, Madam Chairman—asked if there were any grandfathers who are members of the GRAND Society. I'm one of those grandfathers. I'm the father of three sons, grandfather of three grandsons. Unfortunately, partly due to the current epidemic of divorce, I've not been allowed to see my oldest grandson for four years.
Time is short, so I'll speak frankly. Like comedian Dave Broadfoot, I feel I'm old enough to speak my mind. I've attended five or six of these hearings.
To begin, a recurring suggestion has been that we should sanitize divorce language of such words as “custody” and “access”. I don't believe that semantic cleansing has ever solved any real-life problems.
I have a few words on violence against men in our society. Currently, although the situation is improving, it's a footnote in the research literature and the media. I was a member in 1992 of the only Ottawa support group for separated and divorced men who had clinical supervision. The group and its public funding at the Civic Hospital was discontinued several years ago.
I'm not going to steal the fire of Drs. Landers and Nihon, who will be presenting after us on the effects on men of separation, divorce, and no access to their own children. I will speak briefly about my own particular group in 1992. There were six members. One member committed suicide. One was forced by the court to undertake what I can only characterize as a penile sensitivity test before gaining access to children. I personally went bankrupt in attempting to reconcile with my family.
Therefore, by all means prepare an analysis of violence for your report to Parliament, but in fairness and justice, include analyses of violence against men, institutional violence against men, by the courts, police departments, Children's Aid Societies, and most important, what I might call violence of the tongue, via false allegations and accusations. I can assist the committee with some research references.
I believe from my personal suffering and research literature that all of us own violence in our society—men, women, and yes, children, if one pays attention to the new wave of violent crimes by teenaged girls and boys. Violence is more than a gender issue; it's a human issue. We are all responsible.
What kind of a democracy do we want for Canada? Every credible study on children's social conduct and school performance indicates that the family unit requires a firm, consistent male figure to push up against, for lack of a better expression, in order to learn the limits of acceptable physical force and to emulate high standards of achievement. Yet the net results of the federal and provincial divorce laws have been to emasculate the Canadian male as husband, as father, and as grandfather. We have done this in law and by the courts in good, traditional fashion, as we first did with our aboriginal peoples, the Acadians, the Ukrainians, German Canadians, and Japanese Canadian citizens during this century's two world wars.
• 1740
The particular group that is the object of moral
hysteria and political correctness of the day is
legislated against, disenfranchised, and far too often
expropriated, always accompanied by saleable media
hysteria. Let us not forget that fashionable moral
hysteria is the capital of political gain.
I have two questions. Does Canada wish to continue the aggressive state invasion of more than 50% of Canadian bedrooms, as it does every day? Have we Canadians become morally blind or have we simply gone berserk with political correctness when law-abiding citizens like myself—as are most Canadian men—must approach the Parliament of Canada to gain access to our blood children and grandchildren, a relationship considered natural and good in all the cultures I have worked in during a 35-year career in international development? These are fundamental questions of political democracy.
I respectfully submit that this committee recommend to Parliament that the federal divorce law be scrapped and a new start be made. This is an opportunity of a generation to significantly improve our national well-being. Like the Young Offenders Act and provincial divorce laws based on the federal divorce law, all are fatally flawed and cannot be fixed.
The underlying presumption of no fault in spousal conduct may be efficient in settling automobile insurance claims, but mocks spousal responsibility and life-long commitment. An assumption of no fault translates into an assumption of no social value inherent in the civil institution of marriage.
The immediate results of dissolving the current federal divorce law, even temporarily, I predict would be the following. There would be a shrinking to an appropriate scale of the divorce industry and the psychotherapeutic industry. At the risk of sounding a bit ironic or perhaps even sarcastic, the newly unemployed in these industries can then perhaps apply for federal aid, as the NHL has done recently, on the basis of number of people working in the industry.
Another result would be a new sanity and common sense in the spirit and soul of our nation. There would be an opportunity to invest in healing, mediation, and serving the best interests of the child within the well-being of the family.
Recommendation number two—bear with me, Madam Chairman, I have about one minute left—is if Parliament must tinker with the existing divorce law, one change is most important. Give back to us fathers and grandfathers our civil rights and due common-law process. Presume we are innocent until proven guilty. The burden of proof should always be on the accuser, with no exceptions.
Far too many of us, myself included, have been presumed guilty of domestic violence and potential child abuse until proven innocent because of our gender only. Any father or grandfather in this country who has no history of abuse should be able to obtain a judge's order quickly and without legal representation, at no cost, in order to gain access to a child or a grandchild.
I repeat, the burden of proof should always be on the accusing party and the withholding party. The results, I predict, will be in the best interests of the child, in the best interests of the family, in the best interests of the community, less hysteria, and less road rage.
That's all, Madam Chairman.
The Joint Chair (Senator Landon Pearson): Thank you very much.
Ms. Gallinger.
Ms Margery Gallinger (Individual presentation): Madam Chair, ladies and gentlemen. Thanks for allowing me to participate.
My experiences as a grandmother and a mother, in helping my son through a custody and divorce, have been frustrating and draining emotionally and financially and have not been in the best interests of my grandson.
The system can work if all the parties put the best interests of the child first, but if as in our case one party consistently behaves irrationally, pettily, wilfully, and obstructs access to see the child, it does not serve well.
• 1745
We obtained a court order in October 1996. The
separation was in 1993. From that time on the wife did
her best to thwart our access. She made it difficult
before the court order and almost impossible after.
I'm a shy person, and I had to resort to sneak attacks
as visits, coming in at odd hours of the day, afternoon
or evening when they might be home so that I could see
my grandson. After the order...she still tries to thwart
that order and access. She makes every contact with
her and the child unpleasant, so that it becomes a
matter of nerve to make the contact to pick up the
grandson. I don't like confronting hostility
every time I do something, and it's not good for a
child to see that. It really bothers me.
To begin with, her suspicion that Jim might have tendencies to be a child abuser prevented him from having unsupervised access to his son. Jim was examined at the ROH and found to be non-abusive and a good man, but that was very costly, as are the continuing bills that we have been paying. Our total runs close to $ 60,000 now, and it's still going.
They had counselling, both before the break-up and after the separation. There were five or six counsellors involved. If a counsellor questioned her behaviours or statements, she changed counsellors. She also employed five different lawyers, so there was no continuity in handling the case. She did not come to our house often, except when she wanted to make a case. On one occasion, she harangued my husband, who had cancer of the lung, for two hours about her husband's, my son's, faults. This really upset him, and he's usually a very self-possessed person.
We have numerous recorded telephone calls proving that she had been upsetting the child when he was around two or three, telling him that Daddy had stolen her boat and her tent, etc., and telling him little twisted stories about how Daddy had hurt him. We've had Shane on the phone screaming and yelling in hysteria, and this has been very upsetting. As I said, I managed to get access, because in October 1996 my suit for access was joined to my son's. We have a court order, which she has not followed consistently or to its full intent.
I feel that the constant uncertainty has created an unstable custodial arrangement for Shane and an unstable environment for him, as well as mental anguish for his father, his uncles, and myself. I will keep on working and I will insist on the rights of Shane to be an integral part of our family. It's his right and his heritage.
Our lawyer suggested arbitration and we agreed, and it was a good arbitration. We gained a lot of things, like access to medical information and input into his school and his medical care. We lost consecutive weeks of holiday in the summer, which we had already arranged, but we bore that gracefully, feeling that we had gained something. But when summer was over my daughter-in-law started trouble, refusing my pick-ups at the school, refusing to allow us to drop him off at her home. We wanted continuity in our handling of the child. We didn't want him to feel that he was a piece of baggage being shunted back and forth. But we have not been able to attain this yet.
So with the arbitration being ruined, more or less, we served a contempt of court. The courts were overcrowded. Our case was sent to an unscheduled courtroom and there was no time to properly review the document, which was about this thick. We lost a lot of our gains in the custodial arrangement and went back to the first order.
Presently we have an offer on the table for her to settle out of court, as we were advised to go to trial, and she is just ignoring it.
• 1750
Those are our experiences. They have been upsetting
and draining. As well as financial loss, they have
caused an awful lot of problems for me, like the lack
of ability to concentrate and do my job properly. I
have let other things in my life slide, because as a
grandparent and mother I just have to put my energies
here, where they really belong.
Here are my comments. Do not automatically give custody to the mother or to that parent who takes the child away from the family home. It takes two to create a child. Two should be equally responsible and two should have equal access unless there's legally proven abuse of the child or the wife or the husband or a proven record of drug/alcohol or alcohol abuse or mental instability that will be harmful to the child.
Never separate a child from either parent. I saw what little Shane's face was like the first time I went out to visit him. It was closed and quiet and he didn't want to look at me. The first words that he said to me were, “You couldn't bring my daddy, could you, Marge?” These things are very upsetting.
Suspicion should not be allowed to dictate access of a child; only proven fact should.
We need more judges, for continuity in the cases. If our case could be handed to one judge so he could take care of it through his courtroom, much of the delay and inconsistency would be averted.
The idea of arbitration or mediation before getting involved in divorce would be helpful.
And I agree fully on the need for legal aid and for homes for abused people. They are very necessary, but I would like to see these support systems being very watchful over cases that become protracted, where, over a period of time, the parties or one party will not be satisfied with that which is fair for parent and children or where the proposed solution has been accepted by many others but rejected by them as not right.
If there is—
The Joint Chair (Senator Landon Pearson): Excuse me, Mrs. Gallinger, are you just about finished?
Ms. Margery Gallinger: Yes, sorry.
Where there is repeated obstruction, distortion of orders, and denial of agreements, the wisdom of supporting a legal crusade against previous partners should be investigated.
First of all, keep that child in mind. He has a right to both parents. He has a right to his extended family. That gives the child a sense of family, a sense of worth, a sense of ongoing love and support beyond the two parents who have him, the parents who are fighting and making his life miserable.
If I had not had the resources to pay for the testing at ROH—and I actually put in money to take care of my daughter-in-law as well at the very end because legal aid would not pay for it—neither I nor my son would be a part of my grandson's life.
Please keep the child first in your minds, and please, mediation. And putting court cases in the hands of one judge would be a better procedure.
Thank you for allowing me to participate.
The Joint Chair (Senator Landon Pearson): Thank you very much.
Senator DeWare.
Senator Mabel DeWare: I'm sorry that our first witness had to leave, because this hardship and hurt and what you people have had to go through is just unbelievable to some of us who are parents and grandparents. We don't have to go through it, but you have to go through these kinds of things.
I'm not sure what we can do as far as the law is concerned, but I do realize that we have a real problem in our courts. We have a problem with some of our lawyers and we have a problem with some of our judges, who don't seem to be sensitive to these issues.
We have heard from a lot of grandparents' associations across the country, as you probably realize if you've followed any of our testimony and hearings. A lot of the cases were about losing their child and then being totally cut off from access to their grandchildren. It has to be very heart-wrenching. We wonder what we can do, because grandparents are also in-laws. That sort of phrase has never been associated with grandparents, but we are also in-laws. Often people have this thing about in-laws, and I think it's reflecting on grandparents as well.
