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]

Monday, February 16, 1998

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[English]

The Joint Chair (Senator Landon Pearson (Ontario, Lib.): Good afternoon, ladies and gentlemen. We now have our second session, with officials from the justice department giving us background.

Ms. Herman, would you start off?

Ms. Thea Herman (Senior Assistant Deputy Minister, Policy, Department of Justice): Thanks you.

With me today is Mr. Jim Sturrock, who's a senior research officer from the Department of Justice. In a few minutes he will take you through the research and statistics that we have on this topic. Also with me is Marilyn Bongard, who's counsel with the Family, Children and Youth Section of the Department of Justice. Carolina Giliberti is the acting team leader of the child support initiative at Justice.

Before I turn it over to Jim Sturrock for the presentation on research and statistics, I want to follow up on a couple of issues from last week. The committee had requested that we provide information about how the provinces were using federal moneys they have been given as a result of the child support initiative and the national child tax benefit.

The federal-provincial-territorial child support task force has prepared a report that provides an overview of activities the task force has taken with respect to implementation of the child support initiatives. The co-chair of that task force will appear tomorrow before the Senate committee, which is now monitoring the child support guidelines, and will table that report. Once that report is tabled, we'll be able to provide that report to this committee for your information.

With respect to the use of moneys being made available as a result of the national child benefit, we've asked officials at Human Resources Development to look into this and will provide that information once we have it.

As well, the committee was interested in receiving charts of interjurisdictional comparisons on access and custody. We're finalizing and translating charts that will show you what is happening in this area in the United Kingdom, Australia, New Zealand, and the states of Florida, Indiana, Washington, Minnesota, and California. Again, we will provide them once we have them.

I'd like to turn it over to Mr. Sturrock, who will discuss in more detail the research and statistics on this area.

Mr. Jim Sturrock (Research Officer, Policy Sector, Department of Justice): Thank you, Thea.

My name is Jim Sturrock. I'm currently working at the department as a researcher on family law matters. I've been asked to make this brief presentation to you on research and statistics into family law issues.

As Marilyn Bongard mentioned at last Wednesday's presentation, my colleague, Louise Savage, was to have made this presentation to you. Unfortunately, she was called away out of town for family reasons.

First of all, I'd like to give you a brief overview of what I'll be speaking about this afternoon. My presentation will contain three themes. First will be a small slide presentation providing some context on the number of children and families affected by family breakdown in Canada. The second part will look at past and present research on custody, access, and issues related to the research—i.e., some Canadian results that have dealt with custody and access, the lack of national data studies on these issues in Canada, and some U.S. studies and issues they have raised. Finally, I'll look at the work that is currently being undertaken to obtain more information on custody and access issues in Canada.

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The first part of my presentation will take information from the selected statistics on Canadian families and a family law paper, which were distributed to you and I understand are in your binders. That was distributed by the department. We call it a fact book, as it details a number of issues on families and family law. We consider this paper to be a living document in that it will require continuous updating as new and more recent information becomes available.

What do the data tell us about how many families and children are affected by family breakdown, changes in family demographics over time in Canada, and trends in marriage and divorces? According to the 1996 census, 84% of the Canadian population in 1996 lived in a family setting. Married couples with children made up 45% of all families, married couples without children, 29%, lone-parent families, 15%, common-law couples with children, 6%, and common-law couples without children make up the remaining 6%.

The types of families with children have changed over the past 10 years. The proportion of married couples with children has decreased from 77% to 69%, while common-law families with children and lone-parent families have increased over that time. The number of lone-parent families has gone from 19% of all families in 1986 to 22%, and the number of common-law families with children rose from 4% to 9% in 1996.

This next slide is based on the number of children that are in these families. Although most children under the age of 17 belong to families in which the parents are married, a significant proportion of children, 17%, are in a lone-parent family setting. Between 1991 and 1996 the number of children living with a lone parent increased 19% to just under 1.8 million children. This statistic is somewhat misleading because it only tells us how many children were living with a lone parent at that particular time. It doesn't tell us about children who might have lived in a single-parent setting and then changed to either a married or common-law setting. In 1996 the majority of these children, 15%, lived in lone-parent families headed by women, as compared to 2% in families headed by men.

Interestingly, there are some differences between when children actually live with their parents. Only 11% of children under the age of five lived with a male lone parent, whereas by the time children reached 15 to 17 years, one in five or 21% lived with a male lone parent.

While it's true that growing numbers of children are experiencing life in a lone-parent family, because this is happening earlier and earlier in their lives, it's not necessarily an experience that lasts very long. Extended periods of first-time lone parenthood are experienced by relatively few children, and this is particularly true of children living with their father. Only one out of ten spend half or more of their childhood up to the age of 16 with their lone father, compared to one out of five of those who stayed with a lone mother.

I'm going to turn to marriage and divorce trends. As you can see from the chart, the top line represents the marriage rate per 100,000 population, while the bottom line represents the divorce rate per 100,000 population. The time period is from 1968, when the Divorce Act was initiated, up to 1995, which is the last date shown there. The line in between shows the Divorce Act amendments of 1985.

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Marriage and divorce rates have shown some fluctuations in Canada over the past 30 years. Generally, marriage rates have gone down while divorce rates have gone up.

Changes to the Divorce Act in 1985 were associated with the rise in the divorce rate during the two years following implementation. You can see the bump in 1986 and 1987—they are fairly dramatic—as people awaited the amendments.

Since that time the rates have shown a slight overall decline to a rate of 262 per 100,000 population. When we look at the rate of divorce per 100,000 persons legally married, we see that the rate has not changed that much since 1980. As the 1985 amendments to the Divorce Act changed the grounds for divorce, separation is now the most widely used ground for divorce, and by a large margin—over 80% of divorces.

Now I'll turn to the second part of my presentation: past and present research work on custody and access. Let us turn to the question of what happens to children of parents who separate or divorce. It has to be emphasized at the outset that national data on custody and access issues do not exist in Canada. In fact, national data of any kind on family law in Canada is sorely lacking. This is an issue that has been recognized and various government agencies are now only beginning to tackle it.

I will describe some of those initiatives in the third part. For now it's more important to outline some problems that exist with available sources of information.

Over the years, Statistics Canada has been using the central registry of divorce to report the number of divorces in Canada each year. It is an administrative database, enabled by the 1968 Divorce Act, whose primary purpose is to detect duplicate divorce applications.

Since 1970 the central registry of divorce has also been used to collect some information on the circumstances of divorce. This included information on the number of children involved in those divorces and the custody arrangements of children.

These numbers have been widely used—you'll see them in print, in the paper, and in studies—but they do have some serious limitations. There are three primary problems. First, only if the custody order itself is part of a divorce judgment are the clerks required to capture this information. This would exclude arrangements that are made upon consent or in the separation agreement prior to divorce, and thus not part of the divorce petition. There are also some definitional problems, which I think were raised last Wednesday. There are no clear-cut definitions giving accurate information on reported child custody arrangements. The confusion lies with the term “joint custody”. It is unclear which cases reported to the central registry are legal—which is shared decision-making on aspects of the children's upbringing—or physical, actual residential arrangements made for the children.

Furthermore, because the registry only counts divorces, separations of common-law couples with children are not counted, nor are those married couples with children who only separate but do not divorce, thus seriously underestimating the number of custody and access orders. Despite the limitations, I think we still have to look at the central registry of divorce, as it remains one of the few sources of information in this area.

The next slide shows the custody arrangements from the central registry from 1970 through to 1995. I skipped a few years because it was hard to get them all the way across. The first bar is 1970, the second bar with the gap is 1979, and then it starts at 1986, which is when the information on joint custody started to be collected. The previous years are just to give you some idea of what's happened since 1968.

