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]

Thursday, April 30, 1998

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[English]

The Joint Chair (Mr. Roger Gallaway (Sarnia—Lambton, Lib.)): I wonder if we could come to order.

On behalf of this committee, in its twenty-first meeting, I'm pleased to say we're in Regina today. This is a special committee of the Senate and the House of Commons that was constituted to examine the matter of custody and access under the Divorce Act.

There are a couple of things this morning.

We're very pleased that Mr. Dick Proctor, a member of Parliament, has joined us this morning. Welcome, Dick.

I would seek the consent of the committee members to allow the CBC to film some of the proceedings this morning. Is there consent on that?

Some hon. members: Agreed.

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

It being just past 9.30 a.m., I would ask our first witness to come forward. From the National Shared Parenting Association, we have Mr. Leonard Andrychuk.

Good morning and welcome.

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Mr. Leonard D. Andrychuk (National Shared Parenting Association): Good morning.

The Joint Chair (Mr. Roger Gallaway): Mr. Andrychuk, I don't know if you've seen the operations of the committee, but the way we work is we ask you to make your submission, and we'd ask you to limit it to about five minutes, and then it will be followed by a round of questions.

I want to say also—and I neglected to say this earlier—to the people in the audience, this is a proceeding of the Parliament of Canada and of the Senate of Canada. This is not a town hall meeting. Therefore we do not allow talking and we do not allow applause and we do not want reactions during the day to what people may say. You may agree with people or you may disagree with people, but you have to keep that to yourself in here. We can't allow reactions.

Please go ahead, Mr. Andrychuk.

Mr. Leonard Andrychuk: Thank you, Mr. Chair and honourable members.

You have already heard, I know, from other members of the NSPA, the National Shared Parenting Association, regarding its focus on providing shared parenting solutions to parents after divorce. I'm not going to dwell further on that, subject to any questions you have. It is our hope today to bring some new perspectives to some of the issues about which you've heard evidence to date.

The importance to the emotional well-being and self-esteem of children of a healthy and meaningful relationship with both parents after divorce is beyond dispute. We know both mothers and fathers play a very important role in the nurturing, socialization, and education of children, and as a result, their continuing in that role to the greatest extent possible after divorce is to be encouraged. We know all that; that's a given.

It's so well recognized that article 9 of the UN Convention on the Rights of the Child requires member states, which includes Canada, to ensure personal relations and direct contact with both parents on a regular basis.

What is needed then, and the work of this committee, I think, is to find a way to provide a supportive pathway to maintain ongoing relationships with both parents after divorce. The current system of custody and access falls far short of meeting that objective, and in fact, as you've heard, in many cases encourages exactly the opposite result.

Something must be amiss, because the recent Stats Can report, Growing Up in Canada, proved that high rates of criminal conduct and poor academic performance—very key indicators of emotional difficulty and low self-esteem amongst young people—exist amongst the children of divorce. That in itself is proof that something is wrong with the current system.

So why, after so much has changed in the relationship between children and their fathers, do we have a situation where, in the majority of cases, children have a minimal relationship with their fathers after divorce?

You've heard evidence on the ill effects of the adversarial system, the legal notions of custody and access, parent alienation, access denial, and the lack in particular of any effective voice on the part of children. This is a direct violation by Canada of its obligations under article 12 of the UN Convention. You have also heard about the imbalance of the present system, which discourages negotiated resolution in the interests of children. I'm not going to elaborate on those specific issues. I'll leave those to questions.

In trying to identify the key obstacle to the maintenance of ongoing relationships after divorce, I can't help but come to the conclusion that the primary obstacle is the application of the primary caregiver presumption.

We have not yet recognized as a society, because discrimination is sometimes very subtle, that gender role stereotyping and systemic discrimination are reflected in the traditional custody and access arrangement, and especially in the application of the primary caregiver presumption.

We recognized a while ago that the traditional role of women in a marriage—and the Supreme Court of Canada has recognized this—has disadvantaged women economically during marriage and after divorce. We've moved in, and there have been many changes in the law to address that issue. But we do not yet seem to recognize that the stereotypical role of men in a marriage disadvantages them after divorce because of the court's presumption. In short, where fathers are involved, rather than the state attempting to remedy the disadvantage, we have a state-imposed disadvantage.

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The argument usually made in favour of the presumption is that it provides continuity in the children's lives. In short, when you think about it, the courts have sacrificed continuity of the children's critical relationship with a parent for continuity in terms of who cooks their meals and cleans their clothes. And I don't mean to devalue those activities, and I'm not going to try to compare the value of those activities to the value of the bread-winning role. However, I'm going to ask where are the studies that show this is the right choice? An increase in the amount of physical care given by a parent after divorce and a reduction by the other is a physical adjustment. Is it so much more disruptive than the near total disruption of an emotional relationship with a parent?

We've been applying this presumption for years, and the Statistics Canada report and other studies showing the harmful impact of divorce on children prove that we've been making the wrong choice.

So first and foremost among the NSPA's recommendation is the abolition of that presumption and of the notions of custody and access. They should be replaced, and you've heard this, with a statutory presumption that the child's right to be parented—and it is the child's right—by both parents, which exists before divorce, continues after divorce, and that parenting arrangements both in terms of quantity of time and decision-making are to be as near equal as possible. We view this as levelling the playing field and giving no one party an advantage in the subsequent proceedings, and encouraging discourse and discussion of the children's best interests.

Among the many other issues, I would also like to deal specifically for a moment with the issue of allegations of abuse. I think in many cases the discussion before you of domestic abuse is a bit of a diversion and may have the unfortunate result of punishing the many for the sins of the few. And it does beg the question that if we are going to talk about abuse, why aren't we talking about the question of who's abusing the children? There are statistics on that as well. If abuse is relevant to the work of this committee, then the most relevant abuse statistic is the statistic relating to who's abusing children. You may already have heard evidence on that, and I'm not going to dwell further on it, because statistics show that, at best, it's roughly evenly split as between the genders.

I think that's all largely—I shouldn't say totally—relevant, but I think it diverts us from attempting to reach solutions for the majority of cases.

False allegations, in our view, are made because they are a low-risk strategy with a high chance of success when used against men. The ultimate problem here is that in the family courts there is no discernible standard of proof. The mud on the wall theory is used. You throw enough and you hope some sticks.

In the end, what you hope for is that you create a suspicion on the part of the judge, so that even if the judge doesn't believe the allegations there is a concern that if any of them are true the decision the judge makes may be harmful to the children. In other words, the mere allegation, the mere suspicion, in a family court becomes enough. And they rarely ever get to the bottom of the question because there's no standard of proof.

On the other hand, if it is alleged that the allegation is false, charges are laid. The standard of proof applied is the criminal standard, proof beyond a reasonable doubt. Just as it's hard to prove allegations of abuse with no corroborating evidence, it's hard to prove that they're false with no corroborating evidence, especially under such a high standard of proof. So it's a low-risk strategy.

The Joint Chair (Mr. Roger Gallaway): I'm dorry to stop you. Are you close to the end?

Mr. Leonard Andrychuk: I am close to the end.

The Joint Chair (Mr. Roger Gallaway): Fine, because we're a little over time.

Mr. Leonard Andrychuk: Sorry.

Those who doubt the seriousness of the issue of false allegation should read the 1996 decision under the Saskatchewan Court of Queen's Bench in which Madam Justice Wedge, a family court judge, refers to false allegations of sexual abuse as the weapon of choice in custody disputes.

So this is a real problem to deal with, and we want to suggest what at first seems like a radical proposal. I don't think we've recognized that there are structures in place and systems to deal with abuse. Social services has the power to issue protection orders; the criminal courts exists. Our suggestion is to leave the matter of abuse out of the family courts so that they will act only on proof of a conviction or proof that social services has acted. If people believe there's a problem with these other systems, the criminal courts, the police or social services, let's deal with it. Let's fix it over there. But let's take the issue out of the family courts.

So as a structural and procedural matter, that is one of our suggestions.

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The last point I'd like to make on this is if we do that, a party making false allegations would be left to the appropriate authorities also, and would have no fear that, unless a conviction is proved, their making the allegation can affect the parenting arrangement.

So having gone over time, I do have some other recommendations that you may wish to ask me about, but those are the main points I wanted to make to this committee.

The Joint Chair (Mr. Roger Gallaway): Thank you very much. It's very quiet. The first thing in the morning they're very quiet.

Senator Jessiman will start.

Senator Duncan J. Jessiman (Manitoba, PC): All right, I'll start off. Can you tell us what those other recommendations are? We'll get that on the record.

Mr. Leonard Andrychuk: It's first and foremost the legislated abolition of custody and access notions and implementation of the shared parenting concept and presumption.

Secondly, we recommend the effective involvement of children—and that is a difficult issue—at every stage of the process, as the UN charter requires, and you'll hear from the children's advocate this afternoon on that.

Third, we recommend a provision that if the parties do not, within a specified period time after filing a petition, file a shared parenting agreement, they will be required to undertake certain steps, including, first, mandatory post-divorce education—and you've heard about that.

We would think at least one counselling session, perhaps two hours in length, for each parent on a one-to-one basis, where they could talk about effective parenting post-divorce, would be helpful. In addition, it would provide, in cases where abuse is a real issue, a confidential way for a person concerned about abuse to raise the issue so they can be referred very early to the appropriate authority, which I mentioned earlier.

We should also consider early involvement of a properly trained and unbiased social worker to work with the parties in a relatively informal way to try to work out an agreement, and if that fails, I suppose, then do a custody and access type of report on a more involved and informed basis. If none of that results in an agreement, there should be mandatory mediation. We don't accept the argument that you can't mandate mediation. We think an effective mediator can break the ice in many cases, and we would certainly advocate that as a way of reaching an agreement.

I think, in addition, education, training of judges and lawyers to make them a bit more sensitive to both sides of the issue, would be helpful.

I'm a lawyer by background. I perceive that one of the problems here is that the lawyers involved in a family case have been trained to do battle. They've been trained to win. That's what they know. That's also what the courts know. Courts know about finding fault, and if you invite them to try to find fault, they're only too happy to participate, because that's what they know. And when you think about it, the problem lawyers have is that they owe an ethical duty to the court, to their client, to other lawyers and to everyone but the child involved in the process. And that's the fundamental problem.

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

Mr. Paul Forseth (New Westminster—Coquitlam—Burnaby, Ref.): Thank you very much, and welcome to the committee today.

I see that on page 13 of your summary of recommendations, you say: “Mandatory mediation, with sanctions for those who deliberately refuse to cooperate during mediation”.

That's a most interesting recommendation. Generally, those in the mediation business don't particularly like to involve compulsion of any kind, and we've heard a lot of testimony that where there is even the hint of violence, or whatever, then mandatory mediation is just stroked off. It's almost used as if violence is the trump card that you throw on the table to just put a spanner in their works and therefore you minimize your desire or your responsibility to involve yourself in a responsible dispute settlement, especially engaging in some kind of mediation. If you can just say there's violence and therefore it strokes mediation right off the deck, it's almost used as a trump card. That's some of the testimony we've heard.

Also, coming from the profession of mediators, certainly the body of knowledge suggests you need to have somewhat of a balance of power, that the mediators themselves have to be professional in order to recognize imbalances and control this; and that mediation, if it's going to go anywhere, has to have some basic goodwill whereby the individuals are at least searching for some kind of equitable solution. Did you both address and hear those kinds of concerns when you wrapped your mind around this issue of mandatory mediation?

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Mr. Leonard Andrychuk: We've obviously given thought to those concerns. There's no question that they're difficult issues.

I guess my view, first of all, would be that if what we suggest in the first part of the process, the education and the counselling, is effective in a large number of cases, you'll encourage cooperation among a greater number of people, which can help break the ice and make mediation work.

In my recommendation about sanctions I didn't really mean to say that the mediator would impose sanctions. I'm not yet convinced that it's appropriate. But perhaps the mediator could issue a report, as labour mediators do sometimes, saying where the parties ended up and where the points of disagreement were, which would be of assistance to any board or panel or decision-maker further in the process.

I have not yet in my own mind resolved how to deal with the issue of allegations of abuse at that stage, again because it's so difficult to know whether they are true or not.

Mr. Paul Forseth: I'm wondering if, in points two and three, you're somewhat confusing the issues of mediation process with some of the evidence we've heard about mandatory counselling, which is in effect almost an education module that may consist of the parties having to produce some kind of certificate that they'd at least gone through this awareness—heard a series of lectures, seen a couple of videotapes, and had some discussions about the implications of what they're doing, especially for children.

In some jurisdictions, they are requiring that you can't have your court process issued until you show a certificate that you've at least done that module of the body of knowledge that you should be aware of.

The evidence we've heard is that at least going through that, not even being particularly worried about the content, the mere fact that there was some other process was in itself therapeutic and helpful and produced quite a different attitude later on. This kind of education module or awareness process or whatever is different from a specific mediation process.

Mr. Leonard Andrychuk: Yes, they are very different things, and that's why I think the first stage has to be an education program that, we believe, if properly structured and sufficiently in depth, can change a lot of people's minds about their behaviour after the separation.

So I do separate them in my mind. The first stage would be education and counselling, and then mediation. I do recognize that mediation is a different process.

Mr. Paul Forseth: Thank you.

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

Mr. Dick Proctor (Palliser, NDP): Thanks very much.

Good morning, Mr. Andrychuk. I have three diverse questions.

First, can you give us a little bit of background on the National Shared Parenting Association? For example, how large an organization is it, and when was it formed?

You mentioned the need to sensitize lawyers and judges to the process. You've indicated that you're a lawyer, although not a divorce lawyer, I see. My question is, are there organizations like the Canadian Bar Association or other legal organizations that are doing some work in this area, and if not, could they not help in it?

As well, I noticed in your recommendation 4, I think, you used the phrase “unbiased social workers”. Clearly “unbiased” is something I'd like to have you expand upon, if you would.

Mr. Leonard Andrychuk: The National Shared Parenting Association was formed because a few people in Regina and in Toronto realized that there were a number of groups of non-custodial parents, both male and female, across the country—and there is a large number of them, as you are probably aware by now—but no umbrella group to which they could all plug in, and no one speaking nationally.

There was an organizing conference held in May 1997 in Toronto, and there have been conferences since. You've heard about those. The result of that was incorporation federally in November or December 1997.

We're currently being incorporated as a branch in Saskatchewan. We don't know the membership number, but I know the phone list in Regina, in small print, is 14 inches long. The NSPA itself...I mean, certainly you would think that in all of the centres there would be thousands, but it is in its infancy.

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On the issue of lawyers and family law, I've talked to the secretary of the law society in Saskatchewan about the issues, and the Law Society of Upper Canada in Ontario is now, I believe, studying the issue of the public image of lawyers. The conclusion I think everyone is coming to is that, first and foremost, the negative public image of lawyers has been driven by the family law area.

If you think about it, most individuals have contact with lawyers in the personal types of practice—family law, criminal law, those sorts of things—and the public perception is being shaped by what's going on in this area. So I think there's first of all a recognition of that, and I see—and I've also advocated this—that these... The Canadian bar perhaps not, but with regard to the law societies, I think we will be looking at whether or not to implement specific ethical rules for lawyers dealing with family law practice, with sanctions if you don't properly take account of the interests of the children in advising a client.

I spoke about education. I think that certainly education of lawyers and sensitizing them to these issues... Lawyers and judges come to the table with their own biases, and that's a product of their background in many cases. Education certainly can't help but break down some of those.

With respect to the issue of unbiased social workers, I'm speaking there of the perception amongst many fathers that social workers come to the case with an anti-male attitude. Whether or not that's true—and I don't necessarily accept that it's true in all cases—certainly when I said “unbiased social workers”...obviously they should be unbiased.

Mr. Dick Proctor: Thank you.

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

Senator Duncan Jessiman: I'd like to go back to your point about the social workers. Of the ones you know about, are any of them male?

Mr. Leonard Andrychuk: I've seen custody and access reports by men.

Senator Duncan Jessiman: Are they as biased as the women or are they all biased? That is what I want to know.

Mr. Leonard Andrychuk: I have seen some strange ones done by men. I saw one recently this year where the social worker reported that both parents were caring, good parents; the father had a good relationship with the children, a solid relationship, and was a good father. I saw two reports that had that preface, and one of them recommended supervised access for the father, if you can imagine, because abuse was alleged. It was never proven and I don't believe ever true, but it was alleged, so the recommendation was supervised access—guilty before any proof whatsoever.

Senator Duncan Jessiman: Was that a male?

Mr. Leonard Andrychuk: It was a male social worker.

Senator Duncan Jessiman: So there's no truth, then, to the idea that it's because they're women social workers; it's social workers period.

Mr. Leonard Andrychuk: I think it's a function of their training at the university. I think there's been a lot of courses on women's issues given to social workers. I don't think much attention has been paid to the way society treats men.

The Joint Chair (Mr. Roger Gallaway): Madame Madeleine Dalphond-Guiral.

Ms. Madeleine Dalphond-Guiral (Laval Centre, BQ): Monsieur le président, I will ask my question in French.

[Translation]

I have three questions. The first is really easy. Is there currently a mediation service in Saskatchewan, and what percent of divorces are settled out of court?

Second, I would like your opinion on the role that children should, or could, play in a mandatory mediation process. After all, the children are the primary consideration here.

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Third, you claim, and I would like to say I agree, that shared custody should be the norm. In some situations that's simply not possible. I would like you to tell us on what parameters the Court should base its decisions. What yardstick can be defined? The floor is yours.

[English]

Mr. Leonard Andrychuk: In Saskatchewan we have a court mediation program that's mandatory. However, it doesn't mandate mediation, it mandates that the parties attend a session to inform them about mediation. Whether they actually go through mediation is up to them. Because I don't practise family law, I can't say for sure, but it is my understanding from talking to family lawyers that just as in the other civil sphere, very few people presently use the mediation system. It's a very small number.

As for the percentage of divorces that are settled, I think you've heard statistics that perhaps only 10% get to court. I'd like to take a moment to add a comment on that. You have to remember that courts establish precedents, and society governs itself by those precedents. Say a person looks at the cases and is advised by their lawyer that if they want anything outside the norm, it's highly unlikely they're going to get it. Then they have a decision to make: do they deplete the family assets and resources, and thus affect the children's future, to fight this battle at tremendous cost? You've heard about that. Or do they accept the norm when their lawyer is telling them that the norm is likely going to be the case because of the primary caregiver presumption?

So don't be misled by people who say that very few cases get to court. In very many cases, people are just accepting the norm because they've been told the very likely result.

Second, in the case of mandatory mediation and what place should be occupied by the children, I think the children should be represented in some manner. The way in which children ought to be heard and represented is a very difficult question. I don't know whether representation by lawyers is appropriate. I suspect not. Representation by perhaps an expanded children's advocate office with personnel to deal with it, would be, I think, a better option. I think they should be at the mediation. They should be at every stage of the process, wherever possible, in some form. I think it would be beneficial for the couple to have the reason they're talking there while they're doing it, because then the idea isn't abstract any more.

As for the third question about the parameters for shared parenting, I think you would have to look at residence issues and whether a person is living or is prepared to live in the same school area. As you've heard, shared parenting sometimes means equal time. I've heard of situations where the arrangement is two days, two days, two days, two days. Well, to those who say that's extremely disruptive, these people also tell me it's working very well because they live very close together.

So each situation would depend on its own facts, but the parameters that would have to be considered would be the place of residence and whether it was in the same school zone. That would determine the time that could be shared, because the friends would be in the same location. I think that would probably be the primary issue, but each case might give rise to its own particular issues.

I might add that in terms of decision-making, I can't see any reason why, in almost every case, decision-making responsibilities shouldn't be shared. It should be a standard provision in every parenting plan implemented by a court or other decision-maker for the mediation of disputes over what school the children should go to, for example, or alternately, arbitration. But make it so that the people have some easy recourse to resolve issues that do arise and can still remain both involved in decision-making.

Whatever you want to say about the role of the father during the marriage, I think that role has increased tremendously. It did in my case and in most cases. Decision-making regarding the children is almost always mutual. There's a discussion of that in every family that I know of, with very few exceptions. Why should that change after divorce? So that's just another discussion.

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

I know it's Senator Cools, but we're going to be running over our time.

Senator Anne C. Cools (Toronto Centre, Lib.): Okay, I'll pass.

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

I want to thank you, Mr. Andrychuk. It's been a good beginning to our day here.

Mr. Leonard Andrychuk: Thank you.

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The Joint Chair (Mr. Roger Gallaway): Next we have, from the Merchant Law Group, Mr. Tony Merchant and Mr. Evatt Merchant.

You've seen how we operate, so please proceed.

Mr. Evatt Merchant (Merchant Law Group): Thank you, Mr. Chairman.

We come before you as a result of having prepared a paper together on child custody, which was published in Family Law Quarterly early last year. We have provided a copy to your counsel.

Mr. Chairman, the other Mr. Merchant has been involved in over 300 reported cases, as well as having published a number of articles in family law texts. Together, we embarked on a study of the lack of fairness in family law. Let me tell you what our research discovered.

We began by looking at the system and saying, what are the ways to create certainty in family law? At the end we came to the conclusion that it was in fact uncertainty that allows judges the flexibility necessary for them to deliver the best and highest level of justice to the greatest number of family law litigants in Canada. Uncertainty, unfortunately, is the necessary evil required to provide individual justice to individual families. We submit that individual justice is the Holy Grail.

We are of the view, and I dare say that most academics would agree, that trying to codify custody and access issues will fail. The American experience with joint custody is a good example of this failure. At its peak, 34 American states statutorily endorsed joint custody. What has happened—and it is discussed in our paper on page 45 and 46—is that a presumption in favour of joint custody has actually plagued the American courts, and they have found that in individual cases it is destructive. The endorsement of joint custody by American legislatures has now receded as a result.

As parliamentarians, it is often difficult to sit by and do nothing. You are active in political life to help people. It should be kept in mind, however, that the people who come forward to complain are not always representative of the vast majority of families that come before the Canadian courts.

Our firm probably acts for more men than women. We have found that men who fight for custody and who have been active parents in the past are often designated the custodial parent. American authorities suggest, as detailed on page 68 of our written submission, that men who fight for custody—

Senator Anne Cools: Just one second. You are referring to page 68 of the submission, but we haven't received one.

The Joint Chair (Mr. Roger Gallaway): He has only submitted one copy, apparently, to the committee.

Senator Anne Cools: Okay. Thank you.

Mr. Evatt Merchant: Mr. Chairman, I have four other copies, if I could pass them around the table.

The Joint Chair (Mr. Roger Gallaway): They're only in English. What's the consensus, Madame Dalphond-Guiral?

[Translation]

Mrs. Madeleine Dalphond-Guiral: I agree.

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

[English]

Mr. Evatt Merchant: Mr. Chairman, what authorities say in the United States is that men who actually fight for custody, if you just look at contested custody cases, often win. In fact, men win the majority of the time. So when people look at statistics regarding the number of custodial parents who are women, that number is heavily diluted by the majority of custody applications before the courts where custody is uncontested and the women normally become custodial parents as a result. In our experience, we have found that men can get justice from the Canadian court system if represented by aggressive and capable family law practitioners.

Mr. Chairman, on behalf of both of us from the Saskatchewan bar, I would like to thank you and your committee for the important work you are doing, and I'll turn things over.

Mr. Tony Merchant (Merchant Law Group): To assist you in continuing to contextualize us in relation to the material that you'll read from us, our law firm, from its seven offices across Canada, does more family law than any other law firm in Canada.

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Evatt Merchant has a master's in family law from the University of Ottawa. I'm very active before a number of courts in Canada and am currently a member of six different law societies, including the Arizona law society. I've argued family law cases in the Supreme Court and a number of courts of appeal in this nation as well as in the Court of Appeals of Arizona and the trial division in Arizona and one other American state.

Unlike the position that likely is being advanced to you by others, we advocate change, but not dramatic change. For example, we're opposed to any codification of custody or access.

The difficulty with codification—and it exists in the family law area of matrimonial property—is that you take away from judges the right to do individual justice and get injustice in a surprising number of cases. Those of us who are before judges on a regular basis find them to be intelligent and hard-working, and they take very seriously the responsibility they have to the mothers and fathers of about half the children of the nation.

The area of custody and access is particularly poorly given to any codification. The idiosyncratic differences between parents and how that applies to children makes it even less productive to try to codify than it has been for matrimonial property. For a simple example, a codified system seems to work reasonably well with child support.

We already have factors under provincial legislation—in this province, in the Children's Law Act—and under federal legislation in the Divorce Act. But Parliament has seen fit—and it has worked reasonably well—to allow a considerable amount of discretion to judges. We say you should only take away discretion if you come to the curious and wrong-headed view that somehow all parents are basically the same and all children are basically the same. The number of variables is gigantic.

Of even greater importance, if we could determine what objectively meant a good parent, what is important is not whether a parent has objective good qualities but whether, for a particular child, subjectively they can draw from those good qualities.

Basically, then, we say don't overgovern. Don't codify. There are a number of implied suggestions in the paper you will read, but we have a number of specific suggestions, and would like to deal with some of them.

Mr. Evatt Merchant: We have nine suggestions.

The first one would be to not create presumptive rules. For example, as I discussed, there are disadvantages to friendly parent rules or to the idea that joint custody should be presumed.

Our second suggestion would be that a system be set up whereby a judge-supervised settlement process would commence within 10 days of a family law court proceeding being issued in court. Saskatchewan in fact leads the country in terms of judge-supervised settlement processes, but there are improvements that could be made.

That dovetails with our third suggestion, for the early appointment of a case management judge, available on an informal and quick basis, in order to minimize expensive and divisive chambers applications and in order to minimize conflict between the parties. Currently Alberta has such a system, and they would be the best test province to apply such a system. It currently happens in Alberta slowly. It doesn't happen within 10 days of an action being started. Once it does happen, though, it's very effective.

The fourth issue we'd like to address is the issue of the amount of time that passes between when an action is started and when litigants actually get to speak to a judge. Often a court action is started and people will go nine, 10, or even 12 months before being at trial and actually being heard through viva voce evidence by a judge, and that is unacceptable.

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Like the suggestions before that, the opportunity to interface with a judge at an early stage—within two weeks of separation—would probably minimize conflict between the parties and create an environment between them where they would have the opportunity to work out their differences without protracted litigation.

Number five would address the speed of the process in a different way. The process, for example, in British Columbia and Alberta is very slow and very expensive. Either by statute or in consultation with the chief justices, one of the most effective things that could be accomplished in family law litigation would be to speed up the process.

Number six will sound like a simple change, and indeed it's a bit of an insulting change for judges, but it could be quite helpful. We've been talking about the delay in getting before the judge. There's a second problem, which is delay by judges in deciding cases. I submit you should require that in all reports and all judgments by the court, they begin with a sentence that says: “This matter was argued before me on (blank) and I am rendering my decision on (blank).”

Judges would be embarrassed to have to write, “This matter was argued before me four months ago and I'm dealing with interim access”, or “This matter came before me eight months ago and I'm dealing with permanent custody.” They'd be embarrassed to say that to their confreres; they'd be embarrassed to say it to the bar. And it would be very helpful if Report on Family Law, of which I'm an editor, came out and said to the world, this judge is five months late with his judgments and somebody else is a month late. That's a simple little change that might make quite a difference.

Number seven, you should encourage specialization within the court, which follows the Ontario, Alberta, and British Columbia models. I'd say that's desirable. But following the Saskatchewan model of family law cloisters is undesirable. The sequestered courts, called the Family Law Division in Saskatchewan or the United Family Court in Hamilton or St. John's, have not been particularly successful. The judges become stale and stultified. They come to conclude that they know it all. I like the judges; I approve of the system of appointing 54-year-old wonderful zone captains from the Liberal Party—

Senator Anne Cools: That is out of order.

Mr. Tony Merchant: But once they're there, the process of continually saying to them, “Yes, m'lord; three bags full, m'lord” tends to go to their heads, even the best of them. If they're in the cloistered courts, they come to believe they know the system and stop grasping for new concepts. So it's an important part of our submissions that you ought not—you ought not—to bring in unified courts everywhere.

