SJCA Committee Meeting

SPECIAL JOINT COMMITTEE ON THE CHILD CUSTODY AND ACCESS

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

EVIDENCE

[Recorded by Electronic Apparatus]

Monday, March 23, 1998

• 1536

[English]

The Joint Chair (Senator Landon Pearson (Ontario, Lib.)): Order. Good afternoon, and welcome to everyone here. We have a quorum now and would like to go ahead.

This afternoon we'd like to welcome a panel of witnesses who have come to discuss some of the issues of custody and access as they relate to non-traditional families.

I believe you've determined the order in which you wish to speak. The first person is Professor Katherine Arnup of the School of Canadian Studies.

Professor Katherine Arnup (Director and Associate Professor, School of Canadian Studies, Pauline Jewett Institute of Women's Studies): Thank you.

The issue of sexual orientation is relevant to the deliberations of this committee in at least two respects. The primary one is in the context of the breakdown of a heterosexual relationship when there's a revelation of lesbianism or homosexuality on the part of one or both of the parents. Here, judges are faced with the task of assessing the potential impact of sexual orientation on the welfare of the children involved.

The second context—and this is one I'm not going to address specifically today—is the dissolution of a lesbian relationship where the parties are the adoptive or biological parents of one or more children. Here, the court has to resolve issues of custody and access in much the same way they do in the heterosexual context.

What I'd like to do today is to lay out the history of these issues, touching briefly on the research on lesbian and gay parenting, to help you understand the relevance of sexual orientation to the disposition of custody and access.

Lesbian and gay parents first came to public attention in the 1970s, when lesbian mothers began to fight for custody of their children conceived within heterosexual relationships. Until then, few people outside of the homosexual community knew about the existence of lesbian and gay parents. In just over two decades, that situation has changed dramatically.

A recent study estimated that there are between three million and eight million gay and lesbian parents in the U.S., raising between six million and fourteen million children. While no figures are available for Canada, we can assume that, proportionately, the number of lesbian and gay parents is equally high.

Before the 1970s, very few lesbian mothers contested custody in court. Fearing exposure and recognizing that they were likely assured of defeat, many women relinquished custody in exchange for liberal access to their children. Sometimes they were able to make private arrangements with their former husbands, often concealing their sexual orientation in order to retain custody of the children. Those arrangements are still common today, although given the necessarily private nature of the arrangements, we have no idea how many women are engaged in those arrangements.

During the 1970s and 1980s a small number of lesbians began to contest and occasionally win custody of their children. In addition, increasing numbers of gay men tried to gain access, and in some instances, custody, of their children.

In these cases, a number of different approaches have been adopted by judges. At one end of the scale is what's called the “per se” category, where a parent's homosexuality creates what's called an “unrebuttable presumption” that the parent is unfit. What that means is, in this approach, homosexuality in and of itself renders a parent unfit regardless of any evidence to the contrary.

Although in some American jurisdictions that approach is still used and homosexuality remains an absolute bar to custody and access, judges in Canada and in many American states have adopted the nexus approach. Here, what the court tries to do is to determine what effect, if any, a parent's sexual orientation will have on the well-being of the child, based on the facts of the case. To deny custody or access to a homosexual parent, it has to be demonstrated that the parent's sexual orientation will have a negative effect upon the child.

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Despite that liberalization, though, many gay and lesbian parents continue to lose custody of their children. Part of the reason for this lies in the enormous amount of judicial discretion that family court judges have. Since the 1980s the paramount standard applied in custody and access disputes in Canada has been what is called “the best interests of the child”. But no precise formula exists for determining which household or family arrangement operates in a child's best interests.

In Ontario, for example, the relevant legislation directs the judge to consider what are called “all the needs and circumstances of the child”, including the relationship between the child and the people claiming custody, the preferences and the current living situation of the child, the permanence and stability of the family unit where it's proposed the child would live, and the blood or adoptive links between the child and the applicant. That section in the Ontario legislation explicitly states that the past conduct of a person is not relevant to the determination of an applicant unless the conduct is relevant to the ability of the person to act as a parent of the child.

On its face that legislation might appear to improve a lesbian or gay parent's chances for success, but there are still many ways in which those provisions can be used to rule against a lesbian or gay parent. First, a judge may refuse to recognize a homosexual family as a permanent and stable family unit. Obviously homosexuals are not permitted to marry, so they cannot meet that standard measure in the heterosexual context of stability. The closeted nature of many gay and lesbian relationships and the absence of any census category to capture same-sex partnerships also mean it's virtually impossible to offer statistical evidence on the longevity of same-sex relationships. Given those obstacles, a lesbian or gay parent may well be unable to demonstrate the permanence and stability of their family unit.

It's worth noting that sometimes even living with or enjoying access while in the presence of a same-sex partner is deemed to run contrary to the best interests of a child. In numerous cases judges have ordered a lesbian or gay parent to live alone or to ensure their partner is out of the house while the children are visiting. Imposing conditions like these is based on the unproven assumption that a parent's homosexuality may negatively affect the child but that those effects can be overcome if the parent meets certain conditions such as not cohabiting with a partner, not sharing a bedroom, not showing affection in front of a child; actions a heterosexual parent is never expected to take.

The judicial effort to limit or terminate a lesbian or gay relationship is especially disturbing in light of research that suggests lesbian mothers' psychological health and well-being are associated with their ability to be open about their sexual orientation with their employer, their ex-husband, children, and friends. Also, living with a partner is correlated with parental happiness and financial stability. Furthermore, these efforts fly in the face of mounting evidence which demonstrates that the children of lesbian and gay parents show normal psychological development. Studies also show there is no support for the assumption that lesbian mothers are emotionally unstable or unable to assume a maternal role. We'll talk more about that in the other presentations.

The contradiction between the apparently neutral judicial stance on homosexuality and the setting of punitive conditions is evident in dozens of cases involving lesbian and gay parents. In the interest of time I won't go into those cases here, but we will be happy to address them in the question period.

The net effect of these decisions is that regardless of how good a lesbian or gay parent may be, they cannot be good enough unless they are willing to abandon or at the very least hide their same-sex relationship. Their children must be their first, indeed their only, priority, even if it means the demise of their committed relationship. As one judge noted in denying custody to a lesbian mother in a British Columbia case:

In resuming it

—cohabitation with her partner without the leave of the court—

she left no doubt as to the priority of her relationship with her companion. It was the paramount consideration. She wanted custody. It was, however, not at the sacrifice of the homosexual relationship.

These judicial pronouncements present lesbian and gay parents with a number of difficult choices. If, for example, a woman admits to coming out at work or at her children's school, if her friends and neighbours are aware of her sexual orientation, she stands less chance of winning custody of her children. Within that legal context, most lesbian mothers choose to act as straight as possible in order to win custody of their children. The question I might ask is what effect does that almost-deception have on their children?

The legal position of lesbian and gay parents has improved considerably since the first custody cases began to appear before the courts some 25 years ago. Today it is no longer a certainty in most jurisdictions that a lesbian or gay parent will lose custody of their children. Nevertheless, as I have suggested here, they continue to face discrimination in the form of punitive conditions and judicial prejudices. How, then, should the members of this committee respond?

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Following the substantial body of Canadian case law on this issue, I would urge you to recommend that sexual orientation should not be considered a negative factor in the disposition of custody and access, because there is no evidence to suggest that it has a negative effect on the welfare of the children raised in same-sex families.

Instead, lesbian and gay parents should be judged on the same basis as heterosexual parents: on their relationship with their children, on their parenting skills, and on the plans put forward for the child and their ability to carry out those plans.

Furthermore, heterosexual parents must be encouraged to support their former partner's parenting efforts. Homophobic attitudes and prejudice must not be condoned by the courts as acceptable or understandable or natural. On the contrary, the courts must actively promote acceptance and tolerance. That, rather than prejudice and discrimination, is surely in the best interests of the children.

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

Mr. Fisher and Ms. McEachern.

[Translation]

Mr. John Fisher (Executive Director, Equality for Gays and Lesbians Everywhere): Good afternoon, and thank you for inviting us to appear before you today.

My name is John Fisher, and I am Executive Director of EGALE, Equality for Gays and Lesbians Everywhere. EGALE has members in every province and territory of Canada. Our purpose is to defend the right to equality of gays and lesbians at both the federal and provincial level.

[English]

No area of the law as it applies to gays and lesbians inspires more resistance and more outright fear and discrimination than the area of gays and lesbians dealing with children. Frequently in existing case law we've heard fears from judges that lesbians and gays, if they're allowed to retain custody of the children, may attempt to proselytize the child, that the child may turn out to be gay or lesbian, and that the child may not be safe being raised by gay and lesbian parents.

Here in the House of Commons, when the government finally extended the Canadian Human Rights Act to prohibit sexual orientation discrimination, there were concerns from those who were opposed to this legislation, concerns that by protecting gays and lesbians from discrimination we may be somehow protecting child molesters. It wasn't explained how that would come to pass, but the connections that were made by those opposed to the legislation were drawn very starkly, and lesbians and gays were automatically lumped in together with child molesters despite the complete absence of evidence that there is a connection, either in logic or law.

In recent years, there have been, as Katherine has said, a number of clear pronouncements from the courts that sexual orientation in and of itself is not a bar to maintaining custody or access of children. Nonetheless, it is equally clear that in the application of these tests around the best interests of the child, there are a number of factors that are being applied, which nonetheless serve as an obstacle to gays and lesbians being able to participate in custody and access on an equal basis.

Many people do not necessarily appreciate the way in which this becomes an issue for gays and lesbians. For many people, it is assumed that parenting only occurs within a heterosexual relationship, and often, I think, there is an under-appreciation of the number of gays and lesbians who are involved in a parenting role.

There are a number of ways in which this can happen. First, many gays and lesbians have children from previous heterosexual relationships. When the relationship ends, of course, the parental relationship maintains. Also, an increasing number of lesbians are giving birth to their own children through means of alternative insemination. Adoption is also becoming an increasing reality. Some provinces now explicitly permit same-sex adoption. Most provinces do allow single individuals to adopt a child, whether the individual is heterosexual, lesbian, gay or bisexual. So clearly, there are a number of ways in which the situation arises.