Prior to the 1985 amendments to the Divorce Act, the form in which the information was collected—full custody orders—did not have a place to tick off joint custody. So the numbers are not available prior to 1986.

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From looking at the graph we can see that most of the time divorce has involved sole custody orders, approximately 80% of custody going to the mother about 70% of the time and to the father about 10% of the time. There appears to be a steady decline in the number of children who are subject to sole custody orders. Joint custody, however that term has been defined, is now used in approximately 20% of these cases.

I'd like to turn to a few of the Canadian studies. We are highlighting only a couple, since it would take too long to go through all of them. There are a couple in which the department has been involved and another that is of interest.

The first one I'm going to mention is called “Evaluation of the Divorce Act”. This took place following the 1985 amendments to the Divorce Act.

The methodology they used was to examine court files on two sets of couples: those who divorced before the amendments and those who divorced following. As well, a number of personal interviews were conducted with persons whose files had been reviewed.

Although the data are somewhat dated—they were collected in the middle 1980s—the study is one of the first Canadian studies to examine a number of issues related to divorce and to involve more than 1,000 couples. The evaluators examined issues of custody and access and concluded that little change had occurred in arrangements following the amendments. Mothers were still likely to have custody in 70% to 80% of the cases; fathers got custody between 12% and 15% of the time.

Again, their study finished in 1988. The graph bears out these findings.

The authors also recognized joint custody, but only in terms of its legal dimension; i.e., the decision-making process in children's upbringing. They stated these types of arrangements were growing, but for lack of historical data it was too early to tell at what pace.

The second study was conducted by the Canadian Research Institute for Law and the Family, 1992. It's called “Access to Children Following Parental Relationship Breakdown in Alberta”, and it was done by Perry et al.

This was an exploratory study designed to develop an information base on child access. The objectives were to identify the prevalence of access arrangements among Albertans, identify relationships for those individuals involved in child access, and describe reactions and attempted solutions to those problems. The study used mail-in questionnaires to identify persons and follow-up questionnaires to those who were identified.

Some of the findings in this exploratory study were that a great number of people, not only those involved, may be affected by access arrangements. People, such as relatives, who were involved in access were actually gathered up in their sample.

Over one-third of custodial and non-custodial parents felt that the non-custodial parent was not visiting the children as much as they would have liked. Although most parents reported difficulties with access arrangements, going to court was the least likely option or route to take to resolve those difficulties. Most often they seem to resolve their issues themselves, through talking, talking it out with friends, or using counsellors or mediators.

The last study I'm going to mention is also a Canadian study, which was funded by the Law Reform Commission and directed by the department here. We call it “Custody, Access and Child/Spousal Support”. It was a pilot project conducted by Desmond Ellis under contract to the department.

The objective of this study was primarily to test a methodology for gathering accurate information for divorcing couples two years after the divorce. The study identified a number of cases in two court sites. Data were collected from the court files, and where possible parents were contacted and a follow-up interview was conducted with them to collect more detailed information.

The study particularly highlighted the difficulty in collecting data from court files and on custody and access issues. Just over 80% of the files contain some information on custody arrangements. The missing information was attributed primarily to custody not being an issue; i.e., the children were over 16 years of age.

However, there appeared to be a qualitative difference in custody awards between the two courts because of one court being a unified family court with a number of supporting services and the other not being a unified court.

The files we found were able to establish whether the joint custody terms were legal or physical, or both. Just under 80% of the files contained information on access arrangements, but this varied considerably between court sites. This was attributed to missing separation files in one of the courts.

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In summary, the collection of data from the family courts is hindered by a lack of standardization of court procedures across courts and the lack of automation. Data are not easily retrieved from family courts.

These three studies are by no means the complete body of research on custody and access in Canada. I cite them only to give you some feeling for the work in the area.

Last Wednesday Marilyn mentioned a study by a group of well-known American researchers. I don't have the title here, but I'll try to get it before the end of this session. They were attempting to look at what is known and what needs more study on the effects of divorce and custody arrangements on children's behaviour, development, and adjustment. I found it an interesting paper. They based it on a conference they had in late December 1994 and managed to get the paper published in the middle of last year, August 1997. So it took some time to get agreement on some of the issues involved with custody and access, and I think it points to some of the difficulties in studying this issue.

The study is a good overview of the issues related to family breakdown. The authors cite issues on which there seem to be broad agreement across various disciplines on the effects of divorce, custody, and access, and they identify those areas on which there is some disagreement.

Agreement was reached that most children of divorce experience: dramatic declines in their economic circumstances; abandonment, or fear of abandonment, by one of their parents; a diminished capacity of both parents to attend meaningfully and constructively to their children's needs; diminished contact with many familiar or potential sources, such as friends, teachers, and neighbours, of psychological and sociological support; and changes in their familiar living settings.

However, long-term effects should not be exaggerated. Many couples work successfully through the painful stresses of divorce. The authors conclude that one-quarter to one-third have considerable difficulty, but the children are most at risk with the 5% to 10% who clearly fail to succeed to overcome their differences.

High conflict couples have multiple characteristics. They have high litigation rates, high degrees of mistrust and anger, difficulty in focusing on the children's needs, and difficulty in co-parenting.

With respect to the relationship between the amount of contact children have with both parents and the degree of conflict between the parents, most children want to maintain contact with both their parents. When the relationship between the two parents is civil, the benefits of continued contact with each parent are more apparent than where there is substantial conflict between the two.

Some of the adverse effects of divorce on children can be ameliorated by seeking to minimize the conflict that surrounds the establishment of custody and access arrangements. Children are best served by arrangements that are reached by genuinely mutual consent and in a timely fashion.

Last is the current and future work on custody and access and data retrieval.

In Canada we've embarked on the first study of its kind in Canada. It's called the “National Longitudinal Survey of Children and Youth”. It is currently being conducted jointly by Statistics Canada and Human Resources Development Canada. It is tracking a large sample; it's initially starting out with 25,000 children over the course of several years. The first cycle of data was collected in late 1994. The same families are to be surveyed every two years for eight years, which will give us four longitudinal data points, with additional children—the babies, zero to one year old—being added to each cycle.

In the survey there's a section called “family history and custody”, which contains information on the family history, support payments, custody of and access to children by absent parents, and historical information on the living arrangements of parents. The objective of the study is to collect data on various aspects of children's lives at all ages. By following these children over a period of time, changes in development and well-being can be measured.

Other sections include questions on their health, education, family and economic circumstances, and social relationships. It is intended to help us monitor children's well-being and development and help us better understand what factors are associated with the positive development of children.

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A number of other initiatives are under way. Over the next year the department is undergoing a review of the forms that collect data for the previously mentioned central registry of divorce. This review will hopefully address the data quality issues that have been raised regarding the collection of information on children and custody orders.

Also, the Canadian Centre for Justice Statistics at Statistics Canada is conducting a civil law review at the request of the federal and provincial governments, with the objective of collecting national data on civil law matters, which includes family law. The department is participating in this review with the provinces in an effort to improve the information that's available on these matters.

Finally, the child support team at the department itself will be conducting a number of research projects over the next four years of its mandate to monitor and evaluate the guidelines. Included in these research efforts will be the collection of information on custody and access issues.

That completes my presentation. Thank you.

The Joint Chair (Senator Landon Pearson): I think we should go to questions now and hear more from the other members later.

Ms. Thea Herman: That completes our presentation.

The Joint Chair (Senator Landon Pearson): Then we'll go to questions. People would like to know more about the research the department's involved in.

Mr. Paul Forseth (New Westminster—Coquitlam—Burnaby, Ref.): Thank you very much.

You put up a chart, which showed the rates of divorce rising. I noticed in the diagram a particular point at which there was a great blip of increase in divorce rates. Do you have any ideas or notions why that happened at that particular time? Was there something going on with the economy? Was it related to particular legal changes? What was your general conclusion as to what was going on at that time?

