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

PREAMBLE

The Special Joint Committee of the Senate and the House of Commons on Child Custody and Access met this day at 3:30 p.m. to examine and analyze issues relating to custody and access arrangements after separation and divorce, and in particular, to assess the need for a more child-centred approach to family law policies and practices that would emphasize joint parental responsibilities and child-focused parenting arrangements based on children's needs and best interests.

Senator Landon Pearson and Mr. Roger Gallaway (Joint Chairmen) in the Chair.

EVIDENCE

[Recorded by Electronic Apparatus]

Wednesday, March 25, 1998 (OTTAWA)

• 1530

The Joint Chairman (Senator Pearson): We have several witnesses today. I would first like to welcome Professor Howard Irving from the Faculty of Social Work at the University of Toronto.

Professor Howard Irving (Faculty of Social Work, University of Toronto): In 1985, I was also invited to present before a joint committee on the same topic, so I welcome an opportunity to present once again, now having a number of more years of experience since that meeting. I will give you a little bit of background as I see the situation, and then I will offer some recommendations that may be of interest.

It is important for us to note that divorce has become, and still is, a common occurrence in Canada. The high volume of divorce cases puts a severe strain on the court system. In the past decade, the adversarial system, especially as it pertains to family law, has increasingly been brought into question. The primary thrust of this criticism has been that oftentimes the communication and compliance behaviours that are necessary if individuals are to work together as parents after they cease to be spouses are more difficult to maintain. In other words, a major difficulty of family law is that problems brought by clients are frequently not legal problems; they are deep, human problems in which the law is involved. While legal problems must be resolved, their resolution does not alleviate the human problem, and, more important for the lawyer, frequently the legal problem cannot be handled properly unless the human problem is dealt with.

As it is practised, adversarial divorce, with its stress on fault, retaliation, win and loss, has no positive benefits for the contestants. Such legal battles over interpersonal relationships do not provide a healthy or just atmosphere for divorcing couples and their children.

Lawyers are expected to act beyond their capabilities, judges must make decisions on matters outside their training, counsellors struggle with legal issues they cannot resolve, and the system is labelled unjust.

I think that probably puts the situation in context, and I will now discuss eight possible changes for your consideration.

The first issue I should like to discuss is shared responsibility of care. On the assumption of two competent parents, there is every reason in law, family dynamics, and child development to expect such responsibility to continue following separation and divorce. This is not to advocate for a rebuttable presumption of shared parenting; it is to suggest that the act should strongly affirm this notion as a first principle in preserving and protecting child welfare following separation and divorce. The current act, which merely recognizes that more than one person may technically share custody of the children of the marriage, is patently inadequate.

By extension, parents who share the responsibility of care should similarly share the responsibility for financial support of their children. Such sharing would be proportional in keeping with their respective net incomes. By contrast, the act's use of the 40 per cent rule actively, if inadvertently, interferes with the first principle set out above. It does this by attaching a financial incentive to the parents' shared responsibility of care. As it now stands, resident parents, typically mothers, are encouraged to prevent parenting involvement of the non-resident parent from exceeding 40 per cent of the time, thus making the latter wholly responsible for child support. This holds even when resident parents have higher net earnings than non-resident parents. Non- resident parents, typically fathers, are encouraged to seek greater parenting involvement, whether they really want it or are prepared for it, in order to escape the burden of sole support. I can tell you that in my practice over the last year or so, I have never had so many cases of mothers and fathers fighting around this 40 per cent rule in order to follow through on what might be in their best interests financially at the risk of not really looking at what is in the best interests of their children.

Next, I would like to discuss the language in the act. The current act is replete with language such as "custody" and "access" which reflects a bygone era in which women and children were legally chattels in the possession of the head of the household, the father. Instead, the language of the act should reflect the modern era in which all family members have rights, with both parents equal before the law. Thus, as regards the post-divorce parenting, the focus of the act should be on the formulation of parenting plans. Such plans should reflect a shared responsibility of care and assume the existence of two parenting households. Further, the act should strive to maximize the involvement of both parents in the ongoing care of the children of the marriage although circumstances may force recognition of resident and non-resident parents.

My next topic is parent education. Making arrangements to care for children following separation involves a series of important decisions. Since the consequences of these decisions may be profound, we hold that the parents making such decisions should be fully informed as to options and results. At present, that is seldom the case. Parents, most of whom are getting divorced for the first time, are expected to make these decisions while under intense emotional distress and with little or no knowledge about the law, the consequences of divorce for themselves or their children, the differences between litigation and mediation, or the availability of mediation services in their community. We hold that this is both unreasonable and irresponsible.

Instead, we suggest that divorcing parents first be introduced to such information by means of a mandatory pre-divorce parent education course that would be of short duration and provided under the auspices of the court. Several provinces now make such education available for families in dispute regarding custody and/or access. We believe such education should become part of the law, thus making it available in a standardized form to all parents in dispute across Canada. In the long run, such a preventive measure would help preserve child welfare and reduce costs.

Parent education should also be included post-divorce. Even after the parenting plans are in effect, there is no guarantee that they are going to work. Like any architect with a plan, the plan has to work, and I believe that people should have an opportunity to come back to some kind of an educational forum where they can look at their plans and see what else they might consider.

I would also suggest that in these educational programs parents be given an opportunity to know about mediation. In other words, I am not in favour of mandatory mediation; I am in favour of voluntary mediation. I am in favour of a mandatory meeting that would give people an opportunity to know what mediation is, to give them an opportunity to take it if they want to, or not, depending on what their wishes might be.

Access and funding have always been issues. When I met with a similar group a number of years ago, the committee said, "Well, we think mediation is a good thing for the right people. After an assessment is done, if the people are mediatable, we think it is great, but how are we going to finance it?" There is a big argument about whether this should be a provincial or federal issue.

It seems to me that the legal system must make this available if parents are willing to try the mediation option but are prevented from doing so because of limited financial resources. At present, mediation is available primarily in the private sector where the service is provided on a fee-for-service basis. In contrast, with a bare handful of exceptions, mediation services are not available in the public sector. People of low income are denied access to mediation and are thus forced into litigation, and even forced to represent themselves inasmuch as recent changes in the legal aid system have denied them access to counsel.

We recommend that all parents in dispute, especially those of limited financial resources, have access to public sector mediation funded in whole or in part by the state. Such funding might be supported by allocating marriage licence fees and/or a portion of fees associated with divorce petitions towards family mediation and divorce disputes.

My next topic is privileged communication. The likelihood of reaching agreement in voluntary family mediation is highest when the parents in dispute feel free to be open and frank and without the fear that their statements may come back to haunt them should they be unable to agree. Accordingly, I would recommend that the act provide, on mutual consent for those who want to have it off the record, that any communication between clients and their mediator be privileged and thus not subject to later disclosure in court. This would have the effect of giving parents in dispute the option of having closed family mediation in which neither the mediator nor his or her process notes could be subpoenaed should the parents be unable to agree and the case proceed to litigation.

Finally, as it stands now, Bill C-41 makes only passing reference to family mediation as a means of resolving custody and access disputes between parents. I have serious concerns regarding this matter and strongly urge careful consideration of the proposals. Enlightened legislation must be drafted to provide opportunities for parents in dispute to resolve their differences in the least destructive way possible. The experience over the past 15 years, coupled with a rapidly expanding research literature, is consistent with the proposals that I have mentioned.

In my last book Family Mediation: Contemporary Issues, we examined 72 empirical studies, and we reported our research. In almost every empirical study, mediation was preferred over litigation or adversarial divorce. The data and the research are there. One problem that we have now overcome is the previous problem of putting everyone into one box called "mediation." Anyone who was separating and wanted to resolve a dispute would be put into mediation. We have learned through our research not to do that and instead we have developed a feminist, informed model of mediation to ensure that there is, right at the beginning, a real assessment to ensure that if women will be disadvantaged and need to be empowered, or if there has been assault and violence, we will not recommend mediation. We would recommend counselling. We would recommend they seek whatever services there are in the community, but clearly we would not want those people to move at that stage to making agreements that may not be viable. Thank you.

The Joint Chairman (Mr. Gallaway): Thank you. Next is Professor Bailey.

Professor Martha Bailey (Faculty of Law, Queen's University): Professor Irving addressed a broad range of issues that you will be considering. I will just be focusing on mediation and its role in custody and access disputes. I think that I am the only non-mediator on the panel today. I teach at the Faculty of Law at Queen's University. I specialize in family law, and one of the areas on which I have done research and writing is family mediation. I have travelled around to various countries and talked with mediators there and seen various mediation programs. That is one reason why I am on this panel today. I think the other reason I am on the panel today is to talk about the limits of mediation. My colleagues will probably present to you the advantages of mediation; I will spend more time trying to put mediation in the context of other processes that are available, and talk about the limits of mediation.

Mediation is a dispute-resolution mechanism in which the parties try to negotiate a settlement with the assistance of a third-party facilitator called a mediator. That is a very generic description of mediation, and I think it is important to note that mediation means different things to different people.

There is no standardized process or style of mediation, and different mediators do different things. As you know, there is private mediation, there are government-funded mediation programs, and there are some government-funded mediation programs connected with courts, including the family court in Kingston where I happen to live. Mediation is not a regulated or licensed profession like law or medicine, and the norms that are disseminated in mediation and the practices of mediators are not standardized.

One thing I want to highlight at the outset is that mediation is just one dispute-resolution mechanism. There are other dispute-resolution mechanisms available for custody and access disputes, and they include negotiation, arbitration, and adjudication by the court. Most custody and access disputes are resolved by means of negotiation, some are resolved by mediation, and a few are resolved by arbitration or by court adjudication.

In addition to these dispute-resolution mechanisms, I think it is important to keep in mind that other measures are available to facilitate the settlement of custody and access disputes. For example, there are assessments by an expert, such as a psychologist, a psychiatrist, a social worker, or another professional with expertise in custody and access issues. An assessment can often lead the parties to a settlement in accordance with the recommendations of the assessment.

Another example of a measure that often leads to settlement is something that Professor Irving mentioned: parental education programs. Parental education programs which are, as Professor Irving mentioned, available in some places may contribute to settlements that take into account the needs and the interests of children, and these programs, I think, are promising. They are still being assessed and we are just starting to see the evaluations of these programs, but I agree with Professor Irving that these are something that we should consider adopting.

