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]

Tuesday, May 19, 1998

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[English]

The Joint Chair (Mr. Roger Gallaway (Sarnia—Lambton, Lib.)): Welcome to this, our 27th meeting of the Special Joint Committee on Child Custody and Access.

As I'm required to do at the beginning of these sessions, I should tell you that this is a committee formed by the House of Commons and the Senate with a view to studying the access and custody provisions under the Divorce Act, and to report back to the respective chambers on or before November 30 of this year.

We're very pleased to return to Vancouver. We were required to cancel a day a few weeks ago. Our commitment was to return and, lo and behold, here we are. We're pleased to be here to complete the hearings we had originally scheduled here.

The other thing I should say is that this is a proceeding of the House of Commons and the Senate of Canada and there's a certain decorum we must maintain here. I would ask that you not make remarks, talk, or applaud in any way.

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We're pleased as our first panel to have with us Mr. Christopher Cole, Mr. Charles Traynor, and Mr. Jeffrey Patterson.

As you are aware, you have five minutes to make your submission. I'll warn you when five minutes are up, but we have a very full day today and I will have to ask you to abide by the five-minute rule. We'll begin with Mr. Cole.

Please proceed.

Mr. Christopher Cole (Individual Presentation): Mr. Chairman, committee for custody and access, I thank you for being allowed to testify.

I'm the father of three young children, and all that I'm about to comment on is directly related to my personal experience. When a parent is falsely accused of sexual child abuse, this immediately brings into the situation an enormous amount of assessors and sometimes the police. These professionals are supposed to act in good faith for the protection of the children. However, they put up their guard due to this allegation and many immediately side with the accuser. Not only does this allegation have a detrimental effect on the falsely accused, it has a devastating effect on the children at the instance of the allegation and in the future.

The custodial parent has the power to subject the children to as many counsellors and therapists as she sees fit. Even when it is proven that such abuse has never taken place, the custodial parent can, in my case, subject the children to sexual abuse and mental health therapists, along with more continued physical examinations. These counsellors can and have questioned the children repeatedly over a long period of time so as to pressure the children to say something the therapists want to hear. This is considered abuse and must be stopped.

This has a devastating effect on the minds of the children and possibly produces false memories. When the accuser knowingly makes such false allegations, this is considered a criminal offence, as the Child and Family Services Act states under subsection 7(3):

(3) No action lies against a person making a report under this section unless he makes it maliciously or without reasonable grounds for his belief.

This is supported by section 140 of the Canada Criminal Code, which states,

140.(1) Everyone commits public mischief who, with intent to mislead, causes a peace officer to enter on or to continue an investigation by

(a) making a false statement that accuses some other person of having committed an offence;

(b) doing anything intended to cause some other person to be suspected of having committed an offence that the other person has not committed

(c) reporting that an offence that has committed when it has not been committed

The punishment under this section is liable to imprisonment not exceeding five years or punishable on summary conviction. Regretfully, this is not enforced when a vindictive parent makes such false allegations.

When an assessor is used by the courts, such as a family court counsellor or psychologist, this person should adhere to the stringent guidelines and policies to ensure that such reports are impartial and adhere to the safety of the children.

In personal experience, a B.C. family court counsellor wrote a biased, unsubstantiated, and unbalanced report against me in favour of the mother. The head of the B.C. investigation inspection branch in Saanich, under the B.C. Attorney General's office, admits this counsellor violated eight major sections of the B.C. Corrections Branch Manual of Operations in completing his report. Yet the heads of this department, to the highest level, refuse to act and have informed me to let the courts handle it.

These professionals should be held accountable for their actions, as their reports can mean the loss of one's rights to their children and create emotional and financial problems for those concerned. When one parent has custody of the children, the non-custodial parent discovers that he loses his rights to receive information concerning his children. Having joint guardianship is not considered joint custody.

When a non-custodial parent reports concerns to the Ministry for Children and Families of British Columbia, in my experience these reports are not taken seriously. However, the ministry will support the custodial parent, normally the mother.

On a personal note, when I had contact with this ministry, I was informed by a worker and supported by her supervisor that as the mother has custody of the children she can do anything she wants to them.

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A very common practice to alienate the children from the non-custodial parent is for the custodial parent to deny access whenever she wants, regardless of any court orders. The only way to enforce access by the non-custodial parent to maintain a positive relationship is to take the mother to court for contempt. This is very expensive, with little results. However, if the father is unable to pay the maintenance, the family enforcement program can legally garnishee any moneys from the father with no cost or expense to the mother. Plus, this is a taxable benefit for her if she has to pay for the legal fees.

In relation to the maintenance, under the guidelines of what a non-custodial parent should pay, it is not taken into consideration what the custodial parent is earning. This is creating an unbalanced burden on the non-custodial parent.

Finally, an easy tactic to ensure that one with interim custody retains custody of the children is to refuse to communicate, as the courts will not grant joint custody if there is no communication.

I supplied several documents in support of this. I can put forward copies of the Freedom of Information and Protection of Privacy Act, section 61, index chapter 143, paragraph 22, and the Information Privacy Handbook from the Ministry of Children and Families of British Columbia. I'm also citing an evaluation from the United States of how suggestable pre-school children are. It's by Dr. Ceci and Dr. Huffman.

The Joint Chair (Mr. Roger Gallaway): I'm sorry, your time is up.

We'll move on to Mr. Patterson.

Mr. Jeffrey Patterson (Individual Presentation): Thank you, Mr. Chairman.

I'm about to summarize a brief as briefly as I can. I understand that even though I tried to get it to you much earlier, it did not get there by e-mail and was finally faxed to Ottawa last Thursday when I discovered it wasn't in Ottawa.

First, I'll say that this is also a personal experience, as is specified, and, as some people know, most of the events I'm about to describe happened in the province of Ontario; they did not happen in B.C.

Second, for own my interest, some people would say that the case ended up ideally, in the sense that I did eventually obtain full custody of a child of a marriage. Then I subsequently was able to deny access to the non-custodial parent by court order. In that sense it was a very happy result. But of course it's not a happy result for the child, and that is the reason I'm here.

I would hope this committee—and it's my object in making this presentation—would do something about removing the charge, which we've just heard about, of child abuse as the first weapon of choice for divorcing parents, because that is what actually happens today. I will say that in the conduct of this case it would not have ended up as happily as it did if I had not had the resources to employ the best family lawyer that Toronto could offer, that Bay Street could offer, and all that goes with it. Of course, this was at considerable financial cost.

In my brief I also formulate something that I'll call Patterson's rule. Patterson's rule is that sexism displayed in the helping system, if you will, is inversely proportional to the level of the functionary involved. In other words, the lower the level of the functionary, the greater the sexism. In terms of educating functionaries and public officials, I think that's the biggest challenge before us.

There were numerous instances in my case, one that I cite in my brief, in which my ex-wife broke into my house and had to be removed by three police officers, one on each arm and another on the legs. No charges were ever laid, despite the fact that Ontario says, and said then, that it had zero tolerance for violence in domestic situations.

In another instance, my ex-wife called my secretary and said that if I didn't get on the phone she would come down and shoot me. All we could do was to leave the office for the balance of that day.

In another case I went into a police establishment in downtown Toronto with a bloodied face saying that I'd been assaulted by my ex-wife. I gave them the names of witnesses. Nothing was ever done. In other words, there is no zero tolerance when it comes to women assaulting men; it usually happens the other way around.

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In the case of the Children's Aid Society—and again, because it's Ontario it may not apply in B.C.—I discovered that if there were concerns about the mothering ability of the mother, who did have sole custody for some four years in this case after we separated, nothing was done. I only heard if there were accusations made against me.

When I say that sexism is inversely proportional to the level of the functionary— I was generally well treated by Ontario judges. I found the federal judges—this was a matter in federal court—in Ontario to be well educated in all matters, including the fact that women frequently will use child abuse as their first weapon of choice. These judges would not tolerate that in the case of Ontario.

The only thing I can fault the judges for is, in terms of not obeying court orders, they were quite reluctant to ever pursue any contempt of court charges against my ex-spouse. In fact, things only turned around when one justice in Ontario, Mr. Justice Labrosse, who has gained fame I think in a few other cases, said that in fact if my ex-spouse did not abide by orders of the court he would see that she was jailed. It was only at that point that I got any cooperation at all. This was only after the case had been in the courts for four years. Several justices were simply reaching the end of their tether in terms of what they would tolerate.

As my time is running out, I'll just simply refer to an aura of political correctness, that men are always guilty and that women are not, that pervades the landscape involved in custody disputes.

In my own case, a former Toronto Globe and Mail journalist, June Callwood, cited my case numerous times. There was one instance when we appeared in court and found out that the Canadian Civil Liberties Association had enjoined our case as a friend of the court. Ms. Callwood was a bencher on the board of the Canadian Civil Liberties Association.

In another case, members of a hostel called Nellie's in Toronto interfered at my place of employment. Ms. Callwood was the founding director of Nellie's. This kind of interference on the part of a very prominent feminist occurred constantly throughout my case and was weighed against me. It was this that I found very difficult to tolerate.

The Joint Chair (Mr. Roger Gallaway): I'm afraid I'm going to have to ask you to end it there.

We'll now move Mr. Traynor for five minutes.

Mr. Charles Traynor (Individual Presentation): Thank you very much, ladies and gentlemen.

In some of the discussions here we may be getting it backwards. I'm not here to argue for more access for custodial or non-custodial parents; I'm here to argue for access for the children to their parents.

Last night I held a crying man in my arms. I could just as easily say I held a dying man in my arms, because that's what's happening to him. He's dying inside, and so is his child. His situation is not unique. Our social fabric is becoming more and more complex. If equity is indeed to become a norm in our society, then there are issues concerning what we are describing here today as custody and access—and we might even look at revamping the entire Divorce Act—that need to be addressed.

I certainly don't envy you your task. I've watched these proceedings. I was in Toronto. I've watched them on CPAC. I was here the last time you sat in Vancouver. This discussion is intensely complicated and politically it's a minefield, but I beseech you not to back away just because the task is difficult.

The time for change, as you are hearing across the country and as you've heard already this morning, has long since passed. It must happen now if the fabric of our society isn't to be irreparably damaged, I believe. In fact, it may be too late for many of our country's children.

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There are many issues and concerns you will hear as you tour the country, and I plead with you not to be distracted when you're asked to deal with the reality of physical violence in the home. Although this is a very serious problem, there are many more abuses that occur in failing marriages that need to be addressed, and to focus on the most obvious is indeed a travesty, I believe.

I beseech you as co-chairs to keep this committee on track. Don't be distracted by discussions of criminal law. This is an issue of access and custody for the children.

As a bit of background, I'm twice divorced. I'm a 47-year-old businessman. I operate a small firm here in Vancouver. We employ, at the present time, just over 100 people. I live in Vancouver to be closer to my offspring, and I commute to work here, in Vancouver.

I have three children, two from my first marriage and one from my second. That will give you a flavour of my own little complex world. I'm certainly not unique. I've outlined in my submission the cases of several men who have had problems similar to those my family has encountered. I'll leave it to you to read about those cases.

They bring up two issues I'd like to highlight. I also have four recommendations on how to deal with those issues.

It's my inherent belief, as a divorced parent, that any new legislation or revisions to existing legislation under the Divorce Act must be written for the benefit of children first and parents second. A further premise here is that all children require more, much more, than simply the financial support of two parents. They need the care and attention of both parents equally, in a stable and supportive environment.

As a little bit more background, I want to tell you I've been raising children for 20 years, just about, and I've done it every way that I can imagine and that any of the people I've been in contact with can imagine. I've been a single parent. I have co-parented. I have had custody of my children and moved them back and forth between two homes. After my second divorce, we moved children between three homes.

I believe I've made mistakes in this learning process, and I'd like to share some of that experience with you today. I believe, and want to emphasize, that children need a stable home environment. At the moment, my two oldest children are pretty much on their own. My youngest daughter is 10 years old. I visit their house regularly and stay at their house so that she can have the stability and emotional support she needs as a 10-year-old child.

There are two issues I want to highlight for you. One is denial of access and the other is parental mobility.

The first issue, as you've heard over and over again, is that any custodial parent under today's rules can deny or withhold access with impunity and without recourse on the part of the non-custodial parent. The fellow I was counselling last night has not seen his son since the new year. He has had three court orders granting him access, all of which have been denied by the custodial parent. The courts are so jammed up, he won't have the opportunity to get to see a judge now until August or September. This is child abuse, in my mind.

With regard to parental mobility, at the present time, the custodial parent can move anywhere they like with impunity and without recourse on the part of the non-custodial parent. The reverse is not true. In fact, if I, as a non-custodial parent, were to move away with one of my children, I would be charged with kidnapping and summarily hauled into court.

I have four solutions, which I'll run through briefly. I have given them in more detail in my brief, which I've submitted to you.

The first is mandatory mediation. In those situations where amicable agreement regarding custody, access, and/or maintenance cannot be reached, mediation must be obligatory.

Second, create as much stability for children as possible. This would require joint custody being mandatory from the moment of separation to be imposed in those cases where other more suitable arrangements cannot be agreed upon by both parties. When I say “both parties”, I mean parents and children. If you want to consider a separation, it may be three parties.

The mandatory term of this arrangement must be in effect for at least a minimum of two years after separation. What this would do, I believe, is remove the club that currently exists from the potentially fractious circumstances and permits the separating parties to focus on the issues that require attention.

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During this cooling-off period, one order of business would be to create a monetary fund for the children and then to take care of their immediate needs, determining where they would reside, who would take them to their baseball practices, their music lessons and that type of thing.

In short, where it cannot be agreed upon, a parenting plan must be developed.

Solution three is to provide equal access to both parents.

Solution four is to make it a criminal offence to move without consent. I believe this is a situation where plenty of thinking goes into it ahead of time, and notice, at the very least, must be given so that the situation may be resolved.

Solution five is that arrears should apply equally to both finances and access. If you're in arrears with your access, you risk losing your custody or residence entitlement.

Just as with any shareholders' agreement in a new company, today's parents need to think about their roles and responsibilities before they enter into marriage and decide to have children, and they need to be apprised of the consequences of their failure to take these issues seriously. Indeed, there need to be consequences, consequences that apply equally to both parties and that respect the needs of the children.

Thank you very much for this opportunity.

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

We'll move to questions, colleagues. I must say, though, that because we're on a very tight schedule today, we may go less than five minutes on the rounds of questions.

Senator Anne C. Cools (Toronto-Centre, Lib.): On a point of order, Mr. Chairman, I wonder if you could get these three witnesses to put their cases on the record, because they've been—

[Editor's Note: Technical difficulty]— particulars from their cases. It would be good if they were put on the record so that we could look at them.

The Joint Chair (Mr. Roger Gallaway): We can do that if in fact they know those particulars.

Mr. Traynor, you didn't refer to a case, but Mr. Patterson, you did. I wonder if you can tell us the style of cause. I don't know if you know what that means, but it's the date of your divorce, where it occurred, and perhaps the file number, if you know it.

Mr. Jeffrey Patterson: I've actually done that in the appendix to the brief I've submitted. It's case CL-646/84 in the Ontario Supreme Court, jurisdiction of York County.

Mr. Christopher Cole: My case is Victoria Registry, court 5939, and under the B.C. Supreme Court, file 28810.

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

Mr. Forseth.

Mr. Paul Forseth (New Westminster—Coquitlam—Burnaby, Ref.): Mr. Cole, you referred to the fact that at one point during your court contest there was an assessment done. I think you said in this case it was done by a family court counsellor.

Mr. Christopher Cole: That's correct.

Mr. Paul Forseth: Who was that family court counsellor?

Mr. Christopher Cole: His name was Neil McKinnon, from Esquimalt Probation and Family Court Services.

Mr. Paul Forseth: Once that report went in, was there a trial where you were able to then cross-examine the writer of the report and go into the issues, and in a court situation the court was able to evaluate the weight of the recommendation?

Mr. Christopher Cole: I haven't gone to court yet. I'm still separated. The divorce has not been cross-examined. The counsellor has not been cross-examined yet because the ex-wife has continuously delayed the court proceedings.

Mr. Paul Forseth: What are the issues at contest? Obviously, you're both going to get a divorce, so are you contesting the issue of custody?

Mr. Christopher Cole: Yes.

Mr. Paul Forseth: So you want custody, and mother has interim custody?

Mr. Christopher Cole: That's correct.

Mr. Paul Forseth: Are you getting access?

Mr. Christopher Cole: On a very limited scale. After repeatedly being denied access, I'm now seeing the children. I just started recently, with eight hours approximately every other week.

Mr. Paul Forseth: Is there an interim order covering your situation?

Mr. Christopher Cole: There's an interim order. It used to be three hours every other week, and then I was denied access.

Mr. Paul Forseth: When the interim order was not being followed or whatever, then what did you do? Did you try to take it back to court for adjustment of the interim order?

Mr. Christopher Cole: Yes. It wasn't being followed, so I took her to court for contempt. The judge said no contempt. Three weeks later I was denied access again. I attempted to take her to court for contempt again, but she was in a hidden residence. Her lawyer refused to serve her for contempt purposes, so I could not serve her for contempt. I didn't see the children for 14 months. That situation was continuously repeated.

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Mr. Paul Forseth: How did that 14-month period end and you had access again?

Mr. Christopher Cole: The ex-wife lied to the police and was falsely arrested. Ten days later I started seeing the children again.

Mr. Paul Forseth: The reason I ask those details is it's in line with a fair amount of testimony we've had. The kind of mechanics around making orders of the court really worth the paper they're written on shows up, in practicality, to be very difficult for it to work, because of course those who write the law or who have an academic approach say, well, these remedies are available. Then we talk to someone who's in the practical situation of looking at court lists and getting a person served and the practical access to make this court system work, and the experience is quite different.

Were you represented by a lawyer or were you able to start on your own an application to enforce or an application to vary your interim order?

Mr. Christopher Cole: I tried to at the time, but it became costly. Due to unemployment, I couldn't afford to go into court. Then I finally got a lawyer through legal aid and started to go into court again.

Mr. Paul Forseth: Because you can enforce a Supreme Court interim order at the family court level and you don't need to be represented— were you not given any help at all to basically fill out an application and get on the court list?

Mr. Christopher Cole: Everything I did, basically, was through help from other fathers. As for the legal system, I couldn't get any resources.

It never went to family court. It went immediately to Supreme Court, and family court has no jurisdiction over the Supreme Court.

Mr. Paul Forseth: Well, family court can enforce Supreme Court orders; it can't change them. You might have been able to approach family court to have some— but you never did approach the provincial court for enforcement of the access order?

Mr. Christopher Cole: No.

Mr. Paul Forseth: Okay. That's interesting testimony around the pragmatics of it.

I take it you want to chime in and say something before I finish.

Mr. Charles Traynor: I really appreciate you bringing these points up, because the reality is that none of this information is made available. I've dealt with family court counsellors on numerous occasions. I've been denied access repeatedly since my second divorce.

When I went back and applied for more access—I was in a similar circumstance where I was given only a number of hours every couple of weeks—my ex-wife moved out of town and took the child with her. She didn't notify me or the courts until we arrived back in court, and the judge just tossed up his hands and said, well, it's kind of academic now, because she lives in another town. There was really no point in my continuing to press for a 50-50 split where I would share in the maintenance of my child, as is my right. It is the right of my child to have me there feeding her breakfast and taking her to school and those things.

I gave up work for a day a week for the next two years to travel to the next city to take my child to school and spend the day with her.

Mr. Paul Forseth: What two cities are we talking about?

Mr. Charles Traynor: Victoria and Chemainus.

Mr. Paul Forseth: Okay.

Mr. Charles Traynor: They're an hour and a half apart. It's not a huge distance, but in the case I cited earlier, under very similar circumstances, the fellow's wife moved to Campbell River. It's a four-hour trip.

I have another friend whose ex-wife took the children to Florida. There are people here who know that case as well.

I have another friend whose wife moved the family without notice, without provocation, from Mississauga to Calgary.

Mr. Paul Forseth: This will be my last question.

We hear of those cases, but do you have any recommendations as to what we could do to prevent that? Is the court system totally incompetent to be able to—

Mr. Charles Traynor: The court system is incompetent to deal with this under the current legislation, and I believe it has to become a criminal offence to move your children to another city, if you are in the process of divorce or separation, without given notice and a written agreement between the two parties, the two parents, and the children.

The children need to be involved in this. Why should their social circles be disrupted? Why should their lives be disrupted for the immaturity of one or both of the parents? That's who's suffering.

Mr. Paul Forseth: Okay, thank you.

The Joint Chair (Mr. Roger Gallaway): We have two more questioners, Senator Chalifoux followed by Dr. Bennett.

Senator Thelma Chalifoux (Alberta, Lib.): To each one of you, were the rights of the grandparents ever considered in any of the cases?

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Mr. Christopher Cole: My parents were denied access to the grandchildren repeatedly. Due to the parents not having legal advice, because they couldn't afford legal advice, they didn't know where to turn to. At this time, they're still having problems.

Mr. Jeffrey Patterson: It was never formally addressed. I could add, though, that I have permitted my former spouse's parents to have access to the child.

Senator Thelma Chalifoux: That's very important.

Mr. Charles Traynor: In my case, it was never formally addressed, but my parents tried to contact my first wife on numerous occasions to speak to the children and to arrange meetings, and they were denied that contact with the kids. So until the children were teenagers, there was a gap in their visitation. Now the teenagers have sought out their grandparents.

Senator Thelma Chalifoux: Do you have any recommendations regarding the extended family of each one of your children? How important do you feel it is to the well-being of your children?

Mr. Charles Traynor: It's absolutely imperative that they have contact with their grandparents. I've promoted that actively throughout the past 10 years, and the children do have access to their grandparents.

Mr. Christopher Cole: Likewise, I think the grandparents should have the right.

Mr. Charles Traynor: You understand it becomes very complicated when there are perhaps eight grandparents involved in this whole discussion.

Senator Thelma Chalifoux: Well, when you're a great-grandparent— I know the situation.

The Joint Chair (Mr. Roger Gallaway): We're not going to discuss age here this morning!

Dr. Bennett.

Ms. Carolyn Bennett (St. Paul's, Lib.): Mr. Traynor, in your first solution, making mediation mandatory, I think what the committee has heard over the time of the hearings is that the word “mediation” is problematic to some of the groups, who feel that in a power differential or in a situation where there may be abuse, mediation is just not appropriate.

I wonder what you would consider in changing the word “mediation” to “alternative dispute resolution” or a broader one that allows the kind of shuttle diplomacy or allows a different way, broadens it out so that it is appropriate. Or are you talking about mediation for all of those relationships where there is no issue of abuse?

Mr. Charles Traynor: No. In the case where there's abuse—and again, I don't want to get sidetracked by this issue. If you think about the labour union situations of the last century, the situations are very similar. You do need a final arbitrator in those situations. So an assessment is made by the mediator and the situation is turned over to a court of law. It's dealt with as a criminal matter in that situation, but that is not the bulk of the cases the mediator is going to be dealing with.

There needs to be somebody—a child advocate—sitting there in the middle of the room talking to the children and the two parents. If there are disputes between the two parents, they'll have to be worked out in that room with that advocate, with the mediator. If they cannot be, if there's no resolution, then the mediator needs to write a report and submit it to a court of law and have it dealt with as a criminal matter.

Senator Thelma Chalifoux: The mediation then would include the children.

Mr. Charles Traynor: Absolutely. It can't be done without them, because their lives are totally affected by it.

Ms. Carolyn Bennett: It keeps coming back to the committee that probably only 10% of divorces end up in this high-conflict situation. What I would like to ask everybody is, in these high-conflict situations, should the children automatically have someone speaking on their behalf independently?

Mr. Jeffrey Patterson: Just briefly, I think the committee would be aware that Ontario has long had that system. The official guardian, in my case, was involved in—

Ms. Carolyn Bennett: Did we hear from the official guardian that it can only take 60% of the referrals? So there's obviously a resource issue too.

Mr. Jeffrey Patterson: That was not a problem in my case.

I think the issue with mediation is whether or not a remedy can be enforced. In my own case, there was at least one effort at mediation almost every year in four years, and none of it could ever be enforced. That is still the problem: the enforcement of the orders and acting on the recommendations of the mediators.

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Mr. Charles Traynor: In my instance I went to a court counsellor, and when my ex-wife didn't return the phone calls, he abandoned the case.

Mr. Christopher Cole: In my case, when it became very heavily conflicting, I immediately applied through the Attorney General's office for an advocate for my children, due to the fact that I reported the physical and mental abuse the mother had been imposing on the children. It's still continuing, after three and a half years, and the child advocate just refuses to do anything, because she has interim custody. I have actually seen in the courtroom, as a court watch person— I walked into the Supreme Court, and a child advocate lawyer was the advocate for the one parent, and as soon as the judge reversed the interim custody to the other parent, he sided with that parent.

Ms. Carolyn Bennett: The other thing is the whole child welfare. One of the problems in this country is that the child welfare system is too busy and unable to do what's already on its plate. We keep hearing that there needs to be a separate group that would deal with children, a place for them to call at midnight if one parent is drunk or a place— Would the child welfare system, if well run, have helped the children in your case, sir?

Mr. Christopher Cole: I've reported my concerns to the Ministry for Children and Families. It's flogging a dead horse, with the results I get from them. As far as they're concerned, as the mother has custody, I have no rights to my children whatsoever and they don't take my concerns seriously. After showing pictures of proof of physical abuse, reports from the mother's therapist of abuse and concerns that the children do not want to go back to the mother, and supervised reports with me that the children actually acknowledged and do not want to go back to their mother, all I get is, “Handle it in court.” The children have actually reported to the child advocate that their wish is to live with daddy.

The Joint Chair (Mr. Roger Gallaway): Thank you very much. I regret that we have to terminate this part of the session now, but time marches on.

I want to thank you, Mr. Cole, Mr. Patterson, and Mr. Traynor, for getting us started this morning. We apologize for the late start, but we are under way. Thank you very much for being part of this process this morning.

Our next witness is an individual representing Fathers for Equality, Mr. David Campbell. We also have, from Parents of Broken Families, Mr. Hodgson and Mr. Grieg. We will begin with Mr. Campbell, representing Fathers for Equality.

Mr. David A. Campbell (Fathers for Equality): Thank you very much, Mr. Chairman. I would like to thank you for listening. In my opinion, from my 10 years of experience with the men's movement, this is the first time in history that the government has formally asked men as a gender what they wish out of society.

I would like to acknowledge first that we respect that women have issues, but men also have issues. This is the first time I'm speaking formally, and I'm speaking as the copper wire that has received many lightening bolts, as people have testified here. I've been doing this for 10 years on my own dollar, my own penny. I've contributed many hundreds of hours for the sake of trying to help men, knowing that there are no resources available for men. I will further clarify that.

We're talking essentially about balance, not superiority. We support an approach that is child-centred and in the child's best interests.

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The presentation for Fathers for Equality is in three parts. One is by Avi Tal, who is concentrating on a child's bill of rights and the co-parenting plan. In part two, I deal with the current and historical biases—what I call bias of omission, bias of denial, and bias in mediation. The third part is by Keith Harris, who is dealing with professional standards, freedom of information, and hopefully revisiting Bill C-41.

I can only speak for our Fathers for Equality group, which has over 200 fathers in it, and try to give supporting evidence for my presentation. I gave four copies of my presentation to Mr. Forseth, and I understand they will be transferred to the committee. Thank you.

“Bias by omission”—what does that mean? This problem of omission—and I mean omission in terms of man as a gender and fathers— Omission number one is that both genders are not fully and equally represented. For example, I would refer to your own committee on Bill C-41.

Many of the groups that represent women-centred organizations have lawyers to represent them and funding by the government. Many of our groups have none at all. I think it's fair that both genders have the tools to be able to represent their case.

I testified before the B.C. Law Society's gender bias committee, and when you look at the studies that were given to that committee, the almost signal gender that testified before it, and the funding, which came from the Ministry of Women's Equality, it is clear that only one gender was being listened to. This is what I call my first bias of omission.

Another bias of omission is it would be nice to have a faculty of men's studies that would look into the environment around men that young boys have to grow up into, and to look at the suicide rates, the incarceration rates, and the life expectancy rates. We have a Ministry of Women's Equality; there is no Ministry of Gender Equality. That's what we're after—balance.

Omission number three I would say rotates around the fact that in B.C. here, there's a family maintenance enforcement program, but there is no family access program. Many of our fathers who testified informally yesterday and I hope many who have testified before this committee are pointing out the problems with access. We need an enforcement program that enforces access to the same extent that maintenance is enforced.

There are over 80 women's centres in B.C. and somewhere around 20 to 30 counselling centres. There are zero for men. I have men, as this gentleman pointed out, who are physically and emotionally abused and often threatened. You say that 10% of the cases are going to this conflict. It's 10% that are reported. Many are threatened beforehand with the threat of false accusations and simply just drop, knowing they cannot win against a biased system.

The other point I would address is a hospice centre for men. I had a nurse come to us when we had a men's centre, where we had car washes and garage sales and chocolate sales, and say that when the men come out of hospital, they have no place to go for a hospice service to go through their grief of divorce or maybe family loss.

The second bias is bias by denial. Denial one is, “There is no problem”, as some of the people have testified before this committee and on the CBC. “There is no access problem. Maintain the status quo.” Well, the maintenance of the status quo is harming our children irrevocably.

There's no deterrent for false accusations. Senator Anne Cools's proposal—I think it's Bill S-12 now—has to be brought into place. A false accusation leads a man down a path of financial and emotional bankruptcy, even if he's innocent. We have fathers in our group who are thinking of saying they're guilty just to get it over with because they know that at the end of three to five years they are going to be financially broke. The pattern is already set with their children living with their friends, etc. They can't win. The serious thing is when people have passed polygraph tests on accusations of child abuse with some of the top CSIS polygraph people, yet they're thinking of saying they're guilty while knowing that in fact they aren't.

• 1230

The third denial is the police policy of linking stopping violence against women to children. In my submission, I give many examples. I have hundreds of cases. One case study had an aggregate sample of up to 58,000. We know that women are sometimes violent. We know that women are sometimes violent toward their own children. Yet there's this constant linkage in the media between women and children as if the same issue is subverting our country.

The Joint Chair (Mr. Roger Gallaway): Your time has passed. We do have your presentation.

Mr. David Campbell: Have I got one minute to read out the names of the—

Senator Anne Cools: I would be happy to surrender some of my time.

Mr. David Campbell: Would that be later?

The Joint Chair (Mr. Roger Gallaway): We could do that later.

From Parents of Broken Families, will you both be speaking?

Mr. Dave Hodgson (President, Parents of Broken Families): Yes. Can you tell us when two and a half minutes are up?

The Joint Chair (Mr. Roger Gallaway): I sure can.

Mr. Dave Hodgson: I'm Dave, by the way.

A lot of these guys have already stolen my material.

We come from Kamloops, which is in the interior of B.C. Last summer, I got served for more child maintenance. I have been denied access. My ex-wife lives in Edmonton and I have to travel there to pick up my children.

I finally had enough. I put a thing in the paper, and out of this, we formed a group and started a petition in Kamloops. We submitted it. There are over 800 names on there.

We found that the system seems to have failed us. We have a welder and a millwright who have formed a group in Kamloops. We have people coming to us from all walks of life—there are doctors, lawyers, etc.—because there is no help out there for us.

We need to make people accountable for the lack of access. It's a very important issue. It not only affects the non-custodial parent, it also affects our children. Each case needs to be looked at separately. Judges need to judge. I do not want to be painted with the same brush as the one that deadbeat dads are painted with. We live in an era of equal rights, freedom of speech, and freedom of expression, but sole custody doesn't give us that. It's a fight. Our children are the ones who suffer.

These guys really stole all my material. I'll give the microphone to Brian.

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

Mr. Brian Grieg (Vice-President, Parents of Broken Families): I guess I'm one of the lucky fathers in that I did win my children in court. Actually, that was before we even got there.

In my case, I don't want child support. I can raise my children. I want my ex-wife to be a good mom. Money doesn't buy my children's love; time spent with them does. All I ask of her is to take the children out when she has extra money to buy them clothes, take them to the circus, McDonald's, or whatever. She should spend quality time with her children. I wish that those in a lot of other places in this country could act like that. Then we probably wouldn't be in the same boat we're in today, which is why everybody is here.

What brought me to this cause is knowing and seeing what all my friends are going through. It's not just the issue of custody and access, although it's one of the big ones. It's also the whole system and the guidelines that go along with it.

I'm watching new families trying to start out. The custodial parents take them back to court to meet the guidelines. I watch them having to meet that because the judge slams his gavel down and says they have to pay these amounts. These people have to sell their houses with the new families and go into poverty.

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The issue of poverty with children is a big one with me. They're saying they're taking care of child poverty. Well, that's not happening.

When you use the amount that the non-custodial parent pays, it's deducted off their welfare, and they only get to keep $100. We're starting to find now that the non-custodial parent has to pay so much that they are also left in poverty or fairly close to it. In any case, you don't have one staying in poverty; now you have two. Generally, the non-custodial parent cannot start again because they just can't make it financially.

The court system and the “undue hardship” clause in the Divorce Act is a joke. Anybody who decides to try to plead undue hardship has to wait about eight months. By that time, if they're unemployed or have been laid off because of the work situation in this country, the arrears build up so badly that they can't even afford a lawyer. They go to face a judge. The Family Maintenance Enforcement Act sends a lawyer, who throws some paper in front of the judge. Generally, most times, the person is not even heard. They just say “That's too bad. That's the order. Get out and pay your dues.”

The system is not just about child custody and access, which is a very big issue; the whole system is tearing this country apart. I believe we are only starting to see the tip of the iceberg here because of the new laws that have been enacted on the people of this country. We have to sit back seriously and look at them.

What am I going to tell my two young boys? If you get married and it doesn't work, you will likely live in poverty for the rest of your lives because the system is going to rape you. Isn't that something nice to tell my kids?

I see it going on all the time and it's sickening. It really is. It's an epidemic out there.

Thank you very much.

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

We'll move to questions now. Mr. Forseth is available.

Senator Anne Cools: We'll all defer to you, Mr. Forseth, as you are from British Columbia.

Mr. Paul Forseth: Thank you very much for coming today.

I just wondered if I could provide a more broad-based question for you to comment on. Certainly, in the past, as for mothers finding their voice in society and developing all these programs that were mentioned—you might say that mothers were finding their voice—this was not based on a fiction. It arose from deep problems in our community and in family life. But also, fathers are now beginning to come forward to find their voice. What you're saying is also not based on a fiction.

I'm wondering, regardless of that, as you find your voice, what fathers' groups can do, as they begin to emerge, coalesce, and develop, perhaps to provide social comment to create safe places for fathers to find treatment who are abusing and being neglectful and to agitate for funding resources to deal with perpetrators who are causing pain and misery for children.

The comment was made about the contrast between government resources and professional resources for so-called women and mothers and so on, while there is nothing for fathers. I'm wondering if those on the fathers' side are really taking an interest in doing what they can to develop resources for those fathers who are really causing a problem. I wonder whether they're not just becoming focused on say mothers who are causing a problem, because they are there, but are taking responsibility for fathers.

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Mr. David Campbell: Mr. Forseth, when we formed the Victoria Men's Centre we provided counselling and referral services for this exact problem. And of course there are bad fathers who carry out these acts. We don't condone any acts of violence or child abuse. So if there were men's centres that men could feel safe about going to, where they could then be referred to counselling processes, yes, that we agree with. We would love to be able to do that. But they have to feel safe about going there; they have to feel that their side will be listened to.

The problem with many of the divorce centres in my town of Victoria is that when the men go there they feel like they are being screened. That's why in one of my recommendations I call for professional psychologists to act. I am a professional, and if I do not follow the act—which is not policy or guidelines—then I am responsible to my professional group. We would love to see a gender-neutral basis.

