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 26, 1998

• 0829

[English]

The Joint Chair (Mr. Roger Gallaway (Sarnia—Lambton, Lib.)): Order, please. I wonder if those standing could please sit down.

Good morning, everyone. I have a couple of announcements.

First, to those in attendance, I want to say welcome. This is the special committee studying custody and access under the Divorce Act, and we're very pleased to be in Halifax today. We will be meeting here today from 9:30 a.m. to 4:30 p.m.

This is a proceeding of the Parliament of Canada, and I have to tell people that we do not allow clapping, talking, or any reactions to testimony given or to questions asked. I would ask for quiet in the room.

• 0830

Second, if you have a problem hearing or you need interpretation, there are little headsets you can obtain at the door.

Colleagues, before us this morning we have three witnesses—Mr. Steven Nelson, Dr. Gene Keyes, and Mr. Brian Parsons.

Gentlemen, I assume you know that we ask you to limit your comments to no more than five minutes. Five minutes or less is fine.

We'll start with Dr. Keyes.

Dr. Gene Keyes (Individual Presentation): Thank you.

My names is Gene Keyes, and I've taught political science at Brandon University and St. Thomas. I have two children, Jeremy and Rachel. Today is Jeremy's birthday. He's 22. My daughter is 18. I haven't seen her for the last six years.

The preferred norm I would like to talk about is for equal-time shared parenting and mandatory mediation, but the current travesty we are up against is that apartheid is enforced against children and fathers. The iron rule of thumb is two weekends per month for father and child. To give you an indication of how this works, let me show you an extract from a family court proceeding I was involved in.

I'm sorry; my tape doesn't work here. At any rate, the judge had said I could have two weekends a month, and I was trying to get an extension of the access. I asked if they themselves would be satisfied with two weekends a month. He told me that in all the court orders and decrees nisi they enforced around there, two weekends per month was the norm.

I think that situation, where 60,000 children a year are forcibly denied any kind of equal parenting time with their fathers, is one of the worst state-enforced abuses of human rights in Canada today. The court ordeals we go through are sickening and unbelievable. Abusive lawyers are rewarded by adversarial, winner-take-all courts. We have debtors' prison for fathers only. We have children moved away at the mother's whim. We have shattered families, devastated fathers, and scarred children. These are the dark ages of family law in Canada.

I'd like to go to the recommendations of a group I was with 12 years ago, called Family Rights for Children of Divorce. I have given the entire 17-page brief to the committee. I updated it only slightly for today. I'm going to be running through the summary briefly. We gave this brief to the Nova Scotia task force on family and children's services, but it was ignored at the time.

The policy we recommend is to abolish child chattelism and delete custody and access language. Let's talk about equal-time shared parenting in the legislation. By dictionary definition, “chattel” is an article of personal, movable property, which is exactly how mothers and judges regard children—pieces of personal property to be moved whenever and wherever in the world the mother wants, in total disdain of the child-father relationship. “Custody” is the formal word for imprisonment, and “access” is the formal word used for a prisoner's privilege to see a lawyer, or vice-versa.

These are nauseating, abominable words, and they extinguish a child's right to have a father. Let's get rid of these words and concepts now. Speak only in terms of parenting time, with 50-50 as the norm, adjusted according to individual circumstance.

• 0835

Non-adversarialism should be the rule in court, decriminalization, and rebuilding of the child's family units, of the father and mother alike, respectively.

We would frame this in legislation to establish a retroactive children and family rights act, establishing: the presumption of equal-time shared parenting in all cases, absent in proven felonious child abuse; obligatory mediation for separating or divorcing parents; abolition of debtors' prison, with no jailing of parents under any monetary or other pretexts, short of proven felonious child abuse; abolition of adversarial court proceedings; exclusion of private adversarial lawyers, to be supplanted by mediators and conciliatory public counsel for a child and parents; restoration of grandparents' legal ban on their unilateral exclusion; the equal right of each child to the equal love and equal care of each parent shall not be denied by any official; that no court shall deny, abridge, or cancel any child's equitable contact with each parent; and no child relocation without mutual consent.

To implement this kind of legislation, I would look to two new services under a federal-provincial family mediation service to supplant court adversarialism.

The Joint Chair (Mr. Roger Gallaway): I'm sorry to interrupt, but you're almost out of time. I wonder if you could wrap it up in thirty seconds.

Dr. Gene Keyes: Yes.

The second would be a federal-provincial family advocate service to supplant these hired-gun divorce lawyers.

I think two bodies like this will go a long way toward restoring sanity and justice, and even love, among divided families. Equal-time shared parenting and mandatory mediation must be the norm, not the exception. The time to abolish child chattelism once and for all is now. The cruelty to fathers and children must be stopped. This joint committee can make a difference.

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

Mr. Nelson.

Mr. Steven Nelson (Individual Presentation): Thank you.

My name is Steven Nelson, and I am a divorced father of two children. I have a ten-year-old daughter and a soon-to-be-seven-year-old son.

As a career firefighter, I work seven days and seven nights a month, so I am not a traditional father. I have custody of my children 19 out of every 28 days, but I had to fight. I went through bankruptcy. Despite the fact that I have the children 19 out of every 28 days, I still pay child support. Their mother, who has a lower income than I do, is now able—and this is accepted by the judge—to provide our children a four-bedroom, two-storey home, with a finished basement and a pool in the backyard. When they're with me, they don't get their own bedroom, because I live in a two-bedroom basement. I can't afford to rent an apartment.

I've done everything throughout my marriage, and then along into the divorce, from cleaning, laundry and cooking to obtaining daycare services. I took the kids for their walks. I still take care of all their medical and dental appointments. I attend their school twice a week as a volunteer parent. I've actually been asked to be president of the home and school association. I taught them to ride bikes. I had them baptized. I take them to church. Their mother is not involved. It leaves me wondering what I have to do to be an equal.

Upon a return to court recently, I had a Supreme Court judge respond to my lawyer's involvement, talking of my involvement with my children, by interrupting him, putting his hands up in the air, and saying simply, “I don't care if Mr. Nelson does...”. I'm left to believe that our courts are still biased and prejudiced, and in fact careless as well.

I feel quite strongly, as Mr. Keyes was saying earlier, that if I had a Monday-to-Friday, nine-to-five job, I would have my children every second weekend, regardless of what I do for them. I was a dedicated husband and a dedicated father, and the judge treated me as though I were an alcoholic and an abuser. At no time did I do either.

I want to note that according to sociologist Charles Murray in The War against the Family, children need the influences of both a mother and a father.

David Popenoe, a professor of sociology at Rutgers University in New Brunswick, New Jersey, takes it further. He writes:

The father's involvement with a child is to stress competition, initiative, risk-taking and independence. Mothers, on the other hand, stress emotional security and personal safety.

• 0840

The point is, children need the influence of both parents, and unfortunately, from what I see, our courts don't support this.

By the way, I do have the support of the children's teachers, their principal, their family doctor and child psychologist, their day care operators, and their dentist, but I can't get the respect and support of a judge who supposedly represents these people.

With the child support I'm ordered to pay, I challenge that if I just walked away and let the judge order me to pay the maximum amount—if their mother had full custody—I would save money. Basically, if you took the difference, he doubled my child support. If I walk away, he can only order me to pay another $144 a month. I'll save that in food alone.

On top of that, the children will not be involved in their extra-curricular activities because their mother doesn't take them. That'll save me more money. On top of that, she would have to start taking them to the doctors and the dentists and so on and so forth, the job that I do. That's not to say she's never done this, but in her time. She would take the children to the doctor or dentist if it wasn't a scheduled appointment.

Because of this, I start to wonder if judges are actually qualified to deal with children. Judges today are yesterday's lawyers. I hope I don't offend anybody here, but they work long, hard hours to develop a successful law firm. To do this—and I've seen it—they'll manipulate the system for good or for bad in order to win at all costs.

On top of that, they really have no experience, as I have, in raising my children, because I don't have the long hours they did. The judge who made that decision regarding my time and my input can't relate to changing diapers and doing what I've had to do.

I'd say our judges have to be retrained so that they can understand what a child needs. Outside of abusive situations, having one parent simply write a cheque is not enough. Our judges do not consider the emotional, physical and psychological needs of a child that each parent offers.

The role of lawyers must be removed or at least restricted. All I can see that they manage to do is create larger legal fees, longer courses, and drive bigger wedges between two parents. It becomes quite obvious, then, that we need the input of people who do care. When it comes to children, we need the input of child psychologists, social workers, and clergy. These people have a track record in working for the best interests of our children.

I also highly recommend premarital education and mandatory prenuptial agreements or marriage clauses possibly outlining each parent's involvement with any children and what will happen “if”. This way, perhaps if one parent decides to leave the commitment, they would know what they were giving up before they leave.

I also suggest mandatory divorce counselling is necessary as well. A child psychologist has previously told me that it's easy to see who is doing what and where the fault is. Because a psychologist is not working for a personal victory, as a lawyer is, he or she is better suited to make recommendations regarding our children, and is better qualified, I argue, than judges.

The bottom line is that children are not a commodity. They are young individuals who are temporarily placed in our care by the Lord so that we may help them become healthy, independent adults.

Thank you.

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

Finally, Mr. Parsons.

Mr. Brian Parsons (Individual Presentation): Good morning.

I have two parts—outline of circumstances and recommendations.

It was at Thanksgiving 1990 that my wife and I became engaged. At that time, I had to agree that if we had children, I would give up my career and stay home and raise them. On January 8, 1992, my son Joshua was born. I assisted the midwife with the delivery. That was the last day I worked.

I gave up a very successful and lucrative career in the software industry, making a six-figure income, to become a full-time, principal caregiver to my children and be a full-time homemaker for them and my wife. I underwent a complete, 100% role reversal. I in fact became the mother, and a housewife.

My wife returned to work as a professional hotelier just six days after giving birth. That was her dedication to her career. She had already undergone an abortion and a divorce because of the focus on her career.

On October 12, 1993, my daughter Rebekkah was born, and I again assisted the midwife with the delivery. From January 8, 1992, to June 19, 1997, a period of five and a half years, I was my children's principal caregiver and homemaker.

During that time, my wife was transferred with her job from Ottawa to London, one year; London to Edmonton, two years; and to Halifax. As a family, we underwent three major moves in 37 months.

• 0845

When I objected to yet another move, in June 1997, my wife was able to obtain an ex parte order giving her interim sole custody of the children and she literally kidnapped them. I did not see them again nor hear from them for six weeks, until July 1, 1997.

My wife was able to obtain an ex parte order based on false information contained in her supporting affidavit. Also based on that information and the fact that she was accepting a posting to Halifax, she was able to obtain an interim order on July 28, 1997, granting her interim sole custody in order to execute the move to Halifax.

On August 18, 1997, my wife moved, along with our children, to Halifax. From June 19 to September 1, 1997, a period of 11 weeks, I saw my children for approximately 96 hours. Previous to that I literally spent every single day with them in their lives. Our bond, our children's and mine, was systematically being broken. Since September 1 to the present I see my children every Wednesday night for four hours and every other weekend. No provision was put in the order to adequately address other times and holidays, like summer vacation.

The order was to be temporary. Therefore I'm currently proceeding with a chambers application to hear many of these deficiencies and have their variances put into place to address them. The Honourable Justice M. Binder of the Alberta Court of Queen's Bench did not consider the fact that I was the children's principal caregiver and homemaker, and had been since their birth, a period of five and a half years. He granted my wife's application of an interim order in less than three minutes.

A domestic contract stating that I was to be the full-time caregiver was also not taken into consideration, nor was another agreement granting us shared and equal custody in the event of separation or divorce. The order was granted on gender and the fact that my wife wanted to move yet again and to take our children with her. My wishes and opinions were not addressed in any way. My children were again uprooted and were taken away from their family, friends, and school after two years in the community. The rights of our children were never considered.

Since September 1, nine months, I have been fighting an uphill battle to have an interim order revised and to gain a minimum of shared custody of my children. In excess of over 200 hours has been put into this endeavour, and to date there have been absolutely no changes made to the interim order. This process is not only extremely expensive and time-consuming, but it's extremely stressful on both parents and their children. The present adversarial legal system pertaining to the family law process breeds and fuels this process and makes it almost prohibitive to pursue. It is totally taxing and time-consuming. Instead of being with a kind, loving, and nurturing father who raised them for five and a half years since their respective births, our children, six and four years old, are now in day care and being cared for by strangers.

Recommendations:

All affidavits sworn to obtain an ex parte order or other consideration must be questioned and the information and evidence contained therein must be supported. If it cannot be adequately supported and proven beyond a reasonable doubt, then the ex parte order or other should be refused.

Second, the children's current living arrangements, principal caregiver and homemaker must be taken into account, as well as their extended family, friends, and schooling.

Third, any domestic contracts must be considered before an application to change the children's care is considered or one parent is allowed to move the children away from the other parent. Before one parent is granted the legal right to uproot the children of a marriage, it needs to be taken into account how many times and how often children have already moved, and whether the move is absolutely necessary. The move should only be by mutual consent.

Mandatory mediation and education should be implemented in all cases involving children during separation and divorce, and an advocate for the children appointed to represent their rights. The principle of equality must be observed in deciding access and it should be, if accessible, equal time and shared parenting.

I recommend the abolition of the private adversarial process and the appointment of mediators and conciliatory public counsel for children as well as parents, and a mediation tribunal to hear disputes. Abolish children being used as pawns in a winner-take-all, spoils-of-war scenario.

Appoint more qualified judges who are professionally trained in family law and procedures.

Streamline the present family law process. The current process is paper-intensive and complex, and takes far too much time and expense to accomplish even the smallest of things, which is detrimental to the children. Impose the law equally on both parties in cases of denied access and court payments, with the same penalties for infractions and failures to comply to court orders.

Introduce child-sensitive legislation to address all these difficult issues, and enshrine children's rights to have equal access to both parents in the Constitution.

• 0850

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

We'll move to questions. Colleagues, we only have about 12 minutes; I don't know how many want to ask questions, but I would ask you to limit them, if you can.

We'll start with Senator Cohen.

Senator Erminie J. Cohen (Saint John, PC): Thank you.

Thank you for your presentations. I'm just going to make comments about all three.

There are many areas about which you've made recommendations that we've heard before and we are not quarrelling with. I think the most important one, and we're hearing it from mothers and fathers and from mediators, is that our judges need training and they need it in a very bad way. And we feel that a judge who sits in family court, either accepts the position or is given the position, should have special training in family law and in the rights of the child, because children have no rights in our divorce laws. So that's one area.

In regard to the language terminology, we've heard from everybody and we agree that custody and access means winners and losers, and they're very harsh. We also heard yesterday from somebody in Newfoundland that “the child of the marriage” offends him, because the child has a name, it's not a property, and the child has rights. So I have no quarrel with that.

In terms of the whole mediation process, we agree there have to be certain steps, and I wanted to.... I made a few lists before I came in. What we've been hearing is that litigation should be the very last area that should be pursued, that early intervention at the beginning of the dissolution, or when there's talk about it, is one area. And then the joint parental responsibility is to be emphasized, and there should be parenting education courses. And then there should be an assessment of where the parents stand, and if nothing works there, then there should be referrals to a dispute mechanism, with litigation the last thing.

What I want to know is your comments on the effectiveness of early intervention. Do you feel that in your cases, the early intervention would have made a difference in the ongoing relationship?

Dr. Gene Keyes: Yes, but at the same time we have to foreclose the adversarial channel, because on paper a lawyer is supposed to advise a client of mediation channels, and so forth, but that's totally a lip service thing. I could easily imagine the lawyer saying to her client, why bother to mediate when you can have it all? They stonewalled mediation in my case at every turn.

Mr. Steven Nelson: May I respond?

I attempted mediation as well, and the day before we entered court I had an agreement with my ex-wife on everything except the amount of child support I would pay. This was the evening we went to court, on the recommendation of my lawyer. The next morning, we each met with the lawyers for about half an hour before we entered court. She walked in and went for sole custody. She asked for two-thirds of my net income, and her lawyer even stood up and said “Mr. Nelson has lots of free time, he can go and get another job and pay more”. So to me, I think lawyers are the downfall of the system. They have to be removed. They're out for money and that's it.

Mr. Brian Parsons: I've attempted, through my lawyer, mediation for 11 months, and it's gone alsolutely nowhere; there were $30,000 worth of letters back and forth.

Senator Erminie Cohen: So what is your recommendation?

Mr. Brian Parsons: That there should be mandatory mediation.

Senator Erminie Cohen: Mandatory mediation.

Mr. Brian Parsons: And intervention to try to stop this adversarial approach.

Senator Erminie Cohen: They say you can't enforce mediation. Mediation is difficult to enforce. In Alberta, they have incorporated mandatory consultation sessions, at which time both parents are advised of the benefits of mediation. So that might be an area we could look at.

If we have time, I'll come back again. I have some other questions.

Mr. Brian Parsons: I was in Alberta at the time, and I went through that. My wife walked out of the meeting, because she didn't like what the mediator was saying.

Senator Erminie Cohen: So it didn't work for you.

The Joint Chair (Mr. Roger Gallaway): We'll let Senator Pépin ask her questions and then we'll go to Mrs. Finestone.

Senator Lucie Pépin (Shawinigan, Lib.): I have to admit that after listening to all of you, I agree that we need a big change with lawyers and also with judges.

I have to admit, Mr. Nelson, I really feel for you. I think you must be living a very difficult situation.

• 0855

I would like to ask a question to Dr. Keyes. You said that your daughter is 18 years old and you have not seen her in six years.

Dr. Gene Keyes: Yes.

Senator Lucie Pépin: I don't want to be indiscreet, but at 18 years old, is it because she doesn't live in the same city as you?

Dr. Gene Keyes: No. From age 12 on she just stopped coming over. I would have had to go back to court to force her to come, and I'm obviously not going to do that.

Senator Lucie Pépin: But she's 18 years old.

Dr. Gene Keyes: She's 18 years old now, but six years ago she was 12. I haven't seen her for the past six years because of the adversarial custody and access system that we have now.

Senator Lucie Pépin: That means that even if you had the right to see your children every two weeks, when she was 16 years or 17 years, let's say, you could not see her either. She's an adult.

Dr. Gene Keyes: Oh, yes. As of age 12 she exercised her option not to see me any more.

Senator Lucie Pépin: Oh, I see. Thank you very much.

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

Mrs. Sheila Finestone (Mount Royal, Lib.): Thank you very much.

I listened to the end of the presentations, and you present the nature of many of the concerns that have been expressed to us, as my colleagues have pointed out. If we don't ask very specific questions about your cases, I think it's not because we're not interested, because these become part of the file. They're vital to the building of our case as we make our recommendations. I can tell you that this has social implications for us and it has very serious emotional implications. We understand that. However, our responsibility is legal, and to make recommendations, so I'd like to deal with the legal aspect and the recommendations.

First, the recommendation has been made to us that judges need to have training. That is an absolute basic and a must. Not only does this apply to the judges, but also to the administrative courts. The view is that we ought to train them to look at pre-separation, what the lifestyle was in that family before there were problems, who did what in those families. What was the level of partnership? What was the level of home support? It would give judges a better view than when unfortunately—human nature being what it is—we become confrontational. We respond negatively. We become the batailleurs. I think that's not unexpected in these kinds of relationships.

What's too bad is if we forget that the children are the prime concern. We need to look at the view from the child's perspective, so that the children are healthy human beings when they reach age 18 and become mature and so that at some point reconciliation can at least take place between two adults. I would like to know what you think about a pre-separation standard to be set for the judges to examine.

Mr. Brian Parsons: I agree.

Mr. Steven Nelson: I'd like it.

Mrs. Sheila Finestone: Would it be helpful? Is it just pie in the sky, wishful thinking, or what?

Dr. Gene Keyes: Myself, I would like the social norm to be that the child is entitled to equal time with each parent. Adjust it according to circumstances, but the best solution is that in any event the child should have equal time.

Mrs. Sheila Finestone: With all due respect, sir, I don't think that is something I would say is the fairest principle for the child. I think it would depend on what the child has been used to. You and your spouse, either husband or wife, must realize that the child is not your property. You are that child's property. I think that makes a big difference. At least, that's my thinking. Quite frankly, if you have not had a relationship that is helpful to that child and you have not spent a lot of time with that child, in the instance of.... I'm sorry, I wasn't here at the beginning, so I don't know your name.

Mr. Brian Parsons: Brian Parsons.

• 0900

Mrs. Sheila Finestone: In the instance of Mr. Parsons, who was the house parent, it is pretty obvious that the housewife, supposedly the woman in this picture, certainly didn't have the same kind of input in the pre-separation standard that he did. The other side of the coin may well be the opposite. It doesn't mean that they both don't love the children at some point, but the fundamental is the best interest of the child.

The second thing I wanted to ask you is, do you think the terms “custody” and “access” are terms that, by their very sound in today's society and their history, are creating problems of winners and losers and that the nomenclature should be changed to parenting?

Dr. Gene Keyes: Very much so. From day one back in 1983, the very word “access” to me was fingernails on a blackboard. As I mentioned earlier, the formal sense of the word “custody” is imprisonment, and the formal sense of the word “access” is the privilege of a prisoner to see a lawyer, or vice versa. The idea that I have access to a child whose parent I have been for the first several years of the child's life on a co-equal basis and suddenly I'm shut out from school information and put in this forced ghetto of two weekends a month is just unthinkable, and that this goes under the name “access” is just—

Mrs. Sheila Finestone: Okay, I've got your message. I think you've corroborated what we've heard in many places.

Is there anyone else who wants to add anything to the terms? Would you like to see the term changed—yes or no? I'm sorry, but we have limited time, and I'd like to get your opinions.

Mr. Brian Parsons: I'd like to see it changed to something like exercising your parental responsibility.

Mrs. Sheila Finestone: Fine, thank you.

We'll give consideration to about 16 dozen different versions that we've heard, but we'll pick one or two, we hope, and then we'll see what the minister says.

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

Mrs. Sheila Finestone: I would like to know about your experience with the suggestion that there be some kind of obligation, depending on the age of the child, to hear from the child, what the views of the child are. Should this take place in open court, or in camera sessions? How do you feel about your children being drilled, grilled, with respect to mommy and daddy, and in what circumstances? Please make your answers short, please. We'll start with you and we'll cut you down short.

Dr. Gene Keyes: Not in an adversarial environment. I fought for that early on. Yes, the children should be heard at the earliest stage and we should have family advocate service that would act on their behalf in a friendly, non-adversarial way.

Mrs. Sheila Finestone: With the parents present or not?

Dr. Gene Keyes: Maybe a little of both, sometimes by themselves and sometimes together.

Mrs. Sheila Finestone: Great. I like that. Next.

Mr. Steven Nelson: I can agree with it through child psychologists. Let the child psychologist make the recommendation, or some sort of social worker, but I certainly want to keep lawyers away from my children.

Mrs. Sheila Finestone: Good. Thank you.

Mr. Brian Parsons: I agree with what Dr. Keyes said. I think they should be heard through an advocate as early as possible.

Mrs. Sheila Finestone: Thank you very much, and I hope your pain will be diminished.

The Joint Chair (Mr. Roger Gallaway): I should tell you that in a previous life Mrs. Finestone was the mother of four sons.

A voice: And still is.

The Joint Chair (Mr. Roger Gallaway): Thank you very much for coming and starting our session this morning. We appreciate it. We appreciate that it is your time you're giving to us.

Dr. Gene Keyes: And may this committee be permanent.

The Joint Chair (Mr. Roger Gallaway): We will now ask the next group of witnesses to come forward, please.

• 0905

Welcome. We have with us, from the Family Rights Association of Nova Scotia, Mr. William O'Neil and Ms. Elizabeth Bennett; from the Nova Scotia Shared Parenting Association, Mr. Rick Johnson, who is the director; and from a group called Parents Without Custody, Ms. Nancy Chipman, who is the founder of that group. Welcome to you all.

We will start with Ms. Chipman. We'll have a longer period of time if you can limit your comments to about five minutes, please, because we have a lot of questions that will come out of this.

Ms. Nancy Chipman (Founder, Parents Without Custody): I founded Parents Without Custody three and a half years ago. I guess I'm in a little different position from everybody else: I'm not a parent. People have asked me about that. I started the group because a friend of mine who had major problems in family court with a judge and then with the Children's Aid Society asked me if I would be interested in doing this. Initially, I said no. Then I thought about it, and I thought maybe it would be a good idea, and I don't regret the decision.

The problems I've heard from members are all of equal importance. Whether it's an access order you're having trouble with, or grandparents who aren't allowed to see their grandchildren, they're all very important. These people get very emotionally upset. We have a self-help group, and I've had grandparents break down in the middle of meetings and we've had to console them.

But I do believe one of the most difficult areas is that people haven't wanted to hear what they have to say, until now, and that's where you come in. Thank you for being here. We really need your help. The children need you, and I think you might be the only ones who can actually save them.

When I try to tell people things about non-custody parents, they usually assume the parent has done something wrong, and that's not the case at all, in most cases. If it's the father, they think he has abused the children; or if it's the mother, she has abandoned them or neglected them in some fashion. If they come forward and complain about this to Children's Aid—say for instance the parent is abusing the child and they have custody—they're often accused of slandering their ex-spouse.

The judges in Nova Scotia have a lot of power, and they have no qualms about throwing that around in court. They think they're God. They have actually said to parents: I have a lot of power and I'm going to use it. They refuse to let them speak. They bring in the police to keep them quiet. They've thrown people in jail, even lawyers.

The lawyers are afraid to speak up in the courtrooms. If they appear again in front of that same judge, they will be harshly treated with the next case because they gave the judge what they would think of as a hard time in the previous one. They criticize the way you're dressed, if you have too much make-up on; they've been known to think four children are too many...things that really don't have too much to do with why you're there.

• 0910

One mother was drastically ill. She had the flu and she had to leave the courtroom. When she came back, the judge said “You won't be doing that again”. He brought in the police to make sure that she stayed, even though she was ill. She couldn't leave, because if she did, he'd send her to jail.

I'd like to endorse shared parenting. I think that would be a really good idea, and I think it would take a lot of pressure off the judges.

I also would like to recommend something that so far nobody else has said here today, and that's a jury instead of a judge making the decision. You don't have to have 14 or 13 or 12 jurors; it could be maybe only four or five. But it would be a lot harder for a mother, for instance, to persuade the judge that she can look after her children when she can't. It would be a lot harder for a father to get out of the mother accusing him of sexual assault.

The judges have far too much power. One even went up to a mother after her case was long over, in a bar, and said “Oh, the long-suffering Mrs. King”, and then walked away. He just had to get his last dig in. He already had his mind made up when she appeared in court. She asked him that. She said “You already have your mind made up, don't you?” He said “We don't know each other; we'll see.” She never got her children. He cut off her access.

She wanted to take them home for Christmas to see the grandmother. The father said “That's okay, she can have them; it's fine with me; I'll take them for New Year's.” On Christmas Eve, the judge said “No, you can't have your children for Christmas Day; you took too much upon yourself; you'll have them for New Year's.” It was just to be mean.

Mrs. Sheila Finestone: That sounds like a great judge.

Ms. Nancy Chipman: Well, he's no longer with us.

Mrs. Sheila Finestone:

[Editor's Note: Inaudible].

Ms. Nancy Chipman: No, I wasn't going to say it.

I have some major problems with Children's Aid, too. People are coming and telling me some really horrible things. I'll just go through it briefly.

They are putting children back into or leaving them in homes with sexual abuse. I have two very serious cases right now. One of them is 18 years old, so she's basically out of that situation now. Children's Aid has made her a ward of the court, and they're going to look after her. But they knew there was abuse in the home. They had them in counselling. When it didn't work, the social workers and the judge agreed that she should go back into the home where the abuser was.

