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, February 11, 1998

• 1539

[English]

The Joint Chair (Senator Landon Pearson (Ontario, Lib.)): Colleagues, welcome to our table. I think some of our Senate colleagues have stayed behind in the Senate because there is an interesting discussion on a precedent that we're about to set. If there is going to be a vote about it, the senators who are here will be summoned out. That's why some senators are not here.

But it's very important that we hear your testimony and get it on the record. We'd like to welcome you to today's meeting, which is essentially the start of our deliberations on the subject of child custody and access.

As you're all aware, it's a study that will occupy a great deal of our time as parliamentarians over the next few months. We will hear from many Canadians on this subject, including young people, many of whom are individuals directly affected by divorce and child access and custody disputes. As well, we will hear from others who are recognized as experts in these matters and who will try to help us come up with fair and reasonable recommendations.

We will also consult the provincial and territorial governments. Letters have already gone out seeking their participation and cooperation.

• 1540

Before we begin today's briefings, we wish to inform you that the steering committee met on February 3 to discuss a number of important issues that will guide the work of this committee. A copy of the report of the steering committee is before you; I hope you all have that. In a few minutes we'll ask for a motion to concur in this report.

However, we want to advise you that the steering committee will meet again tomorrow to continue discussions on such matters as the committee's hearing schedule in Ottawa and across the country and the selection of witnesses.

We want to thank all the committee members who have already submitted lists of suggested witnesses and to encourage those who have not done so yet to provide their suggestions as soon as possible.

Mrs. Sheila Finestone (Mount Royal, Lib.): I have a point of order, Madam Chairman. I am just curious; are we constrained or are we directed to address ourselves to the issues of custody and access as defined under sections 16 and 17 of the Divorce Act, or does this allow us to go beyond those sections of the Divorce Act?

The Joint Chair (Mr. Roger Gallaway (Sarnia—Lambton, Lib.): We can in fact go beyond that. There's nothing in the terms of reference in either chamber that would limit it to section 16 or 17 of that act. So there are no limitations in that sense. It's much more general than that. To limit it to section 16 or 17 would require that both chambers would have passed a resolution to that effect.

Always remembering that we are a committee of 23 parliamentarians from both the Senate and the House of Commons, and representing all political parties, we must rely on the steering committee to prepare and to agree to a work plan and, most importantly, the implementation of that work plan. It is for this reason that we, the joint chairs, are asking for your cooperation in ensuring that the work of the committee will be conducted in a smooth and efficient manner.

We must realize that these proceedings today are being televised, so information to the public about the committee will be made available on a continuing basis through press releases, the parliamentary Internet site and this parliamentary television channel today. Information will be available about how to prepare a submission and where to send it.

As well, the committee's meeting schedule, including cross-country hearings, will be widely publicized.

In addition, letters are being sent to all of our parliamentary colleagues informing them of our activities and requesting their cooperation in facilitating the work of this committee. We're also going to endeavour to televise as many of our meetings as possible so that Canadians outside of Ottawa will be able to follow our deliberations.

At this point I will seek concurrence in the first report of the Subcommittee on Agenda and Procedure, and I ask for a motion to that effect. The report of that steering committee is before you.

Mrs. Sheila Finestone: I so move.

(Motion agreed to)

The Joint Chair (Mr. Roger Gallaway): We now can move to welcome, from the Department of Justice, Mr. George Thomson, the deputy minister, who is here with others to brief the members of the committee. At this point I will ask Mr. Thomson to introduce his colleagues who are with him and to begin the briefing.

Mr. George Thomson (Deputy Minister of Justice and Deputy Attorney General, Department of Justice): Thank you, Mr. Gallaway, Senator.

I'm here today with Thea Herman, who is the senior assistant deputy minister in charge of policy for the Department of Justice, and Marilyn Bongard, who is counsel with the policy sector and who is playing a major role in the policy work that we're doing on this subject and I think can be a valuable resource to the committee, if you should so wish it.

I'm very pleased to have been invited to address you today on behalf of the Department of Justice.

I might also say I'm very pleased that the committee is addressing this issue. From my perspective, I don't think there are many social policy issues more important than the one you're addressing. It's a difficult issue, but it's an enormously important one. I'm very pleased that it's getting the attention of a committee such as this one.

We received a letter, dated February 3, indicating that you wished us to brief you on a number of issues concerning your area of study. In particular, information has been requested in terms of context, the jurisdictional issue, international experience, children's rights, cultural aspects, and aboriginal peoples. Two sessions have been set aside for that purpose today and I think Monday.

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If it meets with your approval, I thought I'd make a few opening remarks today and make some broad statements about the issue. Marilyn Bongard will talk to you today and can provide you with a legal briefing on a number of the issues that are covered here—basically an overview of the current law and some comparative analysis. We'll be available to answer your questions either after each of us has completed or after you hear from both of us.

I would ask if we might have a brief discussion about your request respecting aboriginal and cultural aspects. It may be that we can provide you with something specific on Monday. I certainly would say that we agree with what I think is perhaps implied in the request, that there is a real need to ensure that reforms take into account cultural diversity.

At a minimum, I would urge the committee—and I'm sure I'm asking you to do something you've already decided—to invite the participation of different cultural groups and aboriginal people who might make presentations from a more direct and knowledgeable perspective than we'll be able to.

I will make a few overview comments and then we can determine whether we go into the next presentation or questions.

[Translation]

Now that a growing number of Canadian families are facing the prospect of either separation or divorce, the question that we are hearing more and more is whether family court is the most appropriate forum for resolving family disputes. Indeed, the issues surrounding the dissolution of a family are only partly legal.

Most parents and children experience psychological and emotional upheavals. Furthermore, many feel that the very nature of the judicial process, which is confrontational at heart, often magnifies the problems that families face. Of course, the primary concern is the effect of divorce on children. Often, divorce forces one, if not all, family members to change residences. Divorce often results in a financial crisis which may lead to a substantial drop in the standard of living of children and in turn impact their psychological development and well-being.

[English]

That realization was a driving force around what we saw as the first stage of this overall reform effort, the child support initiative. It was backed, as you know, by research literature that underscored the importance of ensuring that children are able to continue to benefit from the financial means of both spouses. That continues to be confirmed in the literature.

There is a recent article in the October 1997 issue of Family and Conciliation Courts Review. We're in the process of having that translated. We'll make it available to you. It's entitled “The Effects of Divorce and Custody Arrangements on Children's Behavior, Development and Adjustment”.

It's quite a good article in that it summarizes the consensus among a group of experts from developmental and clinical psychology, social welfare and the law. That group sought to evaluate the existing empirical evidence regarding the ways in which children are affected by divorce and the varying custody arrangements that can follow divorce.

I'll quote from the article:

The extent to which children receive economic support from their nonresidential parents is consistently associated with positive adaptation. Simply put, children whose nonresidential parents continue to support them financially are at lower risk of extended educational disadvantage than those whose nonresidential parents do not pay any child support.

The child support initiative, as you will know, in addition to being an initiative in itself, did focus even more attention on the custody and access issues. There were a number of custody and access issues that related to the child support initiative and were part of that package.

In the course of the hearings on that bill, both the House of Commons Standing Committee on Justice and Legal Affairs and the Senate Standing Committee on Social Affairs, Science and Technology heard many witnesses who raised concerns and spoke about the need for reforms in this area.

My experience, in different roles relating to family law matters, is that custody and access issues, as everyone knows, promotes vigorous debate. People often have very different, often deeply entrenched, views about what problems should be emphasized and what changes should be made.

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At the Senate hearings many witnesses raised concerns about the rights of non-custodial parents and the need to restore greater balance between the rights of fathers and mothers. On the other hand, others argue that insufficient recognition is given to the primary parent role of one of the parents when developing custody and access arrangements.

I'm certainly not suggesting these concerns are invalid or that they should be ignored, but I believe there's a real obligation to examine custody and access issues through the lens of the needs and rights of children. This is certainly the focus that is required by the UN Convention on the Rights of the Child.

I note that the Minister of Justice, in introducing the motion in the House requesting the establishment of this special committee, made reference to the fact that all concerned Canadians should reject the temptation to cast this review as a debate between the interests of mothers versus fathers. If I'm not being too bold to suggest it, I think it's very important for you as a committee, if you're to move forward in dealing with the challenge of parenting after divorce, to retain this strong focus on children and meeting children's needs.

One approach may be to attempt to discuss the values we as a society want to bring to bear in raising our children. I would suggest that there is in fact a good deal of consensus that the best interests of a child are served by parenting arrangements that best maintain the child's emotional growth, health, stability and physical care, taking into account the age and stage of development of the child. There are as well few Canadians, I think, who would not accept the need to protect children from violence, abuse, neglect and high conflict where those prove to be issues in the divorce itself or the parenting arrangements.

