SJCA Committee Meeting

SPECIAL JOINT COMMITTEE ON THE CHILD CUSTODY AND ACCESS

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

EVIDENCE

[Recorded by Electronic Apparatus]

Wednesday, May 6, 1998

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[English]

The Joint Chair (Mr. Roger Gallaway (Sarnia—Lambton, Lib.): Welcome, everyone, to our 24th meeting. As required, because this is televised, I have to say this is the 24th meeting of the special joint committee of the House of Commons and the Senate of Canada concerning a study of the Divorce Act around the matters of child custody and access.

Today we have with us as our guests, from the RCMP Missing Children's Registry, Sergeant John Oliver; from the Department of Foreign Affairs and International Trade, Mr. Gar Pardy of the consular operations division; and from International Social Service, Agnes Casselman, who is the executive director there.

Welcome. I don't know if you've determined amongst yourselves who would like to speak first. You can certainly decide amongst yourselves, or I'll make the decision.

Go ahead, Mr. Pardy.

Mr. Gar Pardy (Consular Operations, Department of Foreign Affairs and International Trade): Thank you, Mr. Chairman.

Indeed it's a pleasure to be back on the Hill again, discussing what for all of us is certainly part of our daily lives: dealing with the tragedies that are inherent in international child abductions.

We were fortunate a few weeks ago to get a copy of the Commons committee report and the many excellent recommendations that are contained in it. John, Ms. Casselman, and I were just saying to each other that many of the things in there are things we can pick up and run with almost immediately.

For our part at Foreign Affairs, on the consular affairs side, we are the group of bureaucrats who try to deal with the problems Canadians have in all the countries of the world. As you read your daily newspapers, you can well imagine that there are not many dull moments for us, and certainly not many moments when we don't have something to do.

In all of this, cases and situations involving children of course have been a growing concern for us. In many ways they are the most tragic and certainly the most traumatic of all of these kinds of issues for which we have responsibilities.

I'm sure one of the conclusions your committee will come to is that it is very difficult to get any sort of grasp on the numbers involved here. We have numbers, John has numbers, Ms. Casselman has numbers, and the justice department has numbers, and we try to come together to give you some sort of sense of what is happening out there with these cases, because it's important to have some measure of the size of the problem we're dealing with.

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We try to track the cases that come to our attention. In 1997 we had 62 new cases of child abduction; we had 94 new cases of child custody issues, or if you want, in some terms, wrongful retention; and we had 51 cases of child welfare that we had to deal with. All of those occur in countries around the world. If you put all of these together, and remembering that we're dealing with cases here, we're probably talking about 400 to 500 children. That's what's involved in these kinds of cases.

And I would estimate that there could very well be an equal number of such cases that never come to our attention, because in an awful lot of these cases, people try to resolve them on their own, within the family and things of that nature.

There are no indications that the numbers are decreasing, and I would think many of the numbers coming to our attention today are a direct result of the efforts we have made over the last five years. John's efforts in particular and the RCMP Missing Children's Registry go back beyond that. What we're seeing today is a lot more cases coming to our attention as a result of the publicity and awareness we have given to this issue among Canadians.

It's important to understand the distinction between the types of cases.

An international child abduction we would define as a case in which the child is in Canada before the event occurred.

Child custody we define as when the child is outside Canada when the event occurs, and more likely than not what you're dealing with outside the country is wrongful retention or the inability of the parents to agree as to where they're ultimately going to live with their children. We tend to have a lot more cases like that coming into our system than we do of the child abductions.

On the child welfare cases, we use the characterization that more often than not these cases come to us because there are problems within the family overseas, and in one way or another, our people at our embassies overseas and our consulates are brought in to try to assist families in this. Usually a custody or even in some cases an abduction issue is associated with those cases as well.

As far as the international cases are concerned, we pretty much become the office of last resort. Parents try just about everything else, other authorities get involved and one thing and another, but when all of these efforts fail, generally those cases then end up with us.

By that time, you can characterize those cases by five or six different elements. The key one, of course, in all of this is that by the time the cases come to us, there has been a complete breakdown in the marriage or the relationship. And it's important to remember that in many of these instances, you're talking about relationships, and not necessarily some sort of formal marriage. By the time the cases get to us, there is a very high level of discord, there's bitterness, and sometimes there's violence between the contending parties.

Out of all this, one of the parties to the breakdown has decided that flight with the children to another country is the best solution. Once that decision has been made, the fleeing parent then will have successfully arranged for the travel documents for the children, will have made arrangements for international travel, and will have then made arrangements to go into a foreign country. The affected parent who is still in Canada then will have sought assistance from a variety of organizations and public agencies and will have discovered that for the most part, particularly for countries that are outside the Hague Convention grouping, very little can be done in any direct or immediate sense.

The one service we do provide to Canadians is that basically we can be one-stop shopping for all the issues associated with those cases internationally.

As that list of elements of these cases indicates, taking a child out of Canada and not having the legal permission to do so is still relatively easy. It is not a difficult thing to master. That so many of these occur and continue to occur will give you an illustration of the fact that for the determined parent, this is still relatively easy.

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But in all of this, and as you come to your own conclusions here, it's certainly our belief that the numbers can be reduced. In doing so, there is no one fix. There is no one answer in terms of how we go about this. Rather, the reduction in such cases or the containment of such cases within Canada will require a determined effort by a wide variety of authorities operating well inside the borders of Canada, because generally little is or can be done at the borders to stop a determined person from leaving the country with children.

In some instances airline personnel will pick up on some of these situations, or if they're going to cross the land border with the United States, American customs and immigration authorities are the ones who will pick them up. It's important to remember there is no official Canadian barrier to people moving outside of Canada, and I don't think it's being presumptuous to believe that is not going to happen.

Overseas, the most significant problem we encounter is that local authorities will not assist if the abducted children and the involved parents are not in contravention of local laws. Most of the countries that the abducting parent goes to with children are countries where there is family, there is community for that person, and by and large, in many of these cases, the abducting parent probably has citizenship within that country as well.

The police in foreign jurisdictions are loath to become involved in these kinds of cases, and very little can be done except trying to facilitate cooperation between the contending parents. This is where we spend most of our efforts and where we get most of our successes in these kinds of cases.

The second element—and this is something we certainly promote and try to encourage the affected parent to do—is to seek the intervention of the local courts to recognize the rights of the affected Canadian parent. Of course time and money are the essential elements, and for the affected parent in Canada, more often than not there is not time and there is not money to engage in a lengthy court battle in a foreign jurisdiction.

We do help parents. We do use public funds sometimes to assist parents to go to a foreign jurisdiction. We had a case the other day where a 12-year-old girl was abducted to Egypt, and we made arrangements for the parent to go to Egypt. We made arrangements for that parent to meet the child surreptitiously as they were going to school and put the two of them together in a taxi. In that taxi, the child said to the mother, “Look, I'm happy where I am. I do not want to go back to Canada.” And that was a resolution of the case. The mother then decided that the best way to proceed was to maintain a relationship with the child, and that five or six years from now, when the child was able to start moving on their own, then they could resume their relationship.

In many of those cases, that is probably the most we can offer for a lot of parents. Certainly when we really reach the brick wall on many of these cases overseas, that is what we try to convince the affected Canadian parent to do: try to maintain a relationship with the children in one way or another in the hope that in a few years the child will be in a position to make up their own mind and then come back to Canada.

We just spotted a young woman from Tunisia who had been abducted 12 years ago from Canada; I think she's 22 years old now. Through a variety of means we made sure the family.... It wasn't even a mother in this case, because the mother had some serious problems. It was the mother's family that remained the contact with the child overseas, and we made arrangements for the child to come back.

All of this operates quite outside the legal regime of the Hague Convention or the arrangements we're able to work out with other countries. Certainly it's been our experience that if we cannot get a country to sign on to the Hague Convention in terms of the limited arrangements it offers and the limited obligations it imposes here, we are not going to get such a country then to enter into bilateral relationships that are going to have mandatory provisions in them. The best we're going to be able to do with countries unwilling to sign the Hague Convention is to enter into agreements with them that will try to facilitate contact between the affected parent in Canada and the child, ensuring the well-being of the child, which is another important element in our work.

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So in all of this, that really is what we end up doing. We do a lot of this work in close cooperation with Ms. Casselman of International Social Service and Sergeant Oliver. I think among the three of us, there's very seldom a day that goes by when we're not talking to each other. So certainly, at our level, the cooperation is there.

As with all things in government, it would be nice to have a few more resources, but again, we accept as a given that we live with what we have. We're still able, I think, to achieve a fair measure of success. It's nothing near what we'd like to see, but again, for the ones we do succeed on, they're wonderful. For the ones we don't succeed on, we just keep trying.

Thank you.

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

Mr. Oliver.

Sergeant John Oliver (Missing Children's Registry, Royal Canadian Mounted Police): Thank you very much, Mr. Chairman. I appreciate the opportunity to speak before this committee on the issue of child abduction.

To assist police in their investigation of missing children cases, in 1988 the government established the Missing Children's Registry. It's now an internationally recognized law enforcement program devoted to the search and recovery of children. It's a component of the Canadian government's Our Missing Children program, which is made up of four government departments: RCMP, Revenue Canada, Citizenship and Immigration, and Foreign Affairs and International Trade.

The functions of the program are to intercept and recover missing and abducted children domestically or crossing international borders. We provide the issuance of border lookouts, display posters of missing children at all border crossing points in Canada, and train law enforcement agencies and other agencies in developing techniques in the detection of child abductors or abducted children.

The Missing Children's Registry itself works very closely with all national and international law enforcement agencies, federal government departments, and authorized non-profit agencies, such as Child Find Canada, the Missing Children Society of Canada, and the Missing Children's Network of Canada.

The mandate of the registry is to assist all Canadian law enforcement agencies to locate and recover a missing child if they require such assistance or ask for it. We monitor the missing persons file on the Canadian police computer system for statistics dealing with missing children investigations. We prepare statistical bulletins, annual reports, and articles on missing children, and we coordinate and exchange information on prevention programs within the Canadian police community and groups that search for missing children.

We promote networking, liaisons, and collaborative efforts with police forces in other countries, especially those belonging to the INTERPOL network. Members of my office are members of an INTERPOL committee that meets semi-annually on the issues of offences against children. We cooperate and assist accredited agencies involved in the research and recovery of missing children. We coordinate the travel reunification program that's designed to offer assistance to parents for the return of children to a jurisdiction determined by a Canadian court. We provide a computer aging program to requesting agencies. We participate with Canada Customs on border alerts.

That's the mandate of the registry. Over the years, the majority of the requests that we receive for assistance are for locating parentally abducted children. As a result, we've become known for the expertise we developed in this particular form of investigation, particularly in international cases.

We assist INTERPOL Ottawa in any case involving a child. Currently, we handle 60 new cases a month. We have approximately 1,500 to 2,000 open cases in the registry now.

There have been some recent developments that I think will assist us greatly. One is a case that involved a Canadian child that was abducted in Poland. At the request of consular operations at the embassy in Warsaw and the ambassador, we approached the attorney general of the province of which the child was a resident. The attorney general of that province agreed with the details of the case such that Canada could take jurisdiction and lay charges against the father for abduction.

What happened at that time was that the mother, who was a Canadian citizen, had a Canadian custody order in effect when the child was taken. The child was actually abducted while she was in Poland. With the action here by the law enforcement authorities, we believe that the police authorities in that country will act on our behalf to assist in actually locating the child. That was the purpose of the approach to the attorney general. It was to see whether they would agree to charges.

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I think this has been a landmark decision by the attorney general. We hope, if the same conditions on other cases are in place, that this will assist us in locating other children.

We provide services to law enforcement, such as the travel unification program, which I mentioned. This program provides free transportation to the parent or guardian of an abducted child anywhere in the world that the child has been located. The child can then be returned to Canada. The service is provided to us at no financial cost by the airlines involved, the transportation companies, which are Air Canada, Canadian Airlines International, and VIA Rail. The airlines provide us with free passes on any flights they fly in the world.

The registry also offers the computer aging program, which will age the photograph of a child who's been missing for longer than two years. That has worked for us. We have in fact located a child on the basis of an aged photograph. The child had been gone for 16 years. The poster was seen by a tourist at a Canadian customs border point, and as a result of that, we were able to locate the child.

In parental abductions themselves, everybody realizes that the children are the victims all the time. They're the ones who are in the middle of a dispute. Often, and most probably, they are being used as a weapon by one adult against the other.

In most cases, the effects of this disruption on a child are not considered. The motives of the offence are most often retaliation of a perceived injury. In some cases, it could be a denial of access to the child by the custodial parent. Many times, it's mentioned to me that the access parent is abiding by the order but the custodial parent continues to deny access. The parent perceives that there's no recourse for them, so they take the child.

The perception that there's no protection for them is not correct. Currently, there is in place a possibility for the access parent to get some remedies through the criminal law side, and there would be more concern for their protection and the protection of the child.

In others, the motives of these cases are simply a form of punishment. The abductor will take the child—they don't really want the child—as punishment against the other parent.

The biggest problem I've found is that many people mistakenly believe that the child is safe because they happen to be with one of their parents. In fact, that's not true. In many of the cases that I've been involved in and the studies that I've seen, the child is in as much danger as if they had been taken by a stranger. The child is in danger of being abused or neglected. They could be sexually abused. Most definitely there will be psychological problems. The child must be considered to be in danger, and it's a serious problem that the child is in.

The preventive measures for an offence such as this start at the time of separation. When the parents go into court or for any other sort of separation agreement, it's questionable who is looking at the interests of the child. Many times the courts are given reports from both sides, which can be biased toward the parent who is presenting them. There's not usually a person or party present in the court who's representing the interests of the child. All decisions involving the child must be taken in the interests of the child, not the adults involved in the dispute.

Not all separations or divorces of course are confrontational, but in our experience, the abductions do not always occur immediately after the custodial decision has been made. In most cases, when a child is taken after the court has decided custody, it's usually two to five years after the original decision, or the child would have been taken prior to the court arriving at the decision. Usually in that case, the parent abducting the child is taking the child in the belief that the court's not going to rule in their favour.

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Also, in many cases these days, the abducting parent will use the excuse that they took the child because there was abuse in the family and the primary custodial parent was in fact abusing the child.

I've been involved in investigations of this type for the last ten years. Like Mr. Pardy and Agnes, I have been involved in many recoveries of children.

In my experience, in the last ten years, I've heard a number of times that police should not be involved in this type of occurrence. The problem with that is that we're dealing with a form of child abuse. If we don't know where the child is, if you do not use the police network, they're taking out of the picture the best network there is to locate somebody. Once the child is located and we know where they are, there are other avenues we can take to ensure their recovery. We bring other agencies into this at that time, such as consular operations or ISS, but we have to know where they are, and the location is important for the apprehension of the child.

In any case where a child is abducted, timely intervention is paramount to the safe recovery of the child. The best instrument in place now for finding the child and returning the child to the parent is police intervention.

Thank you very much.

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

Ms. Casselman.

Ms. Agnes Casselman (Executive Director, International Social Service Canada): Thank you very much. I really appreciate the opportunity to address your committee.

You've embarked on a very important undertaking on behalf of children and families in Canada whose lives are disrupted by separation and divorce. Your work and recommendations in this area are going to have a notable impact on children and families, as well as on resources and services for them.

I also had the opportunity, as did Mr. Pardy and Sergeant Oliver, to address the Subcommittee on Human Rights and International Development of the Standing Committee on Foreign Affairs and International Trade as they examined the issues on international child abduction and then produced a very impressive report with recommendations. As you can well appreciate from the two presentations you've already heard, the work of this committee and that of the previous committee are very closely related.

ISS Canada is especially pleased with the focus of your committee in terms of examining these issues related to custody and access arrangements in the process of separation and divorce for the needs of the children. This child-centred approach that you have decided on is the best way in which to deal with this issue.

Let me introduce you a bit to International Social Service Canada. We're not as well known as the Department of Foreign Affairs and International Trade or the RCMP's Missing Children's Registry because we're a non-governmental organization, but ISS Canada is part of an impressive network of social services throughout the world. We service approximately 120 countries.

Throughout our 70 years of history, we've been very active in facilitating this cooperation at the international level when it comes to dealing with cases of child abduction, and custody and access matters that cross national borders.

ISS Canada became federally incorporated in 1979 as the national office of International Social Service. The general secretariat is in Geneva. It coordinates the development of the network.

ISS Canada works cooperatively with the Department of Foreign Affairs and International Trade's consular affairs bureau, RCMP's Missing Children's Network, and social service agencies throughout Canada. In cases of child custody and access, the ministry of the Attorney General may request a report through ISS Canada to have an investigation on a parent in another country.

We feel very strongly about the need to have objective reports before the courts so that the courts have all the necessary information. I think we all know that a parent may provide a very detailed affidavit and, if they've got a good lawyer, they can document themselves very well before the court, but ISS is able to provide objective reports where both reports are needed.

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International Social Service deals with and has been involved with the development of these international conventions and instruments there to protect children from the 1960s onward. We have observer status at The Hague Conference on Private International Law. We've been involved in the development of the UN Convention on the Rights of the Child, as well as other conventions, such as the Hague Convention on the Civil Aspects of International Child Abduction, which is probably the one best known to us.

I also put in my report to you a mention of the Hague Convention on Jurisdiction, Law Applicable, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measure for the Protection of Children. This is a 1996 Hague convention. It's not getting much play yet, but it clearly has implications for matters of custody, and it's certainly one that's worth looking at.

I have with me today a group of intern social workers who are part of the youth international internship program here with me. We were privileged to have Louise Lussier from Justice Canada come and present the work of the various conventions. It's such an integral part of the work of International Social Service. You really cannot divide the social service element from the legal implications and part of the service. So we feel very strongly about having the knowledge of the various conventions and having worked with them.

I suspect that members of this committee have heard from many member groups of parents, such as fathers who are being denied access and mothers who are saying they have been abused. I'm sure you probably feel like you're treading through a landmine field here, with explosions going off all around you. These are emotionally charged issues and you've struck right into the heart of the situation here by taking on this very significant work. I'm sure you've discovered tremendous anger right across the country here in terms of some of these issues and denials. It's very important that you hear these voices. It's important to know what these problems and issues are in relation to the parent.

But having heard that and having listened very carefully and taken good notes, the next part is to really proceed very carefully to look in terms of what's in the best interests of the child. And certainly it's very difficult to bring together warring parties. Now, when these parties are separated by national borders and we have the implications of distance compounding the problems that develop in custody and access, you're looking at mammoth problems to come through. So perhaps the only way to get a handle on this is to come at it from what is in the best interests of the children.

To this end, ISS strongly supports the work that this committee has embarked on. I want to come back to what you've already heard. There's the fact that both parents really want to remain involved in the lives of their children. That's what really this is all about. They may be separating and they no longer be married, but they will always be parents; therefore, it's really important at the outset to find those ways to put the rights of the child.... Article 9 says that the child has the right to be in contact with both parents. That has to be kept first and foremost. Then finding the ways to make that happen is the most important thing to happen.

We see some very encouraging trends these days toward mediation and joint custody. One of the most important ones I feel is the possibility of putting out there the need for a mandatory session for the parents to learn the benefits of mediation.

To that end, I draw your attention to the Alberta model. I've been quite interested to find out that Alberta Family and Social Services mediation and family court services has developed a very significant program. They provided me with information that I plan to share with my colleagues throughout the ISS network when we're in Geneva next week.

