SJCA Committee Meeting

SPECIAL JOINT COMMITTEE ON THE CHILD CUSTODY AND ACCESS

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

EVIDENCE

[Recorded by Electronic Apparatus]

Wednesday, April 22, 1998

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[English]

The Joint Chair (Mr. Roger Gallaway (Sarnia—Lambton, Lib.)): I'll call this meeting to order.

I should apologize to our witnesses today. There's been an event in the House of Commons, so we've waited to see if members of Parliament would arrive. We have senators here.

As you are aware, this is a joint committee of the House of Commons and the Senate, this being the eighteenth meeting of this committee. I should say, because this is being televised, that this is a committee that is examining the Divorce Act with respect to custody and access. I say that as part of our commercial at the beginning of every meeting, because it is being televised.

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We have before us today four witnesses: from the Royal Ottawa Hospital, Paul Carrier; as an individual, Dr. Barbara Fidler; from the Canadian Psychological Association, Dr. John Service; and from the London Family Court Clinic, Gary Austin.

As you know, we try to keep the presentations brief, because we are limited to time, and the important part, we always think, is the questions.

There's no particular order, but we have listed firstly Mr. Carrier. If you want to start, please proceed.

Mr. Paul Carrier (Social Worker, Royal Ottawa Hospital): Thank you.

First of all, I'd like to say that divorce is foremost an intensely emotional experience, and these emotions cover everything. If I listen to the thousands of parents I've seen coming through, you'd expect the other parent to be the devil walking through the door, and that's rarely the case. Things get blown out of proportion. People take definite sides on things.

Divorce is a failure, a deep hurt, a major loss, a crisis, a death. The reaction I see from most parents is one of grieving. It's a grieving process. The process consists of usually a stage of denial, then anger, depression, and finally some recovery. That's it in a simple nutshell. It usually takes about two years to go through this grieving process, and both parents are usually not going through it at the same time. One may be denying and giving away the ship, and the other one may be angry and wanting the whole ship.

Many parents get involved in the legal system when they're in the anger phase, and because it's of an adversarial nature it reinforces this anger phase. Everything is blown out of proportion, as I said before.

I think efforts should be made to move divorce out of the legal system—not entirely, but efforts should be made to have education sessions for couples who are involved in parenting disputes, as well as some compulsory mediation.

I think the federal government could supply some financial incentives to the province to have this kind of approach. Certainly the young offender system makes great efforts to divert young people from the legal system, because you get caught in it. Once you're in it, that's it. It's very hard to get out of it. I think it's the same with this divorce situation. We need to steer people away from it.

Prior to this century, it was all men. If you read the judgments from before, it was “natural”—and they say it—for men to have custody. Then it switched around. It's “natural” for women to have custody in the judgments starting in the 1920s and 1930s. We have to get out of this. This is not a man-woman kind of issue. This is a parenting issue, and the language of the law has to say parenting, putting the emphasis where it should be.

I hope some day it will become as socially unacceptable to fight over custody as it is to smoke today. I think education and some diversionary-type programs will help this along.

Another point I'd like to make is that children at different ages and stages are affected differently and display different reactions to separation. This bears directly on some of the settlements that might happen. Most children have some things in common. They have a level of blame or guilt, they have worry about the absent parent, and they have worries about changes in their lives.

There are usually three things that make for putting children at risk in a separating situation—continued fighting over custody and access, no access or irregular access, or a depressed custodial parent. These things put children at risk.

I've been involved in about 250 young offender assessments, and almost half of those have some custody and access problem in their background à la those three things I just mentioned. So it's first of all reliable, predictable contact with both parents in a non-acrimonious environment that's most important.

When we're children we are our parents. If your father's a drunk and your mother is running around town, to put it bluntly, you don't feel so good about yourself. Your self-image is not good. If we have parents fighting, knocking each other down, they're actually knocking the child's self-image down. When you knock the child's self-image down, they don't feel good about themselves. If you don't feel good about yourself, who do you hang out with? You hang out with the crowd that doesn't feel so good about themselves, and in the end you're at risk. You up the ante for drug use, breaking the law, and that's where I would see them as young offenders. So it's really important that we get out of this adversarial situation, absolutely. It does affect the children's mental health directly.

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If I could take the liberty to say what I think children would tell you—because I've heard them say it to me—number one would be don't change my life all at once. I need the same school. I need the same babysitter. I want the same friends.

Number two, I don't want to be put in the position of feeling any more disloyal or guilty than I already do, because that comes with the territory anyway. Do anything to reduce the chance that my parents will litigate—just do anything you can.

Number three, I want and need to have a relationship with both parents. Don't have one parent a winner and one a loser, either financially or in terms of custody and access. Allow or push my parents to be architects of the agreement. I'd feel awful if I was put in the position of having to choose.

Children shouldn't be in that position. Initiatives from this body or this government should make sure that isn't the case. They shouldn't have to choose. It's bad enough as it is, is what I'm saying. These things are inherent in the situation already.

Children have different needs at different ages and stages, and I think this affects agreements a lot. A pre-school-age child's sense of time is not that of an older child's or an adult's. A one-year-old child needs stability, predictability, routine and consistency. These are urgent things that they need. They don't react well to change in their environment. Most of us don't. And splitting time between parents half and half for a one-year-old? I would never advise that, and I don't think any responsible professional would. Parents do it. If they want to do it and make it work, that's fine, but to lead people down this path I think is irresponsible, personally and professionally.

You might have a situation where you have a young child living with one parent most of the time, with frequent visits by the other one. This is incrementally increased over time so that by the time the child is going to school you have weekend access established. It might be sooner or later for different couples. By the time the child is in school, then things can be incrementally added again, if that's what the family's financial and logistical situation dictates. I mean, there's an awful lot of logistics and finances that say what kind of settlement you can actually come up with.

Anyway, I believe the law needs to encourage flexibility to meet the children's different needs at different ages, not just one way or another. I was often confronted in my practice with the parents saying “There should be less access, because when I get the kids back on a Sunday night, they're a mess, they don't behave. Then the teacher calls me on Monday morning because they're misbehaving Monday morning. So there's something wrong with this access. There should be less access.”

In fact there should be more access. When I talk to the parents, according to the parent who had the child for the weekend, everything went fine. The kids say everything went fine. There's no discipline, or very little, and the kids act better because they're only there for a short period of time, and they know what's going on, so they behave better. The parent who has them doesn't put the discipline on. The kids stay up later and eat more junk food, so of course they're out of control when they come back.

But if you're a parent and you have to send the kids to school Monday morning and get them back as bears on Sunday night and the teacher calls you Monday because they're misbehaving on Monday at school, you're more likely to make a normal parenting procedure over the weekend. I'm just saying that I think things can be increased incrementally over time, and I think that extending access beyond what we have now certainly should be encouraged. There should be some flexibility in the system to allow for this.

Anyway, the emphasis should be on a parenting agreement. I think a presumption of joint custody is somewhat unrealistic, because for children at different ages and stages that's maybe not what really meets their needs. If parents can do that, that's fine, but it puts unreal expectations on many families who are unable to share time, especially due to logistics or money. Most people don't have the money to do this, to have two separate households. They just don't.

Those are the main points I wanted to make.

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I'll just give you one example from a professional who called me yesterday for some advice on a situation. She had a mother with a four-year-old child with her. The parents separated about three or four weeks ago. The father hasn't seen the child for the last three or four weeks. The mother said that the father was a good parent—spoiled the child, of course, but was otherwise fine. There were no abuse issues.

When she went to see her lawyer, the lawyer gave her the advice that she shouldn't really encourage any access at this point because it looks better if there's a custody dispute. And the child's asking, “Where's Daddy? Where's Daddy? What's happening with Daddy?”

And that puts it in perspective. What's good legally? She probably got some good legal advice. Did she get good advice for a child? No way. And that's the kind of thing that we need to get out of and we need education about. Somehow there has to be a tone sent down from above to make this different.

Anyway, I can say a lot, but that's all.

Voices: Oh, oh.

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

Dr. Fidler.

Dr. Barbara Jo Fidler (Individual Presentation): Thanks for inviting me to speak with you today.

I'm in private practice and I've been working with separating and divorcing families, including those disputing custody and access, for 17 years, in various capacities: in research, as a mediator, as an assessor, as an educator, in training and supervision, and as a counsellor. I've seen several hundred families.

In the ten minutes available I'll be touching upon four areas: the diversity of these families, the effects of separation and divorce on children and the factors that mediate adjustment, the need for structured parenting plans irrespective of the title of custody, and mandatory parent education.

Diversity: interparental conflict in separating and divorcing families exists on a continuum. Families disputing custody and access are large in number but still a minority, anywhere from 10% to 25% of the divorcing population, which is about 40% in Canada. By definition, families disputing custody and access are considered high-conflict. A higher frequency of personality disorders has been found in these high-conflict families. A subset of these includes families where there has been domestic violence.

Mediators and clinicians also see many families who are not disputing custody and access, but are seeking therapy, as well as education and direction.

It is important, then, to recognize that the divorcing population is made up of diverse families whose children have wide-ranging characteristics and needs.

Children are affected in the short term and the long term by separation and divorce, and later, by remarriage, in numerous and varied ways, depending on such mediating factors as the resiliency, temperament, age and gender, the quality of parenting in the parent-child relationships prior to separation, during and afterwards, and most notably, the degree of interparental conflict both before and after the separation, be it from mild to severe, as in those cases where there's been domestic violence.

The child's developing cognitive abilities will determine in large part how the effects of separation and divorce manifest in a child. For example, in a younger child we see an egocentric perspective, self-blame and magical thinking, whereas in the older child, who can take on another perspective, we see shifting allegiances and loyalty binds.

Of course, there are many other effects, including: regressive behaviour, anxiety, unrealistic fears, fantasies of reconciliation, somatic complaints, fears of abandonment, conduct disorders, academic underachievement, worry about their own futures and parentified behaviour, all of these varying by age.

It is also important to recognize that the effects of stress are cumulative. All children are affected in one way or the other, some more and some less. Adaptability varies from very good to very poor. Even for those who adjust well, there's an adjustment phase, and this can usually take between two to three years.

Data has consistently shown that in the absence of domestic violence, children of both genders benefit from a meaningful relationship with each parent. Children facing their parents' separation need to know they will not be abandoned and that both parents will continue to be involved with them and their lives. This directly impacts on their sense of security, their self-esteem and identity, and on their overall adjustment and adaption as children and then later as adults, and eventually as parents themselves.

When working with separating and divorcing families, conflict or no conflict, it's important that they understand that custody involves two aspects: first, how major childhood-related decisions are made, that is, how parental responsibilities are determined; and second, the time the child spends with each parent. The major child-related decisions—that is, those pertaining to education, health, medical, and religion—are usually infrequent. With the exception of those related to religion, they are almost always made in consultation with expert professionals like physicians, educators, and psychologists.

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The decisions that typically and more frequently challenge families and precipitate conflict are not those related to the major decisions like whether a child needs surgery, a special class, or academic testing. Rather, they are related to day-to-day child and family management. Parents tend to disagree about matters that do not fall under the authority of a sole custodial parent.

Being awarded all the custody in the world is unlikely to ameliorate disagreements on everyday issues like parental values and morals, clothes and toys travelling back and forth, parent-child telephone contact, transportation between homes, discipline consistency and routines, changes in and flexibility for schedules, extracurricular activities, parental communication, holiday schedules, parenting approaches and exchanges of and access to medical, educational, and activity information.

This is a long list, but this is what we face in our offices every day. It is these day-to-day conflicts that negatively impinge on children.

A custody label, be it sole, joint, or even shared, while necessary for many families, is insufficient for high-conflict parents and for those who cannot communicate effectively.

Our primary goal in working with families is to reduce factors that contribute to interparental conflict so that the child can be protected and can have a meaningful relationship with both parents. To the extent that it minimizes factors that produce conflict, a structured and specified parenting plan that provides solutions for day-to-day family management dilemmas as well as a methodology for child-related decision making is beneficial.