The UN Convention on the Rights of the Child sets out the best interests of the child as the standard for decision making, and I think this provides for flexibility to take into account the specific fact situations associated with each child, and as we all know, each child is different. Those are facts that often vary widely and matter greatly as one is looking at each individual arrangement. Few would disagree, I think, that individualized justice is a particularly important objective when dealing with disputes involving children.

What I think makes your work particularly hard is that there's also a need to balance that flexibility of the best interest test with the need for families to have some legal predictability. And if one is wanting to produce settlement of these matters generally when they arise, that predictability can be an important tool in bringing that about. And the lack of predictability and consistency in the law has the potential to result in even greater litigation. So this poses an interesting challenge, and one that I know the committee will undoubtedly be examining.

I believe the law already discourages protracted litigation as a means of resolving parental disputes. There are a number of ways in which that's done: bringing in experts, case management techniques, attempts to get to resolution through pre-trial proceedings, those kinds of things that happen in custody cases. But I would argue that it's really important to go even further in exploring all avenues for encouraging parents themselves to consider and resolve their parenting issues.

You will no doubt hear from those who will question whether it is in women's interest to use alternatives to the court, such as mediation, to resolve family law issues. The argument is that women suffer from having less power in society in general and within their family, and that this makes it impossible for them to negotiate a resolution as equal partners. I would agree that this is a serious issue in all instances of non-traditional dispute resolution and it's undoubtedly critical, particularly critical, if there's evidence of violence or abuse in the family relationship, because this is the thing that, more than anything else, can create the power imbalance.

However, I think it's also important in looking at the issues of power imbalances between parties not to idealize litigation and the formal court process. To what extent does litigation actually succeed in redressing power imbalances between parties? How often does it simply take power away from both parents and hand it to their lawyers or the judge? I suspect there will be witnesses appearing before your committee hearings who will be complaining about the formal court process and how often it is used by one parent as a means of exerting power over and abuse of the other spouse or parent.

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That's why I think it's really important to look carefully at this power imbalance issue and to have an openness to solutions, including solutions out of the courtroom, that may protect from the potential of power imbalance but help the parties get to a negotiated and agreed-upon solution in these cases.

I think you will also hear from people and groups advocating a strong statutory presumption of some kind—for example, a presumption in favour of joint custody. On this point I would like to refer again to that article I talked about earlier, summarizing the consensus of the interdisciplinary group of experts.

I'm going to quote from the article as follows:

Most children of divorce want to maintain contact with both parents, and some researchers have shown that the maintenance of an ongoing relationship between nonresidential parents and their children is associated with better adjustment by children. The effects of maintaining contact with both parents are less profound and less consistent than might be expected, however. In part, this seems to reflect the fact that increased contact between nonresidential parents and their children often involves increased and continued contact between the two former spouses. When the relationship between the two parents is civil, the benefits of continued contact with each parent are more apparent than when there is substantial conflict between the two. In some circumstances, the level of hostility between the two parents is so high and so recalcitrant that children are harmed rather than helped by frequent contact with each of their parents.

In my view, this type of research conclusion does validate what in general is the across-the-board Canadian approach, federally and provincially, not to impose joint custody orders in the absence of agreement or consent of the parties, or where it seems very clear that the parties can rise above the conflict between themselves to function as the ongoing parents they continue to be after the divorce occurs.

It would not be, in my view, in the child's best interest unless the parents demonstrate an ability to work together amicably and constructively enough to set up their own co-parenting arrangements. It is risky when a court sets that up for them and imposes it upon them against the will of one or both of them.

That, I think, highlights the need for the committee to consider carefully all the different demands you'll be hearing about the need for strong statutory presumptions of one kind or another. Once again, it highlights what I think is the most important task—that is, to look at all the ways one can enable parents to create and maintain a relationship as parents that continues beyond the end of their time together as husband and wife. It's the ability to help them get to this that I think is the best predictor of best results for children.

Finally, as deputy minister I really want to pass on one key message today, which is that we're very eager to support this committee in its work. We will be following your public hearings, live and on TV, and your consultations with interest. We look forward to what should be an interesting, comprehensive and knowledgeable discussion and debate. If there is any way we can provide support to you as you're doing your work, we'd be eager to do that. We're certainly quite prepared to share with you any of the research we're able to generate or obtain.

As you know, we've been examining this area for some time. We issued a discussion paper awhile ago on this issue. We view the task as attempting to alleviate the negative impact of divorce on children. We have been looking to clarify the legal values, assumptions and language that could be used to promote a child-focused federal reform approach.

Our research has included compiling background statistical information about families in Canada, which we would propose to give to you on Monday. We've collected a significant body of interdisciplinary literature respecting the needs of children. We've been looking at the legislative models and procedures in other jurisdictions, which I think can be quite helpful.

So I simply repeat my offer to be of whatever assistance we can. I thank you very much for giving me a chance to make this presentation this afternoon. I'm in your hands as to whether we should move immediately to Marilyn or whether you'd like to have some discussion first.

The Joint Chair (Senator Landon Pearson): I think we'll have some questions now.

Ms. Bennett.

Ms. Carolyn Bennett (St. Paul's, Lib.): Thank you very much.

In some ways, you've answered almost all of my questions with your original presentation, which is terrific.

I was very lucky over the break to have 12 family lawyers and mediators come to the constituency office to meet with me and give me a “heads up” on what they thought the issues were, many of which you've outlined. If I heard them correctly, they saw that maybe the law is not necessarily the problem, but there is a problem in terms of implementation.

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Their number one concern was resources. I think that was in terms of the number of judges, how busy the judges are, the education of the judges, and the availability of mediation on the site, because, as you pointed out, a lot of parents are able to come to these parenting arrangements on their own.

The second concern was actually the language. I think when we talked about the presumption of joint custody, that losing custody is demeaning and what will the kids think, this bone that everybody's fighting over seems to be as much language as anything else. As a group we wondered, if you got rid of the word “custody” and just talked about parenting arrangements, how much further along could we be if there wasn't that bone to fight over. Of course, there was always some interest in international disputes that would probably be more difficult. Anyway, that was just something we tossed around.

The third concern was education, both of the family court judges and of the public, whether that's videos in the Shoppers Drug Mart or whether it's just an ability to find out what you usually need to do in these situations. Also, there's education of the kids. It needs to be in the curricula of schools. Kids need to know when it looks like they're being treated in a not child-centred manner. And we're concerned with how we get the kids to be...whether it's calling the kids' help line or whether it's just letting them know what is good even when it comes to their picking a partner and then parenting themselves.

I wonder, because I think a lot of people feel that in 1993 there was a good discussion paper, and where do you think we've gone since then? How do you respond to our little focus group?

Mr. George Thomson: We're going to agree with each other in large measure here, because I think you've identified correctly three important issues.

On the resource issue, the number of judges you need is obviously dependent upon how well you're able to support people, and getting the answers that don't need your coming before a court and a judge. That's why I think the education, the professional, legal and other support that's given to parents on their way to the judge, can have an enormous impact on how long a waiting list there is in front of the judge.

I used to be a judge, and my direct experience is that the more and better resources there are available to the court, or in particular to the parties, the less the risk of a contested and painful custody dispute.

One of the initiatives we have under way is to try to expand the unified family court across the country. I think we're about to announce the next expansion of that, and there are some provinces that are ready to move quite quickly to more rapid expansion of that court. Some provinces already have the unified family court, which has usually a greater expertise and more resources and the ability to deal with all the problems that are brought before the court, rather than just some of them with others going off to another court. I think that's one way of ensuring that whatever resources you have are as good as they can be.

I think your language point is an enormously important one. I do believe the words “custody” and “access” have come to be known as “winner” and “loser”. I think they tend to obscure the fact that people don't stop being parents after they don't live together with one another any more. They still have parenting arrangements to worry about, and they're still going to be parents, regardless of what kind of contact there is. So I think talking about it in terms of how one arranges the parenting and enables people to perform their parenting roles from the perspective of the child, and looking at it that way with potentially quite different language, could be a very beneficial approach and we'd be very eager to hear your views on that.

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The education point I think is equally true. There are some programs at the provincial level that are increasingly focused on educating parents about the issues that arise when their marriages are coming to an end. Ideally, getting that information earlier is important, but people tend not to focus on that until they are facing the real problem. Often they are not initially in the best possible frame of mind to hear that information, but that's not a reason not to give it to them, because what tends to happen is parents go through stages when their marriage comes to an end and they do get to a point when that information, which didn't seem terribly useful at the beginning, when they were into denial or anger with one another, suddenly becomes quite useful when it comes to sorting out an amicable arrangement, if possible.

Lastly, your point about educating children is very important. I even think there's some evidence out there that older children in particular, if they have the necessary information, can actually play a positive role in helping parents get to an answer that works for the children. I think that's linked to giving them the information they require.

So I agree with all three points.

