SJCA Committee Meeting

SPECIAL JOINT COMMITTEE ON THE CHILD CUSTODY AND ACCESS

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

EVIDENCE

[Recorded by Electronic Apparatus]

Wednesday, April 29, 1998

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[English]

The Joint Chair (Senator Landon Pearson (Ontario, Lib.)): Good morning. I think we will start the meeting now. We're a few minutes late. We have a very heavy schedule today with many witnesses and we need to keep things moving.

I'd like to welcome everyone here today and to start by reminding us all what the mandate of our committee is.

The mandate of this special joint committee is to examine and analyse issues relating to custody and access arrangements after separation and divorce, and in particular to assess the need for a more child-centred approach to family law policies and practices that would emphasize joint parental responsibilities and child-focused parenting arrangements based on children's needs and best interests.

We welcome as our first witness today, from the Government of Alberta, Mr. John Booth, who's the counsel for family law.

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Mr. John Booth (Counsel, Family Law, Government of Alberta): Thank you, Senator Pearson and members of the committee. As you've noted, I'm a lawyer with the family law branch of the Alberta Department of Justice, and I'm representing the Alberta government this morning. In that capacity, I would first like to welcome the committee to Alberta and to Calgary.

Earlier this year, in February, the co-chairs to this committee wrote to the Honourable Jon Havelock, the Minister of Justice for Alberta. The co-chairs stated in their letter that the jurisdictional overlapping in family law requires a coordinated federal-provincial-territorial approach. In his reply to the co-chairs, Mr. Havelock agreed that solutions must be found through the coordination of federal-provincial-territorial efforts.

In accordance with that approach, I want to speak briefly this morning of a committee of the Alberta legislature that was struck by Minister Havelock in July 1997. Members of the legislative assembly, under the chair of Marlene Graham, the member for the constituency of Calgary—Lougheed, were asked to conduct a two-part review of family law matters in Alberta. The first part of the review was an examination of the Alberta maintenance enforcement program. The second part of the review was to assess whether the role of government in ensuring access was meeting the needs of Albertans.

In the course of its review, the Alberta committee had the opportunity to hear from interest groups and stakeholders in the justice system, had the chance to review a good deal of the literature on custody and access, and examined programs and operations in Alberta and across Canada. Most importantly, the committee had the chance to hear from parents on both sides of the access issue, and those parents spoke very eloquently of their love for their children and of the poor way in which they felt the current system was serving anyone's interests.

The committee had hoped that its report would have been completed by today. Marlene Graham, the chair of the committee, had hoped to be able to present your committee with the report and be in a position to discuss its findings and recommendations. Unfortunately, the report has been delayed, and she's not in a position to do that.

So I want to advise you that the Alberta report is nearing completion. Once it has been completed, it goes to the Alberta Minister of Justice. As Mr. Havelock has indicated to the joint chairs of this committee, once the report is available, he'll provide the committee with a copy. So I regret very much that we don't have the Alberta report to give to you today. I very much expect that when it is available, you'll find it useful in your deliberations.

One of the things I was asked to talk about this morning was the Parenting After Separation program that we have in Alberta. Parenting After Separation is a program designed to give parents insight into the effect of their divorce on their children and to suggest ways in which parents can ensure that a shared parenting relationship continues after the divorce. The project or the program began as a pilot project in Edmonton in 1995. It was a cooperative effort between the Court of Queen's Bench, the Department of Family and Social Services, and the Department of Justice.

The program has now expanded throughout the province, so it is available in Edmonton, Calgary, Red Deer, Lethbridge, Grande Prairie, Medicine Hat, Fort McMurray, and Peace River. Essentially, those are all the judicial districts where there's a Court of Queen's Bench sitting.

The program is mandatory for parents who wish to obtain a divorce. They have to have a certificate from the course before they can proceed with a divorce. There are some cases in which it would not be appropriate to require the parents to attend this course. In those situations, the parents, or one of the parents, can obtain an exemption from the court so that their divorce can proceed without their having attended the course.

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I don't have volume statistics for the entire province, but as an indication of volume, Calgary has issued about 1,500 certificates of course completion between September 1997 and April 1998.

Participants at the conclusion of the course are asked to evaluate the program. A typical comment might be along the lines of initial resentment at being required to take the course, because it's a mandatory course, but then great appreciation for what the course has done. They're asked to rate the course. The average rating for the course is 8.5 out of 10, which is felt to be very high for a course that people are forced to take.

We don't have a formal evaluation of the program at this point, but certainly the response of participants suggests it's a useful course.

That would conclude my remarks to the committee.

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

We'll now proceed with questions.

Mr. Forseth.

Mr. Paul Forseth (New Westminster—Coquitlam—Burnaby, Ref.): Welcome to the committee today.

I would like you to briefly describe just what the course consists of. Is it an afternoon seminar looking at a couple of videotapes? Give us a thumbnail sketch of what is the content of the course. Then I have some supplementals to that.

Mr. John Booth: I'll do my best to answer your question. It's not a program I'm intimately connected with. I have a conceptual knowledge of it.

It's my understanding that it's a six-hour course. It's co-presented by a lawyer and a psychologist-counsellor. I believe it's primarily a presentation. A handbook goes along with it. I know we're in the process of preparing a video that would essentially do the same thing as the course for some of the smaller centres that don't have access to the course itself.

Mr. Paul Forseth: Okay.

Can you describe how you're able to accomplish it legally such that you can say, “Sorry, folks, but you can't proceed beyond this point to get a divorce unless you have the certificate”? Where was the tap, you might say, that you could turn on and off? What was the particular point at which you were able to legally do that?

Mr. John Booth: There's a provision in the Divorce Act that allows rules to be made. I can't tell you the section number offhand, but there is a section in the Divorce Act that provides for that.

Senator Duncan J. Jessiman (Manitoba, PC): What rules? Rules by whom?

Mr. Paul Forseth: You say the Divorce Act. Are you talking about the federal act?

Mr. John Booth: Yes.

Senator Anne C. Cools (Toronto Centre, Lib.): And those rules are made by whom?

Mr. John Booth: Rules of court may be made—

Senator Anne Cools: Hold on—

The Joint Chair (Senator Landon Pearson): Just let him speak.

Mr. Paul Forseth: The administration of justice is a provincial responsibility, and there is a set of rules about the operations of the courts that the provinces pass. They're somewhat similar from province to province.

Okay. So you've done it under that section. Does it come down to the process not being issued, and actions not being put down in a registry, unless the certificate is produced? Is that the kind of point here?

Mr. John Booth: That would be my understanding, yes, sir.

Mr. Paul Forseth: I have a last question at this point. Can you tell us why, in a philosophical sense, you do this course? What are the broader objectives that are hoped for by putting this new wrinkle into the system?

Mr. John Booth: I think the initiative came from the Court of Queen's Bench. As justices saw case after case coming back to court with issues of access and custody involved, there was a feeling, I believe, that although the divorce obviously terminates the relationship of husband and wife, it really doesn't—and shouldn't—terminate the relationship between parents and their children.

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There was a thought that if this was addressed prior to the divorce, it may have an effect on the need to enforce custody and access orders afterwards, and that if parties could agree beforehand, or at least have an insight into their actions, you would have fewer problems afterwards.

Mr. Paul Forseth: You've outlined that most of the major centres in the province are covered, and this is a provincial service. Can you give us some idea of the global budget for this program and if the applicants themselves have to contribute to the costs of the course?

Mr. John Booth: As I said, it's not my program, so I can't do that, but I can certainly take the question under advisement and provide the committee with that information.

Mr. Paul Forseth: Okay. Thank you.

Do you have anything further?

Mr. John Booth: I would just add that it's been expanded throughout the province as a result of the province's implementation activities in conjunction with the child support guidelines. One of the things the federal government asked the provinces to do is to address this type of issue, and that's one of the ways in which Alberta has done that. So there would be some federal funding involved in the expansion of the program.

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

Senator Jessiman.

Senator Duncan Jessiman: Thanks, Madam Chair.

Mr. Booth, what's your position with the provincial government?

Mr. John Booth: I'm a lawyer in the family law branch of the justice department.

Senator Duncan Jessiman: Great.

Do you know whether the Court of Queen's Bench has a special division for family law?

Mr. John Booth: It doesn't have a formal division devoted to family law.

Senator Duncan Jessiman: Any judge in that court could sit on a family court case.

Mr. John Booth: That's correct, sir, but as a matter of practice, some judges devote themselves primarily to family law. In some sense, then, there is a family law bench.

Senator Duncan Jessiman: But it's not the same. In Manitoba, for instance, they have a special division. You don't have that.

Mr. John Booth: No, sir.

Senator Duncan Jessiman: Does the government itself have any mediation services available to people who are experiencing problems in separation or divorce?

Mr. John Booth: Yes. Once again, the Ministry of Family and Social Services has a mediation program available. I believe it's available in conjunction with any family law action, either in the Court of Queen's Bench or in the provincial court.

Senator Duncan Jessiman: And that's strictly voluntary. People aren't obliged to use those. Lawyers are obliged to tell them, under the Divorce Act, that they're available, but there's no compulsion for people to take mediation.

Mr. John Booth: That's right.

Senator Duncan Jessiman: Is it going to be kept secret or can you give us a feel in advance for any of the things that are set? Or are you not in a position to do that?

Mr. John Booth: I'm not in a position to do that, sir.

Senator Duncan Jessiman: Because you don't know or because you've been asked not to say anything?

Mr. John Booth: I'm not privy to what the final report is going to say, I guess, so I wouldn't want to speculate.

Senator Duncan Jessiman: Thanks.

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

Senator Anne Cools: Thank you very much, Chairman.

First of all, let me say to the witness and to our member from Alberta that we're indeed privileged and honoured to be in Alberta. I always like to visit Alberta, as many people here know.

Although I had been expecting Ms. Graham, you look like a perfectly good substitute, Mr. Booth. I've been trying to follow, since we've come, the work you've been doing here. Obviously your group, or Ms. Graham's, has been taking a very serious look at the issue.

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My question is twofold. You mentioned the importance of shared parenting and you spoke as though that was going to form a part of the recommendations. I wonder if you could comment on that—and if you want to get back to your political bosses, I quite understand. We would have hoped to have had the political bosses here before us; the committee labours under a certain handicap by not having a political boss. I wonder if you could comment on whether or not the phenomenon of shared parenting, which I would go so far as to say politically is widely supported across the country, will be reflected in your report.

The second question I would ask you—I'm giving them to you both so that you can contemplate them for your response. In your travels and in your study of the issue I have no doubt that you have heard a variety of concerns and problems regarding the issues. I wonder if you could tell us in a nutshell—just a cameo—what those major points of concerns were.

You can answer the questions in the order you choose, sir.

Mr. John Booth: I'll answer them in the order you asked them, Senator.

First of all, with respect to shared parenting, I can say that the report is very much concerned with shared parenting. I can't really tell you how it's going to deal with shared parenting, but I simply would say that it was something the committee heard about from stakeholders. It was something the committee focused on very much. So there is going to be some discussion of shared parenting in the report and there are going to be some recommendations dealing with shared parenting.

Senator Anne Cools: Do you want to answer your second question or can I respond to your answer first?

Do you have any idea as to whether the committee is looking at including that in provincial legislation? The Divorce Act is not yours to amend, but it is yours to make recommendations on. Is your committee leaning towards upholding the principles of shared parenting in provincial legislation as well?

If I'm asking you questions that should probably be answered by your political bosses, I'm sensitive to your position.

Mr. John Booth: I have some sensitivity, but I can go some way toward answering your question.

It's simple because family law is covered by two levels of government. The committee is addressing its recommendations, where two levels of government are involved, to both levels of government.

In regard to the question you asked, Senator, about the main points of concern that we heard about, first, there was, I suppose, a feeling on the part of access parents that they were really left out of their children's lives. There was a strong feeling about this. Once an order for custody and access is made, it seems in many respects to push the access parent aside so that he or she is an intermittent visitor or a weekend parent. In that way we were concerned.

I suppose the concern, not necessarily on the other side but the overall concern, would be the fact that when you're dealing with issues of custody and access, you're dealing with a limited pool of rights. If you're talking about this in terms of the rights of one parent against the rights of the other parent, then you're dealing with a limited and shared pool of rights. So if you rebalance the equation in terms of rights, there's not a pool of undefined rights that you can take some rights from and give to a party. If you're taking rights away from one group, you're giving it to the other. There is a concern that if the committee is going to make recommendations to rebalance the equation of rights there be some sensitivity towards the fact that those rights come from a shared pool.

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I guess probably the third general focus we heard about was the fact that the current system really does focus on the rights of the parents and it seems that a lot of times the rights of the children or the interests of the children are, if not overlooked, perhaps subsidiary to the question of what is really in the best interest of the children.

Senator Anne Cools: I understand that, but I understand the position you're in and I'm trying to approach my questions delicately.

My last question to you—unless we go for a second round—has to do with child abuse and child maltreatment. We have heard terminology frequently here before us in committee on, one, parental alienation, and, secondly, the use of false accusations of sexual abuse in child custody proceedings.

A point that has been made here before us repeatedly is that the jurisdiction that governs child protection is the provincial jurisdiction, obviously, and usually the child welfare act, and the child welfare act for fifty years has taken no cognizance whatsoever of these two phenomena. I wonder if in your work you have encountered these two phenomena and whether or not in your report you are planning to make recommendations regarding these phenomena to the child protection individuals and to amend child protection legislation to include these forms of child abuse.

Mr. John Booth: I think it is fair to say that there's a recognition of the issues you talk about, and I don't think I can go further to say how we're going to address that or if it is going to be addressed.

Senator Anne Cools: I'm assuming that. I'm just very curious about it. I've done a fair amount of work on this subject matter and I have been impressed that the child protection services are doing a lot—and you know and I know, that the child protection services have been under enormous pressure over the last two years and, let's be quite frank, enormous attack. People are a little sensitive and a little cautious. But what I have observed with the revelations of so many child deaths—and you know how terribly tragic those are—is that a number of the persons involved in the investigations and in the prosecutions, and even during the autopsies and the inquest themselves, have all been raising this issue that somehow or other the plight of children in these circumstances has to be taken note of by the child welfare authorities.

It was very interesting. We were in Vancouver all day yesterday. I had expected people to advance there because in Vancouver, and in Toronto as well, there have been dramatic recommendations that have been made in the field.

I'm wondering if Ms. Graham and Mr. Havelock—I was looking forward to meeting both of them here, and I hope you will convey to them my profound disappointment that we haven't seen any of them. But I'm wondering if you're grappling with that, because the day is over, I would submit, hon. members, where any parent can simply box another parent out of a child's life and the child welfare authorities do not take note of it. I believe that day is a day of the past. That's my own private feeling.

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I guess you haven't made note of it yet. I understand that, because I understand you cannot answer politically, but you could take a shot at it. You can answer certain things.

Mr. John Booth: I can. I guess the comment I would make is a general comment that when there's an allegation of abuse, it's such a difficult situation, because you can't ignore it. On the other hand, you can't ignore the fact that there are occasions when these allegations are made deliberately and they're not true. It's a dilemma.

Senator Anne Cools: Precisely, and who is going to solve the dilemma? Protection, after all, is a provincial responsibility.

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

Senator Jessiman, you have a supplementary question.

Senator Duncan Jessiman: Yes.

You said the committee of your province will give something in writing soon that will involve shared parenting. I would just like to make certain it's shared physical parenting we're talking about and it's not similar to joint custody. There are lots of joint custody orders that are given, but the result is that there's joint custody about a lot of other things but not physically looking after the child on the specific days or whatever. So when you're talking of shared parenting, are you talking about shared physical parenting as well as the other things to do with parenting, such as decision-making and so forth?

Mr. John Booth: Senator, that's something that will be addressed in the report, and I don't think it would be right for me to speculate on what the report is going to say.

Senator Duncan Jessiman: I think it's rather important, because there are lots of orders out there now, we're told, where the courts have ordered joint custody, for all intents and purposes, but in fact one person has access only every second weekend or once a week on Thursdays, or whatever. But if it were joint physical custody, shared parenting or joint physical parenting, there's a difference. We have difficulty, and I want you, the senators and all legislators to be cognizant. We put words in these acts and then the courts get at them and they interpret them differently from what we've discussed.

I'm sure when we are talking in legislation about joint custody, it means something different to almost every person. If you have joint custody of the child, you'd think they'd have equal time with the child, but that's not how it works. I'm not sure whether in all cases that's the way it shouldn't work. Certainly there are a lot of cases where it's not working that way, but that's the way it should be.

Mr. John Booth: I think when the report discusses joint custody you'll find it very well considered. It's not a question of the same old concepts under a different name. I think there'll be some good assistance for this committee in the report once it's available.

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

Senator Mabel M. DeWare (Moncton, P.C.): I have one short question and a comment as well.

During Bill C-41 we received some favourable comments about Alberta's method of dealing with this Parenting After Separation program and that it was working. So you people have a track record here.

I'm quite disappointed that the report isn't ready yet. It was supposed to be ready in the fall. I hope it's ready before this committee finishes its deliberations. We really would like to have access to that.

You mentioned in your comments you have a handbook that you give to the recipients of this six-hour course. Could you make one of those handbooks available to this committee? We'd appreciate it very much.

Mr. John Booth: Yes, absolutely, Senator, I'll do that.

Senator Mabel DeWare: Thank you.

The Joint Chair (Senator Landon Pearson): Senator Cools, we have a long day ahead of us.

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Senator Anne Cools: Yes, but it's not often that we have people from governments themselves who are working on the issue, so this is a very unique and wonderful opportunity.

My final question to the witness is on the issue of the enforcement of access orders. I have been impressed for some time now that the entire power of the state, particularly its coercive powers, stands behind the enforcement of child support payments and orders. The entire power, especially the coercive power of the state, turns into a weakened power when it deals with the issue of the enforcement of court orders regarding access. I just wonder if you could give us some insights into this.

I'm not too sure whether it's a legislative committee. What is it?

Mr. John Booth: It's a committee of members of the legislature.

Senator Anne Cools: So it's a legislative committee. What about the membership? Are all parties represented?

Mr. John Booth: No, I believe it's the governing party.

Senator Anne Cools: The issue is the enforcement of child access. I'm just wondering where they are going with this particular issue. I'd just like to draw out, again for your consideration, the difficulties and problems that are facing many judges in the field. What we have is a situation whereby judges live in fear and panic of so-called interest groups' responses when judges are to make orders basically of contempt of court in respect of individuals who violate access.

I draw your attention to a very famous case in Ontario. It was ruled on by a provincial judge, Judge Patrick Dunn. The case is listed as L.B. v. R.D. This was just a few weeks ago. I believe this judge sentenced this woman in question who had been denied access to 60 days in prison. There was quite a hullabaloo from certain women's groups about that. Let me just read to you what Judge Dunn said:

L.B. has taken the law into her own hands and has repeatedly denied access. By doing so, she deprived her child of a right that this child has to maintain contact with her father.

Her contempt for the court process and her neglect for the need of her child to see her father cries out for serious punishment.

I shall read on because I think this is important.

The Joint Chair (Senator Landon Pearson): It is important, but in order for everybody here to have their chance to speak, please be as brief as you can.

Senator Anne Cools: What I'm trying to say here is this particular case was a collection of what I would describe as pathologies, because it also involves false allegations of sex abuse.

Later on, he said of this person:

L.B. obfuscated, she misconstrued evidence and even tried to mislead the police.... I found L.B.'s evidence to be entirely self-serving, manipulative

—and on and on.

Here is an instance where the child welfare authorities are leaving this problem to a judge, who is burdened with this.

I just put this out to you for Mr. Havelock's consideration. Please convey to Ms. Graham and to Mr. Havelock they should try hard to come to appear before this committee. I think we have a lot to talk about.

Voices: Hear, hear!

The Joint Chair (Senator Landon Pearson): I'd like to inform the members of this audience that this is a parliamentary committee and we bring with us the same rules we use in the House. We request no applause or any kind of interruptions from the audience.

Thank you, Mr. Booth.

Mr. Paul Forseth: I have one brief supplementary. I'd just like to remind the visitors here that they should just think of themselves as being in a court room, and then they'll know how to conduct themselves appropriately.

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I'd like to ask you specifically if there is in your provincial statute a section that is an offence for violating an order. British Columbia has it in their law. Northwest Territories now is contemplating it in their legislation. They clearly have sections that outline an offence that perhaps then could be proceeded with in regular provincial court and then opens up all the available remedies that are under the Criminal Code under the Summary Convictions Act.

Do you have a section like that available, and do you have protocols around its operation?

Mr. John Booth: Currently there's a section in the Provincial Court Act that allows a fine of up to $1,000 or imprisonment for up to four months in the event of a breach of a custody or access order. On the Superior Court side, it's dealt with through the rules dealing with civil contempt, and the remedies would be the same: fine or imprisonment.

One of the things that the legislative committee has done is take a look at the enforcement provisions, because frankly, they're not that well laid out or defined in Alberta. So one of the things the committee is doing is addressing the whole issue of what enforcement provisions there should be.

Mr. Paul Forseth: What I'm getting from you is that even though there's a section in the British Columbia statute, it's not really used, and the protocols around it are such that it might as well not be there. You're telling me somewhat the same, that it has been there but it's not really used, so you're looking at the surrounding support services of how that would operate.

Mr. John Booth: Yes, the committee is really taking a holistic view of the whole thing. They're looking at how custody and access orders are made in the first place; they're looking at issues of access to the courts and to the law, which are particular issues related to Alberta; and they're looking at enforcement issues.

The problem right now is if all you have to enforce is the ability to levy a fine or the ability to imprison, as often as not a fine will hurt the children, and if you imprison someone, that certainly impacts the custodial arrangements for the kids and it may really impair the relationship of the kids with the parent who has complained. So those two are not a good answer. They may be a good answer in some circumstances, but we think we've have to give the courts more ability.

The Joint Chair (Senator Landon Pearson): Thank you very much, Mr. Booth. We look forward very much to receiving the report, and we're sure it will be very helpful in the near future.

Our next witnesses are Sherry Wheeler and Mike Day from the Children's Advocate. Welcome, Ms. Wheeler and Mr. Day.

Mr. Day is going to start. I believe we have a half an hour, so give us good statements that we can ask questions to.

Mr. Michael Day (Child Advocate, Alberta Office of the Children's Advocate): Good morning, ladies and gentlemen. I'm Mike Day, and with me is my colleague, Sherry Wheeler.

We're here this morning as representatives of the Alberta Office of the Children's Advocate. That's a branch of the provincial department of social services. The mandate we have is to work with children who are receiving child welfare services and to work to advance the interests, rights, and viewpoints of those children with respect to matters that affect them under the Child Welfare Act.

We have direct day-to-day contact with children. Our role does not include responsibility or involvement with all children who are involved in access and custody issues, but the children we do deal with who have child welfare status often are involved in custody and access proceedings, and we would be directly involved with children in relation to some of those issues.

So we have assisted children to bring applications in court where they were unhappy with particular access or custody situations. Most importantly for this morning's exercise, I think we've been informed by the experiences of those children and we want to base our comments on what we've heard from children in terms of how those things affect them on a day-to-day basis.

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We certainly want to emphasize that we're privileged to be able to make representations on a piece of legislation and processes that arise out of it that have such significant impact on the lives of children who are affected by those. Again, we want to emphasize that the genesis for our thoughts and observations this morning is the experiences of children and youth who we work with on a day-to-day basis, and we will try to be true to that focus.

It would seem that often adults start from that perspective, wanting to have a child focus. In fact, I think many of the actions that are initiated under the Divorce Act start from that premise. But often, over time, that focus seems to get subjugated to the agendas of the adults involved. We'll try to avoid that pitfall this morning in the comments we're going to make.

The Office of the Children's Advocate in Alberta is a member of the Canadian Council of Provincial Children's Advocates. We're aware that this body made a representation to your committee—I think it was Judy Finlay from Ontario who spoke—and we want to go on record as supporting the recommendations of that particular submission; we agree with the report in its entirety.

Today we want to go on and emphasize several particular themes that we'd like to comment on. I'll reference two of these themes in passing and then Sherry will talk in more detail about a third.

The first theme is the concern that the current system for determining custody and access has the potential to make pawns out of children in an ongoing battle that plays out unresolved conflict between the adults involved and may have little to do with the best interests of children. It's a process that seems to rely on litigious decision-making, and the result of this is that it accentuates the conflict that exists between the adult parties. Often the result is to drive those parties further apart than to bring them together. The concepts that underpin our notions of custody and access originate in property law and speak to parental rights, when from the child's point of view what we need to speak of is parental responsibilities and obligations.

Solutions might include a return to a truly child-focused perspective with respect to these matters, the development and promotion of alternate dispute resolution mechanisms other than the use of the courts, and possibly even the complete transformation of our notions of custody and access.

The second theme we want to comment on is that of access by children and youth to siblings and other extended family members. Our experience is that increasingly there are examples of siblings, half-siblings, and step-siblings who became separated when the families in which they've been raised break apart. Often the relationships between those children and youth are as important as the relationships they have to the parents, and yet all our focus seems to be on the relationship between the adult and the child, rather than the child and these other family members. A solution here may include the incorporation of the child's right to initiate access applications to not only parents but to other significant family members.

I'd ask Sherry to go on and talk about the other theme.

Ms. Sherry Wheeler (Child Advocate, Alberta Office of Children's Advocate): Thank you, and good morning, ladies and gentlemen.

Separation and divorce is a traumatic event for children, regardless of age. When they're told of the decision, they have fears, worries, and questions. What do they wonder about? They wonder: Where will I live? Who will I live with? Do I have to leave? What about my friends? Will we still go on holidays? Will I get to see dad, grandma? What about the dog? What about the cat? How much time will I spend with people? Can I still have lessons, hockey, skating?

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These questions speak volumes on children's interests. The voices of children teach us and assist us to make the best decision possible about their lives.

Why should we listen? Because their lives are forever changed—emotionally, socially, and economically. They have no control over the decision. They have to live with it, and yes, they struggle to accept it. Many experience problems because of it. No child wants to experience the separation and divorce of his or her parents.

To those who are child-focused, to those who put their children's interests above their own, and to those who manage the process without placing children in the middle of conflict, I commend you. Children need just that. Positive parenting is the model.

I speak today on behalf of children and youth. I ask you to consider changes that respect and acknowledge children's rights and their interests during the divorce process.

Canada ratified the UN Convention on the Rights of the Child in December 1991. The convention is in effect and applies in every province across the country. Canadians can take pride in this endorsement of the basic human rights of children.

The Divorce Act should be evaluated for its compliance to the UN convention. Article 2, the right to non-discrimination; article 3, using the best-interest test in decision-making; article 6, maximizing survival and development; and article 12, sections 1 and 2, the right to respect the views of the child and the right to be heard and represented, are principles upon which the convention draws its fundamental values. Given our time limitations, I request you draw your attention to article 12, subsections 1 and 2, and article 3.

Article 12 states:

1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

This article means the child is entitled to express wishes, preferences, fears, and worries. The child brings his and her own perspective to the decision at hand and can contribute positively to a better decision. Let's not confuse it with the right to decide or the right to self-determination.

Adults continue to be decision-makers, whether that is the parent, or, in the judicial process, a judge. The right to decide or to choose would be far too onerous for the child. It would place the child in a compromised position between parents that he and she rely on for love and nurturance. Children need both parents, and divided loyalties must be avoided.

Of course, some children may decline to express an opinion, and that, too, must be respected.

Article 12, subsection 2 reads:

2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural roles of national law.

This article entitles children to participate and be heard in the decision-making process and to be represented by a person who has the child's interests, rights, and viewpoints as their mandate. Given the range of dispute resolution mechanisms that may and should become available, provisions must be made for the child and/or their representative to be heard and participate. Legal representation must be available to the child if in a judicial proceeding—

The Joint Chair (Senator Landon Pearson): I'm sorry to interrupt. You've done the five minutes. Could you come quickly to a conclusion?

Ms. Sherry Wheeler: Yes, I will.

I won't repeat article 3. It's in the convention. It speaks to the best-interest test, which I believe is highly subjective.

The UN committee has recommended monitoring compliance to the convention by suggesting that criteria be established in legislation that is consistent with the principles.

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I refer you to our own Child Welfare Act of Alberta, 1989, which has incorporated the principles and set them out in legislation.

The Divorce Act does not currently afford children rights that I believe could legitimize the real contribution children make in the process. We recommend amendments to the Divorce Act, 1) to entitle children to full and equal party status in all proceedings regardless of age; 2) to entitle children to express their opinion, to be heard and to participate with a representative in all proceedings regardless of age; and 3) to include a section that establishes a set of criteria that are child-focused and intended to guide a best-interest decision.

Thank you.

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

Senator Duncan Jessiman: Thank you very much to both of you. How long have we had the Children's Advocate in Alberta?

Mr. Michael Day: It was incorporated into the operation of the provincial social service department in the latter part of 1989.

Senator Duncan Jessiman: Going on nine years, then. How many people are in your department, approximately?

Ms. Sherry Wheeler: We have two offices, one in Edmonton and one in Calgary. We have a total of 10 advocate staff who work directly with children, and then a management component and the program staff.

Senator Duncan Jessiman: In each what? In each area?

Ms. Sherry Wheeler: Five in each office, approximately.

Senator Duncan Jessiman: Okay. How's your track record in respect to getting the parents to understand their responsibilities rather than their rights, as you've emphasized? Have you seen some success? I know you're only dealing with welfare cases, but some of those cases are people who are separated. Is that correct?

Mr. Michael Day: Yes, they are.

Senator Duncan Jessiman: What I'm trying to find out or get you to tell us is, is this a good thing? And if it's that good, should it be extended?

Mr. Michael Day: I guess we'd need to make it clear that our activity in those situations is really aimed at helping children participate in the process, as opposed to having any responsibility for bringing the adults together.

I think the question you're asking is a vital one. So much of how this impacts children in the end is going to depend on whether the parents continue to see this as a battle or whether they've come to some meeting ground over the interests of their children.

It's not part of our mandate to really work with those parents to bring them together, in our day-to-day work. Most of our work is aimed at helping children participate in the process themselves. There's no doubt that children say to us and anyone else they're involved with that they wish these matters weren't so much of a fight, and I think they say that regularly to their parents as well.

Senator Duncan Jessiman: We have heard others say that they thought children should be brought into the equation. But you've added something, Ms. Wheeler, that we haven't heard before, in saying “regardless of age”. Well, obviously the children have to be of some age, because at certain ages they can't speak, they can't communicate. So even at tender years—three, four or five—you think they should be brought into the equation in some way?

Ms. Sherry Wheeler: I think with children of that tender age, their interests, as opposed to their viewpoints, can still be fleshed out and represented in that decision-making process, whatever it is, whether informal or formal.

Senator Duncan Jessiman: Thanks very much.

Thanks, Madam Chair.

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

Senator DeWare.

Senator Mabel DeWare: I want to thank you for coming before the committee today and expressing your views. It was interesting that you mentioned the siblings and step-siblings of these children. We have had witnesses come before the committee, young girls actually, who came expressly to support a sister or a step-sister. Their testimony was heart-warming because they were there fighting for access or fighting for what their sibling wanted.

Could you, as advocates, yourself appear on behalf of one of the children that you work with in a divorce situation?

Mr. Michael Day: In an actual court situation?

Senator Mabel DeWare: Yes.

Mr. Michael Day: To my knowledge, we haven't actually appeared in court with children. We have at times arranged legal representation for them. Sherry and I are not lawyers ourselves, although we have some legal people in our program. We have arranged for formal legal representation.

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I would think there may be situations in court where we could appear with children as a support to them—and I'm thinking of applications under the provincial Domestic Relations Act—but to my knowledge, it hasn't happened at this point.

Senator Mabel DeWare: The other thing is, you were talking about the children and your discussions with them about having access to a half-sister or a step-sister or a step-sibling. Do they mention having access to their grandparents?

Ms. Sherry Wheeler: Yes, I've had children who are quite interested in grandparents, aunts, uncles—people they have known. The issue is that children will tell us who is significant to them in their lives if we start to ask the questions: Who's important to you? Who cares about you? Who understands you? Who do you trust? In that way, we then can look at the wide array of people who children have an interest in maintaining contact with.

Senator Mabel DeWare: As you know, the grandparents' associations from across the country that have been coming before our committee are very concerned at the fact that there are cases where they are totally shut off from having access to the children. So it would be interesting to hear the children's viewpoint, because as you know, there are always three sides to every story, and our concern in this committee is sometimes we don't have the ability to hear the other side.

I really appreciate that you're working with children. We're really looking forward to hearing the report coming out of Alberta.

Thank you.

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

Ms. Diane St-Jacques (Shefford, PC): I will ask my question in French.

[Translation]

[Editor's Note: Inaudible]

[English]

[Editor's Note: Technical Difficulty]

Ms. Sherry Wheeler: —families, and it's up to those people who are representing them to, on an individual basis, support their individual requests.

Would you add anything?

Mr. Michael Day: I'm sorry; I didn't hear the question.

Senator Mabel DeWare: She'll repeat the question for you, if you like.

Ms. Diane St-Jacques: Do you want me to repeat it?

Mr. Michael Day: Please.

[Translation]

[Editor's Note: Inaudible]

[English]

[Editor's Note: Technical Difficulty]

The Joint Chair (Senator Landon Pearson): —different interests, if one is more interested in being with the father at one point instead of being with the mother, and what kinds of procedures you have to deal with that particular situation.

Mr. Michael Day: Our position would be that the children are individuals, the same as adults are individuals, and they're entitled to support to express their particular point of view. In our day-to-day work, as long as the varying opinions of the children aren't in conflict—they may be different, but not in conflict—a particular advocate or a particular legal representative could support those children.

We have had situations, though, where the interests of children are in opposition to each other, and the answer in that case is they're entitled to independent support. So if it were support being provided to our program, we would assign a different advocate to each child. If it were going to be a matter dealt with in the court, each child should have their own legal representative.

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Ms. Diane St-Jacques: Thank you.

The Joint Chair (Senator Landon Pearson): I have just one brief question before we end.

Some children have expressed to us the concern about when the arrangements are imposed upon them and they don't feel comfortable in one situation. They're afraid sometimes to express fear at staying overnight somewhere. There's no one they can turn to to allay that fear. I wondered whether the role of the child advocate could ever be that—someone who a child in a situation where they were feeling very uncomfortable, spending overnight or something, could phone. Is that even feasible?

Ms. Sherry Wheeler: They should have the opportunity to review any arrangements made about visitation and to express the opinion that they are uncomfortable. So there has to be some sort of ongoing review. What we know about children is that they grow and develop and things change and shift, and their activities and their focuses change and shift, so it has to be a fluid process of review.

There could be someone available to children, whether it's our program, which is narrowly focused on child welfare and children—our legislation would have to be changed—or whether it's someone else who has interest, expertise, and knowledge. The UN Convention, in terms of monitoring those kinds of suggestions, is talking about educating the public, the parents, and the people working with children.

The Joint Chair (Senator Landon Pearson): Thank you very much, and thank you for appearing.

Senator Anne Cools: Madam Chair, I observe that some cameras have come into the room. The committee has the power, as we know, to receive cameras, so I should like to suggest that the committee agree to let those cameras film us for a few moments. I'll present that to the committee and see if the witnesses are agreeable.

The Joint Chair (Senator Landon Pearson): Okay, thank you.

Thank you very much.

The next witnesses we'll call to the table are, from Divorced Parents Resources, Sean Cummings; and from the Edmonton and Northern Custody and Mediation Program, Dr. Kent Taylor, the coordinator.

Mr. Cummings, do you wish to commence?

Mr. Sean Cummings (Calgary Divorced Parents' Resources): Good morning. I would ask that my presentation today be entered as read into the record of testimony.

My name is Sean Cummings and I represent Calgary Divorced Parents' Resources. My experience in dealing with divorce issues is varied. I'm a divorced parent, an uncle of children of divorce in my family, an adult child of divorce, and an advocate for parents and children who are going through the divorce process.

Three years ago, when I formed the Nova Scotia Shared Parenting Association in Halifax, I'd have scoffed at the notion that I would one day be presenting recommendations for changes to the Divorce Act to a committee made up of MPs and senators. So I thank you for coming to Calgary and I'm thankful that this very important committee exists.

The time has come for parents and children who have lived through this terrible ordeal to end their silence, because divorce hurts everyone. The process exposes children to the unattractive side of their parents. It exposes them to incredible levels of pettiness and spite. It places them in the middle of a lifelong conflict between parents, the people who matter to them the most in the world. And it's a sobering lesson about the real world. The no-holds-barred atmosphere of divorce promotes greed, insensitivity, anger, hatred, mistrust, violence, and threats.

Parents enter the divorce process with very little understanding of the impact it will have on their own lives and ultimately on their children's lives. They enter without focusing on an equitable outcome, and in many cases the outcome is self-centered. They aren't taught how to communicate with their former spouses. Their lawyer does their communicating for them at $150 per letter. And believe in Calgary that's a good deal. Parents enter the divorce process completely unaware that they will have a relationship to continue with their former spouse.

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Now the following are what I feel to be traits that need to be developed to create a more equitable divorce process: trust, support, understanding, valuing, cooperation, co-parenting, healing, and closure.