I have also two serious complaints of children being adopted out for money. I don't know if you've heard that one before. In the first one, the little girl was about seven. The mother was drastically ill. She could not look after the child; there was no question about that. The father said he would take her and he would look after her. The Children's Aid did not see it that way, and neither did the judge, and they took the little girl from him. She was adopted out, and he hasn't seen her in years. His only hope is to wait until she figures out what has actually happened and comes looking for him. She's probably about 12 or 13 years old now, so he still has a wait.

The Joint Chair (Mr. Roger Gallaway): You're a little over time. I wonder if you could wrap it up in about 30 seconds.

Ms. Nancy Chipman: Okay.

Basically, I would like to recommend shared parenting. A drastic review of Children's Aid is very badly needed. I think mediation is a good idea, but you have to get into mediation before the people can't even talk to each other.

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

Now, Mr. Johnson.

Mr. Rick Johnson (Director, Nova Scotia Shared Parenting Association): Thank you. I'm pleased to be here. I'm really overwhelmed to see that we're finally taking a chance to see the problems our children are having. They are our future.

Looking at the situation that's arising right now, of more than 52% of Canada's population being run by one-parent families, I think it's upon epidemic proportions. We should address the old laws and move into the 1990s with new laws and allow the new millennium to show more hope for our children.

The Nova Scotia Shared Parenting Association was originally started by Sean Cummings. It was a father who had imagined that. Since then, we've seen more of a need. More people got involved, of both sexes—grandparents, men, women—and we eventually changed it to the Nova Scotia Shared Parenting Association.

• 0915

Our mandate is basically to promote mandatory mediation. I say this not just with words, but with an explanation behind it. When you walk into the court system, it's very scary and adversarial. You're facing one off to the other and you walk out angry.

My plan is to establish mandatory mediation. There is all that anger and frustration from one spouse to the other, no matter what the circumstances for the divorce—if you were sleeping around, you weren't doing this, or you weren't doing that. But when we come to the court we have to look at the children, which I believe our court system has neglected to do. We're more interested in the logistics of the court. We're more interested in the paperwork, the lawyers, and who can fight better. The last thing we're interested in, which we're supposed to be interested in, is the needs of the children, and this is where I'd like to go.

When you fall into a situation where the marriage, or a combination of two people living together, is no longer possible, your first step, instead of getting an intake worker to establish a court date and find a lawyer so the lawyer can talk for you, is to open the lines of communication, which was probably the reason the marriage didn't work in the first place. Communication in mediation is an asset.

I propose we allow both parents to vent their anger and frustration, not with a lawyer in a lawyer's office with the child nowhere around, and send the two parents off to develop a parenting plan that has the child's best interests in hand. This is after you make your appointment for mediation, which should be the first step in solving a child custody case. Both parents will develop a parenting plan and come back to the mediator. The mediator will interview both parents, just so whoever has the better parenting plan will not receive the most care of the child. So a lawyer doesn't do it.

You assess the parenting plan so the parenting plan goes with the person you're speaking with. Then you assess the needs of the child. If these parenting plans follow the needs of the child, you work together. You come together in mediation. After the mediation both of you will come together and the mediator will find out where the conflict areas are and try to work on them.

The only trouble we have in this system right now is that mediation means—pardon me—diddly-squat. You can go to mediation and figure out all kinds of things. If one partner or the other says they don't want to go to mediation, let's go to court, then whatever you determined in mediation is null and void. If the lawyers want to fight, they'll fight. That's what we have to get away from. I'd like to give more power to the mediators.

In Nova Scotia, in Halifax-Dartmouth we have one mediator, Annette Strug. How many lawyers do we have? We have quite a few. How much money are we putting into the judges, people to facilitate the court system, our legal systems, our young offenders? That's where our money is being spent. We have to spend our money on preventative things.

I am a custodial parent of a little six-year-old girl. If I had not fought for my daughter after the second time she almost died in hospital due to neglect from her mom.... Her mom was ill, which I understand, and I have nothing against her, but I tried to get the Children's Aid involved. They have no power to help the child. Sometimes they misuse it, sometimes they don't use it at all. I believe there should be some committee set up to take complaints for the Children's Aid Service that will filter them down and change the bureaucracy in the child protection.

• 0920

Our main focus here today is child protection, and I really hope this group and the people presenting today are child-focused and really believe we have to have some future for our children.

Thank you very much.

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

Finally, from Family Rights Association of Nova Scotia we have Mr. O'Neil. Are you going to speak, or are you going to share the time? It doesn't matter to us.

Mr. William O'Neil (Executive Director, Family Rights Association of Nova Scotia): I will do the speaking for the organization.

The Joint Chair (Mr. Roger Gallaway): Okay, please proceed.

Mr. William O'Neil: First of all, I want to thank the committee for the opportunity to speak here today. Secondly, I'd like to thank you for looking into these issues concerning custody and access of our children.

The purpose of my submission here today is to draw focus to the issues that directly relate to the rights of the children. I am aware that many of the presenters will be focusing on their experiences in the family court system. These cases being presented are from actual individuals involved in the family court and judicial process. They are cases that are told from the heart about horrendous circumstances that have been suffered by their children.

This committee has been devised to look into the issues and be child-focused, dealing with the family court system in a child-centred manner. The mandate of this committee is to look into the existing legislation and policies concerning child custody and access and assess its effectiveness in relation to decisions handed down in the family courts in this and other provinces.

This committee has an obligation to look at facts and not unfounded and misrepresented data presented to them. This committee has an obligation and a duty to look at all the information and all the data presented, and properly evaluate that information to determine what changes need to be made in policies and what policies need to be in place to recognize the best interests of the children who are affected by that legislation and policy.

I am with the Family Rights Association of Nova Scotia, a child advocacy group. The purpose of this organization is to advocate on behalf of children involved in the family court system. This is most times achieved through either one parent or the other.

We have been involved in approximately 600 cases related to child custody and access within family court. We have seen first-hand the effects of the existing legislation and archaic policies and practices of family court in relation to the issues of custody and access and the outdated ideas of the specific gender roles delegated to each parent.

The family court system operates on a premise that has long since passed. The system itself does not recognize the progressive international legislation concerning child international law that this country has signed on to uphold. I'm referring to the UN Convention on the Rights of the Child. There's no question that this committee can be on the cutting edge of implementing progressive federal legislation that upholds that international law without diminishing the rights of any individual or segment of society.

There needs to be a progressive response to the problems plaguing the children trapped in the family court system. I have a list of some of the difficulties that are experienced by individuals and families who find themselves in this system. The most important problems I see are the extensive delays for an individual to be able to deal with the situation. The second difficulty I see within the family court system is gender bias. That has to be removed.

Another problem is lack of consistency concerning some of the decisions that are handed down in relation to similar cases. Some of those are in reference to the rules of evidence and how they're applied.

Another difficulty in the system is its adversarial nature. There's no question that just for an individual to be in a courtroom setting is very adversarial.

• 0925

Another difficulty in the system is no accountability. One of the difficulties I see with no accountability in the family court system concerns individuals making false allegations before the family court and nobody being held accountable for doing so. If those allegations are proven to be unfounded, there are no steps taken to deal with that situation. We leave ourselves in the situation where anybody can appear in family court and perjure themselves and misrepresent the facts in the courtroom without fear of any retribution whatsoever.

The other problem I see with the way the system is set up now is that there are no options available other than going to court and having matters resolved by a judge.

These are most of the difficulties that are prevalent in the family court system today that children face. These problems relate to the future emotional difficulties of our children in dealing with the loss of a parent or loss of contact with a parent or their extended family. At this point in time, family court does not look at the right of grandparents to be involved in a child's life.

These children have the right to know their heritage and not to be denied their past. They have a right to know who they are, where they came from and their roots. Even children who have been adopted and do not know who their parents are inevitably make it their ultimate goal to find those parents, either their mothers or fathers or both. They cannot and should not be denied that right.

I have a list of recommendations here that I would like to put before the committee, although I'm sure you've heard many of them before.

I would like to present the committee with a list of recommended changes to the family court system that would streamline the system and assist it in remaining child-focused and maintain its integrity. The first recommendation is mandatory mediation, an alternative to going through litigation. Accessible mediation services should be put in place and the ability of a family to be able to access that mediation should be assured.

Joint custody should be mandatory, barring extenuating circumstances. The norm, in fact, should be joint custody. The difficulty I see with many of the cases I'm involved in within the family court system is the fact that one parent is given the power over the other parent. That power is achieved by granting one parent sole custody. Inevitably, the child ends up being caught in the middle as a pawn to obtain what the custodial parent wants.

There is need for a policy of consistency concerning family law, nationwide policies and guidelines for judges to adhere to. There's too much discretionary power in the hands of family court justices.

I'd like to repeat: alternative measures. Mediation is a very, very important aspect of the process and I think bears repeating. Legislation for false allegation charges—

The Joint Chair (Mr. Roger Gallaway): Mr. O'Neil, will you wrap this up in the interest of time?

Mr. William O'Neil: Yes.

Legislation is needed to deal with false allegation charges being laid when false allegations are presented to family courts and are proven to be unfounded.

One of the things I haven't heard through my contact with these hearings is the matter of mandatory duty counsel. Many of the cases I've become involved with have no legal representation when they initially go before the court.

I will wrap this up now. I believe there needs to be advocacy in each and every province in this country, and that advocacy should give our children a voice in the system. In fact, I believe our children are the silent majority with no authority in the system.

I will close with the following: The Family Rights Association feels that children involved in the process have virtually no voice in the system. A vehicle has to be put in place to protect their rights and give them a voice in determining their future, because children deserve a future, not future problems.

Thank you.

• 0930

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

We'll begin questions with Mr. Lowther.

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

I'm going to ask a few questions that might seem a little like I'm challenging some of your statements. It's not so much to challenge them than it is to test them and make them a little clearer for us all here.

The first question is to Mr. Johnson. We talked about attempts at mediation and sometimes people not being interested in mediation and saying they'd rather go to court because one of the parties was not willing to participate in mediation. Then we've heard other testimony that says only a very small percentage actually goes to court for court rulings on what the custody and access arrangements will be, what the parenting arrangements will be. This is a very, very small fraction.

From your experience in your organization, would you support that? Is it certainly the exception rather than the rule that they actually end up in court, with the court deciding who will have what kind of parenting arrangement?

Mr. Rick Johnson: In my experience, the norm is that the court decides, really on an interim basis, who will have the child and who will not have the child. Normally, as the court hearings proceed, the status quo is left that way.

Basically, if you're looking at a small percentage, it's because normally the child is with the mother and there's an emergency custody hearing to establish where the child will stay on an interim basis. Basically, after that the only thing that's left to chance is to determine how much access or parenting time the other parent is going to have.

Mr. Eric Lowther: You're saying that it's sort of an interim ruling and when we go to mediation the interim ruling really doesn't change, it pretty much stays the same.

Mr. Rick Johnson: Yes, I've seen that in my own situation.

I am a man with custody of my daughter, and the only thing that gave me the advantage in the court system was the status quo. If I hadn't had the status quo, I would have been the non-custodial parent and that would have been it. I would have been seeing my daughter every second weekend.

Mr. Eric Lowther: In your case, you're the sole custodial parent. Is that right?

Mr. Rick Johnson: Yes.

Mr. Eric Lowther: Does your ex-wife not have access to the kids?

Mr. Rick Johnson: Yes, she does.

Mr. Eric Lowther: She does.

Mr. Rick Johnson: But she does not exercise it.

Mr. Eric Lowther: Oh, she doesn't exercise it. Okay.

Mrs. Sheila Finestone: Do you think she's ill?

Mr. Rick Johnson: Basically, yes, and the time lapse that has happened.

Mr. Eric Lowther: We get some mixed messages between the presenters here. We want, in the case of Mr. O'Neil, mandatory mediation, mandatory joint custody, yet the reality is we don't have people with equal joint custody. Even Mr. Johnson here, his wife elects not to exercise her access rights.

Mr. O'Neil, some of your recommendations sound good, but I wonder if we have to be careful we don't actually start making more problems rather than solving the problems we have.

Mandatory mediation, you're saying. Now, if you get two people who are determined to fight, what is mandatory mediation going to do? There are some cases, albeit from what we've heard from previous testimonies it is a small amount, that actually end up in court no matter what you do. Mandatory mediation is not going to do it for them.

As for mandatory joint custody and one not having power over the other, there are certain decisions that have to be made in a child's life and somebody is going to have to call the shots. For every single decision, do they have to come together on it? For instance, going to the doctor, or some lessons the child may want to take—do you divide that up?

It's easy to say mandatory joint custody and not one parent having power over another, but when you put that into practical application, I think there'd be some challenges there.

I'd ask you to kind of expand a little bit on these blanket statements that tend to suggest a panacea but cause more problems than we already have, I think.

• 0935

Mr. William O'Neil: As I have outlined with my presentation, I have been involved in a great many cases concerning custody and access. And I will continue to use the term “custody and access”. If each and every one of those cases I've been involved with had in fact had joint custody and mediation set up, there probably would have been a better outcome to those cases in regard to the children and their needs.

Mr. Eric Lowther: Pardon me for interrupting, but when you say “set up”, do you mean they go through the process or it's dictated to them?

Mr. William O'Neil: I believe mediation should be mandatory for any families who become involved in the family court system in regard to custody and access matters. Also, when there's a decision or even an interim decision made, that interim decision should in fact be joint custody. I'm not sure how familiar this committee is with the actual process itself. The process is done in a series of stages at times and the initial stages are interim hearings. In an interim hearing that in fact should be the first step. I find that would take a lot of the adversarial nature out of those cases.

If we have qualified, trained mediators in place who know alternative dispute resolution, I believe that would help deal with most of the differences between both parents and would bring them to a more child-centred and child-focused resolution of what those difficulties are.

I can say that because I have quite a bit of experience in relation to these custody and access disputes. I actually attend courts with individuals who are dealing with these types of situations. In fact, had I had the ability to have contact with both parents in each and every one of those cases, those cases would have come to a better resolution—as opposed to the ones I hadn't been able to.

Mr. Eric Lowther: I have one last little question.

In your organizations, are you folks dealing with the problem cases? Are there a great number of cases that get resolved, cases where the parents work out their arrangements and that you never hear about? Are you dealing with the problem sort of tip of the iceberg while a great number are fine? Or, in your perception, are the majority of cases a problem?

Mr. William O'Neil: If this committee is aware, even to get yourself into a courtroom to have a case finalized, you're looking at six months to a year at least. Our family courts in the province are backed up for six months to a year. That denotes to me there is a definite high number of cases before the courts and that there are in fact difficulties with those cases. And I do believe that 80% of those cases that go to the courts do have these circumstances involved, circumstances where there's a lot of this adversarial relationship between both parents. I think the norm is that most of these cases are not resolved outside of the court process; most of these cases are in fact resolved within that courtroom.

Mr. Rick Johnson: I'd like to comment on that myself. When it comes to my group, I have to admit that for the majority of the cases I hear about, both in my workshops and when I'm talking to people out in public at different groups in different areas, they are all having trouble. I believe I can probably count on one hand the cases that were solved out of court.

When you referred to my case, saying that the non-custodial parent just doesn't want to have access, I have to comment on that. The reason she does not want to exercise her parental rights is the initial adversarial courtroom setting that was established, which basically pushed her away from her child. I believe the courts, the Children's Aid Society and all the organizations set up to protect the child pushed my daughter's mother away from her.

• 0940

Now I'm sitting with a child that has no mother. It took four and a half years, four and a half years during which I've had custody of my daughter. Now, as of about a month and a half ago, with me keeping the mediation open with my daughter's mom and keeping the lines of communication open, we are working towards reintegrating my daughter's mom with her. My daughter's going to have a mother. And if the courts do not promote it, I will promote it. My main objective is to have children with both parents.

It took four and a half years to get rid of that anger of walking into that courtroom and fighting through those lawyers, four and a half years to get the lines of communication open again. I took legal guardianship of my daughter on August 21, 1994 and September 18 was the day we were supposed to go and have some counselling. The backlog was six months.

Mr. Eric Lowther: Okay. I think we got your point.

For the sake of giving the other members a chance to ask a question.... Mrs. Finestone here just asked me to ask you if your organizations share information.

Some hon. members: Oh, oh.

Mrs. Sheila Finestone: Why bring me into this picture?

Mr. Eric Lowther: It was a good question.

Do you share information? We have the Nova Scotia Shared Parenting Association, the Family Rights Association and Parents Without Custody. There's a sort of common theme here. Do you communicate or not? Yes or no?

Mr. O'Neil, no?

Mr. William O'Neil: That's one of the difficulties I see with some of the fragmented groups, not only around this province but across Canada. The groups are too fragmented. They do have to get together. If we're going to find resolutions to these difficulties, we need these groups to come together to outline what these difficulties are in order to get resolution for them.

The Joint Chair (Mr. Roger Gallaway): Thank you very much, Mr. Lowther, and I've also struck Ms. Finestone's name off the list.

Some hon. members: Oh, oh.

The Joint Chair (Mr. Roger Gallaway): No, you're fine, Ms. Finestone.

Madame St-Jacques.

[Translation]

Ms. Diane St-Jacques (Shefford, PC): In your comments, you talk a lot about defining the best interest of the child when there is a divorce, be it through mediation or other means. I would like to hear your recommendations. At what point should the child become involved in the separation process? Should it be during mediation or should there be another process to determine the best interest of the child? The question is for anyone who wishes to answer it.

[English]

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

Mr. Rick Johnson: I feel that we should bring the child into it immediately. Basically you're going to have each parent creating a parenting plan, and at the same time you're going to need to have the mediator to assess the needs of the child. This all comes together and is decided through the mediator, not over a long period of time but a short period of time. One parent can create a great parenting plan and the other parent can create a great parenting plan, with both of those plans being totally opposite. Until that mediator assesses the needs of the child, she's not going to have an idea of which way to go, of which way is best for the needs of the child.

Mr. William O'Neil: We need two vehicles in this province to deal with the rights of children and the difficulties that they are going through within the family court system. That first vehicle is in fact a child advocate's office. Right now in Nova Scotia there is an advocacy office for children. That advocacy office is the Family Rights Association of Nova Scotia. We're set up and designed strictly and solely to deal with the rights of children within the process.

The second vehicle that's needed is mediation, with qualified trained mediators who have the experience and knowledge to be able to speak with these children properly and understand what their needs and rights are. That is essential.

• 0945

One of the difficulties I see is.... I believe that each of these offices that are set up—in this province or in any province—has to be independent, separate, and at arm's length from government. They should be independent offices as opposed to government-run offices. I think we've already seen the difficulties with these offices being affiliated with government with what took place in British Columbia. In the Gove report, things were made very clear concerning what was going on with children in that province. There was an office of an advocate in that province when those things occurred.

[Translation]

Senator Lucie Pépin: But what happens with children who are just one, two or three years old?

[English]

Mr. William O'Neil: I apologize, but—

Senator Lucie Pépin: What happens to children who are one, two or three years old? To follow up on the question of Madame St-Jacques, it's true that you have to involve the children very early, but for the little ones.... For me, it's very difficult to see children moving from papa to mama every two or three weeks when they are that young.

The Joint Chair (Mr. Roger Gallaway): I don't know who's posing the questions here.

[Translation]

I want to know who asks the questions.

[English]

Go ahead.

Ms. Diane St-Jacques: Okay.

I have a second question for Mrs. Chipman.

[Translation]

In your brief, you say there is no follow-up after child custody has been granted. Can you recommend a mechanism whereby there would be some follow up to ensure there are no problems, especially with problem cases, where there has been violence or something of that nature?

[English]

Ms. Nancy Chipman: That's a very good question. Thank you.

I would definitely recommend that somebody do follow-up work. It would probably have to be a social worker.

I really don't like recommending Children's Aid because I've heard about so many incidents with respect to their follow-ups and their interventions. They tend to make things worse or create problems where they don't exist. They tend to leave the children in the home where the abuse is taking place.

It would have to be something like William was suggesting, not government-run, not affiliated with the government at all. And they wouldn't have to answer to anybody.

[Translation]

Ms. Diane St-Jacques: Thank you.

[English]

Mr. William O'Neil: Do you mind if I answer?

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

Mr. William O'Neil: There are already two vehicles that can be utilized with respect to the type of problem you pose. First of all, there is mediation, the role of the mediator. The mediator can in fact do follow-up work concerning the custody agreement and the custody arrangements that have taken place.

Also, in family court at present there are social workers who work within the context of family court. Those individuals can also be utilized to do some follow-up work concerning how things are going with the present arrangements.

The Joint Chair (Mr. Roger Gallaway): That's it? Okay.

Dr. Bennett.

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

I think your perception of how many settle must be a little geared to the fact that the people who see you are not the people who settle. The statistics that we've seen as we've gone across the country show that maybe 80% to 90% of divorces can be sorted out without going to court.

You obviously are seeing the 10% that end up as what we call “high conflict”. What keeps coming back to us—and it goes on really in most of the questions that we've had for this panel—is that the voices of the children seem to be very helpful in sorting out the best interests of the children. It makes sense. If you talk to them, quite often they know what the status quo was before; they know who gave the most care, they know all of these things.

• 0950

From Quebec west, there really is a child advocacy office in most of the provinces, and I think in times of diminished resources one of the things that keeps coming back to us is should the courts have at their disposal always the ability to appoint a lawyer or an advocate for the children so that their voice is articulately heard.

But I also have a concern that in I think it was Saskatchewan, the advocate's terms of reference were just to almost re-articulate what the kid said, without really the power to have any assessment or skills, or psychologists or a team, that would allow us to figure out why the kid's saying a certain thing. Because I view that if a kid says they don't ever want to see one parent again, it's a very high-risk situation for the kid for the rest of their life, regardless of the reasons. It is like a death and the kid needs support for that.

So how can we better support the kids? I think you said that your organization is helping with this, but I'm worried that when you're describing a situation you want it arm's length from the court, and what would be the problem with it being a friend of the court, an advocacy office within the court, a mediator within the court? The arm's-length thing I'd like a little bit more help with.

Mr. William O'Neil: When I identified the arm's length, I identified that in relation to the administration of government itself, as opposed to the court. A child advocate office, or anybody set up to do child advocacy, should not be employed by any government agency. It should not be taking direction from any government agency to any great extent.

Approximately a year ago, I myself was requested to draft legislation for this province concerning child advocacy. I haven't taken on that task yet. Anybody who's involved in doing any type of advocacy work on behalf of children has to be very careful as to how they involve themselves with those children. They have to understand and have the knowledge to be able to deal with the emotional situations that are going on within that family. I see that there's a very fine line here to walk with an advocate as to not creating any difficulties or adding any more complications to the system than is necessary.

I don't know how well that addresses....

Ms. Carolyn Bennett: I guess my other question is that as a family doctor, it is one thing for us to actually decide something at a given point in time, and it's another thing for us to actually be able to follow through on it and implement it.

When we talked to some of the children in British Columbia, it seemed that sometimes when access wasn't being allowed or they ended up in a situation they felt unsafe in, with a drunk parent or somebody who's refusing to return the child, the children needed to have the ability to call somebody safe. So the advocacy has to continue; it can't just be a court appearance. Yet with the child welfare system in the sort of disarray that it seems to be in, how do we keep the kids safe and their voices continually being heard?

Mr. William O'Neil: A perfect example. What we have in each and every province, in each and every community, is a Children's Aid Society. That Children's Aid Society is supposed to be an advocate on behalf of children. It's not.

Ms. Chipman has identified some things here.... I had planned on staying away from the issue, but let's look at the Gove report for one: let's look at how the system has failed the children in British Columbia. Let's look at Quebec and how the system has failed children there. Let's look at New Brunswick and see how the system has failed children there. That's why it's a necessity that an advocacy office be set up.

The people who are supposed to be advocating on behalf of the children—and this is the agency's lawyers also—are not fulfilling that role. We need trained advocates not only to be involved in court appearances but to advocate on behalf of children on a daily basis. I know there have to be certain guidelines set in place there.

The key thing, and I think Mr. Gallaway has addressed it, is we need more training for family court judges, for administration staff and for Children's Aid Society workers, to know and understand what their role and position is in relation to our children. I see on a daily basis that they do not have this training, and that's why I say it's a necessity that these two vehicles be put in place: one, mediation, and two, an advocacy office to deal with these problems.

• 0955

Ms. Carolyn Bennett: Thank you.

Mr. Rick Johnson: I'd like to comment.

The Joint Chair (Mr. Roger Gallaway): Okay. Just briefly, please.

Mr. Rick Johnson: At the beginning of your questioning here you had stated that we're looking at 10% and the other 90% are not being fought. I think that 10% is the number of people who are sitting there.... Say 5% have the anger. The other 5% are real parents who want to get into their parenting and wanted to be part of their children's lives and will fight for it.

I am a custodial parent. I fought for it. If I didn't fight for it, my daughter would probably be dead right now. It's not set in place. There's nothing set in place that makes it a vehicle to give the non-custodial parent the choice to be a parent. Right now, everything's set in place so that you have a non-custodial and a custodial. One has to leave the house. One keeps the kids. When I was going through mine, I fought social norms. I fought women's groups. I fought a lot, but I stayed child-focused, looking for the child, and that was it and there was nothing that was going to stop me from taking care of my child. And as I said before, the mother is now coming into the picture, which is great.

If there were more mediation and the money were spent in a better area instead of throwing all the money into the court system and making pockets grow there.... You have the Children's Aid Society that is completely understaffed, undermanned and overworked. Put money there. Increase the number of people to help the children.

Ms. Carolyn Bennett: Are you saying that in the 90%—and I think this has been one of my concerns as we cross the country—there are people just too tired to fight and the outcome is not in the best interests of the child?

Mr. Rick Johnson: That's right.

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

Senator Anne C. Cools (Toronto Centre, Lib.): Of this 10%, my understanding is that the 10% just means those who go to trial; it does not mean those who went to court. That was my understanding of the 10%. But perhaps we could get some clarification, because many people go to court, but only 10%, or a bit more, actually go through a complete trial. There is quite a difference. That's my understanding. Maybe we could get some clarification on that, because there's a lot of misunderstanding and they keep repeating it.

The Joint Chair (Mr. Roger Gallaway): I think this would be referred to as the number that was talked about yesterday.

We have very little time left, and I apologize, Senator Cohen. If you would like to proceed, and then Mrs. Finestone has a very quick question she is going to ask.

Senator Erminie Cohen: I'll bow to her, because mine is not a quick one.

Mrs. Sheila Finestone: Thank you very much.

It touches the question of mediation. I think mediation is vital in a variety of forms, separate, together, or whatever. I want to know the role you might see for an arbitrator following mediation, or as an alternate. We're at the point where one is very discouraged with what one's hearing about Children's Aid, and I'm glad that you raised the fact that they are overworked, understaffed, and underpaid, all of which are truisms.

On the issue of percentage, frankly I'm not particularly interested in percentages, because 1% is too many as far as I'm concerned. But in terms of the issue of how to be helpful and resolve, if you have mediators who help the parents each develop their plan, would it be best to then try to mesh those plans, or is it best to go to an arbitrator and let him pick the best project and outline after also hearing from the children? How do you see that?

I've been trying to figure out what we want in the form of a tribunal concept. What do we need as an advocate for the child? What do we need as a protector for the child and a follower-through for the child? But in order to get that picture, because every family is different, you need to have some idea of the history and background, what they see as their best interests, and then try to mesh them. That goes from mediation to arbitration. I want to know how you see that picture. That's my only question.

• 1000

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

Who would like to go first?