Mediation, in my view, is a helpful dispute-resolution mechanism for many parents who are having disputes about custody and access issues, but it is only one process among others and it is not going to be helpful for every family with a custody and access dispute.

I agree with Professor Irving that mediation should not be mandatory. It is mandatory in some jurisdictions, and I recommend that we not take that approach. Mediation is not helpful or appropriate in several situations. First, in my view, mediation is not helpful or appropriate where the parties do not want to mediate. Judge Rosalie Abella, as she then was, pointed out that mediation is a useful process but that it should not be compulsory because, as she said, bargaining involves a voluntary subjugation of a party to the possibility that he or she may be persuaded to reduce demands and settle for less. Unless a party is willing to enter into discussions freely, it is difficult to see how agreement is possible.

I think it is a good idea to tell parties about available mediation services and about the advantages and the disadvantages of mediation and other dispute- resolution mechanisms.

I recommend that parties be given that information when they have custody and access disputes so that they can make an informed choice about whether they want to pursue mediation. If the parties do not want to mediate after being informed, they should not be forced to do so.

Another situation where mediation is not appropriate is where the parties do not need it because they are perfectly able to settle their dispute themselves. Most parties now do negotiate a settlement of their custody and access disputes. I believe that with the additional support of parental education programs, which provide a standardized package of information about legal norms and about the implications of various custody and access arrangements for children, they will be further helped in the process of negotiating a settlement of their custody and access dispute.

There are many parties who do not require the higher level of intervention that mediation represents. They are able to settle their disputes in a way that serves the best interests of their children, with a lower level of intervention, so mediation is not required or appropriate there.

Another situation where mediation is not appropriate is where there is a serious inequality of bargaining power between the parties. It is difficult for the weaker party to reach a fair settlement without an advocate. Many mediators include advocates - lawyers — in mediation; so the parties can bring their lawyer with them to mediation. If the parties can do this, if they are satisfied that their interests are being protected, and if they want to proceed with mediation, that is fine, of course, but I would not want to mandate anyone to use mediation if they have concerns in that regard.

Another situation where mediation is usually inappropriate is in situations of violence. Mediation is usually inappropriate in such cases because of the inequality of bargaining power in abusive relationships and because of the ongoing risk of additional abuse during the mediation process. Safeguards can be put in place that may be satisfactory to the victim of abuse, and if those safeguards are in place and the victim of abuse wishes to proceed, then I would not say that should not happen, but, again, I would not want to mandate mediation for cases of that kind.

Another situation where mediation is inappropriate is where settlement is unlikely and mediation is being used by one of the parties simply to delay the proceedings. I was talking with a friend of mine at the children's lawyer's office in Toronto yesterday who is involved in a case like that at the moment. He is concerned about the misuse of mediation just to slow things down in a case where apparently settlement seems extremely unlikely.

In my view, mediation is a helpful dispute-resolution mechanism. It can assist parties to reach a settlement that is in the best interests of the child. I echo Professor Irving's recommendation that mediation services be made available at all family courts. Mediation is not the only process of dispute resolution. Other processes are more appropriate in some cases, and we should give attention to those other mechanisms. Mediation should be available but should not be mandatory. Mediation is a voluntary process and we should not distort it by making it into a mandatory process.

The other point I wish to make is that mediation is not a substitute for legal advice or legal representation. Mediators do not advise or represent either party, that is not their role, and mediation services are not a substitute for legal aid for example.

Mediation may help some families achieve better settlements that are satisfactory to both parties and that protect the interests of the children. Claims are often made about mediation as a cost-saving measure and, in my view, those claims need to be examined very carefully. I think some of them are unfounded. If we are looking to mediation of custody and access disputes as a cost-saving measure, we will probably be disappointed. As [TSoC1]Gwynn Davis said this past September in a talk on Britain's new, publicly-funded mediation scheme, savings are probably not an issue, as it is most unlikely that there will be measurable savings.[TSoC2] I agree with that opinion in the Canadian context as well.

The final point I wish to make is that mediation does not and cannot eliminate the pain and problems that children experience as a result of parental divorce and separation. I do not think any mediators claim that it does, but I do not think that we can exaggerate the importance of a dispute-resolution mechanism in somehow alleviating the problems and pain that are caused for children by divorce. Those problems and that pain will continue on regardless of the dispute-resolution mechanism that is used. Mediation may alleviate them in some cases, and that is just great if it does, but it will not eliminate them.

Dr. Barbara Landau (Individual Presentation): I will just give you a very brief synopsis of who I am. I wish to thank the previous speakers for not only their clarity but for their excellent ideas. You will hear some concepts repeated, and perhaps that will be helpful because you will know where we agree.

I am a psychologist, a family law lawyer and a mediator. I am president of my company, called Cooperative Solutions, which suggests I spend most of my time mediating. I was at one point the senior psychologist at the Family Court Clinic in the 1970s. After that, I went to law school and got my Masters of Law, working on children's law reform. Over the last 25 years, I have mediated hundreds of cases of family breakdown, and have performed hundreds of custody assessments. I have mediated multi-generational conflicts, grandparent issues, and have also applied the mediation process to young offender and child welfare issues.

I am a past president of the Ontario Association for Family Mediation, and have been involved in many organizations at an executive level. I will not bore you with any of that. I teach family mediation and I have done so for about 15 years. I teach both basic and advanced family mediation as well as generic mediation, and I have done so in a number of countries. I have actually submitted a brief biography so I will not say anything more about that.

I too welcome the opportunity to comment on possible amendments to the Divorce Act, as this is one of the most significant pieces of legislation affecting family members at a time of crisis in their lives. We are all members of families. That is what we have in common. Since this event will touch one- third to one-half of first marriages, and a higher percentage of second marriages, and since children of divorce are more likely themselves to divorce or never marry, this issue merits very serious consideration.

Today the focus is on the process that should be followed when couples divorce. I sent in a larger, broader submission, but I will focus my remarks today on the process.

It is helpful to put this issue into a psychological context. On a scale of life stresses, divorce is usually ranked second, just behind death of a spouse. Based on my experience, divorce should be ranked first because society has many healing rituals for death. We honour people who die, and family, friends and neighbours rally around the survivors. When divorce occurs, however, society offers no healing rituals. Instead, we dishonour the parties through an adversarial process that requires couples to prepare affidavits that publicly humiliate each other. Family members, friends and neighbours are pressured to take sides, causing permanent rifts, and children are treated as scarce resources to be divided up like chattels. Since the adversarial process heightens tensions, undermines trust and discourages constructive communication between parents, it is clearly not a process of first choice, especially when young children are involved.

In my opinion, the primary value of a mediated approach to conflict resolution is its power to repair or at least to do a minimum of damage to relationships that must continue with some degree of cooperation and mutual respect. This fits the objective of most family cases far more closely than the adversarial model. Perhaps the strongest argument in favour of mediation in family cases is that separation and divorce are not primarily legal events; at least not to the participants. For the parties, family breakdown is about lost self-esteem, broken trust, emotional loss and economic fears. For the children, it is about loss of security, stability, closeness and fears for their future. While a legal structure and remedies are needed to provide guidelines and enforcement, the best outcome for the long-term adjustment of all family members is an agreement, that is a parenting plan and a financial settlement that both parents think is fair and workable and that meets the emotional, social and economic needs of the children. When these agreements are worked out in mediation, my experience over more than 25 years, and the research, suggest that they are more likely to be carried out.

With respect to the sort of historical perspective, the changes established in the 1985 Divorce Act form an important base to build on when considering desirable amendments in 1998. The legislative intent in 1985 was to focus on the best interests of children, to encourage the involvement of both parents, and to offer families a less adversarial process, namely mediation, for resolving disputes over custody. The 1985 legislation requires lawyers to inform clients about mediation for resolving both custody and access issues, as well as financial disputes, although the compliance with this requirement leaves considerable room for improvement.

I must say just as an aside that, when I went to law school 20 years ago, I was taught that divorce was part of civil procedure. However, my observations have convinced me that there is nothing civil about divorce. The challenge that faces you is how to make civility a real possibility.

While some of the objectives I have mentioned were achieved, Canadian legislation needs a different focus if it is to address the concerns raised in the divorce research and to join the growing trend in many countries toward better protecting the needs of children. What I am suggesting, and this is fundamental to my recommendations, is a philosophical shift, a shift to the perspective of the child's experience with the divorce. That is, instead of a focus on what each parent hopes to win, the law should focus on what each parent has to offer to their children, that is, on their parenting responsibilities.

There are two principal ways in which this focus can be achieved. The first is mandatory parent education programs, on which I think we will all agree. At least I am assuming that. The second is mediation for those couples for whom it is appropriate. I will discuss each in turn and then talk about when mediation is and is not appropriate. In a brief presentation, it is difficult to give much in the way of practical details about implementation but I will be glad to answer any questions.

First, with respect to parent education, I think that these programs should be mandated at an early stage in the divorce process. They help to prepare parents for whatever process a couple chooses, including mediation. These programs offer an opportunity to prevent some of the psychological damage to children created by their parents' response to the decision to separate. Such programs have already proven to be very successful in more than 40 jurisdictions in the United States. They are already available in Alberta and Manitoba. Similar programs are presently being implemented in Ontario, Quebec, British Columbia, and New Brunswick.

At least they are well under way. With respect to parent education programs, I recommend that all couples who have children under 18 and who are contesting their parenting arrangements be required to attend two educational sessions on different days at the earliest opportunity, for example, within 30 to 45 days of filing for an interim motion or a divorce, or earlier if possible. That is before adversarial steps are taken in their case. Exceptions can certainly be made for emergencies or in cases of abuse or neglect.

The first session should offer information on family law and alternatives for resolving disputes. People need to be informed consumers. This session would also be useful for those without children or with older children, just to have some information about what is available to them.

The second session would deal with the impact of separation and divorce on parents and children, on communication skills and constructive ideas for parenting post-divorce. It would orient parents to the mediation process and introduce the concept of parenting plans. This second session might also be useful for couples who are not contesting children's issues, and they could be encouraged to attend voluntarily. The fact that they are not contesting the children's issues is not a guarantee that they are aware of the impact of divorce on their children or of ways to minimize emotional harm.