• 1755
I'm not sure how we're going to handle this, but I
know something has to be done. The sad part of our
hearings—this means all of our hearings—is that we
never can hear, actually hear, the other side of the
story or the third side of the story. We always have
only one side, one sad side, to hear from. That's the
part that's so frustrating to us. How do you get...?
We can't be the judge and the jury if we don't have
access to all sides of the story.
Do you have access now, Marge?
Mrs. Margery Gallinger: Yes, I do.
Senator Mabel DeWare: How old is the child?
Mrs. Margery Gallinger: He's seven now; he was two when this started.
Senator Mabel DeWare: How long have you been working at this?
Mrs. Margery Gallinger: Five years.
Senator Mabel DeWare: Does your son live with you?
Mrs. Margery Gallinger: No, he's in the air force. He was in Chicoutimi at first, and he had to travel over an eight-hour drive. We had to do some fancy footwork with the schedule the judge helped us arrange.
When he was sent to Trenton, that was much easier. For him to come up now it's a three-hour drive. Now I'm able to take my grandson down to visit him as well. So it's working a lot better.
As I said, it caused an awful lot of grief, hurt, and very bad feelings, which I wish weren't there.
Senator Mabel DeWare: That's the sad part. We understand from children that they feel that. There's no way they cannot feel what's going on between the parents and the grandparents.
Mrs. Margery Gallinger: Yes, that's right.
Senator Mabel DeWare: Mr. Denys, would you like to make a comment on your situation some more? You apparently were accused as a parent—
Mr. Laurent Denys: Just very briefly, on the personal situation, there was a bit of a twist in my case. It has nothing to do with a new daughter-in-law. In fact, my wife divorced me in middle age for her own reasons, and she went to live with my oldest son. I don't know what was said, and I don't want to know, as I hurt enough already.
Here is the net effect. My oldest grandson was born on Christmas Day of 1992. I babysat him for a whole year. Immediately after, as of 1994, I could not see him. I would not recognize him from a photo.
Senator Mabel DeWare: You were falsely accused.
Mr. Laurent Denys: Yes, of potential child abuse.
Senator Mabel DeWare: Do you have a leadership role in this organization that you belong to?
Mr. Laurent Denys: I'm a member of the GRAND Society. The chairperson is here, Liliane George.
Senator Mabel DeWare: I think you said that most of the people in this society have had these same kinds of problems—
Mr. Laurent Denys: Very similar.
Senator Mabel DeWare: —in that they've been accused and abused.
Mr. Laurent Denys: Yes.
Senator Mabel DeWare: You recommend that healing mediation should be in the best interests of the child.
Mr. Laurent Denys: Very much so. I would just like to make a very brief observation on that. I've attended half a dozen of these meetings, so I've sort of let the impressions build up, and then I've taken a bit of a distance from everything.
I don't see fine-tuning the system, further legal additions or manoeuvring, or more lawyers, policemen, or judges. Judges' restraining orders in this country, certainly in this province, are handed out like rolls of toilet paper. I don't know where you find statistics on this, but the vast majority of them must be ignored. They have no value because the overall situation is so bad. This is why I've made some of my recommendations.
Senator Mabel DeWare: I have one more question. We had a judge from Michigan come before our committee. We questioned him quite extensively on access orders. He said they didn't seem to have quite the same problem that we have in Canada because the judges enforce access orders. Couples there know they're going to be enforced; therefore, they don't seem to have the same problem with it.
I asked him how many grandparents he had before him asking for access orders to their grandchildren. He said that in his recollection of over 20 years of being on the bench there were none.
• 1800
Now that really surprised us. They're doing
something right, so I think we have to find out what
they're doing right in order to have the access orders
enforced and to have no problems with them.
Mr. Laurent Denys: May I respond just very briefly?
The Joint Chair (Senator Landon Pearson): Yes, go ahead.
Mr. Laurent Denys: My fundamental emphasis, as you've probably gathered, is that I want to stand back from that. I think we've created our own nightmare in Canada. It's like living in a Kafkaesque novel. My wife went on her own fully eight years ago. I still have nightmares because of the stories that were told in court that fall under the rubric of mental and physical cruelty.
How do you disprove that you are not potentially an abuser even with a battery of clinical psychologists and psychiatrists? I also went to the ROH voluntarily and was assessed. We have inherited from Britain one of the best common-law traditions in the world up to this point, and the basic principle of one being innocent until proven guilty has been set on its head in family law courts in this country.
So I'm standing at a distance. It may well be that the Americans are doing something right, but why are we here today? Is it natural? Do we foresee a society in the next century that must have a 50% divorce rate and all of these problems recurring? Is this the natural level?
The Joint Chair (Senator Landon Pearson): Thank you.
Mrs. Finestone.
Mrs. Sheila Finestone: Thank you very much.
I just wanted to say to you that in Washington this past weekend, at the conference we were invited to attend, if you recall, I was very interested to learn that two of the issues we seem to be facing about which we're very upset is the access question, but we heard about it from a different perspective. They've done a tremendous amount of research there on access.
Madam Chair, you will please correct me if I put this out of sync, but I believe I'm right that their biggest concern was the voluntary withdrawal or drop-off of the use of access rights by, in most instances, fathers. I found that extremely interesting.
It was an enormously high figure, and I'm sure we'll get the papers that will give you the findings. They noted that it's just not in the United States, it's also in Britain, Australia, and New Zealand.
So it is a pattern, Mr. Denys, that seems to be prevalent in many parts of the world, but the part that you're referring to was with respect to your hope that we won't have a 50% divorce rate, if it ever becomes that high. It's close to that, but I hope it will never go anywhere near that.
Many of the problems we're seeing here in Canada are very similar to the problems and concerns we heard about at this international conference that was held. It doesn't make it any easier, and I am hopeful that we will find some resolutions that are more helpful.
In that regard, I want to thank you for your recognition of the importance of civil rights and the fact that one should return to the common-law process. I think that should be certainly something that should be noted. Because false allegations are a concern, as are potential false allegations or the potential for abuse, these are issues that should be dealt with on a burden of proof. So I like the concept you presented on the common-law process. For me anyway, it's the first time I've heard it suggested in this way and in such a concrete and succinct fashion.
Second, there's the kind of abuse that's seen when a child is not able to see their parents. Then there's this unfounded harassment that I believe you were referring to, Mrs. Gallinger. You want to see legal harassment as mischief.
I wonder if you would elaborate on how you see the whole question of this kind of harassment and the rights of the grandparents and in-laws.
• 1805
Ms. Margery Gallinger: I've seen the effects on Shane. He's a little bit uncertain as to how he should behave. He doesn't want to give me a hug when his mother's around to see it. If I get a hug, I usually say, “It's time for a hug” before we leave the house. That's the kind of thing you see.
And harassment—there are incessant complaints about who should make the telephone call, who should pay the long-distance calls, and when we should pick the child up. She could be 15 or 20 minutes late. In other words, her rules or the highway. It's so ongoing, I can't even put a finger on all of it without leafing through all of this.
Mrs. Sheila Finestone: We're being asked to consider changes in nomenclature—which I know, Mr. Denys, you didn't think much of—from “custodial” and “access” to “residential” and “non-residential” or “visitation rights”, and to give serious consideration to calling the subsection of the Divorce Act “shared parenting”, “joint parenting”, or “sole parenting”. We've had so many different options presented to us. Do you think there's anything in that change of rose name?
Ms. Margery Gallinger: Not very much. The custodial parent has so much time to influence the child, either by letting the child.... It doesn't matter what you call the name of the game; the game is still there.
A voice: That's right.
Ms. Margery Gallinger: The child is sitting in the living room or the kitchen and listening to his mother or his father discuss the other party or discuss some way of getting around something or other. They pick it all up. They're like little sponges. They're wonderful little sponges. They learn. Between the time they learn to hear words and the time they're six, their character is formed.
We call our time reprogramming time, because we have to teach him to be responsible for his actions and to be polite to people and not to push ahead of.... You know, it's just general consistency, not to make him unhappy with us, but to teach him how to get along in the world.
The Joint Chair (Senator Landon Pearson): Yes, Mr. Denys?
Mr. Laurent Denys: Madam Chair, could I just make a quick response to Ms. Finestone on the lack of usage of access by fathers and perhaps provide her with an insight, at least in my individual case, and it may possibly explain other cases as well?
Have you considered that perhaps we're doing an act of kindness? I have deliberately avoided taking my son to court for four years because it can only lead to acrimony; it can only lead, as my colleague here has just stated so well, to the little ears picking up everything, even if it's not verbalized. My field is education, and I feel that people learn through osmosis as much as they learn semantically and audio-visually. People, like my pet dog, for that matter, pick up signs, signals, and sensations. Children do; adults do.
I've deliberately not pushed the issue, because I don't want my grandson to be in the middle of it. And quite frankly, in terms of any eventual reconciliation with my son and daughter-in-law, which I hope will come one day, I don't want to put oil on the fire at this point. So I've absented myself. Even though I did not have an access order, I've not even broached the subject.
Depending on what comes out in the changes to the Divorce Act, perhaps it will be easier to get access and perhaps my son and daughter-in-law will see that the legal framework now makes this easier and it's in the best interest of the grandson as well.
What bowls me over is that in every culture I've worked in—and I've lived for a number of years in Africa, in Sri Lanka, and in the West Indies as part of my assignments; most of my career has been at CIDA, the Canadian International Development Agency—intergenerational contact is so natural. I'm not saying there are no abuses; there are abuses in all kinds of human societies, communities, and associations. But the overwhelming benefits between grandparent and grandchild are undeniable in every culture and in every country. And most of you, or certainly a good—
Mrs. Sheila Finestone: So you wouldn't agree that you would have to ask leave of the court to present? You think it should be an assumption that grandparents should be heard?
Mr. Laurent Denys: Absolutely, absolutely.
Let's push this a little bit further. Are we coming to a stage in this country where every father and grandfather must have a penile sensitivity test before he can see his own children?
• 1810
Mrs. Sheila Finestone: Thank you very much.
The Joint Chair (Senator Landon Pearson): Thank you very much.
Mr. Mayfield, do you have a quick one? I'm going to put you first on the list for the next question. I don't want you to cut it off, but we're 40 minutes behind time, and we need a break here.
Mr. Philip Mayfield: I appreciate that.
I sit here as a grandparent who doesn't know what he would do without free and liberal access to his two precious granddaughters, listening to you and to your pain, and I do it with great emotion.
I heard you say you'd like to scrap the Divorce Act. Without having you sit here and draft a new one, I was wondering, did you include in your comments the main points you would like to see in your idea of a proper drafting of the new act?
Mr. Laurent Denys: No, I haven't. Quite frankly, it was to deliberately shock the members of the committee a little bit.
Mrs. Sheila Finestone: You did it. You won.
Mr. Laurent Denys: No, I hope fathers, grandfathers, and grandmothers have won.