Mr. William O'Neil: You present a very specific problem here. One of the things that has been addressed to me—and it's been addressed by the chief judge of this province—is the fact that we're going to provide too many hurdles here for people to jump over to get through the system, and it's going to lengthen the time even more. I think we need to stay away from putting too many obstacles in place for people to deal with to come to a resolution.

Mrs. Sheila Finestone: These are obstacles, in your view, rather than enablers. Is that what you're saying to me?

Mr. William O'Neil: That was the terminology used by the chief judge of the province. He utilized the word “obstacles”, and I'm repeating what he said. I see that some of it could in fact be obstacles, depending on the circumstances. I see it being an obstacle in relation to prolonging the process.

In my contact with the system as it operates now, I find there are too many individuals involved in the system who don't have the necessary training and ability and knowledge to be able to deal with these problems in the proper fashion. I believe more education is needed with these individuals, to educate them on the difficulties that surround these types of situations and the emotional difficulties it creates for children and also the parents of those children. Mediation and advocacy will greatly assist in resolving a lot of those difficulties.

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

Mr. Rick Johnson: I'd also like to comment on that.

When it comes to the parenting plan, I believe the child is the focus here. As you say, each case and each child is totally individual. The way we have it right now, our court system does not treat each child individually.

To my horror, I listened to a judge, when one lawyer had mentioned what an eight-year-old had said, say strictly, right in his courtroom, that no one, not even an eight-year-old, was going to tell him what to do in his courtroom. I think that's where we lost it.

If you start out assessing the needs of the child.... The senator here mentioned, one-, two-, and three-year-old children. Basically, you go on a structured atmosphere—feed them, nurture them, clothe them, shelter them. That's easy enough. That's the parenting plan. As they get older, you determine what else is needed—if the child is asthmatic, if the child has MS, or whatever special needs the child has. You're going to determine this from the parenting plans of both parents.

If one has no clue about what the needs are and the other does, then I think the other should have a parenting course, parenting sessions. If both of them are angry, both of them should be going to anger management. If one has a drinking problem, this will be seen in the mediation.

This is how we need to determine how these are going to mesh together. We have to take the problems and create solutions. We can't take the problems, go to court, and create more problems and more anger. We're looking at solutions.

The mediator, one person, is going to know both people and the child. This is how we can determine what is in the best interests of the child. If one person talks with one parent and the other person talks with another parent and another person talks with the child, then what you're turning it into is paperwork. You don't know the personal touch. You don't see the eyes and the face.

This, I feel, is how we're going to integrate and mesh that together to create a workable situation for our children, without the anger. That's where we're going.

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

Thank you all for coming this morning.

We will now take a break of about seven minutes.

• 1004

• 1017

The Joint Chair (Senator Landon Pearson (Ontario, Lib.)): We'd like now to resume the hearings.

With us today we have Professor Thompson from Dalhousie; Mr. Schurman from Reierson Sealey, Barristers and Solicitors; and Donna Franey, Claire McNeil, and Elaine Gibson from Dalhousie Legal Aid Services.

Would you please begin?

Ms. Claire McNeil (Staff Lawyer, Dalhousie Legal Aid Services): Thank you, Madam Chair.

We're here from Dalhousie legal aid. I want to start with a brief introduction about who we are so that you get a sense of our perspective.

Dalhousie legal aid was created as a pilot project in 1970, and since then we've been providing legal representation to those who can't afford a lawyer in the metro area. We practise in the family law setting, so our clients are by definition low-income.

Because our services are available only to those who are financially eligible, and because of this phenomenon of the feminization of poverty that we've heard so much about, especially among mother-led single-parent families, we represent primarily mothers who are seeking custody and maintenance. Most of these mothers were the primary caregivers of their children, both before and after the breakdown of the relationship. We also represent many people who've never been married to the parent of their children and may never have lived with the parent of those children.

That's a backdrop, then, in terms of who we are and what we do.

When we looked at the mandate of this committee, we wanted to come and talk a little bit about our experience with joint custody, because a question that's been posed for committee members is whether the child-centred approach mandates joint parental involvement, or whether the two go hand in hand, if we can look at it like that. We wanted to talk about that, because we've had quite a bit of experience with joint custody here in this province in representing the clients we do, before both the family court and the Supreme Court.

• 1020

Usually joint custody gets interpreted as imposing some form of joint decision-making. It rarely includes provisions for equalizing the time spent with the children. It's more often seen in the context of decision-making. Thus it's similar to the old custody and access arrangements in the sense that the child will live with one parent and visit with the other parent.

Our experience is that joint custody arrangements have no more success in focusing the attention of the parties on their children and their needs than the old types of custody arrangements, and in fact the issue of equalizing the rights of the parents becomes the focus. It becomes more of a focus on the parents, as opposed to the best interests of the children.

The notion of equalizing rights or equality is also misleading in the sense that giving the same decision-making powers and rights to both parents in a situation where one parent is primarily responsible for meeting the child's day-to-day needs can create more problems than it solves.

What we see is, when the dust settles, when the court proceedings are over, the reality is that the child will have a primary residence, and that's usually not contested. Usually it is the mothers that provide that primary residence and are the primary caregivers, and I don't think the Nova Scotia statistics are any different from anywhere else in Canada on that point.

So the contest becomes not a contest for who is going to look after the child's daily needs, but for the power to control how that primary caregiver is going to provide for those needs, and what we see is that's what the contest is all about in joint custody situations.

Unfortunately, that power struggle plays itself out between parents who, by definition, have a less than ideal relationship. Our concern is that it continues to play itself out over time, even after the court proceedings have come to an end, because of the imposition of consultation and joint decision-making.

Our experience is that joint decision-making in the context where parties even have a basic difficulty in communicating is very problematic. So following any kind of imposition of joint custody, or maybe it's even in agreements for joint custody, and certainly in the family law context, for all kinds of reasons, there's a heavy impetus to settle matters and to reach agreements in the area of custody.

The children can remain pawns in that ongoing power struggle, and whether a decision is in the best interests of the child becomes less important in some contexts than whose idea it was first and whether the parents can come to an agreement about that.

One recent example we thought of was one where the parties got into a stalemate over a question about whether the child should have a tonsillectomy, a fairly straightforward medical procedure that one would think shouldn't create a whole bunch of controversy, and yet it did.

Another recent example was a dispute over day care, with parents who had joint custody, and the non-primary caregiver not wanting the child to go to day care and essentially vetoing that option for the parent who was in fact the primary caregiver, thus making it impossible for her to resume her studies or work.

Another example that I think will be alluded to later on is in the area of mobility. Of course, while restrictions may apply to the parent who is providing the primary residence, we don't see those same restrictions applying to the access parent.

So those are troubling problems we've come across in the area of joint custody.

We do feel that joint custody is an important option and it should be available, but it should remain just that, an option. If there is any presumption, it shouldn't be a presumption of joint custody but a presumption that the decision-making power should rest with the parent with whom the child primarily resides, because after all, that person has to live with those decisions. The well-being of the child, for the most part, will be determined by that primary caregiver's ability to meet their needs, and any imposition of a custody arrangement that increases the stress and anxiety and conflict in that situation on that parent is not in the child's best interest.

• 1025

I want to make a few quick remarks concerning access.

The Joint Chair (Senator Landon Pearson): Ms. McNeil, you're over your five minutes, so if you could quickly come to your....

Ms. Claire McNeil: Okay.

We wanted to just point out that in the area of access, from our point of view, the problem is not.... Let me put it this way. For every case that we come across where a parent is claiming that they have been denied the right to see their child, there are ten cases where parents do not exercise the access they have been provided with. These cases aren't litigated; they aren't fought in the courts. In our view, that's because it's accepted as the norm.

The diminishing role of the access parent is a really huge phenomenon in the work we do. The reality is that custodial parents live with that environment. By the same token, the reason this committee may not be hearing from custodial parents is they don't have the time to take the access parent to court over those kinds of issues; they don't have the time to come before this committee and make submissions, as we've done.

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

The next speaker is Mr. Schurman.

Mr. Angus Schurman (Reierson Sealey, Barristers and Solicitors): Thank you.

My name is Angus Schurman. I am here representing Reierson Sealey, which is Atlantic Canada's largest firm devoted to the practice of family law. Four partners and three associates in Reierson Sealey provide comprehensive legal services to individuals undergoing family transition. One partner and one senior associate are men, and our firm represents an approximately equal number of men and women.

Members of the firm have worked closely with community women's groups, as well as the Nova Scotia Shared Parenting Association. Reierson Sealey has demonstrated a commitment to the welfare of children by implementing a positive parent education program within the firm for use by the general public and our clients and their spouses. Our firm is committed to providing parent education to men and women in Nova Scotia who are trying to provide the best possible environment for their children after separation.

Reierson Sealey has noted with interest the mandate of the special joint committee and agrees that the focus must be on the child. We are of the view that effective custody and access legislation must be child-focused, or, in other words, based upon children's needs and best interests. The needs of children after marital breakdown are immense, and their best interests can only be served when the emphasis is upon joint parental responsibility. We submit that the right of children is very specific in this regard. Each child has the right to the best relationship with their parents and the optimal living situation possible in the circumstance of divorce. Parents have the responsibility of addressing those rights.

Accordingly, we submit that the current test, which is the best interests of the child in custody and access matters, is the preferred approach. Having said that, we are also of the view that the Divorce Act could and should provide more specificity as to what that test, the best interests test, requires.

We recommend that judges be directed to consider the following factors when applying the best interests test. The factors I'm referring to are those recommended by the national section of the Canadian Bar Association in their submissions to the special joint committee. I will not list them all, but they include: love, affection, and emotional ties between the child and each person seeking custody and access; the child's views and preferences, if they can be reasonably ascertained, and this does not mean bringing children into court; the length of time the child has lived in a stable home environment; the ability and willingness of each person seeking custody to provide the child with guidance, education, and necessities of life, and to meet any special needs of the child; any plans proposed for the child's care and upbringing; the permanence and stability of the family unit with which it is proposed the child will live; the caregiving role assumed by each person applying for custody during the child's life; any past history of family violence perpetrated by any party applying for custody or access.

In the past, there have been suggestions that a presumption in favour of the primary caregiver or in favour of joint custody would be beneficial. We disagree. It is our view that the courts must retain the discretion to deal with the unique facts of each case. Relying upon a presumption will not assist, whether the presumption is based upon the status quo prior to separation or based upon assuming that parents are equally willing or capable of meeting the needs of their children. In particular, a presumption in favour of joint custody is a presumption in favour of a legal concept, which is extremely elastic.

This lack of definition of joint custody is, in our view, sufficient to make such a presumption fruitless. In our view, the most significant and fruitful area of change and reform lies within parent education, family mediation, and alternate dispute resolution.

In Nova Scotia, where mediation has been offered as a free service through some of the family courts, and where in some jurisdictions parent education programs prior to family litigation have been instituted, they have been well used by parents and appear to have had a good success rate. These programs, while effective, require that resources be put into family services, which are both skill and information based.

• 1030

Dispute resolution concepts and programs of many types have been offered for some time, but there's a shortage of affordable and accessible services, including the following: mediation services; supervised access services; child advocate problems, such as guardian ad litem services and the like; civil legal aid; and assessments, including psychological assessments and home studies.

At present, in too many cases we're asking judges to make significant decisions regarding the best interests of the children, without the tools necessary to make a reasoned and fair assessment. We're often asking parents to put aside their differences and work together for the sake of the children, without giving them the skills or the support to assist them.

Our primary concern is that the focus be placed on children and parental responsibilities to them. From our perspective, this is a very different approach from the rights-based approach being advocated on behalf of many interest groups promoting the legal presumptions referred to earlier.

It is our experience, and we have considerable experience in disputes between parents, that marriage breakdown produces considerable anger and frustration directed from one spouse to the other. Often this produces a great deal of misinformation about what is truly going on in the children's lives. In our view, much of the rhetoric with respect to individual parents' rights flows directly from this anger and frustration, and not from a more reasoned and thoughtful approach towards what's in a child's best interests.

Parents need the opportunity to cool down, to reflect on their situation and to learn better communication skills prior to making decisions that have such a significant impact on their children.

In summary, we advocate the continuation of the best interests test in determining custody and access disputes, although with clearer definition of the factors that should be considered by the court. We very strongly urge that moneys be made available by government at all levels to tend to the dispute resolution and parent education systems that should be the front lines of custody and access resolution.

Thank you.

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

Professor Thompson.

Professor R. Thompson (Faculty of Law, Dalhousie University): Thank you.

When I was asked to speak to the committee, I said I'd speak on one issue. I figured that would take five minutes. But it's an important issue. It's the one we sometimes call “parental mobility”. Sometimes it's called “relocation of parents”. These are cases where the custodial or residential parent decides to move across the province, across Canada, across the world, as the case may be, with obvious implications to the other parent.

I'm a law professor at Dalhousie law school. I teach family law. I've also practised family law, both in private practice and more often at legal aid.

I've just finished a study of about 85 cases in the past two years, involving relocation of parents, cases that have been subsequent to the Supreme Court of Canada's decision in Gordon v. Goertz, as it's called. That's the case where a dentist mother in Saskatchewan was allowed to move with her seven-year-old daughter to Australia to study orthodontics.

I should indicate how these cases come up, because it's important to appreciate that usually parents are able to reach agreement on the arrangements for children after separation or divorce. Both of them at that time are usually living in the same community, but with divorce, one of the corollaries of divorce is we allow people to make their own lives after divorce. Part of that process is facing the challenges of being a single parent, and part of that process is facing the fact that you may have to move to take a job as a custodial parent, to remarry, or to return to a familiar community with extended family as support when you become a single parent.

Sometimes the reasons for the move can be compelling. Sometimes the reasons for the move are less compelling. Occasionally they're to frustrate access. Occasionally they're to get the other person out of your life, as the case may be.

I think it's important to appreciate that in the Gordon case, in 1996 the Supreme Court of Canada said that a decision to move, of any significance, throws open the whole question of custody and access all over again to a full inquiry from square one. And not only that, but in deciding those cases, a straight best interest test would apply, meaning, as you know, the best interest test doesn't tell us very much. Justice Abella once called it an aphorism. Some would say it's a slogan. It's not much of a guide. It's a sentiment; it's a desire; it's a wish. The result is you get, case by case, very fact-oriented decision-making in cases involving relocation.

Since the Gordon decision in 1996—and I'm just providing some quick information here—there have been about 85 reported decisions—this is reported decisions—in 24 months. It's a lot of cases. This is the way we end up in the courts. These are the kinds of cases where we do end up with very hard choices and therefore very difficult decisions. It's very hard to be able to find compromises in these cases. In 65% of the court cases, the court agrees to the move. In 35% of the cases, the court says no.

• 1035

You should realize that those results break down by age. This is something people haven't noticed, but it's important to appreciate. In 55% to 70% of the cases involving children twelve or over, the answer to the move is no. The kids usually stay in the community largely because of their own wishes. In about 40% of cases of children aged zero to six, the courts have said no to moves. In the age group six to eleven, the answer is no in only 25% of the cases, and in 75% of the cases in that age group the courts allow the move.

Just to give you a rough idea that age makes a difference in these kinds of things, in 80% of these relocation cases in Canada, the custodial or residential parent is the mother. I think that's important to appreciate. The result of that is decisions about whether you restrain moves or permit moves that may take place have important gender implications. You cannot avoid that. Part of the reason for that is the original custody decision. Part of that is what's called “drift”. It's been referred to already, in the sense of a drift toward more maternal caregiving in a lot of cases. The only reason I mention this is that it's important to appreciate the nature of the decisions being made here.

You should just realize—and I'll try to be brief here—that one of the unnerving things when you read cases involving such fundamental issues is you find cases in Alberta and Ontario have different results because the Supreme Court of Canada gives so little guidance. You find the Ontario Court of Appeal unable to agree among themselves, not only as to the results but as to the approach. Two different panels in the Ontario Court of Appeal, with three different judges on each, can't even agree on what the principles are that should govern these cases, as they try to interpret the Supreme Court of Canada's decision. That kind of uncertainty, inconsistency, and unpredictability wreaks havoc upon parents, children, lawyers trying to give advice, and trial courts trying to do the job, just trying to make decisions.

I think it's important to realize the best interests test is a nice idea. It's an excellent sentiment, but it's very hard to apply in any consistent, predictable kind of way, which causes frustration to parents, understandably.

You should appreciate one point, though. It doesn't matter what the custody regime is, whether you call it custody and access, shared parenting, or parental responsibilities, because these same difficult decisions have frustrated courts as well in Australia, England, the state of Washington and the state of California. These are hard decisions. I'm not denying that for a minute.

I'm just going to end by making the point that I would suggest this is one area in which we should have some rules. We should be prepared to legislate them in the Divorce Act because the Supreme Court of Canada has left a vacuum. If there's any area in which there is an argument in favour of presumption that favours the relocation of the custodial parent, this is it, in the sense that the burden should be upon the non-custodial parent to show it's not in the best interests of the child to move. That's my view.

Having said that, it's important to appreciate that before any move takes place, the custodial parent or residential parent should be required to give advance notice of the move, subject to a small number of exceptions, propose revised access arrangements before the move, and show that the reason for the move is something other than the motivation to frustrate access. I don't think that's too much to ask of someone who moves. But once that's been done, it should be up to the other parent to show why the move should not take place.

You should also provide exceptions for two kinds of cases. One is true cases of shared parenting. Substantially shared parenting poses a different problem. In that case you have two residential parents, two custodial parents, in effect. Therefore the person who wants to move should show why they should be able to move.

The other case is where you have negotiated residence restrictions. This is one thing that facilitates resolving custody matters at first instances. I'm prepared to agree that you can be the primary custodial or residential parent as long as you're in the same community with me and there's a residence restriction. Then I'm content to resolve that matter. I think we should facilitate that process, but that means if someone who has negotiated that kind of a restriction wants to move, they should show why they should be allowed to move.

• 1040

Keep in mind we're talking about presumptions here. In the end, if you show it's in the best interests of the child to allow a move, or for a move not to take place, a court can in those circumstances rule the other way. But we have to provide some guidance to people, and best interests doesn't do it. In the case of relocation, this is the one instance where I think it's clear that a presumption would assist the process.

I have a paper on this, which I am prepared to provide to the committee. Once the finishing touch has been put on it, I will send it to the committee.

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

Senator Cohen.

Senator Erminie Cohen: Thank you for your presentation.

My first question is to the lawyer from the Reierson Sealey firm.

I'm glad you brought up the best interests test, but now I'm confused, after hearing these two presentations. That was the question I bypassed in the last sitting because there wasn't time to ask why this would not be effective. We heard from previous witnesses that the judges have too much power, that they need education, and that's where a lot of the problems lie.

Now I'm confused, because I thought the best interests test would be good, since it would apply guidelines from which the judges should work. But I'm hearing two different opinions here, and I'd like a little bit more clarification on that.

My second question would be to you, Professor Thompson. The Canadian Bar Association, in the area of mobility, recommends that there be a 90-day period instead of 30 days. I'd like a little comment on that too, please.

Mr. Angus Schurman: With respect to the best interests test, we're recommending that the best interests test that applies now remain. We're also recommending that the key factors that go into deciding what's in a child's best interest actually be included in the legislation.

This is nothing new in the sense that in many cases of custody across the country, you're going to see judges grappling with these kinds of decisions and actually listing these kinds of factors in their decisions when they do make decisions about what's in the best interests of a child. The types of factors we're recommending are the types of factors that come directly out of cases from across the country in terms of how to determine what's in a child's best interest.

We're saying that these factors will simply provide some outline for judges. It fences them in a little bit in terms of their authority, but it provides them with a consistent guideline in terms of what they should be looking at, and makes sure that in a sense they're going through all of the factors before they make a decision. That's what we're recommending in that regard.

Just as an aside, you mentioned the 90-day rather than 30-day submission. Certainly we would submit that you need much more than 30-days' notice with respect to mobility, because 30 days is just not enough.

Senator Erminie Cohen: Thank you.

Prof. R. Thompson: On that last point, I agree. I think you need 60 to 90 days. I think 90 is a fair number in the way of advance notice. I think it's important to appreciate, though, that you have to have exceptions to that. One is obviously where you have unforeseen circumstances. That's a hard one to draw the line on, but you have to allow for the fact that those things happen.

Second, most of those proposals involve an exception for cases where there would be a risk of violence. I think that's an important exception. I think Texas wrote that into their legislation. It's important to appreciate that.

Senator Erminie Cohen: Thank you.

Do I have another minute?

The Joint Chair (Senator Landon Pearson): Yes, another minute.

Prof. R. Thompson: I would like to answer the best interests question.

Senator Erminie Cohen: Oh, yes, please do.

Prof. R. Thompson: The point I want to make about best interests is that best interests means we decide cases one by one. We decide them individually, with no predetermined notions and no predetermined ideas. The problem with this is that no one knows what the law is in any particular area, in any particular case, before you go in—except this notion that you're working in the child's best interests, for an individual child. The problem is, systemically, for all children, that doesn't always produce the best results, because uncertainty and unpredictability lead to increased conflict between parents and increased litigation.

So it's the flip side of that. It produces the right result for this child, but for other children, it may harm them.

Senator Erminie Cohen: Then do you feel—and this is a very simple question—judges need more education in the whole area of family law?

Prof. R. Thompson: I think the answer is to have a unified family court. I think that is the answer. We're moving toward that in Nova Scotia.

Yes, you need more education. How can you ever oppose more education? But I also think it's important to appreciate that there are some tough value judgments to be made in these kinds of cases, such as relocation, or custody or access cases. A lot of these are values, and education doesn't solve it.

Senator Erminie Cohen: Thank you.

To the lawyers from legal aid, do you find there are enough dollars to support services you may need for single-parent mothers or for people in poverty who just cannot afford to go to mediation or to a child psychologist? Do you have a problem in that whole area?

• 1045

Ms. Claire McNeil: That's a really good point. We talked about that in terms of our recommendations. For people who live in the metro area here, we have an advantage because there has been this pilot project in terms of mediation that has been court-sponsored, court-funded, and stuff. So that's available. It's not available everywhere in the province, which is a big problem for people who live outside this area.

In addition, there's a pilot project right now in terms of education for parents to kind of educate them as to the effects of marriage breakdown on their children. Again, that's only provided right now in the Dartmouth Family Court. It needs to be throughout the province and supported by the court system. Right now, we have the Supreme Court and the family court. There are both levels. It needs to be made available to people who can't afford to pay for that. We think mediation should be an option, though, rather than a requirement of the court system.

The other thing we wanted to mention was this issue of supervised access that courts are ordering more and more often. Rather than taking away access, they'll order access to be supervised where they feel there's some risk to the child or some particular concern taking place without supervision.

However, there's no program to provide that, so for the people we represent, the judges may be ordering it, but there's no funding for a supervised access program in the province.

Senator Erminie Cohen: I have a quick line. Maybe it would be a good idea for all the groups represented here to write letters to the government saying that those extra dollars now that are in the coffers as a result of the tax changes in divorce should be reinvested back into the whole community, the family law system, and all the support services—hint, hint.

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

Senator Lucie Pépin: When you're speaking about the education of judges regarding family law, would it be better to say the training of judges rather than education, because maybe training could be mandatory? I don't know, but it seems that since the beginning of this committee, we've heard so much about the difficulties with the judges. Is training better than education? What would be the best way to be sure that judges will go through that training or education for family law?

Prof. R. Thompson: I would come back to the same point again. I think there's a risk here that's important to appreciate. Yes, we need a unified family court, because a unified family court will provide specialized judges who want to do family law and who have some background experience in that.

The federal government controls the area of appointments to the unified family court, so it can set an example through an open process of appointing people who are specialized, skilled judges who have shown the very points you've identified. That would be the first point. That has not always been the case in federal judicial appointments.

The second thing is that one should be careful about talking about training and education in this field. I think it's important to appreciate again that people walk away from the courtroom saying that if only the judge had been educated or trained to their point of view, then the result would have been different.

One of the difficulties is that the very-best-interests test that we talked about leaves open a variety of possible results in any given case. It doesn't constrain. It establishes which options are outside the bounds of those available, but within those that are available, it allows a wide choice for judges in terms of custody decisions and how you explain them. There's very little in the way of review by the courts of appeal.

The point I'm trying to make is that I think there's a danger in hammering away at education and training as the solution here. It does involve values.

Part of the problem is the absence of law. I hate to say it, but the best interests test is an abdication of responsibility, in my view, by the lawmakers, leaving family court judges in the position of how to decide custody cases with no policy guidance at all from the legislature. Then we dump on them because they produce a result that we don't like.

Well, the short answer is to make the laws that make it clear what it is you do want in the way of custody decision-making. I know others will oppose that, but I'm just pointing out the dilemma you face here. I hope that's an answer.

• 1050

Senator Lucie Pépin: You also mentioned that for the location of parents, in the cases where children were 12 years old and over, the courts say no in a high percentage of them. Is it because the children were involved in the decision at that time?

Prof. R. Thompson: Yes, children's wishes drive those cases. They're old enough to walk from one household to the other. They're old enough to decide where they wish to live at that point. Of course, as we all know, teenagers would rather hang out with teenagers than with parents.

Senator Lucie Pépin: So between the ages of six and twelve, most of the time, the children are not involved in the decision.

Prof. R. Thompson: No, but they're also.... I've tried to explain these results. I think the best you can say is that the younger the children, the more likely you are to find something akin to shared parenting, because in the early days after separation and divorce....

The other thing is also just that you often have not developed, over time, patterns of parenting, whereas with children six to eleven, you've got school and patterns that have developed usually over time between fathers and mothers, and there is some of that drift away on the part of fathers. That's one of the results in terms of moves for older kids.

Senator Lucie Pépin: Thank you.

For Dalhousie Legal Aid Services, you mentioned the disappearing role of custodial parents. It's a big problem. Could you elaborate a little bit on that? Why is that? What is really happening? Or maybe I misunderstood.

Ms. Claire McNeil: Is your question about why access parents play a diminishing role?

Senator Lucie Pépin: Yes.

Ms. Donna Franey (Executive Director, Dalhousie Legal Aid Services): Perhaps I'll respond to that, because I did have another comment I've been wanting to make as well in our discussion of the test for the best interests of the child.

It has been our experience that obtaining access to a child can be very much a power struggle. There is initially very much a lot of focus on parental rights as opposed to the rights of the child or having sort of a child-centered approach in obtaining those access rights or litigating those access rights. There's a lot of conflict and power struggles there.

Often, in our experience, in our practice, a person will obtain access rights and then not exercise them. By way of example, we recently had a case where initially, the parent was seeking joint custody. After a hearing awarded liberal access rights, shortly thereafter, the parent left the province and moved to Alberta.

Senator Lucie Pépin: Is it because they were exhausted from the fight or what? Was it to prove to the other parent that they could win? What's the reason?

Ms. Donna Franey: Yes, I believe the point is they did want to make a show of power. They wanted the right to access and to have that right to access or joint custody, but they didn't want the responsibility that went along with it after it was provided to them. They abandoned the responsibilities and moved elsewhere. So it was a show of power in a relationship, and it wasn't an approach that was child-centered.

I hate to be the voice of dissension here, but I did want to point out that there are some dangers in not using the best-interests test in the way it has been used in the courts. One of my colleagues mentioned the elasticity of the test. That's one of the most positive features to the test, because every family comes to the court with different circumstances. They can't all fit into a neat little package of rules that may come out of legislation. The court does need some leeway and discretion to be able to determine whether those rules that may come out of legislation fit that child's particular circumstances or not. I'm just mentioning that there are some positive things to the best interests test as well as negative ones.