Couples should be divided into high- and low-conflict groups for these sessions, especially for the second session. Couples should not attend together. They should be given somewhat different information based on their different circumstances. This has already been done successfully in Manitoba and Massachusetts, and is being considered in British Columbia and New Brunswick. For example, those in the high-conflict group could receive information about how to avoid continuing conflict between parents, particularly where children might witness the conflict or where there is a possibility of violence directed at either an adult or a child.

The issue of parent alienation could be discussed in the hope of preventing this problem when safety of the children is not a factor. Safety planning and resources for violence prevention or reduction could be addressed. For this group, parenting plans would benefit from greater structure and clarity to avoid misunderstandings, and exchanges of children should occur without face-to-face parental contact if this is possible. That is for the high-conflict group.

For the low-conflict group, they could hear more about the possibilities for cooperation and sharing of parenting responsibilities post-divorce and post- mediation. There are a number of options for funding these programs but there is not time to deal with that now. We could perhaps talk about that at another point.

Regarding mediation, for those who have not yet had the pleasure of participating in a mediation process, let me describe what I mean by mediation. Family mediation is a process which involves the use of an impartial facilitator to assist the parties in reaching a voluntary agreement that the parties think is fair and that meets their needs. Unlike a judge or arbitrator, the mediator does not make decisions for the parties. Instead, he or she uses communication skills to facilitate the negotiations between family members. The aim is to find a win-win outcome, especially for children, rather than a win-lose result that is characteristic of both litigation and arbitration.

All appropriate couples should be required, in my opinion, to meet on one occasion with a mediator to decide whether this process would be helpful. The requirement to attend could include — and here I agree with many of the comments of Professor Bailey — parents who cannot agree on the responsibilities of raising a child, or if they have reached agreement and then do not follow through on carrying out these responsibilities.

There should be some way for older children who are unhappy to trigger a review. For example, if a parent is failing to visit or if the arrangements that the parents have worked out are not acceptable to an older child, they should be able to initiate a mediation process.

I want to say something about domestic violence. I have been the chair of the domestic violence committees of both the Ontario Association for Family Mediation and the Academy of Family Mediators, which is a large U.S.-based international mediation association. I care a lot about this topic. Not all couples are appropriate for mediation. Prior screening by a trained mediator is essential.

Domestic violence is often a factor, particularly at the time of separation. For mediation to be effective, participants need to be able to raise concerns and present proposals that meet their needs, or the children's needs, without fear of reprisal. They need to be informed as to their rights and responsibilities and the necessity to reach a voluntary settlement, that is, without duress. Both parties need to understand that the other has legitimate interests and be able to establish trust that the other is participating in good faith. Where there has been violence, these criteria may not be met by one or both parties. Therefore, in cases of violence or fear of violence, the report of the Toronto Forum on Women Abuse, which I included in my materials, and the domestic violence policies of the Ontario Association for Family Mediation and the National Council of Juvenile and Family Court Judges, all agree that there should be a rebuttable presumption against mediation. This presumption can be rebutted if the victims or survivors of abuse request mediation and the mediation is offered in a specialized manner which protects the victim's or survivor's safety, by a mediator who has been trained in domestic violence.

To determine who is appropriate and who may be at risk, it is essential to screen both parties for their capacity to participate. In doubtful cases, alternatives need to be discussed and available. This means that all those offering mediation, especially in the context of a mandatory model, need to have specialized training in screening for domestic violence, specialized procedures and safe termination when mediation is not appropriate.

I am not suggesting mandatory mediation. I agree with Professor Irving that a single meeting among appropriate couples to discuss the possibility would be helpful.

Let me talk for a minute about alternatives when mediation is not appropriate. By the way, I just want to mention that I did include the abuse policy from OAFM in the materials also. Once clients have met with mediators, subsequent sessions should be voluntary. Particularly where violence is an issue, clients need to have legal representation provided free of charge or at a reduced rate if necessary. We need shelters or, preferably, a law similar to what I believe is in place in Wisconsin, where abusers are removed from the matrimonial home and women and children — assuming it is the woman who is the victim of abuse — are allowed to stay.

Also, there is a need for supervised access centres, counselling services, anger management and violence prevention programs available to both parties.

We need alcohol- and drug-rehabilitation programs for parents as well as for children of divorced parents. Where mediation is not appropriate, I agree that custody assessments should be performed by a competent mental health professional, or arbitration may be an effective process.

I wish to mention parenting plans. This is an important issue. For appropriate families, mediation is particularly useful for developing parenting plans that identify how the parents will carry out their caretaking responsibilities rather than arguing over parental rights. For example, the mediation process assists the parents to clarify who will take the children to their doctor, dentist and other appointments, and to extracurricular activities and friend's birthday parties, rather than having the parents fighting about a custodial label.

The mediator encourages parents to discuss issues such as ongoing decision- making, communication, and the involvement of extended family members such as grandparents, aunts, uncles and cousins. As part of the mediation process, parents are encouraged to consider a process for dealing with potentially difficult issues that may arise in the future, such as mobility and the appearance of new partners. Unlike the adversarial system that reaches a fixed result, like a snapshot at one point in time, the parenting-plan approach encourages parents to consider what would be appropriate at different stages of development.

Clearly, a plan that would provide stability for an infant is not the same as the plan that would benefit a school-aged child and is different from a plan that would suit a teenager. Mediation lays the framework for communication and change. Where the couple are able to behave maturely and in their children's bests interests, they do not need to use the court system to make reasonable adjustments over time.

Mediation is helpful for parents who are able to cooperate but have never experienced a separation and are not sure of the best way to be helpful to their children or to do the least damage. It is also helpful for couples who are highly emotional but not abusive — parents that are in the grieving stages where they are depleted in their parenting ability and need someone to help them focus on their children's interests separate from their own. This is also where it might be helpful for parent alienation.

In addition, mediation is helpful to borderline families who needs assistance — I call this "hurdle help" — to identify their children's special needs and find community resources to assist them with the problems that are exacerbated by separation or that might be overlooked because of the separation. This is a great assistance in prevention. The court system is a far less appropriate arena for doing this. I suggest that mediation should take place at an early stage, for example, within 30 days of attending the parent education sessions, but I will not get into details of that.

Mediator qualifications are important. There should be standards for mediators offering these services. Most of the provincial associations do have standards. Family Mediation Canada is currently working on a process for certifying mediators. I will not go into details about that at this time, however.

There should also be ongoing research to evaluate the extent to which the needs of the public and, in particular, children are being met by the mediation process.

In conclusion, my suggestions are offered in the hope that the Divorce Act will establish the needs and perspective of children as the principal focus. To meet these needs, the act should require attendance at parent education and, where appropriate, at mediation. The aim should be to work out parenting plans that clarify parenting responsibilities and offer children a less damaging and more respectful approach to the crisis of family breakdown.

The Joint Chair (Senator Pearson): Our final presentations are from Bernice Shaposnick and Philip Shaposnick.

Mrs. Bernice Shaposnick (Individual Presentation): Let me tell you a bit about ourselves. Philip and I have been married for 35 years. We are one of the few couple mediators who have been able to sustain and maintain in this business in North America. It is a very difficult business because what you face you are also sometimes living. It is not easy.

We have come here this afternoon to you to bring you a list of questions and we will leave you with those questions.

We are a team. Philip is a lawyer; I am a social worker. Throughout the years, we began to look at why there were so many problems in the court. Why were the cases taking so much time? Why were they stalled and not moving?

We ask you this question: Where there has been a relationship between a couple, now experiencing serious differences, do you believe that they will be motivated to act or to make choices more by laws, by rights, by obligations and by logical thinking, or will they act as a result of emotions such as anger, fear, jealousy, hate, love? When we began to consider that question, we realized that what was happening in the legal system - which we both absolutely believe must be there - is that there were beginning to be a lot of issues, which we call "issues under the table," that were never dealt with in court or by the lawyers. One of the ways to begin to deal with them was in mediation.

We do not get easy cases. I wish we did. Unfortunately, we get very difficult, conflictual cases. With some, we succeed; with some others, we succeed partially and we return them to the court. We began to look under the table. As we were teaching the courses to lawyers — and we have been doing this for years — we said, "You must start looking under the table. If you do not want to do mediation you can do litigation, but you must look to see what is happening. If you do not know what is going on, you will misjudge situations and your clients will keep coming back and you will never be able to close those files." We work very much to look at what the forces are under the table in order to begin to deal with these situations. We are leaving you with that question.

The second question that we bring to you is: Are the guidelines for child support resulting in a lower standard of living in some households?

We are from Quebec, so the guidelines are a little bit different from the federal ones. We began to notice that there was a difference in the standard of living and the life-style for the child. We started to question a lot of the judges. Some judges said, "We are just following the guidelines." Others said to us, "In terms of custody, we are looking at the whole package.

"We have decided that when we work with our clients, we would not just use the guidelines. We are using the whole court package — that is, we are looking at income and expenses — to see where the difference is in the life-style and how the couple will begin to deal with it, because the guidelines are not sufficient.

We leave you with that question.

Mr. Philip Shaposnick (Individual Presentation): We appreciate the invitation to appear here today. I feel like the two-man team at the Academy Awards who said, "In 20 seconds we cannot touch all the bases.

"I would love to debate some of the issues and suggestions that were made, but I will continue on the framework that Bernice has outlined, which is raising questions that you might want to ask as you are travelling around and meeting with people.

One of the things that has been that reported to us — although we have not seen it ourselves — is that the current laws emphasize contribution in terms of money.

There are some situations where, due to cultural factors, a father who is to receive money or contributions in money from mother, is reluctant to accept the money. The problem with that is that it affects the standard of life for the children in the family. It is a mistake to oversimplify through legislation what people are supposed to do, or to create presumptions because you forget that each family is different. You cannot put people who have emotional relationships into a Procrustean bed and make them fit guidelines or respond to presumptions.

Our concern, as mediators, is the well-being of the children. The parents are often too entangled in their emotional problems. There is a heavy layer of emotion in every divorce, even if it is not contested. If it is contested, it is hell. The more vigorously contested, the hotter the hell is for the participants. The children get caught up in it.

Unfortunately, we spend a lot of time providing highly conflictual couples the kind of education that you see in the educational programs, regarding their responsibilities as parents to their children, as that issue is sometimes lost in the emotional overlay.