Let's take a bit of distance here, a little bit of perspective. It really is the opportunity of a generation to do something. Let's not be in a rush. What's the hurry? We're going to set the overall framework, legal and otherwise. When will this come up again, in another 25 years?
Please don't ever think I feel there should be no divorce in this society. In the course of human affairs, things happen; life is full of surprises. There's need for divorce, and it needs to be in a legal framework, but there is something very wrong in the situation we have created.
The answer to your immediate question is no, obviously I've not.
Mr. Philip Mayfield: Madam Chair, could I also ask Mrs. Gallinger if she would like to reflect on that same question, but perhaps keeping in mind her recommendation for mediation?
How do you see that working, in your 30-second description of what you have in mind?
Ms. Margery Gallinger: If two parties are fighting, they really need a cooling off period before any decisions are made. During that cooling off period, the children should be allowed to see both parents; in fact it should be mandatory.
Secondly, a professional mediator will know how to help them come to grips with whatever the true problems are. Then if that doesn't work, arbitration should step in and decide. What I am most interested in is seeing that those children have their family rights and inheritance and that they know their extended family, all of it.
Mr. Philip Mayfield: Are you suggesting that legal counsel and the courts should be pretty well left out of the process?
Ms. Margery Gallinger: They should be held back until nothing else will do.
Mr. Philip Mayfield: Thank you very much.
The Joint Chair (Senator Landon Pearson): Thank you.
Thank you very much to the witnesses. We appreciate your coming before us.
We're going to take a 20-minute break and resume at 6.35. There is food here for those who are hungry.
• 1813
• 1837
The Joint Chair (Senator Landon Pearson): I would ask the members to resume the table and our guests to come.
We have, from Fathers After Rights Equalization, Mr. Brett Peters; from Entraide pères-enfants séparés, Monsieur Marc-André Pelletier; from the Men's Health Network, Dr. Danielle Nihon and Dr. Nedra Landers; and from the National Alliance for the Advance of Non-Custodial Parents, Mr. Jason Bouchard.
Is Mr. Peters here? We'll leave a space for him, and you'll start to talk anyway.
Shall I start with...? Well, you're saying ladies first. May we talk with Dr. Nihon and Dr. Landers? You're going to split your presentation, and I'm going to signal when two and a half minutes is gone.
[Translation]
Dr. Danielle Nihon (Men's Health Network): Madam Chair, honourable members of the special committee, ladies and gentlemen, it is a great honour for me and my colleague, Nedra Landers, to speak to you today on a subject that is very close to us as psychologists and mental health workers.
[English]
Indeed, Nedra and I had the opportunity to start the first clinic for men in North America, probably in the world, and we chose to focus on the issues of fathers who were separated and recently divorced. Why did we select this population? Interestingly, if you go to StatsCan's library, there are some dusty pages, seldom looked at, that look at statistics on men.
• 1840
As you know, men are approximately 49% of the
population of the world. We have coined the phrase
that men are the invisible minority in health care,
because in fact there were some disturbing statistics
about men's health that are not reported.
What are the statistics to do with men and separation? They are the following.
Men who are recently separated or divorced have the highest rate of completed suicides of any group. We don't like the word “successful”, which is the word used in the literature.
They also have an 8 to 16 times higher rate of hospitalization and in-patient psychiatry.
Why the suicide rate? These are men who are devastated by losses, the loss of their marriage, but probably most profoundly the loss of their roles as fathers. Of the 400 men we worked with, the majority of them did not have the opportunity to have access to or custody of their children, and we saw many, many tragic stories in that regard.
So as we started this clinic, what did this great oracle of literature predict to us about the likelihood of our success? Not very much, because in fact the literature tells us that men do not seek help and that men do not know how to express their emotion. We have coined this the “myth of the emotionally defective male”. It is almost as though men are lacking a basic gene that is somehow inherently necessary in terms of knowing how to emote and how to father.
Well, that was not the experience of the men we knew personally, nor of the men with whom we worked in our clinical practices, and so we decided to challenge that myth, because a very important piece of work needed to be done in offering a highly needed service for these separated men. If you look around you in the community, there are very few, if any, resources for men, very few support groups for men, and the only ones available are the ones for men who have been violent and have been court mandated.
It's interesting. The only aspect of malehood that our society somehow legitimizes is men's capacity for violence.
We started this clinic and we ran about 25 different groups, led by male and female leaders. What we found was dramatically challenging to the literature.
The typical group therapy literature says it takes about three sessions for a group session to gel. We found that these groups gelled in about two seconds rather than three sessions, because the first time the first man started to go around the circle and said, “Hi, my name is John, my wife has left me, I have no access to my children, and my life is falling apart”, he gave permission to the other men around the circle to do the same.
The Joint Chair (Senator Landon Pearson): That's about two and a half minutes.
Dr. Danielle Nihon: I'll wrap up my portion.
The staff showed that these men were able to significantly increase their self-esteem, their ability to self-disclose, and their capacity for emotional contact with others, challenging the myth of the emotionally defective male.
Dr. Nedra Landers (Corporation President, Men's Health Network): This clinic did a cost-benefit analysis of these groups of 60 men in 1993. Using conservative estimates, $ 150,000 was saved in health care cost. This was submitted to the American College of Physician Executives for their look at health care cost-effectiveness initiatives, and the clinic received a certificate of recognition of innovation for cost-effective intervention for a high-risk population.
A year later, the clinic was closed for cost-cutting measures. During its life span, over 400 men were helped, many programs were put in for training professionals in the community, and many conferences on men's health were held and training programs for physicians offered. That sort of ended when the clinic was closed, and despite the trauma for us, we formed a corporation to carry on this work internationally, because there is a crisis in men's health across all socio-economic situations, across race, and there seems to be little within the health care community, be it therapy or actual physical help, that has any awareness and dedication to men's health. It's starting to change slightly, but there is a lot of work once you cut away some of the rhetoric of some programs and see what's actually being done.
What we found was that, even to this day, men in the community are really so hungry to come in from the socially prescribed emotional cold, and, if given sanction, really can access emotional and relational capacities. It's within this that we have come to share that men have an extreme sense of pain, despair, and loss. It really causes us a lot of concern, because it's not only the loss of their wives, it's also the loss of their children.
• 1845
For us it turns into both a clinical and social
tragedy that this loss of custody and access results in
such severe levels of depression that men feel so
hopeless and helpless regarding the sense of
meaningfulness in their lives, or even a sense of
future, that suicide becomes the only option. The
health care costs of suicide and its sequelae on their
other relationships must also be considered.
This pattern will continue until better services can be provided for men in terms of their health care—their emotional health, physical health, and spiritual health. Society must look at being accountable for its lack of valuing men's capacity to care and grieve.
It's this valuing of men's relational and nurturing capacities that is really essential for the quality of life of all children, for intact families as well as fragmented families. It's just possible that this valuing of men could help prevent families from failing by allowing fathers to sit as parental equals around the family circle.
The Joint Chair (Senator Landon Pearson): Thank you very much.
Now, Mr. Bouchard.
Mr. Jason Bouchard (National Alliance for the Advance of Non-Custodial Parents): Thank you.
I was very pleased to see that Nedra and Danielle were going to be presenting today. They bring an aspect to this that humanizes a very cold area in some ways, which should be very human.
We're a service bureau, established in 1993 with a very small group of people. We assist organizations, non-residential parents and grandparents, men and women. We try to help them with some resources and try to help them access parliamentarians here in Ottawa.
We've found in the past, as I'm sure the committee members may have noticed themselves, that the media has a way of possibly distorting some issues, and we try to bring a little clarity or balance to that discussion.
One of the things that's most interesting for us is we have on all our letterhead something very simple that says, “Kids need both parents”. We've even been challenged on that point by parliamentarians, who thought it was an offensive statement to make, which I think speaks volumes.
I would like to thank the committee for their marathon run so far. As you know, I followed the committee last week and I'm still exhausted. So after all these days, you must be ready for the summer holidays.
There's been a lot of discussion of the scope of the problem. People have said things are working pretty well, and obviously you've heard all kinds of horror stories. I would suggest that anyone who goes through marital breakdown, whatever the situation, is traumatized. It's the one thing people will probably remember for the rest of their lives, be they the parents involved or the children. Anything that can reduce the amount of damage that's caused by that is worthwhile, be it education, mediation, or any tool we can devise to reduce the emotional and very real financial costs, as was just mentioned in terms of health care.
There are two things I want to mention particularly. Obviously, you've heard some wonderful stuff in the past, and I'm trying to aim at specific things. On the research we have out there, you've heard all kinds of things, such as 90% of the cases are wonderful and only 5% of people ever have problems with access. Somebody else was so bold as to say that half of the fathers don't ever want to see their kids.
We work with non-custodial parents of both genders, but I found it amazing that this is so incredibly stereotypical, and certainly not supported by what's out there. As a particular case in point of the juggling you've seen happen on some of these issues, there was a study done in Alberta in 1992 that I think was already presented to this committee called “Access to Children Following Parental Relationship Breakdown in Alberta”.
• 1850
Their conclusions are that access is not usually
a problem, but then they go on to say that one in two
non-custodial parents have such a problem, one in two
grandparents have such a problem, and one in four cases are
classified as conflict-habitual, which is four or
more court dates in two years.
But there's not a problem. They mentioned
that the majority of custodial and non-custodial
parents do not like the conclusions that come out of
the process, but there's not a problem.
It's just amazing that they would have this
empirical data, but I would have to say they almost
choose to ignore it.
That's the kind of thing that I think the committee has to be very mindful of. The very people who say “Well, don't use anecdotal information” are the people who then turn around and use it themselves. So one has to be wary, which is one of the reasons why our submission isn't going in today; it's going in next week, hopefully with as much of the reference information.... We tend to tell people to do their own work, so part of that is to supply all the references with it.
The other thing I want to speak briefly to is something that seems to have come up in the last little while, though I know Professor Bala originally spoke to it, and that is the primary caregiver presumption, which seems to have surfaced somehow through this process all of a sudden. If I remember correctly, it was 15 years ago that the justice minister—I think it was Mr. MacGuigan—in the publications talked about encouraging shared parenting. I believe the NFB, in their Mom's House, Dad's House thing about 10 years ago, sang the praises of this. All of a sudden we've decided, or some parties have decided, that this is a very laudable thing to do. It makes you wonder why.
Certainly, a lot of people have suggested in the past that we need more parenting, not less. Dr. Kruk's work in B.C. and other people have pointed out that if you take a parent and reduce him to a weekend McDonald's dad or mom, where their biggest decision is “Do you want fries with that?”, they're no longer a parent and they slide out of the picture. Well, that's what primary caregiver does. That's exactly what it does. It says “You've got all the apples. This person over here is diminished.”
Certainly from working with men and women in this situation...they feel that that is a judgment on them. I have seen men and women who feel that “Well, the courts didn't feel I was a good enough parent. I must have done something wrong.” They feel shamed. The literature shows that if you take someone and you shame them, they withdraw. If we want to talk about why we have access problems, it's because we take these people and reduce them to that level, where we say “Somehow you were responsible for all the problems and somehow you have to pay for it, and how you pay is by losing your kids.”