I also shared with this committee recommendations from the Council of Europe, because I think it's important to have a look at some of these issues also in terms of how others are seeing them, because issues of custody, access, and abduction cross all kinds of boundaries. Certainly the Council of Europe doesn't have the clout, but you do see 20 member nations there and you get a sense of where they're coming from.

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It's very encouraging to see the work and the issues being raised that mediation is an important tool to be used. When we say the possibility should be there for this mandatory session, such as we're seeing now throughout Alberta...it can be followed voluntarily by mediation.

What I'm hearing from Alberta—and perhaps you've already had representation here—is that they have embarked on some tremendous outcomes from that program after parental separation. I think it has meaning for us in our work and perhaps throughout Canada and other countries as well.

In the report I shared with you I also referenced some of the other international considerations, particularly the ones related to Germany right now because that's important. I think you had represented here the concerns around grandparents and lack of contact. Now, with the new legislation in Germany, you will see that they have broadened that category of persons who have a right of access. As well as the non-custodial parent, grandparents, siblings, step-parents, and former foster parents will have a right of access if this is in the best interests of the child. If an amicable agreement is not possible, these persons will be able to go to court and ask for access regulation. I think that's very significant. Of course, they involve the youth welfare authorities there.

You heard Sergeant Oliver mention the importance of defining abduction as abuse. Maybe we need to look at that in terms of the legislation. Quite often in child welfare, what we see is that this is child protection and this is child custody. When a child is cut off and alienated from a parent, that needs to be seen as a form of abuse. I have listed that as one of the issues for consideration by this committee.

I've also said that when the return of a child from an extended visit presents problems and the child is not returned, we may need legal counsel to assist a parent who's without financial means to pursue and deal with the illegal retention in another jurisdiction, in Canada or abroad. To that end, I was very pleased to see recommendation 13 of the international child abduction issues for reform.

I'm going to conclude my remarks. I have other recommendations here, but I would like to conclude by issuing to this committee a special invitation to join us in a seminar on November 6, which will be held at the Department of Foreign Affairs and International Trade. We're going to do a seminar on children caught in between—between warring parents, different jurisdictions, and all kinds of issues.

What we'd like to do is bring together the work of this committee and the other committee on international child abduction. We would like to hear about the work of your committees, hear your recommendations, and most importantly, between now and November 6, talk about some of the means of implementation that will occur. To this end, we will be looking to Senator Landon Pearson for leadership in the development of this and to Mr. Pardy and Sergeant Oliver. We will look at these issues together.

The final point I'd like to make is that public awareness is very important and we need to make the issues out there known to people. Particularly, we need to support the work that is going on right now by the Canadian Coalition for the Rights of Children, which is working on the monitoring of children's rights in Canada. The work of that committee needs enormous support. It certainly touches down on the areas of protecting and caring for children.

Thank you very much for giving me this opportunity. I would conclude by saying that the work of your committee is focused on the best interests of children. Ultimately it's going to serve to build stronger children, stronger families, and stronger communities. Thank you very much.

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

We'll go to questions now and we'll start with Mr. Forseth.

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

I was certainly interested to hear the international perspective. Sometimes I think what we learn from the international perspective is that we would like to see the same parallel services between provinces within Canada.

I want to ask Agnes Casselman a question. From the international perspective, you touched on how issues can be of such an emotional nature and have such a depth of feeling. I appreciate that, but what about the legal context of law within a particular jurisdiction and how that legal context may create or contribute to the need for alternate services, in conflict or not? I'm just wondering if you can point us to a jurisdiction from your experience, a legal context that perhaps does a better job than what Canada is doing of toning down the degree of conflict and allowing children's interests to rise to the surface and be more paramount.

You did refer to an interesting wrinkle in the German legislation. I'm wondering if you could point us to a jurisdiction that has some interesting things to teach us.

Ms. Agnes Casselman: That's a large question. Conflict in jurisdictions happens and we know that. I guess what we have to look at is what is the highest standard in terms of looking at the best interests of children. When we do that, what takes precedence?

At ISS Canada we see some of those conflicts in terms of a case of illegal retention, for example, where you have a refugee claim. You have all kinds of differences that come forward there. Which legislation supersedes and which is the higher standard, so to speak?

If you're looking at another country that might point the way, Germany has certainly had a chance to do a recent review, and I know some of that has been done in terms of the context of the Council of Europe and some of those recommendations. It may be worth looking at what they have done. I can get that for this committee if you wish to have that, or information from any country, for that matter. I can also poll my colleagues overseas next week to try to address that as well.

Mr. Paul Forseth: There are two other jurisdictions we've heard from that are of interest to this committee. Apparently there's a new regime that's unfolding in England, and we had one presenter from that country give us a very brief hint of some very interesting things being done there. One of the other jurisdictions, of course, is Washington state, which has gone through this whole exercise, and we've been looking there. We need to learn more about the problems there. I'm just wondering if there might be some other jurisdictions that may be of interest.

One of the themes that have continually come to this committee is that our history of the adversarial process as the legal context may not be the most particularly helpful one of this nature. Maybe we could look at those countries that have the inquisitorial system. When they devolve to their family law system they may have some better approaches than we do, because time after time the adversarial basis of our law has been seen as one of the problems.

Ms. Agnes Casselman: It is, and it can precipitate an abduction. We know that. That's why ISS comes in so strongly. You'll see it from other areas as well; we're promoting the mediation aspect to deal with that at the front end of the service.

Mr. Paul Forseth: I'll leave my other questions till the second round.

The Joint Chair (Mr. Roger Gallaway): Dr. Bennett, please.

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

I think one of the gaps we need to have filled in this committee is that.... As we continue to talk about trying to avoid exacerbating conflict in relationships, one of the recurring themes is that to take the words “custody and access” out of the act and replace them with something less laden with winner and loser, actually having parent education and moving to a parenting plan, would maybe prevent the high-conflict situation. But the one thing that keeps coming back is that if you take the words “custody” and “access” out of the act, what happens in international abductions? Would you then have to provide a custody certificate or something in order for a parent to go and get back their child, after we've worked so hard to get those words out of the act?

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I would love to have your three opinions.

Mr. Gar Pardy: Well, if you look closely at the Hague Convention, which is the only international document that really covers this area in any complete way, basically the way it's structured is that it does not deal with custody. All it does is try to establish in other jurisdictions that a child should be returned to a jurisdiction in which custody can then be established. So when you go into a foreign jurisdiction with these issues, the court in that foreign jurisdiction will not, in and of itself, establish custody. It will enable the child to be returned to a jurisdiction of habitual residence. It's in that jurisdiction of habitual residence that custody is established.

I don't think the convention itself, or the application of the convention, would matter if there was a slightly different regime in Canada in terms of how that was labelled or how that was determined. But the existing treaty is not the issue.

Now, as far as other jurisdictions, jurisdictions that are outside the Hague Convention, are concerned, I think it could be an issue. Normally our starting point in our ability to do anything in those is to go into that foreign jurisdiction with an established custody arrangement, labelled as such.

Ms. Carolyn Bennett: So it is crossing the international border with the child, and the child gets returned back over the...but the issue of custody isn't necessary in the Hague Convention?

Mr. Gar Pardy: No.

Sgt John Oliver: If it's done within the first year, after the first year of taking the child, then the courts in the country in which you locate the child can consider the custodial provisions. But if it's acted on quickly enough and the application is made within the first twelve months, if they follow the convention, they're not supposed to consider custody, but order the return of the child to the jurisdiction of the court.

So you have that time period in there that's critical, again, for the return of the child.

Mr. Gar Pardy: And 12 months is not a long time when you're determining these things.

Ms. Carolyn Bennett: No, it seems that if you can keep moving and spin out the clock for 12 months, okay.

Mr. Gar Pardy: You don't even have to try to spin it out.

Ms. Agnes Casselman: But then sometimes, of course, there come the allegations of abuse and so forth, and all that justification for the illegal retention. So sometimes when you talk about the various jurisdictions, you have child protection issues and the concern as to whether those need to be heard before the child can safely be returned to the parents. That gets complicated, because as Mr. Pardy and Sergeant Oliver said, the convention orders the return, and then those matters get decided before the home court.

As I say, we've actually seen that at ISS, where you have a refugee parent claiming abuse about a parent in another country, and there's an application under the Hague Convention. Now, you take a look at that and sort that one out, so that then in terms of returning them, how are you going to investigate allegations that occurred in another country? But those matters then come before a Canadian court. That gets very complex.

So how is a judge going to rule on a case like that? Normally it's a Hague Convention application, and you send the child back. One parent has a refugee claim. They may not be able to go back with the child, but there are allegations against the parent in the other country.

Then, of course, we arrange through social services for the apprehension and care of those children until these allegations can be investigated. But I think it really shows the importance of the work that we have to do together.

I was really excited coming here today, presenting with Mr. Pardy and Sergeant Oliver, because there are different approaches that we use in the best interests of the children. The police have to do their search, and they have to find out where the child is and the location and so forth, and intervene as may be required in a police matter. The diplomatic community has to make certain overtures and find information reports. ISS provides a social service component. But we all work together in these cases of child separation from their parents.

• 1620

Ms. Carolyn Bennett: One of the things you said that twigged with me was that abduction is a form of child abuse. Maybe we let Mr. Pardy off on this question, but I want to know whether, without crossing international borders, you would ever consider that a child has been abducted in its own home by denying access to the other parent?

Ms. Agnes Casselman: I think the whole area of parental alienation is an important one to identify—

Ms. Carolyn Bennett: As soon as you cross an international border, it's clear, but some people seem to be almost abducting children within their own hometown.

Ms. Agnes Casselman: It happens. Denial of access.... They may live down the street and not allow the other parent to have access to the child. That's why, whatever this committee comes through with in terms of recommendations and implementations, it has to be in the best interests of the child and they have to keep the provisions of the UN Convention on the Rights of the Child front and centre in all deliberations.

Ms. Carolyn Bennett: Does abduction apply within Canada?

Sgt John Oliver: Yes, most definitely, and depending on the circumstances, a criminal charge could be laid against the parent who's denying the other one access. It depends on the custody order that was dealing with the child and the circumstances of the case, but there is abduction within the country.

Ms. Carolyn Bennett: Thank you.

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

Senator Cohen.

Senator Erminie J. Cohen (Saint John, PC): Thank you so much for appearing. I think you've brought us to another level of consideration. Your presentations have been very helpful.

We've had different opinions about mediation from lawyers and witnesses. Some say no mediation and some say just lawyers. In reading this presentation and hearing you from the ISS—this is for you, Agnes Casselman—I was impressed with this mandatory consultation that you presented. A lot of witnesses have said you can't enforce mediation, but you could enforce a court order of mandatory consultation that would lead to mediation, because people are intimidated by the whole area of mediation.

I wanted to make that comment because I think it's something we have to consider very carefully. If we get the couple at the beginning, before the hostility builds up, maybe we could prevent abduction along the way. Who knows? Have you found that mediation helps prevent abduction of children, or is it a whole new area?

Ms. Agnes Casselman: No, it doesn't.

Mr. Gar Pardy: What we're dealing with, particularly internationally, is—

Senator Erminie Cohen: After the fact.

Mr. Gar Pardy: —after the fact. But we use mediation as a regular element in our management of those cases overseas. We will try—and it's not a formal mediation in the way that I think Ms. Casselman was talking about, where you back it up with Canadian law and the Canadian judicial system.

We have a parent overseas with the children. That person is in charge of the situation. What we ask ourselves is what we can do to influence that individual.

We just had a case in China. That person was back in China and there was no way he was going to allow his children to come back to Canada. We arranged for the wife to go to China. She spent four weeks there and we went with her almost on a daily basis to talk to the husband, and we convinced him and the child to come back to Canada. That's mediation the way we use it, which is quite different—

Senator Erminie Cohen: On another level.

Mr. Gar Purdy: Overseas, the only thing that works with any degree of regularity is to put the contending parents together with some sort of an outsider.... We're not trained mediators by any means, but you know the local environment and the local authorities, and sometimes the local authorities would like to get rid of this problem, because we create problems for them. So they bring a little pressure to bear on the other parent, and out of that kind of situation you may get a resolution of that case. But mediation in that sense is one of the few things that's available to us.

• 1625

Senator Erminie Cohen: Are there any signals or risks that you can recognize early on that might give you a hint that an abduction could take place?

Mr. Gar Pardy: Marital breakdown and close family ties to another country—those two factors are characteristics in many of our international child abduction cases. That close family connection in another country. We do get a lot into the United States where there are no family ties. Because of the nature of American society you can get lost there very easily. But in terms of countries beyond North America, that family connection, that sense of community by one of the parents going into that country—that is almost a constant element.

Sgt John Oliver: With domestic cases there are really no indicators except problems with the break-up. If it's not a friendly divorce, then probably mediation would assist. In a lot of the cases it would. Most couples are not going into mediation when they're in the divorce or separation stages. Yes, it would probably be a good preventive measure for abduction. In domestic cases there are very few indicators except when there are threats going back and forth during the actual custodial battle. Some of them get very heated.

It can be a very amicable divorce, and then five or six years later one parent will decide to keep the children after a visitation, without any indication prior to that. We've had cases where visitation has been very amicable, it's been going on for two or three years, and then suddenly a parent decides not to send the child back.

So you get both. The circumstances are almost.... Every case is different. Every case has these things to them. You can't say “This is a classic case”. There is no such thing as a classic case of abduction. It all depends on the two adults and the children involved.

Senator Erminie Cohen: Thank you.

Mr. Gar Pardy: Mr. Chairman, I would like to add one other thing.

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

Mr. Gar Pardy: The number of instances where one of the parents has a mental illness—I'm always amazed at the number of cases where one of the parents has an identified mental illness. More often than not it is a mental illness on the part of the mother, and the father with close family ties in another country decides this is something he can't cope with, that the children cannot be raised in this society, and on that basis takes the kids overseas.

Particularly in Islamic countries we see a number of cases like this. I can't present you with statistical evidence of this, but when you look at the cases to Islamic countries, it is the frustration I think of raising children in a society where that father.... He's probably a relative newcomer anyway, the services that are available...he decides the only thing he can do to cope is to return home, and home for him is the other country.

Ms. Agnes Casselman: I would like to come back to what I call the Alberta model. I'm not sure if you've heard the representation on that, but I would strongly recommend it if you haven't, because they offer “parenting after separation”. It's six hours, and as soon as they file in court the parents are required to attend that session.

When they first file in the court, they are required to attend a Tuesday and a Thursday evening, or an all-day Saturday session. They hold these meetings in the courthouse in Edmonton, I understand, and surrounded by the courtroom, it's very real. They average about 45 people each seminar. They get a certificate of completion that has to be filed in the court. It's taught by a social worker or a psychologist, and a lawyer. So you get the twin aspects that have to be considered in this. I feel strongly that this model may have something that we need to look at.

• 1630

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

Senator Pépin.

[Translation]

Senator Lucie Pépin (Shawinegan, Lib.): Perhaps we could ask if one of you has a copy of the Alberta legislation.

[English]

I have to switch your ear to French.

The Joint Chair (Senator Landon Pearson): Senator Pépin, we're having a panel next week on parenting education, and there'll be a representative from Alberta.

[Translation]

Senator Lucie Pépin: Is that all right? Mr. Pardy, I very much liked your intervention in which you said that, at the present time, there is no barrier on the Canadian side to officially stop people who kidnap children. The Senate Committee on Legal and Constitutional Affairs, of which I am a member, is currently reviewing changes to the Customs and Excise Act that are specifically intended to give Customs officers much broader powers that would enable them to arrest criminals, including parents who kidnap their children. It should be passed very soon.

You spoke of parents who kidnap their children. In the majority of cases, is it mothers or fathers who kidnap their children? Do you have a percentage or is it the same figure?

[English]

Mr. Gar Pardy: I will first go to your first comment. Would your consideration of the issue of broader powers for Customs and Excise Canada involve the examination of Canadians departing Canada?

Senator Lucie Pépin: Yes, because we're looking at what's going on in the United States, and we find that we have to do something similar.

Mr. Gar Pardy: As you know, we're trying to convince the Americans not to examine Canadians any more closely than they do now. We'll have line-ups all the way to North Bay from the border points.

[Translation]

Senator Lucie Pépin: We have noted that at the present time, Customs Officers can do absolutely nothing, and are obliged to rely on the police, who are not present. Therefore, it is essential to change the Act.

[English]

Mr. Gar Pardy: I think any facilitation...until now our reliance in this area has been largely in trying to convince airline personnel, whether here or in the United States to points overseas, to be more open on this. To give the airline personnel credit, I must say they've been very good. We've had many interceptions and questions from airline personnel who have called us directly to ask questions. I think many abductions have been prevented through that kind of activity. It's certainly one we would like to see continue, and we encourage and we're reaching out to the airlines and providing them with more help in that area.

With regard to who abducts, this area is as close to equality as one can find today, I think. That's the reality here.

[Translation]

Senator Lucie Pépin: You said that when you go abroad to conduct negotiations to allow parents to see a kidnapped child, there are cases where the negotiation often succeeds or you secure the return of the child. Does the same thing happen when children are kidnapped within the country? Is there a difference in such cases? You spoke primarily of children who are kidnapped in Canada and taken abroad. Are there as many kidnappings within Canada?

[English]

Sgt John Oliver: Last year the police reported about 500 cases. We don't know exactly how many domestic parental abductions there are. We had 500 cases reported to police, but the parents are not required to report. They could go the civil route.

We've tried to contact the Canadian Bar Association to survey lawyers in family law to find out exactly how many there are, but we've not been successful. We know there are at least 500 and we've been told there are probably twice that many actual cases, but we don't know for sure how many there are. All I can tell you is that there are approximately 500 cases in Canada each year, and it's probably higher, but we don't know for sure how many there are.

• 1635

All I can tell you is that there are approximately 500 cases in Canada each year. It's probably higher, but we don't know for sure.

[Translation]

Senator Lucie Pépin: When they come back here, are there psychological and other services available to help kidnapped children recover from the trauma? First of all, have they been traumatized? I would assume so. Secondly, are there services available to help them recover from the trauma they experienced during the kidnapping?

[English]

Sgt John Oliver: There is no established system to provide them service, no. Some jurisdictions will but most do not. It is strictly up to the parent. The parent gets care for them, but there's no established system to give these children assistance once they're returned.

Mr. Gar Pardy: I have one further comment. Ms. Casselman can correct me, but in almost every situation where we have made the arrangements for the children to come back and we perceive that there are problems of the type you're suggesting here, we, working through ISS, will go through the welfare authorities and the children's aid societies at the provincial level and pass the case off to them and in effect through them make arrangements for those types of services. Clearly there can be a high degree of trauma involved for the children in some of these cases, again depending on the age of the child.

In some instances—and I wanted to mention this earlier—it's not thought of, but you can have a situation where both parents in Canada decide to send the children overseas to live with relatives and the children perceive that their interests are not being looked after. We have many cases in which children in effect show up at our embassies abroad, where they have been sent by both parents, with both parents believing a term on the farm in the Punjab is going to do them good when the children clearly don't agree with them.

So when we get them showing up, it's in those cases that we will bring them back. This gets into the whole issue of age of consent here, which is also a very important issue that we've not touched on here. As you know, the courts are lowering the age of informed consent, I think, in just about all jurisdictions.