Senator Lucie Pépin: Would you then be in agreement with one of the proposals that parents—

The Joint Chair (Senator Landon Pearson): We can come back to you afterward.

Senator Lucie Pépin: Okay.

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

Mr. Eric Lowther: Thank you, Madam Chair.

I'll try to be as concise as the senator is with her questions so we can move along here, and I appreciate that.

First, to Dalhousie Legal Aid Services, does the faculty formally recognize the need—I say formally—recognize the need for children to have strong relationships with both parents?

• 1055

Ms. Donna Franey: Actually, we do recognize the need for children to have it, and in a perfect world, in an ideal situation, that's what would happen. But it doesn't bear out in reality that there are always circumstances where that can take place.

Mr. Eric Lowther: Are you supportive of the development of parenting plans that are based on that presumption, children having strong relationships with both parents?

Ms. Elaine Gibson (Faculty Lawyer, Dalhousie Legal Aid Services): We would not be in favour of a presumption toward joint custody or toward automatic involvement of both parents. In fact, our position is in the other direction, that what children need most is stability and love. It's usually the case that one primary parent does have that role anyway, and that role should be reinforced by law.

So if there is to be a presumption, it should be in favour of the primary caregiver and of that primary caregiver having the decision-making responsibilities for the child as well.

Mr. Eric Lowther: So you would work toward one parent being primary rather than the child having good relationships with both. You would work toward, “Let's pick one and make that strong”. Is that right?

Ms. Elaine Gibson: Well, I'm not sure that the two are necessarily co-related. We certainly believe it's optimal if the child has involvement of both parents and receives the love and attention of both parents. However, the one doesn't necessarily link with the other.

Mr. Eric Lowther: I guess my question was, would you be supportive of parenting plans based on the presumption that it would be good for a child to have a healthy relationship with both parents? As I heard it, your answer was, no, you would lean toward picking one.

Ms. Elaine Gibson: I guess our answer is that to the extent to which the wording you're using tends to give both parents a presumption of rights, we would not be in favour of that. In fact, we would certainly support the involvement of both parents in situations where there is an ability to communicate, there is an absence of violence, and there is a cooperative spirit between those parents, but that is the case where law is most unlikely to be necessary anyway. In other words, if those parents can cooperate, they're going to be cooperating. They're going to reach agreement.

Mr. Eric Lowther: In the cases of denied access, you quoted that ten don't exercise for every one that is denied access. In the cases where a parent has been awarded access but is denied access, what do you think should happen to that parent who is denying access to the one who's been awarded access?

Ms. Donna Franey: Perhaps for clarification, when you say, “What do you think should happen?”, do you mean by way of penalty or...?

Mr. Eric Lowther: If the court and all the players have evaluated this situation and have said it's in the best interests of this child to have access to the non-custodial parent on some terms, whatever they may be, and that non-custodial parent attempts to get access but is continually denied access, what should be the course of action taken at that time? How do we ensure that this access is granted in the best interests of the child?

Ms. Donna Franey: Well, I guess that's the crux of it—the best interests of the child. You have to look and see why there's been a denial of access. In many cases, if access is either denied or frustrated, there are reasons behind that, and whether it be for reasons of safety of the child or whatever, it can be based on the best interests test. That's one thing you certainly have to look at.

In our experience, it's the unusual situation where you would have a denial of access without any follow-up. At the present time, in a denial of access you can go back to the courts and seek to have something done about it. You can seek to have the person who's denying access without justification come up and justify or give the reasons as to why they've behaved in the way they have. Again, you have to look at the child-centred approach. If forcing access is going to cause more conflict and is going to cause more stress on the child than no access, then that's something you have to look at.

• 1100

Mr. Eric Lowther: Could I ask one more question?

The Joint Chair (Senator Landon Pearson): Quickly, because you're over five minutes.

Mr. Eric Lowther: Mr. Schurman, you talked about your firm providing a parental education program. I want to know a couple of things. How extensive is it? Is it charged for? Is it mandatory? Have you had any success?

Mr. Angus Schurman: By the way, this is my colleague, Julia Cornish, from Reierson Sealey as well.

Yes, we do have a program. It would be run every three to four weeks when there are sufficient people available. It's made available to the regular community when our own clients don't want to fill it. It's offered to the opposing party as well, and sometimes they do avail themselves of it. It's run not by members of the firm but by a trained individual from outside with training in that area. The participants are charged $30, which goes directly to the person who runs the training for them. That's their fee. It's been relatively successful but limited in its size. It's just one firm and it's one conference room once every three to four weeks.

Mr. Eric Lowther: What's your uptake? For every hundred clients who are family-law related, do half take it, ten take it, 10%, or what?

Ms. Julia Cornish (Family Lawyer, Reierson Sealey, Barristers and Solicitors): I've been at the firm since we started the program and Angus hasn't, so perhaps I'll respond to that.

Of course, not all of our clients have custody and access issues, so I'll talk about the clients who do have custody and access issues. We—if I can use the word “strong-arm”—strongly emphasize that they should take the program. As a result of this, my impression would be that approximately 80% would take the program. When we started doing the program it was not available anywhere else in this province. Dartmouth Family Court started it as a pilot. Now some of our clients are dealing with Dartmouth Family Court and therefore can receive the program at Dartmouth Family Court. That means some of our clients are getting it elsewhere.

The armed forces, through their military family support centre in this community, have also started offering it, I understand. Again, we now have some of our clients who are accessing it through that.

Of our clients who can only access it through the firm, I would say the very substantial majority, if not all of them, will attend the program. We discussed making it mandatory so that if you retained our firm a portion of your retainer would be the $30 to attend the program and therefore you would have paid for it. This way people would take it. But we felt if we forced someone to pay for the program in that way, who was absolutely determined not to take it, we really wouldn't be doing the program a service. What we do instead is encourage people very strongly to take it, and that works the large majority of the time.

Perhaps the biggest disappointment for us has been the fact that we are perceived too often as the enemy, although I think we try to take the approach that we are looking for effective solutions for custody and access problems involving children. We are not interested in taking an adversarial approach. We are there to try to defuse the adversarial nature that can creep into this, which we're not always successful at doing. We don't feel that comes from us.

Too often our client's spouse, upon being told that they're welcome to come on a different month from their spouse to take our program will say, “I'm not walking into Reierson Sealey. That's my wife's lawyer's firm. I'm not taking any program there.” This is despite the fact that we've made it extremely clear that we're not there; it has nothing to do with us. We put the service on and let it run independently so it's not tainted by that.

But we have been encouraged by the extent to which other lawyers in the community, and slowly other professionals in the community, are starting to refer to our program, because unlike the other programs.... To access the military one you have to have an armed forces connection. To access the Dartmouth Family Court program, which is the only court at this point that's able to offer it, you have to be in their system. We're the only one offering it to anyone who wants to come along.

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

Mrs. Finestone.

Mrs. Sheila Finestone: Thank you very much, Madam Chairman.

In the case of a review of mobility rights or residential change, I think one could acknowledge that if you look at the general population, career development and career change in Canada is quite a normal undertaking, and I think it probably relates to the age and the length of service within a particular corporation and company.

• 1105

Is there any comparative study on society norms? You've given us a very exciting and interesting piece of work based on 85 cases. If you took the same 85 at-random cases in the general population, would you find any different kind of decision-making based on zero to six, six to fourteen, and fourteen and up?

Prof. R. Thompson: That's a really interesting question. One of the frustrations we face as legal researchers is that we're forced to research.

I said reporter; what I mean is available to lawyers more broadly. For every one of these there are lots of decisions where a judge issues a decision right off the bench in a few words, because these are cases where people have to move quickly. There are also lots of cases where people reach agreement or just let things go. The custodial parent moves and there's no objection.

So the short answer is that if you exclude these cases and say, what about all the others out there, my guess is they'd look very different. Number one, I think there are a lot of custodial parents right now who don't dare raise this issue by moving and therefore decide not to move for fear they will lose custody. I think that's a reality for a lot of custodial parents. They don't want to take that move for fear of this. That's one.

I think another one is there are lots of cases where people move and there's no objection raised.

So I think those two groups of cases are probably left out by cases where someone moves and someone else objects.

That's just off the top of my head.

Mrs. Sheila Finestone: Thank you. One of you mentioned Rosie Abella's description of the best interests of the child. As the Supreme Court has left a vacuum, I think we really have an obligation to examine and carefully determine how we might advise the Minister of Justice to look at it.

First of all, where did Justice Abella make this statement?

Prof. R. Thompson: She made the statement in a well-known case called McGyver v. Richards, in which she ruled that there should be a presumption in favour of a responsible custodial parent to allow a move to take place. The result of that decision in Ontario was that for the next year or so, while this was the law in Ontario, approval was granted in almost all of the cases involving moves. That approach was adopted by Madam Justice L'Heureux-Dubé in the Supreme Court of Canada, but she only found one other judge to agree with her on that point. Seven judges followed Justice McLachlan. Seven judges, including Justice McLachlan, who wrote the majority decision, rejected Justice Abella's approach in the Supreme Court of Canada and said there should be no presumptions at work in cases of relocation.

Mrs. Sheila Finestone: That's a very interesting conundrum that you've placed before us, and I'm glad you did.

What role would grandparents have to play in a decision on mobility and relocation? Was that addressed?

Prof. R. Thompson: No. That's an interesting question; it's a broader question of a grandparent's position. I should only tell you this, which if you look at the cases and at the way the decisions are made, grandparents become absolutely critical to the decision as to whether the move goes ahead or not. Either a custodial parent is moving to the community where her parents live, because that's usually the way it works, or alternatively, it's a case where children have extended family within their existing community and the court is making the decision as to whether to allow a move away from the extended family.

I think it's important to appreciate that—perhaps I should put this carefully—many judges are grandparents and appreciate the significance of grandparents, number one. Number two, I think we all appreciate the significance of extended family at times like this, after separation and divorce.

Mrs. Sheila Finestone: I would suggest that it's fundamental.

To come to the legal aid role that you play, to what extent do you involve the considerations of the extended family when you're suggesting sole custody?

Ms. Claire McNeil: When we're suggesting sole custody, you mean when our clients are—

Mrs. Sheila Finestone: I have the sense that you are much more predisposed...from the difference between legal custody and residential custody. Your sense of the well-being of the child is that of the sole custodian and the sole decision-maker. Am I right in assuming that? I think from listening to all three of you, that's what I have gathered from your presentation.

• 1110

Therefore, if my assessment is correct, what is the role and the place of the extended family on the mother's or father's side? The non-custodial parent has a family, as does the custodial parent. What role do they play?

Ms. Clair McNeil: They play a huge role in terms of any parent or support network, if you want to look at it that way, especially with younger parents or parents who, as we mentioned, may have never lived with the other parent and have remained in the family.

Mrs. Sheila Finestone: But they're called one-night stands here. One-night stand seems to be an interesting definition. I don't think one could include that as a definition, Madam Chair. One-night stand is not something we're going to put in our report, but certainly a one-night stand is where they don't now live but they do have a child or an offspring. So the question is whether that's a real parent or not. Obviously, it's put into question.

I'm really interested in the extended family, be it aunts, uncles, cousins or grandparents, and specifically grandparents. As a grandparent, I have a very great interest in the answer you're going to give me.

Ms. Elaine Gibson: It seems to me that the Nova Scotia courts may have this one right in terms of grandparents in particular or other extended family and access. That is, it is usually not desirable to divide a child's life up into seven different blocks for seven days of the week, for instance, so that different people each, in a sense, have a piece of the child in terms of the number of hours. The preferable solution is for extended family to have access when the access parent has access and that the block of time should be able to incorporate that.

It's also often the case, if the custodial parent is and has been the primary caregiver, that the other parent may not be fully skilled in parenting a child, and in the various aspects of what is needed an extended family can be very helpful in that capacity. However, if there are particular reasons why the members of the extended family cannot have access through the access parent—for instance, if that parent has been denied access or is dead or something like that—

Mrs. Sheila Finestone: I'm sorry, but you said they become disinterested over time and they leave, and sometimes it's a power struggle to ensure they are given the access rights, and then they don't exercise them. Well, they may happen to have a mother and father. They may have sisters and brothers who maintain an interest in the well-being of that child, wish to visit that child, and don't want to be linked by an umbilical cord to the access parent.

Ms. Elaine Gibson: Yes, and that's the point I was just going to make. If that umbilical cord, as you call it, has been severed, then it would, in my opinion and in the opinion of the Nova Scotia courts in the direction they've taken, be appropriate in many circumstances for that other extended family member to have access to the child directly.

Mrs. Sheila Finestone: Thank you very much.

The Joint Chair (Senator Landon Pearson): Senator Pépin, do you have a tiny question? We've sort of gone over the time allotted.

Senator Lucie Pépin: No, but I want to say that this morning in the Globe and Mail it was said that grandparents in British Columbia can apply for custody and access to their grandchildren. The government says it will amend their legislation. It was in the morning paper.

The Joint Chair (Senator Landon Pearson): Okay.

Prof. R. Thompson: That's true here in Nova Scotia as well. It's been happening for years.

The Joint Chair (Senator Landon Pearson): Thank you very much for coming before us. You've added richly to our evidence.

I'd like to tell the committee itself that we will resume our hearings at 1 p.m.

Thank you very much.

• 1114

• 1122

The Joint Chair (Mr. Roger Gallaway): Welcome to our afternoon session.

We have with us, from the Nova Scotia Advisory Council on the Status of Women, Patricia Doyle-Bedwell, who is the chair. From the Mainland South Committee Against Woman Abuse, Dr. Marilynne Bell. With her is Glenda Haydon. From the Transition House Association, Lyn Barrett. Lyn is the executive director of Cumberland County Transition House Association. From the Chrysalis House Association we have Mary De Wolfe and Ginger MacPhee.

• 1125

[Editor's Note: Technical difficulty]

Ms Mary De Wolfe (Chrysalis House Association): Before I commence, I would like to reference that Ginger is here with me today as a woman who has used our services and is still very much in the...

[Editor's Note: Inaudible]

Chrysalis House is the Annapolis Valley's only comprehensive service for battered women and their children. We provide, as well as shelter components, outreach, children's outreach, advocacy and advocacy network, and in-house counselling, a program for women and children. In our more than 13 years of operation, we have literally served thousands of women and children.

I also had the privilege of representing the Transition House Association of Nova Scotia, of which I'm also co-chair, on the implementation committee for the Children and Family Services Act, which was an enacted in Nova Scotia in 1991. I just wanted to let you know that that has given me a wider perspective on child welfare issues and family court matters.

You probably have heard already, and if you haven't I'm here to let you know, that unfortunately the level of family violence in Nova Scotia is very high. This has been well documented. In that field of family violence, violence against women is arguably in the high-ranking order.

Three independent studies were released about three years ago—almost exactly three years ago: the Nova Scotia Family Violence Tracking Project, which was done by the Department of Justice; a report called “From Rhetoric to Reality: Ending Domestic Violence in Nova Scotia”, done by the Law Reform Commission; and Peggy Mahon's spousal homicide study called “Changing Perspectives”, which was done through the family violence prevention division of Health Canada. All of these reports were done independent of each other and used very different research methodology, but, interestingly enough, all three reports came forward with sets of recommendations that very much mirrored each other. In those recommendations were several that had to do with custody and access issues where they pertain to women who have left violent and/or abusive relationships.

I'm here to tell you that in our experience custody and access are still larger issues for the women and children with whom we're dealing than even criminal court proceedings. Contrary to some of the information that has been out there of late, women are not particularly interested in punitive measures against their ex-partners, and they are not coming forward in droves making allegations of child abuse. In fact, in some instances where it has been duly reported to us that there were suspicions of child abuse, we have often had to counsel women and support them in making the obligatory reports to the child welfare agencies.

• 1222

In Nova Scotia, we have a piece of legislation to which I already referred, and within that legislation I'd like to refer you to paragraph 22(2)(i), which speaks to children at risk and the fact that children may be deemed to be at risk if they are exposed to repeated domestic violence and the parent or guardian fails or refuses to seek treatment or remedy. You'll note that nowhere there is it underscored that it should be the abusive parent who needs to seek the treatment or remedy.

This has caused a great dilemma for battered women and their children here in Nova Scotia and presents a bit of a contradiction in terms. We now have women who are mandatorily being made to leave their abusive relationships—and I have no problem with women leaving their abusive relationships—but at the same time the onus is on them, and once they leave they feel the system, and particularly the family court system, does not support them and their children to the degree they need it.

So while you may have a partner who has been identified as being violent and abusive to the degree that the woman is forced to leave her home with her children, this partner is also given extremely liberal access, and in some cases the woman goes through protracted custody disputes.

Another issue that comes up repeatedly for the women with whom we're dealing is that in the minds of many—and I want to underscore that I'm not saying all—of the abusive ex-partners, they seem to feel that maintenance and access rights are interchangeable, and by paying maintenance they are purchasing a ticket to open-ended access. This is a huge problem.

Unfortunately, because of the time limit, I am not able to go into detail on any of these points, but I think they'll be picked up later by others.

The Joint Chair (Mr. Roger Gallaway): Ms. De Wolfe, your time is up.

Ms. Mary De Wolfe: It is up already?

The Joint Chair (Mr. Roger Gallaway): Five minutes is a very short period of time.

Ms. Mary De Wolfe: It is a very short period of time. I regret that because there were some other important things that hopefully will be picked up by the other women.

The Joint Chair (Mr. Roger Gallaway): Colleagues, I just want to mention one thing before we go on to the next witness. There's a photographer here from the Chronicle-Herald newspaper who wants to take some still photos, I believe, in the room. Does anyone have any problem with that? Do I have agreement? Do any of the witnesses have a problem with photographs being taken? Okay, fine.

Next we have Ms. Barrett.

• 1225

Ms. Lyn Barrett (Executive Director, Cumberland County Transition House Association): Thank you.

I'd like to thank you for giving me this opportunity to speak on the issues of custody and access, specifically within the context of family violence.

I'm here today in my capacity as executive director of the Nova Scotia transition house, Cumberland County Transition House in Amherst, but I'm also representing the Transition House Association of Nova Scotia. I'm here to speak from the perspective of front-line workers in the area of family violence.

Custody and access issues affect the majority of women who receive help at transition houses and their outreach programs. It's also an issue that affects men.

I'm also speaking as the executive director of a program for abusive men, New Directions, that is offered within the Cumberland County Transition House Association, so I have a somewhat different view on these issues.

The challenge facing this committee may seem overwhelming from the front-line perspective. It is reassuring, however, that an opportunity has been provided to us to state our concerns and forward knowledge of how custody and access decisions affect the women and children we see daily.

It's a sad commentary on our society and its laws that children are often merely pawns in the midst of what often seems like parental power struggles. However, it is also my experience that children are always caught in the middle in cases of family violence, and the effects of living with domestic terror should always be considered by our legal system when making decisions regarding parenting.

Because of the short time limit, I'd like to skip to the end of my presentation and get my recommendations on the table.

First of all, the whole dynamic of domestic violence requires that its history and the nature of the relationship between the parents be recognized and accounted for in all decisions regarding custody and access.

All legislation governing the nature of a child's post-divorce situation must take the history of the parents' relationship into account and acknowledge the significant effects of domestic violence on the child.

When family violence has been a part of the family history, safety of the abused parent and the children must be a paramount concern. Legislation should not put children nor their parents at an increased risk of harm.

A parent who indulges or has indulged in violence against their partner or children should not be awarded custody of children. This should be a presumption at law. Similarly, there should be a presumption against joint custody and joint decision-making in cases of family violence.

Mechanisms should be available to allow for quick variations of custody and access decisions in the face of ongoing or resumed family violence. Court orders regarding custody and access should be specific and explicit in cases involving a history of family violence.

Custodial parents must know precisely what parenting decisions require consultation and joint decision-making with non-custodial parents.

The use of reasonable access at reasonable times should be discouraged in favour of setting out concrete guidelines. For instance, access will be on alternate weekends commencing at 9:30 a.m. Saturday, and ending at 7 p.m. Sunday, to begin on a specific date. Specificity of this sort would help eliminate some of the potential for manipulation of access arrangements by both parents and would provide some certainty for parents as well.

Penalties for non-observance of custody and access decisions should not apply when flight from the custodial home arises out of fear of family violence.

Legislation should restrict or prohibit the use of mediation in suspected cases of family violence. In these cases, mediation should not be encouraged or even sanctioned by the courts. In addition, the friendly parent presumption should not apply in such cases.

Resources should be available to facilitate supervised access and facilitated exchange of children to eliminate risks to the custodial parent. Legislation should make explicit provision for such programs. The address of the abused spouse should not be disclosed within public court documents.

Finally, legislation should allow the court to require abusive parents to undertake counselling or treatment as a condition of custody and access.

Do I still have some time left?

The Joint Chair (Mr. Roger Gallaway): You have one minute.

Ms. Lyn Barrett: I just want to ask a few questions then, or present some questions.

• 1230

First of all, there's a lot of documentation available on the effects of a child's witnessing of family violence, and I think it's crucial that the committee always consider just how profoundly children are affected by living in these environments where their issues and their needs are not being met because the parents are so wound up in the conflict and the stress of that relationship that they are unable to attend.

In those cases of family violence, the nature or quality of the relationship between the parents and the family as a unit should be taken into account when decisions are made on access issues, because the child will be exposed to that access and to any violence that occurs around the access. Obviously, we do not want to see abused women further abused during this moment of confrontation at the doors of their homes.

I also have to say that it's hard to remember the goals of maximum access when you have a child whose memory of the father is wrapped around his father kicking a dog in front of the child and pulling out hunks of the mother's hair. And then having to see the father come to pick up the child and be pushed and shoved continually.... For that child, the whole violence of the relationship—which, according to the law, has ceased with divorce—is continuing and ongoing, and there is no healing for a child who is continually exposed.

The Joint Chair (Mr. Roger Gallaway): Thank you. And now, Dr. Bell.

Dr. Marilynne Bell (Mainland South Committee Against Woman Abuse): Thank you. I am here representing the Mainland South Committee Against Women Abuse, which is housed in the Captain William Spry Community Centre. This is a multi-disciplinary group of professionals who work in this community, including social workers, a public health nurse, a doctor, myself, lawyers, community advisers, and community representatives. We've been in the community for 10 years now and our mandate is to increase public education in our community around domestic violence and to develop community interventions and prevention strategies for that Mainland South region of Halifax.

Each year we do a research project. Last year's project was on adolescent abuse of parents, which is an under-documented and under-researched area. This year we chose the family mediation process, as a number of our members had some concerns around mediation in the presence of a history of domestic violence.

I'm going to read our brief as fast as I can.

Mediation offers several advantages over the traditional adversarial legal system. Mediation reduces the hostilities and trauma produced by the adversarial system and encourages the parties to establish a cooperative working relationship. Since parties create their own solutions in mediation rather than have arrangements forced on them, they may be more likely to follow the arrangements and solutions. That is the positive aspect of mediation.

As the committee on child custody and access is concerned with alternative strategies to family court, we feel the mediation process will be in evidence in the near future. While mediation is optimal in situations where responsible parents voluntarily agree to mediate in order to achieve a consensual solution to custody and access, there are situations of inequity that may operate to the disadvantage of one parent. Hence, it is important to anticipate some of the complications implicit in those situations where domestic abuse has been in evidence and to critically evaluate the process from the point of view of these potential scenarios.

There is a broad spectrum of abusive behaviours, ranging from a single assault in the course of a relationship to a pattern of serious repeated emotional, physical, and sexual abuse. Hence, it is important for mediators to be trained in the assessment of abusive patterns and also in the assessment of the risk of escalating violence and safety.

If mediation is to be considered appropriate, safeguards must be implemented so that the power imbalance inherent in domestic abuse will not be transferred into the mediation process. The parties should each have independent legal counsel before an agreement is finalized to ensure that their rights have been recognized. If there is a significant power imbalance, lawyers may be directly involved in the mediation process.

An alternative approach is to have mediators on a team, one mediator with legal expertise and the other with an ability to deal with the power dynamic between parties.

Mediation should not be mandatory for couples in which domestic abuse has occurred. Domestic abuse changes the power balance between the parties. Mediators come from a wide variety of disciplines and are not uniformly equipped to deal with the power imbalances in an abusive relationship.

• 1235

Even very skilled mediators may not be able to recognize the subtle way in which an abuser exercises power over the abused partner. The notion that mediators can correct for extreme power imbalance is also contrary to the theory that mediators are supposed to be neutral parties.

Mandatory mediation potentially exposes the abused woman to emotional and physical danger. The woman may be forced to confront her abuser in a mediation context and before she is emotionally prepared to do so. Within the mediation process, the parties are encouraged to take joint responsibility for the problems in the relationship. This may make the abused woman feel she is to blame for the abuse she has suffered.

Mandatory mediation may also place the woman at risk for further abuse. If the mediation is prematurely terminated by the mediator due to disclosure of the abuse, the abuser may retaliate or may escalate in harassment and threats against the ex-partner. In addition, agreement reached through mediation often involves joint custody arrangements, which require continued contact between the abuser and the abused woman.

Our recommendations are as follows. Mediation should continue to be voluntary, not mandatory, particularly where there has been abuse. Mediators should receive training and screening for domestic violence, assessing suitability for mediation and determining safety and the risk to the client. This is present in some provinces but not all. A pre-mediation screening instrument should be developed for identifying patterns of control and abuse in separating couples, which could become a standard tool for mediators across Canada. And I've included in our submission a tool used in family medicine.

As well, mediators should be trained in facilitating mediation where the situation of power imbalance exists. Advocates should be made available to either accompany or advise women who may otherwise be intimidated by their ex-spouse's control over procedure and legal information. In cases where abuse is clearly in evidence, there should be availability of supervised access and exchange as an outcome of mediation. Legal consultation should be accessible through the mediation process.

Where we think mediation is not advisable is where there has been significant violence and where there is significant continued risk of violence in the relationship.

The limitations we see in mediation are that some power balances may be irreconcilable and that mediation may de-emphasize the seriousness of the domestic abuse and the further responsibility of the perpetrator.

Thank you.

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

Finally, Ms. Doyle-Bedwell.

Ms. Patricia Doyle-Bedwell (Chair, Nova Scotia Advisory Council on the Status of Women): Thank you.

Good afternoon, chairpersons, committee members and distinguished guests. I'm pleased to be here this afternoon on behalf of the Nova Scotia Advisory Council on the Status of Women. I thank you for the opportunity to present our views. We have submitted a written brief, so my comments will be limited, I guess, in that sense, and certainly the brief has more expansion of the points I'm making today.

The Nova Scotia Advisory Council's legislated mandate is to advise the minister responsible for the status of women on issues of concern to women and also to bring forward the concerns of women of Nova Scotia. And that is exactly what our brief on child custody and access does for you today. It also addresses the current trends, such as parent information, parenting plans, and mediation in family court.

I must emphasize that two values have guided the recommendations contained in our brief: first, to ensure that the best interests of children are maintained; and second, to ensure that the rights of women are respected and protected.

Since the Divorce Act was amended in 1985 there has been a trend towards joint legal custody, where decisions are made by both parents but the child lives with one parent. Accompanying this trend is an assumption that maximum access by the non-custodial parent is in the best interests of children. This is encouraged by the so-called friendly parent rule, whereby the court is instructed to consider the flexibility of divorcing parents.

Lawyers and courts often put pressure on women to accept joint legal custody or to accept provisions that may not be in their interests. It might, for example, put them in jeopardy, increase conflict, or allow their ex-spouses to continue to harass them in other ways. This provision and its underlying assumptions have long been criticized by many women's groups.