The most useful parenting plans include a delineation of how decisions pertaining to health, medical, education, child care, religion, travel and jurisdictional moves shall be made. Even in a situation that warrants sole custody, the actual method for resolving major decisions can be explicated, giving the non-custodial parent some reassurance that he or she will not be excluded and not be left uninformed, while allocating the sole custodial parent the final say in the event of an impasse.

Also critical to include is a concrete and detailed usual and holiday schedule for the child's time with each parent. The phrase “not to be unreasonably withheld” does not usually work with high-conflict families. It is insufficient to simply say the holidays shall be shared or to detail only several major holidays like summer and Christmas. You'd be surprised how many parents argue about Hallowe'en—almost all of them.

My parenting plan—it's funny, but it's true—contains clauses for as many as 20 religious and school holidays. There may be a consistent pattern and even some repetition; however, just having them listed and specified gives comfort to both parents. Hopefully the non-residential parent can be reassured that the custodial parent cannot unilaterally change the time that parent is supposed to spend with the child.

As it is the day-to-day child and family management that usually is the source of most conflict, the parenting plan is most useful when it can include specific solutions for these sources of conflict that I've already mentioned.

Beneficial plans will also include basic principles of parenting and guidelines for parental communication, explicating various dos and don'ts. Plans must also include what needs to happen in the case of an impasse. High-conflict families often require assistance from mediators, arbitrators, and parenting coordinators. They need assistance with the implementation of the plan. Once they have the plan there are always lots of problems in actually implementing it.

Collaborative and cooperative parenting does not require the parents to be friends or it does not necessarily mean a 50-50 arrangement. It is preferred and it will go a long way to ensuring a healthy child adjustment. However, many families, and not only custody and access-disputing ones, will have difficulty achieving this, and even more so during the early phases of the separation. If they cannot parent cooperatively, the next best approach is for them to be disengaged or to parent parallel to each other. Parallel parenting is preferable to the child being exposed to overt and covert conflict.

To the extent that it is structured and specified, the parenting plan provides a template for the parents to co-exist and to do this parallel parenting. Furthermore, the detailed plan actually pre-empts the need for much communication. Thus, conflict and ineffective communication will be minimized and the child will be spared.

While the plan can function well with little parental communication, amicable and effective interchanges are not discouraged. However, if the parents come to an impasse, they are obliged to resort to the previously determined terms of the plan.

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Although commonly held, parenting plans are not equivalent to shared custody. In some instances they may very well detail a shared arrangement, while in others they may not.

The parenting plan is customized to meet the needs and interests of the individual family, with a focus on the child's best interest. Once determined, the parenting must become part of the minutes of settlement and/or court orders. Parenting plans usually require change as the developmental needs of the child occur. What makes sense for an infant in terms of schedule is different from that which is good for a toddler or pre-schooler. Available guidelines can assist in the creating of developmentally sensitive schedules. I've indicated in my brief these specific guidelines.

The structured and specified parenting plan has been one way to provide solutions for many high-conflict families as well as for those who are not mired in conflict and dispute in custodies. A good parenting plan requires consideration of the interplay of numerous factors. I've listed many of these in appendix A for your review later on.

Finally, I'll mention mandatory parent education. The parenting plan is one form of concrete education. Education of not only parents but also of the judiciary, lawyers, and other professionals who work with separating and divorcing families is imperative. There has been a proliferation of parent education programs. Family Mediation Canada has documented many of these.

As I'm sure you are aware, compulsory divorce education is now making its way into both Canada and the United States. In my view, hands-on, skills-based education is imperative for parents. Data from Alberta and Utah, to name only two, supports the effectiveness of parent education even for those who are hesitant and against participating.

While it is not a panacea, education is key to prevention of problems. Successful intervention becomes increasingly difficult as the problems, and the systems that maintain them, become entrenched. Education and greater understanding may influence parents' behaviour and ultimately promote better adjustment for the children and the family as a whole.

Take, for example, the stages of cognitive development. Over and over again I see parents sigh with relief, because they now have an explanation for why the child did what he or she did, and for why the parents' behaviour had the impact it did, whether the parents intended it or not. More importantly, this understanding has led to greater empathy and the ability for parents to change their behaviour. I've provided in appendix D a list of education topics. It goes into a lot more detail about specific topics.

The lists provided in both the appendices both highlight the complexity of divorce and its effects and punctuate the diversity of families involved. A multitude of factors, and their interplay, require consideration and understanding in both helping these families and legislating for them. A one-size-fits-all approach to policy and law development will be woefully inadequate in reaching a best-interest standard that is truly in the child's best interest.

It's my sincere hope that in addressing the issues before us, we can model the collaborative and open-minded approach we expect of divorcing parents, and in so doing lessen the all-too-frequent polarization that necessarily will ignore the needs of some very deserving children.

Thank you.

The Joint Chair (Mr. Roger Gallaway): Next we have Dr. Service.

Dr. John Service (Executive Director, Canadian Psychological Association): Mr. Chairman, honourable members of the committee, let me begin by thanking you for providing us with the opportunity to come before you today on an issue of such importance. It's always an honour to consult with committees of the Parliament of Canada.

Marital discord, separation, and divorce are important events in the lives of children and families. Many separations and divorces proceed effectively with a minimum of trauma. Custody and access arrangements are made and executed without significant problems. Others are extremely difficult.

The best solutions are, of course, those that can effect a separation and divorce with a minimum of trauma. Generous custody and access arrangements are most often in the best interests of the children and parents. It is, however, the difficult situations that draw our attention. They are significantly traumatic for the parents, and they can be particularly so for the children.

It's well known through research that traumatic events have serious effects. This is particularly true for children in their formative years of development. It is also true when the trauma is at home and it's of serious and prolonged nature. This trauma must not be continued through custody and access arrangements once the marital separation has occurred. My two colleagues have suggested several ways in which this can be minimized.

When in doubt, the default position of course must always be what is in the best interest and in the protection of the children. Because children tend to have little power in family situations, particularly those in a state of crisis, the power to stay or leave, the power to make decisions, the power to express thoughts and feelings and so on are much more in the domain of the adults in the system. This lack of power can increase traumatization.

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Marital separation and divorce can negatively impact upon all members of the immediate and extended family. It's very difficult for parents. Feelings of loss, grief, rage, panic, loss of control, loneliness and meaninglessness are not uncommon, but it is certainly true that the needs of the parents must be addressed.

The question is not whether, but how. Often the perceived solution is to have generous access and custody arrangements. This is not always the best idea. It can continue the traumatization of the least developed and least powerful members of the family. The primary needs of the children must be addressed, with the needs of the adults, although important, a second level of concern.

Several of my points have been made by my predecessor, so I will move quickly on.

There are criticisms of the above framework, which is a child-centred child protection framework. There are those who would claim, for example, that women are as violent as men. This is not borne out in the literature at the present time, but based on this premise of no sex differences in terms of violence, they claim that men are not fairly treated. When this line of argument is based on the assumption that women are as violent as men, the preponderance of research refutes this claim at the present time. That's important to remember.

It is also important to remember that research across North America over the past decade consistently shows that violence against women is grossly under-reported. But even if it is 50-50, it's the intensity of the violence perpetrated by either partner that's the key. It is also the contention of the association that violence from either partner is the thing to keep our minds on. It's not the gender of the person, but it's the violence and the trauma to the children that's the key issue to be addressed.

There are those who would suggest that parents brainwash their children against the other parent. Again, there is no doubt that this occurs, but a careful analysis with appropriate intervention can often clarify the situation and help attain a reasonable solution.

A fourth criticism is the needs of children are always best met with intact families or with generous contact with parents. This is of course true in situations where the interpersonal dynamics are such that they do not continue the traumatization of the children. Again, it's the issue of what is in the best interests of the child and the reduction of the traumatization of children in placing them in untenable situations that is the key.

As with most things in life, there's no golden rule to apply to all situations. It's imperative that principles such as those outlined above guide the deliberations of mediators, child welfare organizations and courts, in order to make the best possible decisions in the best interests of children. Psychologists—as I myself am and as are my colleagues—and social workers, as well as other mental health professionals, can offer a thorough assessment, differential diagnosis and plan for children and families to assist in this process. In addition, these same professionals have the knowledge and skills to help in the adjustment to new circumstances to assist people in developing new and more productive ways of dealing with the situation.

Thank you very much for this opportunity to come before you today. I look forward to the ensuing discussion. As I said before, several of my points have been made before by my colleagues, so I will skip over them in view of getting to the discussion. Thank you very much.

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

Last but not least is Mr. Austin.

Dr. Gary Austin (Psychologist and Consultant, London Family Court Clinic): Doctor Austin.

The Joint Chair (Mr. Roger Gallaway): Dr. Austin. You're not referred to as being any of those things on our list here.

Dr. Gary Austin: Well, after you work four or five years to get it, you're proud of it.

Good afternoon, ladies and gentlemen. I wish to thank the co-chairs and honourable members of the committee for inviting the presentations from professionals who work directly with large numbers of separated or divorced parents and their children.

By way of introduction, I'm a psychologist and a consultant to the London Family Court Clinic, which is a children's mental health centre that has provided a variety of services for 24 years to families involved with the courts. In its many areas of activities, the clinic is involved in direct client service, research, professional training and prevention. For ten years I was the director of the London custody and access project, which is a service to the clinic, and which provides assessments and mediations on child custody and access issues.

Dr. Peter Jaffe, who is the executive director of the clinic, very much wanted to make this presentation today, but he sends his regrets that he's unable to attend because of a recent family matter, which, as of yesterday, made him a father for the third time—four pounds, fifteen ounces, a little premature. That's why he's not here.

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Dr. Jaffe has worked with the police and court system for 25 years, focusing on children and families in crisis. He has an enduring interest in, or what some of us would describe as a passion for, the problem of domestic violence, and especially the impact of violence on children who witness it.

The paper I'm going to present, his paper, argues that we need different kinds of approaches, both legal and clinical, when child custody cases involve domestic violence.

When domestic violence occurs in a marriage, it often doesn't end with separation. Separation may bring a new phase of violence in which the same abuse of power or control within the marital relationship gets played out through custody and access proceedings. The children often represent another weapon for batterers to employ in harassing, threatening, annoying, punishing, and dominating the ex-partner.

Some research reviews have documented that the period of separation may represent the most lethal time in the life of an abused woman, when she is most likely to face serious injury or death. Part of that evidence comes from the Canadian Panel on Violence Against Women, which heard from 4,000 people in 139 communities.

This paper addresses the need for legislators, judges, lawyers, and mental health professionals to better recognize the special needs of clients in custody and access disputes that occur within the context of domestic violence. The paper outlines important legal and clinical perspectives on the issue, the experience of other jurisdictions, and the reforms that are required to increase sensitivity and develop effective responses to the problem.

Consider first the impact of domestic violence on women and children. For the purpose of this paper, the focus on domestic violence will be women who are abused by their male intimate partners. Extensive research across North America indicates that 90% of family violence is directed at women and children.

We, that is Dr. Jaffe and I and the court clinic, do not condone violence against men and recognize that there are a number of divorces in which women have been the perpetrators of emotional and psychological abuse on men. This form of violence may be under-reported and should lead to comparable remedies described in this paper if found to be valid.

However, violence against women is still a major problem in marital relationships, with significantly more women facing death and serious injury, and with violence by men representing an overall pattern of control and domination in the relationship.

According to Statistics Canada, 29% of all Canadian women report at least one incident of physical and/or sexual abuse within an intimate relationship over their lifetime. For 10% of the women, the violence is so severe that the women worry about their personal safety and whether or not they're going to stay alive.

Almost half of all the women, 48% of them, report that their previous partner was abusive, which suggests a frequent issue that could be raised in divorce proceedings, that is to say, establishing a pattern that this woman is a victim and that she simply re-victimizes herself.