Number eight, Alberta does non-binding judicial dispute resolutions and binding judicial dispute resolutions. They're an important concept, and if you brought them in across Canada, it could be quite helpful. Let me explain how they work.

Binding judicial dispute resolution really works well. You sit with the parties and the judge has the opportunity to almost interview the witnesses. They go back and forth and they say, “Well, what about that? And what about that?” Then the judge, in a binding judicial dispute resolution, will negotiate a conclusion of certain issues and then will decide other issues. The judge has a judging power and makes a decision, which incidentally is not appealable, because it's not done in a court process.

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The benefits of this system are many, one of which is flexibility. Secondly, the advantage is that the judge hears the evidence fresh, without the stultified system of the court process. In my submission, the Divorce Act should include provision for the capacity to do binding judicial dispute resolutions.

We now have settlement pretrial processes in most jurisdictions—and the Toronto experiment is similar to Saskatchewan and similar to other areas—but there is no capacity to do what is a mediation process with power to decide, except in Alberta. And it works very well in Alberta. It is better than the trial system.

Last, and number nine, be cautious, if you are innovative, about the reluctance of judges to accept some of these kinds of changes. Judges see themselves in their traditional, rather pompous role, and judges want to sit quietly and judge. Judges are reluctant, by and large, to be proactive. The younger, newer judges are more likely to accept that role; some of the older traditional judges accept it.

The judges who get involved in judicial dispute resolutions and who embark on the mediation process know it works very effectively. The judges in this province would almost to a man tell you a mediation process is more effective for the litigants, particularly in family law matters, than the traditional judging role. But they also would say it takes away from the solemnity of being a judge, and there's a little reluctance to move in that direction. Do not be guided by reluctance if it comes before you through the chief justices or through the departments of justice.

That's the end of our formal presentation. Let me join with Dick Proctor in welcoming you back to Regina.

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

Mr. Paul Forseth: Thank you.

You made an interesting comment about really being cautious about changing too much and wanting to maintain flexibility. I suppose it could be seen, then, that by that kind of proposition, what you're really saying is “maintain the need for lawyers”.

Senator Anne Cools: That's right.

Mr. Paul Forseth: You may be arguing for the preservation of your own source of income.

I'm wondering about what we do to help kids. I haven't heard anything from you folks this morning about helping kids.

I have two specific questions. How could we change the system to make it more appropriate for what children need, as against what conflicting parents may want? And two, how do we minimize the need for lawyers in the system?

Mr. Tony Merchant: Let me try to address minimizing the need for lawyers in the system.

With respect, the suggestions we made really seek to do that. If you can get immediately before a judge, which ends the whole system of repeated applications that come up in the eight or nine months, the speed and an early resolution of issues minimize the involvement of lawyers.

On the other hand, don't discount the benefit lawyers bring. Lawyers, in the best role, level the playing field. Lawyers, in the best role, act as spokespeople for their litigants and take away the advantage that a well-spoken person has over a poorly spoken person.

So, for example, many people find the arbitration system not appropriate for women.

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Part of the reason the arbitration system works poorly for many women is...if they have just come from a failed marriage and they are used to being dominated by their husbands; or they come from a marriage where their husband is in the business world and negotiating constantly, dealing with problems, trying to get to solutions. The female may have come from a traditional marriage and is not used to that kind of give-and-take negotiation. She's down because the marriage has failed—

Mr. Paul Forseth: Okay, I get your point on that one. Certainly there is quite a body of social science around professional arbitration skills, and a skilled arbitrator is certainly able to handle and accommodate the power imbalance. Also, that does not necessarily mean that people who are in an arbitration process, which you somewhat recommend rather than mediation, couldn't have counsel there, but it's the whole rule set in the particular room and the consequences are different.

I assume that was one of the sub-set recommendations you made, that perhaps we should utilize an arbitration process that could be quicker—

Mr. Tony Merchant: No, actually our experience has been very poor with mediators and arbitrators and wonderful with mediation and arbitration done by judges. Judges don't like to do it, but when they bring their authority forward, the impact upon the litigants is wonderful. When mediators and arbitrators are involved, the parties just carry on warring.

Mr. Paul Forseth: It sounds to me like it's the particular rules of the context of the arbitration. If it was binding arbitration, in which the settlement is going to be imposed, the arbitrator has the authority to make a decision and it can only go to a higher room if there's appealable grounds. You have the same situation.

Mr. Tony Merchant: Of course, usually in arbitration you'd only be able to appeal if there were an error of law.

We are great fans...and Saskatchewan has led the way in Canada on judicial pre-trial settlement processes and really does it very well, but it depends in large part on the authority of the judge. People come and they understand and respect a judge, and they feel mediators and arbitrators are only there to get to a yes.

Mr. Paul Forseth: The other question is how can we help kids quite a bit more, rather than running at the agendas of what parents may want?

Mr. Tony Merchant: That's the 35-year problem, and I don't have any ready answers.

I believe representation before the courts on behalf of children is advantageous, but it becomes a cost matter. If you have a children's advocate, you then end up with another government agency, and that slides down to inadequacy, as often happens with government agencies. It's a very tough problem.

Mr. Paul Forseth: Thank you.

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

I have to warn you, we're running tight on time.

Senator Duncan Jessiman: I understand.

Am I correct that you have six offices across Canada—

Mr. Tony Merchant: Yes.

Senator Duncan Jessiman: —and one in Arizona?

Mr. Tony Merchant: No.

Senator Duncan Jessiman: No? You just do work in Arizona?

Mr. Tony Merchant: Yes, I'm a member of the Arizona bar.

Senator Duncan Jessiman: It's too bad you're in the position you're in, because, as Mr. Forseth said, it's going to help you if we don't change things.

I think this is our 21st meeting. We've heard a lot of experts, and the one who seemed to impress me the most is a lady we heard from yesterday—I don't know if she was a barrister or solicitor—from England. In any of the literature we've read and were reading—and I am a lawyer—they were trying to move away not from lawyers per se but from the adversarial thing here as far as children are concerned.

I have two questions. First, are you part of the section that represents the Canadian bar? We're going to meet with them tomorrow. Would you tell me what your relationship is with them and what they think of your ideas, if you know?

Secondly, because you appear to be very expert and I'm assuming... Tell us what you think about what they're doing in England and in Australia and in some of the other jurisdictions. Nowhere in anything I've read—and I've read a lot of this now—are they suggesting that we should keep the status quo, keep the lawyers in place, keep the adversarial system we have. All we can see is that it does cost one heck of a lot of money. Yet you do well by it, and under this system I'm sure you're doing extremely well for your clients, but people can't afford it.

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Mr. Tony Merchant: I agree with you.

Senator Duncan Jessiman: That's the problem.

I'll give you two questions. The Canadian bar, and particularly England but other jurisdictions, are going away from what you're suggesting.

Mr. Tony Merchant: I have no idea. I'm a member of the Canadian bar and I read their materials, but I can't speak for them.

Senator Duncan Jessiman: There are 9,000 lawyers that are part of the family law part of the Canadian bar; there are 35,000 members of the bar. They came before another committee of the Senate that's dealing with the guidelines. The people who are dealing with the guidelines got it down to 9,000 lawyers, but about 30 people read it, and about 9 people are looking at the amendments, so you get down to about 3 or 4 of the bar who are really focusing on this.

I don't think the ones I heard before were representative of the bar, but I'm surprised that you're so much involved in this kind of work, and yet you're not even a member of that precious group of 9,000 people.

Mr. Tony Merchant: Well, Senator, I haven't frankly found the Canadian bar very meaningful. I'm the western editor of the Reports of Family Law. I sit on the advisory board to the two journals of family law. I write extensively, and I appear continually before the courts. I'm very active, and my views are in no way motivated by what impact that would have on the continuation of our successful law firm or not. We've survived under every change.

If you came away with one message from us, it would be to leave discretion with judges but change the system by which matters come before judges. I'm totally in favour of removing more and more of the formality, of softening the process, even the tiniest things.

In the United States, people testify largely sitting, and the lawyers question sitting, as opposed to in Canada, where in family law and all matters you stand. When you stand, you tend to make speeches; when you sit, you tend to speak conversationally and the results are better.

I think that's a large part of why mediation works so well. The judge is only a yard away. You don't harangue somebody who is a yard away; you speak conversationally.

I think the change of systems could minimize the expense, and getting to conclusions quickly would also minimize the expense. The biggest problem we have is that people launch proceedings—there can be nothing more important than their children—and the first time they get to speak to a judge is eight months later, as opposed to filing affidavits that are prepared by lawyers. Judges understand that the system needs correction.

What we oppose is codifying. I say to you in total seriousness, judges take very seriously the task regarding custody and access. They are doing a good job. All across this country, they are doing a very good job and you shouldn't distrust that part of the system.

Senator Duncan Jessiman: They're moving completely away from our particular kind of system—

Mr. Tony Merchant: Yes.

Senator Duncan Jessiman: —and from the courts.

Mr. Tony Merchant: I don't know how well that's working. It strikes me as an appropriate direction.

My reticence is that I know the system we have works reasonably well and could be better. So I'm reluctant to throw out the baby with the bathwater.

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Senator Duncan Jessiman: Thank you very much.

The Joint Chair (Mr. Roger Gallaway): Thank you, Senator Jessiman, and thank you, Mr. Merchant. We appreciate that you took the time to come.

Senator Anne Cools: Are we behind?

The Joint Chair (Mr. Roger Gallaway): No. We're on time, and we're going to stay that way.

Senator Anne Cools: I just wanted to underscore one or two points that they made.

The Joint Chair (Mr. Roger Gallaway): Yes. It will have to be very quick.

Senator Anne Cools: It will be very quick.

I just wanted to say that I was fascinated by their presentation. It's not a novel concept, but it's the first time it has come to this committee. Basically, your proposing sort of a laissez-faire justice system. It's the law of commerce or marketplace justice in a certain kind of way. I find it quite fascinating and most interesting.

I also noted, if I understood from one statement you made, that you lawyers would call it a new rule of law. I would also like to underscore—I would have loved to cross-examine you on this question—that many get justice if they're represented by capable and aggressive counsel. I would have loved to know how the average member of the public determines which lawyers are capable and which ones are aggressive.

Mr. Tony Merchant: Senator, could I just say one thing? There's an assumption by men that their wives will get custody, but when they litigate, very frequently they get custody. There's an assumption by all the stereotypes that when people's marriages end, it's their one ending of marriage; for me, it's my 5,000th ending, so I bring some experience. But we are affected by those stereotypes, and the public is affected. They don't—

Senator Anne Cools: I understand all of that.

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

Senator Anne Cools: I studied those stereotypes for years and years. My question is how does the average member of the public determine which lawyers are capable and which are not? That's my question, but that's for another day.

The Joint Chair (Mr. Roger Gallaway): That's for a return trip.

Thank you for coming. We appreciate that you've taken your time, and we appreciate your position.

I might give you one little piece of advice. In the future, we would not appreciate a political comment in committees . This is a study by an all-party committee, and it's not a place for political comment.

Mr. Tony Merchant: Mr. Chairman, I'm a former Liberal member of the legislature. I'm happy to take shots at my friends on the bench.

The Joint Chair (Mr. Roger Gallaway): We will ask the witnesses from the Saskatchewan Association of Social Workers to come forward, please. We have Mr. Galluson and Ms. Brandick.

The Joint Chair (Senator Landon Pearson (Ontario, Lib.): I don't know if you understood from the previous hearings that what we have is a half-hour altogether, so the shorter your introduction is, the more time there is for questions.

Mr. Tom Galluson (Saskatchewan Association of Social Workers): Thank you very much.

I would like to identify myself as Tom Galluson. I'm a member of an association of social workers here in the province. I'm speaking to you with respect to custody and access evaluation.

To start with, I do wish to speak to your committee with respect to the material that was provided about a week ago, relative to the model of the Association of Family and Conciliation Courts on standards of practice for child custody evaluations. This material is only in English. I'm asking whether or not this material can be presented to your Senate committee for review.

The Joint Chair (Senator Landon Pearson): We will take it and have it translated.

Mr. Tom Galluson: Thank you very much.

The Joint Chair (Senator Landon Pearson): We'll just take it. We can't distribute it until it has been translated.

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Mr. Tom Galluson: As an introduction—

Senator Duncan Jessiman: It would be easier to follow.

The Joint Chair (Senator Landon Pearson): It's in the committee's hands. Do you agree to have it distributed now or not?

Senator Duncan Jessiman: It's going to help us all. Wouldn't you rather have it in front of you?

[Translation]

Mrs. Madeleine Dalphond-Guiral:

[Editor's Note: Inaudible]... I understood clearly.

[English]

Why would you imagine that I would decide otherwise?

Senator Duncan Jessiman: Thank you very much.

Mr. Tom Galluson: I wish to identify that my background in social work includes seventeen years in family services and child protection, ten years in child custody evaluations, and three years in family mediation.

Ms. Sheila Brandick (Saskatchewan Association of Social Workers): I'd like to introduce myself just to give you a bit of background. My name is Sheila Brandick. I've been a social worker for more than thirty years. I'm a registered social worker with the Saskatchewan and Canadian associations of social workers.

I've been the chairperson of the standards committee with the association for close to five or six years now. The thirty years of experience I've had has basically been in direct practice with individuals and families and with a lot of work in health and psychiatry.

Mr. Tom Galluson: On behalf of the membership and council of the Saskatchewan Association of Social Workers, we're pleased to be given the opportunity to address the Special Joint Committee on Child Custody and Access.

Our provincial association presently represents 775 registered social workers. Presently, 28 people are being reviewed for registration. If they are all accepted, this will identify that we represent 800 registered social workers in the province. There is no requirement for registration in the province of Saskatchewan.

We're very interested in the area of custody and access as this relates to evaluation in particular. For the past two years, we've had a subcommittee focusing on this area. Our intention is to develop provincial standards for our membership.

In your meetings with other provincial representatives at similar forums, you may have also heard that there are no standards relative to custody and access evaluations throughout Canada. Our provincial registrar representing the association routinely reports from national meetings the concern for standards and the development of the interprovincial free trade agreements affecting the national level.

We are aware of the extreme frustrations of parents with their own circumstances. Concerns have been addressed by the judiciary, the legal community, and social advocates for standards. Understandably, standards provide a guideline, and they must reflect the particular needs of a situation.

Quoting from material that has been given to you this morning, we have provided the committee with the model standards of practice for child custody evaluations developed by the Association of Family and Conciliation Courts, which is an international committee providing standards for these reports.

In the preamble of the first page, it states:

Child custody evaluation is a process through which recommendations for the custody of, parenting of, and access to children can be made to the court in those cases in which the parents are unable to work out their own parenting plans. Evaluation may be requested by the parents or their [lawyers] or ordered by the court. Evaluations may be performed by qualified [social workers] who are part of a family court system or carried out privately by qualified individuals to teams. Evaluators always service impartially, never as an advocate for one parent or the other.

The primary purpose of a child custody evaluation is to assess the family and provide the courts, the parents, and the [lawyers] with objective information and recommendations. The assessment goals of a child custody evaluation shall be to (a) identify the developmental needs of the child(ren); (b) identify the strengths, vulnerabilities, and needs of all other members of the family; (c) identify the positive and negative family interactions; (d) develop a plan for custody and access utilizing the strengths of each individual that will serve the best interests of the child(ren) and within those parameters, the wishes and interests of the parents, and in most situations provide them with an opportunity to share in the upbringing of their child(ren); and (e) through a written report, provide the court, parents and lawyers with these recommendations and supporting facts.

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These standards are intended to assist and guide public and private evaluators. The manner of implementation and evaluator adherence to these standards will be influenced by local law and court rule.

We wish to quote from the words of the late William Hodges, in his book Intervention for Children of Divorce: Custody, Access and Psychotherapy, the second edition:

No study has been done of the validity of procedures for determining child custody. To do such a study well would be extremely difficult. A researcher would have to do the typical assessments and then randomly assign children to different custody arrangements. It would then be possible to determine whether any assessment tools predicted adjustment in the child as a function of the custodial arrangement. Enough is known about parent-child bonding, parenting styles, consistency in environments, and general child development to demonstrate that such a study would be enormously damaging to the welfare of many children.

Such a difficulty does not mean that child custody evaluations are invalid. Research is steadily increasing an understanding of variables that affect children in different custody arrangements and in different parent access patterns. There is a substantial literature on the importance of parent-child bonding, affection, and discipline. Some arrangements, such as joint custody, gained popularity prior to an adequate research base. More recent research has provided information about the conditions under which joint custody would be appropriate. Research on determining the validity of allegations of sexual abuse during custody disputes also has had a major impact on the court's ability to make decisions in custody decisions. Other important research has been done on the adequacy of parenting by lesbian mothers. In contrast, however, the research on gay fathers is still quite meagre.

The focus of this statement reflects the strengths of parenting and many different definitions of the family.

I would like to begin—

The Joint Chair (Senator Landon Pearson): Be very quick, because we won't have any time for questions if you're not. We've already been six or seven minutes.

Ms. Sheila Brandick: Okay. I really would like to point out, though, the role of the Saskatchewan Association of Social Workers and the Canadian Association of Social Workers in this. But at a provincial level, several things have happened.

First, we now have a Registered Social Workers Act in Saskatchewan as of April 18, 1995. What that act says is that no one can call themself a practising social worker unless they are registered with the association, which means we have an agreement with the Saskatchewan government in terms of regulating ourselves, but in doing that we must have standards to show the government that we are policing ourselves, those kind of things. One of the things we are really doing now is trying to develop standards in the area of custody access for Saskatchewan social workers. Tom has filled you in a little bit on that.

I think one of the things I want to say about the qualifications of people doing access is that they need to be people who are trained professionals in a helping profession. They must not only be trained in that profession, but they must have some specialty in looking at the area of child services, gender equality, violence to children, violence to mothers and sexual abuse. The people doing the access study must have that experience. That to me would apply not only to social workers but to people like psychologists and psychiatrists as well who are a part of this.

We have psychologists and psychiatrists and some social workers doing assessments who have no specialized training in this area. So if an access report is going to benefit the child...because that is the purpose of regulation and standards, to protect the public. In this case we want to protect the child and the family, but we must look at it through the child and what's going on. A proper access study would show us what the family systems are, where the dysfunction is, what kind of services this family needs and what is best for this child in terms of access to both parents.

I'll leave it at that and wait for questions.

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

Senator Jessiman.

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Senator Duncan Jessiman: I understand, Ms. Brandick, that you've had 30 years of experience.

Ms. Sheila Brandick: Yes.

Senator Duncan Jessiman: And, sir, how long have you been working at this?

Mr. Tom Galluson: Thirty years also.

Senator Duncan Jessiman: Have you done a number of family assessments over these 30 years?

Mr. Tom Galluson: I was employed with the Unified Family Court in Saskatchewan in Saskatoon from 1985 to 1995. In that time I would have done in excess of, I would say, 200 assessments and I also supervised individuals who were doing assessments.

Senator Duncan Jessiman: And you, Ms. Brandick?

Ms. Sheila Brandick: I did not do a child access report itself, but I was a consultant very often to people who were doing custody access reports, and at times also a consultant to lawyers in terms of my assessment of the family and what is happening in that family, or maybe an assessment of mom and how she's functioning, dad and how he's functioning, and how that relates to the child. So I was doing it through the psychological...and social work assessment process, and consultation.

Senator Duncan Jessiman: Are most of these mostly for the court itself or are these for the parties? How does it work?

Mr. Tom Galluson: In my experience through the courts, the request was made by court order in Saskatchewan, and therefore my information was compellable in that I was to refer back to the court information that I received. The information was shared with the parents and their lawyers first; they always had the option of settlement based on the report and recommendations. If they wished to return to pre-trial utilizing that report, they could. If they also went to the court route, I would be called as the court's witness.

Senator Duncan Jessiman: And you'd go and talk to the mother and the children at one place, and then go and talk to the father and maybe the children, or maybe not the children, at another place to see what view they held. Is that right?

Mr. Tom Galluson: That is correct.

Senator Duncan Jessiman: And you just asked some questions, which they answered. So what you're getting is what each side is saying.

Mr. Tom Galluson: The information is information, not treatment or therapy, so you are doing assessment, gaining information, collecting information from many sources. And I wouldn't necessarily just be quoting what they're saying in the report; the requirements are for some assessment and recommendations. Yes.

Ms. Sheila Brandick: And those assessments that would be done need to be done by someone who is very cognizant of family systems, family dysfunctions, child abuse and family violence in order to interpret what is going on.

I have done some situations where, for example, the child would not basically tell me quite what was going on, but because of my experience I was able to tell that there were some issues there and then was able to work with the parents much more closely and precisely in terms of what this child needed. So that's where the experience and education becomes very important.

Senator Duncan Jessiman: Were you here when Mr. Andrychuk gave his evidence?

Ms. Sheila Brandick: No, I wasn't.

Senator Duncan Jessiman: Let me tell you what he said about social workers, and this is something we've heard about judges. And some say exactly the opposite.

He said that social workers are trained, either men or women, and because they've been accultured they lean towards believing the woman is the person who should be the primary caregiver, and that in most cases your reports come back to the court and say the husband has a house and the woman has a home. I'm just repeating what he said. Could you respond?

Mr. Tom Galluson: I can speak through my experience. I don't know Mr. Andrychuk and I cannot speak to his discipline.

Senator Duncan Jessiman: He's a lawyer.

Mr. Tom Galluson: My experience, and I guess I'm reflecting the literature too, is that it is true that in terms of primary caregiving—that is, defined in terms of custodial arrangements—it's possibly 85% to 90% women who are receiving custody.

Senator Duncan Jessiman: Are you then saying that in 85% to 90% of cases or more your reports come back and tell the courts that?

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Mr. Tom Galluson: Yes, but I must add that it's not my bias.

Senator Duncan Jessiman: I just want to make sure that we're talking about the same thing. When you go to these homes, I think what you said is that 85% to 90% of the time you recommend that the primary caregiver be the woman.

Mr. Tom Galluson: That is correct.

Ms. Sheila Brandick: Can I speak? No, I—

Senator Duncan Jessiman: No, wait a minute. Wait, it's my turn.

Are there 15% of the cases, in your case—and you're not under oath, but if you can just tell the truth—where you've recommended that it's the man who should have custody?

Mr. Tom Galluson: That's correct.

Ms. Sheila Brandick: I really feel I need to add something to that to put it into context.

Senator Duncan Jessiman: Sure.

Ms. Sheila Brandick: That may be the case in terms of statistics, yes, but as a social worker for over 30 years, I know that in 85% to 90% of the family situations it is the woman, the mother, who is mainly doing the full-time parenting, discipline, child care, getting up at night, holding the head when the kid is throwing up, going to school, staying home from work when the kid is sick. So you have to put that into context. If the world changes, which I hope it will—

Senator Duncan Jessiman: This is what you're told, and you believe what you've been told, and—

Ms. Sheila Brandick: No, it's not what I've been told. It's what I know and experience, and what I've had women tell me and experience, and had even children tell me that it's mom they go to for things. Now, I would like the world to change as well, because in saying that I am not saying that men are not capable parents. Yes, they are. But they have to want to be, and they have to want to put the time in, and they have to want to share parenting responsibilities.

Senator Duncan Jessiman: I have one more question. In any of your reports, have you ever recommended that a man get sole custody of a child?

Ms. Sheila Brandick: Yes, I have.

Senator Duncan Jessiman: How many times?

Ms. Sheila Brandick: I don't keep my own statistics, if that's what... Not very many—I would admit that, okay?—but I certainly have done it.

Senator Duncan Jessiman: Ten times, five times?

Ms. Sheila Brandick: Easily.

Senator Duncan Jessiman: Easily five?

Ms. Sheila Brandick: Yes, because the father in the situation was definitely the better parent.

Mr. Tom Galluson: Senator, when you asked the question, when I identified 10% to 15%—yes, that would be where I would be recommending that the man receive sole custody. So in 10% to 15% that was the case.

I think one thing, if I may add this, is that in my experience in doing custody and access assessments, custody is not usually the most complex issue. The issue is access. Parents often by agreement identify what is the best custodial arrangement for the children. The difficulties that do occur are in the access arrangements and the carrying through of the access.

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

Mr. Proctor.

Mr. Dick Proctor: Thanks very much, Madam Chair.

Good morning. Pursuing the senator's comments, I was interested in hearing about the social worker association that you have here in Saskatchewan, and the need for standards, etc. In that context, Mr. Andrychuk this morning talked about the need for unbiased social workers. I just wonder whether in your standards...what are the programs that are in place? Are you conscious that there may be a bias from time to time, and do you work to eradicate that?

Ms. Sheila Brandick: Yes.

Mr. Dick Proctor: Can you elaborate a little bit on that?

Ms. Sheila Brandick: We start off with the Canadian Association of Social Workers, which has a code of ethics for professional practice. Saskatchewan has adopted that code of ethics into its act, which means that Saskatchewan social workers are guided by that code of ethics, and that principle is certainly there.

Then on the standards, the standards themselves point out ways that you can become unbiased. If you are biased and feel that, you are obliged to find someone else to do the work. For example, a standard would say if I've been working with the woman, say, at this point, and there is a custody and access thing going on, and the lawyers are involved and all of a sudden they want someone to do couple counselling or family counselling, if I feel that I've made a real bond with that woman and I cannot be unprejudiced, I will refer them to another professional to deal with the total context. I might still stay involved with her on a one-to-one basis, but not in the total context, because I know that's where my bond is, and that is not wise for custody and access.

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Mr. Tom Galluson: Perhaps I can comment on that. In doing a custody and access assessment, if I were to go by the principles of social work, one of the definite ones would self-awareness, knowing your biases.

Similarly, in doing a custody and access assessment, if you have prior knowledge, much as what Sheila has said, of the parties, the procedure is not to do that custody assessment.

As well, if you have biases related to the issues at hand that are to be assessed, you must acknowledge that to the client and to the lawyers. They in the end make the decision as to whether or not you're going to do that.

In Saskatchewan the social workers who work for the Department of Social Services have the advantage of supervision within their department. They can speak to a supervisor who would then make a decision, in conjunction with the client, the lawyers and the court, with regard to recommending another evaluator.

Ms. Sheila Brandick: Peer consultation, for example, is part of our process and standards.

Mr. Dick Proctor: In your comments, Mr. Galluson, you talked about the best interests of the children being of paramount importance. Do you think that then should be listed in the Divorce Act as something that needs to be considered, that the relevant factors to be considered should be in the best interests of the children or the child?

Mr. Tom Galluson: In many ways, I think, definition is needed as to what that means, because “best interests” does present a lot of grey areas for many people.

Divorce law is federal law, and custody is provincial in terms of the provincial Children's Law Act and so on. I think they should be as objective as possible in their presentation rather than utilizing jargon and other things particular to one's profession. I think we need to identify what is actually happening.

So I do think the best interests of the child is an issue that's very complex issue and that has caused a lot of confusion.

Mr. Dick Proctor: Just one final question, if I may, Madam Chair.

Maclean's magazine in the last issue had a cover story on divorce and child access and custody. I note that a support group called “Rainbow” exists in every province, according to the magazine, except the province of Saskatchewan.

I wonder, one, if you know about it, and two, if you do, why it doesn't exist here.

Mr. Tom Galluson: I read that article, but please refresh my memory on the focus of the group.

Mr. Dick Proctor: Rainbow deals with children of separated or divorced parents. It's a support group that brings them together in a collective way to deal with their pain and their emotions.

Mr. Tom Galluson: Is there a provincial service that exists in Saskatchewan? No. There isn't something that is funded by the government, or not that I'm aware of, at this time. I'm speaking as a lay person, not as a government employee.

There are a number of non-governmental agencies and other support groups that are providing concurrent sessions for parents in terms of parental education in separation and divorce, and children are doing that concurrently in the agencies.

I'm referring specifically to Saskatoon, where I reside, and Catholic Family Services.

So they're not accessible in every community in Saskatchewan, but certainly on a planned basis.

Ms. Sheila Brandick: The Regina Catholic Family Service Bureau also has a program very similar to that, and it has been very helpful. My practical experience in referring blended families and parents and children with regard to separation and divorce is that it's been 90% positive for the families and the children.