Courts should operate within the primary caregiver presumption and that presumption should be written into the Divorce Act. Custody on an interim and permanent basis should be awarded to the primary caregiver unless there is clear evidence of child abuse or neglect. The onus should be on the courts to provide a clear rationale if they choose not to give custody to the primary caregiver.

• 1240

Primary decision-making authority should rest with the custodial parent and the non-custodial parent should continue to have the rights to information about a child's education, health, and welfare. Subsections 16(10) and 17(9) of the Divorce Act, which state a preference for maximum access and joint legal custody, should be struck from the Divorce Act. Parents should be encouraged to consider joint legal custody in appropriate situations, like low-conflict divorces, but this should not be included as a stated preference in the Divorce Act.

The effects on children of witnessing or knowing about physical violence in the home must be considered in custody and access decisions, and the maximum access provision should never apply in these cases. Access should be restricted, supervised or denied, depending on the severity of the abuse and the willingness of the abuser to seek help.

Programs for supervised access should be improved and implemented, and children should be transported by a third party in cases where there has been a history of violence or abuse.

Allegations of sexual abuse must never be assumed to be false, but must be taken seriously and investigated, as the law of Nova Scotia requires and as all existing child protection policy demands. Access or custody should not be granted until such allegations are shown to be unfounded.

Legal aid issues are important to consider within the broader custody and access issues. Many women in divorce situations cannot afford a lawyer, yet legal aid is restricted for family-related cases and the income threshold is low. For example, in Nova Scotia, one parent with one child would have to earn less than $17,000 a year to qualify for legal aid.

Legal aid should be granted where there has been or is a threat of domestic violence or where custody is in dispute. Staff involved with legal aid clients and unrepresented litigants should be trained in domestic violence issues. Funding for civil legal aid in family-related matters should be increased and income thresholds raised.

I now turn to the issue of shared parenting. Shared parenting goes beyond the idea of joint custody, maximum access or contact, in that it assumes that maximum involvement of both parents is in the best interests of children. It assumes this can be worked out during mediation and is agreed to in a parenting plan. In practice, successful shared parenting is, unfortunately, more the exception than the rule.

Shared parenting has been criticized by some researchers and many women's organizations because it is unrealistic. It increases conflict, except in amicable divorces, and in many cases it gives non-custodial parents more control over the family situation, including the ex-spouse, without necessarily increased responsibility in the day-to-day care. Shared parenting is clearly inappropriate in cases of violence and abuse and is suspect in cases where it is not voluntary and/or where there is inequality of the power dynamics of the relationship.

Shared parenting may be beneficial in some situations, but it should not be pursued in high-conflict divorces. It should not be mandatory nor should it be pursued in situations where there has been violence or abuse of any kind.

Parenting information and education programs should be supported, but they should not advocate for or pressure divorcing parents to accept mediation as the preferred alternative. Divorcing parents should be able to attend separate sessions. Those delivering the programs should be trained in gender inequality and family violence issues.

Alternate dispute resolution processes such as mediation should remain a voluntary option for those who want it, but refusal to participate in the mediation should not be taken into account by the use of the friendly parent rule.

The Joint Chair (Mr. Roger Gallaway): Excuse me, Ms. Doyle-Bedwell. Are you almost finished?

Ms. Patricia Doyle-Bedwell: Yes.

Provincial associations of mediators should develop accreditation requirements and they should be regulated as a licensed profession. Part of the accreditation requirements should be adequate education in gender inequality, understanding of family violence, and recognizing woman abuse. Mediators have a professional and ethical obligation to refuse clients who have inflicted domestic violence. The Divorce Act and the courts should continue to recognize that both parties in divorce have a constitutional right to have access to legal information and legal advocacy from trained lawyers.

Before I conclude my remarks, I would like to remind the committee of the basis for our position: we want to ensure that the best interests of children are maintained and we want to ensure that the rights of women are respected and protected.

Thank you.

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

Senator Lucie Pépin: Mr. Chair, if all the members agree, could we have the first witness finish her presentation?

The Joint Chair (Mr. Roger Gallaway): I don't think I want to put that question, quite frankly, Senator. We only have 15 minutes and we have a schedule to keep to.

• 1245

We will start, at this point, with Dr. Bennett.

Ms. Carolyn Bennett: As we hear from people, it's becoming clearer to me that there has to actually be two streams—one where there's any evidence of violence and then another stream.

I'm happy to hear about the family medicines tool, because I think we want to be able to see that there are tools available. I know there are good nursing tools as well in terms of being able to elicit power differentials, or violence.

I guess I'm having trouble, as a feminist and as somebody who has spent a great deal of time trying to find inclusive language and lack of labelling, with how the presentations, as we try to get away from the names “custody” and “access”, are moving back to “primary” and “secondary” caregivers.

I'm having trouble understanding why you think it's necessary to talk about primary caregivers when, in our very complicated lives.... When my kids were young, it was me, because my husband was on film location all the time. Now that I'm a member of Parliament, I guess somebody could say it's him, because I'm in Ottawa Monday to Thursday. There are lots of families where it's the grandparent, and there are lots of families where it's the nanny.

So this labelling of primary caregiver and some presumption to that makes me very uncomfortable if we don't actually have judges and a system that actually can understand the finer details of actually what the kid sees as important. What is the discomfort with parenting plans, where you would sort out who's the right person to take the kid to the hockey practice, who's the right person to take the person to ballet—all of these more complicated things that surely can be shared in parental responsibilities, which is what we keep hearing?

Is it only when there's violence that you think there has to be a primary caregiver, or is that for all dissolutions of marriage?

Ms. Mary De Wolfe: My comments were specifically around situations where there clearly has been violence and/or abuse within the relationship. I have no problem with the general philosophy you're putting forward in terms of shared parenting where marriage has broken down not due to violence and severe abuse. I want to clarify that.

I also want to underscore that where there has been violence and abuse, you cannot—and I think you've heard it from all of us—use the same rules or the same modi operandi.

Ms. Carolyn Bennett: We divide it very early on.

Ms. Mary De Wolfe: Yes.

Ms. Patricia Doyle-Bedwell: I want to add something as well. One of the things we've discussed at the advisory council is this issue, and we know that women are still doing most of the work related to child care and things like that.

Ms. Carolyn Bennett: Yes, Stats Canada has made it clear.

Ms. Patricia Doyle-Bedwell: Yes.

So for children going through a divorce and a break-up of the family, if you want to call it that, where one parent may be leaving, I think to provide stability to children it's important to maintain that connection to the primary caregiver, and in most cases, it's women, altogether.

Ms. Carolyn Bennett: But as we start to see dads bringing the kids to doctors' appointment and as we're starting to reinforce, hopefully, a more conjoint way of looking after kids, why would we now start to undermine and not validate the fact that dads are doing more than their dads did? I just think we're setting the calendar back a bit.

Ms. Patricia Doyle-Bedwell: I don't think we're setting the calendar back. I recognize the situations you're talking about. I think we're moving in a situation—and I would think it's limited; in my experience, it's been very limited—where, for instance, in a family break-up, if the non-custodial parent often doesn't take those responsibilities on, even prior to the break-up they didn't take those responsibilities on.

I'm hoping that we will move in our society toward a situation where men do take more responsibility for child care and child-rearing, but right now, from my experience, that's not happening except in limited cases.

Ms. Carolyn Bennett: Do you like the word “custody”? Do you like the word “access”?

Ms. Patricia Doyle-Bedwell: We keep framing the question as one of custody and access, maybe because we just fall into that. I think it's easier to think of it in those terms, in some ways.

• 1250

When we talk about shared parenting, I think it depends on how much responsibility each parent is willing to put into that situation. When we're talking about the best interests of children, children's rights have to be taken into account. I think maybe we should be moving in a direction where we're talking about parental responsibility, but we still frame it as custody and access, because those are still the words used.

I think it would be a good thing, in a perfect world, if both parents could provide and be responsible for the children, but we know that's not happening.

Ms. Carolyn Bennett: And only the children could get the lawyer.

Ms. Patricia Doyle-Bedwell: And only the children could get the lawyer. I'm concerned about that, as well. I can't see putting a five-year-old in court, on the stand, and asking them where they want to go.

Ms. Carolyn Bennett: Okay.

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

Mr. Lowther.

Mr. Eric Lowther: I have a couple of questions.

Is there no abused men?

Mrs. Sheila Finestone: “Are”.

Voices: Oh, oh!

Mr. Eric Lowther: “Are” there no abused men?

I appreciate that.

Ms. Lyn Barrett: At the transition house in Cumberland County we run programs for men as well as women. We do have men coming to us for help, but in the last year we've had 110 women and 5 men, 2 of whom were in same-sex relationships. One was very much involved in a long history of abusive behaviour with a number of different partners but got caught up in a self-defence fight once the police were there, and the current partner was safe. One was in a heterosexual relationship and was truly abused.

We don't ever see men who are suffering the same degree of violence that we see women suffering, and we never see the numbers. That isn't to say that the numbers of men out there who have never come forward because they're embarrassed or whatever don't exist, but we also know that we only touch the tip of the iceberg for women. There's this long history where women could not get help, and that's what we are all here to recognize and support. We've come a long way, but, yes, there is a little backlash happening at the same time.

Mr. Eric Lowther: I hear you say yes, that there are abused men.

Ms. Lyn Barrett: Yes.

Mr. Eric Lowther: Okay. So we have it going both ways, although your point is that it's very heavily weighted.

Ms. Lyn Barrett: It's a very small number, yes.

Mr. Eric Lowther: That's right.

To the Status of Women group here, the two priorities you closed on here were best interests of the children and protecting the rights of women. Is that how you put it?

Ms. Patricia Doyle-Bedwell: That they're respected and protected.

Mr. Eric Lowther: Okay. Which one of those would be number one and which one of those would be number two as far as priorities go?

Ms. Patricia Doyle-Bedwell: I think the way we have it in our brief, it might show one and two, but I think it's very difficult to separate the two. With women being, in the majority of cases, the primary caregiver, the best interests of the children are wrapped up in who is that primary caregiver.

I wouldn't want to say that one has more importance than the other, but I would say that both of them are very, very crucial in looking at the—

Mr. Eric Lowther: But to your organization; that's what I want to know.

Ms. Patricia Doyle-Bedwell: That's our mandate. Our legislated mandate is to look at the issues of concern to women.

Mr. Eric Lowther: So are both of those equal for you?

Ms. Patricia Doyle-Bedwell: Yes.

Mr. Eric Lowther: Both are exactly equal for your organization?

Ms. Patricia Doyle-Bedwell: Yes.

Mr. Eric Lowther: Okay. Thank you.

I guess where I want to go from here follows on Ms. Bennett's question. We're hearing that false accusations and affidavits can be used in a vindictive way in order to win custody and access battles, and even when it's clearly shown that this is how it was used, there is no penalty to the person who used false accusations in this way.

On the other hand, violence within the family is clearly tragic and undermines the very foundation of our nation. It needs to be dealt with swiftly and firmly. The problem we have is trying to sift out what is a false accusation from a real violent situation, because false accusations do occur and violent situations do occur.

• 1255

To this group, I think to help the cause, and many of the causes you're working at so diligently, some effort applied to better determining when it's a false accusation and when it's real would do more for people in the long run rather than saying every false accusation has to be dealt with as a real accusation and whoever's on the other end of that stick, the other partner, male or female, just has to live with that tainted image, have the court costs and all the rest of it.

Do you have any insights for this group as to how we can better discern or determine whether it is real abuse or a false accusation used to gain power in the courts over the other partner?

Ms. Mary De Wolfe: I'd like to speak to that a little bit, if I might.

I don't know how many of you have been in a transition house, but I assure you it's not the Ritz. Most women who would access transition house services would be there out of a high necessity. I stated earlier that we've dealt with literally thousands of women and children. I am not going to suggest that there wasn't the occasional time when we had suspicions that either the allegations of abuse were somewhat overstated, or maybe once or twice—and I'm quite sincere here—I might have had suspicions that no abuse had occurred whatsoever.

What we have to do to put this into some kind of perspective is look at the very small numbers of women, even today in 1998 with the huge emphasis on domestic violence, especially here in Nova Scotia, look at the very few women who will go forward and press charges through the criminal justice system. They're not interested in doing that. I would suggest to you that there are far fewer allegations, period, let alone false allegations, than you might be led to believe.

Also, there is a huge presumption—and this is what sets us apart and makes our services so valuable—that we are the one place in the community where women will be supported and will be believed, because traditionally, as I'm sure all of us around the table know, women have not been supported and have not been believed when they have been violated physically, emotionally, or sexually.

Ms. Lyn Barrett: I also wanted to add that in any kind of adversarial process there's a risk of false statement. That's just a matter of course. Both sides have something to win or something to lose in the process. It's a real concern for me that this is the case, but it takes a lot to prove to a court that you have been abused. First you have to prove it to the police, then you have to prove it to the crown attorney, and then to the judge. There's a whole series of spots in that process where cases get kicked out.

I did some reading on issues raised in Calgary on lawyers who were forcibly advising clients to make allegations of abuse in the hopes of achieving something for their clients. I come from a small rural part of Nova Scotia that has a lot of family violence, but lawyers who advocate a position like that would not be in business for very long. Their reputation would precede them. I'm not sure that Nova Scotia has that kind of huge population base where you could have a lot of that.

Most of the time when we have a woman come to the transition house, most people in her community know that she's been abused. We all know. It's not a big secret. The children are reporting. The children are affected. I think when we're looking at custody and access, the issues are best interests of the child within the dynamic of that family and that there is room there to explore what the real nature of that is. I don't think it should be a part of something that is legislated. Maybe the legislation needs to be adjusted just so there can be some checking up on the veracity of the complaint, But there is usually a ton of evidence before these cases get to court.

Ms. Patricia Doyle-Bedwell: I think what I hear being said here is that there is some way we can determine whether something is false or true prior to investigation. I don't think that is the situation. In most cases I'm familiar with where there has been sexual abuse, prolonged sexual assault on a child within a marriage, it took tremendous work on behalf of the mother to recognize it. Even when her child disclosed to her what was going on, it took her a tremendously long time to actually do something about it. I think that when the perpetrator was finally confronted with this he did admit to it, but it took a tremendous amount of strength and courage on the part of the mother.

• 1300

In my experience, I have not seen mothers just come up with an idea that their children are being sexually abused or abused in any way unless there's strong evidence to that effect. According to the law in Nova Scotia, if there are allegations of abuse the Children's Aid Society and other agencies are mandated to investigate that.

In order to protect our children, we have to believe them when they say something and we have to proceed with the proper investigation. If it means criminal charges, then it means criminal charges.

The only situation I know of where there was sexual abuse, there was a custodial parent.... The non-custodial parent made allegations of abuse against the custodial parent, which proved to be false. But I think that as far as the other way around, to try to get women to report it and to break through that denial and to recognize that, perhaps with a man who abused their child, it is very, very difficult and is not made lightly.

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

Colleagues, we're running short of time, so I'm going to ask your indulgence and we're going to go to Senator Pépin.

Senator Lucie Pépin: My question has been asked.

The Joint Chair (Mr. Roger Gallaway): It has? Then if you're satisfied, we'll go to Mrs. Finestone for the last question.

Mrs. Sheila Finestone: Thank you.

Mrs. Doyle, are you the one who talked about the new law and the new policy that obliges women with children to leave an abusive relationship? I'd like to know, from your perspective, what does that mean in terms of the protection...? Is it right that the woman and children have to leave the family home, or is it better to get that person who was doing the abuse out of that home and protect that home?

Ms. Mary De Wolfe: That's a good point. There's another section.... It's the Children and Family Services Act of Nova Scotia we're referring to. There's another section—I think it's 30-something, but don't quote me on that—that does provide for the family court to remove the abusive partner from the home. That's been little used to date, and there are a number of reasons for that. Oftentimes, even when a woman might be able to have the abusive partner removed from the home, for the short term at least, she feels safer in seeking refuge in a shelter.

But you're quite right, and I think it's not fair to be removed from your family home and to be basically rid of all your possessions. The stability for the children is very much at risk.

Mrs. Sheila Finestone: The last question I'd like to ask you relates to your definition of the best interest of the child. Since the Abella case in the Supreme Court with respect to the Gordon case, there is lack of clarity as to what is the best interest of the child. Outside of perhaps the Council on the Status of Women, your body, have you had any direction you have given or some thought you have given to this definition that it might be best to include in a new bill?

Ms. Patricia Doyle-Bedwell: In our brief we've talked about what the best interest of the child is. I'll just look at that quickly.

Mrs. Sheila Finestone: My point is does that have, in your view, enough elasticity to ensure that we're not looking at percentages, we're looking at each case in a manner that can have enough elasticity to apply by the judge in the case?

Ms. Patricia Doyle-Bedwell: Well, briefly, I think my position is that when you're looking at the best interests of the child it should be somewhat flexible. I don't think you can legislate in the Divorce Act or anything about—

Mrs. Sheila Finestone: No guidelines?

Ms. Patricia Doyle-Bedwell: If there's violence in the home, I think the guidelines that Dalhousie legal aid and Reierson Sealey put forward this morning would be good guidelines for the court, but whether those should actually be legislated.... We heard this morning that 80% of the cases actually settle and people actually settle out and work in a good way, and we have 20% of cases or 10% where there's some dispute. I think every family situation is unique, every family situation is different. There are different dynamics going on in that family relationship, and I would be very hesitant to legislate within the Divorce Act very strict guidelines on that. I think there has to be a process for the judges to look at what is the best interest of the child on a case-by-case basis, but not legislation.

• 1305

Mrs. Sheila Finestone: As a member of the Nova Scotia Advisory Council on the Status of Women, you've been sitting here—I've noticed that—and you have heard (a) the lack of confidence in the judges.

Ms. Patricia Doyle-Bedwell: Yes, I heard that.

Mrs. Sheila Finestone: You have heard about the lack of confidence in Children's Aid.

Ms. Patricia Doyle-Bedwell: Yes, I've heard that.

Mrs. Sheila Finestone: You've now heard about the new law that obliges women with children to leave an abusive relationship.

Ms. Patricia Doyle-Bedwell: That's been the advice for about eight years, yes.

Mrs. Sheila Finestone: Was your advice sought in all these instances? What is the role you play with respect to government as an advisory body?

Ms. Patricia Doyle-Bedwell: With respect to the Children and Family Services Act, I think that was passed in 1990 or 1991. I'm not sure, because I was not with the council at that time, how much input we had. Certainly, now we are going to have tremendous...we've had input with the child and custody, with our brief. We do advise government on those issues. We do speak with women who are having problems with custody and access issues on a daily basis, women who have lost custody of their children. We have talked with the Department of Justice on issues around family mediation. We're looking at issues around.... Certainly, in my own capacity as a professor at Dalhousie Law School, I work on issues of child welfare and have worked with the Royal Commission on Aboriginal Peoples on those issues. Those issues have been brought forward. And we've been working as the advisory council with women who have lost custody of their children.

Mrs. Sheila Finestone: FPT.

Ms. Patricia Doyle-Bedwell: Pardon?

Mrs. Sheila Finestone: Federal-provincial-territorial.

Do I have time to ask—

Ms. Patricia Doyle-Bedwell: The way our council is structured—

Mrs. Sheila Finestone: Excuse me.

Mr. Chairman, the reason I ask this is because we want to have some national guidelines, national standards. The councils across Canada—and every province has one—have a very important role to play when they meet with the ministers. I'm very anxious to know if they have the ability to help the ministers establish some national guidelines.

I want to know if you're being asked these questions and if you are dealing with these at the FPT.

Ms. Patricia Doyle-Bedwell: Yes, we're dealing with the questions but not at the FPT. The advisory councils do not participate in the FPT.

Mrs. Sheila Finestone: I know, but you are consultants to the FPT.

Ms. Patricia Doyle-Bedwell: We advise the minister on issues of concern to women, but we have.... And there are not advisory councils in every province either. One of the things we're doing as advisory councils on the status of women, which are in each province that still have advisory councils, is having a meeting in June to discuss these very issues. We usually have a meeting once a year.

We've asked for permission to go to the FPT, but we've not been granted that permission. The council at Nova Scotia—we're somewhat at arm's length; we're an agency of the government, but there's a council chair, who is myself, and also an executive director, and the executive director works through the FPT process. My job is more to work with the council. We have eight women on a council that brings issues forward, and we work with women in our communities. That's basically what we do.

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

Mr. Mancini.

Mr. Peter Mancini (Sydney—Victoria, NDP): I offer my apologies for coming late.

I have read your executive summary and I'll be fairly quick with my questions because of the time.

First, as I read this—and you may have addressed it already—your recommendation when you talk about the primary caregiver presumption in the Divorce Act is that presumption should be on the courts. You're saying that the court has to provide a clear rationale if they choose not to exercise—

Ms. Patricia Doyle-Bedwell: Not to do that, yes.

Mr. Peter Mancini: —a maternal preference. Am I reading that correctly on page 1?

Ms. Patricia Doyle-Bedwell: Yes.

Mr. Peter Mancini: There's a presumption of the primary caregiver, but there's also a presumption that that primary caregiver is the maternal parent.

Ms. Patricia Doyle-Bedwell: One of the things we discovered during our research is that most women still carry the double duty of working and also maintaining the home and child care and things like that. We talked about that earlier, about how some of those things are changing. Perhaps later on the primary caregiver assumptions will mean that it's the male parent that's home taking care of the children while the woman goes out to work, and we can see limited examples of that. But right now it's primarily the woman who carries the double duty and the responsibility for child care. That's why we would like to see...especially to provide context, stability, and familiarity for children who are going through a traumatic family transition, I think it would be in the best interest of the children to stay within the home with the person who is taking care of them.

• 1310

Mr. Peter Mancini: I just want to be clear: you're suggesting that the legislation should clearly indicate a preference for the mother.

Ms. Patricia Doyle-Bedwell: It would be in the court. I don't know if we could legislate specifically to that effect, because it's based on each family situation.

Mr. Peter Mancini: Okay. I wanted to be clear on that.

Second, in terms of the recommendations for legal aid access, I find these of particular interest, having come out of that system. You're indicating that legal aid should be granted.... People around the table should know that because of the cutbacks to legal aid in this province, they do not deal with divorce cases in some offices.

Ms. Patricia Doyle-Bedwell: In some offices, right.

Mr. Peter Mancini: You're suggesting that legal aid be granted to both parties. When you talk of raising the threshold, I assume you mean that both parties—

Ms. Patricia Doyle-Bedwell: They should have access to legal aid. Even if it's not through Nova Scotia Legal Aid, there should be a provision for that. We worked with a woman this year who lost custody of her children because she could not get adequate legal aid representation. They didn't want to grant her any more legal aid because it had been a long, protracted fight. There were a lot of issues there, but one of the things we find is that Nova Scotia Legal Aid is not providing as many legal aid certificates. So we would like to see both parties have adequate legal representation.

I'll just let the committee know that we're quite lucky in Halifax because we have Nova Scotia Legal Aid as well as Dalhousie Legal Aid Services. Sometimes there are conflict situations such that they can't deal with both situations, so they go to Dalhousie Legal Aid Services. Sometimes women end up at Dalhousie Legal Aid Services and the men end up at Nova Scotia Legal Aid.

When you're out in the rural communities, such as Cape Breton, we don't have that other legal aid service. One of the things we found in our work with women around custody and family violence is that women often have a very difficult time getting extended legal aid certificates and things like that, because the rate of pay is low, I guess, when compared with that of private practices. I've never practised law, so I guess it's somewhat low. Sometimes these people can't do as much work. They can't get expert witnesses, for instance, because they have to pay them, and things like that.

So we would like to see both parties have access to adequate legal representation.

Mr. Peter Mancini: Okay. Thank you.

The Joint Chair (Mr. Roger Gallaway): I have a couple of points of clarification. One has been raised to me.

Ms. Barrett, you mentioned that you had 110 women in your—

Ms. Lyn Barrett: We had 110 new women clients this past year, which is about our average. We have 1,200 clients overall.

The Joint Chair (Mr. Roger Gallaway): Of the 110 who came into your facility—I'm going to ask the inverse of this question—how many were not married or in common-law relationships?

Ms. Lyn Barrett: What's the division between common-law and marriage? Of those women with children—between 75% and 79% of our clientele have children under the age of majority—it's probably a fairly even mix of married and common-law.

The Joint Chair (Mr. Roger Gallaway): Thank you. I have one other final question for Professor Doyle-Bedwell. You raised the whole issue—I find this fascinating—about how investigations must be carried out until completion where there's an allegation of abuse.

Ms. Patricia Doyle-Bedwell: Yes.

The Joint Chair (Mr. Roger Gallaway): I'm aware of a case at this moment in Halifax in which an individual has been investigated for two and a half years by 21 social workers. There have been no charges. In fact, this individual has never been interviewed by anyone, although his friends and neighbours have been. After two and a half years, when does closure occur in these cases?

Second, you're a law professor. What we're hearing about is that allegations are made, some of which are true and some of which are not true. This colours, if I might call it that, the proceedings in the courtroom. What burden of proof then do you put on abuse? Is the proof going to be in a conviction in a courtroom, the suspicions of a social worker, or simply the presence of the allegations? As a professor, perhaps you could tell us what level of proof should exist in a divorce court.

Ms. Patricia Doyle-Bedwell: It's a civil proceeding, and there's a balance of probabilities and certainly one level of proof. I think if you have social workers who are mandated and legislated, then they have to investigate. There are provisions within the Children and Family Services Act that provide for penalties if you do not report alleged child abuse.

• 1315

I'm getting kind of mixed up, because I hear people talking about allegations of sexual abuse of children versus allegations of abuse. Are you talking about—

Mrs. Sheila Finestone: False allegations.

Ms. Patricia Doyle-Bedwell: It's just false allegations, period, whether it has to do with children or the spouse.

I think that in my experience of working with women who have been abused and working in transition houses and working with children, the only situation I know of in which there were false allegations made around sexual assault, the woman was charged with mischief.

So say you bring forward false allegations. If you are doing that and there is no proof to substantiate it, then I think a person could be open to criminal charges under the Criminal Code for mischief, because that has happened.

I think as far as closure goes, I would want to know what some of the evidence was that was put forward to say this child or wife was abused or whatever.

I think in terms of proof of domestic violence or spousal assault, one of the things we used to deal with is that there are different levels of abuse. We know there's emotional, psychological, and physical abuse. We have had situations where there was strong medical proof of abuse. In other words, there were broken bones in arms and legs, things like that.

What's harder to prove is emotional abuse and the dynamics within a relationship. Sometimes it's power dynamics where the man doesn't have to hit her. All he has to do is say that if she really makes him mad, he could hit her. It's that kind of duress that's much harder to prove. I think there are different avenues to look for proof, whether it's through the hospitals or through the transition houses.

I'm surprised that they would go on in your situation with 21 different social workers. Maybe that person should get a lawyer. I don't know. I think there has to be some point of closure, yes, but I think we have to be careful.

I guess my final point on this is that sometimes abuse is very difficult to prove, and people can only talk about that abuse when they feel safe. Sometimes they're not feeling safe enough to talk about it. Sometimes it's difficult to prove in court, especially on a criminal level, where you're talking about beyond a reasonable doubt; you're not talking about a balance of probabilities in divorce court.

So I think any kind of abuse is a criminal matter in Nova Scotia. We have the family violence prevention initiative with a pro-arrest, pro-prosecution policy. I think the standards applicable to accused persons through the charter should apply principles of natural justice under section 7. I think those things should have to apply.

Perhaps we need to tighten things up. If people, from what you're telling me, are going on for two and a half or three years being interviewed, interviewed, and interviewed, then I think the principles of natural justice should apply in that situation.