The two scenarios contrast each other and are distinctive. They represent the worst and the best in parents. They represent what people are capable of: incredibly selfish acts of hate and aggression or incredibly selfless acts of leadership and thoughtfulness.

The question for this committee to determine is, how can we achieve the latter? That's because the concept of the best interests of the children is indeed first and foremost in the Divorce Act. When dealing with conflict, it is a vague concept that is usually open to the interpretation of a judge upon hearing the emphatic arguments of two lawyers engaged in an adversarial process of litigation.

Earlier, there was a witness who mentioned the question of the rights of the parents, which seem to be inherent in the process. I would submit to you that the problem with the process is that the emphasis should be on children's rights, while parents only have responsibilities and obligations.

So if we are to change the process we must replace the notion of best interests with a pro-child concept in which children's rights and needs are paramount. Instead of the best interests of the children, we need to enshrine fundamental children's rights in the Divorce Act that will compel lawyers and judges to protect children from adversarialism. Parents, lawyers, and judges must be taught to ask themselves one simple question in all of their dealings relating to a divorce dispute: how is what I am doing as an individual benefiting these children? Under the present regime of resolving divorce conflict, this concept is never even considered.

This compels me to raise some important questions with members of this committee. I would ask that you consider these. How do children benefit from parents spending thousands of dollars on litigation? How do children benefit from parents who willfully diminish the other parent's role in front of the child? How do children benefit from what is said by lawyers who are implying that a parent is irresponsible or of poor character? How do children benefit from a lawyer instructing their client who has custody of the child to limit the contact the child has with the other parent in order to retain custody? How do children benefit from oppressive terms such as “custody” and “access”? How do children benefit from a process that requires that a parent's ability to parent is chipped away at by a lawyer during cross-examination? How do children benefit from a process that looks to one parent as a custodian and the other as a visitor or payer of support? How do children benefit from a process that links the level of support with the parent's wishes to increased contact with the child? How do children benefit from false allegations of abuse and neglect? Finally, how do children benefit from having contact with extended family members and grandparents nullified at the point of divorce?

Obviously, this doesn't benefit children, and the result is a broken system in which one parent is the winner and the other is the loser. So I ask you, how are parents expected to heal amid this kind of open warfare? If the parents are not healed, who is healing the children? The present family law system is built on a foundation of mistrust, anger, hatred, and adversity. It encourages conflict and brings out the absolute worst in parents. It's harming children and tearing families apart.

It's time for change. My recommendations to the committee are as follows.

First and foremost is a presumption of shared parenting. Under section 16 and section 17 of the Divorce Act, regarding the order of custody, the court must instil a presumption of shared parenting. So in effect, it will be up to the parent who wishes not to share the parenting to prove how shared parenting is going to be detrimental to the child.

Second is a co-parenting plan. Paragraph 11(1)(b) and sections 16 and 17 of the Divorce Act must be amended to require the submission of a co-parenting plan that is agreeable to both parents and can be achieved with the help of a professional mediator. The co-parenting plan would be for an incremental three- to five-year period, at which point the parenting plan would be re-evaluated to increase the chances of children having a better relationship with their parents.

Third is a divorce management plan. Paragraph 11(1)(b) and sections 16 and 17 of the Divorce Act should be amended to require the submission of a divorce management plan in which the parents would be required to demonstrate the steps each parent has taken in divorce education, positive parenting skills after divorce, conflict resolution skills, as well as steps each parent has taken to facilitate healing for their children.

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Fourth is mandatory mediation. Save for cases of domestic violence or child abuse, amend section 10 of the Divorce Act by inclusion of a subsection, which would be 10(6), establishing the process of mandatory mediation in the preparation of the required co-parenting plan. It's imperative that the co-parenting plan be developed prior to all other disputes in a divorce.

Fifth, duties of the lawyers and the court. Amend sections 9, 11, and 17 to ensure that it is the duty of every barrister, solicitor, lawyer, and advocate, as well as the courts, to enact the presumption of shared parenting and the requirement of a shared parenting plan in the process of mediation or an alternate dispute resolution mechanism. As well, establish a mediation society given by statutes consisting of accredited mediation and ADR professionals.

Sixth is enforcement of parenting time, and this is a huge problem. The Divorce Act must be amended to improve the enforcement of court ordered and mutually agreed upon parenting time by both parents. Establish an access enforcement agency in each province and territorial jurisdiction comparable to existing maintenance enforcement programs across the country. Include the wilful denial of court ordered and mutually agreed upon parenting time as a form of child abuse and make it subject to a mandatory review of the parenting arrangement by a court.

Seventh, false allegations. The Criminal Code of Canada must be amended to include the filing of false allegations of child abuse, sexual abuse or physical abuse and neglect as a criminal offence. As well, ban the right to publish the name of the person who has been falsely accused.

Finally, there is divorce education, which I feel very strongly is the key to finding a resolution to many of our problems. We need to legislate mandatory continuing education for all judges and lawyers. The federal government should provide funding for a national divorce education campaign warning the public and parents of the dangers to children of divorce war.

The federal government must provide assistance to provide divorce education and mediation services for parents living in rural areas of Canada. Whether that can be accomplished with the assistance of teleconferencing, or whatever, there's a definite need for people in rural areas.

The federal government should provide funding for provincial governments to develop community-based divorce education programs focusing on teaching parents practical skills dealing with developing positive parenting, co-parenting after divorce, communication, skills and, finally, children-in-the-middle protection.

That's pretty much what I have as recommendations to the committee. Thank you.

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

Dr. Taylor.

Dr. Kent Taylor (Mediator/Coordinator, Edmonton and Northern Custody and Mediation Program): Good morning. Having mediated tons and tons of these things, I wanted to look at what I would do over the next five years if I were doing this.

I think for many people the ideal goal is equal sharing of family responsibilities by both mothers and fathers, physically, emotionally, and economically. How do we make that work and not trade off family relationships for issues of gender politics? I wish I had the answer to that, but maybe I do have some of them.

First of all, I would drop the terms “access”, “sole custody”, and “joint custody” and do what Washington State did in legislating a parenting plan. That includes residential schedule and conflict resolution clauses and getting rid of those fighting terms. From my experience, I know when parents are cooperative they do devise a plan that will benefit their children. The parents will put their needs in second place.

Number two, I want to talk about lawyers and some of the things that could be done there. Many family law lawyers are very good; some family law lawyers tend to ignore family dynamics, because lawyers are into their own dynamics as part of the legal process and as part of their own institution, that legal institution. Many parents get polarized. Lawyers tend to control more rather than let go of the control. Lawyers need to be seen as consultants and not the main event.

Some days I feel like they're trying to weed a rose garden with a bulldozer. As one parent said to her ex-partner, “My trust for you deteriorates every time I get another letter from your lawyer that smacks at my ability to parent.”

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It takes about three months to a year for parents to become objective, and lawyers tend to ignore that. It's not a poker game, and most people don't want to become gamblers in this game. We don't need the lawyers' fax wars.

What's to be done in that area? I think lawyers and judges need to have something in the way of understanding family dynamics and what happens at the start of divorces. Maybe it's interest-based negotiations instead of litigation. Many lawyers, even though it's in the Divorce Act, are still not informing clients that mediation is available, and they have to do that. I think it's really great for people to consult with lawyers and get legal advice, but they have to come back to a mediation process so that people can get out of this war game.

Access is really a huge issue. I hear comments like, “I carried the child for nine months; we're bonded,” or “Sperm is cheap; you can get that anywhere”, or “I'll do anything in my power to get those kids away from you”, and a lot of people do. The question for me then becomes how come some children have to live in a situation where one parent needs to be far more important than the other? Most children I've talked to want to be with both parents; they want both parents. They unconsciously leave stuff at the other parent's home.

So what needs to happen for the 5% to 10% who are really into conflict, who really like to battle it out? I think you need several processes, and I think you need someone who knows the difference between those processes. For Alberta, one of the processes we've put in place is a mandatory Parenting After Separation program. It certainly has gone beyond my expectations of what was going to happen and how much easier mediation is for me. For some people it takes very little negotiation after they come out of that course to get things settled. For 5% to 10% of the people, mandatory mediation...I would agree with that, and I would agree with having a team with a lawyer and a social scientist, such as a psychologist or a social worker.

Where there is severe parent alienation, I would like to see the reversal of custody, with no access to the other parent until they've gone through some sort of counselling. Another process that may work is an mediator-arbitrator, where if a mediator can't mediate it, they'll arbitrate it—anything that keeps it out of the court system.

It's not too hard to get to court for these 5% to 10%. Courts are not there to resolve custody and access issues. I think the courts need to be taken away from the parents' battleground. It's too easy to say, “We have a problem, let's get it straightened out in court.” I think the court must be seen as a last resort or some way to force an issue. As one parent said, “I'm afraid to do anything with my kids. If they skin their knee, I'll be back in court.”

In family court, if you had a full-time mediator for every custody and access application, they would have to go to mediation and they would have to go to the Parenting After Separation course.

The child support guidelines, the 40-60 rule—and this new stuff is quite exciting, actually—have raised the stakes. Couples are now paying attention to winning and losing. I'm hearing “sole custody” more and more. Some of the creativity...and I suppose that's why they were developed. Some of the creativity has been lost from the old guidelines by following these tables. Sometimes the person paying the child support didn't mind so much when they knew they were going to get a tax refund at the end of the year. Many are saying to me, “I don't want that much. I want what's fair here, but there's no room for negotiation any more.” Others are squeezing every possible penny they can, according to these guidelines, and there is a lot of resentment that there is no negotiation—

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The Joint Chair (Senator Landon Pearson): Dr. Taylor, I'm sorry to interrupt, but you're coming to the end, so get to your recommendations so they can get to questions.

Dr. Kent Taylor: Okay.

One thing that I think could happen in this area are these child support centres, and I really like them. What I do is send both parents there before they even see their lawyers.

What happens every Friday night and every Sunday night? The police or the RCMP are called because the kids aren't there, or they're not returned. I think if they don't have an enforcement clause in there, there's nobody else available for these parents. Maybe you need a 1-800 number or something like that.

Other cultures—there are lots of models around: San Franciso's community board model; sensitized mediator lawyer; judge, police officer model. The Pacific Rim models create a model. There are lots of those around.

I'll leave it at that.

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

Mr. Forseth.

Mr. Paul Forseth: Welcome to the committee today. Both of you referred directly and indirectly to the new guidelines, and I'd like you to say, from your particular perspective, how they are operating here in Alberta. Does it work against equality and fairness for kids? For example, how would children's time with each parent be affected by the new child maintenance guidelines in the scheme?

I'm looking for the dynamics of parenting for kids and the interplay of the new payment scheme and just how it may help or actually may hurt the welfare of children.

Dr. Kent Taylor: Where you see it become a problem is, as one parent said, “You do have 50% of the time. You have 50% of the awake time, every second weekend and two times during the week. That's somewhere between 40% to 50%, so what are you complaining about?”

Maybe that's one solution, that the 40-60 rule applies to awake time, although some parents would keep their kids up all weekend to make sure they get the 40-60.

Mr. Paul Forseth: You used the term “awake time”.

Dr. Kent Taylor: Awake time is when the kids are awake—not in school, not sleeping, but awake with the parent.

Mr. Paul Forseth: So the implication of that is, because of the new guidelines and so on, parents are into counting hours and whether the child is asleep or not and whether the 40% rule means while they're in their beds or at school or whatever.

Dr. Kent Taylor: You bet. Whose time is it at a soccer game when both of the parents are there?

A voice: Share.

Dr. Kent Taylor: Yes, give it to both of them. That's a good idea.

Mr. Sean Cummings: The difficulty with the child support legislation is that it compels parents to literally nickel and dime the level of time they have with their children. It was predicted by groups right across the country that the 40% rule in the legislation was going to act as a disincentive toward providing some kind of parenting arrangement for the children, and in many cases it's acting as an incentive for a parent to apply for sole custody so they can avoid the guideline.

Also, if you want to know what some parents are saying about the legislation, one of the major concerns is the shifting of the tax burden. That was a big issue. Another issue is a lot of parents have told me that they wish the child support wasn't a tax issue at all.

Mr. Paul Forseth: The other change I see was that we previously had a situation of arriving at child maintenance payments based on the fundamental principles of demonstrated need versus ability to pay. That now has been abandoned to be clearly just ability to pay. Do you have any comments on that?

Dr. Kent Taylor: I think that's tied in to that 40-60.

On the ability to pay, this is another example that came into my office. Which would you pay, $1,200 or $78? If you have 39% of the child's time, you pay $1,200; if you have 40%, you pay $78, so I'm going to get 40% of the child's time.

Mr. Paul Forseth: What I hear you saying, then, is that the 40% rule is working out to be problematic.

Dr. Kent Taylor: Yes.

Mr. Paul Forseth: Do you have any other observations to make about the change and how it has affected children, from the child's perspective?

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Dr. Kent Taylor: As I said before, the stakes have been raised. Now it's a matter of winning and losing, and that's going to affect children. When I mediate, the way I mediate is if you can get the parents to agree, the kids are going to be okay.

Mr. Sean Cummings: I feel that the legislation as it stands, again, acts as a disincentive to a collaborative effort on both parts of the equation.

Again, if we were able to get parents into a supportive atmosphere, where they are going to be able to create a parenting arrangement with the help of a professional mediator, in a lot of cases you're going to see the financial concerns be effectively dealt with by the parents. If that were to be the case, there wouldn't necessarily be a need for a child support guideline at all.

The Joint Chair (Senator Landon Pearson): Senator DeWare, did you have a question?

Senator Mabel DeWare: Not just now.

Senator Duncan Jessiman: I have one. I don't know if this has been covered or not; just tell me.

We've been told by some that the judges are biased in favour of women when it comes to custody. Others, on the other hand, say no, that's not true; the reason women usually get custody is that the men don't really want custody of the children.

Tell us what your experience is. We know it's a fact that in 85% to 90%—I don't think anyone disagrees—that's what actually happens, but does it happen because men really don't want custody? I'm talking about sole custody or a lot of custody: 40% or more or 50% or more. Or is it because there is a bias toward females? I want to know what your experience is.

Dr. Kent Taylor: This really gets into an issue for me: do men really want custody? Men really want a parenting plan.

Senator Duncan Jessiman: If you have a parenting plan....

Dr. Kent Taylor: If you have custody, you get control.

Senator Duncan Jessiman: By a parenting plan, do you mean sharing, where they have two homes and—

Dr. Kent Taylor: It's whatever they work out. It has been my experience that if I work with a parenting plan with a couple of parents, most of them are going to devise what's best for their kids, but once you get into using those words “Who's going to get custody”, then you're getting into control. I want to get rid of those terms. They drive me crazy.

Senator Duncan Jessiman: I agree with you, but is it your experience that the men you deal with really want to be responsible for their children?

Dr. Kent Taylor: I think a lot of them do. They want to be responsible for their children. That's a good way of putting it.

Senator Duncan Jessiman: Would they be responsible to the extent that they would provide accommodation for them overnight for three, four or five nights a week?

Dr. Kent Taylor: My experience is that they would, or most of them would.

Senator Duncan Jessiman: Okay.

Mr. Sean Cummings: I would agree as well. I think what men really are looking for generally is a role, an actual role, after divorce has occurred.

Based on the experiences with the fathers I've dealt with, there's a preconceived belief with every man, whether he's single, married or in the process of getting divorced, that if I become divorced and I have children, I am going to lose whatever role I have; I am going to lose my children. That's something that I think has created a siege mentality among a number of men.

So that's a very serious concern, but I have also seen the most incredible, wonderful, selfless acts that men make amid all of this adversarialism that's inherent in the system, to consistently accommodate their former spouse to try to find some kind of peaceful resolution to the matter.

I think that's what most fathers are looking for. I believe the control issue really is a moot point for fathers.

Senator Duncan Jessiman: That's all I have. Thanks.

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

Senator DeWare.

Senator Mabel DeWare: I think something we all have to remember is that parents are parents for life. If you're a parent, you're a parent.

Would you agree that we're still hassling with these custody and access words and we have to get rid of those and talk about parenting, shared parenting and co-parenting, and just take those out of this part of the act altogether? It is very confusing.

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Mr. Sean Cummings: I agree.

Senator Mabel DeWare: I think the children.... What do custody and access mean? We have to get around the parenting thing. Coming across to this committee over the last month or so is parenting, co-parenting, planned parenting, shared parenting. We'll have to do some work ourselves around how we're going to deal with that.

I was pleased to hear you talk about the guidelines, because we struggled with that. Sean, did you appear before our committee?

Mr. Sean Cummings: Yes. It was the second-last day of hearings.

Senator Mabel DeWare: Yes, I thought I recognized your name. You're a Halifax man, are you not?

Mr. Sean Cummings: That's right.

Senator Mabel DeWare: I think there are a couple of things we have to talk about.

I think you said that we have to eliminate a contest. I think that was one of your first things. This isn't a contest of who is going to get whom. I think that's something we have to try to eliminate. Maybe we can do that, if they have to seriously sit down and say to themselves, “This isn't about us; this is about our kids.” Mind you, all of these relationships are difficult, but some of them work out. I suppose you have experience in that field. They work out with two parents sitting down and really agreeing to a good relationship between how they decide to split up and what to do with their children.

On the other hand, we have to get rid of this contest between parents. I think we can do that if we seriously look at some sort of.... We're looking for some direction and guidelines in this co-parenting situation.

Mr. Sean Cummings: I feel very strongly that from the moment a relationship ends the parents need to be put into a process that is going to take what we have in Alberta with divorce education one step further and practically teach these parents skills. The family has reconfigured, so they need to be taught how to communicate with someone they dislike. They need to be taught how to co-parent with someone they hate. They have to learn how to consistently put their children's needs ahead of their own. Those are skills that can be taught. There are many professionals available in our community who can do that.

Senator Mabel DeWare: Thank you.

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

Senator Anne Cools: I have one quick question. We're a little bit behind schedule, but I wanted to thank the witnesses.

I wanted to thank Dr. Kent Taylor for what I thought was extremely...

[Editor's Note: Inaudible]. As a whole, I would like to underscore Dr. Taylor's testimony about our need to examine the role of the lawyers in the process. Many witnesses have told us—and I believe Dr. Kruk in British Columbia has done a lot of research on it—that many parents separate saying that they want to be good parents, and then the constant plethora of aggravating, irritating letters in the process essentially assist to undermine the confidence each of the parties originally had in parenting intentions and parenting skills. At some point in time, we as a committee have to examine the role of lawyers in the process and pay attention to that essential point that Dr. Taylor has made.

If I could just throw in a particular example of a case, I remember very vividly that one of the parties went to a lawyer—it was the woman—and before long she had handed the husband's passport to the lawyer, petitions for divorce, all kinds of terrible things. That particular woman came to me to try to unravel the situation that had been created by this particular lawyer. I shall never forget that poor man. I shall never forget his words. This man said “I need a few days. I have such a crisis of confidence now that I need a few days before I can even sit down to talk to anybody about it again.” This is the point you have raised.

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Once a man and a woman have had a child, they remain connected for life. There's no alteration from that fact. And anyone who deals with divorce must comprehend that they remain that mother and that father, and that those people remain a family, albeit a divorced family. Those connections need to be respected. Somewhere along the line we have to deal with this particular phenomenon. And it is an act of abuse for any individual to aggravate that situation.

I thank you for raising this. You have put it in an extremely sensitive and an extremely loving way, and I thank you for that.

Voices: Hear, hear!

The Joint Chair (Senator Landon Pearson): No, please. This is a parliamentary proceeding. No applause. Thank you.

Do you want to comment?

Dr. Kent Taylor: No.

The Joint Chair (Senator Landon Pearson): Okay. Thank you very much for your presentations, both of you.

Our next witness, please, is Mr. Herbert Allard, retired family court judge.

Mr. Herbert Allard (Individual Presentation): Honourable members, I'm in an unfamiliar role. I feel I am in a den of wolves, in a sense, or lions perhaps.

First of all, perhaps I should explain something very briefly about why I'm here. I have spent a lifetime, 49 years to be exact, working in the family court youth system in Alberta, starting as a child welfare and child protection worker. I was eventually assistant director of children's aid. I created the first administrative structure for family courts in southern Alberta. I started and hired the first counsellors at the provincial family court level in this area. We pioneered an organized maintenance program, which was in fact geared on the basis of a first approach being one of mediation, in the belief that men, who generally were the ones who were major financial caregivers, would pay and pay more regularly if they felt that what they were paying was fair and equitable. And we hired staff to approach the system in that way and also do some deliberate enforcement in the event of failure of meeting obligations.

I had the interesting experience of being appointed a family court judge 39 years ago, and I was the administrative judge in Calgary for all that time. I have also a unique background that I never practised law. So if you want to throw rocks at lawyers, don't throw them at me. And if you want to throw them at judges, don't—I'm retired. I'm now free to speak, and I feel compelled to say something about my experience. I think I may have something to contribute.

First of all, I can't help but observe that this room is an unfamiliar arrangement to me. There are all these men here. They never were in my court. I don't know where they were, but when kids were in trouble the mothers came. The men came unwillingly, generally—for a maintenance default or some other problem. I hear in conversation around me a lot of hurting men. Is it that the women aren't here because they're satisfied, or is it that they're not feeling beleaguered or whatever? Or is it that there are a lot of hurting men who are here for some obscure reason?

I'm alarmed about the amount of anecdotal evidence we believe in. In social problems we're prone to believe in anecdotal evidence. One of the classics is the unfounded attack on the Young Offenders Act. It's all anecdotal. When you get down to the hard-core facts, what's being said is almost deliberately misleading. I have to try to avoid anecdotal evidence myself.

I've heard these words for maybe 50 years: joint custody, shared custody, shared parenting, mediation, conciliation, negotiation, compromise, settlement, coerced agreement, true agreement, and on and on. They are the words of the debate.

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One we haven't heard much of this morning is this best-interest test, and it's probably one of the worst-used words, in my judgment. It is rarely defined. There is little agreement, in my view, about what best interest really is.

In the real world where people are together as husband and wife, rarely, in my view, is there equal responsibility and equal decision-making. They are shared in some way, but it's rarely equal. It's rarely equal in the labour tasks. In my judgment, women still are the ones who go to work all day and do diapers at night—sorry, that dates me; we don't do diapers any more. They get rid of the Pampers.

That's cultural. It's as simple as that. Who stays home when children are ill? Mothers. If it's a choice between which one, and they're both employed, it's mothers who stay home. It might be that we have some so-called cultural history in our relationships.

We have a problem in my judgment, getting back to this best-interest test, because of these cultural and historical views that we're in transition about. Some families are still traditional families where the mother is at home; in others the mother is the major wage-earner now, in the new environment. But women are still, in my judgment, disadvantaged.

The best-interest test is a word we use to hide the fact that we haven't made up our minds. It's capricious, it's unregulated, it's anecdotal, and often it really means the best advocate.

Let me just list some very practical, continuing, ordinary problems with this notion of best interest.

Religion: When there's a split, what do we do if there's a religious difference? Some religions are more militant than others. Say there's a conversion to another religion after the split and there's a particular bias against the non-religious parent. We never talk about that, by the way.

Culture: What happens if there's a difference in culture, with one being militant and insistent on its dominance and another being more gentle? We have a peculiar problem with aboriginal issues, particularly with status—the sweeping generalization that because of status, this child can only be raised, for example, on a reserve or by a person of status.

Then of course we have the gender issue. Fathers and sons, mothers and daughters, and all the rest. Then there's the age issue about whether fathers can really care for infants in arms.

In my experience, by the way, just as an aside, most of the fathers with very young children—and I say this with great respect for some fathers who do not do this—seek custody as an opportunity of delivering the child over to someone else. They rarely give the personal care. It goes to their mother or father, or the new wife or girlfriend or what have you.

I know there are some fathers now who are stay-at-home fathers. The problem is, economics enters into this. Fathers do generally earn more money and can't afford to stay at home. If there's a split, two families can't live as cheaply as one, in spite of all the fiction to the contrary.

Another one of the fictions and one of the biases is one of wealth. There's a particular bias against mothers on welfare, and now we have a new bias about fathers on welfare. Of course, fathers were never quite considered to be welfare recipients with their children, historically, but that's a new issue. Taken in Ontario, the whole thing is an issue, but you know....

The Joint Chair (Senator Landon Pearson): Mr. Allard, I hesitate to interrupt a judge, even a retired one, but can you come to your...?

Mr. Herbert Allard: Okay. I am listing these things because it is said that all of these things can be solved by talking. This is my point.

For example, let me give you the classic. Mobility is a new issue now, and access, and deprivation of access. Let me reverse it. Women are being told they can't go with their children, because the father would lose access and they would be punished. Have we said that fathers shouldn't move, because they would lose access and the child would be deprived of the right of the father? Should we punish him if he doesn't show up when he should show up or says he wants to show up?

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I don't think we've sorted it out all that well either about joint or shared care. Little children moving back and forth with packsacks is not my idea of a quality of life for children.

I don't believe, in fact, that most families can afford the dwelling arrangements, and the Income Tax Act works against all of this too in truly shared arrangements. I think it's a fiction. There are some who can do it, but those are only the people of wealth or substance. Poor people can't make those arrangements.

So it falls to the judge to wend his way through this myriad of belief and value systems, which is really what I'm leading up to. I think the judges can and do perform a role in this. I don't think everything can be solved by sweetness and light. I think sometimes there has to be a bottom-line decision made.

Sometimes people look for that. They want somebody else to make that bottom-line decision for them. They hope it's done fairly and equitably and with the interests of the children in the broadest sense, and that's with hearing the children.

As for Ms. Wheeler's comment, by the way, about how children should be heard, I would endorse that completely. Look at the dilemma it creates.

Now let me just make one further comment and then you can ask me anything you care, including how much I earn and all the rest.

I would say that I have seen an increasing role for fathers that has been recognized by fathers. In spite of that, ex-wives are still worse off after divorce than former husbands.

Maintenance is inseparable, in my view, from custody or the shared arrangement, but there was debate about the Income Tax Act and the implications of how many minutes and hours you need to have to get to qualify. Games are played. Each parent will claim one child as the primary caregiver to get the equivalent-to-married status. In my judgment, failure to pay maintenance, whether men like it or not, is a national scandal, and the data support that.

Also, children are at risk from a lot of men. The data support it. I was on the Badgley committee, and we were shocked at the amount of violence that was documented and the amount of tragedy between parent and child. Tragically, it was primarily from male caregivers.

So I have just one further comment about grandparents.

I'm sorry, I should add this about maintenance. Maintenance, in my view, will always remain a bargaining chip in the power struggle between parents no matter how much we try to change it. It always will become the Santa Claus effect. The person with the money can buy. They can send the kids to a private school, and they look good.

As for counselling, having been down the counselling route, I have some real questions about the skills and the training of people who purport to be mediators. Six hours or six weeks at Mount Royal College is not good enough to purport to be an expert in this field, in my judgment.

I think we've got to get some hard data. For example, is it actually true that the criminal law is in many cases inappropriately used in the struggle, or is it simple anecdotal? Has the lot of stay-at-home mothers improved at all under the new arrangements? Is maintenance being collected more fairly and efficiently in the new regime?

The Joint Chair (Senator Landon Pearson): Can we ask you questions?

Mr. Herbert Allard: Yes.

I have one comment. I just want to leave this with grandparents. I'm a grandparent.

The Joint Chair (Senator Landon Pearson): Oh.

Mr. Herbert Allard: I want to remind this committee that grandparents are also mothers-in-law. Now, that's pejorative, but I want to leave it with you. The interfering mother-in-law can still be an interfering mother-in-law after divorce or separation.

Thank you.

The Joint Chair (Senator Landon Pearson): Mr. Forseth.

Mr. Paul Forseth: Thank you, and welcome to the committee.

You said in your opening remarks that there was an attitude historically that payments would increase or be more reliable if there was a fundamental sense of fairness of what was being paid. I ask you, do you have any notions about whether we lost something now that we've gone to the new guidelines, the new regime?

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Mr. Herbert Allard: Yes, I would agree. In fact the new guidelines in Alberta produce less money for ex-wives and children. We were doing a better job in Alberta before the guidelines, in absolute dollars, number one, and in handling the conflict between parents.

Mr. Paul Forseth: Why is that?

Mr. Herbert Allard: I can't tell you; I don't know.

Mr. Paul Forseth: Can you speculate?

Mr. Herbert Allard: I think I should remind the committee that there are two levels of court all over Canada that deal with this: the provincial family courts and the Federal Court.

Mr. Paul Forseth: I'm aware of that.

Mr. Herbert Allard: So do these guidelines apply then at provincial court? Just simply another confusion to all of this mess is that there are two venues for resolving separation and maintenance.

If a former spouse-mother has high income, she is advantaged under the new arrangements, because it's tax-free in her hands. If she has low income, she's better off to have it taxable in her hands, and it's more advantageous to the payer, because he can deduct it.

We've created a whole new sense and system of machinations to sort this out.

Mr. Paul Forseth: And we've also changed the previous principle of balance from demonstrated need versus ability to pay; now we have only ability to pay.

Mr. Herbert Allard: No, I don't think that's the correct interpretation. I don't think it's that rigid.

In fact, if I could add to it, the dream was equalization between the parties, and it hasn't happened. Men rarely pay enough that they are diminished to the same level of existence as the caregiver is, or conversely if it's a well-to-do mother.

Mr. Paul Forseth: Thank you.

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

Senator Duncan Jessiman: Judge Allard, you were 39 years on the bench?

Mr. Herbert Allard: No, 37, but it feels like 39.

Senator Duncan Jessiman: And when were you with the provincial family court?

Mr. Herbert Allard: All my career.

Senator Duncan Jessiman: When did you retire?

Mr. Herbert Allard: About a year and a half ago. By the way, I feel like a dinosaur already.

Some hon. members: Oh, oh!

A voice: You're starting to sound like one too.

Mr. Herbert Allard: Yes.

The Joint Chair (Senator Landon Pearson): No comments from the audience.

Senator Duncan Jessiman: In all your 39 years, did you ever give sole custody to a man?

Mr. Herbert Allard: Yes, but I have to say there were virtually no such applications. In fact I can't think of turning down one where he was the applicant. They usually had good cause and had a good plan.

They just weren't there, in my experience, at the provincial court.

Senator Duncan Jessiman: But you say you do remember one case.

Mr. Herbert Allard: More than that—a handful—but rare.

Senator Duncan Jessiman: You don't think you were prejudiced at all? Your mind was open when you came?

Mr. Herbert Allard: I can say this. I was raised by a single parent. I felt I had an identity, therefore—a culture—that I had to watch.

Senator Duncan Jessiman: Which parent?

Mr. Herbert Allard: My mother.

I had to watch and be very conscious that I might have brought a peculiar view of the pain, the money pain, of trying to be a mother caregiver. The money issues I was very conscious of. As for the shared part, I brought no real expertise. I have graduate training in psychology and the social sciences, but simply experience, year after year.... Maybe you go on making the same mistakes year after year.

There's no test about how you perceive yourself as a biased person. How do you search your own heart about what you believe in and what you see and whether you're biased?

Senator Duncan Jessiman: Did your father die or were you...?

Mr. Herbert Allard: Yes.

Senator Duncan Jessiman: He died early in your life?

Mr. Herbert Allard: He died early in my life, and my mother, by the way, always said she was a worthy single parent. She was glad she wasn't deserted or divorced, because she would be viewed as unworthy, because she would have driven her husband out or she would have failed in some way. Death is not a failure.

Senator Duncan Jessiman: So you don't think you were prejudiced in favour of women, or do you?

Mr. Herbert Allard: No, but I think I understood the plight of poverty. I understood the plight of a single mother trying to raise children without skills or an adequate income. If that's a bias....

The Joint Chair (Senator Landon Pearson): May I move on, Senator Jessiman?

Senator Duncan Jessiman: Yes.

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

[Translation]

Mrs. Diane St-Jacques: In your comments—

[Editor's Note: Interpretation] ...you mentioned that the interest of the children is not well defined. We don't know what it represents. Do you think, as Mrs. Wheeler does, that children should be consulted in divorce proceedings, regardless of their age?

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[English]

Mr. Herbert Allard: I think she said it eloquently, that it has to be done very sensitively because you run the risk of alienating a child from a parent. In other words, the parent says, “you didn't choose me”, or “You complained about me”, and then you risk the loss.

I notice that not once this morning have I heard the word “love”. How do you lose love? You lose love because you're hurt. There are ways of separation without loss of love, but it's a very difficult role when there's so much hate and anger.

I think, for example, it's wrong to say to the child, which parent do you want to be with? They often are parentified against their own interests. They say, well, my mother needs me, or my father needs me. What about their needs?

I think a better question is, what do you do when you're with your mother, or what do you do when you're with your father, and those kinds of things.

It's also the child that is disappointed, if you don't agree with what they ask you. On the other hand, with adolescents, it's a futile exercise to make an order that the adolescent isn't in favour of. He or she will defeat your order very quickly, and you may even buy a very unhappy...and what you believe is not the best interest of the adolescent, because if he or she is adamant, what do you do? You can't convey them, tugging and screaming, from one to the other.

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

Senator Cools.

Senator Anne Cools: Thank you, Madam Chairman.

If I may ask the witness Judge Allard, you were what we would call, in the old system, a magistrate. Am I correct?

Mr. Herbert Allard: No, we've been judges in Alberta at this level for over 40 years. But I was a lay judge; that would be the common term. I was the last non-lawyer; let's put it that way.

Senator Anne Cools: Precisely. I don't know about Alberta so well, but I know in Ontario, as to the language, before in family court they used to be called magistrates, but that's okay. I was wondering, because you obviously had a long period of time, 39 years, and you would have been doing your work even pre-1968.

Mr. Herbert Allard: I started in 1949.

Senator Anne Cools: Okay, you started in 1949. In family court, what percentage of the cases you would have been processing would have been cases of divorce and marriage versus common-law situations?

Mr. Herbert Allard: The provincial court has no jurisdiction in divorce, but we did have jurisdiction to order maintenance if it wasn't resolved at the superior court level.

Senator Anne Cools: This is what I am trying to check on, Madame Chairman. We know, because every province had an old law. In the province of Ontario it used to be called the Deserted Wives' and Children's Maintenance Act.

Mr. Herbert Allard: Right.

Senator Anne Cools: I understand that, but that was not my question.

My question was on the amount of persons you were seeing or processing or ruling on. Roughly, what was the ratio of persons in marriages going into divorces versus common law?

Mr. Herbert Allard: We didn't have jurisdiction in respect to infants born out of wedlock, as we called them. They were without fathers-in-law. Mothers were sole guardian, and still are, I believe, in the act in Alberta, and they had to go to a special court process to get maintenance if they were born out of wedlock.

Senator Anne Cools: Okay. About the persons you were presiding over, what was the relationship?

Mr. Herbert Allard: A condition of making the application was they were either married or had been married or seeking enforcement of an existing superior court order.

Senator Anne Cools: Okay. My question to you is the following, and I would like to read to you and then ask you to react, if you could.

A few weeks ago in Toronto, just outside the entrance of Toronto, in the case of L.B. vs R.D., a provincial court judge, Judge Patrick Dunn sentenced a particular woman who had denied access 41 times. In the face of 41 access denials and repeated court order violations, and for other reasons, Judge Patrick Dunn sentenced Lisa Barbosa to 60 days in jail for contempt of court. I want to read to you what Judge Dunn—

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Mr. Herbert Allard: I'm familiar with the judgment.

Senator Anne Cools: Okay. Are you familiar with her use of false sexual allegation?

Mr. Herbert Allard: Yes.

Senator Anne Cools: So you're aware of her repeated trips back and forth to the courts?

Okay, because you are now in a position where you are free from the responsibility, my question is, if that case had come before you, what would you have done with it? How would you have ruled in such a case?

Mr. Herbert Allard: You got me off onto thinking on a little different track about married and not married and common law and what have you. I should have added that the jurisdiction has changed in Alberta and the concept with respect to children born out of wedlock. There is new legislation. But that's just as an aside so I could make it clear on the record.

That is the same kind of difficulty as putting a man in jail for non-support. It's a futile thing. You're not going to get any money out of him when he's in jail. So that's not a new dilemma about using punitive sanctions that are jail-like for what might be viewed as civil contempt, and there never is an easy course to this. We have convicted in Alberta, under the Summary Convictions Act, mothers and fathers who have been in contempt of court orders. But it doesn't change anything much.

Senator Anne Cools: I'm looking for your insight, because you have done this work and you have looked at these situations for 39 years. I have a lot of sympathy for judges on the bench who have faced these extremely difficult circumstances, and I seek insight into what sorts of advice or support we can give to these individuals who face these terrible problems.

My question to you is, since you have said very clearly that you know the case very well, what would you have done in that set of circumstances?

Mr. Herbert Allard: Probably very little different. What I'd like to know, and I can't gather from the case, is what happened to the children and what's the long-term effect going to be on them? Are they going to be any better off? I don't know. It's rhetorical, but I still wonder, how did this serve the children? I don't know, you see, but the law grinds on. We haven't found any other remedy for these things.