Although many laypersons and some lawyers suggest that women may exaggerate abuse in divorce proceedings, most women indicate that they have spoken to few professionals about the reality of violence in their lives.

Violence has a significant impact on women within the context of intimate relationships. At the extreme, they may suffer from what's called post-traumatic stress disorder and exhibit signs of anxiety, depression, hyper-vigilance, and a sense of helplessness. They may present themselves as angry and distrustful and have a difficult time in developing working relationships with court-related professionals.

They blame themselves for the violence, continue to have ambivalent feelings for their partner and their failed marriage, and they may express little confidence in their parenting. They are often caught between developing a safety plan for themselves and their children and trying to reconcile with the man who is their children's father and a major source of the family income.

Children are affected by witnessing violence in their family. This exposure may be as an eyewitness to an incident, overhearing episodes from their bedroom, or walking into the kitchen to see the aftermath of violence.

Parents tend to underestimate by half how much their children know. Half the parents say their children don't know. If you talk to the children, 90% of them say, “We heard; we saw”. Many children report growing up in a war zone where there is a climate of fear and terror even during periods of calm.

Some children suffer from multiple forms of abuse. In families where there's marital violence, children have a significant probability of suffering from direct physical abuse, 40% to 50%, or sexual abuse, about 30%.

One of the most significant developments in recent years in the field of family violence is the recognition that children who witness or are exposed to domestic violence are as infected in a variety of ways. In fact witnessing violence is a form of psychological or emotional abuse that can leave the same adjustment problems as the direct experience of physical or sexual abuse.

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These findings, and these are from research, are significant in light of the number of lawyers and judges who have made the illogical comment that he only abused his wife but he never abused the children, in reference to a father in a child custody proceeding.

Children who witness violence are at risk for a number of significant emotional and behavioural problems, such as aggression, bullying, anxiety, destruction of property, insecurity, depression and secretiveness. That's a long list, and if you have the picture in your mind of a child who actually is showing those signs I think it will bring it home.

Almost 60% of children who are exposed to violence show symptoms consistent with the diagnosis of post-traumatic stress disorder, just like their mothers. The children who witness violence are also at risk in developing inappropriate attitudes about the use of violence to resolve interpersonal conflicts, especially in loving relationships. In the long term, boys who are exposed to family violence are more likely to end up being an abuser in an intimate relationship. For example, in the Statistics Canada study, women were three times more likely to be assaulted, as well as suffer repeat severe injurious behaviour, if their father-in-law—that is, their spouse's father—was violent toward their mother-in-law. In other words, the history of abuse continues.

Extensive research in this field should eliminate any court-related professional's ability to minimize the impact of violence. There are critical stages at which women are more at risk. Many women who separate from batterers feel re-victimized by the justice system. If they stay with an abusive husband, they can be accused of failure to protect the children from an abusive home environment. If they leave, they may be stalked and harassed as well as being accused of being an unfriendly parent by virtue of their allegations.

The most difficult and dangerous hurdle may be the decision to separate. Abused women are five times more likely to end up a homicide victim during the initial separation, according to the Canadian Panel on Violence Against Women. When abused women say they're afraid to stay and afraid to leave, there are numerous studies to validate their fears.

Once a woman does leave, she may face a battle over custody and access that perpetuates violence in the marriage. In one study of high-conflict divorces, 25% of batterers used access as a means of threatening or continuing their abuse of their partner. Since much of the violence goes unreported behind closed doors and without physical evidence, it is difficult to prove these allegations without well-informed lawyers, assessors, and judges.

Since most of the divorce literature does not recognize the field of domestic violence, there is a strong focus on maintaining children's relationships with both parents rather than screening out dangerous or abusive parents, either fathers or mothers. Rather than minimizing violence and requesting the mother to put past hostilities behind her, there's a need to assess the impact of the violence and the level of risk or lethality involved.

At this stage in the proceedings, many abused women are told they have to be friendly parents and promote access to the batterer. Being less than friendly can lead to allegations of parent alienation syndrome. Abused women often feel misunderstood by custody and access assessors, or forced into mediation even though this process is clearly inappropriate and contraindicated when there's fear and unequal bargaining power present.

I'll just take a minute or two to offer three recommendations Dr. Jaffe makes in the context of the previous remarks.

First of all, there needs to be clear legislative reform to the Divorce Act and appropriate provincial laws that clearly make domestic violence a subject of inquiry for judges and assessors, and then a provision that abusive marital partners cannot be considered for custody, joint custody or liberal access.

The model code proposed is one similar to the 1994 U.S. National Council of Juvenile & Family Court Judges, who say in their document:

In every proceeding where there is at issue a dispute as to the custody of a child, a determination by the court that domestic or family violence has occurred raises a rebuttable presumption that it is detrimental to the child and not in the best interest of the child to be placed in sole custody, joint legal custody, or joint physical custody with the perpetrator of the family violence.

No gender is implied.

Number two, there needs to be a comprehensive training program for judges hearing custody and access disputes, as well as lawyers and court-appointed assessors. These courses should be mandatory. For example, in California they now require 16 hours of training on domestic violence before assessors, custody and access assessors such as Barbara and myself, can be qualified to do a court-ordered assessment.

• 1625

Thirdly, family courts across Canada need appropriate resources to deal with high-conflict custody disputes that involve domestic violence. Qualified assessors are essential, as well as supervised access centres that can assure safety while promoting ongoing relationships.

As well, current cutbacks in legal aid need to be examined to make available qualified family law practitioners for abused women. Increasing numbers of women in Ontario and elsewhere are having difficulty accessing the justice system. In fact, they may be cross-examined by the very man who abused them and who is now unrepresented in an access dispute.

Thank you.

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

I'm going to have to ask our witnesses to bear with us. We've had a matter that's somewhat procedural that's going to be discussed by the committee at this point. So I would ask you perhaps to take a seat at one of the tables. We're going to proceed through a procedural matter for a short period of time, and then we'll return to questions. We're not forgetting you, it's just that it needs to be dealt with at this time.

I should say that because this is being televised, this relates to a matter that was raised by Senator Cools on Monday at our 3.30 meeting. At that time we asked the clerk for a copy of an article that was raised as a point of discussion. I think you ought to have all received it, and I believe Senator Cools will speak at this point.

Senator Anne C. Cools (Toronto Centre, Lib.): Thank you, Mr. Chairman. I'm looking to the chair for some guidance as to how to proceed.

As we know, the ancient laws of Parliament impose upon us all a duty to uphold them. It is my recollection that in my very preliminary remarks on Monday last, I believe that I at that time put on the record the times, dates, and names of the article in question. I believe that I put the offensive quotations from the article on the record at that time. I see no reason to have to repeat them today. If anybody wants them repeated, I would be quite happy to do that.

There are a few more offending statements in the same article that I didn't note at the time, but in any event, to the extent that the articles themselves are before us, I feel no pressing need to reread them. So, with leave, if honourable senators would agree, I would not bother to repeat them. Do I have leave not to repeat them?

Mrs. Sheila Finestone (Mount Royal, Lib.): No, but I do believe, Mr. Chairman—

Senator Anne Cools: I'm not finished. I was just looking for leave not to repeat this.

Okay, go ahead.

Mrs. Sheila Finestone: I would like you to put the dates in.

Senator Anne Cools: Yes. Okay, I'll do it again.

Mrs. Sheila Finestone: There are three dates.

Senator Anne Cools: Excellent.

The article in question, which was the most recent one, as I said before, was in the Toronto Star on April 20.

Mrs. Sheila Finestone: April 18.

Senator Anne Cools: Sorry, it's April 18. Here it is. It was in the Toronto Star on April 18, page L1. It's an article by Michele Landsberg. The headline is “How far have we come on domestic assault issues?”

I also made an additional reference to an earlier article back in January. This would have been in the Toronto Star on January 17. It's again by Michele Landsberg. It's entitled “Divorce Act and kids face a rough ride”. In that article, I made the point clearly that it foreshadows last week's article.

Mrs. Sheila Finestone: The article was on February 9, 1997.

Senator Anne Cools: It was February?

Ms. Sheila Finestone: It was in 1997, one year earlier.

Senator Anne Cools: Interestingly enough—thanks, Mrs. Finestone, for reminding me—last year, during the debate in the Senate on Bill C-41, the Toronto Star on February 9 had again another article by Michele Landsberg, entitled “Children will suffer if senators scuttle divorce bill”. I would just put that on the record.

So what we are seeing here, quite frankly, is a pretty lengthy and prolonged, to my mind, attack on Parliament.

• 1630

What I would like to impress upon senators, since they're on the record—I was just seeking leave, and I thank you for that Mrs. Finestone—as well as to members, is that some of the issue has taken on a life of its own.

I'm not complaining about the Maclean's magazine article as a contempt in itself, but if we will notice the most recent issue of Maclean's magazine, it has a reasonably good article, I think, on divorce by Sharon Doyle Driedger. The date is April 20, 1998. We will see again on page 38 that this thing has been growing like Topsy. Sharon Doyle Driedger says in her article:

The atmosphere in both Toronto and Montreal was poisonous: men sneered and heckled so viciously when women talked about wife battering...

And on it continues.

So either I was not at these meetings, which I was, or my recollection is so terribly poor, or somebody's having a recovered memory of some kind. I would just like to place all of these on the record.

What I would like to make quite clear to all of us is that we're all pretty broad-shouldered and fair-minded here, and I happen to know many of the people on this committee—I have known of their work, like that of Mrs. Finestone and Mrs. Pépin and other people, for years—and their deep concern and commitment to these issues and their deep commitment to the public in general. I'm sure no one here likes to be presented in the newspapers as irresponsible or untrustworthy, or uncaring about domestic violence.

On a very personal front, I have done a lot of work. One could say I've spent my life working in domestic violence. What I would like to just point out, though, is that, yes, our shoulders are broad, and if this were a personal attack on me—Michele Landsberg does many—that would be quite all right, as I take them all in stride. That goes with our territory. The reason I brought this to members' attention a few days ago is because I believe that she has transcended the boundaries of fair comment, journalistic freedom, freedom of the press, and so on and so forth, to wander into what I would describe as that treacherous, if not mercurial, area of a contempt of Parliament.

If one were to review the articles in question with some very careful scrutiny, one would see that Ms. Landsberg very pointedly and strongly states “the committee”. So she's not talking about some she-devil or some mischievous individual, she's talking about a committee of the Parliament of Canada.

This is the highest court of the land, honourable members. This is the grand inquest of the nation. As we sit here today, we are sitting in accordance with the ancient law of Parliament under what is called the inquisitorial powers of the Parliament of Canada. I can put out the precedents. I have them all, and I'm prepared to put them all on the record.

We must understand that when this sort of attack is made, it is a liability and it is libellous on the institutions of democratic freedom and the representative institutions of this country. It is indeed a tragedy that Ms. Landsberg has no respect for free speech and for what I think to be a very splendid country, which she lives in. As a point of fact, as far as I'm concerned, this country encourages and promotes free discussion and freedom of speech in the media.

I'm very cognizant of the time. I'm very aware that Mrs. Finestone is eager to leave. I have quite a few comments. I'm prepared to pause at the moment to let other people go ahead who may have time constraints.

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

Mrs. Sheila Finestone: You did mention that I have to leave. Yes, I have to leave because freedom of expression and freedom of person was not available, and today is Yom Hashoah, the day of the Holocaust remembrance.

This is not a holocaust, but it is an attack on the integrity of government and Parliament. It is an attack on the credibility of the members of this committee to be open-minded and prepare to listen prior to making some recommendations for consideration to government on very difficult issues of custody and access. Nomenclature aside, it can be parenting, it can be joint-parenting, it can be shared parenting—that is not the issue. The issue is that this is a table that was put together to discuss what was in the best interests of children in very difficult circumstances, in a society that is evolving very quickly, in which the level of divorce is quite high. There are issues that need to be addressed.