The test, of course, as in all family law matters, is “what's in the best interests of the child?” If we're serious about maintaining the best interests of the child, it follows that we have to recognize the strength of the parental bond that exists with lesbian, gay, and bisexual parents and ensure that the bond is respected in the same way it is with heterosexual parents.

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We're pleased to note that in recent years there have been a number of changes in the legal situation across the country in favour of recognizing both same-sex relationships and lesbian and gay parents equally.

Perhaps I can say at this point how pleased we were this past weekend to note that at its biennial policy convention the Liberal Party did pass a resolution affirming the equal rights of those in same-sex relationships and the need for governments to respect same-sex relationships equally. My understanding is that this is also the policy of the Bloc Québécois and of the NDP. If I've missed any party that has a similar commitment to equality, I'm sure the honourable members will correct me.

We're pleased to note also that there are a number of provincial governments, and the federal government, that extend same-sex benefits to those in same-sex relationships. The government at the federal level has recently acted, as have the provinces of Ontario, Quebec, Manitoba, Nova Scotia, New Brunswick, and each of the territories.

B.C., of course, has explicitly passed legislation now permitting same-sex adoptions.

Ontario had a court case in recent years called Re K., which Cynthia Petersen will be referring to in a bit more detail. That case also affirms the equal ability of lesbians and gays to adopt children.

B.C. also recently passed legislation recognizing the equal need for those in same-sex relationships upon relationship breakdown and allowing support obligations to maintain when relationships do break down. Of course this was also the subject of a recent case in Ontario, where the Ontario Court of Appeal ruled in favour of support obligations for same-sex couples. That case was heard by the Supreme Court of Canada just last week.

To us it's clear that there is a national trend towards recognizing lesbians and gays as equal, both in our individual capacity and in our relationships, and with our relationships with others, including our family and our children. We feel this is not only a moral imperative, it's a legal imperative. We feel it is clearly required by the charter of rights. In the Egan decision, the Supreme Court of Canada affirmed by a majority that it is discrimination not to recognize the equal rights and responsibilities of those in same-sex relationships. In the Egan decision, however, the Supreme Court said ultimately it's not for the courts to entertain, or at least not yet. Instead they will leave it up to governments to take the steps that are required. If governments fail in their responsibility to do so, then you can expect the courts to re-involve themselves.

So, in our view, it is properly the policy position and the responsibility of the federal and provincial governments working together to ensure that in areas such as family law and dealing with custody and access we recognize the equal rights and responsibilities of gays and lesbians. We feel that's clearly in the best interests of the children as well.

In terms of what needs to be done in order to accomplish this result, much of it I think lies in the area of public education. The tests are clear. Properly applied, they would treat gays and lesbians equally. However, many people of course do not have the training, the educational background, to apply those tests in a fair and impartial manner. For that reason we feel it's essential that there be solid judicial education programs so that all those charged with applying the law are properly informed about the reality of our lives and the nature of the relationships we have.

I was speaking just recently with the National Judicial Institute and it was clear that although there are judicial education programs that deal with gender, race, and other equality issues, there is very little, if any, treatment of lesbian and gay equality issues. So it's not surprising that we see a number of judgments that are inconsistent, and we see aberrations in the law and the improper application of those tests.

Secondly, of course, we need to make sure that in neither federal nor provincial law are there explicit barriers to the equal ability of gays and lesbians to parent children. Therefore provinces do need to have clear adoption laws that enable us to adopt equally. At the federal level there needs to be a review of all legislation dealing with relationships and family law to ensure that we're not excluded, for example, from definitions of spouse, from child tax credits, or other things that impact upon our ability to share equally in our relationships.

I'll end here so we can move on and have time for questions. Ms. MacEachern, who is with our legal issues committee, is unfortunately suffering from a cold today, so she's happy to join with us in answering questions.

Do you have anything to add at this stage, Pam?

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Ms. Pamela J. MacEachern (Barrister and Solicitor, Nelligan, Power): No.

The Joint Chair (Senator Landon Pearson): I invite now Cynthia Petersen, from Sack Goldblatt.

[Translation]

Ms. Cynthia Petersen (Attorney, Sack Goldblatt): Thank you. My name is Cynthia Petersen, and I am a lawyer in Toronto. Before practising law, I taught at the University of Ottawa Law Faculty for five years. Among other things, I taught a course on family law and child custody and access. In my course, I dealt with the issue of gay and lesbian parents.

In my current law practice, a major percentage of cases I defend involve gay and lesbian rights and legal recognition of same-sex spouses. This includes issues of child care, adoption, and others. In this short presentation, I wanted to give you an overview of my experience and perspective.

First of all, I would like to point out that when we talk about child custody or access to children, we are actually talking about the rights of the child. We often talk about the rights of gays and lesbians, and it is very important for us to recognize the equality of gays and lesbians in our society. But when custody and access are involved, what we are really talking about are the rights of the children. Children are not chattel belonging to the parents, but persons with their own rights.

The most important factors are the welfare and best interest of the child. We must always ask ourselves what course of action is in the best interest of the child, and will promote the child's welfare. That is the standpoint from which I will be speaking today. I support the comments made here by Ms. Arnup and Mr. Fisher of EGALE.

We really have to focus on the welfare of the child. In that perspective, I will be making some comments on the case of Re K., which Mr. Fisher mentioned. In 1995, the Ontario Provincial Court ruled on a case where several lesbian couples wanted to adopt a child which was the natural child of one of the two women in the couple. The children in question had two mothers in their day-to- day lives though only one was recognized as the being the child's legal mother or legal parent. The lesbian couple wanted to have the right to adopt the child so that both mothers could be recognized as legal mothers.

As I said at the beginning of my remarks, it is the right of the child that must prevail in recognizing its relationship with both mothers. It is not solely the parents' rights that should be invoked.

[English]

At this point I'm going to switch to English, because I'll be referring to the judgment and it will be too complicated for me to do simultaneous translation, which the experts can provide.

The decision in Re K. is particularly useful. I appreciate this is an adoption case and it is outside the federal jurisdiction. I'm not raising it because I have some confusion about what your jurisdictional abilities are in what you can recommend and what you're looking at. But it's a very important case, because an extensive review of social science literature was presented through expert evidence in the court and I think the judge does a very useful overview of the literature to 1995, which is relatively current, given that this was decided only a few years ago.

The other reason why I think it's important is that because it was an adoption case the judge actually makes reference to the fact that adoption, unlike a custody order, can't be varied in the future. It's a permanent order that gives legal recognition to a relationship in an invariable way. Because of that he was very careful to examine meticulously all the evidence that was presented to him about the alleged disadvantages to a child of being raised by a same-sex couple, a lesbian mother, a gay father, or a lesbian or gay couple. Many of the myths and stereotypes John referred to are canvassed in the decision.

As I said, the judge had the benefit of expert evidence. A number of psychiatrists, psychologists, social scientists, gave evidence, and written materials, research materials, and publications were also presented to the court. After canvassing all of this, the judge concluded that based on the empirical research that was presented to him, and I'm quoting directly from the judgment now:

...the most important element in the healthy development of a child is a stable, consistent, warm, and responsive relationship between a child and his or her care-giver.

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Throughout the judgment you'll see reference to the fact that the sexual orientation of the parent of a child is irrelevant to that parent's ability to provide what is the most important element in the healthy development of a child: a stable, warm, and consistent relationship. The only thing that interferes with that is homophobia and stereotypical reasoning and prejudices against gay and lesbian parents, but absent that, there's nothing inherent in the sexual orientation of a parent that would preclude them from providing what a child needs for healthy development.

I would commend this decision to you, because the judge does go through a variety of stereotypes, including, for example, stereotypes about the instability of lesbian and gay relationships, and says the empirical research disproves that conclusively. The judge discusses stereotypes about gender identity and the development of the sexual orientation of children.

Also, something that is often raised—or certainly when I used to teach family law this was often raised by my students—is the fear that children raised by a gay or lesbian parent might be subjected to social stigma or prejudice because their parent is gay or lesbian. Again, the judge says there's no evidence to indicate that children of gay and lesbian parents are subjected to any greater stigma or harassment than they might otherwise be exposed to for a whole variety of reasons, such as racism or perhaps having a parent who's disabled or something of that nature, where there are also stereotypes about the abilities of parents.

So I refer to the decision firstly to just commend it to you, but it's also—

Senator Anne C. Cools (Toronto Centre, Lib.): Ms. Petersen is obviously reading from a judgment, and she's put considerable thought into what she is saying. Perhaps she could tell us what judgment she's reading from, the case—give us the reference and the judge who's speaking.

Ms. Cynthia Petersen: Yes, and I'd be happy to provide a copy. I'm sorry I did not bring copies with me. The case is referred to as Re K. It's a May 1995 decision of the Ontario Court, Provincial Division. The judge was Judge Nevins. It is reported in a legal report, the 23rd volume of the Ontario Reports, third edition, which can be accessed, but I'd also be happy to provide copies to the committee.

Senator Anne Cools: We can find copies once we have the reference. Thanks.

Ms. Cynthia Petersen: Thank you.

For the final point I wanted to make, I'll draw on the conclusion of Judge Nevins in this case, which is on the importance of maintaining the stability and consistency of parent-child relationships, because it's the disruption of that relationship that is really potentially damaging to the child. Also important is maintaining that relationship prior to relationship breakdown.

What the two presenters have focused on so far today are situations where, understandably.... Because of the federal jurisdiction, we're often dealing with cases of divorce where a relationship or a marriage might be breaking down, the couple is in a situation of divorce, and either the man or the woman may be coming out as gay or lesbian. The issue of their sexual orientation then becomes a factor in an adversarial or contested custody dispute.

What I would like to add to that, in addition to supporting what's already been said today, is the importance of also looking at maintaining the stability of that relationship when the couple—and in this circumstance I'm referring to a gay or lesbian couple that is parenting a child—is still a family unit and has not suffered a spousal breakdown of the relationship. There are areas of federal jurisdiction where you can foster the stability of that family unit, which is in the interest of the child who is being raised within that family unit.