Senator Anne Cools: But the problem here, with all due respect to the witness, is that the children were not violating court orders, or the children were not offending Her Majesty's court or Her Majesty's laws. The children here, in my view, are innocent by standards, who need our love, our affection, our care, and, I would say, protection. My question to you, because we've had former judges come before the committee before—

The Joint Chair (Senator Landon Pearson): Please come to the end quickly.

Senator Anne Cools: I am.

In these very difficult circumstances that Judge Dunn faced, I wonder how you, as a retired person, who may have been faced with these same or similar circumstances, would have ruled?

Mr. Herbert Allard: That was a scandalous case of failure to comply.

A previous witness here said something that I think is very important. Men feel that the power of the state dumps on them to collect maintenance, but the power of the state doesn't help them in access and visitation. I think that's a very legitimate concern. The balance of powers is there.

There's another issue that people don't talk about, though. It's also the balance of wealth. It's far more prevalent that power of wealth and access then to the best counsel and advocacy can affect outcomes, and we don't talk about that very much.

Senator Anne Cools: Here we can't help, but I certainly do believe that Parliament as a body has a duty to support judges who are in these difficult circumstances, and I am only attempting to get some insight as to how we can support these individuals.

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Mr. Herbert Allard: Let me tell you what we shouldn't do, and that is suggest that because somebody defies, they can withdraw maintenance. That's the common threat. The courts are quite drawn into that—“If I can't see, I don't pay”. But the payment isn't for seeing; the payment is for maintenance.

The Joint Chair (Senator Landon Pearson): Senator DeWare, did you have a quick question?

Senator Mabel DeWare: I think probably you and I, Mr. Allard, can both reflect on the last 40 years, because we look as if we're in the same age bracket—reflect on how families and family responsibilities have changed over those years. As you know, most of our young daughters-in-law and sons both have to work to make....

I'm not here to protect one side or the other, but I just want to make one point. You said you felt that the fathers were at better advantage with the new maintenance plan. I just want to make one point clear. It's been brought to our attention by two or three of these fathers that they're not questioning the new support payments and the grid according to which they have to pay, and most of them are paying. But under the circumstance where they remarry and have a new family, to support that family they're finding it difficult to give them the same thing that their former family had. They have to find maybe an extra job, a part-time job, to help them.

The ex-spouses, in two instances that have been told to me, found out that their former spouse had another job and was making more money. They've gone back to the court and have received, or are receiving, a portion of that. The men are throwing their hands up in the air and saying, you know, what am I supposed to do? They feel they're complying with the law....

Mr. Herbert Allard: Well, I said that earlier, but perhaps I could answer it in this way. In spite of it all, it's rare that there's equalization.

Senator Mabel DeWare: True.

Mr. Herbert Allard: It's also a dilemma, or it has been as long as my career—what do you do? Which family takes priority over the bucks, bluntly put? Should the second wife stay home while the first wife goes to work? I can't answer those questions. The dilemma is I think that in the community we haven't made up our own minds. We have welfare policies that even affect this.

Senator Mabel DeWare: And how, sir, do we legislate human relations?

Mr. Herbert Allard: Perhaps my bottom-line comment is that it's not as simple as I think many people who present briefs to you suggest it is. I don't believe you change lives, as I said, with six hours of conversation. You help, I don't deny that, but I think it's optimistic to believe that we're going to come up with a panacea, some draft legislation.

Look, we named the Juvenile Delinquents Act the Young Offenders Act, and what did we do? We created a whole new attack. Why? Just because we changed the label. We didn't solve anything by changing the label, in my judgment.

Senator Mabel DeWare: Thank you.

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

Mr. Herbert Allard: Thank you. Thanks a lot.

The Joint Chair (Senator Landon Pearson): I would like to, in answer to Senator DeWare and to your own comments, share a quotation from Samuel Johnson.

How small, of all that human hearts endure,
That part which laws or kings can cause or cure!

Mr. Herbert Allard: And you recall the biblical custody dispute.

The Joint Chair (Senator Landon Pearson): Yes.

Mr. Herbert Allard: Thank you very much. It's an honour to be here. I am enjoying my newfound freedom, even though some in the galleries think I am a dinosaur.

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

Our next witnesses are called to the table. From the Men's Educational Support Association, Gus Sleiman and Paul Miller; from the Men's Education Network, Jay Charland; and from Equitable Child Maintenance and Access Society, Edmonton Chapter, Carolyn VanEe and Brian St. Germaine.

I think most of you have been here much of the morning, but I just want to remind you that if you can make your comments as brief as possible, there's more room for questions.

Who would like to start? Let's start at this end this time.

Mr. Paul Miller (Member, Men's Educational Support Association): My name is Paul Miller. I'm with the Men's Educational Support Association.

Canada has a long history of using the gender of the parent to guide custody decisions. This gender preference is created and led by judges in courtrooms, yet the evidence does not support that one sex has innately superior parenting abilities. In fact, reliance on gender to determine custody may contribute to negative outcomes for children by failing to provide the best available parent.

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We have two populations of parents with equal distributions of parenting skills, but we only select from one population. This leads to outcomes that are not in the best interest of children.

In the last decade this sexism has markedly increased, after judges were taught that women seeking custody were at a disadvantage in the courtroom. Fathers who wish to parent their children post-divorce today face a situation even more pronounced than women entering the workforce only a few decades ago.

Improvements for children of divorce and their parents can be facilitated by some of the following actions:

- judicial-bias seminars should be amended to reflect the reality of divorcing fathers. Our previous witness is probably a good example of this.

- judges must learn that fathers almost never receive custody in a court of law, and that this is not in the best interest of children;

- a program of affirmative action should be created within the judicial system to encourage awarding of children to fathers;

- there should be an agency to monitor shared-parenting arrangements with a mandate to balance parenting time and deal with parental alienation;

- access denied should be restored twofold;

- gentle tactics such as phone calls, monitoring supervision, and counselling should be the tools of choice here, not the blunt instrument that we see in the Maintenance Enforcement Act;

- a section should be added to the Divorce Act that overtly states that both sexes have equal ability to parent their children post-divorce; and

- a legal action fund should be created to enable fathers to legally challenge their longstanding historical disadvantages in family law.

The Joint Chair (Senator Landon Pearson): Mr. Sleiman.

Mr. Gus Sleiman (President, Men's Educational Support Association): My name is Gus Sleiman. I am the president of the Men's Educational Support Association, or MESA. The following is submitted on behalf of the members of MESA and their families.

Our mission is preserving the integrity of fatherhood for the sake of children. MESA believes that the interests of children are best served by having both parents participating fully in their lives, even after separation and divorce.

MESA deals with issues of domestic violence. We believe that family violence is a human issue and not a gender issue. MESA supports the mobility of reunification and not the mobility of isolation.

I am honoured by your invitation to give testimony and offer what may be a new dawn for the proposed legislative changes to the Divorce Act. This change may take place against unacceptably high incidence of national and international parental abductions and parental alienation of children.

The current custody measures are inherently unjust and favour one parent against the other. The mishandling of divorce and custody matters fosters a powerful and destructive climate of anger, pain, and frustration. This often leads to the abduction and alienation of children. The widespread gender bias of our courts empowers women to take any actions they feel compelled to take without the fear of consequences. Going along with this bias in Parliament are the predominant abductors of the children, often removing them to distant provinces or foreign countries.

Women abduct and alienate children as a privilege. Men do so only in desperation and deprivation. Men are less likely to recover their children from parental abductors. Women, in reverse, get all kinds of support and enjoy a comfortable lead in recovering their abducted children.

Governments removed gender bias against women only to replace it and make a gender bias against men. The existing system culminates in the refusal of men to support their children, from whom they are unjustifiably separated and their access excommunicated.

The primary caretaker craze used by judges in their decision-making is a one-sided, unbalanced, and inappropriate judicial and social policy that has maybe attributed to eroding and undermining our families.

Statistics show an increase in divorce rates, crime, suicide, teenage pregnancies, and a large number of children growing up with the absence of emotional balance and common sense.

The shocking insensitivity of these judges in handling divorce and custody matters compels a systematic dismantling of fatherhood by spouses. The bias of the courts is expressed by their irrational overriding identification of children with their mothers, excluding the children's dependence and need of their fathers.

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Fathers across the country are joined by the cries of their children for a mutual recapturing of justice, for what kind of a government is it that allows its own agencies and its own judiciary to discriminate against one or more class of its citizens, deplete and sink its own society?

About 2000 years ago, I heard one say, let the children come to me. Yesterday in court, I heard a judge say, take the children away. It is very rewarding for me to see fathers seeing their children. My fight goes on in the courtroom, but now I bring my fight to the committee room. Courtrooms are not courts of justice, but courts of law. I want to see more justice; therefore, I have to change the law.

When this committee ultimately reports and recommends its findings for a more balanced law, I think it is imperative that it take into consideration the natural law and the United Nations Convention on the Rights of the Child. The new law must end speculation and interpretation by judges and replace it with logic and mutual parenting cooperation. If this government is willing to end the injustices against children and men, if it is willing to reduce the emotional and financial costs of divorce created by litigation and re-litigation, it must act immediately to implement the equal-share parenting concept. Children need both parents.

We're proposing equal-share parenting. We're proposing a mandatory education program and a mandatory mediation program.

About education, we recommend that the parents complete their compulsory parenting separation course before any court action is taken. This model is currently running in the province of Alberta and probably some other provinces.

Some governments are building new family courts; others are enacting new family violence bills. It is a duty of a government to assist parents in finding solutions other than to open more courthouses. It is recommended that the government open a family centre in every place where a court exists. The objective of the centre will be to help educate and assist parents in reaching out for a mutual common ground to care for their children. The family centre will be the first place a parent should seek before any court action can be taken, and I am pleased to announce to you today that the Men's Educational Support Association will shortly be opening their parent access centre, which was funded by an anonymous donor.

Mediation must become mandatory after completing the Parenting After Separation course. However, for mediation to work and be effective, all incentives to fight in court over children must be removed.

The Joint Chair (Senator Landon Pearson): Excuse me, you have five minutes for both of you. Do you have your final conclusions?

Mr. Gus Sleiman: Okay.

Senator Mabel DeWare: Could you give us your recommendations?

Mr. Gus Sleiman: We have a recommendation to amend the Divorce Act. I'll go down this one.

We're recommending that the word “custody” must be abolished from all sections of the Divorce Act. We're recommending that section 16(1) be read like this:

Order for shared-parenting in a court of competing jurisdiction may, on application by either or both parties, make an order respecting shared parenting to any or all children of the marriage.

I'd like to reserve the right for further submission on this matter to you in the short time that is assigned to us.

Thank you.

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

Mr. Charland.

Mr. Jay Charland (Spokesperson, Men's Education Network): Good morning. My name is Jay Charland. I represent the Men's Education Network. My apologies to the translator, but I will probably not be following my prepared script.

The first thing I would like to do is profoundly apologize to this panel that the legislature of Alberta thought so little of you that they sent a lawyer who knew very little about what was happening. I find that disgraceful, and for that, as a citizen of Alberta, I offer an apology.

Senator Jessiman made a comment a little while ago about how they hear that men don't want custody. I made a quick note on that, because I think it's interesting.

This little green book is the catalyst that has brought us all together here today. This little green book is the Federal/Provincial/Territorial Family Law Committee's Report and Recommendations on Child Support. For four years they worked on this. For four years they did not speak to a men's group.

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We found this out when in April of 1995 this body, Ms. Brazeau and colleagues, came out here to Alberta to address a meeting of ECMAS. She told me they hadn't. I asked her why—and this is an exact quote; I wrote it down to make sure I didn't get it wrong—they didn't speak to a men's group. She said, “We asked the mothers, and they said the fathers weren't interested.”

Unfortunately, that is how the government has treated fathers over the years.

Mr. Booth talked earlier this morning about what is happening in Alberta. What he failed to mention to you is that Alberta has introduced a law, called the Protection against Family Violence Act, which is nothing short of an end run around the Divorce Act.

They wish to enshrine in statute the ability to go and get an ex-partite order and get all the assets of the marriage so that when you do go to a divorce court, you already have that, and the judge will say, “Let the status quo continue.” Those are the famous words of judges: “Let the status quo continue.”

I know this because nine years ago that happened to me. Nine years ago a false allegation of violence had me removed from my home. When we did finally get back in, luckily I had a judge who didn't say let the status quo continue. He was so outraged that he restored joint custody to me.

I have a legal joint custody order. I have a legal access order. I have not seen my daughter in over three years. How do judges react? How does Alberta react?

I will be submitting this later, because I did not have the time or the resources to get any of this translated. This is a legal opinion from the Alberta School Boards Association that a mother has the right, as long as she leaves the official records alone, to change the child's name. The school board told me this was a decision. It's an opinion.

Judges in this province—and I cannot cite the name, although, again, I will be submitting the decision—do not enforce any orders against the mother.

We had a case here in Alberta where the mother went to jail for two weeks. It took 26 applications to finally get some action. The accusation against the father, however, all boils down to not being an effective parent. Twenty-six applications. Then they're complaining because the man is behind in his alimony, or “maintenance”—we don't call it alimony any more.

I ask you, how many members of this committee can afford to pay maintenance and 26 court applications to get access to your child? I suspect very few of you would stand for it.

The judge in this decision—and I'll refer you to it—also had some disparaging remarks to say about the man, that his strident involvement in parent rights groups had not helped his cause with the children.

Gee, I've never heard a judge tell a woman, you know, you're a feminist, and that doesn't help you with your children.

I put these things before this committee because lawyers and politicians live in the purity of the law: “You have a problem? Hey, you have resources. Go to court.” But it doesn't work that way. We have to live in the reality of the law. The day is over that a parent can lock out a child? Not in Alberta.

I have a court order that says I have joint custody. In my legal court order it also says that neither I nor my wife can change my daughter's education, because my wife yanked the child in and out of school like she was a yo-yo. She started to change my daughter's education. She changed her name. I went to court and asked for enforcement.

Madame “social engineer” Trussler, who lobbied very vigorously to get things up—and I find it disgraceful that a judge can lobby politically—

The Joint Chair (Senator Landon Pearson): If a case like this raises the question of judges, we need the court reference and so on, because we cannot—

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Mr. Jay Charland: I will submit it. There is a publication ban on the names of the parties. Consequently, under legal counsel's advice, I am neither telling you the name, nor am I telling you the action number, but I will—

The Joint Chair (Senator Landon Pearson): We would prefer that you refrain from referring to judges this way and continue with your recommendations to this committee.

Mr. Jay Charland: Okay.

Senator Anne Cools: You can speak, but you must not speak in a way that maligns individuals. That's all.

Mr. Jay Charland: I will get you the action number on my particular case; it's in a folder at my feet.

The judge said to me, “I'm not going to enforce your order. Perhaps you should go get some counselling to learn how to deal with this.” And that's where it was left.

The day is not over in Alberta. I firmly believe the only things left to us are civil disobedience. The judges say you have a problem with legislators. The legislators say you have a problem with judges. I say we have a problem with both of you.

If I had one binding recommendation to make to this panel, it would be, quite bluntly, feminist jurisprudence does not belong in a court of law any more than white jurisprudence would belong in a court of law. I believe that is the situation we are faced with in this country.

On the last Law Day I was asked why we protested outside the courthouse and did not set up a table. I told the person asking me, quite bluntly, given what's happened in this building, very few of the men feel welcome here. I think the same goes even greater to trying to deal with the problem.

Thank you for your time and your patience.

The Joint Chair (Senator Landon Pearson): Thank you. You have five minutes, Ms. VanEe.

Ms. Carolyn VanEe (President, Equitable Child Maintenance and Access Society, Edmonton Chapter): Thank you.

Good morning, honourable Senators and members of Parliament. I'm Carolyn VanEe, president of the Equitable Child Maintenance and Access Society, Edmonton Chapter. With me is Brian St. Germaine, our vice-president. ECMAS is a non-profit society supported entirely by the membership. There are three chapters in Alberta representing in excess of 1,700 families. We represent custodial and non-custodial parents, and about 30% to 40% of our members are women representing new spouses, grandparents, extended families, and friends.

Three of the goals of this society are that there be a legal presumption of joint custody for children; that there be shared and equal access for the children of separation and divorce; and that there be an enforcement of court-ordered access. The position of the society is outlined in a brief prepared for this committee.

From this information the society makes the following recommendations: one, that the Divorce Act be amended to create a presumption of joint custody for children of divorce unless one parent can be proven to be unfit; two, that the Divorce Act be amended to require shared and equal access for children; three, that the Divorce Act be amended to provide for financial resources to be apportioned between both homes in order to effect significant access to both parents and proper financial support while in the care of both parents; four, that there be a national computer database for registering court-ordered access orders; five, that the Divorce Act provide for the inclusion of an enforcement clause in access orders when requested; and six, that each province and territory have an access enforcement coordinator responsible for ensuring compliance with court-ordered access.

In the family law environment, fathers are discouraged from obtaining joint custody through manipulation and intimidation, which accounts for the majority of sole-custody decisions favouring mothers. The historical doctrines of primary breadwinner, tender years, primary caregiver, and best interests of the child favour one parent and do not address the needs of the children. A presumption of joint custody favours both parents and addresses the needs of the children, especially where the children live at the poverty level.

Despite the tragedy of divorce, children need the active involvement of both parents in their lives as much as possible. Presumptive joint custody legislation is present in increasing numbers of jurisdictions and it has been reported that in states with a higher level of joint custody there is a significant decline in the divorce rate. Overall, divorce rates decline nearly four times faster in high joint custody states compared to states where joint custody is relatively rare.

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The importance of shared and equal access is demonstrated by the impact of father absence in our community. In the U.S., a too-large majority of long-term prison inmates grew up without fathers. Shared and equal access allows both parents to ensure that the children are safe from harm and abuse and are cared for.

The enforcement of court-ordered access is achievable using present laws, and creating an accessible means of enforcing access would not be expensive or difficult. In Alberta, we spend nearly $5 million annually on maintenance enforcement and zero dollars on access enforcement.

Non-custodial parents, and in particular fathers, are not isolated individuals but are part of and supported by extended families and have significant relationships with the children. There is an immediate need to create legislation and family law processes to protect the children from the harm they are now subjected to. Child-friendly legislation would recognize the equality of both parents, meet the needs of the children, and reinforce a feeling of belonging for the children.

Every day there are new instances of children being deprived of full contact with both parents by sole custody orders. Child support values are awarded that do not offer any support for the children while in the care of the support-paying parent, child support awards that do not account for both parents' ability to contribute or account for actual costs of caring for the children. Every day there are new instances of child access court orders being disregarded, and children are being alienated from one parent.

The time to act is now. The brief accompanying this presentation outlines in more detail the rationale for the significant changes that are required and provides details for the necessary changes to be effective. Our families have real expectations that there will be fair and equitable solutions available to them without delay. Please read the information provided and take action for our children's sake.

On behalf of our members, we thank you for the opportunity to represent and speak out for our families.

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

Mr. Forseth.

Mr. Paul Forseth: Thank you very much, and welcome to the committee. There was a reference made to the Government of Alberta sending a representative, and I would like to say at least they did send somebody.

Many provinces prefer direct government-to-government communications. That's because of protocol and precedence. Provincial ministers and their departments communicate with their counterparts directly. I don't like it, but that's the way it is for now. That kind of situation can be used as a cover for political accountability. Those in control don't like the public seeing what they do, because they forget who they work for.

But I would like to refer directly to the general theme we've heard from your presentations, and that's bias in the court system in general. What we've heard when that has been brought up is, is it not that the underlying reason for the bias you say is there, why many more mothers, post-court, wind up with predominant control rather than fathers, is that the day-to-day responsibilities and the internal family arrangements made by parents while they were together tend to be maintained afterwards? What we have heard is that fathers are coming to committee now, so the comment has been, well, where were they in the parenting when the parents were together? What's the change?

I would like you to respond to that, to the apparent bias that you say is in the courts. It has been given to us on the other side that maybe the bias isn't quite there as much, but that it's reflecting how parents arrange their social lives and make the choices before things break apart, and therefore that's why you get the results at the other end.

Mr. Paul Miller: I will speak to this, since I've spent a fair amount of time studying this very issue.

One of the things we're seeing in society over the last couple of decades is that women are more and more participating in the paid workforce outside the home and men are participating more in the family. What we're seeing, though, in the court system is in fact a shift the other way, in other words, a shift that custody is decided more and more in favour of females over the last 10 years or so.

That is especially pronounced since we began teaching judges in gender bias seminars that women do not receive custody as often as men. Because we're giving them false information, judges gain improper understanding. I don't want to give the impression I don't respect judges, because these people are very intelligent and extremely educated and certainly have many years of experience to bring to their position, but we're all subject to the information we receive and to the impressions we get.

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The social science evidence, in fact the main evidence I would bring to you, is a study by the Department of Justice that was published in 1990 called “Examining the Divorce Act”. It found custody was the most highly disputed aspect of a divorce and that when things went to court—and this was evidenced over about 1,100 or 1,200 cases in four jurisdictions in the late 1980s, around 1989—about nine times more often full custody would go to the mother as to the father. We have just an enormous bias in favour of women in the court room.

The argument is often made by feminists that it's outside of the court rooms that men relinquish their custody and inside the court room they're treated fairly. A better model of this would be to look at court rooms as a very influential place and that when you're bargaining outside of the court room for custody of your children, you're very aware of what is likely going to happen in court. We call this model of decision-making bargaining in the shadow of the law. It's a theory developed by some law professors. This is a much more likely model of how things actually happen. If you know you're going into court and you're going to get custody when you go to court and you can rely on that fact, well, that's going to happen out of court as well.

My observations, the evidence I've been able to find, is that in fact we should see a softening of the gender boundaries on custody over time as social change happens. It is the social change that is driving, or should be driving, at any rate, changes in determinations over time, and we're not seeing that. I submit to you that perhaps one of the things you need to address as a committee is to look at what is the cause of this and how we can work with the social change as a country and bring a fair solution, given the social changes that have been happening.

Mr. Paul Forseth: Okay. Maybe we could give an opportunity to someone else.

The Joint Chair (Senator Landon Pearson): Mr. St. Germaine.

Mr. Brian St. Germaine (Vice-President, Equitable Child Maintenance and Access Society, Edmonton Chapter): I would like to respond to that question.

When you're speaking of mothers having greater involvement, it is actually the basis for the primary caregiver doctrine that is very subjective. What is more important? Coaching hockey or preparing the child's lunch? That was replaced, basically, with the doctrine of the best interests of the child, which is also very subjective.

One of the reasons why there are not more applications for joint custody and sole custody by fathers is because when they attend their lawyer's office they are often told there will be a trade-off between custody and family assets and increased child support or spousal support, or something like that, so custody becomes part of the negotiation. Those kinds of negotiations are long and expensive and there is a lot of letter-writing back and forth that can exhaust the financial resources of many people just to do that. The extended negotiations also create a status quo where the children remain with, in this case, the mother. By the time you get to court a year and a half later the judge will reinforce the status quo.

If you choose to challenge the sole custody application by your spouse, then you're advised you must have an in-home study done by an accredited psychologist or a master social worker. The cost of such a study in today's dollars is about $5,000, which they ask you to pay in advance. If you are then faced with continuing legal bills and an extensive study to demonstrate your ability as a parent, many fathers either don't have the resources or choose not to spend those kinds of resources.

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Those are some of the major reasons why we have sole custody awards continuing for mothers. In the last part of this century we have seen fathers being more and more involved with their children and in a more visible way. I am not saying that in the early part of the century fathers weren't involved, but our laws and society have changed to the degree that it is more visible.

What we recommend is the joint custody provision so that all these antagonistic tactics and conflict-creating processes are reduced and we can get to the point where we have joint custody and the complete involvement of both parents, resulting in a benefit to the children.

Mr. Jay Charland: If I could add something, Mr. Chairman, I speak to about 200 fathers a year, probably five or six new fathers every month. One of the things that always comes up is, “I talked to my lawyer and my lawyer is recommending...”. I say, “Wait a minute, let me tell you. If you want to contest sole custody for your child, it is going to cost you $20,000, and in the end, even after that $20,000 is spent, the probability is that the judge is going to give custody to the wife anyway.” Immediately the guy says, “Do you know my lawyer?” It is the standard sale. You go to the lawyer in family law and he says, “Do you have $20,000? If you don't, sign away your kid.” That is why we get so many consent orders.

The Joint Chair (Senator Landon Pearson): Are there any other questions?

Senator Anne Cools: Yes. I would like to thank the witnesses for coming before us. I wonder if the witnesses could give us an idea of the numbers of people and families they are working with annually.

Ms. Carolyn VanEe: Within our organization we have about 1,700 families across the province. We have people in British Columbia and Saskatchewan and even some contacts in Manitoba. As well, thankfully, the age we are living in with computers and everything, we are in contact with people across the country and in the U.S. and beyond, so I think it is a significant number of people.

As well, we have been told that within the political system, if one person comes forward, they represent about 40, or something like that. We have 1,700 members, or better, and that is just a small part of who is coming forward and who is emotionally stable enough and able to come and be part of our organization. I think there are a lot of people out there who just haven't reached us yet.

Senator Anne Cools: I would submit that 1,700 is an enormous number.

Mr. Brian St. Germaine: I might add that we operate a phone message line in Edmonton and on average, I would say, we receive two calls every day of people looking for information and assistance. Most of them are in some distress.

Mr. Jay Charland: I mentioned earlier that I speak to about 200 fathers over the course of a year, probably about five or six new ones every month. There are about 50 men who work together on this. Nine years ago, when I got into this, finding any support was near impossible.

Mr. Gus Sleiman: At MESA we have about 3,000 calls a year coming into our phone lines on various issues. Mostly they are related to the issue of custody, access, maintenance, and family violence. We respond to all calls on a 24-hour basis.

Senator Anne Cools: Thank you very much. I think my point is made, because there are certain witnesses who have come before us and I have enormous difficulty finding out from them who their client populations are and how many people they serve. I thank you for your openness.

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

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Senator Duncan Jessiman: You do represent a lot of people, and I take it that what you're telling us is the courts are not following subsection 16(10) of the act that has to do with custody and access orders.

I'm going to read it and you tell me whether the courts have followed this:

(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

So that being there, in your cases are you bringing that to the attention of the judge who should know it anyway?

Mr. Jay Charland: The judges do not follow it and in fact—

Senator Duncan Jessiman: So it has to be stronger.

Mr. Jay Charland: Yes, it must be stronger. In fact, in regard to the best interest of the child I would recommend for this committee that Young v. Young of the Canadian Supreme Court be required reading and study, because there is a lot of dancing around that particular clause in that particular ruling, the dissenting ruling by Madam Justice Dubé.

Women have learned that if you refuse to go to mediation, no matter what you do, you will still get custody of your children. We made several attempts to go to mediation in my case specifically and the judge still said, let it happen.

The person who did the assessment in my case—and I can provide the assessment—stated that I had no problem providing access to the mother. In fact actually I struggled for five years before she finally managed to turn her child away from me.

I moved within three blocks of them just so that my child wouldn't have to be shuttled halfway across town. I will say to you that you have never lived until your 11-year-old child tells you, “I'm not coming to see you any more because I have to get on with my life.” When you bring that to the attention of a judge, the judge says, “Gee, I'm not going to enforce your order.”

Mr. Paul Miller: One thing I would like to point out is that in my research what I found is that legislation by itself does not have a lot of impact on judicial behaviour. We need a lot more than just legislation. We need policy. We need programs to monitor judicial behaviour. You're not going to just monitor judicial behaviour automatically by enacting a change in legislation. That's not going to happen automatically. You have to do other things to make it happen.

Mr. Gus Sleiman: About maximum contact, I just have my personal story in here.

After my son was abducted by his mother and they moved from the province—and it took us about six months to get to the level to deal with this issue—I finally requested from the judge that I wanted to see my son because I couldn't, and he said he would not allow my son to be separated from his mother. So I stood up and I said, “I agree with you fully, but how could you allow the child to be separated from his father?” He responded by saying he was a judge and a grandfather and that in his family women look after children and fathers go to work for them. So it doesn't matter much whether I see him or not and he did not make the order. I still, up to this, haven't seen my son in the last four years except three times.

I can give you more details. When I finally came to court in the city of Ottawa to get access to my son, after the allegation of my ex-wife by this time that I would abduct my son, the judge came up with the condition that.... I'm a Canadian citizen of Lebanese descent. That's how his condition came across. I'm still fighting this.

...the petitioner

—which is me—

or his counsel shall provide written details from the Lebanese Consulate of all passports or other travel documents in the petitioner's name from the State of Lebanon.

...the petitioner shall provide written confirmation of the Lebanese Consulate's agreement not to issue a passport or other travel documentation for either the petitioner or the child....

This kind of a condition I testified was a denial of access by the courts—

The Joint Chair (Senator Landon Pearson): Could you put the citation of that case on the records?

Mr. Gus Sleiman: The record of the case? Of course, yes. It's court file number 51750-95.

Mr. Paul Forseth: What court?

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Mr. Gus Sleiman: That's in the general division of the Court of Ontario in Ottawa.

Senator Anne Cools: What is the name of the case?

Mr. Gus Sleiman: The name of the judge?

Senator Anne Cools: No, the name of the case. Who is the petitioner and who is the respondent?

Mr. Gus Sleiman: The petitioner is Ghassan Sleiman and the respondent is Madeleine Sleiman.

Mr. Jay Charland: If I can interrupt for a second, I did promise that I would put this number on the record for you. The court number is 4803-7615, Barbara Heidi Himmel, plaintiff; Jay Charland, defendant.

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

Senator Anne Cools: I think it's very important that witnesses who appear before us and cite cases provide the committee with proof that they're citing some cases that are before the courts.

I have a quick question on abduction. May I, Madam Chair?

The Joint Chair (Senator Landon Pearson): Yes.

Senator Anne Cools: Thank you.

The committee has really not yet wrapped its mind around the whole troubled area of abduction. International abduction is an even larger problem, in contrast to abductions within the country.

On this whole issue of abduction, in your particular case, when these individuals take off with children, where do they reside when they're on the run?

Mr. Jay Charland: You will be hearing from Child Find Alberta later on this afternoon, and I am sure they will tell you a lot more than I could possibly tell you.

But I will tell you that I had one father who works with us quite regularly, whose wife abducted the child and disappeared. He went to the RCMP and asked for their help. The RCMP, as usual, said no, you don't have a custody order. So he went to court and the judge gave him a custody order. He went back to the RCMP, and they still gave him a song and dance.

So one day he said, I'm going to try something. He pulled into the RCMP parking lot, jumped out of his car, ran in the door out of breath, and said to the guy, “You guys tell me you can't find my wife, and I just saw her driving down the road heading toward her parents.” Well, the poor guy got all flustered. When they opened the file, not only had the RCMP known where she was, at her parents, but there were records of telephone conversations between her and the RCMP.

We had a recent case, from Texas, I believe it was, that was brought back out east, a mother who had abducted the child, and the court gave her a pass.

I think the court has a problem with punishing people.

Senator Anne Cools: I'm not on the issue of punishing.

Mr. Jay Charland: I understand that.

Senator Anne Cools: Where do they go to stay? A lot of times, accommodating them is in point of fact....

Mr. Jay Charland: A lot of times they go to family. There are cases of church groups, as in the one case I did describe to you of which I cannot mention the name because of a publication ban. That was a church group that hid the kids. In that case, as in many others, social services gets involved and does a very good job of shuffling kids around. If you want to find them, with social services you're going to have a really hard time.

Mr. Gus Sleiman: There's an organized plan out there within the system. The first time the mother goes down to the women's shelter, that's just the first step where the process of indoctrination of gender feminism starts to take place, and how to deal with the children, how to hide them, how to fight in the courts. We have evidence on these matters and reports by even the social agency employees themselves when they are retiring and coming out and speaking about this.

Secondly, they go to the lawyers—

Senator Anne Cools: I'm speaking in terms of where they live.

Ms. Carolyn VanEe: I would submit that I think many times they're in their own homes. They don't go anywhere, but because of the inability of parents to get enforcement of access or anything to do with joint custody, they effectively can block a non-custodial parent from seeing those children. They don't even necessarily have to abduct them to another town, city or province.

Senator Anne Cools: Yes, but I'm speaking of cases of abductions where they're actually...particularly abductions in—

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Mr. Gus Sleiman: If I could answer that, you have families of some of these parents involved, apparently. I have knowledge of at least one.

They take them outside the country. There are so many ways, I guess, they can hide them.

Senator Anne Cools: At any rate, chairmen and colleagues, at some point in time we're going to have to look at this whole issue of abduction.

The Joint Chair (Senator Landon Pearson): Yes. We have it on the list.

Senator Anne Cools: He keeps raising the issue of women's shelters. Perhaps when the next group of lobbyists from women's shelters comes to us we could ask them about abductions and how many abducted children are being accommodated in those shelters.

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

Mr. Jay Charland: One last point. Do you need the reference to the Supreme Court decision I referenced?

The Joint Chair (Senator Landon Pearson): No, we know that one, thank you.

Mr. Jay Charland: Okay.

The Joint Chair (Senator Landon Pearson): Our final witness this morning will be Mr. Joe Hornick from the Canadian Research Institute for Law and the Family. He is accompanied by Professor Janet Walker, the director.

I'm not sure which one of you is speaking. Please go ahead, whichever one.

Mr. Joe Hornick (Executive Director, Canadian Research Institute for Law and the Family): I'll be speaking. I brought Janet along because she is one of my board members for the Canadian Research Institute for Law and the Family, and she happens to be in town. I understand you may be obtaining evidence from her at a later date.

I'm executive director for the Canadian Research Institute for Law and the Family, or CRILF, which is a non-profit, independent research institute. The major goals of the institute are to undertake and promote interdisciplinary research that provides objective information on issues related to law and the family.

In the 11 years of operation at CRILF, we have conducted over 50 major research projects. Only four of these have been directly relevant to the issues of custody and access. I'm going to add a fifth now, because I just found out that we did a manual for the RCMP on the abduction of children several years ago. I didn't think of that as being associated, but it is.

Our limited activity in this area reflects not our lack of interest—we have done probably more research in this area than any other organization—but rather the lack of funding for research concerned with access and custody issues. Thus, a key overriding issue concerning the task of this special joint committee is the difficulty of reviewing laws and making proposals for law reform of the Divorce Act without sound empirical research. In the absence of good, objective evidence, all too often decisions are made on the basis of anecdotal and personal experience. With this major limitation in mind, I would like to speak to both issues and possible solutions that the limited research we've done has focused on.

CRILF's 1990 study of custody and access in Alberta indicated that over 16% of the Alberta population over the age of 16 had direct experience, as a parent, with access. Extrapolating to the 1997 population for Canada, this would suggest that approximately 5 million Canadian parents have direct experience with custody and access. I think that's a very conservative estimate.

It is important to note that the CRILF study also suggested that while the majority of parents indicated experiencing some difficulties in working out access, the vast majority resolved their problems informally. Further, a small group of cases, approximately 22% of those that went to court, were what we termed “conflict-habituated” cases and were responsible for a considerable proportion of court activity.

The issues commonly associated with access and custody are: residence; decision-making; support; access; denial risk to the child; lack of interest of the non-custodial parent; and marital violence and abuse.

In terms of research concerning these areas, a number of research projects have been completed on domestic violence. Unfortunately, clear distinctions have seldom been made between married and common-law situations with these studies. Further, child support is currently being researched because of the implementation of the federal child support guidelines.

With regard to potential solutions, although it is difficult to make firm recommendations regarding access and custody issues relevant to the Divorce Act, some recent innovations and experiences from other countries that have done a considerable amount of research suggest some potential solutions to the issues.

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In terms of a framework, it is important to have a proactive system that is designed to minimize and avoid problems, as opposed to a system that simply reacts once a problem occurs. With this in mind, we would recommend the following changes to legislation.

First, the legal regime should minimize conflict in the adversarial approach. Law should reflect the reality of and reinforce the efforts of those divorcing parents who try to resolve their problems with minimal controversy and turmoil. One way of doing this is to adopt new concepts, as England and Australia have done, to minimize conflict, e.g., the presumption of continuing parental responsibility of both parents and a change to more flexible concepts such as residency and contact.

Second, the best interest of the child should remain paramount. However, “best interest” needs to be more clearly operationalized. Factors that should be considered are: least disruptive alternatives for the child, identification of primary caregiver, and consideration of views of older children.

Third, legislation should specifically acknowledge the relevance of domestic violence in custody and access, as has been done in other countries such as the United States, the United Kingdom, New Zealand, and Australia. Further, related to this issue, legislation should make explicit provisions for supervised access and exchange, as in Australia and New Zealand.

Other mechanisms should also be considered. These may be reinforced by legislation or could simply operate in practice. They would include the following.

First, Parenting After Separation classes should be given to all separating and divorcing parents. Alberta and Manitoba have accomplished significant advances in this area. Preliminary research, although limited, suggests the usefulness of these programs. England is also currently experimenting with this.

Second, the use of parenting plans should be considered, particularly in those cases where conflict is present. These have been compulsory for all cases in Washington State since 1991, and as well are used by a significant number of mediators across Canada, England, and Wales, and are currently being studied in England and Wales.