So I would agree with you. I think that's a service that could be there.

Mr. Dick Proctor: Thank you.

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

Madam Dalphond-Guiral.

[Translation]

Mrs. Madeleine Dalphond-Guiral: Good afternoon. I have examined your grid and the parameters you use to assess the needs of children and parents. When I say that I worked for years in pediatrics, you can understand my interest.

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You have both been in practice for 30 years. I suppose you have improved the grid over the years. I would like to know if you improved it by following up on parents and children you worked with before the divorce was finalized. I'd like to know how you decided on a course of action.

Here is my second question. It may make you feel like answering the first. In what proportion of cases does the judge accept virtually all your recommendations? Do you think Saskatchewan judges are doing a good job? Or do you think there should be a continuing education process, for judges, lawyers, and all the other professionals involved in making important decisions? Like the situation in the medical profession for example.

[English]

Mr. Tom Galluson: Thank you for your very important question. With respect to follow-up, when you're doing an evaluation, that is the focus of the assessment. The evaluators do not have prior experience with the parties nor post-experience. So therefore as an evaluator, you are not providing the treatment or counselling follow-up.

What does occur, and it's highly recommended in most evaluations, is that the parent considers the ancillary recommendations such as counselling treatment. It may be focused in particular areas, and they consider that quite rigorously.

My experience in the court system is that they will rule in the area of custody and access. The ancillary recommendations usually do not factor in a written order but in the discussions that may occur at a pre-trial settlement conference. Also at a trial, judges may make comments on that. But to ask, do we do follow up? No. I would say that is accurate.

Addressing your second question about judges and the collateral relative to children, family and custody and access, I have a bias and I will share that, that the judges be knowledgeable in the area of family systems and family issues, children's needs.

I think in Saskatchewan there has been since 1985 a unified family court system, which is similar to, as was identified by Mr. Merchant, one in St. John's. There's also one in Montreal and Winnipeg. Hamilton was the first one. There were some pilot programs, and then we became a full program. Saskatchewan has the family law division services and the family law division where there are judges, but judges do go on rotation.

I would agree that ongoing education is important, and that probably would be provided within their own discipline. Certainly within the context of the court system there are joint meetings that do occur. As to who attends, I can't comment on that or on whether or not there is any enforceability.

You asked the question about whether or not judges give full weight to the custody and access assessment. I would have to say no, that the purpose of the evaluation is to give information assessment and recommendations if it goes as far as the court system, where the judge has to make the decision, and it's not involving the party in planning, such as at mediation. I'm talking about mediation before pre-trial, which is outside the court system. Parents need to do that.

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At the court system, the judges always seem to be thankful to have received the information, certainly if it's seen as objective and not showing favouritism one way or the other.

Do I think the judges in Saskatchewan are doing a good job? Yes.

With respect to ongoing education, certainly in social work, I believe I've already answered your question.

Ms. Sheila Brandick: As a counsellor, I'm the person in the stands. People like me, in front-line practice, would then follow up initially, or follow up after decisions are made. I really want to recommend that judges and lawyers do need some specific training in gender sensitivity, family violence, family systems, and the consequences of what these big issues have for the individuals and the child.

I am seeing people, 20 to 30 years after situations, who are still personally and psychologically in trouble because there wasn't follow-up, because the judge maybe didn't follow the recommendations.

This is where I think Mr. Merchant's comment comes in really handy. You're looking for an aggressive lawyer. The aggressive lawyer, unfortunately, is usually the one who's heard by the judges. The lawyer who presents his or her case quietly and calmly doesn't always get heard.

So I think the system needs to change.

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

Mr. Tom Galluson: Perhaps I can add one comment relative to your question about training and upgrading.

In our province, there are separation and divorce sessions that are available to parents to attend prior to separation or during separation or post-divorce. It's to give them awareness of the alternatives to separation and divorce relative to the legal process and the stages of separation.

They also attend to the needs of the children during separation and divorce and parenting after separation and divorce. These are done currently by the family law division in the province of Saskatchewan in mediation services.

The Joint Chair (Senator Landon Pearson): Thank you very much indeed for an excellent presentation.

I will now call on the next witnesses, all of whom are appearing as individuals: Mr. Jack Christopher; Mr. Eldon Szeles; Mr. Gordon Mertler; Mr. Randy Liberet; and Ms. Betty Junior.

Even though you are each appearing as individuals, I think the process is more effective for committee members' questions if in fact each of you makes your five-minute statement before the questions.

Mr. Liberet.

Mr. Randy Liberet (Individual Presentation): Thank you.

My presentation is twofold. One is my own personal situation and the other concerns recommendations I have for the committee.

I'm sure you've all heard stories from fathers like me, but I'll try to recap for you my personal situation, because I think it's pertinent.

My ex-wife and I have three children, aged 12, 8 and 5. When we married, I adopted our 12-year-old when he was 2. My wife was a single mother.

We were married for approximately seven and a half years. I experienced an acrimonious divorce, which took 22 months to get to trial, where children were used as pawns and false allegations were used against me.

I was arrested at my home, in front of my co-workers and in front of my children 11 times last year. I was recently exonerated, on February 2, of all 11 criminal charges.

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Four months after my wife was granted sole custody of our children because, as Madam Justice Dawson put it, the two parties could not get along, I claimed acrimony by design and wanted a shared parenting arrangement. I put together a shared parenting plan and presented that at trial, but apparently it fell on deaf ears.

The tactics used were so nasty that in January 1997, when my then 11-year-old adopted son told his mother he wanted to live with me in my home four blocks from the matrimonial home, my ex-wife introduced our son to his biological father, which was devastating to him and his younger brother and sister, as they were trying to cope with our divorce at the time. The biological father then moved into our home eight weeks after his introduction. My ex-wife has since kicked him out, about six weeks ago. Now our son has no father. I haven't seen him for over a year.

My ex-wife told social services, just prior to our trial, that I hit my son 22 months prior to our actual separation. Mysteriously, 10 people testified that our son was excited about moving in with me after the alleged abuse had happened. The judge said she didn't believe the allegations. Nothing was done.

In addition to custody, my ex-wife receives $851 a month child support and $800 a month spousal support. The judge gave no reason for the spousal support and seemed to be so punitive by her award that on a $50,000-a-year income—

The Joint Chair (Senator Landon Pearson): Would you hold on for a moment. When we get into this kind of discussion in which you are actually making judgments about judges, we need the name of the case and the reference of the trial.

Mr. Randy Liberet: The case is Liberet v. Liberet, and the case number is 2934.

The Joint Chair (Senator Landon Pearson): What was the year?

Mr. Randy Liberet: It was 1997.

The Joint Chair (Senator Landon Pearson): What was the jurisdiction?

Mr. Randy Liberet: It was Regina.

The Joint Chair (Senator Landon Pearson): Okay.

Mr. Randy Liberet: On a $50,000-a-year income, I now qualify for legal aid and have a needy person certificate and am virtually impoverished. After paying my ex-wife and paying for basic household expenses, I have $187 a month left for medicine, groceries, clothing, automobile expenses, money to spend on our children when they are with me, and entertainment. My ex-wife nets almost $2,700 a month now, including her $1,000 a month income.

I've spent approximately $70,000 in legal fees on both civil and criminal matters. My ex-wife has probably spent approximately $50,000. We are both heavily in debt now.

I'm appealing the judge's decision but have been advised by lawyers—I've been represented by Mr. Merchant's law group, apparently one of the best and most aggressive family lawyers around—that it is futile because I am the man.

My children beg their mother to let them spend more time with me. They often get angry or weep. I've also wept over my children's pain and mine for over two years now. Currently, I can feel the children becoming more distant since I filed my appeal in February of this year. Parent alienation is very real and devastating.

I'd like to talk to you about some recommendations, if I may now. In my involvement with the National Shared Parenting Association, I've met and spoken with women and men across the country from all walks of life, including socio-psychological professionals. There are two consistent themes that arise from my discussions with people who experience acrimony in divorce, including myself.

The first one is that children are used as pawns by some parents. The second issue is whether one parent will win custody or ownership of the child, played off against the other parent, who will be awarded the default of being the non-custodial parent or visitor in their children's lives.

I think there are reasons that people want sole custody as opposed to a shared parenting arrangement: because of the obvious love for their children; pride, since being the non-custodial parent carries a negative connotation that you are no longer a real or able parent; anger and vindictiveness; fear, because people are afraid of loss, afraid of how they'll financially survive to make ends meet, afraid they might become the non-custodial parent and even lose the relationship they had with their children; and the money factor.

Another huge issue we're looking at with the custodial parent is that our children come with price tags tied to their heads. In attaining the first prize of custody, the successful parent gains monetarily with tax-free child support, numerous tax credits, often spousal support, and at times, greater property settlements, and of course, post-marital control if they happen to be an angry parent.

The Joint Chair (Senator Landon Pearson): You've been five minutes, so we need your recommendations.

Mr. Randy Liberet: Okay, I have six recommendations. I'll try to skim over them and be quick.

I believe we should have mandatory shared parenting legislation as a starting point in divorce, to level

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Shared parenting, I would say, is a sharing of parental responsibilities between a mother and a father, with both parents recognized as equally important. Neither parent has custody of the child, but both are responsible to raise the child, with a parenting plan consisting of parenting schedules based on the wishes of the children and the parents. The parents' geographic proximity to each other and other factors that affect the child would be considered.

The parenting plan could be voluntarily completed by the parents, or if acrimony exists, social and psychological professionals could be involved. You've heard testimony from social workers just prior to my testimony. I would say that we need child psychologists—people who understand the actual thought process—as well as sociologists involved in the process.

My second recommendation would be taking divorce completely out of the adversarial court system. The adversarial court system is just that—adversarial. Beginning and end of story. Litigation serves to inflame many divorces, as lawyers are hired to fight each other in the name not of the children's best interests but of their client's best interests. And children don't pay legal fees; adults do.

I believe also that most judges and lawyers are biased in favour of women and giving women custody because of the precedents that have been happening throughout our society.

The third recommendation I would suggest would be to replace the court system with mandated mediation for those parents who aren't able to work out a shared parenting plan between themselves or with the assistance of a mediator. The professionals involved in this mediation process would once again be the social and scientific professionals. If we truly place our children first, mediation or arbitration or any other term you'd like to use should be mandatory. Perhaps a different term can be used in place of mediation.

I'd like to talk about what's truly in the best interests of the children. I haven't heard this particular suggestion, but I think children's emotional and psychological needs should be placed before or at least equal with their basic physical needs. Children have the need to be loved, cared for, and to know that they can depend on both of their parents.

The Joint Chair (Senator Landon Pearson): Could you bring it to an end? It's just that every minute you take takes away from your companions' time.

Mr. Randy Liberet: Okay.

I'd recommend a national divorce education program for divorcing parents, for the public in general, and for the the legal community—judges and lawyers included.

Those are my recommendations. Thank you.

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

Mr. Szeles.

Mr. Eldon Szeles (Individual Presentation): Good morning. My name is Eldon Szeles, and I reside just east of Regina on our family farm. It is truly my honour this morning to be part of these proceedings, and I'm hopeful that we can come to some solution to make some changes in this area.

My personal situation is somewhat the same as Randy's. I'm in a very impoverished and frustrating situation. Again, unfortunately, my son is directly in the middle of the entire matter.

My recommendations point a little more in the straight direction of the children. The first problem we've all had and I've generally had upon separation was with seeing my child. There's the first problem—seeing the children after separation and divorce.

My first recommendation would be that in situations with an infant child or a toddler, I believe the child is generally best served with the mother, with the exception of situations where the mother has demonstrated no maternal instinct or may have some type of severe problem—drugs, alcohol, what have you. But generally my view is that the young children should be with their mothers.

However, the fathers of these children should have direct and uninhibited contact with their children on a daily basis or however often they see fit. As well, they should be able to take their young children out on outings in their stroller to the park for short periods of time, and demonstrate to them that they do care and that they are in fact sensitive to their needs.

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The second recommendation is that when our children get a little older, when they can understand and see what's happening and what's going on around them, and they're out of the toddler stage, we should have some type of law or situation in place that could see both parents caring equally for children and have them bound by some type of contract. We could call this “shared parenting”.

Our children would be in each parent's care 50% of the time. This would include parents taking financial responsibility, looking toward their children's needs—their health, extracurricular activities, school matters, etc.

In light of this, we're obviously going to have some disputes along the way. In my view, the dispute settlement mechanism could be, first off, a mediator. The two parents would go and view their concerns in a neutral atmosphere and discuss the matters they both see fit for as many times is necessary. At the end of these discussions, if the mediator comes to the conclusion that there is no common ground or the two sides—or one side, even—do not want to see the light, then we could possibly carry on to an arbitrator, a person who would have the power to impose a settlement based on the situation of both parents, on what they have to say, their good points, and so on.

As well, this arbitrator, who would have the power to impose something, would have to be an individual who is very well versed in all aspects of the family, social and so on. However, if at a later date they need to fine-tune the situation, the same arbitrator could look after the matter.

I would also like to see the courts and the lawyers stay completely out of any and all of these proceedings except where some type of criminal element has come up, such as threats, threat to safety, violence, and so on. But in the proceedings where parents are trying to find common ground and a shared situation for their children, I would like to see the lawyers and the courts stay completely out of it.

Assuming we have an agreement at this particular stage, if there is a breach of the contract or agreement that has at this point been signed, hopefully, and adhered to by both the parents, and the arbitrator receives a complaint from either parent of a serious breach—for example, non-compliance—then the arbitrator will have the power to again suggest a solution and enforce that solution and give both parties, I believe, three chances to come to terms with what has been imposed on them as well as to get over the fact that they don't have the power or the right or whatever it is they thought they had.

In keeping with this, if the breaches are serious, there should be some type of situation of punishment. If there's no punishment for the wrongdoing, then the wrongdoing will probably continue.

The Joint Chair (Senator Landon Pearson): You're over your five minutes. Can you come to a conclusion?

Mr. Eldon Szeles: Yes. That concludes my presentation. Thank you.

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

Ms. Junior.

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Ms. Betty Junior (Individual Presentation): I'm here as a grandmother, and I have a lot of concerns.

One of my biggest concerns is the justice system and the lawyers. My son has been devastated with expenses of a divorce and a custody hearing, as have my husband and I. We had to contribute a tremendous amount of money to this. I think the justice system has to be looked at.

I also feel that in caregiving, the mother isn't always the best caregiver, and fathers are quite capable of being good caregivers. We have had an evaluation done on my two grandsons by a psychologist. I challenged that report due to the fact that I felt that the psychologist was all one-sided to the mother's side. I felt very strongly about that.

I went through the psychologist's report, which was 28 pages long, and felt that he made my son out to be a devil and the mother to be an angel, and the mother had walked away from these two children for a full year. My son had these two boys. I went to the lawyers and asked them to go into court and give my grandsons to my son. He was not given that right. They did not go into court and do it.

As it turns out now, these two gentlemen have spoken about a 50-50 custody. My son gets my two grandsons every other week. She gets them one week; he gets them one week. I have seen this to be very good. First, I've seen this to be good for my son. He has become a responsible parent and has done really well looking after his boys. I find that after she found herself, she has now become a parent who takes some responsibility, although she still leaves a lot of that responsibility on her mother's and father's shoulders.

So I think the courts have to look at the fact that fathers are good caregivers, and I also feel that these women should be accountable for the amount of money that's been given to them, because I find a lot of the moneys that are given for support for children are inappropriately spent.

I also feel that you have to look at all aspects of whether the father has the children or the mother has the children. One of the things I've really found over the last three years during which I've been dealing with this is if a mother is given the children, they get what they call low-income housing and a lot of assistance from social services.

My son is in what they call low-cost housing. I have a friend in one who pays a little less than $200, and she has two children. My son has two children and is paying $650 to live in the same low-cost housing. I don't think that's fair. My son is working two jobs to keep a roof over both homes. So I think that is something that has to be looked at too.

That's pretty well what I would like you people to consider when you're considering this, and with the psychologist report, that's something that I really think has to be looked at.

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

Mr. Christopher.

Mr. Jack Christopher (Individual Presentation): I'm representing myself and my children. I'm not a professional of any kind, but I do have some comments on my situation and some recommendations.

First of all, the effects on me and my family is total destruction of my life and my children's lives, and it can never be repaired. The financial costs in fighting these false allegations of child sexual abuse are presently in excess of $150,000. I am financially ruined. I do not own anything any more. Fortunately, I've been able to keep the same job I've had for 30 years. My company has stood behind me right from day one.

There is the loss of respect in the community. Your family is looked as if, hey, where did this guy come from?

There was the total lack of contact with my children. Four months after I was arrested and charged, the charges were stayed against me.

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No one would allow me to see my children. I was told by the Department of Social Services through my lawyer that I could see my children anytime I wanted; all I had to do was plead guilty and take treatment for supposedly abusing them. Consequently, because I could not do that, I saw my children, who were three and six at the time this started, for an hour and a half in two and a half years.

I missed eight years of my young children's lives. They're growing up. Nobody in any way can ever replace those eight years for me or my children. My ex-wife has fought continuously to keep my children away from me. She wants me to have no access to my children at all. I presently see my children four hours a month, supervised access.

The charges and the stigmatism that went with this caused the premature death of my mother. She was not allowed to see her grandchildren, as I was not allowed to see my children. The effects on me have been horrendous. I've been under the care of a psychiatrist and a psychologist for at least six to seven years. I'm on medication. Sometimes I wonder how I make it from day to day.

I was completely intimidated by the courts, the police, and the Department of Social Services. The Department of Social Services never once talked to me about the situation that was going on. In court I was told by the presiding judge at the time, Judge Joe Gagne, that I was no better than David Milgaard, and as long as I maintained my innocence—

The Joint Chair (Senator Landon Pearson): As in previous cases where an allegation or a comment about a judge has been made, we need the court case and the—

Mr. Jack Christopher: Unified Family Court, 44 of 1990.

Senator Anne Cools: Name of the case, please.

The Joint Chair (Senator Landon Pearson): Name of the case, please.

Mr. Jack Christopher: Christopher v. Christopher.

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

Mr. Jack Christopher: He also told me that if I ever talked to my children about what had happened to their lives, he would make sure I never saw them again. He also told me if I didn't agree with what he was saying, he had the power to put me in jail.

There is no help from the police or from the Department of Social Services. After the charges were stayed, I went to the police and asked for their help to see if they could find out what, if anything, had happened to my children. They refused.

My life for the last eight and a half years has been consumed by trying to clear my name and set things right with my children. In these types of cases you're automatically assumed to be guilty; nobody is innocent.

That's basically what I have to say. I have a few recommendations, if you wish to hear them at this time.

The Joint Chair (Senator Landon Pearson): Yes, you still have a minute.

Mr. Jack Christopher: There must be some proper training of the police, social services, and judges in handling these cases. The social worker in my case was hired on a six-month temporary basis to cover another worker's maternity leave.

There should be contact with all family members and immediate family members before anything proceeds. There has to be a more thorough, complete investigation before the families are completely torn apart.

A court-ordered, focused access report must be done before anything is decided. I fought for eight years to have one of these done. The judge would not allow it. Finally, in January of this year, the court ordered one to be done. The results are in, and they're shocking. All my son wants to do is spend time with me; that's his main interest. My daughter doesn't want to be forced into it; she wants to have the freedom of choice. Mind you, she's going to be 15 next month. She's a teenager. They tell me that they don't want to spend time with their fathers; they want to go shopping with their girlfriends. But we'll see what happens.

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There should be a full investigation and evaluation of the party making these accusations, which in this case was my former mother-in-law. The medical examinations must be done by more than one doctor—not the social services, a doctor of choice. A family physician should be involved.

Three years ago I got my children's medical records and a letter from their doctor saying that absolutely nothing had happened to my children while he was treating them. He should have been contacted right at the beginning. This thing would have been over on day one.

There must be a timely and early disclosure of all evidence by the crown prosecutor, to allow for a proper defence.

There must be a designated right of action for those accused to take against those making false accusations. Persons making false allegation must be charged and held accountable for their actions. Persons investigating these cases and prosecuting them must also be held accountable for their actions.

In all interviews with the children and the family, there must be either video or audio recordings made, which isn't done. And there should be some financial assistance for the defendant in these cases.

As I've said before, my life is ruined. I own nothing. I'll never be out of debt before I die.

To close off, I would like to thank Senator Cools for having these hearings. I know that it was a lot of her effort that went into it, and I'm proud to be here before her. Thank you very much.

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

Mr. Mertler.

Mr. Gordon Mertler (Individual Presentation): Madam Chair and committee members, I'm happy to be here to share my views and thoughts and recommendations, along with my experiences.

My name is Gord Mertler. I'll just give you a quick background as to the marriage and our child. We were married in 1982. We were both 33 years old. This was my first marriage, and my wife's second. She had two children by a previous marriage. So we should be talking about two mature adult individuals.

We had a child in 1983, a daughter, mostly for my benefit. We started marriage counselling in 1988. We separated in 1994, and assessment and evaluation of our daughter took place in late 1994. We came to a separation agreement in 1995 in pre-trial, and the divorce decree was issued in 1996.

After going through this separation process, the question arises: what is the best for the children during this difficult and unfair separation process? It is unfair to the children, because they did not cause the breakdown.

Although it is still an acceptable practice of the legal system to have strategies that can be used by clients and their respective legal counsels for the distribution of assets or maybe even alimony, I think the strategy process should be eliminated from the child custody process.

It's not a question of which team can best manoeuvre or dig in or delay, or who has the better divorce lawyer. What good is that for the children? It usually alienates them against one of the parents, making it more difficult for the children to have equal access to both parents.

A parent should not have to concern themselves about making an error in the legal process related to child custody. A technical mistake may be the technicality that ends with an unfair treatment of the children.

If the children are allowed to be used as negotiating tools, or if the separation agreement process is delayed for any time, there is an injustice to one of the parents, usually the one who has left the matrimonial home.

But the real injustice is not to that parent but to the children, who in most cases are not given the opportunity to spend time with both of their parents.

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In fact, the children may make the decision themselves, because when they are visiting—and I believe the term “visiting” is appropriate here—with the parent out of the matrimonial home, they are away from their own home environment, their bedroom, their own bed, toys, friends and pets. The question is how to make this transition easier for them so they do not get caught up in the conflict but can get on with living with both parents in a joint parenting situation.

Some possibilities for correcting these problems could include forcing the legal process to deal with legal custody early in the separation. If the parents mutually agree on a custody arrangement, then the government can rest assured that the best interests of the children were part of this decision. If there is a dispute, send both parents to a mediator to work it out.

If mediation breaks down or it doesn't work, then have an arbitration committee in place to hear the case and make a decision. After there is a decision, then send the parents back to the mediator as an ongoing mechanism for the benefit of the children's care and well-being. This can be an ongoing process at the discretion of the parents and even the children if they are at an age where they can be heard. The parents must be forced into communicating on children's issues.

In our case, our daughter's mother refuses to communicate in any manner with me to try to mediate disagreement or different views, or deal with different lifestyles, thus creating more stress for our daughter. If one parent for any reason refuses to participate in joint parenting, then there must be a price to be paid. In our case, our daughter has chosen to live with me—and this may not be the entire reason, but I am sure it has something to do with the refusal of the one parent to get involved. There is no room for vindictiveness or putting any additional pressures on the children. They have enough of a burden to bear with the family split.

In our situation, the mother was receiving the windfall, child maintenance, and not communicating with the other parent, therefore not being accountable for anything related to parenting. This is not right.

The separation agreement process that we undertook was delayed, and as a result I watched as my possibility of a joint parenting arrangement slipped away with time. Although we settled on a joint custody arrangement, I paid full support and paid for all my daughter's activities. The initial custody was for one-third with me and two-thirds with the mother in terms of time sharing. During the first 14 months, of the actual time spent, 49% was with me and 51% with the mother. Our daughter then asked for an extra day with me over a two-week period and then two months later she asked for a 50-50 arrangement.

At this point, she was about 12 or 13 years old. For the last two months she has been with me 100% by her choice; however, I still continue to pay support payments based on the 50-50 arrangement. Although the courts have sped up the review process for child custody and support, the process is still too cumbersome.

In summary, I go back to the separation agreement process. If the separation agreement is being delayed for whatever reason, then some sort of interim agreement must be incorporated so both parents can get on with settling into a family life with their children.

Joint parenting is the only answer. If the joint parenting arrangement does not work, then necessary changes can be made to have a sole custody situation, with full child support paid to the custodial parent. However, I would see this as a last resort or if one of the parents drops the ball in their role as a parent. In our case, I believe the cream has surfaced, but it certainly has taken its toll on my daughter and I think she's paid the price for that.

Again, thank you, and I wish you luck, as you go across Canada, in coming up with an arrangement that's going to work for everyone. Thank you.

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

Now we turn to questions. Who would like to start? Mr. Proctor.

Mr. Dick Proctor: Thank you very much. This is the first time I have had the privilege of being on this committee. I guess what I'm interested in is just looking at the folks who are behind the witnesses who are before us today and looking at the gender imbalance.

I'm wondering what, Mr. Mertler, that tells you about the present situation we have.

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Mr. Gordon Mertler: I purposely steered away from the gender issue on this. My view of what I've seen and heard, and also with the child psychologist who did the assessment on my daughter, is that I believe it is weighted against males.

In the 1950s and 1960s, when I grew up, yes, my mother was home all the time. That's changing, and I think each parent has to be held accountable. Let's forget about gender right now and move on.

Mr. Dick Proctor: Mr. Christopher, I was interested when you noted that your mother was prevented from seeing her grandchildren, and I wondered who made that decision and what was the logic behind it or what reasons given.

Mr. Jack Christopher: My mother was 80 years old at the time this started, and I was forced to live with my mother after I left my family home so that my children could stay there. The courts would not allow me to make any arrangements to have my children brought to my mother's home to visit her while I was not there, while I was at work or something, just so that she could see the children. She was unable to get out and go to see the children. She was told by social services if she wanted to see the children, she could go to the park or she could meet them in the food court in the shopping centre. That was impossible for her to do, but the courts would not allow me to make any arrangements to have my children brought to my mother's home to visit with her.

Mr. Dick Proctor: I have one last question to Mr. Liberet. You indicated that you were represented by the Merchant group in your testimony. And I don't know whether you were in the room, but he had indicated to us, I think, that there are changes needed but we should be careful about the changes, that they need not be dramatic.

Would you comment on that and give us your impression?

Mr. Randy Liberet: From my personal point of view, I've had four or five different lawyers, and I find that... I can't speak for Mr. Merchant, but I would strongly suspect that there's a vested interest among all of the divorce industry lawyers, some social workers, but particularly in the legal field. It's their job to represent people and to fight on behalf of their client's best interests, and I think there's a monetary value connected to that.

Mr. Dick Proctor: Thank you very much.

The Joint Chair (Senator Landon Pearson): Next questioner: Senator Cools and then Senator DeWare.

Senator Anne Cools: I have a couple of questions. First of all, I just wondered if Mr. Christopher could table with the committee, or we could table on his behalf, some of the documents from his case.

Mr. Jack Christopher: That would be no problem. I don't have all of them with me today, but I can forward them to you.

Senator Anne Cools: Thank you. I would like the committee to receive them, because at some point in time I believe the committee is going to have to take some of these cases and review them very carefully to exactly identify where the mis-justice is. I've done a fair amount of work so I know where the mis-justice is, but that is a conclusion that has to be reached collectively.

I wonder if Mr. Christopher could tell us a bit more about the role of the child protection services in his case and what was the role of the lawyers in his case.

Mr. Jack Christopher: The department of social services would never talk to me about the case. They never interviewed me or anything. They came to my house one night and told me that my wife and my children were leaving and that's it. The next day the Saskatoon police came to my place of employment, arrested me, charged me and threw me in jail.

After that I tried to have meetings with the department of social services. I finally arranged a meeting with the regional director in Saskatoon. After the meeting was over I didn't ask him when he could see me again; he wanted to know how soon I could come back and talk to him. He said there were certain aspects of this case that needed to be looked into. I made an appointment for probably a week or ten days later, but when I went back to see him, the gentleman was no longer with the Department of Social Services.