I wanted to just give one example to illustrate my point, which is a case that arose recently in British Columbia where a woman who worked for the British Columbia public service was in a lesbian relationship, her partner had a child, and she wanted to stay home for a period of time to be the primary caregiver to her same-sex partner's child. She was denied employment insurance benefits for parental leave to stay home with the child because she was not the biological mother of the child. This was prior to the change in the B.C. laws that permits same-sex partners to adopt, so she was not in a position to be able to adopt that child. She was therefore not recognized as the child's mother, although in fact she was one of two mothers raising that child, and encountered difficulties as a result. Fortunately she was ultimately able to receive some benefits from her employer through a collective agreement in order to take this leave.

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Employment insurance is an area where, in the federal jurisdiction, changes can be made to treat equally same-sex family units who have children with heterosexual couples who have children so that the relationship between the child and the parents can be fostered and maintained and the stability of the family unit can be maintained.

If there is a spousal breakdown, which we know does occur on occasion in both same-sex relationships and heterosexual relationships, then again, the importance of maintaining the stability of the parent-child relationship with both of the parents who have chosen to end their spousal relationship should not interfere with the ability of the child to maintain a relationship with both parents.

I would support here the comments that have been made that the sexual orientation of the parents, whether it's a heterosexual relationship that's breaking up or a same-sex relationship that's breaking up, is irrelevant and ought to be treated as irrelevant by courts when custody and access issues arise.

I support the recommendations that have already been made. I would strongly support a recommendation in favour of judicial education, in particular because the kind of evidence marshalled in the Re K. case, for instance, is very difficult to present. It's expensive, and it requires tremendous resources.

It's a remarkable decision, because it does provide you with a lot of information, but in terms of being able to do this in a regular custody case where someone's sexual orientation is being raised as somehow being a factor relevant to their ability to parent, it's extremely difficult to do.

So it's important that judges have judicial education where this information—the empirical studies and the social science research—can be put to them so that individual litigants caught up in family disputes are not required to marshall this kind of evidence in order to deconstruct stereotypes or disprove myths that exist about the ability of gay and lesbian parents to provide quality parenting to their children.

The second recommendation I would make, as I've already indicated, is that wherever possible within the federal jurisdiction—and I would make the same recommendation in provincial jurisdictions—gay and lesbian families and spousal relationships should be treated equally with heterosexual families and spousal relationships, again because of the necessity of maintaining the stability of those relationships. The stresses imposed by discrimination and by the unequal treatment and the government's failure to support and provide equal treatment to same-sex relationships ultimately is detrimental to the children of those relationships.

To return to my original comment, it's really the best interests of the children that are at stake. The best way to do that is to recognize their family units, because they are units that already exist in society. I think that's one of the difficulties with the debate, as John mentioned at the beginning. Often when you talk about children it's the area where there is the most opposition to the recognition of lesbian and gay rights. I think people often think about the situation of trying to keep children away from gays and lesbians, but gays and lesbians are already parenting and are providing stable homes to these children. It's just a failure of the law to recognize the existence of those homes and treat them equally.

Those are all my comments. Thank you.

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

Finally, as an individual, Mr. Philip MacAdam.

Mr. Philip MacAdam (Individual Presentation): Honourable Senators and members of Parliament, thank you for the invitation to make a submission to your committee.

I have not prepared a lengthy submission for you. I thought I might be of some assistance to the committee because I have been practising in Ottawa since 1985. I've been practising law largely for the gay and lesbian and bisexual and transgendered community in this region, so I offer you that perspective.

In the context of that 13-year period of working for this community, I have had occasion to counsel gay fathers and lesbian mothers with respect to custody and access of their children. I've also had occasion to represent a gay man, for instance, seeking custody of his young son. That matter ended up before a judge sitting here in Ottawa, and the best interest of that little boy, in the context of a gay father seeking custody of a young boy, had to be argued before a judge here in Ottawa. So I offer you that perspective.

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I offer you also the perspective of someone who has been actively helping gays and lesbians have families, and I've been doing that in a number of ways. For instance, since 1995, lesbian and gay couples have been able to bring joint adoption applications here in Ontario, and I've brought a number of those applications now for a number of lesbian couples, where one of the mothers was the biological mother and both mothers wanted to formalize the relationship between the non-biological mother and the child of their relationship. So I've been helping them to kind of strengthen their family, at least in the eyes of the law.

I've also advised and assisted, for instance, a gay man and a lesbian woman who decided to co-parent a child the woman was going to receive through an alternative insemination, the sperm donation from a gay man. They are co-parenting a child. They are not living together, but they have had a child together and they're going to co-parent the child.

Another example is a gay man making a sperm donation to a lesbian who has agreed to bear the child and then give custody of the child to the gay man and his same-sex spouse. So these are examples of admittedly fairly non-traditional family situations within the gay and lesbian community.

Then, of course, there's the more common example, where two women are having a child through an alternative insemination from an anonymous sperm donation. I've assisted them to formalize the relationship, as I mentioned a minute ago, through an adoption order or through a joint custody order so that the non-biological mother is recognized as a parent of the child.

Finally, of course, there's the situation where a gay man or a lesbian woman is coming out of a heterosexual relationship where there have been children of that relationship, and now the gay man or lesbian woman is seeking some other custody or access rights vis-à-vis those children. So I've assisted gays and lesbians in that context as well.

Unfortunately, it has been my experience that the heterosexual parent will try to use the sexual orientation of my client to try to exploit that to his or her advantage. In other words, for instance, in one matter, the heterosexual parent swore that he's a homosexual, as if that in itself would disqualify him from seeking custody of the child. So, unfortunately, this, in my estimation, low, ignorant kind of approach stills prevails. In my view, it's up to government to try to send the message to people that they can't just throw out the fact that he or she is a homosexual as if in itself that somehow disqualifies the person from seeking custody or access to a child.

The court was quite quick in that case to say that in and of itself my client's sexual orientation had no bearing. But there's always the danger that the court might in fact put some weight on that, and hence I agree with Ms. Petersen and Mr. Fisher. I think judicial education in this area is very important, and I would certainly say that it ought to be one of the committee's recommendations.

The interest that's really at stake in all of these matters, of course, is the child's interest. Unfortunately, again, it has been my experience that the parties to a contested custody or access dispute aren't really putting the child's best interest in the forefront at all; they're putting their own interest. Unfortunately, these types of disputes really do degenerate, and there's a huge emotional and financial cost to this type of litigation. It can bankrupt the family, and of course the emotional consequences for the child and for the parties themselves can be enormous. I would simply reiterate and reinforce the recommendation that's already been made.

• 1615

The bottom line, in my view, is that sexual orientation should never in and of itself be a factor in the determination of a custody or access dispute. There are factors that assist the court in understanding or applying the principle of the best interests of the child, and sexual orientation should never be one of them. I think it would also be helpful for this committee to recommend that in determining the best interests of the child, sexual orientation never be in and of itself a factor.

Thank you.

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

Mr. Epp.

Mr. Ken Epp (Elk Island, Ref.): Thank you, Madam Chairman. I'm pleased to join this committee as a substitute today, our members all being caught in various stages of some storm somewhere.

In the first question, I'd like to ask Philip, who just spoke—and the others have said the same thing: they support the recommendation. I'd like you to clearly enunciate what your recommendation is. What is this recommendation you're talking about?

Mr. Philip MacAdam: I'm just assuming that this committee has been given a certain mandate to hear submissions from groups such as ourselves with respect to custody and access of children. We all appreciate that the federal government has a limited jurisdiction in this field. This is primarily a provincial matter, so it's questionable just how much legislative initiative the federal government can take in this area, except, as Ms. Petersen has mentioned, certain recommendations could be made with respect to amendments of the Employment Insurance Act. Ms. Petersen can go over that part of our submission again, if you wish, to clarify exactly—

Mr. Ken Epp: I'm asking you specifically, when you say “I support the recommendation”, what is the recommendation you are supporting? Is it that the joint committee study it? Is there some specific recommendation you would identify?

Mr. Philip MacAdam: Well, the recommendation I already identified in my submission, Mr. Epp, was that judicial education take place in the area of sexual orientation.

Mr. Ken Epp: That's the only one?

Mr. Philip MacAdam: Well, no, we have a second—

Senator Anne Cools: To the witness' credit, Madam Chairman, there was a particular point that I understood Philip to be saying, that sexual orientation should not be an issue or a disadvantage in the awards of custody and access. That's what I heard.

The Joint Chair (Senator Landon Pearson): What I heard you say was that it should not be in itself an issue.

Senator Anne Cools: I think so. Just perhaps restate that. Otherwise, I think there is a bit of confusion. I heard you say that very clearly, Philip.

Mr. Philip MacAdam: Thank you.

Mr. John Fisher: I understood Mr. MacAdam to say that he was supporting the recommendations of EGALE and the other presenters.

I think we specifically made three recommendations. The first was we all seem to be in agreement that judicial education is a must. If judges are going to be making these decisions, they need to be educated about the lives of the people they're dealing with, and they can't apply the “best interests of the child” test without being aware of the social factors leading to the determination of the child's best interests in same-sex parenting situations. So one is judicial education.

Second, Ms. Petersen referred to the need to ensure that there isn't, at any level of government, legislation that explicitly discriminates against those in same-sex relationships and the family units we have. Where there are definitions of spouse that destabilize and marginalize our relationships, that's not healthy for the individuals involved and it's not healthy for the children of those relationships. In order to maintain the equal treatment and respect of those relationships and thereby socially strengthen them, it's important that federal as well as provincial legislation not discriminate against those in same-sex relationships.

Third—and this is more at the provincial level than at the federal level—there should not be explicit bars to equal parenting situations for gays and lesbians. Those provinces, for example, that don't permit same-sex adoptions ought to review their laws and policies. Alberta, I believe, in addition to prohibiting same-sex adoptions, has also recently introduced a policy to prohibit foster parenting by gays and lesbians. That decision was prompted by the fact that there was a lesbian foster parent who had won awards for her parenting abilities. But when it was discovered that she was lesbian, a decision was made to change the policies to exclude her ability to do so in the future.

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Those three recommendations are not the only responses that could be given in this area, but they are certainly three key ones.