Finally, the use of compulsory pre-trial alternative dispute resolution, such as mediation, should be carefully considered. It is already used in practice in a number of locations in Canada, and anecdotal evidence is very positive.

Thank you.

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

Questions?

Senator Jessiman.

Senator Duncan Jessiman: Can you tell me something about your organization, the Canadian Research Institute for Law and Family? Are you part of the Canadian Bar? How are you associated? You say funding is a problem, but tell me how you do this kind of....

Dr. Joe Hornick: We're an independent research organization, federally incorporated as a charitable organization. We have a board of directors of approximately 20 people, ranging from appeal court judges through policy people right across the country and defence lawyers. We have an appointed member who's appointed by the Law Society of Alberta, and we have appointed members from each of the law faculties in Alberta. So we represent a pretty good across-the-board inter-disciplinary—

Senator Duncan Jessiman: Are there similar associations in the other provinces?

Dr. Joe Hornick: No, there aren't, but what we often do in various projects is team with other people. I understand Nick Bala in fact presented a report to you earlier of one of the projects. Nick is one of our board members and a colleague who works with us, and I believe he presented this to you for the Status of Women report.

Senator Duncan Jessiman: And how many work at this full-time. You have done 50 projects, four or five of which have nothing to do with this.

Dr. Joe Hornick: We have a core staff of five positions, but any one project, as you see.... I'll use as an example the project we did on spousal violence and custody. Actually, three of our staff were on this—me, Dr. Lorne Bertrand, and Joanne Paetsch—and that's unusual. Normally we'd have probably one staff member on. But as you see, then we go across the country and pick who we think are the people most appropriate and the best qualified to speak to the issues we're researching. We have them do their part and then as an organization we put it all together.

Senator Duncan Jessiman: Do you make representation to the Canadian Bar or to any of the—?

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Dr. Joe Hornick: No. When we set up CRILF some 11 years ago, we had to be very careful. Our original objective indicated that we were to make recommendations for law, but corporate Canada made us take that statement out. So we now have to be very careful in terms of “providing information that can be used for making recommendations”. So we provide information to groups in Canada. It's for anybody, virtually.

Senator Duncan Jessiman: How are you funded?

Dr. Joe Hornick: We get some core funding from the Alberta Law Foundation, but as I suggest in my brief, most of our funding comes from direct project funds whereby we would solicit federal and provincial governments and foundations, and they would fund specific projects.

Senator Duncan Jessiman: And you say there are no similar organizations in other provinces that you know of.

Dr. Joe Hornick: No, we're national, and most of the work we do is national. We work with other organizations, but no, there's no organization that's exactly like ours.

Janet's organization in England is similar to ours. Probably the most well-known organization would be the Australian Institute of Family Studies. That actually has a legislative base, but we don't. But that's the kind of work we do.

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

Ms. Madeleine Dalphond-Guiral (Laval Centre, BQ) (Interpretation): Thank you for being here.

You have suggested a few ideas and you have talked about the education process. You have said that it would be good to have courses for parents who are separating.

I have a question. In reality there are more and more families, young or not so young, who decide to separate. Most of the time it's a good decision—probably. But I was wondering whether it would not be a good idea to add to the courses or the school programs what it is to be a parent. We have young parents who are 16, 17, 18 years old, and we know that these very young families are more vulnerable than others. Maybe it would be good to give training when there is a problem, but would it not be a good idea to develop a different attitude, to train people beforehand so they know what it is when they decide to have children, what responsibilities they have towards the children? I would like to know your opinion on this.

Dr. Joe Hornick: I certainly think there should be training available for potential parents. All that information would certainly help. It would help in terms of all sorts of social development issues, which, as you know, go far beyond having high divorce rates and problems with custody and access. So in a generic sense, I would certainly support that.

I wouldn't see that necessarily taking the place of the parent education courses. The reason for this is that the parent education courses are targeted at people at a very stressful and specific time in life. Most of them deal with all sorts of issues in addition to issues about the effects of divorce on children. They usually deal with issues of what the legal process is and what they're going to have to do.

That's all very important. That helps lower stress. If people go into situations understanding what's going to happen, it will lower the stress and the potential of conflict and misunderstanding.

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So even the legal part of the parenting course is very important.

But over and above that, I think even good parents will have some difficulty with custody and access, because it's not easy. I have a four-year-old and I couldn't imagine what it would be like if I couldn't live in the same place he does. But I know I would certainly want to prepare myself for that before I tried doing it, and that's what these courses are about.

So in terms of what I'd call primary prevention, your suggestion is certainly well taken. I think we need to look much more closely at that as a general kind of preventative thing for all sorts of ills of society. But I still think we need to look very carefully at these parent education courses prior to separation and divorce.

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

Senator Mabel DeWare: In your opening remarks, Mr. Hornick, you mentioned older children, but I didn't know what you were referring to. Could you elaborate on that a little?

Dr. Joe Hornick: Yes. We mentioned that older children should somehow be involved in making decisions. They shouldn't make decisions, but they should be a part of the process. I know there's controversy over whether they should actually be part of the mediation process on that. My suggestion is the higher the level of functioning and the older the kids are, the more they probably should be involved, for a couple of reasons.

The UN charter of rights would suggest, depending on how you interpret it, that they should be involved. Secondly, and probably more importantly, we've found in our studies that with the older kids it's not the parents who make the access or custody decisions; it's the kids. When they get to be 14 or 15 years old, if the parents won't involve them in the decision, they'll make it themselves.

It seems to me they should be involved more formally at an earlier point so that the entire process becomes one of communication or what I would term informally as kitchen table negotiations: “So you want to go and live with dad for a while. What will that mean? Does dad really want you to live with him full time?” Sit down at the table and talk it over, but involve the kids in it. Some people say they'll let the children pick the colour of wallpaper once they've moved. That's not a very positive way to approach it.

Senator Mabel DeWare: Is there an age bracket you're considering? I suppose it depends on the actual children themselves and their ability.

Dr. Joe Hornick: In my own personal situation—I assure you I'm not thinking of separating and divorcing my wife at this point—a couple of months ago I was going to England to work on Janet's project on divorce and my son asked me, “What's divorce, dad?” I told him, “It's when two parents after a while find they can't live together, so they live apart.” He said, “Why would they ever want to do that, dad?” And I said, “Well, sometimes it's not easy to live together and people don't plan these things very well.” He said, “Well, what happens to the kids?” I said, “They usually go with one parent, the other visits, and we study that sort of thing.” He said “You and mom aren't planning on doing this, I hope.” I said, “No.” And he said, “Well, if you do, could you talk to me about it?”

Senator Mabel DeWare: Point well made. Thank you very much.

The Joint Chair (Senator Landon Pearson): Dr. Walker, you're being very quiet there, because you're here as a visitor, I guess. But I just wondered, you have been here for part of the morning, whether there's anything you'd like to add.

Professor Janet Walker (Director, Canadian Research Institute for Law and Family): Thank you very much.

I think I will have an opportunity to talk by video-conference later in the year, but certainly there is quite a lot of research evidence in England now around the changes we've made in the policy field in trying to help parents deal with the difficulties of what we now call “residence and contact”.

I think we've been fairly successful in taking a lot of the heat out of the battles and the arguments through our legislation. But interestingly, picking up from some of the questions here, we are just finishing a study in my centre that has been looking at relationship and parenting education in schools, and I will certainly make sure a copy of that comes to you.

Also, one of the things we're testing at the present time for our new family law act is the provision of insulation, both for adults and for children. It's back to the question you just asked.

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There are now leaflets available in England specifically written for children of different ages to help them understand what sort of questions they might need to check through, what might be happening to them, and what their parents might be experiencing. The evidence so far from our research is that those parents and children really welcome the opportunity to have something tangible that provides a basis for discussion.

So again, I will make sure the committee has all those materials for their deliberations.

The Joint Chair (Senator Landon Pearson): Thank you very much. We look forward to reading them.

Are there any other questions?

Mr. Paul Forseth: Yes, thank you. I'll be very brief.

It's interesting that instead of custody and access, you've now come up with these terms “residence” and “contact”. It diffuses the situation somewhat and moves away from the underlying principle of ownership.

I wonder about the larger guardianship issue, if, as a roof over an order or an agreement that talks about day-to-day residence and care and control and contact things, parents do continue the legal guardianship in a joint way, those fundamental principles about being able to sign on behalf of the child's medical treatment, making decisions about basic religious instruction, and obtaining a passport; those larger guardianship things. If it's joint, how do you sort those out as to when one parent feels they're not being consulted on those guardianship issues, that they're being cut out? They have joint guardianship, so to speak, on paper, but it doesn't seem to happen between them.

Prof. Janet Walker: The term we're using is “joint parental responsibility”, and at the point of separation or divorce, because, of course, it applies to unmarried parents as well as to those who are married and divorcing, the parents are reminded of what those joint parental responsibilities are, and the expectation is that they will indeed consult about making decisions in a child's life.

However, we also have the concept that responsibility for day-to-day decision-making runs with the child. So given that the child might be with mother at any moment in time, mother takes responsibility for day-to-day decisions. When the child is with father, father takes the responsibility for day-to-day decisions. The big decisions are supposed to be discussed jointly.

If clearly one or the other parent is not following that expectation, then, of course, they always have access back to the courts to actually ask for a legal opinion. But increasingly, in England, the pressure now is on encouraging couples to meet with a mediator, and more and more I think issues around the day-to-day responsibility and decision-making go through a mediation process rather than back through the courts. Certainly, research we've done on mediation in these issues would suggest that there are fewer longer-term disputes that re-emerge than people who have the original decisions made by the courts.

But I think one of the things that diffuses the ownership issue is when the child is with either one parent, that parent has responsibility there and then, and I think that has quite changed the way particularly non-residential fathers have approached their responsibility as parents.

Mr. Paul Forseth: To have the same parallel system here, even though our words are different, that would be a situation where parents have joint guardianship. One has day-to-day care and control and the other one has access. Those are the words we've used. It identically describes what you have. So you're holding out some hope that if we change the words it might help.

Prof. Janet Walker: It's more than changing the words. I think it's really changing the understanding of parents' responsibilities, which don't cease, irrespective of marriage, divorce or living with the child.

We have very few situations in which the court now gives an order in relation to residence and contact. It is expected that parents will make those arrangements for themselves, that they will be endorsed or otherwise by the court during the process. But on the whole, orders for residence and contact are very rare because the belief is that the court should only make an order if it would be against the child's best interest not to do so.

The presumption is not a court order. The presumption is an agreement between the parents, and the expectation of the residential parent is on how that parent will enable contact to be maintained. Responsibility is on the parent with whom the child lives to ensure that contact happens.

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We've actually quite shifted a culture of thinking about post-divorce parenting, so I think simply changing the words is not enough. You have to change the way in which you get parents to think about how they are going to maintain those responsibilities on a day-to-day basis.

Mr. Paul Forseth: You shift that through parental education courses and—

Prof. Janet Walker: It's shifted through a number of means. It's shifted through the fact that if a parent goes to a lawyer and asks them to try to get an order in relation to the child, the lawyer will say, no, I don't want to do that. That's not in your interest or in the child's interest. Let's try to sort this out with the other parent. So there's a non-adversarial culture that has gone through dealing with children's issues. But, yes, there is increasing education and increasing information, and when the new Family Law Act comes into place in a year or two, every couple, every parent who wishes to get divorced, will have to go to an information meeting where they will be given information about a whole range of things, including their parental responsibilities and children.

Mr. Paul Forseth: Thank you.

The Joint Chair (Senator Landon Pearson): Senator Cools, you had a question.

Senator Anne Cools: Yes. Thank you very much, Chairman. It's very usual for us to have witnesses from abroad, so it's interesting and exciting to hear some of the things you've been saying. I want to be sure I understand what you said. You said that whoever has the child at that moment in time has total responsibility.

Prof. Janet Walker: For the day-to-day decision-making, yes.

Senator Anne Cools: That is fantastic. In other words, if the child is visiting with what we call here the non-custodial parent and takes ill—because there's a lot of conflict around it—and that person has to act swiftly and take the child to hospital, what I'm hearing you say is that this parent's actions in taking that child to hospital will be supported.

Prof. Janet Walker: Absolutely.

Senator Anne Cools: And defended and upheld, because there's a lot of conflict around that sort of thing: “Why did you take them to that hospital and not the other hospital?” and so on.

Prof. Janet Walker: Yes, the responsibility goes with the child, wherever that child is.

Senator Anne Cools: Excellent, because we also have the second rule you articulated, that the responsibility rests with the custodial parent to guarantee contact with the other parent. We have that too. It's called the friendly parent rule and it's subsection 16(10), I believe, of the Divorce Act. But nobody enforces it, so it is as though it's not there. It would be interesting to look at your law in terms of how does the law uphold that.

Prof. Janet Walker: Maybe what would be most helpful is if myself and colleagues in England get together quite a lot of the material. There's been a committee that has been monitoring our Children Act since 1989, and I think you would probably benefit from having access to those reports and to the research that's been going on around it.

Senator Anne Cools: That's wonderful, but perhaps—

The Joint Chair (Senator Landon Pearson): We could have a video conference with them.

Senator Anne Cools: Excellent.

Baroness Faithfull, was that her name?

Prof. Janet Walker: Yes.

Senator Anne Cools: Was she involved in this.

Prof. Janet Walker: She was certainly very involved.

Senator Anne Cools: She's passed away now.

Prof. Janet Walker: She has. She certainly was heavily involved in getting the Children Act through Parliament, as she was with the Family Law Act just before she died. And yes, she was certainly a prime mover both in reform of the legislation but also in introducing and encouraging family mediation.

Senator Anne Cools: Wonderful, because shortly before she died I was to go to England to have a meeting with her and she was a fantastic woman, Baroness Faithfull.

Prof. Janet Walker: Yes, absolutely.

The Joint Chair (Senator Landon Pearson): Senator Jessiman, a quick, last question so we can break.

Senator Duncan Jessiman: Do you have guidelines as to who pays who what?

Prof. Janet Walker: Yes. We have an actual Child Support Act, which is deeply unpopular I might say.

Senator Duncan Jessiman: Is it so in England as it is here in North America, where a good number of the wives and mothers actually work full-time?

Prof. Janet Walker: Yes.

Senator Duncan Jessiman: So they contribute and there's a joint responsibility. The financing as a rule is agreed to?

Prof. Janet Walker: Yes. Increasingly in England financial matters are dealt with through mediation. What there is much less flexibility on is child support payments. The Child Support Act runs to a formula, and I think that in itself has been quite problematic for parents who want to try to negotiate financial exchanges and find they come up against a fairly rigid system. That's actually under review at the present time in England, and we're expecting there to be changes to enable a greater degree of flexibility, because it's so often the financial arrangements that cause the biggest conflict. And then they're often played out in relation to the children.

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Senator Duncan Jessiman: Thank you very much.

The Joint Chair (Senator Landon Pearson): Thank you very much for coming. We will now take a break and resume at 1 p.m. For the information of members a table has been reserved in the hotel's restaurant for us to share.

AFTERNOON SITTING

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The Joint Chair (Mr. Roger Gallaway (Sarnia—Lambton, Lib.)): Order. Good afternoon, and welcome to our afternoon session of the 20th meeting of this special committee of the House of Commons and the Senate of Canada studying the Divorce Act.

I first want to make some comments of a housekeeping nature.

For those in the audience, there are little pieces of equipment you can pick up that will amplify and also translate. You may want to obtain one at the door.

Secondly, this is a proceeding of the Parliament of Canada, and we ask that you not make comments. We can't allow applause or spontaneous comment in the room. If we have that, we will have to discontinue the meeting.

We have before us this afternoon, for this first half-hour session, Mrs. Byrnece Cortens and Dr. Tony Hall.

I assume you know that, unfortunately, due to the large number of witnesses, we have to limit your comments to five minutes.

Mrs. Cortens, if you wish to proceed, please do so.

Ms. Byrnece Cortens (Individual presentation): I'll do this as quickly as I can.

Honourable Senators and members of the special joint committee, I respectfully request that this submission be accepted as testimony as read.

I am the paternal and only living grandmother of Evan Cortens, Adrian Cortens, and Elizabeth Cortens. My husband, John, their paternal grandfather, and I were a constant presence in the lives of these children from their birth up until September 1996. At that time, due to a financial obligation brought to the mother's attention that in no way involved, or should involve, the children, we've been denied any access to them, either by phone or in person.

This determination was made by one Justice Carolyn Phillips on hearsay evidence, with no consideration or knowledge of any of the details. The result has been a complete severance of their relationship with us and with their many paternal uncles, aunts and cousins, some of whom they had formed very close relationships with.

In June 1993 their mother, with no warning, took the three children from their home without any consideration for their wishes. She went into a women's shelter under false pretences. For a full month our son Philip, their father, had no knowledge of their whereabouts and no opportunity to contact them.

In the five years since, we have watched our son be subjected to every imaginable indignity by his ex-wife, with the collaboration of the so-called justice system, to the extent that he is now under treatment for a nervous breakdown.

It is wrong that the custodial parent, usually the mother, is allowed to exaggerate and even lie in court and have her word accepted without evidence. Just because a woman hates her ex-husband it should not give her the right to destroy the lifelong relationships the children have had with their father or grandparents, who love and miss them very much.

In my opinion the best interests of these children have never been considered. In the five years since 1993, their mother and her common-law spouse have controlled, manipulated, and lied to them, with the result that they have been systematically alienated from their father and from us, perhaps forever.

This is absolutely wrong. I might add that all three of these children have been placed on the drug Ritalin without the knowledge or consent of their father. These children are not suffering from ADD. They are victims of PAS, parental alienation syndrome.

With respect to the ongoing battle in which our son is engaged to try to gain at least minimal access to his own children and to have his rights acknowledged, there are many studies stressing the importance of natural fathers and grandparents in the lives of children. Grandparents are an essential link between children and their past heritage, providing stability and security that's otherwise missing, along with unquestioning love.

I appeal to you that we be recognized as an essential factor in their lives, and I thank you for this opportunity to be heard.

I have a list of recommendations I would like to give you.

The Joint Chair (Mr. Roger Gallaway): Go ahead. Please read them.

Ms. Byrnece Cortens: We urgently need laws that take marriage seriously. Couples with children should not be allowed to break up a marriage based on the whim of one or even both persons. There should be mandatory counselling for up to three years, if necessary, before the parents can legally part. The mental and emotional stability of the children is at stake.

Procedures should be available to resolve contentious issues rather than making it necessary for the parents, and, yes, the grandparents, to bankrupt themselves financially and emotionally.

The Gestapo-like powers of maintenance enforcement are unconscionable, and must be abolished. It is unthinkable that they can incarcerate what is usually the non-custodial father for non-support when he absolutely does not have the money to make payments in full. Where is he supposed to get it? Is he supposed to get it in jail? What a legacy to place on the children.

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Existing financial commitments, like education, music lessons, entertainment and hobbies, clothing, food and accommodation, etc., of the non-custodial parent must be acknowledged and recognized as a contribution toward the support of these children. The law should not assume that a father's love for his children is any less than a mother's and that the children need to be with the mother any more than they need to be with the father.

There must be an end to the abusive legal practice of ex parte orders. Most of the orders imposed on our son have been decided without his presence and therefore without an opportunity to defend himself.

In our son's case, many decisions have been made between the judge and the lawyers over a conference call or even in the courthouse cafeteria. These orders have been at the expense of our grandchildren, not in their best interests.

Grandparents should legally be allowed to be an integral part of the children's lives when they are suffering the trauma of self-indulgent, divorcing parents. This should be part of the mandatory counselling process.

Thank you.

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

Dr. Hall, you have five minutes.

Dr. Tony Hall (Individual Presentation): I refer to a document that I sent the committee on February 11, 1998, to Catherine Piccinin. It describes an account that I'm going to focus on and speaks about native child and family services. The case involves Hall v. Navigon. It came up in Thunder Bay before Judge Maloney in late September.

Before getting into that, Senators and members of the House of Commons, I want to say how disappointed we were. The message was that you were coming to Lethbridge.

Bill Tulloch, who has worked on this issue at least half his life, was expecting you to come to Lethbridge until two days ago. We heard you were going to visit four cities and then two cities and now you're in one city for one day and you didn't even make it out of the airport. As well, I'm looking at a situation where the House of Commons folks are obvious by their non-presence here, dealing with the issue of careerism over principles, the hepatitis-C issue.

So I urge you to come back and give more time, because there are people out in the territories; you may have heard the presentations. Everything I've heard so far is an urban-based thing, but there are people out in the countryside.

I want to refer to the testimony I gave on Tuesday, December 10, 1996 before the Senate committee looking at Bill C-41. At that time we took about two hours with the senators who were there. It seems to me that this pushing us through like a meat factory, with five minutes to tell your story, put it in context, make recommendations—it is the same kind of travesty we see in the family law industry, where we're processed in a very fast way.

I'll do the best I can, now that I've taken perhaps a minute and a half and I haven't got to the issues, but you need to go far deeper into this. You need to get away from this flight through the big cities and get into the countryside.

I want to focus this issue on the rights of children, and the recommendation I want to centre this on is that the best interests of the child are not the appropriate focus. The appropriate focus must be on the rights of the child. If we start at that starting point, I assert and want to make very clear that in my view—and I think in the United Nations Convention on the Rights of the Child, which Alberta hasn't approved of—the basic human right of children is to the love and care and attentiveness of both their parents wherever possible. Of course, there will be some cases where it's not possible to have the love and care and attentiveness of both parents, but if we started at that beginning point we'd get a very different kind of approach.

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I want to assert my view that it is the right of the child not to have to live in poverty. This is an issue that I think is explosive. I hear the Liberal government say they care very much about child poverty and that child poverty statistics in this country are obscene and are going up. I know this issue and the abuse and mishandling around this issue is causing a great amount of child poverty that need not exist.

When I hear the high statistics on child poverty now...I pay $1,000 a month child support. I work at a university. I pay my child support. That $1,000 a month takes care of my ex-partner and my two children. That is not enough. So those children are living in poverty and it is a state-imposed kind of poverty. It is a political decision to allow that kind of poverty to exist. It need not exist.

I want to make it very clear that Anne McLellan, for instance, who I think has a lot of responsibility for not seeing better to her constituents in Alberta, should see to it that there is enough time for Albertans in places like Lethbridge or Red Deer or Burdett to get an opportunity to take part in these proceedings. When I hear Anne McLellan, for instance, express concern about child poverty, or the Liberals generally, I think there's a great amount of hypocrisy and a great amount of state-imposed forcing of children and denying their human rights into poverty.

The Joint Chair (Mr. Roger Gallaway): Dr. Hall, your time is up. Do you have recommendations to make?

Dr. Tony Hall: I haven't heard you cutting off people quite so abruptly in other instances.

The Joint Chair (Mr. Roger Gallaway): We're required to follow a schedule.

Mrs. Johnson, please proceed.

Dr. Tony Hall: I would like to say that you didn't get to the issue of native people and the native child service agencies that—

The Joint Chair (Mr. Roger Gallaway): Excuse me, Dr. Hall. Your time is up.

Dr. Tony Hall: I would just like to make it clear that you're thumbing your nose at that issue by shutting this off here.

The Joint Chair (Mr. Roger Gallaway): Is that a recommendation or is that a comment? Your time is up.

Mrs. Johnson. I'm sorry, have I got the wrong name? Mrs. Hunter, sorry.

Ms. Gwen Hunter (Individual Presentation): Actually, I'm not Mrs. Hunter any more.

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

Ms. Gwen Hunter: This is just a little different swing from exactly what Dr. Hall was speaking about.

Ladies and gentlemen of the Special Joint Committee on Child Custody and Access and guests, thank you for allowing me to appear and speak before the committee.

I have long been concerned about the problems that arise regarding custody and access following divorce and separation. I would like to speak firsthand about what I and 320,000 people in the province of Ontario in 1995 perceived to be a fraudulent misuse of domestic violence.

In July of 1995, two other women and myself initiated and circulated a petition demanding a public inquiry into the plea-bargain arrangement of a woman named Karla Homolka, who with her husband, Paul Bernardo, abducted and murdered two southern Ontario schoolgirls. It was the largest petition ever presented at Queen's Park in Toronto, Ontario. In just two months, 320,000 signatures were collected.

Karla Homolka's lawyer negotiated a plea with the crown. His defence was that she was an abused woman. In March of 1993, two years previously, Karla Homolka was admitted to Northwestern General Hospital in Toronto. On the recommendation of her lawyer, psychiatrist, Dr. Arndt, and psychologist, Dr. Long, she was tested and medicated during a seven-week stay.

Dr. Arndt's assessment, in part, read that her experiences at age 17 years could be to some degree compared to the experiences of concentration camp survivors who also experienced horrendous tragedies and had to go through and perform actions in order to preserve their own lives as well as the lives of others that under normal circumstances they never would have done.

• 1530

The question we have to ask is this: Whose life did she preserve? It was certainly not those of the victims, Leslie Mahaffy or Kristen French, or her own sister, Tammy Homolka. And what did Dr. Arndt classify as normal circumstances? She was living in her parents' house and appeared well and happy to friends and family when she and Paul drugged and used her sister as a sexual play object. Tammy choked to death on her own vomit the evening she was assaulted.

Karla Homolka helped to procure young girls for her husband's sexual perversion and subsequently assisted in the sexual assault and disposal of their bodies.

For her role in the deaths of Leslie Mahaffy and Kristen French, she received a 12-year sentence. Tammy's death was ruled accidental.

I believe the psychiatrist's report and her lawyer's use of it was a fraudulent misuse of domestic violence. Certain lawyers advance and perpetrate press information in judicial proceedings and rely on the protection of judicial privilege and on their own positions as officers of the court. Karla Homolka is eligible for parole today. I believe in this case, and in many others not as horrific but using similar legal tactics, there has been and will continue to be fraudulent misuse of domestic violence.

In some cases, the defence has allowed guilty, irresponsible, and at times, very dangerous people to gain freedom, and sadly, in divorce and separation cases, gain control and custody of innocent children. I hope as members of this committee you gather enough accurate information to put a stop to this fraudulent misuse of violence, so that children of divorce and separation may flourish in a healthy and safe environment.

Thank you.

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

Now we'll proceed to questions, with Mr. Forseth.

Mr. Paul Forseth: Thank you very much.

Before I ask the question, I want to make an editorial comment that the travel plans were made somewhat optimistically by the committee but were reduced by others, and it's not the fault of our committee that we have the schedule we have.

I also want to note that we have three members of Parliament at the table today and we have four present for the hearings today.

I want to ask the first presenter, you mentioned ex parte orders and the abuse of ex parte orders. Can you tell me how soon you were able to speak in a courtroom to counter those ex parte orders? From the time the ex parte order was made, how long did it take before you were actually in a courtroom to counter those ex parte orders? What was the timeframe?

Ms. Byrnece Cortens: In my son's case, he hasn't had the opportunity to respond, and in the fall—I don't know how to explain this in a short form—he had been allowed to visit the teachers at the school to get the children's reports.

I went with him. He, at that point, had been told he had no contact with the children. Unfortunately, it was at the end of the school day but two of the children had stayed a bit late.

I went with him, as I say. We saw the two children in the hallway. He got up and spoke to them—naturally, these are his children and he loves them. He just spoke gently to them.

Then we went to the school interview. I dropped my son off in the city and I went back to Carstairs, which is where he lives.

Shortly after, three big, burly policemen came to fetch him because he'd broken an order; he had spoken to his children. They wanted to take him to jail. That weekend they didn't contact him because I didn't know where he was in the city, but the next time we were in court, it was that close that they were going to throw him in jail for speaking to his children.

That was the only hearing we had in that particular case. Other than that, there has almost not been any...just his lawyer passes on the information.

• 1535

Mr. Paul Forseth: Okay, because generally when an ex parte order is made, a judge directs the registry to facilitate a counter-application to be placed on the list, and generally you can be on the list to have evidence contravening an ex parte order within a week or two weeks. But I suppose it depends on the energy of the respondent, being your son, as to what he was doing to counter an ex parte order, an order being made without hearing the other side.

It's my experience that generally judges are very concerned about making ex parte orders, and they take and hear evidence, often under oath, from the applicant. I just wanted to know how the system itself worked in your case. When ex parte orders were made, how long did it take for your son to get back into court to provide evidence, contrary evidence or whatever, on the ex parte order system?

Ms. Byrnece Cortens: This happened fairly quickly. We got into court over this incident because they wanted to put him in jail. As for his lawyer, he's on legal aid now. He exhausted all his funds in the first few years with lawyers.

But there was another case where a judge made an order that we never received in writing, and it was at a point where we had gone to the provincial court, my husband and I, to try to get access to our grandchildren. We gathered this could be done that way. We were advised to do this.

We went through all the procedures and did everything, and this same judge threw it out, because to follow the procedure, it was required that we send.... I'm not sure about all the legal expressions, but we were required to send a notice to the mother, the father, and the oldest son, who was 13 at the time. This judge said it was insensitive of us to issue this order to Evan, the grandson, so therefore she just forbade us to see them.

This was done.... We weren't there. We haven't received a piece of paper telling us that. Just our son's lawyer told us that we no longer have phone access, nothing. I don't know what to do. I'm a little bit befuddled, really.

Mr. Paul Forseth: That was at the provincial level?

Ms. Byrnece Cortens: Yes, that was, but I don't know where she comes into it, because I don't think she's a provincial judge.

Mr. Paul Forseth: Okay.

Ms. Byrnece Cortens: I don't know. I really don't know. I'm sorry.

Mr. Paul Forseth: I'm just trying to sort those things out, because we're trying to specifically look at potential amendments to the Divorce Act, and collateral to that is how divorce registries operate and how the social services around that piece of legislation operate. Of course the use of ex parte orders in British Columbia, interim orders by a master, and all of those are things we must look at.

Ms. Byrnece Cortens: The way I see this, these two lawyers and the judge meet or talk to each other on the telephone and make decisions about this, and then he gets the decision through his lawyer and that's the end of it.

Mr. Paul Forseth: Okay. Thank you.

The Joint Chair (Mr. Roger Gallaway): Senator Cools, five minutes.

Senator Anne Cools: Thank you very much, Mr. Chairman.

First of all, just let me apologize to the witnesses for not hearing most of their presentations. I was a little late in getting to this room, because I was trying to push a little bit of something to eat down my throat. We do it a lot here.

To the witness who was talking about battered women's syndrome, we've heard a lot here before this committee about domestic violence, and not what one would describe as common domestic violence, but what I would describe are severely pathological cases of domestic violence. Unfortunately no hard information is put before us, and it makes our job very difficult.

I wish I had heard what you had to say, because you're not alone in the concern you had about the use of battered women's syndrome, not just by defence but by prosecutors as well, in the Homolka-Bernardo case. As a person who has done a lot of work in the field of domestic violence, it has concerned me. I would say it has pained me. I've been pained by the use of falsehood, or fraudulent claims of abuse. It pains me very deeply, because these ghost riders basically sap valuable resources that should be going to, I think, genuine victims.

• 1540

I don't know if you've wrapped your mind around this, but I have two further questions. Battered women's syndrome is not a disease. It is not a mental health disorder. It is not a psychological condition. It has no therapies. It seems to have no existence outside of being a claims tool within certain kinds of criminal proceedings and being a mechanism of diminishing responsibility for some pretty heinous acts.

This is something that has concerned large numbers of mental health professionals, because it only emerges in these criminal proceedings. I didn't hear some of your testimony, but I did some work on this some time back. I don't know what you said, but I have very vivid memories of the psychiatric reports in that case describing Homolka as not dangerous. Three children were killed, but those psychiatric reports described her as not dangerous.

Let us bear in mind that those judgments were also written before the true heinousness of that individual's involvement was made clear to all.

You did a lot of work on this. During the Paul Bernardo trial there was an attempt for a lot of testimony to be brought forth on battered women's syndrome. If you remember, Mr. Justice LeSage was quite tough on some of it.

What colleagues should know is that last week Dr. Peter Jaffe was supposed to appear before us. He testified as a witness for the prosecution in the Bernardo case on battered women's syndrome.

To the extent that you seem to have done a lot of work on this, I wonder if you have any insights you could share with the committee about that set of testimony on battered women's syndrome in that particular trial.

Ms. Gwen Hunter: Actually, Anne, I don't. I mean, it's been three years since my involvement. Certainly what I can tell you is that Karla Homolka's favourite book in prison during the two years leading up to the trial of Paul Bernardo was The Battered Woman Syndrome, written by, I believe, Lenore Walker.

Senator Anne Cools: Thank you for that.

The particular book to which the witness has referred is called The Battered Woman Syndrome, written by Lenore Walker. If any member of the committee would choose to peruse that book, all I would note is that there's not a single scholarly reference for a single assertion that is made. There's not one single reference, not one single study. It's filled with statements like, “It is well known that”, or “We all know that”, or “It is known to be that”, and so on and so forth.

Perhaps our researchers could take a look at that particular text and bring us some information on it.

Thank you for the testimony.

The Joint Chair (Mr. Roger Gallaway): Sorry to limit questioning today, but we are running late.

Senator Anne Cools: You've missed the boat, Mr. Chairman. I finished before you.

The Joint Chair (Mr. Roger Gallaway): For the first time in several months.

Some hon. members: Oh, oh!

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

Senator Duncan Jessiman: Dr. Hall, for the record, maybe you could take a minute or two to outline the recommendations you were going to put on the record.

Dr. Tony Hall: The recommendations I have to make, of course, are connected to what happened to me.

I was called last September by Children's Aid when my children's mother was incarcerated in jail. This was her third charge for assault. The first assault was on me. The second assault—and these are convictions—was on my current wife.

At this stage, my ex-partner is in jail. I go down to Thunder Bay. I take the bus. Basically, I find that I can't have any real access to my children, although their mother is in jail. I run into something called the native child and family services agency and it informs me it cannot tell me what to do until it speaks with the family. It's talking to the father of these children, so I'm obviously put outside its frame of reference of family.

• 1545

I think this committee has a special responsibility to look into the whole issue of aboriginal people, who have a whole different constitutional relationship to the state of Canada, the dominion and the provinces, and are under federal authority. I think there needs to be some very major research done on those issues. I can see a situation emerging on the horizon where many native people, primarily men, who have been criminalized in various ways are going to face new forms of criminalization.

When I bring up the issue of child poverty, where is child poverty focused? It's often in reserves among first nations communities.

So I'd like to propose this committee deal with the issue of poverty and how these issues are connected to the issue of child poverty. I propose there needs to be special research into the area of aboriginal affairs.

I feel so much pressure to say something in 30 seconds because I know I'm going to be cut off at any second. If you could ask me another question or if we could bring it out.... I think you know my situation, Senator.

Senator Duncan Jessiman: Let me help you. Do you have any specific recommendations to change the Divorce Act itself?

Dr. Tony Hall: Yes. I think the Divorce Act must be premised on the rights of the child. We need to deal with the concepts of motherhood and fatherhood. When you go into this legislation and the precedents, the whole language of jurisprudence and statute is gender neutral. You can look at it and say it is gender neutral, but of course the outcome is not gender neutral at all. There is a very different treatment of mothers and fathers in this system.

I believe Judge Allard was very important in bringing out, in his reading of these issues, that they were all to do with reading them through the lens of gender—mothers and fathers. I think this committee will have to face the reality that there is such a thing as fatherhood and motherhood. I cannot be a mother; I can only be a father. The Charter of Rights and Freedoms speaks of the need for equality of treatment of the genders before the law, and this is a classic area where there is no equality before the law.

The issue of domestic violence has been framed in very gender-specific terms. I am a victim of domestic violence. The mother of my children went to jail for her third conviction for essentially decking my child's teacher and going into the hall in front of all his friends and simply punching down the phys ed teacher who said something. She was then incarcerated for that. This comes after many domestic assaults I finally reported. She was convicted. Then my wife reported it and my ex was convicted.

Domestic violence is a complex issue, and I can tell you on reserves it's very complex; it's not gender specific. We need to get beyond that. I can truly say that in my experience there is a tendency not to take domestic violence seriously. I think it pertains very much to the presentation on the Homolka situation that this whole issue has been so subjected to gender stereotypes. I think Judge Allard's testimony really rings to how deeply the view of the judge in the whole situation, who founded the system in the province here and passed judgment over many families, is rooted in gender. Yet you can't really get a handle on it because you look here and there and it's all in gender-neutral language.

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

Senator DeWare, we have to try to keep on schedule.

Senator Mabel DeWare: I realize we're overtime.

The Joint Chair (Mr. Roger Gallaway): Good. Go ahead.

• 1550

Senator Mabel DeWare: Dr. Hall came before our committee on Bill C-41, and I think we have a 26-page witness résumé of it.

He talked about a couple of things that I think we're going to address, and we maybe don't need a response, but I would just quickly say that he didn't agree with the language and hoped we would change it, mainly custody and access, and so on. It looks as if we as a committee all agree that something has to be done in that area.

Another area was the exploiting of the divorce and how it was handled. You were very concerned about that. You have probably heard over the last month or so and in discussions here today about a parenting plan. I would hope that you would agree that a parenting plan, if the committee agrees to put it in, if we find in our wisdom that we have to do something about it, would help in the kinds of problems you spoke to us about in Bill C-41.