• 1635

It is a matter of continuing to take a look at how we as parliamentarians can address these issues. Should we as parliamentarians be addressing these issues, and how can we constructively do so with an open mind and a willingness to hear from all points of view? This does not give the sense to the community, in general, that one should respect this role, this place and its undertakings. That was my concern, and I join Madam Cools in this regard.

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

Does anyone else wish to...? Yes, Mr. Forseth.

Mr. Paul Forseth (New Westminster—Coquitlam—Burnaby, Ref.): I too am quite concerned about the articles and the ongoing consequence that it also may have for future witnesses, if those witnesses feel it's really of no value or no use to come to this committee because the committee has already made up its mind, it has a bias, and because of all the rest that flows from that.

I think this particular individual as a reporter is a liar.

Mrs. Sheila Finestone: Oooh.

Mr. Paul Forseth: Or at least is mistaken as a reporter. But as a journalist, when you go from reporting to being a journalist, certainly as a minimum it is unprofessional.

When I look at the precedents in the book called Parliamentary Privilege in Canada, second edition, by Joseph Maingot, I read about the privileges and responsibilities that accrue to a joint committee. This is not a legislative committee of the House of Commons; this is a joint Senate and House of Commons committee that is conducting a quasi-judicial procedure.

The kind of respect and the rules that apply to a justice of a superior court is somewhat the same as this committee. When an individual uses the great privileges that have been fought for and defended, such as the independence of the press and the freedom of expression.... There is no freedom that's complete on its own. We don't yell “Fire!” in a theatre, and so on. There are limits to the independence of the press and the freedom of the press when it goes beyond fair comment and essentially undermines the ability of a committee or Parliament to conduct its work.

I know we are in a very controversial area and there are policy differences and there are sociological and even theological differences that give rise to different social attitudes. We can accommodate that. And we have to assess the wide variety of evidence that comes before us. If we have the atmosphere poisoned in the community by unreasonable comment that almost meant to incite something in the community, I think that's beyond what is socially acceptable.

By referring to this book there is an obligation on us to defend the institutions. We have the power to define among ourselves where that line is, because this is beyond a written statute. So it's up to us as a committee to decide where we go from here. Certainly on this particular type of comment we need to send a signal that there is an area for fair comment and we can agree to disagree, but at some point there is a responsibility also with the public media that they don't undermine the very institutions we've fought so hard to develop.

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

Go ahead, Mr. Lowther.

Mr. Eric Lowther (Calgary Centre, Ref.): Mr. Chairman, if this had been some sort of comment on an individual member of the committee, as it had already been stated to some degree, we would probably live with that, as it goes with the territory. But when there are comments about the committee and also along the lines that the committee has already settled on things, as Mr. Forseth has said, that is really getting into the realm of undermining the work this committee is trying to do. My own personal impression is that she has really missed the mark here.

• 1640

I'm new to Parliament and new to this kind of committee, and I've been impressed with the openness and the willingness of every member of the committee to consider all the data. And I think we're still there. I certainly haven't landed, and I don't think any of us have yet. She's done us a disservice and she's done the people we're trying to help a disservice.

Thank you.

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

Does anyone else care to add to the conversation?

In committee, we can do a number of things. We've had a discussion about this article. The committee, in and of itself, cannot arrive at a decision. That is up to the House of Commons and to the Speaker of the House of Commons in the first instance, and the Senate and the Speaker of the Senate in the second instance, to determine what the nature of this article is and if in fact this article might be tantamount to a breach of privilege, perhaps, or some other aspect of parliamentary rights.

We can leave the discussion at this point or we can proceed further, but if we proceed further, then—

Senator Anne Cools: We may need to have 12 people.

The Joint Chair (Mr. Roger Gallaway): Do we need to have 12 people at that point? Yes, we would.

Senator Anne Cools: What is quorum?

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

Senator Anne Cools: So we've been conducting our business today without a quorum?

The Joint Chair (Mr. Roger Gallaway): We cannot entertain a motion without 12, at which point—

Senator Anne Cools: Who is in charge of gathering members before us for bodies?

Chairman, I would make a suggestion. Maybe we could.... I beg your pardon?

Ms. Eleni Bakopanos (Ahuntsic, Lib.): We should delay.

Senator Anne Cools: Maybe what we can do is.... It's quite an unusual procedure, you know, to be adjourning debates on such issues, but—

The Joint Chair (Mr. Roger Gallaway): It is unusual, but without a quorum—

Senator Anne Cools: You can't adjourn.

Ms. Eleni Bakopanos: You can adjourn the debate.

The Joint Chair (Mr. Roger Gallaway): We can adjourn the debate.

Senator Anne Cools: You can't. You need a quorum. You need a motion to adjourn.

Mrs. Sheila Finestone: You need a quorum.

The Joint Chair (Mr. Roger Gallaway): We will suspend the discussion. We cannot entertain a motion until there is a quorum.

Senator Anne Cools: Yes. Basically we're just going to have a pause, a prolonged pause.

The Joint Chair (Mr. Roger Gallaway): But in any event, I have to say that it is on the record and it was raised on the record at the first available moment, so—

Senator Anne Cools: I have just one final thing to say, just to underscore what Mrs. Finestone had to say. Parliamentary privilege is a very interesting and complex phenomenon, but its purpose is to allow Parliament to perform its functions as a representative institution.

The Joint Chair (Mr. Roger Gallaway): We're going to hear from a couple of members.

Mrs. Sheila Finestone: Mr. Chairman, I think if we suspend, as you probably know, this is a special committee of the justice committee—

The Joint Chair (Mr. Roger Gallaway): We are not a special committee of the justice committee.

Mrs. Sheila Finestone: We're a special committee of the House and the Senate and most of this side is sitting in committee a few doors down, doing I forget what.

Ms. Eleni Bakopanos: Estimates.

Mrs. Sheila Finestone: We're doing estimates, and I do know that a number of my colleagues—I sit on that committee—are in the other committee. They needed a quorum as well.

The Joint Chair (Mr. Roger Gallaway): I know that in fact most committees are sitting this afternoon. I had two other committees, which are also on at the same time.

Senator Anne Cools: And for those who are sitting, so that they understand very clearly, many of us here are doing double and triple duty in committees, so we wouldn't want anybody to think anything differently. I can see Eleni signalling wildly that she's doing double and triple duty because we're all so terribly overworked.

Mr. Chairman, in that instance, maybe we should just continue to hear witnesses.

The Joint Chair (Mr. Roger Gallaway): If they're coming in two minutes, I don't want to—

Senator Anne Cools: They're coming in two minutes? Perhaps, Mr. Chairman.... Do we have our respective whips, our respective leaders?

Mrs. Sheila Finestone: Yes.

Senator Anne Cools: Okay, you're a whip.

Ms. Eleni Bakopanos: Sheila is whipping them.

• 1645

The Joint Chair (Senator Landon Pearson (Ontario, Lib.)): I think it's unfair to ask people to vote on something they haven't had time to think about.

Senator Mabel DeWare (New Brunswick, PC): I'm concerned that we're keeping the witnesses unduly. We don't want to lose the trend of thought they've given us. I would like to move on.

The Joint Chair (Mr. Roger Gallaway): But I don't want to be calling a vote in—

Senator Anne Cools: They cannot sit at the table during a vote.

The Joint Chair (Mr. Roger Gallaway): All right, well....

Senator Lucie Pépin (Shawinegan, Lib.): On the other hand, the people who will arrive have not listened to the argument, and I think—

Mrs. Sheila Finestone: There are a number of standard members of this committee who I know are forming the quorum in the other committee.

Senator Anne Cools: That's right.

Mrs. Sheila Finestone: If those members are there, they will join us. They were part of the discussion, and as to the concerns, we've all been talking about it. It has been of serious concern. If they're there, fine, you'll know in a couple of minutes, and if they're not there, then they can't participate. We're not going to bring strangers in here to vote on an issue that concerns the Parliament of Canada, not the individual members of this committee.

The Joint Chair (Mr. Roger Gallaway): I realize this makes for exciting television too.

Senator Anne Cools: We can wait. I have lots of material. I had cut my speech short, Mr. Chairman. I could go on with it forever and ever. I'm only pulling your leg, or trying to.

Mrs. Sheila Finestone: We'll get a report right now.

Senator Anne Cools: Okay, we're finding out where the other bodies are.

Mrs. Sheila Finestone: Mr. Chairman, they're in Centre Block. They're not in their normal room. So I think you can continue.

Senator Anne Cools: They need a few minutes to get here.

The Joint Chair (Mr. Roger Gallaway): Okay, we will then ask the witnesses to return to the table.

When you were last speaking, the room was full. You will notice that the room is empty now, so we really know how to drive people out of a room very quickly.

The Joint Chair (Senator Landon Pearson): I'd like to tell you that in fact the young people who were here were from the Forum for Young Canadians, and they were coming here to understand what goes on in a parliamentary committee. They haven't left because they're not interested in the subject; they're going on with their....

The Joint Chair (Mr. Roger Gallaway): Okay. You realize that we have ended the testimony of our witnesses, and we will proceed to questions. Our first questioner today is Mr. Forseth.

Mr. Paul Forseth: Hello, and welcome to the committee.

Mr. Carrier, I was most interested to hear of your comparison of Criminal Code diversion that's done in adult cases, and then of course for juveniles, with perhaps diversion out of the family court system, and I suppose trying to emphasize getting participants or litigants, or whatever, to be somewhat more responsible for what they've created and make them more participants and accountable for the solutions or the end product.

It's interesting that in Burnaby, British Columbia, we have an educational model now that applicants are directed to attend a few sessions where some videotapes are shown and maybe a session where some general legal advice is given by a guest family lawyer, and at another time there's a psychologist, and there are some things that mainly emphasize what the implications are for child-rearing and child psychology, and so on. The thought is that it's kind of a comprehensive educational module where perhaps it would be required that there's a certificate of attendance that these people have had to go through this module before they can actually have process issued on their court application, to make it a barrier rather than just an option. It's given by private contractors under the supervision of provincial government money and the provincial government.

In another jurisdiction, in Richmond, British Columbia, it's also available, but it's just advisory. Very few actually take up the option, whereas in Burnaby I believe the experiment is they're told at least at the family court level that you're not going to get your application processed and get a court date until you've shown that you've gone through this module.

So that might be an end product as to where this.... It's at least an example of the kind of diversion you're talking about, or I think perhaps also the diversion you're thinking about might be more comprehensive than that. I would like you to perhaps comment and expand on that concept.

• 1650

Legislatively, as far as the Divorce Act is concerned, how would we develop that? Because services of course are not available in the hinterlands. So from my perspective, it looks like some element of compulsion, and yet you have to have the opt-out clause where the services are not provided.

At this committee we've heard of a number of very interesting innovations and experiments happening across the country. Local communities are coming together to do what they can, and it seems to be naturally arising out of their own context.

So I would like you to comment about this diversion out of the system and getting parents to perhaps be more responsible and accountable for the end product. Then take that to the end: In these exceptionally conflicted cases, how do we make the orders or agreements that are arrived upon worth the paper they're written on when there are flagrant violations such as contempt of court, failure to allow access, and so on?

I'll leave it at that for you.

Mr. Paul Carrier: I really believe some form of education is important. I think Dr. Fidler also pointed out that we need education for lawyers and judges. It's not just education for the people involved, the parents involved.

As for the form it's going to take, I don't have a set form. Some variation of what you've talked about.... It should be mandatory. If you're going to litigate any child custody case—parenting agreement is really what I would rather it be called—then there should be some onus that you go for some education prior to doing this, to appreciate exactly what you're getting into.

The legal system has a life of its own. Once you get caught in it and you've spent a lot of money and a lot of emotions, it's hard to back down. Most of my work now is seeing people get stuck in mediation and giving them a view as to what they might get into and what their children might be in for if they continue on the line of getting in their separate trenches.