Perceiving the problem in terms of law or money oversimplifies the situation. We are concerned that the children's quality of life, the lifestyle in the home, may diminish as a result of some cultural factors. I raise this through the door of certain fathers who do not wish to take money from mother, whereas they would be very happy to take other kinds of parental contribution from the other parent. If it is only defined in terms of money, the children may lose out. How will you deal with that if your perspective is merely legislation? Legislation has limitations and it really is a problem. I say that as a lawyer. I am aware of it.

Dr. Landau mentioned that lawyers must sign a certificate that they have informed their clients about the availability of mediation. Mrs. Shaposnick and I have given the basic mediation training course to over a thousand lawyers. We begin by asking them to define what mediation is. These are practising lawyers who have signed many of these certificates, and many cannot define at the beginning of the mediation course what mediation is. That is shocking.

However, I also know from experience that many lawyers say to their clients, "You know that there is mediation and family counselling, but you and I agree that it is not suited in your case." Then they sign the certificate that they have told their client about mediation. That is within the bounds of the legislation.

Where fathers have a desire and the time and resources to care for children for greater periods of time, are some prevented from doing so because of older perceptions of gender roles? We are concerned about the dangers of trying to address the change in the culture and the change in women's roles from what they were in the past, but also the change in men's roles.

Many young married men are parenting. The problem we foresee, if you create presumptions one way or another, is that you will probably create problems because of a presumption that a presumption can be made. What we are suggesting is that each family must be looked at as a separate unit without having to struggle against presumptions, which can change.

The same way that I presumed that my mother would be at home, I do not presume that my daughter-in-law will be at home. As a matter of fact, my daughter-in- law, my daughter and my son are all lawyers. I do not know who is at home now that there is a grandchild on the way. However, they will have to deal with that. My presumptions do not apply any more. If you put presumptions into the law, you may face the inability to respond quickly to changes in culture.

What you must try to emphasize is that children's needs change, which for us is the most important issue. Their needs change as a function of age and of gender.

Adolescent males need to have a bonding relationship with a male role model, preferably their father. Is that the same for a one-year-old child, a six- month-old child of either gender? I would defer to Dr. Landau. Our experience from the literature is that the needs are very different and that they change over time.

What we must be careful about is whose needs are being addressed when you are talking about custody and access. Is it the need of the parent or the need of the child that you are concerned about?

I should like to refer to a book called The Custody Revolution, by Dr. Warshak[TSoC3]. He indicates that custody has nothing to do with the gender of the parent. He cites several poor reasons for seeking custody: First, to extract a better financial settlement; second, to avoid paying child support payments; third, to force the other spouse to stay in the marriage; fourth, to have more contact with the other spouse after the divorce; fifth, to punish the other spouse; sixth, to prove worth to the world; seventh, to alleviate guilt about the divorce; and eighth, to relieve loneliness.

We are presently involved with a case where mother has agreed to cede custody to the father because she thinks it is in the best interests of the children: since the parents are too conflictual, the kids will be better off if they live with father and they can see the mother whenever they wish. Something like that can be legislated. However, she will not give up the dog. I suspect it has to do with that last reason. Everyone loves the dog. They will not accept an arbitration type of decision on that, that they each get half the dog. I have suggested it and I did not get a good response.

The final question I should like to pose is: Can mediation have a therapeutic effect even if mediation is not therapy? I should like to address that through a case. I will try to do it in two minutes.

Parents who are highly conflictual present themselves in our office for the first mediation session. In getting some background information, we find out that a nine-year-old son, we will call him Jimmy, is presenting serious ritualistic behaviour. It has been labelled by one doctor who saw him as obsessive-compulsive; it has been labelled by others as simply being the stress of this highly conflictual divorce. This child is rubbing and washing his hands all the time, and he will not touch anyone he loves. He is very eager to touch his teachers, but he will not touch his parents or his siblings because he feels that he will contaminate anyone he touches.

The therapist part of our mediation team does some parent education in the first session to sensitize the parents to the probability that this little boy is absorbing much of the blame and responsibility, because nine-year-olds tend to feel that way when there is a divorce.

That night father was taking the kids to dinner. We suggested that father bring the children back to the house and, in their presence, together with mother, tell the children that the parents have agreed that they are going to try to work, through mediation, to reach agreements about the result of their ending their marriage. They are not going to be husband and wife, but they have agreed that they are going to be parents. They have agreed that they are going to be there for their children.

They have agreed that their children are going to see a lot of their father, and they want their children's help in setting out a schedule because the adolescent child was causing a lot of conflict by not sticking to a schedule, and the parents ended up fighting. We ask the parents to tell that boy that they had agreed that he will see his father every second weekend from this time to that time, and if he wanted to make any changes, he would have to work it out with his father and then father will then inform mother. We suggested they not discuss it any further with the children because the parents were very conflictual, but that they should let them know that.

In the next session, the father told us that in the car coming back from the restaurant, he told the kids that he and the mother had made some agreements and that he was going back to the house in order to discuss the agreements with the mother. He said he immediately saw those symptoms of ritualistic behaviour disappear. We have not seen them another time.

I do not expect that this is a cure, but mediation, rather than an adversarial approach to the breakup of the parents' relationship, has a much more dramatic effect on the behaviour and the well being of the children. If there is any question about supporting it, I think that kind of anecdote addresses it.

In Quebec, we have made an information session mandatory — not mediation, but an information session. The parents do not have to attend together. If they do not want to go on with mediation after they have had the information session, they do not have to. If they want to opt out, they can. They do not have to opt in to mediation. However, if they do not go to the information session without later on explaining to the judge why, they may be penalized by having to pay costs. That little lever is there.

Certification in Quebec is unique, I think, in North America. Quebec has legislated certification of family mediators. Only people from five different professions — lawyers, notaries, who are real estate lawyers basically, title attorneys, psychologists, social workers and guidance counsellors — can become mediators. There is a program for becoming certified. After they follow the program, they have to be supervised through 10 cases by an experienced supervisor. Bernice is a supervisor.

I have opted not to supervise because, as a lawyer, I was never supervised. I do not feel that I really understand supervision, nor do I have the same kind of understanding about the forces under the table, as Bernice put it. Since she is working mainly with lawyers, we feel that her skills in supervising will be much more helpful. Hence, there is a way of certifying mediators and limiting the practice in the family area where it is so critical to have not only the legal training but the ability to deal with the emotional and social aspects of divorce.

Senator Jessiman: I wish to deal with the regulations or laws surrounding mediators. Is this a provincial law, and is it in every province?

Mr. Shaposnick: As far as I know, Quebec is the only province in North America, but I stand to be corrected.

Mr. Irving: Family Mediation Canada received a grant from the Canadian Department of Justice for $150,000 to implement standards and certification, which they are undertaking at this moment.

Senator Jessiman: Would that apply to all provinces?

Mr. Irving: Right across the country, yes.

Ms Landau: Most provinces have standards, but they do not have a certification process. They have requirements for a certain amount of training. They have a requirement that you adhere to a code of conduct. They have requirements that you undergo a certain number of hours of supervision and that you submit a certain number of mediation agreements to ensure that they meet certain standards. They have a number of processes in place, but we are now trying to tighten the standards and actually certify mediators. It is a difficult process because mediation is a skill. It is not just a body of knowledge. You cannot just answer a few questions on a test, spell "mediation" and then be able to mediate.

Mr. Shaposnick: The difference in Quebec is that it is law. In the United States, they have the Academy of Family Mediators, which has been certifying for a long time, for over 10 years.

Ms Landau: Most provinces initially modelled their standards after the Academy of Family Mediators. It is a voluntary process, but you cannot become a practising mediator within the organization unless you have met their standards.

Mr. Shaposnick: You should understand clearly that that is only within the Family Mediation Canada organization. In other provinces, a chiropractor, an accountant or anyone — a butcher — can simply practise mediation without any controls.

Senator Jessiman: If an individual wanted to engage someone who advertises as a mediator, could they go to a particular place to and find out whether the mediator complies with certain standards?

Ms Landau: Yes, they could, because Family Mediation Canada has an office and a register of mediators who have met the standards of a practitioner.

Senator Jessiman: Notwithstanding that there is an association and a register, that does not prevent others from practising at the moment?

Ms Landau: That is true.

Senator Jessiman: Mr. Irving, you are from Toronto. Ontario does not, as yet, have its own guidelines, does it?

Mr. Irving: They have guidelines.

Senator Jessiman: Are they federal guidelines?

Mr. Irving: Yes.

Senator Jessiman: I am sure you are familiar with the guidelines. Your first two recommendations certainly do not take into account the sharing of income. The guidelines, as you know, state that if you are the winner, you get custody. You are the custodial parent. Then the guidelines specify that the courts must look to the non-custodial parent's income, and that is it. It is usually the father, and he pays X number of dollars.

I know that Quebec's guidelines are different. I am not sure I understand the federal guidelines completely, but I am convinced that they are close to what Quebec does. However, the non-custodial parents who have written to me and talked to me cannot understand why they do not take into account both incomes. Are you suggesting that such sharing would be proportional in keeping with their respective net incomes?

Mr. Irving: That is what we had with the Paris formula.

Senator Jessiman: You agree with that. Is that what you are recommending we should go back to?

Mr. Irving: Maybe guidelines would work, but under the present structure, if you are the non-custodial parent and you see your child 40 per cent of the time, then there is a sharing of the income.

Senator Jessiman: I had something to do with that, along with Senator Cools.

Mr. Irving: You can imagine what that does. The fight, then, is not over the best interests of the child; it is over an economic issue.

Senator Jessiman: Let me explain how it came about.

The last provision before that was put in was that before there would be any recognition whatsoever to the non-custodial parent, they had to have at least 50 per cent of the time overnight with the children. That meant that the non- custodial parent could have 100 per cent of the time during the day, take the child home every night, and he would be looking after the children really 100 per cent of the time, because when they are asleep you do not consider that parenting time. That is how the 40 per cent came in.

Some people have suggested to me that at least it has encouraged some of the fathers to see their children more often. I know of a professional person who literally has his children three days and three nights a week, and the custodial parent has four nights a week. He tells me that if you work the mathematics out, that is over 40 per cent, and he and his wife and the children are happy about it.