So I had to start all over again and I got absolutely nowhere with anybody.

What was your second question, I'm sorry?

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Senator Anne Cools: It was about the role of the lawyers.

Mr. Jack Christopher: The lawyers are in it for the money. That's all there is to it. Every time you talk to them on the phone or meet with them, it costs you and costs you and costs you.

As I said, my fees so far have been in excess of $150,000. I'm on my fourth lawyer right now in Saskatoon. This gentleman has agreed to handle my case right now for free, which I am very grateful for. This lawyer has done more for me in the last six months than anybody else did in the last eight years. This lawyer was the one that forced the courts to order a focused evaluation, which the courts did. It was to my benefit. It's coming out very well.

Senator Anne Cools: Excellent. Perhaps I can go again on the second round.

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

Senator Mabel M. DeWare (Moncton, PC): I know it's getting late and maybe we could have a question for which we could have an answer across the board.

We've heard from a lot of witnesses over the last month or so. A lot of them have the same cases as yours. There were not so many arrests and allegations, but access and custody cases that they said they were denied. They said the system hadn't worked very well for them and the children involved. So we're trying to think of the best interests of the child here.

How would you feel about a mandatory parenting plan. Two people in an allegation situation would have to sit down and look at the best interests of the child. So through that, you would start to realize what your role is as parents. I know some of you, certainly here, are good parents, because that's what's coming through.

Let's have a little comment on how you would feel about how a mandatory parenting plan would have to be put in place. We'll start off with number eight.

Mr. Randy Liberet: Yes, one of my first recommendations was that we do need a mandatory shared parenting plan that could be worked out with the professionals, such as psychologists, sociologists perhaps, and social workers. This is strictly not so much in the parents' best interests—never mind mom and dad—but I'm sure you can all remember that when you were children, had you lost either parent, you would have been devastated.

That's what it boils down to today. It's so easy to shift off that focus and get into this story of the parents' rights, how the two parties don't get along, and abuse allegations, and so on and so forth. We have to always put the children's best interests first as opposed to focusing on the parents' interests.

Senator Mabel DeWare: Yes.

Mr. Szeles.

Mr. Eldon Szeles: Yes, I'm in complete agreement with Randy. It would, in my mind, without a doubt, serve our most precious resource, our children, and their best interests.

Senator Mabel DeWare: Grandma, Mrs. Junior.

Ms. Betty Junior: I agree. I think that a parenting session would be good for both parents. I do think that would be a good idea, yes.

Senator Mabel DeWare: Before Mr. Christopher starts, because we know his situation, I was just going to say that we found that all parenting plans are different in terms of the best interests of the child. Sometimes a dad's particular job has travelling or whatever, so your parenting plans would differ according to the circumstances of the family, age, and so on of the child. One person suggested to me that one should do a three- to five-year plan and then review it later.

Mr. Christopher, I think what really comes out in your testimony is the fact that even though you were charged, three months later you were acquitted. Your charges were dropped, so I can't imagine how—

Senator Duncan Jessiman: They weren't dropped, they were stayed.

Senator Anne Cools: Did you say they were stayed?

Mr. Jack Christopher: They were stayed. Four months later, a year later, they were dropped.

Senator Duncan Jessiman: Were they dropped?

Mr. Jack Christopher: Oh, yes. They were dropped a year after they were stayed.

Senator Mabel DeWare: So it was a year and three months and he still hasn't been proven innocent even though they were dropped. That's the sad part of your case.

So how about Mr. Mertler?

Did you want to speak to that, Mr. Christopher?

Mr. Jack Christopher: No, that's fine.

Mr. Gordon Mertler: My situation wasn't as extreme as some of the others. If there is abuse and what not, then I think that all has to be dealt with.

In my recommendation, I suggested that you force these two parents. When I was a kid, and two kids got into a battle, the mother would grab them by the earlobes and bring them together. I think that's what has to be done with the parents, and forget about everything else. It's the child's best interests that have to be dealt with.

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Senator Mabel DeWare: Yes. I think we totally agree with you on the committee.

The Joint Chair (Senator Landon Pearson): Dr. Bennett, would you like to have one short one? Senator Jessiman was next on my list.

Senator Duncan Jessiman: Mr. Mertler, you say you have 50% custody now.

Mr. Gordon Mertler: Yes, we went back. It's joint custody. It's 50-50 as far as the support payments are concerned. For more than the last two months now, I've had my daughter 100% of the time.

Senator Duncan Jessiman: You say it's 50-50, but you say she earns more than you do. That's what your letter said.

Mr. Gordon Mertler: Yes, but after they weighed everything, I still have to make a payment to my ex-spouse.

Senator Duncan Jessiman: It should be the reverse.

Mr. Gordon Mertler: It should be.

Senator Duncan Jessiman: It should be the reverse if these facts are correct.

Mr. Gordon Mertler: Yes, here's a situation where we lost something with my lawyer versus her lawyer. An error was made. It's only a payment of $65 a month, so we're not talking about a lot of money. Technically, it's equal.

Senator Duncan Jessiman: How much more does she make per month or per year than you?

Mr. Gordon Mertler: I would say about $800 to a $1,000 a month.

Senator Duncan Jessiman: More than you do?

Mr. Gordon Mertler: Yes.

The Joint Chair (Senator Landon Pearson): Is that all?

Senator Duncan Jessiman: That's all. I think you should go to Merchant.

Ms. Carolyn Bennett (St. Paul's, Lib.): We're having trouble with separating support and the actual changes to the Divorce Act, I think, but what keeps coming back and where we actually start on this committee is that the actual language of the words “custody and access” in the Divorce Act is part of the problem. That means that there's a winner and a loser. It sets up a whole climate that's different.

Could you tell me what you would think if those words came out of the act?

The other thing we're trying to sort out is that only the kids have rights. Actually, the parents have responsibilities. So if we had actually changed the language of the act, do you think that would have helped your case? In getting divorced, you have to work out a parenting plan, as Senator DeWare said, but nobody is winning and nobody is losing.

Mr. Randy Liberet: Yes, that's a very good point. I think we should revert back to the terms of “mother”, “father”, and “parents”. With a shared parenting plan, we would totally get rid of the terms “custodial parent” or “daily caregiver”, as it's now referred to in a little bit of a softer manner. Also, “access parent” or the non-custodial parent is now called the “contributing caregiver”.

I think we should just refer to parents as mother and father and parents. Yes, those terms are very derogatory. These are terms that are used to describe chattel or property or in the prison system.

Ms. Carolyn Bennett: Yes. I think what we want is a flexible system such that if it's hockey season, it might be a different arrangement than if it's just summer camp. If we get down to just the pure arithmetic of an hour spent with each parent as being actually a quality assessment of who is doing what, we start getting down into the details, which is exactly where all the arguments and troubles arise.

Mr. Randy Liberet: We're too stuck on labels, I think.

Ms. Carolyn Bennett: Yes. We'll try to get rid of the labels.

Mr. Randy Liberet: If we just went with mother and father, I think we'd be a lot better off.

Mr. Eldon Szeles: Yes, absolutely. We could take away a lot of the terms such as custody and access, because they have, as has been mentioned here, first prize awarded to either one of them, and our children should not be looked upon in that manner. They are very precious beings, and they're our future life and blood.

Mr. Gordon Mertler: Senator Jessiman is obviously sitting there thinking that this guy lost, so that win or lose situation should be taken out of it.

If the judge misinterprets something—it's presented to him in a one-shot deal—then yes, maybe there are winners and losers. I think that winner or loser thing has to be thrown out. Let's deal with what's best for these kids. If there has to be full custody, so be it, but let's try the joint parenting first.

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Ms. Carolyn Bennett: Do we separate the ability to spend time just based on the kind of job and the kind of life, separate from the ability to pay?

Mr. Gordon Mertler: If you have to, sure. As for the ability to pay, I know who's been paying the most in our situation. I guess that bothers me to a certain extent, but what's most important is the time I'm spending with my daughter.

The Joint Chair (Senator Landon Pearson): Senator Cools, this is the final question.

Senator Anne Cools: I've read some of these cases quite extensively, and I think in the interest of time, we can move on. Thank you.

The Joint Chair (Senator Landon Pearson): Thank you very much, all five of you. It was very good to hear your stories.

We will now adjourn until 1 p.m. For the committee, there have been some tables reserved in the restaurant.

• 1406

• 1512

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

Welcome to the afternoon session of the twenty-first meeting of this committee of the House of Commons and the Senate of Canada.

We have with us a panel representing three distinct groups this afternoon. From the Provincial Association of Transition Houses Saskatchewan is Ms. Fisher, the coordinator. From the Saskatchewan Action Committee on the Status of Women we have Ms. Sekhar and Ms. Gill-Skulski. From the Saskatchewan Battered Women's Advocacy Network we have Ms. Johnson and Ms. Lynnane Beck.

I'm not certain if you've had the process explained to you, but we ask you to limit your comments to five minutes—I know it's difficult, but it is possible—and to get to your recommendations as quickly as possible.

We will start with Ms. Fisher.

Ms. Virginia M. Fisher (Coordinator, Provincial Association of Transition Houses Saskatchewan): Good afternoon.

The membership of the Provincial Association of Transition Houses Saskatchewan is comprised of the transition and interval houses in Saskatchewan as well as safe homes and shelters and other agencies that provide services to abused women and children.

I believe the most important thing we do is to continue to educate ourselves and others about the dynamics of violence against women and children in their homes.

I am the coordinator of PATHS, and I personally bring to bear on this topic my 12-year experience as a family law lawyer.

We haven't any ground-breaking research to present or any earth-shattering analysis to put forth, or even a refreshingly different anecdote. What we do have, though, is a strong conviction about what's right and what's wrong when it comes to domestic violence and custody and access and an enduring hope that our articulation of that conviction today will help tip the balance finally toward real, actual justice for battered women and their children. I say “finally” because nothing I'm going to say is new.

Men who batter their wives should not be considered satisfactory parents. They may be good providers, but their conduct sends the wrong message to their children.

So said the 1992 report of the B.C. Law Society, Gender Equality in the Justice System.

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...where there is evidence of domestic violence there is a presumption that awarding custody to the abusive spouse would not be in the child's best interests. Further...joint custody is not in the interest of the child and may endanger the child's mother.

As well:

...the abusive spouse may still use access as an opportunity to continue the intimidation, control and violence toward the former spouse.

This is from the 1995 report of the Law Reform Commission of Nova Scotia, From Rhetoric to Reality: Ending Domestic Violence in Nova Scotia.

Both reports concluded in their sections on family law that the Divorce Act and their respective provincial statutes must be amended so that domestic violence is a determinative factor in custody and access decisions and settlements, and that there should be a presumption that it is not in the best interests of the child that an abusive spouse have custody, joint or otherwise, or unsupervised access to the child.

I particularly like these two examples of reports, because I believe it is significant to have two separate reports that are three years, ten provinces, and however many thousands of kilometres apart, coast to coast, and yet they came to the same conclusion. I believe it says something about what's right and just in Canada, and I recommend them both to you.

More fully and more recently, the March 1998 publication, Spousal Violence in Custody and Access Disputes: Recommendations for Reform, made 24 recommendations in this area. I understand that you are familiar with this document and have already heard from Nicholas Bala, one of its authors. Be that as it may, we could neither find nor produce a better, more thorough articulation of our wish list on behalf of battered women and their children. Therefore, to emphasize our endorsement of these recommendations and to precisely delineate the comprehensive safety measures we feel are needed, I will refer to the 24 recommendations. Each of you have a copy of them in English and in French.

Legislation should specifically acknowledge the significance of domestic violence to custody and access issues.

Domestic violence should be clearly and concisely defined.

Safety of the abused parents and children should be of paramount concern.

There should be a presumption that custody should not be awarded to the perpetrators of domestic violence.

The friendly parent presumption should not apply in cases where there has been domestic violence.

Legislation should make explicit provision for supervised access and exchange.

Legislation should allow a court to require perpetrators of domestic violence to undertake counselling or treatment as a condition of custody or access.

Legislation should allow for non-disclosure of the abused spouse's residence.

Legislation should recognize that domestic violence may justify a variation to a custody or access order.

Flight from the matrimonial home for fear of safety should not be a factor in custody and access disputes.

Legislation should place restrictions on the use of mediation in cases of domestic violence.

There should be a presumption against joint custody in cases of domestic violence.

Courts should be allowed to set aside previous agreements consented to, because of domestic violence.

Cases involving domestic violence should have priority for legal aid representation.

Unrepresented parties in domestic violence cases must be provided with appropriate support.

Service providers must receive specialized training to deal with domestic violence.

Broad-based media campaigns are needed on the effects of spousal violence on children.

The Joint Chair (Mr. Roger Gallaway): You're a little past your time. Are you almost finished?

Ms. Virginia Fisher: I will leave the other six recommendations to your reading.

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

Ms. Virginia Fisher: Thank you.

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

Now we'll go to the Saskatchewan Battered Women's Advocacy Network and Ms. Johnson.

Ms. Julie Johnson (Saskatchewan Battered Women's Advocacy Network): Thanks a lot.

SBWAN, the Saskatchewan Battered Women's Advocacy Network, is just one small voice among the many you've already heard, yet we are full of the cries of women from across this province who continue to seek some measure of justice when it comes to custody and access issues.

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Since 1984 the Saskatchewan Battered Women's Advocacy Network has been a voice for women, specifically in rural and isolated northern areas of this province. We advocate in a number of ways, from proactive educational presentations for young women to lobbying the government and other services for adequate and accessible services for battered women and their children.

When a battered woman makes that final decision to leave an abusive relationship, the lack of support, whether it be financial or legal, and verbal or physical attacks on her and her children all make it easier for her to be drawn back into the cycle of violence.

In our work for women, we see many who are suffering through lengthy court cases where legal and/or private lawyers cannot or will not take their case. So women who are already emotionally distraught are having to represent themselves.

There too are those women who are trying to educate family law workers, police officers, and justice department officials on what abuse is, as some refuse to admit that there is woman-battering in their community. SBWAN has networked with communities where community members were intimidated by the batterer. If you take that batterer and the community that is colluding with him, it is the ideal set-up for the woman to lose everything, from her home, land, friends, self-worth, dignity, and respect to the loss of her child or children through a court-ordered joint custody judgment. Yet here is the dilemma, because justices will not have heard all the necessary information to make the informed decision.

Community members fear retaliation and professionals may not have had their case studies and/or assessments portrayed accurately. Please consider the facts put forward by the Vancouver Custody and Access Support and Advocacy Association, which stated in part: first, men who are abusive and controlling are more likely to fight a mother in court for custody as a means of trying to continue to dominate and/or abuse; second, women who raise concerns of abuse are labelled as vengeful and their reports are dismissed.

In reality, false accusations of abuse are exceedingly rare, according to the Canadian Journal of Psychiatry in 1995. Joint custody and shared parenting can and does work where there is mutual respect and mutual loving concern for the children, but it is a myth and very dangerous to support this ideal in relationships where abuse is even suspected.

Male violence towards women is nothing new. The authority of men over women, and the right of men to enforce their authority over women, have been approved for centuries by civil and religious authorities world wide. Not only abusers but many others in our society must challenge their own belief systems that underlie the desire to control the behaviour of women and children who share their lives and their homes.

Please concern yourselves with the danger of violence and murder in custody disputes. Consider the woman in rural or isolated northern Saskatchewan, where there is no social worker, the police are 40 kilometres away, and the public health nurse may be her sister-in-law. Where does this battered woman go for help when there is a field in front of her and a gun at her back?

The Saskatchewan Battered Women's Advocacy Network wishes to endorse the briefs put forward by the National Association of Women and the Law as well as the brief submitted by the Vancouver Custody and Access Support and Advocacy Association.

We are humbled to have had this opportunity to speak and hope we have revealed some sense of the enormity of the issue now facing this committee. Whatever system is finally put into place, it must be periodically reviewed for the sake of the child.

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

Now, Ms. Sekhar.

Ms. Kripa Sekhar (Executive Coordinator, Saskatchewan Action Committee, Status of Women): I would like first of all to say I have my brief in English. I really do not want to spend time reading it, because we have a witness here, and we would like for her to tell her story. So if it's okay, I only have it in English, but could I present it to you at this time?

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

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Ms. Kripa Sekhar: Now, that's not one minute of my time, is it?

The Joint Chair (Mr. Roger Gallaway): The clock is ticking.

Ms. Kripa Sekhar: I do want to make a couple of points. I'm from the Saskatchewan Action Committee, a very grassroots women's organization. We deal with this issue on almost a daily basis. We get calls in our office about women who are battered.

However, there are two main points I would like to raise here. One is that while we really appreciate the opportunity to present, I must say that five minutes to speak to this issue—this issue that is so serious—is really, really not giving it due consideration.

The other concern we have is based on the fact that some members of this committee have in fact expressed certain views about what direction this committee is going to take. We feel to some extent that we are in a situation that is not really advantageous to us.

However, having said that, I do want to say that we do endorse the NAWL brief and the Vancouver brief, just like—

Senator Anne Cools: Mr. Chairman, that was very improper and out of order. Very improper.

The Joint Chair (Mr. Roger Gallaway): Yes. You have made an allegation either against the committee or the members of the committee. Do you want to continue, or do you want to be more specific?

Ms. Kripa Sekhar: I would like to continue, but I can be more specific at the end of it, Mr. Gallaway.

The Joint Chair (Mr. Roger Gallaway): Well, we are here to listen to your presentation, not to listen to allegations or opinions that you might have.

Ms. Kripa Sekhar: It's not an allegation. It is about the fact that some views are broadcast, and there were certain comments made by certain members regarding certain issues, and I guess that is what we are concerned about.

The Joint Chair (Mr. Roger Gallaway): I should tell you right now that members of Parliament are entitled to have opinions and are entitled to express those opinions. You come to this committee, and you may not like what you believe to be the opinion of that member, but please realize that this is a travelling committee, a study committee, and that attitudes and beliefs and values of members and what their conclusions are at any given point in time are subject to change.

You may be hearing press reports. I would hope that you are sufficiently sophisticated to understand that sometimes media reports are simply a small mirror of what a person may have said. You cannot come before a committee and attack that committee. You can come to a committee and make your presentation.

Having said that, please proceed.

Ms. Kripa Sekhar: Having said that, Mr. Gallaway, I do appreciate that. However, I will talk about that a little later.

The Joint Chair (Mr. Roger Gallaway): Well, let's hear your presentation, please.

Ms. Kripa Sekhar: Okay.

Senator Anne Cools: I would submit that if the witness has something to tell us about custody and access, she should proceed to do that, and if she doesn't want to talk about custody and access, she should just excuse herself.

Ms. Kripa Sekhar: I do not wish to excuse myself. I am here to present the concerns of a large group of women, and we have a witness—

The Joint Chair (Mr. Roger Gallaway): Let's stop right now. Let's hear your brief. That's what you're here to do, so please present it.

Ms. Kripa Sekhar: Okay. I have with me here a witness, and after that I would like to go back to some of my paper.

Ms. Jeannette Gill-Skulski (Saskatchewan Action Committee, Status of Women): In my life, I have experienced two very different relationships that have ended in break-up, both involving children.

In the first, I was married and had two children as a result of that marriage. Even though things didn't work out between my ex-husband and me, he is a good man and a very loving and responsible father, and always has been. We have successfully shared joint custody of our children now for almost 14 years, without any help from lawyers, courts or mediation. It works because we respect each other and support each other in all decisions made for our children, especially in front of our children. Big decisions are discussed between us before either of us talks to the children, and neither of us ever undermines the other. We have such a good relationship now that my ex-husband is part of our family to this day, and our children have shared many meals and outings with both their parents.

In my second relationship, however, I lived common-law for two years with a man who is very abusive physically, verbally and mentally, not only to me but also to my two children from my previous marriage to some extent. During this relationship, I became pregnant with a third child, a daughter. I ended this relationship when she was barely three months old. Thanks to a book I had read during my pregnancy, I could finally see the cycle of violence I had been trapped in and I wanted desperately to protect my children from it.

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At first, I tried giving this man access to our daughter, but I found he was mainly interested in knowing where I was, who I was with, and trying to get me back into the relationship. I also feared that it would be of no use for me to have left the relationship if I was going to turn around and hand her over to him where he could freely take her to be a witness to the next abusive relationship he had, so I denied all access. I did, however, continue to encourage his parents and family to continue to see her, but he forbade them from doing so.

In this case, shared parenting could not have been possible. He was never a good and loving father to her,there was definitely no respect for me, and I truly believe it has been in her best interests not to have ever been subjected to his abusive lifestyle. She has known my present husband since she was four months old, and he adopted her when we were married. He is the only father she has ever known and he has been a very good and loving, caring father. She is a very happy child and does very well in school, sports and music. I love my daughter very much, and I feel I have made the right choices for her and done what is best for her.

In summary, I believe that where it's possible, joint custody will work without the help of lawyers. I believe most mothers love their children deeply and would not take away a good and loving father from their children purely for reasons of spite. There may be a few bumps in the path initially, but eventually, when emotions cool, both parents will realize what is best for their children. Raising children is difficult enough, and I believe most mothers would not choose to be a single parent or choose to see thousands of dollars wasted on lawyers, which could have gone towards their child's education, without good reason.

It is where there is abuse and lack of honesty and respect that people end up in court, and in these cases I do not believe a law forcing joint parenting would work. In fact, I fear it would be disastrous. It is difficult enough for women to escape from abusive relationships as it is, and to protect their children from them. These men are certainly not honest and forthright about their true characters. In fact, some are very smooth, well-dressed, educated manipulators, excellent at deceiving and gaining the sympathy and support of others.

It is my greatest fear that a law imposing joint custody would allow these wolves in sheep's clothing, hiding behind a support group for mistreated parents, with the pretence of concern for the child's best interests, to continue their abuse and control. I'm not saying every man or woman who is crying out for justice is one of those wolves, and I do hope there can be help for them. What I am saying is that abuse is an issue, and there is a lot of it out there, whether we want to see it or not. There are wolves in sheep's clothing out there, and we must be very cautious in how we change the laws, so as not to hand them even more power than they've already had.

My solution, perhaps, in the cases—

The Joint Chair (Mr. Roger Gallaway): You're well past your time.

Ms. Jeannette Gill-Skulski: I have one more paragraph.

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

Ms. Jeannette Gill-Skulski: In cases where there is divorce and both parties are not in agreement on the child custody arrangement, there could be a court-appointed social worker or investigator sent out to determine the truth about how the family has functioned before and after the break-up, and only after thorough investigation, where a testimony is heard from the children, parents, extended family, teachers, doctors, close friends and neighbours, can the courts truly make a fair judgment on what's best for the children.

I strongly disagree with basing a decision solely on what the child says he wants, also. How many children truly know what's best for them? If that were the case, they wouldn't need parents. I believe this would directly place the child in even further conflict. When these abusers can manipulate adults into believing what they want, imagine how helpless a child would be. I believe by taking the investigation out of the courtroom, it will not only cut down costs and court time but will also give a more accurate picture of what is really going on in each case.

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

We'll move to questions now. Who would like to start? Mr. Forseth.

Mr. Paul Forseth: To this last witness, to clarify, I assume what you said is you're now in a third relationship and you've remarried.

Ms. Jeannette Gill-Skulski: Yes, I have.

Mr. Paul Forseth: Are there some ongoing court issues, say with man number two and child, concerning access?

Ms. Jeannette Gill-Skulski: No, my husband has adopted the child, and the first father has never had access to see her.

Mr. Paul Forseth: Okay. Her natural father is not trying to get anything either?

Ms. Jeannette Gill-Skulski: No.

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Mr. Paul Forseth: Okay. That's all I need. Thank you.

Ms. Jeannette Gill-Skulski: He did try at one time, when she was around eight months old, but when I brought out my affidavits and proof of the abuse convictions, it was dropped.

The Joint Chair (Mr. Roger Gallaway): Who would like to go next? Senator DeWare.

Senator Mabel DeWare: Julie, have you any facts for us on the number of women you have had contact with or that you deal with in your organization in terms of involvement in abusive relationships? Can you give us those statistics?

Ms. Julie Johnson: As much as possible, I try to stay away from statistics. First of all, our office is funded federally, but it's only part-of-the-year funding, so we're open only three days a week. As well, my office was in my home for five years, and I've just moved to a type of basement suite at the YWCA.

So, no, I don't have any statistics.

Senator Mabel DeWare: You said something about officers. How many officers would you work with?

Ms. Julie Johnson: Police officers?

Senator Mabel DeWare: Yes. Well, when you said officers, did you mean police officers?

Ms. Julie Johnson: No, I said in my “office”.

Senator Mabel DeWare: But you said something about people you work with.

Ms. Julie Johnson: In my brief?

Senator Mabel DeWare: No. In your comments just a few minutes ago I thought you mentioned officers.

Ms. Julie Johnson: No, ma'am, I said office.

Senator Mabel DeWare: All right.

As you know, over the last month or so we've been listening to a lot of witnesses, and as you know, a lot of them have been dads. I think you're quite aware of that. So we also have some very strong evidence of fathers being refused access because of false accusations of abuse.

Have you any feeling for that? Do you know what the ratio would be of false accusations versus what absolutely has been truly documented by your organization?

Ms. Julie Johnson: No, I don't, but I do know, in any case I have specifically dealt with, they have not been false accusations, and the person has been charged and/or the allegations have been taken to court.

Senator Mabel DeWare: Of course, you're more or less talking about women who have been abused and battered and so on.

Ms. Julie Johnson: That's correct—battered women.

Ms. Virginia Fisher: May I add to that?

Senator Mabel DeWare: Yes, please do.

Ms. Virginia Fisher: In an article called “Father Knows Best: Why Batterers Get the Kids” in The New Republic of March 24, 1997, it said that research indicates that mothers are no more likely than fathers to make false allegations.

When I practised family law, one of the most memorable cases I took on was one where I was the fifth lawyer hired by this woman. The lives of each of the lawyers before me had been threatened by the husband, the father of the child.

He threatened my life. He threatened the lives of the people in my office, my secretary and so on. I decided I wasn't going to abandon her. She'd just have to go on to a sixth lawyer, and that wouldn't be fair to her.

He will deny, to his grave, that he was abusive. He did not come to the divorce trial, where he was applying for custody. He also had been charged with assaulting her. The day of the trial, a bomb threat was phoned in to the Vancouver courthouse. After the trial was over and the judge awarded custody to the mother, the father, not even having shown up, phoned my office and said I was dead. Then he threatened the judge. He was arrested, charged and convicted, and he will go to his grave saying those allegations were false.

So it is just as easy to raise allegations of false allegations as it is to raise false allegations. We have to be, oh, so careful about saying that just because the father says he didn't do it, he didn't do it.

Senator Mabel DeWare: I think we're going to have a problem at committee trying to divide up the cases of where the Criminal Code comes into effect and where the Divorce Act comes into effect.

Would you like to make a statement?

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Ms. Kripa Sekhar: Yes. We've been dealing with this on an ongoing basis, and like Julie, we do work in the community. We are not lawyers, we are not social workers, but we have contact with the woman who have gone through this. It's very difficult for women, first of all, to get a restraining order unless there is some sort of evidence of that kind of abuse. No police officer is going to come in and make a charge, even. So to allege that there has been abuse, you have to take many factors into consideration.

Apart from that, our other big concern is around the fact that in a way it leads to a very dangerous trend to talk in terms that cases of abuse could be termed as false allegations. Maybe in certain cases they can, but in most cases I don't think so. It's a way to silence women from coming out of that situation of violence and to speak about that domestic violence. If I am a victim of violence, I'm not going to speak about it if I know that tomorrow my partner is ready to go to court to prove that what I say is wrong, and I'm the one who's suffering that kind of harassment.

I'm just giving you a hypothetical way of looking at it, but also the fact that we have dealt with this issue. We have talked to the women concerned. We have done our own kinds of investigations to find out whether this is true or not.

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

Dr. Bennett.

Ms. Carolyn Bennett: Thank you. Maybe we could carry on with that just a little bit, because the committee is really struggling with this.