Please accept the fact that we are trying to act in the long term. If fathers are treated equally, it is to the benefit of the daughters too, and it is to the benefit of women who are being physically abused. We have often put this forward to women's groups to say that really we are trying to act in their best interests in the long run too, to make a more peaceful and loving society, out of our love for our children. It is not just the future of our sons we are concerned with; we are also concerned with the future of our daughters.

The way it is going now, the one thing I would warn the committee about is that, yes, it's good to be child-centred and, yes, it's good to act in the best interests of the children, but the children can see how the fathers are treated and they will learn from that observation. Children aren't stupid. They're young adults, young people, and if they see the fathers being mistreated and further alienated from society, then they know that is the role of men and fathers in our society; they know it is one of losing self-esteem. People talk about the boys turning to the gangs in L.A. and turning to violent TV, etc. The lack of good leadership and good fathers for men is an underlying cause of this.

Mr. Paul Forseth: Thank you, Mr. Campbell.

Mr. Hodgson or Mr. Grieg, you know what angle I'm trying to get at. Do you have anything to contribute?

Mr. Brian Grieg: I can speak from experience as a man who was physically abused in his marriage. I was slapped around and scratched, blood was drawn, and I was dragged away by the police for no reason. I was the one who was accused of hitting, which I never ever did.

When I was stuck in that situation, all I could think about was where I could go, who I could talk to, and who would listen to me. Nobody out there listens to men. As soon as you are accused or as soon as they look at you, you are the beater and she is the one being beaten. In my case it was never that way. What I found was just a sense of loss, because there was nothing out there so that we could go and talk. Like he says, there should be a centre for men; men should be able to go there and talk about their frustrations.

The worst part of the whole situation for me is that if I leave my kids at home and go away for a few days to get away from the situation, I am deemed to be a father who has abandoned his children. As soon as I go to court I lose my children, even though I am the one who has to leave because it is easier for the guy to get up and leave.

Where do we men go with our children when we have to go to work the next day and we want to take them out of the situation? I had nowhere to go and nobody to talk to, so for 10 years I stood there and took it. I took it until finally I said, “You have to go.” And she finally did.

That is the situation. We don't have anywhere to go. We have no recourse.

The Joint Chair (Mr. Roger Gallaway): Senator Cools, did you want to ask a question?

Senator Anne Cools: Yes, a couple of pointers, since this is a group from the interior, Kamloops— one question. Among the families you work with, have you encountered or do you know of instances of children who have committed suicide under these stresses?

• 1245

I say that, Chairman, because a significant number of children across the country who find themselves in these circumstances are committing suicide, and it is a subject matter that the committee has yet to turn its mind to. I'm just wondering if any of these individuals who are currently at the table have encountered such instances.

Mr. Brian Grieg: Not right now. We're such a new group up there that we're just getting started. We're getting kind of flooded with everything about this, but we have not reached that part yet.

Mr. David Campbell: I know of one case up in the Fraser Valley.

Senator Anne Cools: Do you know how old the child was?

Mr. David Campbell: Gee, it's hard to remember—around eight to ten, somewhere in there.

Senator Anne Cools: Eight to twelve seems to be the average age.

Mr. David Campbell: Of course, I've known many men who have committed suicide after facing the reality he's talking about. The next meeting we phone them to come— With all his furniture and everything gone out of his house, he put a rope around his neck and hung himself. The adult children tend to do that, but I know the suicide rate between the genders starts to separate at a very young age. That's one of the problems that many men and boys face. Part of it must come from this ripping apart of the society and this lowering of self-esteem that they see.

Senator Anne Cools: I know a fair amount about the suicides of men in these circumstances, but what I was trying to bring forward is these suicides of children, in other words, children aged 18 and under, especially boy children.

The second point I would like to make is that there's a lot of talk here, repeatedly, about the issue of assistance and counselling for men.

And just in the defence of many women's shelters—I was in the women's shelter business for many years—I think the committee should know that many individuals in those shelters assisted and counselled men. This hatred phenomenon came later, where no man, not even a policeman, could set foot in some of those institutions. But up to a certain point in time, many of these agencies had policies such that when people called for help, the agencies responded, to help human beings.

Because we're living in an era of such constant revision of history, those of us who have lived it feel a need at some time just to basically articulate the history as it really happened. In many ways, some of the issues that you raise are so deep and so profound, but I just say that to set your mind at rest. I counselled many.

Mr. Brian Grieg: It would have been nice if I had known that, though.

Senator Anne Cools: It doesn't happen in today's community.

Mr. David Campbell: There is always this saying, this kind of “us versus them” philosophy. We can understand the women's movement, which wanted to deal with their issues, and we can understand equality. We don't deny that. I helped women's issues when I was in university. As a student, I used to go to their meetings. I do it as a shop steward on my job. I'm sensitive to those feelings and I support that, but to say that only women have issues and that men deserve no resources to deal with their issues, that's a crime against humanity in this country.

Senator Anne Cools: Mr. Chairman, if I can make an additional point, because we've had enormous difficulty at this committee in getting just basic facts about certain service communities, again, in the shelter business, I used to find that most of the women who came really wanted support and assistance for those relationships. Believe it or not, they wanted those relationships to work and were appreciative of and would request any help for counselling. This new thrust forward, where there is to be no mediation or counselling when there is violence, is a very novel phenomenon. I have sat between many men and women and counselled, and I can tell you that, and it's well documented. I just put that out to you so that you can also maintain a balance of perspective, because the issue really is one of balance and humanity.

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

Senator Thelma Chalifoux: Seeing as how Senator Cools used up her time, I would like to ask this gentleman here to put on the record whatever he was going to put on the record.

The Joint Chair (Mr. Roger Gallaway): I was going to do that later.

Senator Thelma Chalifoux: Okay.

Mr. David Campbell: Can I put the name of the young boy who committed suicide on the record?

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

Mr. David Campbell: His name was Sean Pelletier. His age was nine. One year ago in Abbotsford he took his life.

Senator Anne Cools: I thought it was Abbotsford.

The Joint Chair (Mr. Roger Gallaway): For members of the committee, some of you may be aware that yesterday Senator Cools and I—because we did not have a quorum—attended what I refer to as a round table meeting in Victoria at the James Bay Community Project hall at which we had approximately 70 people in attendance. Twenty-one individuals and groups made presentations.

With the committee's agreement, I would like to—and I think we should avoid reading the list of names into the record—ask that the briefs as presented yesterday be deemed to have been read into the transcript record today and that the list of those in attendance, which we have here as part of that package, also be deemed to have been read into the record.

Do I have your consent to do that?

Senator Anne Cools: You have agreement.

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

We've solved that problem, Mr. Campbell.

Senator Anne Cools: On a point of order, I would ask you, Mr. Chairman, to ask the researchers to sift through and to read very carefully all those presentations and to prepare a very brief summary for other members of the committee.

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

Senator Thelma Chalifoux: Before we all agree to this, could we get access to some of these presentations?

Senator Anne Cools: Yes. Once they start moving into the system, they'll be in your hands.

The Joint Chair (Mr. Roger Gallaway): Do I have agreement?

Some hon. members: Agreed.

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

Mr. David Campbell: Mr. Chairman, I would also like to say that the organization was mainly done by Fathers for Equality, our group, but that we will also supply, as part of my submission, an unedited VHS tape of those men, women, and grandparents who came forward for the committee to review. There are often second wives and some of them were in the audience. You can review that at your leisure.

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

I want to thank you for coming, Mr. Campbell, from Victoria and from Kamloops. We're glad you made the trip and that you were able to participate in this, our work. Thank you very much for coming.

We will now ask the next witness to come forward. She is Ms. Browning, who is the executive director of the Aboriginal Head Start program.

Ms. Murline Browning (Executive Director, Aboriginal Head Start (Pre-School)): My apologies, to begin with. I have not prepared a written brief. I did hear about the panel a few days before the long weekend when I was extremely busy and I do want to say that I will be going back to Prince George, where I come from, and will prepare a written submission and send it to the committee.

This was very quick for me, but I suppose I'm here based on the fact that I've worked for many years for my people, one of the aboriginal peoples of Canada. I am Métis.

I wanted to present to you the issues that we see regarding custody and access in the many different organizations and with respect to the many different people I've dealt with, probably from the Alberta area of Edmonton, where I was born and raised, and into the area of Prince George, B.C., where I have resided for the past 25 years.

I am the president of a women's organization, the Central Métis Women's Organization. I am the executive director of Aboriginal Head Start in Prince George. We have 40 children a day whom we are hopefully giving a head start to. It's a beautiful, wonderful program, funded by Health Canada.

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I was sitting here listening to the other witnesses and could feel they were talking from their hearts, with a grain of truth. I realized the problems of the Métis people are four times more terrible.

I quite often speak on the fact that we are aboriginal people. I have really no animosity against my non-native sisters and brothers and my first nations sisters and brothers, because we come from both worlds. I want to state that the Métis people are about the lowest line of aboriginal people on the totem pole.

I have heard the men speak about having no resources. I think there are no resources for the Métis in this situation either. It's compounded by the fact that when we have a separation or divorce and a custody and access order is negotiated on the part of one of the family, it seems to me—and I think I will dig up the evidence and present it later—the Métis get the short end of the stick.

I have witnessed a number of women in Prince George who are not aware they had to apply for guardianship. They were not aware their extended family could apply for this. I also know of men who were not aware they had to do this and lost the rights to their children. Their children were carried out into the community. They were not told they were Métis. The parent did not want the aboriginal context of the child. That is one of the issues I am very concerned about.

It comes right down to the basic fact of the self-esteem of these children, and the only way you can have self-esteem is to know your roots. It's very easy for most of the people in this room—and maybe Senator Chalifoux and I can experience this—to walk down the street and, when someone asks you who you are and what your nationality is, say you're German, English, or whatever you might want to say. If I say Métis, the majority of people will ask what that is and where I come from or to what band I belong. Those are the types of things we are working on in our community, to build up the self-esteem of our people so they can be proud of who they are and their contribution to Canada.

When it comes to divorce or separation, I see the lack of that culture being recognized for those children. I am always concerned. I know a woman who went to court and the decision was up to the one person sitting at the high desk in the courtroom, the judge. He was a very learned person, highly respected, and respected by myself as well, but just one person made a decision about these little children. There were instances in that case of criminal offence by the father in the early years. All of those things were probably taken into consideration. I say “probably” because I do not want to accuse, but I saw that from my point of view.

The father had no access and the family had no access. I knew the grandparents and they cried daily over the loss of their grandchild. It was very heartbreaking. The child was taken away to Ontario, never to know its Métis roots and never to be aware of anything.

Those are the sad things I've witnessed. I thought over the weekend, as I was walking around deciding what I would present here, that I would really like to see a restructuring of how these custody and access cases are done, especially in aboriginal circles. I always say you can't understand until you walk a mile in someone's shoes, and that is the truth. I realize that, and I know that from losing a child and having people come up to me and say “I know how you feel. I just lost my dad.” They don't know how I feel. They won't know how I feel until they've lost a child.

Most people would not know how a Métis person or an aboriginal would feel in a case like this, with the overpowering authority they're facing and the fact that they've had no real legal representation, no access to a lawyer who would work for them. I'm talking about men as well.

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I really would like to begin the process. I would like to see a panel made up of aboriginal people to speak on behalf of these children, to speak on behalf of aunts and uncles, brothers and sisters, cousins, grandmothers and grandfathers, regardless of the situation of the divorce.

I'm sure my five minutes are up. I could go on for an hour, but I'll take some questions.

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

We'll start with questions. Senator Chalifoux.

Senator Thelma Chalifoux: Thank you, Murline. It's a very well-thought-out presentation and I really appreciate it.

How important do you feel is the extended family within these custody disputes?

Ms. Murline Browning: To me the extended family is the most important issue. The mother and father are so caught up in their agony and their grief and their anger that they cannot relate to the children in the normal facets of life. You get that kind of thing with a grandparent or with an aunt and an uncle. All of the animosity and everything surrounding it is gone. They're into the same sort of scenario they were accustomed to growing up with, visiting with their aunts and uncles or the grandparents. I think that's a real solid base for children.

Senator Thelma Chalifoux: You have a lot of experience with Aboriginal Head Start and the children who attend there. How do you find the children? I'm sure you have a lot of single-parent families that are accessing that program. How do the children react? What's your finding on that when there's this type of situation at home?

Ms. Murline Browning: We have children in our program from zero to six, but we have preschool children aged three to five years old. We have one child who is in care, and the mother has access to the child periodically. The child is in a day care. We pick that child up from the day care—it's a free service—and bring him to preschool. His worker in supported care, who was giving him extra care because he was having a hard time getting into social activities or whatever in the day care, noted that Anthony was very agitated in the day care. He did not get along very well. But I have observed him in Aboriginal Head Start. He is a totally different young man—totally different.

I was so pleased, because it was for me a base that we can do something with our children. I was just absolutely amazed and flabbergasted. The very next week his worker was taken away because he was doing so well in preschool. But he was still not doing very well in day care, and he was still in care. I thought, what is wrong with our system? I could not believe that. But I have seen that in their own setting, with aboriginal people, and with their little peers, they are very happy.

Senator Thelma Chalifoux: Do you have any children who are living with grandparents or aunts and uncles? How are they reacting to mom and dad?

Ms. Murline Browning: We have one child I can tell you about who is living with a grandmother. She is flourishing tremendously. She's four years old—actually, she's five now. She will be graduating in June from our program. We are hoping that when she goes into kindergarten we will access her two afternoons a week so she can continue.

The mother and the father are experiencing very traumatic situations. They don't have access to the child, but between our program and the grandmother, everything seems to be fine for the child.

I'm not totally familiar with that case, but I do know of other situations where if it doesn't go to court, if the families just separate and leave.... That is an aboriginal thrust; you would take your grandchildren if your children were having trouble. You would do everything in your power to get hold of those grandchildren and raise them, and not let them be affected by a divorce or a separation. We do have situations of three or four who are living with their grandparents, and they bring them to Aboriginal Head Start.

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

Senator Perrault.

Senator Raymond J. Perrault (North Shore—Burnaby Lib.): Madam Chair, it's very eloquent testimony that we've heard today from Ms. Browning.

Regarding your assertion that of all the minority groups out there, the Métis have the worst lot of all in relation to custody and other disputes, something should be done about it. What action is necessary to provide fair play for both sides in disputes, both mothers and fathers? What would you like to see put in place?

It's a tough one, but we're touched by the facts you have brought to the committee, so even if you have to send a letter later on to tell us the specifics of actions you think are necessary....

If your assertion is correct, that's clearly an intolerable situation. The Métis have had a difficult enough time surviving in this country down the years, and they don't need additional burdens.

Ms. Murline Browning: Well, truthfully, what I'd like to see, and I know it's not possible at this time, would be the end of discrimination against aboriginal people.

Senator Raymond Perrault: You're suggesting there's second class justice out there.

Ms. Murline Browning: Right.

Second, I'd like to state that Métis people can be blond and blue-eyed or very dark and brown-haired—

Senator Raymond Perrault: That's right.

Ms. Murline Browning: —so you're categorized as either white or Indian.

I think the ministry should be aware of those issues. We're working very hard in our area at this time. We are trying to access funding right now from the Ministry for Children and Families to represent our children in the new aboriginal strategic plans that the ministry is working with at this time.

I guess what I would really like to see is more advertising, more knowledge out in the community, aimed at women and at men.

Senator Raymond Perrault: Are you suggesting there's a lack of information with respect to how these programs can be accessed?

Ms. Murline Browning: That's right. There's a lack out there of the rights of the people, especially aboriginal people.

There's a real mentality that you're not going to win anyway because you're aboriginal, and because they've witnessed other cases. They will not stand up and fight.

I have heard people who have gone to legal aid in these cases and been advised by their counsel, “Oh, well, you just do this, and that's what will happen”. Then they go into court and that's what they do. I would like to find a way of having a council of people who would support all of these Métis who go into court.

I have to say that first nations have a lot of funding. They are taken care of by the federal government in many ways. The Métis are not.

Senator Raymond Perrault: That's correct.

Ms. Murline Browning: They are not recognized in any way, except as aboriginal people.

In order to get any kind of funding, we really have to work as hard as we can. It usually comes from volunteer people, doing what I have done for many, many years—trying to access and help people.

We advocate for women, but we find when we get past one bureaucratic door that there's another one there that is looking.... I have to say, and I'm sorry to say, that the attitude that it's just another aboriginal person is there. Discrimination is still very rampant out there.

Senator Raymond Perrault: You'd like to see this panel established, in a sense to promote an awareness of the programs that are accessible and to make recommendations, then?

Ms. Murline Browning: I certainly would, and I would also like to go even one step further. I do not like the idea that there's one person who has absolute control and authority over a child's life or over a man and woman's life, or a grandparent's life. I would like to see that there is a circle of people who would be involved in discussing the child's future. That would be my main thrust—that panel would be made up of predominantly aboriginal people when you're talking about an aboriginal child.

Senator Raymond Perrault: Those are useful ideas, Chair. Thank you very much.

• 1310

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

Dr. Bennett.

Ms. Carolyn Bennett: Thank you very much.

My question was about the circle. We've heard testimony before that there should be a broader canvass of opinions when we're sorting out the best interests of the child. The teachers, Sunday school teachers—the people who who observe this child on a daily basis should be included in deciding what really fits best for the child.

If you were to design your circle, would that include those people, or is it more the elders in the community? Who would you include in that circle?

Ms. Murline Browning: I would include the extended family and, as you have spoken about, the teachers, the priests, whoever would have had visual contact or talked with the child. The people from the community who have witnessed the upbringing of the child—that's who I would like to have there.

If I was involved, I would like to be able to present to the panel or to the judge exactly what I had viewed of this child, because it's so very hard to be judged with society's ideas of what's best for the child. It is so painful to sit there and listen to someone say that they have to have this perfect little bedroom, they have to have this, they have to have that. So many times I've gone to forums or conferences and I've heard people ask, “What do you categorize as poor? We're working to help our people; what do you categorize as poor?” It was really interesting, because a lady sitting beside me said, “Not what you do.”

I was raised in Saskatchewan in a little community. I had one dress and one pair of shoes for school only. We picked berries and we ate moose and we told stories. We lived in a little log cabin and I slept in a bedroom with two other brothers and sisters. But I was happy. I had lots to eat, and I thought I was fine, until the white man came and moved next door and pointed at me and said, “You're poor. You are in poverty.” She did not believe she was.

That's the thrust I would like to get across to someone. If the grandparents or the children are living in a little two-bedroom house but there is so much love there, who needs the material things?

I heard these men speak, and they're in poverty too. My heart goes out to them, because why does a child need a beautiful house? They're having a hard time starting another family. Why does it always have to be what society thinks is great for children? I don't believe that. I think we're getting away from the very fact that we're talking about the self-esteem and the love of a child, because love is...

[Editor's Note: Technical difficulty]...the game.

Ms. Carolyn Bennett: I have just one more question.

As we look at teen pregnancy and all kinds of things, do you think there's a sort of western bias that infiltrates the judicial system, where it may be very normal in certain cultures, particularly aboriginal cultures, for the grandparent or the grandmother to look after the child, and that we don't take that into consideration in determining what is the best interest of the child? We have a very, as you say, “little bedroom, white picket fence” view of what's best for the child.

Ms. Murline Browning: That really isn't taken into consideration. I also know of a situation where the grandparents did look after the child for three years and then the father came with his high-powered lawyers and everything else, got custody of the child, and away he was whisked. It's totally unfair.

Ms. Carolyn Bennett: Thank you.

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

Senator Anne Cools: Thank you very much, Chairman.

I'd like to thank the witness for what I thought was a very sensitive testimony. I would also like to thank the witness for bringing forward to us her particular set of moral and philosophical concerns and also the plight of Métis people.

• 1315

Mr. Chairman, if I may, I'd like to suggest perhaps our researcher could bring forward a brief paper for us, especially those of us who are relatively new to Métis issues, on the state of Métis people vis-à-vis the issues we're currently studying, so we may glean a little as to how to proceed a bit further.

I belong to the vast majority of people who know very little about the Métis people. You are right that some of the other first nations have very powerful lobbies in today's community with a lot of economic muscle, but it's the Métis who seem to be lagging. If the committee could especially look at this set of issues, I think it would be very helpful for all of us.

The Joint Chair (Senator Landon Pearson): Thank you very much, and I think Senator Chalifoux will be delighted to help direct this.

Thank you very much, indeed, Ms. Browning. It's been enriching for us to hear from you. Thank you.

The next set of witnesses is Mr. Donald Moir and Katherine McNeil, please.

Mr. Moir, would you like to begin? As you know, we're hoping to have you speak for just five minutes so there's an opportunity for questions.

Mr. Donald Moir (Barrister, Family Law, Moir Associates): Yes, thank you, Madam Chairman. It is good of you to have me.

The Senate and the House of Commons are to be commended for having struck this committee. I venture to suggest its work is more important to the well-being of the nation and the economy than any other committee of Parliament at the present time. I refer in contrast to the banking committee, which seems to be well reported and well funded. I understand Senator Cools especially is to be commended for having encouraged the striking of this committee.

In my five minutes of glory before the committee I can only raise, without explanation, three themes. My first theme is kids are what it's all about. Another way of saying the same thing is that any society hoping for a future has to raise its children as well as it can. These are truisms and I'm sure everyone here agrees, but we in Canada don't act on them. Children are pretty low on the political agenda. We are not raising our children as well as we can. Our principal failure is the high incidence of divorce, facilitated by present law.

My second theme can be introduced in this way. In the face of a high incidence of divorce, there has been a series of fads in the determination of custody and access, each with enthusiasts. I caution you against the fads in the field. The problem is, and the data make it clear, that whatever the law of custody and access is, in the majority of circumstances divorce sentences a child to the loss of one parent or the other, if not in the short run, then in the medium or long run. The consequences for children and society, as the data tell us, are alarming. So long as the law makes divorce easy, I don't know what the law of custody and access can do about it beyond the superficial.

• 1320

I am not happy to come before the committee that is trying, with very hard work, to find a solution, but I would be less than honest with you, in relation to the data, if I did not tell you there is no solution within the context of present law; there is no magic wand that can be raised.

I suggest there are some things you can do, remembering the law is the province of the federal government. There is proper concern about the process, which has given rise to this eloquent and touching testimony this morning, but it is essentially a provincial matter.

There are some things you can do. First of all, from my perspective you might take a look at the hogwash of the best interests of the child doctrine. It is hogwash. There isn't time to go into specifics here, but it is the case that a combination of easy divorce and the best interest doctrine gives the result that one parent may deprive a child of the other parent, essentially without cause and to all intents and purposes. I find that concept appalling.

The hypocrisy of the doctrine is shown in our case law. Senator Cools was good enough to draw to my attention—I hadn't read it before—a trial judgment in Ontario called Oldfield, which exposes the hypocrisy. The Supreme Court of Canada decision in Goertz v. Gordon exposes the hypocrisy of the doctrine. There are other cases in other jurisdictions to the same effect.

I don't have any view to present to you here to consider a preference for joint custody, but it might do some good. It has its disabilities but it might do some good.

You might take a look at the language we use. After all, custody and access is win-lose language. It may be that parenting plans are a better approach. But please remember—and I think you've heard from witnesses from Washington—parenting plans do not touch upon the problems we have in custody and access. They may be short-term solutions that are satisfying to judges and lawyers, but nobody asked the kid.

• 1325

My third—

The Joint Chair (Senator Landon Pearson): I hesitate to raise this, but you've been five minutes. Please continue quickly so that we'll have time for questions.

Mr. Donald Moir: I will.

Senator Anne Cools: Madam Chairman, I am prepared to surrender some of my questioning time to Mr. Moir.

Mr. Donald Moir: I'm sorry; I didn't watch the time. I don't want to go over.

I'll state my third theme very briefly. It's essentially in the nature of a plea, a plea I know you don't know. My plea is that the recommendations of this committee not be sugar-coated. There are many sugar-coated options being suggested, I understand.

My second plea is that the recommendations of the committee not add to the already large divorce industry. Don't give us more work to do—for which we get paid, sometimes.

My last plea is this. Please do not add, in your recommendations, to the degree of state intrusion into the rearing of children and family matters greater than we now have. This is a matter of concern.

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

Ms. McNeil.

Ms. Katherine McNeil (Child Custody Consultant, Mom's House-Dad's House): Good morning, and thank you for inviting me to appear as a witness at this committee.

I'm a child custody consultant, and as far as anybody knows, perhaps the only one in Canada. I'm a private individual, and I am one of the people who sees the children of divorce. I do custody assessments that are child-centred, and sometimes I see just the children alone, without seeing the parents.

I'd like to tell you first of all about two little boys who were out walking, and talking about their families. The first lad told the other about his parents' divorce. The second replied that his parents were still married. “How come?” said the first little boy. The second boy said, “They told me they hated the lawyers more than they hated each other.”

Voices: Oh, oh!

Ms. Katherine McNeil: Lawyer jokes and divorce jokes abound, but for the children of divorce, it is no laughing matter. This committee has heard from mothers, fathers, custodial and non-custodial parents, lawyers, judges, psychologists, and a host of others, but I have no sense that this committee has heard from the very people this is all about, the children. I see that as a significant example of what is wrong with the system as it is now. When one takes the time to listen to the children and truly place their interests first, a greatly different picture can emerge as to what ought to be done in each individual family.

Some children will say they wish to live with one parent because he or she has more money, doesn't discipline, or because the child thinks it's their job to make mommy or daddy happy. Most children, however, know how they feel, and what they want and need from their parents. All children need their parents to quit fighting. The legal system as it is now often instigates and fuels the flames of acrimony.

Most children want and need the active involvement in their lives of both their mothers and their fathers to the maximum level possible. Children find it incomprehensible that some unseen person called a judge has said that from now on, one parent, usually daddy, is someone you now have visits with, and not very often. You aren't going to see your parent every day, the way you did before.

Is there something bad you did to cause this? Is the parent bad? Children tend to blame themselves, and many set about trying to fix it. Frustration, anger, and loss of self-esteem take place when the child is inevitably unsuccessful. Again and again, children tell me that nobody ever asked them what they wanted, and children indignantly demand that the judge listen to them. Some of their pleas to be heard have been desperate as they are caught and held by court orders that bind them in the home of an abusive parent.

I recall hearing snickering in the past as fathers came into court saying, “She's turning the kids against me.” There was a sense of disbelief that anyone would or could do this. If the kids turned, then it must be the fault of the father himself. He must beat them or be a drunk.

The harsh reality is that parental alienation does exist, and the damage it does to children is extraordinary. There are those who argue that there is no such syndrome. I tell you, it matters not what the label is; it matters what the behaviours of the alienating parent are and whether or not it is correctable.

In my opinion, it is more widespread than is commonly believed, and the legal system does not protect children from it in the majority of cases. Alienation behaviours run the gamut from putting the kids out on the doorstep to be picked up rather than coming to the door with them, where the message to the children is, “This person is not good enough to darken my door”, to outright repetitive contempt of access orders.

• 1330

Where there is denial of access, in each and every case that I have been involved with, where the judge has threatened loss of custody to the offending parent—and believe me, that has been rare—the denial has ceased instantly. This needs to be the norm and it needs to happen right at the outset, not after the aggrieved parent and the children have sustained a permanent rupture to their relationship.

The aggrieved parent should not have to come to court, sometimes for years, seeking relief. Children usually know that a court order is not being obeyed, yet the offending parent is not punished. Not knowing the difference between civil and criminal orders, the kids grow up thinking that orders don't have to be obeyed. Add that to their frustrations and disempowerment over the divorce and society will keep on helping to create more juvenile delinquents. There is a very direct link.

Generally, it has been my observation that the courts reward intransigent maternal behaviours, at the same time finding every reason to fault fathers. When the legal system is confronted with accusations of gender bias in family matters, the denials are strong and swift. That is grossly unrealistic.

My understanding is that the mandate of this committee is to make the Divorce Act more child-centred. Then do that. Go to the schools and speak to the children before you wind up. Invite children from various organizations to come and speak to you. Do not take all of your perspectives on divorce from adults. Their agendas are often different and in competition with those of the children. In listening to the children, and in listening well, you will know more clearly what it is you need to do.

As you sit down to draft your recommendations, I would like you to take this thought with you: no court in this country will allow parents, lawyers or the court itself to bargain away a child's right to financial support, no matter how meagre. Why then does anyone think it's perfectly okay to barter away a parent from a child's life? Even the parent who is no more than adequate still has a contribution to make to the child.

Thank you.

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

Mr. Forseth.

Mr. Paul Forseth: Thank you. Thank you for coming, both of you.

Mr. Moir, your experience and your reputation precede you. I'm very pleased to see that you're here today. Your stature and reputation is certainly well known to me, and I say that we must listen to you in your years of experience.

In your letter to the committee, I wanted to cite a particular paragraph that I thought was something I should pay attention to. You say:

In my years of practice, a number of fads, each with their enthusiasts, have come and gone—mother preference, primary care givers, joint custody, co-parenting (though separated) and on and on.

I will caution against all of them as “solutions” and against the submissions of their enthusiasts. What sounds fine in theory, collapses when faced with the actuality of separation. A current concept with its enthusiasts is the “parenting plan”. I am not aware of any evidence in an American state which has adopted the concept that validly finds that it offers a middle or long range solution to the plight of children of adequate parents who divorce. A problem is that in the case of adequate parents, no one, not even the “experts”, can predict what would be the best post-divorce arrangements for children.

The bottom line is that the evidence is that children have the best chance of doing well if their adequate parents stay together.

That, I suppose, goes to the deeper issue that separation and family dissolution might be seen as the short-term remedy for deeper family pathology. Then the law tries to come along and sort that out.

One of the recommendations this committee might explore is providing services to families, and one of the options is not necessarily the separation and divorce industry, which you also caution us about; that we not provide a retirement plan for lawyers by throwing more legal things on the table to fight about.

The underlying family pathology in our Canadian society is the tendency to separate and divorce perhaps too easily. You talked about the easy divorce in your submission. You said that somehow we have to provide something to change the concept of the value of the family, not necessarily family values but the value of family itself in Canadian society, whether it's our tax structure or providing counselling or helping resources or whatever; whether it's the work climate, changing labour codes or union agreements or whatever to allow parents to more easily fulfil their family obligations.

• 1535

You have zeroed in on the more underlying issues, which maybe we can forget when we're looking at technical questions of perhaps how we can adjust the Divorce Act to make the industry carry on a little bit easier, but we must also look at the deeper issues. You've raised that so eloquently in your submission.

I don't know if you had any further comment on that. I have a limited time, and I wanted to say something to our lady presenter, Katherine McNeil.

Ms. McNeil, you most eloquently said we should listen to children. I just give you a moment to say if we do that, what are we likely to hear from children?

Ms. Katherine McNeil: What you're going to hear is most likely what I hear when I see children. The number one comment I get is “I want my mom and dad to stop fighting.” Obviously, you can't legislate that.

The second thing you're going to hear is “I want more time with or I want to go live with my dad.” Children complain that they are not listened to; they are not heard. In my view, that is a valid complaint.

To outline and illustrate what that means, two days before this committee last sat in Vancouver—I have permission from the now custodial parent to tell you this—I interviewed a 10-year-old girl on the Saturday morning. At the end of my time with her I found she was being emotionally, physically, and sexually abused by her mother. This child had gone for two years doing what we tell children to do, which is tell and keep on telling until you find somebody who listens and helps you. The buck stopped at my door. Nine days later, on a report that I prepared for the Supreme Court here in Vancouver, the judge changed her custody to her father, and that is where she is now living.

They had hoped to be here this morning but could not. This is not the first time I have dealt with a situation like this. It's heartbreaking. It tears the guts out of me when I see these kids. But the presumption is that mothers can't do this kind of thing. If you listen to the kids and you don't intimidate them from telling you what is going on, they will tell you.

Mr. Paul Forseth: So what you are suggesting is that if we are able to provide a system that more carefully tunes into children themselves, then perhaps the adult political biases and all the other societal agendas might be undercut and we would really get at children's needs.

Ms. Katherine McNeil: Children must be listened to. The interests of parents often compete with those of the children. Very often when I speak to a child and, more than that, listen to the child, I get a completely different perspective on what this child needs to take place in his or her life than if I had simply listened to either the mother or the father or both of the parents.

Mr. Paul Forseth: I see Mr. Moir wanting to jump in.

Mr. Donald Moir: I have a very short comment. I am grateful to Ms. McNeil and have had the benefit of reading her brief.

What the children most want is that their parents stay together. There is ample data that their greatest wish is to have two adequate parents.

Mr. Paul Forseth: Adequate.

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

Senator Raymond Perrault: Thank you, Chair.

It is good to see you, Mr. Moir, testifying before our committee today. He is certainly one of our community's outstanding legal counsels and is highly respected and noted for his forthright attitudes regarding many matters.

I jotted down one phrase he used. He said “the best interests of the child; hogwash”. I wish he would amplify on that.

Mr. Donald Moir: Senator Perrault, if I may, it's good to see you again. We go back a little way.

In any event, the doctrine is that the decision as to custody will be made under what is called the best interests of the child. The problem with the doctrine is that nobody knows. Not even the most expert knows in the case where there are two adequate parents.

• 1340

The second reason for concern about the doctrine is, of course, that it is not gender neutral in our society. We still carry the theme—and it has merit—that it's a woman's job to look after children.

I could go on. There is now a growing literature on the subject to the effect that the doctrine itself is futile and gets in the way of proper determination of custody where the parents separate.

Do you wish me to go further?

Senator Raymond Perrault: No, that's excellent. That amplification was very helpful.

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

Senator Anne Cools: Thank you, Madam Chair.

I have a brief, very technical point. Perhaps Ms. McNeil can put that reference, the name of the case, on the record for us.

Ms. Katherine McNeil: Yes, I can. It's Latta v. Latta. I do not know immediately the file number—I'm not carrying that with me—but I would be quite happy to provide that to you.

We don't yet have a written order or the reasons for judgment on that file, but we anticipate receiving those some time in the near future.

Mr. Paul Forseth: Which court?

Ms. Katherine McNeil: B.C. Supreme Court, Vancouver.

Senator Anne Cools: Thank you.

My next question is to our eminent mind, Mr. Moir. You made a statement to do with certain case law. You mentioned Oldfield v. Oldfield and Goertz v. Gordon. You talked about exposing...I think your exact words were “exposing the hypocrisy”. I wonder if you could expand on your statement for us, please.

Mr. Donald Moir: Certainly, Senator.

These two cases are called going away cases. A non-custodial father or indeed a joint custodial father has plenty to do with his absent children. Mum decides she wants to go away. In the case of Goertz and Gordon, her move was to Australia. Even though the father had been very active in the child's life and contributed significantly to it, the court decided that Mum's need to go to Australia to take a particular course was greater than the child's need to see their father. It was said that he could visit them. He was a man of means. It was said that he could talk on the telephone.

The Oldfield case is perhaps more striking. It was a trial judgment from Ontario. In the Oldfield case, the father, having been very active in the child's life after separation.... The custodial mother wanted to go to Paris to marry her boyfriend. The court decided that even though the children in that case would be deprived of a relationship of any effect with their father, it was more important that Mum have the satisfaction of marrying her boyfriend.

Senator Cools tells me that since the case, the boyfriend in Paris decided he didn't want to marry the mother.

Senator Anne Cools: After they had moved.

Mr. Donald Moir: After they had moved.

• 1345

You see, the doctrine of best interest of the child, which is normally to maintain the most intensive possible relationship with the non-custodial parent, and the mother's quite understandable wish not to be tied down to a location where the father is are in direct conflict in these cases.

Similar superior courts—meaning the highest appellate state courts—in New York and California at the same time, for entirely different reasons, held exactly the same thing, that the custodial mother was permitted to move away, even though this utterly deprived the children of their father.