Mr. Irving: It could discourage an angry custodial parent from wanting the non- custodial parent to be involved 40 per cent of the time. All I am saying is that it is not the right place to have that kind of a financial attachment to a parenting issue.

Senator Jessiman: Your suggestion, and I agree with it, is that they share. It is different from when we were married. These new fathers now change diapers and look after the children. They do just as much parenting as the female. The female and the male are working; they are sharing.

Mr. Irving: I agree with that. I think we need to take a different look at the whole concept. For example, I would suggest to you that there is a real parental bond or parental covenant, if I can use a religious term here, and that that bond should not be separated lightly. When you start by saying "custodial", "non-custodial", you imply ownership of that child.

No one owns their children. We do not want to own their children. However, the law, the way it is worded, is forcing people into this win-lose scenario.

Senator Jessiman: Someone talked about every second weekend. What if you had them two nights a week or two days a week every week, and every second weekend full time? They are truly parenting. The children have their own bedrooms. They are not staying overnight on Tuesdays and Thursdays, but they are just taken home and they go to bed. Is that shared parenting?

Mr. Irving: I do not think it should be looked at in terms of this notion of primary caregiver. In fact, that notion bothers me. Many fathers and mothers decided at the time they were married, before they had children, that one would be an at-home parent and the other one would be the working parent outside the home. That was their decision and it was mutual.

Senator Jessiman: That was the way things happened in my day, but I can tell you that it does not happen today with my children.

Mr. Irving: The point is that there is a decision made between the parents. Is it right after marriage to punish a parent because they cannot get the frequency in terms of the hours or minutes spent with a child when in fact he or she — the gender does not matter — may have a very close emotional bond with that child? I would advocate for the quality of the relationship and not the frequency of the minutes and the hours some people are counting. They want to count it, and I think lawyers and judges like it because it makes the decision much easier for them. They come in and say, "How much time have you spent with this child?" That is the primary caregiver issue, and it is not right, in my view. It should be the quality of that relationship.

Mr. Shaposnick: When people come to us, we ask them to not use the word "custody". We say what we think is important is that you tell us when you are available to be with your children. With this 40 per cent business, because it has a financial implication, they fight over hours and minutes.

In Quebec, many of judges, on their own, will not count a day unless it is an overnight, so they are not getting into this half-day or out for dinner business. What we want to know is when you are available, as mother and father, for your kids. Let us look at it. Then let us look at what the kids need and what they do, when they go skating or when they go to ballet. We put that up in front of them on charts. Then we get them to match who is available to take the son to hockey — although that is not gender-true any more — who is available to take the child to hockey, and who is available to go to the ballet lessons.

Senator Jessiman: Parenting cannot mean when they are at school or sleeping.

Mr. Shaposnick: It may mean taking them to school. We had one arrangement where the only time father was available was at 7 o'clock in the morning. He was a lawyer. He worked until 11 o'clock at night., When he did that exercise of availability, he was available from 7:00 to 8:30 for breakfast. He picked up his kid at 7:00 in the morning, three or four mornings a week, and had breakfast with him. Now, can you put that into legislation? That is when he was available. Trying to put it in terms of dollars and a percentage of time is not serving the interests of the children. Somehow we have to be able to measure the willingness, readiness, and availability of parents to be with their children.

Ms Landau: While there were wonderful intentions in passing that 40 per cent rule, it has caused enormous difficulty. All my mediations are now skewed because of the 40 per cent rule. People come in now and just want to do a bean count. They want to know whether they have achieved the number of minutes that will reduce their child support payments. This causes the other parent to distrust their motive for wanting to be with the child. It has really done a lot of harm. Women who are also working and who would normally be appreciative of the father's involvement are now less willing to say yes to the time involvement that the father is willing to offer because they are concerned that his intention is really financial. In some cases, it is a financial.

I am dealing right now with a case where the father wants custody 40 per cent of the time, but he leaves for work at six in the morning and comes home at six at night or later. He is out of town three days a week. She is wanting to encourage his involvement, but we are talking about a four year-old and a two year-old. His plan is to hire a live-in baby-sitter so that the baby-sitter will be there so he can achieve the 40 per cent rule. That does not make sense. She thinks he is a fine father and should be involved whenever he can.

This 40 per cent concept has skewed every mediation I have had this year. We should focus on parenting plans that are developmentally appropriate, and we should encourage parents to provide financially for their children as they both are able to do and provide care as they both are able to do.

Senator Cools: The issue of the 40 per cent rule is a pretty clear question, one to which we remain committed. There seems to be some confusion. The issue of 40 per cent is very narrow within section 26 of the Divorce Act on the guidelines. I hate to remind people of the fact, but the guidelines are about nothing other than finances.

Mrs. Shaposnick: But they have a great impact.

Senator Cools: I agree, but the guidelines are only about finances, and nothing else. The guidelines are not about custody or access.

Ms Landau: But they are.

Senator Cools: We know them very well. We had astounding and stunning testimony yesterday from one of the individuals on whom the government largely relied to get the guidelines passed. Yesterday that person told us that the guidelines are not working, that they are too complex, and that they are too difficult. The government told the committee that the guidelines were needed to simplify everything, and now it is a bigger mess than it was before.

I wanted to make that point because this committee is looking at access and custody, and you were raising the particular issue of the child support guidelines. Let us not kid ourselves. The guidelines are about one thing, and one thing only, which is basically to get income from one parent to the other, and no other reason.

Ms Landau: Could I just say something?

Senator Cools: We worked on this, but one of the reasons the guidelines will continue to be problematic is not because an individual over here wants to get some financial benefit but the fact that that individual has to have a bedroom and whatever else for their children when they come to stay. The fundamental issue remains the fact that the guidelines are not properly based on the income of both parents, and that is going to remain an issue that will require resolution at some time. I submit to you that if both incomes were taken into consideration, you would find that the statements you just made, about one being suspicious of the other because they want the child 40 per cent of the time, will be reduced. Those guidelines should have been based on the incomes of both parents. We battled that one very hard. It says very clearly that the guidelines shall be based on the principle that spouses have a joint financial obligation to maintain the children of the marriage in accordance with their abilities, and so on. Despite the fact that is there, it is still not happening. I submit that what you are seeing now creeping in to your mediation disputes — and they are all disputes because that is why people go to mediation — is the fact that some people are beginning to say, "We want both incomes looked at." You should know they were not our guidelines. I did not like them and I still do not like them, but that is beside the point.

I should like to go on to the issue of custody and access.

The Joint Chairman (Mr. Gallaway): Do you wish the witness to respond, senator?

Senator Cools: I should like to move to Dr. Irving's question.

The Joint Chairman (Mr. Gallaway): I think that was more a comment than a question.

Senator Cools: I always have many of questions.

I totally support your sentiments about the so-called presumption of primary care-givers. It was very interesting. This concept is being tossed around here as if it is in the law. In point of fact, it is not in the law. It has never been in the Divorce Act, and I do not see much chance of it getting in, but that is beside the point. It is now the position of certain ideologues, but I would like to tell you that those same ideologues, many years ago — and you would know because you are a professor, such as Dr. Margaret Mead — used to talk about that inherent bond between the mother and the child. You will remember that the famous anthropologist, Margaret Mead, talked about this invocation of the special bond between mother and child as oppressive. That was that brand of feminism at that point in time. I would like to quote Dr. Mead. I read her works. She said, in her article entitled "Some Theoretical Considerations on the Problem of Mother-Child Separation":

This ... is a new and subtle form of antifeminism in which men — under the guise of exalting the importance of maternity — are tying women more tightly to their children than has been thought necessary since the invention of bottle feeding and baby carriages.

I just put that out to you to show you how that concept was rejected by the feminists some years ago now and has transformed itself and is coming back in a new form.

Dr. Irving talked about domestic abuse. To all of you people who are mediators, my question is: How do you determine a victim of abuse?

I read to you a case I just happen to have with me right here because I have been busy working on some notes for a speech tomorrow. The name of the case is Metzner v. Metzner, a case of the use of false allegations of domestic violence. Here is a case where he was accused by her.

Ms Bennett: Could you ask your question? We have this very valuable panel here, senator, please.

Senator Cools: The question is: How do mediators deal with these situations? They said they have this position on victims of abuse. How do they make the determination that a person is a victim or perpetrator of abuse? How is that determination made by people who are professionals counselling individuals, because the issue is so fraught?

Mr. Irving: I will try to answer it.

A protocol has been developed. It came out of a committee in Washington. We have looked at it. Professor Bailey will know about it. It lists a series of questions that you ask each of the partners - individually, not together, by the way. The way it is done is very interesting. You ask questions in a way to normalize the violence. In other words, you might ask, "Has your partner ever hit you, bitten you, kicked you, punished your animals?" You ask questions that you never would have asked prior to this. In a way, it is to get the victim and the perpetrator to talk about it. I think the underlying point is that we do not mediate when there is this kind of violence and abuse.

Senator Cools: Do you mean ongoing or past?

The Joint Chairman (Mr. Gallaway): Could he be allowed to answer the question?

Mr. Irving: What we do, which I think is critical here, is not bring them to the point where they are working on an agreement, but we will refer them to an appropriate place in the community so they can work around anger management and abuse and what to do before they go into mediation. I think that is really the key. I think the panel will agree we will not mediate when there is problem.

You asked how we determine it. We do an assessment individually, to the best of our ability, to get as much information as we can to make the determination. It is true that sometimes people will fall through this screen, but we try very hard to set up a very tight screening process.

Senator Cools: That is very re-assuring.

Mr. Shaposnick: During the supervision after they have received the basic training, there is emphasis on looking for that.

I will give you another indicator that probably will not appear in questionnaires: the red line around the neck. We teach our students to ask questions that might be irritating: "How did you fight? How did you argue?" You begin to watch the body language of each party. The victim inevitably, in our experience, will turn inward. The other party will show signs of tension, possibly aggression and anger, and we watch for that red line.

Senator Cools: You have indicators.

Mr. Shaposnick: You have to be trained to watch for these signals. It is subtle and it can be difficult. The difficult part is that many victims will do their utmost to hide it. It is not self-evident, so you have to go looking for it.

Mr. Forseth: I am looking at that paper by Dr. Landau. At the end there is a nice statement that says:

While I recognize that the provinces are responsible for the administration of justice, the Divorce Act establishes the framework and sets the national standards to guide each of the provinces and territories. The Divorce Act is a powerful tool that could be used to improve the outcomes for everyone who is affected by divorce, and in particular the children.