We make arrangements, then, through Ms. Casselman and the provincial welfare authorities and bring those children back. We would hope then that the social welfare agencies in Canada will provide the degree of support and care they need.

Ms. Agnes Casselman: I would like to add that the work with International Social Service and the Canadian missions overseas are well coordinated through Foreign Affairs. When they flag a case of child abduction with us, in a difficult situation like that, one of the first things we do is arrange for the parent in Canada to connect with counselling services. It's a situation where the parent is in crisis.

There's a twofold reason for that. First of all, it's to support the parent or the other children in the family, to make sure they have a chance to speak out around the issues, and get the professional support they need.

The second reason is to provide us, ISS Canada, with a social report. Sometimes we get a lot of information on what we call the “tombstone” data—they were married, they were separated, and so on. What we try to get is a good social background history. That is the working tool of International Social Service.

At that time there needs to be coordination in the other country. Whether it's because extradition has been set in motion or the child will be apprehended, coordination is so important, because social services in the other country are going to be involved. It's true we could let the police in the other country alone just involve the local services, but by us becoming involved at the early end, when Foreign Affairs advises us on the case, we will talk to the parent here in Canada and arrange for them to get connected, if we can, with a family counselling agency. We will call the agency and let them know about our service, let them know we're going to need a report that'll be used overseas, and translated, if necessary, for the local youth authority in the other country that's going to be involved.

The next reason for it is that if the child or children are returned to Canada, you have the same set of circumstances. If you simply bring them back and say, “Here's the child”, you're ending up with the same set of circumstances. That's why it's so important to start the services while the family is in crisis and to continue that far beyond. If it works out even that the children will not be coming back, it's even more important that we have started that counselling process. So that's very important.

• 1640

Family Service Canada has some very interesting programs that you may be learning about through this committee also. They have play therapy for little children, which is very important, and group programs for parents. I've put that in my report. These kinds of programs need to really be supported and developed.

Senator Lucie Pépin: This is my last question.

[Translation]

You seem to have worked on a number of cases. Do you follow up on the cases that you have solved? After they have returned to Canada, do you hear about these children some months or a year after their return? Do you know that they have recovered and whether things are going well? Are you able to communicate with the family?

[English]

Mr. Gar Pardy: I noticed the previous committee had as a witness a lawyer from Toronto, Ms. Heather Ritchie. She's a lawyer we work very closely with. Heather has developed an expertise, actually, as a Canadian lawyer understanding how to get things done in other countries with many of these cases.

We had a case in which she was involved with a family in Toronto—it was wrongful retention in that case—and we have stayed in very close touch. The family stays in close touch with us more because, for us, we resolved that one yesterday, and tomorrow is still coming at us. But many of the families actually will call us up, will send us cards at various times of the year and things of the nature, and just stay in touch in that sense.

There is nothing formal here. Sometimes, for many of the families, it is such a traumatic experience.... Getting the child back into Canada and making the kinds of adjustments that will be necessary in that is a full-time job. There is a sense that some families will close in on themselves and retire from the battlefield, almost, as it were, and certainly we're part of that battlefield.

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

Madame St-Hilaire.

[Translation]

Ms. Caroline St-Hilaire (Longueuil, BQ): Ms. Casselman, you referred briefly to mediation in Alberta. In Quebec, we also have a system of mediation; nevertheless, that does not stop children from being kidnapped.

I would presume that children are kidnapped following a divorce or a separation, when there is a conflict between the parents. In that case, how is mediation possible, since there is already a situation of conflict? Even if it is mandatory, what guarantee does a child have that the parent will comply with the mediator's recommendation?

[English]

Ms. Agnes Casselman: There are no guarantees. That's the first thing.

I am aware of the services in Quebec too, and their long-standing services in conciliation are very significant, as a matter of fact.

There are no guarantees, and you cannot force mediation. Again, coming back to the Alberta recommendation and the one that ISS has made a recommendation on in family disputes.... I will leave a copy of this. It's in French only, but it's a copy of the report of our secretary general to the Hague conference on family mediation. I provided a copy to the other committee and I will see that you receive a copy of this as well.

What we're saying is if you have a mandatory session that outlines the benefits of mediation to the parents—and that part you can make mandatory.... You can't force them into mediation, but what they are discovering in Alberta is that many are taking advantage of it. There's a sign-up. They can sign on and they can get six hours of free mediation services.

That's very important. Quite often, when parents need the service, they're looking at maybe many months of waiting and long waiting lists with agencies in order to get services. This is not acceptable. They need it right at the very beginning.

That's why your work with your committee is so important. We see it after things are so late and there's so much polarization, and then we have the distance factor, which compounds the problem enormously.

We have a situation now where a young child was taken to Greece years ago. It's well known; it's been in the papers. We have many thick files on that, but right now we're just working away to try to open a channel of communication between that parent, who's using his lawyer to keep everything status quo.... We're really working very hard with our Greek branch to open up a channel of communication so that the mother can go and visit. I've also made it clear to the mother that her child, now a teenager, does not speak English so she must learn to speak Greek, at least enough to communicate.

• 1645

I guess what we're all saying to this committee is that the earliest prevention and work you can do and arrange is what really needs to happen, or if children are abducted, the earliest return. On those long-standing abduction cases, we certainly see the serious implications. Nobody wins there, because the children have lost. You had asked about them coming back and being reunited years later. They've lost those years, and quite often they'll end up going back to the other parent again because that's who they know.

So there's anger, there's issues. We've even seen situations where children have been suddenly returned to a parent in Canada that they didn't know because extradition had been put in place and one parent goes off to jail. This is far more traumatic to these children than the abduction itself.

We need the coordination of services. We need the resources out there to identify and provide the assistance to families at the front end of the service—not long waiting lists but the front end of the service. We need to use the system at court, it seems to me. When they file for divorce, we have to say there's the flag, there's the warning sign, let's put some plans in place here. We can at least recognize that maybe the marriage isn't going to be saved, but this child has two parents and we need to find the ways that will keep both parents in the lives of these children. I think that's the most important message to this committee.

[Translation]

Ms. Caroline St-Hilaire: I have a short last question. I believe Mr. Pardy spoke about negotiating or mediating with the kidnapping parent. A lady came to see me. Her former spouse had taken off with their child, and, as far as I know, the father never met with anyone from your service or anyone in Egypt, the country in question. Under what circumstances and in which cases do you succeed in meeting the kidnapping parent? Is it at the request of the parent who is abroad, or is it mandatory?

[English]

Mr. Gar Pardy: It's certainly not mandatory.

You mentioned Egypt. If that's the country that is involved, I think we have about 15 cases in Egypt now. I think most of them are long-standing and I don't think there is an abducting parent out there that we've not met with, so it may be a matter of information.

By and large, when we develop tactics in terms of how to deal with these, we work very closely with the affected parent in Canada. We make suggestions and ask whether they are comfortable with this. That's why we talk the case through and we go over what is possible and what is not possible. At the end of the day, I think in just about every one of the cases we're involved in, we end up talking to the abducting parent in that other country. There is no other way to proceed.

The very first reason for doing so is that we want to show ourselves in the most direct way possible as being interested in the well-being of the children. What we try to do is to get in and see those kids ourselves, and we have done that in many instances. In order to do that, we have to have the cooperation of the abducting parent.

I would be most interested in getting the information from you after the meeting in terms of that particular case, because I would be very surprised if we've not been in to see the parent, assuming we know where the parent is and where the children are located.

In some instances, the abducting parent will disappear from sight or even go to a third country and we have some difficulty in finding them. There are few cases where we have to go to the police and try to locate them, and Sergeant Oliver will be able to tell you about them. Very frequently we're able to locate the abducting parent and we'll go talk to them. That is the person who has the authority, who has the power to change in terms of that child, and that's why we try to get at that person in some way.

Give me the name of the case and I would be most interested in following up. If it is the case I think it is, I think maybe we're making arrangements for the mother to go out of Montreal. Is that the one?

Ms. Caroline St-Hilaire: Oui.

Mr. Gar Pardy: I'd be most interested in getting more details from your perspective on the case.

• 1650

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

Mrs. Sheila Finestone (Mount Royal, Lib.): Thank you very much. It's been a very interesting presentation, and I'm very pleased to hear what you have to say.

I'd like to look at some of the practical and perhaps legal undertakings for this committee, because if we ever want to get anywhere in writing our report, we need the legalistic and practical approaches that are required.

I'd like to go in a somewhat orderly fashion, if I'm lucky. It's not my normal run of events, but anyway....

I've been reading the convention you keep referring to, the Hague child abduction convention. I find it very “loosey”, to put it mildly. I find it very unclear, undefined, and far from the kind of useful tool I would have anticipated, having read your briefs before you came in.

I sensed there was a laudatory approach, from your perspective, about the Hague Convention. Then I read it, and there's really nothing as concrete as I think we would need, particularly around custody and access. But I do like the language in the European custody convention, which in a sense is alluded to in the Hague Convention, if you go to article 21. I don't want to go through all that. You probably know it, and I don't think we need to take up the time of the committee to indicate that I read it, because that's not very useful.

What would be useful is to ask you this. In the light of the fact that Canada was the mover and then had 30 nations join them to move those amendments to the Hague Convention, would it not be useful for us to go back to the Minister of Foreign Affairs and perhaps revise the language in articles 21, 23, 25, and 35 and the other articles that are relevant to custody and access, as one of the recommendations we make from this committee? They are quite firm in determining the best interests of the child, and state parties, which would include Canada, the United States, Mexico, and the European nations.... I'll come to the Islamic countries in a moment, but the signatories to the Hague Convention do not cover those that are mostly Islamic state countries.

We have to deal with what is in our own interests here for the moment. That's not to say we don't have lots of Islamic people living in this country, for whom the 15 cases you just referred to, Mr. Pardy, are for the most part under Islamic law.

Having been to Egypt and having tried to negotiate, along with the Minister of Foreign Affairs, on a number of those cases, I know there is, under Islamic law, the right of the father for sons at age 7 and daughters at age 12. That's the law. He married under that law; he has the right to respect that law in another country. In Canada it doesn't work that way.

Would you agree that we should suggest amendments that would follow more closely the positive and direct language used in the European convention? For example:

State Parties shall respect 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.

That's an affirmative statement. That's not the statement in the Hague Convention; that's the statement in the European convention. All I'm asking you for is an opinion around language. Seeing as how you like the Hague language, which I don't understand, I want to know if we can get stronger language that's more enforceable.

Mr. Gar Pardy: For every case of a child being returned to Canada under the Hague Convention, it is the most marvellous document on the face of this earth. For every case in which it doesn't work, it is the most awful document. In between those two is where your problem is.

The various countries that are signatories to the Hague get together on a regular basis to review the language in the Hague Convention, and a variety of suggestions have been made over the years for opening up the language in that treaty. I've been told by the people who were involved in the negotiations and by the people who go to these review meetings that to open up the treaty for us to get something we want in there means somebody else may want to take something away from it.

Mrs. Sheila Finestone: That's true.

Mr. Gar Pardy: This is your real balancing act here. This is always the problem with opening up any treaty.

• 1655

My point—and I keep arguing this—is that I think it's a risk worth taking as far as opening up the Hague is concerned. I would like to see it opened up in such a way that we can get a greater range of countries who may be willing to sign on to that convention, because right now, in the language of one of my children, we have almost “maxed out” in terms of the number of signatory countries here.

Mrs. Sheila Finestone: Therefore, I take it, Mr. Pardy, that you do not recommend a change of language. What you would recommend is to try to enlarge the number of countries that have signed. Is that right?

Mr. Gar Pardy: Yes. But in order to do that, you have to change the language in the Hague anyway. One will not come without the other.

Mrs. Sheila Finestone: You've said one thing and then just contradicted yourself.

Mr. Gar Pardy: No, I think—

Mrs. Sheila Finestone: You are the expert. I'm not. I am only interested in the legal approach, Mr. Pardy, and I would like to hear from Mr. Oliver or Ms. Casselman in this regard.

Mr. Gar Pardy: Okay.

Mrs. Sheila Finestone: As a second part of that, the language also indicates what I consider to be important—that while the Hague Convention does not give due weight in accordance with the age and maturity of the child, I think it is important to give any indication of a threshold. It is important to indicate that there is a threshold.

Most of these cases are long-standing cases. These young people have been taken away mostly at a younger age, and to recover them it's a question of whether or not that child now wishes to return home.

I think you addressed that, Ms. Casselman, in a very effective way.

The Hague Convention does not give any indication of a threshold, a specific age at which a child is capable of forming individual views, but the child abduction convention does contain a phrase, echoed in article 12 of the convention of the child, that there should be an allowance:

The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and a degree of maturity at which it is appropriate to take account of its views.

In most conventions this ceases to apply when the child attains the age of 16 years and is perceived to be an adult, and they they will start accepting the word of the child as early as age 9.

Now, I'm not asking you for the age range, but from the things you said, Ms. Casselman, it would seem that the consideration of the age of consent of the child should be part of our recommendations for any kind of change—that the child has a word to say with respect to the threshold and the specific age at which one could take the child's wish into consideration.

Ms. Casselman.

Ms. Agnes Casselman: In the legislation in Germany, for example—

Mrs. Sheila Finestone: Yes, I was going to go to that next.

Ms. Agnes Casselman: —it's absolutely essential for the views of a child of 14 to be known. Again, this is where ISS comes from. We insisted very much, as we were working on some of the conventions, that the child's viewpoints be put front and centre. That's always our recommendation. It's a primary recommendation that we made to the Hague conference, and it certainly was our viewpoint in relation to the development of the UN Convention on the Rights of the Child that the child's views have to be known.

In German legislation, I understand, at age 14 it is mandatory. In custody or access matters the child must be heard personally by the court if the court feels that a personal hearing is necessary. If the child is more than 14 years old, it is required that he or she be heard personally.

I would like to—

Mrs. Sheila Finestone: I thank you for that, because I think people who have the right of access should not be denied that access. If they're being denied the access, whether it's here in Canada or overseas, that's also a form of child abuse, or whichever way you slice it, by whoever is the impediment to the rightful contact of parents with their children in cases where there's no contradiction because of excessive abuse of some kind.

You also indicate the change around unmarried parents and the question of joint custody with the signing of a custody agreement. That's an important aspect.

• 1700

You also said something about.... I'm looking for what we're going to put into our recommendations,

[Translation]

something very concrete.

[English]

TOT is another expression. You agree that there has to be the right of the child to have something to say. You also indicated that the first step of a mandatory mediation, that first six hours you were talking about, was helpful. I'd like a clarification about that. Would it include the children?

Ms. Agnes Casselman: It's not mandatory mediation. It is a session that is mandatory, an educational session, if you will, to show the advantages of mediation, the choice of entering into a mediation.

Mrs. Sheila Finestone: I see. It's like a pre-mediation or conciliation.

Ms. Agnes Casselman: That's right. It's out of that educational session that you'll hear, in terms of the Alberta model.... It is co-taught by a social worker, a psychologist, and a lawyer. They outline the advantages, and then of course it is up to the parents to decide. As I understand it, the offer is there for six hours of free mediation services.

Mrs. Sheila Finestone: Let me get this clear. You file for a divorce and you are then told.... Does it matter whether you have arrived at an amicable divorce?

Ms. Agnes Casselman: No.

Mrs. Sheila Finestone: It's just in the case of a contested divorce?

Ms. Agnes Casselman: I assume so, yes.

Mrs. Sheila Finestone: Therefore you go for this obligatory educational program, which will give you options, ideas, and recommendations, and then the choice is yours. You have to have a signed document that you took this educational program, and then the option of going to mediation or conciliation is yours.

Ms. Agnes Casselman: That's right.

Mrs. Sheila Finestone: Would you conclude from the work you've done and the children you've worked with, internationally or here in Canada, that it would be a good idea to include a child who would be over age 9, let's say, in that process of determination of the child's wish?

Ms. Agnes Casselman: Children at age 9 can certainly give views, but I think it's important to look at the level of maturity and get those objective assessments. The children may not be in a position to say that. You have to remember that they may have been with the parent who's at war with the other parent, what they've heard, the threats they may have heard, and so forth. They always opt for the status quo kind of thing rather than “I want to go back”. So I think it's very important to get the children's views.

That age of 14 sounded pretty reasonable to me. It could be a little younger than that, but certainly in all situations you want it as close as possible. You need to do the assessments so that the children's views are represented.

Mrs. Sheila Finestone: I thought you talked about a secure family basis. Maybe I misread it or it was someone else's. If they have already come to the courts and they are going for this mandatory education or mediation, as the case may be in Quebec, would you consider from your experience that the potential for the well-being of the child is already damaged? It was a joint custody thing I was looking for. What was your approach to joint custody because of the issue I just outlined?

Ms. Agnes Casselman: There's no one solution for all situations. What joint custody really does reflect, though, is the fact that both parents have responsibilities for the rearing of their children. I like the term and I think that's important. I'm not saying that all situations should call for joint custody, only that in many—

Mrs. Sheila Finestone: Which do you mean, joint parenting or joint custody?

Ms. Agnes Casselman: Joint custody in terms of the formal arrangement. Both parents continue to be parents and need to be active in the lives of the children. That's the most important, even though they live separately. When they file at the court, I understand, they are required to take this course, but others may take it voluntarily.

I don't want to take too much time on Alberta, but what they're finding and what I think you'll discover is that lawyers are recommending that the couples go and take the course. They can just sign up and go and take the course. They don't have to wait until they actually file at the court, as I understand it.

• 1705

Mrs. Sheila Finestone: We're focusing on international—

The Joint Chair (Mr. Roger Gallaway): Sorry, you're quite a bit over. Senator Cools will be next.

Senator Anne C. Cools (Toronto Centre, Lib.): Thank you.

I was just perusing some of your information and have a couple of quick questions.

The document I have before me is called Our Missing Children Quarterly Report. It says that since 1986, customs inspectors and immigration officers have recovered over 600 runaway/abducted children. I apologize because I missed the first part of your presentation. I believe you cited the yearly numbers you investigate that you actually successfully find. Did you put that on the record? I believe you did. How many cases of missing children do you investigate yearly and how many do you recover?

Sgt John Oliver: We're averaging about 60 new cases a month. We have approximately 1,500 to 2,000 open cases. Our success rate is between 50% and 60%.

Senator Anne Cools: That's impressive.

Sgt John Oliver: The numbers you mentioned represent the number of children coming into Canada that customs and immigration officers at the Canadian border crossings have intercepted. Some of them also are runaways. If the children were hitchhiking, for instance, and were picked up by truckers or something, they will actually have stopped at the border and turned them over to Canada customs, knowing these kids are runaways.

Senator Anne Cools: You're anticipating my next question, because I was just wondering how many of these cases are children of divorce and separation. I was just looking through another one of your documents here, and two of the cases described here are pedophiles taking off with somebody's children. One was a 16-year-old child. It says it was a fugitive with a teenager, so that's obviously a very questionable case. Another one was a convicted sex offender with a minor. Just for our benefit here—and I know you do a lot of good work and there are countless cases—of the cases you investigate and the children you retrieve, how many are children of divorce?

Sgt John Oliver: In the caseload I have, it is approximately 80% parental abductions.

Senator Anne Cools: And you don't have any absolute numbers on that for last year.

Sgt John Oliver: No.