Mr. Ken Epp: That's very helpful. Thank you.

I now have another question. With respect to the interests of the child, you all mention that the interests of the child should be first and foremost. Again, our last witness indicated, for example, that there was a situation where a lesbian couple was arranging with another—he did use the words—“gay man” to donate some sperm to produce a child, and then they were going to co-parent. I would like you to somehow clarify in my mind that the child so produced, being shuttled from one family to another back and forth, that being the original plan...is that in the best interests of the child? Is that really your view? I guess that's what I'm asking.

Mr. Philip MacAdam: In that particular instance, there was no intention whatsoever to shuttle the child back and forth. The child was going to reside with the child's mother initially and the gay father was going to have liberal access to visit the child. That was going to be the ongoing set-up.

The studies have shown...I refer you, Mr. Epp, to the Re K. decision, which Ms. Petersen was referring to earlier. Admittedly, these are non-traditional family arrangements, but the studies have shown that the most important thing is a loving, caring, supportive parent, and I submit to you that these children are going to have and do have loving, caring parents.

Mr. Ken Epp: As a member of Parliament, I have become more aware now than I ever was before of some of the trauma that children go through when their parents are in a divorce situation, and we're not talking here about gay and lesbian parents but about just your normal heterosexual relationship that breaks down and then one parent goes here, one parent goes there, either or both of them may remarry, and the children are now torn—“where do I go at Christmas?”—and there are all these fights and things.

They actually phone my office and say “Help!”. So in my contention, thinking of the best interests of the child, I would think that it would not be in the best interests to arrange the life of the child before it is even born such that it's going to be shuttled back and forth. You said that: he would have liberal access. What does that do to that child?

Mr. Philip MacAdam: I think the most important thing is that a child ideally come into life in an environment free of turmoil, stress, anger, fighting, and that kind of thing. In this situation, I anticipate this child being raised by two loving parents.

Mr. Ken Epp: Two or four?

Mr. Philip MacAdam: Pardon me? Oh, two. Two loving parents.

Mr. Ken Epp: Which two?

Mr. Philip MacAdam: Oh, okay. I think we're confusing this. You're referring to another example that I gave, where a lesbian mother is going to carry a child and then after birth give the child to a gay couple who is going to raise the child, but...okay, three parents; that's all the better in my estimation. The more loving caregivers there are for a child the better.

In fact, if you look at a lot of non-North American societies where the extended family is more prevalent, in my estimation that's ideal. I don't think one should just automatically assume that since this is going to be a non-traditional family, therefore the child is going to be raised in a stressful, torn, divisive kind of environment. That's just not the case.

Actually, it was really interesting meeting a woman who was raised by a lesbian couple. She is now in her twenties or thirties, and she said to me that if I ever needed a witness for any sort of court case or committee with respect to what it's like to be raised by lesbian mothers, I could call her. She said it was wonderful. She said she feels great. That's just one example, but I refer you to the studies in the Re K. decision.

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Mr. Ken Epp: I'm certain we could have examples of children raised by heterosexual parents and homosexual parents falling into both groups: “my upbringing was terrible” or “my upbringing was good”. I'm sure that would be the case.

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

Ms. Carolyn Bennett (St. Paul's, Lib.): I have a couple of short questions. The first thing is that I was quite surprised to hear the census data do not take same-sex relationships into consideration. Surely that could be one of the recommendations of this committee. We'll never know unless we start measuring.

Ms. Cynthia Petersen: We would support that.

Ms. Carolyn Bennett: Secondly, I don't know whether we will have another chance at the ministry officials, but I understand a longitudinal survey on the well-being of children in marriage or breakdown is going on. Are you aware if same-sex relationships are being measured in that longitudinal survey?

Prof. Katherine Arnup: I'm not aware. I would doubt it, but I'm not aware. I've just recently heard of that survey.

Ms. Carolyn Bennett: I would be interested in finding out from the ministry whether or not this is being measured as they do this. If not, we could put some intervention in now such that the data gathered from now on would include that, I would hope.

One thing that keeps coming back and is debated on both sides is just the language of custody. Until we get to the point of judicial education, or even societal education, do you think it would help if we actually started to get rid of the word “custody” and started talking about “parenting arrangements”, as has happened in other jurisdictions, so there wouldn't be this sort of bone and winner-loser thing?

That's the first part of this question. Secondly, when we look at the data, people have said sometimes up to 80% in marriage breakdown settle. Would you have any help for us? Obviously we're hoping for a unified family court, we're hoping for—

An hon. member: We are?

Ms. Carolyn Bennett: —I am—early judicial intervention, we're hoping for on-site help with these things. Would you say that in marriage breakdown where one of the couple is coming out at the time, that is less likely to settle and more likely to end up in the courts with a custody battle? If so, then we would need resources much more for these sorts of situations.

Does that make any sense?

Ms. Cynthia Petersen: The question makes sense. I actually don't have any information I could draw on to say whether those situations are less likely to settle. Maybe one of the practitioners would have a better sense.

Ms. Pam MacEachern: I could speak to it. I practise family law and deal with custody and access disputes, including lesbian and gay clients on those issues.

Your first question was about the terminology of “custody” and “access”. I completely agree with you that in reality those terms are quite poor and really what we're talking about is parenting agreements and setting out...because nobody knows what “custody” and “access”...and frankly, in practice we don't use them any more.

I think the number one priority in family law is to get a quick resolution, because the longer the dispute goes on the more negative the effects for the children, because they benefit from a stable environment. In my experience, where you have a lesbian or gay parent fighting from an opposite-sex relationship, the earlier someone can go in there and make it quite clear that sexual orientation in and of itself is not a negative factor...you're going to cut through a lot of smoke and mirrors and crap that's not relevant and get to what really are the best interests of this child. I think making it very clear that going down this path of trying to argue that sexual orientation is really relevant...cutting that off at the earliest possible point really is going to facilitate early settlement and facilitate the best interests of the child.

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Ms. Carolyn Bennett: In my family practice in Ontario it was always a problem, because in adoption cases it actually had to be that the greatest strength of this person, which partly was her or his same-sex relationship, ended up having to be secret in order for them to proceed to an adoption case.

I want to know, because of all the levels of jurisdiction, how do you think the federal government can help with this problem?

Secondly, in these other situations where you've ended up with two same-sex people co-parenting a child, and in all effects those are the parents, but because of a death there is a loss of the biological parent, in effect the parent that's left then ends up fighting some battle with some other biological parent who has not been on the scene for a long time. Is there some formalization of the relationship that would help that, or is there something we could do federally to help with those situations? Whether it's marriage or trying for adoption.... I just think those are some of the ugliest things and definitely not in the best interests of the child.

Ms. Cynthia Petersen: I would agree, and I think there are many areas of federal jurisdiction where same-sex relationships could be validated in a way that would be validating for the children in those relationships. I gave one example, the Employment Insurance Act and the parental leave provisions. There's the Income Tax Act, for example.

I didn't come prepared with a list of all of the federal statutes, but to the extent that the federal government does not recognize and therefore give equal respect to same-sex relationships, it also doesn't validate those family units for the children who live in those family units, and that has concrete effects on the children.

For example, if a parent can't take parental leave because they're not recognized as a parent and they're therefore.... That may be the ideal situation. The couple that has brought that child into the world have decided that for one reason or another it's best for them if a certain parent stays home with that child, and it may be that they can't arrange that because the federal Employment Insurance Act doesn't allow it, so they have to make alternate arrangements.

There are all kinds of ways in which that can have concrete effects, but there's also the symbolic value for the children in those relationships to know that their families aren't stigmatized by law. The social prejudice is something we'll have to continue to work on, but to have that condoned by the state and to have the state not recognize those family units as equal family units is really problematic.

It's not the whole answer to your question, but I think certainly there are many areas of federal jurisdiction where we need to have that recognition of same-sex relationships and same-sex family units.

John mentioned the definition of spouse in federal statues, but there are also federal statutes where it may not be the word “spouse” that needs to be redefined, but rather the word “child” or “parent”. I would refer you to, in Ontario, for example, the provincial Family Law Act. I don't have the exact wording in front of me. Maybe somebody remembers it better than I do, but I think it says a parent is a person who has demonstrated a settled intention to treat that child as a child of his or her family—words to that effect. That's a recognition of the de facto bond between that child and parent, and that kind of recognition needs to exist at every level so that same-sex families aren't treated differently or somehow lesser than or less valid than heterosexual families.

Mr. John Fisher: The point Cynthia raises deals with eliminating explicit discrimination in the current structure of some of the statutes we're dealing with, and clearly that's a basic first step.

You also raised the prospect of taking some more proactive steps to formalize recognition of same-sex family units, among others. Of course many honourable members will be aware that there are a number of countries that have domestic partnership registries or means by which couples and families can register their family units to take on board the rights and responsibilities that have previously been accorded only to those in heterosexual relationships.

In addition, Hawaii, for example, is moving towards same-sex marriage through the courts, and that's something that I believe is being considered by some of the Scandinavian countries as well.

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So that's something certainly EGALE would encourage the government to do, to consult with the lesbian and gay communities and start looking at what proactive means can be taken to go beyond just eliminating discrimination and to actually recognize the full diversity of family relationships.

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

You mentioned Hawaii. I understood that Hawaii had in fact made a law or provision for anyone to designate anyone as their partner for the reasons of receiving support and so on. Therefore two sisters living together, or a person living with an elderly mother, or two friends who live together but don't have a sexual relationship would still be able to have access to benefits such as, I presume, bereavement leave and that type of thing.

Have you read that?

Mr. John Fisher: That's correct. In Hawaii there are two legal changes taking place simultaneously through the courts. There is a same-sex marriage challenge being fought. So far, the Hawaii Supreme Court has ruled that the lower courts needed to justify the prohibition on same-sex marriage constitutionally. The lower courts have ruled that the ban on same-sex marriage is unconstitutional. That's now being appealed back to the Hawaii Supreme Court.

Simultaneously, the state legislature has enacted legislation that looks at alternative means of relationship recognition such as partnership registries. My understanding is that those registries are available to any individuals who wish to maintain rights and responsibilities as between themselves.