Mr. Jim Sturrock: At that time there were amendments to the Divorce Act. The amendments came into effect in June 1986, and it was felt that because of the change in the grounds for divorce from three years of separation to one year of separation, many couples were waiting for those amendments to pass. Therefore, a number of people divorced following the coming into effect dates. They came into effect in June 1986. We see the blip or the high rates coming about in 1987.

Mr. Paul Forseth: So it was related to a legal change.

You talked about the confusion between sole custody and joint custody. In British Columbia they tried to distinguish guardianship from custody, and there were a number of court cases that confused the issue. I'm wondering if you have some study or perhaps have explored the making of new definitions. The concept of guardianship may be helpful for all the legal and signatory powers that a parent has and it would be distinguished from custody, which would be essentially the day-to-day care and control of the body of the child. I know other jurisdictions don't have that nomenclature of distinctions.

Do you have any comments about that?

Ms. Marilyn Bongard (Counsel, Family, Children and Youth Section, Department of Justice): Guardianship is the broader term, and it is really within provincial jurisdiction. You get legislation respecting guardianship in intact families in provincial legislation. Our Divorce Act is limited to within divorce, and we have the narrower concept of custody. It is not particularly well defined in the Divorce Act, but it is definitely narrower. It refers probably to the day-to-day arrangements you're talking about and doesn't try to get into the broader guardianship question, which would probably go beyond the Divorce Act's jurisdiction.

Mr. Paul Forseth: When we're dealing with the Divorce Act at the Superior Court, we're dealing with a judge who has inherent jurisdiction and can deal with anything. Certainly the guardianship issue is about being able to sign on behalf of the child, administer the child's estate, and so on. There is also the ability of the court to perhaps award guardianship to someone who may be 1,000 miles away from the child because they're administering complicated shares in a corporation or whatever.

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As the premier piece of legislation, the Divorce Act perhaps needs to be not so narrowly looked at. Perhaps the issues of guardianship and custody can be distinguished, unless we're going to go to some other descriptive words that talk about day-to-day care and control and so on.

Ms. Marilyn Bongard: I think we discussed on Wednesday that the issue of the terminology and the concept of custody has been raised as an issue and is certainly being considered as to whether it is a proper term or should be replaced.

Mr. Paul Forseth: I just have one further comment. In the presentation we just heard, it was said that access problems are usually resolved in an informal way out of the court. Yet if we read the newspaper or listen to the open-line shows, we would think that there is a real anger in the land out there, and all kinds of controversy.

If the court is being used in these most difficult cases, has there been some attempt by the department to specifically narrow in—to deal with those very problematic cases that keep coming back over and over again, seeing that most cases, as you've said, are dealt with outside the court system?

Ms. Thea Herman: I think one of the things this committee might look at is ways to deal with those cases. As you and others have pointed out, it's only in 5% to 10% of the cases where there's a real problem and where the courts at the end have to be used to determine something.

Certainly the goal would be to have the courts used as a last resort and use things like mediation, counselling, and so forth in order to decrease the number of cases in which the courts have to be involved and increase the number of cases in which the parents themselves—or parents with assistance from mediators or counsellors or other services—are able to arrive at an arrangement that is best for the children.

Mr. Paul Forseth: Thank you.

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

Ms. Carolyn Bennett (St. Paul's, Lib.): In the national longitudinal survey, are there any tools that actually measure the well-being of the child?

Mr. Jim Sturrock: There are some—I guess you could call them psychological tests, etc.—like that in there. It's a fairly comprehensive study, and again, the first one in Canada. But yes, there are some measures in there. I couldn't name which ones they are, but....

Ms. Carolyn Bennett: It sort of just says payments, custody and access, but I guess how the kids are doing is something I'd be.... If we're going to do a longitudinal study, I would hope that we'd be actually tracking the effect of being in a dysfunctional family or almost-ready-to-separate family, to try to see how those kids were doing. Over time you would then find out, once they divorce, if there was some disruption in school performance...or some of these other tools that might be worth measuring. It's the great thing about longitudinal surveys, I guess.

Mr. Jim Sturrock: Yes. I should mention that the survey actually is for part of the Brighter Futures initiative that was started I believe in 1990-91. Basically the thrust of it was not only to examine children in the sense of what is going wrong and why do they go wrong, but also what works. It then became one of the watchwords: what works with children—“WWW” or something like that. They are taking a number of measures, and again will be doing that four different times with the children, to watch their progression through time. It will be fairly interesting.

I failed to mention, I just realized, that the family and custody history will be released, and the last section of data that we're really interested in, which has the information on custody and family arrangements, will be released in spring of this year. We at the department are contracting with some of the experts on that section and these issues to write a report on the results from that study. We hope to have that done in the near future.

Ms. Carolyn Bennett: Would it be possible to have just a sort of more blown-up version of this survey, or just the terms of reference or what's being measured?

Ms. Thea Herman: We can provide you with more information on exactly what the survey is looking at.

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Ms. Carolyn Bennett: Okay. Thanks.

The Joint Chair (Senator Landon Pearson): Anne, any questions?

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

To the witnesses, through the chair, I would like to say again, as I said last week, that it's very difficult to follow your submissions without copies.

Ms. Carolyn Bennett: We're at tab 9.

Senator Anne C. Cools: Their presentations today are at tab 9?

Ms. Carolyn Bennett: Yes.

Senator Anne C. Cools: Okay, thank you. I was just told that we didn't have any. That's okay. Fine. Sorry, my apologies.

I'd like to thank you for your presentations last week. In addition to that, I'd like to continue. I think it was Marilyn Bongard who was talking about custody and guardianship, and you said essentially, from what I understood, that guardianship is a provincial concept. I wonder if you could explain or expand on the difference between custody and guardianship again, because I think there's a lot of confusion in what you said, and I'd like to hear your explanation again.

Ms. Marilyn Bongard: Custody is a statutory term in the Divorce Act. I haven't got the Divorce Act in front of me, but it contains a not particularly useful definition in that it repeats the term. It says “custody refers to the custody of”, so it's not a very satisfactory definition. The concept of guardianship is much broader. It's a common-law type of term, not a statutory term, and has other connotations that have been expanded upon by case law.

I believe you have a copy of the 1993 discussion paper, which contains a section that attempts to explain the difference between guardianship and custody. When I said that it's within provincial jurisdiction, I meant that most of the time you consider guardianship in terms of an intact family as well. Parents have essentially joint guardianship of their children as opposed to rights against the state, and that is the law. I guess it changes upon divorce to the extent that a custody order will provide a clearer definition of the rights and responsibilities of the custodial parent to the children.

That is one of the things that is different in the civil law in Quebec. Quebec has a concept of joint parenting, of joint responsibility for children, that's in the civil code. It specifically says it's not changed when the parents are separated or divorced. It's something that's raised very often—that we should make use of that, consider that outside of Quebec.

Senator Anne C. Cools: Believe you me, I know the difference very well. I'm very familiar with the Quebec explanation. I was just interested in your explanation.

Guardianship: you say at divorce there is a change. What is that change?

Ms. Marilyn Bongard: To the extent of the divorce order, if it grants sole custody, there are I think inherent some rights and responsibilities that go to the custodial parent. At least that's the way traditionally it was seen. That's what's in that blue paper—the fact that there is a lot of uncertainty about exactly what those rights and responsibilities to the custodial parent are, and a lot of uncertainly about what remaining rights and responsibilities are left with the non-custodial parent. It's out of that confusion and uncertainty that these other terms, such as joint custody, arose, to try to clarify some of the uncertainty.

Senator Anne C. Cools: But my question is slightly different. You said that some of the aspects of guardianship are lost at divorce, and I'm trying to find out what is the process by which they get lost.