Dr. Tony Hall: In a 30-second response, the word “custody” has to do with jail. We use this language for people we incarcerate.

What is a “non-custodial parent”? Where do you take a course in being a non-custodial parent?

The labels we use, the things we call things, are very important. We have to explain to our children what we are and what the courts say we are, so the language is vital. And what about the concept of mothers and fathers in the legislation as well?

Senator Mabel DeWare: Thank you.

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

Thank you all for coming, for expressing your points of view and your frustrations. We're quite used to that, and we appreciate your comments. With that, we will ask you to leave the table, and we will ask that the next group come forward.

I believe Kathy Thunderchild is here, and Dr. Kneier.

By way of introduction, I should say that Dr. Kneier is a clinical psychologist, and Ms. Thunderchild—I know I've corresponded with you recently, and I'm trying to remember, but you are pursuing a Ph.D.?

Ms. Kathy Thunderchild (Individual Presentation): That's right. I'm a clinical social worker doing a Ph.D. in social policy.

The Joint Chair (Mr. Roger Gallaway): Welcome to our committee. We'll ask Ms. Thunderchild to begin. You've seen how we work. It has to be brief.

Ms. Kathy Thunderchild: Yes.

I am grateful, Mr. Chairman and members of the committee, to have the opportunity to speak briefly to you about some research with young adult children of divorce, which I've recently completed in conjunction with a Ph.D. through the University of Newcastle in England. I had a sample of 20 students here in Calgary and 20 students in Newcastle, in the United Kingdom, as well.

I'll just speak briefly about the outline of the study and then the findings of it and some recommendations.

To give you a little bit of information about the study, it involved two phases. One was qualitative, involving a retrospective survey about young adults' experiences of parental separation and divorce. The second component was intensive personal interviews to speak to the people about their experiences, and I was very gratified to have a sample that was very willing to speak.

The findings of it were that the focus, from a theoretical perspective, was looking at the family process before, during, and after, and particularly looking at parental conflict in the family, and also how the family system interacted. So it's a systems theory, looking at interactions, and finally, attachment theory, to look at the nature of the individual relationships between particularly the parents and the children.

The findings were not surprising and confirmed some of the research hypotheses that had been presented in children with younger parents, in particular. Although with my sample we were experiencing parents in mid-life coming apart, the parental separation was not a surprise; it often required difficult adjustments. Because the marriage relationship was a fairly long process, an average of 22 years, the history often involved very open conflict, and conflict that created stress for the children in the family.

• 1555

Although they were surprised and sometimes relieved, the process of adjustment was still very challenging, and that is contradictory to popular wisdom, which assumes that young adult children are in their own stage of life and are quite capable of moving forward without a great deal of parental support.

In a nutshell, what I found was once a child, always a child. There is a need for parental support throughout the life cycle.

The process of adjustment was surprisingly not as impacted by conflict between the parents as it was impacted by the nature of the particular relationship with each child and their parents. To elaborate and make it a little clearer, those who cope best had a relationship with a parent that was secure, either a mother or a father. The secure relationship looked like concern, being available and that relationship having some security in terms of the parent's responsiveness to that child. Where children—I'm calling them children but really they are young adults, age 18 to 23—had particular difficulty in adjusting was in situations where the relationship with the parents were not secure. In particular, two of my 40 samples were suicidal. These two young adults had no parent who was available to them, to reassure them and to be there, not through any conscious part on the parenting but more a reaction to the nature of the assistance reaction of the family. In other words, one parent may have been so distressed by the conflict in the marriage that they turned to the child to support them through the process.

In summary, the major findings were that those who had some sort of secure attachment within the family did best, those who had none did worse, and those where there was inconsistent availability had quite a challenge. Their reactions included quite significant psychological distress measured in depression and anxiety and significant concerns for their own future in terms of their own adult romantic relationships. An interesting finding emerged of their being driven to find their own security through financial well-being in their own careers.

My recommendations have to do with the concept of family. In particular, I think any revisions to the Divorce Act need to recognize that families continue post-divorce. The need for parenting and the need for family interaction, nurturance, support, and love continue beyond divorce, particularly for children. In that respect, I would specifically recommend some policy recommendations, including that we find within our nation the political will to provide the support that families need, not just for children but for the adults responsible for providing care to their family members, in particular their children.

I recommend that we set up these support systems long before families get into conflict. In other words, I would specifically recommend that before a child develops a relationship with the parent at birth, family life education be supported; that the importance of attachment, nurturing and bonding be identified and supported. I feel the public health system could be used to begin this process. It could be further supported through the educational curriculum with family life education.

Also, I would suggest that there be affordable supports available in the community for counselling for parents to adjust their own attachment needs to their ex-partner, who continues often in negative relationships, as I'm sure this committee has heard over and over again, which impact the children. I would also suggest that they be supported to look at parenting as continuing post-divorce in a collaborative manner.

I know this is very idealistic and comes from the perspective of a researcher, but it comes from a human heart as well.

• 1600

I know that when you can recognize that your child does best through a collaborative, co-parenting relationship with their parents, and that the outcomes speak very loudly, from my research, that this is the most ideal situation for children, it will help the parent stay healthy and continue to have a sense of pride and well-being around parenting.

I will close very briefly with a quote from The Prophet:

You are the bows





—and this is speaking of parents—



from which your children as living arrows
are sent forth.
The archer sees the mark upon the path
of the infinite, and He bends you with His might that
His arrows may go swift and far.
Let your bending in
the archer's hand be for gladness;
For even as He
loves the arrow that flies, so He loves also the bow
that is stable.




I think any divorce legislation reform ought to address how we can stabilize the entire family.

Thank you.

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

Dr. Kneier.

Dr. Gary J. Kneier (Individual Presentation): What can I say? She stole my thunder.

I am here simply to give you my overview perspective on families and divorce from my experience in working with them for 20-some years.

It seems to me we want to achieve three things for children post-divorce. One, we want to achieve an adequate relationship with both parents. Two, we want to furnish them with a home base and a stable, consistent platform for their own lives. Three, we want to furnish them with peace.

It seems to me that if we fail in any one of these three areas, we will damage the children, but of the three, it seems to me that lack of peace—that is, ongoing conflict in the family between the parents over the children—is the worst outcome for their development. It also seems to me that peace is difficult to achieve in divorce, for two reasons.

First, the provision of an adequate relationship with both parents and the provision of a stable home are in tension. They compete with each other. Therefore, compromise and creative thinking is necessary. That certainly taxes divorcing parents.

The other reason that peace is hard to achieve is that divorce is a very difficult human process. We're probably at our worst when we're divorcing. The power struggles and personal conflicts tend to go on after a divorce in some families, and the focus of the conflict becomes the children.

In general, an approach to family problems that relies on parental rights and on an adversarial legal system will not and can not solve family conflicts after divorce. It seems to me that what we need is attention to two alternative processes. The first would be more definition of parental responsibilities in having children. I'm not aware of anywhere in the legislation or elsewhere that we talk much in our system of parental responsibilities.

In essence, this would somehow be communicating in the legislation and in our system that there are certain responsibilities and certain expectations if you become a parent. It's well known that there's an expectation and responsibility to support our children, but there might be other ones that would be delineated, such as responsibility to stay in the same locale, perhaps, after a divorce, so that both parents could have a relationship with the children.

If parents knew that certain options were limited after they had children, and if their family was going to divorce, maybe it would help get the expectations in sync with what we really want to provide for children if a divorce happens.

The second process that might help would be more of a reliance on mediation and education and other helpful and therapeutic processes for families in divorce.

You know, we have a whole system in place in our society for getting married. There's a whole culture and a number of institutions that help us to say hello, and the hello is blessed. There are no rituals, there are no institutions, there are no processes that are part of our culture to help us say good-bye. Good-bye is probably more difficult than hello. So if in the legislation there could be some kind of provision or mandate for treatment, for education, for mediation—I think we have a pilot program like that going on in Alberta—that would be very helpful.

• 1605

That's all I have to say.

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

Questions?

Madame.

Ms. Madeleine Dalphond-Guiral: I will try to speak in English. Even if my English is not good, maybe you can tell me, and I will try to say it in another way.

Senator Anne Cools: Every time people from Alberta go to Quebec, they try to speak French.

Some hon. members: Oh, oh!

Ms. Madeleine Dalphond-Guiral: Okay. I would like to speak to Kathy.

I was interested by your research, and I would like to know something. You told us that the kids who got through a divorce correctly are those who had the chance to develop a very secure and stable relationship with their parents. I would like to know if you are able to point out some characteristics of those parents. For example, are the mothers most of the time very independent women? Or, on the other side, are the parents most of the time close to their children in sport or art; I don't know? Or are they fathers that the kids can be proud of? Maybe if we are able to determine the qualities, we can try to help the young to develop those qualities.

Ms. Kathy Thunderchild: Yes.

Ms. Madeleine Dalphond-Guiral: Was it clear?

Ms. Kathy Thunderchild: Yes, very.

Ms. Madeleine Dalphond-Guiral: Okay, very good.

Ms. Kathy Thunderchild: A good thing, too, because I don't speak French, unfortunately.

To answer your question, the qualities of the parents that are reflected in a secure attachment have to do not so much with visual qualities or demographic qualities but more with emotional responsiveness. Basically that can be measured in time, availability, communication, and general responsiveness—and that is a perceived responsiveness that's mutual, that's reciprocal, between parent and child.

Ms. Madeleine Dalphond-Guiral: Okay. It's a kind of empathy.

Ms. Kathy Thunderchild: Empathy is certainly a good component of it.

Ms. Madeleine Dalphond-Guiral: Okay.

The Joint Chair (Senator Landon Pearson): Other questions?

Senator Cools.

Senator Anne Cools: I have a couple of questions.

I'd like to thank Mrs. Thunderchild for what I thought were some very insightful statements, because once a man and a woman have shared a marriage and have brought forth children, they remain those children's parents indefinitely, forever.

Ms. Kathy Thunderchild: Forever.

Senator Anne Cools: That fact seems to be grossly overlooked, and I thank you for restating that for us, because that is the crux of many of the problems.

But as a mental health professional, I have a couple of questions for you, and I've put some of these questions to other mental health professionals. One becomes very aware that the plethora of court assessments and psychological assessments from mental health professionals in these cases is stunning. As I've read the cases and the case law, I've become very aware that frequently in the cross-examination and in the testimony, it is not the parenting ability of the two parents that is taking precedence.

• 1610

At times, it seems to be the credibility of the mental health professionals and their particular assessment. I have begun to try to field these questions to the mental health professionals about their views on the use of these assessments. There are many mental health professionals, quite frankly, who do nothing else but give expert testimony in these court cases.

So there's quite an industry and it's quite lucrative, I'm told, for those who are extremely successful at it; for those who are not, that's a different kettle of fish. Persons such as myself have a lot of concerns about the dominance of these assessments within divorce proceedings and child custody disputes.

I wonder if any of you or both of you can speak to the issues I have just raised in terms of how a judge can properly determine the credibility and skills of those mental health professions who are making those assessments.

I have here before me something that I've been reading right now. It's a particular case indexed as K.M.W. v. D.D.W. in the Ontario Court of Justice. The judge here is citing another judge, Mr. Justice Granger, and his concerns that were expressed about the credibility of the particular doctor in question, Dr. Albin. Where the judges themselves were expressing reservations about the quality of the mental health professionals' assessments and their role in it, do you have any opinions on it? I've been trying to put this question to the mental health professionals as they come before us.

Ms. Kathy Thunderchild: May I go first?

Dr. Gary Kneier: Sure.

Ms. Kathy Thunderchild: Like research, expertise ought to be grounded in theory. I think one of the essential questions for a person on the bench who is attempting to evaluate the skills and credibility of an expert witness would be to question that individual about their belief system and values.

Senator Anne Cools: Their belief system. Is that what you said?

Ms. Kathy Thunderchild: Yes, their belief system, their values, and what theories they subscribe to around health, wellness, and family functioning.

It's a very difficult issue. While not to minimize the importance of your question, I think your question ought to be placed also in context of this being a minority family.

Senator Anne Cools: Absolutely.

Ms. Kathy Thunderchild: So in looking at the whole range of family needs, one ought to look at promoting a different process for resolutions.

Senator Anne Cools: You are right. I appreciate what you're saying. One of the issues I've raised repeatedly—I have a bill in the Senate on it—is the issue of false allegations of sexual abuse against children. I'm sure you all appreciate the fact that for any parent to be accused of something that is so repugnant to them must be soul-destroying. So often in these cases, each side of the dispute and the judges themselves are relying on the “professional expertise” of the psychiatrist or the psychologist—let's say the mental health professional—as to what their opinion is as to whether or not a real sex abuse has occurred.

It's a very difficult problem. The answer is not easy. I wouldn't like quite frankly to have to make those sorts of assessments. When a mental health professional, as in the case I was just citing here, basically suggests or asserts that a parent has been involved in such horrible activity—let's be quite frank, it's shocking activity—it's an enormous burden.

What can we do as members of Parliament in this kind of situation?

I can give you another sort of a case.

The Joint Chair (Senator Landon Pearson): Could you ask them to answer the question, because you're well beyond your five minutes?

• 1615

Senator Anne Cools: This has destroyed many mental health professionals in their time. I know many individuals who were destroyed by the recommendations they made, as the truth became known in the future. I wonder if you could respond to that.

Ms. Kathy Thunderchild: Very briefly, I'd like to put the solution in a larger context, take it beyond the person on the bench and comment that a political will, which I mentioned earlier, to provide services to these sorts of social problems would assist. In Australia, there's an institute for family studies that has tabulated and correlated research about needs. This is a form of reference and resource for people on the bench, as well as the legal community and the mental health community.

Britain—and I believe you'll be speaking to Janet Walker from Britain by satellite—has just recently completed a compilation of all the research on children and divorce and families and divorce in Britain, as a form of educating the professionals who are attempting to support the families.

I think our focus ought to be more global in terms of how we might look at a full range of policies to prevent these issues from arising.

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

Dr. Gary Kneier: The panel should be aware that you have here two Ph.D. psychologists. One is a researcher and the other works in the trenches. I do custody evaluations and have done them for 25 years. I was promoting mediation in this town in 1978, and it has since become a big movement. I take no credit for that, only that I've been in the field longer than the field has existed. My practice is by no means solely in the custody access area. I have a large clinical practice and I have a specialization area of divorce.

The question that's been asked is really a twofold one. The role of the psychologist in assessing sexual abuse allegations is really a different kettle of fish from the role of the psychologist in doing a custody access evaluation. I like to treat them separately.

With regard to sexual abuse allegations, there is a lot of research and it's ongoing. We know a lot about children's allegations, how they arise and what they look like. We know a lot about the ways to analyse various allegations and the emergence of allegations, and there are experts in that field.

The way the judiciary can be sure of competence is to retain these experts. There are a number of them who are well published and there really is a science of looking at this, and along with the science there are reliability and validity figures that will tell you how good a guess this is, which is really what the judge has to know. The psychologist is only there to provide information to the judiciary, and hopefully that information will come with some attachment, not just of opinion, but of some reliable validity and reliability data.

With regard to custody and access, I think we really need to go back to the beginning. In the beginning, the reason psychologists were called into court to make recommendations about custody and access was because the judges felt there was information they needed but couldn't get through the courtroom process. That role for mental health professionals is still very valid. In most of the work I do in the custody access field, I feel I am offering the court really important information on which to base very important decisions.

The problem comes when the judiciary, as is human nature, really wishes to pass the buck, and begins to bestow on the psychologist and the mental health community more and more power. There are all too many psychologists or mental health professionals in general who unwittingly, in good faith, take on this power when they really shouldn't.

My own personal approach has been, for 20 some years now, to absolutely try to limit and define the piece of the pie I am dealing with. Very often the legal system wishes I would take on more. I don't think it's legitimate; I am not the judge.

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I do, though, feel that the mental health professional has very important information. We can talk to the kids. We can assess relationships. We can give a lot of evidence that the judge would not otherwise have.

The problem is that it goes on from there, and the next thing you know, the psychologist is out interviewing what we call in the profession “collaterals”. This is the examination of witnesses, and I don't feel that I am very expert in the examination of witnesses, nor do I feel it's a very legitimate process for me to be doing that. Sometimes I do need to talk to sources and get some information. But really, the courts are very adept at the examination and cross-examination of the witnesses. I think that as long as the judiciary knows the particular spot that the psychologist has, it can be a very useful tool.

Senator Anne Cools: I understand what you're saying is that basically the system should leave the mental health professionals to their business. I think you have a point there, because Mr. Justice Granger stated that Dr. Albin's point of view that the subject was preparing his two-year-old daughter as a future sex partner must surely be regarded as absurd. Such a hypothesis was grounded on no factual basis whatsoever.

I think, as I've said before, Chairman, that at some point we really have to look at the role of the mental health professionals in the field, the business of making these assessments, and the potential role that may be being imposed on them.

Dr. Gary Kneier: Right.

Senator Anne Cools: I just saw the opportunity and just wanted to do that. Thank you, Chairman.

The Joint Chair (Senator Landon Pearson): Are there any other questions?

Thank you very much. It was very helpful.

The Joint Chair (Mr. Roger Gallaway): I want to talk briefly to the committee members. We have a photographer here who wants to take pictures, and before he does so, I want the agreement of the committee that he be allowed to do so.

Senator Anne Cools: Agreed. Who is the photographer with?

The Joint Chair (Mr. Roger Gallaway): I'm not even sure.

What publication are you with?

A voice: Alberta Report magazine.

Senator Anne Cools: Oh, fine.

Voices: Oh, oh!

The Joint Chair (Mr. Roger Gallaway): Go ahead and take your pictures.

Senator Anne Cools: Just as long as it's a legitimate photographer.

The Joint Chair (Mr. Roger Gallaway): Senator, is there a list of publications...?

Senator Anne Cools: I don't want anybody who wants to find us in an alley.

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

We'll ask our next group of witnesses to come forward, please. We have Hermina Dykxhoorn, and Julie Black and Laurie Anderson, please. As you know, we only have half an hour and we're pressed for time.

Ms. Black and Ms. Anderson, which one of you will be speaking?

Ms. Julie Black (Coordinator, Calgary Status of Women Action Committee): We'll split it, two and a half minutes each.

The Joint Chair (Mr. Roger Gallaway): Good. We will start with the Alberta Federation of Women United for Families. Ms. Dykxhoorn, please proceed.

Ms. Hermina Dykxhoorn (Executive Director, Alberta Federation of Women United for Families): Thank you very much, and good afternoon.

The Alberta Federation of Women United for Families is a grassroots, direct membership, non-sectarian Alberta women's group. We support and call for legislation that supports the family as the basic unit of society.

In 1951, one couple divorced for every 24 couples that married. By 1987, as marriages dipped and divorces peaked, this ratio reached a low of one couple divorcing for every two couples marrying. Since 1987, the gap has widened slightly each year, and in 1990 one couple divorced for every 2.4 that married. By 1991 as well, more than 11% of all couples were living common-law, a state known to be far less permanent than traditional marriage.

The omnibus bill of 1969 liberalizing divorce law ushered in a sharp rise in Canada's divorce rate. The 1985 legislation making divorce even easier to get resulted in another upward trend.

For healthy development, children need and deserve both a mother and a father actively involved and present in their lives. If we have learned anything from the last 30 years of rising divorce rates, it has been that the resultant increase in broken families has been a disaster for Canadian children.

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Statistics Canada, in its 1996 study of 23,000 Canadian children who were followed every two years from infancy to age 11, found that 41% of children who had been raised in a single-parent family had at least one developmental problem, compared to 26% of all families. Children of single parents were one and a half to two times more likely to face serious problems and require professional assistance, compared with children from two-parent families.

Boys, in particular, living with a separated, divorced or never married parent in 1986 were more likely by 1992 to be diagnosed with somatic complaints, identified as delinquent, aggressive, anxious, depressed or withdrawn. Similarly, compared to peers in intact families, girls in single-parent homes in 1986 were more likely to suffer from attention problems in 1992 or to be labelled aggressive. Adult female children of divorce also experience a lack of self-esteem, which according to the studies that have been done may be accounted for in terms of divorce's impact upon parental access. In particular, female lack of self-esteem has in some cases been traced to lack of parental access.

I could go on and on regarding poor academic performance, higher school drop-out rates, earlier sexual involvement and increased emotional and behavioural problems in children of divorce. From all the studies, it is clear that divorce has a tremendously negative impact on children.

Greater minds than I—and two of them were sitting here before you just before I came on—have given you some recommendations, and these were eloquently stated earlier.

The first recommendation we want to make is that mandatory counselling must be implemented whenever divorce action has been initiated, right at the beginning.

For example, Alberta's family mediation program was instituted on September 1, 1997, and I'm sure you've had others who have told you about this program, but I'll just carry on. Parents are encouraged to negotiate pro-parenting arrangements. Both parents must attend the session and the program focuses on the effect of separation on children, alerting parents to children's hopes and fears. While in this short amount of time no conclusions have been reached on the efficacy of this program, there appears to be less hostility between the parties and there seems to be more willingness to look at mediation rather than confrontation. Further study for preliminary conclusions is being done, apparently, and it is safe to say, however, that the current acrimonious adversarial system is not good for the long-term well-being of either the adults or the children involved.

The second thing we recommend is that it's obvious children need both a mother and a father present and actively involved in their lives. Shared parenting or joint custody should be the norm, not the exception. As I was preparing this I had to read stacks of studies that have come over my desk since about 1994. I was overwhelmed by what we are putting our children through.

In conclusion, in light of the incontrovertible and overwhelming evidence of the negative effects of divorce on children, we would do well as a community for their sake to encourage a culture of marital stability rather than a culture of divorce.

In a 1997 study entitled Parental Separation: Effects on Children and Implications for Services, researchers found that none of the children in these studies welcomed their parents' divorce; rather, “all the children expressed the wish that their parents were reunited”. Most of the children were fond of both parents, however much marital conflict they had witnessed. The researchers discovered that some of the children in their study were “confused about which parent they loved the most, a terrible confusion for children, and wished that their parents would stop saying unkind things about each other”. Because of these devastating social consequences, in the United States, where the divorce rate is even higher than in Canada, approximately 20 states are in the process of tightening or have tightened their divorce laws—moving away from no-fault divorce.

It is not easy for us adults to admit, but divorce often has more to do with our own self-fulfilment than with the best interests of our children. Custody and access problems are only the symptoms; divorce is the problem. Unless we adults become willing once again to sacrifice our own personal pleasure and even happiness for the sake of our children, and unless we as a community once again reward marriage and make divorce harder to get, we will only be tinkering with symptoms and will not be dealing with the underlying problem.

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Thank you very much.

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

Now we have Ms. Black or Ms. Anderson, whoever wishes to go first.

Ms. Julie Black: Good afternoon. We're pleased to have been asked to speak with you today. My name is Julie Black, and I'll do the first few minutes of our presentation; my colleague Laurie Anderson will do the last few minutes.

You will appreciate better than anyone at this table that divorce, child custody, and access are exceptionally controversial and emotional subjects. So we thought we'd start up our presentation by just saying a little bit about ourselves and our viewpoints so there's less chance of misunderstanding.

The Calgary Status of Women Action Committee is a non-profit organization that has been educating for women's rights since 1974. We're a proudly feminist and anti-racist group. As you're well aware, this does not mean that we're in any way anti-father, anti-male, anti-mother, or anti-family. Rather, feminists are some of the strongest advocates for a redefinition of restrictive family roles so that men can experience the joys, trials, and responsibilities of parenthood. Indeed, the men who are on our membership list are there because they support our stand.

Second, to provide some background for our presentation, we will rely on only two sources of information: the experiences of women who have contacted our organization for information, and also Statistics Canada findings that help explain in a larger context what we have seen for ourselves. We thought that you have no doubt been bombarded with statistics and studies already and you'll be well aware that all of them need to be examined for biases or research design flaws that skew the evidence, so we thought we would stick with simply those two.

For us, rather than seeing divorce legislation as the major cause of family breakdowns, we attribute much of the problem to family violence. We have two points to make about divorce and family violence. The first is that there's little research to pinpoint how many divorces can be attributed to family violence. Statistics Canada could be a big help in that regard by conducting reputable studies on the issue.

Second, when we refer to family violence we will use “she” for the adult victim survivor and “he” for the perpetrator, because while we are certainly concerned for all victims of abuse, Statistics Canada's figures note that 90% of spousal assaults involve the wives as victims. In the case of child abuse, Statistics Canada says that 80% of the perpetrators are fathers.

So now that we've set out some of the background for our presentation, we'll get to our substantive points. You should have a copy of that submission. We faxed it to the office in Ottawa for translation last week.

Our experience is in working with women who are fleeing abusive male partners. We have seen how custody and access arrangements can allow for the continuation of abuse even when the relationship has ended. It's our contention that any changes to divorce, custody, and access legislation and policy must take into account the needs of women and children who have experienced abuse. These women and children are among the most vulnerable members of our population and their particular needs must be respected.

Should you be tempted to dismiss domestic violence as a fringe concern, we'd like to remind you that violence in intimate relationships is a widespread social problem in Canada. According to another Statistics Canada survey, the national survey of 1994, three in ten women currently or previously married in Canada have experienced at least one incidence of physical or sexual violence at the hands of a marital partner.

The women and children who suffer abuse are our neighbours, families, and friends, and when you speak of creating a child-centred system, surely the children of violence are the very children who most need to be considered.

Despite the emotive pleas you've no doubt heard, we don't believe that all family break-ups are tragedies. Many of the families who experience family break-ups do so because the women have left to escape the unremitting abuse of themselves and their children. In these cases, family break-up is the best thing possible in horrendous circumstances and forced family contact just might not be the best thing.

Currently, the courts insist that a man who abuses his female partner poses no inherent threat to the children. In our experience, when there is abuse in that relationship, the children see it, experience it, or feel its effects. Again, according to the national survey of Statistics Canada, children witness violence against their mothers in 39% of marriages that have violence in them. In many cases, children witness very serious forms of violence.

Ms. Laurie Anderson (Board Member, Calgary Status of Women Action Committee): Women who have left an abusive partner typically hope that the children can stay in healthy contact with him. Women only want the abuse to stop. In our experience, women work hard to facilitate a relationship between children and their fathers, even at the expense of their own safety. We have seen no widespread problem of women unjustly denying men access to their children. In our experience, the major problem with access is when an abusive partner uses the opportunity to continue to harass, frighten, verbally abuse and/or physically harm his ex-spouse and/or the children.

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Women understand there are already serious penalties for denying access, including losing custody because of the friendly parent rule, and do so only as a last resort. Women who have turned to us for information have denied access for the following reasons: a father shows up drunk or on drugs, expecting to pick up the children for his scheduled visit; a father shows up hours late, when the children are sleeping; a father shows up unexpectedly in an attempt to control the custodial parent's life; a father uses the access visit as an opportunity to assault, harass or frighten the women and/or the children; a father threatens to hurt or kidnap the children while they are in his—

The Joint Chair (Mr. Roger Gallaway): Excuse me, are you almost finished? You are over time.

Ms. Laurie Anderson: Yes, I am, if I could just conclude.

The Joint Chair (Mr. Roger Gallaway): Very quickly, please.

Ms. Laurie Anderson: The children are deeply afraid of their father and do not want to go with him; the father does not take seriously her concern that the children will be endangered by his friends and relatives.

Given the statistics on the incidence of family violence, we ought only to be surprised at how rarely abused women deny access. We need a system that empowers custodial parents to deny access when it is dangerous to the children.

Currently, the legal system is designed to protect the access rights of non-custodial parents. We need to balance those rights with the right of the children to be able to rely on the custodial parent to use discretion for their safety. There can be opportunities for that judgment to be questioned, perhaps through a more accessible court system that really looks at what is happening for that family. In the case where—

The Joint Chair (Mr. Roger Gallaway): You are way over time, so I am going to have to ask you to stop there. I know there are a lot of questions, so I am going to start with Senator Cools.

Senator Anne Cools: You are with the Status of Women Action Committee. I take it that you counsel women directly, or are you front-line workers?

Ms. Julie Black: We do public education, so we receive numerous phone calls from women in all sorts of difficulty. One of the main ones we receive phone calls about is around custody.

Senator Anne Cools: Are you paid to do this?

Ms. Julie Black: Not at the moment.

Senator Anne Cools: This is a voluntary group. You are not paid lobbyists.

Ms. Julie Black: That is correct.

Senator Anne Cools: Good. In Alberta, do you have any idea as to how many women are “battered women”?

Ms. Julie Black: We actually presented the statistics we are confident with. We didn't want to get into—

Senator Anne Cools: I know, but you must—

Ms. Julie Black: I am sure your research team will do a better job than we will at finding out those answers for you.

Senator Anne Cools: Our research people can do nothing about your client body. You are the holders of the information on the people you serve.

Ms. Julie Black: Yes, but we are not providing statistics on the number of women we serve today. What we wanted to talk about was their experiences, which is what we have done.

Senator Anne Cools: But you cannot tell us how many you have served?

Ms. Julie Black: That is correct.

Senator Duncan Jessiman: It is surely more than one, is it not?

Ms. Julie Black: It is more than one.

Senator Duncan Jessiman: You're saying that, but how can we have any idea—

The Joint Chair (Mr. Roger Gallaway): I'm sorry, Senator, but Senator Cools has been recognized. You will get your turn.

Senator Anne Cools: I'm just trying to find out how many battered women you serve or you counsel, and of those battered women you serve and counsel, I want to find out how many go for divorces.

Ms. Julie Black: I am sorry, I cannot provide that information for you. We don't track it like that.

Senator Anne Cools: Okay. In Alberta, how many women in the past year were killed by spouses?

Ms. Laurie Anderson: I don't have that statistic, but we could certainly get it for you. We would have to check the whole province for you.

Senator Anne Cools: I didn't think you would have to check the whole province. I would think that if this particular issue forms a central plank in your submission before us, you would have that number handy.

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Ms. Laurie Anderson: We can certainly get that from the shelters for you, or from the newspapers. So we can reach that. That tends not to be....

We're often providing information to women or trying to prevent women being killed, so generally, after they've been killed, those statistics aren't as particularly of concern to us. Our major focus is on serving women while they're contacting us and reaching us. But I can certainly get that information for you, Senator Cools.

Senator Anne Cools: One of the problems I've been trying to get a handle on is how many battered women are actually involved in divorce proceedings.

Ms. Laurie Anderson: That's definitely difficult to quantify. We can do our best and try to get some of that material for you.

Senator Anne Cools: No, I understand that you cannot quantify all the people of the country or of the province. I'm just asking about the ones you serve.

Ms. Laurie Anderson: In our experience?

Senator Anne Cools: Yes.

Ms. Laurie Anderson: Just from the women I've personally spoken to, I could say it's at least half of the women, because the only reason they're contacting us.... If they're contacting us for general information, that's one thing, but the particular numbers we're talking about with abuse issues would be at least half of the people we've talked to at all who contact us for any reason.

Senator Anne Cools: When you say they contact you, what does that mean?

Ms. Laurie Anderson: That they've used the telephone; that they've contacted us by phone. We also have an annual general meeting that a large number of women attend. We generally try to be at as many public events as we can so that we're accessible and available if people need information. Just this week someone dropped by my home and brought their children into the home to talk about a situation, so that's—

Senator Anne Cools: And you actually counsel people on a one-to-one basis? This is what I think people need.

Ms. Laurie Anderson: We provide them with information as to the services that are available, where the shelters are, where they can get legal assistance, and where they can just get information that will provide them with more choices.

Senator Anne Cools: I'll wait for the second round.

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

Senator Duncan Jessiman: One of you said something that was somewhat contrary to the other evidence. You've talked about the friendly parent rule. Do you have some evidence to indicate that custodial parents, knowing that exists, do give access? What we've heard is exactly the opposite.

Ms. Laurie Anderson: I know, and to be honest with you, Senator, we've had great difficulty in trying to track down where this whole access and custody thing is coming from, because in our experience, women are.... Even in situations....

I've sat in front of a woman whose face was black and blue, and she was absolutely adamant that she wanted to try to find a way, either through family or friends or neighbours, to facilitate a continued relationship of those children with that father. That's been consistently our experience. Even in cases where I personally was concerned for the safety of the woman, the custodial parents are very anxious to try to ensure there's access to the father.

Senator Duncan Jessiman: Are there any cases that you know of where, after someone has not complied with this—they have refused access for whatever reason—the judge has said, “Now look, here's subsection (10); you must do it”? We had a case before us—and Senator Cools has mentioned it a number of times—where a woman denied access 22 times.

Senator Anne Cools: No, 41.

Ms. Laurie Anderson: It wouldn't surprise me that there would be a case here and there. That wouldn't surprise me.

Senator Duncan Jessiman: Show me some, though, where the judges have exercised their discretion under this section and said, “Look, you haven't complied with subsection (10) of section 16 of the Divorce Act, and I'm going to do something about it”. Show us a case.

Ms. Laurie Anderson: The problem is that the women we talk to are absolutely terrified of losing custody of their children. Continually, they're so afraid that they never get to a point where they will deny access, or, as I say, they'll make some other arrangements or they'll get a parent involved, or they'll—

Senator Duncan Jessiman: So what you're telling us is that the people you serve—

Ms. Laurie Anderson: They give access.

Senator Duncan Jessiman: And there are no cases as far as you know—

Ms. Laurie Anderson: I cannot provide you with one case. We tried—

Senator Duncan Jessiman: A difficulty we have is that your co-partner with you doesn't tell us how many people you serve, so how do we know how many people—

Ms. Julie Black: Part of the problem of being a volunteer organization is we just don't have the capacity to—

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Senator Duncan Jessiman: If you don't have the information, okay, but if you can't say, look, we see 100 or 200 people or whatever in a year.... Your answer is, “We know, but we're not going to tell you”.

Ms. Julie Black: That actually wasn't my answer. I said we don't know. We don't keep that statistical information.

Senator Duncan Jessiman: That's a different answer. You said, “We're not going to tell you”. That's what you said.

Ms. Laurie Anderson: If it's any help, I can tell you that last summer, between May and early August, I was seeing three to five women per day. I know it's a short period of time.

Senator Duncan Jessiman: Five days a week?

Ms. Laurie Anderson: Yes.

Senator Duncan Jessiman: That gives us some idea.

Senator Anne Cools: That gives us some idea, yes.

Senator Duncan Jessiman: Because we'd like to know how many people you're dealing with.

Ms. Laurie Anderson: Part of the problem is that because we're a volunteer organization, we're involved in so many different areas of it. Women in violent situations are our priority, so the last thing we have on our list is to get together and try to start putting together the numbers.

But if that number helps, then....

Senator Duncan Jessiman: I would just say that in the evidence we get from so many non-custodial parents who are refused access, when they come before us.... We know of only onr case. Then I thought it was 22. Now I'm told it's 41 times they've been refused and in contempt of court before something happens.

Ms. Laurie Anderson: As I said, women are terrified of losing access to those children. It's a very common threat.

In fact, when this woman came into my home last week and sat down with her children, I told her about some of the options we needed to talk about. I asked her what she was thinking at this point, whether there were things we could do to help, and what kind of information would be useful to her. The first thing she said to me was that he had said if she ever tried to leave, he would take the children.

Without information for her, that was an all-encompassing fear for her. That was the number one threat.

So it's very common among women who are going out for information. They don't have the information in front of them about what the process is, so they're giving access.

Senator Duncan Jessiman: Have some of the people you're seeing—and if there are some, perhaps you could give us a percentage, even of you those were talking about from May through August—actually applied for divorce after all this abuse?

Ms. Laurie Anderson: Most were in the midst of court proceedings.

Senator Duncan Jessiman: Court proceedings including divorce, or just separation?

Ms. Laurie Anderson: Often they were still trying to deal with the separation as a result of whatever assault had occurred that they had then taken action on.

Senator Duncan Jessiman: But you can't tell us, or you don't know, whether they actually went on to divorce.

Ms. Laurie Anderson: No, I can't do a follow-up on that one.

Senator Duncan Jessiman: So you're limited with your information.

Thanks very much.

Senator Anne Cools: If I could add to that, did the individual you were just talking about, the one who was concerned about losing the children, file for divorce?

Ms. Laurie Anderson: Oh, no. At this point, she was just trying to get information from me as to how she would even go about doing that, if she needed to do that, or what the process would be. She was in crisis in terms of the violence.

Senator Anne Cools: Are you a lawyer?

Ms. Laurie Anderson: I'm not. I'm a law student, Senator Cools.

Senator Anne Cools: And you were giving her advice as to how to file for divorce?

The Joint Chair (Mr. Roger Gallaway): We have another questioner here—

Ms. Laurie Anderson: No, I was not, Senator Cools. I was giving her information about what to do in terms of the violence and what that would mean.

Senator Anne Cools: No, no, I am very sympathetic to people who take their own personal time to assist other human beings. I admire it. I respect it. I wish more people would do it. But what I keep trying to get at in terms of the individuals you're describing—and you describe their pain and anguish with considerable passion—is that I would like to know, of those individuals, how many are actually going on to divorce.