The Joint Chair (Senator Landon Pearson): Thank you very much. I have a question.

Dr. Bennett first.

Ms. Carolyn Bennett: I just wanted to thank Ms. McNeil for her excellent presentation, which I just scanned and will look forward to reading properly. I feel you have made it the voice of children here for the committee. Thank you.

Ms. Katherine McNeil: Thank you.

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

Mr. Paul Forseth: As for the philosophical underpinnings of child development science rather than politics, we have various names that I recall, such as Mussen, Conger, Kagan and Piaget, whatever, looking at the child development research as to what's really good for kids and what particularly isn't good for kids in the familial parent-child relationship. Perhaps you could direct us to some of that literature from which you take your direction.

Ms. Katherine McNeil: I would find that a very difficult task. I am familiar with some of the names you have mentioned and not some others. Quite honestly, I take most of my direction from the kids themselves, and I have always done that.

I recognized many years ago, when I started doing this work, that a gap appeared to exist in how matters of family breakdown were dealt with on behalf of children, and I came to that realization, as many others do, based on personal experience. I found that the primary focus of even those who seemed to talk to children still seemed to be on one or the other of the parents, usually the mother, and the child's wishes and needs that may have been expressed were put forward in terms of how the mother perceived something. That's still done today.

Children are very highly individual little people. They aren't grown up yet. They develop at their own rate. Some of the kids have learning disabilities; they have emotional problems, the same as adults do. Each child that comes to see me may need a very different program for how he or she is going to continue to be parented.

Mr. Paul Forseth: In your deliberations, do you use any specific psychometric tests or any standardized routines that are verifiable?

Ms. Katherine McNeil: I do not. Because I'm not a psychologist, it would not be proper for me to do testing. If in the course of doing an assessment or speaking to a child I get the sense that there's something going on that is beyond my own capacity to deal with, I'm very quick to refer it out.

The Joint Chair (Senator Landon Pearson): Just to follow up a bit on the same questioning, you did say at the beginning that you thought you were probably the only child custody consultant. So I think it's a rather interesting new possibility for us to explore.

• 1350

I have a couple of technical questions. What kind of qualities or qualifications should a child custody consultant have? Who are your clients—a broad description? Do you advise one parent or offer service to families? And finally, who pays? That's the basic, crude question.

Ms. Katherine McNeil: I will start with the last one first. Sometimes I bloody well don't get paid at all.

My clients, first of all, are the children themselves. I always see the child as the client; other people are peripheral in my own sense of how the world operates.

The Joint Chair (Senator Landon Pearson): But it wouldn't normally be a child that came to you first, would it?

Ms. Katherine McNeil: Kids and their parents come to me through referrals of lawyers, sometimes the courts, various social workers, various self-support organizations, mostly through word of mouth.

I have and do work with whole families. I get pretty tough on the parents, and my basic philosophy is, if somebody is going to mess with a kid, I am going to mess with them. I say things to parents sometimes, because I don't have a governing body telling me what I can and can't do or can and can't say, and I sometimes just sit these parents down and say, “I understand how you feel. You have anger, you have this, you have that; however, you cannot do this to your child.”

With regard to qualifications, I don't really know what to say to that. I couldn't possibly duplicate what happened to me for anybody else, nor would I want to. I have always had one foot in the legal and one foot in the psychological for the child.

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

The Joint Chair (Mr. Roger Gallaway): Our next witnesses are Mr. Laurie Payne, and Mr. John Barson, who is the executive director of a group called Family Forum. You will see that these two were listed separately, but in fact they were to have been together. We will begin with Mr. Payne.

Mr. Laurie Payne (Individual Presentation): Thank you, sir. Good morning, ladies and gentlemen.

I have brought this down to as brief a format as I can. It runs maybe a minute or a minute and a half over the five minutes; I hope you will be indulgent.

Before beginning, I would like to say, in slight contrast to Katherine McNeil who was here before, my world view is that not only children are innocent but all of us, men and women and children, and that all of us are deeply injured and hurt by these matters.

I am a writer and an artist. I single-parented three children and lost control of a fourth in the courts.

We have been separated for six years. I am not going to tell you about our sufferings at the hands of the system, of which his was by far the worst. You have heard of a thousand cases such as mine, of children medicated and incarcerated for the crime of wanting dad.

I am going to try to tell you what I think has happened to all of us, men and women. As men and women emerged in this century from the beginnings of the industrial revolution, they found themselves less dependent upon each other and more dependent upon the industrial incentive, which had made men the slaves of the system and women the servants of the state.

The women's movement correctly challenged that relationship, which they described as biological determinism; that is, the theory that because a woman has a vagina and a womb she is ordained by nature to be a brood mare and a sex object. Fair-minded men supported this view and helped women reject the role. No woman is born, the women's movement said, to be a sex plaything or a breeder or part of a man's reproductive desires. We have accepted that right, as we should.

• 1355

Unfortunately, the gender-complementary ideology persisted—that because a man has muscles and energy and endurance and ingenuity, he is born to be the state cannon fodder and a provider for women and children.

As the old effective relationship of marriage has been eroded by the state and by market values, men's roles have become as oppressive as women's. It is now time that men are saying, like the women, that no man is born to be a provider or protector of women or children or anyone else.

Like the women's position, this doesn't mean that men are not going to do these things, as they have done for at least six million years of governmentless, cooperative evolution. It simply means that the government pressures to force them are unjust and unacceptable in a free and democratic society. It means that these actions are the giftings of free men and not the obligated duties of bonded state vassals. It is a freedom issue and an equality issue.

No government would presume to force women to be breeders, but they force men to be providers. This coercion places at the heart of family law the concept of men as so inhuman, unloving, and uncaring of children that they have to be forced to nurture their offspring.

This problem exists in large degree because government has increasingly become the tool of industrial mercantilism, which has divided men and women in the process of forcing all of them into the labour force without regard to the sufferings of the children.

By the year 2000, the divorce rate is predicted to rise to 64%, which means some 56% of married men will walk beneath that arch of injustice, pain, and discrimination called the divorce court, the keystone of which is the incorrect and sexist belief that males are inferior parents. This myth justifies the transfer to females of children, the house, and support payments, in 87% of the cases.

This practice infantilizes men in their marriages with the inevitability of so much more to lose than their spouses that they cannot win arguments or even fairly represent themselves. This leads to violence on both sides. It is now hard to find a man over 40 who hasn't lost a home.

Feminist joke: How many Canadian men does it take to screw in a light bulb? Answer: None, Canadian men never get the house. Is this really funny?

When a woman says “my supreme body, my supreme unilateral decision in reproductive matters” and then tells the man to stand by in case she decides to have the child, in which case he'll be necessary for support for the next 19 years, it is to make man a third-class citizen, a slave to female reproductive desires. Absolute control implies absolute irresponsibility.

It also sends a message to poor males that there is a state-regulated admission price to parenthood, and that poor males had better not copulate or else—in other words, eugenics. Hitler would have approved the situation.

Deep feminist-generated sexism surrounds reproduction and parenthood. When a young woman cannot face the responsibilities of parenthood and wishes to unload the child, she is not called a dumpster mom. Her driving licence is not revoked; nor is she hounded by the state. On the contrary, a sympathetic society gathers in support and sympathy to help her. It is called adoption or placing the child into care.

If a young man finds himself in this position, he is persecuted by the state and reviled by society. They apply the cruel feminist label “deadbeat dad” to him. Why do we not revile dumpster moms?

Let us pass to some conclusions.

1) In recognition of the shift of familiar relationships towards market values, there should be no government whatever in the human reproductive process or marriage.

2) Divorce and custody laws should be immediately repealed in the interim to:

(a) mandate a 50-50 divorce status for custody, unless radical cause can be definitively shown to override this. This will make divorce harder since both parties will have as much to lose as the other. It will give them second thoughts about separation.

• 1400

(b) No maintenance. Spouses pay for the kids with them when they are with them and only when they are with them.

(c) No non-contractual paternity. Contractual paternity is that paternity, and only that paternity, that has been discussed, planned, agreed to, and ratified in writing before a notary.

(d) These matters are a business of common law, not the divorce laws.

3) Ex-party injunctions and restraint orders permit unscrupulous spouses to change partners and bar their spouses from the communal home in absentia and unrepresented. This amounts to a licence to robbery and kidnapping and in some cases leads to expensive and unacceptable social violence. If any woman doubts the necessity for this change, let her imagine returning from a six-month work stint, working to make mortgage and sustenance payments, to find a new woman in charge of her home and kids, and herself barred by police on the unproven allegation of some violence.

4) “No history” robbery. Many grandparents fear conveying their life savings and homes to their children because shaky marriages threaten such giftings with a chance that half of them will be given to the spouses in divorce proceedings. No one has any right to property gained before the beginning of their union.

In summation, these big changes are demanded by massive societal changes that are injuring men, women, and children. I've been to many men's gatherings. I cannot begin to tell you of the suffering I have witnessed. Men are in deep trouble at this time, as evidenced by the shocking escalation in young men's suicide rates. Before this day's hearings are concluded, three more young Canadian men will be dead from suicide.

I'm an old man now and I'm deeply saddened to bring the committee these sad tidings, but much of what we have built in our ancient and wonderful culture is wrong. You can see it in our faces. You can see it in our divorce rates. You can see it in women's and men's relationships. You can see it in juvenile delinquency. You can see it in the suicide rates. It is now time to put these things right.

I beg this committee to remember that men and women are a precious team. They still need one another to transcend the competitive template of gender disunity we have been given and replace it with one of kindness, justice, humanitarianism, and love. In the final story, there are no women's issues and no men's issues, just people's issues.

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

Now to Mr. Barson from Family Forum. Mr. Barson, I wonder if you can tell us a little bit about Family Forum.

Mr. John Barson (Executive Director, Family Forum): I would love to. First of all, I thank you very much for giving me the opportunity to speak today.

Family Forum is a small organization that was born out of an open-line radio talk show that was started in 1986. It was called “Single Parenting” and evolved into “The Changing Family”, which evolved into publishing colouring books for preschoolers for self-esteem and became a conduit for taking research and issues in families and bringing them to the public—networking, in essence.

The program actually was a result of my becoming a father. I met my son when he was 17 months old. He lives in Bellingham, Washington. I had no idea I was a father prior to that. It was an interesting day in my life. I was a young, carefree disk jockey who became a father instantly, and it was the best thing that ever happened to me. It turned my world upside down. My son is 14 now. His mother and I are best friends.

Half of the research I have with me today is a result of my son's mother's work in Head Start in Bellingham, Washington.

I do believe that the committee is on the right track and that the committee will ultimately find this great research you're all gathering, and hopefully something positive—I know something positive will come out of it.

For the most part, my work has been in helping parents understand how important each parent is. I have no experience prior to beginning my radio show. I am simply a single father who has a burning desire to get as much information as I can so that I can do a better job. Fortunately I'm in a position where I can help other people access that information as well.

• 1405

What I have with me today is a report. Has this report been brought to your attention, “How Men and Children Affect Each Other's Development”? It's a research project by Dr. Kile Pruett from the Yale Child Study Centre.

The Joint Chair (Mr. Roger Gallaway): Where is it published?

Mr. John Barson: It's an excerpt from a professional journal in the U.S.

The Joint Chair (Mr. Roger Gallaway): Which one? Can you name it, please?

Mr. John Barson: I knew you were going to ask me that.

Voices: Oh, oh!

The Joint Chair (Mr. Roger Gallaway): Trick question.

Mr. John Barson: I've been trying to get a copy of the original research to bring to the committee's attention. I was hoping that your researchers, the people who are going to do some of your legwork for you, would be able to contact the Yale Child Study Centre and follow up on this wonderful document. This is a longitudinal study and it involves many studies of particularly men's role in parenting. The first bit talks about the importance of children and the father effect and the emotional father that children actually assign.

When I was learning to be a dad, I loved my son more than life itself, and at one point, when he was about two and a half, I was wondering why I was even in his life. I questioned my own role in his life. Like so many men I've spoken to over the years, I fell into that trap of starting to think maybe I shouldn't be there, maybe I was causing a lot of unnecessary stress in his life, unnecessary pain.

I was seeing him two hours a day once a week. So I was going through this emotional roller-coaster of grieving when I had to give him up, and then halfway through the week I would start to get excited, because I was going to see him again. So every week it was an emotional roller-coaster. I was also hosting an open-line radio show once a week talking about these very issues. So it was very emotional.

One day I was picking my son up and taking him up to Lynden, Washington to get him a little pair of leather Nike high-tops. I was seriously questioning, again, why I was coming down and taking him out of this wonderful environment he was in, because his mother is wonderful. She's a loving mother. She was getting her degree. She's a child care worker, as I mentioned earlier. At the time she was in her third year of university, she lived in a nice house, and my son lacked for nothing. He had lots of emotional love and nurturing and he had the whole extended family support system in Bellingham. Here I was, this alien, coming down and tearing him out of that. I was starting to question that, because I was so emotional myself that I thought it had to have a negative effect.

So we were driving into Lynden, Washington, and there's a big graveyard as you drive into Lynden, Washington. My son, who was two and a half, said, “Daddy, graveyard.” I said, “Yes, big graveyard.” He said, “Grandma Charlotte in graveyard.” This is his great-grandmother, who had passed away a year earlier. He said, “Grandma in Heaven.” And I got my first skill-testing question as a parent: my son asked me, “Daddy, what's Heaven?”

I'm not particularly religious. I'm spiritual, but not particularly religious. I never had a definition of Heaven before. I just thought about it and said, “Well, I don't know, but I think I know what it would be like. I think it would be like—you know how you feel when you're so happy and safe and warm and everybody loves you so much?” He said yes. I said, “I think that's what Heaven is like every day.” He said, “And you can have sugar?” I said, “As much as you want.”

Voices: Oh, oh!

Mr. John Barson: And we went on. We got his shoes and then we went to our traditional little fish and chips stop at the airport before I took him home. We had our fish and chips and I was putting him in his little car-seat and I was starting to go through my grieving process of, “Why am I doing this? What's my role in my son's life? Should I keep doing this?”

As we were driving to the freeway, my son was quiet. My son tends to take after me; he's quite vocal. He was so quiet, and I looked over at him and he was just lying in his car-seat and he had this little furrow in his forehead. As we were coming onto the on-ramp of the freeway, he said, “Daddy, when I die, I don't want to go to Heaven. I want to be with you.”

It just changed my life. He made me realize that no matter how loving his mother was, no matter how much support he had from his extended family, he needed what I had to offer. That's what he needed from me. He needed what I had to offer—not better, not worse than his mother, just what I had to offer. It's a balance. That's truly what we're looking for in our children's lives; we're looking for a balance.

• 1410

When he was six years old he was bouncing on my bed one day and he looked at Bill Cosby's book on fatherhood. He said “Daddy, look, Bill Cosby.” I said “Yes, that's his book on fatherhood.” He stopped bouncing and he looked up at me and said “I'm going to have a father one day.” Talk about sticking a knife between the ribs. I just looked at him. I said “Wait a minute, I'm your father.” He looked at me and said “Dad, one day my mom's going to get married, right?” I said “That's a possibility.” “And if she gets married, then he's probably going to live in our house.” “Probably.” “So if he lives in our house, he'd be my father.” I looked at him and said “But what about me?” He looked at me with this look of “what are you talking about” and said “You're my dad.” That was it, “You're my dad.” Nobody could replace his dad.

I'm hoping that as this committee hands its report in, the children in Canada will have the opportunity to say “You're my dad.” That's what I'm hoping.

I believe when a child is born, the child should have equal access to both parents. I believe that at birth both parents should be on the birth certificate. I think it should be a law that both parents are on the birth certificate. I believe if the mother does not tell who the father is but if a man does come forward at any time, even if it's 10 years later, and says “I am that child's father”, that due diligence is done. It's simple to do. A simple test will prove if that man is the father, and then that man will have the opportunity to enter into that child's life in a productive role.

I mentioned that I have a 14-year-old son. I also have a 4-month-old son I have never met, and it's really difficult to deal with that. I never thought that would happen to me. I'm one of those people who said that will never happen to me. I've published colouring books for children. I've written a book that's the number one book in the U.S. for marriage preparation providers, and yet I sit before you as a man who has not met his son. I ask you, is that fair? I have a lot to offer that child, but I have to go through the legal process. I have to prove that I'm the father. I have to go to court and I have to pray that the court will deem me responsible and give me access to that child. Why do I have to do that? Why do I have to make a lawyer independently wealthy to have access to a child who deserves to be in my life? The reason is because that's the way our system works.

Thank you.

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

We'll move to questions now.

Mr. Paul Forseth: You made a leap from one concept to another and you said that's the way the system works. I just want to perhaps challenge you a little bit on that, in that it was adult individuals who decided—or maybe not—to bring a child into this world. It has to do with the relationship, or lack of one, between two adults. It has nothing to do with the system at that point. We have developed certain systems to help people resolve their conflicts or their differences in a more orderly way instead of clubbing each other over the head or shooting each other or poking each other with a sword.

In Parliament the aisle is two and a half sword lengths apart, based on history, and there's a lot of deep symbolism there. Our court system is conflict resolution, providing justice, looking after victims, and all the rest of it.

Perhaps you might be able to comment about the pre-system stuff that got you into a situation where now you say you have a son and you don't have access.

Mr. John Barson: You're right. It takes two people, and the two people are equally responsible for that pregnancy and for that birth. I agree. I was fully involved in the pregnancy up until the day before the birth, and I had no idea that anything else was going through my son's mother's mind. She had been in a previous relationship—I don't want to go into the history of that, but I wasn't aware or alert to the signals when I reflect back and think about how the relationship developed and how we went from being engaged to not being engaged and so on. All my friends said that all the signs were there. Love is blind: I did not see the signs, so I didn't see it coming.

• 1415

Once I realized that I was in trouble or in danger of not having access to my son, I went to his doctor first and asked the doctor to tell me whether or not the child had been born. It took the doctor 45 minutes of sitting and talking with me before he finally relented and said, yes, the baby was born, and he's a very healthy and beautiful baby boy.

The next day, once I got myself together again, I contacted her family. I attempted to speak to her mother, sister, and cousin. I spoke with everybody. They all said they would speak with her and do the best they could.

I went to social services because, once she left me, she went on social assistance. I asked if there was anything that could be done. I wondered whether I could provide support to social services, as I wanted to start getting involved. They said no, there was nothing they could do. I was told I had to go to family court.

So I went to family court and sat down with a family court mediator. The mediator wrote a letter to the mother and she never responded. In my interview with the mediator, the mediator asked me if had a son. I said yes. The mediator asked whether she wanted me to have access to her son. I said no. The mediator said that if I already had a son, they why would I want to go through all the trouble?

This is a court family mediator. I ask you: what would your response be? I was shocked. I didn't know what to say. I said that I wanted access because he's my son. How do you respond to that? So the court mediation didn't work.

Actually, she has a therapist. I wrote a letter to her therapist and her therapist never responded. I wrote a second letter to her therapist.

Meanwhile, unbeknownst to me, my son's mother in Bellingham had written a wonderful letter of support. My son's teachers had written letters of support because of all the time I spent in the school working with the kids in my son's class. I had these letters of support, because her therapist didn't know me but other people knew me. So it was these other people who wrote letters of support.

I submitted those with my letter to her therapist, who is a renowned psychologist, I might add, and a very well-respected person in child psychology. She still didn't call me, so I wrote another one threatening a custodial battle, etc., if I didn't hear something, because I didn't know what was going on.

She responded with a phone call, a sort of half an attempt at a phone call to my machine, but she didn't leave a number to call back. Well, I know her house, which is why I could send her the message. So I went to her house and knocked on her door. I didn't want to do this, but she wouldn't respond.

We sat down for an hour and talked about it. She offered to act as a mediator on behalf of the child. She said I should try not to worry as the child's interests are in her heart here. She said she really believed that I should be in the child's life and so on. She said she would contact me shortly.

That was two months ago. I still haven't heard from her.

So I'm sitting here now trying very hard not to go along the legal route. I don't want to go along the legal route. I don't want to have to kick this court system into action. That's what I'm saying: I don't think that should have to happen. I think the other parent should have to respond to mediation or at least respond in such a way that both parents have to sit down and start dealing in a non-adversarial manner.

Mr. Paul Forseth: I was just wondering something. You see the system: it's difficult to respond perhaps to someone who had an agenda two years ago. They may have had an agenda when they first saw you.

Mr. John Barson: Her doctor asked me if I thought I was just used for sperm donation, and if so, how I felt about it.

Mr. Paul Forseth: There's a growing philosophy out there that this is socially acceptable. Perhaps a very legitimate way of carrying on family life is to find a sperm and then that's it.

• 1420

Mr. John Barson: Well, Mr. Forseth, the problem I have, personally, is that I'm trying to decide.... She has an adopted daughter, and apparently she's resolving her relationship with her former husband, who was sterile. What you're suggesting, I have absolutely no proof of, but I now have a child in a two-parent relationship in another relationship.

Emotionally, I'm torn apart. Emotionally, I want to be in that child's life, but I think about the child and what's right for the child. I look at my research and I think to myself, well, if the child is in a wonderful, two-parent, stable relationship, that's one thing, but how stable is the relationship when it took this scenario to father the child?

Mr. Paul Forseth: Thank you.

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

Senator Anne Cools: Thank you, Mr. Chair. I'd like to thank both the witnesses and underscore some of the novel points that the witnesses have raised.

But before I do that, I'd like to ask Mr. Barson if he has with him any more of the research on...I think the term is fatherlessness. It's time for us to get away from the euphemisms and to look at what fatherlessness is, which is a major problem confronting North America. So if you could leave with us a copy of that document....

Mr. John Barson: Thank you.

Senator Anne Cools: I wonder if you could put on the record some more references that you might happen to have with you. If you could read into the record the names of the researchers and the research, it would make our job a little bit easier.

Mr. John Barson: I brought this first document researched by Kile Pruett at the Yale Child Study Centre. Part of the research they touch on in here is the effect of the fathers on infant-aged children.

To back that up, I also brought a copy of—I just got this last week from Baltimore—the latest analysis of their Head Start program, demonstrating the infant mortality rates and the huge drop in infant mortality rates once they got the inner city men involved in the children's lives.

Senator Anne Cools: Right.

Mr. John Barson: I think that research is very significant. I realize the inner city of Baltimore is not the inner city of Vancouver, but the fact is, men are still men; dads are still dads. So I've brought Head Start, including their latest research.

This actual report from Dr. Kile Pruett refers to about a dozen separate studies that were done over the last two decades. It's a compilation of research, including his own ten-year longitudinal study on fathers, on the transition of male to father, on what we currently know about paternal care, about whether paternal care actual does matter to babies—they have demonstrative research in here that it does—and the positive effects of male involvement on children's development.

It does examine the stereotypes, expectations, roles, and variations in male nurturing. But what's really significant is the discussion on fathers as primary caregivers versus single custodial parents and stepfathering.

Also, I might add, because I recognize that several groups have noted or brought forth the concept that a lot of men are violent and that women are threatened by this, that there are case studies in here of men who come from families of with histories of sexual abuse. They have demonstrated that these men, if they are involved from birth on, if they are involved early in the child's life, are much less likely to reoffend. So I think that information is also viable.

Senator Anne Cools: Okay. Perhaps our researcher could also start to compile for us lists of bibliographies. I know the research; I know these studies you are referring to.

The single most significant indicator in a child's well-doing is the involvement of fathers in children's lives.

Mr. John Barson: Yes.

Senator Anne Cools: I've been working on this subject matter for a lot of years.

• 1425

You've raised some new issues here today and I think Mr. Payne alluded to one, which is contractual birthing. So many of us have worked for so many years for greater freedom in reproduction and so on, and I'm not too sure that's what Mr. Payne was referring to. But frequently, as marriages are breaking up, it is not unknown that some persons will go ahead and have children as an enormous tool of leverage. Anyway, that one has been raised.

Another point was raised yesterday, if I can simply underline it. In our informal meeting in Victoria we had three individuals in the room tell us of instances of abortions where they, as married partners, were never consulted at all, which I tend to think is a pretty serious thing.

I just wanted to highlight these two new, emerging issues.

Other than that, I thank the witnesses for coming before us and for doing the kind and quality of research they are doing.

Also, I'd like to add that there are no single-parent families. There may be single-parent households, but every child has two parents.

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

I want to thank you both for coming today. It's been an interesting exchange.

I'm going to ask that we have a five-minute adjournment to give our staff people a short break. We'll resume in about five minutes' time.

Thank you very much.

• 1427

• 1441

The Joint Chair (Mr. Roger Gallaway): We'll now start with Professor Dutton, who is from the department of psychology at UBC.

Professor Donald Dutton (Department of Psychology, University of British Columbia): Thank you. I will keep this fairly brief, because both of us believed we were going to have half an hour each, so we're dealing with sharing time.

Senator Cools asked me to address this committee, and she wanted me to mention a couple of issues. I'm a research psychologist. I do research on causes of violence in intimate relationships. I'm a psychologist, so my orientation is obviously towards the psychological.

I wrote a paper in 1994 called “Patriarchy and Wife Assault: The Ecological Fallacy”. In that paper I essentially criticized sociological and feminist views of wife assault and of family violence. I did it for the following reasons.

I argued first of all that survey data from a number of surveys in both the United States and Canada—and this includes the StatsCan survey, which comes up with incidence rates that are somewhat higher than any of the other surveys that have obtained data on family violence, and also only focused on violence towards women—all indicate that the majority of men, approximately 75% of men, in fact, remain non-violent throughout marriages, according to their wives, who were interviewed by female interviewers in this research, and that a sub-group of men are violent once, and a smaller sub-group are violent repeatedly.

Since all of these men grew up in the same socializing culture, there's some problem from a sociological point of view in explaining these differences. Why are some men non-violent and other men repeatedly violent?

I was raising this issue as one of the problems with a feminist view, because as you know, it focuses essentially on socialization and refers to wife assault as a normal process.

I also called attention to the fact that in research that had been done on homosexual relationships, and particularly on lesbian relationships, the abuse rates for physical assault, sexual violence, sexual abuse, and psychological abuse were all higher than those reported in heterosexual relationships, and that this was a difficult finding to reconcile with a feminist point of view, since we're dealing obviously here with relationships between two women.

The research I cited, that was by Lie, Schilit, Bush, Montague and Reyes used a sample of 350 lesbians who had prior relationships both with men and women, so they could serve as controls on themselves, and reported higher abuse rates in prior relationships with women than they'd experienced with men.

The convenient explanation that this is somehow one woman taking over a “male” role and being the dominant party is not supported by the data, because in studies that are done in power relationships in North American families, only about 9% of families report the male as being dominant in the family. About 7% report the female as being dominant. All other families report power-sharing arrangements that are either egalitarian or where one person has one sort of “fiefdom” of power and another person has the other.

For this variety of reasons, I argued that we really needed to pay more attention to the fact that intimate violence was going on in intimate relationships, and therefore there's something about intimacy that sociology is neglecting.

• 1445

Some people, when they're growing up, grow up in families that may be physically abusive but are dysfunctional in a number of other associated ways. The two other key associated ways that accompany physical abuse in the family of origin are, first, families where a child is shamed by one parent. They are told there's something globally wrong with them, that nothing they ever do will amount to anything. This kind of emotional abuse has, from the point of view of our research, as much of an impact as actually witnessing and experiencing physical violence. The second aspect is that in families of this sort it's impossible for the child to form secure attachments to the mother. The mother is put in the position of dealing with abusiveness, in most cases an abusive husband.

The net effect is that you have this three-pronged set of experiences that children are encountering, where they are witnessing physical abuse, they're being shamed and told that they are globally inept, and they have an insecure attachment to their mother. This winds up creating an adult who experiences profound arousal and emotional problems in intimate relationships, has a pervasive sense of mistrust in intimate relationships, converts these feelings into anger in intimate relationships, and forms what I've called in my work an abusive personality. This is the kind of person who goes on to be repeatedly abusive.

I should say that my work is focused on male abusiveness because the only people who were available for these studies throughout the seventies and eighties in Canada were males who were convicted of wife assault. By virtue of doing that they came into our research program.

I now know that there is work being done on studying abusive females, most of it in the United States. In fact, there's a group in Salem, Oregon, that we are now extending our psychological models to, to examine female violence.

In terms of how this ties into issues around custody and divorce, I have from time to time served as an expert witness in custody matters, divorce matters, where there have been allegations of abuse. In my opinion, these cases really have to be taken on a case-by-case basis.

From looking at our research, the best model obviously is an intact family, but that's assuming two non-abusive parents. If you don't have that, if you have one abusive parent, then it seems to me that the child should then reside with the non-abusive parent. The issue then becomes whether the abusive parent's abusiveness will be played out on the child or is specific to the relationship with the spouse. The research seems to indicate that both can happen. For that reason, again, I think one has to adopt a case-by-case approach to these matters. Trying to be formulaic in terms of gender issues, etc., really just does not work.

That was a very quick trip through 12 years of research, but I understand the pressures here in sharing the time with my colleague, so I'd like to turn it over to him and then we'll both field questions from you.

The Joint Chair (Mr. Roger Gallaway): Dr. Kruk is from the faculty of social work at UBC. Please proceed.

Professor Edward Kruk (Faculty of Social Work, University of British Columbia): Thank you. First of all, I am grateful that I have the opportunity to address the committee this morning. I've tried to pare down a 20-minute presentation to the space of about five or ten minutes. I only learned this morning about the five-minute limit. I somehow fell through the cracks there.

I'm also conscious that at around this point people begin to think about lunch, and I don't want to keep you too long.

I did want to summarize some of the research in my area of specialism and put forward a few recommendations for you to consider.

The challenge before you is certainly great. You've heard from a variety of presenters, from divergent political perspectives, and you're having to sift through a huge amount of intractable material. There does, however, appear to be one area of consensus among all the groups—most of the groups—that have presented to you. That is that the primary consideration in the arena of child custody must be for the needs and interests of the child.

• 1450

We all recognize that we have moral obligations to our children. It's the definition of what constitutes the “best interests of the child” where we get into trouble and where we see a lot of disagreement. I suggest to you that the key point from which your final deliberations in this matter should begin is that children's needs in divorce are unique and distinct from those of their parents. Handling them as if they were the same, which is what we do today, is causing a lot of harm to our children.

I've been working with children and families for over 20 years, specializing in divorce and child custody research and practice for the past 12 years. I've come to see that in the realm of divorce, for the majority of children of divorce, we do now in fact have a substantial body of research data pointing to three critical factors in children's adjustment to divorce. In the handout I've given you—I had hoped to have overheads prepared—these are: an ongoing meaningful relationship between children and both of their parents; secondly, economic well-being; and thirdly, a cooperative relationship between the parents, in which children are not placed in the middle of their parents' hostility.

There's a lot of disagreement about the relative importance of each of these factors. You've heard data supporting one of these factors as more salient, perhaps more significant, than the others. But a more sensible approach, it seems to me, is to recognize that all three are crucial factors in children's adjustment to divorce.

My main point is that it is possible and realistic in the majority of Canadian families to provide children of divorce with all three conditions. We must seek solutions that address all three of these factors.

We now have much more progressive child support legislation in this country that more realistically reflects the cost of raising children in divorced families, in a situation where a decline in the standard of living is inevitable because there are now two households to support. So I'll focus on the other two factors.

The Joint Chair (Mr. Roger Gallaway): Professor, Senator Perrault has agreed to give up his time so that you can have an additional five minutes to make your presentation.

Prof. Edward Kruk: Wonderful, thank you very much. I can slow it down a bit, then.

The main tragedy of divorce in Canada today is, first of all, children being caught in the middle of their parents' conflict in far too many cases, and secondly, the severing of parent-child relationships. Some of you may know that I've researched the phenomenon of father absence after divorce in some detail, so I'll address that issue first.

Those who work in the area of grief and loss say that there's really nothing worse than the loss of a child, no matter how that loss came about, but there is something far worse: for a child, the loss of a parent who's been a constant, loving presence in one's life, the loss of a parent who is a part of who one is, an integral part of one's identity.

I'm not saying that all parents who lose contact with their children are loving and involved parents, but in the case of divorce the great majority are. We've somehow lost sight of this.

To give you an idea of the epidemic proportions of father absence, a well-known U.S. study using nationwide census data, a large database, and a representative sample found that over 50% of children eventually lose all contact with their non-custodial fathers. Canadian rates are similar. And I have a quote from Frank Furstenberg's study in your package.

Think about it. Half the children in sole mother custody homes lose contact with their fathers.

In your third handout, I have cited some of the current Statistics Canada data, which tell us that in about 70% of divorces in Canada, according to the most recent statistics, mothers obtain full custody and fathers become non-custodial parents. So in 35% of all Canadian divorces involving children, children will lose contact with their father.

The fourth handout: In Canada in 1994, according to Statistics Canada, there were 47,667 dependent children for whom the divorce court made a custody determination. Of these children, 33,164 were placed in the sole custody of their mother and their fathers became non-custodial parents. There are thus 16,582 children of divorce in Canada who lose all contact with their fathers each year—16,582.

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But that isn't the whole story, and here is the real tragedy. These were not fathers who were distant from their children to begin with—just the opposite. The single most significant finding I've made in my past 12 years as a divorce researcher—and I can tell you that my research on father absence has been replicated by a number of divorce researchers in Canada, the U.S. and the U.K.—is that those fathers who were the most involved with, attached to and influential in their children's lives within the marriage are the ones most likely to lose contact with their children after divorce. I've devoted one of my books, Divorce and disengagement, to examining this single unexpected finding.

At the same time as non-custodial fathers are disenfranchised from their children's lives, studies of sole-custody mothers conclude that mothers are overburdened and overextended by sole responsibility for their children, physically and emotionally exhausted, and often socially isolated.

The second factor implicated in children's distress after divorce is children being caught in the middle of their parents' conflict. Divorces in Canada today are processed by what has been referred to by many as the divorce industry. The term “divorce industry” is used because that is precisely what it's become—a huge bureaucracy that continues to grow, has grown tremendously in the past decade and continues to expand itself. Lawyers, judges, court clerks, reporters, recorders, mediators, psychologists, custody evaluators—the list goes on and on. All these people, many thousands in this country, owe their livelihood to an adversarial system that in fact prolongs, exacerbates, creates parental conflict, and places children squarely in the middle of the conflict.

Within the present system, child custody cases represent, in the words of a noted legal scholar, some of the most volatile, hostile and destructive transactions in court. The direct result of an adversarial divorce are phenomena such as child absence and parental alienation on the one hand and spouse abuse on the other. Fathers face the threat of losing their children; mothers within adversarial divorce face the threat of abuse within a system that does little to protect them.

I have some statistics. Within the adversarial system, women suffer the greatest risk of injury or death during the divorce transition: 46% of battering occurs after separation, and 73% of battered women seeking emergency medical services sustain their injuries after separation. And that is within the present adversarial framework.

If your goal as a committee is to protect the interests of divorce professionals, I tell you don't do a thing; don't tamper with the status quo. I tell you that making divorce less adversarial is misguided for several reasons: people need a safety valve; children's interests are basically the same as their parents; people's livelihood depend on adversarial divorce.

If, on the other hand, your deliberations are to be guided primarily by children's needs, I offer three recommendations. I have only three. I make them very strongly. Each of these, I believe, is an area in which reform is urgently needed.

First, because there is so much variation in our society in the way women and men enact their parental roles, any form of “one shoe fits all” approach to child custody, whether that's a joint custody or a primary caretaker presumption, is problematic. Research tells us that children fare best within an arrangement that attempts to approximate as closely as possible the parent-child relationships in the original two-parent home, within as cooperative an atmosphere as possible between the parents.