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Ms. Marilyn Bongard: I'm not sure it's accurate to say they're lost or there are certain custodial rights. As I said, it's not clear what those rights are and what the relationship of those custodial rights would be with respect to guardianship.

Most of the time the issues arise in very particular fact situations. As Mr. Forseth mentioned, sometimes guardianship orders are made when parents are 100 miles away, but it's not necessarily in a divorce context. It pertains to a particular legal matter. The child is sued or is a party to a legal action. That would be a guardianship who would undertake to act on behalf of the child. So there are very distinct legal matters.

Senator Anne C. Cools: I understand. You say there is a lot of uncertainty and confusion on the issue of the meaning of custody. When judges in courts set out to make decisions, what factors do they rely on then, if there's so much uncertainty?

Ms. Marilyn Bongard: The best interest of the child is the factor that's stated in the Divorce Act. It is the only consideration.

The issues often arise in cases of relocation. There is a fair bit of case law where this issue has arisen. The courts have suggested that the best interest of that particular child in that particular fact situation is the only consideration.

Senator Anne C. Cools: So in the application of custody, in the making of custody orders, according to section 16 it was of the Divorce Act, you therefore say that the only factor the judges take into consideration is the best interest of the child. Is that what I heard you say?

Ms. Marilyn Bongard: Yes, that's in the Divorce Act.

Senator Anne C. Cools: We'll revisit that. The question I was trying to get at is how any person can lose rights because of a divorce. That still remains unclear to me, but we'll revisit it.

Ms. Marilyn Bongard: I don't think the court order takes away any rights. What the Divorce Act does is it authorizes the courts to make a custody order granting custody to the custodial parent. It doesn't get into any more detail on what the effect of that is.

Mr. Paul Forseth: It may be a shortcoming of the law.

Senator Anne C. Cools: It doesn't matter. We'll revisit it. These issues will take some time to come to the surface.

The Joint Chair (Senator Landon Pearson): I'd like to ask a follow-up question to this. The guardianship issue has a certain significance with respect to aboriginal populations. I don't know whether you have any comment to make on that. I feel that's a field I know zero about. Whether a guardianship...because of the rights of the children on a reserve, you must have perhaps done some work in this area. Have you? Guardianship has a special connotation in the aboriginal context, and I don't know if there's any evidence or research that's worked.

Ms. Marilyn Bongard: I'm really not comfortable in pretending to have an expertise in that area.

The Joint Chair (Senator Landon Pearson): Would somebody from the Department of Indian and Northern Affairs have that?

Ms. Marilyn Bongard: We could find out. I can follow up on that. We can suggest to the committee somebody who might have more of an expertise on that.

The Joint Chair (Senator Landon Pearson): We're going to need some witnesses who represent that particular issue. We would be interested in finding out how the concept of guardianship works out in that population.

The Joint Chair (Mr. Roger Gallaway (Sarnia—Lambton, Lib.)): We've completed our first round.

Mr. Forseth.

Mr. Paul Forseth: The witnesses may have pointed out a gap in the law that is very imprecise and varies from province to province. We get a difficult case so then we're scrambling for case law to find out what the definitions really are and what's the operative law in each province. And then we get parents moving across provincial boundaries.

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Perhaps this adds partly to the concern out there that this whole area of family law needs to be reviewed. The courts can enforce many issues, but they can't seem to enforce and decide about guardianship and custody issues.

Ms. Marilyn Bongard: I should clarify that the Divorce Act is the law in Canada—

Senator Anne C. Cools: We know.

Ms. Marilyn Bongard: —through all the provinces with respect to divorce. There are differences in provincial legislation, but no matter where you live in Canada, the same Divorce Act applies with the same statutory test.

The issue, I agree, is different with respect to access enforcement or with respect to enforcement, but with respect to the Divorce Act and what statutory consideration should be given in the best interests of the child, that is in the Divorce Act, and it applies wherever you live in Canada.

Mr. Paul Forseth: Perhaps in the discussion today you have pointed out an area where we need some fine-tuning of the Divorce Act to assist in the clarity of what people fight over. That's the only question I have at this point.

The Joint Chair (Mr. Roger Gallaway): Mrs. Karetak-Lindell, please.

Mrs. Nancy Karetak-Lindell (Nunavut, Lib.): In the notes here I see that the exception in the Northwest Territories were the words “best interests of the child”. They are not used. It says that the welfare of the child, the conduct of the parents, and the wishes of each parent.... What difference does that impose when you talk about the best interests of the children?

Ms. Marilyn Bongard: I don't think it really makes much difference. It's essentially the best interests of the child. It stood out as the only one that didn't actually use that terminology, but the case law suggests that it's all the same concept.

Mrs. Nancy Karetak-Lindell: The intent.

Ms. Marilyn Bongard: Yes.

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

Senator Mabel DeWare (New Brunswick, PC): Perhaps we all better take a look at page 7 in your custody and access document, which talks about custody and guidance and so on. I would also like to ask you if you know which provinces require couples to go through a mediation process before they get a divorce. Have you this information? Could you tell me if there are states in the United States that have that same requirement, if it's mandatory to do that?

Ms. Marilyn Bongard: With respect to legislation, I mentioned on Wednesday that Quebec actually has legislation—

Senator Mabel DeWare: I'm sorry, I wasn't here.

Ms. Marilyn Bongard: —with respect to mediation and it is mandatory. Before you can continue with your application, you have to attend mediation. There are some ways to be excused from it, but essentially it's a prerequisite to continuing on with your legal action. Other jurisdictions have a number of pilot projects.

Senator Mabel DeWare: Is Alberta one of them?

Ms. Marilyn Bongard: Alberta is one of them. A number of them...not necessarily mediation, but information sessions you have to attend. Most of those are found through the rules of practice in the court. Looking at their legislation, you wouldn't know that these are there.

Senator Mabel DeWare: Is it compulsory, or do lawyers suggest it if you don't know it's there? Does somebody suggest that a couple should go through that process?

Ms. Marilyn Bongard: The purpose of these information sessions is to make it available, to indicate to people that it is an option and to strongly suggest that they use it. As far as I know, Quebec is the only one that actually has it in their legislation.

Senator Mabel DeWare: Are the statistics there showing that it's working?

Ms. Marilyn Bongard: It came into effect in September or November 1997. It's very recent.

Senator Mabel DeWare: We haven't had time to have anything proven yet.

Ms. Marilyn Bongard: No.

Senator Mabel DeWare: Other jurisdictions...?

Ms. Marilyn Bongard: In other jurisdictions the pilot projects suggest that it is very useful, at least in terms of client satisfaction. The people who use it seem to think it helps. I don't know if there's been any suggestion that it actually prevents court actions, but in terms of people using it they seem to think it's useful.

Ms. Carolina Giliberti (Acting Team Leader, Child Support Team, Department of Justice): I would like to add that as part of the funding for the child support guidelines initiative, a number of jurisdictions have introduced either parenting information sessions or information sessions on mediation and the types of benefits to mediation. Almost all of the jurisdictions have parenting information sessions now, so when you go to court and make an application for a child support order, they will recommend that you go to one of these parenting sessions. They last in duration from three hours to seven or eight hours over the course of a month or six weeks.

• 1625

There have been preliminary evaluations of those projects and they've been very successful from the point of view of informing people about the court process and what to expect in the court process, and to point out the impacts of their divorce or separation on the children in order to put the best interests of the child first.

Senator Mabel DeWare: Thank you.

Ms. Marilyn Bongard: Family Mediation Canada—I think Justice contributed to its funding—has put out a booklet, and I believe it's out in diskette. It lists all the different mediation and parenting education courses throughout Canada. It's a resource that the committee might want to look at, especially if you're travelling. It gives the locations and—

Senator Mabel DeWare: And it's called Family Mediation Canada.