Ms. Carolyn Bennett: One thing I didn't highlight is this. Once dissolution becomes inevitable, is there some benchmark time we could put on this to see how we are doing? Some of these things seem to drag out and leave these children in the marital home for far too long. Is it possible ever to set a target?

I know those 20% who are going to be in litigation forever are a problem, but is there anything we as the government can say about how long you can leave kids in a household that's fighting? Or do we just need more mediation, more judges—more stuff?

Mr. George Thomson: I'm not sure I know the answer to that. If the parents themselves aren't seeing the problem and turning to help, it's often hard to know the impact the ongoing conflict is having on the children, but the research shows that if it's a very serious conflict it's clearly having an effect. Some of the laws that might be strengthened around encouraging those who are seeing the children out of the home to contact someone, particularly where there may be a child welfare concern, I think are important and might be strengthened.

For myself I think the answer is that once the parents come to the realization, and in most cases they do that before the damage is beyond the point of being repaired with the children, we ought to have resources available quickly, to have a process that begins quickly and works with them quickly, although I think it's important to recognize that people do go through stages and that their openness to finding answers with their former spouse, or their separated spouse, can vary over time. So you can't always get them to an amicable settlement, or you may get them to something they can't live with afterwards.

The big thing about an amicable settlement is it should take into account the fact that the children's needs change. If I were looking back on some of the mistakes I made as a judge, it was sometimes by imposing an answer that made sense for the children who happened to be in front of me, at age whatever it was, but five years later it would actually get in the way of good parenting arrangements. Then the process wasn't very good for coming back to have that changed. I think plugging in the flexibility to adjust where appropriate, without having rigid rules that become a source of conflict between the parents, can be a very good thing.

The Joint Chair (Mr. Roger Gallaway): Senator Cohen.

Senator Erminie J. Cohen (New Brunswick, PC): Thank you. I have two brief questions. I just wanted to compliment Carolyn on two points she made.

Parenting instead of custody is an issue that came up when we were discussing Bill C-41. We heard from a lot of witnesses that the word makes a very big difference.

As for educating children, when you talked about the videos that go on sale at Shoppers, I was remembering the heritage briefs we're seeing on television now, which are teaching us about the history of Canada. They are just seconds long, but they make a big impact. Kids would clue into that immediately.

I wanted to ask you this, Mr. Thomson, and forgive me if you have already addressed this; I was late. We know many custody and access cases are handled successfully by parents. Are there any data that can tell us what percentage of cases require court resolutions, how many per year?

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Ms. Marilyn Bongard (Counsel, Family, Children and Youth Section, the Department of Justice Canada): The statistics will be the subject of a presentation on Monday. There will be a fair bit of detail on what statistics we have and what we don't have.

With respect to those that have gone to court, there are data. What we don't know about, of course, are the ones that don't go through the court system. We can't predict that and don't have firm information. If you can wait until Monday, the researchers will be making a presentation on that kind of information.

Mr. George Thomson: It is clear that the vast majority of custody disputes are settled between parents, and with or without counsel or others. By “vast majority” I mean almost all, and that's important to keep in mind. Even if they start court proceedings, most proceedings are resolved long before they get to a contested dispute before a judge.

I think that links back to the issue of equipping parents to understand the needs of their children so they're more apt to negotiate something that rises above the conflict between them and reflects the child's needs. So the issue is to equip them, whether through expert support or just information, because most parents want the best for their children. To get to the right answer is enormously important because that's the vast majority of cases.

Senator Erminie Cohen: You may have covered this already, but is the department waiting to consider all the recommendations before bringing forth any further legislation?

Mr. George Thomson: Yes, our very clear intent is to wait to hear from this committee before making any specific legislative proposals.

Senator Erminie Cohen: Thank you.

The Joint Chair (Senator Landon Pearson): Mrs. Finestone.

Mrs. Sheila Finestone: Thank you very much.

Mr. Thomson, I'm very pleased to see you here, particularly with the background of knowledge you have, because my first question relates specifically to judging.

By the way, Carolyn, that was a great list and thank you very much.

The issue of the unevenness of decisions from the courts, whether it's on the matter of custody, access, or revision of access rights and the mandatory obligation, as it would seem, under subsection 16(1) to return to the courts every time you want to breathe or make a move, is of serious concern to many parents. It has been the cause of more delays and more cost to the custodial parent and the non-custodial parent. This is what we heard when we took a task force out to examine these issues.

First of all, are you planning to present a review of case law for us that might indicate where the unevenness occurs and perhaps why this unevenness occurs? Is it related to federal-provincial jurisdiction? Is it related to the nature of the appointment and lack of training of judges? What is the reason for this really serious confusion of interpretation of legal custody versus sole custody, versus exclusive custody, vis-à-vis access, etc.? Where would you put your finger with respect to that, and has there been any ability to look at that in your case review?

Mr. George Thomson: I can provide a partial answer and my colleagues may want to add to it.

I think you're correct that there is unevenness of decision making. Maybe it's all right for me to say this as an ex-judge, but the research tends to show that particularly areas such as our background, our values and our upbringing play as large a role in our decision making as anything else if we're judges. So it may be understandable, in an area that is as emotional as this one, that the personal perspective of the judge can play a substantial role.

I think there are other reasons as well. The best interest test, which promotes individualized decision making, is also probably the vaguest test in all of law in the sense that it doesn't tell you much. The fact that the test invites such individualized decision making can produce the very effect you talk about.

I think a second reason is the enormous difficulty of the issue. One of the best examples is when two parents separate and enter into a custody and access arrangement, and then one of the parents or the custodial parent wants to move to another jurisdiction because of job opportunities, a new relationship or whatever it is. There are no issues more difficult than trying to balance the need for the other parent to have ongoing access, along with the need to help this parent to get on with his or her life in a way that makes sense. In fact, the economic issue I talked about that has such a direct relationship to the child may be very much tied to whether that parent can go somewhere for another job or another kind of living arrangement.

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I raise that not to say that I know the answer for sure, but just to say the complexity of that issue is almost sure to invite different decisions from different courts.

The third reason, I think, is that it ties in to the point I made a bit earlier, the absence of unified family courts across the country. I'm a strong believer in that because it tends to produce judges who are usually appointed because of their background in the area and who have a special interest in family law and a special interest in continuing to learn.

A key issue in this area is a willingness to continue to learn, because the research out there is helping us a great deal, but if one is not hearing about that research or learning about what we are learning about children, then one is going to move forward as a decision maker to take that research into account. So I think that at least having judges who will spend a fair amount of time in this area, ideally in a unified family court, can help to solve this. I think a real commitment to ongoing judicial education in this area is enormously important.

I know I'm running on, but the last point is that the best answer of all is to reduce to a minimum the number of times judges have to make these decisions by helping the parties to make their own. I will continue to say that.

Mrs. Sheila Finestone: I don't know if society has evolved that far yet, but I tend to have that as a hope.

I'd like to know what your attitude is about a school for judges. There ought to be a mandatory school for those who are appointed as judges, and I don't care if it's an appointment to the Supreme Court, the Federal Court, a provincial court or whatever court. A judge is a judge is a human being and is full of errors and “misspeaks”.

I really believe it's vital that they understand they're living in a multicultural society, which imposes certain constraints on language. They're living in one of the few societies in the world that has equality rights for men and women as a fundamental right in this society. We're living in a society where children's rights have become very fundamental to the process with which we live. And we're living in a society where Beijing exists and all the changes with respect to women and women's rights as well as children's rights have a very profound impact on how they should be thinking and rendering decisions.

That does not exclude the fact that I have equal concerns for fathers' rights, grandparents' rights, second-parent families' rights and the right to mobility and access. All of those things being a given, I think it's a disgrace to buy into the principle that a judge is beyond education. So now that I've made my point rather clear—

Some hon. members: Oh, oh!

Mrs. Sheila Finestone: —you can't say no.

Mr. George Thomson: It's actually easy, because I agree with your point.

Mrs. Sheila Finestone: Oh, that's fine. Then don't bother to answer.

Mr. George Thomson: I do believe that judicial education is enormously important. I would only say that I think we've made some progress in that area over the last twenty years. There are more programs for new judges than there used to be. There's special programming for unified family courts.

Mrs. Sheila Finestone: Are they mandatory?

Mr. George Thomson: In some provinces they're mandatory, or at least every judge is expected to go. I don't know whether that means they all go or not, but I'm fairly confident that in most provinces...I'm thinking of the provincial judges who decide a lot of this. With federally appointed judges there usually is a program. The National Judicial Institute has created what I think are called “new judge programs”.

As well, we've just recently put a fair amount of funding into some work being done by the National Judicial Institute to create some social context training courses on issues like the diverse population we have and how decision making should take that into account. They have developed a unique program that they're just now making available to judges across the country.

I'm agreeing with you, but I'm also saying that I think we're making some progress in that area, although there's more to be done.

Mrs. Sheila Finestone: That's very encouraging.