The way forward, claim an increasing number of commentators, is the parenting plan approach to child custody, a formula that has now been applied in U.S. states, the U.K. and Australia. The approach sets up a legal expectation that divorcing parents develop a detailed parenting plan, which provides for the continuation of existing parent-child relationships and a cooperative approach to child rearing, before a divorce is finalized by the courts.

The parenting plan, as you know, is a detailed articulation of parenting responsibilities, including specific arrangements regarding time spent by children in each household, holiday schedules, how decisions are made, and how costs are allocated. It involves negotiation and non-adversarial dispute resolution. Within this approach the role of the court as well as the roles of lawyers and mediators and others are transformed. Nevertheless, each maintains a vital function in the family transition process.

Most important, the management of the family transition process moves from the hands of divorce professionals largely to the hands of the couple concerned. It honours parents' capacity for developing their own arrangements, their capacity to cooperate rather than compete with respect to their children, and provides a social sanction and incentive for such a process and outcome. It honours the position of the parents as the most competent individuals to do this. It is a middle-ground approach between the joint custody and the primary caretaker camps.

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My second recommendation is this. We need to challenge the cautious approach the government is taking on the matter of making mediation more accessible. We need active promotion of this option. There's abundant evidence of the effectiveness of mediation in those jurisdictions where it is legislated as mandatory. People need an incentive to use mediation. If either of the parties in a divorce believes he or she can get more out of litigation, he or she will not use mediation or just won't use it well.

Mediation needs teeth if it's going to make a mark. It needs to be legislated and mandatory in divorces involving children, excluding those cases where it's not appropriate.

Finally, let us stop blaming parents and adopting a fatalistic attitude with respect to their potential to put aside their marital hostilities where children are involved. We need to face squarely the fact that as an industry we've done harm to our society's children. There are highly principled divorce practitioners, but most of us who work in the field uncritically accept the adversarial framework we work in and profit from as an unpleasant but necessary evil.

I suggest that we need to reject this framework outright. What's needed is a fundamental change in the culture and conduct of divorce, involving a wholly different conceptualization of the roles played by divorce professionals, who would see themselves in partnership, not in opposition, in the shaping of a new approach to post-divorce parenting.

As a mediator, I've come to see that when some degree of trust and respect is achieved between parties, the other issues become simple ones to overcome. This is not the case within adversarial divorce, where simple issues quickly become insurmountable problems. Needless to say, you can expect to encounter considerable opposition if you even begin to tamper with the adversarial framework in the child custody arena. You'll be up against very powerful groups with strong vested interests in maintaining the status quo, particularly with respect to those who practice their craft from an adversarial perspective.

But ask yourselves this: what have we come to? Within the adversarial arena, the phenomena of spousal abuse, access denial, parental alienation, and father absence are rampant. We see men berating battered women and invalidating their pain, and we see women berating men grieving the absence of their children and invalidating their pain.

Worst of all, we see parents blinded to their children's pain. We see children caught in the middle of parents' conflicts and we see many children losing one of their parents. Where children are concerned, only a spirit of compassion will do. The absence of this is really, in my view, what we need to be crying about.

We'd be wrong to blame parents for this state of affairs. We're wrong to blame people who are in the midst of what's usually the worst crisis they've ever had to experience, who enter the divorce process with heightened emotions and, yes, with a need to allocate blame, to point the finger at the other partner and recite a litany of recriminations. If we recognize the high degree of vulnerability of divorcing parents and do all we can to provide a positive outlet for the expression of their emotions, then I think we're going in the right direction. Only then can we begin to claim that we're fulfilling our moral obligations to our children.

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

We're going to start questioning with Senator Chalifoux.

Senator Thelma Chalifoux: Thank you very much, both of you, for a very interesting presentation on the studies, but I would like to ask both of you, regarding aboriginal communities, especially in the mid-Canada corridor—and I hope you know where that is. It's between the boundary from the Northwest Territories to around Slave Lake in Alberta and right straight across. It's called the mid-Canada corridor because that's where.... People living in that area have very little communication and the culture is way back.... They have suffered the Industrial Revolution with no social support services. I would like to know if you've done any studies on those aboriginal communities. I have done a little in my work within those areas and I find it horrendous.

Also, with respect to the new immigrants coming to this country and the cultural differences, have there been any studies done? I think that's very important if we're to look at this act and really address those issues.

Also, have you done any studies on the extended family and the importance of the extended family as far as the child finding a safe haven? How would you address those three studies—if they've been done—and implement them within the act?

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Prof. Edward Kruk: I'd like to make a few comments on the whole mediation process because I think this is highly relevant to all three questions.

What we know is that aboriginal communities generally—including those in the mid-Canada corridor—have a marvellous tradition of peacemaking and alternative dispute resolution in which models of mediation currently exist.

The problem is that as mediators from the dominant culture we come in and try to impose, from the top down, a settlement-driven model of mediation that's focused only on helping people come to a resolution of their dispute, rather than really looking at other salient goals that are perhaps more important goals in the context of aboriginal communities, things like restoring harmony, things like a collectivist orientation rather than an individualist orientation in resolving family conflicts, including divorce, so that the whole community is a party to the dispute.

The mediation community has begun to examine this issue and has begun to recognize the limitations of the generic approach to mediation, the settlement-driven approach to mediation, and the harm it can do in those contexts, both in first nations and generally working in a cross-cultural context, and really looking at the communities themselves to bring forward.... Their role is now to elicit first nations models of peacemaking, for instance, and apply it to a family context. The need for training mediators within those communities is really seen as a priority.

As far as the extended family goes, I have done a fair amount of work in looking at the impact of divorce on grandparents. I have a number of published articles in this area. I think it was the first Canadian study examining this phenomenon of grandparents losing contact with their grandchildren. It is a widespread problem. I'm sure you've heard from grandparents' rights groups across the country. The grandparents I have met with are staunch supporters of mediation as an alternative dispute resolution mechanism. They'd like to be included as part of the process and they'd certainly like to be included in the whole system. There are models of multi-generational divorce mediation that include grandparents; they are out there and they are being developed.

Prof. Donald Dutton: Our research has addressed issues involving immigration. Certainly we have seen the added stress on families that are moving to a new culture. Again, the variation in response to that is overwhelming. Some families get closer and bond together, but for those families that do not and then experience the double whammy of divorce and immigration, if you want to call it that, the stresses are really considerable. I am largely concurring with my colleague here. One of the issues that's very important is that anything that keeps the person embedded in some sense of community is a strength. That can be either an extended family or some connection to other members of the resident immigrant community.

In the corridor that you're describing, do they practice justice circles?

Senator Thelma Chalifoux: In the corridor that I'm describing they practice nothing, because the whole culture has disintegrated because of the Industrial Revolution and the traditional lifestyle that has been deprived.... What we are finding there are very high rates of abuse, suicide—you name it, it's there. This is what I'm asking you about. Have you done any studies in regard to that? And how could you make recommendations to this committee to address those issues within that area?

It's the same thing with the new immigrants. They bring a culture of their own with them, and a lot of cultures coming into this country promote wife abuse. That's part of the issue and part of the culture. How would you address this committee in making recommendations to address those two very important issues?

Prof. Donald Dutton: I spent 15 years as a therapist in Vancouver doing therapy with men who were court-mandated for treatment for wife abuse. As I'm sure you can well imagine, a large percentage of men who came to our treatment groups were from immigrant cultures and had attitudes that were somewhat out of line with the attitudes about wife abuse that we have in Canada. They carried with them sort of resident attitudes that wife abuse was normal and that the problem really was with Canada. They couldn't understand what all the fuss was about.

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We basically had to make it clear to them that they were now living in a culture where wife abuse was illegal and that if they wanted to learn to live in this culture they were going to have to learn not to be abusive. And we were there to help them learn that. That was the approach we took with men from.... It's hard for me to think of a culture we didn't have represented there. We got to the point where we were subdividing our cultures into Indo-Caribbean-Canadian, for example, into all sorts of subdivisions of cultures.

I wish I could say more about the people in this corridor. We have not researched them. We don't know. I hear you describing a community where all of the community supports have disintegrated. It sounds like there needs to be some rebuilding, maybe along the lines of what's working in successful native communities, like the justice circles, which seem to work well and are mediation-based. That would be my first take on it.

Senator Thelma Chalifoux: So you would recommend that to this committee?

Prof. Donald Dutton: Yes.

Senator Thelma Chalifoux: Good. Thank you very much.

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

Mr. Forseth.

Mr. Paul Forseth: Thank you, Mr. Chairman.

Mr. Dutton, I think you alluded to some very interesting things. They related to what I talked about earlier this morning, to science versus gender politics or people holding onto their myths and wanting rather to get at the truth and through the truth of scientific research and thereby truly being able to help children. My agenda is to help children.

You made some reference to general population studies and surveys that imply more symmetry and reciprocity to pathology and misbehaviour. I see things in our local newspaper that I characterize sometimes as “the gender wars”, or whatever, and they often relate to trying to tell a story in order to get money or recognition or power or whatever. A lot of that is based on a very legitimate desire, but sometimes they overstate the case because it pays to overstate the case.

We need to stay away from that and try to get to the very best science, because there are so-called studies and so on out there, whether it is in environmental research or whatever, studies that I would call “junk science”. We get academic communities and professors whose credentials are impeccable but who are of opposite views on a particular issue. I asked the question earlier about the underlying scientific assumptions that the helper was operating on concerning child development. Maybe you could cite, in your opinion, what the best of the science is that we should be looking at.

Prof. Donald Dutton: I think there is a relatively new field called developmental psychopathology. This field studies the impact of dysfunctional environments on development. What it finds is that dysfunctional family environments cannot only influence the emotions and behaviour of children, they actually influence the child's brain structure. The children develop differently. There are windows of opportunity for neural development that can be lost if a child is placed in a dysfunctional family.

The work I'm referring to is work that's done by Dante Cicchetti at the University of Rochester, by Patricia Crittenden on attachment, some of the work that Chris Perry has done on neurological development, and the work done by a man by the name of Allan Schore, who wrote a book called Affect Regulation and the Origin of the Self. He has combined attachment theory, which looks at the whole set of micro relationships between mother and child, with neural development and the dysfunctions in neural development and neural structure that come out of faulty attachment.

I think it's extremely important work and I think it's work that we need to pay attention to. The immediate application of this to the work of this committee is something I don't think I could summarize in two minutes. I'm just sort of pointing you in the direction of things that you might want to consider in terms of coming to your own conclusions.

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Mr. Paul Forseth: It's just that we have heard a tremendous variance in testimony and a lot of comments that sometimes are way out there on the edge, you might say. Then I say to myself, wait a minute, what is the scientific basis or the underpinnings of where that stuff comes from? Sometimes when you begin to ask those underlying questions you realize that the statements and beliefs that are hanging way out there collapse because they're not really based on anything substantive.

Prof. Donald Dutton: That's absolutely right. I've always prided myself on two things. One is that I've tried to pay close attention to the data, not to be ideologically driven and ignore the data. Paying attention to the data has caused me to change my mind on two or three occasions. When you're dealing with people who are incapable or unwilling to change their mind, I would be wary of that. That's a flag.

If I go back through 24 years of my own writing, I can see at least two key junctures in there where I changed my theory about what makes things operate. I've done that because the data have forced me to take a new position and rethink things. If you're dealing with people who can't rethink, you'd best pay attention.

Mr. Paul Forseth: So that's part of it. I suppose the broader assumption of this committee is that the government was somewhat resistant to rethink, but there was a bottom-up process, a political desire from the community, that there's enough discontent out there saying that the whole area of family law is an area that needs to be continued to be looked at.

Obviously, this has happened in other jurisdictions. They've gone through the same kind of agony, whether it was Washington state or England, which is coming onstream now with a new set of assumptions. I'm certainly sure that those are not going to be the end. We're going to continue to look at our institutionalized systems of conflict resolution.

One of the things that's consistently come to this committee is that our historical adversarial process in law isn't particularly suited for solving parental problems related to child care and child need. One of the suggestions we've continued to receive in a variety of ways is to try to maximize alternative dispute mechanisms, whether it's based on an aboriginal tradition, a labour-mediation model of arbitration, or the areas of international law. There are other ways than just strictly the courtroom setting of the adversarial system.

Prof. Donald Dutton: Yes, I understand what you're saying, and I think it's really important. I tend to believe that mediation systems work well for the majority of people. However, there are some people for whom mediation systems simply will not work because that person has a personality that is bent on undermining a mediation system. By virtue of their personality, they're looking for an adversary; they're looking for litigation.

It may be a form of psychopathology, or whatever you want to call it, but some people begin to define their existence through the ongoing custody battle. The child becomes a rope in this emotional tug of war between them and their partner. It's hard to get a person like that into mediation and to get them to go through the normal responses to mediation. That's not to say that mediation isn't important, because I think for the majority of people it is an important first step.

Prof. Edward Kruk: I think it's very important for the committee to critically scrutinize existing research, because you have had conclusions all over the map presented to you.

One guideline is to really pointedly ask each presenter how representative is their sample. Is this based on one or two cases? Just how representative is it? That will have major implications for your deliberations in terms of determining what is the norm in Canadian families and what's the exception.

I'd suggest to you that the norm in Canadian families is a situation where both parents are capable and loving caretakers of their children. That's the majority. You have to develop policies for that majority and also for the minority of cases where that is not the case.

That's what I would say in terms—

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Mr. Paul Forseth: It may be that just by the nature of problem resolution the law and the system are there to really deal with the exception.

One presenter made this broad generalization and said, let's divide it into thirds. There's a third who are dissolving their family situation. They don't need any law. They will just solve it themselves and work out their own arrangements. They'll get the desktop divorce and maybe have no custody order. We don't need to deal with them. There's the other third at the other end for whom it wouldn't matter what kind of law or system we had, they're going to continue to abuse the system, abuse each other, abuse their children, and will be fighting forever. No system will solve that. But there's the third in the middle for whom if we create a better situation than we have now it may help them to get on with their lives and help children.

Prof. Edward Kruk: We do have research that tells us that it's not a one-third, one-third division, but rather we have under 10% of cases that will just negotiate their dispute without any kind of support, a third who have intractable hostility that requires the adversarial system, but more than 80% who, given adequate support, are capable of separating their marital hostilities from their ongoing parenting responsibilities, make effective use of mediation if they're given the incentive to use mediation, and indeed can formulate parenting plans in the interest of their children.

Mr. Paul Forseth: Thank you.

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

Ms. Carolyn Bennett: In the 10% to 20% that are the high-conflict divorces, you said that because people had a certain personality.... I feel as a family physician that you would almost characterize some of these people as having a personality disorder, particularly the people who deny access, people who just cannot deal with this in a healthy fashion because the winning and losing and the power becomes more important than the kids. Could you comment in terms of whether these personality disorders really do fill up that 10% to 20%. Could we diagnose them? Is there a way that we could—not that labelling is important—sort out these absolutely abnormal situations from the normal Canadians who can sort this stuff out? Would that be helpful in terms of having an assessment that says these people will not deal with this in a rational way and therefore we need extraordinary measures to make sure the kids are looked after?

Prof. Donald Dutton: I'd love to see a research study that looked at personality disorder predictors of how people respond to mediation. I don't have the data to back it up, but I would bet that the ones who just don't cooperate with the mediation program are personality-disordered. I bet the majority of them, at least one of them, is personality-disordered. It is possible to diagnose that. There are a number of self-report scales that are pretty accurate. I don't know, however, of any research that has attempted to do this.

Prof. Edward Kruk: What we have now is a system in place that rewards highly conflicted behaviour, particularly in those areas you mentioned. What we need is to reverse that and provide incentives for a great many more people to make effective use of non-adversarial means of dispute resolution. I think the guideline in those cases, however, where there are clearly diagnosed personality disorders, where there is a good reason why people cannot make effective use of either mediation or a parenting plan approach to child custody determination...then we fall back on the traditional role of the court. I think the guideline in those cases should be which of the two parents will better facilitate the other parent's ongoing meaningful relationship with the child. This should be the guideline in terms of determining custody in those cases where despite all supports being in place, despite an order made by a judge before a divorce is finalized that parents will formulate a parenting plan, either through their negotiation by a lawyer's mediation or just directly themselves.... If they can't make use of that, then I think we need guidelines like this one.

Ms. Carolyn Bennett: At the moment there is the friendly parent's rule. In your experience, is that just not applied or is it that people just don't understand it?

Prof. Edward Kruk: It isn't applied. It doesn't appear to be applied by the courts. First of all, lawyers are expected to inform their clients of the option of mediation and non-adversarial dispute resolution. We have research that shows us, including evaluation of the Divorce Act a few years ago, that the majority of lawyers don't mention it, but really dissuade their clients from considering that option. We don't have a system where judges can mandate mediation. It's not legislated.

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People learn that they can get more by use of other means than mediation and really don't have the incentive to mediate. Mediation has to be a voluntary process, and it certainly isn't a panacea. It isn't for everyone, but many more, I believe, could make use of it if the incentives were there, if it were legislated.

Ms. Carolyn Bennett: I guess that's the issue, to me. If you had to choose the experienced people who could identify this and could see it for what it is in terms of personality disorder that will always try to destroy whatever is the ongoing equilibrium.... What is the role of lawyers for these people?

Prof. Donald Dutton: That's a really good question. On the one hand, if you have someone who's personality-disordered, you know they're going to try to sabotage a mediation system. They're going to use that system any way they can to further their own ends, and their end is going to be to perpetuate the distress of the person they've been connected to. Even though they're separated from them, they want to perpetuate this abuse. Now they can do it through the legal system, and they get a lawyer to help them. The lawyer becomes a willing aid, if you will, who helps this person play out their pathology.

Again, I'm not saying this means we should throw out mediation systems. I don't want to be misinterpreted, because this does not apply to the majority of people. We're looking at around 17% of the population that would come up with the kind of personality disorder that would be destructive to dispute resolution along mediation lines.

Ms. Carolyn Bennett: One last thing. In these high-conflict things, what keeps coming back to me is that the kids aren't necessarily properly represented, or their needs aren't really being articulated in that a personality-disordered person can always spin it or make the children believe what's in their best interest...or that there seems to be some manipulation that's possible. Would you recommend that there always be, in high-conflict situations, someone acting for the child and an assessment made of the child?

Prof. Edward Kruk: I think it certainly would be helpful in those cases, but again, I would reiterate that I think they are in the minority of cases. People behave the way we set them up to behave. If we expect them and set them up to behave as adversaries, they will. If we have a system in place in which they're rewarded for their conciliatory overtures and behaviour, then a great many more will behave that way, and we'll see fewer of these so-called personality disorders. I would say that sub-group of divorcing parents is in fact much smaller than we assume.

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

The Joint Chair (Senator Landon Pearson): Yes. It's a treat to have a sociologist. We haven't actually heard from one before, to the same degree.

I have a question about whether you know of any research that's being done. I know that people talk about the culture of divorce, but I'm talking about the sort of North American culture, which has made divorce a kind of acceptable choice in a way that was not the case many years ago. I'm just wondering what kinds of forces in society are leading larger and larger numbers of people to choose divorce rather than other ways of trying to resolve their marital tensions.

Prof. Edward Kruk: Just to clarify, I'm not a sociologist, but I'm a social work researcher at the School of Social Work, so my background is primarily in working with children and families in a variety of systems.

I have some sympathy with Donald Moir's point of view about the easy divorce in Canada. I think a number of jurisdictions, including the United Kingdom, have placed a great deal of emphasis on the need for a period of reflection for parents right at the front end, before any kind of divorce counselling mediation is initiated—that there be supports in place, a national network of family support centres, I suppose, that can assist parents in looking at the potential benefits of staying together and reconciling before they plunge into divorce, and really giving parents a very clear picture of the impact the divorce will have on all of them, because it's no panacea. People find out much later that divorce isn't a panacea.

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There were comments made earlier that I heard about needing to change the value of family—Mr. Forseth used that term—in Canadian society. I have some sympathy with that. I see other jurisdictions addressing that issue in their divorce legislation by having supports in place for parents to seriously consider reconciliation. We throw them headlong into divorce and don't really provide for them.

Whether we're lawyers, mediators, or other divorce counsellors, we assume that divorce is the answer or the solution. We tend to hear from one side of the divorcing couple and very quickly reinforce that notion of victimhood. The client is the victim and the other party is the perpetrator, abuser, and so on. We polarize people rather than really assisting them to carefully consider their choices and their options.

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

Prof. Donald Dutton: First, I would like to add a couple of other things to flesh out the answer to your question. We are dealing also with a time of high economic stress that demands two wage-earners in the family. This was something that we didn't have 25 or 30 years ago. So there's that added form of stress.

At the same time, we're living in a more mobile society, which means people are frequently deracinated, they're uprooted and taken away from all of the intrafamily sources of support that they might have had. It's rare now to see families with three generations living under one roof. So you have increased stress, less social support, and then you have this easy divorce that my colleague's talking about. You begin to combine all these things in an interactive way and then you see a rising divorce rate.

The Joint Chair (Mr. Roger Gallaway): I wanted to get a couple of questions on the record to clarify a number of matters. Professor Dutton, you talked about abusive parents. I wonder if you could define “abuse”, because we've had a number of definitions presented to this committee.

Prof. Donald Dutton: An abusive parent is one who consistently behaves in such a way as to hurt the feelings of another person in the family. It could be their spouse or the children.

The most common form of abuse is emotional abuse. One of the most devastating types of emotional abuse is what I refer to as shaming behaviours. Just to make sure that we are clear on that, shaming behaviours are forms of abuse that attack the child's entire sense of self.

When I was doing a book tour in 1995, I was doing a radio phone-in station in Los Angeles. A man phoned in and said that when he was growing up, his mother told him anything you ever touch will turn to shit. I think that really clearly points out what we're talking about here.

There's public shaming and punishing a child at random. I had a lot of men in my treatment groups who would describe their parents. The children would be sitting there watching television and they'd get hit out of the blue. When that happens to a child they can't connect the punishment with any specific act so they begin to feel they're being punished for who they are rather than what they did. This is a particularly devastating form of abuse.

So by abuse, I mean anything that's designed to hurt the feelings of the other person. The second most common form of abuse is physical abuse. The least common is sexual abuse.

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

I have a question for Professor Kruk. In your written material here, you talk about contested custody cases involving some of the most volatile, hostile, and destructive transactions in court. The number—I don't know which one of you used it—of 17% came out such that in 17% perhaps of cases, there's a very extremely high conflict.

One of the issues we're grappling with, at least I am in any event, is that we know about the conflict that exists during the period when an individual, or indeed the couple, makes the decision to go to a divorce. Perhaps in 20%, more or less, of the cases there's a lot of conflict. It's a war in the litigious sense.

What about those cases that get to that point but become a war after the fact because the Divorce Act covers that period, as well as the post-divorce period, in many respects in determining the relationship between the parents and the children in particular.

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Prof. Edward Kruk: This is something on which I've done some research, involving both mothers and fathers, looking at what happens in the interim period between the point of separation and the final outcome in divorce. The research is pretty clear, including my own, that conflict escalates.

In some cases, there was every chance of a peaceable resolution between the parties on issues of custody in particular, but when divorcing parties are instructed by their counsel to immediately cease communication with the other party, they're portrayed as victims, the other as perpetrators of abuse, and so on, and very quickly suspicion and fear develops, which is the antithesis of the trust that is needed, the trust that perhaps was there to begin with.

There was diminished trust as the marriage broke down, but the real damage occurred after the point of separation. There's almost always a tendency to blame and there's almost always hostility, but the degree of hostility is far less than it is during and after the divorce process.

I surveyed both fathers and mothers in relation to the degree of disagreement regarding post-divorce parenting arrangements. Up until the point of separation, both parents saw each other as very important figures in their children's lives and saw that continuing.

That perception very quickly changes when communication is ceased and trust is diminished, Affidavits start flying back and forth, with all kinds of charges and allegations, and a war ensues. It's very clear. Both mothers and fathers report that fairly consistently in the research.

The Joint Chair (Mr. Roger Gallaway): Is your research published?

Prof. Edward Kruk: Yes, I have several articles and a couple of books on this topic.

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

I want to thank both of you for coming here. This has been a very stimulating and interesting session.

Senator Anne Cools: If I could add, so our researchers pick up on what the witnesses said, on some of the critical points they raised—and I feel no need to cross-examine these witnesses because I've read their works extensively—I believe Dr. Dutton referred to the general population survey studies. I assume you put them on the record. We've mentioned them before: Strauss, Steinmetz, Reena Sommer, Brinkerhoff, Lupri. Perhaps our researcher could do a very quick one-page summary of the findings of the general population surveys.

In addition to that, I was very struck that in Dr. Dutton's testimony he talked about the three-pronged experiences of children who grow up to be abusive individuals, their experiences of violence, the insecure attachment to parents, and the shaming. I would refer this committee to a Senate committee report called Child at risk, which was then brought forward by Senator Beaudoin and Senator Bonnell. It's quite old now, but the interesting phenomenon is that, quite unrelated, that report makes these findings but under different names: the insecure attachment, the shaming process, and the gender findings as well. I recommend that to colleagues for study.

The Joint Chair (Mr. Roger Gallaway): Thank you, Senator Cools, and thank you for being here.

I want to say to members that it's 12.38 p.m., according to our official clock here. Having regard to the lateness of the hour and the fact that there is no drive-through at this hotel, we will resume at 1.15 p.m.

Thank you.

• 1539

• 1631

The Joint Chair (Senator Landon Pearson): We'll start.

I'm sorry to keep you waiting a little bit, but as you perhaps know, we went a bit late this morning, and we needed to eat.

We have with us today Mr. Cottingham and Mr. Ostrowski.

Mr. Cottingham, would you like to begin? Were you here this morning?

Mr. Robert Alan Cottingham (Individual Presentation): No, I wasn't.

The Joint Chair (Senator Landon Pearson): Okay. Well, we try to keep it to five minutes so there's time for questions.

Mr. Robert Alan Cottingham: Exactly.

The Joint Chair (Senator Landon Pearson): Perfect.

Mr. Robert Alan Cottingham: I'm going to simply keep it very short and concise, and then hopefully, if there are questions, we can go from there.

My name is Bob Cottingham and I live in the province of British Columbia. I've given exactly what I'm reading to the person, so hopefully you have that information. I wish to address the issue of false sexual abuse allegations. I thank the committee for giving me the opportunity to share my thoughts and my story briefly here today.

Twelve years ago I was falsely accused of sexual abuse of my then two-year-old daughter in an acrimonious custody and access litigation. The result was that I was granted sole custody of my daughter, Charlene, in April 1987. Charlene is almost 15 years old now and continues to live with me full-time. Her mother resides in Vancouver and has chosen to have minimal contact with her.

I remarried several years later and had a son and a second daughter. This subsequent marriage ended in divorce in 1995. My wife initiated the divorce. She had been involved in another relationship and chose to pursue that relationship. I don't want to appear non-objective in this, but I feel that telling it as it is is the best way.

It was not until the issue of custody became contentious that suddenly I was faced once again with unsubstantiated sexual abuse allegations. So it is possible to be struck by lightening twice. I certainly was.

Two of my wife's own personal friends voluntarily came forward after she had confided in them her plan to use false allegations as a tool to ensure her custody of our children. I've supplied some sworn affidavits from those people as well.

Then, on my behalf, my previous wife—the wife who had made the allegations 10 years previously—wrote a letter witnessed by the RCMP admitting and confessing that the allegations she had made 10 years previously were completely false. So it took my second marriage and the use of sexual abuse allegations in custody and access for my first wife to come forward and set the record straight.

• 1635

The sexual abuse allegations were at that point downplayed by my wife and her lawyer. We divorced, although custody and access were never formally settled. Basically it was starting to get very heated up and very expensive, and then when the witnesses came forward and so on, they pulled back and that wasn't a tool being used. Nevertheless I was forced to endure for a second time the process of clearing my name for something I had never done.

Presently I spend every other Sunday with my six-year-old daughter and I'm patiently working at rebuilding a relationship with my 10-year-old son, who was used by his mother to perpetuate the sexual abuse allegations and is still unresolved in his feelings towards me as a result. There were obviously psychologists involved and so on and so forth. A report came forward from Dr. Elterman that clarified exactly what was going on and how the allegations were being used and so on.

I have experienced the devastation of false and malicious allegations and what they can cause in a custody and access situation. I feel my children have suffered untold emotional damage. I continue to pay. Approximately $150,000 is what all this litigation is costing me personally.

In my view—and I would hope the committee will look at this—when false allegations are made and reported to achieve a personal agenda, this is just something that should not be tolerated. To allow this abuse of the system to go on unaddressed would be simply wrong and irresponsible.

I'll close by saying that this matter is an issue of enormous importance and content. It is my hope that the opportunity to speak before the committee and the information I can provide may somehow assist in affecting future fairness and balance in family law.

I'm sure I'm not the only one who has gone through this, though perhaps it's a little unusual because I had to go through it twice. The difficulty I have with it—and I don't know how common it is now, because it's been a couple of years since I've had to deal with this—is there certainly doesn't seem to be any consequence when false sexual abuse allegations are made. I know I got custody of my daughter, and you could say that's the consequence, but at the same time, it almost seems that if the allegations don't work, if they're false, it's just forgotten about and things carry on from there. I feel very strongly that something needs to be done to change the laws so there is some consequence.

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

Mr. Ostrowski.

Mr. Peter J. Ostrowski (Individual Presentation): Thank you. My name is Peter Ostrowski. I'm currently enrolled at the University of B.C., and I've just finished a contract teaching in Prince George, B.C.

I make the following recommendations on the issue of parental mobility.

One, no children should be moved from the area where they're substantially connected.

Two, no children should be moved without an economic assessment, parenting plan, and responsibilities set down, such that the children will on balance be better off in their new location. This consideration increases in importance with an increasing number of children in the family unit.

Three, travel, access, and accommodation costs are child-rearing expenses and should be specified and tax-free, as are enforcement costs for maintenance.

Four, costs and due consideration should be automatic for the parent relocating to be able to continue a role as a parent. Further, such parents should be treated with preferential hiring.

This is my background. I was married in 1976, and in 1993 I signed a separation agreement with my ex-wife for joint custody, ongoing support, and residency of the four children of our marriage and the family home and birthplace of the children in Oakville, Ontario. We had an upper-middle class life with a house paid for and two cars in the driveway. Our children wanted for nothing and had a high quality of life. All were doing well in school and sports and had every expectation of going to university.

• 1640

My ex-wife left Ontario later that year with three of the children to visit Victoria, British Columbia, where she subsequently decided to settle. Once moved, she was able to overturn the separation agreement, including joint custody. An offer to settle, with me remaining in Ontario and the children in Victoria, was not accepted. No evidence was presented in court that the children would be better off in Victoria, British Columbia, where they had no history and my ex-wife had no employment.

Throughout 1994 and 1995 I tried very hard to remain a parent while I was in Ontario and my children in British Columbia. Travel and court-ordered access cost approximately $80,000 during those two years, and when a large group of employees was severed by Ontario Hydro in 1995, I and my children were very glad of the opportunity for me to move to British Columbia.

I learned that it was impossible to remain a parent at any distance from my children, and the stress caused by constant litigation and the separation meant my professional life had to come to a standstill. I also learned that the situation of a father supporting children living with their mother became increasingly unworkable as distance and the number of children increased. Eventually, travel and access costs overwhelmed all other expenses.

On my arrival here, all my remaining assets were seized and I was threatened by the Supreme Court of B.C. in September 1995 with complete access denial.

Current situation: Since 1993 I've been to court approximately 24 times to settle matters of custody and support. No permanent order has been made, and I was in Supreme Court in Victoria representing myself for the 24th time last Thursday. I've learned to represent myself and I've done so for the last three years, since I have no other means.

It was necessary for me to launch a lawsuit at one point in desperation against the lawyer for my ex-wife, who made false statements in court and did not follow his code of ethics or the rules of court. I learned that a lay person has no defence against what's termed “sharp practice”, and the Law Society of B.C. did absolutely nothing to correct the situation.

My three sons are now 18, 16 and 13 and my daughter is 11. They've had the most difficult time possible travelling and communicating with me, which I will not detail. I've made a policy of not making issues so as not to distress the children. During the last winter I drove 1,000 miles a week through the mountains to meet my children at the ferry terminal at Tsawassen and bring them to Vancouver for the weekend, but then that was a lot closer than the 3,000 miles from Toronto.

At no time either in Ontario or British Columbia, under the old or new Divorce Act, have I been credited with even one cent in travel costs. I went to court many times to try to obtain a variance and, after three years, was finally successful last Thursday. Unfortunately, it's too late for me. I will be seeing the tax accountant tomorrow concerning personal bankruptcy at age 48.

Ontario Court general division and the Supreme Court of B.C. made a poor decision in not considering the risks in allowing children to move far from their home area. The effect on my children of their arbitrary move to Victoria three years ago was devastating. My eldest son, once expecting to go to university like his friends from Oakville, is now marginally employed. Career prospects for them in Victoria are non-existent without post-secondary education.

I'm not optimistic of their future and distressed about whether I'll ever be able to do anything about it. They seem to spend most of their time alone, watching TV or playing video games, and are involved in some questionable activities. I'm apprehensive that there will be substantial costs to society in Victoria, given the record of that community in dealing with its youth.

Eight weeks ago I was notified by Revenue Canada that my support payments for 1995 and 1996 were not tax deductible and I owed over $40,000. As well, my claim for expenses for my contract in Prince George, B.C., was not allowed and exceeded the contract amount.

Finally, an out-of-date support order was registered with family maintenance enforcement program here in B.C., which threatened immediate court action without notice, seizure of my assets, destruction of my credit rating, and seizure of my passport and licence. I know both these agencies are immune from prosecution, and when I phoned all I got was an answering machine.

The effect on my prospects in Prince George was immediate. I was not rehired after April 30.

I've learned that it's impossible for me to have any economic security or fulfil my role as a parent if I'm geographically distant from my children. My 13-year-old son, for example, phones or e-mails me almost every day regarding our plans and activities.

As an ex-nuclear engineer, I have no hope of any kind of professional employment in Victoria, B.C. My choice seems to be contract work at a far distance or welfare. I was once a middle-class professional, and my children had the world before them. I now have claims against me of over $50,000, few clear prospects, no savings, no assets, and I have against me all the resources of Revenue Canada and the Family Maintenance Enforcement Act.

• 1645

The family law industry, I believe, made a very bad decision in allowing my children to move 3,000 miles away and has ignored a subsequent obligation to assist my resettlement as a parent such that I can best provide for my children.

I'd like to say that this presentation was part of my affidavit last Thursday in the Supreme Court of B.C. in Victoria and was read by the judge. I have no way of telling whether that affected the judgment made that day. I did finally, after three years, get a variance from the $3,800 a month in support, which has now bankrupted me. For the first time, the words “travel costs” will be written into the court order, so there was some iterative process that went on there.

The judge did ask me from the bench what my recommendations were and how they were to work. I think it's an interesting situation that I got queried by the Supreme Court judge about this presentation and that here I am now.

This is a little bit disjointed because I'd originally written for six weeks ago and now maybe it's already had a positive effect.

Thank you.

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

Senator Anne Cools: Who was the judge and what was the name of the case?

The Joint Chair (Senator Landon Pearson): Yes, could you put on the record who was the judge last Thursday?

Mr. Peter Ostrowski: It was the Honourable Justice Melvin, and the case was Ostrowski v. Ostrowski, Victoria registry, May 14, 1998.

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

Senator Anne Cools: And his case, too, Madam Chairman?

The Joint Chair (Senator Landon Pearson): And your case, then? Can you give us a number?

Mr. Robert Alan Cottingham: The first custody litigation was in New Westminster. Then it was taken to the Supreme Court in Vancouver. I do have a file number for that.

With the present litigation I was involved with, that was in New Westminster, and I don't think I have that information with me.

The Joint Chair (Senator Landon Pearson): But you can leave it with us?