Ms. Marilyn Bongard: Family Mediation Canada is the organization that put out this guidebook.

Senator Mabel DeWare: And we could get it through...?

Ms. Marilyn Bongard: You could get it through Family Mediation Canada, which I believe is out of Guelph, Ontario.

Senator Mabel DeWare: Thank you.

Senator Erminie Cohen (Saint John, PC): Since a child is affected by custody and access regulations, do you have any statistics or information on how the child is involved in court proceedings when it comes to custody and access in any jurisdiction in the country? I think that would be important for us in our considerations.

Ms. Marilyn Bongard: The bottom line is that children are not parties to the divorce and there's no formal way they are involved in the court proceedings. There are some informal ways they can be involved, however, perhaps through the judge in chambers or an informal discussion.

Sometimes there are guardians or child advocates who appear on behalf of the child. I believe most provinces west of Ontario have some kind of child advocate. In Ontario it's known as the child's lawyer.

Senator Erminie Cohen: Do we have any examples or success stories of how effective this has been? Are there any cases that we could review or read where this has been effective?

Ms. Marilyn Bongard: They can appear in court on behalf of the child. It's unclear whether they're really the child's advocate or they're there to assist the court in determining what's in the child's best interest, and I think there is a distinction in functions there. I certainly can provide you with a list of all the government child advocates, and I can give you a list of all the child advocates in the provinces.

In terms of case law, is that what you're asking...?

Senator Erminie Cohen: Not case law but actual cases where there has been intervention on behalf of the child in a court proceeding.

Ms. Marilyn Bongard: I could check or the committee could call as witnesses these child advocates to get some indication from them as to how active and successful their intervention has been.

Senator Erminie Cohen: Yes, it's something we should be looking at.

Thank you.

The Joint Chair (Mr. Roger Gallaway): Is that all, Senator Cohen?

Ms. Bennett.

Ms. Carolyn Bennett: Every so often I forget that we're actually supposed to be helping to make the laws better. There's something in the Divorce Act called the friendly parent rule that I really don't understand. I would like some advice as to whether those sections are good or bad or whether there's something we should be doing if we're going to look at this.

Ms. Marilyn Bongard: I think it's fair to say that it is a controversial section. There is definitely a section explaining it in that blue book. It's called the friendly parent rule and it tries to set out what it says and the issues around it.

• 1630

Essentially, it indicates that the idea of access is important and promoting access is important, and it suggests that when considering custody, the court should look at which parent is going to be promoting access. A lot of people think this is a very good idea. It's been criticized as being especially problematic for battered women, who for safety reasons might be concerned about promoting access. This provision, which suggests that in looking at custody you should be judged by how willing you are to promote access—the concern is that they may lose custody because of concerns about access in a battering situation.

So there have been strong criticisms of this section by some, while others think it's a very good section. There are other statutes in Florida, for example, that form the basis of their legislation. It's a kind of joint custody presumption and it is strongly backed by the idea of promoting access as being an important consideration.

So it's a controversial section. You'll get people strongly supporting it and others strongly criticizing it.

Ms. Carolyn Bennett: If we were to get rid of the word “custody” and begin talking about parenting arrangements, is this something that could be...? I think the abuse situations have to be dealt with quite differently. Would this be a sort of lens by which you helped people sort out their parenting arrangement? Or is it a useful experience but we can move on to something better?

Ms. Marilyn Bongard: If you're going to make amendments to legislation, it's probably important to put in some kind of clarification. The big criticism seems to be that the terms now in use are very vague, so statements that can clarify intent and whether it's promoting access is a good thing.... I don't know if it necessarily has to be written as a friendly parent-type rule, but if the intent is to promote continued contact with both parents or suggest that it's in the best interests of children to have extended contact with both parents, you could probably put things in legislation. Those are some of the things that are in the legislation of other jurisdictions.

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

Senator Erminie Cohen: I have some concerns about third-party access and the rights of grandparents. I understand some progress has been made in the province of Quebec. Is there anything else you can add to that? Can you explain to us what is happening in that area in Quebec, what's been effective? Is it law or is it on the way?

Ms. Marilyn Bongard: I'm really not certain about Quebec. I know that in the Divorce Act grandparents are treated as third parties and must have leave of court in order to make application for custody or access. This provision is in there to prevent excessive litigation to make sure they don't have standing as a right. They have to get leave of the court in order to get the court to make an order granting access. This has been strongly criticized by some, but the real reason behind it is to prevent excessive litigation and to make sure people can't be dragged into court unless there's a strong connection.

Senator Erminie Cohen: In that 10% to 15% of difficult cases that are still at war and can never come to a happy ending, would it not be interesting to look at this third-party access? Sometimes the grandparent could be the stabilizer in that type of relationship.

Ms. Marilyn Bongard: Yes.

Senator Erminie Cohen: So we should be looking at that third-party access.

• 1635

Ms. Marilyn Bongard: I don't think they would be precluded from getting an access order when they would be an obvious.... Certainly custody can be granted to third parties, to grandparents, if both of the parents are deemed inappropriate or unfit.

Senator Erminie Cohen: You mentioned that it's not encouraged because of extra litigation, but in that 10% to 15%, that would be a major alternative.

Ms. Marilyn Bongard: I think there are ways other than looking at it as a legal standing issue. If you're trying to expand on some of the considerations and best interests of the child, there could be consideration given or something more explicit indicating that it's often in the best interest of the child to have extended family contact. But that's a different issue from granting them legal standing to bring a matter before the court and get a court order and promote litigation. I think they're two different issues, and sometimes they're confused.

Senator Erminie Cohen: Yes, I know. I'm confused at the moment. Thank you.

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

Senator Anne C. Cools: Thank you.

Mr. Sturrock, how are decisions made as to what kind of quality research you do?

Mr. Jim Sturrock: I'll let Thea take that question.

Ms. Thea Herman: I'll answer and Mr. Sturrock can add—

Senator Anne C. Cools: If I look at the correspondence I get, there are many issues that are begging to be studied, yet when I look at what's coming out of the department, I see a dearth of study in those areas. I'm curious because I would have thought your research was related to issues of policy.

Last week I asked a few questions about issues that I read a lot about. I know the department and the minister get a lot of correspondence about those issues because I get copies of the letters. How are decisions made about what you study vis-à-vis what the community or country sees as burning issues?

Ms. Thea Herman: There are a variety of things that go into deciding. As you point out, Senator, there are hundreds and hundreds of things that the department could research at any particular point in time.

When we look at the research agenda, we look at issues that are part of the priorities of the department and the government of that time. For example, Mr. Sturrock referred to the child support research that is going on. That's part of the initiative. When we have new initiatives we try to have research as part of those initiatives so we can evaluate what's going on. Obviously there are things that need research that we don't have the resources to do.

We also try to have partnerships with provinces to maximize the research that's going on, and with the Canadian Centre for Justice Statistics at Statistics Canada, which is extremely helpful in being able to further this sort of research.

Senator Anne C. Cools: I'm aware of all of that, but when he chooses a subject for research, what considerations come into play? Last week I asked about departmental studies, investigations or research into areas that are becoming the burning issues of the time. I was a bit surprised that the department had undertaken no study or research into those areas.

Dr. Bennett here just reminded me with her question about the friendly parent rule. It reminded me about the issue of parental alienation, which is where one parent forces the other parent out of that child's life. Why is it that the department has not undertaken any research into these areas? Is there any discussion within the department at the departmental level to study some of these issues?

Ms. Thea Herman: One of the things we are very hopeful about is that the national longitudinal survey will give us a lot of the information that we've been looking for. This kind of information is extremely difficult and expensive to get. You don't get it by looking at court files because the court files don't really tell you what's going on. They don't tell you what's going on in terms of the 90% of cases that settle before it gets to that point.