Senator Anne Cools: Okay, I appreciate your constraints. Of these cases you investigate and are successful in solving, how many are persons of immigrant origin who are abducting the children to their countries of origin? How many are non-immigrant Canadians who are abducting children to new countries? I'm asking this because of the examples that have been described. You described a situation in the Punjab and somebody else described a situation with Arab children.

Sgt John Oliver: In my caseload, you have to understand, we handle cases coming into Canada as well, so of the 60 cases a month average we're taking in now, 70% are international cases coming into Canada and 30% are Canadian cases we're asked to assist in. So the majority of my caseload is international cases coming into Canada. Of that 80% of the international cases—and I'm getting mixed up in numbers here—

Senator Anne Cools: Oh, don't worry about it. We do it all the time.

Sgt John Oliver: I'm running about a 60% caseload of U.S. cases, 10% to 15% to 20% of cases from other countries, and the rest are Canadian cases.

Senator Anne Cools: That's very interesting.

Sgt John Oliver: We don't keep figures on the number of outgoing cases we're dealing with, going back to the home country. We have large numbers going back and forth across the U.S.-Canada border. We have a lot of Americans abducting and bringing their children to Canada. We also have a large number of Canadians who abduct and go to the U.S.

• 1710

Senator Anne Cools: I'm just a little curious. Is the largest number of abductions across the U.S. border?

Sgt John Oliver: Of those I work with, it is the largest number.

Senator Anne Cools: Isn't that interesting.

Mrs. Sheila Finestone: He said it was 60%.

Senator Anne Cools: I know. I'm impressed because I assumed it was like the examples we were using, of people taking their children back to Greece or—

Sgt John Oliver: We get those cases as well. But a lot of our caseload is working with the United States.

Senator Anne Cools: Okay. I have a couple of questions for you. I'll give them to you quickly so you can wrap your mind around them.

When one is working abroad in foreign countries, what sort of support do you, as authorities here, get from the local police in the country where the abducting parent has taken the child? In other words, if the child has been abducted to the Punjab, what sort of support do you get from police? What sort of cooperation do you get in these other countries? I'm told you have a very frustrating time.

Sgt John Oliver: It depends on the country you're dealing with. In India and Pakistan, since their system is based on the same system as ours, we have good cooperation with the courts, although not necessarily with the police. It's a point of frustration that the courts will at times recognize the custody orders from Canada and order the police to pick the children up, but it doesn't happen. It depends on the country and they're all different.

In Europe, again the amount of cooperation we will get from the police authorities depends on whether the country receiving the child recognizes it as a crime or as an abuse of the child.

Senator Anne Cools: Interesting. In foreign countries, how effective and supportive are our own Canadian foreign missions? I notice, Mr. Oliver, you are from the Department of Foreign Affairs and International Trade.

Sgt John Oliver: No, I'm RCMP.

Senator Anne Cools: Sorry. I'm just mixing you two up. Mr. Pardy is from the Department of Foreign Affairs and International Trade.

How cooperative are members of our mission staff in foreign countries on some of these questions?

Sgt John Oliver: With my office they're extremely supportive. We have always had great cooperation from the people in our missions.

Senator Anne Cools: Wonderful.

Mr. Pardy.

Mr. Gar Pardy: I tell them what to do, so they cooperate.

Senator Anne Cools: Okay. So you have some influence.

Mr. Gar Pardy: I have some influence, yes.

Can I just go back and maybe add a little precision to one of your earlier questions?

Senator Anne Cools: Yes.

Mr. Gar Pardy: It's an interesting one because you were asking how many people were going back to their home countries or former countries of residence versus how many people were going out and trying to hide away in foreign countries without having ties to those countries. It's a very interesting distinction. We find in maybe 48 out of 50 cases we deal with, people are going back to countries where they have some support systems in place. Some countries permit dual citizenship while others don't. As you know, it's perfectly legitimate in Canada.

But I think the other interesting one on the police cooperation—and John made a very interesting distinction—is that in a country like Pakistan we've had very good support in the Pakistani courts, which have recognized Canadian custody orders. The trick then is to get your hands on the children before an appeal is registered and get them out of the country. That's when you're talking about literally minutes, and sometimes we've had some cooperation there.

In countries like Lebanon and Egypt we've had good cooperation from the police in many of those cases. It depends on what you're asking for. In Egypt we ask for support from the police to go out and ensure the well-being of the child so we can locate him. The police will not pick up the child, put him on the plane for us and deliver him back to Canada. So what you're asking for in these situations will govern the degree of support you will get.

Senator Anne Cools: Excellent.

I asked that because we hear so much information and misinformation. But in a former incarnation I talked abducting parents into bringing back the children. Quite often it's nothing other than a gentle, tender person who's able to use simple skills of persuasion to persuade them that it is an undesirable act and they should really come back home and bring the children. I've done it across the U.S. border a few times.

• 1715

Mr. Gar Pardy: If you're looking for a second career, let us know, will you?

Senator Anne Cools: Yes. This one gets pretty tough sometimes.

I am told that there is a network or series of networks across this country supporting abductions, and supporting parental abductions. As police and as individuals investigating this, do you know anything about that? When a parent sets out to abduct a child, which I think is a terrible thing to do, who is helping them in this country?

Sgt John Oliver: We have heard—and I'll use that word, “heard”—that this does happen. The problem is, the information we get is very difficult to substantiate. But there is what's been called an underground railway for these kinds of people. They do have contacts, apparently, who will provide them with alternate identification, driver's licences, and that type of thing.

The problem is, it's all rumour, all conjecture, particularly in Canada. It's been proven to exist in the United States, but we've never been able to substantiate any of the allegations that it's occurring in Canada. Although we believe it is, we have no hard evidence to prove it.

Senator Anne Cools: This delicate subject matter wouldn't be good for us to discuss in public anyway. We would have to go in camera.

Thank you, Chairman.

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

Mr. Paul Forseth: Thank you very much.

I'll try to be brief. I'm going to ask a series of specific questions and then we'll be able to take that to the general situation.

I would like you, with your international experience, to tell us about your experience with the country of Jordan. I've received presentations from Canadians who have had Canadian children taken out of Canada to Jordan. In the case I dealt with, it was the mother. The father's prior Canadian custody order was not of much help in Canada, and in his attempts to take his order to the Jordanian courts, and being in Jordan for months, the situation still was of essentially no help.

I would like you to tell us what your particular experience is with regard to cooperation in that kind of situation. That's a specific example.

Then we take it to the general. You have all this international experience, so give us advice on how we can make our Canadian legal system better to really help you do your job.

Mr. Gar Pardy: The Jordan case that you're referring to we know extremely well. I think you will recall that there were many legal issues at play other than just custody for the child in the series of cases that were heard at various points in the Jordanian system.

In all of the instances, the courts came to conclusions. They were not conclusions that were acceptable to the father. That's the problem you have. If the court resolved it, interpreted its law, came to those conclusions, and they were not favourable to the father, what do you do at that point? You're dealing with national jurisdictions.

Similarly, if a parent comes into Canada and goes into Canadian courts, it could end up in the same situation. So in that sense, there's not much you can do about it.

In that particular case, we did a tremendous amount to support the father, even to the point of making sure that some of the threats that were made against him were eliminated—in the good sense—and putting him up in some of our own accommodation, actually, to look after him in a number of situations.

But again, when you go into the courts in a foreign jurisdiction, what those judges are going to look at is not what would be said or done in Canada. It's going to be what is said and done in those countries.

As we mentioned earlier, in Pakistan, in India, in Malaysia, we've had parents go into those courts independent of Hague Convention coverage—there's none there—and they have received support from the courts that gives them custody of that child. The trick then is to get the administrative arrangements in place to get the child back to Canada.

I don't think there's anything you can do in Canadian law that's going to be helpful in terms of the judges in Jordan interpreting their law with the facts that are before them.

• 1720

Sgt John Oliver: In countries such as you've mentioned, Jordan in particular, our experience is that with the police network they will assist us in determining if the child's there and assist us in determining the well-being of the child, but that's all.

When my office gets involved in a case like this we normally will call Mr. Pardy's office to assist us. Once we locate the child, they are to assist us in facilitating the return.

Mr. Paul Forseth: Now for the general part of my question. In view of your international experience, when you come to this committee do you have any general advice about how we can make our law better to help you do your job?

Sgt John Oliver: From a police point of view, the biggest thing that's required now in Canada is establishment of a national-type registry of custody orders. The biggest problem for police officers, when a parent comes to them at 5 p.m. on Friday, saying the other parent has abducted and they have a custody order, is that there is no way to determine if that is the valid order. No province has a registry of custody orders now, and there's no place for that police officer to determine the validity of the court document that's in front of him.

So that's the most frustrating part for police in dealing with this. There must be an establishment of a national registry of custody orders. My office is receiving them from courts, but there's no mandated thing right now, and that's what we need.

Mr. Paul Forseth: Mr. Pardy, do you have anything to add?

Mr. Gar Pardy: When warrants are issued, one thing we would encourage is police jurisdiction to make them national. In many instances, when a warrant is issued for somebody's arrest they are very limited geographically. Sometimes it's very frustrating, because you try to take the fact of a warrant and use it but it doesn't necessarily have any application in a foreign jurisdiction. In a foreign jurisdiction they look at an arrest warrant and say, well, it's only valid for the city of Mississauga. So it's not very influential.

Mr. Paul Forseth: You see, I've heard the comment and the complaint that it's very impressive, the services you've described today, and there's appreciation of those services, but only if those same services are available within Canada to help somebody from Burnaby, British Columbia, to St. John's, Newfoundland.

Mr. Gar Pardy: I agree.

Sgt John Oliver: The services are, though, available in Canada. We deal with domestic cases as well. Most of them are in place through the police network that my office provides. Other issues we're dealing with here, Mr. Pardy may not be, but we can return a child and find him with the police network in the country.

Mr. Paul Forseth: Thank you very much.

Mrs. Sheila Finestone: Can I add a supplementary to that question?

The Joint Chair (Mr. Roger Gallaway): Go ahead. Then we'll go to Senator Pépin and Senator Pearson. We will be over our time then.

Mrs. Sheila Finestone: Thank you.

As a matter of fact, the party in question—I won't name them, but if afterwards you could help, that would be fine—had a child abducted. The wife abducted the child and went to the internal Rockies, in the Rocky Mountains of British Columbia. The gentleman in question is the father, in Quebec. That man could not recover his child.

I'm addressing my question to you, Mr. Oliver. You say the RCMP has the ability to do this. I'm told it took over three years. After he had located the child, he used every avenue possible through the courts. He went to the police. The contact police out in British Columbia are the RCMP, and the police in the Quebec are the Sûreté du Québec. There was no way in which the RCMP would exercise in B.C. the judgment rendered in Quebec.

Is there an interprovincial constraint, given what Mr. Forseth asked you and what you just answered?

Sgt John Oliver: When you're talking custody orders, if the Sûreté or the police of jurisdiction in Quebec, the crown, decided there wasn't grounds for a criminal charge, and he was going strictly on his civil court order, the court order from Quebec is recognized in British Columbia only if the British Columbia family court recognizes it as a custody order that is enforceable in the province of British Columbia. If he gets an apprehension order under Quebec law to apprehend his child and takes the child to British Columbia, it's not enforceable in that province.

• 1725

Mrs. Sheila Finestone: I heard your answer to Mr. Forseth, and this is a case I have that's a contradiction to what you just—

Sgt John Oliver: I don't know what the circumstances are in that particular case. If you like, my office will assist you—we can get the circumstances of the case—but it has to be that issue, depending on whether the police of jurisdiction have the grounds to lay the criminal charge. If they felt for some reason they didn't and he was proceeding on the civil side, his custody order would have to be recognized by the Province of British Columbia and it would be enforceable there as an apprehension order.

Mrs. Sheila Finestone: For this committee, though, I think it would be helpful for us to have a general understanding of the rules of the game. What, therefore, are the interprovincial rules and regulations? And are they something this committee should be addressing in terms of the recommendations to our minister? Are interprovincial negotiations still required? What are the terms of those kinds of negotiations? And if you want to wait till my turn comes around to answer, I'd be very happy to....

Sgt John Oliver: To answer part of the question, in Canada one of the biggest frustrations in these things with respect to the police is that the sections of the Criminal Code dealing with parental abduction make up the only area in criminal law in which civil law intersects—

Mrs. Sheila Finestone: Oh, terrific.

Sgt John Oliver: —and a lot of police officers have no experience and no training in civil law. It can be very confusing and very complex. To lay a charge under the criminal law, an instrument from the civil court is required, like, for instance, charging someone with parental abduction under section 282. Section 282 of the Criminal Code says that there must be a breach to the custodial provisions of the custody order. So the first test for the police is to determine if the custody order is in fact in force, if the other parent doesn't have one that supersedes. Then they have to consider what the custodial provisions are in that order in front of them.

Mrs. Sheila Finestone: Is there any difference whether it's in Prince Edward Island, Newfoundland or British Columbia?

Sgt John Oliver: No.

The Joint Chair (Mr. Roger Gallaway): Mrs. Finestone, just as a matter of information, I should point out to you that in about a half an hour's time we'll have Chief Ford here from the Ottawa Police, and maybe you could address these questions to him. We're running out of time and we have two other questioners.

Senator Pépin.

[Translation]

Senator Lucie Pépin: We have an RCMP folder that says what to do if a child is kidnapped. Are there any awareness programs for parents or children that might reduce the incidence of kidnapping? I think that it is fine to tell parents what they should do. But are there any existing programs for children, as well as for parents, that might prevent the kidnapping of some children? Is there any such thing at the present time?

[English]

Sgt John Oliver: Most police agencies in Canada have programs in place. They work in the schools and with parents. The preventive measures you would take with a child to stop an abduction by a stranger are the same measures you would take with respect to abduction by a parent.

I do a lot of training with police officers. I talk to the police officers and hope the police officers then take what I'm teaching them to the parents. What we suggest is that parents who have a custody order ensure that the child's school is aware that the child shouldn't be taken by someone who doesn't have the authority to do so.

But with respect to the other issues dealing with an abduction by a stranger, those things also come into play on the prevention side when we're dealing with a parental abduction. So it's up to the parents, and we hope the police are talking to the parents to tell the parents what to deal with and how to work with their children so that these things don't happen.

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

The Joint Chair (Senator Landon Pearson (Ontario, Lib.)): I have one quick question. Almost entirely this afternoon we've talked about issues to do with abduction of children whose parents are from two different nationalities or who are from a foreign nationality, have come to Canada and are gone. As we know, there is actually quite a large body of Canadians living abroad, in various ways, with the army or the foreign service or international organizations or whatever. When the issues of child custody and access turn up in those cases, what do you do?

• 1730

Mr. Gar Pardy: Our estimate is that about 1.5 million Canadians live and work abroad, so you're dealing with a very large community here, and it's not restricted. But dealing strictly in the foreign service, what we try to do there is to get the parents back to Canada. That's the first thing. As you know, sometimes that works and sometimes it doesn't.

Many other organizations feel the same way. You've lost the effectiveness of your employee, and if the organization is large enough, they will make the arrangements and we will assist them to do so.

In many of the other instances, it depends on the kind of family you're dealing with in terms of what happens. Some people will try to deal with it in the local situation. One parent will want to come back to Canada and the other parent doesn't want to come back to Canada. In that sense, then the cases are not much different from a situation in which the parents had gone to Greece to live for three months with the grandparents and then one wants to stay and the other wants to come back.

In that sense, when you get out into the larger community the issues are not much different.

The Joint Chair (Senator Landon Pearson): Have you any idea of how many cases there are in that 1.5 million?

Mr. Gar Pardy: You're as familiar with the foreign service as I am.

The Joint Chair (Senator Landon Pearson): I wasn't thinking of just the foreign service.

Mr. Gar Pardy: It's a significant number. The stress of living in a foreign environment adds its own dimension to cases like this. No doubt there is a significant number. In southern California, for example, using American census data, there are over 900,000 Canadians living in the Los Angeles area.

The Joint Chair (Senator Landon Pearson): Wow!

Mr. Gar Pardy: This is a very large community. A lot of them, if they are familiar with the court system, will try to use the local courts. Some will come back to Canada. Again, there's a whole variety of mechanisms.

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

The Joint Chair (Mr. Roger Gallaway): I said that was the last question, but I wasn't telling you truth.

Senator Jessiman wants a question.

Senator Duncan J. Jessiman (Manitoba, PC): Isn't there reciprocal enforcement of judgments between most provinces of Canada?

Sgt John Oliver: As I understand it, each province has agreed to recognize others' orders, but the order has to be filed in the family court of that province.

Senator Duncan Jessiman: Of the second province?

Sgt John Oliver: Of the second province, that's right.

Senator Duncan Jessiman: So I guess the problem they have is they haven't filed it...the one in Quebec that we talked about.

She's not listening, but that's okay.

I thought they recognized each other's orders.

Thank you.

The Joint Chair (Mr. Roger Gallaway): Thank you. It's been a lively and slightly over time session here today.

I must say that this number of 1.5 million astounds me. Canadians are becoming as bad as the Irish.

Mr. Gar Pardy: The Irish are going back home now, you'll notice. But not the Canadians yet.

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

This meeting will adjourn for half an hour. We will resume at 6 p.m.

• 1733

• 1813

The Joint Chair (Senator Landon Pearson): Good evening, ladies and gentlemen.

We're very pleased to have you come this evening and present to us. I'm going to read partly from the signs that are in front of you, because some of the names that were on the list have changed.

From the first group, representing the Children's Aid Society of Ottawa-Carleton, are Heidi Polowin, Shauna Lloyd, and Michael Pranschke.

Then, from the Ottawa Supervised Access Program and the Ontario Ministry of the Attorney General, are Judy Newman, Sally Bleeker, and Joan Gullen, who is the honorary chairperson of the supervised access program.

Finally, from the Canadian Association of Chiefs of Police, is Vince Westwick, who I recognize from other incarnations—not yours; mine, other committees. Brian Ford was unable to come because he's ill.

So you're accompanied by...?

• 1815

Mr. Vincent Westwick (Member of the Committee and Legal Adviser, Canadian Association of Chiefs of Police): I'm by myself.

This is Lise Parent, who is with Judy Newman and the supervised access group.

The Joint Chair (Senator Landon Pearson): I guess we'll start with the Ontario Ministry of the Attorney General and the supervised access program. I don't know which one of you is going to do the presentation, but please go ahead.

Ms. Judy Newman (Coordinator, Supervised Access Program, Ontario Ministry of the Attorney General): I want to take this opportunity to thank the committee for inviting us to participate in this process. We welcome the opportunity.

I'm Judy Newman, the coordinator of the supervised access program from the Ministry of the Attorney General. With me is Sally Bleeker, the coordinator of the Ottawa supervised access program; Lise Parent, a long-time volunteer with that program, as well as someone who is well-known in your legal community; and Joan Gullen, who is currently the honorary chairperson of the supervised access program in Ottawa.

Supervised access centres, as envisioned by the Ministry of the Attorney General, provide a safe, neutral, child-focused setting for visits and exchanges between children and their non-custodial family members, which can include grandparents as well as parents.

Supervised access provides integrity to orders of the court by providing a place for these visits and exchanges to take place, and it supplies, when requested, factual observation notes or reports to lawyers and the court to assist them in making orders regarding custody and access.