I have a question for our co-chairs. In the list that was suggested, that we understand the multicultural reality, I hope that you will please provide us with a copy of sharia, which would indicate to us where the problem lies in the judgments on custody and access and how one can deal with the international aspects. Having just come back from learning about some serious problems with recovering children who have been abducted, I have some questions in terms—

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The Joint Chair (Senator Landon Pearson): We'll pass the question on to our researchers and our clerks.

The Joint Chair (Mr. Roger Gallaway): Thank you, Mrs. Finestone. I'm very relieved to know that Mr. Thomson agreed with you.

Now we will move on to our next witness, Ms. Bongard.

Ms. Marilyn Bongard: I'm here in my capacity today as counsel of the family, children and youth section of the federal Department of Justice, which is in the policy sector of that department.

My work respecting custody and access has primarily a legal focus—specifically, a federal law reform focus—and within that context I'm involved in monitoring the custody and access provisions, which are sections 16 and 17 of the Divorce Act, and the many legal issues relating to these provisions.

In my briefing to you today I thought I would be most useful by attempting to provide you with an overview of the law governing child custody and access in Canada. This involves three things: an overview of the legislative and jurisdictional framework, including a description of the current provisions of the Divorce Act; a brief review of the department's public consultation that the deputy has referred to....

A public discussion paper, which I understand has been distributed to the committee, was released as part of that public consultation.

Finally, I'm going to try to provide you with an overview of the emerging reform trends internationally, which I think you'll find very interesting. There are a lot of them. Specifically today I'm going to try to refer to some of the changes that have been made in the United States, in the U.K. and in Australia.

First I will give an overview of the jurisdictional framework.

Family law is an area of overlapping constitutional jurisdiction. The Constitution Act, 1867 reserves the area of divorce to the federal Parliament. The provinces, however, have jurisdiction over property and civil rights and over the administration of justice.

This means that Parliament has exclusive jurisdiction to legislate in the area of substantive divorce law, which it does through the Divorce Act. This statute governs not only the granting of a divorce but also what are known as corollary relief proceedings. This includes the making of support and custody orders, pending and post divorce.

Essentially, the rest of family law matters is governed by provincial or territorial legislation. This includes adoption, child protection and property division, which even includes the property of married spouses.

Mrs. Sheila Finestone: You are talking about Canada.

Ms. Marilyn Bongard: Canada. Sorry, this is—

Mrs. Sheila Finestone: Madam Chair, I really want to make an observation, and I do this with much regret.

It would have been far better had we had a grid in front of us and then had the explanation so that we could see the comparative views of where is federal, where is provincial, who has what rights and responsibilities. So may I suggest that in the future, particularly coming from our justice department, they provide us with that kind of information and preparation.

Senator Anne C. Cools (Toronto Centre, Lib.): I was anticipating that, so that some of us could read it.

The Joint Chair (Mr. Roger Gallaway): I think Mr. Thomson is next.

Mr. George Thomson: I'm simply going to say that we can prepare that. In fact, we are in the midst of preparing a chart like that and then having it translated and making it available to the committee. I think that's a good idea and we'll do that.

Mrs. Sheila Finestone: Thank you very much.

The Joint Chair (Mr. Roger Gallaway): Senator Cools, do you have a comment?

Senator Anne Cools: Yes. I was just saying to get some of the information in advance.... Some witnesses obviously can't provide us with information in advance, but I think the Department of Justice, with a rather massive staff, should be able to do so.

Ms. Marilyn Bongard: As I was saying, essentially, aside from divorce, the rest of family law matters is governed by provincial or territorial legislation. This includes adoption, child protection and property division, which includes the property of married spouses.

Provincial and territorial legislation also governs all matters related to the separation of unmarried couples, known as common-law spouses.

In other words, provincial legislation, rather than the Divorce Act, would apply when support and custody issues arise outside of the divorce context. Examples are where the parents were never married or if the married parents decide to formalize a separation agreement rather than proceeding directly to divorce.

Another important point to emphasize is the provincial-territorial jurisdiction over the administration of justice. This is a critical and often complicating factor when examining law reform in this area. Although the Divorce Act falls within federal responsibility, provinces have jurisdiction over the administration of the courts. This means that even with respect to Divorce Act matters, court processes, court mechanisms, procedures and rules are all provincial matters and governed by provincial-territorial legislation. Similarly, the enforcement of court orders, including a Divorce Act order, is a matter that's dealt with through provincial legislation. Also, community- and court-based services relating to the administration of justice, such as parenting education courses, mediation courses, supervised access programs—all those services fall within provincial responsibility.

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In summary, federal responsibility is really quite narrow in the scheme of things, but it's arguably critical because it is the Divorce Act that sets out the laws and rules about how post-divorce child custody and access determination should be made by the court. Also, in a practical sense, almost every amendment that's made to the Divorce Act has some potential implementation impact on the provinces and territories. Reform initiatives, by necessity, require coordinated federal, provincial and territorial efforts.

That's the jurisdictional context within which the Divorce Act operates, and there's also a social context. When a marriage breaks down, arrangements have to be made for the custody, care, upbringing and maintenance of children. In many cases, these issues can be settled between parents, with or without the assistance of lawyers, mediators or social workers. The agreement can then be incorporated into a consent order or a separation agreement and legally recognized and enforced.

Some disputes, however, cannot be resolved by agreement. There may be genuinely complex issues requiring court intervention or the dispute may involve serious allegations that are being challenged or denied by one of the parents and that may require a court determination as to facts. In these contested cases, arrangements must be determined by the courts.

In a legal sense, therefore, the court is the forum to resolve disputes, and it is the statutory laws that provide the rules to guide decision-making functions. This is what the current provisions of the Divorce Act do.

Subsections 16(1), 16(4) and 16(6) confer a broad discretionary jurisdiction on the court to make a custody or access order granting custody to any or all children of the marriage. The order can be for any one or more persons for a definite or indefinite period and subject to such other terms, conditions or restrictions as the court thinks fit and just. Subsection 16(8) provides that the court, in making an order respecting custody or access, shall take into consideration only the best interests of the child of the marriage as determined by reference to the conditions, means, needs and other circumstances of the child. An additional guideline is provided in subsection 16(10), which indicates that a child should have as much contact with each parent as is consistent with his or her best interest and that the court should consider the willingness of the person from whom custody is sought to facilitate this contact.

I've left a bit out, but essentially that's a summary of the custody and access provisions of the Divorce Act. They're not really all that complicated. They're really quite brief when you compare them to some of the statutes in other jurisdictions. As all of you know, these provisions have received a lot of critical attention. Just about every one of the provisions that I mentioned has been criticized, although often differently by different people, and the views are often polarized, often along gender lines. And there's also very little consensus as to how the provisions should be amended. This brings me to the next topic, the Department of Justice's public consultation that was undertaken back in 1993-94.

As stated in the discussion paper, the purpose of that consultation was to review the need for change to the current law respecting custody and access and to seek input respecting the seriousness of the problems and the nature of alternatives that should be pursued. I understand a copy of that blue public discussion paper has been provided, so I won't go into too many details. I would suggest that all of the issues, concerns and criticisms that were identified in the paper are still relevant today and will very likely be raised by witnesses who appear before you.

• 1630

The key issues include the following: very basic concerns about the appropriateness of the adversary system to deal with disputes about children; criticisms about the terms, custody, and access; the need for statutory presumptions to provide legal certainty and also to address problems of gender bias; concerns about domestic violence and abuse and the need for legislative clarification to ensure violence and abuse are properly considered in the making of custody and access determination; and many concerns about access issues, including the rights of grandparents to apply for access and the need for better access enforcement.

So what were the messages the department received from this consultation? I think the major message to come out of the consultation was that while there was widespread agreement that there were major problems, there was an enormous lack of consensus on how to resolve them.

Some other themes also emerged. It was, for example, evident that there was, and I would suggest there continues to be, a great deal of uncertainty about the terms of custody and access, complicated by the fact that a wide variety of different terms are used to describe parent-child relationships post-divorce. In particular, there's confusion about the term “joint custody” and whether it refers to joint physical custody or joint legal custody.

Joint physical custody usually refers to divided residence arrangements. The child actually physically resides about half the time with each parent. This is different from joint legal custody, which is usually interpreted to mean the parents have equal decision-making authority with the child and likely an active involvement with the child but the child will likely reside primarily with one parent. “Co-parenting” is another term that is often used to suggest the frequent and active involvement of both parents.

Whatever the term, the idea of joint custody was mentioned often in the consultation as an alternative to the concept of sole custody. That traditionally implied a bundle of legal rights that was vested in the custodial parent. The consultation confirmed that many people feel the use of the term “custody” in the Divorce Act, which implies sole custody, promotes the idea that one parent, the custodial parent, has a superior parenting status over the other. They feel not only is this unfair but it encourages custody battles and fights over the label—who is going to be the custodial parent. As I will mention at the end of my presentation, several international jurisdictions appear to have accepted this criticism and have developed reforms designed to replace this notion of custody.