Some form of education would be easy enough to work up. There's enough experience in the country. I'm sure they have some decent educational sessions. Getting it out to the hinterlands is really tough, but a package could be developed easily enough. Some sort of training for people who do this could certainly be encouraged.

How do you make orders stick? I've seen seven orders for access and there hasn't been access. I've seen many parental alienation types of cases. You throw the father in jail, you throw the mother in jail, and you just make the situation worse—absolutely worse. Fine them, and you're taking blood from a stone. It's very difficult. Once it gets going, once it has its own momentum, legally and emotionally, it's extremely difficult, if not impossible.

I've tried every variation in recommendations to parents, to courts, to lawyers, and when it has a momentum, there's no stopping it. No law of the land is going to make any difference once the kids are aligned and once the parents have made up their minds.

Really the impetus should be to stop this sort of stuff, to make it so repugnant socially, like smoking or whatever, that if you're going to do this sort of thing, what is wrong with you?

Right now we're in a social situation where if you're a woman and walk into a bar, someone may ask you if you're separated, and you'll say “Yes, I'm separated.” “You got kids?” “Yeah, I got kids.” “You got custody of your kids?” “No.” The conversation will stop dead. I bet you there won't be another word said about it, because socially it's not acceptable to talk about women not having “custody”. If you're a man, the conversation continues on. That's normal.

We have to get out of that kind of social milieu, and education and the weight of the law, changing some of its words and so on—it's an incremental thing—will help to change those sorts of social attitudes. Really this is a social process, and it's going to take years. The law is not going to change it. It's not going to change that parent who's stopping access, as far as I can see. If they're going to stop access, they're going to stop it, and no law of the land is going to do much about it. It's going to create more problems.

• 1655

Mr. Paul Forseth: Do any of the other presenters wish to comment on that point?

Dr. Barbara Jo Fidler: I think I would agree. I think once you get to a situation—in the example of alienation—once you get there, it's the most difficult situation to intervene on. That's why prevention is extremely important, and education: we have to try to beat it before it starts. There are so many things you can educate parents about. If in fact they alienate their child, it will come back to haunt them. A lot of people don't realize that eventually it may affect their own relationship with the child. There are lots of specific things you can educate parents on. I think that's where it would be good to see the resources going.

In terms of getting the education out into the under-serviced areas, you can have travelling shows. They did it with first nations. There's a whole different situation there now, but you can have people going out into the community, being there twice a month or whatever, and then people have to sign up and register and that's when the people are there. The education's only offered at certain times in the community where the people live as well, so it is more difficult, but I think it has to be done as well. There may be certain circumstances where it's waived, but it doesn't seem to be insurmountable. I guess it's about money.

Mr. Paul Forseth: Does anyone else have a comment? Mr. Service or Mr. Austin?

Dr. Gary Austin: Yes. There is a wave sweeping across North America and it's called parent education. It's fast becoming one of the most hoped-for solutions to parental conflict. In the jurisdiction I'm in of London, Ontario, we've had a parent education program for about three of four years and I've been involved in the planning of it.

I think that parent education is helpful to a certain bandwidth of parental types. Those people who are willing to listen that the kids are suffering from the separation, that you need to not badmouth the other parents and here are some plans that you can use to settle some conflicts between the two of you and so forth, those types of parents will probably benefit a fair amount. The research in the area is very sketchy at present. The research is far behind the implementation at the present time in North America. The research I've seen so far is not very impressive. It doesn't mean the programs don't work; it just means it's not impressive research.

With regard to the issue of mandatory, I would be very concerned about making it mandatory without the proviso that the parents would be able to attend separate sessions, especially in the case of domestic violence. I don't think either parent would be appropriately learning much in a parent education program with the victim and the abuser being forced to sit in the same room together. So mandatory, but with that kind of proviso.

With regard to the problem of access orders not being enforced, that's a major, huge issue. Some of us work in the area of custody and access assessments, and what the assessments provide for the court is a broadening of the understanding of what's going on behind this access that's not being made available, things such as the opportunity for parents and children to go and tell their story and for the assessor to also hear from doctors and hospitals and police and schools. In other words, you get a full picture of what's happening with this family that is contributing to the access not happening. That information in a report goes to the judge and in the context of some form of hearing then will help the court make informed decisions about what's happening in this case so that they're not just listening to one parent saying he's an abuser, or the other parent saying she's just a parent who's alienating the children against me, but there is an informed independent opinion that will assist the court.

Mr. Paul Forseth: So when we have that informed, independent opinion, and as a result of that the judge then comes down particularly hard on one parent and gives them.... I've seen judges give some pretty good lectures from the bench, saying “What are you doing to your children?” They would appeal to everything and anything in the parent to do the right thing, but then it's violated again. What does the court do? Mr. Carrier is basically saying we can do nothing. It's not worth bringing back to the court, because we can do nothing.

You're suggesting part of the front end of this scenario, and I'm saying where do we go from here? We have available contempt of court proceedings. We have in some provincial statutes that to violate an order is an offence that can be proceeded on for its own merits as an offence in the provincial criminal court division. We've had a recent case here in Ontario where a parent went to jail as a result of very flagrant repeated contempts of court proceedings.

• 1700

So are you saying that basically we do our best and scold, but in the final analysis we can do nothing? Because that certainly sends a message. The message is out there in the community now: It doesn't matter what you do; you can't be touched.

A voice: That's right.

Mr. Paul Carrier: Most people are good parents, even when they're mad. And those people who aren't, there's nothing you're going to do about that. If they're so stuck on their vitriolic expression of their anger towards the other person, there's really little you can do. Those types of people usually have big psychological problems.

Mr. Paul Forseth: Okay, but my point—

Mr. Paul Carrier: But most people aren't there.

The Joint Chair (Senator Landon Pearson):

[Inaudible—Editor].

Mr. Paul Forseth: Okay. Thank you very much. I'll end it with this.

My point is the mandate of the committee is to make it more child-centred. We may not be able to deal with the parent who has a mental health problem, but how it affects the children is the issue.

Mr. Paul Carrier: Some children are going to be victims in spite of everyone's best efforts.

Dr. Gary Austin: My last comment is we live in a democracy. If we didn't, you could take some of those parents and put them in Siberia. That's about the only thing that's going to work.

Senator Anne Cools: We'll have to make it a province of Canada first.

Dr. Gary Austin: Well, we have the Northwest Territories, but I don't think you want to put them up there either.

Some hon. members: Oh, oh!

Mr. Paul Forseth: Thank you very much.

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

Senator Lucie Pépin: Mr. Carrier, you spoke about flexibility in sharing custody, and you said you're a little biased towards shared custody when children are young, as you mentioned, one to three years old. I read some judgments lately where you have children aged two to five years who have to travel every two weeks from, let's say, Quebec City to Montreal to spend a week or 10 days with one parent, and after that they go back. One of my questions is, do we have any studies or information regarding the impact? Because I believe that when children are very young they need a nest, they need a cocoon. When they are switched from one place to another, it must be very difficult and traumatic.

Mr. Paul Carrier: I agree with your approach. My colleagues might disagree, but I doubt it. If a court orders two weeks for a two-year-old at one home and two weeks at the other, I don't think the court is responsible, and it needs some guidance from somewhere, a government or whatever, that it shouldn't do that sort of thing. But if parents decide this is what they're going to do and they are able to communicate, it's not what I would recommend and not what I would do with my children, but if that's what they're going to do, c'est la vie; it's their child. But for a court to order it is irresponsible.

Senator Lucie Pépin: Okay, but do we have any information regarding the impact of such a shared custody on children right now?

Dr. Barbara Jo Fidler: I don't think there are any studies on that specifically.

I have two comments, just to play a bit of the devil's advocate. If it's two weeks on, two weeks off, for a very young child, this is not appropriate. But there are some situations I've been involved in—there are always exceptions—where, for example, with a pre-schooler, before they're in school, and you know the schedule is going to change when they're in school.... They're not going to do this when they're in school, but to give a pre-schooler more time with that parent, maybe a week or a month.... We're talking about a mobility case.

Senator Lucie Pépin: Okay.

Dr. Barbara Jo Fidler: In that case we build the attachment and relationship, if the child can handle it, so that when the child then resumes the more usual thing when they're in school, the relationship has developed with that parent, who now they may only see two weekends a month or whatever.

The other point is in terms of prevention. When we look at alienation, one of the things that's important is if there is a good attachment with both the parents, there will be less likelihood for the child to be alienated. That's not always. That's not the only factor. Parental conflict is an important precursor to alienation.

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If it's a mobility situation, you may want to work on developing the relationship with the child with both parents and the one who lives away, in one kind of situation. In the other situation, if there is a lot of conflict and you're looking at preventing alienation, and you're maybe seeing the seeds of it, you may want to look at building up the relationship with the other parent so that the relationship will be strong, and maybe be able to avoid succumbing to the alienation. Those are two very specific kinds of situations that come up not that often.

Senator Lucie Pépin: Let's say that when a child is old enough to say what their preference is—that they would like to live with their father, or he agrees and he likes it—that's okay. But I'm worried about the little ones—one, two, or three years old.

Also, I saw another judgment concerning kids who are going to school, and they have to spend six months with one parent and they have to change schools. How...? We had witnesses also who came to tell us that the father found it was very tiring to travel from one big city to another city every weekend, and that it should be the children who do that. I have a very hard time dealing with that, and that's why I was wondering if we had any information or any research on that.

Dr. John Service: I'm not familiar with it, but I think you're hitting on something that's extremely important. I would suggest that you might want to ask a developmental psychologist who has looked at this issue, particularly someone who's interested in the first five years. I'm sure there would be people in Canada who could speak very eloquently to this.

What scares me about this is that we really don't know. In five or ten years we could find out that in fact what we thought was horrible for them was in fact not horrible for them.

Senator Lucie Pépin: Yes, and that's why....

Dr. John Service: So what makes me nervous is making these extremely important decisions for very young children without the research and without the data. We still have to make those decisions now, but it's a little anxiety-producing.

Senator Lucie Pépin: Yes, I know.

Dr. Gary Austin: There may not be specific research on it, but let's think about a one- or two-year-old child, and their ability to be able to understand the world around them, to be able to tolerate changes in environment, and their sense of time, which is totally different—I mean, it's moment to moment. A child of that age does not understand a week or two. In fact, even five- and six-year-olds don't understand it very well.

So you can look at the capacity of the child to tolerate certain kinds of access arrangements. In the submission I made in addition to this one I read to the committee, I was suggesting changes under the best-interest criteria. Most of the criteria had to do with the parents. One of the criteria I thought should be added, which doesn't exist, has to do with the children, and that is the adaptability or adjustment of the child to the proposed parenting plans. In other words, children differ not only in terms of age but even within an age group as to their ability to adapt to various changes in their environments, and one plan does not fit all.

So even if you have two five-year-olds in two different families, one five-year-old may be able to tolerate alternate weeks, but the other five-year-old couldn't do that. They need one single stable family home, especially if you're looking at children say with attention deficit disorder, or various other similar problems. They need stability and constancy.

So the legislation I would very much like to see at the federal level would include a sense of the child's ability to be able to handle the various kinds of plans that are considered.

Dr. Barbara Jo Fidler: In my brief I've given some references that are guidelines that consider developmental needs. For example, with very young children, with infants, we look at frequent times in a week—a shorter duration of time in the same place. These guidelines talk about overnights and when children can tolerate overnights. It depends on their attachment, it depends on the child's resiliency, it depends on many factors. But there are general guidelines.

From the general guidelines you then go to the specific family or child and what their needs might be and whether they have special needs, or how much the parents are arguing. Sometimes you have to offset one need for another. For example, we will reduce the number of transitions in a high-conflict family, even though it might be better to have several times during the week. But with let's say a five-year-old, if there's a lot of conflict you may not want to have a couple of actual transitions.

It's the number of transitions, the location of the transitions, what's happening at the transitions. Is it in a neutral place? I mean, there are just so many things we think about when we develop these plans. I guess the general point is to make sure it is focused on what the child needs and can handle.