A sad and terrible aspect of this whole issue of domestic violence is that a lot of these individuals never proceed to divorce. I think it's a painful thing, and it's a distressing thing. I'd like to find a way to find out, to get an idea of these circumstances, even a profile of the individuals you are helping. You know, give us a profile—their ages, who they are, where they are coming from, what their circumstances are.

It is insufficient that one says, “People are being hurt”. We know people are being hurt. We want to know who, how, where, when, and how many, because we cannot make public policy without hard information.

Ms. Laurie Anderson: I think that information is available, Senator Cools. That's why we have shelters set up. Last year something like 11,000 women and children in the province of Alberta had to access shelters.

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So somebody is tracking that information, and we should be accessing that and getting that information and turning it into useful data. It's just not what we're doing at this time.

Senator Anne Cools: I agree, but my experience has been that any time we ask individuals from the shelters for the information—how many they have served, how many are battered, how many of the battered women seek divorces—they tell us they can't give us that data.

Ms. Laurie Anderson: Well, then we need to free up some funding so they can do it.

Senator Anne Cools: They have lots of money.

The Joint Chair (Mr. Roger Gallaway) (Interpretation): Madame St-Jacques, you'll be asking questions?

Ms. Diane St-Jacques (Interpretation): In your brief, you refer to mediation in cases of divorce, and you say that most mediators are not able to deal with violence or detect violence in a situation between a man and a woman. Would you say that most mediators are not really sensitive to this?

Secondly, can you tell us if there are any specific proposals you would like to make about mediation? What type of training should be provided to mediators in order to detect these problems of violence?

Ms. Laurie Anderson: Firstly, in terms of mediation, we are opposed to mediation, mandatory or otherwise, when there's a history of domestic abuse in the relationship.

One of our main concerns with that is that the role of a mediator is to come out with a settlement agreement, as opposed to a court system where you have two lawyers whose primary concern is for their client. Our number one concern is that the mediator's interest is in reaching settlement and the fact that two people who are in a mediated agreement or in a mediation session are not there for the same reasons. Often, a woman may be there because she's afraid of court, she's afraid she'll lose her children in court, she's also coerced....

Again, I'm speaking specifically about situations where there's a history of domestic violence. I'm not suggesting mediation isn't appropriate where there is no history of violence.

The two parties coming to a table are not in an equal position of power. One of the fundamental pieces of the idea of mediation is that people are supposed to come in some kind of equal power status. They're not coming voluntarily, and they don't have equal power.

As to goals of mediation, for example, in mediation the idea is that you move forward, that it's future-focused, that we try not to dwell on the past and that we take equal blame for what has happened, what has brought the people to that point, which is ridiculous in a situation of domestic violence because a woman's very understanding of her past experience is maybe what has kept her alive to be in that mediation session. So there are a number of problems.

Another huge problem for us is the idea that mediation sessions are private and confidential, which means that if you have a mediated settlement, you have an agreement that you can't go to court on; you can't appeal. If someone breaches the agreement, you have no recourse. So that's a serious problem.

What about even moving the family law forward and keeping an eye on what's going on and trying to track and make changes? It's impossible unless there's some kind of record.

So those are serious concerns for us about the process of mediation.

The Joint Chair (Mr. Roger Gallaway): Do you have other questions?

Ms. Diane St-Jacques: No.

Ms. Hermina Dykxhoorn: Can I make one comment about some things that have been said?

The Joint Chair (Mr. Roger Gallaway): Go ahead. You have the last word.

Ms. Hermina Dykxhoorn: I think often the types and number of calls that you get to your organization have a lot to do with what you're all about and what your name is. Last year our organization received approximately 1,650 calls, and about 300 of those were family problems. Because we have family in our name, we get family problems. If you have women in your name, you're going to have women phone, if that's your focus.

Of those approximately 300 or so family problems, only perhaps 10 would have been to do with domestic violence or anything like that. Most are conflict resolution, that sort of thing—I can't handle my child, etc.

• 1655

So I think sometimes we have to focus on the fact that when we're talking about divorce, we have to deal with the great majority of instances. Even though my members next to me here have mentioned and have headlined domestic abuse, which is a very important thing, the great majority of cases of divorce are not about that, and I call on the committee to....

In our organization's view, men and women are equal. Neither sex is more evil than another sex, and in the great majority of cases it's a problem of family breakdown that needs to be dealt with and does not involve domestic abuse.

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

I want to thank the witnesses for coming. We're still a little bit behind time, but it's mid-afternoon and I'm going to declare the seventh-inning stretch now. We're going to take a seven-minute break.

• 1656

• 1705

The Joint Chair (Mr. Roger Gallaway): I wonder if we could resume.

We have a panel of three individuals who we welcome to our meeting today: Mr. Cummins, Mr. Witte, and Mr. Buksa. We'll start with Mr. Buksa, for five minutes.

Mr. Roy Buksa (Individual Presentation): Thank you. Hello. Bonjour. I want to start by relating a quote I came across on the Internet:

When researchers at Britain's Relate Centre for Family Research undertook a project to discover why so many divorced men lost contact with their children, they ended up 5 years later with a very different perspective. The wonder was not, they concluded, that so many fathers lost contact, but given the difficulties, that so many had stayed in touch.

The book is Fatherhood Reclaimed: The Making of the Modern Father, written by A. Burgess in 1997.

My written submission gives you general background about my divorce, the separation and divorce trial, and a recent variation hearing I went to in March. I have provided some conclusions and a number of recommendations. I want to touch on those conclusions and recommendations today. I will try to focus on those that I think would make the most positive contribution to custody and access.

Before I start, I want to tell you why I'm here. I've been separated for four years and I'm still madder than hell about it. The process really sucks, I guess is all I can say. After 24 years of marriage my former spouse concluded I owed her and it was okay to make me pay, even if that meant using the kids to do it.

The judicial system allowed her to make false allegations of violence so she could obtain custody of the children and leverage them for her own personal gain. The judge who granted the restraining order agreed to hear the arguments of a lawyer who'd recently arranged a roast in her honour. Then he arranged to make sure there was no transcript tape of that hearing or judges notes, even though that was done in a court of record. I don't even know what was said.

The professionals who advised my former spouse knowingly could and would counsel criminal activity or actions and not be sanctioned by either their professional organization or the law. The judge who presided at the divorce trial didn't see past this guise and marginalized my role by making it financially difficult for me to either look after my kids or have them live with me.

My lawyer violated my confidences by offering information to my former spouse's attorney that worked against me, and then taunted and challenged me to do something about it. But she appeared at my appeal on behalf of my wife because I went to the senior partner of that firm and complained about her ethics.

Lawyers blame judges for the inconsistent judgments and rough justice of the courts, yet abuse the process, make false and misleading statements in their legal arguments, manipulate information, edit affidavits and withhold factual information, knowing it will diminish the truth, all in the best interests of their clients.

Judges alibi their decisions by blaming lawyers for not doing the proper job and using their discretionary powers to promote their personal agendas rather than administering the law. They violate the trust and responsibility bestowed on them by making discriminatory and unreasonable judgments. They fail to recognize that as public servants they are there to serve the public and not the legal community.

It took me over a year to obtain a variation order after my children moved in with me. Mostly I'm angry with myself because I've wasted four years of my life trying to fix something I don't know will ever be fixed in my lifetime.

• 1710

I pulled this comment off of a tape. The tape was Children, the Experts of Divorce. The individual was the Honourable Michael Murphy, who is a justice in the 3rd District Court, Salt Lake City, Utah.

In the tape, he says that one of the most dramatic, injurious things that can happen to a child is to be physically abused. Certainly the abuse is aggravated if it's sexual abuse. But another very serious way to injure that child that may be just as bad is for one parent to make a false allegation of that same thing. Then you put the child in the middle like a piece of meat to get at the other partner.

I've reached one conclusion. Currently the legal system, including law societies, judges and most lawyers, in maintenance enforcement, regard men as the sole perpetrators of abuse, less important to the care of children and child rearing, and wanting custody to simply avoid maintenance.

I don't think so. My recommendations are to amend Bill C-41 so that full, equal joint custody, an equal distribution of marital property, and the proportionate sharing of reasonable and customary child rearing expenses is the default position in all divorces.

I was here briefly this morning when Judge Allard was speaking. He said that in 37 years very few fathers had asked for custody. I had two lawyers, both of whom told me to forget it unless I could prove my wife to be totally incompetent. She's not; we just didn't like each other. I was told that if I had an extra $10,000 and another year to waste, go for it, but that the chances of my getting custody were remote.

The Joint Chair (Senator Landon Pearson): Could you please move to your recommendations?

Mr. Roy Buksa: Okay.

My children rotate between our households monthly. They love it. They do it. It was their choice.

Here's a second recommendation: transfer the grants and funding available to gender equity and action groups to organizations that support both fathers and mothers.

Anyone who coaches or makes false allegations of abuse must be subject to sanctions by their legal bodies and/or the law. Any parent who makes such unfounded allegations should immediately and forever forfeit their rights to child custody.

I think the existing judicial process no longer is relevant to society's needs. It's cumbersome and static. I believe the judicial appointment process needs to be reviewed. There needs to be a better balance between precedents and principles.

There is a process called ISO 9000, which basically sets standards in the industrial process. A law firm in Edmonton has done that. That process could be adapted to the legal system so that there is consistency, minimum standards, and most importantly, justice.

Judges are no longer accountable or responsible for their actions or decisions. They'll do what they want regardless of what the law says.

We need ongoing reviews of judicial decisions both for reasonableness and legal appropriateness. Judges have to be subject to the same scrutiny and disciplinary procedures as any other public employee. Judges must receive special and ongoing training in family law to ensure the impartial handling of men, women, lay people, and judges. Everybody is equal in a court of law. Judges must place a greater responsibility and onus on lawyers—

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

Mr. Witte.

Mr. Joern H.R. Witte (Individual Presentation): I'm retired. I worked in the Calgary city police as a detective on major crimes. I worked as a sergeant and constable. Some of this is out of my experience as a policeman, but it's mostly out of my personal life.

I was born in Berlin, Germany. I came to this country at the age of 14. I grew up without a dad. I learned English with Swedish and Norwegian people between 14 and 16 years of age, when I was living away from home.

I was married for seven years. It was an unhappy marriage. I was divorced based on false accusations. My ex-wife divorced me. Custody and access is all well known to me.

I went through a false accusation here eight and a half years ago, as well as a senseless prosecution. My ex-wife already had an illegitimate child when I married her. That child, at age 29, read a few books, studied child abuse—

The Joint Chair (Mr. Roger Gallaway): Could you read a little more slowly? We have translators back here, and you're going too fast for them.

Mr. Joern Witte: When she reached 29, she studied sexual abuse at Mount Royal College from a former policewoman. She read several books, as well as a book called Michelle Remembers. It's a satanic-type book on abuse. The allegations against me rivalled those against Homolka, except for the murder. That is why I'm still pursuing this matter.

• 1715

I have an excellent police service record. I have social services reports from adoption, and divorce and custody battles, that do not correspond with the allegations. Nobody wants to look at those allegations. My ex-wife is a schizophrenic and she has not left us alone for 20 years up to my trial. I would get calls at 3 a.m., and sometimes she would answer, sometimes she wouldn't. Because of her mental state, I was always very careful with her. Then in 1969, of course, there were the false accusations.

In regard to my suggestions for divorce, I suggest that the first step be a trained mediator. When lawyers become involved the thing gets ugly, and no one ever feels that they won in a litigation.

If the matter becomes an all-out fight, the wishes of the custodial parent and the children take priority. I had numerous restraining orders against my ex-wife. I've arrested numerous men for breaching restraining orders, but I couldn't get the police to arrest my ex-wife. She was a mental. She was on welfare. She could do as she liked without consequences.

Next is the importance of restraining orders against women as well as men. I have never arrested a woman for breach of restraining order, even though I've attended places. There should be more discretional powers for the police in the execution of restraining orders.

Where a parent is left with an inadequate income, they should be subsidized.

Also, I recommend a follow-up period to establish whether the agreements and court orders have accomplished their purpose.

Women often have the advantage of assistance of legal aid, while men who bear the brunt of the maintenance orders cannot afford a lawyer and become enslaved financially, with little left for their personal needs. That happened to me. My wife ran up huge debts, intercepted the bills, and when everything caught up with her she committed herself to a mental hospital. I was left with two children and all the debts. I lived in my basement without a toilet, without a washroom; I did that at work. I paid off the debts. I felt sorry for her and I took her back. A year later I was out of the house.

Then I remarried in 1970, and the supreme court of Alberta ordered a psychological assessment of the whole family because of the false allegations. There was also a social service investigation, home visits, etc., all in my favour. I was awarded the custody of the children, even though I was not the natural father of this girl who later on made those accusations.

At age 15 she wanted to live with her mother. I signed over court orders. Although she says she ran away because of the sexual abuse, I have the legal documents where I signed over custody and delivered her to her mother.

The Joint Chair (Mr. Roger Gallaway): Mr. Witte, I'm sorry, but your time is up.

Mr. Joern Witte: Okay. My recommendation there is that the oath to tell the truth, the whole truth and nothing but the truth be enforced, and that perjury sections and associated sections be enforced.

Right now I can't get them to charge a police detective with perjury. I can't get them to charge the girl with perjury, and I have the proof. Of course, I had a lawsuit against the Attorney General, which I couldn't maintain because of the expense. They played dumb, they dragged it out for over eight years. For the last investigation I just received the results on April 25. It lasted over two years; I received nine letters saying they need more time. Nobody will tackle the investigation.

There has to be a willingness to investigate. If you're satisfied I didn't do it, then the investigation is finished. The police are not willing to because I'm accusing a high-ranking officer of obstructing justice.

The Joint Chair (Mr. Roger Gallaway): Okay, thank you. Mr. Cummins.

Mr. Kim Cummins (Individual Presentation): Thank you for asking me to come here today.

I've been through five trials. I've been incarcerated for false allegations. Someone asked me what...it's hard to sit here and tell you. When they put those handcuffs on you for false allegations, it's real, and I felt it. My ex-wife thought this was the way to make sure I would never see the kids.

• 1720

At the last appeal, the judge apologized to me, saying, “This poor father. What have we done to him?” What did they do? What did this justice system do to me? I haven't seen my children now for going on nine years. I pay child support, big time.

I went against the RCMP, and had an officer involved in the case. I come from a small town, by the way. You know what a small town will do to you. It doesn't take long before you have a lynching crew out there for you.

But in terms of the officer involved in this deal, finally I went against the RCMP complaints commission. I won. Ten recommendations were against the officer. Now it's...in training for the RCMP in Saskatchewan.

I didn't come here with a lot of paperwork. I know my lawyer, Lorne Goddard, has three feet of it—that's how high it's stacked, after five trials—and a big legal bill. But he's one of my best friends. He's a loyal friend who stood behind me when all of these hard times were coming down. I gave up on myself once, but he stood there, and his law firm was there to help me.

I couldn't help but notice what the grandmother said here. I remember talking to my mom one night. She cried, and told me she wanted to see the kids. I promised her that after the first trial, in 1991, we'd see them. But an aneurysm took her life, and she never did. I couldn't keep that promise.

These false allegations do a lot of things to you. The hurt's there. It's like someone ripping your heart out. It will never go away, as some people have told you. You can make as many recommendations as you want, but the scars are here. They're with me until the day I die.

My kids? I have to ask friends what they look like. I pay child support, and she's taking me back to court. I got served papers again. Because of Allan Rock's legislation, Bill C-41, they can come back on you.

She's remarried. They make $160,000. “Beat it”: this is what it's about.

I would love to see my kids. I know what it's like to be in the hospital now, with my kidney going, wondering if I'm going to die the same way my mom did, without getting to see them.

False allegations are serious. It's something we all should look at.

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

Senator Anne Cools: Mr. Chairman, can he put his case on the record, please? He said there have been five trials. Can he mention the name of the judge?

The Joint Chair (Mr. Roger Gallaway): Did you hear what Senator Cools said?

Mr. Kim Cummins: Yes.

I have case numbers with me, but I didn't bring the rest. I came here right from the oilfield. My lawyer, Lorne Goddard, can send you all of that.

The Joint Chair (Mr. Roger Gallaway): If he could, that would be helpful.

Mr. Kim Cummins: I will ask, sir.

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

Who would like to go first? Mr. Forseth.

Mr. Paul Forseth: Thank you.

Can you tell me where the court was?

Mr. Kim Cummins: In Red Deer.

Mr. Paul Forseth: Was that a superior court, where divorces are granted, or was that a provincial court?

Mr. Kim Cummins: It was the Court of Queen's Bench. The court appeals were all in Calgary.

Mr. Paul Forseth: So you had appeals. What was the essential issue? Were you fighting over custody or access?

Mr. Kim Cummins: The appeals? They were criminal charges.

Mr. Paul Forseth: So this was a false allegation.

Mr. Kim Cummins: Yes.

Mr. Paul Forseth: This really wasn't a divorce action.

Mr. Kim Cummins: The judges figured that the only reason for the last one was to keep me away from the kids. False allegations.

Mr. Paul Forseth: So you were fighting in the criminal system.

Mr. Kim Cummins: And divorce at the same time.

Mr. Paul Forseth: Yes. So what you're saying is that the criminal system was used as a parallel thing to gain power or advantage on the family side.

Mr. Kim Cummins: That's correct.

Mr. Paul Forseth: How many children are we talking about here?

Mr. Kim Cummins: Two girls.

Mr. Paul Forseth: How old are they now?

Mr. Kim Cummins: They're 15 and 13.

Mr. Paul Forseth: Do you see them at all now?

Mr. Kim Cummins: No, I don't.

Mr. Paul Forseth: Are they alienated from you? In other words, do they have no interest in seeing you?

• 1725

Mr. Kim Cummins: They did. I had visitation rights when I first started this. She went to the courts and said I pulled a knife on the kids. You know, they didn't even go out and check, and nothing ever happened. They didn't even check. So the judge took my supervised visits away and I haven't seen them since, through the courtroom doors.

Mr. Paul Forseth: And you're saying the 15-year-old is not, as far as you know, interested in contacting you on her own.

Mr. Kim Cummins: Well, through my friends, I hear she is. I always keep in mind that someday they're going to find me. They've only known one side, and I'm always praying that will come about, that they will find me.

Mr. Paul Forseth: Sometimes it does, and sometimes it doesn't.

Mr. Kim Cummins: It might have to come down to this. Now that she's wanting more money, I will fight for access to and custody of the kids.

Mr. Paul Forseth: One of the other things that all of you mention is the difficulty around perjury. I've asked both judges and lawyers who practise in the area about the whole problem of perjury, and they just roll their eyes and say it's such a difficult thing to get at: are you going to have trials within trials, almost like voir dires or whatever, or extra trials based on who said what? It's like peeling back the layers of the onion; where do you ever get to the truth? So often the professional attitude is to take everything they hear with a lot of skepticism, knowing the backdrop of the potentiality for perjury.

The problem comes when a particular series of decisions has to be made and they have to try to weigh various bits of evidence, especially when it could be loaded with, not necessarily out-and-out lies, but twisting of the truth and expanding of the facts. Being in politics, I certainly know there are six and a half-dozen ways of reinterpreting the very same set of events. We do it in the House of Commons, so—

Senator Anne Cools: Not in the Senate.

Voices: Oh, oh!

Mr. Paul Forseth: Okay, you're wanting to say something.

Mr. Kim Cummins: When the RCMP investigated me, I asked them to put me on a polygraph, and I said, “You can do anything and go check out everything I had there”. And they said no, just no way.

Mr. Joern Witte: I would like to speak to this. I went through a polygraph. I travelled to Saskatoon to take it at $500 of my own cost. I asked to go on the polygraph here and they refused prior. When I came back with the polygraph exam, it was, “How do we know he's a qualified polygraph man?” It was Mr. Robinson; he spent 25 years in the RCMP internal investigations.

They again refused me a polygraph. I said, “Put the girl on the polygraph”. They lied to me and said they had already. I said, “I know she wasn't on the polygraph”. I used the polygraph lots when I worked in the robbery squad, and I believe in it; I trust it.

I have these documents from the Alberta Guidance Clinic. I have social service reports from the Salvation Army that say this girl spent three years, from ages 15 to 18, in a Salvation Army home because my present wife wouldn't take her back. They mention her schizophrenic behaviour.

She contradicts her evidence from the preliminary to the trial. She contradicts her statements, but the police pretend they don't see that, because I had said, “I'll sue you bastards”.

Then I proceeded to sue them. I had a $650,000 lawsuit out against them. Then Mr. Scott Brooker was advised by Code Hunter to withdraw from it. I tried to find a lawyer, and the estimate was $100,000 to $150,000. It had already cost me $70,000. My wife said, “No way. Our security goes down the drain if you do that.”

Now, I'm lucky. I have a small farm and a police pension. If I didn't have that.... I'm unemployable as an investigator. I was working as a private investigator at the time.

My experience with the police, from two years of working in the courts, and eight and a half years now, is that they lie as much as everybody else. At one time I believed in the integrity and honesty of policemen. There are many honest policemen; 99% of my partners were honest.

At the Attorney General's department, they hand you from one lawyer to another so that they spread out the responsibility. If you start another legal process, it's so expanded that it becomes astronomical.

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

Senator DeWare.

Senator Mabel DeWare: I was just going to ask Mr. Buksa something.

• 1730

After your experience, how would you feel about a parenting plan? If a parenting plan had been mandatory or in place at that time, if the two of you had to sit down, regardless of how you felt about each other, and discuss a plan for the children's welfare, would it have helped in your case?

Mr. Roy Buksa: Absolutely. I prepared somewhere in the order of 10 different alternatives in terms of living arrangements and shared custodial arrangements. I was prepared to leave the kids in the house and then rotate households, or sell the family home to buy two less expensive condos within close proximity so the kids could go back and forth.

Senator Mabel DeWare: But what about her side of that? Did she have any—

Mr. Roy Buksa: She wouldn't agree to those terms. We tried mediation. We went three times. She didn't show up two of those times, and she was an hour late the third time.

Senator Mabel DeWare: So basically, if the two of you had to sit down and work out a plan that was acceptable by the courts, acceptable in the end to you two—it may have taken you a while to work it out—you think that would have helped your cause.

Mr. Roy Buksa: If there was a trained and qualified individual to mediate, yes. I think one of the key elements is that the people who agree or who make the agreement are the ones who buy into it. If you go into the judicial process, someone imposes a decision on you and nobody likes it.

Senator Mabel DeWare: How old were your children at that time?

Mr. Roy Buksa: They were 12, 14 and 16.

Senator Mabel DeWare: So they were old enough to have some input.

Mr. Roy Buksa: Yes.

Senator Mabel DeWare: I mean, they could say what they'd like, but they can't make decisions, of course. But they probably did tell you how they felt.

Mr. Roy Buksa: They haven't missed a Sunday with me in four years, and when you look at kids who are that old, they have better things to do than to hang around with a guy who's kind of balding and 50 years old.

Senator Mabel DeWare: So it's important for them to be with you on Sunday.

Mr. Roy Buksa: Because of the nature of the separation at the onset, my wife was given full custody of the children. When we ended up in court, we got joint custody. She had physical custody.

Three months later, the children approached me and asked me to move out and rent accommodation near the family home. They then started rotating through the household on alternate months—I could only afford a two-bedroom apartment.

Four months after that, the oldest boy moved out and moved in with me full-time, and the other two continue to rotate through. So it has been a little cramped.

Senator Mabel DeWare: So if we come up with some sort of a method by which we hope we can help parents through this ordeal, it would be a positive...?

Mr. Roy Buksa: Yes, I believe so.

Senator Mabel DeWare: Of course, with false allegations, that wouldn't work; the mediation probably would.

Mr. Roy Buksa: In doing some of my initial preparation, I ran across a comment from a Queen's Bench judge in Alberta named Tevie Miller, who made reference to something called the silver bullet. He said that practice, false allegations of abuse, has been rampant in Alberta for a long time.

The only question I have is why? Why are judges allowing that, or lawyers doing that? Why is the judiciary accepting that? It's just not acceptable. It's ethics. It shouldn't happen.

Senator Mabel DeWare: Thank you.

The Joint Chair (Mr. Roger Gallaway): I want to thank the three of you for coming here today and telling very personal, intimate stories. I know that takes a lot. I want you to know that the committee appreciates what you've told us today, and I'm certain that your testimony is going to have an impact on our deliberations. Thank you for coming.

Now I would ask the representatives from the Canadian Grandparents Rights Association and the Orphaned Grandparents Association to come forward, please. We have Annette Bruce, who is the president of the Orphaned Grandparents Association; and Florence Knight, the president of the Canadian Grandparents Rights Association, Alberta branch.

Welcome to both of you. We'll begin with Ms. Knight.

Ms. Florence Knight (President, Canadian Grandparents Rights Association, Alberta Branch): Thank you. Honourable senators and members of the special joint committee, I respectfully request that this submission be accepted as testimony as read.

My name is Florence Knight. I am president of the Alberta branch of the Canadian Grandparents Rights Association. I am a paternal grandparent who has been denied access to my granddaughter Sara since 1988, when she was five years old, and at which time her mother remarried.

• 1735

After eight years of no access, at the age of 13, Sara was coerced into giving up her identity, her name, and as yet unknown to her, her inheritance, when in February 1997 she applied to the court to be adopted by her mother's husband. This was an in camera hearing, and only the lawyers, her father, her mother and her mother's husband were allowed into the courtroom.

After court, my family and I were walking outside the courthouse when Sara was being driven away in a security car with a black bag over her head. This action was a further alienation of us as grandparents, and I suspect was done so she would not have any recent images of her paternal family.

Sara recently went through two losses, when earlier this year her great-grandmother passed away and shortly thereafter a school classmate died tragically. It would have been comforting to Sara if we could have told her that we love her and we care.

The presumption should be that children have a need for grandparents, who are an essential part of a child's life in providing unconditional love and emotional support. Currently, family law is designed to alienate the father from his children, and in so doing, the paternal grandparents are disengaged when their adult children divorce.

In exhibit A, “Grandparent-grandchild Contact Loss: Findings from a Study of “Grandparents Rights”' Members” by Dr. Edward Kruk of the University of British Columbia, Kruk states:

Consistent with the views of the grandparents in the study, the existence of grandparents rights statutes in the U.S. has not dramatically increased litigation; rather, litigation is more likely to be employed as a last resort. While the legal impact has been minimal, the social impact of the statutes has been dramatic (Wilson & Deshane, 1982). Any legislative changes furthering grandparents' rights of access to their grandchildren should thus serve to effectively reduce the need for legal involvement, litigation and adversarial proceedings.

On the presumption that parental alienation syndrome be given legal recognition, see exhibit B, “Legal Recognition of the Parental Alienation Syndrome” by Nancy Rainey Palmer in The American Journal of Family Therapy. Palmer states:

This article addresses the parental alienation syndrome, which is the process by which one parent overtly or covertly speaks or acts in a derogatory manner to or about the other parent during or subsequent to a divorce proceeding, in an attempt to alienate the child or children from that other parent.

In the same article, Palmer quotes Dade County Circuit Judge Richard Yale Feder:

The Court has no doubt that the cause of the blind, brainwashed, bigoted, belligerence of the children toward the father grew from the soil nurtured, watered and tilled by the mother.

Feder goes on to say that

She [the mother] slowly dripped poison into the minds of these children, maybe even beyond the power of this Court to find the antidote.

Grandparents become victims of the same alienation referred to in this exhibit.

See exhibit C, “Expanding the Parameters of Parental Alienation Syndrome” by Dr. Glenn Cartwright, in The American Journal of Family Therapy, Fall 1993:

Children who claim to be their own thinkers often use words and phrases of the alienating parent, which belies their claim. Similarly, alienating parents often act in ways that indicate the idea to reject a parent was not the child's own.

Cartwright goes on to state that

there is an obvious spread of animosity to the hated parent's extended family. “His mother called me a brat”. Grandparents, aunts, uncles and cousins are all tarred with the same brush ....

In a letter to me included as exhibit D, dated November 23, 1995, Dr. Cartwright states that “parental alienation is clearly a form of child abuse”. Therefore I suggest the presumption that parental alienation be recognized as child abuse.

Family law is currently designed to presume that there is only one primary caregiver to a child. The presumption should be that both biological parents share equal responsibility for the financial, emotional and physical care of a child.

Should the responsibility of care for a child not be available from either biological parent, then the general presumption should be that the child will be cared for by family members, with the first consideration being grandparents, and then extended family. In other words, kinship care should take precedence over state care. See attached exhibit E, “Kinship Care—a Natural Bridge” by the Child Welfare League of America; and exhibit F, “Promoting Contacts with Grandchildren and Grandparents” by Dr. Barbara Thomlison, University of Calgary Faculty of Social Work.

• 1740

In an 18-month study conducted by Dr. Thomlison, Thomlison's findings clearly indicate that “In order to develop satisfactorily, children need to be anchored in who they are”. She further states that “Professional and policy makers should address and manage the process of family reconciliation with at least as much attention and care as family separation”.

The Joint Chair (Mr. Roger Gallaway): I'm sorry, but you're a little bit over time.

Ms. Florence Knight: I have one more paragraph.

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

Ms. Florence Knight: The presumption should be that accusations levelled by one parent against the other parent or grandparent are false, unless proof has been provided to substantiate accusations.

Upon the court ordering shared parenting time by a parent, or visitation time by a grandparent, the presumption should be that enforcement is the responsibility of the local authorities in that jurisdiction, with a heavy penalty for contempt of court.

I thank you.

The Joint Chair (Mr. Roger Gallaway): Thank you. You know, one thing I have learned is not to interfere with grandparents.

Senator Anne Cools: Especially grandmothers.

The Joint Chair (Mr. Roger Gallaway): Yes. You remind us of that all the time, Senator Cools.

Mrs. Bruce.

Ms. Annette Bruce (President, Orphaned Grandparents Association): That comment hopefully will be good for me. I have been not known for my shortness of verbalisation.

My name is Annette Bruce. I am the president of the Orphaned Grandparents Association. Our association's focus is on education and prevention to acquaint the public and anybody else who will listen to me about the importance and value of attachment bonds in our grandchildren's lives. This is something that has not been valued in our society today.

I am a maternal grandparent. I have for the past seven years voluntarily worked on a daily basis with grandparents whose attachment bond with their grandchildren has been or is being severed following parental separation.

Some of the causes have been common-law relationships, 26%; divorce, 40%; intact families, 17%; death of adult children, 10%; and conflict with one or more or both parents, step-parent adoption, etc., approximately 17%.

Those percentages were based on the amount of calls in 1997. We receive approximately 75 to 100 calls during the course of the year for information that is educationally based, by other organizations and law services. We receive referrals through social services, court services throughout Alberta and across Canada, and of course also in Europe.

I can state categorically that a healthy, level bond between grandchildren and grandparents is necessary for the emotional health and happiness of all three generations. This bond is a natural birthright, realized through emotional attachments. It is a legacy bequeathed by us as elders that benefits everyone in the family.

Unfortunately, family members are increasingly being deprived on the benefits of this relationship. Why is this happening? Most people are unaware of the significance of inter-generational relationships in today's society. The second reason is the un-generational structure of modern society that we live in today, which is our reality. People primarily spend their time with their own age group. The rapid tempo of our lives today militates against the formation of vital connections, and most importantly, deep enduring emotional attachments.

These facts are so powerful that even people who do recognize the importance of close generational ties find it difficult to make it happen for them. They can't overcome the social and personal obstacles they find between their loved ones and themselves in today's society.

Not only is the job of grandparenting kept under wraps, the thought of it, even the idea of it is. Grandparenting is not anticipated in the same way that people look forward to becoming a parent or embarking upon a chosen career.

• 1745

Today, not only are people of all generations unwilling to put forth the effort to nurture, to garden emotional attachments, they seem to go out of their way to isolate themselves from one another and even within their own families. We're all just too busy today. We're barely coping with all the harried lives. There is a consensus today that there is already too much to do. Children are isolated from us as elders and we are isolated from them. Caretaking institutions spend more time with our grandchildren than we are allowed to today.

Our young adults have little time for elders, even if they have an interesting adult who is eager to be with them. The thought that one day they too—the youngsters—might become grandparents never enters their minds. And the middle generation don't have time to think about their parents and their children unless they are among the fortunate few whose parents help with their everyday burdens. And for grandparents who work, who have moved away in retirement or who live down the street but who aren't interested in their grandchildren, the less said about it the better. The very subject makes me feel guilty.

It is not only inconvenient but annoying for some people to consider the results of their actions beyond one generation. Do retiring grandparents want to think about sad grandchildren who can't understand why their beloved grandparents have left them? Do parents want to bother to consider the effects of their divorces and remarriages on their parents and children? What does this mean but more grandparents to deal with, more pressures to get kids and grandparents together, more presents? It's just easier to sweep it under the rug.

And what about the great-grandparents and the great-grandmothers? In all the history of mankind to date there will be in the near future more grandparents and more great-grandparents than ever before in the history of mankind. The only thing we have left to us is our relationships, and upon hearing today that's not going very well, why should grandparents break the silence? Portraying themselves as passive victims of their children's rejection is a safe way to keep to themselves.

True, institutions and professions ignore the importance of grandparents' participation because it's just too much trouble to deal with. True, the law may even legislate grandparents out of existence when their grandchild's custodian, sometimes their very own child, rejects them and doesn't want them around. It is true some grandparents are rejected by their own children. True, grandparents deserve a bit of time for themselves after their children grow up. Who's rejecting whom? The silence continues unbroken even though the extended family is being torn apart at an ever-accelerating rate. The advances new generations have enjoyed are being paid for with a terrible emotional price.

There's a curious paradox occurring. The extended family is getting larger and broader, with more people of different ages, at the same time that its members are splitting off from one another and leaving their families to spend more time doing business in the impersonal world outside of family confines.

The Joint Chair (Mr. Roger Gallaway): Ms. Bruce, are you almost finished?

Ms. Annette Bruce: I'm a grandmother. I'm never finished.

Voices: Hear, hear.

The Joint Chair (Mr. Roger Gallaway): You're well over your time.

Ms. Annette Bruce: Thank you.

The first recommendation is that adversarial solutions harm our grandchildren. And I speak for that, because my grandchild, who is now nine years old, asked me before I came today to tell those people that divorce should not be allowed. It breaks their hearts and it breaks ours as grandparents.

Attitudes have to change. We need education, both for ourselves as grandparents and our legislators, our judiciary and the public at large. We need more information so that all of us can have more options for better choices. We need legislation to recognize the importance and value of our relationships in a child's life and development. And grandparents need to be utilized as resources, support adjuncts and placement possibilities, particularly when our grandchildren are apprehended by social services.

• 1750

More focus needs to be on responsibilities rather than rights. If our grandchildren's rights were being respected and protected, there would be no need for me to be speaking to this committee today. And we need mediation. Mediation knows how to handle family difficulties and the complexities of that, and we need to be allowed to enter into mediation in a more constructive way than is being allowed now.

Thank you for your time.

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

Questions? Senator DeWare.

Senator Anne Cools: See, the grandparents go first.

Senator Mabel DeWare: Great-grandparents go first. We have an extended family in our household of 22.

I was interested in a phrase you used, the “ungeneration structure” of our lives today. I'd like you to expand on that.

Ms. Annette Bruce: “Ungenerational structure”?

Senator Mabel DeWare: Yes.

Ms. Annette Bruce: Because our relationships are not valued in today's society, being a grandparent is not seen as a valued role. We do not create employment, we do not provide income to the economy, and the government so far hasn't been able to tax us on it. By the same token, we are valued as seniors, and to see ourselves as seniors, because there are all kinds of services out there that are more than willing to connect up to us, such as extended care, exclusive high-rise condominiums where no children are allowed, particularly our grandchildren, etc.... That's the value that's seen in today's society.

The Joint Chair (Senator Landon Pearson): That's the other grandmother. I have ten grandchildren.

I had a comment. I know I'm aware of the program in Ontario known as the United Generations of Ontario. Do you have a similar program in Alberta? It's quite an exciting movement in which the valuing of the interaction is being promoted.

Ms. Annette Bruce: For the inter-generational relationships?

The Joint Chair (Senator Landon Pearson): Yes.

Ms. Florence Knight: We've never heard of it.

Ms. Annette Bruce: I've heard of it, but we have no such organization here in Alberta.

The Joint Chair (Senator Landon Pearson): I might encourage you to follow that up, because it's really a wonderful organization.

Ms. Annette Bruce: Yes.

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

Senator Duncan Jessiman: I have one question.

The Joint Chair (Mr. Roger Gallaway): We have a grandfather now.

Senator Duncan Jessiman: Could you explain the orphaned grandparent? Are these children of the grandparents who are orphaned, or are the grandchildren orphaned, or are the grandparents orphaned? Who are the orphans, and what's the significance—

Ms. Annette Bruce: Number one, the grandparents came up with the name themselves because they come from a generation where the terms of reference of orphans is very familiar to them, basically as a result of World War II, for example. And the name “orphaned” means to them that they're separated from their grandchildren. Not necessarily does that imply that these are without parents, without any other extended family members.