Mr. Robert Alan Cottingham: Yes, I can leave it.

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

Are there questions? Mr. Forseth.

Mr. Paul Forseth: Thank you for coming today.

On the topic of false allegations, in retrospect, based on what you've been through, what do you think are the incentives in the system or whatever that perhaps would contribute to these allegations being made? Why would a parent make false accusations? That same parent would certainly think that they're a very loving and caring parent and so on, when we know that entering into a whole scenario of false allegations are ultimately quite damaging to the children. Why would a parent enter into that road of false allegations?

Mr. Robert Alan Cottingham: In the first case, with my first wife, it was clearly to just get me out of the picture. I had reached the point, when we separated, where I was having difficulty getting access.

Mr. Paul Forseth: Okay, I'll just cut you off there to say that obviously, then, there must have been a view or a thought or some street talk that if one were to do this kind of thing, it would work and maybe get you out of the picture.

Mr. Robert Alan Cottingham: Yes.

Mr. Paul Forseth: This is what I'm trying to get at—the incentive system around where someone would be prepared to in effect abuse their own children for another agenda, because they might feel it would actually work.

Mr. Robert Alan Cottingham: That's right, and as I mentioned, there is no consequence. In other words, you can make allegations, and even if they only go to a certain point, they will be effective, because financially it's devastating, in that the situation has escalated in terms of what you're having to deal with.

In the second case I was involved in, that was clearly the motive. It was to destroy me financially. It was, you know, “Okay, if custody becomes an issue, then I'll bring in these allegations.” My ex-wife knew what my situation was financially and figured “Well, if I have to call that card”, and that was essentially the purpose of it.

• 1650

Mr. Paul Forseth: So the court never subsequently looked at someone going down that road of committing perjury and the connectedness of how damaging that is to children and perhaps the ability of that parent to really look at children's best interests and be a good parent. That connection was really not made.

Mr. Robert Alan Cottingham: The only time I felt a sense of that—and I've spent many hours in court dealing with the whole situation—was in the original case, when Justice Proudfoot made it very clear in the courtroom by holding up the allegations and essentially saying that if these allegations were false, heads were going to roll.

Other than that, it seemed to be almost subliminal and only brought in when it was to be effective. If we were to deal with access, then the allegations would be brought up and then sort of taken back. Essentially, it was just a tool to.... The judge, of course, when files started getting this high, was not able to digest all the information in one sitting, so it was just an effective tool to cloud the situation.

Then it took going to trial, where finally halfway through the trial it was clear, with all the information and the evidence that was coming forward, what the allegations were about. In other words, it took it to that step, where it had to go to trial. That was the only way it was going to get dealt with.

Mr. Paul Forseth: And the financial costs of that trial.

Mr. Robert Alan Cottingham: Exactly.

Mr. Paul Forseth: Versus if that money was available for the children, for their future education, for their social development.

Mr. Robert Alan Cottingham: Absolutely. At this point I do not have a pension. I'm 50 years old. I do not have a pension as a result of this litigation, and I'm now in debt for the litigation relating to the second case to do with the sexual abuse allegations.

Mr. Paul Forseth: I guess I'm out of time. I'll go to the next round, because I do have further questions.

The Joint Chair (Senator Landon Pearson): Dr. Bennett.

Ms. Carolyn Bennett: Obviously the consequence of false allegations that are indeed proven to be false is something that doesn't seem to happen; it somehow gets lost. What would be your suggestion to the committee as to the appropriate way false allegations should be pursued, or what kind of consequences? What would you do if you were us?

Mr. Robert Alan Cottingham: I don't have any suggestions in terms of what the consequences should be, but I think there has to be a clear message that there will be a consequence. If there are sexual abuse allegations to be made, make them if they're true and if they should be made and so on. But if it comes down to whether this is a tactic that may work to achieve my agenda...if there is a consequence, if there is an awareness that I'm going to pay a price if I get caught, if it's going to be proven that these were false, then I think that's what needs to happen.

Again, I'm not going to say what the consequences should be, but I think obviously there have to be some consequences. But there has to be something at the head of it so it's not just a case of saying let's use this one because this will certainly create havoc in the whole situation.

I guess at one point you can appreciate the emotional effects of having to go through something like this. Quite frankly, at one point I have to say—and maybe it's not very objective—if you can go.... Quite honestly, for allegations like that you can go to jail. So what I'm saying is that if perhaps there's the same consequence.... If you're doing this just to create problems in the whole situation, then perhaps that's a consequence as well.

Interestingly enough, I did actually at one point pursue this with the ministry, because in their bill there was a clause that I interpreted as meaning that if false allegations were made, this would be punishable by a prison term or a $10,000 fine. When I pursued that, wrote a letter—I have given a copy of it to the ministry—and brought it forward, the response I got through my lawyer was that it wasn't incumbent on them to pursue that. In other words, you're on your own: allegations can come forward and they can put you through the wringer and all the rest of it, and that's part of their job, fine, but then if you want to say “These are false and I'm not going to accept this and I want something done about it”, they just say, “Sorry, see you later.” You're put in a very frustrating position when you have to deal with something like this. I think there definitely should be a consequence. If nothing else, it can at least maybe act as a deterrent or lead to an opportunity to “second-think”, using this as a tactic.

• 1655

Not to go on about this, but in my particular case it almost reads like a script for a made-for-TV movie, because after we had been separated for six months my residence was broken into and all the files from the first trial were stolen and delivered to my wife's lawyer. I pursued that with the law society and I must say—different from your experience—I did get satisfaction. They realized this was inappropriate and that these files.... When I was going through all this, it was with my lawyer 10 years previous to this situation, which brought into my mind the question of who made the suggestion to come up with the sexual abuse allegations: was it my wife's lawyer, perhaps, or was it her own idea?

Anyhow, it obviously had no consequences. As soon as this starts to unravel, it's “oh”, and then they don't bring it up again. Meanwhile, my daughter has to go through examinations, psychological testing and the whole bit. I definitely feel there should be some consequences.

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

Senator Raymond Perrault: With respect to your legal costs, how much did it cost you to involve yourself in this series of actions?

Mr. Robert Alan Cottingham: It cost me $150,000.

Senator Raymond Perrault: And the documents that disappeared mysteriously from one office to—

Mr. Robert Alan Cottingham: From my home to my wife's lawyer's.

Senator Raymond Perrault: Was that ever pursued with the—

Mr. Robert Alan Cottingham: With the law society? Yes, and I'll explain that. It got to where the documents were about to be copied and given back to me. My position was that I didn't really care if she had copies of the documents. I just felt that they were mine. They were between me and my lawyer at the time and I wanted them back—

Senator Raymond Perrault: And they should be properly requested and so on.

Mr. Robert Alan Cottingham: Right, but my ex-wife was threatening me, saying that if I kept pushing that way then access would probably become difficult and so on and so forth, so I just backed off. I contacted my original lawyer and he had all the files, so I thought, “Okay, if I ever need them, I have them.” I've taken a position of trying not to engage, because if I do then it just reflects in my own personal sanity and in my children's situation. It's been frustrating, to say the least.

Senator Raymond Perrault: Thanks, Chair.

The Joint Chair (Senator Landon Pearson): Thank you. I'll go back to Mr. Forseth.

Mr. Paul Forseth: I wanted to come back to the other issue that was raised at the table, and that was mobility. We've heard from a number of presenters over the last months about the whole problem of mobility and the law and have received some very good legal briefs that look at the legal precedents and so on, including the whole fuzziness of the law and the ability of superior courts on appeal to deal with this issue.

I am wondering if, from your experience, you could provide some kind of succinct recommendations to us as to whether there is anything we can do with the Divorce Act itself to change the law, to shift things from what seems now to be the predominance of parental rights and wants over the parental duty to meet the needs of children, especially as it relates to the capriciousness of mobility.

Mr. Robert Alan Cottingham: There are a couple of things I suggested at the beginning of my brief. My original version said that a business assessment should be done of where the children are going and whether they will be better off or not. I have done a lot of financial work, and it seems to me that if you are making a decision involving hundreds of thousands of dollars and children's futures, there should be a document on record. That document should show that if they're going to northern B.C., the northern prairies, or rural Quebec or somewhere like that, there's going to be a better environment for the children there, and that includes dental work, schooling, tuition for university, and that sort of thing.

• 1700

That's why I suggested—and I think it was my second point—that first of all there should be an economic assessment: whatever parent is proposing to move away has to present a work-up of material to show that things are better.

In my own case, it got down to an argument between a lawyer in Victoria and a lawyer in Oakville about which was the better community to live in. It was just a lot of nonsense like that.

Mr. Paul Forseth: And what about the child's sense of rootedness, their sense of where they come from, where their friends are, where maybe their extended family is? I can see even a young lad having a sense of connectedness to a particular hockey rink where he started in the very earliest of hockey training and went all the way through to.... That's a sense of community and place. And being uprooted from it.... Because we hear people later in life talking, for example, about their remembrance of the open sky of the prairies where they grew up. For myself, when I'm in Ottawa I miss the mountains of British Columbia. It's a sense of who you are and where you come from.

And if a child at the age of 11 or 12, say, is uprooted.... Certainly they're socially connected with the environment, the community, their friends and their school tradition. It's much more complex than merely looking at whether there might be a better economic opportunity and career fulfilment for a parent. This is what I was getting at: a child's needs versus parental wants.

Mr. Robert Alan Cottingham: That's the very issue that Justice Melvin asked me about from the bench last Thursday. He asked me if economic security is my only criteria. I said, “No, it has to be on balance”, and you'll notice that in my brief I read to you today, I said “on balance”. Certainly these other factors have to be taken on balance, factors like the extended family, the support from the extended family and so on.

I'll tell you one tragic story. When the dust had settled a little bit, I got my youngest son and daughter back last year and drove them to Oakville to visit their old neighbourhood and their old friends. My daughter was 10 years old at that time, so they had sleepovers and so on. She had had no chance for a grieving process after leaving the community she'd known all her life. When I took her to the park she used to play in, I didn't say a thing. She got out of the car, bent down on her knees and kissed the ground.

Mr. Paul Forseth: Yes.

Mr. Robert Alan Cottingham: That's the kind of effect it has.

So I say that these things have to be on balance. Maybe there was a very bad environment where they were and maybe it needs improving. Maybe there is an extended family. In my own case, there was an extended family in metro Toronto and my ex-wife had an extensive extended family in Victoria, B.C. that our children were not familiar with.

My eldest son now travels back to Toronto twice a year, or his friends from Oakville somehow find their way out here. He has told me many times he's very glad he spent that year with me there. He was able to make his connections to the community of his birth and maintain them.

There is tragedy involved, there's no question about it, and it will show up later in their lives.

Mr. Paul Forseth: So what you're saying is that perhaps there's really nothing too specific we can do in amending the Divorce Act itself, other than saying that each situation must be assessed on its individual merits. But you're saying it should be assessed and—

Mr. Robert Alan Cottingham: It should be assessed, and I want to emphasize the support and travel costs in particular, because had I stayed in Toronto, I would have been bankrupt long before now, just from trying to fly back and forth. I had to get a court order every time in order to have my children fly back on Air Canada.

I would certainly amend that. That's an issue that should be in the Divorce Act. There should be paper written up that tells how these costs are going to be paid and it should be a cost responsibility for the parent who is benefiting.

Mr. Paul Forseth: And all of that, of course, is for naught, and the consequent piece of paper is not worth the ink, if there's no back-up mechanism to make it a reality if someone decides to ignore the piece of paper.

Mr. Robert Alan Cottingham: I agree.

Mr. Paul Forseth: Okay. Thank you.

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

Thank you both very much. That was very interesting.

Senator Anne Cools: Just a point, Madam Chair, a sort of technical point: Mr. Cottingham referred to a document that his first wife swore, asserting that she had used false accusations. Is that right?

Mr. Robert Alan Cottingham: Right.

Senator Anne Cools: I wonder, with the leave of the committee, if you could leave a copy of that document with us, please, so we could table it. If we could receive it, then I would ask that it be taken as read into the record.

• 1705

The Joint Chair (Senator Landon Pearson): When we get into this question of read into the record, I'm not sure of the implications of reading it. I know that we take pieces that people bring in as parts of our general record, but reading into it, as Senator Chalifoux—

Senator Thelma Chalifoux: Madam Chairman, I think when it's presented to the committee then it's on record that it has been presented and I don't think it's necessary to read it to the end. I would like to know what relevance this would have on the decision of the committee.

The Joint Chair (Senator Landon Pearson): We will receive it, but then we'll determine exactly what place it has. We'll receive it as part of your brief and your submission.

Thank you very much.

Would the next witnesses please come to the table: from the Vancouver Custody and Access Support and Advocacy Association, Ajax Quinby; from the Ad Hoc Committee on Custody and Access Reform, Susan Boyd; and from YWCA Children Who Witness Abuse Program, Mr. Mark Stevens.

Ms. Boyd, would you please start?

Ms. Susan Boyd (Ad Hoc Committee on Custody and Access Reform): I'm pleased to present to the joint committee on behalf of the Ad Hoc Committee on Custody and Access Reform. I'm a member of this ad hoc committee and I'm also a professor of law at UBC, the University of British Columbia.

I've been very concerned that the voices of women and children have not been adequately heard in child custody law and also in the debate around child custody and access reform. Our brief, which you already have, has tried to address this problem.

Our main argument is that the care and protection of children should be the primary concern of this committee and of laws and policies on custody. However, we argue that the care and protection of children cannot be addressed without looking also at who cares for them. In our society, women still are the primary caregivers of children in most families, both before and after divorce. It is therefore impossible to speak of children's interests without also speaking of women's interests and their well-being and also their continuing inequality in Canadian society.

We recommend that divorce law take the interests of women and children into account more explicitly by focusing on the evidence of actual nurturing of children instead of focusing on impossibly idealized notions about what the best family structure might be after spouses have already decided to separate.

Our brief describes many important realities that we say divorce law should try to take into account. We offer over 30 recommendations. I only have time to make some key points about the care and protection of children here.

First of all, I want to point out that the studies are clear that mothers are still primary caregivers in the vast majority of intact families and also after divorce. Even when mothers are employed outside the home, they spend roughly double the time on child care that employed fathers do. I can refer you to published reports by Statistics Canada, Women in Canada, third edition. Also, British Columbia has a recent publication called Women Count, from 1998. These studies basically show us that the majority of fathers do not yet share child care equally.

The second major point we would like to make is that of course everyone would like to see fathers participate more in raising children and caring for children. The key problem, however, facing this committee and facing society as a whole is how to make this happen. The major impediments to men sharing child care are in fact economic, social, and cultural, not legal. Changing these deeply entrenched impediments to male parenting is extremely difficult, as social science studies have shown. Law, in other words, cannot do it alone.

• 1710

Third, divorce is not the right time to encourage men to share child care. Doing so impedes women's ability to reorganize their lives after family breakdown in order to best care for children.

Divorce laws that have tried to encourage shared parenting post-divorce are highly problematic. Studies of some of the new reforms and jurisdictions such as England and Washington State have begun to show this.

First of all, courts and legal advisers tend to go overboard, insisting on contact, irrespective of factors such as serious violence. I refer you to a study by Carol Smart and Bren Neale in this regard. Too many children are forced to go on harmful, sometimes dangerous, access visits.

Secondly, social science research does not support the presumption that frequent and continuing access to both parents always lies at the core of a child's best interest. I refer you to a recent article by Judith Wallerstein and Tony Tanke here, which I think is cited in the brief of the National Association of Women and the Law.

What these studies have shown is that the amount of contact with the non-custodial parent is not consistently related to a child's adjustment. Rather, the child's adjustment is related to the psychological adjustment of the custodial parent, usually the primary caregiver, the mother.

What these studies indicate is that legislation should focus on protecting the stability and integrity of the new post-divorce family unit. In other words, divorce laws should help the primary caregivers of children to provide continuity of care and security for those children as best they can by recognizing the problems they may encounter—for example, economic difficulties, lack of access to legal advice, abuse, and so on. All of these problems are outlined in our brief in more detail.

Our recommendations suggest that all laws, policies, and practices should follow the objective of making the care and protection of children a primary concern. For example, we suggest that presumptions in relation to custody be enacted that are based on demonstrated care for children. We also suggest that presumptions should deal with the unfortunate reality of gender violence against women and children in Canadian society so that children are not placed in the custody or even the temporary care of abusers. We also suggest that there be no assumption built into the law that the best interests of the child are always served by shared parenting.

What children need is that their primary caregivers, usually their mothers, are safe and supported in their caregiving work. The Divorce Act needs to recognize the continuing unfortunate facts of gender-based realities, systemic discrimination, and violence against women in Canadian society.

We're also concerned that if these issues are dealt with only as exceptions to general rules within the Divorce Act, rather than as central concerns in our society, women and children will fall through the cracks. Through our work, we've seen that laws, policies, and practices can fail despite the fact that they are often introduced with the best of intentions. And they fail because of interpretations that are based on misconceptions and biases.

We argue that the Divorce Act must therefore have a mandate to clearly inform and educate the judiciary, mediators, assessors, lawyers, and parents about the gendered realities and difficulties of caregiving for children.

Thank you very much.

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

Next is Ms. Quinby.

Ms. Ajax Quinby (Vancouver Custody and Access Support and Advocacy Association): Members of the committee, I am here to represent hundreds of women who have told me of the pain and agony they and their children have experienced as a result of court decisions.

Since 1989 I have been co-facilitating a support group for women who are having problems with custody and access. I started to work with battered women in 1974 in a first-stage transition house, and in 1981 moved to the YWCA Monroe House, the first second-stage house in Canada.

It was just after I started at Monroe House that the children of a family I'd worked with in the first house were murdered by their father. The abuse that had gone on in that family was horrendous. I had called the child abuse team to make sure that the children got help for the ordeal they'd been through. How did this father, who was obviously mentally unstable and extremely violent, get access to these children?

When I talked with the mother later, I found that the court officials had ignored her fear of him because of his past behaviour; had ignored the fear of the children, who had said that their mother was not to worry, they knew places to hide to get away from his anger; and ignored things like him breaking into her house.

• 1715

They had in fact scoffed at her to her face and told her she would just have to get used to his behaviour. I called the coroner later, but none of the court officials who were involved in making sure he had access to these children were asked to justify their stand. The mother was not even asked to testify.

I said to the coroner that this was an extreme example of the mistreatment that children and women go through when abusive men get access to children.

This incident focused for me the concerns that I had been having because of what I saw at Monroe House and because I have had contact with families over many years. Abusive men were going to the court to continue to abuse women for years after their marriage had broken up.

It is important for you to remember how we as a society became concerned about violence against women. Until the 1970s there was no recognition in social services or in the courts of the enormous number of women who had been assaulted in their homes. To the professionals in the social services it was not even an issue; it was not addressed in the training they had in their schools.

Here in Vancouver a women's information centre had women and children coming to them beaten and afraid. The staff at this centre saw the need for a place for these women and children to stay so they could start a new life away from the violence of their partners. We learned from what women told us, from what we saw, and some of the effects we saw in the children.

Women's advocates started transition houses. It is very important for you to remember this when you hear women talk to you here. We are not a special interest group. We are the people who first saw and did something about violence against women. We are the women who lobbied to have laws and policies changed to protect women. We are right there, at the front line, just as we were 30 years ago, bringing to the attention of the authorities any situations, policies, or patterns that make it hard for women to stay safe from abuse.

We know from experience that most court officials and so-called experts know very little about violence against women and the patterns of behaviour of violent men. They cling to outmoded theories that come from a past that did not see violence and from theorists who have very little experience with the reality of abuse. I wonder which of these so-called experts or court officials, in a practical test of their theories, would like their children to visit someone with a violent and abusive past.

Where but in the civil court system do victims of assault and abuse get sentenced to spend time with the person who assaulted them? In the past 30 years the reality of violence against women has been revealed, but there has been a backlash from violent fathers. Do not believe them. They use any means they can to continue to abuse and control their wives. Do not give them more ways to do it. We realize that a good father supports and nurtures the relationship between the mother and child. A good father role models respect for the mother of the children. A good legislation also role models respect for mothers in a society where we know that women and children are the victims of violence and abuse.

We as a society have told women they must leave abusive situations because it's bad for them and their children. This is often why women leave, not for themselves but for their children. And when they come to me and my group, they cannot believe that the system that told them to leave for the sake of the children now ignores the abuse and lets the father have his way.

They feel betrayed. They are betrayed. I urge this committee to act, to not ignore violence against women in its many forms. Do not betray women and children.

Thank you.

Voices: Hear, hear!

The Joint Chair (Senator Landon Pearson): This is a parliamentary hearing and there is to be no applause or comments from the audience, please.

Mr. Stevens.

Mr. Mark Stevens (Coordinator, Children Who Witness Abuse Program): Thank you.

My name is Mark Stevens. I am pleased to be here today on behalf of the YWCA of Vancouver, representing our Children Who Witness Abuse Program. In this service we provide one-to-one counselling in a structured group program for children between the ages of 4 and 19, all from homes where their father was abusive.

We feel that the direction our court system is taking in dealing with custody and access disputes involving abuse puts children at risk and exposes them on an ongoing basis to potentially dangerous situations.

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The Divorce Act expresses an interest in being child-centred or child-focused, but our fear is that the subsequent court decisions based upon it may actually do more harm than good to children. Our first priority must be to keep these children safe and to protect them from further harm. I must stress that, in this report, the YWCA's concerns are drawn from our experience with these families. There are many fathers who provide admirable care and parenting for their children and who do take into consideration the best interests of their children. However, our focus is on the needs of our clientele: children raised by men who have chosen to batter.

Through the use of physical and emotional violence upon their partners, these men have caused tremendous emotional damage and trauma to their children. At the time of parental separation, when custody and access arrangements become an issue, the question is frequently asked as to whether the battering father has also physically assaulted the children. If in fact he has not, a subsequent decision that he may still be a fit parent and deserving of unsupervised access ignores the fact that in assaulting their mother, he has consciously or not abused his children. Witnessing the abuse of their mother and being raised in a home where assaults occur has a profoundly detrimental effect on a child's well-being and emotional and cognitive development. Their self-image and behaviour are all adversely affected by the abuse of their mothers.

The children in our program can generally be divided not into those who themselves have been assaulted and those who have not, but into those who are having regular visitations with an abusive father and those who are having no such contact.

The children who are having such regular access generally present more difficulties in the group. They tend to minimize the violence they have witnessed or avoid any discussion of it. They appear more uncomfortable with talking about emotions, except when they are discussing anger, when they can become very agitated and verbose, often presenting detailed and lucid fantasies of violence and vengeance. They tend to be more disruptive and skeptical of the group and often discourage other members from talking openly or focusing on the content at hand. It's extremely difficult for these children to talk about the reality of abuse while they are still living in it.

The children who are not having contact with the assaultive parent are generally much more open to discussing their experiences, fears, and emotions other than just anger. They show more interest and enthusiasm in exploring positive ways of expressing their feelings and in resolving conflicts. They tend to be more supportive and respectful of the other group members and generally have a more optimistic outlook on their future.

There is, of course, a third group of children whose welfare concerns us greatly. These are children whose fathers were abusive and now the parents have joint custody. In such cases, the father can veto and refuse any services or counselling for his children. I have witnessed the anguish of mothers whereby they, along with teachers, friends, and even family physicians, are very concerned with the children's behaviours and their emotional states. They are convinced that the father is abusing them during his access but they are unable to get any help for the children.

In our society, we assume that we should take such concerns to a child protection agency—in British Columbia it's the Ministry for Children and Families—and that they will hopefully ensure the children's safety.

In my work at the YWCA, I have witnessed how this is not always the case. Our program has recently involved one family where the children have repeatedly reported physical and emotional abuses by their father during their stays with him. There were allegations that were even substantiated by physical evidence, such as bruising. These disclosures were taken to the Ministry for Children and Families and to the RCMP. The response was one of extreme concern and interest until it was learned that the case involved a custody dispute.

At this point, the perception of the disclosures appeared to shift dramatically. When a custody order had been granted specifying regular and unsupervised access with the father, there was a reluctance to act against it or to become involved in seriously investigating these disclosures. With this reluctance, there seemed to be a belief that if there were abuse concerns here, the judge would not have awarded access, custody, or unsupervised visitation. The court order mandating access automatically served as a sort of seal of approval for the father's parenting ability, and the disclosures of abuse and the concern from the mother seemed to become suspect as they were seen only within the context of the custody dispute as a strategy or a manipulation. This reinforces how the initial custody and access ruling is crucial in determining the future safety of the child.

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The pervasiveness of wife assault and child abuse in our society must be considered as part of every decision, and reports of abuse issues in a case must be very carefully assessed. The difficulty is that our current Divorce Act does not reflect our society's reality of violence by men against women and children. Indeed, its preferences for joint custody, maximum contact, and the “friendly parent” clause can actually lead judges in the opposite direction, guiding the children back toward their alleged abuser.

The YWCA of Vancouver has read and does support the recommendations for reform submitted to you by the Ad Hoc Committee on Custody and Access Reform here in Vancouver. These comprehensive and carefully prepared recommendations are excellent examples of how changes to the Divorce Act could greatly assist us in protecting the families we serve and help it to truly reflect the best interests of the children.

Thank you.

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

Senator Thelma Chalifoux: Thank you very much for your interesting presentation.

I would like to know this: do you have any percentages of the children and mothers you serve compared to that of the general population of separated parents?

A witness: I don't deal in percentages. I think earlier you heard lots of percentages. Someone said 17% of all cases—

Senator Thelma Chalifoux: How many cases do you serve in a month?

A witness: We're a second-stage house, so we have women who stay with us for a long time. Right now, we have nine residents. I would say that there are custody and access concerns in at least seven of those cases.

Senator Thelma Chalifoux: Do you find in your work with your second-stage housing that there are fathers who are truly interested in their children and their well-being or is it all just straight abusive relationships?

A witness: I don't see fathers who are truly interested in the children. There are very many ways in which they're interested in the children that I wouldn't consider healthy. For example, say you're in a relationship and your wife leaves you. She goes to a transition house. How do you find her and continue to abuse her? Now it's getting easier and easier and sooner and sooner that the courts will give access to the father to the children. Then, when he sees the children, he can follow her. He can assault her. He can scream and yell at her. He can do all the things he did before.

As well, what he can do is when he doesn't have his wife to criticize—this is, as we heard before from Dr. Dutton, one of the things that's done a lot—he will do it through the children. The children are asked questions such as: Who's your mother sleeping with? What she's doing? How's she spending your money? He'll say that he hates their mother.

There are also the kinds of fathers who use the children as emotional crutches, and they're very dangerous. These are men who were very obsessed with their wives and controlled her really a lot. Often afterwards, they become obsessed with the child. They present as really good fathers and very interested and obsessed, but actually, they are using those children as their whole social network, and that can lead also to sexual abuse. They present very well and they look good.

Senator Thelma Chalifoux: Do you not agree, though, that there are women who do exactly the same thing? I'm a single parent. I was a single parent when it wasn't popular to be a single parent, and I raised my children. So I know of where you're coming from with violent situations and things like that, but you appear to be lumping everybody in the same category. That's what I'm asking you.

We're a parliamentary committee. We have to make recommendations to this custody and access issue, but do we just take one side? How do you feel about this? Are we to take and condemn every man or every woman for the situations of a few? Do you agree that we should generalize or what?

A witness: I think we know that violence against women is very pervasive in this society and assaults are mainly perpetrated by men. Therefore, you have to take into consideration when you're looking at this legislation the violence against women and children in society. You hear about it all the time in the news. You hear about it all the time when there are pornography rings where child pornography comes up.

It's not something we don't know about or that it's not pervasive.

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Senator Thelma Chalifoux: So what you're saying then is that this committee should only take into consideration the violence against women and not also consider the non-custodial parent's situation. You're saying we should just consider the violence against women, not the best interests of the whole family.

A witness: The best interests of the whole family are that the woman be protected and that her children be protected from violence. That is the best interests for the child, that the mother is protected.

Senator Thelma Chalifoux: All right.

What happens in the situation then when, with all the protection the mother has, she still goes back and there's a tragedy? Should we not consider that when we're assessing this act?

A witness: I don't really understand that question.

Often we say women try very hard to leave a situation, but we know from our work that there are very many barriers to women leaving. There is the family, her family or his family, that says to her, oh, go back and try it again. There are the institutions; living on welfare when you've lived somewhere else is really difficult. Sometimes there are all kinds of things like that.

There's the court system itself. I have heard women say, maybe I should have stayed with my husband, because when he has access to the children I am not there to protect them. Often women have put their own bodies between those children. There are very many reasons why women go back to the situation.

I also urge you to think about yourselves sleeping at night thinking any moment somebody could come through the door and kill you. It is often better to go back to the situation. At least you have some control there.

So we are not really protecting women.

Senator Thelma Chalifoux: So your recommendation is that we should only consider that aspect when we're reviewing this legislation.

A witness: I would endorse the ad hoc committee's recommendation that there is a preamble that informs people in the court about violence against women and children. What I see in court is often the court officials, the judges and the people who are the so-called experts, do not have any real training or understanding of the lengths to which these men will go to gain control and access to their wife and child.

Senator Thelma Chalifoux: Earlier this morning we heard a presentation about having a mediation with community people and family members. Would you consider that as a recommendation also?

A witness: Absolutely not. I think mediation is extremely dangerous. The people who do the mediation are not trained around violence against women.

The idea of mediation is to come to an agreement; it is not to protect women and children. Women are often very likely to agree to things because of how they have been socialized, and they are at a disadvantage with mediation.

I don't think mediators are trained to pick up the kinds of signals that can go around when someone has been abusive for years to someone else.

Senator Thelma Chalifoux: Okay, thank you very much.

A witness: You're welcome.

A witness: Can I elaborate on the answer to your question? There has been some reference to the ad hoc committee's recommendations.

The way I was thinking as you were asking your questions, ultimately decisions around custody and access will also be to some degree case by case and fact-driven. So I think there's always going to be some room for assessing the particularities of each family's situation.

What I think we're really arguing for, certainly in this brief I'm speaking to, is some principles that should be made more explicit, for example, in a preamble to a divorce act, to guide the discretion of judges, mediators, assessors, and so on, to remind them of the overall trend, which Ajax has been addressing in her presentation.

So I'm not sure it's necessary to think of it absolutely as an either/or situation, but I think it's important to take account of the societal trends that have been documented.

Senator Thelma Chalifoux: Okay, thank you very much.

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

Mr. Paul Forseth: Thank you very much.

There were some comments made today and at other times when we've had testimony in Ottawa or elsewhere...any comment that relates to this committee as a whole, that this committee would ignore the plight of victim-mothers. I find that view incredible and absolutely unacceptable. It's basically a very uninformed view.

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In this committee, we're looking at the law that so many both mothers and fathers say doesn't help them, and that the law is part of the problem. I wanted to give you the opportunity to be very focused and try to answer how we can stop the court system itself from becoming used by abusers to continue their ways. This was mentioned, I think, by yourselves.

We've heard this morning from some fathers who say they were abused by the system. What about mothers who are abused by the system? What can we do to improve it, to thereby better be the advocate for victims and certainly help children? That's what everybody who comes before this committee says. In the almost 30 sessions we've held, everyone says they want to help children.

I'll provide you with the opportunity, from your particular perspective, to suggest what we can do to the law and the legal system to prevent the system from becoming part of any cycle of abuse.

Mr. Mark Stevens: I'll respond again in reference to the Ad Hoc Committee brief and their recommendations. I feel really strongly that there needs to be a context for some of the things that are in the Divorce Act now, such as the preference that is shown for maximum contact when possible. There needs to be a preamble that will accept the fact that maximum contact with a man who is proven to be abusive is not in the child's best interest. Joint custody, likewise, is not—

Mr. Paul Forseth: And you would grant the very same when a mother has proven to be abusive?

Mr. Mark Stevens: Theoretically, yes, but sir, I've yet to meet one.

I could talk about the children I've had in my group and the disclosures I have heard in addition to my work with the children who, in this abuse program....

I worked for many years as what is called the special services worker in Vancouver, where I would contract with social workers. Part of that job is to basically be the eyes and the ears of the social worker, working with families where there are protection concerns, and where the children are described as being at risk of apprehension. In those cases very often there were abuse concerns. I have had a lot of disclosures from children of abuse, and I have yet to have a disclosure of physical abuse by a mother.

In our groups we spend several sessions talking about all the different forms of abuse, and I have had exactly one child in all that time who has said, “My mother hits me. Can you make it stop?” When I questioned him very closely about that, I said, “What about any other form of abuse?” I got him to be very, very graphic and very detailed about exactly what he was describing. He described how his mother, when she got really upset, would bend him over her lap and strike him on the buttocks, through his clothing with her open hand. Whatever your views are on corporal punishment, that is not considered child abuse in our society. That's the closest I've heard.

Mr. Paul Forseth: That's getting into the child welfare system and assessing children at risk, and that's kind of a whole different subject. We had—what is it—a judge in a royal commission here in the province looking at the inability of our provincial system to protect children, and deaths and so on that have ensued.

But let's get back to the Divorce Act in looking at the system of the family court in dissolving families. We just heard from some fathers who, by their testimony, say they were abused by the system. I would think there are probably mothers who are abused by the system as well. Based on that, what can we do to the system? Perhaps we can also address the legal context. Maybe you have some comments on that.

A witness: I'll perhaps take that first. As I said, we do have a number of very detailed recommendations, and I won't go through them all here. Certainly one of them is that when there is abuse that is shown to have occurred on the part of a parent, that maximum contact absolutely not be a principle that is applied. This type of recommendation is actually cropping up in a number of reports, both Canadian and from other international jurisdictions, so I think that's becoming a standard sort of recommendation.

In addition to specific types of things like that, which could be written into the Divorce Act, a strong recommendation we would make is that we still need far more education of the general public, but also of experts in the field such as assessors, judges, lawyers, mediators, and so on, about the complexities of abuse and how it plays out in the context of custody and access, because I think we all still have a great deal to learn about the implications and how the legal system ends up being employed to the abusers' ends all too often.

• 1740

That's not particularly a legal recommendation, but I think in the context of a system being only as good as the people who are making the decisions and basically facilitating the breakup of families, we need to strongly recommend good education of all those professionals.

Mr. Paul Forseth: Thank you.

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

Senator Cools.

Senator Anne Cools: Thank you, Madam Chair.

I'd like to thank the witnesses for coming before us. I have a couple of questions, and anybody can go at them as they see fit.

The first question is perhaps to the gentleman who has told us he is concerned about the direction the courts are taking in exposing children to violence. First, I wonder if he could tell us what direction that is. Secondly, he has said that child protection services don't take very seriously reports of children that they're facing abuse. That is, first, the courts are supporting abuse; and secondly, the child protection people aren't protecting children. I wonder if you could comment on that.

Thirdly, he talked about the court preference for joint custody. What court preference is that? All the data we have says something very different.

Fourthly, perhaps someone could explain the difference between what most researchers call common violence and lethal violence.

The next question is, the witnesses have suggested that the courts, the judges, the mediators, the police, and the experts don't know much about domestic violence and are not trained in domestic violence. Perhaps the witnesses could tell us who is.

Finally, on the issue of the Divorce Act, which, as we know, is not an instrument of what we would call the penal code, I wonder why the lawyers' recommendations about violence, especially criminal violence, want to seek a home in the Divorce Act and not in the Criminal Code of Canada.

You can go at all of those questions as you see fit. Then I have one more, and perhaps I can put it out as we go on.

The gentleman says he has never encountered a child who was abused by its mother. I would suggest to the gentleman that all the evidence for generations points in an opposite direction from his conclusion. Whether it's Gelles, Zalba, David Gil, Ralph Weisheit, or Canada's own Cyril Greenland, all the evidence points to most child abuse being by mothers.