EGALE's position is that, first, we believe lesbians and gays should have access to the same range of relationship choices that heterosexuals have. We recognize that there are many who want no part of the institution of marriage and feel that it's not right for their relationship, just as there are many heterosexuals who choose not to marry. That's an option that currently is denied to us.

Secondly, although our focus is on lesbian and gay relationships, the key question is one of equality, and if, in according equality to gays and lesbians, a broader range of relationships are also recognized, then of course that also is a means towards fulfilling that end.

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

Senator Cools.

Senator Anne Cools: Thank you.

I would like to thank the witnesses for coming to be with us today.

I would like to begin by noting that the issues before us are custody and access post-divorce. I understand the interest the witnesses have in some of these issues, but those are not the issues before this committee. I appreciate the positions. I've heard a lot of discussions today about surrogate parenting and adoption, but I've heard very little about the problems that face people, men and women, when they leave marriages and go out into the world as homosexuals. I've heard very little from any of you, except for a moment from Mr. MacAdam, about the problems these people face with custody and access. I wanted to make that point.

I understand that part of your political posture is that you're seeking validation for homosexual relationships in every aspect of life. That being the case, however, what I would like to learn about is the problems.

For example, Mr. MacAdam, you described a case where in that separation—and I think you said it was a mother—a woman swore out an affidavit asserting this gentleman's homosexuality in the belief—or in the hope or wish—that this fact alone would somehow or other disqualify that individual from custody or access. But I don't know the particular case.

I'd like you to wrap your minds around a couple of issues. The first one is that most custody awards are granted to women. By my reckoning, that would include a lot of lesbians. Few custody awards are granted to men. By my reckoning, that would include a lot of men who are homosexual.

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Would anybody care to address this imbalance and what we could do about it?

Ms. Pam MacEachern: I'm sure I'm stepping into a minefield, but—

Senator Anne Cools: Oh, no, you're not. I've been doing a lot of work on this.

Ms. Pam MacEachern: I think it's quite simple, really, and I think the statistics Statistics Canada has support us. By and large, women are the primary caregivers for the children. To me it makes sense that post-separation for the child, the most stable environment is going to be the one where they are in the care of the caregiver who primarily provided for them before the separation. That's how I see it. I don't see it as—

Senator Anne Cools: You don't see that in terms of your own submissions here male homosexuals are being discriminated against in accordance with what you have laid out.

Ms. Pam MacEachern: No. In fact, definitely for gay men seeking access or custody particular stereotypes may be applied against them. For lesbian mothers seeking custody and access, particular stereotypes are also going to be applied against them. We've been speaking today about how in the “best interests of the child” test a judge's perspective on common sense and what is in the best interests of the child is going to be based on their own experiences and what they are used to and to a large extent does incorporate a number of assumptions that may be based on stereotypical perceptions.

Senator Anne Cools: I understand that, but I've been around too long. The rhetoric of stereotypes doesn't cut too much ice with me. My real interest is in those men out there who are hurt, and hurt for some of these reasons Mr. MacAdam outlined. What I'm hearing you say is the primary caregiver....

You see, I don't believe there are primary care and secondary care either, just as I don't believe in words such as “inferior” and “superior” and “dominant”. I'm saying to you in the current application and operation of the law a lot of women who are leaving heterosexual marriages and becoming lesbians are getting custody of those children and a lot of those men in the exact same set of circumstances are not. I was just wondering if you had any view on that, because if we stand for equality we stand for equality, don't we?

Ms. Pam MacEachern: I guess I would just say that's not my experience. The stereotypes against lesbians and gays are not being overly applied to gay men and not being applied to lesbians. They damage us both. That's why we're asking for judicial education and a clear acknowledgement that sexual orientation in and of itself should not be a negative factor.

Senator Anne Cools: Okay.

Ms. Cynthia Petersen: I just want to be clear that when you say, for example, a lot of lesbians are getting custody of their children, my point today was not to come here and say you ought to do something to make sure lesbians and gay men get custody of their children. I'm not saying we make better parents because we're lesbian or gay and therefore we should have custody, or that if a marriage breaks down and one parent comes out that person should get custody.

All I'm trying to say is that historically—I think Professor Arnup reviewed this well in her overview of the cases—there have been instances where stereotypes have affected a judge's ruling and have disadvantaged a gay or lesbian parent in a way that's unfair and that's not in the interests of the child. Sometimes it will be in the best interests of the child to remain in the custody of a heterosexual parent after a marriage breakdown and when one of the parents comes out as gay or lesbian. I'm not suggesting that never happens. I'm only saying the sexual orientation of the parent ought not to be a factor in what constitutes the best interests of the child.

Senator Anne Cools: I've heard you, and your point is well taken, but I'm asking you to receive my point.

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Ms. Cynthia Petersen: In direct response, I would agree with Ms. MacEachern. There are stereotypes that will operate against gay men, and different stereotypes about lesbians operate equally against them. I can't say I have a survey that's been done to see whether gay men are more disadvantaged than lesbians in custody disputes. I don't know.

Senator Anne Cools: I was hoping you would wrap your mind around the real premises on which custody and access awards are actually made. I'm not trying to create difficulty for you, but it's a subject matter that I've studied quite extensively for quite some time.

I have a couple of other questions.

I read with interest your paper, Ms. Arnup. If I could put the reference on the record, the paper is entitled “Mothers Just Like Others”: Lesbians, Divorce, and Child Custody in Canada. I believe it's published in the Canadian Journal of Women and the Law, 1989, volume 3.

I observe that you make the point quite early in your paper that lesbians have never been subjected to criminal prosecution, as have male homosexuals. I'm grateful you made that point, because few people recognize and know that fact.

In reading your paper, I saw you speak a lot about lesbian mothers, but since we're speaking about women who are coming out of marriages and divorces, your paper is amazingly silent on what should be the nature of the relationship between that lesbian woman, that child, and the father, who would either be a custodial or non-custodial parent. I wonder if you could address that, because your paper is silent.

Prof. Katherine Arnup: In the paper I'm addressing issues of custody disputes where that's contested between women who come out as lesbians and their former heterosexual partners. So that's the question. It's a fight over who should get custody of the children, so for that reason I'm not addressing it. I provided that paper, although it's a bit dated, having come out in 1989—

Senator Anne Cools: Oh, is it? Okay.

Prof. Katherine Arnup: Well, dated in that it deals with all the cases up to that point. I certainly stand behind the arguments. One of the concerns of the committee was that I be able to provide something in French and English, and since it was also translated and published in French more recently, I felt it might be useful to review the cases.

In the presentation I did today as well—actually my whole presentation was on the issues of custody and access.

Senator Anne Cools: Okay. I'd like—

The Joint Chair (Senator Landon Pearson): Senator Cools, it's been more than 10 minutes and Mr. Epp has been waiting patiently. You can have—

Senator Anne Cools: Mr. Epp, could I have one question on false accusations?

Mr. Ken Epp: Okay.

Senator Anne Cools: Thank you.

Mr. MacAdam, I was very struck by the example you described, and I would submit to you that that sort of thing is very common, extremely common. It's an issue I've taken a real interest in.

Another issue I have taken a real interest in is one I would describe as parental alienation, which I can define as the fourth disengagement from the child's life with one parent by the other.

Another issue I've taken interest in, a tremendous issue, is the use of false accusations, usually of sexual abuse. Sometimes it's physical abuse, but mostly it's sexual abuse, because it is such a powerful instrument to accuse somebody of something so terrible.

So on those two issues, false accusations and parental alienation, I wonder if Mr. Fisher or Mr. MacAdam have examples of homosexual men, because the false accusations are usually made by the mothers who see an enormous advantage to obtaining sole custody by basically hurling this terrible weapon of choice.... I use the term “weapon of choice” because it came out of a particular judgment of Mr. Justice Somers, and that was the language that was used.

My question to you, Mr. MacAdam, is do you have examples in your caseloads of homosexual men who have been falsely accused by their ex-spouses—and remember, we're within the confines of divorce here—of basically sexually assaulting, sodomizing, whatever, their own children?

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It is a terrible thing for one human being to do to another. It's diabolical. It's the devil's work. It is soul-destroying for any man, homosexual or otherwise, to have such a terrible accusation hurled at them.

In your work, have you found such cases, and if you have, are there any judgments? Can you share the case law with me?

Mr. Philip MacAdam: I can't give you a reported decision, Senator Cools, but certainly yes, in the experience I've had, in fact going back to the case I was describing in my submission, the heterosexual mother was not only trying to rely upon the fact that my client is gay to deny him custody of their young son, but also she was fabricating, she was lying about my client. She was phoning the Children's Aid Society and saying, “You have to come and investigate that man”. Unfortunately, of course the Children's Aid Society has to investigate these allegations. This went on for at least a year, and there were numerous visits by the Children's Aid Society worker, who found absolutely no truth to these allegations. So these fabrications continue.

But I would really emphasize, Senator Cools, that this tendency to make those false allegations is by no means more common amongst heterosexual mothers or lesbian mothers vis-à-vis the heterosexual fathers or the gay fathers. It certainly hasn't been my experience that there's a greater tendency upon the part of mothers to fabricate this kind of evidence, by no means whatsoever.

Going back to your earlier point, I don't know whether it is statistically accurate that more women are successful in disputed custody matters than men are—it may be—but that may indeed simply correlate to the fact that traditionally and probably to a large extent even now, the women have been the primary caregivers of children, and naturally the courts are going to award custody to the parent who has been the primary caregiver, especially of a young child. They're not going to pull the child away from the parent who's been the primary caregiver. So I would present that to you as one explanation for why in fact the majority of custody disputes are probably even now resolved in favour of mothers, simply because they have been the primary caregivers.

Senator Anne Cools: Of course. Sure.

I would also share with you, Mr. MacAdam, that I have come across cases of the use of these false accusations when the mother was a lesbian and the ex was not a homosexual—he was a heterosexual—but it was such a powerful instrument. I have boxes of these cases.

Mr. Philip MacAdam: Yes, it's really—

The Joint Chair (Senator Landon Pearson): Senator Cools, we'll move to Mr. Epp now.

Mr. Ken Epp: My next question is to Ms. Petersen.