There are sociologists who've testified who now call false allegation the weapon of choice. Obviously there are people who feel that women have been counselled to say that. I guess if there is even one of those situations, it needs to be prosecuted in a way such that the cloud of false allegation then goes away. As soon as we say, well, there aren't very many of those, and we leave one of them out there unprosecuted, then we actually...

I think making a false allegation is a very serious thing to do to anybody. I would hope that maybe somebody has some information about whether one of them has ever been proven, and if that one was proven... Are there other ones that you think are out there not dealt with that we should deal with, so that the cloud isn't over all the rest that are true?

Ms. Virginia Fisher: Well, I can't help you with that, but what I want to say is that there are a number of documents, Women and Children Last: The Plight of Poor Women in Affluent America being one of them, which specifically say... And I know, as a family law lawyer, that it is true that to raise allegations of abuse is often counter-productive anyway, because then the woman doesn't look like the friendly parent. So very many lawyers will tell her, “Don't even talk about the abuse, because then you will risk losing custody”.

I sat in on this morning's session, and there was some talk about custody and access reports. Six months ago I saw a custody and access report done by a man in Saskatoon. The husband had assaulted the woman and was charged and convicted. That was known. That was in the custody and access report. Then he assaulted and was convicted of assaulting her new partner. That was also known, and in the custody and access report. She was asking for sole custody because of the danger to her and because of the abusive nature of the father. He was asking for joint custody. He wanted to cooperate—and they always do sound so cooperative. The award was sole custody to the father, because she did not look like the friendly parent.

So believe me, using abuse charges against the father is not a ticket to gaining sole custody of your children.

Senator Duncan Jessiman: If they're true, they should be.

Ms. Virginia Fisher: They're not. The courts are—

Senator Duncan Jessiman: Once you've proven them, they—

Ms. Virginia Fisher: He was convicted twice, and he still got sole custody.

Senator Anne Cools: What's the name of that case?

Senator Duncan Jessiman: The act provides right now that “In making an order under this section”—that's custody—“the court shall not take into consideration the past conduct of any person, unless the conduct is relevant to the ability of that person to act as a parent of a child”. Obviously, in your case, there may have been prior convictions of abuse, but the act says you don't take that into account—the judge has discretion—unless the conduct is relevant to the ability of that person acting as a parent. That doesn't mean the client, if you happen to be acting on behalf of the mother, shouldn't bring up abuse; it's just abuse that's taken place prior to asking for this order.

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Ms. Virginia Fisher: Senator, what I am asking for, and what so many women across this country are asking for, is that the act be changed to specifically say that prior abuse does say something about the ability to parent. As the report from British Columbia said, men who batter their wives should not be considered satisfactory parents. Their conduct sends the wrong message.

Senator Duncan Jessiman: No, but what you are—

The Joint Chair (Mr. Roger Gallaway): Senator Jessiman, you jumped in on Dr. Bennett.

Senator Duncan Jessiman: I'm sorry.

The Joint Chair (Mr. Roger Gallaway): We'll put you on the list and you'll have your turn.

Senator Duncan Jessiman: I'll talk later.

The Joint Chair (Mr. Roger Gallaway): We're going to go back to Dr. Bennett's question.

Ms. Carolyn Bennett: To the non-question that came from over here?

The Joint Chair (Mr. Roger Gallaway): I feel like I'm losing control this afternoon.

Ms. Carolyn Bennett: In writing the act, obviously there is a whole bunch of things people want to do that would make it child centred and keep people as much as possible out of court. I think you've made a very good case for the fact that any previous abuse in the relationship puts it in a different category and that we might be able to write something where, if there is previous abuse, there's a whole different way we look at things. If there isn't abuse, then mediation and all of those things seem appropriate, and we can maybe fast-track a lot of things, conciliation and those sorts of things.

My concern is still that if we know there is more abuse in the high-conflict ones that do end up in court, I guess with the people who never get to court, who sign a divorce agreement, I still think there must be abuse, or at least a significant power differential, such that the agreement that is signed may not be in the best interests of the children. If we had an educational component before people signed a divorce, could we start to get loose some of these—

An hon. member:

[Editor's Note: Inaudible]

The Joint Chair (Mr. Roger Gallaway): Hang on. Let her proceed, please. It's just her terminology.

Senator Anne Cools: If it's just the terminology, fine.

Ms. Carolyn Bennett: With the people who are just going to file papers, or whatever it is, should there be an educational component first to know what is on the big buffet of choices so we will actually maybe find some of these that actually would never ever end up in a court?

Ms. Lynanne Beck (Saskatchewan Action Committee, Status of Women): Can I speak to that? I'm a divorced mother. My trouble was, in my case, as you said, I didn't have the education. I wasn't from Regina at the time and I didn't know what was available to me. I didn't really know what had happened in my husband's first marriage. I knew his children were not divided equally with his wife. She actually walked away at the time and was forced, she felt, to leave all her children, of which there were five at the time. Eventually, over time, three of them went back to her. I raised two of them and we had one of our own.

As the case progressed, her case was brought to the courtroom. She actually came and spoke on my behalf, because she had been turned against her children. It was only after years... So when I saw what was happening and what this man had done and what had happened in her marriage, I could actually foresee what was going to happen in my relationship with the son I was trying to gain custody of.

I asked for counselling from the court. I asked for a counsellor just for the child, someone to go in... I was totally denied by lawyers, by everybody, saying the child himself didn't feel he needed it. Custody and Access revealed that the child was being alienated from me, and even though that took nine more months and even though the report came out and everyone was aware of it, still nothing was sent to help the child. The trial ended and custody went to my ex-husband, and I was supposed to see a psychologist. Even that has failed.

So right now, as it stands, I am back in court representing myself, because I have nothing left. This child I have is now 15 years old. He cannot phone me. If I try to phone him, he will only say “I can't talk” and hang up.

To me, justice has totally let this child down. I've asked all along for representation to help him. I haven't asked for myself. I said “Go in there and help him. Why does he think the way he does?” If you go to the school, it's just like she said. The community, the church...they're saying there's nothing we can do. They see what has happened, they know, and they say I can't do anything.

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He wrote a letter to the school when I asked for the school to help to see why his marks have been poor, because I could not intervene. The school phoned me back and said “He got wind that you had talked to us, and we won't have anything to do with this because we don't know what your divorce set.”

I thought, I'm not a person. I have access, so my question to the committee is, why have I been left with this judgment that says that I have every other weekend, I have all of these things, and nothing has worked? Why does the justice system not care that I can't enforce this? And why must I be bled financially dry? I can't afford to go back and fight this, and I'm going to lose my son and I will have to sit back now and wait for years to come. He will become dysfunctional to a certain extent. What else can I do?

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

Before we go to Senator Cools, I neglected to ask Ms. Fisher something. You referred to a case. On a point of information, I wonder if you could provide us with the citation.

Ms. Virginia Fisher: Which one?

The Joint Chair (Mr. Roger Gallaway): You referred to the case in which you engaged with Senator Jessiman—

Ms. Virginia Fisher: No, I'm sorry, I can't. I actually tried to be able to bring that custody and access report here but wasn't able to work with the lawyers.

The Joint Chair (Mr. Roger Gallaway): You may not have it with you, but can you provide it to the clerk?

Ms. Virginia Fisher: I can attempt to do that.

The Joint Chair (Mr. Roger Gallaway): Is it reported?

Ms. Virginia Fisher: I wasn't acting on it, so I don't know. I'm not actually practising any more. I happened to come across it.

Senator Anne Cools: Perhaps if you have the name of the case...

The Joint Chair (Mr. Roger Gallaway): Yes, the name of the case.

Ms. Virginia Fisher: I will attempt to get that for you.

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

Senator Cools.

Senator Anne Cools: Thank you, Chairman. I have a couple of questions. I'd like to put those to the lobbyists, the Provincial Association of Transition Houses, if I may.

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

Senator Anne Cools: Thank you.

You represent the Provincial Association of Transition Houses Saskatchewan. I wonder if you could tell me a bit about your client population, the people who you serve.

I wonder if you can tell me how many women you served last year. Of those women you served last year, how many are battered women, and of those battered women, how many have been involved with divorce proceedings?

Ms. Virginia Fisher: Our members are the transition houses of Saskatchewan. Last year, like approximately every year, they together took in 2,000 women and children. They had to turn away 4,000 women and children because there aren't enough shelters for the women who need shelter and safety.

Senator Anne Cools: Not women and children. How many women is what we're trying to get here.

Ms. Virginia Fisher: The women who come into the shelter have approximately 2.5 children.

Senator Anne Cools: Okay, so you do have the number of women.

Ms. Virginia Fisher: I don't have that off the top of my head, no.

Senator Duncan Jessiman: Take 3.5 divided by the number, and you have it.

Senator Anne Cools: I'm asking for very basic information about your client population who needs assistance and who need support. As policy-makers, we should have basic information. I'm not asking for anything too complicated like a profile—

Ms. Virginia Fisher: The thing is, Senator Cools, the 1993 survey on violence against women tells us very specifically who are the abused women population in Canada, and that can be broken down into Saskatchewan statistics.

We serve approximately 6% to 8% of abused women in Saskatchewan, so we don't serve the whole gamut of abused women in Saskatchewan.

Senator Anne Cools: I am trying to find out from the witness about her client population that she has come here to represent. I am asking in a very simplistic way how many women were served by those agencies last year, how many of those women last year were battered, and of those battered women, how many were involved in divorce proceedings.

Ms. Virginia Fisher: I don't have those statistics. Our shelters do not keep records of who is in a divorce proceeding or not. We're there for safety.

Senator Anne Cools: So how do you know, then, if these people have been involved in divorce proceedings? You're saying here that you are representing them and—

Ms. Virginia Fisher: No, I actually didn't say that.

Senator Anne Cools: Chairman—

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The Joint Chair (Mr. Roger Gallaway): Let her make the statement, please.

Go ahead, Senator Cools.

Senator Anne Cools: I'm just trying to get a picture of this problem. I'm going to put the question and I shall—

Ms. Virginia Fisher: I don't think I can help you, Senator.

The Joint Chair (Mr. Roger Gallaway): Let her ask the question.

Ms. Virginia Fisher: But she'll ask the question, then I'll say what I think, and so it won't work.

Senator Anne Cools: It's very improper.

The Joint Chair (Mr. Roger Gallaway): Just a minute. Senator Jessiman, one moment, please.

If you don't know the answer to a question, say so.

Ms. Virginia Fisher: I said I don't have those statistics. I already said that.

Senator Anne Cools: You said you do not have statistics on the number of women your agency served, or the number of those women who have been battered or the number of the battered women who have been involved in divorce—

Ms. Virginia Fisher: But I could get them.

Senator Anne Cools: Let me finish.

Ms. Virginia Fisher: But not the divorce ones because we don't keep those.

The Joint Chair (Mr. Roger Gallaway): Please, let her finish. This is the problem.

Ms. Virginia Fisher: So I do not have them today but I can get them.

Senator Anne Cools: This is aggression.

The Joint Chair (Mr. Roger Gallaway): Just hang on, please. If you want to finish the question, Senator Cools, proceed.

Senator Anne Cools: Thank you.

So you have an understanding, you say, that you have no service statistics from your own services.

Ms. Virginia Fisher: I did not bring them here today. It's actually not my role. You missed my opening remarks and so you—

Senator Anne Cools: I am not—

The Joint Chair (Mr. Roger Gallaway): Let her finish, please, Senator. Let her finish.

Ms. Virginia Fisher: So what you missed was the part where I said I believe the most important thing we do is to continue to educate ourselves and others about the dynamics of violence against women and children in their homes, not collect statistics.

The Joint Chair (Mr. Roger Gallaway): Last question, Senator Cools.

Senator Anne Cools: I have a couple of questions.

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

Senator Anne Cools: I'm taking from the answer that the witness has no service statistics from her own client population.

I'd just like to put a couple of other things on the record. I have before me or in my hands a newspaper clipping. I haven't got the case with me but I have a newspaper clipping from October 28...

[Editor's Note: Inaudible]...from the Toronto Star, and the headline is “Mom killed tot to protect her, court told”. The sub-headline is “Wrongly believed ex-husband was abusing girl”; and it is an account of a woman who falsely believed that her husband was abusing her and killed the child to protect her.

My question to any and all of the witnesses is the following: is aggression and manipulation a human problem or is it a gender problem? In other words, is all aggression, deceit and dishonesty men, and all goodness and altruism women? If we want to talk about aggression, and I have studied aggression all my life, let us address the issue now of aggression.

Ms. Virginia Fisher: Have you read Anne Campbell's Men, Women and Aggression?

The Joint Chair (Mr. Roger Gallaway): Would you mind answering the question? That's the question.

Ms. Virginia Fisher: She said she studied it, so I wondered then if we could talk about that.

The Joint Chair (Mr. Roger Gallaway): You've heard the question, please. We can't engage in a question and answer period both ways here.

Ms. Virginia Fisher: Okay. Certainly, both men and women engage in aggression. It is fundamentally possibly different, and hard cases make bad law.

Senator Anne Cools: I quite agree.

The Joint Chair (Mr. Roger Gallaway): Does anyone else care to respond?

Senator Anne Cools: Can I find out about aggression? Is aggression a gender problem or is aggression a human problem?

Ms. Kripa Sekhar: I think I really would decline to answer that question. I don't believe that is the way we look at things or that is the way we present issues here. We're trying to deal with the human aspect of what is going on in the lives of many women, and that is all we're trying to do, Senator. We're only trying to present to you realistically what is happening out there. We are in touch with the women who have in fact gone through those situations, who are going through it, and we are not here to minimize those situations in any way.

Thank you.

Senator Anne Cools: I would suggest—

The Joint Chair (Mr. Roger Gallaway): Can we have a final answer?

Ms. Julie Johnson: Yes. Witnessing abuse by either the mother or father is specifically damaging to the child.

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Senator Anne Cools: Precisely. So then your position, the final witness, is that aggression and violence are undesirable and unacceptable, full stop. Am I correct?

Ms. Julie Johnson: Correct.

Senator Anne Cools: I was asking for witnesses to make a pronouncement on the use of aggression and violence in intimate relationships; that is all.

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

Senator Jessiman.

Senator Anne Cools: Could I...?

The Joint Chair (Mr. Roger Gallaway): No, you're well over time.

Senator Anne Cools: Okay.

Senator Duncan Jessiman: I volunteer my time.

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

You can have one last question, then, and that's it. It has to be brief.

Senator Anne Cools: I'd just like to go to the record. Some years ago we had a bill before us in Parliament called Bill C-68. At that time Ms. Jill Hightower appeared before us, and at the same time Ms. Virginia Fisher also appeared before us. I believe I tried at the time to ascertain from Ms. Fisher the same sort of information I was trying to get today, basically a profile, an understanding of the population.

At that time Ms. Fisher told us that 46% of women killed by their husbands are killed with guns. She also told us at that time there are 50,000 women living in households with guns who feel their lives are in danger. When asked about the number of women served by these agencies who have been killed by husbands using firearms, they declined to give numbers, stating such reasons as, “I do not have that figure off the top of my head” or “We do not have funding to do follow-up work on what happens to women as they leave the shelter”.

I would submit, colleagues, that at some point in time we're going to have to consider putting witnesses under oath. That's number one. Number two, I would submit, honourable senators, that this matter of domestic violence is far too serious, far too serious, to be obfuscated, demeaned, or diminished in any way. I would say, colleagues, that the suffering of men, women, and children of domestic violence is something that deserves our attention, and it should not be demeaned at all. I would just like to state that.

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

Thank you for coming today. It's been a very interesting first hour this afternoon.

A witness: Thank you.

The Joint Chair (Mr. Roger Gallaway): We will now ask our next panel of six to come forward, Mr. Morsky and company.

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• 1605

The Joint Chair (Senator Landon Pearson): Thank you very much. We will proceed with this panel.

We'll start with Mr. Seitz.

Mr. George Seitz (Individual Presentation): Good afternoon. I would like to—

Mr. Paul Forseth: Excuse me, Madam Chairman. I just wanted to follow up on what Senator Cools was saying about truth.

Senator Anne Cools: Yes.

Mr. Paul Forseth: I want to remind people coming to committee that we are searching for truth. Part of that is the issue of the kind of testimony you give here.

I want to remind listeners of the book Parliamentary Privilege in Canada by Joseph Maingot, and also Beauchesne, section 109, sixth edition, 1989, which says:

Witnesses before committees share the same privilege of freedom of speech as Members. (...) Nothing said before a committee (...) may be used in a court of law.

In any other jurisdiction, there is a protection.

But I also remind witnesses not to malign individuals. We're not here to retry cases. Only refer to circumstances in order to provide a context for the specific recommendations you're helping the committee with, because the committee has a mandate to make a recommendation to government about legislative change.

I hope you'll be mindful of those comments. Please proceed.

Mr. George Seitz: Good afternoon. I'd like to welcome you all to Regina.

First off I'd like to thank the committee for allowing me to speak today, and I'd especially like to thank those individuals who made this day possible.

I'd like to cite my case number, which is Seitz v. Seitz, 36 of 1996, in the province of Saskatchewan, Court of Queen's Bench, Judicial Centre, Regina.

I'm a member the National Shared Parenting Association and fully support its cause, that being to promote the well-being of children by advocating full and equal involvement in parenting by both the mother and the father as well as the preservation of extended family. I also support the preservation of every parent relationship with every child, both for intact families and for families in the process of separation and divorce.

I don't think anyone in this room can disagree with me when I say there are significant problems in Canadian families today, nor can anyone disagree with me when I say children must be our main focus within families.

We all must ensure our children are well cared for. We must also consider and not forget the many adult children of the past who also need support and healing. We must no longer get caught up in the blaming and the bickering back and forth or the numbers found in studies. The simple fact that these numbers and problems exist is why we are here today, is it not?

I'm appalled by the way children are being used and abused by parents as weapons to punish and hurt the other parent, exploited as part of the political propaganda of special interest groups that believe children and mothers are a package, and used as pawns by those in the legal system to settle property and money issues. It is quite clear to me that law comes before families in the family law courts.

Far too many cases are being judged on laws that are biased in favour of one parent, laws that determine one's role in society based on one's sex at birth. Parenting and paying must no longer be discriminately decided based on the sex of the parent.

My suggestions only address a small percentage of the issues surrounding the struggles I faced in wanting to continue my role as a parent. My concerns lie not only in my two children—Jordan, eight, and Magda, four—but in all the children across Canada who are fatherless or motherless.

I have been representing myself in the very adversarial court system for the last 21 months of my 27-month struggle for Jordan's and Magda's needs and rights, along with my rights. During this time I have faced ignorant, unwilling social workers and civil servants; I have witnessed reckless behaviours by lawyers; and I have faced bias and ill-considered judgments by judges. I am a loving and caring parent, as stated in a focused custody and access report, yet somehow I have now become a visitor in my children's lives.

Fact: Children all over Canada are being denied the right to have both parents equally involved in their lives after separation and divorce. A child's fundamental development depends on their relationship with both their mother and their father.

Fact: Every day children in Canada are being moved away from one parent—usually their father—extended family members, and friends. Most cases are custodial mothers who are angry and vindictive. Children seem to have become property of custodial parents and are being used as weapons to control the non-custodial parent. Children are also used for leverage for financial gain by these custodial parents.

Fact: False allegations about spousal and child abuse are being used by vindictive and angry parents.

Fact: Parents and children live in poverty as a result of separation and divorce, and yes, this includes fathers.

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Suggestions for salvation: One, remove the adversarial court system from this family dilemma. I believe there's a less controversial way of dealing with the family breakdown with one that doesn't support the divorce industry.

I believe an effective parenting plan can be reached and implemented by using a round-table family planning model that I can share with the committee later.

Mandatory shared parenting: All separations and divorces involving children must immediately implement and enforce shared parenting to protect and preserve the rights and needs of children. Mandatory shared parenting must be legislated. All court orders involving children whose parents are separated must provide the court with a parenting agreement within the two-week period of separation unless one parent is proven unfit or wishes to forfeit that right to parent. A parent unwilling to make joint decisions with the other parent, even through mediation, shall not have equal parenting responsibility until his or her behaviour has been corrected.

A simple process must be available to parents who wish to regain their parental rights lost in the past five years due to court proceedings. A child under the age of 18 must never lose the right to have both parents responsible for their educational, religious, medical, and dental concerns. Both parents must be equally responsible financially to provide for their children, including the cost realized in transporting children between the parents' homes. Both parents should be encouraged to spend as much time with their child as possible and not have financial restraints put on them in order to do so.

Case workers and specialists, as required, must be assigned to a family once it is known by the court that a family has separated. The worker will monitor the parties involved during the initial stages of a break-up and will work with the family to ensure that children's needs and rights are met.

There must be mandatory educational classes, mediation, and counselling for parents who can't mutually agree on parenting after separation and divorce; mandatory education and counselling in schools to educate and support children; mandatory special training for those dealing with families before, during, and after separation and divorce; and aggressive awareness campaigns through various avenues, mostly the media, to inform people of this massive social problem we are facing today.

The Joint Chair (Senator Landon Pearson): I'm sorry to interrupt you, but you've gone beyond five minutes. Are you nearly finished?

Mr. George Seitz: I'm close to it.

The Joint Chair (Senator Landon Pearson): Please move right to the recommendations.

Mr. George Seitz: I'm on them. I'm sorry.

The Joint Chair (Senator Landon Pearson): Okay. We can get back to them in discussion. You'll take up the time of the others if you don't get past that.

Mr. George Seitz: There must be campaigns aimed at all ages that can create a new reality differing from the one we are currently living in. False allegations must no longer be tolerated and those making them must be severely punished. Acts and legislation used in connection with family breakdowns must be reviewed, i.e. the Victims of Domestic Violence Act, the Matrimonial Property Act, and the Children's Law Act.

I have more here but I'll—

The Joint Chair (Senator Landon Pearson): You can come back probably through a question. We'll move now to Mr. Morsky.

Mr. Wayne Morsky (Individual Presentation): Thank you. Good afternoon, ladies and gentlemen. I would also like to welcome you to Regina.

My presentation will be broken down into three areas. The first one is a summary of my situation. Second, I have some recommendations. Third, I have some real life examples of how these recommendations can work.

Five and a half years ago, my son, who was six, and my daughter, who was four, were moved 300 kilometres away from their home with their mother. During this time, I and my immediate family have averaged forty 600-kilometre trips per year to access these children to parent them. The parenting schedules followed during this time has allowed my children only 20% parenting time with their father.

The divorce system in this country has deprived these two young children of time that they could spend with their father. I believe they have been denied something that is written in the United Nations children's act.

I believe the divorce system in Canada must be revamped so the fundamental rights of a child can be established to best suit that child. I suggest the method of parenting the children to their best interests should be determined by the parents first, if possible. Second, this should be done by professionals, such as medical authorities, educational people, religious leaders, etc. Third, after all of their attempts fail, it should be done by the court system.

By using this method, society places the decision of parenting in the hands of the most skilled people, meaning the parents or the people who are best trained. Shared and equal parenting, according to the child's needs, must be the goal of all these people involved.

• 1615

I believe that removing the adversarial process can create better dialogue and communication between the parents. I will use an example. I have been separated and divorced for six years now from my children's mother, and during that time, the communication was very poor. At no time then did it improve.

It only began improving about 8 months ago when both of us finished using our two lawyers. It has steadily improved at a slow pace, but at least it's an improvement in the best interests of our two children.

I would like to present another example of a recommendation I made about the parenting plan. I just recently remarried. The lady I married has gone through the exact same situation as I: she has two children, and she divorced at the exact same time as I.

They spent $50 on their divorce when they were separated and divorced. They have an excellent parenting situation between their children. The children move freely.

I don't say there's a difference between her two children and my two children, but I do know that the cost was astronomical compared to what they spent. The time and energy that has been spent has been astronomical, and I do see some differences in the four children because of what they have endured over the years.

In closing, I would like to ask a question that I am presented with many times from my children and in my work. I work with many people and I consider myself quite capable of dealing with a lot of problems in the job, but as for the question that I get asked from my children, I have never been able to answer it. They ask: Why, Daddy, can't we stay overnight? Why, Daddy, do we have to go home at 7 o'clock? It's a question I hope I never have to be asked again now that I've gone through that, and I don't wish that upon any child.

In summary, Senator Cools in one of her past sessions made a reference to a poem, and I'd like to make reference to a very short quote. I believe that it's very relevant to everybody in this room:

One hundred years from now It won't matter What kind of car I drive Or what kind of house I own Or how much money I have in the bank, But the world may be A different place because I was important in the life of a child.

I thank you.

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

George Charpentier.

Mr. George Charpentier (Individual Presentation): First of all, I'd like to thank you for the opportunity to speak today. Because I'm from Saskatoon, I have to welcome you to Saskatchewan.

I'm glad that our Parliament has seen fit to establish this committee, and I appreciate the fact you are very busy people. I do not envy you your task in this matter, but I do wish to thank you for your willingness to listen.

A little over two years ago, I returned home from work to find my home emptied of half the furniture, and worse, the only thing left of my infant daughter was a hanger for children's clothing and a box that had once contained a toy.

Since the onset of this divorce proceeding, I have heard more about the institution of divorce in Canada. I have summarized my thoughts with the following recommendations:

One: that the value of responsible parenthood be reaffirmed, and that the contribution of both mothers and fathers, in all aspects of a child's life, be valued as a matter of public policy and law. Further, the responsibilities and rights of both parents should be articulated. Research shows that fathers, as well as mothers, contribute to the emotional well-being of the child. It is simply time to recognize that post-divorce fatherhood is much more than establishing a presence at conception for the purpose of assessing the appropriate level of financial contribution.

Two: that shared parenting, not full custody, should become the presumption of law in Canada. Those seeking sole custody should be required to show cause, or as Mr. Morsky suggested, if you don't want your children, say so. A child has the right to parented by both mother and father. Sole custody in favour of the mother as a presumption of law robs the child of the father.

Three: that wrongful accusation of child abuse and domestic should invoke severe penalties. Child abuse and partner abuse is wrong; those who commit it should be punished. On this point, I have no argument. However, given the contempt in which we hold abusers, it is simply logical that those who unjustly accuse another should invoke equally severe penalties and should be held in equal contempt.

• 1620

Four: that those who make their living in matters relating to divorce be required to establish standards of behaviour and ethics that reflect the centrality of the child and respect the values of responsible parenthood with the provision of penalties for the breach of such standards. Lawyers, fortunately or unfortunately, are required to represent their client. Who represents the child? Judges should be held accountable for their decisions and marriage counsellors for their advice.

Five: that the process of divorce be revised, with mediation and education being required elements in order to lessen the adversarial nature of divorce and the horrendous emotional and financial costs associated with the present system. If not for the good of the divorcing couple, then this should be done for the children.

Six: that agencies of government and groups or individuals receiving public funding and conducting research and studies relating to the relationships between women and men and between parents and children be required to conduct those studies from the perspective of both women and men. I am tired of studies that are conducted for the sole purpose of proving how one gender is better or worse than the other. Although it may not be possible to prevent distortion by the media of information gathered, such studies and research should be conducted in a manner that is gender-equitable.

Seven: that new ways of avoiding the acrimony of divorce be sought and implemented prior to marriage. These might include education programs, prenuptial agreements relating to parenting, and even the requirement of obtaining legal advice prior to marriage. All I have to say to this is that an ounce of prevention is worth a pound of cure.

I will be going to a pre-trial conference on May 15. Why? Because I am not content to be told what I will have to pay with one breath, to be told that I will have absolutely nothing to say about my daughter's upbringing with the next, and with the one following, that I will be able to visit her exactly as someone else dictates.

As members of Parliament, you are responsible for passing the laws under which we all live. You of all people know that life is practical. Theory is fine, but day-to-day living is practical.

I'm sure if you think about it you will be able to find examples of divorces where common sense was swept aside with complete disregard for the effect all this was having on the children and how a little common sense would have gone a long way. Anything you can do to make this better for the children will be very much appreciated by me.

I would like to close with a quote written by Chief Poundmaker, who was sentenced after the uprising in 1885, and a very smart man: “We can never forget what has happened, but we cannot go back, nor can we sit by the side of the trail and do nothing”.

Thank you.

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

Mr. Grymalowski.