• 1640

So it's the kind of research where you need somebody out in the field interviewing families to find out what's going on, and families in great number. That's extremely expensive research, and hopefully the survey that's going on will help capture information we haven't captured before.

Senator Anne C. Cools: The other question I have relates to what Mrs. Bongard was saying earlier. Well, Ontario is your province; I know that obviously. Is there a role for the official guardian for Ontario in any divorce case, and if there is a role, what is that role?

Ms. Marilyn Bongard: It's not an automatic role, and there are guidelines. I would urge the committee to call the children's lawyer.

I believe they just recently put out a new set of guidelines about how they get involved, and to what extent. I remember seeing them; I haven't actually had a chance to read them over.

As I say, I would urge the committee to get that information. It is available from people who can tell you about their role far better than I can.

Senator Anne C. Cools: Thank you.

The Joint Chair (Mr. Roger Gallaway): Are there further questions?

Mr. Forseth.

Mr. Paul Forseth: Thank you.

I get a general feeling today from your presentation that in the main you feel the operation of the Divorce Act is okay, but that there are some hot points. On a couple of occasions today you did mention that there are a couple of sections that were controversial. In view of that, I was just wondering if you'd produced a paper or study that would at least review what you figured were the controversial hot points of further conflict, or whatever, in relation to the operation of the Divorce Act. Perhaps that would suggest what this committee could explore.

Obviously this is a very unique parliamentary committee where we have the House of Commons and the Senate together. It was certainly in response to a lot of concern out there in the community.

Yet I'm really wondering if the department is really aware of that. Have they done any paper that would say, well, okay, there are six or seven hot points in the Divorce Act and we need to really explore those? Here are some of the various views we're hearing from across the country.

At least in a fair-minded way it would explore both sides of the issue. I received a couple of those examples today, and I was just wondering if you have that in any more comprehensive form.

Ms. Thea Herman: I hope we didn't give the impression that this wasn't a serious issue. Even if it's a problem in 5% to 10% of the cases, it's a problem, and there are a lot of children who are seriously impacted by that.

So although in the majority of cases parents are able to solve the problems themselves, it's important obviously to.... That's why this committee is here to consider what happens in those cases where things don't work well.

In terms of the issues themselves, Marilyn, you might want to refer to the 1993 report.

Ms. Marilyn Bongard: As I mentioned, just about all these issues we mentioned today are in that blue discussion paper that was put out in 1993.

Last week I indicated that I really thought most, if not all, of those issues are still around today.

I don't know if there are nine, or whatever, but those are the hot issues as they relate mainly to the Divorce Act. Sometimes they go beyond the Divorce Act to more general issues about courts, as well.

Mr. Paul Forseth: Okay, thank you.

The Joint Chair (Mr. Roger Gallaway): Are there any further questions?

Senator Pearson has the last question.

The Joint Chair (Senator Landon Pearson): I was interested in your comments about current and future work.

It's clear not only on this issue but on many other issues that the collection of national data is a real problem, because of the way the different provinces keep and maintain their data.

We know that in the health field there are issues related to whether hospitals should computerize so that we can even have access to data on what patient is taking what medicine.

Is there any indication you know of that courts have moved towards computerization so that some of these kinds of data can be more rapidly collected?

• 1645

Mr. Jim Sturrock: Yes, it appears from the Canadian Centre for Justice Statistics that there is some automation in the superior courts and that they will be trying to get....

Basically the problem in family courts or in civil courts, though, is that there is no case management system or the integrated system they need to follow a case all the way through. It's kept in files, and they store these files in boxes, etc.

The larger courts seem to be getting more of an advantage, much as larger hospitals become computerized and automated. So you might look at Toronto and Montreal, some of the larger centres, where the courts are likely to have some automation.

We're trying to investigate this further, but that's the basis for the civil law feasibility study the centre has undertaken. It's to get an understanding of where they can fit into some automation and collect data in an electronic format, as opposed to going through court files, which is very laborious.

The Joint Chair (Senator Landon Pearson): They're doing a civil law feasibility study?

Mr. Jim Sturrock: Yes, it's a feasibility study in the working group. They're actually working towards some national data requirements. That means they go out and find out what people would like to collect. Even in those exercises it has become difficult to get at the issues that are really burning but that only affect a few cases. It's always difficult to collect data on those particular.... You usually require special studies of some sort.

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

The Joint Chair (Mr. Roger Gallaway): Okay, that will conclude our witness portion today. I would ask that committee members stay. We'll adjourn for about two minutes while the witnesses clear the room, and we'll deal with the last report of the steering committee.

Thank you, ladies and gentlemen.

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

• 1647

• 1653

The Joint Chair (Mr. Roger Gallaway): We have before us the second report of the subcommittee—in other words, the steering committee.

I'll ask Senator Pearson to lead us through this.

The Joint Chair (Senator Landon Pearson): We met last Thursday morning—nous nous sommes réunis jeudi matin—to discuss the future work and the plans.

One thing we had to settle fairly quickly was the idea of travelling: where we would go and how we were going to manage it. Because there was a lot of interest in making sure that we go to small sites as well as large towns and cities, the clerk worked hard on trying to figure out a potential itinerary that would be manageable from the point of view of nearby airports and things of that sort. It would also respond to our need to touch on a variety of bases.

I don't think the way it's presented here is actually fixed in stone, but it's the best plan you've been able to come up with.

What's not fixed in stone is the fact that we had discussed that subcommittee A.... The real advantage of having so many of us is that we can split into two. Then we can split again into smaller groups to go to smaller areas.

Subcommittee A that went to the west would have an unfairly heavy burden. As well, we felt that all of us should have some experience in all parts of the country.

So I think that eliminates whether it's A or B. It would be A the first week and B the second time. We're looking on this side when you're looking at who's going west.

• 1655

Mr. Paul Forseth: I think you confused yourself.

The Joint Chair (Mr. Roger Gallaway): I think what is being said is that the proposal for the first week is that subcommittee A—whoever might be involved in that—would head west and subcommittee B would head east. In the following week subcommittee B would head west, whereas subcommittee A would head east.

You'll note that for the first two weeks, listed on the left-hand side, those committees are going six days as opposed to five. So it's to even up the work schedule and, if you will, the geographical balance.

Mr. Paul Forseth: Then it would switch again in the third week?

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

The Joint Chair (Senator Landon Pearson): Then the other issue was that we said late spring, as you'll remember. We didn't actually say mid-April to mid-May. I think there was the thought that three weeks in four weeks was probably not going to be possible.

Senator Mabel DeWare: Whatever time it takes.

The Joint Chair (Senator Landon Pearson): So late spring is a more flexible term, but we'll have to do some discussions with your whips before we set it out.

Mr. Paul Forseth: So you're talking about the first and second weeks being back to back?

The Joint Chair (Mr. Roger Gallaway): No, we're saying that these are the locations where we will go over a period of time. I actually think, Paul, that in the end it will be the ultimate steering committee, since the whips will decide when we're able to travel.

Mr. Paul Forseth: Yes.

The Joint Chair (Mr. Roger Gallaway): So it may be back to back, but it's not necessarily back to back. That will have to be determined among the whips.

Mr. Paul Forseth: I hope we can get it on quickly. Then once we know for sure that we're going to be in Churchill, Manitoba, that really focuses it for the other long list of all the people who want to come and who may not be able to come. That's something I want to be involved with, to sort out who gets to come and use up our time and who doesn't.

The Joint Chair (Mr. Roger Gallaway): I will undertake to meet with my whip tomorrow. As I understand it, my whip will then, in turn, enter into discussions with all the other whips of the parties.

I don't know how long the process will take, but I hope that out of this will come a schedule. So perhaps we will travel one week, have a week here, another week, or whatever. Or perhaps they will find a way of doing back-to-back weeks.