The consultation also confirmed the desire for more legal certainty. The deputy minister touched on this. Currently the Divorce Act provisions require that each case be decided on its unique facts and circumstances. The sole criterion to resolve the disputes is the best interests of the child. This means the court is obliged to consider in each particular case what a particular child needs and which of the adults seeking custody before the court can best meet those needs, but it provides little guidance to the judge about what standards to apply. This has resulted in criticisms that the test does not provide any clear direction for the resolution of disputes and that it in fact promotes qualitative judgments, different judgments based on individual judges' beliefs.

It's clear from the consultation that many felt statutory presumptions were required to provide legal certainty, because it currently is very uncertain, but it was also clear from the consultation that there were very different and conflicting views about what those presumptions should be. From a policy perspective—from my perspective—it's very difficult to reconcile demands for a presumption of joint custody and also primary caregiver presumption. Both of these presumptions were strongly recommended in the consultation.

On this point I want to mention that case law, especially at the Supreme Court of Canada level, has consistently supported the best interests of the child principle. Madam Justice McLaughlin's judgment in Young v. Young and Gordon v. Goertz analysed the arguments supporting a legal presumption but rejected the idea, noting that it tends to render the inquiry more technical and adversarial than necessary. Instead of both parties simply presenting evidence on what is best for the child, the focus shifts to who has proved what and whether the presumption has been rebutted.

• 1635

That's a kind of technical, legal.... But it is the Supreme Court of Canada saying it likes the flexibility of “best interests of the child”.

Probably the major message to come out of the consultation is a confirmation that the public places very high expectations on the law to provide answers to issues that are very complex, highly emotional and often only partly legal in nature. Family breakdowns cause very difficult problems that result in much upset and heartache to everyone involved.

When I read the submissions back in 1994, I was particularly struck by the sadness and anger that came through so strongly in so many of them. But I was also surprised that so many of those people also believed that the law could address the problems they were facing.

I think it's important to attempt to analyse this public expectation.

We know that a vast majority of divorced actions are uncontested. The parties are able to reach agreements about their post-separation parenting arrangements.

We also know that the legal rules contained in legislation like the Divorce Act play a role in how parties reach these agreements. The parties' understandings and perceptions of the law guide the negotiations, and this is intensified when lawyers get involved. The eventual arrangements that are worked out are, at least in part, based on what the parents perceive to be their basic rights and obligations as set out in the statutory laws. This may be in part why there are such high public expectations.

Lawyers and legal people tend to think of the Divorce Act provisions as technical, real, legal rules governing the granting of a divorce. Most other people, however, see it as much more, and in fact are looking to the Divorce Act to help them deal with the crisis of marriage breakdown that they are going through.

I think this kind of analysis can be of assistance in developing a reform perspective. It suggests, for example, that in some cases a court order may take on a meaning way beyond the strict legal context within which it was made. It may, for example, be interpreted by one or both of the parties as almost a moral judgment.

For example, a court may deny a request for joint custody based on the legal considerations mentioned in the Divorce Act, but it can be viewed as much more by the parent whose application was denied. To him it may be interpreted as a moral indictment of his worth as a father and as a parent. Viewed in this way, it's not surprising that his reaction will be strong and emotional and likely critical of both the judge and the law. He may even complain about the case and about the judge to his MP.

Senator Anne Cools: It could be a her.

Ms. Marilyn Bongard: The issue of access enforcement is another example of the problems and complexities that arise as the result of high public expectations about law reform. Many concerns have been raised by fathers about custodial mothers who limit or refuse access visits and about the courts' unwillingness effectively to enforce their access order.

The reality is that there are few statistics available and it is difficult to assess the exact nature and seriousness of the problem. It's been noted, for example, that the failure by non-custodial parents to exercise their access is an equally serious aspect of the same issue.

Currently there are no specific provisions in the Divorce Act respecting access enforcement. That's because it primarily involves the enforcement of a court order, which is a matter dealt with through provincial legislation. It's also because there are real limits about what the law can do in this area. While there are some practical legal responses that can be put in place to assist with support enforcement—garnishment of wages, for example—there are no obvious legal mechanisms to ensure a successful aspect.

I think the real solution is to provide services to assist parents to work out the interpersonal and psychological dynamics underlying the dispute. Too many couples, I think, turn to the legal system with expectations that it will provide a solution to the many problems they're facing. However, because their problems are often related to interpersonal dynamics, the legal response doesn't resolve, and in fact intensifies, the dispute.

• 1640

I think this is a challenge. It's a challenge for me as a policy person, but I think it's important to try to explain this dilemma to parents who are looking to the Divorce Act changes to answer their problems.

As I noted at the beginning, the current Divorce Act really only rather briefly mentions custody and access and the provisions do little more than authorize courts to act as a decision maker to resolve disputes and impose custody and access orders.

I think it may be possible to utilize the statute to provide a more extensive framework within which parenting arrangements can be developed. This has been the approach of some of the other jurisdictions, which is what I want to move on to now.

As I indicated, many jurisdictions have reformed their custody and access legislation over the last decade. Today I'm going to refer to the U.K. and briefly review some of the states in the United States and Australia.

In England, and if you thought the early part was tough going, this—I will try and slow down. We will be providing a chart, hopefully.... The deputy was saying it might be more useful if I briefly went through it and then relied on the chart—maybe to come back to summarize it after you have the chart in front of you.

In England the reforms were made through the Children's Act, 1989. The terms “custody” and “access” were abandoned and replaced by something called “shared parental responsibility”. This continued parental responsibility is maintained after divorce and it's defined in the statute as all the rights, duties, powers, responsibilities and authority that by law a parent of a child has in relation to the child and his property. It's almost a guardianship concept.

The act indicates that parental responsibility can be held by a number of people and a parent does not lose it even when others acquire it. The legislation also notes that where more than one person has parental responsibility for a child, each of them may act alone and without the other in meeting that responsibility, but nothing shall be taken to affect the operation of any enactment that requires the consent of more than one person in a matter affecting the child. This is what I've been trying to figure out—how they are going to interpret.

An important aspect of this act is that the courts are directed to make an order only if they consider that doing so would be better for the child than making no order at all. This is a very strong message that the courts are to be used as a last resort only. If the courts do decide to make an order, they are authorized to make four types: a residence order about where the child is to live; a contact order, essentially access or visitation; a specific issues order to determine a particular issue that has arisen out of some aspect of the child's upbringing, such as which school the child should attend; or a prohibited-steps order, which would prevent anyone from taking a particular step in the child's upbringing.

Subject to these orders, each parent remains a parent and can behave as such towards his or her children while they are with him or her. There is no duty of consultation with the other parent.

Whenever a child is with one parent, whether it's for a long period or just a short access or visitation, that parent is entitled to make all the decisions that are reasonably necessary during the period. A parent who objects to a decision taken by the other may seek a court order to overrule the other parent but is of course subject to the strong statutory message that court orders are only to be made as a very last resort.

So that's essentially the Children's Act. I should indicate that it applies in a much broader sense than just parenting arrangements. It applies to all children.

An hon. member: How long has it been this way?

Ms. Marilyn Bongard: That was put into effect in 1989.

Senator Duncan J. Jessiman (Manitoba, PC): Can you provide us with any history on the experience?

The Joint Chair (Mr. Roger Galloway): Excuse me, Senator. Ms. Bongard, Have you completed your presentation?

Ms. Marilyn Bongard: No, I have not.

In the United States, like Canada for the most part, divorce is a matter for the state and the laws vary dramatically from state to state. I would suggest a really good resource for the committee is something called The American Bar Association's Guide to Family Law. It's put out by Times Books and it provides a summary of the different states' legislation.

• 1645

Most American jurisdictions continue to have legislation that utilizes the language of custody and access, and usually custody refers to the rights and duty to care for a child on a day-to-day basis and visitation refers to just access-like rights.

Most American statutes also contain many more explicit presumptions and far more detail as to factors to be considered than is contained in the Divorce Act.

Some American states encourage or have a presumption in favour of joint custody. The American Bar Association report indicates that in 1995 eleven states had a statutory preference in favour of joint custody. Actually, that's far fewer than about ten years ago, when a whole bunch more had it. They have since changed.

North Dakota, Oklahoma and Louisiana have a specific presumption that joint custody is not in the best interests of the child when there is evidence of domestic abuse. Texas bars joint custody completely in cases of domestic abuse.

Other American states have adopted a continuing shared parental responsibility model. In contrast with the U.K. Children's Act, these tend, in the states, to include a specific duty to confer with the other parent on decisions regarding the child.

An example of this is Florida, which defines shared parental responsibility as a court-ordered relationship in which both parents retain full parental rights and responsibilities with respect to their child and in which both parents confer with each other so that major decisions affecting the welfare of the child will be determined jointly. Florida legislation provides that the court shall order that the parental responsibility for a minor child be shared by both parents unless the court finds that shared parental responsibility would be detrimental to that child.