The Joint Chair (Senator Landon Pearson): I hesitate to interrupt, but you're already beyond your five minutes. Can you come to some conclusions?
Mr. Jason Bouchard: Sure, quickly, and hopefully we'll talk about it more when we get to the question part.
This committee has been wonderful. Unfortunately, or maybe fortunately, the biggest part of the job is still ahead of us. The social mind-set that has gotten us to this situation in our legal system still exists outside of this room, and the interaction after the report with Justice Canada and all of the other players will be very important. We know that in the past there has been a problem with broad consultation and broad discussion on these issues. I think the committee has to be very aware of that possibility and somehow look at how they can encourage their mandate to be acted upon with input from all parties concerned after the report is done.
The Joint Chair (Senator Landon Pearson): Thank you very much.
Now, Mr. Pelletier and Mr. Morissette,
[Translation]
are you going to split the presentation? Fine, go ahead.
Mr. Marc-André Pelletier (President, Entraide pères-enfants séparés de l'Outaouais): How do you do. Thank you for agreeing to hear us. We are here as fathers representing the group Entraide pères-enfants séparés de l'Outaouais, to give your our point of view on custody and access after marital breakdown.
Is there anything closer to the human soul than the relationship between a parent and child? This is an issue which tends to bring out the deepest of emotions.
I do not want to bombard you with statistics, but it is imperative to see that the present situation is intolerable and unacceptable. The present reality of the process relating to child custody is as follows:
In some cases, parents reach agreement between themselves on child custody arrangements. This will then be rubber-stamped by the courts. While most enviable, this situation is unfortunately not possible in the majority of cases.
Many other parents who are unable to reach agreement are forced to spend a fortune in costs of all kinds in order to face each other before the courts and attempt to assert their parental rights. As a general rule, the court must pick a winning and a losing parent (the latter generally the father) between two people who, most of the time, are both good parents.
• 1855
We are here today to draw attention to the fact that the
courts do not in any way favour equal parenting. Our children, the
parents of tomorrow, bear the brunt of the consequences of this.
The most recent statistics, dated June 2, 1998, indicate that 86%
of children live with their mother after marital breakdown, 7% with
their father, and a very low percentage, 6%, in shared custody. Yet
only the latter formula allows parental equity and the respect of
human right, for the children, the parents, the grandparents and
others.
Thirty per cent of children born today will live in a single-parent family before they reach adulthood, generally with their mother. Generally, their contact with their father will be limited to four or five days a month. More than 40% of them will lost regular contact with their fathers for a variety of reasons. It must be recognized that this approach results in everyone losing, except of course those who make their living from the divorce industry.
All children have two parents, not one, not three, but two. This is the context within which Canada joined with other members states in signing the United Nations Convention on the Rights of the Child in November 1989. Unfortunately, even in this country those rights are fare from being respected, although it is protested loud and long that human rights are a priority.
Gilles will now describe to you the consequences of this on each party concerned, the mothers, the fathers, the children, and society.
Mr. Gilles Morissette (Entraide pères-enfants séparés de l'Outaouais): Thank you. In order to explore the consequences, we wanted to place things in perspective, but not to relate horror stories such as you have no doubt already heard here. Let us start with the mothers.
Once custody is determined, the mother has to try to get her career and her social life back on track, while trying at the same time to shoulder all of the day-to-day responsibilities of family life. This is a huge challenge for one person. She has to be superhuman if she is to succeed in meeting all of her obligations and of all her needs. These mothers themselves admit that they are totally overwhelmed. To quote Mrs. Duhamel from the Fédération des femmes du Québec:
And what about the fathers? They are, from all points of view, increasingly less in control when they are systematically eliminated from the life of their child or children. This in large part explains why some of them disengage emotionally and financially. They lose confidence in themselves, not to mention others. No one dares ask them about their feelings, their needs, their desire to parent their child properly.
Too often, these fathers end up accepting that their fatherhood is no longer important for their children. As you have just heard, the suicide rate among Quebec men, among others, is at record-breaking levels. More and more of them refuse to commit to fatherhood. No wonder the birth rate is so low.
Over the past 30 years, fathers have been the victims of unjustifiable systematic discrimination, which has been sanctioned by the courts. The broken father-child tie after marital breakdown is totally needless and extremely harmful to all those involved, and to society itself.
And what about the children? We could fill entire libraries with reports that specifically address the harm done to children after parental separation. Children in single-parent families are liable to experience two or three times as many problems as those in so-called normal families.
• 1900
What are these problems? The problems of having to grow up in
poverty, and to remain poor as an adult. To experience
developmental and behavioral problems, emotional difficulties such
as low self-confidence and self-esteem, learning difficulties which
end up making them drop out of school, and thus lead them into
poverty. Early child-bearing, which will again lead to single
parenthood. In the end, they will end up involved with drugs,
alcohol, violence, crime and, above all, suicide. Quebec has record
suicide levels. What is in store for our adults of tomorrow?
Society too has to deal with the disastrous consequences of the present situation. The impoverishment of families is one direct consequence of separation. According to the Caledon Institute of Social Policy, an institute in Ottawa, the various levels of government spend over $ 6,000 yearly per single-parent family. In Quebec, for example, multiplying that amount by the 269,000 or so such families in 1994, we get a total of over $ 1.6 billion yearly spent to maintain these families.
This completely ignores the costs to the state of school drop-out and preventive, corrective and rehabilitative programs, since juvenile delinquency is on the rise and often leads to crime.
This is a very black picture, but also a very real one. Our group, however, has some avenues to propose to you, some recommendations we believe have the potential to change the present dynamic. My colleague Marc-André will speak to you of those proposals.
Mr. Marc-André Pelletier: In order to rebalance the family situation and to truly ensure that our children's best interests are being served, while respecting the rights of everyone involved, we wish to make the following recommendations:
Recommendation one: that presumptive shared custody kick in automatically as soon as there is a marital breakdown, according to the following rules:
- the child's physical and social environment remains intact; this may require both parents to relocate in new homes in the vicinity of the old;
- each parent has an equal share of the children' time, and by that very fact, an equal share in the responsibility for the children' upkeep;
- if either parent refuses to comply with this formula, he or she will concede custody to the other parent, and the present system will determine the mechanisms for this.
Recommendation two: that steps be taken to create and support governmental and other bodies to assist fathers in regaining their fair* role within the family. To that end, a council for the status of men be created with the necessary tools and supports.
Recommendation three: that all sexist male-bashing propaganda to which we have been victim for years be banned.
Recommendation four: that the public, young people in particular, be made more aware of the importance of the role of each parent, and their ties with their children, within a context of parental equality.
With this brief presentation we hope we have been able to considerably enhance your awareness of one of the most striking* problems in our society today. It is obvious that we have to set things right if we are to pass on to future generations the values we boast of today. It is up to you, as representatives of the federal government, to set clear and precise guidelines in order to ensure that the rights of all those concerned are respected. We, the fathers, believe that presumptive shared custody is the only way this can be possible. Thank you for your attention.
[English]
The Joint Chair (Senator Landon Pearson): Merci beaucoup.
I'll ask once again if Mr. Brett Peters has turned up. No? We'll proceed to questions.
Mr. Lowther.
Mr. Eric Lowther: Thank you, Madam Chair. I'm going to ask this set of witnesses a question. I'm going to ask you to think about it, but before you answer the question I'm going to give you a little bit of a preamble to help you think through the question.
You've talked about a number of things here, and some of the things we've heard, we've heard before. I want you to tell me of all the changes we could make. What is the single most important change that we need to make within the context of this committee? I don't want to hear a list of them. I want to hear your number one choice, but I don't want to hear it yet.
• 1905
I wanted to say to you that we've heard some
interesting testimony here. Sometimes it's
gender-based; sometimes we have a sort of a gender war
thing going on. And we hear about the panacea of joint
custody, which I tend to think totally ignores the
reality of the differences that can go on in certain
relationships. To layer on a joint custody doesn't
always work. There could be tailorable differences
under a parenting plan type of thing, but to lock in
some sort of joint custody I don't think is simple
enough or flexible enough.
We see things mentioned like the best interests of the child. We hear various statistics quoted. At the end of it, I'm concerned that we're not really dealing with the root issue. We all have sort of a perspective we're looking at, a set of glasses we're looking at this through that is borne out of our own pain and experience, and I'm not sure that at the end of the day we're really getting to the root issue.
The group of ladies here have put forward the health of men as a key thing, and dealing with stress. I remind you that this is a custody and access committee. We're talking about changes to federal legislation and divorce law for recommendations. We're looking for recommendations in general. It sounds to me like you're talking about men's health being a primary concern and doing something about stress. I have a hard time trying to figure out how that links back into what the purpose of this committee is.
Mr. Bouchard, you have some interesting things that you put forward: primary caregiver presumption is not a good idea. Again I say to you, of all the things you've heard—and you've heard many of them, because you've followed this committee—I'd like to hear the number one thing, not fifteen things. For you, what's number one?
For the last set of gentlemen that presented on presumptive joint custody, I say again that some people we've heard.... Maybe the grandparents want to be worked into it. Maybe there's a parenting plan where the father spends one month at a time at another country and comes back. So joint parenting, how do you work that? To just say there has to be joint parenting is too prescriptive in some situations, I think. But I can see the idea of some sort of parenting plan that gives flexibility to the needs of the individuals involved and concern for the children.
I'm kind of going on and on here. I'll close and let you answer my original question here in a second. Maybe that's enough. Maybe with that bit of rambling you can kind of get a sense of my frustration and a sense that I'm asking you to think a little deeper than your own perspective or the gender thing or all the rest of it.
What we have here is a relationship that's broken down, and there's pain in that. And I don't think any changes to the law are going to change that, or any training or education of judges or anything else. There's a relationship that's broken down, and there are children involved. We might want to make that all nice and rosy like the perfect marriage, but it isn't going to happen. There's pain.
From a federal perspective or from this committee's perspective, of all the problems that are out there, what's the best we can do? I suggest to you, even the very best we can do is not going to make all that pain go away. In fact it probably isn't going to do a whole bunch for it.
Could I start with the people that presented last?
[Translation]
Mr. Marc-André Pelletier: It is certain that parents cannot be spared the pain of separation. It can, however, be limited by not breaking parental bonds. As has been said, one of the parents experiences not only the breakdown of the marriage, but the breakdown of the parental relationship as well. This doubles or triples the pain.
• 1910
The first thing you need to do is to eliminate the parental
inequity that is flagrant today, to set things straight, to clearly
establish that parental equity is the norm today and that shared
custody must be presumptive, as we have said.
This ought to be so in the majority of cases. In the minority of cases, where one of the parents must be temporarily absent, there must be sufficient flexibility to allow the same system to operate, but with difference that are acceptable to all parties. Basically, both parents' right to be equal and to parent their children equally must be resected. This is the fundamental thing, and a response to the fundamental problem being experienced today, with all the inequities and
[English]
the gender problems that you related earlier.