But I think they are the ones who will ultimately determine our travel schedule, as opposed to the steering committee or this committee.

Senator Anne C. Cools: I want to make sure I understand you, Roger, because it sounds like a pretty sound idea. Subcommittee A becomes subcommittee B?

The Joint Chair (Mr. Roger Gallaway): That's right.

Senator Anne C. Cools: I'm just being crystal clear. Then from what I'm hearing you say, everybody will have an east and west exposure?

The Joint Chair (Mr. Roger Gallaway): That's correct.

Senator Anne C. Cools: What is a subcommittee?

The Joint Chair (Mr. Roger Gallaway): A subcommittee will be half of this committee.

Senator Anne C. Cools: So the committee will split into two halves?

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

Senator Anne C. Cools: Okay. And each half will experience each part—you can't say region—west and east of the country.

The Joint Chair (Mr. Roger Gallaway): Yes, that's correct.

Senator Anne C. Cools: Mid-April? When is the House of Commons break?

An hon. member: Easter.

Senator Anne C. Cools: Are you envisioning travelling through the House of Commons break?

The Joint Chair (Mr. Roger Gallaway): That's why I'm saying we will have to put this to the whips and have them actually determine when we're going to travel. The normal procedure of the whips is not to put you into travel when the House isn't sitting, although there are some exceptions to that.

Senator Anne C. Cools: So your whips will schedule us for when the Senate is sitting?

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

Senator Anne C. Cools: I would prefer to see us do it the other way. I would prefer to see us pin down what we're going to do. We would then evolve our travel plan based on that. As of yet I haven't seen any plan. I think this is a good plan, but I still don't know yet what are the issues we want to look at. We want to hear the witnesses, but if you're not careful, we'll have to travel again later on. You bring witnesses to speak to issues. Maybe we didn't get there yet.

• 1700

The Joint Chair (Mr. Roger Gallaway): I think there's a converse view to that: the witnesses bring you the issues, you don't create the issues.

Senator Anne C. Cools: I wasn't planning to create them. I was just saying we should proceed in an orderly way. I wasn't trying to determine the issues or the outcome, I was just trying to figure out what it is we're doing.

The Joint Chair (Mr. Roger Gallaway): What we're doing is we're going to hear witnesses in various centres across this country. They in turn will bring us the issues, or we, in our infinite wisdom, will determine what the issues are after having heard from these people.

I think you're suggesting that we should put forward some issues and then perhaps use those as criteria to hear witnesses.

Senator Anne C. Cools: No, no. What I was trying to say is that usually people in any business or whatever have a plan of what it is they're looking at. This is so that witnesses who have particular expertise in those areas of endeavour can come forward.

The Joint Chair (Mr. Roger Gallaway): Yes, and that's why we will agree, first, on where we're going. It's so that our staff can—

Senator Anne C. Cools: Go ahead and plan.

The Joint Chair (Mr. Roger Gallaway): —then bring witness lists to us. Then we can determine who from those communities we would like to hear from and who we believe to be important. But we first have to determine those centres we're going to visit.

Senator Anne C. Cools: Oh, absolutely. We have to consult them. There's no problem with that.

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

Senator Erminie Cohen: Just a minor change in editing, please. Saint John, New Brunswick, should be spelled “Saint”. That's a major problem if it's advertised the other way.

The Joint Clerk of the Committee (Mr. Richard Rumas): It's “Saint”, not “St.”.

The Joint Chair (Mr. Roger Gallaway): I know the difference.

Senator Anne C. Cools: I suggest we amend that, because then the entire committee is going to.... That's pretty profound.

The Joint Chair (Senator Landon Pearson): I'm not sure how we determine how we'll break into the smaller groups. We're certainly ensuring that everything is going to be recorded. So all information will be available no matter who has gone where.

As for the smaller groups, when you're breaking up to go between Goose Bay and Corner Brook, it may be only six going to one and five to the other. We'll do our best to respect all the usual—

Senator Anne C. Cools: When does the House of Commons break for Easter? Can somebody give me the date?

Senator Erminie Cohen: April 3.

Senator Anne C. Cools: From April 3 until when?

The Joint Chair (Mr. Roger Gallaway): The last Friday is the 3rd, so the break is from the 6th to the 17th.

Senator Anne C. Cools: Okay, so we do not expect that we'll be travelling at all in that time.

The Joint Chair (Mr. Roger Gallaway): I don't want to say that. I wouldn't expect it. First, these are four-day weeks, so it would be difficult to fit this plan, other than week 3, into that schedule or slot.

Mrs. Nancy Karetak-Lindell: I'm trying to figure out how I'm going to tell people in my constituency, if they want to submit or present something to the committee, how would they do that, because I realize we don't travel to my area.

Senator Anne C. Cools: We're not travelling to your area?

The Joint Chair (Senator Landon Pearson): Yellowknife is not actually your area.

The Joint Chair (Mr. Roger Gallaway): Is yours Iqaluit? Would that be your area?

Mrs. Nancy Karetak-Lindell: Yes, that whole shebang.

Senator Anne C. Cools: We can get everybody to Yellowknife.

The Joint Chair (Mr. Roger Gallaway): We're also going to Churchill. I know that's not your area, but—

Mrs. Nancy Karetak-Lindell: That's very close to my area. I'm just wondering what the procedure would be. Do we fly people in?

The Joint Chair (Mr. Roger Gallaway): We would bring them into Churchill.

Mrs. Nancy Karetak-Lindell: Okay. As for people from the central Arctic, say, do we fly them to Yellowknife?

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

Mrs. Nancy Karetak-Lindell: And people from Baffin will go to Montreal?

The Joint Chair (Mr. Roger Gallaway): Yes, to Montreal, unless certain members of the committee wish to travel across there.

Mrs. Nancy Karetak-Lindell: From Yellowknife, you could easily go off to Cambridge Bay.

The Joint Chair (Senator Landon Pearson): Just in terms of the lists, as we have done in that concept, can we agree that we'll lay out when the dates are, but that the committee is happy with that general idea?

• 1705

The Joint Chair (Mr. Roger Gallaway): Why don't we get a motion for the whole report?

The Joint Chair (Senator Landon Pearson): Do you want a motion that the report be adopted? We have a couple of other items.

The Joint Chair (Mr. Roger Gallaway): We have three other points. On the back of the page it was agreed that the joint chairs, who are representative of each party, as well as the necessary staff attend the 35th annual conference of the American Association of Family and Conciliation Courts in Washington, May 27 to May 30 of this year.

The Joint Chair (Senator Landon Pearson): That was a way in which we could get the American information all in one place. There are workshops on practically every issue we're looking at. Rather than travel through the states, we could go to Washington and pick it up there.

Senator Mabel DeWare: That's very convenient timing.

The Joint Chair (Senator Landon Pearson): Yes, it's very convenient timing. So that's what it's about.

The second one is the national family law—

Senator Anne C. Cools: The joint chairs being representatives of each party—does that include each chamber? I have some very serious concerns about Senate representation. Does that mean—

The Joint Chair (Mr. Roger Gallaway): The joint chairs represent both chambers.

Senator Anne C. Cools: Yes, but if I look at the steering committee, you've got both chambers a few times.

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

Senator Anne C. Cools: Right.

Mr. Paul Forseth: Are you saying you want to go to Washington, D.C.?

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

Senator Anne C. Cools: I'm not saying that, I'm just saying maybe we should open up the process so that other members of the committee can attend some of these meetings as they occur; in other words, that we engage in the mystical process the whips engage in when they make choices.

The Joint Chair (Mr. Roger Gallaway): The problem is that with 23 members it would be quickly kiboshed.

Mr. Paul Forseth: As a steering committee we don't lock the door. All the steering committee does is try to sort things out in a smaller group. The steering committee can't vote it aside anyway; it all comes back here.