Mr. Mark Stevens: I'd like to address that first, if I may, Senator, as I'm not a lawyer.

Senator Anne Cools: I'm asking all of you to respond. A lot of this information is on the record, but you can go right ahead.

Mr. Mark Stevens: Okay, on your last point first, because that's the one I feel—

Senator Anne Cools: You can all go at it, but you can begin. I put out a series of questions because I'm very interested in dialogue about domestic violence.

Domestic violence and violence between intimates has to be one of the most terrible areas of human relationships. I think it is something that causes us great pain, and it is something that deeply concerns the committee as a whole. When you talk about children who are ignored and neglected or sacrificed by systems, I want you to know it strikes a very sensitive chord—

Mr. Mark Stevens: Well, it should.

Senator Anne Cools: —in the people here. Go right ahead. I'm quite prepared to dialogue these issues.

Mr. Mark Stevens: Okay. I was here for part of the proceedings on April 27, and Senator, I heard you also make reference then to the overwhelming majority of abuse against children being perpetrated by the mothers. I haven't seen the actual statistics that you were quoting from. You did make reference to one; I believe it was in Ontario, but I'm not totally sure.

Senator Anne Cools: I just tell you that the great experts across the continent, in the U.S. and in Canada.... Do you know the experts, the great scholars on child abuse? Does the name David Gil mean anything to you? Do names like Pollock, and Bennie and Sclare mean anything to you?

• 1745

Mr. Mark Stevens: I'm familiar with some of them, Senator. I'm also very familiar with the work of Peter Jaffe. Is his work familiar to you?

Senator Anne Cools: Very familiar.

Mr. Mark Stevens: Good, I'm glad to hear that.

Senator Anne Cools: But his work is not on your subject matter exactly. It's on the witnessing.

Mr. Mark Stevens: Senator, as part of my answer I will say that I believe very strongly, as does Peter Jaffe, that witnessing the battering of the mother can be as or more damaging to a child's well-being than actual physical assault. I work with those children all the time and I see the effects of that.

Senator Anne Cools: Nobody is disputing that witnessing violence is not a terrible experience for a child. It is a terrible experience for a child. But my question to you concerned the actual receiving, the reception of violence itself. I asked you about that because you said you had never heard of that.

Violence is so horrific. I've worked in the field and I've taken children away myself.

Mr. Mark Stevens: Then you and I have that in common, Senator.

Senator Anne Cools: Exactly.

Mr. Mark Stevens: But I will stress that I don't see much of a difference between forcing a child to witness the abuse of the mother.... Some of the children I have worked with have been awakened at two o'clock in the morning when dad says “Come in here, I want you to see this”, and then proceeds to beat the mother repeatedly in front of the children. I see that as being much more damaging to a child's psyche, well-being, and their entire future than being slapped across the face.

I remember being slapped across the face in grade one by a nun at my Catholic school. It hurt but it hasn't scarred me. There you go.

Senator Anne Cools: Right. So you have encountered that once?

Mr. Mark Stevens: Yes, once in my own life, Senator.

Senator Anne Cools: Okay.

Mr. Mark Stevens: But I don't feel that it has scarred me, at least not to anywhere near the same extent as the children I am working with.

Senator Anne Cools: Absolutely. Let me tell you something. Delinquency is never to be supported.

Anyway, let me put the major study on the record. Chairman, perhaps we're going to have to start putting witnesses under oath to get the truth.

Voices: Oh, oh!

The Joint Chair (Senator Landon Pearson): Quiet, please.

Senator Cools, you've asked your questions but you haven't let them answer.

Senator Anne Cools: Chairman, with your indulgence—

The Joint Chair (Senator Landon Pearson): We respectfully ask you do this very quietly.

Senator Anne Cools: —I was having an exchange, which I deserve with your indulgence.

Mr. Mark Stevens: Senator, I hope you weren't directing that at me. I really resent the implication that I'm lying to you, if that's what you're saying.

The Joint Chair (Senator Landon Pearson): Can we please move on to answering some of the questions that Senator Cools posed?

A witness: I can try to address questions one and three, the first question being what direction is the system taking to children exposed to abuse, and the third one being what is the evidence that there is an increasing court preference for joint custody.

The literature we have cited in our brief, including an article by Dawn Bourque, has shown that the courts, and I think society as a whole, have increasingly over the past decade or so felt the need to emphasize maximum contact with both parents after a family breakdown. This in some sense is a version of a joint custody preference. Even if it's not written into the law legally, in Canada we do not have any sort of presumption in favour of joint custody. I think the studies are showing that ideologically there has been an increased emphasis on this kind of maximum contact. As a shorthand, I think we can call it joint custody. That has taken the form of increasingly eroding the types of legal rights that custodial parents have. So access parents have somewhat more rights, although not necessarily responsibilities. That will depend on individual circumstances.

As I understood the point Mark made earlier, the direction the system is taking to enhance maximum contact—which sounds very laudable on the face of it, and in many circumstances might be—can have the very unfortunate effect of making various experts in the field, including judges, assessors, and mediators, not as able or willing to recognize indicators of abuse, and to put systems in place to make sure children are not as exposed to abuse.

• 1750

So in my mind I see the two trends fitting together. The concern for maximum contact may sometimes mean that people working in the field of custody and access are not taking sufficient precautions to ensure that we err on the side of safety of children.

I hope I'm not misinterpreting your comments, Mark, but that's the way I see the literature in this field.

In terms of statistics, you're quite right, joint custody orders are a minority of all custody orders in Canada, but they have been very much on the rise. Nationally, I think 20% of cases are decided by courts, that is, where there's a court order and a joint custody order made. That is exponentially higher than we had a decade or so ago.

Senator Anne Cools: Chairman, perhaps our researcher could clarify, but my understanding is that joint custody orders are in the vicinity of 12%.

Chairman, perhaps he can—

A voice: Those are the numbers we've been—

Senator Anne Cools: Just a minor point.

A witness: I will send a letter to the committee afterwards. I believe it's a bit higher than that.

Senator Anne Cools: Our information—

The Joint Chair (Senator Landon Pearson): Senator Cools, we only have 10 minutes left with this group and there are a couple of other questioners. Do you want to finish a bit more of that or come back to it?

Senator Anne Cools: Absolutely. I was just making the point that our docket, which comes from the Department of Justice, tells us that the number of joint custody orders is 12%. If it's more, I would love to hear that, because I think it's important.

I'll be happy to pass.

The Joint Chair (Senator Landon Pearson): Okay, and we could come back.

Dr. Bennett.

Ms. Carolyn Bennett: Your table of contents goes up to page 33, but I only seem to have 15 pages.

A witness: Oh, dear. Well, I have 32. Anyway, I can provide you with this—

Ms. Carolyn Bennett: In the executive summary there are things that are said to be discussed that I couldn't find. Maybe that's just—

A witness: There are supposed to be 32 pages. I apologize for—

Ms. Carolyn Bennett: Okay.

In your executive summary it said you would discuss trends to promote alternative dispute resolution, parent education programs, and the cutbacks to legal aid. I think we have discussed the alternative dispute resolution and the cutbacks to legal aid in terms of everybody having access. But could you fill me in on the role of parent education programs or this new approach in Ontario and Quebec where there's a video that people need to see in terms of the array of choices they might have before they file their papers for divorce?

A witness: As I understand it, the concerns that are coming out of the community here that I've been working with are that any kind of dispute resolution mechanism—mediation, litigation, negotiation, whatever—ought to be entered into completely voluntarily. That's absolutely essential in mediation in order for the objective of mediation to work.

There's concern that there's a bias inherent in many of those parental education programs in favour of dispute resolution mechanisms outside of litigation. The concern is that whereas the benefits of mediation may be outlined in many of those parental education programs, it's not necessarily the case that the potential negatives of mediation or problems that may arise with it for children and/or for parents are outlined. I believe that's—

Ms. Carolyn Bennett: I think those concerns are valid. I think in the video we saw we felt there was huge merit in educating parents in terms of the putdown and the kinds of things that are bad for kids and the language that is used in terms of seeing one another. There seemed to be huge benefits in parents looking themselves in the mirror in the way they're dealing with one another through the perspective of the child—in that third-party way of looking at a film and seeing and hearing yourself when the language that is used seems beneficial. I hope your concerns will be addressed in terms of any future kinds of education programs to make sure you didn't feel that people were being sent down another path.

• 1755

I do agree with the preamble and I agree that there will have to be some triage in sorting our the ones that have violence. If we looked at the other ones.... I have concerns that if we took some of the realities that you articulate here to their logical conclusion, it would always be easier for the custodial parent to just not have to deal with this other thing. I just want to make sure that we make sure there is some recognition that some time with the other parent most of the time is a good thing—if you take out those ones with abuse.

A witness: I don't think we're saying they should never see the other parent. Of course not. In most marriages, when they dissolve, the best interests of the children are involved and the parents are able to work that out. What we are talking about are these situations where there is violence.

Ms. Carolyn Bennett: Okay.

What I have felt from the women's groups is that the violence piece is being well articulated, but that the breakdown of marriages without violence—the women's side of the story really isn't being articulated at all. The barriers to fairness...we have had some poignant stories. I also think that denial of access, because of the whole set-up of winning and losing and having to show that you are a winner or not a loser, that whole dynamic—we really need some help with what we do there.

A witness: When women go into the court system and they are from an abusive situation, they are looking for protection.

Ms. Carolyn Bennett: No, no—

A witness: They are looking for protection, and often they are amazed at what happens to them. In the court system they are treated like they are vindictive bitches. They are amazed at that because they went in there for protection. I think that is really important. In my group the women will often say, he is saying all these horrible things about me, and some of them even need to be prompted to say, I am a good person, I am a good parent, to balance that off.

In our brief—the CASAA brief—I talk about what a good father would do, because I think that is overlooked. Instead of saying what does this abusive father do that is a little bit good so that we can give him more access, let's start looking at what good fathers do. Good fathers do not bad-mouth their exs. They respect the mother. And there are lots of relationships that break up where that happens.

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

Mr. Mark Stevens: To quickly respond to that, I think every one in this room, if we are honest, knows at least one father within our extended family, our circle of friends, or our co-workers, who is not getting the access he should be getting—one good father who is not being allowed to be a good father. I think we all agree that is wrong, and if he is nurturing and caring and what we expect in a good parent, then he should be allowed to continue in that role. I acknowledge that and mention it in my brief, but what concerns me, not just here today but through a lot of the give and take that has gone on for years between feminists and the fathers' rights movement, is that I do not hear an acknowledgement from the fathers' rights side that there are some fathers who should not have contact, some fathers who aren't fit parents.

• 1800

When I was in here observing on April 27, I heard discussion about the alienated fathers syndrome. I certainly can see the validity of that in some cases, but I hear no discussion of the fathers who have chosen to alienate themselves through their behaviour, and I really wish I could hear that acknowledgement from the other side. I could take them much more seriously if I did.

The Joint Chair (Senator Landon Pearson): I think Senator Perrault has a question.

A witness: I have a brief addendum to these comments. I think the Ad Hoc Committee brief does deal with some of the women's issues that are not exactly linked to violence and abuse, although we covered that as well. I'll recall for you my comments about primary caregiving. Unfortunately, we still have a society that is gendered in the family context and the roles that mothers and fathers tend to play.

It is not always true, but in terms of trends it is still true that women carry the brunt of that work. Courts have almost become nervous about recognizing that fact, because we're supposed to be an equal society now, and it's become a very complicated thing for judges to figure out how to acknowledge that fathers and mothers might have had a somewhat different role to play and then to think that through in terms of a custody or access award when that family breaks down. So I think that's a wider issue than the abuse-violence situations per se.

The other thing I'd say about access is that the few studies we have on access denial in Canada show that it is not a hugely prevalent problem. I'm referring to some of the Department of Justice work that was done by sociologist James Richardson in the late 1980s. Most custodial mothers actually wanted the fathers to be exercising access more. They were concerned that access wasn't being exercised. There is that minority of cases that has been referred to, but it seems as though it's a small minority, so I think we need to keep the problems in some kind of context.

The Joint Chair (Senator Landon Pearson): Senator Perrault for the last question.

Senator Raymond Perrault: Chair, we've heard some very interesting and moving testimony today. It seems to me that good people are suffering on all sides of this question of divorce and separation and custody and all that goes with it. There's no question that there are some people who have been emotionally damaged regardless of their gender.

Earlier we heard one of the leading lawyers on family law. He deplores the incidence of marriage breakdown in Canada. He doesn't think the courts are doing a good job. He said many things. He talked in terms of improving mediation services and all the rest.

We do know that from coast to coast in Canada there is increasing concern about the violence in society and the violent crimes that may be rooted in the way young people are raised—in the houses where there was violence and all sorts of extremes.

If you were minister of justice for a day, what would be your starting point to introduce measures that would reduce the violence in society? What do you think we should do first? Is it the strength in mediation services? Perhaps the violence in society at least in part arises from the frustration engendered by a court system jammed with cases, not enough people to help resolve the problems to do the kind of work that you've been involved in. Is it just general frustration that causes people not only to create violence in their homes but to continue it after the marriage has broken up?

• 1805

What do you think?

A witness: As I said in my presentation, a lot of women leave a violent home because they are concerned about their children. They often are put down so much by their husbands that they don't think a lot about themselves, but when they see the effect of the violence on the children, then they decide to make the choice to leave. They've tried for many years to make their relationship work and they've worked on all of these things about it, and then they decide to leave, and do you know what I see? I see the system stepping into the wife's role and saying, “Well, we'll give him another chance. Let's look after him. Oh, he has a terrible—”

Senator Raymond Perrault: Well, what should be done then?

A witness: We should protect the women and children who leave so they don't have to be exposed to more violence.

Senator Raymond Perrault: But surely it has to go beyond protecting people. Isn't there an earlier stage where we can cut down on violence in the first place and have a situation where they decide not to leave and the situation at least holds out some hope for them?

A witness: When they leave, I don't think there is any hope. I think they have tried and tried and tried. No woman leaves her relationship lightly. She leaves it after she's seen the problems it's causing for her children. She wants to make a healthy and peaceful home for those children. It's really important to protect her decision to do that.

Senator Raymond Perrault: And yet we have a society in which they've now formed a men's organization to protect men against female violence. We're hearing all sorts of exotic things happening out there. Perhaps the media are just doing a better reporting job than they used to, but you have a group of men who've formed an alliance because they're regularly subjected to physical abuse by women.

There are good people all around the argument; there isn't any one simplistic solution. Do you have any suggestions as to what we might do in Parliament, how we can change the law or ensure better mediation services, to protect society from these things before they even occur?

Mr. Mark Stevens: Regarding mediation particularly, sir, long before I did this work, I worked in a sawmill—I was a shop steward—and I know mediation in its place is a very valuable tool and a very useful process. But mediation, as I understand it, always comes from the assumption that the two parties are on equal footing. That is the crux of the problem when you try to introduce mediation into an abusive relationship, because these people are not and have never been on an equal footing. And it is not in the abuser's interest.

Senator Raymond Perrault: You see no role for mediation at all in this? My gosh, we're at a point in society where we'd better start worrying; that's all I can say. If you can't sit down and try to achieve an agreement, then we have a very serious problem, don't we?

Mr. Mark Stevens: Yes.

Senator Raymond Perrault: There's no hope.

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

We've come to the end of the hour. Thank you very much for your presentation. We'll take just a minute while Mr. Gallaway and I change hats and we bring up the next group.

• 1808

• 1809

The Joint Chair (Mr. Roger Gallaway): I'd like to remind people who are here today that this is a proceeding of Parliament and we must insist that you be quiet. We cannot have outbursts or outbreaks of opinion, either by clapping or by other noises.

We have in this panel, from the Yew Transition House, Sheryl Burns, who's a women's counsellor; Ms. Fatima Jaffer, who's an information coordinator with the Battered Women's Support Services; and I believe with her is Veenu Saini, who is the legal advocacy program coordinator. We also have, from the Kamloops Women's Resource Centre, Sheila Smith, coordinator; and as individuals, Georgina Taylor and Marie Abdelmalik.

• 1810

We'll start with Ms. Burns from the Yew Transition House.

Ms. Sheila Smith (Coordinator, Kamloops Women's Resource Centre): I asked to speak first, if I may.

The Joint Chair (Mr. Roger Gallaway): I wasn't aware of that. Okay. We'll have Ms. Smith then.

Ms. Sheila Smith: I'm coordinator of the Kamloops Women's Resource Centre and I've been in that position for the past three years. I'm a professional social worker and am married with two teenage children. I have not been personally involved in an abusive relationship, marriage breakup, or custody and access dispute. I have, however, heard the stories of numerous women who have. My concern and dismay about their experiences grow almost daily.

Kamloops is a community of just under 80,000 in the interior of this province. Forestry, agriculture, mining, tourism, and government services are the primary industries there. Women visit the centre or contact us by telephone to obtain the services and information we offer. Many of the women who use the centre have experienced abuse and violence in their intimate relationships. Custody and access issues often come to our attention as they attempt to deal with the process of establishing safe and secure lives for themselves and their children.

The challenges these women face are numerous, and the responses from both the justice system and the service system are not only inadequate but frequently victimize the women and their children further.

In 1995 the federal government adopted a policy requiring federal departments and agencies to conduct gender-based analysis of future policies and legislation. If ever there were legislation that required gender-based analysis, that governing custody and access is it. While legislation and treatment of this issue purport to be gender-neutral, treating mother and father similarly, the experience of many women demonstrates that this is not so. The outcome for them is too often the loss of the right to freedom from violence from the abuser; the lack of adequate legal representation; continued harassment, directly and indirectly through the justice system, around the custody of their children; to say nothing of the ongoing fear for themselves and their children and the turmoil of their daily lives this creates.

I want to review what we understand about equality. At one point in time we believed equal treatment was equality. It is now recognized that equal treatment does not necessarily yield equal results. Today the concept of equality acknowledges that different treatment of women and men may sometimes be required to achieve sameness of results, because of different life conditions or to compensate for past discrimination.

This notion of equality is embedded in the Canadian Charter of Rights and Freedoms. Section 15 of the charter states, as I am sure you are all aware:

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

In Andrews v. Law Society of British Columbia, the Supreme Court of Canada affirmed that the purpose of the equality provision of the charter is to protect from discrimination groups that suffer social, political, and legal disadvantage in our society. Discrimination can result if either the purpose or the effect of law is to impose a disadvantage on members of such a group compared to other members of society. Discrimination is not a mere finding of distinction between treatment of groups or individuals; it must involve a disadvantage.

Equality is served by government policies that recognize and take account of the specific circumstances of Canadians who, on the basis of an inherent attribute such as race or gender, are in a position of social, political, or legal disadvantage.

Gender-based analysis challenges the assumption that everyone is affected by policies, programs, and legislation in the same way, regardless of gender. Given a gender-based analysis, the present legislation and policy surrounding custody and access, which purport to be gender-neutral, in too many instances and in too many ways discriminate against women to deny them their right to fair and adequate legal representation.

• 1815

The general lack of understanding of the dynamics, repercussions, and long-term impact of violence at the hands of their husbands on women and their children is evident in the experience of women. Women who have documented evidence of being abused are unable to get legal representation to protect their rights. Women whose abuse has not been substantiated by official reports stand little chance of being heard or believed.

Too often, women who have been in abusive relationships continue to be harassed and abused by fathers who use the challenge of custody and access orders to continue controlling the lives of their ex-partners. Women who are without their own resources to continue this battle must depend on the whim of the legal aid system to give them the legal representation they need. In my community, women are being told that their case cannot be carried to conclusion with the resources available to them through legal aid. Legal representation is increasingly limited or unavailable to them.

Statistics Canada reports that in 1995 in Kamloops, women working full-time earned 65% of what men working full-time earned. Lone-parent families headed by women had average incomes of $27,929, compared to an average income of $47,927 for lone-parent families headed by men. Those women-headed families had incomes only 58% of those of their male-headed counterparts.

Women who do not qualify for legal aid have fewer resources to plead their case than men. In both instances—women who qualify for legal aid and those who do not because of income—women are economically disadvantaged in obtaining sufficient legal representation to protect the interests of themselves and their children from the men who continue to harass and abuse them in this manner.

The dynamics of power and control are poorly understood throughout the justice system and the general service system. The suggestion that mediation and alternate dispute mechanisms can remedy the discrimination women face in obtaining legal representation overlooks this reality. The subtleties of control exercised by men who abuse are poorly recognized or ignored. Women do not feel they have a choice, and find themselves forced to agree to terms they feel continue to place them and their children in danger.

The Joint Chair (Mr. Roger Gallaway): Are you almost finished?

Ms. Sheila Smith: Yes, I am.

It is essential that the realities of women's lives be addressed in the proposals for custody and access reform. The prevalence of violence and abuse of women experienced in relationships must be recognized. Provision must be made for an increased understanding of the importance of this consideration in determining custody and access decisions and enforcement. Women must always have the real option of adequate and legal representation to ensure their rights and their children's rights to safety are assured.

In conclusion, I recommend that gender-based analysis be rigorously incorporated into all aspects of legislation policy and enforcement of custody and access; that the federal plan for gender equity be honoured; and that the systemic discrimination faced by women socially, economically, politically, and legally in the current gender-neutral stance of divorce law be remedied with particular attention to the reality of violence and abuse of women in relationships and the safety issues for women and children following marriage break-up.

Thank you.

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

Ms. Burns from the Yew Transition House.

Ms. Sheryl Burns (Women's Counsellor, Yew Transition House): I'm Sheryl Burns, and I'm a women's support worker at Yew Transition House. I also work with the children there when we're short on child support staff.

I am here as a representative of Yew Transition House of the rural Sunshine Coast. We provide shelter and operate a 24-hour crisis line for abused women and children. In the last year, crisis calls and in-house statistics doubled, with 58% of crisis calls being a direct result of abuse and 77% of sheltered women fleeing abuse.

Staff at Yew Transition House are pleased to be involved in a process that intends to assess the need for a more child-centred approach to family law policies and practices. However, we believe that a child's best interest does not necessarily reflect an emphasis on joint parental responsibility.

• 1820

Historically, definitions of what is best for children is fluid, and it changes with time. In the late 19th century, adulterous women were considered unfit parents. Women and children were a man's property; therefore men decided on the children's future once the marriage terminated.

Fortunately, feminism helped change these views. In 1929, women were defined as persons and allowed to vote. By the 1960s, adultery was no longer grounds for refusing a mother custody. Today, many judges refuse custody on the basis of differing sexual orientation, while past abuse is considered irrelevant in custody and access disputes.

The underlying philosophy that past conduct is not a reflection of one's parenting is a lack of knowledge regarding the impact of witnessing abuse on children and the prevailing belief that an abusive father is preferable to an absent father. It's thought that custody and access arrangements must replicate the former family structure, and that fathers who apply for custody only consider their children's well-being.

Within the context of such societal beliefs, a mother's attempt to minimize a father's access is considered vindictive and abuse allegations are deemed untrue. A mother's day-to-day parenting receives little or no recognition while a father's contributions are glorified. The two parents are perceived to be interchangeable in spite of the roles they played prior to separation and divorce.

Add to this a gender-neutral approach to custody and access legislation disguised in a child-centred cloak. While the intent behind the cloak is laudable, in reality it prevents the protection of children. Male earning power is seen as preferable to the nurturing that mothers provide, thereby decreasing women's social and economic status while granting abusive fathers increased access to children. We recommend that the Divorce Act move from a gender-neutral stance to one that reflects women's and children's realities.

A small percentage of custody and access disputes require litigation. Parents who require litigation generally come from abusive or high-conflict relationships. The family justice system must not be an accomplice in the abuse of women and children. To this end, we recommend that all family law personnel be required to receive training to enable them to identify and understand the impact of abuse in intimate relationships.

Mediation provides abusive partners with a forum in which to continue intimidation. Mediation should not be permitted in cases of abused women. Past abuse should be brought forward for consideration in custody and access disputes. The Divorce Act must include a presumption that states that witnessing wife assault is abusive to children and wife-batterers are unfit parents. We also suggest that a preamble on the effects of witnessing abuse be included.

The “friendly parent” provision, which states that custody should be awarded to the parent willing to facilitate access, must be removed. Subsection 16(10) penalizes women who are trying to protect themselves and their children.

Any changes made to the Divorce Act must be examined from the children's perspective. The impact of witnessing one's mother being beaten is devastating. Children exhibit symptoms that mimic those of someone having experienced physical abuse. Given that abuse continues or escalates after separation in approximately half of abusive relationships and that there is a 30% overlap between wife assault and child abuse, we recommend that battering parents be refused access. Where access is permitted, visitation should be exercised within a women-centred, supervised access centre designed to ensure women's and children's safety.

Women cannot be expected to leave abusive relationships unless society follows through on its promise to protect women and children. We urge the criminal justice system and family justice system to work together to ensure the immediate and future safety of women and their children.

Thank you.

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

Now, Ms. Taylor.

A voice: No, I think the BWSS is next.

The Joint Chair (Mr. Roger Gallaway): I'm sorry. I didn't realize that you were going to speak.

Ms. Fatima Jaffer (Information Coordinator, Battered Women's Support Services): We welcome this opportunity to present before the joint committee. We believe recommending progressive changes to the Divorce Act is a critical task and of extreme importance to the women and children we represent at Battered Women's Support Services.

• 1825

Veenu and I are front-line counsellors and advocates for women who have been or are in abusive intimate relationships. We provide information, referral, advocacy, and support to battered women and those who work with and for them. Battered Women's Support Services also houses a legal advocacy program, providing advocacy and support to women going through the civil and criminal justice systems.

As a feminist organization that has been doing this work in the lower mainland for almost 20 years, we've had a long involvement in issues of custody and access, specifically as it intersects with issues of violence against women and children.

Each year, an average of 2,000 battered women contact us for the first time. Over each year, we have contact with an average of 10,000 battered women, the majority of whom have children. Most of our legal work involves supporting women and their children specifically around safety and protection issues in custody and access matters.

We'll be sharing this presentation, so I'll turn it over.

Ms. Veenu Saini (Battered Women's Support Services): Speaking from this position of experience and knowledge, we have deep concerns over what we understand to be the framework and principles underlying the work of this committee and these hearings, and we believe it is important to begin this by sharing our concerns with you.

We attended the first day of the hearings last month in Vancouver. We read the media reports, the mandate of the committee, and some transcripts of the hearings held in the east.

We're concerned with the direction this committee appears to be taking. For example, there seems to be a double standard in terms of who's to be believed, whose statistics are to be questioned and assumed to be insubstantial, and whose anecdotal stories will be accepted as evidence.

We sat and heard testimonies by men go unchallenged while the women were given—

The Joint Chair (Mr. Roger Gallaway): You cannot comment on how this committee operates. If members choose to ask or not ask questions, that's their business.

You're here to give evidence with respect to the mandate of this committee, which is custody and access under the Divorce Act. I would ask that you stick to that, please.

Ms. Veenu Saini: We have concerns as to how the term “child-centred” is being defined by this committee.

The Joint Chair (Mr. Roger Gallaway): This committee is not defining “child-centred”.

Ms. Veenu Saini: I'll just reword that.

We seem to be discussing an assumption of the child-centred approach—it's in the mandate of the committee, in fact—such that “child-centred” involves joint parental responsibilities and maximum contact—that's what I'm going to be addressing here—without taking into consideration all the related factors here, such as the history of the relationship between the parents and the child, the gender inequalities, including the financial means, and the child's, and therefore the mother's, need for protection and safety.

So, for example, what we see in our experience is that there is pressure on the women to leave the abusive relationship. When they do leave, to protect the children, they're betrayed by the civil justice system, which often forces them back into contact with their abusers through mediation and joint parenting and access arrangements that are not safe for them. Even when the relationship might not have been considered abusive, most times the reason why people separate is because they were unable to get along. So legislation that would force them post-separation to make joint decisions and bring them together probably more than either would prefer would be futile, unworkable, and likely harmful to the children who get caught in between.

Ms. Fatima Jaffer: Therefore, key to addressing these issues and arriving at a truly child-centred approach is recognizing the social, economic, and political inequities that exist in Canadian society between women and men. We know that due to the sexual division of labour in our society, mothers are the primary caregivers of the children both before and after separation. That means children's best interests and well-being cannot be separated from their mothers'.

We urge the committee to ensure that the discussion of the changes to the Divorce Act are not conducted in a gender-neutral environment, but that in fact gender inequities be made central to any discussion on custody and access.

Child-centred approaches that are based in gender-neutral terms would increase control by men of the women and children by giving them more rights and authority without the day-to-day responsibilities of parenting.

We also urge the committee to pay full attention to the fact that systemic discrimination that women must contend with in Canadian society and in the justice system is due not only to our gender but to whether we are aboriginal, women of colour, from a specific culture or ethnicity, from a specific religious or class background, immigrants or refugees, disabled, lesbian, and/or poor.

• 1830

These factors impact hugely on what kinds of custody and access arrangements we get. For example, right now, the best interests of the child are being determined based on white, middle-class, male, heterosexual, ableist values.

Ms. Veenu Saini: In closing, we would like to state our complete support of the recommendation put forth by the Ad Hoc Committee on Custody and Access Reform, which presented before us, particularly on the need for the preamble on gender analysis, systemic discrimination, and violence against women in relationships to inform custody and access decisions.

We also recommend redefining the term “child-centred” to focus on the need for safety and protection of the children and their mothers rather than focusing on parental access rights, recognizing that violence against women in relationships is a factor that affects the abuser's ability and suitability to parent.

We recommend basing decisions of custody and access on demonstrated care, not on fantasies of what the family should look like. Joint parenting or parenting plans should not be adopted within the Divorce Act as a norm unless they are requested by both parties. Such plans only work in exceptional circumstances where both parties agree to do so.

We recommend training for judges, lawyers, social workers, mediators, court-appointed assessors, and family court counsellors on issues of violence against women in relationships and its impact on women and children.

Finally, we recommend that the committee emphasize that adequate legal funding is essential in family law cases to ensure that the parties have legal representation.

Ms. Fatima Jaffer: We are preparing a more substantive brief—this is not our final brief—that would echo and give further evidence to the need for these recommendations. It will also direct a comment we heard earlier today that the cultures of people of colour are more violent than Canadian cultures or that they promote violence or that lesbians are more violent than men or that there's more violence in lesbian relationships than in those with men. The statistics from our organization show that this is totally unfounded, and we'll be including that with our presentation later.

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

Now, I've been trying to get to microphone 10 for a while. Ms. Taylor.

Ms. Georgina Taylor (Individual Presentation): My name is Georgina Taylor, and this is Marie Abdelmalik. We are advocates for women in custody and access disputes.

I've worked with women in battered women's shelters and in custody and access groups for 10 years. I was involved in a custody and access dispute myself. I've shared joint custody with my convicted batterer for 10 years until my 18-year-old son decided last year he wouldn't go back after being assaulted by my ex.

When we ask battered women in our shelter and across the country what the biggest problem was that they faced ten years ago, they said it was an economic issue or whatever. We asked them now what their biggest problem was. They tell us it's their inability to protect their children from the batterer once they leave.

Battered women across this country are losing custody to batterers. Believe me, it's happening. They are forced to have contact with their batterers through court-imposed access and through mediation. Children are ordered by the courts to spend weekends with fathers who abuse them.

Ten years ago, when we worked in battered women's shelters, we weren't sending kids off routinely every weekend to their dad for access out of the battered women's shelter. We do that all the time now. We have women who don't have custody, women who are supervised in a shelter, women who share joint custody who are in a battered women's shelter, and women who are sending their children off to access on weekends. We drive those children to the access visits.

Women fought hard for a better criminal justice response to violence against women. Many hard-won changes that we worked for, like mandatory arrest policies, are effectively undermined when women enter the family court system. The family court system extends the violence when the criminal court is supposed to stop it.

It's wrong to believe that once a woman leaves, the violence stops. It does not. In fact, it increases, because batterers use access to the children to extend the violence and control long after the woman leaves. Contrary to popular belief, when battered women tell the court and assessors that they fear for the safety of their children, they're not believed. They are accused of being unfriendly, uncooperative, and in contempt of court. They are accused of making false allegations to gain the upper hand and to poison the father-child relationship.

It takes many years for a battered woman to find the strength to leave. They are told by the media and by society to leave. They are shocked when they come to the battered women's shelter and court professionals ask them whether he hit the kids. Or they say that a father has a right to their children. We had a family court worker tell a woman that even Clifford Olson has a right to visits with his children.

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It seems that some court professionals are more worried about the father dropping out of the picture than acknowledging that a father who is abusive to the mother is unfit and should not be rewarded with unsupervised access. Unless the family court stops giving batterers access to the women, we are actually lying to the women and betraying them with false promises that if they leave, their children will be safe.

Every day I work in a transition house with women who are traumatized by having to send their children to an abuser for visits. Every day I work with children who shut down and give up because they've lost trust in a mother who can't protect them and a system that won't. Every day I work with women who say that they should have stayed with an abuser rather than having to send their children with him without supervision.

No legislation directs the court to deny custody or access to men who batter. No legislation directs the court to consider the effects of witnessing that violence. A man can murder his wife and still have access to his children. How many more women and children in B.C. will have to be murdered for threatening to leave? The statistics on that are quite high in B.C. in the last year.

The current response to this situation across this country is to impose mediation on women and turn them away from legal aid. We have many women in the shelter who can't get legal aid. The tragic irony is that the battering husband is accorded more legal assistance for his criminal act than the abused mother is to protect her children.

No amount of parenting plans or mediation can overcome the control a batterer has over a woman he has demeaned, beaten, and isolated for years. Abuse is confrontational. It requires an adversarial approach, not mediation. There is no way for us to prove how many abuse cases are in court. What we can count on is that if there's violence, the case will appear in court, because the abuser will use the court to reassert his control.

The current thinking that we hear about abuse cases forming a minority of cases in family court I think is irrelevant. If it is a minority, it's a significant minority, and laws protect minorities in this country. For the Divorce Act not to deal with that means the Divorce Act is not dealing with reality.

A witness: It's because of these realities that we do encourage this committee...and are pleased that this committee is exploring a more child-centred approach, hopefully, than is currently practised.

We urge you, however—and we're getting back to the big picture here, based on our broad-based experience—to question the terms of reference and recognize that you will not create a child-centred approach if you begin with the unsubstantiated assumption that imposition of joint parental responsibilities is synonymous with a child-centred approach. You will not create a child-centred approach if you begin with the assumption that so-called shared parenting, joint parenting, co-parenting or parallel parenting is in the child's best interests. We urge you to recognize that you will not create a child-centred approach if you begin with the unsubstantiated assumption that children's well-being is reliant upon maximum parental contact post-separation.

We urge you to recognize that you will not create a true child-centred approach if you attempt to separate the interests of children from the interests of their primary caregiver. In other words, to create a true child-centred approach to custody and access decision-making and determinations, we urge you to adopt an overall understanding of child-centred or best interests that focuses on ensuring the well-being and protection of children.

At the very least, this requires recognizing and addressing the systemic inequities faced by children and their primary caregivers, and rejecting gender-neutral fantasies like shared parenting. This well-intentioned idea merely obscures gender realities such as women's primary caregiving work and gives the non-custodial parent control and authority without corresponding responsibilities.

At the very least, child-centred means recognizing and seriously challenging women and child abuse. It means ensuring access to a public justice system that believes and thoroughly investigates women and children's allegations of abuse. The answer does not lie in private processes such as mediation and parenting plans.

• 1840

In closing, I want to say that in our brief and in the many briefs submitted to you by feminist groups, you'll find specific, concrete recommendations on how to begin. We don't expect that you'll be able; you have a huge task in front of you. We see what you're doing as a beginning, so we hope you'll use these concrete recommendations to begin addressing what we see as the current shameful situation.