The Joint Chair (Mr. Roger Gallaway): So you would suggest that they bring some sort of application for—

Ms. Patricia Doyle-Bedwell: If you're being falsely accused and there's no proof and it goes on for two and a half years with no significant proof, then I think somebody is going to have to start questioning what's going on in that particular situation.

Keep in mind that the proof of abusive situations is sometimes not as strict as what we would like. It's very easy if it's a broken arm or cracked skull or other situations that have happened. It's much harder if it's emotional abuse where you may not see the same things. You will see the same dynamics, but you wouldn't see the same outward evidence of it.

The Joint Chair (Mr. Roger Gallaway): I should tell you that in this particular case the individual has engaged a lawyer. He has spent more than $50,000, and he's on the verge of bankruptcy.

I have one final question, just with the committee's indulgence. Then I won't ask any more this week.

Could you then, as a professor of law who deals in this area, perhaps tell us the difference between a false and an unsubstantiated claim of abuse?

Ms. Patricia Doyle-Bedwell: I wouldn't want to go too far. As for unsubstantiated claims, as I said, you're talking about proof. If you're talking about domestic violence and you're talking about situations between spouses, I've only known of one situation where there was an allegation of sexual assault that was proven to be false. There were other people who substantiated that. Sometimes we have situations that go to court and they don't meet that criminal standard of beyond a reasonable doubt, so a person will be found not guilty. That doesn't mean they haven't done it. They just haven't been able to meet the burden.

• 1320

The Joint Chair (Mr. Roger Gallaway): I'm sorry. I should have put that in the context of the Children's Aid Society, which uses “unfounded” and “unsubstantiated”.

Ms. Patricia Doyle-Bedwell: Oh, “unfounded” and “unsubstantiated”. In reference to Children's Aid, my experience has been this. I've seen situations where children have been sexually abused, and they will not proceed criminally unless there is a significant amount of forensic evidence to go forward, because it's something that should not be taken lightly. The abuse of children should not be taken lightly. I've seen situations where children were taken out of one home, put in a foster home, were sexually abused in the foster home, and they did not have enough forensic evidence to proceed criminally, but they did know this child was abused, because there was sufficient evidence, but not to proceed criminally. There's that issue there.

Just because there's not enough evidence, we can't say to a child, “Well, we're not going to believe that you've been abused”. And the onus is on Children's Aid to proceed with that investigation; they are legislated to do so. We have to make sure our children are protected at all times. That's what the Children and Family Services Act says.

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

Go ahead.

Ms. Mary De Wolf: I just wanted to ask if Ginger could say one thing to you. She has jammed up her courage to come here today, and she does have one brief message she'd like to deliver.

The Joint Chair (Mr. Roger Gallaway): Very briefly, please.

Ms. Ginger MacPhee (Chrysalis House Association): I'd just like to say, with all of these questions you're asking, that first of all it's very difficult to leave an abusive relationship. I left my abusive partner over a year ago, and it was actually easier when I was living in the abuse than it has been to deal with this system.

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

Senator Anne Cools: Chairman, I'd like to follow up on your question. The witness told you she had 110—110—new clients, women. You asked her how many of those were common-law, and I believe she said roughly 50-50.

Of the 50% who were married, how many moved forward towards divorce proceedings? Do you have a number?

Ms. Lyn Barrett: I can't answer that, because our contact with clients doesn't usually extend long enough to know what the outcome of the divorce process is. I know that less than a quarter actually apply for divorce or start the process within the context of their counselling with us.

Senator Anne Cools: Less than a quarter of the 50%?

Ms. Lyn Barrett: Yes. Much less than a quarter.

Senator Anne Cools: Less than a quarter of the 50% actually apply for divorce.

Ms. Lyn Barrett: At the time they are with us, they have just left their abusive partner. At that point in time, they have to wait a year for a no-fault divorce, so it's at least a year, and often it's two or three years before the situation between them is clear enough and comfortable enough and she's feeling safe enough to initiate divorce proceedings.

Often they come back to us. Often it's within five years that they will start the divorce proceedings. But the abuse usually escalates at that point in time, and that's the message most abused women know: once you start that formal cutting of that relationship, your risk goes up again. So often they'll just let it slide until a new person comes into their life, and almost inevitably that is the impetus for starting divorce—they've met someone, maybe they're having children, and they want to restart their lives.

But it's a very risky time. Usually the first two years they are separated is not a time when they're looking at that formal closure, because it is often too dangerous to do so.

Senator Anne Cools: Thank you very much.

The Joint Chair (Mr. Roger Gallaway): Thank you to all of you for being here today.

• 1325

• 1335

The Joint Chair (Senator Landon Pearson): Ladies and gentlemen, we are about to have three people appear in front of us as individuals.

I'd like to express my great appreciation to the last panel and to Ms. Ginger MacPhee for having given some testimony. Everything that is brought in front of us enriches us. I wish we'd had a longer chance to hear what she had to say.

We now have Mr. Keith Mattison, Alan Vokey, and Paul Parks.

Mr. Mattison, would you please begin?

Mr. Keith Mattison (Individual Presentation): So my five minutes starts right now?

The Joint Chair (Senator Landon Pearson): No, we're starting fresh, so there's a half-hour period for the three of you.

Mr. Keith Mattison: Oh, so we can talk?

The Joint Chair (Senator Landon Pearson): You can talk.

Mr. Keith Mattison: Oh, great.

The Joint Chair (Senator Landon Pearson): But for five minutes. At the end of five minutes, I'll—

Mr. Keith Mattison: Okay.

I'm Keith Mattison and I'm a professional social worker. I've been a professional social worker for 19 years, for the last 14 years providing outpatient services in the addictions field, mostly in rural practice as the sole practitioner in rural counties. But I'm not here to talk about my professional life. I'm here to talk about false allegations and parental alienation from my own point of view and my own experience.

I've been a non-custodial parent all my life—that is, since 1981, when my oldest daughter was born and my wife left me six weeks' pregnant, unknown to her at the time.

What's happened with me is this. The access, which was reasonable access, as was awarded in those days, was quite good. For 10 years I had excellent access and nurtured my daughters and our relationship grew.

That access, by the way, was mostly exercised at my generational home. I say “generational home” because it was the home of my great-great-grandfather. Over the generations our extended family has always gotten together. My children also enjoyed that. I remember one time my second cousin arrived with his granddaughter, which would have been their fifth cousin. A fair was on that day, and we took her up and the four of us shared our tickets and enjoyed that fair.

What happened, I believe, is that jealousy brought about false allegations, which ultimately terminated my access in any form. Now I'm in my seventh year of no access whatsoever.

In my case there were two false allegations. The original false allegation was an allegation of sexual interference. Believing in zero tolerance, I followed that through to its complete end, which was dismissal.

Shortly after that, in starting the access case up again, the other family disappeared. I've since found that they went to Texas and Manitoba and around. When they returned, there was another false allegation. This time it was stalking. I have the dubious distinction of being the first person in Nova Scotia ever charged with stalking.

The strange part about this was that the custody and access case was held over until the first allegation was heard in criminal court. The second criminal allegation was held over until the custody and access matter was determined, and it was subsequently dismissed. In that two-year process, my children became alienated from me and my family, their extended family.

One thing I really do want to point out is that although, because this is the Divorce Act we're dealing with, this was often framed and is framed as a high-conflict divorce, this was not a high-conflict divorce. It was a conflict of access. When you lose at access, there's nothing left.

• 1340

I guess I can't really think of a lot more. One thing I want to point out is that I've been really thankful, and this scattered self has really started to come back together since I was confirmed for my selection at this committee last Thursday. I really felt it in my heart, and I want to thank you for asking me to come so that in some way I can use our family tragedy to help prevent other tragedies.

I worked all weekend making up a tape, trying to squeeze the last fifteen years into three minutes. I can tell you it's impossible. This tape is five minutes. If you get a chance to see it, you will witness the destruction of a non-custodial family, but it's very subtle. You have to watch closely. I did prepare a transcript of that tape as well.

I guess I don't have much time. I didn't look at my watch when I started.

The Joint Chair (Senator Landon Pearson): You have one more minute.

Mr. Keith Mattison: One more minute? I'm not going to be able to get to my recommendations?

The Joint Chair (Senator Landon Pearson): No, please get to them right away.

Mr. Keith Mattison: I'll start at the last. Essentially, then, the problem of false allegations of child abuse in custody and access disputes has been identified and studied for the past 12 years. Some estimates run beyond 65% in all cases.

Profiles and methods of determination have been devised to screen possible perpetrators. Examination of motives for either true or false allegations stem from very different sources—one, to extricate an abuse of power and control; the other, to exercise it over another.

What is especially troubling is that while the perpetrator may be aware of the deception, in the incumbent parental alienation the child unwittingly bears the full weight of the abuse of allegations in her identity. In this way the false allegation encrypts its violence by purporting to expose a violence—a classic double bind, whatever the outcome.

I'll skip to my recommendations now. Although there are a number of good social interventions, these do require an operating infrastructure and may not be available to rural communities. Education could be a key and should be pursued, but is largely dependent on the individual practitioner's motivation and the validity of the material. Fundamental principles should be examined, to ensure the family court may practice its intent—the balanced and expeditious arbitration of dispute.

Language, perception, and potential motive have been discussed. Whether the language has changed or not, the principles exploited remain the same. The term “custody”, in and of itself, means power and control. Where do we, in removing the bias for abuse, make an award that one person should have power and control over another, especially over those most vulnerable in our society—our children?

We could usurp the motive power of custody by removing it. The concept should be reworked or eliminated, at least from the theatre of conflict. If it is to be a fait accompli, then let its structure protect the principal interests of the child. Remove children from the arena of what is largely an adult dispute. Recognize parent-child access, apart from dissolution of a marriage contract or partnership. Children are no longer chattel or possessions to be positioned for personal gain. They have intrinsic human rights and specific rights of the child as per the UN convention. Surely if the parenting roles were assured, the resultant adversarial debate would have little consequence, save the circumstance of each parent apart.

There should be a more unified family court, with an emphasis on parental responsibilities and accountability, working in harmony with other courts. Standards of jurisprudence should be established—as an example, burden of proof. Zero tolerance means making law work. In criminal court it works well, but family court cannot take the added pressure. It has not adjusted and continues to assign weight of probability if investigated and/or prosecuted. The momentum of false allegation goes unchecked. The notion that a crime is somehow suspended in a marital dispute or tried under different criteria has to go; likewise, a crime of mischief should be prosecuted, if false or fabricated.

A change in fundamental principles and outmoded underpinnings must be considered and will take time to be implemented in concert with others.

My immediate recommendations are:

1) make rule of law work, with special emphasis on evidence;

2) restructure the parameters of dispute, so that the dispute between the adults and the dispute about access arrangements are separated;

3) safeguard against abuse of allegation; and

4) family court should have a unitary function with other courts, with emphasis on expedience.

Thank you.

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

Mr. Vokey.

• 1345

Mrs. Sheila Finestone: Do we have a paper from this witness?

The Joint Chair (Senator Landon Pearson): We had a presentation from Mr. Mattison, but he just delivered it. It was too long to photocopy right at the moment, but you will get a copy.

Mrs. Sheila Finestone: Thank you very much.

Mr. Keith Mattison: I have a brief submitted, and I supplied a copy of the tape and the transcript and the overhead I was going to present.

The Joint Chair (Senator Landon Pearson): All your work will be taken into account, don't worry. The fact that we're so limited in time here doesn't mean we're not going to spend a longer time at it.

Mr. Vokey.

Mr. Alan Vokey (Individual Presentation): I was contacted last Thursday and I didn't quite know the format here. I wrote something out, so I'm going to go ahead and read it. It's a bit about what I've been through in the past couple of years.

The Joint Chair (Senator Landon Pearson): Is it five minutes?

Mr. Alan Vokey: Yes.

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

Mr. Alan Vokey: First of all, I'd like to thank you all for allowing me this opportunity to appear before you today, and as a father whose life was forever changed by the calamity of family separation, I wish you Godspeed in your endeavours to correct this.

I cannot possibly describe to you in five minutes the many details of my story. I can tell you that my entire life collapsed after two years of torture and chaos revolving around custody and access issues. I can tell you that my case was full of hatred and revenge and denied access and denied fatherhood. I can tell you it was full of brainwashing, manipulation of my children and of the legal system.

I can further relay to you that my experience was also an uphill battle, an unsuccessful battle against a biased legal system that all fathers face in family court today.

Two years ago, as a result of a custody and access war that raged in my family, I lost my entire life. My new home, my car, my possessions, my excellent credit name, and a strong career in advertising, which I had built for 15 years, fell like dominoes in a span of three months. Emotionally and financially crippled, I no longer wanted to live. I looked at my children having to live a life as unwilling soldiers in a war of revenge being pursued by a mother, and I realized that as long as I was accessible, life would never change for them. So I gave up.

I was now homeless and unemployed. I decided to live with one last contribution to my children, something they could have to remind them of me in the future—I'm sorry, I'm getting emotional here. I decided that I would travel and I would paint about families across North America. I would leave the canvases to my children, for at this point in my life, it was all that I ever thought I would ever be able to give them again, my great love expressed through my art.

I believed I would either die of my own will or at the hands of strangers somewhere along the way, because I lived outside in a tent. In any case, without me around as a target of hatred for their mother, my children, Megan and Sean, would get some relief from the raging war that infected all of our lives each and every day.

On August 25, 1996, I set out on my journey to paint, to paint about families in despair, families at play, families that seemed to work well together, and families torn apart. I wanted to interview lawyers and judges, mediators and clergymen, to write a journal on family unity in our society, so that some day Megan and Sean could read for themselves what I was able to discover and perhaps give them some insight into why families end up the way their own family had.

I lived in a tent and I slept in forests and canyons and deserts off the side roads to be able to afford to keep up with my child support payments, which I did.

I sold paintings to tourists along the way to raise money for food and child support and other necessities. I called my children each week and communicated with them through e-mail, and I sent them gifts from all over North America.

An Internet web site documented my travels and allowed my children to follow my journey closely, and as I continued along my way, this web site became a bond with my children that renewed my spirit to carry on, since they were so proud of my growing accomplishment.

My acceptance of my own demise had changed to determination to complete this journey and reunite with Megan and Sean some day.

Today, I've travelled over 20,000 miles. I have circled the entire continent of North America. I have met countless individuals, lawyers, mediators, councillors, pastors, ministers, and, most importantly, fathers and mothers and children of divorce and separation.

I've created over 200 pieces of artwork for my children, based on this family theme. I have witnessed or heard hundreds of stories of families' separation nightmares, including custody and access issues, and I have compiled everything into journals that appear on my web site for everyone to read.

Keith, here, is one of the people who have met me through the Internet. A web site had become a meeting place for thousands of people from all over the world who shared their own stories of family pain and separation and trauma with me.

My journey comes to an end this summer when my children and I will visit my father's grave in Sydney, Nova Scotia. I will then return home to Ontario, and undoubtedly to the anger and hatred of my ex-wife, where the cycle of pain will continue.

If there is anything I have learned from my experience and my travels throughout the towns and villages and cities of North America, it is this: number one, fathers greatly lack equality in the family court system.

In Canada, according to a statistic that I learned in 1994 from an Ontario government pamphlet in an Oshawa courtroom, mothers retain custody 96% of the time after a custody dispute. The sheer magnitude of that number means that fathers are considered to be less capable of parenting their own child almost 100% of the time, and this is a terrible reality that fathers face, fathers from Baffin Island to the Florida Keys.

• 1350

The most important thing I have learned is that custody and access disputes are not legal issues. They are symptoms of a more deeply rooted problem that faces separated families: the overwhelming concern is severe emotional trauma, the pain that grips separating families, which causes such things as the disputes with respect to custody and access to kids.

If our society really wants to cure our separating families, if we wish to rid ourselves of the legal costs and the congested courtrooms, then we must find a way to deal with the family's emotional upheaval before entering courtrooms to resolve symptomatic issues with laws.

In closing, on behalf of Megan and Sean and all of the other children caught up in the pain game of family separation, I beg of you to amend the family law in order to force adults to deal with emotional issues first before seeking legal counsel—this is my recommendation and it's the only one I have—and for once and for all time I urge you to recognize that fathers are much more to their children than paycheques and dispensable victims of misguided anger and revenge by ex-partners and by courts who look the other way. We love our children.

Thank you.

Voices: Hear, hear!

The Joint Chair (Senator Landon Pearson): Gentlemen, this is a parliamentary court, so there's no....

Mr. Parks.

Mr. Paul Parks (Individual Presentation): Thank you, Chairman. I would like to start by thanking the chairman and committee members for taking on this task to, as the mandate reads, “assess the need for a more child-centred approach to family law, policies and practices”. I would emphasize joint parental responsibilities.

I hope your support will favourably endorse moving the standard of parental responsibility towards equal parenting with equal time after the separation of the primary family.

My appearance today is made with a heavy reluctance. It gives me no pleasure, no pride. It is no longer even a compulsion, like that of the ancient mariner's tale of the albatross. I am present to be an advocate for Paul Jr. and Natalie and the numerous children who have been made chattels by Draconian court orders. These are the children who have disappeared. They have disappeared for reasons ranging from parental alienation to legally assisted abductions. I used to be the primary caregiver in my house.

We are our children. We are their voices, their laughter, their smiles. We are their hugs.

For Paul Jr. and Natalie and the other children like them, no court order can give them back their childhood. No promise can wash away their tears. No amount of money can fill their need for love and security. Only parents, loving concerned parents who put their children before themselves, can give a child these things.

We parents and elders have been privileged. We have most likely lived in an affluent time as children. We were raised in a family with both parents and with grandparents, uncles, aunts, and cousins. The world appeared safe and our parents moulded an optimism for life. There was a noble idea of justice, compassion for humanity, and morality in relation to prosperity, a benevolent society, and a caring God.

For my children and others like them, this world we adults grew up in belongs to the pages in story books—like the ones my children and I used to read together.

The family experiences of Paul Jr., Natalie and others will leave them with crutches to hobble away on. This world is not ours to take with us. It is to be passed along to our seed. We have seen the scars left on our ecology from industrialization, but what about the scars we are leaving on our culture? Is everything for profit, for efficiency, or in the name of one's career?

As the father of Paul Jr. and Natalie, today I have a choice to make. This choice is mine simply because I cannot discuss it with the two people it affects most.

It is an opportunity that few people have, since I am not incarcerated, institutionalized or homeless. It comes from being a responsible, caring parent who fathered two precious children, two children who had the opportunity of having at least one nurturing parent but had the misfortune to come into this world at a time when fathers were prohibited from protecting their children from abuse.

My appearance here can be used to expose yet another horror story of injustice—which is the legacy of our family—or it can be used as a door to close a path. It is a small reconciliation to know that some day Paul Jr. and Natalie will have the right to see me on their own.

• 1355

What about all the other children who have disappeared from caring parents? Is it justified?

I want to request that each committee member keep in mind that each of these children who have disappeared will have a challenge to face, a question left unanswered, and a task that will be reluctantly faced, if at all.

Are you willing to take my place when that day comes? Will you explain to these children why a society that boasts of being congenial and benevolent chose them to forsake? How do you tell them that they were not worth your effort to protect? How will you dispel their beliefs, restore their love, soothe their fears? How do you look into their faces of tears and assure them it was “in the best interests of the children”? As our society, in the residential schools for natives, once enforced “in their best interests”....

It hurts. It hurts to know how proud Paul Jr. and Natalie were of their dad. It hurts to hear an empty room, a child cry, or to hold a toy. How they waited for me to come home so we could play. It hurts them—grow and then disappear because of deceit, a falsely obtained piece of paper. Nobody cared to make a phone call in the best interests of Paul Jr. and Natalie. Or is it that nobody cared to make a phone call for my children because then they would have to deal with the truth?

It hurts. It hurts to recall how they looked to me for protection and help. It hurts to recall the pride they took in helping their dad and each other. It hurts most of all that I could not get them out of that violent house we used to live in, no matter how hard I tried, who I turned to, how much I loved them or how much they loved me.

Morals cannot be legislated, but legislation can entice vile deeds. Since the late 1960s, Canadian governments have gotten out of the nation's bedrooms. It is about time for the government to leave the family living rooms also. Stop stereotyping men and promoting the idea that single families do not harm children.

Time does not allow me to give a résumé of my many observations in dealings with government agencies and professional services related to the divorce industry and to trying to keep my family together. There are a few myths that I would like to comment on.

In family disputes, it does not take two. Men do not have a monopoly on abuse, nor do women have one on caring. Children, as they get older, will not walk away from all this and be just fine. Lawyers, doctors, police, social workers, and neighbours will not tell the truth whenever asked if it incriminates them. Wives may lie. In other words, if she said it, it may not be the truth.

Our legislation seldom does what it's intended to do. Please carefully examine legislation that amounts to gender-specific laws, such as that for stalking, or the proposed changes to the compassionate act for justifying murder, or the proposed amendments in Manitoba, where restraining orders will be issued with a phone call. These laws are destructive to our families and to our children. I fear that if these and similar types of laws would have been in place five years ago there is a good chance that I would now be deceased. I'm not asking the government to abdicate its power of protection for its citizens—just the contrary. I'm asking this committee to make it known to our government that it should not be abdicating its power to special interest groups that turn new laws into gender issues for self-serving intentions.

In that light, it will do our children little good to pass equal parenting legislation on a federal level only to have it provincially watered down or, in practice, to have lip service paid to it at best or misused for pecuniary rewards at worst.

The greatest change to benefit our children and those in families is not change through legislation but change through the promotion of strong family ties, responsibilities and values.

• 1400

In the same light, I would encourage the committee to recommend to the government to discourage single families and those lobby groups that support them or gender-specific issues. As with the government's successful policies in affirmative action and bilingualism, this committee should encourage the Canadian provincial governments to take the initiative for two-parent, mom-and-dad families.

I want to give my support for the concept of shared parenting. Parenting should not mean that dad has to emulate mom to have his parenting care recognized before the courts. Dads can be dads without having to compete with moms. The current system before the court—only recognizing the primary caregiver—escalates competition for the children between the parents.

Unless there are criminal convictions which would restrict the parent-child relationship, the presumption should be parenting, parenting, parenting, in both homes. Even where there is a conviction of a parent for abuse, I feel that total separation or denial of any contact is a cruel and unusual punishment to inflict—on both the innocent and guilty. There are exceptions, but there should be an effort to maintain at least minimal written contact.

Where allegations relate to the divorce, they should be handled by the proper authorities and dealt with in a criminal court, while maintaining well-documented, supervised access, along with validated recordings of all interviews.

It is the government's responsibility in society to maintain a balance between protection and freedom. Exercising this balance is critical when the state intervenes by imposing itself on the family. There has to be a better reason for denying any contact between a child and parent than a social worker or a judge fearing for his or her own career.

New legislation should be aimed at making the legal, community services and medical industry more accountable, while at the same time making careers less vulnerable to political correctness and stereotyping.

In closing, I simply want to ask the committee members this: What are we to do for our children who have disappeared? What are we to do if and when our children appear before us after being missing for so long?

For me, I just want to use this opportunity to tell Paul Jr. and Natalie that dad understands, that dad understands the hurt, and no matter what has been said or done, I still love you both.

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

I thank all three of you for your testimony.

Mr. Mancini, as the local member of Parliament, do you wish to ask the first question?

Mr. Peter Mancini: Sure. I have a couple of questions.

Perhaps I can start with Mr. Vokey, who gave us one recommendation. I just want to be clear about it, because in the last part of your presentation I think you said that we have to deal with the emotions before we deal with the issue of custody. I'm going to take from that comment that you would support some kind of a mandatory counselling/mediation process prior to litigation.

Mr. Alan Vokey: Paul's a perfect example of that.

On the other side, mothers have pain. But because they control the children, their pain manifests in revenge, which creates more pain.

When a family separates, a bomb goes off. And we're so close to the blast we can't see straight, but we go and seek lawyers who want to correct this in court. They're trying to correct emotional trauma through legislation.

Well, what should happen when a family's pulling apart.... It should be mandatory that they proceed through the court for an application or an order for separation. That order is only granted on an interim basis until they get counselling, whether it be three periods, five periods, ten periods, whatever is recommended. And they go through a process with a trained family separation therapist, who knows about this pain, who knows how to identify it and correct it. They work these things out before they get to a lawyer, before it gets into a courtroom.

Because now they end up coming back time and time again. Mine lasted five years. My children lived that for five years. They will never, ever get over that. I see it in them today as teenagers.

• 1405

Mr. Peter Mancini: The second point you made wasn't a recommendation, but I'm going to take from it...and perhaps tell me if I'm wrong here. You indicated that in your opinion there was a systemic bias in the courts. Would you be recommending to this committee that there be family training for divorce court judges?

Mr. Alan Vokey: For divorce court judges and lawyers? Definitely! I'll give you a funny little anecdote that will put a bullet note right on my point.

I was riding up the elevator at a hearing date for the custody of my children. A court officer was riding up with us. He was speaking with another gentleman, and he put his hand on his shoulder and laughed at the gentleman and said, “You know who wins in family court, don't you?” The man said, “I don't know, who?” He said, “Mothers and lawyers, in that order.” And that's true.

Mr. Peter Mancini: The second question is for Mr. Parks, and I'll be fairly brief here because I know we are running late.

I want to make sure I have this correct. You indicated that even where allegations of abuse are proven, the access should continue in some form. My question is, in your opinion, is there ever a point when a parent forfeits their right as a parent to—

Mr. Paul Parks: Yes. The reason I say that is because the person who should have had serious abuse charges laid against her was the children's mother.

Mr. Peter Mancini: Okay, but away from your own specific case—and I appreciate what has happened to you both—what I'm trying to get at here and what we need to do is to find out how to correct the situation so it doesn't happen again for the many people who find themselves before the court.

So you would agree with me that there are some situations where—

Mr. Paul Parks: Definitely, some type of contact should be maintained for the parent-child relationship, where possible.

Mr. Peter Mancini: Okay. Those are my questions. Thank you.

The Joint Chair (Senator Landon Pearson): Thank you. Is there another question?

Maybe Mr. Lowther will ask a question.

Mr. Eric Lowther: We've heard three tragic cases. This might not be the best question, but you've been through the process as it is today and it didn't work out very well.

At times maybe you must have thought, gee, if I could crank the clock back and do this over.... With the exception of the union you chose with the other parent, marriage or whatever, could you have done anything differently in the current system that would have allowed you to have a better outcome?

Mr. Alan Vokey: I could have stayed in the home and dealt with everything legally before leaving the home. Once you leave the home, you're ostracized, not only by your family but by society. You're a father living outside of the circle. I know all of you would want to believe it's not this way in family court, but it is this way in family court. Fathers are completely different from a mother when they walk into a family courtroom.

I've known men who've been charged with sexual abuse, who didn't see their children for two and a half years, and finally got it proven wrong, that it was an alleged charge that could not be proven in court, got granted access to his daughter whom he hadn't seen in two and a half years, and he couldn't develop a relationship with her because it was destroyed because of the brainwashing that had happened during two and a half years. Forever, that child's life with her father is gone.

I knew a Baptist minister in Washington State who had alleged sexual misconduct charges against him. He was a preacher. Court documents were sealed. His wife went door to door to his parishioners, and the parishioners met on a Saturday evening and evicted him from the pastoral residence because they couldn't take the chance that the charges were right, or not.

It all swings back to custody and access and allegations. All of these things come out of anger, fear, and pain. If we don't deal with that first, what's the point of changing your laws; it's not going to make a difference. It'll make a difference, but not a big one.

Mr. Eric Lowther: Do you have a comment on that?

Mr. Keith Mattison: Yes, there's one sitting right here.