Mr. Eric Lowther: Thank you.
Dr. Nedra Landers: Our work with men grew out of our work with women, and we still deal with women as we deal with men, so we come with kind of a funny position, I think, to the committee on this. I guess our concern for speaking here is to remind people that men do feel pain as much as women feel pain when there is a loss of a relationship and a threat or actual loss of the parent-child bond, and that this must be considered.
In terms of giving specific suggestions, I'm not so sure, because it's hard to legislate equity. And I get concerned that as a commission the decision-makers will quickly hide behind a rule and fail to judge each case on its individual circumstances, context, and uniqueness.
I agree, I don't think joint custody should be the law, but I think there should be some way in which each case gets more of a hearing and is not just rubber-stamped, or a judgment made that hides behind a given law. There is where I think the real equities are, and that eventually leads to greater costs for both the health care system and the legal system than taking the time to work out something that takes the mother's, the father's, the child's, and the extended family's positions and feelings into account.
I don't know how you can legislate it, I honestly don't. But I think there should be a stern reminder to decision-makers to dare to be accountable for what they decide.
Mr. Eric Lowther: Mr. Bouchard.
Mr. Jason Bouchard: Of all the things you've heard in front of this committee, no one has said we have too much parenting going on in this country. That's the one thing we get back to. Yes, there's a lot of pain, but the bottom line is that the kids have to somehow survive and get through with at least enough survival in them that they don't become traumatized for the rest of their lives. I think the core issue here is the fact that we haven't recognized that need for two parents.
You spoke of the federal jurisdiction issue. I would suggest that when we decided in this country that health was important, we didn't say that's strictly provincial, the federal government can't do anything, and we just stood back. No. They basically got in there and worked in concert with the provinces and worked towards that goal. I think because of that, we have, even with all its problems, a very healthy health care system in this country. I would suggest that this is the same kind of issue.
How do you change the general mindset that says that we know that both parents are important? I think that is the core issue. Education—you have to educate everyone from the judge to the parents.
I was reviewing some video material before I came here today, things I was hoping to give to the committee to have a look at, and even I learned something after seeing all this literature that I haven't used for about five years. I learned some things that had me pull back and say that's right; that's something I hadn't thought of.
If all the players were aware of what is actually happening to these children—and that sounds very trite, but it's very true—I have to honestly think that most parents would not put their kids through these kinds of hoops if they knew the damage it causes. They would not deny them the other parent. They would not play head games if there were enough out there in terms of support in education to help them through and help them remember what their focus was in the first place, which is their kids.
• 1915
I would suggest that if there's one broad thing that
can help this process, it's education. As you saw in
terms of the people presenting to this committee, a lot
of people don't think that two parents are particularly
important. I remember watching while someone asked the
representatives from the legal aid office what they did
about access denial. Well, they got really quiet,
because to them that second parent isn't particularly
relevant.
Good judges can deal with an awful lot of bad law, they suggest. But you can write the best law in the world, and unless the courts and the people involved and all the players buy into what the basic premise is, which is more parenting not less, then you can't get anywhere. I personally feel that we want to get people out of the courts. That whole process is education.
[Translation]
The Joint Chair (Senator Landon Pearson): Do you wish to make a comment, Mr. Morissette?
Mr. Gilles Morissette: Thank you, I would like to respond in part to the questions you raised initially. I share the view of my friend Marc-André, which is that parental equity is the key element.
You are absolutely right in saying that shared custody is seen as a cure-all. By definition, a cure-all does not exist. It is more or less an illusion. You did not go into much detail, however, about it's not being a very flexible formula, and not seeming to be a solution. I would be pleased to discuss this with you at some other time.
I have been listening during the time that I have been here. You will see that there is a common thread running through all the testimonies. Access to children is not given equally. Parental equity is called for because parents want to be involved will thus be able to assume their role. Those who do not want to look after their child will use the existing mechanisms.
You have spoken of one extremely important thing: the child's interest. This has been handed over to the legal system. We can tell you, and I think you have proof, that the legal system has taken over the child's interest, and the judges of today are bringing down terrible verdicts as far as the children' interests are concerned. Great care must therefore be taken if a child's interests are being handed over to a third party.
Finally, to return to the last point you raised, the grandparents. I do not, of course, wish to speak for them, but our group has had some experience with this. The tragedy for the grandparents is that their grandchildren are having to pay the price of separation. When both parents are able to have equal access to children, when there is a certain degree of harmony... Parental equity minimizes conflicts in that both have equal access and the responsibilities are defined accordingly, thus minimizing conflicts. Thank you.
[English]
The Joint Chair (Senator Landon Pearson): Dr. Nihon, you wanted to make a comment too.
Dr. Danielle Nihon: I want to just briefly say that when we're talking about statistics, let us never forget that it is not a number at StatsCan; it is a compilation of tragic stories like many of the ones you've heard here. Let us never forget that.
The most important thing I would recommend to your committee is if there is way to change the conceptualization that a father is potentially as viable a parent as a mother. I think one may pay lip-service to that notion, but I think it's not there.
I was devastated when I heard a very well-respected family mediator—because I always recommend mediation to my clients going through separation—say that it is assumed, unless there is an extenuating circumstance, that the mother will be the custodial parent. To me, that is simply wrong. That would be my major thought.
Finally, we talked about more than stress. We talked about such things as suicide. Those are very important things we must take note of.
The Joint Chair (Senator Landon Pearson): Thank you very much.
Dr. Bennett.
Ms. Carolyn Bennett: One of the things we've talked about, as you know, is the language of custody and access, which then means winner and loser and it sets up a whole culture of imbalance. I want to know whether you think that, as we've talked about, instead of using the words that are also tainted now in terms of “joint custody”, if we could get to just “parenting plans”, where there is a presumption that both parents will still have responsibility for their children.... Do you see that working?
• 1920
I worry about words like “equal”, because, as you
know, with the support payment stuff, you end up with
arithmetic lessons that aren't necessarily good for
kids. I would hope that we would move to something
that is flexible, practical, and sort of realistic in
terms of the kid in their lives. People have heard me
say this before, but it's that the kid does get to the
soccer games, to the birthday parties, and that it's not
a winning and losing. If the kid really wants to go
to camp it's not taken out of one parent's time, or the
kinds of things that just are child centred....
I want to know if you think that language change would work in terms of getting around this custody and access and even this primary caregiver gunk and some of the stuff that really is worrying me, because the label has reverted about 15 years, I think.
But then I would also like all of you to address the statistics that Mrs. Finestone raised earlier in terms of the reality that seems to happen, the drop-off of access being exercised by the non-custodial parent. I would like to know if you think it's just because of increasing hassles that make it not worthwhile and potentially difficult for the kid. Or is it, as some suggest, that asking for access is just another instrument of power, of trying to prove that you're not really a loser? So did some people ask for access when they didn't even want it? That then, I think, puts the non-custodial parents who do want access—for the real reasons—in a bad light. Can you help me through some solutions?
Dr. Nedra Landers: I think words are very important and very evocative. Everybody sometimes has a pet word that either launches them one way or another.
But I would tend to agree. I think a very good change in terms of helping society look at values is to start changing some words around and exposing them and letting people look at some of the values they have tied to certain words.
I agree. I don't think you can have anything too tailored. I think flexibility is called for, and each situation must be judged.
I think you're right. Some people use access as a vehicle for rage as much as others use it for the preservation of a relationship. You can't make blanket statements. You have to look at each one and say either that the pursuit of access is an evil one or that it is really from the heart, and you won't know unless you see each of the players.
Mr. Jason Bouchard: In terms of access, you have the two ends of the spectrum. I think you have to deal with both, because whether a parent wants to see their children because he or she loves them or because he or she is trying to somehow maintain some power trip that was going on before...either way, that child needs a parent. So for the ones who don't exercise access, we somehow have to bring up the mix.
I did mention before that often the issue is that as a non-custodial parent they are ashamed. It sounds very mythopoetic, I know, but it's a very real world. And as these two women can tell you, the impact of shaming non-custodial parents causes them to be the highest suicide group in the country. This is very real.
So for the ones who don't exercise access for the wrong reasons, because they don't care, we certainly have to educate them. For the ones who don't because they are being shamed or pushed out of the picture, we again have to intervene to make that happen in a better way, because either way, these kids need more parenting.
• 1925
Ms. Carolyn Bennett: Maybe before you answer, I'll just ask a supplementary that you could help me with too.
In the ones not exercising access, for whatever reason, the confused reason, the fact that they now feel like they've lost and are ashamed, or whatever, is there something we could do, other than groups like yours, but maybe particularly groups like yours...? Is there something that we should be doing to make it easier and almost safer for people to exercise their access? Are there any incentives or positive reinforcement that we could be doing, either with the bill or in the recommendations of the committee?
Mr. Jason Bouchard: Well, certainly value that. Right now we value the non-custodial parent's monetary contribution. We value it very much.
I did a talk show in St. John's when we were down there. The very first thing I was asked about was deadbeat dads. The first encapsulation of a non-custodial parent is a deadbeat dad, as far as they're concerned. To me it's incredible that that is what comes to mind. What have we done as a society to get to that mindset. We have to somehow turn that around. As in many other things, where we decide as a society that we don't accept a mindset—drinking while driving is a very good one. We have socially marketed that idea to the population of this country that this is a bad idea and we have changed that mindset. If need be, we have to do the very same thing here so that those people aren't ashamed and know that they are valuable, even though the child is not with them the majority of the time. They're still a parent and they're still very, very important in that child's life.
Ms. Carolyn Bennett: They did designated drivers on Friends, I think.
[Translation]
The Joint Chair (Senator Landon Pearson): Yes.
Mr. Marc-André Pelletier: I am glad you have raised the idea of having a system that is both simple, clear and precise. In the present system, some people are simply left out completely. Our idea of parental equity and presumptive shared custody eliminates the two levels of parent that are presently created, and the conflicts that leads to. Each one tries to get the lion's share.
When both are placed on equal footing, they are literally placed within a context where they have to continue to co-operate and to share as far as the needs of their children are concerned. They continue to focus on their children's needs. I could even give you my own case as an example. It is truly remarkable, the results of shared custody after the child had spent five years with the mother. It did away with all conflicts, and the parents are now two members of a partnership. That is what is so marvellous about shared custody. By placing both parents on the same footing, they are made to work together, instead of one against the other.
I would add to this, that the simple formula proposed to you eliminates the majority of problems. Instead of putting parents in an adversarial relationship, it is vital that they be made into a partnership, that they remain partners. Even if the spouses are no longer together, the family unit still exists. It takes on a different form, but the family still exists and the needs still exist.
To answer your second question concerning fathers who seem to have trouble fulfilling their role fully, I believe services must be put in place to encourage them and to inform them about the importance of their role. I would point out in this connection that this is not going to be accomplished with a bill like C-41, which was passed last Spring. Forcing fathers to play a role that does not suit them or their children is not the way to get them on side. That is not the way.