The mandate of this committee is really to focus in on children's needs. I would like some short, sharp answers from perhaps all the presenters today about looking at possible legislative changes that somehow could de-escalate the emotional levels of the struggle. In fact, someone today used the term "hot as hell," and I know that sometimes it is that. I have been a divorce mediator myself in another life. I would like to hear from you about legislative changes in the Divorce Act in view of this nice summary statement by Dr. Landau.

Mr. Shaposnick: Professor Irving has said the language in the legislation presumes that there is an assumption that it will be adversarial, that there will be a win-lose, that someone will get the child and the other will not get the child, and that there will be a payer and a payee. Our laws and our culture seem to set us up. This beloved institution is set up that way. We are having the same problem in our constitutional debates. Everything is adversarial. If we begin to look the needs of the children when we are talking the legislation and about custody and access, we will see a very different kind of language. We do not use the word "custody". I have said it. We do not allow the parents to talk about custody. We talk about the needs of the kids.

Mr. Forseth: Would anyone else have something to add?

Mr. Irving: A couple of sessions of mandatory parent education, as they do in some provinces — especially at the beginning when people are in such an emotional state that they run off to their legal technicians and get into a heightened area of conflict — will help defuse what the system is doing today. They should make a pitch for the opportunity to mediate.

In my view, it is invaluable for people to get into a self-determining situation about their own children. I do not think they want anyone up on high, whether it be a judge, a social worker or a psychologist, making decisions for them about their own children. The parents themselves should be given the first opportunity to sit down with a third party and try to resolve the situation, but we do not do that today. The statement is perfunctory the way it is in the Divorce Act. Some will mention it, some will not. Some will do it under their breath — who knows. The point is we need something a little more substantial to say that there is a value to having an opportunity to sit down as concerned parents to come up with a parenting plan that will be in the best interests of the whole family, not just the children and not just the adults.

Ms Landau: When parents face a separation, an enormous number of fears come out. The fear of losing a connection with a child is a powerful one, of no longer being important and not having an influence. Those kinds of fears are not helped by a court process, and they are not helped by language in the Divorce Act that suggests win-lose, that you get some and others get less.

What is helpful is we should be encouraging more counselling services for people to deal with their feelings at an early level so that they have not only the parent education, but that both men and women - and I wish I could get more men to accept counselling - can talk about their grieving and their feelings of loss. Mediation can help them focus on what they can contribute to their children.

What I find very early in the mediation process is that parents are considerably reassured by the fact that we will talk about how they can contribute. I brought an outline of the kinds of items in a parenting plan, but what you see in separation agreements are a bunch of labels. When I went to law school, there was a custodial label and the non-custodial parent would get generous access, whatever that meant. It meant that they could fight for the next 20 years about the meaning of "frequent" and "generous".

As mediators, we take them through how they will continue to parent in two homes. For example, what are the kinds of specific day-to-day things involved in being a parent, and how can both of them participate in that to the extent that they are available, willing and reasonable parents? I want to always start with that baseline so we are sure that safety comes first. It is a very reassuring process and one that ends up with what I call a road map for the parents to follow when they are at a difficult, emotional point in their lives.

I agree with you totally, Mr. Forseth, that they, at a point where they are very focused on their own needs, are very focused on feeling afraid of loss and worried about the future and what it will mean economically and in every other way. They are afraid of loneliness and everything else. At that point, a process that reassures them that they can make a positive contribution and maintain a connection is a good and healthy approach.

There will be a need for some resources.

I know I said the wrong word. We do not let parents say the "C" word, and we are not allowed to say the "R" word.

Mr. Forseth: I have heard that sure, it is fine to change the nomenclature and the climate of the language, but in the end that does not fundamentally affect human nature and the nature of the contest. For instance, the presumptive joint custody rule of California did not change the underlying issues. Changing the language may have helped marginally, but really it does not.

Ms Landau: I agree. It makes a positive contribution but it does not solve everything. Changing the language is not enough. We need to do more.

When we talk about what one will be able to do on an ongoing parental basis, I wish to mention one more important thing. The law is a one-point-in-time snapshot, as opposed to seeing the fact that children develop over time. What is an appropriate plan for an infant is not an appropriate plan for a school age or an adolescent child. Mediation holds out some future focus when people are very much tied into their present pain. Simply changing the language is not enough.

What I want to do in my process — and I think probably the other mediators at the table will want to do this — is get parents to see themselves as being on the same side of the table, trying to focus on how they can best offer what they have available to the child, as opposed to being opposed to each other, fighting over a piece of the action.

Mrs. Shaposnick: Changing language is important, but I think something else must be done, and that is going back to law school. Having taught so many lawyers and supervised so many lawyers, they indicated that if only they had been taught some of this in law school, they would have approached certain cases differently. In other words, I do not know that it would be so adversarial. I know it is important to have the adversarial process, but there are different ways of managing it. I would like to see more of that in the law schools, and we are not seeing it. I think it starts there.

Ms Bailey: ADR is being taught in law schools. Certainly in my family law course, family mediation is talked about extensively. The obligations of the lawyer under section 9(2) draw their clients' attention to mediation facilities. Certainly it is something my students know, and they are tested on it. They all leave the classroom with that information. Increasingly you will see in law schools across Canada — perhaps not all and perhaps not for senior lawyers who graduated some years ago — information being given on mediation and ADR mechanisms. There is a real demand for it from students. We have four ADR courses and they all fill up quickly.

I wanted to go back to your original question, Mr. Forseth. I agree with Professor Irving's point that parental education programs are a way to address any potential hostilities between the parents. We can look at a number of different models. The evaluations of those programs are now coming out, and we can get good information on those various models and make an informed choice. That is an opportunity to teach parents who do not already know what appropriate arrangements are available for children.

For many parents, that level of intervention is enough, but for other parents they need more. Part of that standardized package of parental education should be information about mediation services, the advantages, the disadvantages, and about other dispute resolution processes that may be helpful to them.

Mr. Lowther: Professor Irving, I was tracking along with you step in step until you began talking about the black box of mediation. We were treating it like that for a while, and then you realized there needed to be some sort of front end to deal with violence and that did not fit through the black box any more. Can you clarify?

Mr. Irving: The black box used to be that whenever we had a referral from a lawyer a self-referral to mediate, we would mediate. Recently we have come up with very good assessment techniques to ensure that the people who come in are mediateable. We want people on a level playing field. We do not want anyone disadvantaged in the process.

From our experience and research, we now say that not everyone is a candidate for mediation. Some people should be in litigation and some people should be some place else. That is what I meant. We are being more discerning about who gets into mediation.

Mr. Lowther: How do you determine that? Is there a questionnaire, as referred to by Senator Cools? Are you in the violence mode?

Mr. Irving: I will push my book and Dr. Landau's book. There are now six textbooks out in Canada which get at different ways of developing the screening process to know the issues involved and to know the kind of people and their profiles. Research studies show which profiles look mediate-able and which do not. That is what we are talking about.

Ms Landau: In my practice, we do screening in about four different ways as a minimum. The first happens when a client calls in. My assistant has been trained. She has gone through my two-day domestic violence course. She does a preliminary screening. At the next level, I send out an intake questionnaire to the couple separately. If they are living together, they have to fill it out in a separate place and time. The third level involves a meeting with the lawyers without the clients. I do not include lawyers in the room, but I do include lawyers at a first meeting. I screen with the lawyers present. The fourth level is to meet with the lawyers individually for screening. A number of tools are out there which have been researched.

Mr. Lowther: The main thrust of my question is the recognition that mediation is not a panacea. It does not work in all cases. You have some credible techniques to determine candidates for mediation. Professor Bailey pointed out some of the other options. What do we do with the people who fall out of mediation?

This is the rub here. We have people present to us and we feel good about the 80 per cent, or whatever the number is, who fit this solution. The cases that come to my office are the ones that do not fit mediation. We have a child who is not getting access to one parent. The child is in the middle and mediation will not work.

I would like to hear more about the adjudication side. One father's situation was referenced here. He had repeatedly gone to court and was told he should get access but could not effect the order. Finally the judge ruled the custodial parent had to go to jail. We have had all kinds of chagrin about that and how awful that was, yet the child did go to the non-custodial parent for care.

There is some suggestion that if you will not honour the courts' rulings, you risk losing custody. That may not be in the best interests of the child, so mediation is raised again; but we have closed the mediation door on these cases. These cases have fallen outside. What kind of proposals do you have in those kinds of arenas?

Ms Bailey: You are raising the difficult problem of access enforcement. Some jurisdictions — for example, Florida — have introduced mandatory parental education programs for people who do not comply with access orders. There is a gradual stepping-up of the measures. It is education first. There can be community service. You gradually step up the sanctions against parents who do not comply with access orders. Of course, the ultimate sanction is the one that was imposed in the case you referenced, being jail.

When cases are so seriously conflicting, in the end one might have to go to the most serious step, which is imprisonment. Courts have been reluctant to take that ultimate step because usually imprisonment of the custodial parent is not in the best interests of the child. However, at some point, if we operate on the assumption, as we must, that the original access order was in the best interests of the child, then a custodial parent who is not complying with that order is doing something which is not in the best interests of the child. Therefore, at some point, you weigh the temporary loss of the custodial parent by imprisonment against the detrimental effect on the child of not being granted access. At some point it may be in the best interests of the child to impose that ultimate sanction.

Mr. Lowther: Would not a better and earlier solution be to reverse the role — and I hate to use the word — of the custodial parent? If a parent cannot seem to function in the best interests of the child, perhaps we should change the arrangement rather than put someone in jail.

Ms Bailey: That is one thing that courts sometimes do, but again the test is always what is in the best interests of the child. In some cases, even though a custodial parent is not complying with an access order, it is still in the best interests of the child, having weighed the possibilities, to remain in that custodial parent's care. In my view it is inappropriate to use a transfer of custody as punishment for not complying with an access order. In some cases I agree that it will be in the best interests of the child to transfer custody, but not in all cases.

Mr. Lowther: Someone mentioned the statistics on the number of marital break- ups we have in the country. When people go through this mediation cycle in the pre-separation, pre-divorce stage, and when they see the impact on their children of what they are planning to do, is there ever a side benefit where people decide they may be better served to stick this thing out?