You'll find recommendations that are based on the realities of women and children, and we do trust you will address our concerns in your final report. The children and the women of this country are relying on you to promote a strong Divorce Act that proactively protects basic equality rights. Our children cannot be further sacrificed to new family law experiments.

Thank you.

The Joint Chair (Mr. Roger Gallaway): We'll begin questions.

Dr. Bennett.

Ms. Carolyn Bennett: First, I'd like to address the fact that I felt in the presentations there was a presumption that the committee had actually even made up its mind about anything, even in the terms of reference of the committee. “Child-centred” is not defined, and that's one of the jobs of this committee, to make sure that we hear from as many people to help us with that. From my personal point of view, child-centred begins with the safety and protection, and you move on down after that. I hope there's some reassurance that we won't start from anything else other than that the kids have to be safe.

A little bit of the last presentation actually helped me with my first question, which was, from the allegation of violence or abuse, because of this shadow of false allegation that is now unfortunately sort of casting over all of the real ones, what would be your suggestion to the committee in terms of— You did say thoroughly investigate all allegations of abuse, and maybe that helps me a little bit, but where do we go?

I think we are having trouble, because there's obviously even one case of an allegation of abuse that ended up being false, and ten years later, like we heard this morning, somebody admits that they used it in order to manipulate the situation. How could you help us with what we do with this? Could it be in the law, or how do you do it?

A witness: I think that's a really interesting question, and it deserves a really full response, but I think what we need to go back to is some of the grounding assumptions. You're right, there is an overall perception that false allegations are a huge problem, but for me, personally, what's really important is to actually question the legitimacy of those assumptions.

It's true there is a public perception, it's true that the media certainly promotes that view, but I think it's incumbent upon us, particularly in your situation, where you are going to be putting forth recommendations, to go back to empirical research, which shows that is not an issue.

I think it's also important to make the distinction between “false” and “unfounded”. Just because you can't prove a case doesn't mean it was false. I think that's an important distinction, as well.

What was the rest of your question?

• 1845

Ms. Carolyn Bennett: Well, I guess as a feminist I have a little bit of trouble that every time we raise this, people say “Now, now, don't worry your little heads. It's not very many.” We're getting into trouble, because if there are any, the perception out there is that there are a lot. What do we do to deal with the false ones and the unfounded ones so that we can actually then more properly deal with the real ones? As long as we're not dealing with the false ones, it's almost out there that all the real ones are thereby false.

How do we do this? What does it take? I know one of the nurses handed me a really good tool that they use in their research, a tool to determine violence. I guess I just want to know if you have any experience with those sorts of tools, or is there something the committee could learn from how you actually sort out abuse in pragmatic, real way?

A witness: This is not going to be a direct answer to your question, but I guess we are talking about false or unsubstantiated allegations of abuse and the shadow cast by that. Countered by that, we have to look at the abuse, the sexual abuse, the shadow cast by that in a child's or woman's life. Where does the onus of responsibility lie and where is the protection most needed?

Certainly I hear from—and I know some of my colleagues do—women who are very hesitant about raising their concerns because they have a great deal of difficulty throughout the system in getting the kind of substantiated proof, particularly if the child is very young, to make them really feel strong enough to go forward with that allegation. That's where my concern lies.

A witness: Yes, I think that's a really good point, that this shadow you're talking about has been.... I think from our experience it's affecting most severely the women and children who are no longer able to talk about these issues, who are being actively advised not to raise them. And there's been some really interesting research done about reported case-law analysis that looks at what actually does happen when women raise these issues and how so many of them are just thrown out.

I think it's important to keep the focus on who's feeling the implications of this. It's women and children.

Ms. Carolyn Bennett: But in the “he said, she said”, where do we go?

A witness: Well, I think you can't go wrong if everybody is well trained. In all the briefs that always comes back, that there isn't just one tool to bring about change. Legislative means are one piece of it, but training and education around the pervasiveness, the effects of violence against women, the impact on child.... You have broad-based training for everybody within the family justice system as well as the criminal justice system. Moving on from that, you'll have a much better chance of having every concern thoroughly investigated.

Ms. Carolyn Bennett: I guess my next step is this. As a family doctor I've seen a lot of these problems, so I know firsthand what you're dealing with on a daily basis. But I guess I also have just a little tiny trouble with linking the well-being of the child with a presumption that the primary caregiver is always perfect. I've seen somewhere that this isn't necessarily the case. So if the ad hoc committee is linking those inextricably, couldn't we get into trouble with that too, in terms of really the best interests of the child?

A witness: I think the whole idea of coming from a place of primary caregiver presumptions is twofold. One is that we want the child's life to be as predictable as possible after separation and divorce. We don't want to create a whole bunch of changes that are going to further traumatize the child.

• 1850

I think all of us here at the table have worked with women and children who come from abusive situations, and what we've learned through that is that it's the mothers we can trust and it's the fathers who are hurting the moms, who are causing the children to witness that violence, and who are also hurting the children. As I referred to in my speech, there is a 30% crossover between women abuse and child abuse. So for fathers who batter their partners, there's a 30% overlap chance that they will also batter their own children or abuse their children in another form.

I think also we're coming from a view that if society examines Divorce Act legislation from a gender-neutral stance, then what we are doing in effect is awarding more equality to women and children. If we ignore the inequalities that women and children face in today's society, we are actually increasing the inequality they live with. So by acknowledging that women are the primary caregivers of children, we're trying to also acknowledge the roles women and children play in today's society.

Ms. Carolyn Bennett: In this kind of abuse, obviously there's sexual abuse and physical abuse. I guess the thing I find the more difficult is the emotional abuse, the controlling needs in the whole power differential that I think a lot of women in this country still feel. How would you help us define that?

Also, I guess I'm always worried that for the 10% who end up in court, there's obviously a serious power differential in the 90% that never get there, where women have agreed to things that maybe they would not have. That's why I think the parenting education videos and those sorts of things are helpful in that group in getting them to seek the kind of advice or support for what again is in the best interests of the children. How would you help me with the emotional abuse part?

A witness: I just wanted to go back to your reference to the parenting education. I agree with you that it's helpful to have some of these things included in parenting education, but I think we also need to include the effects of witnessing women abuse on children. I think that at this point there seems to be a gap in that respect.

A witness: Actually seeing how it affects the ability to parent is really important too, and it has been ignored in the past.

Ms. Carolyn Bennett: Thank you.

A witness: If I could respond to that as well, I think part of your question is how do we define, how do we deal with emotional abuse. I think there's value in going right back to the start and thinking about ways—and this goes back to your previous question about the link between child and primary caregiver—to design policies that, right from the outset, are based on principles of care and protection.

For example, if you had a primary caregiver presumption as one recommendation, you are empowering the person who has the day-to-day work and the nurturing and the responsibilities to make all sorts of decisions. If that's put in place, there are all sorts of issues that would be resolved right from the outset that wouldn't have to be argued about.

Does that clarify it any further?

Ms. Carolyn Bennett: Yes.

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

Mr. Forseth.

Mr. Paul Forseth: Thank you very much for coming and preparing for this committee today.

In other forums, more from a legal perspective, we've received presentations that have said, in talking about best interests, that perhaps the law should be changed to try to include some kind of list and definition of really what best interest is, or things to be considered as a short list in the legislation itself.

The definition of best interests was raised by some of the presenters today. I think someone tried to characterize what they assume best interests is now as somewhat WASP-ish, or maybe it's too narrow in its historical definition as you've observed it being played out in the courts. I would like you to flesh that out a little bit. What child development science or studies do you base your views upon—not political beliefs, but really a child development science about what children need? Which direction should we look to if we're going to try to develop a list of legal definitions that would guide the court in what is a more appropriate definition of best interests of the child?

• 1855

Ms. Marie Abdelmalik (Individual Presentation): From the recommendations you're referring to, that's where the need for the preamble comes in: to recognize the gender analysis, to recognize the violence, and to recognize the multiple barriers, other than the sex and the age of the child, that women and children face. I think that's where the need for the preamble comes in, to guide how the decisions should be made and to look at all the realities of the lives of these women and children.

Mr. Paul Forseth: So when the Divorce Act comes to speak to the issue of best interests, would it be helpful to have some kind of a shortlist of further qualifiers to give direction to the court as to what is inherently involved in best interests rather than just saying “best interests” and leaving it to various devices such as what has been decided before, the judge's knowledge of decided cases, and the particular strengths of the lawyers who happen to be arguing on either side? Would you see at least some further legal definition within the act to get at what best interests is? Would it be helpful?

Ms. Marie Abdelmalik: There is a big problem with the indeterminacy of best interests as it stands right now. All sorts of case law show that the unfettered judicial discretion that has taken place until now has had horrible implications for women and children, and I'm sure for some men as well.

There is, I think, a need to give clearer guidance not just to the judiciary but also to mediators, to a whole range of other players who are going to be impacted by whatever legislation is created. All sorts of speakers have talked about the need to eliminate any kind of assumption about maximum contact, which is now part of the best interests principle. It sets up a certain kind of assumption at the outset about what the post-divorce family should be like. That's an important provision to remove.

Other speakers have talked about the need to include a primary caregiver presumption. That in itself would certainly remove a great deal of the current indeterminacy. Other speakers have talked about the need to have some sort of explicit legislative statement specifying that battering behaviour in itself is indicative of unfit parenting and in itself should create a presumption against custody or unsupervised access or, in some cases, any access at all. Even those few little suggestions would really narrow down the discretion and would lead to more predictable outcomes and presumably much better outcomes as well.

Are those the kinds of specifics you were looking for?

Mr. Paul Forseth: Do you base some of those views on any developmental science? For instance, when someone takes a degree in nursing, they would take a series of courses in child development and cite various texts on the latest research on what is helpful for children's physical and social development. A lot has to do with what is good parenting and what isn't. I was just wondering if you could refer to some of that, because I would like to see recommendations rooted in a solid foundation.

Ms. Marie Abdelmalik: I think it's important to acknowledge that there have been two streams of research. One is the children of divorce research, which primarily focuses on the effects of divorce on children.

• 1900

Overall, in the cumulative body of knowledge flowing out of that stream, the only thing that can be said consistently—we could have a long discussion about the methodological problems of many of those studies—is that the focus should be on strengthening the post-divorce adjustment of the custodial parent and child. The psychological adjustment of the custodial parent is what is consistently found to be related to the child's adjustment, not the non-custodial parent's frequency or lack thereof of contact.

I personally don't rely heavily on that research. I tend to rely on the other research stream, which doesn't get as much as attention, and it's the children of domestic violence research. That's where I—

Mr. Paul Forseth: So you're talking about not so much of a child-centred approach, but more of the custodial parent's centredness?

Ms. Marie Abdelmalik: No. For example, one of the citations is Wallerstein and Tony Tanke, To Move or Not to Move: Psychological and Legal Considerations in the Relocation of Children Following Divorce. They found that the psychological adjustment of the custodial parent was what was found to be consistently related to the child's adjustment.

There is a link. That's the only link that seems to be consistently found, the only significant factor.

I have to tell you, though, that I don't rely heavily on that body of research. There are too many inconsistent findings for me to look at it and say, gee, that's something I would like to rely on when making recommendations.

I feel more comfortable with the other body of research, which actually gets very little attention in policy or decision-making, and that is the children of domestic violence research. Some excellent work has been done by Peter Jaffe, which I personally think should be forming the best interests of the child decision-making.

Mr. Paul Forseth: Thank you.

The Joint Chair (Mr. Roger Gallaway): Thank you. I want to pose a couple of questions myself.

Are you familiar with Dr. Edward Kruk from UBC? Is anyone familiar with him?

A witness: I've heard of him.

The Joint Chair (Mr. Roger Gallaway): He was here this morning. In fact, he was here until just a short while ago.

He told us this morning that the number one key factor in children's adjustment to divorce is an ongoing relationship with both parents. That would appear to fly in the face of—I'm sorry, it's—

Ms. Marie Abdelmalik: I won't make you say my last name. My first name is Marie.

The Joint Chair (Mr. Roger Gallaway): It seems to fly in the face of the study you referred to. If you can tell us the name, we're going to have it checked.

Ms. Marie Abdelmalik: I would direct you to any of the reviews, such as those by legal researchers such as Bala and Bailey in 1993. That's probably the most extensive review of children of divorce research. It was done by Bala and Bailey in 1993. I think it was called Canada: Recognizing the Interests of Children.

Part of what was done in that research was to review a large body of the children of divorce research. The conclusion was reached that there is very little consistency between the various studies. Nonetheless, there was a whole bunch of recommendations reliant upon inconclusive findings. Even legal researchers who have done broad reviews have said that the findings are inconsistent and we are wise not to jump to conclusions such as ongoing relationships with both parents being the best indicators of children's post-divorce adjustment.

Again, I would ask how large the study was, how general it was, and what other factors were looked at. There are so many questions one could ask to test the legitimacy or the generalizations of those various studies.

• 1905

The Joint Chair (Mr. Roger Gallaway): Ms. Taylor made a statement before she left, which was that abuse is confrontational and that's why we need an adversarial process.

Ms. Smith, you refer to the fact that you believe the stories about abuse that have been told to you.

Ms. Burns, you said that abuse is considered irrelevant in custody disputes or should be considered relevant. You also stated that battering parents should be refused access.

Now, Dr. Bennett raised what I would refer to as a phenomenon that I think has to be dealt with by this committee, and that is this business of allegations. There are a number of court decisions in which judges are starting to refer to it as the weapon of choice of women.

We heard evidence recently from the Children's Aid Society of Ottawa-Carleton that of 900 allegations of abuse tied to custody and access, 600 were unfounded or unsubstantiated. Certainly this would indicate it's out there. We still cannot quantify this, but that's the first information we've received that it's out there.

If in fact abuse is alleged, and based on Ms. Taylor's statement we need an adversarial process to test this, to have some burden of proof somewhere in the system, what would you do, where would you put the focus, who is going to determine when abuse has occurred? Is it going to be a social worker, is it going to be a court?

Second, what would you do with a parent of either gender who makes an allegation of abuse that is blatantly false? I'm not talking about a case in which someone says it's unsubstantiated. But we are getting judicial evidence that this is becoming more insidious, it's creeping into our court system. What would you do with them?

Ms. Sheryl Burns: I'd like to respond first by citing some stats and responding to the statistics you just quoted.

First of all, the statistics you just cited from the Children's Aid Society, in which 600 of those 900 cases were found to be unfounded or unsubstantiated...it doesn't necessarily mean they're false. Something like sexual abuse, for example, is very difficult to prove. Physical abuse can also be extremely difficult to prove unless you actually see the bruises immediately after the assault. So I think we need to be careful in terms of citing those statistics and saying that two-thirds of all allegations are false. I don't believe that.

The Joint Chair (Mr. Roger Gallaway): You mean unsubstantiated.

Ms. Sheryl Burns: Yes, unsubstantiated. I think we need to be careful in how we view that number.

The other thing is I know that 2% of all custody and access situations have abuse allegations. Within that 2%, 16.5% are found to be false or unsubstantiated, so again I caution on the belief this absolutely means those allegation are false.

The Joint Chair (Mr. Roger Gallaway): Can you tell me on what you base those numbers?

Ms. Sheryl Burns: The numbers are based on a study by Susan Penfold, called Questionable Beliefs About Child Sexual Abuse Allegations During Custody Disputes. Further, within the 16.5% of the 2% of allegations, it's found that both women and men equally make so-called false allegations.

I feel we need to be really cautious in terms of feeling that abuse allegations are out there and they're infiltrating the justice system. I don't believe they are. From my own experience in working with women who often do suspect their children are being abused, the women are very hesitant to come forward with those allegations because the message is out there that they will be penalized and not believed if they come forward with their belief.

The Joint Chair (Mr. Roger Gallaway): My question was, to whom would you give the authority to make the determination whether abuse exists or not?

• 1910

Ms. Sheryl Burns: My personal belief is that the people who work on the front lines with abused women and children are often best at understanding and recognizing the signs of abuse. Other people, who are so-called professionals, have often disappointed me, to be perfectly frank, in situations in which I know there's been abuse but they are unable to recognize the abuse.

The Joint Chair (Mr. Roger Gallaway): You say you know there's been abuse, but do you know who the perpetrator of the abuse is?

Ms. Sheryl Burns: Yes.

The Joint Chair (Mr. Roger Gallaway): Another body of evidence would suggest there are a number of people who make allegations of abuse when in fact they are the abuser.

Ms. Sheryl Burns: I'm hearing this evidence from the women and children I support at the transition house.

The Joint Chair (Mr. Roger Gallaway): Okay, from your clientele. Thank you.

Senator Cools has a final question.

Senator Anne Cools: Thank you very much.

I'd like to thank the witnesses for coming before us.

I'd just like to say that I view the problem of false accusations as a totally different problem, even an unrelated problem, from the problems of domestic violence. I've studied the issues, both of them, quite extensively. I just want to be quite clear that I've not been asking any of these people anything about false accusations, because I view them as two different pathologies. As different pathologies, they need to be looked at and to have remedies of their own.

You work directly with women who have suffered terribly. Of the women you work with—perhaps you gave this information previously and I didn't hear it, because I was in and out of the room—of the women you have actually served and have spoken to, how many have filed for divorce and how many have been granted divorce decrees?

Ms. Sheryl Burns: Frankly, I couldn't answer that question. I'd have to go through a huge sheaf of papers at the house. A rough estimate would be—this is off the top of my head—20%.

Senator Anne Cools: That's 20%. Does anybody else have a number about how many have filed for divorce or been granted a divorce decree?

Ms. Sheryl Burns: I need to clarify that Yew Transition House is a short-term transition house, so we often don't actually see the long-term outcome of the situation.

Senator Anne Cools: I understand that. I appreciate your difficulties. Was that 20% granted divorces or filed for divorces?

Ms. Sheryl Burns: Filed.

Senator Anne Cools: Filed for divorce. So 80% of your abused women do not file for divorce.

The Joint Chair (Mr. Roger Gallaway): The question is being posed to Ms. Burns.

Senator Anne Cools: According to your number, which was 20%—

Ms. Sheryl Burns: It was off the top of my head—

Senator Anne Cools: Okay, give me another number off the top of your head. Whatever number—if you want to rethink 20%, be my guest. I had asked you what number—20%. Do you still stay with 20%?

Ms. Sheryl Burns: Yes, off the top of my head. I would like to double check.

Senator Anne Cools: Therefore, 80% do not file for divorce.

A witness: We don't know that.

Ms. Sheryl Burns: I don't think that's an entirely fair question, because I just clarified, for one thing, that we are short term. We basically shelter women who flee from abuse. Furthermore, we know that women who are in an abusive relationship often need to leave the relationship 9 to 11 times before they are ready to take the final step of completely cutting off the relationship. That's because of all the barriers out there to women fleeing abuse.

Senator Anne Cools: It is very hard to find out about domestic violence as it actually relates to divorce, and you say that women have to leave 9 or so times. We had a witness here a few weeks ago who told us they left 35 times before they would file for divorce.

Ms. Sheryl Burns: I believe it may have been a reference to the fact that women are often assaulted 35 times before they make a report to the police. That number is very familiar.

• 1915

Senator Anne Cools: Okay, granted, I'm prepared to...whatever, for the purpose of discussion.

The point I'm driving at is that in the deepest and the most pathological of your intimate spousal violence dynamics—because it is a dynamic, a terrible dynamic—the most intractable ones are reluctant to leave spouses; very rarely are divorces involved. Erin Pizzey calls it “the dance of death”, because we're talking not just about domestic violence but domestic violence that is lethal, lethal domestic violence—

Ms. Sheryl Burns: Philosophically, I'm not comfortable with—

The Joint Chair (Mr. Roger Gallaway): Have you finished, Senator?

Ms. Sheryl Burns: Is it okay if I respond?

Senator Anne Cools: Basically all I'm trying to find out, Mr. Chairman, is the same information I've been trying to find out for a period of time, because the data and the evidence suggests that some of these pathologies are so deep that people stay locked into those relationships almost to perpetuity, and that, really, divorce is not an issue with many of them.

Some scholars call it common domestic violence. There's a whole language around it. It would be nice if we could get some profiles on the violence, and on the situations that attend violence, and on the terrible circumstances that plague individuals. One of the aspects, again, is the isolation. In any event, I've been doing a lot of work trying to ascertain the actual involvement of violence in divorce cases, not common law but in divorce. But it's okay, thank you.

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

Ms. Carolyn Bennett: You were going to present a little bit on the multicultural thing.

At women's caucus two weeks ago, we were very concerned that there was a column in the Portuguese newspaper in Toronto that really was about control and the right of men to control women. I think it was bordering on hate literature as far as a lot of the women in women's caucus were concerned.

I wonder if the women's groups had seen that or would help us react? It was very concerning to see that kind of language in 1998.

A witness: I didn't see that piece, but I have seen things in the West End Times and in the Vancouver Sun that I think would be comparable. So I think there's lots of that stuff around, and it crosses the cultures.

The Joint Chair (Mr. Roger Gallaway): Thank you very much for coming. We appreciate your presence.

We are going to now take a 10-minute break.

• 1918

• 1938

The Joint Chair (Mr. Roger Gallaway): We'll resume this meeting. We'll come to order again.

We have with us Dr. Jennifer Wade.

Dr. Wade, I noticed that on the list they've given your name a rather new and original spelling. That's been corrected.

We also have Colleen Murphy and Nicole Deagan, who's a child care counsellor.

We'll start with Dr. Wade.

Dr. Jennifer Wade (Individual Presentation): In my presentation I wish to address the unfairness of current decisions on custody and access of children after a divorce, in light of the time-honoured values being completely disregarded.

All too often today it would seem that the arbitrary whims and prejudices of judges are influencing decisions that affect the lives of so many children and parents who cannot afford to have judgments made on what are daily appearing to be very nebulous grounds.

Let me state that I myself went through a divorce in 1979, but fortunately adultery, desertion, and mental cruelty were legitimate grounds for divorce and for retaining custody of children in the 1970s. Even though I had no income at the time and had spent the 18 years of my marriage mainly at home, it was my children who gave me purpose to go on. Both children have grown up to be responsible and caring adults.

Visiting rights of a parent who had committed adultery were not given much consideration in those days, and while my husband went with a new partner, I took the children back to live near my parents and my parents-in-law, a common-sense move that has been pursued since time immemorial in the face of similar circumstances. I did, however, see to it that the children kept in touch with the other parent during their years of growing up, and they have done that, to the benefit of all concerned.

• 1940

I do not therefore speak on my behalf with this submission, but on behalf of those today suffering from the lack of standards in rulings made about custody and even about divorce.

Adultery, which is seemingly treated as of little consequence in the courts today, is as painful to the other partner as it ever was. And with adultery does go a measure of lying, deceit, and conniving that tells quite a bit about character. More often than not, the partner committing the adultery is less mature and more self-centred, putting selfish desires before concern for others. Often, too, they are people who find it necessary to seek sexual reassurance of their own self-worth.

Cynically, philosophers of another age have said that a family is a group of people who revolve around the most selfish member in that group. If there is some truth in this, surely children never deserve to be condemned to live with the more selfish and irresponsible parent who has reneged on responsibility, or in the parlance of today, “goofed off”, however much such parent might be the more charming or the more fun-loving.

At one time, when common sense seemed to be valued more, even in the so-called cases of the rich and famous—such people as Happy Rockefeller and Ingrid Bergman—there was no question of where and with whom the children would remain. Common sense dictated that they would remain with the more stable and responsible parent, preferably in the parent home.

But that is no longer true at all. Instead, all sorts of wild twaddle about, for example, the mother being the more nurturing figure, little children of necessity remaining with the mother, or the parent with the means having the right to have the children dictates what goes on in courts. And often, in the process of lawyers wrangling and playing games, the coffers of an entire family are depleted. This cannot possibly be in the best interests of the child.

“In the best interests of the child”—a phrase we've heard so much today. That surely should govern custody and access rulings.

I heard it asked in the last session, how do you set the criteria? Perhaps one asks very simple, common-sense questions. Which parent, in the interests of the child, gives more of self, worries more about the child, perhaps takes the disciplining of the child a little more seriously, perhaps empathizes more with the child or sets higher standards for that child? Which parent sees the child less as an extension of self, of ego, and more as an individual person developing, with many needs and much teaching, loving, and thoughtfulness required? Surely it is not that difficult to discern which parent is more able to fulfil such criteria if neighbours, schools, or friends are questioned.

As a former board member of both the Vancouver and the national societies of the Elizabeth Fry Society, I have seen the results of children being given to the wrong parent, with step-parent problems resulting and no end of destruction being done. How much of such destruction can a society tolerate?

I recall especially one young woman telling me that when her family broke up when she was nine years old, nobody asked her where she would like to be. She was put with her father and his new girlfriend, rather than with the mother, whose whole life had revolved around the family. She mentioned that one of her memories was of asking her father if he could not give her mother some money so that she could remain with her mom. But her pleading was to no avail.

When her father moved on to a second girlfriend, the girl in question ran away, got into a great deal of trouble and difficulties, and wandered around New York and California until she returned home and found some purpose before it was too late for her. The A grades that she started off with at school and her love of school, however, seemed of little consequence after she was taken from the parent with whom she most wanted to be. Now, at age 31, she is living with her mother.

• 1945

I mention this one girl, but she is one of many who have suffered because of the blindness of the courts in custody rulings. And I mention her because she would be willing to speak before you.

Why are children of all ages not given a choice and listened to carefully by discerning adults with some experience and some wisdom? The voice of the child must be heard and it must count. Article 12 of the Convention on the Rights of the Child addresses this very important matter of all children having the right to be heard.

At times I cannot help but feel that the tribal justice I once witnessed when I lived some years ago in the far northwest part of the subcontinent of India was far more accurate, more discerning, and even more just a system than what we have in place in North America at the moment, if one visits the courts. Certainly, harsh as that system was, it often made more sense to a community. It was the community there that often acted as judge, and perhaps we need to have more of that ourselves and a lessening of the power of judges, who increasingly seem to be making capricious judgments.

The Joint Chair (Mr. Roger Gallaway): Dr. Wade, I regret having to intervene, but we've gone a little bit over time.

Dr. Jennifer Wade: Can I very quickly do three paragraphs, reading more quickly?

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

Dr. Jennifer Wade: Most recently I witnessed a custody trial in which the custody of three young children was awarded to a woman who had committed adultery with a man eight years younger than her. Allegedly this young man, of his own admission, confessed to being violent with his sister in order to keep her in line, because she was mentally deficient. This was said in the court. This is the partner of the woman who was given custody of three small children.

The father, a commercial fisherman, who has for all intents and purposes been the primary caregiver, now no longer has a say in the education, health care, schooling, or religious instruction of the children, who mean more to him than anything else. Who gains and who loses with such judgments?

Reportedly the judge said the father was angry at the wife. Could anyone not be angry with such nonsense? Meanwhile, in this battle, the family has lost all its savings.

It does appear that men, more often than not, are getting the short end of the stick when it comes to custody and access rulings. This often happens because in our society a myth prevails about motherhood being nurturing and sacred. And such a myth continues to prevail in spite of reports exposing the truth, such as Judge Gove's report on child abuse here in B.C.

As more work is being done, it is becoming quite obvious that viciousness and violence are not peculiar to any one gender. We must stop wishful thinking and false adulation about women being caregivers and sweet madonnas, especially when it comes to assigning custody for children.

Everyone has stories about miscarriages of justice these days, especially as they pertain to caring men not being given custody. I know of three men who would speak to this issue.

People also have their favourite stories these days about the fear of judges being above the law and making decisions on the basis of their own agendas. More and more ludicrous but tragic judgments are coming out in the press. As Raoul Berger, in his book Government by Judiciary: The Transformation of the Fourteenth Amendment, has said—and he's put it very well—that “The justices, who are virtually unaccountable, irremovable, and irreversible, have taken over from the people control of their own destiny”.

Perhaps it is even time to lessen the expense and powers of lawyers and judges and turn more to citizens tribunals or councils of elders in matters pertaining to divorce and custody.

In summary, I would recommend that in the best interests of the child, men be given the same consideration as women insofar as being nurturing and caring parents, and I would ask that all children everywhere be given a voice and listened to and watched very carefully as to what best serves their interests.

Finally, I beg this committee to listen to the people and to work to give back to the people some control over what is just and sane and reasonable, especially in the realm of child custody after divorce.

Thank you very much.

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

Ms. Murphy.

Ms. Colleen G. Murphy (Individual Presentation): Thank you.

I'm a single mother. I have four teenagers. I am the sole custodial parent of my four children, as a result of a very lengthy, contested trial.

One of the things my ex-husband, the father of my children, said after the trial was over was that he would take me to every court in the country, if he had to, to get even. One of the major concerns I have is that there is a place in the courts for him to do that.

For seven years now I've been legally harassed by my ex-husband. It's still not over.

• 1950

I have written a page of five levels of what I call my recommendations.

Number one is education. The parents have to be educated as to the outcomes of divorce and separation, what they will or could do in the areas surrounding the care costs, the time spent with the children, and special requirements of the daily life with the children. It is critical that they be educated, as it will determine the cooperation that is required by both the parents to care for the children.

After they have been educated, there would be a mediation session, and the parents would have to, with the help of a mediator, come up with an order to support—that's my term—for the children. The children are not to be in the line of fire or used as a means to an end to the benefit of either parent. The goal is to take care of the children. They could even be present, depending on the circumstances.

Most parents would be able, at this level, to come up with their own personal plan for supporting their children. These plans would also provide suggestions and set precedents for other parents.

If they were unable on their own to come up with an order to support, they would have to go to conciliation. The parties would meet with a committee to ensure an unbiased, fair solution, and not use paid reports, which either party can now buy. The committee would listen to both parties, make recommendations, and suggest an order.

Once again, I would like to stress that this is not an adversarial process. If required, at the discretion of the committee, the likes of section 15 could be prepared. Also, the solutions and orders obtained from other people, as above, would be cited as examples. The committee would have to have a sense of each individual case, be well trained in family law matters, be unbiased towards the parents, and be able to recognize and stay on track towards the ultimate goal, which is to provide a sound basis for an order for each parent to support their children.

If they were still unable to come up with a solution, they would have to go to arbitration. After making the recommendations and educating both the parents, the committee would issue the order to support to both parents. At any time the order were agreed upon or, as at this level, issued, the order would be considered a legal agreement, as binding and enforceable as any legal order. Failure to comply would lead to level five.

Level five is the final step, required only if there is just cause, as in cases of abuse by either parent, if the committee were found to be neglectful, or if there were other highly disputed areas. This would be held at the same level as an appeal in the Supreme Court.

It is important to note that this process is meant to keep the cases of custody and access out of the courts as much as possible. The people involved in the areas of mediation right to the end must be qualified, trained, and not in business for themselves. These businesses thrive on adversarial conditions around children. I do not believe there would be as many cases in the courts if there were no place in the courts for situations such as mine.

The mediators and family law experts involved must respect that each case is as individual as the people involved and must handle them as such. Money is another issue. The issue of child maintenance should not be tied to access or time spent with the children by either parent. The issue of money should be very clear, and it would not be a case to go into the courts except in violation of the order.

The children have a primary residence. This is maintained by both parents. There are considerable costs involved for the education and activities of the children, and the standard of living is determined by the income of the parents, whether they live together or not.

Guidelines on maintenance for the children would be set, allowing for variations as they grow and costs change. This would not be determined by how often the parents see the children but by the standard of living the parents are able to provide for the children.

The direct costs of the children would be set out in the order to support. In undisputed cases this would be very straightforward. In other cases one of the parents would be the custodial parent and be responsible for all the expenses of the children as determined by the amount of maintenance paid.

• 1955

The maintenance would be determined by guidelines according to the incomes and standard of living of the parents. Non-payment or any violation of this maintenance order would be handled by the courts. If the needs of the children were to change, this order would have to be reviewed.

This whole area of money should be a separate issue from custody and access. I believe it is because they are so connected right now that each is used as a means to get to the other.

The Joint Chair (Mr. Roger Gallaway): Ms. Murphy, I'm sorry to interrupt you also, but we're a little over time.

Ms. Colleen Murphy: I'm finished.

The Joint Chair (Mr. Roger Gallaway): Oh. And I'm psychic! Thank you.

Now, Nicole Deagan. Please go ahead.

Ms. Nicole Deagan (Individual Presentation): Thanks.

I was seven years old, and one day my father picked me and my brothers up from school. As we drove away from the town we lived in, my father told us that we would never see our mother again.

We went to someone's house, where my father called my mom and told her that if she didn't get out of the house by the next morning, he would leave the country with us.

I didn't understand what was going on. My brothers and I were very close to our mom. She'd stayed home and looked after us. Our father worked as a teacher at a local high school.

The next day we went back home, and my father called a lawyer and said that his wife had left him and us three kids for another man. This is also what he told us. Of course, at first I knew that it had happened differently, but through repeated sessions of his telling us stories about our mother, we all began to believe him.

He used to take me into his bedroom. There was a big chair at one wall and I would sit on it while he told me things. He would tell me that he would kill himself if I ever left him, that he was so lonely now that my mother had abandoned him, and that he needed us kids.

He told me that he was going to get back at her. I would have to practise what I would say if anyone asked me questions about my family.

We went to see a child advocate lawyer, who did an interview with three of us kids while my dad waited outside. On our way to the office, we went over and over possible questions and answers. We told the lawyer that we hated our mom and that we wanted to live with our dad. We told him she had left us for another man.

There was another time I remember being in court in a room with the judge and lawyers and my mom. My dad was waiting outside. I knew what I had to say. I stood up and yelled at my mom. I was furious at her because I was so alone.

My father used me and my pain and gave me words to express his hatred. I said that she was a bad mother, that she was a bitch, that she abandoned us. My father was awarded interim sole custody.

Once my mother was gone, my dad turned to me and my brothers for emotional support and started to completely pull us into his world. My dad had beat, humiliated, tortured and controlled my mother during their 13-year marriage. He had never hit me or my brothers until he took us away from our mother. Once she was gone, it was up to us to receive the blows of his fists, and his mind-games.

He told me that I was his wife now. He became emotionally and physically incestuous. We used to watch porno movies in our house. I was less than 10 years old.

He used to plan with us tactics to frighten and hurt my mother when she would have visits with us. He said we would prove that she was unfit. We would be rewarded for running away while she had us, or calling her a bitch and telling her to fuck off. There were times when he would even buy us things or give us money if we threw things at her when she came to our house. I remember seeing the pain in her eyes when we did this.

It was because my father had the money to hire very expensive lawyers and because he was driven by vengeance that he got custody. These people didn't believe my mother when she said he had abused her, nor when she told them she was afraid he was abusing us, too. They didn't believe her when she said he was following her and harassing her. But it was all true. We used to go for outings in the evenings to find out where she was, and slash her tires or sugar her gas tank.

These are some of the ways that he created the perception that she was an unfit mother. She looked like she was paranoid and trying to accuse him of outrageous things, but they were all true.

It was all a continuation of the abuse of her, and a way for him to destroy her, with us children and the court system as the weapons.

My father was awarded permanent sole custody. He had neighbours, my mother's family and co-workers supporting his story for court. The misperception of my father was fed by his fixation on us. It was assumed that because he was fighting for us, because of his incestuous and controlling closeness with us, and because he was a respected professional, he was a good and loving father.

• 2000

My brother certainly didn't benefit from having this good and loving father. In his teen years he began to hit his girlfriends, abuse alcohol and drugs, and perform criminal acts. Finally he put a gun in his mouth and killed himself, at the age of 24.

There were times when I envied him in his ability to completely escape. I ran away at 13, and moved far away from where I grew up. I had to change my name and hide, like a battered wife. I cannot imagine a worse result of my parent's court case than the one that happened. I would have preferred to never see my father for the rest of my life. I would have preferred to have never watched him beat and humiliate my brother to death. I absolutely needed my mother.