As a father, I have experienced this. Today I am pleased to be in a shared custody arrangement, for nearly two years now. You should see my child now. She has really blossomed. She feels good about things. She is now eight and although she herself says she'd rather see her two parents together, she knows it is not possible and realizes that the present arrangement is the best one under the circumstances.
I must point out that, for five years, she was living with her mother, and her father had limited access, which is very harmful for both child and parent.
[English]
The Joint Chair (Senator Landon Pearson): Can you be as quick as possible? Many of us have obligations and we have another group to come.
[Translation]
Mr. Gilles Morissette: Certainly. Thank you.
• 1930
As far as access is concerned, that is a good question. What
happens in reality is, not that the parents are confused—the
father in the cases of concern to us. But you are perfectly right
to say that they have lost something, and something important:
access to the child.
How can you hope to establish a father-son or father-daughter relationship when you see your child three or four times a month? In today's reality, access is used by the custodial parent as a control mechanism. For the father, it is a tragic reality, because this notion is played around with, and he is often refused access despite his rights to it, for reasons that have nothing to do with it: revenge, and anything else one can imagine. You know this because you have heard a lot about it.
It becomes a matter of control. That is why the term "access" or "visiting rights" is wrongly used. It is a means of control and manipulation.
[English]
The Joint Chair (Senator Landon Pearson): Thank you very much.
Mrs. Finestone has a quick comment to make, but that's all; it's not a question.
Mrs. Sheila Finestone: Mr. Bouchard, I know you've been following our committee. I saw you throughout the maritimes in the five days we were there. You talked about deadbeat dads. In your interview there was a call at the very outset and a question on deadbeat dads. I would like to suggest to you that that's a media-driven attention grabber.
The more we allow the media to make the story, the worse it will be. It seems to me the only way to counteract that is for someone in your position, who is a leader of a coalition...every time they open their mouths and say that, you confront them with it: “That's your definition, that's not the government's definition, that's not the law's definition, and that's not the reality.”
I want to point out it's not the language that you hear in here, and it's not the attitude that you're going to feel or see in here, but it is certainly the media who think this is a very smart way to approach things, which is very destructive and ineffective.
Mr. Jason Bouchard: I agree, and actually many a complaint to the CRTC has been made. But I think it speaks to the climate. Members of the committee have mentioned before that the perception of the committee itself within the media has been twisted. It's very difficult to force the media to do their job. Certainly, every time such terms are used, they do get complaints, but there is some ideological basis behind that type of constant shaming, of reducing non-custodial parents to that level. May I say that shaming certainly occurs to men and women as well. I've worked with both.
The Joint Chair (Senator Landon Pearson): Thank you very much for those comments.
We need to have the next group come. So thank you very much indeed for coming, all of you.
Mr. Richard Fortin, Mr. Nash Smith, and Mr. Lubomyr Luciuk, would you please begin? You have five minutes.
[Translation]
Mr. Richard Fortin (Individual presentation): Dear committee members, I have not seen my daughter for nearly four years now. Do you realize there are parents who have custody and who prevent children from seeing the other parent with psychological abuse? The case of Pamela Stuart-Mills in the Quebec court of appeal is one in which the custodial parent, the father in this case, lost custody of a child. It was proven, using studies by Dr. Richard Gardner, a New Jersey psychologist, that the father was using methods of parental alienation to stop the children from seeing their mother.
• 1935
Also in Quebec, since judgments recognizing parental
alienation are not found in Ontario, a mother lost custody of her
children because it was proven that she had contributed to the
parental alienation of her children. Dr. Gardner's studies were
used again here. This case was D.H. v. K.C., 1995, before Justice
Trudel of the Cour supérieure du Québec, in Hull.
I am here today to speak on behalf of children who are experiencing this psychological abuse and conflicting loyalties, and are being manipulated by the custodial parent.
In an article in the September 1993 issue of Time, Lynne Gold-Bikin, President of the American Bar Association's family law section, stated:
[English]
[Translation]
If the American Bar recognizes this phenomenon, Canada is far from doing the same. The results of parental alienation on the child are given in Drs. Gardner's and Cartwright's studies. To quote a few excerpts from these, Dr. Cartwright wrote in the American Journal of Family Therapy, vol. 21, Fall 93, page 212:
[English]
[Translation]
Further on, he wrote on page 213:
[English]
[Translation]
In a report on parental alienation syndrome written by Anne-France Goldwater in 1991, we read:
[English]
[Translation]
Here is another excerpt from Dr. Cartwright's report in which he cites Dr. Gartner:
[English]
[Translation]
My own case has been studied by Dr. Gardner. He wrote the following:
[English]
[Translation]
Justice Desmarais of the Ontario Court brought down the following decision on my case, after examining the report by Dr. Gardner.
[English]
[Translation]
In my case, what is regrettable is that the judge admits there will be later effects, but suggests nothing to remedy them, not even the therapy we had asked for. Too many judges are ignorant of the symptoms and later effects of parental alienation.
The following is what Dr. Gardner wrote concerning the judge's suggestion of allowing children to choose not to visit the alienated parent.
[English]
• 1940
[Translation]
In conclusion, the following are my recommendations for helping children who are the victims of parental alienation.
The courts should be more on their guard when dealing with cases of children who no longer wish to see one of their parents. Unfortunately, in cases like mine, judges wash their hands of it and opt for the easiest solution, which is not in the child's best interests.
My second recommendation would be that, as soon as a child refuses to see one of his parents any more, the court ought to retain the services of a psychologist familiar with the parental alienation syndrome. One who is not familiar with it will go right past it off, as the first psychologist in my case did. If a person has a vision problem, he is sent to an ophthalmologist, not a general practitioner.
My last recommendation would be that, since the parental alienation syndrome was first pointed out in 1992 by Dr. Gardner, this committee ought to take the time, if it has not already done so, to examine recent studies by psychologists on this, including Dr. Gardner's book, a copy of which I have here with me. You would then be in a position to understand that the later effects of this syndrome are greater than they are believed to be.
[English]
time heals all wounds except alienation
[Translation]
according to Dr. Cartwright. In addition, Dr. Cartwright ends his article in the American Journal of Family Therapy as follows:
[English]
[Translation]
Thank you for this opportunity to present my point of view.
[English]
The Joint Chair (Senator Landon Pearson): Merci beaucoup.
Mr. Smith.
Mr. Nash Smith (Individual presentation): Thank you very much, honourable senators and MPs.
My case is a very tragic one. My old marriage broke down when my ex-wife decided to leave the marriage so she could see somebody else who could provide her with financial security. I was a casual working for the LCBO. I've been working for the LCBO for 11 years. There were three children in the marriage, plus her own child from another marriage. She left the marriage on Christmas Day of 1994. Right after Christmas dinner she walked out. She left the kids with me. She couldn't take the kids into her new marriage, she said.
Unfortunately for her, the marriage didn't work out very well and she came back looking for financial support from me. When I refused, she asked for money in order to leave the kids with me and I said no. She went to court to get custody of the children. Luckily, we got joint custody of the two children, aged 7 and 12. My eldest son, who was 15, decided to stay with me as he didn't want to go with his mother into a new marriage.
I was advising my son most of the time to visit his mother, but he didn't want to. After about a year he started visiting his mother. That was when I saw the mother buying him things, pumping ideas into his head, and all of a sudden I saw him with pornographic movies in my house. Then I found out he was bringing them from the mother's house. I objected to it. This got him upset and he decided he'd rather stay with his mother to have freedom. I spoke to the mother about it and she was rather insulted, that the kid was 15 and could do what he wanted.
I refused to allow this to happen, but one day I came from work and my son was gone. She had come to pick up my son. Then he used to spend a week with me and a week with the mother.
• 1945
On December 29 of last year, they went to visit
their mother for their weekly trip. On January 4 of
this year, they were supposed to come back. She wouldn't
let them come back. I called the police to enforce the
court order. The police said there was no clause in
the court order that called for police enforcement.
So I had to go to court.
I applied for legal aid and didn't get it, so I had to get a lawyer. So far it's cost me about $ 7,000. This is money I don't have. I had to borrow it. When I went to court, Mr. Schreider, the presiding magistrate, asked her why she was disobeying his order. She didn't give a good reason, just that the kids didn't want to come home. The magistrate decided she had no case and the kids should be returned to me. That was when her lawyer jumped up and said the kids were being sexually and physically abused.
The magistrate said this was new information and asked why it hadn't been reported. They called in the children's lawyer, who told the magistrate that he shouldn't listen to that complaint, because it hadn't been reported to the police or to any authority. However, they insisted that the kids' lives were in danger if they came back to my house.
Mr. Schreider asked the children's lawyer to investigate. She informed the magistrate that she didn't have the power or the expertise to do it, and that Mr. Schreider should find somebody else to do it. He didn't do that. He turned around and decided to give the kids to their mother.
My lawyer questioned them on whether they had reported this to children's aid. They said, yes, it had been reported to children's aid, and it was being investigated. We asked Mr. Schreider to subpoena children's aid to come in with any information they had. That was when my ex-wife's lawyer indicated that, actually, it hadn't been reported to children's aid.
As far as we were concerned, that was perjury, but that didn't stop Mr. Schreider from giving the kids to her. We went back to court two weeks after, and Mr. Schreider insisted that as long as the mother felt the kids' lives were in danger, he was going to give the kids to her.
The Joint Chair (Senator Landon Pearson): I hesitate to interrupt, but you're over five minutes. Could you move to your recommendations, please?
Mr. Nash Smith: My recommendation is this. This case has been reported to all kinds of authorities, and nothing is being done. They lied in court and got away with it. My recommendation is for this committee to pass Bill S-4 to make it a crime for lawyers to use false evidence in court, because they have to pay a price for that.
That was the only way it could have been prevented in my case. I haven't seen my kids for six months, and I've been denied any access to them whatsoever.
Thank you.
The Joint Chair (Senator Landon Pearson): Mr. Luciuk.
Mr. Lubomyr Luciuk (Individual Presentation): Thank you, and good evening.
I'm a professor at the Royal Military College in Kingston, Ontario, where I'm normally resident. Currently I'm seconded to the federal Immigration and Refugee Board, but I'm speaking here personally.
On the issue of custody, my recommendation to this special committee would be that with the exception of cases of domestic violence or abuse, where there is credible evidence of that, joint custody should be the norm.
On the issue of the child support guidelines that exist at this time, I think it's important that the committee consider whether or not the respective financial circumstances of both parties are being considered by judges who are handing down support orders.
In my personal experience, my separation began in July of 1993. More recently, there has been an interim order put down. The order paid no attention whatsoever to the fact that my ex-spouse has consistently earned more than I have since 1993, and certainly does so now. The burden imposed on me has been crippling financially.
But those two issues, frankly, are not the ones that I think are the most important. I can survive the financial burden. I can perhaps deal with the custody issue some other way. It's access that I think is the most important issue before you. I think the principle to be considered is what is truly in the best interests of our children.