Mr. Irving: I talked about the black box. The black box is also for people who should not be in mediation because they should be trying to reconcile their differences. I do not think there is a mediator who would not first attempt to see if they are reconcilable. I would never advocate for divorce. You have to advocate for what is best for the family and make sure they know there are other options for them other than mediation.

The statistics today say about 10 per cent of the people who go to mediation end up reconciling, but you would think that would be the least likely group to reconcile.

Mr. Lowther: That must be in the best interests of the children. That must be our first priority.

Mr. Irving: And it is usually.

Senator Jessiman: Regarding the woman who was jailed, there were 22 contempt- of-court charges before she was put there. We have changed the law now about payment. If they do not pay, we can put them in jail, but before we resort to that, we might take away their driver's licence or their passport. If the custodial parent refuses to give access, would it not be reasonable that they face those actions before we start putting them in jail? Would it not seem reasonable?

Ms Bailey: I agree with you absolutely. In my view, putting someone in jail is absolutely the final sanction. It is usually not appropriate and it is usually not in the best interests of the child.

Other measures such as fines can also compromise the best interests of the child, but we need a broader menu of options and we need to improve our performance in access enforcement.

Senator Jessiman: Sanctions such as revoking drivers licences and passports were put into the act for non-payment, so why should they not be put into the act for non-access?

Senator DeWare: The reason for this committee being formed was that when we were dealing with the Divorce Act and looking at support for children, the people who appeared before the committee wanted to talk about custody and access. We had to keep saying to them, "I am sorry, but that is not what we are dealing with in this bill." Consequently, this committee was formed.

You talk about custody. We said that we did not like that word. We did talk about parenting and trying to find another word. The problem is that "custody" is used in laws everywhere. That information was given to me.

Ms Landau: It is changing in England and in Australia, for example.

Senator DeWare: That is what we want, namely, a change. They did not feel it was proper at this time to change it, but we were interested in that.

What I am hearing from you gives me hope because we are talking about parenting education rather than mediation. In the access part of the act, the complaints were, "We are paying but we cannot have access. We are being declined access. I went to pick up my child at school on Monday morning as usual and he was not there. The teacher called and he was sick that day." When the parent got to talk to the child he said, "Mommy said that I could not go." The point is that the child could not go because mommy did not want the father to pick him up. We have heard these stories over and over again. I am sure you are all familiar with them.

Mrs. Shaposnick: I return to what I said at the beginning. We must start looking at what is happening under the table and start asking the questions that must be asked in order to get the information as to whether you can work with a particular couple and whether access will be available to the other parent. If you do not ask the questions and you stay on a legal basis, you cannot move. You must be prepared to ask some very difficult and significant access questions. It has worked with us.

Mr. Lowther raised a question, namely, what do you do if mediation does not work? What are your other alternatives? We have brought lawyers into our room without their clients and put them on what we call a love seat. It is hard to sit on a love seat, but if you are to mediate, you must work together. We put the lawyers on the love seat and we said, "What can you do together — not in an adversarial way — to help this couple move in the direction that would be best for the children?" It worked.

Senator DeWare: I am pleased to hear that. I think everything you are saying is correct about what will happen from now on, but what will we do about the cases out there that will not be fixed and those who are struggling for access? I think we are heading in the right direction, but what will we do about the leftovers?

Mr. Irving: One of the venues that has not been stressed today is the notion of supervised access. I do not like the term but I like what it does. It takes conflictual people who are no longer mediateable and puts them in a position where they can see their children. You do not have to deny contact between parents and children because a professional is there to supervise that kind of access and relationship until they are ready to move on. It is not a bad way to get people to learn how to parent properly and get along with each other so that they can then remove this supervision.

Mr. Shaposnick: Looking under the table is something that judges can be not only encouraged but also trained to do. We try to understand why a parent will not allow visits to happen. There is always a reason. Why do they not agree? If you ask the right questions, you will find out.

Judges are not being given enough resources in their training to understand family systems and dynamics enough to be able to ask the right questions. They can ask them in Quebec. Often lawyers are called into chambers and the judge will ask: "What is going on? Why are these people behaving like animals? What is the problem?" Judges will also sometimes call the parties in with their lawyers. Unfortunately, it is now being done by native ability — that is, the instinct of the judge. Some judges are good at it, some are not. The judges are not being given, in the judicial institute, enough resources to be able to get trained in this area and to know where to look under the table and what questions to ask. For example, why are the blocks there? If resources can be directed not only to educating the parents but also to educating the jurists — that is, the lawyers and the judges — you will find a change. Professor Bailey said that the younger lawyers are getting this kind of training.

My own experience, until I stopped pleading, was that the younger lawyers were the most ferocious, adversarial animals in the legal system.

Senator DeWare: They play a big role because they are the ones who can say that you need mediation, parenting and so on. If they do not do that, then our couples are in trouble.

Ms Landau: I really appreciate the pain parents feel when they are denied access. What is ideal for children is to have an easy and loving relationship with both parents. Where you do not have that, it is reasonable to have a sanction down the road for individuals who are intractable, incorrigible and who for no good reason are unwilling to allow access. I do not think the Criminal Code is a suitable way to do it.

I like the incremental idea that Ms Bailey and others talked about. Where parent education has not been effective and mediation has not been effective, you should think of custody assessment. Someone should be sent off to a mental health professional with expertise to ask the appropriate questions. Training judges is a good idea, but we want to ask why access is being denied. In some cases, there are real fears for safety. In some cases it means the parent is feeling intimidated. In some cases their self-esteem has been damaged and they are angry and resentful. For example, they may have found out about an infidelity in the marriage, and they are punishing the other parent. There are many reasons, but if we have a one-size-fits-all solution, we may be endangering children. It may be that the kind of access being requested is one where one parent has anxieties for an infant child being with the other parent who has not participated in the care of an infant, and they want parenting education to happen first. I find a lot of these cases are resolved when you ask good questions. You then need the ability to make recommendations that are taken seriously.

Those recommendations can include a number of options. I worry that the child's needs must be the first consideration. Let us assume that there is an unreasonable reason for permitting access, knowing that this will be the last time we ever use the words "custody" and "access". You still must deal with the impact on the child of forcing a change. I have seen children where I absolutely felt sympathy, and I felt a parent were very disturbed and dysfunctional. The mother was disturbed and dysfunctional, and there was no good reason for denying access. Still, the child might feel very traumatized at that point. Maybe they have not seen the parent for a period of time. Maybe they have been told terrible things about the other parent. They need some time to like the supervised access idea. They need some time to develop the comfort level with the other parent.

The ultimate sanction is already in the Divorce Act, and that is section 16(10). It states that the judge needs to consider who will provide maximum contact with the other parent that is in the best interests of the child when considering who should be the custodial parent. The ultimate sanction is that if you are totally unreasonable and none of the other things work, maybe the child should be gradually accommodated to living with the other parent.

Ms Bennett: I enjoyed this panel very much because I felt there was much consensus both in what I heard and what I read in your briefs. As we continue to sit, the problems become evident. It is wonderful to have panels that put toward solutions. We are hearing themes around resources, education and language. It is wonderful to hear that people of your calibre obviously agree. It makes it easier for us.

It was interesting to hear that 10 per cent of marital disputes will be reconciled, which then makes me think that to not offer this to people is a real disadvantage to couples coming to a perceived end of a marriage or relationship.

You have said that sometimes will lawyers say, "Mediation will not work for you." This is the same way I feel as a family physician where patients are rebooked for their second caesarean section saying, "Of course, you wouldn't qualify for a vaginal birth after a caesarean." We know, in our powerful position as professionals, that we can spin things in a way that sometimes is not in the best interests of the client.

With respect to the education of lawyers, are lawyers frightened of mediators? What is happening that we are seeing this backlash? Everyone seems to see it as common sense. If we had the resources, would we not want mediators in every court house? Would we not want not only a mandatory information session, but a mandatory session to see what can be done?

Could you address the radical feminist perspective that mediation is always bad for women because there is always a power differential that will favour the male? This is something I have not experienced in my practice, but something one still hears out there.

The other question I had was in terms of what other people call early judicial intervention. I was surprised that lowly family physicians were not included in your list as people who could be trained as mediators.

If guidance teachers are just teachers with some special courses, can we not apply this to mediation? I wonder why it is an exclusive list as opposed to an inclusive list. Anyone who wanted to do this could obviously be trained. I was wondering why Quebec made that decision.

I am delighted to see this consensus around the language of custody. We obviously must move on from that with a presumption that there is some responsibility for parenting from the day the child is born, and then we move on with to a plan to achieve that.

Ms Landau: My courses have all sorts of people. I love the diversity in the courses. Most people who attend them have some mental health, law, accounting or clergy background, but not everyone. Some people have worked as probation officers, or they may have done some kind of community or humanitarian service. I have many people who are doing employment assistance work. I have many people who have been in helping roles. I have many people from school boards. All of those professions are there.

I wish we could get more doctors in because not only would they be useful as mediators, they would be useful as an early warning system. People tell their doctor when they are in difficulty or when they have all kinds of physical complaints that are not physical. Doctors could be an early warning mechanism and get people ready at an earlier level.

Ms Bennett: Mr. Shaposnick said the reason a social worker may be a better mediator trainer than a lawyer is because of the experience of supervision or having experienced it. When we train psychotherapists, they all need to have therapy to find out what their own blind spots are.

Some people become prenatal educators because they had a terrible birth experience and will now need to do this forever. Ten years later, they figure out that is why they have been doing it. How do you weed out the people who come with an agenda?

Mrs. Shaposnick: Are you referring to supervision?

Ms Bennett: I am referring to the training and certification of a mediator.

Mrs. Shaposnick: In Quebec, we are clear. They have limited certain professions, and I do not know the reason. I do not have the answer to that.

Ms Bennett: How do you make ongoing evaluations? How do you find out if people are good or not? Is it a free market scenario? Should there be a college or some sort of professional ongoing training or evaluation?

Mrs. Shaposnick: There is ongoing training and supervision in Quebec. The people I supervise are only lawyers. Some of them have said to me, "When we are through with the mandatory supervision, we want to continue with you." It is very helpful for them, not only in their mediation cases but in their legal cases as well.