One of my comments about the question over there was, guilty is fine. In fact, a lawyer I spoke to shook his head and said he couldn't get an order similar to mine for someone who had been proven guilty of sexually abusing his children. So there the answer is: don't ever be innocent. The emotion is a definite roller coaster, and I consider myself fortunate to still be alive today.

• 1410

Talking about.... I apologize. I've forgotten your question.

Mr. Eric Lowther: The question was if you could do it over....

Mr. Keith Mattison: Yes, there's one thing, one possible thing. At one point, I became aware of one incident of spousal abuse between my ex-wife and her husband and spent three days with my children trying to help them overcome that. The one mistake was allowing them to call their mother. Their mother wanted them to come home. I could have taken them to Children's Aid, climbed on the abuse bandwagon and had my children living with me today. That was the one incident.

Mr. Eric Lowther: Could I just—

The Joint Chair (Senator Landon Pearson): Just one comment.

Mr. Eric Lowther: Just to follow on Mr. Mancini's question, I want to get this very clear from you three fellows. If a parent is physically violent, should that jeopardize their access and ongoing participation in the family?

Mr. Keith Mattison: If a parent is physically violent, they should be charged with a criminal offence, zero tolerance.

Mr. Eric Lowther: Okay.

Mr. Alan Vokey: No, I don't think so. I think they should still have some kind of access, a monitored access.

Mr. Paul Parks: Yes, they should have limited access. But I think the real violence in families often is emotional violence.

Mr. Eric Lowther: Thank you.

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

Mrs. Finestone.

Mr. Keith Mattison: I think the problem is parental alienation, which is common to emotional abuse as a traumatic bond and an intergenerational phenomenon transmitted from generation to generation, like all other emotional abuse. That's the impact.

The Joint Chair (Senator Landon Pearson): Mrs. Finestone, a quick question because we're running over time.

Mrs. Sheila Finestone: I found it extremely difficult to listen to your stories; they're not easy lives that you had to lead. There's a couple of things I'd like to ask.

First of all, abuse seen by children in their homes is often carried out by those same children in their next relationships. We have seen that as a constant picture so it's very important to find the way in which one can resolve these problems, problems that I think are almost unresolvable in some instances.

I'd like to deal specifically with the suggestion you made on the application for separation, go for counselling, go for mediation, go for arbitration, go for whatever you want. Do you think there is enough goodwill between both parties that it can be an effective step between separation and divorce proceedings?

Mr. Alan Vokey: If people know that that's the law, that they can't get into a courtroom with a lawyer without having a certificate that says they've completed this course, if you want to call it that, then there's no choice. It's mandatory. You have to do this. You have to go. Even if they aren't willing, I'm sure a good therapist can root that out over two or three or four meetings and break them down and get them to admit that they're angry or that there is anger welling up inside them that could cause them problems later on.

Even if somebody just brings it to the table and says, “Sir, you're going to be angry because you can't see your children 24 hours a day any more and you might start saying bad things about their mother in front of them. Keep that in your mind, because it's going to happen, and check yourself if it does.” “Ma'am, you're going to be angry because you think your husband's out having a good time and he's not paying enough child support, or he's a creep, and you're going to say these things in front of your children. Keep that in your mind, because it's going to happen, it's part of the process, but make sure it doesn't happen in front of your children because your children's relationship with their father is different now than yours is with him.” And the same thing to the father.

Even if these things are identified very clearly...people are intelligent. I'm sure after awhile their pain is like death. My sister died five weeks ago and for the first week it wasn't real; the second week it got worse. Now I think about it 30 times a day.

These thoughts, these seeds are planted in their minds and are going to develop over time. They are going to think about them and they are going to catch themselves saying “Your father's a creep.” They're going to say to themselves “I'm not supposed to be doing that.” But right now, nobody tells them that; nobody's told them that, and not to use the children.

Mrs. Sheila Finestone: It is interesting that you compare death and dying and the grieving steps because I think that's part of the whole process.

Mr. Alan Vokey: It's a cut of the same thing.

Mrs. Sheila Finestone: I do agree that there has to be a cooling off, if I can put it that way, or an emotional re-establishment for a sense of self-worth and for a sense of potential reunification of a family. I often think that maybe they could just go into a contract, like a business deal. You wouldn't have to have any relationship with each other, but you'd certainly have to have a relationship with the children, because the children don't belong to you.

• 1415

Mr. Alan Vokey: Absolutely.

Mrs. Sheila Finestone: Children belong, in a sense—

Mr. Alan Vokey: To themselves.

Mrs. Sheila Finestone: That's right, and their interest is there.

So you think you can go for counselling, in a sense start to address the pain, anger, and fear, and then go for the legal process.

Mr. Alan Vokey: I'll tell you something. If that had happened to me.... I wish my ex-wife were sitting here beside me. I will not talk behind her back.

Mrs. Sheila Finestone: She'll read you on the Internet, I promise you.

Mr. Alan Vokey: Oh, she has, believe me. Keith knows that, too.

If that had happened to us, I'm sure we wouldn't have gone through what we went through.

Mrs. Sheila Finestone: I think it's difficult for men and women, and I hope we have some of the wisdom of Solomon, because I think it's going to take that. Thank you very much.

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

Senator Anne Cools: Thanks very much. I'd just like to share with the witnesses that I too feel enormous concern for what I call the assertions about the inherent moral superiority of women. You know the assertions that women can do no wrong. It is killing us in this country and it's murderous to children.

Mrs. Sheila Finestone: This is a woman who...

[Editor's Note: Inaudible]

Senator Anne Cools: Very good. That's why I love you.

I'd just like to share with you and have you respond to some information that was just handed to me about two minutes ago. It is the result of a poll. I'm reading from the Globe and Mail, May 25, 1998. The issue is the subject of hearings by a Senate committee on the issue of access and child support—I think they mean our joint committee—but the good news is the following. This is the result of an Angus-Reid poll and it reads as follows:

Seven out of ten people in Ontario say child-support payments should be withheld from women who deny access to their children to husbands who pay child support, according to a poll for The Globe and Mail by Angus Reid Group. However, Ontario residents are divided over whether women who repeatedly deny access should face jail sentences. Forty-six percent said jail sentences are acceptable, while 48% said they are unacceptable. The poll was prompted by a recent court case in Ontario that saw a woman sent to jail for denying access to their children. The issue has been the subject of hearings by a Senate committee on the issue of access and child support. The poll, which questioned a representative sample of 1,000 Ontario adults, was conducted between April 22 and May 3.

I just wanted to put that onto the record of the committee. It is located in The Globe and Mail, May 25, 1998. It's an Angus-Reid poll.

I must tell you I am not a poll reader or a poll gatherer. As a matter of fact, it may be said that usually I am a poll ignorer.

I'd also like to draw attention to a Winnipeg Free Press article of January 23, 1998. The headline is “Judge attacks abuse policy: People can be jailed on false allegations”. It's an article by Leah Janzen and it quotes Associate Chief Justice Jeffrey Oliphant as follows:

Sometimes allegations are made that aren't true during the tumult of a marriage breakdown.

It's a rather particular case. The important thing about Mr. Justice Oliphant is that he was a member of the recent panel in Manitoba called the Manitoba Civil Justice Review Task Force, and he listened to endless stories, like the ones we have just heard.

I think I've said what I had to say, but in point and in fact some of your testimony has been very generous. If we were to look at child protection and the positions the child protection authorities have taken with respect to abusers, particularly mothers, we would find the policies that were adopted there were always to keep mother bonded to child. I am not sure that is wrong, despite the fact there have been colossal tragedies, but I'm just trying to show you how it's okay for the goose and different for the gander.

In any event, female aggression is alive and well and with us. It's breathing strongly and rewarded a lot. I thank you.

• 1420

The Joint Chair (Senator Landon Pearson): Thank you very much for your testimony. We've taken longer than we meant to. We have other people to hear from. So thank you for coming to the table.

We will call for our next witnesses, Dr. Katherine Covell, director and associate professor of psychology, Children's Rights Centre at the University College of Cape Breton; and from the Annapolis Valley-Hants Community Action Program for Children, Pauline Raven and Deborah Reimer.

Dr. Covell.

Dr. Katherine Covell (Director and Associate Professor of Psychology, University College of Cape Breton): Good afternoon. Bonjour.

Under the United Nations Convention on the Rights of the Child, Canada is obligated to move toward legislation and public policy that is really in the best interests of the child. In the context of custody issues, there is a large body of psychology research suggesting that the best interests of the child are served under the following two conditions. The conflict between parents during and after the divorce should be minimized, and in the absence of abuse, children should maintain meaningful relationships with both parents.

These two conditions require a much more child-centred and child's rights approach than what we typically see now, with the child being held as a prize for which parents compete and the courts being the ones to declare a winner and a loser. To achieve these conditions, we need to get away from family disintegration being an inevitable part of marriage dissolution. We need to reconceptualize divorce as family reorganization, with an emphasis on the divorcing parents continuing parenting responsibilities. I believe this can be done best through the legislation of parenting plans.

Parenting plans, articulated jointly by the divorcing parents, put priority on the child's needs by identifying not only the broader issues, such as with whom the child will live, but the specific functions of day-to-day parenting, such as child care arrangements, music lessons, birthday parties, school visits, and so forth. Responsibility for each function is then distributed to either one parent or both.

Parenting plans currently are being used in various jurisdictions in England, Wales, and the United States. The Parenting Act, passed by the state of Washington in 1987, I believe provides an excellent model for us in Canada. It comprises the following four primary components.

First, the legal terminology of custody, access, and visitation is replaced with residential care and decision-making, with a strong focus on shared parenting responsibilities. There are limitations on shared parenting specified in order to provide protection in situations of abuse or domestic violence.

Secondly, the act mandates that parents file with the court a proposed parenting plan 30 days before the divorce hearing or within 180 days from filing for divorce, whichever comes first. This timeframe is used to avoid the period surrounding the filing of the divorce, since that is the most emotion-laden and least likely to produce a well-designed plan.

Third, the act prescribes the minimal details of what is an acceptable parenting plan. A standard parenting plan form is given to the divorcing parents. The form requires that the parents establish in detail the responsibility for the child in the three major areas of residential care, which includes the school year, vacations, holidays, birthdays, and any other special family days; transportation to school, leisure activities, and so forth; and decision-making. Decision-making issues are broken down into the subsequent three areas of education, religion, and health.

• 1425

The form also allows for addition of activities of relevance to the specific family or the specific children—for example, horseback riding lessons, sports activities, decisions about teen driving, if there's a teenager involved.

The fourth component of the act says that parents must select from among the dispute resolution options of court processing, mediation, or counselling, to be used if and when future conflicts arise.

Parenting plans, most notably the one I just summarized, have been evaluated, and research indicates the following. Parenting plans do promote greater child-centred focus and joint decision-making. They do promote the consistent and continued meaningful involvement of both parents in the child's life, and they do lessen inter-parental conflict over child-related issues, the latter in large part because the form generates many more parental options, allowing each parent to continue his or her typical interactions with the child or children, and because of the built-in dispute mechanism.

Parenting plans compared with our current approaches are more child-centred and are more consistent with Canada's obligation to children under the United Nations Convention on the Rights of the Child. They're more likely to promote conditions that are in the best interests of the child's development.

Legislated parenting plans, I believe, allow for an application for divorce to be treated as a call for help in the reorganization of a family.

Thank you.

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

I'm not sure which one of you is to go first.

Ms. Pauline Raven (Regional Coordinator, Annapolis Valley—Hants Community Action Program for Children): I'm to go first.

The Annapolis Valley—Hants Community Action Program for Children and its prenatal program are community-based initiatives. At AVH-CAPC, we work with families that have children aged zero to six and that live in low-income circumstances. From this vantage point, we witness, on a close daily basis, the parenting role performed by single-parent mothers, who are the primary custodians of their children.

While a number of pictures will be painted to illustrate the challenges faced by these women, we seek to underscore for this committee the important work being accomplished by these women. We will highlight the high level of commitment we witness as they work to raise their children under extremely difficult socio-economic circumstances.

It is most likely that a woman will become a single-parent mother as a result of abandonment by, and/or separation and divorce from, her children's father. For many women this change in family status results in dependency on welfare for family income. In fact, 68% of all poor families headed by a single-parent mother are welfare recipients. This situation places the mother and child in poverty. Indeed, a women with one child has a 70.6% chance of living in poverty as a single-parent mother, and a women with two children has an 80.7% chance of living in poverty as a single-parent mother.

For the purposes of this brief, AVH-CAPC produced a case study. This case study illustrates the resulting family income for a mother and one child who become dependent on welfare following separation and divorce while the father continues to work for 37.5 hours per week at a $10 rate of pay, and who pays $250 per month for child and spousal support.

When we consider this family's circumstances, we will see that the mother and child will be left with a family income that is over $4,000 below the low-income cut-off, whereas the father will be left with a surplus that exceeds $5,000.

It is notable that the amount paid by the father in child and spousal support is directly deducted from the single-parent mother's welfare income. Hence, the father's contribution is not applied toward addressing the level of poverty experienced by such mothers and children.

As you will hear from Ms. Reimer, a front-line worker at AVH-CAPC, there are real consequences for children when an overall situation is created where the mother and child will live with a very small annual income while the father will continue to have an income that exceeds the low-income cut-off.

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

Ms. Reimer.

Ms. Deborah Reimer (Advocacy and Support Worker, Annapolis Valley—Hants Community Action Program for Children): Single-parent mothers most often have to say no to their children when routine requests are made due to the extreme difficulty presented by the accommodation of non-essential items to an already deficit budget.

• 1430

Consider situations from a child's perspective. While in the care of his or her mother, there will be few opportunities for the mother to personally supply any extras of a material nature. In contrast, the father has the choice to say yes more frequently when the child brings requests forward. This situation creates real differences in the relationships mothers and fathers have, and places strain on the custodial arrangements, since the child's experience on a material level will be qualitatively different during the times when the father has access.

We ask you to consider the following examples. Mothers have difficulty supplying their children with safe, reliable transportation for regular appointments and such necessary tasks as grocery shopping, while fathers take their children on recreational excursions in a reliable car or truck of his choice. Many women cannot afford to have a phone service installed in the family home, while many fathers maintain a cellular phone. Mothers cannot fund their children's participation in school book clubs, while fathers are in positions to purchase various treats during access periods—for example, books, toys, and candy. While mothers find it difficult to fund hot lunch programs for their children, fathers often take their children to McDonald's.

These are only a few examples, but they demonstrate that single-parent mothers who depend on welfare for much of their family income have little spending power. This becomes a real disadvantage when trying to meet even low-cost, reasonable requests from their children. While the single-parent mother is the primary custodian of her children, her economic status places her at the very bottom of the economic hierarchy that emerges.

In addition to the enormous economic difficulties faced by single-parent mothers, there are many negatively focused myths that impact on her social status. While single-parent mothers want to achieve a higher annual income for their family, they are curtailed by many circumstances beyond their immediate control. We also believe positive parenting is a very high priority for single-parent mothers, and participation in the workforce for a low wage is, in many mothers' analysis, inconsistent with this goal.

We recommend that family court policies and practices regarding child and spousal support be adjusted such that family income of single-parent mothers does not fall below the low-income cut-off. We know family resource programs, where available, provide a vital support system for many single-parent mothers and their children, but these programs are available to only a small number of communities in Nova Scotia. Increased availability and access to such programs would ensure that a social support network is in place for single-parent mothers as well as other mothers living in low-income circumstances.

In conclusion, programs need to be available such that those custodial mothers who wish to enter the paid workforce can. Affordable and flexible childcare is a key need. Such programs must be based on meaningful consultations with single-parent mothers to ensure that these programs will in fact meet their families' needs.

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

We'll move now to questions, first to Mr. Lowther.

Mr. Eric Lowther: Thank you, Madam Chair.

My first question is for the first witness. I'm sorry, I didn't catch which organization you were with.

Dr. Katherine Covell: I'm from the University College of Cape Breton.

Mr. Eric Lowther: Okay. So you're Ms. Covell.

Dr. Katherine Covell: Dr. Covell.

Mr. Eric Lowther: Thank you.

I think your discussion about parenting plans, and your position on them, is interesting. Parenting plans, you suggest, need to be developed prior to divorce proceedings being heard. We've heard this before. It's an interesting and I think meritorious position. This, in a sense, is a real-life working out of putting children first. We hear a lot about putting children first, and this is a real-life example where it could actually translate into action.

The reality today is that we've heard how some who have been awarded access can't get it, and some who get it don't honour it. What's your approach? When we're promising things within a parenting plan and people ignore it afterwards, what do we do?

Dr. Katherine Covell: With the initial caveat that there will always be dysfunctional families and dysfunctional parents, in general it's been found that the parenting plan lessens these kinds of problems because of the way the specific day-to-day functions are divided between one or both parents. It tends to be much more allowing of parents to maintain and continue their pre-divorce parenting functions. It's not putting one parent into the situation of being given something called access, which you normally think of, you know, as access to your bottle of scotch after hours, or access to the refrigerator when you're on a diet. It allows you to continue to be a parent. The focus is on joint parenting and it remains on joint parenting.

• 1435

Mr. Eric Lowther: For the sake of time I might cut you off. I think what you're saying is that this approach will reduce the number of problems, but that you're still going to have problems. There's still a smaller subset, we hope, that will fall out of this, who are still having problems.

Dr. Katherine Covell: I think the research that's been evaluated suggests that because it can become what's socially accepted, and because it doesn't put parents into a situation where they're competing against each other—it's a time when they're most emotionally labile and most angry with their partner—it forces their focus onto the child and the child's needs, and in that sense is very much in the best interests of the child.

Mr. Eric Lowther: I think those are excellent points, but you still haven't answered my question. What happens when that doesn't work? People are going into these relationships upset, and they get vindictive. We can have all the parenting plans in the world, but afterwards, when the vindictiveness starts to get in, on that subset where this starts to happen, what do you recommend then, when the parenting plan breaks down and people are not honouring their commitment? That's the crux of a lot of our questions here—what do we do at that point?

Dr. Katherine Covell: The parenting plan includes a commitment to a particular kind of dispute resolution mechanism, and it's been found that most parents opt for mediation and do go with it.

Mr. Eric Lowther: So within the parenting plan should be consequences of not complying with it.

Dr. Katherine Covell: Exactly. Yes. But the compliance rates have been very high.

Mr. Eric Lowther: Thank you.

If I have the opportunity for one other quick question to the other ladies....

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

Mr. Eric Lowther: Your situation of a single income mother—and I think you used the word mother, so I'm going to stay on that same track—of the lady who is below the LICO, in a poor situation as we define it, I guess.... If she enters the workforce, or if somehow her situation changes so that she now is no longer below the LICO, and now actually has quite a substantial income, at that point should the support or whatever that the father is paying, in this example, be reviewed and possibly reduced?

Ms. Deborah Reimer: I think there is always a process for reviewing the maintenance that a father pays—or that a mother pays, because in some cases it is, but in this example we'll use single mothers. If a single mother is afforded the opportunity to obtain an education, and if she does enter the paid workforce and is making a substantial income, I would think, certainly from my experience in working with single mothers, that she would be more than open to having that whole maintenance reviewed.

I do not feel personally, though, that a father's obligation to paying maintenance should ever stop. Children cost, and fathers need to share the cost, regardless of what the mother's income is. What we're saying, though, is that the way things stand right now, often single mothers are put in a position where they are living below the low income cut-off, and there is no real hope of even getting to the poverty line, let alone above it.

Mr. Eric Lowther: Okay. It shouldn't stop, but if he is at one point paying the entire amount, or as much as he can, or whatever the court decrees—the sole support—and her situation changes such that she could in fact share that, could it be adjusted at that point? I'm not saying that he be cut right out of it, but that they might have a more shared load. Are you supportive of that kind of approach?

Ms. Pauline Raven: I think there needs to be a more shared load the way things are currently set up. Certainly if things change—and as Debbie said, it does need to be reviewed—but the current set-up in family law and public policy is that a woman who is dependent on welfare for the income for her child and herself has to live well below the poverty line. Without help from extended family, that child's life is very quickly going to become quite impoverished.

• 1440

Mr. Eric Lowther: I get your point. Yes. Good.

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

Senator Pépin, was that supplementary, or do you just want to get on with it?

Senator Lucie Pépin: I want to get on with another one.

The Joint Chair (Senator Landon Pearson): Okay. It's Mr. Mancini's turn next, and then yours.

Mr. Peter Mancini: Thank you. I have just a few questions.

My first one is for Dr. Covell, who I might call Katherine, because we were colleagues at the same university and actually lived on the same street for a period of time, so we can talk about this at home in more detail.

I should advise you that some members of this committee will be going to Washington to examine the various pieces of legislation you're talking about. But I'm asking this for my own edification. Is there a provision in that for some flexibility? Because having represented people in divorce cases, there is now in many courts, because of the guidelines and because of the financial requirements, a mandatory filing of—and I'll get to this a little later—the income tax forms for the last three years, and mandatory filing of expense forms.

In some cases, one party will deliberately frustrate the divorce by simply not filing. One party is desperately seeking to get into court to end what is in many cases a difficult relationship. In that situation, where one party simply refuses, and you can't contact them—I mean, they serve, they do all kinds of things—is there a provision there to go to the court and say we can't go to a parenting plan together, because one party is evading responsibility to come to the table? Can you tell me how they handle that situation?

Dr. Katherine Covell: I'm honestly not sure of that specific plan in Washington. My understanding is that there is some flexibility in it, but whether it's to the extent that you describe, I don't know. I do know that part of the evaluation was looking at lawyers, family lawyers who'd been working with parents, and 60% of them observed a significant decrease in the amount of conflict between divorcing parents.

Mr. Peter Mancini: Thanks. It sounds sensible to me.

For all other witnesses, if I can move on, and I don't want to digress too far into the whole issue of maintenance, because as you know there was a task force—in fact, this committee has been born to some extent out of a bill dealing with maintenance provisions—but I just want to be clear. You're not suggesting at any point in time that access—and we're using that word for want of a better one—that access and maintenance are tied together? I didn't hear that in your presentation; I just want it on the record that you're not suggesting that.

At the risk of going too far afield, have the maintenance enforcement guidelines not made a difference—the guidelines that now examine the income of the paying parent, usually the father, and have a set figure for maintenance? In my experience, this has greatly increased the amount of maintenance paid from the days when we didn't have it. Has that not made a difference?

Mr. Pauline Raven: Basically, our work is with families who live in very low-income circumstances, and low-wage earners. There hasn't been that much substantial change for families in that situation, where even prior to separation and divorce they are not high on the family income scale.

Mr. Peter Mancini: So what we're talking about here really is a reform of welfare legislation, a reform of income...I mean, allowing people who are on welfare to earn some money.

Mrs. Sheila Finestone: There is some allowable today, I think.

Mr. Peter Mancini: But in this province it's extremely low—$50 a week I think, or $200 a month is what you can earn.

Ms. Deborah Reimer: And it's decreasing.

Mrs. Sheila Finestone: Oh, really?

Mr. Peter Mancini: So we're really talking about welfare reform to some extent here, aren't we?

Ms. Pauline Raven: We are, and certainly I think the family court system, in that that's where maintenance and custody arrangements are made, has a key role to play in that type of co-operative policy reform between itself and other departments.

Ms. Deborah Reimer: Can I just speak to that for a second, as a front-line worker?

• 1445

I know that the guidelines are there. However, in my experience, and I certainly have been to court with a number of women, maintenance certainly is not awarded. It's still not being.... In many cases, I see $50 a month, $1 a month. I know of a case last week where according to income, the man should have been paying $650 for his three children and he got off with paying $250.

Even when you look at the maintenance act now or the guidelines, if someone is making $19,500, for one child they're required to pay $154 minimum. I'm not seeing that. If they make $100,000, the guideline says, and I think I'm right, that they pay $744 a month. That just doesn't make a whole lot of sense to me.

Mr. Peter Mancini: Again, I say this on the record: in this province we have a real discrepancy, because at the other end there is virtually extremely little discretion. The guidelines are followed almost to the letter. That's from the northern part of the province to the southern part.

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

Senator Pépin.

Senator Lucie Pépin: Dr. Covell, you stress to us the importance of parenting plans. You are working with children?

Dr. Katherine Covell: I'm an educator and researcher.

Senator Lucie Pépin: We heard today that many of those children don't have access to both parents. Do you see the emotional impact on those children, on the ones who don't see both parents, and on those who, even if they live with their loving mother or a loving parent, don't see one parent?

Dr. Katherine Covell: There is no question that children benefit from involvement with both parents. Mothers and fathers typically provide different kinds of socialization experiences. I might also add that under the United Nations Convention on the Rights of the Child, the child has the right to maintain involvement with both parents unless there is a real problem with that whereby it's incompatible with the child's best interests.

Senator Lucie Pépin: It was suggested that if they had a parenting plan, maybe many of the problems we heard about today would not happen and the children would have accessibility to father and mother. Do you believe this?

Dr. Katherine Covell: That's certainly what the research suggests.

I would also like to add on the research on divorce, children cite the loss of the parent as the single most negative aspect of the divorce.

If I might take a minute here, typically what happens in a time system, as others have noted, is usually the mother takes on the instrumental caregiving role, the father the social role. The father's role increasingly is tied to money. The father lacks meaningful interactions of a parenting nature with his children and it's in large part because of this that many fathers drift from their children. It's very clear in the research that except in the most unusual circumstance of documented abuse, children's development is superior if they are parented by two parents, which is why the parenting plan focuses on joint parenting and restructured family rather than family dissolution.

Senator Lucie Pépin: And it could be adjustable periodically.

Dr. Katherine Covell: Yes, with mediation.

Senator Lucie Pépin: Thank you.

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

[Translation]

Ms. St-Jacques.

Ms. Diane St-Jacques: A little earlier today, we were told that during mediation, to determine the best interest of the child, children should be involved in the process. Since you work closely with children, I would like to hear your opinion on that. Is it important for children to be involved in the process? If so, is there a minimum age at which children can participate? When they are very young, it is difficult to clearly identify their needs.

[English]

A voice: Who?

Ms. Diane St-Jacques: Anybody.

• 1450

Dr. Katherine Covell: Again, speaking from the child's rights perspective, the child's input into any decisions that affect the child are guaranteed to the child under the convention. So, absolutely yes, the child should, and I hope the child's voice is being heard by this committee also.

In terms of age, I think it's important that the child's input be gathered from the time the child is verbal. It's also important that the input be asked in an age-appropriate manner and about age-appropriate issues.

Ms. Deborah Reimer: In answer to your question, I think children's wishes certainly need to be heard, and I think they are what we're talking about today. Often they aren't; and often, in my experience, children's wishes aren't heard when they don't want access. If a child doesn't want to see their parent, the access is forced on them, and oftentimes that has more to do with issues that we certainly didn't present on, but issues of abuse and those kinds of things.

In terms of a child's basic needs, I think we need to look after basic needs before we draw children into all kinds of other things. What we were talking about in our brief was poverty. Children's basic needs aren't being met here, so trying to place our agenda on them by saying we need parenting plans, or we need this, that, or the other thing, really is unfair to them at that point. We need to make sure that children are being looked after, right from the ground up, and basic needs come along with emotional needs. They need to be part of the process, but it needs to be done very carefully.

Does that answer your question?

[Translation]

Ms. Diane St-Jacques: Yes, thank you.

[English]

The Joint Chair (Senator Landon Pearson): Mrs. Finestone, you're next. We're running now about an hour late, so if you could ask a quick question....

Mrs. Sheila Finestone: Good. Are we going to miss our plane?

I have been seriously concerned about what is perceived to be, rightly or wrongly, a lack of respect for the access decisions that are given by the courts. Out in the hall, as well as here at the table, we've heard from a lot of fathers, in particular, and I think that would be normal because of the nature of court decisions.