You stated that gay and lesbian relationships should be treated equally. I believe the implication is that they should be treated equally with heterosexual relationships.

Ms. Cynthia Petersen: Yes.

Mr. Ken Epp: I'd like to know what you mean by that.

Ms. Cynthia Petersen: Well, I did give a number of examples. I don't know how I can illustrate my point more clearly.

Mr. Ken Epp: Okay, then I'll be specific. Are you suggesting that in this being treated equally, they should have marriage rights?

Ms. Cynthia Petersen: I was referring specifically to situations where it might touch upon the child.

I would personally support the view already expressed by Mr. Fisher for EGALE that lesbians and gay men should have the same range of relationship options as heterosexuals, which currently, since heterosexuals have the right to marry, would include that as an option. But today, because this committee is dealing with custody and access issues, I was actually thinking more specifically of laws that might impact on children who live with a same-sex couple as their parents. So I gave the example of the Employment Insurance Act and the parental leave provision, which obviously touches the life of a child and the ability of a parent to take a leave from work, with some financial support, in order to bond with the child and provide care in the early years of the child's life.

My comment was not directed specifically at the right to marry, but if you ask me my view, my view is that lesbian and gay couples should have the same range of relationship options and legal recognition for their relationships as heterosexuals.

Mr. Ken Epp: Okay. We're dealing here with custody, and I have heard the phrase “we want to do what's in the best interests of the child”. I have heard here today in your testimony—not yours specifically, but from all of you—that one of the keys to what is best for the child is to be in a stable relationship. I am of the assumption that, if we just deal with heterosexuals here for a second, a couple that is actually married is more stable than a couple that is not.

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Ms. Cynthia Petersen: I would say that's an incorrect assumption.

Mr. Ken Epp: You would say that?

Ms. Cynthia Petersen: I would say that the social science evidence contradicts that assumption.

Mr. Ken Epp: Okay.

Ms. Cynthia Petersen: I would refer you to the the Re K. decision, where there is actually a summary of the evidence with respect to unmarried heterosexuals, married heterosexuals, and same-sex relationships, and the fact that, married or not, the stability of those relationships is the same regardless of the sexual orientation of the couple.

Mr. Ken Epp: So there's no greater stability in marriage than there is in couples just living together?

Ms. Cynthia Petersen: I think the divorce rate would suggest otherwise.

Mr. Ken Epp: Well—

Mr. John Fisher: We would say, however, that in relation to same-sex couples the state can promote discrimination and instability if it maintains active discrimination.

If lesbians and gays came from a history where we had the same range of relationship choices, I wouldn't expect that our divorce rates would be any higher or lower than those of heterosexuals. Certainly the way in which the current legislative regime actively fosters discrimination can only have a destabilizing effect. So if you're suggesting that in order to promote your own spectre of stability you'd support same-sex marriage, then perhaps we could agree on that.

Mr. Ken Epp: Okay. Fine. Let's agree on it. Now you're surprised, aren't you?

Voices: Oh, oh!

Mr. John Fisher: Actually, I am. Are you on record there as saying...? Do you speak for your party, sir?

Voices: Oh, oh!

Mr. Ken Epp: But when you talk about a stable relationship, which is best for the children, does that mean that the parents, the caregivers of that child, whether homosexual or heterosexual, should remain together? Or would it be less ideal if that relationship broke up sometime during the growing-up years of that child?

Ms. Cynthia Petersen: If I may, I will return to the Re K. decision, because again, I think it canvasses the social science evidence and the empirical data quite well. With respect to the finding of the court there, when they referred to a stable relationship, as I understand the judge, he was referring to the relationship between the child and that child's parents, not the spousal relationship.

If the family unit is stable, that's in the best interests of the child. But relationships do break down; we know that. Heterosexual relationships and lesbian relationships and gay relationships break down. If they become unhappy in their relationship, it may be that the parents have to go their separate ways, but that doesn't mean that the child can't maintain a stable relationship with both parents.

I think the important thing in what the judge was saying in Reekay is the maintaining of the stability of the child's relationship with the child's parents and, for example, if it's a gay couple, then with both men who are fathering and parenting that child. If it's a heterosexual couple who are married and divorce and the woman comes out as a lesbian, then the child can maintain its relationship with the heterosexual father as well as the lesbian mother, notwithstanding that the mother and father may no longer have a stability in their spousal relationship.

So the important thing is not to interfere with the child's relationship with both parents, assuming, of course, that is in the interests of the child and that we're not dealing with a situation, for example, where one parent has been abusing the child physically.

Mr. Ken Epp: But will you concede that the best thing for the child is to grow up in a family where mom and dad stay married together for the whole duration of the child's growing-up years?

Ms. Cynthia Petersen: It depends on the nature of that relationship. If that's a happy relationship—

Mr. Ken Epp: Yes.

Ms. Cynthia Petersen: —if there are good relationships between parents and children, then that may well be the best situation for those children within that context.

But you didn't have that aspect about being happy or where the parents get along or where their relationship is good in your example, and no, I wouldn't agree to say that a married couple staying together just because that's normal or natural or what we assume to be the best...I don't agree that's the best situation for children.

Mr. John Fisher: I think the key thing is that we can't make generalizations about what the best relationships on the planet are and what the best situations for children are. Each situation is going to be unique. There are going to be relationships that are healthy for the child, whether they're same-sex or opposite-sex relationships, and there are going to be some relationships that have extended beyond the period at which the interaction between the parents remains healthy.

For some parents, marriage will be an option that they both seek and wish to foster. For other parents and couples, it's not going to be their choice, and that doesn't make this a worse living arrangement.

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The point is, the purpose of custody and access law is to look at each unique situation and determine what's in the best interests of the child, whether it's a married heterosexual couple; an unmarried heterosexual couple; a sole mother; a heterosexual couple who themselves are not able to have children and therefore have adopted a child from somebody else or used alternative insemination or made surrogacy arrangements; a same-sex living arrangement; or whatever. The courts simply have to look at the situations and determine in each case what's best.

So I don't think we can generalize about which overall are inherently better.

The Joint Chair (Senator Landon Pearson): Mr. Epp, you're coming to the end of your second round. You can have a third one.

Mr. Ken Epp: Okay. Do you want me to quit now?

The Joint Chair (Senator Landon Pearson): One more.

Mr. Ken Epp: I'll wrap up here.

I want to get this statement really clear. When we're talking about stability of relationships, you are contending that the evidence shows that whether it is a heterosexual couple or a homosexual couple or a common-law couple or whatever, the longevity of these relationships statistically are pretty well equal across the board.

Is that what you're saying?

Ms. Cynthia Petersen: It's certainly what the judge concluded, with regard to Re K. based on the evidence presented to the judge in that case.

Mr. Ken Epp: Okay. I'd like to see that evidence, but I'll accept that.

Thank you.

Ms. Pam MacEachern: If I could just add, that evidence was a review of all of the evidence in this area over the last 50 years.

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

Ms. Carolyn Bennett: I would like to say that as a family physician, a couple's need for the white picket fence and the perception that everything is fine inside has one of the most deleterious effects on the children and produces some of the most troubled children I've seen. For that marriage to dissolve would have been in the best interests of the child.

I think we have to do everything in our power to give people permission to leave those kinds of situations. Some ongoing rhetoric around the little Good Housekeeping seal of approval around a heterosexual relationship is one of the most destructive in our society.

In all relationships, however, I think the issue of domestic violence is one of the most difficult for people to acknowledge that it's actually happening to them. Certainly in my experience it also happens in same-sex relationships.

I would like the advice of the witnesses. Because our society probably hasn't evolved, I worry that same-sex relationships maybe don't present as early, or we don't have societal permission or legal services or social services for people to get help. Maybe they would feel more at risk because of the way the judges respond and so on.

Is there something we can do to help that, to make it easier for people in same-sex relationships to be able to get help with domestic violence?

Mr. John Fisher: I'm by no means an expert on domestic violence, but of course you're right in saying that it is an issue in same-sex as well as opposite-sex relationships. I have, however, spoken with others who have told me that their fear of dealing with a system that fails to recognize same-sex relationships means that violence often passes unnoticed and underground. They're afraid to come forward and deal with the authorities if they're on the receiving end or if it's a situation within the family unit, because they fear that the institutional homophobia will mean that the situation is not responded to appropriately; equally in dealing with people at the Bias Crimes Unit in Ottawa. They deal mainly with violence at the hands of strangers, but they also deal with situations within a same-sex unit.

There is a feeling that a number of mechanisms have been developed as appropriate for dealing with domestic violence in heterosexual relationships, but there aren't currently the educational structures in place to enable the authorities to treat those in same-sex relationships with similar appropriateness.

I also think that generally within the lesbian and gay communities there is a fear of addressing the issue, producing educational materials or developing policies to address it, because the community as a whole fears this will fuel the prejudices of those who say, “See? We always told you same-sex relationships were not as stable, were prone to violence, were prone to abuse.” That drives it underground in a way that inhibits the ability of those who wish to deal with it appropriately.

• 1705

So yes, I think the more state structures there are that just recognize frankly the equal needs of those in same-sex relationships—on both the positive and the negative sides—the easier it will be to address those very real problems.

Ms. Carolyn Bennett: Especially, obviously, if there's a child in the house.

Mr. John Fisher: Absolutely.

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

Senator Mabel M. DeWare (Moncton, PC): First I'd like to apologize to the committee and to the witnesses for being late today. It was a plane problem...but we could all say that.

I'm sorry I missed your submissions, but I will read them with interest because I think this is a very important aspect of our committee hearings. We're just thrilled to pieces that you're able to be here today. I suppose our grandparents, yours and mine both, would never have dreamed that we'd be having this kind of discussion.

I was reading a report the other day about family values and what's happened with the family from 1945 to 1995. The report was produced in 1995 and described how, after the war, dad worked, mother stayed home and looked after the kids, and the average family had four members and so on and so forth. Imagine where we've come from there. I have daughters and sons and daughters-in-law and sons-in law who are all working to sustain a family. The total family structure has changed, as well as what we're talking about today. It isn't just dad working and mom looking after the household. And we—the group in this room—can all attest to that.