One of the more interesting pieces of legislation is Washington's Parenting Act. The legislation replaced the terms “custody” and “visitation” with the concepts of parenting plans and parental functions. Maybe the best thing to do would be to suggest that the committee read the case of Littlefield v. Littlefield, which was in the Supreme Court of Washington. It provides an extensive discussion of Washington's legislative scheme and explains some of the very interesting background.

The Washington legislature had repeatedly refused to enact joint custody law and year after year had declined to state as a matter of public policy that frequent and continuing contact with both parents would be in the best interests of the child. This is their compromise legislation. It essentially focuses on the concept of parenting plans as the primary tool in Washington.

Australia is the last jurisdiction that I'll attempt to review. Its revisions occurred in the Family Law Reform Act of 1995. It adopts a continuing shared parental responsibility modelled on, but not exactly the same as, that in England.

The act provides that both parents have continued shared parental responsibility following separation unless a court orders otherwise. Parental responsibility is defined as all the duties, powers, responsibilities and authority that, by law, parents have in relation to children.

It's stressed that this is a statutory concept and there is no reference at all in the statute to parental rights. It is strictly responsibilities.

Unlike the U.K., in Australia the court is authorized to issue only one type of general order for the care, welfare and development of the children, and it's known as a parenting order.

It's emphasized that this order deals with all aspects of the parenting of the child and that it has a number of elements, including residence, contact, maintenance and specific issues.

A parenting order may be applied for by either or both of the parents or any other person concerned with the care, welfare, or development of the child, and the court can make a parenting order dealing with any or all of the constituent elements.

The Australian legislation does not adopt the U.K. idea that parental responsibility automatically goes with a residence order. In material accompanying the reforms it was emphasized that this new scheme is different from the one it replaced, and they didn't want simply the term “resident” to replace the term “custodial parent”.

• 1650

I suppose, just to summarize, there's another case, the case of B v. B, which is a judgment of the full court of the Family Court of Australia at Brisbane. It provides, again, a really full discussion of the Australian legislative scheme.

I suppose I can even undertake to pass these out. I suppose I have to get them translated. They're very lengthy cases.

That's all I had planned to say. I hope it's been useful. I know it's kind of overwhelming.

Mrs. Sheila Finestone: Put it on the website.

Ms. Marilyn Bongard: Actually, the Australian one is on website.

Mrs. Sheila Finestone: It would seem to me that a number of the matters that have been so carefully drawn to our attention might well appear on the website for the constituency that's going to be very interested in this and would want to share the learning at the same time as we are sharing it. It would certainly be easier for my staff if they could pull it off there instead of pulling books out of the library.

I would like clarification of one statement that was made that perhaps I missed. I'm sorry. Would you tell me when I'm allowed to ask that question?

The Joint Chair (Mr. Roger Gallaway): Yes, I'll tell you that, but it's not at this time—

Mrs. Sheila Finestone: That's what I figured.

The Joint Chair (Mr. Roger Gallaway): —because I'm sure we have other people.

Mr. Forseth.

Mr. Paul Forseth (New Westminster—Coquitlam—Burnaby, Ref.): Just as a matter of interest, did you write the presentation that you made today?

Ms. Marilyn Bongard: Yes.

Mr. Paul Forseth: How many people are in your section on policy related to the Divorce Act? Is it you, and that's it?

Ms. Marilyn Bongard: You're looking at it.

No, I have a number of colleagues with whom I work, and somebody from the research section will be making a presentation on Monday. I have colleagues in the family, children and youth section who are certainly knowledgeable and helped me. But this is essentially my—

Mr. Paul Forseth: I asked that because we're going to be coming back to you for lots of resource material and comment and help.

In your section, do you have anybody who's ever practised family law and had hotly contested custody disputes at the Supreme Court?

Ms. Marilyn Bongard: I have not.

Mr. Paul Forseth: In your section, do you know?

Mr. George Thomson: I'm not sure of how we should answer that. I guess I'm related to that area and, yes, I've been involved in thousands of them, I think, over the years. And there are lawyers in the department who have practised in this area.

In the particular area, Ms. Bongard is in charge of this policy issue. There are others in the department as a whole: the research side, the group that's dealing with support, those who have been looking at Young Offenders Act issues.... There are people there who have had a range of involvements in the past, but other than that, I'm not sure of how to answer that question and whom we would cover in that.

Mr. Paul Forseth: I'm just trying to get at that, beyond what's on the paper, beyond reading cases, there's a particular sensitivity and a social-cultural understanding, to which I think you've alluded, that is accomplished by someone who's an expert in the field, who's got years of experience of practising in that area. I say this because there's so much beyond the law that's of expectations and of human behaviour and psychology and sociology and psychiatry.

I think that's largely why this committee exists, because there's a lot of that other stuff out there and there's all kinds of political anxiety and all the rest of it. Somehow we've got to get hold of that stuff.

The Joint Chair (Senator Landon Pearson): I think that's what we intend to do with our lists of witnesses.

Mr. George Thomson: And I would strongly reinforce that. There are a number of disciplines that have important information to give on this issue, and it's important that the committee hear that information.

The Joint Chair (Senator Landon Pearson): Absolutely.

Mr. Paul Forseth: I'll end my comments by narrowing in on the issue of the enforcement of, say, access, or the enforcement of custody.

You talked about leaving it to the provinces. Has the issue of perhaps putting in there a section that clearly defines powers of enforcement, including a summary conviction offence, and spelling out as a Canadian standard how orders can be enforced, not only for its practical implication but for its symbolism...? We know we cannot legislate people to be nice to each other or to cooperate or to be reasonable, and the best made orders often evaporate into smoke if people just want to be unreasonable. But that whole subject of legislating in that area and providing a Canadian standard of enforcement around custody and access, with the addition of an offence of summary conviction....

• 1655

Mr. George Thomson: As Ms. Bongard said, the issue of enforcement of access or visitation rights is a very difficult issue when it comes to what is effective and what isn't. I would encourage the committee to think carefully about the question of whether you achieve a great deal by criminalizing the issue and having it dealt with in essence as a criminal law matter.

My own sense is that in general you have more success through work you do with the parties themselves when there are access difficulties than by making it easy or potentially attractive to move into a criminal law enforcement model. There are questions about how effective even that is, when it exists. Clearly the committee should look at that issue and look at the experience in jurisdictions that have such criminal penalties, but I'm not sure that's a terribly effective method in other than a relatively small number of cases.

Mr. Paul Forseth: My point was just whether you had looked at that question and whether there were any background papers or whatever on that topic.

Mr. George Thomson: I think we can give you information about where such laws exist. I think we can provide you with some material that analyses those laws. We'll have to do some looking at it. I think we've done some looking at it already, but to the extent we have that, we would be happy to make it available.

The Joint Chair (Senator Landon Pearson): Madame St-Hilaire.

[Translation]

Mrs. Caroline St-Hilaire (Longueuil, BQ): Thank you for your presentation. You referred briefly to visitation and custody rights. I'm not an expert on the subject. If I understood correctly, there is a problem with overlapping jurisdictions. Separation is a provincial matter, whereas divorce comes under federal jurisdiction.

If we were to look at the issue of child custody and visitation rights, would this not give the committee a clearer picture of the situation in other provinces insofar as separation is concerned, so that we would know what to do in the case of divorce? I'm not an expert, but perhaps this would give us an overview of the issue.

[English]

Mr. George Thomson: As a first answer—Ms. Bongard may want to add to this—I think looking in a comprehensive way at what other jurisdictions do could be very helpful to think about what the system as a whole would look like. Then of course there's the task of adapting that to the federal structure we have. Some of the other jurisdictions are federal jurisdictions, but they have tended to divide up family law issues in a different way from the way we have.

It's particularly complicated here because a lot of custody issues and the enforcement of issues of custody and the support side are provincial, but then when the divorce comes there's this overriding Divorce Act power to determine custody and access. But maybe looking at what other jurisdictions do as a whole will give you a good sense of what you would recommend as the appropriate federal role within the constitution and how that might complement what should happen at a provincial level. That could be very helpful.

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

Senator Duncan Jessiman: The laws were strengthened as far as those who don't pay are concerned, and we were all for that. Are we giving some consideration to strengthening the laws where access is refused; they pay, but they are not getting access?

• 1700

Mr. George Thomson: Senator, I think that's very much an issue for this committee to look at. We did talk about it just a minute ago. I think the question becomes what is the best way to achieve that.

Senator Duncan Jessiman: Right.

Mr. George Thomson: I was only expressing some concern about whether use of the criminal law power is the best way to achieve that.