Obviously it has been a helpful tool. I wish to emphasize that there are other supervisors who belong to other professions. They could be lawyers or psychologists.

Ms Bennett: Once someone is listed with Family Mediation Canada, that is it. Does it also work as a Better Business Bureau? Is the professional responsibility and accountability done through legal bodies?

Mrs. Shaposnick: The reason those five professions in Quebec were chosen was that they all could go back to the professional corporation to issue their complaints to that professional corporation. It could have worked for the doctors too. I do not know why.

Mr. Shaposnick: I can answer why it was limited to five. It is very early in the field. Mediation is new. The Government in Quebec was not sure what it was all about.

I will leap to your other question and bridge it. The bar has a love-hate relationship with mediation. I would be fascinated by a Senate committee study into this issue.

The bar in Quebec for the last 13 years has issued positive statements about mediation. The ugliest meeting that I have ever attended as a lawyer was of the family lawyers association. The government was proposing a bill to make mediation obligatory for one session of information. I have never sat in a room with so many angry lawyers, and I tried to understand why there was so much anger. What was under the table, aside from the fact that they were all saying they had to protect the client's rights?

Well, that was the stuff on the table. Under the table, I suspect it had to do with a fear that there would be not a balancing of power. People need lawyers to be able to negotiate good agreements, and they could not do it without lawyers. Doctors will not be able to help them in mediation because there are so many rights issues and financial issues. It must be lawyers. Lawyers should be the only ones doing mediation, if it is going to be done.

I also suspect there is a question of loss of control by the client and loss of finances.

Senator DeWare: Underline that.

Mr. Shaposnick: That is under the table. What is driving the force is that it is not easy to talk about openly. The bar, itself, has always favoured mediation.

Ms Landau: I agree with that. Lawyers are our best supporters and our best detractors.

In my practice, and according to the code of conduct of every mediation association provincially and federally, there is a requirement that parents be strongly advised to get independent legal advice. We are all told to put in our retainer contracts that one must get independent legal advice. I think lawyers are afraid, but I think their fear is not necessarily grounded. I strongly advise everyone get independent advice. I am sure all these people do.

My first meeting is with the lawyers. If both individuals are represented, my first meeting is without the client. I find if the clients are present, the lawyers posture and are very unhelpful. I want the lawyers there.

We then divide up our roles. I say: "Can you do what you are best trained to do? Can you get your financial disclosure ready? Can you help advise people on their rights and send them back to mediation well prepared?"

I do not want the mediators in the room while people negotiate because so much of family mediation is about emotion. When the lawyers are in the room, they get very positional. They behave as if they were in a courtroom, and they lobby the mediator. They speak on behalf of their clients. I encourage the clients to see their lawyers between sessions, if necessary, to get further advice.

At the end of the process, I do not ever let the clients sign anything in my office. I send the memorandum of understanding off to the lawyer and ask that the lawyer call the client in and review it to make sure that all legal rights have been protected. Then it is signed in the lawyer's office.

One of the reasons I have the first meeting with the lawyers is to say, "Let us be partners." Again, I am lining everyone up on the same side of the table, as you have done here. No one is an adversary. I ask them how we can form a team to help this family through. Maybe we need to add other members to the team, such as an impartial accountant for sessions that involve high-level financial issues, or perhaps we need to involve councillors. Maybe people need emotional counselling with their GP or a therapist in order to be ready to deal with issues around parent alienation, or whatever. I say, "Let us meet again in a month when you have had a chance to do some of those things."

We need to convince people that families in this crisis need a number of resources to help them through, and we each have a role to play.

The lawyers are totally grateful for not receiving 400 pink slips a day from their clients. "Do you know he fed them hot dogs?" or "Do you know he was 15 minutes late at the hockey arena?" They cannot deal with that; they do not want to deal with it; and their lives are made much simpler.

I have an increasing number of lawyers coming to my mediation courses addressing the financial concern. If they are afraid they are going to lose out financially, then they will come to be mediators.

Many family lawyers are burned out. They are not proud of the results at the end of the day. They win big and then they lose for everyone.

I practised family law for three years because the lawyers told me I had to understand the process. I took my medicine. I did it and it was terrible because I could not bear to serve affidavits on people.

In my first case, the husband had thrown the woman out without any clothes or money. He had been physically abusive; he had been verbally abusive. He was using drugs and alcohol and doing all kinds of things. When I saw this, I said "Wow, I am going to win." He was a transvestite. We had everything. I said, "I am going to win and he is going to lose." I wrote out an affidavit. However, in taking my lawyer hat off and putting my psychologist hat on, I thought, "I cannot serve this on anyone; he will jump off a tall building." I gave it to his lawyer and said, "Please, if you want to verify any of these things, verify it, come back, and let's talk." We met, talked and worked out a plan.

The corollary to this was that the lawyer's client called me and asked if I could be his lawyer, too, and if could I get him some help with gender identity counselling.

Mr. Irving: I would like to address Dr. Bennett's questions.

In 1985, when I appeared before the Standing Committee on Justice and Legal Affairs, we had about 150 people in our association. At the time, I was president of Family Mediation Canada. We had 150 members; today we have 2,000 members.

One of the questions that came out of our deliberations — and the same information was presented — was that we did not have an infrastructure. How can you expect us to promote mediation when you do not have it out there?

Approximately four courses have been ongoing for the past 15 years. Mine is given through the University of Toronto, and there are others. A great number of people have had 40 to 60 hours of post-graduate training in mediation.

The Department of Justice gave a grant of $150,000 this year to Family Mediation Canada to go through a standards and registration process. As a matter of fact, I will be tested in May.

Ms Landau: Myself as well.

Mr. Irving: They want everyone to go through this. We have to submit two or three videos of actual families we have worked with, along with the testing they will provide. They are doing their best to upgrade and provide standards so lawyers do not have to worry when they do make a referral to mediation.

There is one other part of your question that I think I can answer. What if someone wants to reconcile? Most people who do what I call therapeutic family mediation come more from a social work, psychology background than from a strict legal background. That is one of the things we do. We help people. We say, "Look, we can take off this mediation hat and help you try to reconcile." That is possible for people.

Ms Bennett: If we get the resources, the education and the language changes, obviously there will be a boom in your business.

I was in the first part of the new College of Family Medicine, and it set the standards. You have to be better as a new profession. If you were to design a system for Canada that would look after mediation, would this system you are working toward now be the one you would want?

Mr. Irving: I have seen it. I can tell you that it is very sophisticated and rigorous. It is the beginning. I do not think we can rest on waiting for things to happen.

Although Nike has had a bad year, their motto was not bad: "Just Do It". We have to get out and do it. We cannot be held up any longer. It has been 15 years, and we are talking about the same issues. We looked at over 60 empirical studies that have enough substance to say that mediation works under the right conditions. We know the conditions now. However, it is not accessible to people in this country. I am hoping that this is a challenge for this committee.

Ms Landau: Thousands of people go through training. In many jurisdictions, 40 hours is enough, but I do not think it is enough. My basic course is 60 hours and my advanced is another 30 hours or more. Then people participate in the supervision group and all kinds of other good things.

Mediation is unlikely to be harmful to people, particularly if they have had some ability to screen domestic violence and have had that training. Mediators do not make decisions for people. That is why there are so few lawsuits. My mediator liability insurance has a premium of $125 a year. That reflects the risk, because people are making their own decisions. With independent legal advice, there is really very little risk.

It is a chicken and egg problem. As long as mediation has been offered tentatively with all the reluctance and cautions of lawyers to promote it, there is little incentive for people to pay thousands of dollars to get to the point where myself and my colleagues are at, which is thousands of hours of training. People say, "Will we have the opportunity to use these skills?" Right now, they do not have that opportunity. I think there should be a mixture of services available, both court-connected and private, because consumers need a choice. There are many ways of funding it, which we did not get into today. I have covered some of them in my brief. However, until there is a clear statement from government that this is what you think is a good idea, you will not have as many people as you would like offering their services as mediators. Many people have done the training and have never had a case, and these are good people.

The Joint Chairman (Senator Pearson): One of the problems of being in the chair is that we do not get to ask questions except at the very end when everyone is tired.

I was struck, Dr. Landau, with your phrase, "the shift in perspective". The child's experience of divorce was important. You talked about some opportunity for older children to initiate mediation. One of the questions we are looking at or will be looking at is the role of children in this process, not only looking at their best interests, but what we can do to enable them to be part of the process rather than just the object of the process.

Ms Landau: There are obviously differences in the way mediators practice. Like Mr. Irving, I would describe myself on the therapeutic end of mediation.

In my practice, I always have the children participate, not in making decisions about how they will be parented, but I always meet with the children, starting at the age of four and up. Now, I am a psychologist. Not everyone is trained to do that. When I teach mediation, I teach people to pair up with other professionals and use other resources in the community in order to get a sense of what the children would need and also what would be helpful to them.

I never ask children who they love more or who they want to live with. I ask them what would make this a more helpful process for them. For example, can a three year-old take her blanket with her when she goes to her daddy's house or mommy's house to sleep over?

I find children are wonderful. Actually, I could leave the adults out of the process and just work with the children and come up with brilliant parenting plans. Children are very helpful in identifying their fears and concerns, and their voice helps make the plan child-centred.

I can give you an example of a seven year-old who said he was afraid to sleep over at daddy's. The parents came in actually wanting the child to sleep over at daddy's, but the child was resisting. When I met with the child and discussed his concerns, I learned that the child was concerned because during the marriage the father never cooked. There were often fights about dad not wanting to shop, cook or do domestic chores, and the child was concerned he would starve to death.

I have had so many wonderful stories about children sharing what might be a helpful thing to reassure them. They only have one bed. How can they have two homes? So we talk about two beds. Who will take care of the dog?

Children need a voice in order to help parents get off their own pain and look at it from a seven-year-old's perspective. Their voice should get louder because it is hard to get a 14 year-old to do anything they do not want to do. We need to pay attention to their concerns.

The Joint Chairman (Mr. Gallaway): Thank you all for attending today.We have learned a lot about mediation. One thing we have learned is that mediators are talkative. This has been a very lively session, and we appreciate your participation.

This committee stands adjourned to Monday morning at 9 a.m., when we will be in Toronto.

The committee adjourned.