I didn't hear what Professor Arnup had to say about the cases. Do you know what the average age is of the children in these particular situations that we're discussing? Are they young? Are they teenagers? What's the average age of this group?

Prof. Katherine Arnup: There's a real range. It would be hard to say whether there is an average age. It's sometimes young children, but frequently teenagers as well, and obviously, then, their views would be more germane; that is, the teenagers' views as to where they would choose to be would be more germane.

Senator Mabel DeWare: Have you heard from the teenagers in those cases? Have you heard the children's views on the subject?

Prof. Katherine Arnup: When I'm talking about cases I'm talking about case reports, and there are expressions from the teenagers in the cases.

One of the important things that I was trying to argue when I was saying that I thought judges should be encouraging parents to be tolerant of one another actually goes back, I think, to something Senator Cools was referring to about parental alienation. What we often see in these cases that involve either a lesbian mother or a gay father is that the heterosexual ex-partner uses homophobic remarks against that parent and repeatedly disparages the parent in the eyes of the child. I think that is a profoundly destructive practice that needs to be actively discouraged from the bench and by anyone who's involved in the case.

If what we are concerned about is how that child is going to survive the breakdown of the marriage and maintain satisfactory relationships with both parents, then those kinds of remarks—whatever they are, but in this case they are homophobic remarks—can't be countenanced. Those kinds of remarks contribute to the difficulty children have in adjusting to a new situation. Whether they are in custody or in an access or shared parenting situation, it makes it difficult for them when they hear all the time, “your dad this, your dad that” or “your mom this, your mom that” in very nasty ways. I think that kind of practice has to be discouraged.

Senator Mabel DeWare: It certainly could have an impact on the child's decision as well.

Prof. Katherine Arnup: Very much so, and on their sense of themselves and their sense of their families.

Senator Mabel DeWare: In those cases was there mediation involved or was mediation recommended? We're concerned that the lawyers today are maybe not encouraging mediation at the beginning of the break-up of a marriage. In those cases was there mediation involved? Or do you know that? To make it smooth, not necessarily...we hope it will keep the family together, but if it's impossible.... It could smooth a relationship out or make the break-up easier and more congenial for the child. Was there mediation involved?

Prof. Katherine Arnup: It's difficult to say from the reports whether mediation is involved. I guess my response to that would be that just like we've talked about the concern people have that there might be homophobia in some of these institutions, my concern would be that whether it's social workers or mediators, we need to be sure that those people are not fostering homophobic attitudes and are not suggesting that really “the best place would be over here where the child won't be subject to discrimination”. So in the same way as we've been arguing for judicial education, we would need the education of mediators about some of the social science research that attests to the fact that there is no problem for children raised in same-sex households.

• 1710

Senator Mabel DeWare: Discrimination can be a big factor, because if you have a particular mediator set in his own judgment of whether there should be lesbian or gay parents, that could reflect on the case involved.

Prof. Katherine Arnup: That's right. That's what I think as well.

Senator Mabel DeWare: How do we say you can't do that?

Prof. Katherine Arnup: I think in the same way as we have argued that sexual orientation shouldn't be a factor in custody and access disputes before the courts, we have to say it will not be countenanced in mediation. I guess sometimes there's hesitation by advocates about the mediation process because it's a behind-closed-doors practice and we don't always know exactly what is going on there, whereas in the courts it's open and we can hear if a judge makes a remark we think is a homophobic one. It's open. It gets in the press. We notice this. In mediation that isn't as noticeable, because it's behind closed doors. I would certainly argue for education of those mediators around some of the social science data.

These data, as Cynthia Petersen has argued, are available, but not widely available. Not everybody has seen this. So people have attitudes about whether or not being raised in a same-sex household is a good thing or a bad thing or a dangerous thing. We need to get this information into the hands of those people who are dealing with these cases.

Senator Mabel DeWare: I apologize for not hearing your submission. Did you people make a recommendation to the committee?

The Joint Chair (Senator Landon Pearson): Yes, they did.

[Translation]

Ms. Diane St-Jacques (Shefford, PC): On what grounds do judges decide not to grand custody of children to a homosexual parent? Are the courts concerned about a negative psychological impact? Is that their real concern, or do they cite other grounds?

Mr. John Fisher: I will submit a brief to the committee listing cases that have been brought before the courts, along with grounds cited by the judges. You will be able to see for yourself what a wide range of grounds they cite.

[English]

The cases indicate concern that the child will not have a normal psychological development: the lesbian or gay parent may proselytise the child—I'm reading from a list here—the child will have contact with people of “abnormal tastes and proclivities”; the child may be exposed to psychological abuse; the absence of a role model of the opposite sex...lesbian and gay relationships are seen by the court as inherently unstable; and people will be exposed to others who may be a harmful influence on the child.

[Translation]

Clearly, the sole grounds cited are the best interests of the child, and no one gets beyond the stereotypes. Obviously, a great deal of education is required to convince judges that these principles must be applied equitably.

Ms. Diane St-Jacques: You know that we live in a world of perceptions. Even if we were to change the legislation, people might well hold on to their set opinions. How can we change peoples' perceptions?

Ms. Cynthia Petersen: We are all working towards changing peoples' perceptions. When we talk about custody and access, the first thing we have to do is educate judges, since the decision- making power is theirs. Yes, we do want to change everyone's perceptions, but for the moment we would say that changing judges' perceptions is the priority.

The comments Mr. Fisher made just now reminded that, when I was reading court rulings in these cases, I realized that the factor judges appeared to consider most important was not whether the mother was a lesbian or the father was gay, but whether they were actually living out of the closet. Were they members of community organizations supporting the rights of gays and lesbians? Were they openly living in a same-sex relationship within their community? Did the community know the father was gay? By living with the gay parents, would the child also be living in a household with a same-sex relationship?

• 1715

All these questions are tied in with prejudices and with the stereotype of the child's psychological development. What impact will these factors have on the child?

Frequently, there is pressure on the mother not to come out, to conceal her sexual identity, and not to discuss it with her child. To my mind, this leads to communication problems between the child and the mother, or the child and the father. Open communication with children is extremely important. This is a factor I frequently encountered.

I don't know whether this factor is as important as it used to be; in my current practice, I no longer deal with family law. However, I can tell you that until 1944—the last time I taught family law—it was an extremely important factor in court rulings. There was a lot of pressure to live in the closet.

Ms. Diane St-Jacques: Are there any statistics showing what happens to the children of couples who lived openly in a same-sex relationship and had custody of children? Are there surveys to show that they are as happy as they would be if they had lived with a happy heterosexual couple? In principle, a child who lives in a happy environment should be happy. Have children living with the same-sex couples been led to become homosexuals themselves?

Ms. Cynthia Petersen: Existing surveys were not necessarily compiled from a child custody or access standpoint. There are many family surveys in the United States, and a few in Canada and other countries. All surveys involving a lesbian mother, a lesbian couple, a gay father or a gay couple with a child were cited in the Re K decision, to which we have referred. All the surveys and research have shown that the incidence of homosexuality among children raised by gay or lesbian couples is the same as it is among children raised by heterosexual couples.

Ms. Diane St-Jacques: So it doesn't have that sort of impact.

Ms. Cynthia Petersen: A child of homosexual parents may become gay, but is not more likely to become gay than a child of heterosexual parents.

Ms. Diane St-Jacques: Thank you.

[English]

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

Senator Cools, you have the last question.

Senator Anne Cools: Thank you.

I was just struck by the essential point that I think the professor made, which is basically that somehow or other, in the face of divorce, we have to support tolerance and peace-making or moving past the divorce. I think some of the literature refers to it as post-divorce.

John Fisher mentioned the issue of domestic violence. There is so much misinformation around about domestic violence that it is mind-boggling. There's so much bogus data around, quite frankly.

I wonder if any of you—perhaps the professor might have some insight. Do you have any data on domestic violence between homosexual couples, lesbian couples? My understanding is that the highest rates of domestic violence are among lesbian couples.

Prof. Katherine Arnup: In contrast to heterosexual couples? Higher than heterosexual couples?

Senator Anne Cools: Higher than heterosexual couples.

Prof. Katherine Arnup: I've never seen any data to support that.

Senator Anne Cools: Well, I believe her name—it's at my office, but I have quite a bit of data on it. I believe a woman named Renzetti wrote a book on it. The book is called something like Violent Betrayal, or some betrayal.

Prof. Katherine Arnup: I have never seen any data to suggest that the incidence is higher.

Senator Anne Cools: I will be happy to share with you—

Prof. Katherine Arnup: I would be surprised.

Ms. Cynthia Petersen: I have read Renzetti's book and I don't recall there ever being a reference to the incidence being higher. There is an indication in that book that there is domestic violence in some lesbian relationships and the need to have that recognized and not have it obscured.

Senator Anne Cools: I can also refer you to Dr. Donald Dutton's article on patriarchy.

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

I'd like to thank the witnesses very much. You've brought up extremely well the particular dimensions of the problem you represent. Thank you for coming. Keep an eye on what we do from now on.

• 1720

• 1726

The Joint Chair (Senator Landon Pearson): Can we now resume the meeting, please?

I'd like to express some thanks to some of the people who came who are not normally here.

An hon. member: You mean they're not normal?

Some hon. members: Oh, oh!

The Joint Chair (Senator Landon Pearson): According to our regulations, we need a quorum in order to pass the budget, which is the main issue before us.

We have two reports before us. The first one emerged on March 10 and the second one from March 17 and 19.

There's a slight discrepancy, which I'll explain to Mr. Epp, who raised the question. In your fourth report, where we talked about the services of the media relations consultant, that money is not actually included in the budget. In fact, as we look at this report, we have to consider that we do not adopt that particular aspect of it. If you raise the question about whether or not we could do it ourselves, we're saying we have to.

Mr. Ken Epp: So this is a separate item then from the—

The Joint Chair (Senator Landon Pearson): It is just that it was at that particular meeting that we agreed. At the subsequent meeting we found we didn't have the money for it. We did not eliminate it at the subsequent steering committee meeting. We have to eliminate it now in the full committee.

Senator Anne Cools: I'm not following you. You're confusing me.