I have prepared a brief, which I've handed to the clerk of the committee. Appendix B is a chronology that details at some length the multiple attempts I have made, over a period of several years, to secure reasonable and regular access to my seven-year-old daughter, who lives with her mother in Toronto. These attempts have been repeatedly foiled by the manoeuvres of mendacious lawyers, informed and instructed by what I can only describe as a malicious mom.
• 1950
That chronology, I think, demonstrates that the system
is not working with respect to access. I think
informed public opinion—and I call your attention
to an article I'm sure you all saw in the Globe and
Mail on April 6, which I've also included in the
package—say that the most important thing this committee
could probably come up with is a recommendation
ensuring that we have open and ample access for both
parents—both parents—and both families
to the children of any separated or divorced couples.
I'd like to give you just one example of my own experience. About a month and a half ago, Mr. Kenneth Cole, a senior partner and prominent Toronto lawyer with the Bay Street law firm Epstein, Cole, actually proposed to me that I should have a sum total of about 25 days a year of access with my daughter in my home community of Kingston. I was to pick up my daughter at 8 p.m. Friday, bring her to Kingston, and bring her back by 8 p.m. Sunday.
I think you're all familiar with the geography of southern Ontario. It takes about two and a half hours to drive from Toronto to Kingston, after you've left Toronto. In other words, I pick up a seven-year-old, drive her at night, get her to Kingston by midnight, tuck her in, and about a day and a half later, take her back.
Access at Christmas? Five whole days. I was to bring her back halfway through Christmas Day.
This was an absurd proposal. It was outrageous. I rejected it on my daughter's behalf.
I think the important thing is to not think about the particulars of my unhappy experience but to ask yourself how that kind of a ridiculous proposal could even be tendered by a member of the bar.
I think you have to ask yourselves this: Who are truly the problem creators in this entire process? I've often been told that lawyers are problem solvers, that they share a vocation. I respectfully submit, that's a fiction. They seem to be more often problem creators.
I have some very specific recommendations for you. I think the panel might want to consider establishing, or recommend that the Government of Canada establish, a divorce tribunal, an independent body staffed by civil servants who would have no vested interest in the outcome of access or support issues.
Make binding arbitration compulsory for all couples petitioning for a divorce.
Remove as much as possible the practitioners of family law from this process. They have no true incentive to solve these issues.
We have guidelines on support. I've given you a sample of how that was applied to me. I can assure you, there's more information in the brief itself. Again, if we can have guidelines on support, why can't we also formulate guidelines on access?
The biggest problem I've had—as others have, I sense, from some of the other comments I've heard tonight—is with access. Maybe it's not an issue of whether we call it shared custody, joint custody, co-parenting or what have you. Maybe the issue should be guaranteeing the non-custodial parent—usually male, but perhaps sometimes female—regular, open, ample access, and for all the immediate family members, such as aunts, uncles, grandparents.
I think it's about time we as a society put the best interests of the children above the pecuniary lust of the shills and the malicious moms who instruct them.
I was asked just this morning by two close friends why I would do this, why I would come before you tonight, drive all the way from Toronto and drive all the way back to make this presentation of five minutes. I said because it's in the best interests of my daughter, and I'll fight for her.
Thank you.
The Joint Chair (Senator Landon Pearson): Thank you very much.
Mrs. Finestone.
Mrs. Sheila Finestone: Thank you very much.
Your testimony just reinforces the views we've heard over the last many weeks. I must say, there's the issue of perjury and false evidence by the parent, but there's also, as we have been hearing through quite a number of cases, the complicity of legal counsel. I think that's a very troubling issue. I thought your “mendaciousness of lawyers” and “maliciousness of moms” was quite a statement.
• 1955
Your three recommendations were on the divorce
tribunal, binding arbitration, support guidelines, and
guidelines for access. But if I may ask any one or
all of you, what about definition in guidelines on how
you establish the best interests of the child? Is
there some form or outline and guide that should be
included? It would not be inclusive but directive, in
a sense, and would indicate perhaps what the lifestyle
or roles were earlier in life when the family was more
stable. What are the guidelines, in your view, that
would define the best interests of the child so that what's
happened to each one of you in your particular cases
doesn't occur?
Mr. Lubomyr Luciuk: If I can just speak to the first issue you raise, Mrs. Finestone, on perjury or providing false evidence before a court, there's a recent federal court trial division finding on that. A prominent lawyer in the Toronto area, on a refugee matter, was actually found to be filing false affidavits. I understand there was a fine and a severe penalty imposed. I certainly think that would apply, and I'm going to make sure my colleague here gets a copy of that particular decision.
I'm thinking back to a question I heard earlier, and I don't know how you cope with the pain of a dissolved family with a divorce or separation and how you establish guidelines. I think it's virtually impossible, to be honest. I'm not sure you can put Humpty-Dumpty back together again once he breaks. But I do think you could alleviate some—and I emphasize some—of the suffering if a father or a mother going into a divorce or a family law tribunal knew there were certain financial obligations—which are very important, I don't deny that—but also certain access would be guaranteed.
In my case, it wasn't an argument over whether I was a good dad or not, or abusive. There was never that kind of allegation. The simple thing was, “I'm going to deny you access until I get more money.” That's what it boiled down to. That's what is still there, because the access and support issues, five years after our separation, still haven't been resolved.
Mrs. Sheila Finestone: Were the guidelines used, and did you find those guidelines inappropriate? I believe one of the other members of the panel indicated they were so heavy and onerous they found it very difficult and found themselves in a financially difficult situation.
Mr. Lubomyr Luciuk: I don't put a price on my child's head, so I'll pay what I have to pay, and I have been pushed to the edge of bankruptcy. However, with the guidelines, as I found them applied, they take your salary and then look along the table and say, “Here's what you should pay.” They don't take a look at what the other partner or ex-spouse earns. In my case, it was very clear from the sworn financial statements of my ex-wife that she makes more money and has made more, according to her Revenue Canada returns, for several years. The judge utterly ignored that. False affidavits were sworn saying I made additional income. This was either the result of mendacity on the part of the lawyers or they can't read English, but I put that matter before the Law Society of Upper Canada.
The point here is that the respective incomes of both parents should be considered and taken into account. If there's an access cost, in other words I have to go to Toronto and return to Kingston, then go back to Toronto and come back to Kingston to exercise access, surely that should be factored in.
I'm not interested in denying my daughter anything; I am interested in seeing my daughter. But if it becomes a burden financially, where it's costing me x amount simply because that's the child support quantum, and then the judge says there are add-ons.... At one point one of the add-ons was first communion, at $ 2,000. There's no charge for first communion, and they dropped that, sensibly. But the fact is the other party, in my case, started adding on and adding on. So I don't know what the support quantum is supposed to be for. Is it supposed to be for food and shelter, or is it supposed to provide for other things? If it is, then why are add-ons being applied, in Toronto at least?
How do you quantify the other party's actual income? You might say to take their Revenue Canada returns. That's what I proposed. People started coming up with all sorts of extra things I supposedly earn.
• 2000
I'll give you one example. We've met before; you know
I'm not bilingual. At RMC, at the Royal Military
College, professors who are bilingual get a bonus.
They added the bonus to my salary, even though they
know I'm not bilingual. They made me into a dean,
although I've never been a dean of RMC. They made me
into a head of a department, even though I've never
been the head of a department of RMC. They added all
those extra income sources onto my basic salary and
said, “Look at all he's making. He should be paying
more.”
And although I had letters confirming that I'm not bilingual and that I'm not a dean or a head, the judge ignored it all—ignored it all. When you have that kind of justice, it's no wonder that someone like me turns around and says, where's the fairness here?
I want my daughter to have everything. I want her to have the best possible world. Unfortunately I can't give her her family the way it should have been. I made mistakes. Mea culpa. That was five years ago. Five years later I'm still trying to get more than the third weekend of every month access to my daughter.
I still don't have guaranteed access as of now. I've been in the system for five years. That's ridiculous. This is not a matter that needs to take that long.
I suspect that if there were something like an independent tribunal, where you had civil servants who simply had familiarity with the law and with the access and support tables and heard this kind of thing daily, they could make more sensible decisions than when we involve the lawyers, who are obviously partial, adversarial, and uncompromising in protecting their own clients' interests. But at the same time they have an interest. The longer it goes, the more they make. My ex-wife's bill, she tells me, is $ 25,000. It's ridiculous. It's ridiculous.
Mrs. Sheila Finestone: I had one last question. It was my second question, actually.
[Translation]
This is for you, Mr. Fortin.
Mr. Fortin, you referred to D.H. v. K.C. I believe. Justice Trudel of the Cour supérieure du Québec has addressed the issue of parental alienation. Do you know whether this decision is now being taken into consideration when people come before the court? It is a landmark decision.
Mr. Richard Fortin: Yes, it is a first, or in fact the second decision recognizing the existence of the syndrome...
Ms. Sheila Finestone: The word in French may be "syndrome", but it is "symptom" in English.
Mr. Richard Fortin: No, Dr. Gardner' book...
Ms. Sheila Finestone: There's a discussion. We are trying to find out if it is a syndrome or a symptom.
Mr. Richard Fortin: All right. I believe this is one of the first cases recognized in the country, and it is in Quebec. It is recognized that changes need to be made in custody because of the existence of this parental alienation, and the fact that this was bad for the children.
Ms. Sheila Finestone: Thank you very much.
[English]
I still don't know how you can force a child who is alienated and who doesn't want to see a parent to see a parent, but I certainly think a judge could determine that psychological counselling would be a good direction.
Mr. Richard Fortin: You can compare that to this: what if the child were in front of the judge and said, “I don't want to go to school” or “I don't want to take my medicine”? It's along the same lines.
The Joint Chair (Senator Landon Pearson): Senator Cook, you had a quick question.
Senator Joan Cook (Newfoundland, Lib.): Yes, my question is for Mr. Luciuk.
I was interested in hearing one of your recommendations on the divorce tribunal. It would be helpful to me, and I guess for other members of the committee, to hear if you had any other thoughts on the composition of such a tribunal and the possible mandate of it, particularly at what time it would kick in.
Mr. Lubomyr Luciuk: Thank you. That's a good question. I got very short notice to come here to appear, so I didn't give it much thought, other than on the drive. But I would suggest that the tribunal could be constituted on the pattern that's already been set by the Immigration and Refugee Board of Canada.
• 2005
I'm speaking personally here and not on behalf of that
board, but it seems to me that in the board you have
professionals, what we call refugee claims officers, who
could be divorce claims officers, if you like—DCOs.
You would have panel members appointed from the public,
representative of Canadian society, some of whom would
obviously be themselves people who had gone through
separation or divorce and remarriage. You could have
people who are specialists in the law, in child
psychology, people who would be familiar with parental
alienation syndrome, who could inform the members of the
board about the kinds of problems that might be
specific to a particular case. Then you could have
accountants and lawyers to add a certain expertise that
they can bring to these things.
I don't mean to condemn all lawyers, by the way; just most.