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Senator Lucie Pépin: Dr. Fidler, you said mandatory parent education. I agree. Should it start before the divorce or after?

Dr. Barbara Jo Fidler: I think it should start in high school, actually.

Senator Lucie Pépin: Someone mentioned to us that they should have some at school—that there should be a program.

Dr. Barbara Jo Fidler: We weren't born with parenting genes. I myself, as a parent, feel parenting is the most difficult job. I teach parenting. It is a tremendously difficult job in good circumstances, and to really be a good parent is complex.

I feel if you want to get married and you want to have children, maybe you should prove your abilities. I know this is going to raise a lot of.... It sounds very right-wing, perhaps. I don't see myself that way, but on this particular thing I get very heated.

It's amazing what parents don't know. It's not that we know all the answers, but there are little things you can tell them that make them say “Oh, really?”, and it makes a big difference.

So yes, I do think it should start before the divorce. That would be ideal. If you want to get married, in certain religions you have to go to your rabbi, you have to go to your priest, you have to go for a little weekend education before you get married. It's happening already in those kinds of contexts.

Dr. Gary Austin: In the new family court model that's in Ontario right now in six jurisdictions, the family and lawyers meet early with the judge. At that point, when the first application is made, would be a good time, when they first enter the judicial system, to then refer them or order them to parent education.

Senator Lucie Pépin: I call that parent education, but when they remarry and have other conjoints, should the stepfather or stepmother be involved?

Dr. Barbara Jo Fidler: Definitely. We didn't talk much about remarriage. I refer to it in my brief.

Senator Lucie Pépin: Yes, I read it somewhere, so that's why I'm asking.

Dr. Barbara Jo Fidler: It creates a whole host of other complications in terms of adjustment for children. So, yes, I would agree. They should be included.

The Joint Chair (Mr. Roger Gallaway): Okay, Senator Pépin. Sorry, but we have to go to another questioner.

Senator DeWare.

Senator Mabel DeWare: Thank you very much.

I was extremely interested in the parenting plan as well. We've heard a great deal about it since we started, and we've just answered the question of when should the plan take place. Well, if the divorce is in proceedings.... You know, sometimes you don't know about a divorce until the day she goes to the lawyer and says I want a divorce, or he goes and says I want a divorce. So when does the parenting plan start?

I don't know whether you can put divorces in categories or not, but I know we have the one where the couple are on very good terms, have decided to divorce, decided how to split it, and have decided on what to do with the children. Then you have the extreme end with the violent cases, and there must be a couple in between. Can we put divorces in categories, and how do you adjust for that situation?

Also, Dr. Fidler, I know there isn't one parenting plan, but could you give the committee an idea of what a parenting plan would look like? I realize it's different for every case.

Dr. Barbara Jo Fidler: Yes, there are samples that exist. I have a sample plan, and I could provide such a thing to the committee for your review. Of course the beauty about plans is that they have to be unique to the family's needs.

Senator Mabel DeWare: Of course.

Dr. Barbara Jo Fidler: But you don't have to reinvent the wheel every time, so there are lots of clauses that are useful for lots of families, or we vary those clauses to meet the needs of particular families. Once you get past the particulars of a family in terms of the schedule and the holidays, then you get to some general clauses.

Senator Mabel DeWare: Is it possible for a judge to have to sort of agree that this parenting plan...? We can't make it mandatory. How do you legislate human relations?

Dr. Barbara Jo Fidler: It's very hard.

Senator Mabel DeWare: It's very hard. But in a case where a parenting plan would work, could the judge say “I'm sorry, but before I will even hear your case there should be a parenting plan in place for this particular situation”?

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Dr. Barbara Jo Fidler: There may be a way to have some guidelines for categories for parenting plans. I guess I'd be concerned about having some sort of sample parenting plan that everyone would then have to go by.

Senator Mabel DeWare: No.

Dr. Barbara Jo Fidler: But perhaps there could be a checklist of certain criteria, the same way you have it in best interests, where you have certain things that have to be checked off. In my appendix, which you don't have because it hasn't been translated yet for you, there is a long list of things that have to be considered in parenting plans. Perhaps that will be helpful to you.

Senator Mabel DeWare: I'm looking forward to reading it.

Dr. Barbara Jo Fidler: But I think the parenting plans have to eventually become part of the minutes of settlement, with all the other stuff the lawyers do about whatever else they do when people get divorced or have separation agreements or court orders. So then it becomes appended to the minutes of settlement, to whatever extent that can be useful.

Senator Anne Cools: But I would just—

Sorry, Senator.

Senator Mabel DeWare: I realize what she's saying.

Senator Anne Cools: I was just following up that. It's not possible. The Divorce Act could not possibly legislate...constitutionally it could not possibly legislate such a thing.

Senator Mabel DeWare: Oh, no, I'm not suggesting that.

Dr. Austin, I would just like to ask you, could a court order deny access to an abusive parent and also say—and I think a court order could say anything—that the parent has to go for treatment before ever being allowed access?

Dr. Gary Austin: I would imagine so. I'm not a judge, but I know that in some jurisdictions—I'm not sure whether it's New Zealand or Australia—they've apparently made that explicit. A judge can order treatment prior to access, beginning or moving from supervised to unsupervised access.

Senator Mabel DeWare: I don't think there's anyone who disagrees with the fact that access should be denied if violence has been shown in the family against the wife or the child or children.

Dr. Gary Austin: Again, there are other factors to take into account. The child or children may have a significant attachment to the alleged abuser. Therefore, if you can arrange a supervised access program, whereby there's a supervisor present to ensure that the children are not either physically abused or emotionally or verbally abused and the mother isn't verbally abused to the children, at least there'd be some degree of continued contact so the children don't feel cut off, rejected and abandoned by their other parent. Only in very extreme cases would I see a total bar against access.

Senator Mabel DeWare: We have had some young witnesses come before the committee and talk to us about their concerns with access, mostly for a sister or a stepsister. It was interesting to think that they were coming here and defending trying to get access or trying to change the access, probably knowing the situation better than their mother or father did, because they had that kind of relationship with their sister or stepsister. It was a very heart-warming experience for us.

Dr. Gary Austin: May I ask a question? Were they seeking to see the access increased or decreased?

Senator Mabel DeWare: Both.

That's all I have for now.

Mr. Paul Carrier: The most supportive relationships usually are those between the siblings.

Senator Mabel DeWare: It was just incredible testimony.

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

I should point out, just as a matter of information, that we will hopefully be having—because you were posing a question that I have to assume is a legal question—a panel of judges here in about a month and a half. That will be a good question to pose to them: what are the limits of their authority?

Senator Cools, do you have any questions?

Senator Anne Cools: Yes, I have a couple.

Before I go into my major question, I'd just like to thank the witnesses for being with us today. Some have travelled a fair distance.

Before I go into my major question, which is on the issue of violence, I just wonder if the same principles could be applied with respect to—just let me back up a moment—your statements about access and violence by parents against each other and against children.

If one were to support a position of access denial, would the people who have proposed that also support the same principle being employed in the child protection services of the country? Because from my knowledge of child welfare—which is fairly extensive—contact is not cut off between a parent and the child just because of one or two incidents of abuse. As a matter of fact, anybody who's worked in child welfare knows that it's the hardest thing in the world to get a child apprehended and away from a parent. I've had the experience. I've taken the children myself because I was afraid that those children were going to be killed, and three weeks later they're right back.

• 1720

Without even thinking too hard, right now I could list cases. We saw the famous case in 1977 of little Vicky Ellis. Three children were lost in that particular family, and one of the latter children was apprehended at birth, then was given back to the mother, and was dead three weeks later, because the entire child protection services believed and still does believe that as defective as some of these parents are—and many are defective, and I'm not talking about the extremely murderous types on the other side—somehow or other they have to respect that parent-child attachment, because they are very serious attachments sometimes.

It's a long question, and I could give you many examples of cases. I can go on quite at length with these cases. I've tracked these cases. I've seen social workers be totally destroyed, as in the Vicky Ellis case. The worker who made the recommendation to return that child is totally destroyed as a result of what happened.

So I just wonder. Yes, the Divorce Act is a thorough piece of legislation, but the child welfare acts and each provincial individual piece of child welfare legislation are a different kettle of fish. I'm just wondering if the child protection services provincially and the child welfare legislation should also adopt the same principles.

Anybody who wants to answer can.

Mr. Paul Carrier: That's a point well made. I've worked in child welfare and have been involved in a lot of child welfare settlements.

Senator Anne Cools: I know you were.

Mr. Paul Carrier: It's not as onerous as maybe what's being proposed here—well, I don't think it's being proposed—but yes, there's more access to the children. What I'm trying to say is I wouldn't want to see the Divorce Act be more onerous than the child welfare acts.

Senator Anne Cools: Precisely.

Mr. Paul Carrier: You have to be very careful.

Senator Anne Cools: That is what has been proposed here time and time again by many witnesses.

Mr. Paul Carrier: Just to cut off access is....

Senator Anne Cools: Well, I'm very pleased to hear what I view to be not only your very delicate and sensitive treatment but also your understanding of the enormity of the issues and the difficulty inherent in them.

Mr. Paul Carrier: I know in the child welfare system, if you remove the children from parents, you create another set of problems. You may be solving one, but you're certainly creating another one. So the weight of the court is certainly to have kids with their parents in the child welfare system.

Senator Anne Cools: That's right.

Mr. Paul Carrier: Yes. It's a point that shouldn't be lost.

Senator Anne Cools: Also, a great mythology operates that somebody else is going to be a better parent. You could take many of those children now who have been apprehended and put into foster care, and the problems are horrific on the other side. The tragedies are really quite enormous.

I thank you for your work.

Doctor, did you want to say something?

Dr. Barbara Jo Fidler: The comparisons are a little different in the sense that if you're comparing foster care with keeping a child at home, that's one comparison. In this case you're talking about a child not having access to a parent who's violent. You still have the other parent. It's different. Foster care brings up a whole huge host of other problems.

One of the important things then is to look at the supervised access facilities, which I know have been cut back substantially, like many things. We want to protect the children. We don't want to be denying access in many cases. There's a minority maybe where that has to occur, a very small minority, but we need to get back to some more supervised situations. I think they were more plentiful previously and they've been cut back. Maybe that's one of the solutions.

Senator Anne Cools: Absolutely.

Mr. Paul Carrier: Even in that, though, supervised access gives a direct message to children: Your parent is a danger. You have to be careful applying this. What is violence? What level of violence? This is not an easy thing to discern.

Senator Anne Cools: That's right.

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Mr. Paul Carrier: It's a grey area. Yes, there are the obvious ones, but there are some not-so-obvious ones, and many of us who have done custody and access disputes certainly know that physical abuse, sexual abuse, and neglect get used. They're neutron bombs in these disputes. They shut down access.

You have to be careful. Supervised access sounds benign, but it is not a benign process.

Senator Anne Cools: It is not.

Mr. Paul Carrier: It definitely gives messages to the children. So you have to be careful where it's applied. I'd just like to make that point.

Senator Anne Cools: I understand.

Now if I can go to my real question, there was a major study done some years ago that I believe Dr. Austin has referred to. I would like to remind colleagues of this particular study. The report was called Changing the Landscape: Ending Violence, Achieving Equality. I believe Dr. Austin responded to it, and I believe Dr. Austin in his remarks said Dr. Jaffe sat as a member on the panel. The report is still available and is a result of a couple of years of work. The point I'm making, honourable colleagues, is that it cost $10 million to produce. This study is $10 million worth of committee sittings. Here we are with our little committee on a little $500,000 budget and this thing cost $10 million.

To come to my real point, I've been very interested that the issue of domestic violence has grown new feet, if not new roots, within the context of these hearings. It has taken new life or maybe some old life looking for reclassification. My recollection at the time of this study is people wanted to bury the words “family violence” and subsume it under the term “violence against women”. I remember having some pretty strong exchanges in my own party caucus on the particular issue.