The Joint Chair (Senator Landon Pearson): On the fourth report, which was from the meeting we had on March 10, we had included that the committee engage the services of a media relations company.

Senator Anne Cools: So you want to disengage them.

The Joint Chair (Senator Landon Pearson): Well, we never did actually engage them, because we didn't have the budget passed, and now we don't have the budget. Even if we pass it, we don't have the money.

On the fourth report, I wish to move that you look at it as two: one, it was agreed that the committee staff be instructed to schedule the witnesses in these categories; and two, that we eliminate that thing at the bottom that talks about media relations.

An hon. member: I so move.

Senator Anne Cools: Hold on. When one is moving a vote to overturn a previous decision....

The Joint Chair (Senator Landon Pearson): No, we're not. It has never been a decision; it was a recommendation.

Senator Anne Cools: No, that was a decision that was made weeks ago on the same day that all these other decisions were made.

I just make the point that usually if one is overturning a decision that was already made, it's not....

The Joint Chair (Senator Landon Pearson): This decision was not made, to my understanding.

Senator Anne Cools: That decision was made on the day the budget.... Anyway, I'll leave it. On the day the budget was approved, many decisions were made. I think the moral in all of this is that we should take a bit more time to make decisions more wisely and prudently in the first place. Then we don't have to do this sort of thing.

The Joint Chair (Senator Landon Pearson): May we move the adoption of this report as amended?

Is everybody agreed?

Senator Anne Cools: We didn't discuss the first part of the.... You're very quick to do these things, but we didn't discuss the first part of the report.

The Joint Chair (Senator Landon Pearson): Eleni has moved it and....

Senator Anne Cools: That's when you discuss it, once it's moved.

Ms. Eleni Bakopanos (Ahuntsic, Lib.): All I'm moving is something that has been brought to our attention, Senator: the fact that we do not have the money. How can we ask for something when there's no money there? It has nothing to do with the rest of the report. What we're moving is to amend the fourth committee report to reflect reality.

The Joint Chair (Senator Landon Pearson): Which is to eliminate this.

All in favour of the report being amended that way? That's the first step.

Senator Anne Cools: The report has to be moved before us before it can be amended. Any report has to be moved before it can be amended.

• 1730

The Joint Chair (Senator Landon Pearson): Okay, Senator DeWare, you moved the report, and now Ms. Bakopanos moves the amendment.

Senator Anne Cools: And the amendment is?

Mr. Ken Epp: The amendment is to delete the last—

The Joint Chair (Senator Landon Pearson): To delete the last paragraph.

Senator Anne Cools: I would submit, Madam Chairman, this is how we got into difficulties a few weeks ago, by not proceeding properly procedurally and consensually. Anyway, go ahead.

The Joint Chair (Senator Landon Pearson): All in agreement with the amendment?

Some hon. members: Agreed.

The Joint Chair (Senator Landon Pearson): The report as amended is what is before us now. It's what Senator DeWare moved, which is simply that we schedule witnesses for hearings outside Ottawa and that witnesses be grouped under the following headings—

Senator Anne Cools: What does that mean, grouping the witnesses? Grouping witnesses under headings is of no importance or significance.

The Joint Chair (Mr. Roger Gallaway (Sarnia—Lambton, Lib.): Senator Cools, it was discussed at that meeting that we had a large number of witnesses who have requested they appear before the committee, for many of whom we were unable to identify what their particular interest might be or what their expertise might be. So it was for purposes of the staff dealing with them and talking to them about coming before the committee. They were asked to group potential witnesses or confirm witnesses under these headings so we would know what their particular approach would be to the problem; under what heading they would fall. I don't want to prejudge what their approach will be; simply under what category they would fall.

The Joint Chair (Senator Landon Pearson): Walk-on witnesses would also be permitted.

The Joint Chair (Mr. Roger Gallaway): This is not to say this is the way they are going to appear.

Senator Anne Cools: I understand what you're saying, but what do you mean by grouping them? Are you herding them into a room together? What does “grouping” mean?

The Joint Chair (Mr. Roger Gallaway): No, no—

A voice: This is not panels—

Senator Anne Cools: No, no, we didn't do that. This is not a proposal for panels. This is just categorizing witnesses.

The Joint Chair (Mr. Roger Gallaway): This is simply to identify those—

Senator Anne Cools: But she just said something different. She was saying it's for panels.

The Joint Chair (Mr. Roger Gallaway): No, it's simply to identify who these potential witnesses are or what groups they might represent, because we have such a large number, and it's growing. It's just to file them, to say here are a number of fathers' groups, here are a number of legal community-type groups. It's very difficult to identify who some of these groups are.

Senator Anne Cools: I've just noticed you have medical therapeutic groups. Where are professionals? For example, if university professors came before us, where would they be?

The Joint Chair (Mr. Roger Gallaway): They would be under medical. It's not limited to groups, Senator.

Senator Anne Cools: Okay.

The Joint Chair (Mr. Roger Gallaway): For example, I note on the Toronto list the Clarke Institute. I know what the Clarke Institute is, although I've never visited that place, but there may be others who don't.

Ms. Bennett.

Ms. Carolyn Bennett: I assume these lists are inclusive, not exclusive.

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

Ms. Carolyn Bennett: I think we could vote on it. I don't think it's up to us to micro-manage this.

The Joint Chair (Mr. Roger Gallaway): No.

Ms. Carolyn Bennett: I can't imagine anybody being turned down because they don't fit specifically—

The Joint Chair (Mr. Roger Gallaway): It was simply for administrative reasons.

Ms. Carolyn Bennett: Let's go for it.

Mr. Eric Lowther (Calgary Centre, Ref.): I have a couple of questions. Maybe this isn't the place for it, but I'm going to ask anyway. Have we already decided who is speaking under each of these headings? Is that already fixed, or are there still open slots at this point?

The Joint Chair (Mr. Roger Gallaway): There are still openings for individuals at this point.

Mr. Eric Lowther: But beyond that we're booked up.

The Joint Chair (Senator Landon Pearson): For Toronto and Montreal?

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

Mr. Eric Lowther: For the whole schedule, the one, two, and three weeks?

The Joint Chair (Mr. Roger Gallaway): No, no, just week one.

Mr. Eric Lowther: Okay. Now the second question. I see the total budget figure here. In the budget, did we set aside any funds for those groups who may not be able to appear at any of these one, two, or three weeks but may still want to address us and come here to the Hill? Is that in the budget?

The Joint Chair (Senator Landon Pearson): Yes.

Mr. Eric Lowther: Are there still openings under that category?

The Joint Chair (Mr. Roger Gallaway): There are two openings. One is to appear on the Hill. The second is videoconference.

Mr. Eric Lowther: Okay.

• 1735

Ms. Eleni Bakopanos: Are we discussing the fourth budget or the fifth budget?

The Joint Chair (Mr. Roger Gallaway): Right. We're jumping ahead of ourselves.

Ms. Eleni Bakopanos: Because we're discussing both. Can we vote on one, please?

The Joint Chair (Senator Landon Pearson): Yes. Just hold on.

Mr. Ken Epp: Before we do, I have a small concern. It's my observation that when it comes to dealing with marriage break-up, which involves then the counselling of the families involved and the children and trying to accommodate the children and look after their needs, probably no one is more involved than church groups, pastors. Where would they fit?

The Joint Chair (Senator Landon Pearson): There's nothing exclusory about this.

Mr. Ken Epp: But where would they fit in here?

The Joint Chair (Mr. Roger Gallaway): First, we have not had any identifiable church groups come forward about this.

Mr. Ken Epp: Really?

Ms. Carolyn Bennett: They could be therapeutic, maybe.

The Joint Chair (Senator Landon Pearson): May we proceed with the fourth report, please, which was moved by Senator DeWare, as amended?

(Motion as amended agreed to—See Minutes of Proceedings)

The Joint Chair (Senator Landon Pearson): All right.

In terms of the fifth report, as I think most members of the committee know, the original budget we had devised was not accepted by the House of Commons Board of Internal Economy, on which the whips and leaders of every party are represented.

Having been cut in half, we had to cut ourselves in half in terms of what we proposed. When the steering committee met, we took what we thought was the best way to deal with this particular problem. We had had the agreement that we could travel those three weeks. Regretfully, we decided we would just have to do the large cities and not break into two committees, as we'd thought, and certainly not into subcommittees, which we'd hoped.

So there we are. That's why it comes out the way it is now. We were told basically that it had to be under $500,000, total.

Madam St-Jacques.

[Translation]

Ms. Diane St-Jacques: If the budget of $500,000 is approved, could we come back later to request a supplementary envelope, as we discussed last week?

[English]

The Joint Chair (Senator Landon Pearson): It is always possible to return. We did have a discussion, because there was genuine, legitimate concern about some of the areas that might be left out, that if we felt very strongly at the end or we had a lot of demand at the end, we would go back for supplementary funding to visit a couple of the cities. Yes, we did agree with that.

Senator Anne Cools: We haven't got the first set of funding yet, so let's not visit the supplementary yet.

The Joint Chair (Senator Landon Pearson): No. She just wanted to clarify it.

Mr. Epp.

Mr. Ken Epp: I would like to know how closely the distribution in the cities is representative of the population level in these areas.

The Joint Chair (Senator Landon Pearson): It's representative of the demand we've had to appear.

Mr. Ken Epp: Oh. Okay.

The Joint Chair (Senator Landon Pearson): That's basically the way it has worked out. That's why you had three in Toronto and two in Montreal, for example.

I'm sure we would like to do more. We have budgeted some money to do some videoconferencing to be able to reach out to the north and things of that sort. That's all in the full budget.

Does somebody want to move this?

Ms. Eleni Bakopanos: I'll move it.

I believe, Senator, this was debated in the subcommittee. I don't think we should have a second debate in the full committee on what the steering committee has already debated, as far as I know how the committee works—unless we have specific questions.

The Joint Chair (Senator Landon Pearson): Okay.

Can we vote on that?

(Motion agreed to—See Minutes of Proceedings)

The Joint Chair (Senator Landon Pearson): Thank you very much. Now we'll have to go and see if they agree to give us the money.

The meeting is adjourned.