The Joint Chair (Mr. Roger Gallaway): That's right.

Mr. Paul Forseth: If you want to come to a steering committee and blow your top, well, I guess you're welcome.

The Joint Chair (Senator Landon Pearson): I don't think the steering committee was what Senator Cools was speaking about. It's the conference in the United States. We've said the equivalent of seven, but I think in this case I would also argue for some Senate representation, beyond mine.

Mr. Paul Forseth: We'll just have to look at it. If we have an anomaly, we'll deal with it when we get to that point. We're flexible.

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

The Joint Chair (Senator Landon Pearson): For example, the next item, which is the members and staff attending, is just a number of members. It happens that the national family law program conference in Whistler is all about what we're about. I think it would be an excellent opportunity, even though our hearings will have been completed and many people wouldn't be able to go because it's the first of July weekend. It would have all the Canadian stuff there; it would be very good.

The Joint Chair (Mr. Roger Gallaway): Speaking as one of the members of this committee, I know that it's very difficult for the MPs to attend a conference on those dates. We work then.

Mr. Paul Forseth: Your function is flag raising.

Senator Anne C. Cools: All I'm trying to say is let us engage in a process to understand that there are 23 members, many of whom have some experience and interest in the issue. If there are conferences to attend, we can find a way of choosing, even if we have to draw lots.

The Joint Chair (Mr. Roger Gallaway): That's right.

Senator Anne C. Cools: We can find a democratic way. I understand very clearly that the steering committee does good work, but I wouldn't want the steering committee to get into the habit that every time they bring something it's automatically adopted. That would be a very bad habit, wouldn't it?

Therefore, all I'm trying to say to you is that there are other members here who may want to attend some of these meetings or may want to bring forward a meeting and we should just find a method. I don't think every single person has to go from every single party every single time. It may very well be that the committee has some ideas on whom to choose to send, just to keep the discussion open. I know a lot about the mystical processes of how whips work.

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

It was agreed that the joint clerks and the research coordinator prepare the list of witnesses by region and subject themes with recommendations for the consideration of the subcommittee at its next meeting. That's just an action item.

Senator Anne C. Cools: What is with the recommendations?

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The Joint Chair (Mr. Roger Gallaway): They're putting together a list.

The Joint Chair (Senator Landon Pearson): They're putting together a list. It was submitted by you and everybody else.

Senator Anne C. Cools: I always have concerns about receiving recommendations. Bring the list. We'll look at it and make decisions based on it.

Just a minor thing, but what is the subcommittee on agenda and procedure?

The Joint Chair (Mr. Roger Gallaway): It's the steering committee.

Senator Anne C. Cools: I think we should correct that. It's the steering committee of this committee. It's not—

The Joint Chair (Senator Landon Pearson): It's always technically called a subcommittee on agenda and procedure.

The Joint Chair (Mr. Roger Gallaway): The rules provide for that name. The street name is steering committee.

Senator Anne C. Cools: Let's keep it as the steering committee of...so that we all know.

The Joint Chair (Mr. Roger Gallaway): I think Senator DeWare was going to move concurrence.

The Joint Chair (Senator Landon Pearson): With comments to be taken into account.

Senator Mabel DeWare: I move adoption of the account.

The Joint Chair (Mr. Roger Gallaway): Agreed?

Motion agreed to

The Joint Chair (Mr. Roger Gallaway): Before we adjourn, there are two other matters.

First, Senator Cools, you had a question about when materials arrive from the Department of Justice. Do you want to say anything about that?

Senator Anne C. Cools: Yes. It's not so much the availability or when materials arrive, but I was struck, both today and last week, that when the department people appeared before us they did not give us a copy of their remarks in advance so that we could follow along with them. I go to a lot of committee meetings, and I find that a little unusual. They do have the staff. They're not like many members such as you, who hardly have anybody to help them prepare. They have quite extensive staff.

When, like today and last Wednesday, the department is making a presentation, it would be helpful if we had copies in advance of the meeting itself.

The Joint Chair (Mr. Roger Gallaway): I think we had discussed at the beginning of this committee that we would attempt to obtain as soon as possible from witnesses, whether they be the Department of Justice or some community group, their presentations.

Certainly we're going to be hearing from some groups in other centres that will make a presentation viva voce. We won't be able to criticize them. I think the intent of the Department of Justice—and I'm not a defender of the Department of Justice—was to make a presentation today that was more educative in value as opposed to being long on a script that we would receive first-hand.

I don't know about you, and this is terribly subjective, but often I sit and listen. I don't have the opportunity to read. If it comes two weeks before, I don't read it. That may be a bad habit of mine.

Senator Anne C. Cools: Maybe it is, but I was trying to say that I was not at all—

The Joint Chair (Mr. Roger Gallaway): Maybe it's because I'm busier.

Senator Anne C. Cools: Maybe. If we're going to do that, I'm going to fire back at you, so you had better be careful about what you're opening up here.

The Joint Chair (Mr. Roger Gallaway): I'm trembling.

Senator Anne C. Cools: What I wanted to say is that it is erroneous to compare officials from the Department of Justice with ordinary witnesses, who are mostly volunteers and preparing a lot of material with their own resources.

When department officials come before us, I think we have the right to expect a little bit more. That's all I was saying.

The Joint Chair (Senator Landon Pearson): I think everybody had a briefing book. It was—

Senator Anne C. Cools: No, it was not. Their presentation was not in our hands in advance.

The Joint Chair (Senator Landon Pearson): But isn't this in the book you have?

Senator Anne C. Cools: No. Today's presentation was not given to us in advance.

Ms. Carolyn Bennett: It's in tab 9 of the binder that you—

Senator Anne C. Cools: No, those are extracts from certain studies. It unfortunately shows that none of you have read it. Their presentation today was not in the binder that was given to us. The graphs were, but not the presentation.

The Joint Chair (Mr. Roger Gallaway): Senator, are you asking for his word-by-word script?

Senator Anne C. Cools: No. I'm saying that when we bring department officials before us, we should be clear on what we're asking them to come to do. When department officials—not ordinary witnesses, who have much more leeway—come to us officially representing the department, I think we should expect a presentation in advance.

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Mr. Paul Forseth: Certainly that is the practice when a department comes to a committee.

I am now in the situation of having to wait for the rough blues, or whatever, if there are going to be any produced for this committee. Knowing the order of priority of how that pecking order goes, the blues for this business today might be weeks away. I hope not.

So in order to have the material that was presented and then make notes about it, certainly the upfront material would have been helpful, because that's what you highlight and mark as you're going through for subsequent questions in the back end of the interview.

The department has all the resources in the land to be able to come with a proper presentation that's already translated, and that's the normal form for a departmental presentation. Twice now they've come with....

My impression is that the gentleman never saw what he was reading before he read it and had no particular enthusiasm or interest about it all. It seemed to be a very offhand response by the department to this committee, so I was a bit put off by that.

They came today without a document. It was pointed out to them last time they came, but they didn't heed the—

Senator Anne C. Cools: That's right.

Ms. Carolyn Bennett: He also read verbatim from tab 9—

Mr. Paul Forseth: Okay.

Ms. Carolyn Bennett: —and he did explain that the woman who was supposed to do the presentation was sick.

Mr. Paul Forseth: Okay, that is helpful, because I didn't get that.

The Joint Chair (Mr. Roger Gallaway): I would appreciate in the future, if you have comments about the adequacy of witnesses or the adequacy of written materials, that the comments be made either at the beginning or raised as a point of order, if you wish, but please don't engage in a conversation during the meeting. It's very disruptive to the others.

The next meeting is confirmed for Wednesday at 3.30 p.m. Our witnesses will be from the Barreau du Québec. There will not be anything in advance.

This meeting stands adjourned.