I've done a lot of work on family violence. I believe family violence is a different and special set of issues, because it's wrapped into all the intimate and endearing relationships. It's quite a different thing from what I would describe as straight violence. This report is replete with statements like “The term `family violence' is a euphemism for violence against women and children, and it seeks to protect men. Men's abuse is a social problem. They don't change because they don't have to.”

The point I'm coming to is that I've looked at this report for a couple of years now, and I've been looking through this and looking through the recommendations. Earlier today I went to the minister's statements from when the minister received the report and moved it into public debate. The minister's statements I've reviewed quite extensively, and there's not a mention of the Divorce Act or words like “custody” and “access”. It is a most fascinating thing, in my view.

The minister at the time—I might as well put on the record that this is July 29, 1993—was Mary Collins. This would have been in Mr. Mulroney's government, with Mary Collins. I remember when she was minister. The press release said:

Mary Collins, Minister Responsible for the Status of Women, today released the Final Report and National Action Plan of the Canadian Panel on Violence Against Women.

Her press release says:

The Panel's Report is the world's first comprehensive national study of violence against women.

Then it says:

The Panel's Report is powerful and far-reaching in scope, containing almost 500 recommendations that call for dramatic changes in our society—changes that touch us all.

This is what Minister Collins said.

I'm very fascinated that throughout this report among the recommendations they propose to change the Indian Act, to create a Status of Women Act, and many other initiatives, but there's not one recommendation about a proposed amendment to the Divorce Act, which I find very fascinating and very interesting. In addition to that, today I didn't have that much time because, as I said before, I haven't looked at the report for a long time and I had disagreed with so much in it at the time anyway. It's been sitting gathering dust on my bookshelves, like it's gathering dust on most bookshelves.

• 1730

What I was fascinated with in my very cursory perusal today is that I could not find a single reference to the Divorce Act or the issues of custody and access. Yet if one would listen to debates in this committee when certain witnesses come before us, one would have the impression that there is nothing else but domestic violence.

I wonder if any of the witnesses would like to address that question. And before we turn to them, Chairman, perhaps we could ask our researchers to review this document and to find out exactly what this very expensive panel.... And I'm a Liberal and we quite opposed this—you remember seeing Senator DeWare sitting there—at the time. Even our Liberal critic, to my surprise, took quite a swing or two at it.

So perhaps we could really find out what the positions were, as outlined on these issues within this document, which is, supposedly, the most comprehensive study on violence against women and children.

I wonder if any of the witnesses would like to answer. What has happened recently so that family violence is taking on a sort of rebirth? And what has happened socially in our country such that there is an enormous pressing for inclusion of what I would consider to be Criminal Code enactments within the Divorce Act of Canada, which is federal legislation? The child welfare act is not federal legislation.

It's a philosophical question in a lot of ways.

The Joint Chair (Mr. Roger Gallaway): Who wants to go first?

Dr. Gary Austin: You raise a very challenging area, no doubt, Senator Cools.

Senator Anne Cools: Wonderful.

Dr. Gary Austin: I was not party to that procedure at all, so I really can't speak to why they left out the Divorce Act as an area of concern to be changed.

Certainly the opportunity is presented to us now to consider it. There's no question about it.

Senator Anne Cools: Right.

Dr. Gary Austin: And the information in that report may be quite pertinent. I think it's also important to remember that “there are you and there are us”. There are the legislators and there are the people, and sometimes one has to wait until the legislators start to move on a certain area before it's possible to bring to the attention of the legislators what we think are crucial issues.

For example, in the province of Ontario the previous Liberal government made proposed changes to the Children's Law Reform Act, or at least the act pertaining to custody and access in Ontario—

Senator Anne Cools: Yes, the Children's Law Reform Act.

Dr. Gary Austin: —and put in a criterion for best interests that involved any violence that occurs within the child's home. Of course there were a lot of problems with that bill other than that, but that bill died when the government died. That was one of the unfortunate outcomes.

However, when that came out certainly a number of us started to address that issue. It became a topic during the family court clinic conference. In fact, I organized a workshop around that issue. So in part, sometimes when government starts to look at how we can make the laws better, then the people start to bring out the evidence they've been carrying around in their bags for the last twenty years.

Senator Anne Cools: Right.

Dr. Gary Austin: So in some ways, the legislators provoke—

Senator Anne Cools: I see. We provoke, do we?

Dr. Gary Austin: —the opportunity for—

Senator Anne Cools: I was about to say that. It's the opportunity.

Dr. Gary Austin: Absolutely. It's the opportunity to suggest that a number of important factors in families need to be thought about. It's certainly not just violence. There are a lot of other issues as well.

Senator Anne Cools: I appreciate your response, but the term “best interests of the child” is not mentioned once.

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

Dr. Gary Austin: I'm as surprised as you are.

Senator Anne Cools: I'm not.

The Joint Chair (Mr. Roger Gallaway): Is there anyone else who cares to respond to that? No? Okay. Senator Pearson has—

The Joint Chair (Senator Landon Pearson): Senator Pépin? I just have a quick question.

Senator Lucie Pépin: I have a long one.

Some hon. members: Oh, oh.

The Joint Chair (Senator Landon Pearson): I have a quick question for Dr. Fidler. I'm very interested in the parenting plan aspect. I think we're going to be looking at some jurisdictions that have brought it in and we'll be looking at what kind of experiences they're having with it. But in the formation of a parenting plan, what opportunity is there for the children to take any kind of role? Or should there be?

Dr. Barbara Jo Fidler: With respect to a child's preferences, it's a big area in the sense that we have to determine if and when and what they mean, because they have to be interpreted. They're complex.

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Yes, in the best-interests standard I think preference is one of the criteria, and I think children need to be listened to. It depends on age and stage, of course, and the whole family circumstance. If children are pre-verbal, obviously this wouldn't occur, but as kids get older and older and become more verbal, I think they need to be heard.

I think children need to know that they are going to be heard. I think they also need to know that they're not going to make decisions, especially the younger children. How they feel and what they think is going to be taken into account, but the decision is not theirs, it's their parents'. Their parents will decide how things will go. If their parents can't decide, then judges will decide. That's how I often talk about it with older kids.

So, yes, children's preferences and their feelings, thoughts and ideas....

When I'm working with parents in a more cooperative way—in mediation, for example, or even in assessment—they might propose something. I might say, well, everyone seems to think it's a good idea to try. Parents want to know what their kids think and feel about that. They may say, you know, we really don't want to be doing that; we really want to do this. Sometimes children need to be encouraged to be able to say what they really want to their parents.

A trained professional can help them say it and then help their parents listen. The child might be concerned about saying what they really want, because they won't want to betray the parent. If they can be encouraged to speak and say what they want, and the parent can be encouraged to listen.... Sometimes parents will hear their kids and say, you know, they really didn't want this.

So that's a piece of the work you have to do with a family, but I do think there is a place for it.

The Joint Chair (Senator Landon Pearson): When the parenting plan is in place, do you encourage the parents to communicate that to their children?

Dr. Barbara Jo Fidler: Yes, at some point they would talk to the children about what the arrangements will be. Kids really want to know that, especially younger kids. They are very concrete about how they think about things. They want to see it. What does it mean? How many sleeps at mommy's, how many sleeps at daddy's?

There are all kinds of ways to make it easier for children to comprehend that and to accept that. Yes, they should know what's going on, and it should be communicated to them.

The Joint Chair (Senator Landon Pearson): Does the parenting plan have a general up-to-the-age-of-18 type of vision?

Dr. Barbara Jo Fidler: I think before then, probably, in terms of the kids going back and forth, children of around 13 or 14 or 15—it depends on the family, of course—are pretty much doing what they want to do.

The Joint Chair (Senator Landon Pearson): But I think in many cases, where you have children widely separated by half a continent.... I come from a foreign service family, so I knew, and my children knew, that every three years we'd be moving. If a child at the age of 12 suddenly is confronted, or is not confronted, with the possibility of moving back to live with mom or dad, depending, they may not want to do it. I think if they have in their minds that this may be a possibility, it would be helpful.

Dr. Barbara Jo Fidler: It can be if they realize that this is just the way it goes, and if that starts off early on. But at some point parents have to listen to their kids.

The Joint Chair (Senator Landon Pearson): Oh, no, I realize that.

Thank you.

Dr. John Service: Perhaps I can make a comment on that as well. One of the problems I've experienced in my practice is that a parenting plan can be put in place, the kids try it out, and everybody is very attentive to what they want and need, but six months down the road the situation changes. So there needs to be some way it can be revised in the best interests of the kids as it goes along.

Sometimes that's quite difficult. It needs to have that sense of flexibility and negotiation. The kids need to be checked into in a neutral and safe and understanding way, by times. That sometimes requires periodic outside intervention.

Mr. Paul Carrier: For most people, once they get the plan, it's like a band-aid over the situation, and it evolves on its own from that point on. They make their own plans. You know, life goes on.

Senator Anne Cools: That's correct.

Dr. Barbara Jo Fidler: They can establish some basic principles that will apply and guide the smaller changes that occur in terms of, for example, development of a child. So the schedule may change, because now the child is eight and not four, but there may be some principles established to guide them, whether it's lots of time with both parents or whatever. Those principles can then help the parents make those changes later on.

Dr. Gary Austin: Briefly, one essential guideline is that the higher the conflict in the family, the more specific the plan has to be, right down to the minute, so that they don't have to talk about it or discuss it.

Dr. John Service: A good plan teaches good behaviour. As they've been saying, it takes care of itself. It's not the plan, often, but what it teaches the parents.

The Joint Chair (Mr. Roger Gallaway): Does anyone else want to say anything more about this before we go on? Senator Pépin.

• 1740

Senator Lucie Pépin: You argue that where violence is present, mediation and cooperative parenting are unlikely to ever be possible. Therefore it seems that the likelihood of negative outcome for these children is extremely high. Is a negative outcome necessarily predicted for all such children?

Mr. Paul Carrier: I don't think so. Everyone's different. People come from all kinds of family situations and react differently.

I think it just sort of loads the gun. It's like continued fighting over custody and access. You're put more at risk because your self-image is a lot lower, so you're going to tend to hang out with people who might get into more trouble. But is it assured it's going to happen? No.

Dr. Gary Austin: Your question has to do with high-conflict families and whether mediation is a good idea and whether joint custody is a good idea.

Senator Lucie Pépin: Yes.

Dr. Gary Austin: In the case of mediation, the Ontario Association for Family Mediation, as many similar organizations in the States, has come out to say that they believe mediation in cases of domestic violence is not appropriate because it's almost impossible for the mediator to rebalance the power imbalance in such families.

There are cases where there has been past domestic violence where the woman has garnered some strength from counselling or the man has gotten some counselling, or there are some protection orders in place, or whatever, where you can possibly mediate it and you might be able to help the parents work out a plan that is best for the children.

In the case of joint custody, mandatory joint custody is to me an oxymoron. It's paradoxical. If parents can basically get together and make decisions about their children, they don't need legislators to tell them they can do it. For families that are even moderate to high conflict, joint custody only means that they have to plan more frequently and make decisions together, and the research is really clear that the more high-conflict families have contact, the more the likelihood of negative consequences for the children. Witnessing high conflict is just one of them. So perhaps that answers your question.

Senator Lucie Pépin: In thinking about violence in the family, how could the legal system ensure that the crucial support services and other necessary conditions are present to fully protect battered women and their children? I was thinking about the education of judges.

Dr. Gary Austin: That's a large question.

We can go right back to the problem of legal aid. Right now, certainly in Ontario, the legal aid plan provides very limited access to funds for a lawyer, for either mothers or fathers. Therefore they are not getting proper instruction as to what their rights are. That is the first place to start. Whether you're getting mediation or assessments, it's important that you have a lawyer to inform you of what your rights are, so that you can make informed decisions. Right now, that's getting more difficult, with people having to represent themselves or getting minimal legal consultation.