For years I thought and hoped that this was an isolated incident—that my family had slipped through the cracks. Since I began working in this field, I have been profoundly disappointed to see that this is not true.

Thank you. I have recommendations, but I don't know if there's time. Can I take a couple of minutes?

The Joint Chair (Mr. Roger Gallaway): Yes, please read them if you can, quickly.

Ms. Nicole Deagan: I don't have the legal background to write specific recommendations regarding the law, but I have read the brief written by the ad hoc committee on custody and access reform here in Vancouver, and I support the recommendations within it.

I've also read the model code on domestic and family violence put forward by the National Council of Juvenile and Family Court Judges in the United States in 1994. In this they have an excellent section with specific policies regarding child custody and access decisions. A copy of this section is attached to my brief.

I have listened to a number of witnesses during the two days of hearings in Vancouver, and have noticed that the reality of custody and access disputes for children is well-represented in the presentations by women's groups, transition house workers, and Children Who Witness Abuse program counsellors.

I recommend that you have ongoing consultations with the experts on battering relationships, who have knowledge of how this battering is continued through the courts. These experts are the transition house workers who see every day how and where the system fails to see this abuse.

I also recommend that you seriously question the unfounded theories that maximum contact and joint parenting arrangements are beneficial to children, since even in cases where there is no abuse, this is a way of growing up that is incredibly stressful and unstable for children. In cases where there is abuse, it is tormenting, dangerous and even life-threatening.

I recommend that you seriously consider how laws based on the gendered reality of violence do not jeopardize the relationship between honest, caring fathers and their children. An accurate understanding of these issues will enable the courts to properly and effectively protect the safety and well-being of children, and therefore will not be a threat to fathers who are not in fact abusing through the courts.

Thank you.

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

We'll turn to questions. Mr. Forseth.

Mr. Paul Forseth: First, I have a question for Ms. Deagan. You certainly describe a very tragic situation. What you also describe is quite classically what is seen in the literature as PAS, parental alienation syndrome.

Ms. Nicole Deagan: Yes.

Mr. Paul Forseth: What, in hindsight, do you feel would have been helpful to cut this dynamic off much earlier on in the process? I really don't know if there would have been legal changes, but certainly social support services.... What recommendations could you make that might have made a helpful difference very early on in the process?

Ms. Nicole Deagan: I think it is possible for part of it to be identified within the legal system. It would have helped me if my mother had been believed. This could have happened if the judge had been able to identify the dynamics of wife battering, violence and control. That's part of why I support adopting the preamble to the Divorce Act—

Mr. Paul Forseth: How old were you when the separation happened?

Ms. Nicole Deagan: I was seven years old when it started, and it lasted a long time.

Mr. Paul Forseth: I'm wondering about resources for you—if there would have been agencies or individuals that you could have spoken to.

• 2005

Ms Nicole Deagan: I had no ability to speak to anyone as long as I was living with my father. I had teachers and other people approach me to ask if I was okay, but there's no way I would ever have done what I thought then was betraying him.

I think the pressure put on children in custody and access cases—I'm sure you're all aware of this—is tremendous. If there's abuse involved and the children are with an abuser, then all of that abuse starts to get focused on the kids as well. I see that in my work as well, which is horrible, having lived that, but I don't think the kids—

Mr. Paul Forseth: So if we try to key in on children, you're saying the overall dynamics in PAS that's going on is so deep that it's very difficult to give an avenue for children to disclose.

Ms Nicole Deagan: One of the things that was most traumatic for me and I'm assuming also for my brother, although I'm not sure about that, is that we did have a say when we talked to lawyers, judges and the child advocate. We said we wanted to live with our father, so that's been a tremendous thing to deal with—the guilt of feeling like we actually asked for it. So I have serious concerns about children speaking in these situations, although I am also aware that there are kids who come forward with disclosures of abuse all of the time who aren't listened to, so it's very complicated.

Mr. Paul Forseth: You understand, of course, that the serious pathology of PAS goes both ways and is not gender specific.

Ms Nicole Deagan: I don't know about PAS syndrome or how substantiated that is. I question it as far as.... I don't question the reality of what happens to kids in custody disputes and how they're used, but I'm not completely familiar with all the literature on PAS. I don't agree with some of the ways I've seen it used.

Mr. Paul Forseth: Jennifer Wade, you referred to a book that talked about judges. Could you give us the title and reference for that book?

Dr. Jennifer Wade: It's called Government by Judiciary and it's by Raoul Berger.

Mr. Paul Forseth: Thank you.

Colleen Murphy, you presented a very interesting structural proposal. Have you vetted that structure with any outside experts or legal experts? It's a most interesting, novel alternative.

Ms. Colleen Murphy: Yes, I have spoken to several people in the seven years that I have been going through this process of various counsellors. Some are qualified and some are not qualified. Part of the recommendations came from things that they had personally told me. From talking to people, I believe that a lot of the adversity around the access and custody of children is created by the courts—it has to be adversarial, whereas in a lot of cases it's not. It starts off as two parents who may fight about the furniture, but they want to do what's right for their children. But when it turns out that somebody's pay cheque is involved, it becomes adversarial, and right now the children are the only way they can get to the other parent.

Mr. Paul Forseth: This is in line with a lot of the testimony we've heard about the inherently adversarial nature of our legal system, that the incentives are set up in a way that sometimes pushes people to make it more of a contest than need be.

That's all I have to say.

The Joint Chair (Mr. Roger Gallaway): The last question is to Senator Cools.

Senator Anne Cools: Thank you, Mr. Chairman. I have a couple of questions.

I'd like to thank the witnesses for coming before us. Dr. Wade, thank you for raising your concerns about government by the judiciary. I will take this opportunity to assert that I'm a Liberal and the Liberal Party traditionally is opposed to government by the judiciary. That is classical liberalism. Liberals traditionally uphold the sovereignty of Parliament and the elected representatives, so I share your concerns on that.

I'll come back to Dr. Wade, but first I'd like to go to Ms. Deagan and what seems to have been an extremely unhappy set of circumstances in her life, and terrible difficulties.

• 2010

I have a couple of questions, if it's not too painful. If it's too painful, I understand, because the subject matter is very difficult.

First, what is your relationship with your mother now? And second, I wasn't too sure if you said your father killed himself or if he's still alive.

Ms. Nicole Deagan: My brother killed himself.

Senator Anne Cools: It was your brother who killed himself. Okay. That's very sad.

What is the relationship with your mother now? What is your relationship with your father now? If this is too painful, I quite understand.

Second, how were you able to come to terms with this sort of difficulty and pain? Were you able to get some therapy? Did you have a supportive relative? Were you able to get assistance to come to terms with these unhappy circumstances that you have described?

Ms. Nicole Deagan: My relationship with mother is very difficult for me. I have a really hard time being in a room with her. She tries very hard to have a relationship with me and I try very hard to have a relationship with her. However, as of yet I've been unable to connect with her in the way that I see other people connecting with their mothers.

When I left my father's home, I ran away and he disowned me. He said that I had abandoned him, just like his wife had, and he hasn't called me in 13 years.

Senator Anne Cools: So that's why your story seems to end at age 13.

Ms. Nicole Deagan: That's where I felt like my family life ended. Then I started seeing a counsellor at my school when I was 15, and I have been in therapy ever since.

Senator Anne Cools: Ever since?

Ms. Nicole Deagan: Yes, I still struggle with it all the time.

Senator Anne Cools: How many years is that?

Ms. Nicole Deagan: Over 10 years.

Senator Anne Cools: You've answered the question. I thank you for that.

Mr. Chairman, does anybody want to go? I would be quite happy to let the questions stop.

The Joint Chair (Mr. Roger Gallaway): No, you're last questioner, Senator Cools.

Senator Anne Cools: Then could I go on with Dr. Wade?

The Joint Chair (Mr. Roger Gallaway): We have three minutes.

Senator Anne Cools: Dr. Wade, you raised some very interesting concepts. As you know, I have a lot of concerns about what I would describe as the assertion of the moral superiority of women. I resist superiority of biology, gender or race. I instinctively resist that. Perhaps you could attempt to wrap your mind around a very deep question.

A young Sri Lankan women stopped me outside a few moments ago and asked me a few questions about the issue of abuse. She focused in particular on child abuse. All the literature and all the studies show beyond any shadow of a doubt that most child abuse is by women, yet there is something about this that invokes disbelief. The charge of infanticide is a woman's charge. A man cannot be charged with the crime of infanticide.

Intellectually or therapeutically, have you been able to wrap your mind around the issue of the resistance on the part of many individuals to dealing with the fact that aggression and violence are human problems, not gender-specific problems? It's a deep question, but you seem to have given it some deep thought to it.

Dr. Jennifer Wade: I have. I couldn't agree with you more, and I think we do a disservice to the human race by separating it or by pointing fingers. I think there are certain things that propagate this. In North America there's the myth of apple pie and motherhood and so on, and I sometimes think how difficult Mother's Day must be for youngsters who have lived with abusive mothers. I really do, because they don't seem to even have a right to say it. I think Mother's Day propagates it a lot. The schmaltz that comes out to sell Hallmark cards doesn't do us a service at all.

• 2015

I think there is a myth in North America, through our plays, literature and art, that the mother is constantly the nurturing figure. I don't think that's true, nor do I think the father is constantly the nurturing figure, but I think there should be much more discernment. I think the case we've had here, giving testimony—why can't there be discerning adults? My question as I heard that testimony was what was going on in the court at that time? Who was witnessing that court? Why wasn't something coming out of that? Where are these discerning professionals at a time like that?

These are the questions that I have. I couldn't agree with you more.

The Joint Chair (Mr. Roger Gallaway): Final question.

Senator Anne Cools: One of the very good points that Dr. Dutton made this morning was that one should be suspicious of people who will not rethink new information, rethink positions and so on.

I just happen to have a newspaper article in my hand about a particular woman. She killed six of her own babies. I'm always amazed because violence in the family is just such a terrible thing. It bothers me. I wish we could outlaw it. We can't outlaw it but I would like to get rid of all of it.

Thank you.

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

I want to thank all of you for being here with us this afternoon at what I will call our penultimate session. We have one more half hour to go, and I want to thank you for being here and contributing to the work of this committee. Thank you.

The Joint Chair (Senator Landon Pearson): Dr. Beyerstein is next.

Professor Barry Beyerstein (Psychologist, Simon Fraser University): Thank you.

Honourable members of the joint committee, thank you for this opportunity to discuss these matters with you this afternoon. First, let me add my welcome to beautiful British Columbia and my hope that your visit will be as enjoyable as it is informative.

As I've been asked to confine my remarks to five minutes, a terrible hardship for a verbose professor like myself, I trust you'll excuse me for reading from a prepared text.

• 2020

The subject I've been asked to outline briefly for you this afternoon is in some respects tangential to your committee's main concerns. However, the issues I intend to raise about the reliability of human memory are relevant to your primary concerns as well.

This is because many decisions on matters of access and custody hinge on the believability of memories of who did what to whom and when. Some of these are from the disputants themselves, but more importantly they are often from children, often very young children whom we all desire to protect and for whom we wish to see fairness prevail.

I have followed with interest reports of earlier presentations to your committee regarding allegations of sexual abuse by one party or another in divorce and custody disputes. The usual question arising has been, what proportion of these allegations are deliberately false? That is, what proportion are simply lies concocted to gain leverage in contested custody and access cases? You've already heard from a number of experts on this issue, so I will not labour it further.

Although it is undeniable that intentionally false accusations of this sort are sometimes uttered in custody conflicts, and you've heard varying estimates of their prevalence, my role today is to introduce for you another source of possible injustice in these hotly disputed cases; namely, the inherent fallibility of human memory.

I would also like to draw attention to certain special problems that could arise when the recollections being elicited are those of very young children. Children caught in such an unenviable position as we've heard described today are under tremendous stress. They are subject to social and psychological influences from a variety of directions, and they are often put in the position of standing to gain or lose in a number of ways if they comes up with the “right” answers.

It is well known from psychological research that pressures of this sort are capable of distorting the recollections of honest and capable adults. Where youngsters are concerned, the possibility of significant distortions of memory can be even greater.

It was once an accepted truism in our society that children rarely lie in matters as grave as alleged sexual abuse. Amongst psychologists and psychiatrists who've studied this issue, however, it's now generally agreed that children, especially when forced to be pawns in a battle between warring parents, are capable of uttering falsehoods for a variety of reasons.

Although this may occasionally involve intentional lying, it is more often the case that when false accusations of abuse are made by children, they are the result of confusion arising from suggestions or coaching by parties through the dispute. It may also be that insufficiently trained investigators or therapists have unintentionally led these young witnesses to adopt false beliefs by suggesting preferred scenarios to them, not necessarily intending to bias them. These suggestions are often quite subtle and the results can be woven into later recollections by the child and believed as firmly as any other memory he or she might have.

These pseudo-memories can have all the vividness, detail, and emotionality we normally expect from true memories. In other words, children's accusations may be sincere but mistaken. Unfortunately there is no reliable way, in the absence of objective corroborating evidence, to decide which recollections of abuse are deliberately false, which are sincerely believed but mistaken, and which are horrifyingly true.

For this reason extreme caution must be taken at all stages in dealing with children if one is given the task of investigating charges of childhood sexual abuse. The bibliography I've prepared and brought with me today, and there are copies for you, is replete with examples of injustices perpetrated by those who were honestly but erroneously led to believe they had been abused.

The listed works also contain some direction, based on childhood memory research, that can help reduce the likelihood of implanting such false memories. Because child accusers who have been influenced by pressures of this kind sincerely believe they're speaking the truth, they are very easy for therapists, investigators, and juries to believe, especially if the children are stating what the adults themselves want or expect to be true.

These children have all the usual outward signs of trustworthiness, because they themselves are convinced they are recalling true memories. Thus their renditions have an aura of conviction conveyed by tone of voice, body language, eye contact, emotional content, and the amount of detail the narratives contain.

There are many examples I could give of sincere accusers who convinced courts or administrative bodies they have been mistreated, only to have it later proved by independent objective evidence that the actual events could not have transpired as they were recalled.

• 2025

On the other hand, we must also be on guard not to commit the parallel and equally grave error of assuming that all children's memories are unreliable.

Sometimes young children recall events with remarkable accuracy, and sometimes they are pliable victims of suggestion and subtle social influence. Research is only beginning to disentangle the web of factors that contribute at different times to both great accuracy and gross error when we all try to recall autobiographical memories. The galling fact is that at present science can offer no Pinocchio test that will allow us to decide in any given case whether memories are accurate or merely honest confabulations.

It is therefore imperative that investigators, therapists, and members of the criminal justice system be made thoroughly aware of the ease with which false memories can be instilled. It is essential that at all stages of investigation or therapy practitioners be exceedingly careful to avoid the risky methods that some pop psychologists have advocated for “refreshing” children's memories.

Rather than providing the royal road to the truth we all seek, techniques such as prolonged probing and exhortation to recall, hypnosis, guided imagery, fantasy role playing, playing with anatomically correct dolls, and so-called truth drugs have been shown repeatedly to be capable of creating false but very believable pseudo-memories.

The existence of a so-called false memory syndrome is a hotly debated topic that often divides academic memory researchers from therapists who must deal with anguished adult clients who sincerely believe they have recovered long-repressed memories of childhood sexual abuse.

Unfortunately many therapists are not as well versed in the science of memory as they should be. The clients most at risk for implanting false memories are typically young, disturbed adults who enter therapy for reasons other than dealing with the memories of abuse that seem to emerge spontaneously during their therapeutic sessions.

Researchers who are aware that recovered memories of this sort could be the result of suggestions in the media, pop psychology books, or the therapeutic setting itself point to the academic literature on memory. They assert that memory simply does not work the way the recovered memory advocates say it does.

What researchers have learned from studying large numbers of cases of false memories should also make us exceedingly cautious in accepting accusations of children when there is no independent corroboration. This is especially true if any of the dubious memory recovery techniques such as hypnosis, guided imagery, and drugs have been used.

The scientific evidence that traumatic memories can be repressed and later recovered by special probing techniques is very weak. On the other hand, it is well known that survivors of extreme trauma are much more likely to be unable to forget these past horrors than they are to be unable to remember them.

In addition, psychologists who study human cognition are well aware that memory is more malleable than most lay people are led to believe. Memory does not work like a video recorder, faithfully recording and playing back exactly what happened, adding and subtracting nothing in the process. Memory is much more inferential and reconstructive than this, and it is therefore more susceptible to corruption, addition, and deletion by well-meaning investigators or therapists who are just trying to find out what really happened.

Much research collected in this recently released volume, edited by Robert Baker at the University of Kentucky and listed in my bibliography, shows that adults and, probably to an even greater degree, children are susceptible to subtle cues implied in the questions the probers ask of them. Children as well as adults are adept at intuiting what answer is desired, and the usual inclination we all share to please authority figures can be a strong motivation to comply. Some ill-trained interrogators blatantly suggest events that are then incorporated into children's supposedly accurate recollections at a later time. More often, though, these suggestions are subtle and unintentional, but this in no way prevents them from being incorporated into false but seemingly real pseudo-memories.

We are all susceptible to modifying our remembrances of past events when psychological, social, and economic pressures are brought to bear. This is especially true if suggestions come from those we trust or see as legitimate authorities or if we stand to gain in some way from what we are about to recall.

It is true that the incidence of childhood sexual abuse is greater than most professionals used to believe, but in our haste to remedy this pernicious social evil, it is important that we not let the pendulum swing too far in the opposite direction; that is, that we come to overstate the actual rates of abuse or that we out, of a sense of collective guilt, automatically accredit all accusations uncritically.

• 2030

Ever since the time of the Magna Carta, emerging democracies have been well served by the evolution of due process and the notion that the state must have proof beyond a reasonable doubt before meting out serious punishments. The accused in child abuse cases have rights that must be carefully balanced against those of the victims. It is a delicate balancing act to be sure, and we must constantly remind ourselves that apparently sincere memories can be egregiously wrong on occasion. We must be careful that in our rush to do the right thing we do not abandon our commitment to the hard won civil liberties that protect us all.

In these troubled times it is well to recall the words of the eminent jurist, Oliver Wendell Holmes, who said “Citizens must be most on guard when motives are of the highest order.”

Thank you for your attention. I would be pleased to answer any questions you might have.

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

Who would like to start?

Mr. Paul Forseth: It seems I'm always starting, so I've deferred to someone else.

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

Senator Anne Cools: Thank you very much, Chairman.

I'd like to thank Dr. Beyerstein for sharing his studies with us.

I've been very curious for some time about this whole phenomenon of recovered memories. I've had conversations with people such as Dr. Merskey, and of course I have a natural interest in race. I'm just very curious. Why is it or how is it that this phenomenon afflicts only white, North American women? Why is that?

Prof. Barry Beyerstein: I wish I had a good answer for you. I don't think it does exclusively, but I think your sentiments are right that it is predominantly a white, middle-class phenomenon.

Senator Anne Cools: And North American.

Prof. Barry Beyerstein: That's true, too. It hasn't pervaded the rest of the world to the degree it has here.

Some of the explanations people have put forward are psychoanalytic, which don't sit too well with me, but others talk about changing sex roles in our society and the need to develop independence at the same time we have dependency needs and that sort of thing.

I think, to be honest, we just don't know. It's a phenomenon that has sprung on us, and we're playing catch-up trying to understand it.

Senator Anne Cools: There are many who describe it as charlatan and fraudulent. I'm not saying that's my belief. It's just a very curious thing, because the nature of pain and anguish and trauma is that it's invasive, it's intrusive. People can't forget it. Historically, that is how trauma has been—very, very intrusive.

Prof. Barry Beyerstein: In fact, that's how I got interested in this. As you may know, I'm a biological psychologist. I'm primarily interested in the brain and how it handles things like perception and memory. When I first heard about some of the phenomena we've just begun to discuss here, as a biological psychologist it seemed odd to me, because it seems almost self-evident that the role of memory is to recall things that have harmed you so you can avoid them in the future. It seems we are biologically wired—we even understand some of the mechanisms in the brain now—in such a way that traumatic things cause hormonal changes, which seem to harden in memories, make them more likely to be recalled.

I suppose a quick, thumbnail sketch would say that trauma tends to make the events more memorable although it makes some of the peripheral details harder to recall, and so there may be more confusion, when someone is under severe stress and threat and even violence, as to exactly what happened in what order and what the peripheral events might have been. But it does seem, as you suggest, to make it more likely that the event will be recalled rather than less likely.

Senator Anne Cools: I'm told there are about 1,400 families at least—this was some years ago—that have been damaged or afflicted or touched by this phenomenon. Do you know if there's any truth to that?

Prof. Barry Beyerstein: I wouldn't be able to say anything about the numbers, but I know they're very large. You're speaking in Canada, I presume.

Senator Anne Cools: It's Canada—not the U.S. but Canada.

Prof. Barry Beyerstein: To be honest, I don't know, but I suspect it may even be a conservative number. This is a tide that has overwhelmed us all. Of course we don't hear about all the cases, so they don't get tabulated in many cases unless accusations are made publicly, charges are laid, or other public events ensue. I suspect that's probably a fairly conservative estimate.

• 2035

Senator Anne Cools: I'll defer to Mr. Forseth now.

Mr. Paul Forseth: I wanted to follow up on what you could say about PAS.

You heard the testimony of Nicole Deagan, who was just before you. She became somewhat hesitant when I suggested that the dynamics of PAS is gender neutral. The other thing she wasn't really able to help us with was any technique from some social agency or intervener that would have stopped that scenario from unfolding. She said that various well-meaning individuals tried to get the kids aside and probed further, questioned them. I'm sure many of those counsellors were very professional and provided a safe atmosphere for disclosure if it was about to happen, yet the children resisted making disclosure. This seems to indicate how powerful and how deep the pathology is when this dynamic begins to happen.

Perhaps you could comment on some of the things that I've said. She implied but didn't directly say that the suicide of her brother was directly related to the PAS. I told her what I inferred was going on there. It wasn't totally clear.

Can you respond to what I've said so far?

Prof. Barry Beyerstein: First of all, I wouldn't want to hold myself out as an expert on this topic by any means, but since you asked, I agree with what Senator Cools said earlier. I've seen nothing in psychology that indicates one gender or another is more likely to be more truthful, devious, underhanded or, I'm sad to say, even more violent than the other. I think it's something that cuts both ways. In that regard I do think more attention needs to be given to looking throughout society for these kinds of things and not assuming a priori that one side has all the virtue and the other is likely to be the villain.

With respect to what we might do about this, I think some of the earlier testimony about applying a little common sense here and there was well taken as well. We should enter these things in a neutral frame of mind and try to get to the bottom of it.

In light of what I spoke about a few minutes ago, insofar as it is humanly possible, we want to avoid instilling things by our own attitudes, by our own expectations, and by our own implied pay-offs when we go to investigate these kinds of things. Perhaps the bottom line of my presentation is I worry that too many people enter these things with agendas or preconceived notions.

What I've said about memory and the influence that can be wrought upon it, especially in vulnerable people who are in emotionally devastating circumstances...it's so great that I just wish to underline the need for objectivity and the need for corroboration. We can't simply take apparently sincere statements at face value, because they can be as sincere as anything anybody has ever said and still be mistaken. On the other hand, we don't have that Pinocchio test, as I said, that would allow us to say these are the sincere but deluded, these are true ones, or these are the out-and-out charlatans who are faking. I wish we did. It would make all of our lives a lot simpler.

• 2040

Ms. Carolyn Bennett: Given these allegations of abuse, like Nicole's testimony, do you think the problem is a one-shot assessment? How do you sort out the false memory reality, or do you think Nicole in ongoing therapy would have been able to maintain her lie to protect her dad? Could we put in place an ongoing safe environment and therapeutic relationship that would help these people?

Prof. Barry Beyerstein: That's a very tough question. What seems to be coming out of this research is that there are tremendous individual differences; one size does not fit all. Some people can pick up false impressions in a very short time with very minimal prompting and coaching and that sort of thing. Other people do steadfastly refuse, even in experiments that are designed to inculcate false memories.

In the laboratory, for instance, it is quite easy to get most people to adopt false memories that people defend with some vigour. These are some people who just will not go along, no matter what. For others it is quite astonishing, almost frightening, how easily they can be led.

In any individual case it's very hard to predict what will come out of it. That's why my only plea is to tread carefully and to look—and I know how hard this is—for corroborative evidence rather than the say-so of people who may be entirely sincere but mistaken, or of people who may be sincere and correct.

Ms. Carolyn Bennett: Once the false memory is inculcated, does any amount of therapy help bring it back around to perhaps it didn't happen?

Prof. Barry Beyerstein: Again, there are a growing number of people now known as retractors or recanters who, by the luck of the draw, come into contact with somebody else they trust and sort things out, hear deliberations like those we're engaged in today, or see things on television or whatever and begin to doubt the things they were so convinced about that they were literally willing to throw parents in jail or destroy lives. These can be quite horrific incidents. Some of these people have turned around and, as I said, recanted.

There's a lot of research now devoted to trying to see whether it's a personal variable, whether some people are more likely—if indeed they are false accusations, and again, I reiterate that not all of these are false by any means. We have to be cautious in assuming they are all true or false, because we can't tell.

Ms. Carolyn Bennett: I think it's terrible that children could be put through a situation where they had to be so loyal to the abusive parent that no array of professionals would be safe for them as long as they were living with the abuser. As a society, you would hope that we could find some safe haven where they could actually tell the truth.

Prof. Barry Beyerstein: Where they could let down their hair. Yes, it's very tragic, I agree. We should of course distinguish those children who are simply the victims of out-and-out manipulation and know very well what's going on, what has gone on, how they are being manipulated, but for any of a number of reasons are compelled to go along with it, sometimes just out of sheer physical threats.

Ms. Carolyn Bennett: I have to ask the corollary question around the false memory. From the research, is it possible that with a true situation of sexual abuse, with skilful, therapeutic manipulation you can recant?

Prof. Barry Beyerstein: Yes, I believe it is. I think you are quite right, that's the corollary of what I've said—if the social pressures are right, the psychological vulnerability of the individual is right, and all of these threads come together. What I'm saying is that people can be profoundly mistaken about what actually happened to them, and I think it is possible that people can convince themselves that things did not happen that did happen, just as it's possible to do the opposite.

• 2045

Ms. Carolyn Bennett: With SPECT scans and all of the brain imaging techniques, are we ever going to be able to see abuse sitting up there on the screen?

Prof. Barry Beyerstein: Daniel Schachter at Harvard University, formerly from the University of Toronto, has published a few things that he is rightly very cautious about. He does not extend them farther than he feels comfortable, and he's very responsible in that regard. They're beginning to show that there may at some point be something biological, but we're a long way from that yet.

Ms. Carolyn Bennett: It would be nice.

Prof. Barry Beyerstein: It surely would.

Senator Anne Cools: I was just muttering under my breath that recovered memory is almost totally discredited now anyway. Almost.

The Joint Chair (Senator Landon Pearson): Mr. Forseth, do you have a further question?

Mr. Paul Forseth: For the record, in response to the senator's comment about almost, you nodded in agreement.

I'm going to be very brief. Perhaps in false memory and so on—there's a parallel to getting people out of cults, where there is a belief system that separates and disengages individuals from segments of their family or from community, trying to get to the truth through a memory or a belief or whatever that's held on to.

The therapy or the techniques you approach to overcome are somewhat parallel to maybe someone who's been separated in a cult. Your testimony also highlights the fact of the...when we try to evaluate the best interests of children, it's most troublesome and very problematic, and in some cases is more complex than we comprehend or understand.

What about this notion of parallels between the cult problem and—

Prof. Barry Beyerstein: Yes, I would agree. I see the parallel in regard to the kind of social influence that I alluded to earlier. Of course, we all engage in social influence all the time. In my line of work and yours, we're always trying to convince one another, convince larger groups, to do things and believe things, and that's perfectly okay as long as it's an open system.

As you mentioned in your question, the defining characteristic of a cult is that it's not an open system. It's a closed system and a hierarchical system in which communication is entirely in one direction. I think that's where I would agree with you most. Where we see parallels between cult phenomena that are involved in changing people's minds and to a certain extent their memories and behaviour, and some of the false memory sorts of issues is that there are disparate power relationships and restrictions on communication. It is not an open system where all the ideas can bounce off one another in a great marketplace of ideas. It is a directed and limited set of communication. And when that happens, people—all people, you don't have to be gullible or vulnerable. All of us are susceptible when we're put in those kinds of situations, and that's what I would most like to see avoided in all of these cases.

Mr. Paul Forseth: It's surprising to see the resistance of people who have stated a belief and, in view of incontrovertible evidence to the contrary, they still hang on to their irrational beliefs.

Senator Anne Cools: The Flat Earth Society.

Mr. Paul Forseth: Or the NDP!

The Joint Chair (Senator Landon Pearson): I would like to ask a final question.

This is very interesting testimony and I'm quite convinced about a lot of what you're saying, but I'm interested in the research that has been done on memory in young children. We all play the game of “where was your first memory”? Some people say it was when they were a year old, although I am doubtful.

• 2050

Can you think of research that is going on that is not a Pinocchio test, but that can give some sense to what credibility you can give to the distance between the event and the age that it is recalled—for example, children of two or of five who claim to remember something, or between short-term and long-term memory?

Certainly I find with my own grandchildren that they remember things for a short time. The three-year-old actually remembers what happened when she was last in the house, when she was two and a half, but I'm sure that when she's ten she won't remember that. She may remember vaguely she'd been there, but she certainly won't remember when.

Prof. Barry Beyerstein: What the research shows with respect to the distance part of the question is that all memories fade with time, and that we are more likely to confuse things or simply forget them the longer the time elapsed between the event and the time we try to recall it.

One of the important aspects with respect to today's topic having to do with children is that there's an additional phenomenon known as infantile amnesia. There's a lot of debate as to exactly where the curtain should be drawn. I don't think there's very much debate amongst the experts any more that such a thing exists—that there is a time before which it's exceedingly unlikely and perhaps impossible for a child to experience something and then remember it later in life.

Part of this probably to do with sheer immaturity of the brain, which is not fully developed at that time, and partly due to the fact that we have cognitive development as well. Once we start to learn language and other things that we use to incorporate our memories and so on, we remember them differently than we do prior to that time. So events that occurred previous to that are very difficult, if not impossible, to get at using the kinds of memory hooks and cues that we generally use as adults.

For that reason, I think it's certainly very prudent to be skeptical of anybody who claims to remember anything earlier than the second year of life. Some experts extend that even up to four and maybe even five, and again, there's probably individual difference there.

Tying this back to the false memory issue, people honestly will tell you—and I've had people do this to me and have probably done it myself—that they think they remember things from times earlier than that veil of infantile amnesia should allow. What happens, I think—and the evidence is there as well—is that events that have some meaning, or are family events, or are events that have a moral or a good story attached to them or something like that, get retold. Memory is kind of like a storyteller; it tries to make sense of things.

It's quite possible that what these people think they remember, and have all the emotions and all the vivid details about, and see themselves in this situation, and all of that, is not literally a recollection of something that was laid down and is now retrievable. Rather, it's a recollection of something that was told to them and appears, very much like any other kind of memory, although it is probably something that was told to them, not something that they're actually re-experiencing.

The Joint Chair (Senator Landon Pearson): Thank you. It's been a very interesting testimony. I've enjoyed it.

How about dreams, the memories of dreams? That's a whole different story.

Prof. Barry Beyerstein: I have a great lecture on that, but I think you folks are going to get rather hungry.

The Joint Chair (Senator Landon Pearson): Okay. We do have one person to whom we promised a three-minute session. Thank you very much indeed for coming.

A voice: I have trouble remembering what I had for lunch.

The Joint Chair (Mr. Roger Gallaway): Lori Campbell, perhaps you could come forward just for three minutes.

Lori Campbell (Individual Presentation): My name is Lori Campbell. My original background was in developmental psychology. I have a diploma in education from the Manawatu Polytechnic in New Zealand. I am a child of a spectacularly unsuccessful divorce, where I was left in the custody of a battering mother.

Since I've been in Canada, my ex-husband and I have raised a number of foster children. The original family was two natural children, two adopted children, and two permanent foster placements. Since the marriage broke up, I've had 16 more foster children. My ex-husband went on to have two more natural children from his second marriage, and also more foster children, so between us we have thousands.

• 2055

My ex-husband was okay as a husband, but an absolute prince as an ex. His attitude to any children who came into the family was that if they were siblings of his children, they were part of his family—period, no questions asked how they got there. Because of his attitude and later when he did bring a third party in—my children's stepmother—we consider that we have an expanded home rather than a broken home.

Despite the fact that some of the children who came in were severely battered when we got them, and many of them very badly traumatized, we have managed to produce successful, viable adults. We didn't raise children. We raised viable adults between us.

As a result of my experience with an unsuccessful divorce and with a successful divorce, I feel we must endeavour in our country to ensure that fathers are no longer either victims or executioners; that mothers are no longer either victims or prosecutors; and that children are no longer either pawns or prizes.

The very words “unfit parent” put a time bomb in any divorce where the parent who has the children living with them is under threat of being accused of being an unfit parent, and therefore in order to protect themselves often invent false accusations of their own. A parent who is denied access then has to invent ways of getting to their children.

If we can move that wording from “unfit parent” to “most suitable parent”, we then have less gunpower in the wording. A parent can be more suitable without being unfit. Sometimes as a child grows, their needs and interests change, and they're better suited to the other parent. They should not need to fight to move back and forth. It isn't disruptive to a child to live with an alternative parent if they've had and maintained constant contact and natural contact with that parent. They then can move back and forth.

If we're going to restructure the whole divorce system and change the culture and wording of the divorce system, since the family home is where the children live, why on earth can't we shift the parents back and forth instead of shifting the children back and forth?

Do you know, when my children changed from living with me to living with their father, that didn't mean I was unfit, and when my children changed from living with their father to living with me, that didn't mean he was unfit. One of my children moved over simply because she thought she was the only one who hadn't lived with Dad yet. One of my children moved over simply because Dad was closer to the school she wished to attend, and she thought—erroneously, as it turned out—that he would allow her to drive his car.

Another wording we really ought to work on is “custody”. If it's parenting, they're not going to jail, for goodness' sake; they needn't be held in “custody”. If it's parenting, we have something else to deal with.

And in mediation, if we have mediation mandatory always, in such an awful situation as Nicole was in, if there had been well-trained mediators at the very beginning, before the children were too traumatized to show it....

Do you know, many people tried to talk to my brothers and sisters and me about the situation we were in. Not one of us would ever speak—ever, ever, ever. I ran away. I hid. As a matter of fact, one time I was being searched for as a missing child, and I wasn't missing, I was hiding. And yet when I was found I did not say a single word about what was happening in the home, because no matter how careful and professional the people were who questioned us, I simply wouldn't speak up, because I didn't feel safe.

The Joint Chair (Mr. Roger Gallaway): Sorry, but—

Ms. Lori Campbell: That's three minutes?

The Joint Chair (Mr. Roger Gallaway): No, that's five.

Ms. Lori Campbell: So I talk too much?

The Joint Chair (Senator Landon Pearson): That was a nice note to end on.

The Joint Chair (Mr. Roger Gallaway): It was a nice note to end on. Thank you very much.

Senator Anne Cools: Chairman, before we adjourn, this little issue of Mr. Cottingham's letter—could the committee agree to take it as read?

The Joint Chair (Mr. Roger Gallaway): That's up to the committee. Do I have agreement? How long is—

The Joint Chair (Senator Landon Pearson): What I need is an indication of what it means to say that it's taken as read.

• 2100

The Joint Chair (Mr. Roger Gallaway): We only need agreement of members. Do I have agreement? That's all I'm asking.

Some hon. members: Agreed.

The Joint Chair (Mr. Gallaway): I appear to have agreement that it's taken as read.

This committee is adjourned until tomorrow at 9 a.m.