I do think this is a very difficult issue. This may sound somewhat utopian, but I think in general most parents, when they can get away from the issue of how they feel about each other, do want positive arrangements for their children, and over time, at least, can be persuaded with some expert help to see the child's needs as ahead of theirs. I think an emphasis upon helping them to get the support and understanding necessary to resolve the custody dispute is probably the most effective way to deal with it in most cases.

The question becomes, in those few cases where that doesn't work, what do you do then? That's where I would suggest you might want to look at the experience of other jurisdictions that have relied on this criminal law enforcement model. I think the results there have been mixed, which is not to suggest they aren't effective in some cases. It's just that they're not effective in other cases.

Senator Duncan Jessiman: I have one other question, if I may.

The Joint Chair (Senator Landon Pearson): Yes, all right.

Senator Duncan Jessiman: We know Ontario is introducing mediation for problems other than family problems. Is that being considered anywhere, and is it used anywhere else, in any other jurisdiction?

Mr. George Thomson: Mediation for family law disputes?

Senator Duncan Jessiman: Yes.

Mr. George Thomson: Yes, it's used very broadly. In fact it's used extensively in Ontario, but not as part of that particular initiative. It's very extensively used in Quebec, both in relation to economic issues and custody issues. B.C. has recently taken some steps, through their family law centres, to broaden access to methods of getting parents to sit down and try to negotiate an answer.

I would say that conciliation or mediation is available to the extent resources are available in most jurisdictions. I'm not sure I can tell you the extent to which the law in each jurisdiction reinforces or requires it, but we could find that out for you. The chart we're going to bring you will show you the extent to which the law requires it.

Senator Duncan Jessiman: So some do require it. And is it final, or is it mediation up to a point and then if you're not happy you go to the courts? Or could it be final arbitration?

Ms. Marilyn Bongard: Quebec right now is the only one that actually requires it, and they actually offer some free mediation.

Senator Duncan Jessiman: But is the decision final on the parties, or after they're finished can they then appeal?

Ms. Marilyn Bongard: It's mediation. It's not arbitration. They agree—

Senator Duncan Jessiman: Oh, so it's like conciliation and labour disputes.

Ms. Marilyn Bongard: Yes.

Senator Duncan Jessiman: Has it had some success?

Ms. Marilyn Bongard: I think there are probably going to be many people appearing before you who will talk about the successful mediation that they have—

Senator Duncan Jessiman: Thanks, madam.

Senator Anne Cools: Can I add a thought on to that on the issue of mediation, just before my own questions? Would that be possible?

Mrs. Sheila Finestone: Sure, if it's up to me, Anne. Go ahead.

Senator Anne Cools: Thank you. To the witnesses, the Hon. Mark MacGuigan recently passed away, and when he was Minister of Justice he put a fair amount of interest and departmental money into the issue of the study of mediation. Could anybody tell me, what was the outcome of those studies and why was the interest abandoned by the department?

Mr. George Thomson: Actually, I think there is a fair amount of ongoing research both here and in the United States on the issue of mediation. I do know in the province of Ontario, from which I come, there was a quite extensive evaluation of the mediation programs in the unified family courts that existed. There have been various research studies, and I think Ms. Bongard can summarize where they take you.

I do know there is some research that suggests that where the parties are properly assisted, both in terms of expert support and legal support, solutions they can mediate and come to not only can be reached more quickly but in fact are more apt to succeed on a long-term basis.

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Equally, there's some research that suggests the issue of power and balance in mediation is a real issue, particularly where there has been abuse. Mediated solutions where one of the parties has been the victim of abuse are less apt to be really consensual agreements come to between the two parties.

Senator Anne Cools: My question is that the department itself took very important initiatives and examined the issues in mediation itself. What I'm looking for is what their conclusion was and why those studies have been abandoned. It's almost an internal question.

Ms. Marilyn Bongard: My understanding is that the policy about mediation generally and the department's desire to support it are really limited by the fact that if you put a requirement for mediation in something like the Divorce Act, follow-up services have to be available at the community level for people to be able to participate in it. So the issue is really working with the provinces to see if there's...and they have, as I tried to point out at the beginning, the responsibility to provide these services. It's really a matter of federal-provincial negotiation, money, working out the cost associated with it. I don't think there's any philosophical....

Senator Anne Cools: Right. I think the answer may be a political one as well.

Mr. George Thomson: Senator, I know Mr. MacGuigan did put resources in to help establish organizations such as Family Mediation Canada—

Senator Anne Cools: I know, because I persuaded him to do it.

Mr. George Thomson: They are working on developing standards addressing the issue of certification of mediators and so on.

Senator Anne Cools: Yes. I know quite a bit about Mr. MacGuigan's initiatives. I helped him a bit with some of them.

I have a couple of questions. I've listened to your presentations with some care, and what I'm terribly curious about is that I get the distinct sense that your presentations have not canvassed what I would describe as the current era of public discussion, and even provincial discussion, on some of these questions. I'll give you an example.

In Manitoba quite recently I thought a fantastic study was chaired by David Newman, a member of the Manitoba legislature. It was called the Manitoba Civil Justice Review Task Force Report. Its membership included several judges. It was a very interesting, a fantastic, venture between the legislature and the local judges. They canvassed a lot of the issues. I'm just curious that this has not been mentioned at all today. I invite you to respond to that.

In addition to that, about a year before that, a similar, and I would say perhaps an even more comprehensive, review was attempted in Ontario, at the behest of the then Attorney General of Ontario, now Chief Justice, Roy McMurtry. That came forward in another excellent report, called The Ontario Civil Justice Review. Many of the issues that need to come forward came forward. I'm just wondering whether in your canvass and in your review of the current discussion you have considered these reports and their recommendations.

Mr. George Thomson: Perhaps each of us can answer this.

I'm not familiar with the Manitoba report. I do know a fair amount about the civil justice review in Ontario. It did address a number of issues that I assume would also be in Manitoba, relating to such things as mediation, case management, ways to try to manage the court process so it's more efficient, which was very much the focus of the civil justice review in Ontario. There are aspects of that relating to the functioning of the justice system, the court system, which could be useful to this committee. We would be happy to make that available to you.

Senator Anne Cools: Excellent.

I will go to three issues in your studies and the department's initiatives in certain areas. We all agree and we all know that violations of court orders are a serious offence. I wonder if you could tell me what studies and what data the department has undertaken in the area of the violation of access orders by the custodial parent as against the non-custodial parent. I would like to know what studies you've undertaken and what sort of data you have on that.

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Ms. Marilyn Bongard: There was a report commissioned by the Department of Justice to review access enforcement throughout Canada. It was done by somebody named Marnie McCall, and I believe it's available through the Department of Justice.

Senator Anne Cools: Excellent. So we could have a copy of that?

Ms. Marilyn Bongard: It's a technical research report.

Senator Anne Cools: Good.

Senator Duncan Jessiman: Is it recent?

Senator Anne Cools: Yes. Senator Jessiman, go ahead. What is the date on it?

Mr. George Thomson: Three or four years old.

Ms. Marilyn Bongard: 1996.

Senator Anne Cools: On another issue, which is widely discussed these days, what kinds of studies has the department undertaken on the issue of what I would describe as the forced disengagement of a parent, usually the non-custodial parent, from the child's life?

There's an enormous literature and language developing around this phenomenon. Some call it “parental alienation”, but basically it is when one parent forces the other parent out of that child's life, using whatever technique that parent has to. What sort of studies have been done?

The reason I'm asking this, Mr. Thomson, is that, as you recall, many years ago when we had the divorce bill before us, in 1985, many of these issues were then raising their heads. But around that time we felt we couldn't, for whatever the reason was, proceed with them. But at the time there were all manner of undertakings that these studies would be pursued. So I'm wondering what has the department done in this area to study and what kind of data have they brought forward?

Mr. George Thomson: I don't know of any work, and neither do my colleagues, that's been done within Justice on the extent to which parents alienate other parents against the child. I don't know of any work we've done.

My guess is there may be research that's been done elsewhere, or by other disciplines, and we could see if we're able to find any of that, if it's there, and if so we could try to make that available. But I don't think there's any research we've been part of. I'm certainly not aware of it.

Senator Anne Cools: My final question.

The Joint Chair (Mr. Roger Gallaway): Is this your final question?

Senator Anne Cools: Final.

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

Senator Anne Cools: On the question of...and I draw a lot of this from the jurisprudence because I've studied a fair amount of the jurisprudence, and also from the civil justice report and the Ontario civil justice report, what kinds of studies has the department undertaken on the use of what is commonly being called “false accusations” within a judicial proceedings, basically where a parent, one parent or the other, attempts to seek an advantage over the other parent by basically accusing the other, usually the non-custodial parent, falsely of sexually abusing the children?

I would also note, honourable colleagues, that in this most unpleasant situation we've had in the past several weeks, which has been bedevilling President Bill Clinton, I observe that the major antagonist, Monica Lewinsky, herself was the subject of false accusations in divorce proceedings when her parents divorced.