In serious family dispute problems, judges can order assessments done by professionals such as ourselves, which will then help the court understand what the nature of the family is like and what kinds of plans might be best for the children. With one or two exceptions, I don't think there's anyplace where such assessments are available at no cost. Legal aid still funds a few in Ontario, but it's getting harder to get access to them. So the cutbacks are very much affecting people's knowledge of their rights and also access to clinical opinions that help the courts make informed decisions.

Certainly—and Dr. Jaffe has been involved in this—as far as training judges on the issues around domestic violence, it's a challenging area of education, I must say. There are a number of judges who are more sensitive to the issue these days, and there are others who are more from a traditional background, who find some of these concepts challenging to learn.

I think probably the availability of the supervised transfer and access facilities is essential. Those also help protect children and the victims in the case.

I agree with others here who say that supervised access is not like real access. It's not like real time with your kids. I've gone to supervised access centres, and quite frankly, it feels very uncomfortable.

Senator Lucie Pépin: Why?

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Dr. Gary Austin: Well, you're in there with maybe ten other families and a whole bunch of stuffed toys in a big gymnasium, and you have somebody supervising it. It's painful, because the parent comes and drops the child off; the child is sort of looking scared, even with all the stuffed animals around, and has to wait there with a supervisor; and then 15 minutes later, the access parent shows up and they have an hour or two to play. That might happen once a week or once every two weeks.

You have to balance that. In one way, it helps to maintain some attachment to the access parent. On the other hand, it also helps to promote some safety. So it's very difficult. It's better than no access, I believe, and hopefully it's an interim solution—that is, with either counselling or some other form of planning, it can be done away with for a particular family. It's never a long-term solution, unless, as in one case I had, the man fell off a roof and was brain-damaged, and he simply was incompetent to look after the child alone, so the only way he could see the child was that way, and they both played with the toys.

Senator Lucie Pépin: Dr. Service, do you have any comments to make?

Dr. John Service: No, that's fine.

Senator Lucie Pépin: I have only one comment for Mr. Paul Carrier.

You said divorce is a failure, and I thought, is it possible that some people could have a positive divorce if there's violence involved? If, let's say, there's violence in the family and they separate and go through a parenting program, maybe it could come out that it was positive.

Mr. Paul Carrier: I agree, if you get out of a violent situation. I guess it's just the failure of the marriage in general.

Senator Lucie Pépin: Yes, when the parents fight.

Mr. Paul Carrier: They didn't get married to do this, you know.

Senator Lucie Pépin: I agree.

Mr. Paul Carrier: So it is a loss.

[Translation]

Senator Lucie Pépin: Yes. Thank you.

[English]

The Joint Chair (Mr. Roger Gallaway): I was less than truthful, because the last question—and it's going to be brief—is going to Senator Cools.

Senator Lucie Pépin: That was a short one.

Senator Anne Cools: Okay. She can go ahead.

Do you want to go ahead, Senator Pépin?

Senator Lucie Pépin: No, no.

The Joint Chair (Mr. Roger Gallaway): No, please go ahead, Senator Cools.

Senator Anne Cools: Thank you very much, Chairman.

I just have a couple of questions, because you four witnesses will be described as the mental health professionals. I would describe you all as mental health professionals. As you know, there is an increasing body of literature, as there is an increasing body of concern, about the mental health professions industry. People talk about court assessments and going to counselling, and all of this costs enormous amounts of money.

We're not in the era any more when a couple who are having a few problems go and see their local pastor or their local minister and work things out. Every time one of these mental health professionals has to write an assessment, it's $5,000, $2,500—it's an enormous price.

I've been doing some work on this, and it's very interesting: then they go into the courts. The day is over when the judge used to sit between the couple and assess the situation, look at the children, and talk to the couple. Now you go in there, and not only are these parents in these situations paying for lawyers; they're also paying for the mental health professionals.

As all of you here well know, many of these mental health professionals do very little therapeutic work but spend a lot of time being expert witnesses in these court cases, at very commanding sums. As a matter of fact it's an industry. If one reads some of the case law, some of the court cases and the judgments, one begins to discover that what is at issue and what is at trial is not the ability of either one parent or the other to be a good parent, but rather the credibility of these professionals.

I'm not going to bother to put it on the record, but I'll just cite a particular case in the Ontario Court of Justice, K.M.W. v. D.D.W., which are initials, meaning it involves children under age, obviously. This was in the Ontario Court of Justice under His Honour Judge Webster.

Part of the challenge before the lawyers in the case and the judge himself was to basically overcome the assessments and the testimony of the mental health professional. It's not necessary for me to put his name on the record, because he'd probably be having quite a tough time, if these kinds of things happen in a human being's career.

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The point I'm driving at here is that what is at issue is his credibility and that of the expert witnesses. These are the issues before the court, really, which are not truly in the best interests of the child.

I know it's a very large question. As for a few of the psychologists who have come before us wanting to talk, some seemed a little timid, shy, or reluctant. I wonder if any of you have any ideas whatsoever of the march of the mental health profession into basically what I would call claims-based profiteering, rather than therapeutic purposes. There are those in many professions who are very concerned about this.

I'm hoping this committee may bring in a psychiatrist like Dr. Harold Merskey before us. He has enormous concerns about where the mental health profession, psychiatry and psychology, has been going. I know it's a large question and it's quite spontaneous, but I wonder if any of you have any ideas on it.

The Joint Chair (Mr. Roger Gallaway): Dr. Service, go ahead.

Dr. John Service: The first thing I would say is that it's the legal system's problem. It's how the legal system chooses to use expert witnesses in an adversarial situation in a democratic society that's at the root of hiring a gunslinger on each side of the court and spending hours and hours trying to discredit the information that's brought before you.

It also leaves professionals fairly vulnerable. There is an increasing number of complaints to colleges of psychology across Canada and other colleges, as well, as a means of getting oneself back into court by finding some small thing to discredit the professional. Then they get the quasi-judicial system under the regulated health professionals acts going to see what can be gained from it.

One of the best ways to deal with that, at least from the Nova Scotia point of view, where I practised before I came to Ottawa, is to do it through a friend of the court. That's an arrangement whereby you're not hired by one side or the other, but engaged by the court to give an opinion to the court. It does reduce some of the adversarial aspects of it.

Certainly the adversarial system is what's at the root of it, I think, rather than the health professionals. I may be too spiritedly defending myself here, but I certainly think that's a reasonable assessment of the situation.

Second, these situations are extremely important. Part of the reason there are more and more assessments is that we're in a developmental stage. You probably wouldn't have had very many psychologists 30 years ago around this table dealing with this situation; you would have had physicians, lawyers, and psychiatrists. All the physicians and psychiatrists are paid for their testimony through the public health system, but psychologists are not.

I would argue the opposite way. Access to good assessments and information is jeopardized by the lack of access to psychologists and social workers. To see a psychologist for an assessment like this does require you to pay out of your pocket. Hire a psychiatrist, and the public health system will pay for that.

I find that to be quite difficult, because as hospital departments decrease, as public expenditures for health and criminal justice system services decrease, there are fewer psychologists to be seen. As private insurance decreases, fewer psychologists are to be seen, unless you pay completely out of your own pocket. It is a serious dilemma.

The third issue is that as a profession and discipline develops—over the last 50 years, clinical psychology has developed enormously—you open yourself up to more and more criticism. I think it's a natural evolution of the development of a discipline to be looked at more and more critically by different people in society. So we welcome that.

Finally, I would say that the information provided to courts with these extremely difficult situations has been proven to be quite valuable, and will continue to be valuable. People like my colleagues here, who are perhaps judged to be in the growing industry, as such, I think are doing an extremely valuable service. So I hope there would be an expansion of that.

The Joint Chair (Mr. Roger Gallaway): Did you want to say...? You don't have to add anything.

Senator Anne Cools: I'm not adopting any posture or position. I'm just saying to you that there's a body of literature and a body of concern that is developing.

Mr. Paul Carrier: I have a quick comment. Only a true masochist would want lots and lots of these cases. They wring it out of you and they wring it out of the lawyers. It is really a tough business to survive in.

Senator Anne Cools: I know.

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Mr. Paul Carrier: All of the cases in the last decade, really, were not hired gun types of cases. That was more a feature of actually the late seventies and early eighties. Now both parties pay part of it; it's about $6,000 in Ottawa to go private.

Senator Anne Cools: Six thousand dollars? I didn't hear you. What was your last sentence?

Mr. Paul Carrier: It's about $6,000 for a private assessment in Ottawa. That's private.

Senator Anne Cools: That's some of them. Some of them are pretty poor and some are excellent.

Mr. Paul Carrier: It's entirely private. There's no money put in from the system at all, whereas I expect in London you have some people on staff that help.

I know in Ottawa that's the price. The reason is there's no competition. It's not really a growing industry; it's a shrinking industry. People I know who have been involved in this from the early eighties on are now out of it. It's too gut-wrenching.

Senator Anne Cools: Chairman, I think they're saying some very exciting things. It's nice to see them coming alive. This is a subject matter, though, the committee should wrap its mind around at some particular point in time.

The Joint Chair (Mr. Roger Gallaway): I think you've raised a valid point.

Dr. Austin, do you want to respond? You don't have to.

Dr. Gary Austin: I have a plane to catch, but, no, two years ago I stopped doing assessments. I'd had it. I'd done 600 and consulted on another 600, but I was on salary. There was no funding other than legal aid for assessments, and all of our assessors, at least inside the clinic, were on salary.

Our assessments on legal aid were $1,800 total at $90 an hour for a psychologist. And for parents, if they had to pay out of their pocket, they ran about $3,000 to $3,500. And then you have some exceptional ones where somebody brings in a box and videotapes and insists you see the whole thing.

As far as the number of referrals to the project that I supervised is concerned, it's been fairly steady and not been growing. It is not a growth industry. The irony is that most of the people we retain to do these assessments quit, as has been said here, after a few years. Just a few of us hung in a little longer. But it's certainly not a growth industry. In fact it's hard to attract clinicians to do this kind of work, because they read their college bulletins where all the complaints are primarily in the custody and access area and it's an incredibly stressful thing to have to go through one of those.

Senator Anne Cools: Thank you for making that point, because frequently you hear a lot of talk about refer so and so for counselling as though counselling is an injection, but it's not. It's kind of sad that for the people who do this sort of work it's very stressful and the burn-out rate is really quite enormous.

You can tell that I was a front-line worker.

The Joint Chair (Mr. Roger Gallaway): Thank you, Senator Cools. But you can tell that sometimes the words “brief question” or “brief comment” have new meaning here.

Before we all run away, there is the sixth report of the steering committee on agenda and procedure. I'm going to ask that we receive it here. We don't have to approve it; it only has to be received. In any event, it only lays out the schedule that was agreed to for meetings in Ottawa in May and June. It's in Ottawa because we've already agreed to travel during the month of May to the east coast.

Senator Anne Cools: I'd like to raise the issue of committee travel and I would like to know why aging senators are expected to travel economy.

A voice: If we pay a little extra we can go first class?

Senator Anne Cools: If we're short of money, I'd like to know. Perhaps if we're short of money, the Senate chairman should go to the Senate and ask for more money.

Are we in camera?

The Joint Chair (Mr. Roger Gallaway): No, we're not.

Senator Anne Cools: Then perhaps we should go in camera to discuss this.

The Joint Chair (Mr. Roger Galloway): We have to accept the report first.

Senator Anne Cools: No, I'd like to discuss one or two things. Perhaps in terms of building in some time for these things, we could meet a few minutes in advance, but I do have problems with these kinds of reports and the expectation that these things are just voted on yes or no without proper discussion.

The Joint Chair (Mr. Roger Gallaway): We're not voting on it. We're just saying it's for reading. We'll discuss it later.

Senator Anne Cools: It's to receive it, so we can discuss it at the next meeting?

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

[Proceedings continue in camera]