Senator Duncan Jessiman: Fine. Thank you very much.

Ms. Florence Knight: We've been encouraging Annette to change her name to Canadian Grandparents' Rights Association and solve the problem.

Ms. Annette Bruce: We're not a rights-focused group, but the word “orphaned” elicits interest such as you have focused on.

Senator Duncan Jessiman: Right. Thank you.

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

Senator Anne Cools: Thank you.

I'm not going to ask a question because I know your work very well, but I would just like to thank you very deeply and very personally for all your good work and for basically re-parenting your own children again. So I thank you for that.

Ms. Annette Bruce: Thank you.

Ms. Florence Knight: Thank you.

The Joint Chair (Mr. Roger Gallaway): Thank you very much for coming.

I would now ask that the witnesses from Child Find Alberta and the Calgary Adhoc Committee come forward, please.

• 1755

Good afternoon. We have before us here, from Child Find Alberta, Mr. Alex Weir, who's the district manager. With him is Mr. Max Blitt, who is the past president. From the Calgary Adhoc Committee On Children's Rights, we have Ms. Hensley. Welcome. I think we'll begin with Mr. Weir.

Mr. Alex Weir (District Manager, Child Find Alberta): Thank you very much, on behalf of Child Find Alberta and all of our Child Find provincial societies stretching from sea to sea and going down into the United States. On this occasion we'll be dealing solely with Canadian problems.

Our written Child Find appeal to this committee is dated February 19, 1998. We are grateful for this additional opportunity to communicate with your wonderful committee, studying issues so near and dear to our hearts.

We in Child Find wish to emphasize very strongly that we are here for the children. That is our sole focus. We wish people, particularly all missing children, to conclude that Child Find represents, because of its past two decades of experience, the light of hope for all missing children, not just those we are searching for, but all missing children in general. That's why preventative measures, such as an opportunity to appear before this committee, are so important to us.

As part of our formal submission, you will note we have emphasized that we launched this particular appeal for legislative reform for the sake of so many children negatively impacted by the current laws and legal system we have. We have learned that most parental child abductions are done out of envy or a power struggle, rather than the motivation of love. This frankly came as quite a shock to me when I joined Child Find approximately three years ago, because prior to that I had a completely opposite opinion on the issue. But I present to you the experience of Child Find when I emphasize that indeed most parental child abductions are done out of envy or a power struggle.

One particular issue we touched on that I would like to re-emphasize is in relation to the child custody court orders granted in each one of our provinces. They are, according to RCMP workshops for law enforcement officers, only enforceable within that particular province. The best scenario for the initial order would be for it to be entered literally in every province in Canada.

Correspondingly, we find in Child Find it is easier for us to achieve a reunion between a child involved in a parental abduction situation if that child has been taken to the United States, compared to being taken to one of the other provinces of Canada. This just blows my mind. I just can't understand this.

Of course, opportunity is available in certain instances for the order to be entered in another province, but once again all it takes is an application made in the province where the children are residing where we have safely located them. We have found far too many cases where even a non-relative has been awarded custody in another jurisdiction after the parent in Alberta, where the children are habitually deemed resident, had earlier obtained a sole custody order.

• 1800

Despite our amazing success, which is in the high 90%, I'm pleased to say, of locates of the children that are registered with Child Find Alberta as missing—it's wonderful to be able to have that satisfaction going home at night knowing that through the team effort, we are able to locate in the area of 95% of those children—the sad reality is that achieving a reunion after the safe locate is another question again. That is why we need, we appeal, we beg, we implore you to help us in convincing the provinces that, for example, the Hague Convention should be applied interprovincially and not just inter-country. I am referring to a legal opinion provided to us by the Alberta justice department in that regard.

The other thing we would encourage this committee to do is to lobby more and more countries to become involved and to basically endorse the provisions of the Hague Convention, because that, of course, is a wonderful procedure to basically have the decision about custody and access determined in the jurisdiction where the child or children are deemed to be habitually resident.

There are far too many of our cases on the international scene, and we hear so many tearful, emotional stories. One in particular that moved me very much, and a member of Parliament, as well, who arranged basically the phone-in program, was where the mother, in this particular case, was tricked into believing that her children were being innocently taken to the Philippines to attend a grandparent anniversary, a wonderful wedding anniversary, and she bought it hook, line, and sinker. This is not the exception. This is the norm in most of our international child abduction situations.

In this particular case, because the country happened to be what I would refer to as a non-Hague country, the obstacles in achieving a family reunion are almost insurmountable. Depending on the country, some countries—frankly, ladies and gentlemen, you know it, I know it—don't even try. When we find, in some of our cases, that a child is taken to a particular country and the police won't assist, there is no effort at all to even look for the child. And I'm referring solely to Alberta-born and Alberta-raised children who happen to be in these types of situations. It really saddens me, and that's why I beg of you to promote other countries to join Canada in the acceptance and promotion of the Hague Convention.

But keep in mind that just because we are the envy of so many countries in what we have achieved as it involves combating the crisis of missing children, we have certainly something to do ourselves. That is why I want to emphasize the issue of interprovincial application of the Hague Convention.

The Joint Chair (Mr. Roger Gallaway): I'm sorry to interrupt, Mr. Weir, but you are over time. I'm almost establishing the grandparent rule in here this afternoon, that if you admit that you are a grandparent, we might give you some more time.

Mr. Alex Weir: I am a grandparent four times over, but I'll yield to Max Blitt at this point.

I feel so passionate about this subject, like some of your earlier speakers I feel I could go on and on, but I realize you're over time here. Thank you for this opportunity.

The Joint Chair (Mr. Roger Gallaway): Mr. Blitt, are you going to speak too?

Mr. Max Blitt (Past President, Child Find Alberta): If I could be allowed to.

The Joint Chair (Mr. Roger Gallaway): We can give you a couple of minutes. You're part of Child Find, are you not?

Mr. Max Blitt: Yes.

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

Mr. Max Blitt: I promise I won't be as wordy as Mr. Weir.

Thank you, senators and members of this committee. I come to speak to you today wearing two hats. I'm a past president of Child Find Alberta and have been involved with that organization for upwards of about 10 years now. So I have had experience on the front lines as well as wearing my second hat, which is as a family law specialist dealing on a practical level with child abduction.

• 1805

I want to take Mr. Weir's phrase and just carry it a bit within the time constraints you have. It's an interesting statement to hear that it's easier to obtain the return of a child abducted to a foreign country than it is to get a child back from another province. That's assuming the Hague Convention applies.

We have to think about that question. Why would it be easier to get a child back from a foreign jurisdiction? Let me tell you some of the problems I experience as an attorney.

First of all, in my dealings with the Hague Convention.... I have distributed to the members of the committee a brief that we submitted to the Alberta legislature that will outline what I'll run out of time trying to address here. Dealing province to province, each province has its own set of provincial rules that deal with the reciprocal enforcement of custody orders.

I can give you first-hand experience. Just a few months ago, I had a situation in which a common-law couple had separated. The mother took the child to British Columbia. We then obtained an order in Alberta. We attempted to reciprocally enforce that order in British Columbia.

Unfortunately, the laws of B.C. state that you have to have given notice to the party, which in this case was the abducting mother, before you could reciprocally enforce the Alberta court order. Well, you can imagine how difficult that would be if she's hiding.

Through using some legal machinery that I'm not totally clear on, a B.C. attorney was able to reciprocally enforce this after quite a delay and a cost of about $2,000. Most people can't afford to assume that cost plus the cost of someone such as myself who initiates the process from Alberta, for instance.

One of the shortcuts we can all work toward that we're advocating—I really appreciate having the committee approaching this from a federal point of view—is that we both have to work toward one goal. That means having uniformity when it comes to applying the law as it relates to the return of children. We need to have the federal government pushing and the provincial government also going in the direction of having legislation that adopts the Hague Convention from province to province.

I contacted the American Bar Association to ask whether they were familiar with any instances in which another jurisdiction applied the Hague Convention within its own domestic boundaries. They weren't aware of a country that has done that. We may be the first to do that if this committee and the provincial governments finally see it as part of their will to work toward that.

I don't think I want to get into any more detail about how the Hague Convention works except to give this example. There have been situations where an abducting parent has been in an aircraft flying from Canada to Australia, which is a signatory to the Hague Convention. Before that aircraft lands in Australia, the paperwork is in effect because of faxes and computerization. Before they land, the reciprocating country, Australia, has the machinery in place to send the abducting parent and the children back to Canada.

I'd like to end on that note. I thank all the members of the committee for agreeing to listen to a second voice from Child Find Alberta. Thank you.

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

Ms. Hensley.

Ms. Dale Hensley (Lawyer, Calgary Adhoc Committee): I'm appearing on behalf of a committee with, as you know, a kind of a funny name. We were formed specifically to make a presentation to the joint committee because we see the issue as being very important.

Our focus and orientation is that of children's interests and rights. The committee is composed of a member of the provincial children's advocate office. Also, there's a counsel from the young offenders office here in the province, which is funded by legal aid. She advocates for children in conflict with the law. Also, there's a child psychologist who specializes in child therapy and who previously did assessments in custody and access disputes, but has stopped doing that. There's also a consultant and former school counsellor with more than 20 years' experience with the Catholic school board.

• 1810

And there's me, a private practice lawyer whose practice is 75% in the area of family law. I have done some representation of children. In Alberta, that representation of children is largely in the area of child protection matters, because there is no provision at the moment for any representation of children in custody and access disputes.

We will be providing a written submission at a later time. I thank you very much for the opportunity of presenting to you.

Our first point is that children have the right to be heard in custody and access disputes. We base our orientation and position in that regard on the Convention on the Rights of the Child, which I'm sure you've heard of significantly throughout your hearings. We particularly rely on articles 12, 9(2), and 13. Article 12, as you know, deals with the right of a child capable of forming their own views to have those views heard, and also a child's right to representation.

Clearly matters of custody and access involve children; they're affected. We stress, though, that in providing children the opportunity to express their views, we are talking about the opportunity to know and the opportunity to participate. We're not talking about the opportunity to be the decision-maker; it's to be involved in the process.

Many arguments are raised against involving children more in such processes, and we will address most of those arguments in our written submission. They're too numerous to go through now. Our point is that children should be heard in the process.

Our second point is that the Divorce Act should have a section of guiding principles for making custody and access decisions. The purpose would be to orient decision-makers, family members, and legal advisers to focus on the needs and interests of the children involved. I think you heard this morning, through the Children's Advocate representatives, that in our Child Welfare Act, section 2 is that orienting kind of section. It's not one that can be transferred to the Divorce Act—it's very much oriented to child protection—but the principle, the notion, that we create such a section is important. It would need to set out that the child's interests are paramount and that the children need to be the focus and priority, rather than of course the competing interests of the parents.

We've talked about the need for a change of language, although a change of language is not in and of itself sufficient. There has to be a change in the underlying notion that a child is a possession of the parents. That has to be discarded. We've talked about moving away from the notion of custody and access to encouraging parents to plan how they're going to continue to perform their parental obligations. For example, how would they organize their careers so it would be advantageous to their children, as opposed to simply advantageous for themselves?

There has been much talk about parenting plans, and we see some merit in parenting plans, although on a personal basis I would suggest that we, as lawyers.... When we are preparing documents for parents who are divorcing or separating, we always prepare a document that, generally speaking, if the parents are able to agree on these things, sets out all of the things you would put in a parenting plan. Currently they're not requirements under the Divorce Act.

As a result of the changes to the support provisions, I see that's going to become more and more necessary, because our courts are now mandating that certain things be indicated in the divorce judgment. It wouldn't be all that big a step to include in there how disputes are going to be resolved, how decision-making is going to come about, and those kinds of issues.

But in any parenting plan that would be developed, the children should be given an opportunity to be heard. Just as they should be heard in a custody and access dispute, they should be involved in the development of the parenting plan, because they are integrally affected.

Included in that parenting plan, one issue that is particularly important to address is who are the significant people in that child's life or the children's lives, and who do they have a significant relationship with or who could they have a significant relationship with? So access needs to be addressed for those people.

• 1815

Our third point is we're not convinced that the courtroom or legal process as we know it is the best forum or method for resolving family disputes. The courtroom and legal forum are good for disputed facts. It's not particularly a good forum for making decisions about relationships or value judgments, which is generally what we have with custody and access disputes.

There are lots of other reasons that the courtroom is not a particularly good forum, and one of those, which our members are particularly concerned about, is the need for timely decisions for children.

The Joint Chair (Mr. Roger Gallaway): Ms. Hensley, I'm sorry; I'm always interrupting people—

Ms. Dale Hensley: I have two points.

Senator Anne Cools: It's an excellent presentation.

Ms. Dale Hensley: Of course one of the reasons that the courtroom is not a good forum is the adversarial nature, but also the adversarial process protracts the dispute, so the immediacy of issues is a problem with the courtroom. Also, there's usually limited information.

Although I admit that the courts are working to become better forums for that kind of decision-making, while we have our current system, in any decisions regarding children in the Divorce Act, children must have standing. That needs to be an absolute right. It can't be conditional on being verbally articulate or on age, and that's consistent with the convention.

As our fourth point, children should be entitled to representation. If it's a legal forum, it must be legal representation, and the court must have authority to direct payment of counsel or the representative for the child. There would be many issues inherent in that recommendation, we know, but that's fundamental. However, the ideal would be for advocates to be appointed well before any contentious or legal process was begun by either parent, and that advocate obviously would not necessarily have to be a lawyer.

Finally, our fifth point is that in our work we notice many gaps in the system. For example, the children's advocate office receives, I'm sure you've heard, calls about private custody and access disputes. The children's advocate office cannot deal with those, because they deal strictly with child welfare matters. So their only response is to say “Well, talk to a lawyer”. There is no one they can refer a child to, if it happens to be a child who calls.

Our schools are caught between disputing parents. They need a place to go in order to find someone who can speak just for the child. In my experience in observing custody and access disputes—and I can tell you that most lawyers attempt to leave that area of practice in family law, because it takes far too great an emotional toll—you see only the parents' views represented. There is no opportunity for the child to be represented or heard in our court system in Alberta. Children basically don't have rights.

Thank you.

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

We'll start questions with Senator Jessiman.

Senator Duncan Jessiman: I'd refer my question to Mr. Weir and Mr. Blitt.

Are there other Child Find organizations in other provinces?

Mr. Max Blitt: Yes, we have them throughout Canada.

Senator Duncan Jessiman: Does every province have them?

Mr. Alex Weir: Yes.

Mr. Max Blitt: Yes. There's no exception.

Senator Duncan Jessiman: And you say you have 95% success in finding children. Does that include outside and inside Canada, or is the success rate lower in Canada?

Mr. Alex Weir: Those statistics represent Child Find Alberta, and they represent all of our children.

Senator Duncan Jessiman: Wherever they are?

Mr. Alex Weir: Yes, wherever they are, and we find them everywhere, all over the world.

Senator Duncan Jessiman: What about the percentage of success in getting the child back to the parent from whom the child was taken? What kind of success do you have on that? Do you have any statistics on that?

Mr. Alex Weir: We are becoming increasingly more active in this area. The irony of it is that we started off thinking, way back in 1980, that all we really had to do was find them and the system would literally take care of itself. We are now discovering that we have to sometimes locate children on more than one occasion, particularly in a parental abduction situation.

• 1820

In one very well known local case here in Calgary, the children were located by Child Find Alberta within the United States four times. On the fourth time, the police certainly made sure that armed escorts would follow at all times to make sure there were no further, shall we say, interceptions.

Senator Duncan Jessiman: Do you have any statistics, though, on percentage? What percentage on success is there for actually getting the child back with the parent from whom it was taken?

Mr. Alex Weir: It's a very high percentage. I would say it would be negligible but for the pain suffered by the parents going through the nightmare, which is just indescribable.

Senator Duncan Jessiman: It's kind of a sad fact that you can find them more quickly in the United States, but you also have to understand that a business can trade with the United States more easily than it can with each province. We have a lot to work on.

Mr. Alex Weir: As a matter of fact, since you are dealing with the law and proposed amendments to the Divorce Act, it's important to focus on the reality of the current system of encouraging or promoting, shall we say, vigilante or non-legal means to achieve a reunion. We naturally could not counsel anyone to break the law.

Senator Duncan Jessiman: Right.

Mr. Alex Weir: We stick to that religiously, although sometimes, almost like a comic strip character, I have to bang my head against the wall when I go home at night because I have to live with the advice I provided to the person. You have to work through the system, but the system needs to be fixed.

Senator Duncan Jessiman: Thanks very much.

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

Senator Cools.

Senator Anne Cools: Thank you very much, Mr. Chairman.

Before I proceed with these witnesses, if you remember, we had asked the previous witnesses the names of their cases so the record would show it. They have provided me with the names of their cases so that the record could reflect them.

Perhaps I could give this to our clerk so that the names of the cases from Mr. Buksa, Mr. Cummins, and Mr. Witte are filed with us. With the committee's agreement, the style of cause—their lawyers would know—could be included in their testimony. That's if the committee doesn't mind.

The Joint Chair (Mr. Roger Gallaway): Could we have consent for that?

Some hon. members: Agreed.

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

Senator Anne Cools: Thank you.

Having done that, I would like to thank the witnesses for what I thought was stunning testimony. I really commend you for what I think was very good work.

This particular set of problems is very deep and very entrenched and has lots of tentacles that reach into many, many different jurisdictions. Quite often, it's buttressed by a lot of staggering cowardice on the part of lots of officials, but we can deal with that another time.

If any of you have any information on this, I am told that there's a network right across this country that's assisting and supporting parental abduction. Do you have any information about that? Where do parents stay when they take off with children? Where do they reside? Who helps them?

It's a very delicate and sensitive issue, but you are before our committee, so if you have any information, I wonder if you could share it with us.

Mr. Max Blitt: Well, I'm certainly aware of them because in my practice, I have had to work around them.

One of the most serious abduction cases I had was a Greek couple. The mother was allowing access on a regular weekend basis. Father spirited what I think was a nine-month-old and a year-and-a-half-old through the United States through a “pipeline”, which was, as near as we can tell, with the help of police and other authorities.

There was an exposé in the Calgary Herald that I think talked about it. There are certain individuals in the United States who openly advocated their involvement. I can't speak of anyone particularly in Canada, but I'm sure they exist.

We recovered these two children four years later in New York in an orphanage. The father was seeing them even less than when he was exercising access at the original time of the separation. I'm convinced that he had access to this pipeline to help him get through the United States.

• 1825

One of the things in which we're very fortunate in Canada is that our customs, our immigration authorities at the border, have these alerts, and you're probably familiar with all the federal organizations that dovetail with one another to stop the abduction of children. We're working on our U.S. counterparts to try to get the customs and immigration to ask a few more questions when our citizens go down to the United States. It's toughening up, but it's an ongoing process.

Senator Anne Cools: I'm sure that perhaps at some point in time we may want to have an in camera meeting and bring some of the police and the court officials who work on this issue, because it's quite delicate. I just make this as a suggestion.

My next question to you.... Go ahead.

Mr. Alex Weir: Just to further answer this, and in the light of those comments you were just making, I was wondering if the committee would like Child Find to present some confidential information—

Senator Anne Cools: Love it.

Mr. Alex Weir: —on what we have and what we have received without any editorializing, just for the benefit of the committee. I would be very hesitant to name specific organizations, but I can tell you that in this one case I was talking about that involved this very city, certainly there was a great deal of protection going on and there was no secret, certainly at the eleventh hour. But we can provide this if you wish it.

Senator Anne Cools: I'm sure that the committee would be happy to receive the information, because I certainly have files myself, or cases. One of the cases that comes to mind right now, and I won't put it on the record for a particular set of reasons, was a case in northern Ontario and everyone knew very clearly where the person visited, when they visited in town and where they stayed. In this instance it was a mother who had taken off with the child.

I think it is incumbent upon the committee to take a look at these underground—well, they're not really underground—these networks across the country.

You may have said this in your remarks, but do you have a handle on the actual number of children who are abducted in this country annually? Say last year—would you have that data?

Mr. Alex Weir: We would estimate that within Canada, and the United States would also have similar statistics, approximately 70% of the children who have gone missing are runaways. So that would leave somewhere in the area of 28% approximately being parental abductions and 2% or less being stranger abductions.

In Alberta it's about 50-50, and approximately 50% of the ones we're dealing with are parental abductions.

The total overall numbers, according to the RCMP registry, would be in the recorded registered range by all police officers at the total number of 55,000 range. However, even the police officers concede that the total numbers, the real numbers, are in the area of probably between 100,000 to 250,000 missing children in Canada, which therefore means that in the United States the total numbers of missing children are in the area of one million at least.

Senator Anne Cools: I have one last question for the first witness. She has advised us that the Divorce Act should be more explicit on the interests of the child. A couple of weeks ago in Toronto we had a witness, I believe her name was Sharman Bondy. I very clearly remember that her first name was Sharman. She suggested to the committee that to the extent that the Divorce Act had implemented subsection 26(1), which enabled child support guidelines, which was the use of regulations, perhaps the Divorce Act should use the same technique again to enact a section that then could enable regulations in the area of the standards that judges should employ in determining “the best interests of the child”.

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Have you given that any thought? It was one suggestion. I'm not proposing it. I'm not saying I support it. I'm just wondering if you have a reaction to that as an idea.

Ms. Dale Hensley: Certainly we've talked about the best interest test in our group, and in the reading that I've done there's a recognition that the best interest test as it exists now is really a subjective assessment by a judge.

Senator Anne Cools: The individual judge?

Ms. Dale Hensley: Yes. So yes, we would agree that there needs to be some kind of—

Senator Anne Cools: Standard.

Ms. Dale Hensley: The issues that are considered, what a judge goes through in his or her mind when they are making a best interest assessment.

But that is different, I think, from what we are talking about in terms of a section that sets out the guiding principles, because I think it's very important actually that this kind of a section be included right within the legislation and not be in regulations.

Senator Anne Cools: I was just trying to give you an opportunity to say that word. Thank you.

The Joint Chair (Mr. Roger Gallaway): Madam Dalphond-Guiral.

Ms. Madeleine Dalphond-Guiral: Many of our witnesses spoke about the mediation process. In your statement you spoke also about the importance for the children to be part not of the decision, but of the process. I would like to know if you think the children should be part of the mediation process, and if you say so, would it be possible for you to elaborate a little bit on how you see that?

Ms. Dale Hensley: We also talked about mediation, and we've been in preliminary discussions. We haven't had a lot of in-depth discussion about all of our views, which was why I didn't specifically mention mediation. We've certainly talked about mediation, and members of our group support mediation. We don't support mandatory mediation because it's contrary to the principles of mediation. Mediation says that you have to have voluntary parties and they have to be parties of equal bargaining power.

But yes, we do believe that children should be involved in the process. You get into all of the difficulties with mediation when you say let's put the children right in that setting, and we wouldn't necessarily support that. It would depend on the age of the child, or not necessarily the age but the development of the child, because age isn't always the best measure. But certainly their views need to be represented in that process.

There is no question in our minds that those children's views and interests must be at that table and they must be there independently. So a means of achieving that would be for example having someone there as a representative, someone who is dedicated to representing that child so it's just as if it was in a courtroom; it would be legal counsel dedicated to that child's views and interests.

These things get very expensive potentially, but you could have mediation processes that didn't necessarily have just the parties present. Perhaps you would have the parties plus someone who was their advocate, in which case if you had a child of sufficient maturity, perhaps that child would be present with someone who would also be there supporting them.

So I think that it ends up having to be a rethinking of that process of mediation. And certainly it is radical to think about having children and their views represented, but we think that it's very important. One of the reasons is because you can come up with very bad decisions. You can come up with decisions that are not necessarily in the child's interests in those mediation processes. You can get very bad mediated settlements, in my experience.

Ms. Madeleine Dalphond-Guiral: Thank you.

The Joint Chair (Mr. Roger Gallaway): Thank you very much. Thanks to all of you for coming.

Yes, Mr. Blitt.

Mr. Max Blitt: I was just going to add one further statistic. I didn't want to leave an erroneous impression with the committee, but I do know the statistics in terms of criminal abductions from the 1996 RCMP missing children's registry. It was, I believe, just over 400. We don't have the 1997 statistics yet, but they'll be available soon. I would have no hesitation in sending them as soon as I get them.

Thank you.

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The Joint Chair (Mr. Roger Gallaway): I should tell you that the RCMP will be before this committee next week to testify on that very matter.

Mr. Max Blitt: All right.

The Joint Chair (Mr. Roger Gallaway): I'm wondering now if we could have the representatives of the Fathers for Fair Treatment, Family of Men, and the Equitable Child Maintenance, Calgary Chapter, come forward.

We have here with us, from the Equitable Child Maintenance and Access Society, Calgary Chapter, Mr. LaBerge, who is the president, and Marina Forbister, who is the past president. Will both of you be speaking, or just one?

Mr. Michael A. LaBerge (President, Equitable Child Maintenance and Access Society, Calgary Chapter): Yes, we both will.

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

From the Family of Men we have Mr. Silverman, and from Fathers for Fair Treatment we have Mr. David Merrell, the director.

Mr. Merrell, we'll start with you.

Mr. David Merrell (Director, Fathers for Fair Treatment): Mr. Chairman, honourable members, I apologize for my slightly confusing brief, which I'll speak on. I was only notified about this two weeks ago, after having been in correspondence with the Minister of Justice since last fall.

For the great majority of non-custodial parents, divorce presents a strain very different from that of custodial parents—the loss of actual custody of your children. The non-custodial parent must adapt to seeing their children less frequently, and often not in a schedule of their own choosing. This lessened involvement in their children's lives, combined with the lessened involvement of the children in their life, can and usually does occasion an extremely painful and continuing emotional injury, not just to the non-custodial parent but to the children as well.

One of the greatest tasks of the non-custodial parent is to try to redefine the role of the parent. Parent-child relationships after divorce are especially problematic, because the non-custodial situation has no counterpart and therefore no model within the family. The parent who moves out of the household begins a new role, for which there is no dress rehearsal and no script. A visiting relationship between the parent and child is strange by its very nature. This is only exacerbated when the custodial parent moves away with the children.

Relocation and some of the discrepancies raised when the custodial parent moves with the children have been noted. Too often the rights of the non-custodial parent are swept aside when the custodial parent relocates to start a new job or life. It is hoped that in a divorce agreement both parents have access for the good of the children. This goal should not be abandoned just because the custodial parent moves away. The children have two parents, and it is in the children's best interests that they see both parents. The logistics and high cost of access and visitation is getting in the way of this fairness.

When the divorce is settled, these issues are poorly considered, with little option to the non-custodial parent. But it happens with surprising regularity, leaving the non-custodial parent who wants to see their children with the sole responsibility of travel and accommodation to the new city as well as expenses incurred while together. In the case of the non-custodial parent wanting to have the children to their home, they again are responsible for the airfare and all the expenses during the visit. But aren't these visits for the good of the children of both parents, and shouldn't both parents be responsible?

The Supreme Court of Canada has reviewed the competing case law on whether a parent should be allowed to move a child against the wishes of the other parent. The court divided on the issue of mobility rights, much as they divided on the issue of religious rights. Analysis of the 1996 annual review of family law clearly shows there's no consistency in the court's decisions regarding petitions of a custodial parent to relocate with children, adjusting of support payments to account for visitation and access, and allowing adequate provision for maintaining access.

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Shared parenting refers to a post-divorce parenting arrangement that tries to approximate the parent-child relationship in the original two-parent home. Both parents not only have equal rights and responsibilities for the welfare and upbringing up their children, but have an active role to play in the daily routines for the children's care and development, in which both parents remain attachment figures in the children's lives. Shared parenting encompasses both shared physical caretaking, the actual day-to-day care of the children, and equal authority regarding the children's education, medical care, and religious upbringing.

As a divorced father and a support person for this group, I strongly believe that joint custody involving physical and legal custody is the best approach unless there are clear-cut cases of abuse or threat. This would certainly be best for the children, for after all, the kids aren't divorcing, it's the parents.

If good non-custodial parents with good financial resources have limited success in family court when they are opposed by adversarial former spouses who have been dubbed the primary parent, where does that leave the good parent of limited financial resources? Their children are as important to them as yours are to you.

The vast amount of child support that changes hands in this country is unconscionable, the total in the hundreds of millions. This should not be regarded as a benchmark for success for the system, but as a measure of failure, a measure of the loss of love and emotional support of countless children and a measure of the bitterness of countless parents deprived of their children but not their bills.

We would like to see the formation of an entity or body that I have termed here a family maintenance body, something totally separate and removed from the judicial system. If a family maintenance body made sure both divorced parents independently housed and nurtured their kids, two homes, there would be no need to force the transfers of huge sums of money, and I think there would not be the explosion of one-parent families, almost all of which are headed by mothers. The absence of fathers has nothing to do with ambivalence or inadequacy toward fatherhood; it reflects the prejudice against less important parents, often fathers. Many of these less important parents eventually disappear. Numerous studies document that 50% of fathers disengage from their families.

I'll just conclude with some specific recommendations.

We would support that child support needs to be fairly proportioned so that each parent can afford to provide a home for his or her children. It may mean more fiscal restraint for the parents and children, but what's more important to a child, their accommodation or continuing relations with both parents?

All divorced parents need to recognize the obligation to continue to take care of and nurture their children. Child support is not just financial support; it's emotional support and psychological support from both parents.

All couples to be married should sign an agreement that would state that in the event of divorce they would agree to equal shared joint custody and agree that no one will interfere with the other's custody rights and obligations to the children involved, and that it is in the best interests of the children now and always.

Attorneys should stop acting as hired guns. The legal profession must stop characterizing any group, men or not, as unfit or not equipped to deal with children's matters. This fabricated belief ultimately prods family court judges to exclude even more families from their fathers, thereby creating more maladjusted children in the process.

If a proposed move by a custodial parent is agreed to by the non-custodial parent and the appropriate “family maintenance body” after an existing order for child support is in place, then this level of support must be thoroughly reviewed, taking into consideration the matters noted previously, and in most cases will need to be significantly reduced.

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Could there be legislation calling for an agreement to be reached at the time of divorce, pertaining to such cases where the custodial parent relocates? Could there be set guidelines, similar to the calculations used to identify household income and expenses, to determine what might be a fair way to account for access and visitation in these types of cases?

Is it possible to set up guidelines for the custodial parent who is moving—something that would cover things like new visitation rights, as they will certainly be cut back significantly, and how these new visitation rights will be provided for, and by whom?

How would we adjudicate this? One suggestion would be a mandatory arbitration process whereby both parents would need to agree before any move. This could be achieved through a new mechanism that would be set up and overseen by others not presently associated with the current judicial establishment, as I mentioned.

Federal legislators should mandate no-fault shared custody and guarantee presumption of equality between parents following a divorce. The best interests of the children are served when they have unimpeded access to both parents.

To summarize, we feel there needs to be more thorough and clear legislation setting out mechanisms and clear guidelines that would ensure mandatory arbitration; maintenance of family integrity through shared parenting, which would include joint physical and legal custody unless there's clear abuse or threats; and the formation of a new body, the family maintenance body, as I termed it, which would oversee the development of such requirements as custody access, visitation and support—to not only implement a plan that's going to work to maintain families and contact between children and parents, but to provide ongoing counselling and to assist in the problems that arise through the development of children.

Thank you for allowing me to speak today.

The Joint Chair (Mr. Roger Gallaway): Thank you very much. You started out saying that you weren't very.... You did very well. Don't be nervous.

Mr. Silverman.

Mr. Earl Silverman (Family of Men): Thank you. I've submitted some written material, and I would request that both it and my verbal presentation are entered into the minutes.

I'm going to be very quick about the way I'm doing things. First of all, who am I? Well, I submitted a résumé of myself just to give a little idea of who I am.

Why am I here? About 10 years ago I sought counselling because my wife was physically and mentally attacking me, and I wanted to understand why this was happening to me. After numerous counsellors, I finally gave up in frustration. I felt that I was a victim of violence, but all the counsellors told me they could only offer me help when I accepted the fact that I was an abuser in denial, and then I would qualify for an anger management program. Well, I was not angry, and I could not understand why the counsellors did not hear my pain or see my bruises. I did not understand why I was considered an abuser.

I discovered that males are not considered victims of violence at the hands of women. I discovered I was not alone. I discovered I was not the only male looking for support as a victim of domestic violence. I discovered that if there was to be a support system for males, I would have to do something about it and initiate, rather than wallow in my anguish.

I started to believe that part of my healing process was being a healer, and I started out on my quest to understand the issues, to find resolve to the questions, and finally find peace in the answers.

One of the experiences I have had is that I've been accused of trying to close down women's shelters. When I looked at the woman who asked me the question, I thought about it for a quarter of a second and I said, “Ideally I'd like to live in a society that does not require women's shelters, so yes, I would like to close down women's shelters. I would like to live in a place that does not require them. Aren't you working for that end?” She looked at me and she walked away. She didn't have an answer.

What I accomplished I have broken down into five steps. I was an establishing member of the Men's Network Support Society, Calgary's first men's support group. The network offered sharing discussion groups, but did not deal with the issues. The men were victims of the system not working for them, but the network was not willing to facilitate any changes to the system.

Step two was establishing the Family of Men support society, which is Calgary's first men's support group challenging the issues, as well as offering the first Calgary men's telephone crisis line, which has been in existence for six years.

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But the Family of Men did not qualify for Revenue Canada's charitable status—a pamphlet is enclosed about the Family of Men—so step three was to assist in the establishment of Men's Educational Support Association. MESA, which received charitable status, was to act as a funding organization of Family of Men.

Step four was the establishment, with assistance, of Equitable Child Maintenance and Access Society, ECMAS. A large part of the phone calls—I brought along two log books pertaining to the phone calls we've received—were from non-custodial parents seeking improvements to their access. Following the radio talk show I did, the crisis line received many calls from people interested in starting a non-custodial parent group.

Since the main focus of the Family of Men was to deal with family violence, it was decided that ECMAS, with the assistance from ECMAS in Edmonton, would develop an ECMAS in Calgary, as well as, due to my instigation, in Lethbridge. I assisted them in getting started. They were already started and established there.

Step number five is the positive step I'm now taking, which is the establishment of Men's Health Week Awareness Foundation to raise awareness in society, especially among men, of the importance of preventative health behaviour and the early detection and treatment of health problems affecting men and their families. The information is enclosed.

I've also enclosed listings from the Calgary Public Library. I went to the library and found there were no listings for “husband abuse” or “abused husbands”. I ended up contacting the Library of Congress in Washington, D.C. They forwarded a letter, which was forwarded to the Calgary Public Library. Now there is a listing called “abused husbands” and “husband abuse”.

We've been listed under Calgary's Telus telephone directory, under the human services guide at the beginning, for the past five years. Also, a first in Canada, from what I'm led to believe, is our listing in the Calgary Street Survival Guide.

What are my recommendations? Well, my recommendations are as such. As an identified group, men are lacking some positive role models and images. There are a small portion of people who are bad, violent, bad parents, and deadbeats. This is a negative perception of men. This is a perception issue, not a gender issue. I say that because unfortunately, non-custodial mothers are placed in the same category as “men bad, fathers bad”. As Linda MacLeod said, these women take on the attributes of men.

This does not reflect on the vast majority of men and non-custodial parents, who are good people, do take care, are responsible and accountable for their actions, are good and loving parents, and want to devote their lives to the betterment of their children. Make no mistake about it: the reason why the good people of this committee are sitting here is due to the efforts of parents and grandparents wanting to see their children.

My recommendations are five:

First, there should be public awareness of support systems for divorcing parents.

Second, there should be programs for parenting after separation.

Third, there should be a twelve-month divorce process. The divorce process should not take any longer than twelve months. Some lawyers seem to drag the divorce process on for years. Their income is related to the length of the divorce. Men, women, and children need the opportunity to get on with their lives.

Fourth, there should be a performance clause that requires police enforcement of visitation orders, which are mostly excluded by lawyers. To exclude the clause makes the enforcement of visitation orders viewed as a civil matter and not enforceable by the police, who refer the problems back to the courts.

Who wins? Lawyers and the fees they collect. Who loses? The children who do not see their parents and lose the benefit of the money that's redirected to pay legal fees.

I've enclosed three letters. The final one is to the Alberta Law Society, which is requesting that lawyers' responsibilities should include the required performance clause. It's a complex problem with a simple solution.

Fifth, increase the positive image of men and families. To that end, legislation alone cannot force me to like you, but I see a positive experience in being with you and I will take it.

To that end, consider this your personal invitation to come back to Calgary on June 20 to help us celebrate Men's Health Week. The positive experience you help to create will improve the role model for all parents. The experience you will share can be brought back to your provinces to ensure that Men's Health Week becomes a national event.

Thank you very much.

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

Mr. LaBerge.

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Mr. Michael LaBerge: First of all, Mr. Chairman and Madam Chair, welcome to Calgary. I'm glad you were able to make it out here. You must have brought the nice weather too, or we've been saving it for you.

It's late in the day, and we'd like to cut to the quick pretty quickly here. We're going to focus on recommendations and changes to the Divorce Act. However, I have two requests to the committee to begin with.

First, we're requesting that our submission on our recommendations be accepted into the record as read. I presented 20 copies to the clerk.