Supervised access centres are not an assessment setting and they do not make recommendations regarding custody and access. They only provide factual observations and the setting for visits and exchanges to take place.

The ministry currently funds 15 centres on a transfer payment basis across the province of Ontario. In 1997 and 1998 they served 9,000 families and conducted 24,000 visits and exchanges.

Supervised access should be viewed as one of an array of services available to families going through the separation and divorce process, along with education, mediation, and counselling.

Research has established that the degree of conflict between parents is a major predictor of how well children will cope with their parents' separation and/or divorce. In fact, supervised visitation and exchange is cited by Garrity and Baris in their book Caught in the Middle as a necessary means of providing access in family situations of moderate to severe conflict in order to address the needs of children.

How do supervised access centres meet the safety needs of children? That's why we're here tonight, to talk about the safety of children. They do this through policies and procedures that are laid down both by the provincial program and by the individual settings, which include staggered times of arrival and departure and the monitoring of parent-child interaction during the visit and/or the exchange. They have security systems and a liaison with local law enforcement authorities. They also have rules regarding behaviour and trained staff and volunteers who are aware of the effects of separation and divorce and conflict on children and their families.

Supervised access centres may be seen as an artificial setting for visits by some. However, where there is conflict or a concern for the safety of a child, it is more important to provide a safe neutral setting for children to have a visit or for them to be exchanged between parents.

The centres are generally located in day care centres and community centres. They have toys and crafts and games and sometimes enclosed playgrounds. These are settings that are familiar to children and they're child focused.

• 1820

The research conducted for the ministry and completed in 1994 demonstrated a high degree of satisfaction with the services with regard to safety and neutrality on the part of custodial and non-custodial parents; 75% to 80% of visits take place, which shows a high rate of compliance with orders of the court for access. Out of the 24,000 visits and exchanges this year, there were only 11 critical incidents reported.

That's our performance measure for safety of children, in that these are incidents where either the police or Children's Aid have had to be called to address issues that have arisen, or that there's been conflict between the parents, or there's been disclosure of physical or sexual abuse by a child that has happened either during a visit outside of the centre or that they may have thought happened in the centre—although that's very rare—or visits that are ended due to the intoxication of a parent, because we also deal with families where a family may have a severe substance abuse problem.

I'd like to end by saying a few more words, and then Sally will take over and talk about the specifics of the day-to-day provision of supervised access, because that is what she does with her centre.

It's not possible to prevent all conflict; however, it is imperative to provide a system that assists families in dealing with it in order to minimize the effects on children. Supervised access programs with trained, accountable staff and volunteers is one such component of a child-focused approach. Any legislative changes should take this approach into account.

Thank you.

The Joint Chair (Senator Landon Pearson): Ms. Bleeker.

Ms. Sally Bleeker (Coordinator, Ottawa Supervised Access Program, Ontario Ministry of the Attorney General): I would like to thank everyone for the opportunity to be here and describe the program as it exists in this community, and we are one of many across the country.

I think of family conflict like, unfortunately, an intense war zone, when it's at a severe level for children. Like all war zones, for the victims of war, one would hope that every once in a while there would be what I think of as a safety zone. When I train the volunteers and staff I work with, I like to use the image of wearing the blue hat, wearing the United Nations peacekeeper role. We cannot perhaps end all of the war, and we cannot determine the outcome on either side, but we can provide the safety zone, and that's really essential for children.

I'd like to give you a couple of quick case examples. When I became involved I was very committed to the idea of this program, but I know when my heart was lost was right at the beginning of our program, six years ago, when a little redheaded three-year-old walked down the hall, put his hand in mine, smiled up at me and beamed, and he said, “My daddy's here.” That was it for me; I was absolutely lost in terms of understanding that this child was very, very much in need of that time with his father.

We also have a couple of young boys who have had a mother with mental health problems, anger management problems, and those boys also come proudly to the staff and say, “My mom brought birdhouses for us to do this week” or “My mom's here, and she's okay today”. This is the kind of thing we hear from children, and that's what's important for us.

We know how children react in high conflict. There are all kinds of mental health indicators of what happens for children in high-conflict situations. We see very tense, worried children on visits one, two and sometimes three. By the time there's the fourth visit, we see a significant shift in how the children are. They are much more relaxed; the visiting parent is much more relaxed.

The kinds of things that bring people to us are mental health problems of a moderate to severe level, drug and alcohol problems, which have led to an order by the court that there be access to continue a relationship but that it needs to be supervised, and also the reintroduction of parents who perhaps have not seen their child or children for two, three, or sometimes even four years. So everyone is in need of this kind of supportive safety zone to make that happen.

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Sometimes there are allegations of abuse that are still uninvestigated or unclear, and meanwhile supervised access is ordered. Sometimes it's the unresolved conflict between two parents who simply cannot stop fighting with each other, and the child needs a place to be out of that and out of the loyalty vying.

We use a community centre locally. It has two fabulous playrooms, one for little kids and one for older kids. They fall in love with things like the pool table and the hockey game. They come in and they feel fine in the centre because it's so familiar to them. It's like their after-school program. It's like their day care centre. The community centre could have children coming in for ballet lessons, ju-jitsu or whatever on a Saturday, and we are just one program that uses several of the rooms. So there's a very relaxed, open atmosphere about this.

We have an intake process that involves interviewing the parents and going through the reasons they're there, and trying to be very careful about what is going to be best for them. Before the children come to the program, we bring them into the program with their custodial parent to have a look around, ask their questions, and get over some of their worries. So it's a gradual thing that's very supportive to kids.

All over the world, children have relationships with parents who are less than perfect. Children have a deep attachment, as we know, to parents who they hope will be better. They live often in the hope, as we all do in relationships, and I really think these children benefit from some support to see if those relationships can improve in their lives.

Thank you very much.

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

We'll move now to the Canadian Association of Chiefs of Police. Mr. Westwick.

Mr. Vincent Westwick: Thank you very much, Madam Chair.

First of all, I'd like to convey to you the respects of Chief Ford, who is at home with the flu and has asked me to pinch hit for him. The original plan was that he would make a presentation, and he had asked me to handle a portion of that. So with your permission, I'll do both sides of that.

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

Mr. Vincent Westwick: I'd like to begin by saying how pleased the Canadian Association of Chiefs of Police is to be here with this group, before this committee. In particular, since I and the chief are from the Ottawa-Carleton Regional Police, it's good company to be here with people from the Children's Aid Society with whom we work quite closely, with Joan Gullen, whom we know from many incarnations and from the supervised access program.

I have some brief preliminary remarks. Because children are so important to all of us, the problems that surround custody and access are emotional and complex but, unfortunately, sometimes have the potential for serious harm. These problems are intricately connected to the dynamics of parents and children and family history. They're not simple problems, and there will not be simple solutions.

Given the work you've done over the last while, I know I'm preaching to the converted. But in speaking to front-line officers—and I did so extensively, not just from our service but across Canada, in preparing for this—I can tell you that on issues of custody and access, especially those cases where police officers become directly involved, you will find that the concerns of front-line police officers are overwhelmingly for the children. I know that to be very true in Ottawa-Carleton, but I'm also confident that it applies to police officers across the country. They want to have that message delivered to you today. That's an important message to them.

Lastly, as a preliminary remark, every single day in Ottawa-Carleton tens of thousands of parents and children exercise access in situations without incident, without problems, and without police involvement. Across Canada, those numbers are multiplied. We must therefore begin by acknowledging that in the vast majority of cases involving access, something is going right. Unfortunately, today what we have to talk about and what the CACP would like to talk to you about are those cases where things go wrong.

If I may, I'd like to describe the typical access situation that goes wrong and usually ends up with police involvement. It is typically an access exchange. It usually happens on a Friday or a Sunday, or just before or after a holiday. It is almost always late in the afternoon or early evening, and it is almost always at the custodial parent's residence. The officer arrives to find the parents at the door, the child with his or her suitcase packed, and everybody extremely upset. Something has occurred to cause a problem.

• 1830

The background is that the parties are usually already angry with one another about something and are frustrated with the status quo. Each party has a long story to tell the police officer, which attributes the litany of problems to the unreasonableness of the court, the lawyers who are involved, of course the other parent, and eventually the police officer who is at the scene. All this takes place in an extremely emotionally charged environment, sometimes with other family members present and neighbours watching.

The parties almost always will have a court order or an agreement, and one of the parties will be arguing that the situation isn't covered by that order or that their interpretation of the order is the correct interpretation.

From a police standpoint, this becomes an extremely volatile situation that cannot really be resolved in any positive sort of way. It is difficult, if not impossible, for the police officer to resolve the dispute at the doorstep. If lawyers, courts and mediators have been unsuccessful to date, how can the police officer reasonably be expected to be successful in doing so in those kinds of circumstances? Undoubtedly the officer will be criticized by one or other of the parties for the action that is taken.

These are no-win situations. Police officers feel manipulated and frustrated by the situation in which they find themselves.

In preparing for this presentation.... I want to reiterate to you that police officers, when you talk to them, constantly refer to the children, and it is the children who upset them in these situations. They worry about what happens when they leave. They worry about how the children will be stigmatized and traumatized by the situation that has occurred, and from a rather parochial standpoint, they worry about how the children will look at police in the future as a result of the incident that occurs.

Ironically, in most cases there is an existing court order that applies to the situation. That means generally that the parties have a lawyer, that they have already been through a court process, and that there has been some sort of judicial intervention. In our opinion, these access exchange situations are the flashpoint for the other and ongoing problems that exist between the parents.

Now, at this point the chief was going to ask me to speak to you a little bit about court orders. I've given the clerk some samples, and I'd be grateful if they could be distributed so I could talk about them very briefly.

The Joint Chair (Senator Landon Pearson): They are in English only, I understand.

[Translation]

Do we have your permission?

[English]

Mr. Vincent Westwick: Madam Chair, it's not a brief. I know the rules about a brief.

The Joint Chair (Senator Landon Pearson): No, I understand that.

Mr. Vincent Westwick: These are actually photocopies of court orders where we have blacked out the names and identifiers, and I just want to highlight a few points using them.

The Joint Chair (Senator Landon Pearson): Perfect. I think that would be helpful. Thank you.

Mr. Vincent Westwick: I must say that I don't mean to be critical of lawyers who practise family law, because I did that exact profession in this jurisdiction for a while; nor do I want to be particularly critical of the judges, because I think there are valid reasons for why all of these situations occur.

But if you look at page 1, it is a typical family law court order and paragraph 1 says:

THIS COURT ORDERS that there be an Order compelling the return of the children of the marriage

—and it goes on to describe that, and then on page 2—

to the petitioner until the determination of the original motion...

First of all, a police officer dealing with a situation like this on the street has no idea who the petitioner is and what in fact a petitioner is. Generally they don't know. These become quickly much more complicated, where you have motions dealing with the petitioner, the applicant, the cross-petitioner, the cross-applicant, and the applicant on cross-motions. It becomes very complicated as to who is who.

A very simple point we're going to make to you is that someone should make these orders clearer and easier to read.

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The second paragraph in that says:

THIS COURT FURTHER ORDERS that there be an Order directing all police officers having jurisdiction, to enforce this Order...

You can see that it is a two-paragraph order, and one of those paragraphs is ordering the police to enforce the order, which really doesn't say a whole lot.

Ironically, at the bottom of that there's something called “entered at: Ottawa”. That's what actually makes an order an order, at least in the province of Ontario. I have had police officers come to me because typically these orders are photocopied and look very much like you see them now. They would look at the top of page 1 on the left-hand side, where the judge's name is. It's been blocked out here. But in the signature block on the side, it's always signed by the court registrar, usually with a rubber stamp. I've had police officers come to me and say “I've been a police officer in this jurisdiction for many years and I know that Mr. Clark”—who is the registrar—“is not a judge and I know that Judge Soublière”—or Chadwick, or whoever it may be—“is a judge. There's obviously something wrong.”

So these orders are not something the general public or police officers are familiar with, and it is a very big problem.

This particular order was dated in May. The one on page 3 is the same case, and if you look at paragraph 2 of that, it says:

THIS COURT ORDERS that on a strictly without prejudice basis to argue the issue of custody at a later date, the parties shall share interim joint custody...

On the night these two orders came into the possession of the police, they came in simultaneously. One order gives custody to the petitioner, and we're not sure who the petitioner is, and the second order gives joint custody subject to, on a without prejudice basis, arguing custody at a later date. This poor officer wasn't sure what to do with it.

Paragraph 3 is a sample of what they refer to as the two-week cycle. The two-week cycle is a standard provision—correct me, Lise, if I'm wrong—that access to the access parent is every second weekend. This particular order was dated 1994. It's impossible for a police officer on a Friday night at a doorstep, when two parents are screaming at one another, to determine whose weekend it is three and a half years later.

I've often said the banks are very quick to tell me the exact date and amount of my mortgage payment in the year 2050, yet we're not able to say with some clarity who has custody of children in a court order.

If I can flip through to page 5, I'd ask you to read this on your own at some point. This is a typical court order that comes out. I've put this in here because of the complicated language.

Paragraph 2, for example, says:

THIS COURT ORDERS that the children shall be in the custody of the Defendant until November 2, 1994 at which time the access and custody terms will be set out in an Arbitration Award of June 1994 with the father's weekend access to commence November 11, 1994.

Then it says:

THIS COURT ORDERS that in accordance with the said Arbitration Award the Defendant shall have access to both children as follows:

and then it goes on for two pages.

I draw your attention to page 7, paragraph (d), which says:

With regard to the sub-paragraphs (a), (b), and (c) above, for the first six months, commencing on Friday, April 29, 1994, only the Defendant will be at liberty to pick up the children or drop off the children at the daycare centre...

We've had police officers come to us with access paragraphs that are in a 10-page court order, where they have had to go through provisions in the court order dealing with the division of the matrimonial property and separation of the Canada savings bonds, before they get to the access provisions they're being called upon to have some word upon on the street.

The last one, if I can draw your attention to it, is on page 12. If you turn to page 13, the fact this is a poor photocopy of a handwritten document is a reflection of the fact that the original one we had was equally poor. This is a handwritten document, and then attached to it on page 12 is the back of a court record. If you look at the bottom left-hand corner, the judge has endorsed it to say, “Order to go in accordance with minutes of settlement filed”. The handwritten portion is the actual minutes of settlement.

• 1840

This isn't just a lazy judge or a lazy lawyer at work. My guess is this is probably a fairly controversial case where the minutes of settlement were hammered out in court and they left them that way rather than change them for fear the parties would then start to fall apart in their agreement. So it was done that way.

I also received one that's not in the package. I received an order today from an Alberta police service. In that order there was a provision that purported to order the police to convey a child to a particular Air Canada flight and ensure that the child was on that flight. There was a particular provision in there, similar to the one in the earlier one, compelling the police to enforce that order.

In terms of the opening remarks we made, we said they were complex situations, and in terms of making any recommendations for legislative change, the CACP is happy to defer to the family law professionals and experts who are sitting here at this table. We would, however, like to make some non-legislative recommendations. While I know that's not exactly your jurisdiction, we don't want to miss the opportunity to do so because we feel it's important.

First, those cases that are high risk in access and custody ought to be identified. If you speak to family law practitioners, either lawyers, social workers or whoever, and police officers, they are quickly able to identify those cases in their caseloads that are high risk. We feel once those cases are identified as high risk, resources ought to be applied to prevent the kinds of incidents I've described to you.

It is here where we would again defer to the other experts who sit at this table as to what sort of resource ought to be applied, whether it's better or more mediation, a unified family court, or some other type of resource that would attempt to address those situations.

We would also ask that whatever else you might do in your report or deliberations, you make some comment about court orders. We would ask that they be clarified, written in non-legal language, the parties be named and clearly identified, and there be concise, clear, unequivocal access schedules, including what might look like an amortization schedule, that would spill out the dates of access, particularly in those high-risk cases.

I know family law practitioners and others would argue that where cases are going forward without any problem, you want to build in flexibility and discretion to allow the parties to work and solve these problems themselves. We would argue that language is fine, but put in alternative language that provides for clear, concise directions when something falls apart.

Last, we would suggest there be some provisions, whether covered under provincial legislation or provincial policy, to deal with what we've referred to as the doorstep problems. Maybe there ought to be a place where the history of these kinds of cases is on file and where the professionals and police can get access to them, particularly in off-hours.

Maybe, just maybe, it might be helpful if there were a judicial officer, someone like a justice of the peace, or some kind of family law commissioner who might be available to be a resource to either the family law practitioner or the police, who have to deal with these situations in the off-hours.

I want to repeat—and it'll be the third time I've said it—police officers are very concerned about the children. When you speak to police officers they repeat this, and they can become quite emotional and quite passionate about it. They worry that these children will look on the police in a most unfavourable way, never mind what more serious and traumatic effect it would have.

In our view, this is not about parents. It's not about mothers or fathers. It's about children and their safety.

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The CACP thanks you for the opportunity to be here, and again, I convey the apologies of Chief Ford for his illness today.

Thank you for this opportunity.

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

We'll move on to the Children's Aid Society. Ms. Polowin, are you going to speak first?

Ms. Heidi Polowin (Director, Legal Services, Children's Aid Society of Ottawa-Carleton): I'm going to be speaking.

First, I would like to thank you for inviting us to the committee today so that we can offer our views to the committee.

I'd like to start by introducing the people with me. Shauna Lloyd is a supervisor in our intake department. Michael Pranschke is a social worker in child protection and family services.

I'll start with the mandate of the CAS. It is the mandate of all children's aid societies in Ontario to investigate allegations that children under the age of 16 may be in need of protection.

“In need of protection” is defined in legislation contained the Child and Family Services Act. I'll paraphrase for you the definition: Physical harm, or the risk of physical harm; sexual molestation or exploitation or the risk of sexual molestation or exploitation; emotional harm or the risk of emotional harm; situations where parents refuse or are unable to consent to medical treatment; situations where children are abandoned; or situations where a parent is unable to care for a child. This is the definition we work under.

At the CAS in Ottawa, we have an intake department with the specialized function of investigating all allegations made that a child may be in need of protection, as defined in our legislation.

The society, when conducting an investigation involving physical or sexual abuse, follows in Ottawa a joint protocol that was developed by the Children's Aid Society, the police forces in the city, the children's hospital, and school boards. Basically, it provides for a joint investigation by the police and the CAS where there are allegations of sexual or physical abuse.

The police take the lead role in the investigation, although the society is fully involved. The society will be present for interviews of the child and others, but will not conduct the interview with the alleged perpetrator.

Allegations come to the society from a variety of sources—police, schools, doctors, family, friends, neighbours, relatives, etc. Often allegations will be made by one parent against another, and often these allegations are made while parents are in a custody and access dispute.

Social workers advise that allegations made in the context of custody and access disputes constitute a most complicated area of their work. The allegations must be assessed for their credibility, but the undertones of bitterness and anger between the spouses, and manipulation of the children, make the assessment even harder.

I'll give examples of the kinds of allegations we get. A father alleges that a child came to an access visit bruised or that the mother left the child unsupervised. A mother will allege that the father hit the child during an access visit, or that the child came back with a rash in her genital area, and she suspects sexual abuse. A father will allege that mother's new partner is physically or sexually abusing the child. A mother will allege that father failed to give child medication during an access visit. These are the kinds of examples we deal with.