Mr. Kelly Grymalowski (Individual Presentation): Good afternoon. I'm here hoping to represent the non-custodial parents who have never been married.

I have a three-year-old son. I've never been married. I'd like to be a part of his life.

About three years ago, my son was about to be born and I was trying to have as much access to him as possible. The unwilling party was the mother. She didn't see fit for me to be a part of his life.

I obtained a lawyer, and asked him if she could keep me from my child. He explained to me that I shouldn't be kept from my child, but if the mother wanted to make it difficult for me, she could. He asked me if I wanted to proceed with the case. I believe, for my child's sake, he needs his biological father. We proceeded with it.

When my son was about three months old we went to court for the first time. We both produced evidence. There was evidence of false accusations and everything, but to me, deep down inside, I didn't think there would be a court in Canada that would keep a son from his biological father.

The judgment came in about week later, stating that a three-month-old child didn't need his biological father at the present time. I was pretty shocked by that. I was actually looking at the big picture, that some day I would be a stranger to my own son because I was denied access when he was three months old.

• 1625

I proceeded with it, and we went to the pre-trial. Here in Saskatchewan you're forced into mediation, which I found didn't work. I met with the mediator and I was saying, yes, I wanted to see my son. But mediation didn't work in my case, because it takes two to mediate.

We were then scheduled for pre-trial. We went into the pre-trial, and there were more false accusations and calling me a monster and whatever. But the judge we had there stated that he was willing to give more access than what they were willing to give me, and I was starting to feel pretty positive about eventually seeing my son.

About a couple of months before we went to trial, the mother saw fit to move away to Victoria, which caused great problems. I live here, and she lives thousands of miles away. We went into the court and I was awarded access to him. It was very limited. I was supervised all the time. Being supervised to see your own son—you can't describe what that feels like. You know, I coach children's gymnastics every day. I work with children every day, and now I'm being supervised myself to see my own son. It was as if it was a crime for me to pick him up, touch him, hold him—whatever.

I went through pretty close to a year of supervised access. I flew out to Victoria every chance I was awarded the access to him. There were times that I'd even fly out for an hour's visit.

I slowly plugged away at it, trying to get more and more access. In total I've been in front of a judge about eight times now. I've spent pretty close to $20,000. At present I get to see my son once a month, for overnight. I fly out there every month.

Basically, because of the legal fees and flying costs, I'm going on 30 and I'm financially destroying myself, because I believe what is right for our children is that they need their biological parents.

Being in front of a judge eight times—usually in the dock, if you watch other cases, there are about 10 to 20. I'm pretty disappointed in our system and the hostility and aggression that parents have over custody and access. It's like they use the custody, so that “I have custody of the child. He's my piece of property and what I say goes for him”. I don't understand why parents can't forget their differences and actually stop acting like children and start being parents to their children.

My recommendation is that I'd like to see our system drop the words “custody and access”. I believe in shared parenting. I believe that if we got rid of the adversarial role in the court system that the parents would start getting on. You know—eventually they'd have to communicate, which is in the best interest of the child.

I'd like to see a form of mediation, or where there are no lawyers involved with the parents, if they're not getting along, see the two parents get together and communicate with a judge and hear each other's opinions voiced. I find using lawyers causes a lot of animosity between both parents, which in the long run is not good for our children.

Second, I'd like to see... Going through the court system, it's interesting to watch our lawyers. You go into the courtroom and they're watching who your judge is for that day. “This is a good judge. This is a bad judge”.

When we're dealing with our children, I don't think we should have good and bad judges. We're dealing with our children's futures here. I think we need a few more judges who specialize in family law—maybe not one judge ruling on one case, but maybe if there were two judges, and they communicate, and oversee one case...

The Joint Chair (Senator Landon Pearson): Are you just about finished, Mr. Grymalowski?

Mr. Kelly Grymalowski: Yes, I'm finished, then. Thank you.

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

Finally, Mr. Birkbeck.

Mr. Larry Birkbeck (Individual Presentation): Thank you, Madam Chairperson, committee members, your support staff, and certainly all those who have taken the time to put together presentations for your committee.

I understand there are a few people here today who are here because they are concerned about these very important matters. It is indeed a privilege to address the Special Joint Committee on Child Custody and Access. I trust my presentation will assist in untangling the web of despair so many children are caught in because of custody and access disputes.

• 1630

The family has long been considered the fabric of society. It is the family that develops our values and principles. It is the family that develops our belief in God and our religious views. I prefer to believe that a family that prays together stays together.

Unfortunately, this is not the case for many families. The family is in a certain state of moral decay.

There is no quick fix. The challenge is to seek sustainable solutions. Is that possible if the solutions are not Christian-based? I don't believe so. We will likely find ourselves simply growing out of one problem and into another.

The issue before this committee is complex. Discussions often raise more questions than answers. Why are there so many divorces? Who is a parent? Is it any person or persons who may happen to have a child living with them?

Divorce is too easy, but exceptions should include cases where a spouse or the children's safety is at risk. The concerns of the children are not considered when a spouse, often selfishly, decides to leave the relationship. This same spouse then proceeds to gain custody, using the argument that it is in the best interests of the children. The presiding judge accepts the argument and everyone goes home happy—except the children.

For decades women have rightfully fought to be considered something other than the chattel of men. Similarly, should children not be considered something other than the chattel of women? It is bad enough that a couple decides to live apart, but must we insist on breaking up the family? Must we destroy the parental connections?

Generally, when is it right or in the best interests of children to take them away from either parent? Where is the justice when a non-custodial parent is ordered to pay for his children's post-secondary education? Are married couples required to pay for their children's post-secondary education?

Non-custodial parents are too often left without any parental rights. Their primary responsibility is reduced to nothing more than paying support for the children and having a weekend visit every two weeks. Is this in the best interests of the children?

The new maintenance guidelines do not reflect the various levels of involvement the non-custodial spouse or parent may have with the children. Judges have shown contempt for these guidelines, and in many cases they are simply ignored. If a non-custodial spouse can spend more time with their children, is it not fair to relatively reduce the amount of time or the costs to the non-custodial spouse? Is this an efficient use of available resources, and is this in the best interests of the children?

It is clear that women's rights are vigorously protected and enforced relative to men's. Ironically, judges dishonour all that women have fought for when they respect a woman's right to be a domestic engineer but deny these same rights to men. Judges make decisions based on the belief that men are better equipped to earn substantial incomes. This is wrong.

Maintenance is enforced and access is not. This too is wrong. Non-custodial spouses must be granted a simple, cost-effective process for appealing violations of access orders.

Judges must end their bias against men respecting matters of custody and access. The system must be changed to reflect what is in the best interests of children. Joint custody should be the preferred option, and parenthood should never be dealt out of the equation.

Lawyers and judges must be held accountable for their actions. Unsubstantiated and erroneous evidence must not be tolerated in custody and access cases.

Children should be regularly evaluated to determine what their feelings are. Do they have no access rights? Are judges only concerned about the rights of women? The judicial system needs to be more compassionate, caring and sensitive. Simply stating precedence of law is not a solution.

I thank you for hearing my presentation. You have my comments and recommendations in my submitted brief. I would be pleased to answer any questions you may have.

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

Now to questions. Mr. Proctor.

• 1635

Mr. Dick Proctor: Thank you.

Mr. Seitz, in your opening remarks you talked about removing the adversarial system and forming a round table. I'd like to give you the opportunity to elaborate and tell us what you have in mind there.

Mr. George Seitz: I haven't really put it together, but the table would include someone who would represent the children, a child's advocate. There would be someone from the school, such as a school administrator, who knows about children and what they need and so on. There would be a child psychologist, perhaps, and a family physician, and other professionals relevant to the family in question.

You perhaps would also have a mediator for both the mother and the father. Included as well would be the extended family members, grandparents and other close extended family members. In all likelihood there would be a lawyer for each side, obviously, because you can't seem to get rid of them.

All of these people would be involved in coming up with an effective parenting arrangement for the children.

Mr. Dick Proctor: Obviously you would see this being established as quickly as possible after a marital breakdown.

Mr. George Seitz: Yes. What I would like to see established immediately, once a family is known to have broken up or whatever, is a caseworker—an unbiased caseworker, as we heard before—assigned to monitor the situation.

Mr. Dick Proctor: My second and last question, Madam Chair, is directed to Mr. Grymalowski.

You talked about but didn't elaborate on two judges being involved in one case. I was talking to someone at the lunch adjournment who clearly would be on your side on that. I would like to hear from you on why you think that is necessary.

Mr. Kelly Grymalowski: It's just from my experience of seeing the judgments put forth. I think it's a big decision for one person to make on the future of our children. There is a lot of bias in the court system.

As stated, the judgment doesn't usually come down in favour of the male parent. If the two judges would get together and discuss it, not just one person would be making a decision for our children. Two is better than one.

Mr. Dick Proctor: Is it in a supervisory sense? Would you see a judge pronouncing on a particular case and then perhaps it being reviewed at some point by another judge?

Mr. Kelly Grymalowski: Actually, I have an example here. I was in court in January. We had one judge. My lawyer said it was a good judge. He was about to make a verdict when my ex stood up and said she had been misrepresented, and it was unjust. She went on and on about it. So to keep her from appealing the decision, he reset the court date for two weeks down the road. Then she came in with another affidavit of false accusations that was two pages long.

What he did was this. In the first judgment he was giving me he gave me everything that would make me happy in terms of the child, but then out of the blue it changed. I had everything and it was minimized to basically nothing. I go out to B.C. for one visit, whereas he had me going out for... I'm travelling all that way for three visits, overnight.

So if there was another judge, I think it would have been an unbiased decision.

Mr. Dick Proctor: Thank you.

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

Mr. Forseth.

Mr. Paul Forseth: Thank you.

We've heard the theme repeatedly about ending the adversarial system. The problem is, what do we replace it with?

Some of the things we've heard about are upfront educational programs, mediation, and forms of arbitration processes rather than the adversarial trial and then the convoluted rules that relate to the decisions around that.

• 1640

To this group here, when you mention those things is that what is meant by ending the adversarial system, or are you going somewhat deeper? Does it go further, to other countries that do not have the historical British adversarial system for trial but perhaps an inquisitorial system?

Certainly we don't need to reinvent the wheel. If this is a common theme for this type of social problem, that the British tradition of the adversarial system at trial does not really work for this kind of social resolution issue, perhaps we can go to other jurisdictions, maybe Germany, Netherlands, Hungary or whatever, and look at inquisitorial systems that also have 1,000 years of history of getting at truth and solving social problems when people are in conflict.

So I put it to you folk that in terms of the round table you talked about—and the question, of course, is who's going pay for it—if this was the system and there was no other system, that would be the taxpayer-funded system that would replace the adversarial courts.

There are two levels in terms of what you really mean by getting rid of the adversarial system. Is it just this educational stuff and the availability of alternative dispute mechanisms but still the backup of the adversarial trial or is it going deeper and actually going into an inquisitorial system that other countries have?

Mr. George Seitz: When I talk about the adversarial system, I mean the court system where you have one lawyer pitted against another, and all that's on their mind is to win, win, win. You end up spending thousands of dollars in legal fees that could have been money well spent, money spent perhaps in mediation or put toward education and things like that. That's what I mean about the adversarial system.

There's going to be an amount of it present in some cases, although maybe not most, but I think people can work it out when they have extended family members involved and professionals who really and truly do know what perhaps is in the child's best interests. I don't think lawyers do, and neither do I believe many judges do.

Mr. Paul Forseth: Okay. Anyone else?

Mr. Kelly Grymalowski: It's also the word “custody”. In my view, it gives one parent entitlement to control every avenue of what the child does.

After a child is born in instances of non-marriage, the mother is given full custody because she gave birth to the child. If after the child was born it was automatically given that there would be shared parenting—drop the word “custody”—I believe it would mean both parents would be entitled to parent the child, not that one has custody, which causes the animosity.

Mr. Paul Forseth: Go ahead.

Mr. George Charpentier: Unfortunately, the very nature of the problem will be somewhat adversarial regardless of what you do. I don't think there are very many situations where there aren't some hard feelings at some level, which can take some amount of time to get over.

If I were to try to tell you here today that I have never felt any anger, I would simply not be telling the truth. There are still days when I feel very angry. But I don't feel as angry as I used to, and as time goes on, I imagine I will feel less so. However, I think some of the things around how we approach it at the outset would go a long way to reducing the nature of conflict.

At the present time, it does seem to me, at least in my particular case, to be all or nothing. I'm either the full-time father or I'm nothing whatsoever. That was certainly one way of upping the ante.

I believe, although I don't know for sure, there are times when people who are looking for a divorce are actually counselled by lawyers that the filing of a petition two days after a separation somehow is the best possible route to go. For some people, that's like waving a red flag in front of a bull. To me, that's pretty adversarial.

• 1645

So if one of these things happened we could say as a society, there's a problem here; let's be practical. There's some fairly hard feelings; there's some conflict in place here. We need to step back; we need a cooling-off period. Whoever has the child at that time doesn't automatically get the child forever because of the status quo that judges don't want to interfere with. And probably some of the counselling and letting people work through some of this... Also, statements in law go a long way to say that unless someone can show a cause of unfit parenting on one side or the other, or someone simply doesn't want the children, the assumption will be that you are equal parents. That's loud and clear to absolutely everybody.

It was a real shock to me to realize that, all things being equal, my relationship with my daughter would be limited to three hours on Tuesday and every second weekend and a couple of weeks in the summer. This just floored me. I didn't do anything to lose that much time with my daughter. Why? My lawyer says that's the way it is. I don't think that's good enough.

Some of the basic assumptions around what we do need to be changed so that everybody knows that the presumptions and the assumptions we make are different. Nothing I say ever means it's okay for people to hit one another. It keeps coming up, but that's not what I'm talking about. I'm talking about where we start. That would go a long way to addressing how we approach the problem from that point onwards.

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

Senator Anne Cools: Thank you very much, Chairman.

One of my questions has been addressed by Paul Forseth in terms of the often-repeated statement here from witnesses that we should move away from an adversarial system. On a philosophical point, is divorce a right? Would anyone or all of you like to answer this?

I don't know who wants to answer. Is divorce a right or is divorce a privilege? Perhaps nobody thinks about this any more.

The Joint Chair (Senator Landon Pearson): You have posed a deep philosophical question.

Mr. Larry Birkbeck: I would have to say that it is. I suppose when my ex made the determination and the statement to a counsellor that she felt she had a right to be happy... If you have a right to be happy—

Senator Anne Cools: I've been asked about that one. I know a lot about that one.

Mr. Larry Birkbeck: —by following that train of thought that is supported at the professional counselling levels, you have a right to a divorce.

As I mentioned in my presentation, where spouses, be they male or female, or their children are in fact endangered in any way, then it would be a travesty to deny them that right to be divorced and away from that bad situation. If you want an answer on it, I'll say yes, I believe it is a right. Whether it's written anywhere or enshrined anywhere I don't know, but philosophically and off the record ,I would say it is a right.

Senator Anne Cools: Does anyone else want to comment?

Mr. George Charpentier: Perhaps it shouldn't be as easy as it has become. Again, it's another one of those things where we have our expectations about people trying to work things out. Unfortunately, it is better for people to divorce than to stay together if there's no relationship there any more. That's fairly important and essential in marriages. Ultimately, at some point if I thought there were no other options, then divorce should be available. So ultimately, yes, it is a right at some point.

The Joint Chair (Senator Landon Pearson): Is anyone else willing to tackle this or will we move on to the next question?

Senator DeWare.

• 1650

Senator Mabel DeWare: We're sitting around this table, and some of us have been involved in politics and governments for a while, and we keep making laws to fix things. I even think sometimes when I look back at the Charter of Rights and Freedoms that it's created some more problems than it should have. You wonder, what's happening to us? In all this trying to fix things and make them right for people to make life easier and let them have their rights, how are we going to get back to the basic values that I believe Mr. Birkbeck was talking about?

You know, in 40 years, the evolution of what's happening to our families is just astonishing, when you look back from 1948 to 1998. Family values then were based on extended family, church, and school. Your minister, priest, or rabbi was a very important member in your community, and if you were in trouble, that's the first person you went to. I think the second one at one time was your teacher or your doctor.

What's happened to the family unit and what are we teaching in the school system? We can maybe try to help you, and that's what we want to do, but we also have to make sure that somewhere in our deliberations, we, or people in the system, have to ask what we're going to teach in our school systems. We have to somehow make our children, your children, who are coming up through this system, have a different sort of value.

And we have to hope things don't happen the same, because we notice now there's a trend. There's a trend in abuse in families. There's a trend in divorce. We have to break that trend somehow and make them think they have a responsibility as a person to get educated, to support their family and themselves, and to take a part in the community that's supporting them.

I know you'll say, “Oh well, you're reaching for a pie in the sky.” Well, I don't really think so. Somewhere along the line that was the philosophy I grew up in, because as you know by looking at me, I'm a lot older than some of you.

Mr. Larry Birkbeck: You're about my age.

Senator Mabel DeWare: Some of you probably could be my family.

What has happened to this compassionate society of ours? Maybe that's where we are right now. If there's compassion out there, that's what you're looking for. You're saying, “Well, that compassionate society had better try to do something for us.”

I'm making a statement. I don't know whether anybody wants to add to it or not, but then I'll go back to George just for a minute.

Mr. Wayne Morsky: Senator, could I comment on what you said?

Senator Mabel DeWare: You have a solution here, you say, to emergency intervention orders and so on. I like your solution, but it should refer to everybody. When you say “all allegations of abuse”, it should be allegations of abuse, whether it's abuse of a husband or abuse of a wife or child.

You say all allegations of abuse and violence must be handled with caution. We all agree with that. Then you say they must be immediately investigated by specially trained police and child care workers who know all the dynamics of domestic violence and child abuse and neglect, and by certified child psychologists and police officers specifically assigned to domestic violence cases.

You have a good statement there in your solution, but I think we have to agree that abuse has to be gender abuse; it can't be against the husband or against the child or against the wife. Do you agree with me on that?

Mr. George Seitz: Yes, I do.

Senator Mabel DeWare: Now, if anybody wants to make a comment on the philosophy of life, I'd be glad—

Mr. Wayne Morsky: In your first comment you were talking about being the law-makers. I don't if it was Preston Manning who first said this, but I heard him say it: “Once you're in a hole, stop digging.” We can't continue to make laws that are going to help these children. We have to start enforcing the laws that exist, and I relate that to denial of access.

As for our children in today's society and what we're teaching them right now, I am very concerned about that. I didn't enter into a second relationship for five years because I wanted to make sure my children did not experience the break-up of a family a second time. I wanted to give them the opportunity to see what a true and meaningful relationship is, because they missed out the first time.

I talk to my children about what they've learned from the divorce—we've been very open with them, even though it has been traumatic on them—and I truly believe they will be very cautious in their future and use every method and every skill that we've taught them and that they can learn to make sure they have a relationship that works. That's the hope I go on.

• 1655

Senator Mabel DeWare: We wouldn't want to scare them off, though, and have them not get married because of the fact that if this relationship doesn't work, well, then we don't have to worry about divorce and so on. You notice that a lot of people are not entering marriage today until after they have had an intimate relationship with each other for periods of time or are living together. Of course, that wasn't thought of in my day; it wouldn't be condoned. But that's what's happening. We have to make sure that this relationship is going to work, and that's because of society today, unfortunately.

Mr. Kelly Grymalowski: True. It's because of this that children are being born out of wedlock—

Senator Mabel DeWare: In your case.

Mr. Kelly Grymalowski: Exactly, and that's where I feel that some of the child laws should be changed, because I'm going on 30 and I haven't been married in a time where my parents were married at 18 and having children at 18. Now I'm feeling this “Oh no, I'm not married”, but I'm not entering into it lightly. I'm going to have another child by another woman, and it's going to be very stressful for my first child, and I'm not moving into it lightly.

I think that's why we're doing this hearing today. I can't help my first-born son, but someday in case it happens again—if I don't marry the next woman—I don't want the same thing happening again, where my child only sees his dad once a month. I think a child deserves to see his dad more than once a month.

Senator Mabel DeWare: Is your son's mother married again? Has she remarried?

Mr. Kelly Grymalowski: She's not married.

Senator Mabel DeWare: No?

Mr. Kelly Grymalowski: She's not married. She's in the process of being married, engaged or not engaged, and you have to understand that there's going to be another father in the picture. My son is going to have two dads. Eventually I'm going to be married and then it involves four people—not only my whole family, their whole family. There are a lot of people involved here, and we have to be very careful about how we decide what's going to happen to our children.

Senator Mabel DeWare: We're going to have some very interesting family trees out there in the future.

Mr. Kelly Grymalowski: Exactly.

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

As chair I don't often get an opportunity to ask a question, but I'm going to take a little time because we have a few minutes left.

A couple of you have mentioned and appreciated the need for some education or serious reflection prior to marriage about the implications and the responsibilities that marriage entails. I wonder if any one of you would like to comment on the programs that some countries I know of have begun to evolve for school systems, in which children or young people have an opportunity to learn about the whole concept of human rights and the degree to which that entails respect for one another.

In terms of the programs, a couple of you have mentioned the UN Convention on the Rights of the Child, and it's my firm belief that children who are respected and understand what respect is respect others much other easily, and that many of the problems many of us have gotten into could have been avoided if there had been this fundamental sense of respect for one another so that there was a more equal balance.

It's another philosophical question, but I'd be interested in some of your responses.

Mr. Kelly Grymalowski: I look at it as a custody issue again, and the way I view it from watching what's happening is why should the custodial parent have respect for the non-custodial parent? You have the child. Why respect the other person's wishes and beliefs, because if you don't agree with the custodial parent, fine, then you're not going to see them. We're losing respect in that way, and then how do you not become upset and angry? And then it starts to break down again.

We're dealing with an issue of a thousand details here—

The Joint Chair (Senator Landon Pearson): I realize that. I'm just wondering if some of the prevention could be to increase understanding of what it is to respect one another.

Mr. Kelly Grymalowski: That's where I go back to having to get away from sole custody. You have to sit down. There are two parents; you have to sit down and you have to communicate, grow up, start being parents and communicate and have that respect. Maybe it could be through mandatory counselling, a counsellor sitting in with you while you're trying to communicate and learn respect for each other.

• 1700

The Joint Chair (Senator Landon Pearson): Mr. Birkbeck has a comment.

Mr. Larry Birkbeck: I've been in many forums where I've had opportunities to suggest to people that at least it would be better for them to remain seated and appear to be a fool than to stand and remove all doubt.

In that context, I think what we have to do and what we learn as we get older...and I appreciated your comments very much, Madam DeWare. Going back to those old values, unfortunately we don't learn until we get older that it's important to take an hour at least, if not a day or two, before we respond to some angered situation. I believe the spouses, and in particular I think women... Women tend to be emotional, you see; men have been trained not to be emotional somehow, although there's an evolution. If a man cries, there's something wrong with him, and he should suck it up and get on with it, whereas if a woman cries, that's fair enough. Poor lady, she must have been hit with something terrible in her life.

I tell you, and I tell all women this, that we are weak, we are equals, and men suffer and hurt inside just as much as women do. Unless we start to embrace...and I've mentioned some biblical things in my presentation. Unless we start to believe the laws of God initially—not these superficial laws that we, as people who won't be here in a few short years, put together... Unless we start to do that in a fundamental way and work towards that—and many of you would disagree, and that's fine—we will not see any retardation of what I said is the decay of the moral fabric of our families. Unless we get back that basic family structure, this is going to continue.

I didn't have an opportunity to speak about the adversarial nature of our court system, and I have a very brief comment on that to the committee members. It doesn't need to be adversarial. It doesn't need to be that way at all. Any one of you around this table could make this whole session adversarial if you chose to do so. Judges do so in the courts of our lands, and they do it regularly; they do it every day. They decide they're going to pick one side or the other and they're going to get into the debate. They're supposed to be the referee. They're supposed to be listening to the substantiated evidence and making decisions on behalf of people's lives to that extent.

I am a result—and many men and women are—of terrible decisions in the judicial system. Let's not forget that it takes but a stroke of a pen to appoint a judge and a whole act of Parliament to remove them.

The Joint Chair (Senator Landon Pearson): A final comment to Mr. Forseth, and then we'll have a brief break so everybody can have a stretch.

Mr. Paul Forseth: I guess we're waxing rather philosophical here.

Senator Mabel DeWare: We had to get to it sooner or later.

Mr. Paul Forseth: Yes, I guess so. We're talking about maybe some of the fundamental underlying stresses in our society, and one of the points you brought up is that there are trends in our society that recognize the importance of freedom of mobility, of being able to do your own thing. We have an increasingly global society, and even in a country as diverse as Canada it is recognized that you have a right to be mobile and to gain advancement in your career or social development.

That right for mobility, isn't it guaranteed in section 6 of the charter? Certainly that makes a problem for parents, because you have mobility rights in the foundational document of our country and our society, and the right to self-determination, to social and economic development. That then can be directly in conflict with the responsibility as a parent, which is shared with somebody else. Then if you're going to pursue your Charter of Rights individually, that then directly undermines someone else's responsibility and desire to be a parent. That then breaks the very foundation of our society, which I hold to be the family unit.

So we have some fundamental conflicts that we're struggling to find answers for, and often it's a balance of competing rights. This has come up in Parliament since I've been in Parliament, since 1993-94. Sometimes we do get into situations where there's competing rights and how we struggle out of that...we're trying to find our way. I think what you've talked about today is further evidence of that.

Thank you.

• 1705

The Joint Chair (Senator Landon Pearson): We'll take that as a statement and take our break now.

Thank you very much, all five of you.

• 1705

• 1717

The Joint Chairman (Mr. Roger Gallaway): Order, please.

We have a panel of four. You'll see on your notice that there were to be five. One individual is ill and will not be here today, unfortunately.

We have Mr. Murray Valiaho, Yvonne Choquette, Mr. Douglas Johnson, and Mr. Larry Shaak—as in the hockey player, but a slightly different spelling. We welcome you.

I know some of you have been here and know you have five minutes. We ask for the Reader's Digest version of what you have to say.

We'll start with Mr. Valiaho.

Mr. Murray Valiaho (Individual Presentation): Thank you very much. I'm really happy to have an opportunity to talk to some people who are in charge of making the laws in the country—or recommending the laws, and some of them make the laws.

I guess you all make the laws, don't you?

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

Mr. Murray Valiaho: Collectively. Well, that's good, because I think there's a need for some changes in the laws affecting children and parents. So I'm really thankful and overcome with a lot of emotion in having the opportunity to have someone listen to my story.

I'm the proud father of four children with two different mothers. One situation, I'd like to say, is a good story, and the other a not-so-good story, I guess. I'll tell the good story first.

I have two children who live with me now, two boys. My ex-wife and I, through our divorce, did things reasonably well because we cared about the children. We wanted our children to grow up healthy and respectful, and with absolutely as much time with both parents as possible.

• 1720

In terms of going through that process in terms of the legal system, it took us a lot of effort to find a lawyer who would help us with the court documents. I think we had to see five or six people before we got somebody who would look after the situation at a relatively decent cost and do joint custody. This was in 1992, I think. Most of them said “You'll never prove you get along well enough to have joint custody. You should go somewhere else. I can't talk to both of you at the same time.” We were just horror-stricken with that and we almost gave up. We weren't quite sure what to do. We were thinking of maybe not getting divorced because it was going to be a problem.

Anyway, we managed, and the good news story there is that because we persevered and because we both love our children very much, we were able to do that and just keep all the money grabbers and the naysayers away from us. I suggest our children are doing quite well.

The bad news story is that I really wanted to be in a family and was involved with another women. We were fortunate enough to have two children from that relationship. It was an out-of-wedlock situation, where it was a dating relationship and we had two children. Then all of a sudden one day I was served notice that I was to pay a certain sum of money and not see these two children. I had to get a lawyer really quickly because I didn't know what was happening. I got a lawyer and exhausted what savings I had just for the interim stuff.

In the interim order I was to pay so much, there was no provision for access, and if anything happened to the mother of the children I still would have no say in raising the children at all. That's wrong. I haven't seen those two children for five years. We were sort of working together on developing a family, so the two children who are with me haven't seen their sisters for five years. They used to ask about them a lot, but they only ask how they're doing about every month or so now because I can't tell them anything.