The tribunal, I think, would kick in the moment either party petitioned for a divorce. It sometimes happens that people want to reconsider, want to go their separate ways for a short period of time and then reunite. There's always hope, and I think where we can keep families together that's the ideal. Believe me, five years have taught me that.
However, having said that, if one or the other party petitions for a divorce, they should be petitioning before a divorce tribunal. That would be my view. Then they would follow certain procedures, procedures that would early on establish a support quantum, would early on establish access, and then if there are assets and properties and so on to be divided and separated, that might be the kind of thing that can go into a court, into a different kind of court. But I think what most people want is to be assured that the children will be provided for, and that's reasonable. Most people want to know, if they're not going to be the custodial parent, that they'll get to see their child or children. That's reasonable.
Now who gets the Winnebago and who gets the cottage? Frankly, in my own case, take it all; just let me see my daughter. I don't care any more. I just want to be able to have time with my kid on a regular basis, as do her grandparents and aunt in their home community. Obviously if I had more, I might be saying something else. I'm a poor professor. However, that's not the issue. That's the kind of thing that lawyers can argue for years.
Really what most people seem to be saying is, “Let me see my children. Let me have time with them. Let me be a parent. Let me be involved. Don't make me feel like I'm a bad person. Don't make me feel like I'm a loser.” Both parents are losers when a family falls apart. Don't kid yourselves. You're never going to patch it up. You're never going to do away with the pain. Someone has grieved someone else. But what you could do is at least make sure that some of that trauma is spared for the children by giving them regular access to both parents and both families, with the exception—and I want to be very clear on this—of situations where there is violence or domestic abuse. If there's credible evidence of that, the courts are there for that.
In most cases, from what I've heard and what I've read, following the work of this committee, we're really talking about men who want to spend time with their children. That's what I read and see in the news. If that's the case, how simple it would be to just say, look, these two people live in the same city, or they don't live in the same city. Here are their respective means. Here is how old the children are. Here's how they can be transported. What's reasonable? It's not reasonable to tell someone to take a child and put her in a car at 8 or 8.30 on a Friday night and drive her down the 401 to arrive in Kingston at midnight and call that an access visit. It's not reasonable to say bring her back halfway through Christmas Day. What, from under the tree, onto the 401? It's not reasonable to say, “Well, summer access will be at my pleasure”, as happened in my case.
So you could have rules and regulations. They won't be perfect. There will be people coming in front of a committee like this ten years from now saying “Those access guidelines stink. They need to be revised.” Of course, they need to be rethought, reconsidered all the time, but I think you could put in the basic framework, and that would be so helpful if you do nothing else. The Globe and Mail told you this too: open, ample access to both parents, both families. Do that and praises will be sung in your honour.
The Joint Chair (Senator Landon Pearson): Thank you.
Senator Cools, the last question.
Senator Anne Cools: Thank you, Chairman.
I'd like to thank you very much for your testimony.
• 2010
First of all, I heard Mr. Fortin very clearly put his
case on the record, the name of the case. Could the
other two witnesses do the same, please, Chairman?
The Joint Chair (Senator Landon Pearson): Okay. Est-ce que vous pouvez indiquer le numéro de votre cas?
Senator Anne Cools: The style of cause, which is the name of the case, and the jurisdiction where we could find it.
Mrs. Sheila Finestone: Judge Trudel?
Senator Anne Cools: I just said that Mr. Fortin gave his style of cause. Did you not?
Mr. Richard Fortin: Yes.
Senator Anne Cools: You gave the name of your case. I don't believe the other two witnesses did. I was just wondering if they could do that for the record, please, for those who would like to pull the cases to look at them.
Mr. Nash Smith: Mine is Smith v. Smith, custody and access. The jurisdiction is the Ontario Court, General Division, and it was presided over by Master Gary Schreider.
Senator Anne Cools: The next one, please, Chairman.
Mr. Lubomyr Luciuk: My case is still floating around out there, but the divorce was granted in February 1997. It's in the Ontario Court, General Division. It's court file number 94ND209136 and it's Chyczij-Luciuk v. Luciuk, and it's still not concluded.
Senator Anne Cools: Thank you very much.
I would like, Chairman, if those kinds of questions don't constitute part of my time, to address a couple of issues.
One of the witnesses mentioned Bill S-4. He didn't seem to be aware that Bill S-4 is now Bill S-12. It has passed second reading unanimously, I would add, and is in the committee stage in the Senate. That's just a point of information.
My questions now are as follows. The first question is to Mr. Fortin.
Mr. Fortin, you talked about the phenomenon of parental alienation, but I wonder if you could very quickly mention the other side of parental alienation, or the last aspect, which is the healing process—and I think the terms are “reunification” and “reintegration”.
I wonder if you know a sufficient amount about that? Could you respond in a line or two, just to let the committee—because I was listening to certain remarks—be aware that there are people who are working on healing therapies?
Mr. Richard Fortin: I don't understand.
Senator Anne Cools: It's the term “reunification”; after a parent and a child have been alienated it takes some skill quite often to reunite. We had a witness, Mrs. Pamela Stewart-Mills, who, while she didn't talk about it this time as much, in a lot of other cases talked about how the process of reunification is a very tricky and difficult process.
Mr. Richard Fortin: I don't know about it. I wish it would come to me, but unfortunately I haven't seen my daughter and I don't think I'll see her.
Senator Anne Cools: I'm aware of that. It is just that you were holding the book in your hand and I was looking for some more information.
Mr. Richard Fortin: I think you mentioned that you thought probably this was my case—Judge Trudel.
Senator Anne Cools: I thought you had put it on the record. I heard you referring to the judge, so perhaps you could put it on the record for us.
Mr. Richard Fortin: Yes. This is a case I referred to, but my case is, and this is what you want to know—
Senator Anne Cools: Yes, put it on the record. It's also proof that what you're saying has standing.
Mr. Richard Fortin: It's a judgment from the Ontario Court, General Division, court file number 49729-94, and it was given by Judge Desmarais on October 25, 1996.
Senator Anne Cools: The case was so-and-so versus who? Fortin vs. who?
Mr. Richard Fortin: Richard Fortin and Éliane Major.
• 2015
Senator Anne Cools: I have two other very quick questions. You referred to a complaint to the Law Society of Upper Canada.
I wonder if the witness who referred to a complaint to the Law Society of Upper Canada can quickly tell about the outcome of that.
A witness made a reference to a case of a prominent lawyer involved in falsehood. I wonder if you could put that case on the record, because I'd like to look that up, please.
Mr. Nash Smith: I've sent letters to the Law Society of Upper Canada to have Paul Abell disciplined for using false testimony in court. I even told them how they should go about the investigation, by talking to my lawyer, the children's lawyer, because they were all in court.
I made these copies available to a whole group of people, including, the Hon. Anne McLellan, the federal justice minister; the Canadian Judicial Council, the Ontario Judicial Council, the Hon. Judge Harnick, the Chief Justice of Ontario, Senator Anne Cools, Marlene Catterall, Alex Cullen, and even the magistrate, Gary Schreider.
I got a letter from the law society saying that they sent a letter to the lawyer asking him to explain what happened. He wrote in his letter that he didn't make any of these false claims that I alleged, but actually he went back and said the same thing. The case was reported to Children's Aid. It's right there in his own response, and now the law society tells me he didn't do anything wrong because he was only defending his client, end of case. They are not going to do anything about it.
I even reported Gary Schreider to the same people, to the Ontario Judicial Council. They are supposed to investigate. They sent me a letter saying that having seen the document I handed in, they feel I have a case, because he had no basis for allowing perjury to go ahead. It was going to take a while to investigate, and they can't tell me when, so that's it.
So nothing has been done about Gary Schreider and nothing has been done about the lawyers. Basically, they get away with it.
Mr. Lubomyr Luciuk: If I can add to that, my experience with the Law Society of Upper Canada is that it's a self-regulating monopoly that has every interest in protecting its clientele, the lawyers.
One complaint that I lodged dealt with a theft following a break-in at my office at the Royal Military College, a DND property, and the removal of all my financial papers, diaries, and other materials—a break-in occurred in July and again in October of 1993—materials which were then used against me by the opposing counsel.
When I asked how they came to be in the possession of those papers, I never did get an answer, and I finally did complain. It took the law society three years. I took it right up to the bench, right up to a formal complaint, through the appeals process, and in the end they said “insufficient evidence”.
On the issue of the recent Federal Court trial division finding in the case of a lawyer.... I presume I have some immunity here as a witness before the special committee—
The Joint Chair (Senator Landon Pearson): You have the same—
Senator Anne Cools: The situation's getting pretty thin on the ground to be able to protect him, Chairman.
Mr. Lubomyr Luciuk: My understanding is—unfortunately I can't remember the exact name of the claimant—that it was an individual from Sri Lanka who'd made a claim to—
Senator Anne Cools: Perhaps, then, we should let the witnesses know that our authority to be sitting here at this moment is in question and we may not be able to protect them.
Mr. Lubomyr Luciuk: In which case, before I hang myself thoroughly, I'll simply say that I will undertake to send this committee a copy of the Federal Court trial division finding and you can look it up yourselves.
The Joint Chair (Senator Landon Pearson): All right.
Senator Anne Cools: Thank you.
Mr. Lubomyr Luciuk: As for the final question Senator Cools asked about, my recent complaint based on that Federal Court trial division, there has been no decision because the complaint was just made a few days ago. I waited until my process had come to some end.
Senator Anne Cools: I have one final thing, Chairman.
I would like to let the witnesses know why I just made the statement that I did. This committee must have six members present to be able to hear witnesses. At this moment, this committee has five members present, four of whom are senators and one of whom is the House of Commons—
The Joint Chair (Senator Landon Pearson): Three of whom are senators.
Senator Anne Cools: Three of whom are senators and two of whom are members of the House.
• 2020
Mrs. Sheila Finestone: Two are members of the House, and one just left five minutes ago.
Senator Anne Cools: No. Eric left. I tried to hold on to Eric for quite some time. I kept Eric sitting here for quite some time. I did.
I'd just like to point out that this committee should be mindful that these witnesses have been saying many delicate things and should make a point to exercise protection of these witnesses, because the authority to be sitting here can easily be questioned. I'm not too sure, as it is right now, with a member missing, that this meeting can be properly called a proceeding of Parliament. I'm just putting that out so that people can know, because committees and Parliament have a duty to protect the witnesses that come before them.
The Joint Chair (Senator Landon Pearson): Dr. Bennett.
Ms. Carolyn Bennett: Hopefully you have the assurance of the committee that failure to prevent parental alienation syndrome or to put proper consequences to false allegations or to be able to ensure consistent access for parents.... I think all of us agree that is not in the best interests of children, and I hope you will help us continue in our work to make sure that we can get on and do the right thing. Thank you.
The Joint Chair (Senator Landon Pearson): And we'd like to thank you very much for coming here and sharing your stories with us. I know it's helpful to us and I hope it's helpful to you. Thank you.
The meeting is adjourned.