The effect on children caught in this situation is obvious. Even if they are not actually experiencing abuse, having to go through the investigation will take its toll. Sometimes they have to go through these investigations repeatedly if the allegations are repeatedly made.

The child will be interviewed by a CAS social worker alone or in concert with the police. There may be more than one interview. There may be a video done. There may be a written statement required. There may be a need to be assessed by the children's hospital or to visit the historical sexual abuse clinic.

While the CAS is conducting the investigation, if it concerns the access parent it will request that access be suspended. We ask the parent to voluntarily agree to do so. Most do, especially if they're represented by counsel. If they refuse to stop the access and it is a serious allegation, the society does have the option to go to court by way of a protection application to have the access suspended while the investigation is under way. But for the child who's enjoying access visits with his or her parent and is used to an access routine, the cessation of that visiting schedule is confusing and troubling.

• 1850

When counsel for parents become aware that the society has been involved with a family, they will often ask us to provide an assessment to the court with regard to the family. This is difficult for us to do. We do not have a statutory mandate to do custody and access assessments, nor is it our role. We can advise the court with respect to whether we were able to substantiate abuse or not. We will, however, make our file available to both counsel and the court as long as counsel gives us mutual consent for the release of that confidential information or the court orders disclosure.

Repeated allegations definitely take their toll on the children, to the extent that those repeated allegations may in and of themselves constitute abuse, and I'd like to give you an example of that. We had a case where the mother alleged that her two young daughters had been sexually abused by their father on an access visit, the children stating something to the effect that “Daddy poked me”. The initial allegations were felt to be credible by the CAS social worker and the other health professional involved. But the father denied wrongdoing, was totally cooperative, agreed to stop access and agreed to sexual behaviours testing. It was his position that he would do whatever was requested of him in his children's best interest.

When access was reinstated, the same type of allegation was made—“Daddy poked me”. There was a repeated cycle of access, allegation, suspension of access, investigation, and then access again. After some time, the social worker and some of the other professionals involved with this family began to wonder if perhaps these allegations were unfounded and the mother herself was not mentally well.

The society requested an FCC—a family court clinic—from our court. That assessment concluded that the allegations were fabricated by the mother and that she did have some mental illness problems, but the effect on the children was no less abusive than if the abuse had actually taken place. It was as harmful to the children. The society amended its protection application to seek a supervision order that the children be in the care and custody of their father with access to the mother supervised. The court made that order after a lengthy trial. Unfortunately, it took a pattern of repeated allegations for the true nature of the problem to be recognized.

I would like to give this committee the rough statistic—and please, it's very rough—that for every five cases the Children's Aid Society opens, three have custody and access issues, and two of those three cases are usually not found to be substantiated. From this you can see that the resource implications for the society are enormous.

Before concluding, the society would like the committee to note the following.

First, I'm not sure if the committee is aware that a number of coroner's inquests were held in Ontario over the last year that dealt with the whole child welfare system. In one of those coroner's inquests the jury made a recommendation with regard to access, and that recommendation was that access to family and other important people in the child's life is the right of the child and that all aspects of that access should be focused on the best interests of the child and not on the party seeking access.

Second, that jury recommended that the definition, “in need of protection”, the definition that's in our legislation, should be expanded to specifically include “protracted disputes with respect to the child's custody”. I would not go as far as this recommendation. I think the floodgates that would be opened would be enormous and that the CAS could not handle the required work. But I believe there must be some recognition that the intentional making of repeated false allegations can be emotionally abusive to children. That was recognized by our family court clinic in Ottawa and by a judge on our provincial court panel in the case I was referring to.

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Thirdly, there needs to be an increase in supervised access programs. The society does not have the resources to provide supervised access to families. Family members or friends are often inappropriate persons to provide supervision of access. Children need a neutral, safe place to attend for supervised access. And I know there are extensive waiting lists for the program in Ottawa.

Finally, we believe there is a need for a unified family court in Ottawa. A recommendation was made by the coroner's jury in the Kassonde inquest, an inquest taking place in Ottawa and involving the deaths of two young children who were murdered by their father while the custody and access proceedings were ongoing. It should be noted that when the CAS commences a protection application, custody and access matters before the provincial court or the general division in Ontario just stop. Those actions are basically held in abeyance until the CAS terminates its involvement in the courts. This results in two separate courts with separate judges dealing with the same family and with some very similar issues. The coroner's jury recommended that unified family courts should be established throughout Ontario to deal with family law, child protection, and custody and access matters, and that each case should be case-managed throughout by one judge.

While we do not have a unified family court as of yet in Ottawa, I'm pleased to advise the committee that the Provincial Court in Ottawa, the family division, has just recently instituted a case management system. This process involves one judge managing a case from the filing of the application to trial, and specific time lines are set out in the rules for milestones to be met in the case. That judge will become fully familiar with the issues and will ensure that the case proceeds with minimal delays. The bench and bar in Ottawa have great hopes that this will mean more expeditious resolution of cases involving children, which can only be in their best interests.

I want to thank you again for inviting us to speak. Ms. Lloyd, Mr. Pranschke and myself would be willing to answer any questions you might have.

The Joint Chair (Senator Landon Pearson): Thank you all very much. We'll now start into the questions.

Mr. Forseth.

Mr. Paul Forseth: Thank you.

I wanted to follow up on your discussion of false allegations. You did outline that perhaps two of every five allegations are false allegations where they are in the context of a custody and access dispute. You're not saying two of five of all allegations, you're just saying those—

Mr. Roger Gallaway: Three.

Mr. Paul Forseth: Okay.

Ms. Heidi Polowin: May I clarify? Of every five cases that the CAS investigates, three of those cases involve custody and access matters, and of those three, two are found to be unsubstantiated.

Mr. Paul Forseth: Wow! But I will say that backs up my practical experience, because I would be the court investigator and have to negotiate with a separate social agency in British Columbia, which was the Ministry of Human Resources at that time. The message got out on the street that you make false allegations of child abuse and get the other agency going, and then you get two agencies trying to sort their information out and you'll frustrate the court process. Once that information gets out into the street, it's very hard to take back.

I'm wondering what you have done as an agency with respect to your recognition of the problem to try to get on top of it and to change the message out there so that the street message is different and you begin to prevent it, because anyone who tries it realizes it's not going to work.

• 1900

Ms. Heidi Polowin: I'd just like to clarify this for a moment. I wouldn't want to suggest that when we say two out of the three allegations are not substantiated, we're saying they're false allegations. We're saying that we can't substantiate the allegations. They are two different things. I think that when you use the words “false allegations”, there's an intentional element there. And that isn't always there. Sometimes the allegations just cannot be substantiated by us.

As to the second part of your question in terms of what we've done, perhaps I will ask Ms. Lloyd or Mr. Pranschke to comment on how they deal with these continual allegations from families.

Ms. Shauna Lloyd (Children's Aid Society of Ottawa-Carleton): I think our consciousness has been increased regarding these issues. As Ms. Polowin outlined, for the purposes of ensuring that the child's best interests are ensured with either parent, we have started to look more closely at the parent who has custody of the child and who continues to make the allegations, and we have started to address the issues within that family system rather than looking outside at the person who is alleged to have caused harm to the child. For the most part, it's a difficult process, as Ms. Polowin outlined. It's very hard to prove that allegations are coming from one parent or the other rather than from the child. But we are working on that as best we can at this point.

Mr. Michael Pranschke (Children's Aid Society of Ottawa-Carleton): I think the other thing that's on the street now is that if you make a false allegation and you level the threat that if the CAS doesn't do something about it the CAS is going to find itself in court, involved in a lawsuit, and “I don't want my child or my grandchildren to end up like those other children in the inquiry”....

We already had a very difficult and complex situation, and now the ante has been raised for clients. I've even had other lawyers levelling subtle threats—that if we don't do something there will be lawsuits. Just trying to stay on top of the first kind of allegations is one thing, but now it's compounded three or four times. The time taken just to deal with an allegation and establish if it's false or not is complicated by a parent jumping and yelling and screaming at you, saying that you had better do something now or you're going to find your name in the paper tomorrow morning.

Mr. Paul Forseth: Okay.

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

Senator Duncan Jessiman: Do you have any experience with zero tolerance as far as the police are concerned? If there's zero tolerance, I don't know if there is.... Are you from Ottawa?

Ms. Heidi Polowin: Yes.

Senator Duncan Jessiman: Does Ontario have zero tolerance? Manitoba and some other provinces have zero tolerance.

Ms. Heidi Polowin: I'm not sure I understand what you mean by zero tolerance.

Senator Duncan Jessiman: There's an allegation made in a dispute between a husband and a wife and the police come along—and I know of a situation where it actually happened. It had to do with access. It was a mistake. It was the person's time for custody, but there was a mistake and they had to go to the place to pick up the child, and there was some actual touching. Then everyone left, and in the middle of the night the husband was picked up by the police and put in jail. It didn't get to a trial, but it got before a judge. After $10,000 had been spent, $5,000 on each side, it was dismissed.

Have you had any experience with zero tolerance, where the accusation is made, the person is charged, and it's never proven?

Ms. Heidi Polowin: Not in this jurisdiction.

Senator Duncan Jessiman: What about you, Mr. Westwick?

Mr. Vincent Westwick: I don't believe there's a zero tolerance policy of that description, not that I'm aware of.

Senator Duncan Jessiman: Thank you very much.

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

Mr. Paul Forseth: I would like to hear from the supervised access program people. Can you just describe how one gets the service? Does it require a court order, or can an individual just say he or she would like to use your service? Do the parents involved pay or does the taxpayer pay?

• 1905

Ms. Judy Newman: In general, 90% of families enter the process through court order for supervised access. Some of them do come self-referred, but generally there's a court order for it.

Most of the provincial services have some type of fee for service. However, no one is denied service for not being able to pay, so there's a graduated fee of some kind and a fee for reports and attendance at court. There are other services not accountable to the province, that are private, which do charge fees for service of anywhere from $15, $30, $50, $90 per visit or per hour for supervised visits of different types. But they're not accountable to the province and they're not part of the provincial program.

Mr. Paul Forseth: You led into my supplemental, which is do you have private fee-for-service people who are also providing that kind of supervised access?

Ms. Judy Newman: There are people, but we don't have a list of them, and they're not accountable to the province and they don't receive provincial funds.

Mr. Paul Forseth: You said you don't provide assessments and that you're just providing supervision to provide peace. But you all understand that anyone who is involved with a child, if that child is involved in a custody access dispute, is a compellable witness to court in a trial?

Ms. Judy Newman: Yes.

Mr. Paul Forseth: Do you have some fee for service there? If the court appoints an investigator, do those investigators regularly come to talk to you to see just how does the access go, what is your observed reputation, and do you have any protocols around keeping some kind of notes about the behaviour of a particular case?

Ms. Judy Newman: Yes, we do have standardized observation reports that are taken at each visit, and each centre will, on request, provide either a photocopy of those observation notes or a summary of those in the form of a report to counsel for both parties and to the court. Some of the centres have a fee for that. Some only charge for the photocopying charges, and legal aid in some jurisdictions will pay for reports to be provided.

Mr. Paul Forseth: That's enough for my round.

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

Mr. Gallaway.

Mr. Roger Gallaway: I just want to get this on the record and get this clear in my mind. You, the Children's Aid Society, said that of every five allegations, three come from people who are embroiled in custody and access matters, and that of those three, two are false. Is that correct?

Ms. Heidi Polowin: I didn't use the word “false”. I said that we could not substantiate them.

Mr. Roger Gallaway: If you cannot substantiate them, do you have the powers under either the CAS, your embodying legislation, or under the child welfare legislation of Ontario to make a finding of guilt?

Ms. Heidi Polowin: No, we do not.

Mr. Roger Gallaway: So if you cannot substantiate them, then I have to assume there's nothing there. What you're implying to me when you say you can't substantiate them is that you're still leaving this element of doubt that a guilty person is getting away.

Ms. Shauna Lloyd: The call will come in as an allegation against one party or another as to a child welfare issue. Someone has harmed a child in some way. Our investigation of that will either prove that it was true, it happened, or that it wasn't, or it may just show us something else. So the non-substantiation means basically that we were not able to establish that this child protection issue exists with this person. There may be other issues involved in the family that—

Mr. Roger Gallaway: I wonder if you can tell us how many allegations or how many files you opened last year to investigate.

Ms. Shauna Lloyd: We probably opened approximately, in total, 1,500 or more. That's a very rough guess.

Mr. Roger Gallaway: What is the population of the area? You're in Ottawa-Carleton?

Ms. Shauna Lloyd: That's right, approximately 800,000 or so.

Mr. Roger Gallaway: So I can conclude, then, that 600 of the 1,500 made you cannot substantiate, or that there are people who.... No, two out of five.

The Joint Chair (Senator Landon Pearson): Let her explain, Mr. Gallaway.

Mr. Roger Gallaway: So, say 40% of the five. I'm talking about total now. Senator Jessiman is working on custody and access. So you had 1,500 complaints and 40% of those are either unsubstantiated and/or people who are entirely innocent. Is that correct? So you had 600 false allegations.

• 1910

Ms. Shauna Lloyd: “False” is a word that I think we should avoid.

Mr. Roger Gallaway: You had 600 allegations. Let me put it another way: 600 allegations that you couldn't stick on anyone.

Ms. Heidi Polowin: That we could not substantiate.

Mr. Roger Gallaway: So in other words, you could not stick it on anyone.

Ms. Heidi Polowin: The police would not charge.

Mr. Roger Gallaway: I'm finding this rather distressing. The police will not charge, yet you're still leaving this lingering doubt.

So let's assume, then, that there are 600 people who have had a rap on the door from the Children's Aid Society and in the end they were entirely innocent or the Children's Aid Society couldn't substantiate what was going on. Some of these people must be innocent. They're not all guilty.

Ms. Heidi Polowin: Absolutely, some of them are innocent.

Mr. Roger Gallaway: Can you tell me, of those 1,500 complaints, how many came from men and how many came from women?

Ms. Heidi Polowin: I cannot tell you. We don't keep statistics by gender.

Mr. Roger Gallaway: All right. Of those 900 that came involving custody and access, can you tell me?

Ms. Heidi Polowin: No. Absolutely not.

Mr. Roger Gallaway: Do you have those records?

Ms. Heidi Polowin: No. We don't keep statistics in terms of—

Mr. Roger Gallaway: Do you have the names of complainants, then?

Ms. Heidi Polowin: Yes, we do.

Mr. Roger Gallaway: So you could, in fact, find out?

Ms. Heidi Polowin: If we chose to do that research, yes.

Mr. Roger Gallaway: Yes. Would you do that?

Ms. Heidi Polowin: No, we don't.

Mr. Roger Gallaway: I think this, Madam Chair, is a very important point in this issue, which we need to know, and I would like verification that in fact witnesses don't know. I think this is very germane to what we're discussing here.

The Joint Chair (Senator Landon Pearson): I have a supplementary to that. Could you clarify, because when you're talking about 1,500 cases, I know that under the law of Ontario anybody who suspects abuse has to report.

Ms. Heidi Polowin: That's exactly right. It doesn't just come from parents.

The Joint Chair (Senator Landon Pearson): So it doesn't just come from parents.

Mr. Roger Gallaway: No. I understand that.

Ms. Heidi Polowin: The allegation could come from a family member—

Senator Duncan Jessiman: Three-fifths have to do with custody—

Ms. Heidi Polowin: That's right, but the allegation may not come from—

Senator Duncan Jessiman: No, but it's two-thirds of the three-fifths.

Mr. Roger Gallaway: Let's home in on this, then. What do you know about those making the allegations only in custody and access? What percentage of those allegations come from parents, one or the other of the battling spouses?

Ms. Heidi Polowin: I can't tell you that.

Mr. Roger Gallaway: Do you have access to records that would tell you that?

Ms. Heidi Polowin: It would be a huge undertaking to have to find out that information, a very huge undertaking.

The Joint Chair (Senator Landon Pearson): But you're responsible to use those figures—

Mr. Roger Gallaway: Yes, we're trying to grapple—

Senator Duncan Jessiman: Could you not just grandmother—

The Joint Chair (Senator Landon Pearson): Senator Jessiman, it's Mr. Gallaway's turn.

Mr. Roger Gallaway: You presented us with some rather startling figures here this evening, but we are hearing from witnesses who were talking about being falsely accused—or, in your words, they've been accused but nothing's been substantiated.

Let me ask you another question, then. This involves the court process. You have said that in fact once there's an allegation you move in, and access ends if it involves the parent who has access. Is that correct?

Ms. Heidi Polowin: No. What I said was that when we commence an investigation we ask the access parent if the allegation is made against the access parent to voluntarily agree, for a short period of time while we do the investigation, not to exercise their access visits.

Mr. Roger Gallaway: You also said if they did not—

Ms. Heidi Polowin: In a serious case. And let me give you an example—

Mr. Roger Gallaway: No. That's okay. We've only limited time.

I want to know, then, what is the average length of time of an investigation.

Ms. Shauna Lloyd: It varies.

Mr. Roger Gallaway: You must have numbers, though.

Mrs. Sheila Finestone: Come on. You have rules under the youth protection act in terms of the amount of time you're allowed to finish an investigation.

Mr. Roger Gallaway: Let me ask you, would four months be a reasonable period of time?

Ms. Shauna Lloyd: Four months is excessively long.

Mr. Roger Gallaway: Would a month be a reasonable period of time?

Ms. Shauna Lloyd: The ministry outlines for us that we must conduct investigations within 21 days of receiving the report.

Mr. Roger Gallaway: You must conduct an investigation. But does that mean that you've concluded your investigation?

Ms. Shauna Lloyd: Not all the time, no.

Mr. Roger Gallaway: I'm asking you, how long does it take? You have 21 days to start it, so when do you complete it?

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Ms. Shauna Lloyd: Each case is different. It depends on what the information is and what the issues are.

Mr. Roger Gallaway: All right. If each case is different, let's assume then that it's a custody and access complaint. You know that two out of three of these can't be substantiated. What's the average time?

Ms. Shauna Lloyd: I can't answer that. What I might say is that the calls don't come into us as “This is a custody and access situation and here's the complaint”. Custody and access is always a side issue. It's within the whole family situation. Our obligation is to look at the safety and risk issues for a child. We always approach from that perspective.

Mrs. Sheila Finestone: Twenty-one days after a complaint?

Ms. Shauna Lloyd: Suspending access to a parent is for the safety and protection of the child during the course of the investigation. Any actions we take are based primarily on that premise.

Mr. Roger Gallaway: I have two final questions.

Mr. Michael Pranschke: Can I add to....?

Mr. Roger Gallaway: Yes, go ahead.

Mr. Michael Pranschke: You're asking for a time period. Yes, it is within 21 days. I have currently four or five cases under my jurisdiction where custody and access is an issue. The times where allegations have come in...within 24 hours I've started and completed an investigation and have come up with a determination one way or the other.

Mr. Roger Gallaway: That's good, because we heard a reverend in Toronto and his went on for three and half years. We heard from people last week from northern Ontario who talk about it going on and on, and we also hear about these repeat allegations when it's totally unfounded.

In an era when your resources are very stretched—I live in Ontario so I know something about it—what recommendations would you make to this committee for people who in fact make allegations that are unfounded? You must find it disturbing that somebody keeps calling and saying “So-and-so is doing this”, and every time you investigate you find it's either...I call it false; you call it unsubstantiated. What kind of use of resources is this? Your statutory obligation is in fact to investigate. This is a bit of a mockery.