I've tried to go through different avenues to get that done. I don't phone their mother because I've heard so many horror stories about people getting hauled off to jail if they contact the person. It's viewed as harassment or whatever and I can't risk that. I have two children with me and I couldn't risk being hauled off to jail just because I want to see my other two children.

I took time to become an educator. That's my background, just so you know that. I have a BA and B.Ed and a post-graduate diploma in the education of exceptional children. I have always wanted to work with children, do well, help bring up respectful children, and help make the world a better place. I don't know whether I'm very successful at the moment, because the world has some problems.

Maybe I'll just go to suggestions here.

I really think greedy lawyers have to be taken out of the equation, although not all of them are greedy. The lawyer I had was very kind. I couldn't pay her all she was asking me to pay and we worked out something, but I couldn't pursue the matter any more. I've been trying to talk to the lawyer of the mother of my two daughters. He's very understanding and so on, but he says “I have to represent my other client and we have to do this. I'm sorry, but that's just the way it is.” I don't understand that.

Perhaps instead of the adversarial system and the lawyers and industry that make certain people wealthy and other people impoverished and put children in difficulties, we should look at the analogy of schools. We used to have a social problem in the late 1800s or so with kids on the street and so on, so we developed public schools in order to help children grow up better. We have state-funded public schools. Perhaps we should have something like that for when people go through divorce.

But let me jump back to the front end.

• 1725

The Joint Chair (Mr. Roger Gallaway): I wonder if you could give us, in point form, your recommendations.

Mr. Murray Valiaho: Okay. We should have an alternate system that would make it fair and not onerously expensive for each party involved in trying to be with their children.

On the business of who is the best parent, if people had the right to choose the best parent I might not have chosen the parents I grew up with. I might have chosen somebody else, maybe Bill Gates or somebody like that. As some of the other people were saying earlier, we need more front-end work so people will know what they're doing when they get into marriage and raising children and the responsibilities there.

The state doesn't get involved in assessing people when they choose to have children. There's no evaluation. We don't go in there with psychologists and whoever else does assessments, but the minute there's a divorce we have all these people going in and saying, “Okay, who's the best parent?” That's silly. That's the only way I can describe it. It's silly and disrespectful to the parents and to the children to think the state should intervene except in the most terrifying cases, where somebody is off the deep end. I can't imagine how horrible it is for the parent who says “I'm sorry, you lost. You're not the best parent.”

The Joint Chair (Mr. Roger Gallaway): I'm sorry, you're way over time, so limit yourself to the recommendations and not to the commentary.

Mr. Murray Valiaho: Okay. Sorry.

Senator Duncan Jessiman: You said there were four and I have three so far. The education...

Mr. Murray Valiaho: We should bring some common sense into the amount of maintenance payments that are supposed to be made for non-custodial parents so they still have some resources left to visit the children. If the children are 500 kilometres away, and you have no resources... Can I make one comment to back that up?

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

Mr. Murray Valiaho: When the court was ordering what I was supposed to pay for child support, my lawyer said “This gentlemen has two children who live with him. How is he going to manage that?” The judge said “I don't care, the man's a philanderer”—I had to look that up, I had never heard it before—“and he's going to pay this. I don't care how many children he has.” So there's no common sense there. I'll stop.

The Joint Chair (Mr. Roger Gallaway): Okay. Ms. Choquette.

Ms. Yvonne Choquette (Individual Presentation): Thank you, Mr. Chairman. Honourable senators, members of Parliament, I appreciate the opportunity to be here today to speak to you.

I heard some of the committee meetings in Toronto. I'm from Toronto, but Saskatchewan is where my roots are. I'm happy to say my father is here. He's in his eighties and he's here to support me, so I'm very appreciative of this opportunity.

The serious nature of this problem is why I am here. I have had four years' experience in the court system, not by choice but because the law says if one of the parties wants to make an application to the court, the other party must be there because the other party is the respondent. So I was the respondent in about 14 days of court and an 8-day trial in which an Ontario court general division judge made a decision in the case of Choquette v. Choquette for my youngest son, who was five at the time—his name is Elliott—to move out of the care of his mother into his father's home. He had always been cared for by his mother.

Senator Duncan Jessiman: What year?

Ms. Yvonne Choquette: It was October 8, 1996.

I have two sons. My older son's name is Graham. The concern I have is for both both my sons, but certainly for my youngest son, who at age five was told the decision by the judge. The judge made the decision and my son said to me, “Mom, why are you not making that decision? Why is the judge making a decision about me?” What could I say?

• 1730

Committee members, I ask you as you're making laws to think about the children. They have no voice. They cannot speak to you.

I feel like I'm the next person in line. I'm a parent. It does touch my heart and I'm very emotional about it, so I apologize if I'm nervous about it.

I urge you to think of the children in this. They are the ones who are most seriously affected. The order is made about the child, not about the two parties. The order is based on what the two parties present. There is no part in the Divorce Act that says a judge must have all the information. The judge hears from the two parties by affidavit or from oral evidence, and he makes his decision on that. If one of the parties runs out of money or for whatever reason is not there to provide information to the judge, that state of non-information is what the judge bases his decision on.

He has to do that. The law says that a court of competent jurisdiction may, on application by either or both of the spouses, make an order respecting the custody of or the access to all the children of the marriage.

There's another section a little further down in the Divorce Act that says you can have a variation on application. That means that this can go on until the child is the age of majority, 18.

I've had four years. I understand it could go on until my children are 18. Their father has sole custody, and I have no options. I've spent $90,000. My child's voice is not heard.

Allegations reign supreme. The allegations made against me were that by being a soccer coach I was interfering in the father's access time. Because there are no regulations for people who make allegations to provide substantiating evidence, the onus was on me to show that it was not true, and that in fact it was a benefit for my son to have me as a coach. But it's very hard to disprove allegations.

Senator Anne Cools has brought forward a bill on false allegations. It was Bill S-4, and it's now Bill S-12, I believe. That bill would make lawyers and people accountable. The crux of the whole problem goes back to trying to prove somebody is a better parent. You do that by proving the other parent is not a good parent. Let's face it, if they were both good, the judge would say that we have joint custody.

Most orders are made of sole custody because that's what the judge is asked to make. That means one of the parents is eliminated.

I believe this goes back to the 1800s. I've done a lot of research and had a lot of reflection about why we're at this state. I have booklets here for all of you. I'm sorry they're only in English, not French. I would appreciate it if you would take one and read the research.

I want to say that I was one of those people, Senator Cools, who called the Assaulted Women's Helpline because the situation was abusive. Four years later, the father has custody. The courts do not protect children or mothers. That's not the place to find safety for children.

I think it goes back to the 1800s. In 1855, we had the Infant Custody Act—

The Joint Chair (Mr. Roger Gallaway): Ms. Choquette, I'm sorry to interrupt, but could you get to the recommendations? Your time is up.

Ms. Yvonne Choquette: Okay, thank you, Mr. Chairman.

May I just briefly say that Caroline Norton, in 1855, was instrumental in bringing forward the Infant Custody Act. That gave mothers the right to apply for custody. Until that time, custody was with the father. I think that's how we have custody and access today, and full custody.

I'll lead into the recommendations I have. First, there should be no judges, courts, or lawyers. If we are seriously going to take the word “custody” out of the picture, we need to have no courts. As a mother coming out of an abusive relationship, I say that there should be no courts.

Shared parenting is the second recommendation. A shared parenting plan should be in place immediately upon separation.

• 1735

The third recommendation is mediation—not as an option, but required. And the only way you can have it required? No court involvement.

The fifth thing is a child protection agency in place at all times so that people in an abusive relationship can contact that agency prior to separation. That agency is the one that has a voice for the children. There's going to be contact before the marriage ends, so if we have something in place... What I've found is that there's nothing in place now.

Thank you very much.

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

Mr. Douglas R. Johnston (Individual Presentation): Good afternoon. I would like to thank the special joint committee for allowing me the opportunity to be involved in this workshop.

I have been denied access to my two children for 10 years now, so for me there is a problem with custody and access. My communication with my children is restricted to a few phone calls, which are uncomfortable and are about two minutes in length.

What more needs to be said? It's a crime.

Even a court order that included joint custody, a threat of contempt from the judge for denial of access and numerous attempts on my part to solve the access problem had no effect in changing the closed mind and the determination of the ex-spouse to alienate the children from me.

In Saskatchewan, when a new baby is born, the public health nurse visits your home unexpectedly to evaluate how you and your spouse are dealing with this new part of your life. Suggestions are made, and if no problems or issues are present, they, the nurses, are not heard from again, except when immunization begins.

I feel this type of program would be beneficial if the same type of agenda were initiated after separation, which I perceive to be a new part of the children's and parents' lives. The professionals, whether they are counsellors from social services or the child advocate office or some division of the health department, could evaluate each individual's emotional state to see how the individual is coping in the new situation. Concluding that, the professionals could determine if further involvement is necessary or not. If intervention is needed, solutions could be implemented, whether it be mediation or counselling for the children or parents, and support could be given to all, with a follow-up occurring occasionally until deemed unnecessary.

The cost for this service would be small compared to the cost to society for rehabilitation of damaged children and adults later in life—nipping it in the bud, so to speak.

Perhaps educational support services that deal with the problems associated with separation and divorce could be implemented in our school systems. Considering the high rate of divorce in Canada, it could help our children adjust to this difficult situation and prevent it from being too traumatic.

Money is another large concern of mine, with the number one priority being the child's maintenance. It's very important. But the power of spending is given solely to the custodial parent. Is that fair? I don't believe so. That is why the shared parenting philosophy is attractive to me. It produces a much more level—and more informed—type of playing field. Like the old saying goes, two heads are better than one.

So much money is spent on lawyers and in court, money that could be better used in the child's best interests. To make matters worse, you are financially drained by the judicial system, then denied access is thrown into the ring and more money is needed to fight again for what you have been given in court. This all causes tremendous financial and emotional strain for you and hinders you from functioning rationally and focusing on your children's needs.

I don't admit to having all the answers to the problems of child custody and access, but with all the intelligence readily available in Canada, I am sure the suggestion I previously illustrated could be achieved and would have a happier ending than my case has had.

In closing, it is my opinion that though financial security for the children is important, the most necessary element in life for happier and healthier children is love, from both parents and from their extended families as well. The more fairly access time is divided between the two parents the better. Love cannot be felt through closed doors, letters or telephone calls. Just quality time with children can show love.

• 1740

Thank you for listening.

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

Mr. Shaak.

Mr. Larry Shaak (Individual Presentation): Thank you very much. I want to welcome all the committee members here to the city of Regina. I just travelled in from Moose Jaw this afternoon. In welcoming you, I hope Mr. Proctor clarified with you that Regina is a suburb of Moose Jaw. I don't know if he clarified that or not, but welcome to the wheat province anyhow.

In the last four years, I've often not felt listened to or believed. This forum gives me the opportunity to be listened to and, I hope, to be believed and trusted in terms of what I share. What I share with you this afternoon is not easy. If I become emotional, I hope you'll bear with me.

There's an error I make in terms of my thinking at times, and when I publicly say this I have to catch myself and pinch myself when I refer to “my” children. I need to refer to “our” children. I believe parenting is and needs to be a shared process.

In terms of my scenario, very briefly, I was separated in 1985 from my spouse and three children. The divorce was finalized in 1988. Our children were born in 1978, 1980 and 1982. Upon the separation, my spouse decided to move. I'm aware now why she decided to move 80 miles west of Moose Jaw. It was so she would automatically be granted sole custody by the courts, and that worked very well for her as it panned out in the scenario.

In September 1994, as an educator, I received a phone call at the office to appear at the Moose Jaw police station, and I was advised at that time that my wife had made an allegation of sexual abuse. She alleged that I had sexually abused our son. I was horrified. I don't ever recall being that shocked in my life. My life certainly has changed very much, and I expect, having spoken to many professional people since, that my life will never be the same, and that's the reality of this situation. I hope in the future these kinds of things can be rectified.

In September 1994 I was immediately placed on a section 810 recognizance, and in December 1994 charges were laid for sexual assault. In March 1996 the preliminary hearing was held, and then in November 1997 I was listened to. It took that long to be listened to, at least by the courts, and believed.

After three days of testimony, it took the judge only 30 minutes to reach a determination, and I was acquitted of this horrendous charge. The recognizance, by the way, is still in place; I have not seen our children for four years. It's still in place as my spouse alleges I drove by her place in 1996, and that will be dealt with in the courts in two weeks' time.

I think the problem is quite obvious as you've listened to the testimony this morning. I won't go into a lot of detail. I need to roll along here, because I know time is of the essence.

Non-custodial parents, often males, are separated from their families as a result of what I see as a gender-biased federal Divorce Act and custody rulings by the courts. This is a process of overt systemic alienation, discrimination and mental cruelty. Ladies and gentlemen, it must stop and it must stop soon.

I realize not every inter-family difficulty can be or should be resolved by courts. However, when court rulings and biased legislation contribute directly to inhumane, unfair custody and access arrangements, such rulings and legislation need addressing and rectifying.

At present, as you've heard already in testimony today, there is no accountability in the Criminal Code for spiteful spouses who make false allegations against another spouse. These false allegations place all onus on the accused, whose life instantly becomes destroyed psychologically, economically and socially, and creates an immediate severance of the accused parent from further contact with their children, and that was the purpose of the false allegation in the first place. It allows the game to be played, and the game is very effective.

I want again to play a positive part in the lives of our children. One false accusation has destroyed that possibility, and I'm not hopeful that I'll be reunited with our children. I wish I was. Hopefully, after this hearing, some changes can happen so this does not happen to other non-custodial parents on an ongoing basis.

• 1745

Improper police investigations, along with prosecutors fearing the wrath of a powerful women's movement, accelerate the separation of a parent falsely accused of a criminal act. There is a witch-hunt against men who are responsible and caring toward their children and want to be a part of their lives. This witch-hunt, which is strongly perpetrated in Saskatchewan, must come to a stop. Custodial parents often overtly prevent non-custodial parental access and involvement. We've heard that often today in the testimony. Such parents need to be held accountable.

When bad things happen to good people, we need to do something positive. At the next sitting of the House of Commons, I really hope there will be changes to the Divorce Act, whereby in a divorce all applications are automatic joint custody. Let's stop this control game of one parent against another. We need to be responsible to our children, and I think joint custody is the way to go. The word “custody” also needs to be changed from its negative connotations to imply care. I think that's important too.

The Joint Chair (Mr. Roger Gallaway): You're a little past your time. You've been doing well.

Mr. Larry Shaak: Very quickly, then, I just have a couple more points. I apologize if I'm taking too long.

I'd like to see amendments to the Criminal Code addressing false accusations, and a review of gender-biased recognizance. I'd like to see the establishment of a federal family resolution agency to deal with these matters prior to their going to court.

I'd also like to see this agency intervene in cases where any allegations are made of a criminal nature, so the parents are taken from the children while there is an immediate investigation so implantation of false memories and contamination does not take place.

Last but not least, I'm glad to see the children's advocate has been here, or possibly is still here. I would like to see a child's charter bill of rights here in Saskatchewan, and not only in Saskatchewan but across Canada for children in this country. I'd also like to see that bill of rights not brought about by adults. I'd like to see children have input into their own bill of rights.

Thank you for allowing me to present this afternoon.

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

We'll start with questions and Senator Jessiman.

Senator Duncan Jessiman: All the stories are somewhat unreal to me, but let me see if I can ask maybe two or three of you one question each.

Mr. Shaak, because you were last, am I correct that four years ago your wife left your home, took the children with her, started proceedings for separation and divorce, and got an order for sole custody?

Mr. Larry Shaak: The separation took place in 1985 and the divorce took place in 1988. The allegation—

Senator Duncan Jessiman: At what point did she get an order for sole custody?

Mr. Larry Shaak: She got the order for sole custody upon divorce.

Senator Duncan Jessiman: When did that come about?

Mr. Larry Shaak: The divorce came about in 1988.

Senator Duncan Jessiman: She got sole custody.

Mr. Larry Shaak: That is correct.

Senator Duncan Jessiman: Did you get access at that time?

Mr. Larry Shaak: Yes, I had fair and reasonable access on the books, but access in reality was not fair and reasonable.

Senator Duncan Jessiman: You got access and then you were charged with this crime of molesting your son. You went through a lot of problems and a three-day trial, and after that you were acquitted.

Mr. Larry Shaak: That is correct.

The Joint Chair (Mr. Roger Gallaway): I'd like to ask you if you could tell us where the trial took place.

Mr. Larry Shaak: The trial took place in Moose Jaw on November 17, 1997.

The Joint Chair (Mr. Roger Gallaway): Okay, and the name of the case obviously is Regina v. Shaak. Sorry.

Senator Duncan Jessiman: Do you know whether it was published in a law book somewhere? Can you go and find your case and read it?

Mr. Larry Shaak: I have not attempted to do that, sir.

Senator Duncan Jessiman: But you said notwithstanding that you were acquitted, there was a recognizance still in effect.

Mr. Larry Shaak: The recognizance stays in effect until the charge under section 145(3) of the Criminal Code, in which she alleges I drove by her place in 1996, is dealt with.

Our oldest daughter is 20 and our second-oldest daughter is 18 and I am still, by the recognizance, not allowed to have any contact with them.

• 1750

Senator Duncan Jessiman: That recognisance is because of the charge that was outstanding—

Mr. Larry Shaak: That is correct.

Senator Duncan Jessiman: —and that's been dealt with. That seems unreal.

All right, I'm through.

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

Senator Anne Cools: Yes, thank you very much.

I have a couple of questions, if I could begin with Ms. Choquette and then move to Mr. Shaak.

Ms. Choquette, you said false allegations were used in your instance. Were they used in a civil proceeding or were you actually charged with a criminal offence, as Mr. Shaak was?

Ms. Yvonne Choquette: It was in the divorce proceedings, although I have been also threatened under the Trespass to Property Act and privacy and other threats of that nature.

Senator Anne Cools: There is an insidious element or dimension to so many false allegations that are made within civil proceedings, where the standard of proof is much lower. In Mr. Shaak's case, obviously a criminal charge was laid, but your case sounds to be the more typical use of the false allegation.

I think you made the point very poignantly that false allegations are imagination and imagination has no limits; it's infinite. In so many of these instances, even if one is able to disprove or refute a false allegation, it is immediately followed by a new one. There's a lawyer in Toronto who refers to it as voodoo and psycho-babble, if I can quote Allan Gold. I heard him make a very powerful speech where he called them the ghost writers in the system, but in fact they're sapping resources that are so vitally needed.

Yesterday in Calgary, we had a submission from Michael LaBerge and Marina Forbister of the Equitable Child Maintenance and Access Society, Calgary chapter. They made a recommendation as follows. I quote from their paper, page 9, as given to us yesterday:

6. False Allegations:

(a) Amend the Criminal Code of Canada to include filing of false allegations of child sexual abuse, physical or emotional abuse or neglect as an indictable offence as a form of abuse in itself;

(b) Ban the right to publish the name of a person based on allegations only.

They wrapped their minds around obviously false allegations and have located the offence where it rightfully belongs, which is in the Criminal Code, not the Divorce Act.

I was quite impressed by the quality of work they did on this, and I wonder if either, both, or all of you could respond to their proposal.

Ms. Yvonne Choquette: I would love to respond to that, because their proposal suggests that emotional abuse or allegations of emotional abuse should be included, and I think that is absolutely true. In fact, right now that is one of the allegations that is being spoken to my children and me regularly and frequently, and it does incredible damage. We must put an end to this. Family law is not a place where abuse can reign and there are no limits. We don't want that passed on to our children.

Senator Anne Cools: Absolutely. It must be terribly painful.

I'd also just like to underscore that this particular phenomenon has been addressed in the civil justice review of Manitoba and in the civil justice review of Ontario. It is a phenomenal problem, and it is soul-destroying for any parent to be so terribly treated.

In the other instance, Mr. Shaak, was yours a criminal proceeding or was it dual? Was it both civil and criminal?

Mr. Richard Shaak: It was a criminal proceeding under section 271.

Senator Anne Cools: The charge was laid. Once it has been laid, one has to go through and hope for an acquittal. I thank you very much.

Bill S-12 is a little different. It holds the lawyers accountable.

The Joint Chair (Mr. Roger Gallaway): Dr. Bennett.

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Ms. Carolyn Bennett: I'd like to ask a question of Ms. Choquette.

Your approach in terms of the voices of children not being heard is certainly, for us, the most important mandate of the committee. Kids do have opinions and do know, generally.

What we keep coming back to in these highly contested ones, more and more often—and we hope we'll hear from the child advocate office as well—is that maybe the outcome would be different if the children automatically had counsel, or at least an advocate, in all high-conflict actions.

What was most interesting in your presentation was that instead of bringing in child protection when you need it most, and therefore it's the most difficult to get it in there, assume it's there for all children of high-conflict relationships. Even the children themselves then would know who it is they could call.

I think we've heard from some of the children that if there's an abusive situation with one parent or the other, to have to call the other parent increases the conflict, whereas if the kids had a coach through the system, in a situation where they didn't feel safe—somebody was drunk or something—there would be a third party they could call. A coach would be assigned to the situation until it was resolved.

There then would be a continuum from the children's lawyers to the children's advocates to what used to be called the “child protection” system. Maybe we could almost launder the reputation of the child protection system if we gave them something good to do, where they could actually have good results.

Voices: Oh, oh!

Ms. Carolyn Bennett: I think they get a bad rap. We could get them more resources to actually do something in a preventive way, where they were entitled to be there, and not only asked to go when it's terrible. It's sort of like the public health visit that happens for all moms. I know they came to me.

Do you think your outcome would have been different if your kids had had an advocate?

Ms. Yvonne Choquette: Actually, there are several things I could bring to your attention that I think are really important.

The Office of the Children's Lawyer was involved. The problem there is that the evidence they produced in the form of a report basically goes into a file after it is produced unless one of the parties wants to admit that into evidence at the trial. If that evidence doesn't support either position, it may never get put into evidence. So taxpayers are paying a lot of money for these reports that could end up in files.

The other part of that philosophy is that if one of the parties is the one including that into evidence, it is being done because it supports their position, not necessarily because it is representative of the children.

In the whole realm of the trial, there are cross-examinations. What happened with Elliott was that although the report recommended that he should stay with mom, the report, through rigorous cross-examination, was led to be not of superior qualifications so that it could be included, so the judge gave very minimal weight to it.

The problem in our system—and I think this goes into the whole area of high conflict; we're talking about high-conflict cases—is that they get to be high conflict because the law says a judge is going to decide which one of you two is going to be the parent who looks after that child. It's no longer two parents. If we're really going to look at what is best for the child, that child wants two parents. Even in abuse situations, the advocate will probably tell you that even if the parent is abusive, the child still wants a relationship.

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We don't want that child to carry on into that same pattern of abusiveness, so we want to provide some healing. An adversarial court system is not the place for healing. That is the most aggressive place in which you can resolve your conflict.

With a law that says a judge will decide, you are actually, as lawgivers, saying that this is how we're going to treat our children, and parents don't have any choices about this. If one party wants to go into the court system and have a judge decide, that's the way it is.

Ms. Carolyn Bennett: There are some jurisdictions where there is early judicial intervention, where people actually sit down together and do anything possible to not put it to the judge at all, and you wonder whether...

Some of the presumptions and assumptions that we would all maybe... Do you think if you had extremely experienced child advocacy assessment, things that were attached to the court, and these people did this all day, every day, and their qualifications could never be questioned, it would only be in extenuating circumstances that the judge wouldn't just rubber stamp what the child's office said?

Ms. Yvonne Choquette: If I may respond, I encourage you to read what I produce, because I believe as long as we're in the court system, we have the court rules and there is cross-examination. There is the whole procedure of trials and judges and courtrooms, and that is an idealistic situation.

Unfortunately, when we're talking court, those courtrooms are the same places we try criminals and with the same rules. We don't have courtrooms that are family law courtrooms, because it's the same.

Ms. Carolyn Bennett: I think that's where some of the provinces are trying to go, to these unified family courts, and are trying to find a milieu much more like chambers and much less like a courtroom, to try to get...

You want out of that court house, period. It can't be down the hall, like in...

Ms. Yvonne Choquette: My comment is, why bother? That child needs two parents. Most of the people who are social workers and psychologists will say—this is what I was told—even if the father is abusive, what are you going to do? Are you going to deny access?

It's a very, very difficult thing in criminal court to prove allegations of abuse. The balance of probabilities is how it's decided in family law, so a lot of things show up in family law that wouldn't be proven in criminal.

Senator Anne Cools: That's right. That's the problem, and that's why they do it, because they know they can get away with it.

The Joint Chair (Mr. Roger Gallaway): Are you finished?

Senator DeWare has a quick question, and Senator Cools wants to make a...

Senator Mabel DeWare: Mr. Johnston, when I read your brief, I found you're paying $900 a month maintenance for two children. According to our last year's grid, you're only supposed to be paying $463. Are you paying spousal support as well?

Mr. Douglas Johnston: No. It is $900-and-some, tax deductible, because we settled April 20, 1997.

Senator Mabel DeWare: You have the right to go back and change that if you want to.

Mr. Douglas Johnston: Yes.

Senator Mabel DeWare: I just wondered. So this is your choice.

Mr. Douglas Johnston: As soon as I get the money to go back into court, yes, I will.

The Joint Chair (Mr. Roger Gallaway): It's easy for us to laugh.

Senator Cools.

Senator Anne Cools: Thank you. I thank the witnesses. I think some of this testimony has been very helpful

I would underscore the point that has been made several times in these hearings and that I think Ms. Choquette makes again. Essentially we now have in the court system the extensive use of these assessments by the mental health professionals, and so much rides on the credibility of the mental health professional, their assessment rather than the credibility of the parent.

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I just underscore the point that at some point in our deliberations we really have to look at these assessments in terms of who is writing them, the quality of them, the credentials of the individuals, and the weight that judges are giving to them. I just wanted to underscore that point.

The Joint Chair (Mr. Roger Gallaway): Thank you for coming and contributing to the work of this committee. I know it's not easy, because your stories are very personal and very intimate. We do appreciate the fact that you've taken time to be here.

The Joint Chair (Senator Landon Pearson): I call the Children's Advocate, Ms Deborah Parker-Loewen, to the table. She is accompanied by Mr. John Brand.

You are our last witnesses for today, and you're going to speak for the children. Please start.

Ms. Deborah Parker-Loewen (Children's Advocate, Province of Saskatchewan): Well, you've had a long day. I congratulate you. It's quite humbling to sit and listen to the other witnesses and the passion with which they make their presentations.

First, I want to congratulate the Senate and the House of Commons for undertaking this very significant consultation process. I think what we're now calling child custody and access is clearly an emotional and controversial topic. It takes I think courage and real commitment to do what you're doing as a committee. In particular your commitment to the well-being of Canadian children is evident as you launch this national consultation.

You've clearly heard many perspectives on the topic of child custody and access. I want you to know that I come here in my capacity as Children's Advocate for the Province of Saskatchewan. I'm an officer of the legislative assembly and appointed by the assembly. I report to the assembly of Saskatchewan as a whole. My responsibilities are to promote and protect the interests of children in a variety of ways. We would be happy to answer questions about that if you wish.

Just in response to some of the previous comments, the Children's Advocate in Saskatchewan does not have any jurisdiction with regard to custody and access decisions that are made in court. We don't have any access to that process directly. It's actually specifically denied in the legislation that I work under.

In addition, Saskatchewan does not have an office of a children's lawyer. That is non-existent in this province.

Your terms of reference state that you're going to conduct an extensive review of the literature and examine how other jurisdictions deal with this complex social issue. My colleague in Ontario, Ms. Judy Finlay, has presented you with a brief on behalf of the Canadian Council of Provincial Children's Advocates. I'm not going to repeat any of that information.

I was actually not even going to appear today, but I did think that it was important for you to hear from some of the children who are directly affected by custody and access decisions. So that's my emphasis here today, not discounting that other matters are important.