Second, we heard from Mr. Booth, who is a government representative of the Province of Alberta, this morning about a committee that was being formed under Marlene Graham on access issues. In order to not go into details of problems with access, etc., I would also ask to have submitted a copy of our submission that we made to that particular committee, the maintenance enforcement program and child access review committee, back in September.

Senator Anne Cools: That doesn't have to be taken as read, as the clerk will receive the submission on behalf of the committee.

Mr. Michael LaBerge: Okay.

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

Mr. Michael LaBerge: ECMAS collectively represents about 1,700 families across Alberta and western Canada. The whole focus is that we are proposing specific amendments to existing statutes with solutions to redesign the process of divorce in Canada. The underlying proposal is the institution of the principle of presumptive shared parenting into the Divorce Act.

You heard from Divorced Parents' Resources this morning, and we're pleased to see that Sean has adopted the recommendations as prepared by ECMAS. Marina and I are going to focus only on the resolutions for positive proposed changes to this legislation. The first one, presumptive shared parenting, amends sections 16 and 17 of the Divorce Act regarding the order of custody that:

The court shall instil presumptive shared parenting with the right to shared and equal parenting time for children of divorce and separation. The court shall order shared parental responsibility unless the court determines on the records that shared parental responsibility is not in the best interests of the child.

Second, now that you have shared parenting as a principle in place, a shared parenting plan amends paragraph 11(1)(b) and sections 16 and 17 of the Divorce Act to require the submission of a three- to five-year shared parenting plan that's agreeable to both parents or guardians prior to the granting of a divorce or variation of a court order. Even though a couple are planning to no longer be husband and wife, they are still and forever going to be the mother and father, so they'd better start planning it.

In this plan, the parents must submit provisions for the following: residences and jurisdiction of the children; education; parental duties, individual and consultative; day-to-day decision-making; medical, dental, and emergency decisions; what they can do as individuals and together; moral, social and recreational training; access to records; time-sharing schedules with designated parenting time for each of them, holiday time, schedule flexibility, co-operation within the time schedules, telephone calls and unscheduled contact, time for the extended family with grandparents, cousins, etc.; mobility plans and alternatives so that, if you're planning for three to five years, then you should know that you're not going to be moving away next month, and if one of you does choose to do so, you have already discussed how you're going to arrange it; and last—we have to recognize that people are getting divorced—mediation or an alternative dispute-resolution mechanism to resolve further disputes without litigation.

Now that you have the principle and the process, the third part is the mandatory mediation or alternative dispute resolution. That would mean amending section 10 of the Divorce Act. This would mean establishing under a new section 6 the process of mandatory mediation or alternative dispute resolution and the preparation of a required shared-parenting plan.

The subsequent evidence of cooperation and communication in the course of assisting spouses to achieve an agreement on this shared-parenting plan would be admissible in any legal proceedings.

• 1900

For instance, in Scott v. Scott, even though it was a high-conflict divorce, we've heard through other witnesses that there's no way you can force someone to do something they don't want to do. In Scott v. Scott, the divorce was riddled with allegations of abuse, access denial, and maternal kidnapping, and custody changed to the father. They were back and forth in the court all the time, until one wise judge pulled them aside and said, plan it differently. After four years of living in two different cities and switching the custody of the child back and forth, there has been very little conflict and there has been no return to the court at all.

It can work if there's a willingness to do so and if the law is placed in front of you to do it. Canadians are typically very compliant to the laws within this country. If the basic principle of the Divorce Act is amended, as we are recommending, then ECMAS believes that acrimonious litigation would decline.

Marina.

Ms. Marina L. Forbister (Past President, Equitable Child Maintenance and Access Society, Calgary Chapter): Thanks.

I have been working as a chartered accountant in the divorce area since 1988, working with matrimonial settlements and child support settlements, and as such, have worked with a good number of lawyers in this area.

Our recommendations are to amend sections 9(1)(a) and (b), 11(1)(b), 17(1)(b), and 17(5) and (6), to ensure that every barrister or solicitor is advising his client along the lines of a parenting plan and shared parenting.

We also believe there should be establishment of a registered mediation society, governed by a professional statute, and that has an accredited family mediation course. Under such a system there would be no incentive to postpone and extend the litigation process. The best interests of the client are shifted to expediency, efficiency, and cooperation. It's a cost-effective way of settling a divorce.

We have also suggested that there should be a set legal fee for the divorce process. In most other professions there is a set fee for what you are doing, be it heart surgery, be it preparing financial statements, be it whatever professional task you're prepared to do. There would then be no motivation to delay.

Our fifth recommendation deals with the child support guidelines. Amend sections 15 and 17 of the Divorce Act and all applicable references to the child support guidelines to include the presumption of shared parenting. Under the principles of shared parenting, the guidelines would have to be amended accordingly. It would fall into place.

We'd particularly like to thank the Senate committee for obtaining the 40% ruling in the Bill C-41 issue, and we are recommending that this be extended to recognize any time spent between parents and children. It is inherent in the shared-parenting approach.

Our sixth recommendation deals with access enforcement. Although we recognize that access enforcement would likely become provincial jurisdiction, we believe there is room within the Divorce Act and within the powers of this committee to amend the Divorce Act and the Family Orders and Agreements Enforcement Assistance Act to include the enforcement of court-ordered parenting time by both parents.

We would also suggest that the committee recommend to the provinces that they establish provincial reciprocity in these areas.

We would recommend establishing an access enforcement agency in each provincial and territorial jurisdiction, comparable to the maintenance enforcement agency.

We would include the wilful denial of court-ordered parenting time as a form of child abuse.

I'd like to read a statement that was made by a justice in the Alberta Court of Queen's Bench.

The Joint Chair (Senator Landon Pearson): Excuse me. You're over your collective five minutes, and your stuff is on the record, because we accepted that it would be.

Ms. Marina Forbister: Okay, great.

The Joint Chair (Senator Landon Pearson): I think people are anxious perhaps to ask questions.

Ms. Marina Forbister: Okay. Just to wrap up, there are things that we need to look at under false allegations. We'd like to commend Senator Cools on Bill S-12. It's currently in second reading, and we feel that very directly deals with the area of false allegation.

Education and financing is covered in the paper. We'd also recommend the committee become familiar and the judges become familiar with the term “parental alienation syndrome”.

Finally, we'd like to state that the goal of ECMAS is to propose and support positive family law policies to be implemented by the year 2000. Because our children are affected, time is of the essence.

Mr. Michael LaBerge: Just one final statement. Overall, it's time to rebuild the family law system. It's broken. It's time to build a system that's based on the principles of cooperation and shared parenting instead of the current adversarial system of control and confrontation.

We thank you all very much.

• 1905

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

Mr. Forseth.

Mr. Paul Forseth: Thank you very much.

Mr. LaBerge, I was looking at page 7 of your brief under section 5 on child support guidelines. You make some very specific recommendations there. I wonder if you could give us some of the background as to why you feel the new guidelines and the operation around them are not working or not appropriate, and how that should be fixed.

Mr. Michael LaBerge: I will divert that to Marina, because Marina's a CA and she knows all about the numbers.

Senator Anne Cools: Hand it to the numbers person. The numbers person said it.

Mr. Michael LaBerge: Sure. Pass the buck.

Ms. Marina Forbister: If I may, ECMAS addressed the Senate committee on science and technology in the area of Bill C-41 in December of 1996, and most recently in March of 1998 on the implementation of the child support guidelines.

To deal with the recommendations that we state here in particular, the first one is that child support guidelines should be based on the income of both parents. That has been an area that has been much discussed when the guidelines were implemented. It was suggested that this was one set of guidelines, and it's based solely on the income of the non-custodial parent. That is an area that has been subject to a lot of controversy. It is perceived by Canadians as being unfair.

Quebec, in its wisdom as a province, has decided to adopt a set of guidelines that is based on the income of both sets of parents, the custodial and the non-custodial. One of the witnesses before the Senate committee, Mr. Epstein, testified that there were over 20 sets of guidelines, and for whatever reason, they decided to choose this particular set. The witnesses themselves who were testifying on behalf of the government have said that these guidelines aren't particularly their first choice. So we recommend that the guidelines be based on both incomes.

Second, child support guidelines should recognize the fixed costs. Whether your children are there today, tomorrow, and at their other parent's home the next day, you have to maintain a bed, you have to maintain their home, you maintain their toys and those types of things. There are certain costs that remain fixed whether you have your children one weekend or truly 50-50.

I find it interesting that again, one of the witnesses on behalf of the government brought it forth to the Senate committee that because a child over the age of 18 returned home periodically, that justified maintaining child support beyond the age of 18. I would submit that having the minor child in the home on an ongoing and regular basis is a real fixed cost of having and raising your children.

The third is that child support guidelines be based on a sliding scale for time spent with the child. I think that's something that has been recognized in the Senate, and again, we thank them for the 40%. We're suggesting that 40% has received some criticism. It's an arbitrary number that that could strictly be based on a sliding scale.

Finally, we recommend that the principle of presumptive joint parenting be law. Bill C-41 specifically took out the joint responsibility for each parent to provide financially for their children. We believe that this has to be inherent and part of the Divorce Act. It was replaced by a presumption that the custodial parent would provide for their children. We feel that is the right of the child by law.

Mr. Michael LaBerge: Just one last statement on that. On the business of sliding scale, under the premise and the presumption of shared parenting and a parenting plan, having within that plan the amount of time you're going to be spending, and with the guideline as to how much money it costs, what is the cost of actually raising the child, taking into account the cost in both homes, you are now able to deal with both of the issues, where over an extended period of time.... And it's from the negotiating standpoint of the parents who have to live with this, not by a couple of lawyers.

Mr. Paul Forseth: Okay. So you've put your mind to this before. Can you respond to the rationale as to why you feel Bill C-41 went the way it did? Obviously there was a series of arguments and rationales for the decision that was made to basically go on the ability to pay of the payer only. Can you highlight what the understanding there was? Maybe you can knock at that a little bit.

Mr. Michael LaBerge: I'm going to say something very quickly on that, and then Marina will give you the numbers.

Basically, Bill C-41 and the guidelines were consulted only by one side of the equation. Now, if you only have the foxes running the hen house and you're only going to discuss the population control of chickens with the foxes, you're going to come up with one result. That's basically what has occurred with the numbers that are out there, with the guidelines. That's why it's a contentious issue.

• 1910

As to the details of that, Marina....

Ms. Marina Forbister: The federal-provincial-territorial task force spent seven years looking at the child support guidelines, and they came up with a set of guidelines. The rationale was that at an equivalent income figure, the parents would contribute equally to the upbringing of their children, financially.

At that point they decided that if it was fair for a non-custodial parent to pay a certain amount at that dollar level, it was fair at that dollar level regardless of what the custodial parent made. So they just made that determination. I submit it's a bit of a stretch in that there's no recognition that there are still costs of maintaining a home. You haven't recognized that there are two homes to maintain; there are two sets of expenses to account for.

The second point I'd make on that is it was part of an entire revamping of the child support system, and I submit it was a tax grab. Bill C-41 was brought in in conjunction with Bill C-92, which eliminated the taxability and deductibility of child support payments, putting, we estimate, $270 million into the federal coffers; it's probably higher.

Senator Anne Cools: Could I just clarify? We were told by the department it was $600 million. So it's a huge amount of money.

Ms. Marina Forbister: Yes, a huge amount of money.

Mr. Michael LaBerge: Actually the money that is coming from the tax differential is the money that is funding the child tax credit and also the child poverty program of the government.

Secondly, as far as the numbers go, on March 17 Mr. Barry Gardiner made a presentation to the Senate social affairs, science and technology committee. He actually gave the statistics, spoke about the after-tax position that a non-custodial parent would be in, and recognized the devastation it's causing for a lot of people. We recognize that within our society as well.

The guidelines are bankrupting people without any consideration for the after-tax cashflow that has existed in that house. Take into account as well that none of the expenses associated with raising a family are accounted for in that household and you're in a financial bind.

Basically, if you have one child, 20% of your gross income as an individual will be paid to child support. For two children, according to the numbers, on average it's 30%. For three children, you're looking at 40%. All of a sudden, if you have 40% of your gross income going to another household without any consideration of any costs in your own house, it's very expensive, and it's not healthy for a child to have one of his parents in financial distress.

Ms. Marina Forbister: Incidentally on that point, the government also brought in the provision for undue hardship, which is a leading provision whereby a payer can go back and ask for reduction. With Mr. Gardiner's numbers, 1.25% of all the cases that went to court in Alberta from the time of implementation were actually allowed an undue hardship provision. It's unattainable.

Mr. Paul Forseth: I'll just ask one more.

We haven't had a lot of testimony on this particular point. One of your hunches was that the government thought it was a tax grab, that it could get more money in its coffers and then turn around and give it back to people and get political credit for it. I'm wondering if you have any other hunch as to why that particular policy choice was opted for.

Ms. Marina Forbister: It was a politically correct decision at the time, if you remember the highly publicized case of Thibaudeau.

Mr. Paul Forseth: Yes.

Ms. Marina Forbister: It was an opportunity. Lobby groups were saying “Look, we are paying money on this child support”. As a tax professional, it's the only provision I am aware of where there is a transfer from funds from one household to another household without an accompanying tax following the transfer.

Mr. Paul Forseth: Okay.

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

We'll go to Senator Jessiman. He'll be asking in the same area, I think.

Mr. Paul Forseth: Okay, but you were saying the Thibaudeau decision was the reason; maybe it was the excuse.

Ms. Marina Forbister: It was the excuse, absolutely.

Mr. Michael LaBerge: It was definitely the excuse, because actually the Supreme Court held in a previous decision that she had to pay. So it was an excuse.

• 1915

Senator Anne Cools: It really was astronomical. This one individual did not want to pay tax on over $40,000 a year of unearned income. Astronomical.

Mr. Michael LaBerge: Well, the tax is already accounted for.

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

Senator Duncan Jessiman: I'm going to direct my questions to you as well.

I want to read into the record what used to be and then read into the record what is now and tell you what was before this was even put in.

In any order previously under the Divorce Act, the court had to recognize that the spouses have a joint financial obligation to maintain the child. Okay? But then the court also had to apportion that obligation between the spouses according to their relative abilities to contribute to the performance of that obligation.

At the time Bill C-41 was put in, or was being brought before the Senate, neither one of those clauses were in the guidelines or in the act. They deleted them. Thanks to Senator Cools, we were able to get that put back into the act. It's subsection 26(2). The guidelines shall be based on the principle that spouses have a joint financial obligation to maintain the children of the marriage in accordance with their relative abilities to contribute to the performance of their obligation.

I'm not certain that the guidelines comply with that. They certainly argue that they do. But what they haven't said to the courts.... They're arguing, and I think the courts have accepted it.... Some of the experts who are in favour of having two incomes can't understand the method they have taken. It's not a complete exception of the rule, it's true. It's about one of twenty different kinds of guidelines. But it isn't the only place where single.... It makes it easier because it's easier to look at. You don't have to do a calculation. It just says how many children are there, where do you live, and how much do you make? You just go to a certain page. You're in Manitoba, three children, you make $100,000, you go there and that's what you pay. If you have both sets, there's more calculation required.

Certainly psychologically, you're perfectly right. It's too bad we can't get back into the act that the guidelines should set out that they apportion the obligation between the spouses according to their relative abilities to contribute. If we could get that back into the act, then the guidelines would have to be set up in a way that's similar to what Quebec has done.

Ms. Marina Forbister: One further comment on that, Senator, is that one of the other bases was that bringing in these guidelines would simplify the system and would reduce litigation. I submit to the committee that this has not happened, because in addition to the guidelines, there's also the section 7 expenses, which are considered to be add-ons. So you still get back to the difficulty. You're paying a base amount of child support, and then on top of that you pay an apportioned additional amount. It has been increasing.

Senator Duncan Jessiman: And some of those witnesses before us thought that some of those add-ons, as you call them—the special expenses, I think they're referred to—are really built into the base of the guidelines. So you're getting hit twice.

Ms. Marina Forbister: That's correct.

Senator Duncan Jessiman: I don't know if any court is going to look into that, but maybe they will.

It is too bad that, even if it's fair—and I don't think it's fair—I think both—

Ms. Marina Forbister: There has to be a perception of fairness as well as the absolute fairness.

Mr. Michael LaBerge: There is the presumption and that's all.

StatsCan numbers are almost identical to the guideline numbers. But the guidelines with StatsCan numbers speak about what the total cost of raising a child is. What they've done with the guidelines numbers is the same number is there, but they're putting it on only one of the parents, with the presumption that the other parent is contributing proportionately. It's basically one person paying for two, the way they've worked it.

Senator Anne Cools: It's a novel concept. Pay your mortgage with a presumption. Say to your mortgage owner, I presume to be paying.

The Joint Chair (Senator Landon Pearson): Are there any other questions? Because I have a very brief question.

• 1920

Senator Anne Cools: Just very briefly, I think we should thank the witnesses for what I thought was excellent testimony. In particular, I'd like to thank LaBerge and Forbister.

Also, because so much of their submission, with the shortage of time, was taken as read, I direct members' minds in particular to page eight and two very excellent quotations by Madam Justice Trussler. In particular, I direct you to the quotation where Madam Justice Trussler upholds the principle, and I quote her, “to be denied the right of access by other parents, such abuse or neglect is in itself a form of child abuse”. I find that an excellent quotation on the case they brought forth. Also, the quotation following I would alert individuals to.

I'd also very much like to thank Marina and Mr. LaBerge for their recommendation number six, on false allegations, because what has not come clear yet before the committee is that most of these false allegations elude charges of perjury because of the rather unique and devious way in which they are made within court proceedings. So I commend them that they spoke to that directly. Thank you.

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

Senator Mabel DeWare: I just wanted to thank Mr. Merrell and Mr. Silverman for coming before the committee. I thought Mr. Merrell's statement that kids are not divorcing, it's parents, should really be taken into serious consideration. We get off track once in a while.

Mr. Silverman, I thank you for recognizing that men do need a role model. I think you've been one in your field, and I appreciate that.

Mr. Earl Silverman: Thank you.

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

I just have a tiny question with respect to one of your recommendations on an access enforcement agency. Some people have brought to us the problem of the opposite of that problem. It's not the problem of those who have been denied access, it's the problem of people not exercising their access. Would you see this enforcement agency operating in both ways?

Ms. Marina Forbister: I don't know how you would enforce someone who doesn't.... I cannot personally imagine nor can I imagine any of our members not wanting to spend time with their children. That is totally beyond my thought process. I am not sure how you would make someone.... I would have to wonder if that would be in the child's best interest to say to somebody they have to take this child. I would submit that would be dealt with in the financial end of it. If you are not going to accept the emotional responsibility for your child, you will have zero percent parenting time and therefore there will be a financial disincentive. I cannot imagine how you would force somebody to take a child—

The Joint Chair (Senator Landon Pearson): I agree it is a difficult question, but it has been something that has been raised. There have been a few cases, thank God only a few cases, in which nobody wants the child.

Ms. Marina Forbister: It has been a problem.

Mr. Michael LaBerge: Senator Pearson, I think it is a concern. However, we have to look at what is actually the present environment in which people are operating and why would somebody not want to.

There is a statement in here by Madam Trussler in that same case, speaking about the access and wanting to build a relationship:

I expect many non-custodial parents give up trying to see their children because they are disheartened by the difficulties in establishing a relationship or do not have the financial resources to persevere through the courts in an attempt to develop a relationship with their children.

Our present system is broken, because that is what they are dealing with. If we fix the system we probably won't have those types of cases. If we have a parenting plan then that will come out at the beginning. If people aren't going to abide by the parenting plan, you go through the arbitrator. And if that doesn't work you have the basis legally to say you don't deserve it.

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

We now have the last witnesses for the afternoon, who are appearing as individuals: Babatunde Agbi, Rob Huston, and Stephen Jones.

Mr. Jones, do you wish to start?

Mr. Stephen Jones (Individual Presentation): Thank you for hearing me this afternoon.

• 1925

I've been divorced for 11 years, and there are two children of the marriage, now aged 17 and 13, for whom my wife was granted full custody and I was given reasonable access. Child support payments commenced immediately and I saw my children on a regular basis. However, the situation changed in 1994. My daughter was very unhappy in the home of her mother and common-law husband and ran away twice, once to her grandparents, once to me. She stayed one week with me, telling me she now wished to make her home with me. I telephoned my ex-wife asking that we meet to discuss our daughter's unhappiness. Two hours before the arranged meeting time, she cancelled out, saying she was too busy. The next day, without warning, she sent the police to my house, who forcefully removed my very tearful and unwilling daughter. The following morning I consulted a lawyer regarding me gaining custody of both my children.

This was my introduction into the Canadian family courts, which are indeed unjust. There is evident gender bias against the fathers and the best interests of the children are most certainly not given first priority.

My ex-wife, in court documents, falsely accused me and my ex-girlfriend of homosexuality and immorality, and also claimed that I was trying to influence my nine-year-old son in the same direction. Is it any wonder I have not seen my children now in over three years, being afraid to do so? What else would my ex-wife lie about under oath?

At the same time these monstrous allegations were being used to blacken me in the eyes of the court, my ex-wife began action to increase my child support payments to $1,600 a month, a bankrupting amount to a man bringing home $1,000 every two weeks. This action also contained false and unsupported statements of her expenses. My ex-wife retained full custody of both children. I was given visitation rights every second weekend and ordered to pay $1,250.

The Joint Chair (Senator Landon Pearson): Excuse me just for a moment. If you get into any kinds of allegations, we need the case reference.

Mr. Stephen Jones: I turned everything in.

The Joint Chair (Senator Landon Pearson): But it needs to go on the record.

Mr. Stephen Jones: Okay. I've turned everything in. I'll try to find it.

The Joint Chair (Senator Landon Pearson): That's not always on the record, unless you—

Senator Duncan Jessiman: Do you have the name of the case?

The Joint Chair (Senator Landon Pearson): Have you got the name of the case?

Mr. Stephen Jones: Jones v. Jones.

Senator Duncan Jessiman: And the date—

The Joint Chair (Senator Landon Pearson): And the date, and the number.

Mr. Stephen Jones: I have to give you all that?

Senator Duncan Jessiman: We can't find it otherwise.

Mr. Stephen Jones: Those allegations.

Senator Duncan Jessiman: You don't have to do it today.

Mr. Stephen Jones: It was action number 480160161 from 1994.

Senator Duncan Jessiman: And where is that? In Alberta?

Mr. Stephen Jones: In Calgary, the Court of Queen's Bench in Calgary.

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

Senator Duncan Jessiman: Okay, continue.

Mr. Stephen Jones: Despite these payments, my ex-wife for the past three years has had civil courts actions against her in excess of $16,000 for non-payment of rent and non-payment of mortgage. I wonder how this is possible while she also holds a job.

I ask the committee, has the court acted in the best interests of my children? They are alienated from me and from my extended family, used as pawns in a cruel and vindictive game played by their mother for control and money, living in an unhappy environment with questionable parental supervision and have been evicted from one home and foreclosed on in a second. Has the court acted in the best interests of my ex-wife by awarding her such a large portion of my income with no accountability, leaving her now lumbered with excessive debt? Has the court acted in my best interests?

We've talked a lot this afternoon about the child support guidelines and the implementation of them and what the problems are with them. Last summer I went to court to obtain these child support guidelines and I was refused by the judge. The Court of Queen's Bench judge refused me, stating that the implementation of the guidelines themselves does not constitute a change in circumstance. She then awarded my ex-wife $400 damages. I understood these guidelines to be mandatory.

Thank you.

The Joint Chair (Senator Landon Pearson): Mr. Huston.

Mr. Rob Huston (Individual Presentation): Thank you for allowing me to be here. I'd like my verbal and written information to be registered.

What I want to say is child maintenance is going to happen on Friday. Friday is May 1. Also, right now, I have child maintenance. I maintain the child, maintain involvement with the child. You talk about maintenance and you only talk about the financial involvement, but I have physical, mental, and spiritual. I have everything. I'm very happy. I'm an unmarried father.

• 1930

In 1992 I went through for 40 days a year for access. With one free mediation session with Kent Taylor, who was here earlier today, I went from 40 days to 168 days. I'm very happy with the situation as it is now. I do believe in keeping the money in the broken family. I do not want to see donations go to the lawyers' pockets, and that is one of the biggest things that has hurt in my situation.

Over the years I have been involved with the parenting after separation program in Edmonton. Annette Bruce, who's in the Orphaned Grandparents Association, just told me we were primary stakeholders in the program because we had an invested interest. The other thing was there were other people up there. We were at the first program back on February 25, 1993, in Edmonton. I've taken the program many times.

I wanted to say I talked to Kent Taylor and I asked him, and he wrote it down, about when Mr. Booth was here earlier today; he was asked a couple of questions and I asked for clarification. Parenting after separation is mandatory under judges' practice now. The rules of the Court of Queen's Bench have been amended to incorporate mandatory parenting after a separation. This is what Kent wrote down, and I asked if I could use his name, so I have.

One of the things I've really enjoyed is in the beginning there was conflict, so with mediation I was able to pick up and drop off from a safe place. What I mean by a safe place is from day care. I picked up Friday after day care, dropped off to day care on Monday, and on holidays Thursday and Tuesday. We worked on a parenting program that was six out of fourteen days plus. It has been working out. My ex got transferred down here two years ago next month, and it's turned out even better. We work together as a team. My maintenance is reasonable, which I'm very happy about. I've been able to share other expenses and she is sharing other expenses, so it's as a team. I'm very happy with this, and I'd like to see that....

Look at all the great sports players, gymnastics, golfers, they all have coaches and mentors who helped them. I didn't have any. I went searching, and through my own success—and I believe it's success and it's for the child.... Kent Taylor, Annette Bruce from the Orphaned Grandparents Association, and Ron Kuban were very strong in helping me when things were hard for me. Ron Kuban, who I talked about, hasn't seen his children in seven and a half years, so I've heard many of the stories you've heard today. I would just like to see some success.

It's turned out that I'm proud of it. I've been promoting parenting after separation. Why? Because we need some changes, and when we get the changes through the mindset of other parents.... Up in Edmonton last summer I found out that a couple of parents went through this program and they dropped the court battle. They worked it out together. I have my certificate, and Kent Taylor and Madam Justice Tressler signed it. I asked for it and I got it.

I also wanted to say that in Communication in Marriage and Divorce, from Leeds, England, there's a lot of good information. I gave Senator Mabel DeWare a copy of that, and I gave Senator Anne Cools a copy of that about a year and half to two years ago. We need some changes. We need forward-focused information. I've been able to do a lot; I've learned a lot.

• 1935

My lawyer told me at the beginning that we would hold off on maintenance. So I held off on maintenance for a few months at the very beginning, because I thought that was the way it happened. I started some of the problems in the relationship, and the reason we held it off is that access was denied.

Every month I've paid, and I'm happy to say that. I owe a lot to our son, because without him it wouldn't be like this. And I owe a lot to my ex for allowing it to be like that, because as I keep on saying, it's working well. I have dreams and thoughts that I never thought I would ever have. I never expected to be at my son's wedding when he got married, because I didn't want to have conflict.

I do believe we will never have a problem. If we ever do, we will work through it together. Why can't we copy other people's successes and give other parents that?

On education, I'm proud to say my son's in grade seven, and from kindergarten to grade six, I've only missed three field trips, and that's including three years of day care before that. I'm proud to be like that. I was an involved parent before any of this happened; I've been an involved parent since.

Please.... This is supposed to be finished by November. I'd love to see something happen at Christmas for all those parents. It's a hardship to see other parents and listen to other kids' stories.

One last thing. I also gave this program and helped friends with their parenting plans. Also, our son's day care helps parents because of this program, and sent them to it when it wasn't mandatory. And down here last year, the teachers at the school where our son went to grade six suggested it to parents. So I'm looking forward to a lot of good changes for all of us.

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

Mr. Agbi.

Mr. Babatunde Agbi (Individual Presentation): Thank you, Madam Chairman.

My name is Babatunde Agbi. I'm 53 years old. I immigrated to Canada in 1969 and became a citizen in 1974. I've been a resident of Calgary Centre since 1983 and have resided at my present address since 1986. I'm a university-educated, self-employed businessman and president and majority shareholder of a company that controls a publicly held corporation.

The reason for my submission and request to appear as a witness is simply that I want to address a very small part of the current act, namely that of child access.

I'm here to add to some of what you've already heard from other witnesses about the access portion of the child custody and access battle. I will share with you my personal experience with this matter, because I think the example I'm about to cite will encourage you, if nothing else, to understand that access provisions within the current guidelines are inadequate.

After several years of debate on the issue of child support, it would appear that the country-wide maintenance enforcement program is working. Regardless of the numbers or proportion, the number of non-custodial parents who are in default of their payments has been significantly reduced as a result of the MEP program, or at least that's what I hope the case is.

However, it appears that the MEP has been lumped in with women's issues in the process. The real reason for maintenance payments has been lost, that reason being the welfare of children for whom the maintenance is being made.

As you will see from the case of my personal experience, the need for an implementation of a child access enforcement agency in parallel to the existing maintenance enforcement program is long overdue. It is overdue because the issue of child custody and support payments is not a gender issue; it is a child issue. Above all, a well-maintained and well-administered access enforcement program will go a long way to achieving the objective of this committee, namely to assess the need for a child-centred approach to family law policies and practices.

• 1940

Parenthetically, it is my view that the system is not only broken, it is bad and needs to be replaced. It cannot be fixed, but given the constraints there is a need to fix the access portion of the child custody and maintenance program.

It's my view that the maintenance enforcement program has been an effective tool in ensuring that non-custodial parents meet their financial obligations to their children. It is arguable that the statutory levels of financial support do more than defray the actual costs of being a single parent in the current economic environment. Even so, the quasi-judicial powers conferred on MEP provide a sufficient deterrent to ensure compliance by most non-custodial parents. However, without a pilot system of access enforcement MEP degenerates merely to serving the financial needs of custodial parents, and perhaps their vindictive needs as well.

The standing joke between my son and me is that I am the bank account in Calgary. I have serious doubts that this is the type of message I wish to convey to my son. I don't think anyone on this committee wishes to have their child think of them as merely a bank account.

Prevailing social mores have long recognized the benefit to a child of having adequate access to both parents. I was fortunate; I did have access to both my parents. Historically, these mores have been supported by a number of social studies in several social science disciplines. There is justification for ensuring or enforcing access visitation rights with both parents. Of course, if somebody does not wish to have access to their child, it's their problem. The large majority of parents I know of wish to have access to their child, and the children wish to have access to their parents.

With that as background I am going to share with you my particular experiences, perhaps as a case study.

My son was born in Calgary in February 1987. At the time the mother and I were not married, but subsequently we took all the legal steps to make sure the child was legitimate. Barely eight months into the child's life, he was kidnapped by his mother and taken to Toronto.

That started a legal dispute between the mother and myself, and it was a contest about jurisdiction. The child was born in Alberta, so we claimed that Alberta was the jurisdiction, and for a while that worked.

I brought an action to enforce access and support payments and access visits. The orders were given in Ontario as well as in Alberta, and for the most part they were disobeyed.

As part of the legal battle, and most of the other witnesses have alluded to this, one of the lawyers brought up the issue of paternity, which the judge found a little bit ludicrous. We fought that and it was resolved.

Eventually, the issue of jurisdiction, physical custody, and access were brought to what would have passed for a conclusion in May 1995 in a Toronto courthouse. After five years in Ontario, it seemed logical that Ontario would become the jurisdiction for the child.

At the conclusion of the May 1995 court hearing, the litigation had cost me approximately $83,000. That's enough money to send my child to any university in this world that he chooses to go to.

Operating under the existing adversarial rules, a very wise Judge Brownstone, and I'll give you the court file, D-00899/87, was infuriated at what had happened prior to my appearing before him in his courthouse. So he sat down and lectured both parents on how we should focus on the needs of the child. To be sure that his orders were followed he hand-wrote the order before he left it for the lawyers to transcribe.

In summary, he changed the jurisdiction to Ontario. He affirmed the joint custody and guardianship that were previously issued in Alberta. With my consent, physical custody was granted to my son's mother. He affirmed the voluntary orders made in Alberta in respect of child support payments, which at least I was advised exceeded the guidelines in both jurisdictions. He awarded, retroactively, school fees that I had withheld, because I didn't have enough access.

And prior to that court date, I had access to my son on a sporadic basis, but in hindsight, it was because his mother wanted a passport for him, which I had the right to withhold.

• 1945

The Joint Chair (Senator Landon Pearson): Can you wrap it up?

Mr. Babatunde Agbi: I'm almost done.

The Joint Chair (Senator Landon Pearson): Okay...the recommendations? We do have it on record.

Mr. Babatunde Agbi: My recommendation is very simple, and I'm focusing on the one issue. If there is a maintenance enforcement program and it works effectively, there should be an access enforcement program. The absence of an access enforcement program, in my view, is an unfortunate oversight that must and should be corrected as soon as possible. That is the basis of my presentation.

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

Mr. Forseth.

Mr. Paul Forseth: Mr. Jones, you were talking about going to court on an application to vary?

Mr. Stephen Jones: Yes, I brought an application to vary.

Mr. Paul Forseth: The reason was because your maintenance payments were no longer tax deductible. What was the basis of the application to vary?

Mr. Stephen Jones: I'm paying $1,278.75 a month right now. I brought an application for the guidelines. The guideline amount for me said $597, non-taxable.

Mr. Paul Forseth: Before you went to court did you attempt any kind of mediation or having a variance done by consent?

Mr. Stephen Jones: No.

Mr. Paul Forseth: I assume, then, that you figured that the other side would not consent to going along with the guidelines. You just went ahead and made an application.

Mr. Stephen Jones: Correct. I saw a lawyer.

Mr. Paul Forseth: All right. We're dealing with what level here, family court level or superior—

Mr. Stephen Jones: The Court of Queen's Bench.

Mr. Paul Forseth: The original maintenance order, then, is for how many kids?

Mr. Stephen Jones: Two children.

Mr. Paul Forseth: Is there a spouse maintenance in there as well?

Mr. Stephen Jones: No.

Mr. Paul Forseth: This was a Supreme Court order. You made an application to vary based on just the guidelines themselves. Did you have any other collateral information, such as a changing ability to pay or a changing demonstrated need on the outside?

Mr. Stephen Jones: Yes. We showed that my income had dropped, and the law changed. It was upon those two guidelines that we applied for a variance.

Mr. Paul Forseth: As a result of that, what did the judge say?

Mr. Stephen Jones: The judge said “The implementation of the guidelines themselves does not constitute a change in circumstance, in my opinion.” She refused my application and awarded $400 in damages against me.

Mr. Paul Forseth: Not damages, but court costs.

Mr. Stephen Jones: Yes, court costs.

Mr. Paul Forseth: So there wasn't any other evidence acknowledged about your ability to pay.

You said your income had gone down, so your ability to pay the $1,200...that was also part of your evidence. You're just saying that was ignored?

Mr. Stephen Jones: Yes. Rather than looking at the income on my income tax assessment form for the previous year, she assumed what my income would be at the end of the year, pushing me up the guideline amount. Then she started adding on section 7 extras: health care, Blue Cross plan, steroid inhaler. There wasn't even a bill or a prescription for the steroid inhaler. She said “Look at that, if we take away his tax breaks, all things just about remain the same to him”, and she refused to award me the law.

Mr. Paul Forseth: Could you just give an indication about the income situation in the other household?

Mr. Stephen Jones: Actually, I gave a very detailed description of everything included in the case to the committee on social care, science and technology. In this application my ex-wife pleaded undue hardship, although she gave no information at all to make an undue hardship claim. Her common-law boyfriend is the same age as I am. He produced an income tax return and turned it in as evidence. It said he made $1,951 for an entire year.

• 1950

It's a small world, and I knew people who knew him and they told me where he was working. I went to see his employers and showed them what he had turned in, showed what was on the affidavits. They were disgusted. I turned in his income. The judge didn't touch on it at all.

Mr. Paul Forseth: Okay. Does the child's mother work at all?

Mr. Stephen Jones: Yes, she has employment.

Mr. Paul Forseth: Okay, I take it that all this is a matter of record. We wanted to flesh out some of the extra details of how the system does go wrong. Thank you.

The Joint Chair (Senator Landon Pearson): I'd like to thank the witnesses for coming before the committee and say to Rob how nice it is sometimes to have a positive witness come before our committee, because we hope there are some cases that are working out there. Thanks, Rob.

Mr. Rob Huston: Thank you.

The Joint Chair (Mr. Roger Gallaway): Because this is our last few minutes in Calgary before we leave, I want to say to our witnesses thank you, but I also speak to those in the audience, because I see a number of them who I know have been here all day, and we do appreciate your interest in the work of this committee.

As you know, this is an ongoing process, and our work will probably not be completed—I can't speak with any great precision—on or before November 30 of this year, when our report is to be completed. I may be too optimistic in thinking it will be done prior to that date.

As you are aware, we are going to be travelling more, and we hope to return to Alberta, to Edmonton, later in May. Once again, thank you for coming.

This committee now stands adjourned until 9.30 tomorrow morning in Regina.