Ms Heidi Polowin: I agree with you in the sense that there are many cases we investigate that.... I shouldn't say many. There are situations where the CAS is being manipulated, there's no question. The problem is if we put something in legislation to make it an offence to do this, are we going to in some way restrict or close the doors to those cases where there really is abuse going on? That would be my concern.

So if you are going to make a recommendation in this area, be very careful. There is a reason the CAS has to investigate each and every allegation, wherever its source—a teacher, a doctor, a social worker. There is a reason, because it could be the real one. That's why I'm very leery about any kind of statutory provision that in any way cuts that out, unless it is carefully worded so that only malicious, intentional, false allegations are caught.

It's a very complicated area. As I've been trying to stress to this committee, an unsubstantiated allegation is not necessarily a false allegation. Sometimes you have three-year-olds who can't quite describe what's happening. You know something is happening, but you're not sure what. Even if sexual or physical abuse isn't happening, something else is happening in this family that we have to be involved in.

So I'm really leery about suggesting to this committee shutting the doors on cases because we're worried about false allegations. I would rather this committee leave the doors open, but give us the.... This committee unfortunately can't give us the resources, but we need the resources to ensure that the families get the help they need.

Mr. Roger Gallaway: One last question. I have to say, in your example of the three-year-old, it seems to me you're delving into the realm of Freudian psychology, where he talked about the ego and the end of the super ego. That's a wonderful theory, but you can't prove any of it. You can't prove the existence of the ego or any of these other things.

You're talking about a three-year-old, and you say you know that something is going on in that child's life, but you also know of the profound effect of marital breakdown. I find this very disturbing. It's very disturbing the dearth of evidence that you're presenting here tonight to this committee, and I must say I'm not pleased by it at all.

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Now, one final observation is that we heard from witnesses last week from northern Ontario who told this committee that.... We had a number of witnesses who had been accused of abuse. They were, in fact, non-custodial fathers. We were told that investigations went on not for 21 days or 24 hours, but these for considerable periods—it was eight, ten, and twelve months—and nothing was proven, substantiated, or found.

But in the meantime, as you say, you strongly suggest to them that they should not exercise their access. You also have the statutory hammer, if I can call it that, of going to the court and applying to have access denied. In cases where they wanted supervised access, in other words, the child would go to the grandparents, the grandparents were required to sign a statement—this is from another children's aid society in this province—that in fact they believed the allegations were real or true.

Do you do that or do you have them sign something?

Ms. Heidi Polowin: No. I don't think we do that. What we do is advise whomever we're asking to do the supervision to supervise and make sure the children are protected during the visit. That's all.

Mr. Roger Gallaway: Would you make a comment then on this? Let's say it's the father with the paternal grandparents. Would you have reservations about that?

Ms. Heidi Polowin: I can't speak generally. It would very much depend on the case.

I should clarify. It's not every case in which we ask the access parent not to exercise their access.

Mr. Roger Gallaway: Can you give me some statistics on that?

Ms. Heidi Polowin: No, I can't.

The Joint Chair (Senator Landon Pearson): You went well beyond your time.

Senator Jessiman.

Senator Duncan Jessiman: You said that it's not only children who stay there. You said your facility is also used for the purpose of dropping a child off. You stagger the hours. So say the mother brings a child in and then the father comes later to pick the child up. Are there cases like that?

Ms. Sally Bleeker: That's correct.

Senator Duncan Jessiman: Right. What percentage would that be, and what percentage would be where the children had to stay there with the parents? Tell me what the percentage is approximately, if you know it.

Ms. Sally Bleeker: Our program is perhaps an anomaly, because it's relatively small and we have focused on the complete supervision of the visit. But there are certainly many centres in Ontario where that might be three to one.

Would that be realistic, Judy?

Ms. Judy Newman: Yes. It varies from area to area.

Senator Duncan Jessiman: So is it three who stay or three who—

Ms. Sally Bleeker: The three use it for what we call exchange.

Senator Duncan Jessiman: Right.

Ms. Sally Bleeker: There might be three of those while one would be under full supervision.

Senator Duncan Jessiman: Right.

Are there any cases or any orders or whatever you're following whereby it gives you any discretion at all to say that you have the child for a while? Are you left with any discretion to say that because this is his third visit and everything has gone well, then the access parent can now take the child out on his own for an hour or two hours? Are you given any discretion at all?

Ms. Sally Bleeker: It's not within our purview to change court orders.

Senator Duncan Jessiman: I know that, but you don't get orders that way?

Ms. Sally Bleeker: No. We're not an assessment service. In order for there to be a change, they can refer to our notes. Then they have to go back for a change in the order.

Senator Duncan Jessiman: Okay. Now, you did say that for each visit, you do make a written record.

Ms. Sally Bleeker: That's correct.

Senator Duncan Jessiman: Okay. So because you do that, I guess you are subpoenaed or you're asked to go to court a lot.

Ms. Sally Bleeker: Hopefully our records are asked to go to court and our valuable time is kept for the children.

Senator Duncan Jessiman: Fine.

Mrs. Sheila Finestone: On a point of information, I wonder whether your records are accessible.

Ms. Sally Bleeker: Absolutely.

Mrs. Sheila Finestone: What about the law of privacy?

Ms. Judy Newman: Parents are required to sign release-of-information forms allowing the centre to provide records or reports to the court, their lawyers, assessors, or other authorized individuals. That information is not allowed out to anyone without the specific authorization of both parties.

Mrs. Sheila Finestone: Thank you very much.

The Joint Chair (Senator Landon Pearson): Go ahead, Senator Jessiman.

Senator Duncan Jessiman: Is that done before they come in or is it only received once it's asked for?

• 1925

Ms. Judy Newman: That's done as part of the intake process with our centres. Now, I can't vouch for what goes on with private groups.

Senator Duncan Jessiman: I understand.

Mr. Westwick, I don't know whether you have this or not, but do you have any idea of the percentage of the work the police would do in respect of family disputes? And if you do, what percentage of that would have to do with custody and access?

Mr. Vincent Westwick: I wouldn't be able to say.

Senator Duncan Jessiman: You wouldn't have that. Okay.

Do you know if any of the police officers are trained in respect of family matters? They're now talking about how lawyers should have had more training—we agree with that—and that judges should have more training. What about the police?

Mr. Vincent Westwick: I probably should know the answer. The police officers are being given more and more training in specific areas, usually as a result of incidents that have occurred. Certainly there has been broad-based training on court orders, for example, such as the use of restraining orders. We have had lawyers and judges and that sort of thing come in and speak to them on those issues.

Senator Duncan Jessiman: Do they speak to all the police or do you have them talk to a number of them who have been made into a section of the police to deal with family matters?

Mr. Vincent Westwick: Well, that's sort of a controversial issue in police training.

Senator Duncan Jessiman: I forgot about the union.

Mr. Vincent Westwick: No, no, it's not a union issue. By and large, the people who deal with the kinds of situations I was talking about, the doorstep access problems, are patrol officers. These are the uniformed officers who are driving the patrol cars who are sent to a call following a call to the police. These are general patrol officers.

Our thinking was that we should try to give them broad-based training. The difficulty is that you have a lot of patrol officers and they might not always be called to the same call or the same type of call. So we are exploring a more focused training. We're actually considering that kind of thing now.

Senator Duncan Jessiman: That's all I have.

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

Senator Mabel M. DeWare (Moncton, PC): I just want to thank the witnesses for coming before the committee. It's always nice to get a different perspective of what's going on.

We've heard a lot about mediation, parenting plans, and education programs, but here's one of the things I'd like to ask Mr. Westwick about. Consider the cases that are high risk. We've had people say to us that if someone is alleged to be abusive—this is battering or being abusive to a child—the allegations could be true or not true. But if it isn't true, how do we fast-track that to keep those people from being denied access, then going through the courts and maybe having a stayed order? Then maybe a year later, having not seen that child for a year or so, you have to start what we've just been told...that now the access could also involve trying to get a parent back into a relationship with that child. How do we fast-track that so that these people don't fall under that situation?

Mr. Vincent Westwick: I'm not sure I know how to answer that beyond the somewhat obvious answer of “resources”. Just about every public authority that you can point your finger at is facing difficult budget times. Look at next week's newspaper, when our budget goes before the regional council. You know, these are very difficult times. The Children's Aid Society of Ottawa-Carleton is also under extreme financial pressure. It would be easy to say we should ask people to work harder and ask them to put.... There are very difficult resource issues.

Senator Mabel DeWare: The sad part, we have found, is if it's a false allegation. Now, if it's true, then the perpetrator absolutely needs to be punished.

Mr. Vincent Westwick: Yes.

Senator Mabel DeWare: If it's a false allegation, all of a sudden the rest of his family is involved. His parents, friends, and colleagues are wondering whether this can be true. It may be November when it happens. With our court system, it could be May before the situation is addressed. In the meantime, look at what that family has suffered.

Mr. Vincent Westwick: Maybe I can answer it in two ways. Ms. Parent pointed out to me that maybe more money to the supervised access program would help. That's not just a self-serving comment, because it is an interim response. It allows an access situation to continue during this interim period you're talking about.

Senator Mabel DeWare: Right.

Mr. Vincent Westwick: The second comment I'd make is that you really should speak—I'm sure you have—to many of the front-line people. You have some of them here today.

• 1930

My experience with front-line people, particularly in the policing area, is that these are very devoted people. They really become concerned about this, and they are acutely aware of false allegations. It's a problem they're very much aware of. And when you bring that kind of professionalism to the cases, I don't paint quite the bleak picture that you do, although, having heard the horror stories, I'm sure you have to be sensitive to it.

I don't want to sound like I'm preaching, but you really have to sit down and talk to some of these people who are involved in investigating these things. They are very devoted to this kind of work, and it's difficult work.

Senator Mabel DeWare: I think that has been part of our problem, probably, the fact that it's very hard to hear the two sides to every story. If you hear one side and you can't have access to the other side, it makes our judgment quite difficult.

Mr. Vincent Westwick: I would encourage you—and I've done this to committees before and they haven't taken it up, but I know this committee is very anxious to open its mind to new ideas—to go down to the family court and sit outside courtroom 25 or 26 and watch some of the proceedings and see how they carry on. There are things that will anger you, but there are things that I think will become more understandable to you.

The system is one we can all become frustrated with. Those of us who work in that system can become very frustrated with it. But you also develop an understanding as to why those kinds of situations occur, and sometimes they're not as outrageous as they may appear when being told from a retrospective view.

Senator Mabel DeWare: I imagine the results aren't always what we expect or can expect either.

Thank you very much.

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

Mr. Eric Lowther (Calgary Centre, Ref.): Thank you, Madam Chair.

I want to thank Mr. Westwick for bringing in a little splash of reality with these court orders that the police have to deal with. My heart really goes out to them. I don't know how they do that job. I can't imagine what they do after that.

I don't have a specific question to him. My question is to the Children's Aid Society of Ottawa-Carleton, a couple of clarification points.

I don't know too much about the Children's Aid Society. Can you tell me how you're funded and who funds you and who you're accountable to?

Ms. Heidi Polowin: We're a creature of statute. We used to be funded 20% by the regional municipality and 80% by the Ministry of Social Services. I believe we are now fully funded by the Ministry of Social Services.

Mr. Eric Lowther: Is that the same with all the children's aid societies?

Ms. Heidi Polowin: All the children's aid societies in Ontario are fully funded by the Ministry of Social Services.

Mr. Eric Lowther: Is that who you're accountable to, up through that chain to the minister?

Ms. Heidi Polowin: Yes.

Mr. Eric Lowther: Thank you.

I noticed in the brief the Children's Aid Society of Ottawa-Carleton gave us, on the second page, it says in item (e) that you're recommending there be an amendment to permit the court to sanction a person for contempt or breach of a court-ordered condition.

Ms. Heidi Polowin: Yes.

Mr. Eric Lowther: That doesn't seem to quite line up with the discussion with Mr. Gallaway a little earlier—you know, we're going to research it and we have to investigate every allegation and all that. But can you explain where you're at?

Ms. Heidi Polowin: Unfortunately I don't have the document you have in your hand. I wonder if someone could give it to me.

Mr. Eric Lowther: Sure.

Ms. Heidi Polowin: The executive director, Mr. Gill, submitted this material to the committee, and I didn't get a copy of it. This was part of a package that went to the coroner's jury in the Kassonde case, of recommendations made by the Children's Aid Society of Ottawa-Carleton.

One of the concerns of those working within child protection is that, unfortunately, our judges are creatures of statute themselves. Those courts are not courts of inherent jurisdiction. They don't have the same powers as other courts have, so if the power isn't specifically mentioned in the legislation, they don't have it.

• 1935

Our judges have the power to make orders—for example, for access, or that parents go to treatment programs, or that parents cooperate with the CAS in terms of sending children to infant stimulation programs—but they can't enforce them. There are no provisions for enforcement of that.

Mr. Eric Lowther: They don't have the contempt option.

Ms. Heidi Polowin: That's exactly right. We're asking that the legislation be amended to give the judges those kinds of powers.

Mr. Eric Lowther: Can I read into that recommendation, then, that if there's a breach of an access order per se, you would support some type of action by the court in terms of contempt or whatever would fall from that contempt order?

Ms. Heidi Polowin: Yes, I think we do support that, and I'll explain why. I'll give you the example of a case where a father disappeared with two children and the mother could not reach them. The Children's Aid Society became involved because we got complaints from the community about this father. We then started protection proceedings, looking for a supervision order.

When we do that, we have to attempt to find the biological parent, the mother. We advertised for her, and found her. She hadn't seen her children in almost a year, because he'd disappeared with them.

Mrs. Sheila Finestone: Did you use the RCMP?

Ms. Heidi Polowin: No. He had custody, and she hadn't had access visits for well over a year. Mother was represented by counsel, and mother's counsel brought a motion for access to the children. Every time mother tried to exercise that access, father would say the children were sick, or father was gone when mother went to exercise the access. Time and time again, the access was not being exercised.

When we went back before the provincial court judge, there was really nothing the provincial court judge could do.

Mr. Eric Lowther: Right. So I'm referencing back to something I think Mr. Gallaway said that had to do with the repeat claims.

Somebody comes in and says they're having this problem, and it comes back again and again. Your response was, well, we have to treat every one as potentially legitimate for the chance that they might be. But I didn't hear you say this component—-gee, you know, you're right, they are abusing us. Well, you actually admitted that sometimes they use you.

When those cases come up, is this statement (e) saying that in those cases the Children's Aid Society of Ottawa-Carleton would support a contempt order being issued, and that being put to a stop through that contempt order?

Senator Duncan Jessiman: And change custody.

Senator Anne Cools: In that case.

Mr. Eric Lowther: Leave out the change of custody until we first issue the contempt order.

Ms. Heidi Polowin: There are two different scenarios we're talking about. We're talking first about the scenario of investigation. That's something I dealt with in the focus of my presentation, how we investigate allegations.

In the particular situation you're raising now, with the recommendation we made to the Kassonde coroner's jury, we made that recommendation in the context that the Children's Aid Society has gone to court because it feels that children are in need of protection. After the investigation is completed, we feel on the basis of the definitions in the legislation we have grounds to go to court on to ask the court for an order that children are in need of protection. We don't get to court until we reach that threshold.

Mr. Eric Lowther: Right.

Ms. Heidi Polowin: So it's when we get to court that our judges are in effect hamstrung, because their orders in terms of making conditions cannot be enforced if they're not followed. There are no contempt proceedings that can happen in CAS court applications. Our provincial court judges do not have the jurisdiction to make contempt orders.

Mr. Eric Lowther: So the enforcement side of this is almost a joke at that point, really.

Ms. Heidi Polowin: It's very difficult.

Lise Parent represents parents and children, and I think she could speak to this and provide some information to the committee.

• 1940

Ms. Lise Parent (Volunteer, Ottawa Supervised Access Program, Ontario Ministry of the Attorney General): I think, with all due respect, the committee is slightly confusing the area of child protection with the area of custody and access, and there are two separate, very distinct pieces of legislation that deal with those issues.

If I'm hearing Ms. Polowin correctly, she's saying to this committee that under the guise of the child protection legislation there is no authority whatsoever, in the judges who deal with this area, to issue contempt of court orders. There are, however, some recourses that are available in the domestic—if I can use that terminology—legislation that are open to explore the issues of contempt, which is what you were talking about.

Senator Duncan Jessiman: That's the same difference, I believe.

Ms. Lise Parent: Correct. Again I'm speaking only of this province, where we have two distinct levels of judges. The presentation was with the unified family court, and in fact there is an authority. On one day, one judge could be dealing with a case under the child protection legislation, and later that afternoon they could be dealing with a different case under the custody and access legislation.

Mr. Eric Lowther: I just had a good idea for a question. Do they have restraining order rights?

Ms. Lise Parent: I don't understand what you mean by restraining order rights. Do they have the inherent jurisdiction to issue restraining orders? Is that what you're asking?

Mrs. Sheila Finestone: In the case of an allegation of assault or something else, can you have a restraining order from the accessing or custodial or non-custodial parent—either way—against their having any access to that child until you've had a chance to do your investigation? That's a restraining order. Can't you stop them from seeing each other? Can't you call the police and tell them they can't see each other?

Ms. Heidi Polowin: As I indicated earlier, where we believe a visit would be risky for a child where we're conducting an investigation, we ask the parent—

Mrs. Sheila Finestone: You ask the parent. Can you stop the parent?

Ms. Heidi Polowin: We ask the access parent not to visit while we're conducting the investigation.

Mrs. Sheila Finestone: I'm not asking whether you can ask. The question from Mr. Lowther wasn't whether you can ask. Is there the right to a restraining order?

Ms. Heidi Polowin: We can go to court for a supervision order restricting access if we feel we have the grounds.

Ms. Lise Parent: There is also the right for the parent, for whom the order is being sought against, to dispute that. They have the entitlement, as anyone else does, to go to court and say “I don't agree with that”.

Mrs. Sheila Finestone: It's your question, not mine, but when it's my turn I'll take it up.

The Joint Chair (Senator Landon Pearson): Mr. Lowther, you may ask a question. Senator Pépin is next.

Mr. Eric Lowther: Thank you, Madam Chair.

Can I ask one last little question of the Children's Aid Society? What's a good day for you? This sounds like tough work, like the police work. Can you give us a story of a case that actually worked, where you went home at the end of the day and felt, gee, that made it all worth it?

Ms. Shauna Lloyd: I think it happens all the time. A good day for me, as an intake supervisor, is when we receive no new referrals of harm to children.

Mr. Eric Lowther: No business is good business.

Ms. Shauna Lloyd: Absolutely.

Mr. Michael Pranschke: A good day would be, after conducting an investigation, getting a voluntary admission from the alleged perpetrator. A bad day is when you can't figure out who the perpetrator is. A bad day in one case was a baby, 6 months old, with 13 fractures. We looked at both the mother and the father, and that investigation went on long past my tenure. A year and a half later there's still no answer as to who injured that child. They've lost custody of that child. The next child born into that family was removed, and the two children have subsequently been adopted. That's the end of a good investigation that went for on a year and a half.

Mr. Eric Lowther: Thank you.

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

Senator Pépin.

Senator Lucie Pépin: Coming back to allegations of abuse, some witnesses have argued that the parent who makes repeated false allegations is in fact himself or herself guilty of child abuse. Do you agree with that?