It seemed to me important that you hear first hand from children what they think would be of assistance as they try to cope with their parents' separation or divorce. I had actually hoped that it would be possible for me to assist some young people to speak with you today, but to my surprise I was advised that this had been an area of controversy for the committee. I understand that you have now invited and have had the opportunity to speak with some young people. I want to say that your initiative in that regard is significant and positive. That's great.

The concerns you had—or still have, I'm not sure—as a committee about how and when children should have a right to speak to committees such as this is reflective of the concerns that parents, courts, mediators, and others also have about children who participate in custody and access decisions.

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Whatever discussions you've had about how to include children and ensure that their voice is represented in this committee is also what happens in the court process or in the whole process of trying to resolve these situations. It's important for you to keep that in mind.

It is clearly important to ensure that children are not exploited or unduly distressed by any process that ensures them a voice. It's equally if not more important that children be given the opportunity to express their point of view. Canada's ratification of the United Nations Convention on the Rights of the Child increased national emphasis on children's rights. Article 12 of the convention provides children with an opportunity to express their views and to be heard directly or indirectly in matters affecting them. I won't read the full article 12 to you; you're probably familiar with it.

I do know that many people debate whether it is in the best interest of the child to be involved directly in mediation or litigation. Some authorities argue that children should not be involved in the process. You yourselves have determined that children shouldn't have direct access to the process you're involved in here today.

Those arguing that children should not be included in mediation or litigation argue that it could be damaging for the child to be put into a position where they are asked to expressed an opinion about where they would prefer to live or with whom they'd prefer to live. They argue that children may experience a serious loyalty conflict that can be psychologically damaging. Family mediation and litigation can be difficult and emotional and may involve significant dragging up of past events, which could expose children to damaging conflictual behaviour.

Others argue that children are already living the experience of their parents' separation or divorce, and that the children must be involved in the mediation and litigation, particularly if the issues are presented in such a way as having the child be included in the development of a parenting plan. If the goal is to maximize the child's relationship with both parents in a way that is consistent with the child's well-being, mediation and litigation must begin with the assumption that both parents will share parenting responsibilities and that the child will be included in the planning.

Older children may have strong views about where they want to live, how often they want to be moved between homes, and how they will fit the relationships with both parents into their social life or extracurricular activities. Any parenting plan developed without the child's input may well fail, precisely because their interests and point of view have not been considered. The child feels left out of the process and in some ways sabotages the success of the parenting plan.

Children who feel unsafe with one or another of their parents need to be respected and need to have their point of view carefully considered, particularly if they express any feelings of being unsafe. I recognize that there is a concern that one parent may falsely accuse another, and that children may be influenced negatively by one parent or the other. With that in mind, the child's point of view regarding the contact he or she has with both parents, grandparents, siblings or others must inform any decisions that are made. Children must not be forced into situations where they feel unsafe just because there's not substantial proof of any wrongdoing.

The UN Convention of the Rights of the Child, article 9.3, states that:

States parties shall respect the right of the child

—the right of the child—

who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests.

This convention article clearly gives the right to maintain personal relations to the child. Implicit in this is the child's right not to have personal relations, and I would suggest that the child's point of view must be considered if we are to respect the child's rights as defined in the convention.

I want to close my remarks this afternoon by sharing with you a story from one young person. She has given me permission to share her story with you, and I believe it illustrates the imperative we all have to include the child's point of view when decisions are being made, and our responsibility to respect that the right to maintain personal relations with both parents is the child's right.

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This young girl is 12 years old. Her parents are separated and her mother lives on a family farm. Her father lives away from the family home. The young person was placed in the care of the social services department as a child in need of protection after she asked for some help. She did not feel safe living with her mother. Her parents were not able to agree to a living arrangement for her and the court subsequently decided that she would remain in the care of the social services department until her parents agreed on a third party with whom she could live while custody and access arrangements were sorted out. In the interim she was placed with an aunt and uncle.

After some weeks of living in a foster home, it was agreed by her parents, social services, and the court that she would indeed go to live with this aunt and uncle, who lived several hours from her home. The court order, which was made without consulting this 12-year-old, also stated that she would visit her parents on alternate weekends: one weekend with her mum, the next with her dad, the next with her mum, and so on. This appeared to her parents and to the court to be reasonable and to be in her best interest. Each parent was also required to make their own travel arrangements for this young person and they were required to attend counselling.

She contacted the children's advocate office and protested. She felt that this order was unfair to her. She did not want to travel every weekend on the bus for six hours Friday night and six hours again on Sunday night. She wanted to spend time establishing herself with her new friends and in her new school. This young person decided she was not going to comply with the court order. She wrote to both of her parents and told them that she was only going to visit each of them every alternate weekend and that she was not going to travel on the weekend in between. She said they could visit her if they wanted to.

The aunt and uncle were now concerned, and rightly, that they would be accused of being in contempt of court—this was the paternal aunt—so they secured legal counsel for this young person at their personal expense. Although she had no legal standing in the interim custody discussion, this lawyer, on her behalf, wrote to her parents and to the parents' two lawyers and communicated this 12-year-old's wishes to them. He also asked that she be given an opportunity to be heard in the upcoming pre-trial hearing.

This young person has identified a number of issues for your consideration. I think she would have liked to have made this presentation herself today, but I'm giving it to you. I'm going to use her words as much as I can.

First, she was not informed about the process or about what was going to happen next. That bugged her.

Second, people—her parents and the social services staff—don't listen to each other. They're interested in their own concerns, not hers.

Third, she does not trust the system. She has told my staff that people always say children come first when in fact it's the adult who cries the loudest who gets listened to. No one is genuinely concerned about protecting her interests, she says.

Fourth, she was promised deadlines and they were never adhered to. She was told it would take only one month, an interim month, for the decisions to be made, and she's been living with her aunt and uncle for eight months now. She's waiting for a decision. There's still been no pre-trial hearing. She has said she wants to live with her father, and she believes that just because her mother doesn't want her to she's being denied an opportunity to have a family.

I bring this young person's situation to your attention as an example of the need to include, in a meaningful way, the child's point of view when decisions are made regarding residence and care. The right of relationship must belong to the child.

In summary, I strongly urge that any outcomes from your committee ensure that children's rights as they are defined in the United Nations Convention on the Rights of the Child are respected and promoted in any recommendations you make as a result of these consultations.

I did not include other specific recommendations in my submission. I would refer you to the recommendations made by Ms. Judy Finlay, Children's Advocate, Ontario, on behalf of the Canadian Council of Provincial Children's Advocates, which I strongly support.

Thank you very much for your interest. I welcome your questions.

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

Senator Anne Cools: Thank you very much, Chairman.

• 1820

I thank the witness for coming before us.

I understood you to say that the position of children's advocate exists as a statute of the provincial legislature and that the advocate is also an officer of the legislature. Did I understand you to say that?

Ms. Deborah Parker-Loewen: I'm an officer of the assembly of the legislature of Saskatchewan. Correct. I am appointed under the Ombudsman and Children's Advocate Act of Saskatchewan.

Senator Anne Cools: What is your statutory relationship with child welfare authorities? In other words, what is your relationship between the statute that brings about the children's advocate and the statute that brings into power the child welfare authorities? I don't know what you call it here, but some provinces used to call them child welfare or children and family services acts. What do you call it?

Ms. Deborah Parker-Loewen: The Child and Family Services Act.

Senator Anne Cools: What is the statutory relationship?

Ms. Deborah Parker-Loewen: The legislation I operate under is that I am an independent officer of the assembly, with all of the same authority that any other officer of the assembly would have.

I have it in law that the children's advocate “shall receive, review and investigate” any matter concerning any child receiving any service from any government department or agency.

So my relationship with the provincial child protection authorities is that I can receive and review. Another clause says I can try to help resolve through mediation.

Senator Anne Cools: So you can review and inquire into. Are there any adjudicative powers?

Ms. Deborah Parker-Loewen: The authority is that I may make a recommendation.

Senator Anne Cools: Okay.

Ms. Deborah Parker-Loewen: I must make the recommendation to the deputy, to the minister, or to the assembly as a whole, which of course at that point becomes a public recommendation.

Senator Anne Cools: So you have no superintending powers.

Ms. Deborah Parker-Loewen: None.

Senator Anne Cools: They're coexistent powers. The advocate has no superintending powers over the other authorities.

If there ever was an area of law and services needing review, it's the entire enabling child welfare authorities. They're really in need of an enormous examination and review. Many of them are still cast as Lady Bountiful doing charitable activity of a century past.

Ms. Deborah Parker-Loewen: An office such as this one also exists in British Columbia. We do have a fair amount of authority in terms of investigations. They have the authority to subpoena witnesses, to enter premises to review records. So the ability to do an investigation is fairly extensive, and any recommendations arising from such an investigation are taken very seriously by government.

Senator Anne Cools: I understand, but the relationship is...

At any rate, you've answered my questions. Thank you.

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

Senator Duncan Jessiman: Thanks very much.

It sounds very fascinating, but I want to know how it works and what you recommend. You know and I know that when two couples under the present system separate and start on divorce, you're getting into who's going to get the children. They both have somebody acting on their behalf. Some people act on their own.

Let's assume for the moment, for a model exercise, that they both have counsel, and they have just one child. At what age would you think the child's views should be considered?

Ms. Deborah Parker-Loewen: I'm not sure age is the appropriate criterion.

Senator Duncan Jessiman: Any age?

Ms. Deborah Parker-Loewen: I think maturity is an important element in that question.

Senator Duncan Jessiman: Tell me, then; you say “depending on the child”, but you wouldn't have one of a year, because he wouldn't understand, and not likely two, three, four, or five. Some five-year-olds are more advanced than others; I agree with you.

The age of understanding is what, five years old?

I'm not trying to trick you in any way. I'm asking what your thoughts are. Let's say I'm acting on one side and you're acting on the other side. You act for the mother. I act for the father. We want to find out from the child. How do we do it? You tell me whatever age you think, and let's go from there.

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Ms. Deborah Parker-Loewen: To define a specific age is very difficult.

Senator Duncan Jessiman: Give me a range.

Ms. Deborah Parker-Loewen: Some children have difficulties communicating; other children don't.

Senator Duncan Jessiman: Right, I agree. Is five to 10 the proper range? This child is 12, and obviously it worked.

Ms. Deborah Parker-Loewen: She has an ability to make a point of view.

Senator Duncan Jessiman: Yes, and what would be the youngest child? She obviously is the max, so let's go down now.

Ms. Deborah Parker-Loewen: It depends on how you're going to obtain the child's point of view.

Senator Duncan Jessiman: All right. You're acting and I'm acting, and you're the one suggesting this and I want to find out. I'm saying, God, I think it's a great idea. I do. I'm serious.

Ms. Deborah Parker-Loewen: Yes.

Senator Duncan Jessiman: If we can, we're going to try to put this in policy at least, and now I'm asking you. You're advising us, and we're the ones who are going to recommend to the government. I'm now asking you. You're acting and I'm acting on the other side, and I'm agreeing we should find out from that child what she thinks. So let's assume we know 12 years is the max. It doesn't matter; let's say it's 12. We have a 12-year-old. Do you and I sit down with the child?

Ms. Deborah Parker-Loewen: My recommendation, for what it's worth—

Senator Duncan Jessiman: Right, okay.

Ms. Deborah Parker-Loewen: —is that you define an age.

Senator Duncan Jessiman: Okay, we have a 12-year-old, and you and I agree that girl's mature enough. We have a mature child. What's your recommendation now? We have a mature child, we both agree she—

Ms. Deborah Parker-Loewen: Are you asking me about this child?

Senator Duncan Jessiman: No, any child of that same maturity. We have a mature child and you're acting on behalf of the mother—or I can act on behalf of the mother, if you prefer to act on behalf of the man; I don't care. I want to know how you and I as counsel... Do we meet with the child together, do we meet separately and then go together, or do we choose a third party to meet? Or are we to tell our clients to sit down with their child and talk to her?

Ms. Deborah Parker-Loewen: Senator Jessiman, there are many variations to this, as you know.

Senator Duncan Jessiman: Right.

Ms. Deborah Parker-Loewen: If you're assuming that you're already at court, which I hope—

Senator Duncan Jessiman: Well, let's hope we're not.

Ms. Deborah Parker-Loewen: Some of this discussion could have occurred well before—

Senator Duncan Jessiman: Right, let's say we're starting—

Ms. Deborah Parker-Loewen: —in a mediation process.

Senator Duncan Jessiman: You've just been engaged; I've just been engaged. These people are going to divorce. They've decided it's come to an end.

The Joint Chair (Senator Landon Pearson): Senator Jessiman, let the advocate answer, please.

Ms. Deborah Parker-Loewen: There isn't a clear answer, and that's part of the complexity of this.

Senator Duncan Jessiman: I don't know how we're going to recommend—

Ms. Deborah Parker-Loewen: It's not easy to clearly say how a child could be included. As a committee, you might want to consider some guidelines that reflect developmental ages of children.

Senator Duncan Jessiman: Right.

Ms. Deborah Parker-Loewen: Or you might want to consider an age at which all children would have an opportunity to have representation, and below that, dependent on their maturity and their developmental readiness, there would be an ability for their point of view to be included from a variety of perspectives.

Article 12 does not say the child must have legal representation.

Senator Duncan Jessiman: You've hit on something that may be your answer, if this is what you're saying, and I think it might be a good one. You might say to me, “I think we should have someone act on behalf of the children or child and then we talk to that person and he talks to them.” Is that it?

The Joint Chair (Senator Landon Pearson): Senator Jessiman, let her continue.

Senator Duncan Jessiman: No, no. What? What? She's had that point. I don't disagree with that, if—

The Joint Chair (Senator Landon Pearson): She hadn't finished her sentence, I don't think.

Ms. Deborah Parker-Loewen: Some children are quite capable of acting on behalf of themselves.

Senator Duncan Jessiman: I'm sorry?

Ms. Deborah Parker-Loewen: Some children may be well able to speak for themselves.

Senator Duncan Jessiman: Right.

Ms. Deborah Parker-Loewen: Other children may need an advocate to stand with them. Other children may need an advocate to speak on their behalf.

It is really important that whatever you determine has some flexibility in it to take account of the child's age of maturity. To fix a specific age—

Senator Duncan Jessiman: We have a child—

Ms. Deborah Parker-Loewen: —is less important to me than that whatever you recommend includes flexibility to be respectful of the child.

In my previous life I was a child psychologist. Children as young as two and three can give you direction, which, while it is suspect and open to all of the debate around the credibility of the mental health professional, gives some indication of where they're at at that point in time. But there needs to be flexibility built into whatever you determine.

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

Senator Duncan Jessiman: No, I have to get this, because this is very important.

Would you not agree that the last two people that one child should sit down with are the mother and father—sit down and tell them, “Look, I don't want to live with you; I might live with you”? They wouldn't do that, would they? Would you get a child of 12 years old to sit down with the mother and father who are going to separate, a child who has lived with them all this time?

• 1830

Ms. Deborah Parker-Loewen: There are ways of obtaining information from children, such as asking: What's important to you about where you live? How do you spend your time? Who do you spend your time with?

Senator Duncan Jessiman: I'm asking you now, is that something the mother and father should sit down and talk to them about?

Ms. Deborah Parker-Loewen: To talk to the children about?

Senator Duncan Jessiman: Is that child—

Ms. Deborah Parker-Loewen: I don't think there's a clean answer. I think it will depend on the circumstances and whatever you decide needs to have flexibility to have some range of options that will fit. I know that may well sound naive to you in this very conflictual situation. I also believe that in the spirit of the child being at the centre and the well-being of the children, it can be worked out if people are able to set aside some of their personal adult issues.

Senator Duncan Jessiman: And you think that possibly in some circumstances a 12-year-old child, who lived with her mother and father yesterday and they're now going to be divorced today, could sit down with her mother and father and say how she wants the custody to take place?

Ms. Deborah Parker-Loewen: Yes, I do. And she may change her mind, just like you might change your mind.

Senator Duncan Jessiman: You are a lawyer?

Ms. Deborah Parker-Loewen: No, I'm not a lawyer.

Senator Duncan Jessiman: I see. So you haven't actually...all right.

Ms. Deborah Parker-Loewen: That's not to mean I don't understand children.

Senator Duncan Jessiman: No, I already know that. But you haven't acted for them, so you can't... I know there's no way, when you have these people who are in conflict, and that's what we're talking about, those who are in conflict—

Ms. Deborah Parker-Loewen: I'm recommending that you include some way to have the child's point of view included—not the child's best interest only, but the child's point of view.

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

Mr. Proctor.

Mr. Dick Proctor: Thank you very much.

Ms. Parker-Loewen, you indicated close to the outset of your remarks that the children's advocate in Saskatchewan did not have jurisdiction with regard to custody and access decisions. As a visitor to this committee, and in no way an expert in this area, do I infer from what you said that there are other jurisdictions, children's advocates across the country, who do have greater powers? Or should I not read anything into that?

Ms. Deborah Parker-Loewen: No. In Canada, probably Saskatchewan has the broadest advocacy legislation. In some jurisdictions in the United States they call a children's advocate a person who may be a non-lawyer who will advocate for the child's point of view in a legal matter. So there's some terminology here whereby I think we in Canada are calling a children's advocate something different from what may be familiar to you from literature from the U.S. So I think it's just important to clarify that.

What I don't have jurisdiction in regarding Saskatchewan is any matter that's decided in a court. That's the restriction. It's not just a restriction on custody and access. Any matter that's been decided by a court would need to go back through an appeal process in court to be reviewed.

Mr. Dick Proctor: Do you have a personal or a professional view about whether the child advocate here should have that additional jurisdictional ability to be involved at the court level?

Ms. Deborah Parker-Loewen: My personal view is that an advocate's office, such as defined in Saskatchewan, does not have an ability to overturn a properly judicially assigned authority. I think, though, that we could have—and it doesn't have to be in this kind of office—prior to court, other ways that a child advocate, not necessarily as legislatively defined here, could assist children to have their voice represented. So that's a yes and no answer.

Mr. Dick Proctor: Right.

You also said there's no children's lawyer or lawyer for children in Saskatchewan, at the provincial level. Again, does that exist in other jurisdictions?

Ms. Deborah Parker-Loewen: As far as I know, the province of Ontario has an Office of the Children's Lawyer. In Saskatchewan, if a child has a need for a lawyer, there are some different ways that as an advocate's office, or other people, we can assist children to obtain legal counsel, such as the aunt and uncle did in the scenario I've shared with you. Legal aid on certain enumerated situations will take a child's case forward, although it's very limited in this particular area. And in other situations the child protection services may do that as well, or the public trustee in some matters will speak. It's somewhat hit and miss, and we're actually just looking at that within our province at this point in time.

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Mr. Dick Proctor: Thank you very much.

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

The Joint Chair (Mr. Roger Gallaway): I don't often ask questions, but I find this concept of listening to children's voices interesting.

I'll try again, Senator Jessiman. I want to give you an example where a husband and wife divorce and they have two children, ages four and 10. The husband has access; the wife has custody. Six years later the wife, through her lawyer, advises her ex-husband that the daughter, now age 10, doesn't want to see her father any more.

So you're called in to investigate. Knowing that the daughter has lived with the mother for six years, what tools do you have that would reasonably assure somebody on the street that in fact it's the child who's speaking and not the mother speaking through the child?

Ms. Deborah Parker-Loewen: If you're asking me as an advocate, I would talk directly to the child. If that's what the child says to me in a private conversation, at that point in time, it would be the perspective I would take forward.

I realize there are possibilities that someone has influenced the child. You need to realize that the father has had six years of access and he's also had an opportunity to meet with and speak to his child and to have her know him.

So the point I've tried to make in my formal presentation is that when the child has a point of view, that needs to be respected in some way. It may not mean she gets exactly what she wants. She needs to have that point of view accounted for and heard. If she's feeling uncomfortable at age 10 visiting with her dad, there may be some other reason for that. And this needs to be listened to, not just blindly accepting that this is the legal order and we'll just enforce it, irrespective of whether the child feels safe or not at that point in time.

I don't know if you have children, but your 10-year-old daughter at some point may not want to visit her grandfather. We need to have a discussion about that. What's going on? These issues happen whether parents are separated and divorced or whether they're living together. We need to find ways to be respectful of our children's points of view. This is not an issue specific to children where the parents are involved in marital breakdown.

The Joint Chair (Mr. Roger Gallaway): In the scenario I've painted, you say you would listen to the child. Let's assume the worst and let's assume that the mother is saying: you're going to have a meeting with this person, and here's what you're going to say. And if you don't say that, there are going to be some types of repercussions to you.

A 10-year-old child of either gender is very impressionable. How do you rule out that type of contingency?

Ms. Deborah Parker-Loewen: You don't. What you need to do is form some kind of a trusting relationship with that child with somebody so that as time goes on this can be dealt with. I'm saying the child's point of view at that point in time still needs to be respected.

The Joint Chair (Senator Landon Pearson): Senator Jessiman has a supplemental question.

Senator Duncan Jessiman: Would you agree with that if it were the same scenario but in reverse? The man has access, the woman has custody, and the little girl comes one day to the mother and says, mom, I want to move and live with dad.

Ms. Deborah Parker-Loewen: This is not a gender issue.

Senator Duncan Jessiman: No, I'm asking you whether it is the same thing. That's all.

Ms. Deborah Parker-Loewen: Of course, this is not a gender issue. This is an issue of respect.

Senator Duncan Jessiman: That's correct; I agree with this. Custody and access, whatever the child wants...if she wants to change not only access, because that's what the scenario was that the chairman suggested...but also the change of custody should be taken into account.

Ms. Deborah Parker-Loewen: Where the child is feeling unsafe, the child needs to be respected.

Senator Duncan Jessiman: I don't think any circumstances were given to you or certainly suggested that someone was unsafe. It was just that they didn't...for whatever reason.

Ms. Deborah Parker-Loewen: Certainly, it may be that they want to go to their school play practices and those are occurring on the weekends that they're supposes to be visiting with their other parent. I agree it's not only an issue of safety. These are negotiations that every family has to undertake. I'm a mother of three children. I negotiate with my children and my husband of 25 years around many things every single day.

• 1840

Senator Duncan Jessiman: I bet you win most of them.

The Joint Chair (Senator Landon Pearson): Dr. Bennett has the final question.

Ms. Carolyn Bennett: I wonder in terms of what resources you have or what you're able to do when your instinct is that what this kid is saying, who you go and advocate for, is in the long run going to cause trouble. If a kid says they don't want to see one parent, or lots of other things, shouldn't the bells go off that at some point the kid may feel bad about that? Is there anything you think we can do to apply pressure in children who really are only going to see one parent, or for whatever reason it is like a death, that it be dealt with appropriately with the kind of psychological support and counselling that would happen in any other of those situations so that the kid actually gets support for that decision and may actually ultimately change it if they were provided with the insight around how they made that decision?

Ms. Deborah Parker-Loewen: Are you saying that for a child in the event there will not be contact with the other parent?

Ms. Carolyn Bennett: I'm saying that automatically the kid gets counselling.

Ms. Deborah Parker-Loewen: I think children need support.

Ms. Carolyn Bennett: Yes.

Ms. Deborah Parker-Loewen: That support may come from a counsellor, but children can be supported in so many different ways. Counsellors are not the be-all and end-all. Extended families, family friends, other people who love that child, can be as supportive as a counsellor sometimes.

I haven't thought this question through, obviously, but I'm not sure mandatory counselling is important. I think if children are requesting counselling, they should be given consideration for that.

Ms. Carolyn Bennett: Whatever situation is there, if that kid has chosen now not to see a parent, aren't we almost saying...?

I'm a GP, so I know what I can do in terms of supportive counselling and I know when there needs to be a therapeutic value that's more than I can personally deliver. Sometimes in crisis intervention I can do it myself. There are other ones I refer.

I think in something as critical as a child deciding not to see one parent, aren't we already saying there needs to be some therapeutic nature to the next chapter in that kid's life?

Ms. Deborah Parker-Loewen: I think some therapeutic consideration could be given. I don't think things need to be black and white. Today the child says: I never want to see this other parent. There needs to be a way to keep the door open; there needs to be an option for communication.

Have you ever dealt with a man or a woman who never wants to see their spouse again? Eventually, over time, there may be a new decision made and a different plan developed, and things change. It's not dissimilar for children. Over time, with different kinds of circumstances or in safer environments, there may be ways to work that through.

Ms. Carolyn Bennett: Aren't we worried, though, that we're missing something, whether that's abuse or whether that's alcoholism? All the bells would ring, in my mind.

Ms. Deborah Parker-Loewen: You're going to give counselling to a child when there may be abuse or alcoholism in the adult.

Ms. Carolyn Bennett: I'm saying, find out what actually is going on.

Ms. Deborah Parker-Loewen: It's not the child that needs the counselling.

Ms. Carolyn Bennett: My experience with children who have suffered abuse is they need help working that through, and the earlier they do that, the healthier they end up.

Ms. Deborah Parker-Loewen: If you're saying if a child has been abused, do they need counselling, I think they need to be offered counselling.

Ms. Carolyn Bennett: If somebody says they don't want to see their parent any more, how do you know it isn't because there has been abuse?

Ms. Deborah Parker-Loewen: I'm not suggesting that not be investigated. I'm saying the child's point of view needs to be respected.

Ms. Carolyn Bennett: How do we do that if we don't have permission to keep a relationship going or to keep the kid talking?

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Ms. Deborah Parker-Loewen: Well, who's talking to whom here? If you're saying the child doesn't want to see parent A, that doesn't mean the child won't talk to someone else about why they don't want to see parent A.

Ms. Carolyn Bennett: But it might not be safe to talk to parent B about what...

I guess I'm just saying, can we put in somebody who is safe for the kid to talk to, rather than the one-shot deal in your office?

Ms. Deborah Parker-Loewen: Oh, okay.

The Joint Chair (Senator Landon Pearson): Dr. Bennett, if you'd allow me, I think this was brought up two or three times before. People on behalf of children have expressed to us that maybe there should be someone within the system whom a child can phone at a time in which they're feeling uncomfortable, in order to begin this process of working or understanding why it is that the child... Is that what you mean?

Ms. Deborah Parker-Loewen: Okay. I can actually answer that a little better. In our office we do receive calls occasionally from children, who say “I don't want to go on my visit to my non-custodial parent”, for want of a better term. Our office gets the call. We're a neutral third party, exactly what you're talking about. The person on the phone would clearly explore with the child what's happening: “Who have you told? Have you talked about this with anyone? Would you be prepared to talk to a social worker?” Frequently the child will say yes. Then we'll say, “What's your number? How can we get back to you?” We'll call a social worker. We'll make sure someone talks to that kid within a day. So there are ways to deal with this.

These are unusual events, even in our office, and we—

Ms. Carolyn Bennett: I'm sorry, but I guess my issue is, one of the things that comes to the top of the list all the time is resources. If we don't, as a committee, ask for resources for these kinds of support within a judicial or a court system, and say that we want these things to be available, then we're not going to get any money. I think that in Ontario the Office of the Children's Lawyer is only able to look after 60% of the referrals that are made, and 40% are being turned away. I don't think in Ontario we could get a kid seen the next day. I don't know how we get them seen. That's why there are all the fees, and that in this country rich kids get seen and poor kids don't, and that doesn't seem fair.

Ms. Deborah Parker-Loewen: I think it's really important to keep a difference between investigating allegations of mistreatment of children and providing children with counselling. Those two things don't necessarily go together. It is important to have accurate information.

The final point I guess I want to make is that what's important is to pay attention to what the child is saying, and then put that at the centre of the discussion, and not set that point of view aside or minimize it in some manner. If the child is uncomfortable, that needs to be respected.

Ms. Carolyn Bennett: Thank you.

The Joint Chair (Senator Landon Pearson): Thank you very much indeed for your presentation this afternoon.

I'd like to thank the audience, many of you who've been here all day, for your interest in this subject and for being here. I'd like to thank Mr. Proctor, who has joined us today at our committee.

Mr. Dick Proctor: Thank you very much.

The Joint Chair (Senator Landon Pearson): We now stand adjourned until tomorrow, May 1, at 9 a.m., in Winnipeg.