It is certainly a widely known phenomenon. I'm wondering what studies has the department undertaken on this and what are the results?

Mr. George Thomson: We don't have any specific study we've done, and I do need to say that the amount of research money we have to do our own independent research is quite modest, but what we tend to do is to research the literature and to see what's been written on the subject or what work has been done elsewhere and to gather that.

Ms. Bongard tells me that she has a review of the literature on both of the issues you've raised, and we can make you aware of the literature we've reviewed, but we've not done any independent research.

Senator Anne Cools: Then I would offer you some of the research my office has been doing and I can offer you, as a department, some jurisprudence on the judgments.

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

Mrs. Sheila Finestone: I shall move to my questions. Thank you.

You talked about the study you had done in terms of enforcement, and you have some information about enforcement and enforcement mechanisms. I was curious to know if you had broken it down along federal-provincial lines and if we know where those measures seem to have been less or more effective by province.

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Ms. Marilyn Bongard: As I mentioned at the beginning, technically enforcement really is a provincial matter.

Mrs. Sheila Finestone: I know that, but you pointed to a study that has been done and that you're going to share with us. I'm merely asking one simple question: is there information that has it broken down along federal-provincial lines?

Ms. Marilyn Bongard: Yes, it is a collection of all the different enforcement mechanisms out there, broken down by province.

Mrs. Sheila Finestone: Broken down by province. Okay. Thank you very much. That's my first question.

Second, Mr. Thomson, you said—and I believe I have it right—that with expert help you do believe there will be fewer approaches to the courts and that we would have a more effective system with expert help.

Mr. George Thomson: Yes.

Mrs. Sheila Finestone: I would agree with that as a potentiality, but behind it goes a commitment by the government that you represent here today of, first of all, political will, and secondly, financial commitment, to ensure that mediation or whatever other support mechanisms are needed are in place.

In Quebec, just for the information, by the way, of my colleagues, as well as an answer that you didn't give fully, there is one mandatory mediation session. Subsequent mediation sessions are available with a certain amount of pay scale. It would be interesting to note how many people avail themselves of this, but I guess you can't do that.

Anyway, what are the implications along what I would call a general analysis in terms of the economic level of the population that is going to have a divorce? Is it the economics of the families approaching the court for mediation that is not allowing them to pursue a mediation course because it isn't free or isn't it available?

Those are issues that I think...if we wanted to look at that, we would find ourselves terribly constrained and, I suppose, rightly so. But if we are to come up with some kind of an enlightened decision, sir, that this is the answer to your reducing of the number of judges, less assurance of the outcomes of the courts, better ability to apply the best interests of the child tests and all the issues that you felt would lower the court confrontations and contestation.... Can we even think along those lines if there's no political will and no financial means? And I'm not suggesting our minister doesn't have the political will or the financial means, but what about your department and yourselves?

Mr. George Thomson: If I'm being asked to suggest what the committee might do in this area, I certainly think there is value in identifying the kinds of supports that from your perspective would be the most helpful or have been shown to be the most helpful, in your view, in helping parents get to resolution. I think that's an important task regardless of the level of resources, because there are resources being spent on these kinds of services. And I recognize that they primarily provincial resources. And of course it's important to know they're as well spent as possible.

We are making resources available in a couple of ways. For example, there is the child support initiative, through which we provided resources to all of the provinces. Some of them are using those resources to establish family law centres that deal with more than just support, and they are testing out models of dispute resolution.

As well, with the provinces that are proposing to expand their unified family court, we've been saying to those provinces that if we appoint a number of their provincial judges who work in this area to the unified family court, that will save them the resources now being spent on those judges. And our willingness to do that, we would suggest, should be tied to their willingness to use those savings to provide resources to those unified family courts so they can provide services to the court. And that's a way in which indirectly we think we're going to be able to increase the services available.

So that does speak to a federal role at least, and that's why I think it's legitimate for this committee to consider the kinds of services and supports that you would think would be most effective, given the fact that resources are always finite and one ought to make the best choices with whatever resources are available.

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Mrs. Sheila Finestone: This is my last question in that regard. I know there was a commitment to use some of the finances that would be new income, as a result of child support orders, to enhance the services and support mechanisms to the children.

In the light of the fact that we have very little control of where the financial support goes in the provinces—and we've actually given up our rights in many ways in that regard—do you know and do you have information that shows us the difference, in support measures and in access to any kinds of support mechanisms or the courts, between urban and rural, south and on the border up north? I wonder whether or not there is a degree of unevenness that we would have to address.

For me anyway, this is now the third or fourth time around the clock. Quite frankly, I think those groups that want to intervene must be getting a little fed up, as I am. So before we start on this little venture—which is not a little venture and which is a very emotional venture for many people, as well as a very trying one for the members of this committee—I want to have some knowledge that we have the interest and the information needed and some decision as to whether or not we should even bother going to the north, the south, the east, and the west, never mind the five major cities. We only have about five left in Canada.

So I'd like an answer, if you've found a question in there.

Some hon. members: Oh, oh!

Mr. George Thomson: Well, I think I identified a question that would lead me to say we can tell you what the provinces are doing with the resources we're making available through the child support initiative. And those are not modest; there's a fair amount of money available there. We might be able to give you some sense of where that money is being spent, but I'm not sure we can.

The second issue you're raising relates to the savings to the provinces that come from the increased child benefit. Human Resources Development are the ones who have that information to the extent they have it about what the provinces are doing with the savings. To the extent that information is there, we can give it to you. For the purposes of a number of provinces, it may not be possible yet to tell you how that money is being spent. I have doubt about whether we would be able to break it down by areas within the provinces. So it may mean we can't give you as much information as you would like to have in deciding where you would go, if you were going outside Ottawa on this issue.

Mrs. Sheila Finestone: Thank you very much, Mr. Thomson.

It's very important for us to recognize that there is new income going into every single, solitary province. I'm sick and tired of being tarnished at the federal level with the fact that there aren't sufficient funds. There is a very fine amnesia that takes place with respect to various areas of service that could be enriched through provincial funds. There are new provincial funds available, as a result of federal action, in many fields.

Thank you.

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

I think upon your return, Mr. Thomson, you'll find that sometimes we operate on the hybrid level of the Socratic method in a Rorschach test.

Some hon. members: Oh, oh!

The Joint Chair (Mr. Roger Gallaway): It is now approximately 5.25 p.m., and Senator Pearson has a point of clarification.

The Joint Chair (Senator Landon Pearson): I have one quick question that emerged out of your discussion of unified family courts. I have to confess that I don't know a great deal about this field. Could you explain to me what a unified family court is, please, or what you hope it will be?

Some hon. members: Oh, oh!

Mr. George Thomson: I think the way to describe it is to say that because of section 96 of the Constitution, some matters must take place before judges appointed by the federal government. Other matters do not have to be before such judges.

So what's grown up over the years, where there's not a unified court, is that federal courts deal with those matters they must, such as divorce, division of property, and the things that go along with divorce. But then other family law matters, such as support and custody on the way to divorce, the support of people who are not married, adoption, child welfare, and young offenders matters, if they're within the family area, happen in front of the provincial courts. And enforcement of orders can be in front of the provincial courts, although the orders that are made may be by those federal courts.

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That creates a real confusion for people who have to go through the courts. It can create a requirement to go to more than one court to have your family matters dealt with and it can be an inappropriate use of resources in an area where the need for resources, as we've already talked about, is particularly important.

What a unified family court does is create a court where all of the matters come before a federally appointed judge who has jurisdiction for all of those issues. That's why, for example, there are provincial judges who are no longer working in the area when you do that, because the work they were doing moves into this unified court, which has judges appointed by the federal government.

The real advantage is that there's one place you go for all family law disputes, ideally they're all dealt with at one time and together, and whatever supports and resources you have in that community are focused on one court rather than on potentially two in the same community. That's why it's seen to be an advantage.

The Joint Chair (Senator Landon Pearson): Okay, thank you. But I understand it's different in different provinces. Some provinces are reluctant and others are keener.

Mr. George Thomson: Yes. Some provinces have moved already to the unified family court. Most of Manitoba, most of Saskatchewan, Prince Edward Island, New Brunswick, and not all but most of Newfoundland, at least the large urban area, have all moved to unified family court, and Ontario has a partial family court.

The next expansion would probably involve Nova Scotia, which has just passed a law to allow for unified family courts. Ontario would expand considerably. Saskatchewan and Newfoundland want to get somewhat larger as a unified family court. Other provinces are either studying the issue or, as in the case of Quebec, have decided they don't wish to go the route of the unified family court. Alberta has said that at this point it doesn't see itself moving to unified family court. British Columbia is studying it.

The Joint Chair (Senator Landon Pearson): Thank you. That's very helpful.

The Joint Chair (Mr. Roger Gallaway): Thank you, everyone, for your presence and for your testimony today.

This meeting will now adjourn until next Monday at 3.30 p.m. Thank you.