• 1945

Ms. Shauna Lloyd: I think that's something we talked about earlier. We are more conscious now of the impact of the process that ensues when allegations are made on children and how it could be considered abusive to the child, certainly emotionally, from continuous interviews and perhaps from continuously talking about abuse issues, etc. It's something we're aware of.

Senator Lucie Pépin: On the supervised access program, you spoke about grandparents. I was wondering in which cases you need the help of grandparents, or whether grandparents are involved in your program. We had a number of representations from grandparents who said they could not see their grandchildren. Where do they fit in your program?

Ms. Judy Newman: Grandparents, like any other person who applies to the court for the right to access a child, can receive an order to have their access supervised or their exchanges supervised at a supervised access centre.

Senator Lucie Pépin: In which cases would you have grandparents part of your program?

Ms. Judy Newman: Sally, would you like to address that? Have you had that experience? I have other examples.

Ms. Sally Bleeker: Our particular program has not yet had a case where there has been a court order granting grandparents access, but we've had a number of cases where a parent comes with their parent or parents as a support. In those cases, the custodial parent agreed that the extended family could be part of a visit, as long as it was in this safe, neutral and supportive setting.

We have found those to be highly successful cases, in that the child has greatly benefited from access to the extended family. We have frequent requests for an aunt, uncle or grandparent to attend on special occasions, such as near a child's birthday or close to Christmas. We do what we can to facilitate this, but we cannot go beyond the bounds of what is agreeable at that point to the custodial parent. It does make a difference that we are there, and the setting is seen as safe, neutral and supportive to the child.

It's not infrequent in our program that the extended family appears as well.

Senator Lucie Pépin: Thank you very much.

Ms. Judy Newman: There are other situations, however, where a custodial parent has decided their parents or the parents of the other parent cannot see their child for one reason or another, and the court has determined there was an existing relationship between the child and the grandparents and that relationship would be important to maintain. So it will make an order for access to occur at a supervised access centre so that it is in a neutral setting and the relationship can be observed, or exchanges can take place to prevent any type of conflict between the custodial parents and the grandparents.

Senator Lucie Pépin: Thank you very much.

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

Mrs. Sheila Finestone: Thank you very much. Quite frankly, I'm not sure where I'd like to start. I think I'll start with Mr. Westwick.

I think what you had to say tugs at all our heart strings. There's no question the police officer in a doorstep case—and there are too many, you're absolutely right—is in a very precarious situation.

Given the nature of the people we are recruiting into the police force and the ethnocultural diversity of the police force today, what type of training are we giving them so they can assess the situation, as difficult as it is, with some ethnocultural background sensitivity, such as aboriginal or English-French? How have you done some of the work, and is there a need for us to recognize that this is something that ought to be looked at, both at the police college level—a recommendation that we can make—and at the level of the chief of police...the round table on police officers?

• 1950

Mr. Vincent Westwick: Yes, I think the answer is that there could always be more training.

Mrs. Sheila Finestone: Is there mandatory training, please? And I'd just like short answers, if you don't mind.

Mr. Vincent Westwick: I'm a lawyer. I don't give short answers.

Mrs. Sheila Finestone: Yes, you're telling me, great. Having come from a family of lawyers, I know you only know the colour grey and how to...

[Editor's Note: Inaudible]...around it; black and white doesn't belong in your family.

Go ahead.

Mr. Vincent Westwick: “Mandatory” is an interesting word. It's part of their job. They have to take it to get through the police college. They have to take it as part of their duties. In our force there would be, I think, variation across the province and across the country.

Speaking for Ottawa-Carleton, there is training on this. It's regular—

Mrs. Sheila Finestone: Excuse me for interrupting you, but you would suggest that the type of dilemma presented in the case that you presented to us, the regional police case...so that they could understand the implications of the judge signing versus the

[Translation]

the court clerk

[English]

who signed it.

Mr. Vincent Westwick: Yes.

Mrs. Sheila Finestone: Now, the next question flows from what was said by Ms. Polowin.

Where they don't know, and they're not sure how to determine, and they're concerned for the welfare of the child, as I understand.... I'm from Quebec. I was a youth protection director. As I understand, however, in Ontario you have a youth protection act or a child welfare act. If your officer senses that there is something wrong and that there could be a concern as a result of the anger or the angst between the two adults, the client, as you said, for that police officer is the child. The client for the child services is the child.

Can you call at any hour of the day or night? Is there a 24-hour service? Can you call and say this child is at risk?

A voice: Yes.

Mrs. Sheila Finestone: I would like you to come and either help me assess this case or take this case into custody for the protection of this child until we can straighten it out tomorrow morning. Can that be done?

Mr. Vincent Westwick: Yes, it can be and is done.

Senator Anne Cools: Oh yes.

Mrs. Sheila Finestone: Fine. That's was the nature of the question I think some of my colleagues were trying to ask, and I'm glad you've been able to clarify that.

Senator Anne Cools: But—

Mr. Vincent Westwick: I would say that—

Mrs. Sheila Finestone: Your name isn't Vincent.

Senator Anne Cools: No, but...

[Editor's Note: Inaudible]

Mrs. Sheila Finestone: Just a little humour at this hour of night. You don't mind?

Senator Anne Cools: We've been sitting all day. We're getting a little punchy.

Mr. Vincent Westwick: I would say that's not the first option. Simply because they sense that it's a difficult situation, an officer—

Mrs. Sheila Finestone: No, I didn't suggest it was the first option.

Mr. Vincent Westwick: It wouldn't be the first thing they would do. But, yes, certainly in Ottawa-Carleton there's an excellent rapport between the Children's Aid Society and the police, and they work very closely together.

Mrs. Sheila Finestone: Okay, then let me go to the next instance, where we have had the repetition of allegations, which goes to your report, Madame Polowin. I found you split hairs somewhat. That's a very frightening set of statistics—which is seen on television, just in case you're not aware of the fact that you've been televised. Every word you've said has been heard out there in the general public, and one of the reasons for my privacy question is that, once released, it's hard to recover.

Now, you have released some statistics and some findings, and you then mitigated the impact by saying allegations versus proof, etc. Then you go on to tell us that it's 21 days that you're given. But I understand from Michael that you can respond within 24 hours.

Ms. Heidi Polowin: Yes.

Mrs. Sheila Finestone: Now, you have a policeman on a doorstep, you have a fight going on, you have obviously a frightened and upset child. Depending on the nature of the aggression or the nature of the intervention, that case is going to go to one of your caseworkers and it's going to take 21 days before there's an initial response to stress?

Ms. Heidi Polowin: No.

Mrs. Sheila Finestone: Well, that's what you said. So I want you to clear it up, because I'm sure you're wrong.

Ms. Shauna Lloyd: The ministry gives us 21 days to complete an investigation. Our response is based on the risk to the child. If there is immediate risk to the child, we respond immediately, be that this time of day or whenever.

Mrs. Sheila Finestone: Okay. Therefore, there are different degrees of response, given the degree of the call and where the call came from.

Ms. Shauna Lloyd: That's right.

Mrs. Sheila Finestone: Thank you very much.

You say the judges don't have the necessary powers and that therefore there needs to be an amendment in the role of the judge and the way the Judges Act is written for family court judges. Is that a next point?

• 1955

Ms. Heidi Polowin: For judges who get their jurisdiction to deal with Child and Family Services matters, there are no contempt powers.

Mrs. Sheila Finestone: Is it family court judges?

Ms. Heidi Polowin: These are Provincial Court family judges who, when they are dealing with the Child and Family Services Act, have limited powers. They have no contempt powers.

Mrs. Sheila Finestone: Therefore you are recommending to us that there be a contempt power allocated or a revision of that act so that the contempt power would be given to them.

Ms. Heidi Polowin: This was a recommendation the society made to the coroner's jury, and the coroner's jury accepted it and I believe included it in their recommendations.

Mrs. Sheila Finestone: Therefore it would be a reinforcement of what you believe and what you've lived with as a problem if this is included in our report as a recommendation for consideration for federal, provincial, and territorial judges.

Ms. Heidi Polowin: Yes.

Mrs. Sheila Finestone: Thank you very much.

Joan and Sally, what are you here for? I really haven't heard your voices. Joan, what are you doing here? Who are you representing?

Ms. Joan Gullen (Honorary Chairperson, Ottawa Supervised Access Program, Ontario Ministry of the Attorney General): I have worked for 25 years with the Family Service Centre of Ottawa-Carleton and I was one of the founders of the supervised access program.

Mrs. Sheila Finestone: I'd like to ask you, then, on the supervised access program—which I think is a wonderful idea, where needed—does that supervised access take place only upon referral from a court, or does it also come from a referral from your social workers?

Ms. Joan Gullen: It can be self-referral, it can be from a social worker, or it can be from the courts.

The majority are from the courts, right?

Ms. Judy Newman: I would like to point out that the supervised access centres we're talking about deal only with custody and access matters. They don't deal with the supervision of families involved with children in the care of the Children's Aid Society. We're under two different pieces of legislation. Our orders come under section 34 of the Children's Law Reform Act in Ontario, which allows the judge to order supervision of access by a person or a party on their consent. The Children's Aid provides supervision of children in their care under the Child and Family Services Act.

Mrs. Sheila Finestone: Thank you.

I'd like to go back to the question of the request you got from—

The Joint Chair (Senator Landon Pearson): It will be the last question.

Mrs. Sheila Finestone: All right.

Mr. Westwick, you said you got a request from Alberta to supervise a child who was to be put on another airplane at the airport. How do you verify what is the condition of that child? Is the child going on a custody and access visit to parents? Is the child a runaway? What do you know? I'm trying to find out what the problems are in interprovincial relations between municipal, provincial, and federal officers. Can the round table that's dealing with violence and other problems of police chiefs of Canada be effective in a recommendation that we might want to make in our final report? If I could have any kind of recommendation from you, from the grass roots, where the police officer really delivers the service, it would be very helpful.

Mr. Vincent Westwick: I don't know enough about the particulars of that particular order. It was sent to me as an example.

Mrs. Sheila Finestone: Well, give me some example where you might have these problems.

Mr. Vincent Westwick: As Mr. Oliver was saying earlier, there's certainly a great deal of confusion in the minds of police services when it comes to interprovincial orders or orders that deal with differing courts. You may have an order from a provincial court in Ontario and a superior court in Quebec, or vice versa, and these are very confusing. This is a long-standing problem.

Mrs. Sheila Finestone: As a last point, have you ever thought to have your officers write to the Minister of Justice or the Attorney General to describe the difficulties you have with the lingo with your officers? We all deal with lingo problems and initial problems and all kinds of shortened versions or lengthened versions, with words whose meaning we never know. Have you ever gone through one of these and sent them a list of requested changes of language so that they're more easily understood?

• 2000

Mr. Vincent Westwick: Certainly in Ottawa-Carleton we've raised these issues before. We've actually met with a fair amount of cooperation from the bench and the bar.

Mrs. Sheila Finestone: Have you a written document you could give us so we could write them recommendations for language change? In other words, the words you pointed out, who is the defendant and who is the plaintiff and so on, do you want those a little bit more clearly defined?

Mr. Vincent Westwick: I don't have a document specifically like that.

Mrs. Sheila Finestone: I know. I was referring to what you pointed out to us.

It would be very helpful if you would give us the alternate language, if you would write us a document that was clear, just in the three or four paragraphs you pointed out to us, on page 1, 2, 4, 10, 12, whatever it was—no, page 12 was an interpretation of page 13, if I remember correctly.

Thank you very much.

Mr. Vincent Westwick: Thank you.

The Joint Chair (Senator Landon Pearson): Senator Cools, you had a point of clarification.

Senator Anne Cools: Thank you, Chairman, and I'd like to thank the witnesses.

When I came in, I thought I heard some confusion among some of the witnesses, and then I heard one of the witnesses say the confusion was among the members of the committee. Perhaps I could clarify or attempt to clarify the confusion I heard.

There's the Divorce Act, which is federal. There's the Children's Law Reform Act, which is a provincial piece of legislation, and then we have the child welfare legislation, which has been renamed—it is now called the Child and Family Services Act.

Colleagues, I would like to submit that some of the confusion that is resulting in today's community a lot comes from the renaming of a lot of this legislation over the years, to be more trendy as society has changed, to eliminate a lot of words. The old Infants Act became another law, and the old Child Welfare Act became the Child and Family Services Act.

The Joint Chair (Mrs. Sheila Finestone): Are you going to be making a graph, because you know all this?

Senator Anne Cools: Well, it's tough.

What I was trying to find out from someone before is if anybody had a copy of the Child and Family Services Act.

In any event, my understanding is that the Child and Family Services Act basically lays out the powers for child protection services, mostly the Children's Aid, and the empowerment of the Children's Aid. It hands enormous powers of apprehension and care and wardship in a limited way to the Children's Aid Society. So it is quite complicated.

When the previous witness was talking about contempt powers of judges, I think she meant under this Child Welfare Act. Perhaps the confusion could be clarified if the witnesses could tell us, according to the Child and Family Services Act, what the act defines to be a child in need of protection, because I think you would—

The Joint Chair (Senator Landon Pearson): It's on the record.

Senator Anne Cools: It is on the record, you say. If you would look through that, you would see that the definition of a child in need of a protection does not countenance a child who is in a custody dispute or in an access dispute within a divorce. It is as though these kinds of abuse and maltreatment have no existence. Many witnesses have been saying to us that denial of access should be a form of child maltreatment—“child abuse” is a different term; the old term used to be “child maltreatment”—that parental alienation should be viewed as a form of child abuse; that is, child maltreatment.

If we can make it quite clear.... Maybe you said this before, but perhaps you could clarify very very clearly for us, in point of fact, that the term “child in need of protection” does not countenance a lot of the problems we are hearing here before us. In other words, the act is left somewhere back in the 19th century.

Ms. Heidi Polowin: I would agree with you that the Child and Family Services Act does not make mention of custody disputes as a ground of protection. However, I believe in a case where a child was suffering emotional abuse—and I could turn you to paragraph 37(2)(f)—there is a definition of emotional harm contained in the legislation. If you would like, I could read it to you.

• 2005

Senator Anne Cools: Certainly.

Ms. Heidi Polowin: It says:

(f) the child has suffered emotional harm, demonstrated by severe,

(i) anxiety,

(ii) depression,

(iii) withdrawal, or

(iv) self-destructive or aggressive behaviour,

and the child's parent or the person having charge of the child does not provide, or refuses or is unavailable or unable to consent to, services or treatment to remedy or alleviate the harm;

The following section deals with the risks of that kind of emotional harm.

Senator Anne Cools: But you're proving my point.

Ms. Heidi Polowin: That's exactly right. It doesn't specifically—

Senator Anne Cools: Precisely. If you look at those sections—and I haven't looked at this for a few years now—you will see that it is countenanced in the old terminology, what we used to call child maltreatment or neglect and so on. In other words, the child welfare act, however it's called and in whichever province, has not been countenancing the problems we're talking about in custody and access within divorces. I just wanted to clarify that.

Perhaps we could have one of the researchers look at one of these particular provincial pieces of legislation to draw out to us very clearly how, in point of fact, the legislation has lagged in the current era.

I understand exactly what you mean.

Ms. Heidi Polowin: I know it's not mentioned in our legislation, and I'm not personally aware of any provincial legislation where it is mentioned.

Senator Anne Cools: It doesn't exist?

Ms. Lise Parent: I think another interesting point out of that, Senator, is that the legislation as it's currently drafted requires physical manifestation of emotional abuse.

Senator Anne Cools: Oh, I know that.

Ms. Lise Parent: The legislation is very difficult for a person coming to the court indicating that the child is suffering emotional harm. For the court to have an automatic power, an automatic involvement in that case, it requires physical manifestation. Perhaps that is an area that the committee should be looking at.

The danger, though, in going down that path is the “opening the floodgates” argument, that there must be some type of concrete evidence for the court to rely upon to be able to make the determination that the child is in need of protection.

So I think along those lines, perhaps, there could be recommendations from this committee.

Senator Anne Cools: Absolutely. I attended some of the coroner's inquests, and I have looked at some of those report recommendations very carefully. I think the concern at all levels is that the child welfare acts of each province have to be brought into consonance with the current reality of what is going on in our communities.

Ms. Heidi Polowin: I can advise you that the Ontario Association of Children's Aid Societies has submitted a brief to the ministry with many recommendations on changes to the legislation.

Senator Anne Cools: While we're on the child welfare act, I have another little question, just a teeny-weeny one.

We have heard a lot of talk about the best interests of the child. We had a group of lawyers here yesterday from the Canadian Bar Association, I think. They are heavy-duty now on children's rights, child focus, enabling, and so on and so forth.

My question to you—and again, I haven't looked at the Ontario piece of legislation for a few years—is that I understand there's a section in the child welfare act that exempts lawyers, by virtue of solicitor-client responsibility, from reporting child abuse. Would anybody like to comment on that?

Mrs. Sheila Finestone: Well, it's not under the Young Offenders Act.

Senator Anne Cools: No, this is child protection legislation.

Is that true or is that not true? As I said, I haven't looked at it for a little while.

Ms. Heidi Polowin: A lawyer is not required to breach solicitor-client privilege—

Senator Anne Cools: Got it.

Ms. Heidi Polowin: —if that lawyer represents a client.

Senator Anne Cools: You could put it another way. If that lawyer is in point of fact representing a client who's abusing a child and is aware that he or she is abusing that child, that lawyer is exempt from the responsibility of having to report child abuse. I have been waiting for an opportunity—

Mrs. Sheila Finestone: Aren't doctors exempt?

Senator Anne Cools: No, doctors are compelled.

Mrs. Sheila Finestone: So doctors are compelled and lawyers are exempt.

Ms. Heidi Polowin: Only the lawyers who represent a client. Lawyers generally are obligated, as members of the public, to expose.

• 2010

Senator Anne Cools: I believe that is an extremely contentious one. I have to do some work on it. It seems to me that only got into the provincial legislation recently, in the last few years, as the lawyers have built up their interest. I've been waiting for an opportunity to ask this question.

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

Do we have some other responses to this?

Mr. Roger Gallaway: I have a point of order.

The Joint Chair (Senator Landon Pearson): Yes.

Mr. Roger Gallaway: Madam Chair, I asked a number of questions. I've written them down, and it's basically five questions, which they didn't answer. Before these witnesses from the Children's Aid Society leave, I would like them to arrange a date with the clerk to come back and answer the questions.

Mr. Eric Lowther: Would you supply them with the questions?

Mr. Roger Gallaway: They're on the record, but I can supply them, yes.

The Joint Chair (Senator Landon Pearson): I would need agreement from the committee for this.

Mr. Roger Gallaway: Agreed.

The Joint Chair (Senator Landon Pearson): We don't have a quorum, but we can discuss it. We're not 12.

Mr. Roger Gallaway: Can you arrange a date for them to come back?

The Joint Chair (Senator Landon Pearson): We can get agreement. It's not a motion, it's just to get agreement.

Senator Anne Cools: It's not a motion.

Mr. Roger Gallaway: We do not need a motion, we just need agreement. Do we have agreement?

Senator Anne Cools: Yes.

Mr. Roger Gallaway: Thank you.

The Joint Chair (Senator Landon Pearson): Thank you very much. We will now adjourn until Monday at 3.30 p.m.