I want to know what kind of recourse a parent can have when access is not respected and the Children's Aid service doesn't seem to move in and ensure those access rights that were given by the court are respected. Should there be some kind of a tribunal, some kind of a recourse centre that they can go to if the police say it's not up to them to enforce this access right? Should it be through a supervised centre? What can we do to start reducing whatever the percentage? I think I've said it before: I don't care what the percentage is; one person is too many.

Concerning the parents, and particularly the men, who were good parents but didn't get along with their wives, or were bad in terms of relationship with the wife but have been good with the children, and where the court accorded them rights and they don't get them, what can we do about that?

On the question of single-parent women, their level of income is documented: 80% of single-parent women are under the poverty line. The face of poverty in Canada is the old woman, and the young woman who is a parent. That's something we know about and are trying to address. Perhaps we still haven't found the right answers. I do know we just put $1.7 billion into it, so we're trying. But I don't know how to do that at a provincial level, and that's not our job in this committee.

Our job in this committee is to ensure, whether you use the term “access” or whatever terminology one cares to use, the right to continue to be a parent, even where the biological mother and father gave birth to those children. How do you ensure that parent gets the right accorded?

• 1455

Dr. Katherine Covell: Obviously it would be very difficult for me to comment from that perspective, because I'm not a lawyer, but I would add that I think public education has an enormous impact.

As one of the senators mentioned earlier, we are living in an era in which we assume that women are inevitably the better parent, and so forth, and our whole system focuses on that. I think if we could educate the public in general about the importance of fathering, and the fact that parenting and being an effective parent is not a gender-specific phenomenon beyond the actual birthing, and if we could educate the public about the need to consider children as existing persons with rights, not as potential persons, we could impact a change in attitude.

I think we also have real problems when we have decisions that are publicized, such as Justice Abella's decision in which she declared that the best interests of the child are synonymous with the best interests of the mother. I think while we have that kind of—

Mrs. Sheila Finestone: She didn't exactly say that. She just thought they weren't exactly very substantive and they were unclear and untrained, and the Supreme Court changed their mind. That's the Gordon case.

Dr. Katherine Covell: Okay.

We have a social situation in which we're making it very difficult for fathers, because we have so much emphasis on the single mother living in poverty and the deadbeat dad who won't pay his money. Fathering is not about money; fathering is about child rearing, the same as mothering is, and we have to change attitudes before you're going to get the kinds of changes we all want.

Mrs. Sheila Finestone: I'm hearing you, and perhaps you want to add to that, but I would suggest to you that between my generation and my husband's role and expectations of my husband's role—and he's a darn good father, by the way—and seeing how my four sons are handling their roles in the family, it's dramatically different.

My husband, and my father, for sure, never knew where the hammer and the nail was, or what to do with it either than to bang his thumb. Certainly they know how to cook, they know how to clean, they know how to be self-sufficient, and they certainly have played a very particular role, both in the birthing process and within the raising of those children.

So I think that's well documented in today's society, but it's not being recognized and respected in some instances in the access rights accorded and then refused by many women.

I firmly believe there has to be a system, and that system has failed if you're looking at the Children's Aid. If you look at some of the decisions that have been rendered where they can't even get their clothes out of their houses, there's something wrong.

What is the process that you might suggest to us—any one of you—that can ensure that there is a right of redress?

Ms. Pauline Raven: I would like to begin answering that question by saying that for the most part, the women we work with are very pleased when their husbands access the access they've been given.

The Joint Chair (Mr. Roger Gallaway): I'm sorry, we can't allow clapping in here. This is a proceeding of Parliament, not a town hall.

Mrs. Sheila Finestone: You know, you should know better.

Ms. Pauline Raven: For women who stand in the way of a father's access, there's usually at the base of that a great deal of mistrust based on her own relationship with the father.

In Nova Scotia, we have very little access to supervised settings or places where the child and father can be together that is acceptable to the mother and that lowers her level of anxiety around that access.

I do know colleagues of mine—

Mrs. Sheila Finestone: Excuse me, though, one minute. I'm a very strong women's advocate. That does not make me blind to other things that go on in society.

Specifically, my question to you was access was granted by the court to the other parent and they are not being respected, and I want a mechanism that you might consider appropriate so that those access rights that were granted are respected.

I don't care whether it's the father or the mother, the woman or the man; it's the children I'm focusing on, and the breaking of the links with those children because two adults can't get along, which can happen. I've had divorce in my family. I know it doesn't work, but that doesn't mean the children have to suffer or lose a parent. So what is the procedure that can be used here to ensure that the court's rule is respected?

• 1500

Ms. Pauline Raven: It is a matter of looking at the situation in a very holistic way and looking at what can be put in place that makes the access arrangement much more acceptable to both parties. I do know that colleagues of mine in Ontario who have access to centres that will do very comfortable yet supervised access say it works. It seems to be acceptable to the men who are involved in the arrangement and to the women who are involved, and they're much happier to respect the court's ruling around access when those kinds of supports are in place.

Mrs. Sheila Finestone: So you're saying that while you're living here in Nova Scotia, where they don't have supervised access centres, or while you're living in rural Canada anywhere and there are no access centres, then the court can be ignored in terms of the access that was accorded, which is a breach of the law?

Ms. Deborah Reimer: It's my understanding that if a court order is in place, the RCMP will enforce it.

Mrs. Sheila Finestone: I gather that's not accurate. Excuse me; I don't say accurate. I gather that's not what's happening, at least if you talk to a series of men. And I'm neither a men's advocate nor a women's advocate; I am a children's advocate.

Ms. Deborah Reimer: I hear what you're saying. I also feel I am a children's advocate.

I do know that the women I work with would welcome the men accessing, and they are given access. The men don't exercise their right to access.

Mrs. Sheila Finestone: Can I ask at the same time, what about respecting the access of the grandparents of the extended family?

Ms. Deborah Reimer: With the women I work with, that is also a consideration, and real effort is put forward to maintaining those ties. However, when you have no transportation to get the children there or back, that's a problem. We need to look at providing those kinds of things. We need to put those supports in place.

We also need to look at what kinds of decisions the courts are making and why those aren't being honoured. What's going on behind the scenes that the judges aren't taking into consideration? Maybe we need to hear from both sides about the access and about what's really going on and make the courts more responsible, because a lot of times courts write down access orders and they don't have a clue what's going on in those families.

Mrs. Sheila Finestone: There's no follow-up?

Ms. Deborah Reimer: There's no follow-up, and if there is follow-up, I know of a case right now where access is being looked at and the process has taken over a year. The child is in crisis, and this child should not have access to her father, because he is abusive and he has no interest in contributing in any way to her upbringing, emotionally or financially. But the court process has taken a really long time.

Mrs. Sheila Finestone: So therefore something happened in the court process.

Ms. Deborah Reimer: Exactly, and so we need to look at that as well. But we need to start at the roots.

Mrs. Sheila Finestone: I thank you, because what we want is a generic type of approach so we can make recommendations to the minister. That's our responsibility. We are looking at what is now termed custody and access, and it is a serious matter. It's part and parcel of the concerns of what kind of resolution we can have that's fair and respectful of the law. So I thank you for your observations.

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

There are two people who would like to ask questions. We're running over time. Senator Cools and Senator Cohen, could you just...? I'm sorry.

Senator Anne Cools: Not at all. I won't bother to ask a question, but perhaps the witness could provide some of the literature to which she referred, the extensive literature that shows unquestionably that children prosper and flourish with two parents, and that even in divorce children prosper with access to both parents.

We had Dr. Kruk appear before us, and I know the American literature, such as Judith Wallerstein; I know a lot of it. I'm just wondering if you could leave us, if possible, a list of some of the literature. Obviously you've looked at the matter and you've studied it quite extensively.

In addition to that, I am told that some American jurisdictions are beginning, believe it or not, to try to promote marriage in many instances, based on this sort of thing. If you could give me a copy of that, I would be happy.

• 1505

Dr. Katherine Covell: I have with me a brief that I summarized in my talk that has references. I'll be happy to send you additional references.

Senator Anne Cools: Excellent. I'll do a lot of work on it. Thank you.

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

Senator Erminie Cohen: I just have a brief comment after hearing all of the witnesses in the last few days. I think maybe the first thing we have to do is have mandatory marriage counselling before a marriage certificate is ever issued.

My question is to you, Dr. Covell. We heard moving testimony from Mr. Parks today. My question is on the parenting plan because many parents don't know what the future will hold for either of them. Do you feel the issue of mobility should be considered when the parents are devising a parenting plan?

Dr. Katherine Covell: If it's something that would appear unlikely, I would leave it because it's such a hot potato. I think I'd leave it until they've worked out the very basics of each day, but certainly, if it becomes an issue, then there would have to be a revisitation of the plan.

I think that given that the parenting plan is being worked out under some of kind of emotional trauma, however much you minimize it by dividing it from the date of the divorce, it's still better not to bring in the really big issues unless they're necessary.

As long as the approach to mediation has been specified and agreed upon, if mobility becomes a problem later on, then they can get together with a mediator or in a court, whatever route they've chosen, and deal with it at that time.

It would also depend on the age of the child and the child's wishes.

Senator Erminie Cohen: Thank you.

The Joint Chair (Mr. Roger Gallaway): Thank you very much. Thank you for participating today. It's been a very lively session.

We'll now have our next group come forward, please.

Before we start, I just want to say, in reference to what Senator Cohen said regarding mandatory marriage counselling prior to marriage, that there is a book that has been written by in fact a gentleman who appeared at our round table in Victoria called Marriage: Grounds for Divorce.

Now we have Sharon Molloy, Carlo Martini, and Darcy Gray.

I have to tell you that we're running behind our time. You have half an hour, as allotted, but I'm going to have to strictly enforce the five-minute limit.

Mr. Martini, please proceed.

Mr. Carlo Martini (Individual Presentation): Thank you, Mr. Chairperson.

My issue has to do with custody and access. I had prepared a very lengthy document, but I only have five minutes to proceed. I just found that out yesterday.

• 1510

I have custody of my 20-month-old daughter right now. My ex-wife kidnapped her back in October. I went back and forth to the Nova Scotia court and kept receiving court orders. The court orders also instructed any police agency in Canada to pick up my child. The RCMP was notified immediately when my ex-wife abducted my child. They ignored all court orders and basically passed it on as a civil matter. Judge Legere in the Dartmouth provincial court concluded that my daughter was in danger with her mother.

The Joint Chair (Mr. Roger Gallaway): Mr. Martini, I wonder if you could just sit back a bit. You're a little close to the microphone and people are getting sore ears back here.

Mr. Carlo Martini: Is that better?

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

Mr. Carlo Martini: Sorry about that.

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

Mr. Carlo Martini: Judge Legere, with my ex-wife's doctor, presented evidence in court stating the child was at really high risk. The mother suffers from severe mental illness and is a practising alcoholic. She always goes on binges and disappears. The judge also ordered community services to get involved. They have ignored the court orders as well.

The child has left the jurisdiction of Nova Scotia. She went to Quebec. I proceeded with actions in Quebec courts as well. I just discovered last week she's no longer in Quebec. I have no idea where my daughter is, who has jurisdiction any more or anything else. She's going under different assumed names right now and it's hard for me to track her down.

I've been working on this day and night since the day she disappeared. I've had no cooperation from the RCMP or community services, nor did I ever have any cooperation from youth protection in Baie-Comeau.

When she arrived in Quebec, I followed all procedures by sending all of my court documents of custody and following the Canadian guidelines by registering my court orders with all courts across Canada. The judge in Quebec took jurisdiction of the child based on her claim that she was a full resident of Quebec, and she was not a resident of Quebec. Now that she's no longer in Quebec, I have no idea where my daughter is. My daughter could be dead tomorrow and there's no action I can take.

I went through the media. I went through everything on this. Right now the matters are still in front of the court. My ex-wife was privately charged with two counts of assault for assaulting me, and one count of endangering the life of a child. She was supposed to appear in the provincial court where she received a copy of the summons in Quebec. She failed to show up. The judge issued an arrest warrant, but again the police are ignoring all court orders whatsoever.

I started to file a $5 million lawsuit against community services for failure by them to protect my child. I believed this was the only recourse I could take to try to protect my child, since nobody was taking the court orders seriously. The lawsuit has extended now to the RCMP, where there was obstruction of justice.

I'm just going to take a second.

The Joint Chair (Mr. Roger Gallaway): Okay. Perhaps you want to just wrap up what you have to say.

Mr. Carlo Martini: The bottom line is that with all the court orders I have in the province of Nova Scotia, I also have access to court orders in Quebec. I had two attempts on my life while I was in Quebec trying to retrieve my daughter. It doesn't matter which court issues these court orders, they're all being ignored by the RCMP, all police agencies, community services, youth protection, and so forth.

Our family court orders are not being taken seriously by any government officials, including the RCMP, police agencies, child protection agencies or anything else. My daughter's life is still at as high a risk as ever. As a father, and a darn good father, I can't do anything to protect my child within the legal system. I strongly believe this day that, as I said, the court orders aren't being taken seriously. They should be enforced. We have to change the entire Family Law Act.

• 1515

I recommend to this committee today that our family law acts should be unified right across Canada. This will basically stop parental abduction. We have parents going from one province to another applying for custody without having to answer to anybody—and not answering to their children.

I'm here on behalf of my daughter.

Pardon me, ma'am?

Mrs. Sheila Finestone: I'm just saying that there is a new regulation. We have a researcher who will give the information to the chair. It can be shared with you.

Mr. Carlo Martini: That's fine, ma'am.

Mrs. Sheila Finestone: Thank you.

Mr. Carlo Martini: There should be other actions. There should be a safeguard measure to protect children in a situation like this and there isn't.

I've been dealing with the Ministers of Justice in both in Nova Scotia and Quebec. I've also been talking to the director of court services regarding the court orders being ignored. This was basically passed down as a civil matter. I had to go through the entire private prosecution charges, including laying a charge of parental kidnapping on my ex-wife.

The Joint Chair (Mr. Roger Gallaway): I'm sorry, Mr. Martini, but you're well over your time limit and I'm going to have to end it there.

Mr. Carlo Martini: Yes, sir.

The Joint Chair (Mr. Roger Gallaway): But before you go out, you've referred to a number of lawsuits in which you were involved. Could you tell us where they were held or where they were heard? And would you have the court numbers? There is a number assigned to each.

Mr. Carlo Martini: They haven't been filed. My lawyer is just in the final stage of filing them here, sir.

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

Mrs. Sheila Finestone: Excuse me, Mr. Chairman.

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

Mrs. Sheila Finestone: I do believe there are some Canadian laws and interprovincial laws that at least should be on the record so that we know what the law says and where the gaps are so we can address them. That needs to be addressed within the proceedings.

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

Mrs. Sheila Finestone: And I believe the research staff could perhaps help you on that.

The Joint Chair (Mr. Roger Gallaway): I'm told by our researcher that in fact there are Criminal Code provisions with respect to interprovincial child abductions or “kidnapping”, if I might call it that. We have heard about international kidnapping or child abduction, and we are going to have the RCMP return to the committee at some point next month to discuss this business of moving children from province to province. So there are provisions in the Criminal Code and I'll just put that on the record.

That may not be your experience, Mr. Martini.

Mr. Carlo Martini: That's fine. I'm well aware of section 283 of the Criminal Code. I'm also aware of the Hague convention. However, my court order basically means nothing to the RCMP. That's the bottom line.

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

Ms. Molloy.

Ms. Sharon Molloy (Individual Presentation): Thank you. Good afternoon.

I have no personal experience with divorce. I'm not married, and my parents celebrated their 50th anniversary, but I'm still concerned. I'm a concerned citizen. I've studied psychology and I'm particularly interested in the issues separating men and women.

The first emphasis, of course, should be on prevention. School courses on family living must acknowledge the reality of divorce.

And when the couple divorces, we shouldn't paint over the rust. This alternative dispute resolution process should be the first step of any divorce. There should be counselling to deal with and get past the wrangling and bitterness before the couple even thinks about getting down to the legal issues.

And before anybody asks, I'm not in counselling myself, so I'm not trying to make work for myself.

At the best of times, children need both parents. A child coping with the upheaval of divorce has fewer resources left for learning. And without fathers, children run a significantly higher risk of having many problems. I have statistics on this at the end of my written submission.

Throughout most of human history until the industrial revolution, most fathers as well as mothers worked at home and children received attention from both parents. A better starting assumption than the tender years doctrine would be that both parents are equally qualified and motivated to love and care for the child, unless it can be proven otherwise.

And from the divorce on, those raised solely by the mother are at special risk. Gender identity is something most women can take as a given, but to become a man a boy must do more than separate from his mother: he must also have someone to separate to. A boy lacking a dedicated and stable man in his life often turns to his peers as role models. Let the blind lead the blind and they often turn to the quick fix and the stereotypical formula for manhood. The direction to be honest, law-abiding, and conforming comes from the father, and the boy sees this behaviour as consistent with being a man. The sociological implications for a fatherless boy are obvious and they are staggering.

• 1520

For girls too, regular contact with their father is vital. A father gives his daughter confidence, and as the first important man in her life, sets the tone for her future relationships with men. Indeed there may be times when a child is better off with the father. I've personally met a couple of divorced fathers who I'm sure are better candidates than the mothers.

For both parents, rights have to balance responsibilities. Apparently this committee has heard calls to increase jail sentences for women who refuse to honour child access orders. If I thought anyone would benefit, I would second that, but the carrot is mightier than the stick. Access denial should be grounds for non-payment of child support without any legal redress.

Stiffer penalties for fathers who can't meet the payments won't work either. How can he pay child support if he can't commute or find work without his car? This sort of coercion motivates him to pay just the bare minimum. The amount of support required from non-custodial parents should be proportional to that parent's income, and custodial parents must be held accountable for the money paid by the non-custodial parent by showing receipts or something.

Deliberately false allegations of child abuse belong in criminal court as much as if they were found true. Such crying wolf has serious implications, both for the innocent man whose life is destroyed and for the woman for whom there really is a wolf.

Furthermore, I'm requesting that men convicted and imprisoned for recovered memories, which are now being closely questioned, have their cases opened and re-examined. If they wouldn't have been convicted without this evidence, they should be released.

So that these reforms will carry some weight, a formal complaint procedure is needed for a parent with a legitimate grievance. Post-divorce inspection should make sure a child is adequately cared for and adjusting to the situation, like a post-adoption services follow-up.

No one deserves a spouse who beats her or him, and any attempt to address the problem of domestic violence will fail unless the two sides are faced. Presuming that men are automatically guilty and must be removed from the children only invites abuse of the system. When a family can be fractured by an allegation and guilt unilaterally assigned, those wrongfully convicted will lose faith in the legal system and government in general, and the children affected will undoubtedly grow up to do the same. When men believe they are below justice and women believe they are above it, everyone loses faith in law and government.

Ideally government intervention should be minimal and a last resort. Government presence beyond emergency aid encourages parents to look outside to meet their responsibilities.

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

Ms. Sharon Molloy: Okay.

The Joint Chair (Mr. Roger Gallaway): I must apologize. There's a function going on in a room next door, and we're finding it very distracting up here.

As you may know, we're running behind schedule. The understanding was that this meeting would end at about 4.30. It's coming close to 4.30, and obviously they've started with a live band next door. Our clerk has been over to see if anything can be done, but it appears that little can in fact be done. We're going to try to carry on.

To the very melodious tunes coming from next door, we'll ask Mr. Gray to proceed.

Mr. Darcy Gray (Individual Presentation): Good afternoon. I want to make clear before I start that I'm currently involved in a situation that's in litigation right now and that's going to be heard early next month, which severely limits what I was going to say. I have to be careful of what I do say. I'm simply going to try to read this within five minutes.

I am a single parent of two children and a father to a third child. In a world where there are concerns, fights, and movements on so many issues, such as whales, seals, rainforests, and equality, children are forgotten. They are not given an opportunity to be raised by and to be with both parents. The children in these situations suffer from a lack of love from both parents. Children need the nurturing of both parents. Children can only benefit from the attention of both parents.

I am concerned that the belief and the practice to date has been to award one parent custody, the primary caregiver, and in effect render the other parent a visitor. It is unacceptable to the non-custodial parent and to the child involved that they endure this chaotic visiting arrangement and then perhaps get reacquainted and really get to know each other when the child comes of age and is able to make some choices on their own. This cannot be in the best interests of any child.

I have been a single father to my son and daughter for the last 12 years. They are now 14 and 13. I have been totally committed to raising them and supporting them. I started parenting them when they were infants. I have seen them through day care to junior high. I have seen them through diapers, toilet training, the tooth fairy, Santa Claus, the Easter Bunny and Sunday school. I am a loving, experienced, and nurturing parent and father.

• 1525

I need to know why it's not in a child's best interests to have an equal opportunity, at the very least, to share an equal amount of time with the child and in parenting them. Families are in jeopardy, and one of the reasons is the breakdown of the family unit. Rarely today do both parents agree on the importance of sharing children equally and having the opportunity to nurture them.

Not wanting to interact with the other parent and wanting to pursue another relationship honouring family members' wishes is not acceptable to sacrifice the children's relationship with both parents. What about established routines the child has become used to? What about siblings who are left behind? Is it in the child's best interests not to be exposed to them on a regular and consistent basis? How often have we heard siblings from estranged families express with remorse that they wish they had met earlier or got to know each other sooner?

Both parents are capable and have the potential for loving a child. Both parents are and can be capable of providing for the child. Both parents are capable of nurturing the child. The first four years of a child's life are very important, and more often than not that is when it is suggested the non-custodial parent have the least involvement. I can't envision that possibility. It is so terrifying to me and so unimaginable. You want to be there for your child's development. You want to be part of influencing their value system. You want the opportunity to be a tangible role model for your child. But I have found the onus is on me to fight for what is in the best interests of my children.

The present system, society, methodology and culture support and encourage that a child have a custodial parent and a parent who visits him on occasion. This may be what the custodial parent thinks, and I am sure believes, is in the best interests for them and for the life they choose to lead and pursue, but it is not in the best interests of the child. Until the point of the break-up, you have been supporting your child emotionally in everything they do. You can ease their fears in activities, whether it's encountering a dog for the first time in their young life or discovering the magic and beauty of snow. My children do not need to necessarily try to dissect various situations they may encounter growing up if I can be there to provide guidance and advice. They can learn and know for themselves there are considerable values and benefits from being nurtured by both parents.

Turning one parent into a visitor at the discretion and winds of mercy of the custodial parent is not fair to the child. If you are told by the other parent you won't be able to see the child you have both been raising until that point any more, you are faced with some serious choices to make.

I cannot understand this type of reasoning and it tears away at me in my very substance. What if there's no abuse or no infidelity? What if you have been financially responsible for your household and children? Why should any parent be faced with not being able to nurture a child or be an equal participant in raising them and developing them?

The main avenue to come to some sort of resolution is an adversarial one through the court system. There are basically two camps. One conveys that whatever is decided should be done with the intent that is in the best interests of the child.

The Joint Chair (Mr. Roger Gallaway): Mr. Gray, your time is up. I know you have some recommendations very briefly listed at the very end. Perhaps you could read those and then we will get to questions.

Mr. Darcy Gray: Okay, sorry about that.

My recommendations are generic because of my situation. Basically I said we should award joint custody in parental separation, award equal access in parental separation, and make it so the court system is only involved if either parent wants to deny the other parent equal access. It shouldn't be the way it is now, where you have to go to court to obtain equal access, or for that matter, access.

The Joint Chair (Mr. Roger Gallaway): Okay, thank you. We'll move to questions.

Mr. Lowther.

Mr. Eric Lowther: I want to make sure we get a copy of Ms. Molloy's statement.

• 1530

Ms. Sharon Molloy: I brought in five copies.

Mr. Eric Lowther: Yes, good. I'd like to make sure that I get a copy of that. That's all.

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

Senator Anne Cools: Thank you, Mr. Chairman.

I have a inquiry for Mr. Jamal Badawi. Is that your name?

The Joint Chair (Mr. Roger Gallaway): It's Mr. Gray.

Senator Anne Cools: So it's Mr. Gray. Okay, I thought you were.... Okay, you're Darcy Gray.

I just wanted basically to welcome you to this committee. As you know, I am a black person, and I feel pretty connected to my skin. This committee has not had many presentations from black people. I just wanted to let you know that I especially appreciate your presentation.

As you know, I've worked on these issues for a very long time. We have large communities where fatherlessness is a problem. I learned the need for fathers and to appreciate the importance of fathering from my own work in my own community.

You are now the second black man who has come before this committee, and I just wanted to let you know that from where I look out at life, that is welcome. I encourage you to do it again and again. I just wanted to say that, because I am black too. Thank you.

Mr. Darcy Gray: Thank you.

The Joint Chair (Mr. Roger Gallaway): I was going to make a remark, but I'll move on to Senator Pépin, and then go to Ms. Finestone.

Senator Lucie Pépin: You said that your recommendation is that court systems should be involved only if one parent doesn't have accessibility. We have had many representations to that effect saying that it could be social workers or mediators who should be involved much more than lawyers and judges.

You favour that approach, if I understand you well.

Mr. Darcy Gray: I would say this is for any approach that's not adversarial.

You're going to be involved in the children's lives for the next 18 to 20 years. It has been my experience, and also the experience of people I have talked to, that going through the court system creates a lot of ill will. It brings up a lot of dirt, so to speak. This is beside the confrontation or going through the situation that brought about the whole separation in the first place.

You have to deal with these other issues such as one party bringing up a certain point or certain issue that the other party doesn't appreciate, and it doesn't contribute to both parents getting along and finally getting to what this has been all about, which is the best interests of the child. They focus more so on those adversarial issues.

Any measures or procedures that are non-adversarial, I would be in support of in trying to bring about what is in the best interests of the child.

Senator Lucie Pépin: I don't want to be indiscreet, but since you said you're going to court very soon, would you agree with the parenting plan?

Mr. Darcy Gray: Most definitely.

Senator Lucie Pépin: Thank you.

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

Mrs. Sheila Finestone: I think I'll pass.

The Joint Chair (Mr. Roger Gallaway): Well, as those are all the questions, I want to thank our witnesses for being here today.

I certainly apologize for this noise. I find it terribly distracting.

Mrs. Sheila Finestone: Mr. Chairman, perhaps I will not pass.

I just want to make one observation with respect to the kidnapped child. I think that's extremely serious, and I'm particularly anxious to deal with that with the RCMP when they appear before us.

In the meantime, there is a group in Quebec headed by Ricardo Di Done. I suggest you get in touch with him.

Mr. Carlo Martini: What's the name again?

Mrs. Sheila Finestone: Ricardo Di Done. I'll have to find the name of the organization.

Mr. Carlo Martini: Which organization is it? I'm sorry.

The Joint Chair (Mr. Roger Gallaway): It's called the Organization for the Protection of Childrens' Rights.

• 1535

I should advise you, Mrs. Finestone, that Mr. Martini has left with us a newspaper article from I believe the Halifax Chronicle that more fully sets out his circumstances. It was just given today, and it will lay out his circumstances.

Mrs. Sheila Finestone: I think Ricardo Di Done appeared before this committee, and I would like to make sure that our witness gets his name and the contracts, because I think he can help.

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

Go ahead.

Mr. Carlo Martini: Could I make one last recommendation?

Everybody here is talking about custody and access and everything else. I've heard some in the women's movement are talking about restraining orders, that they're being ignored and everything else.

There's one bottom solution to this whole entire mess that we have on our hands. There are a lot of accusations going on both parties, the father and the mother, or the husband and the wife. Why can't we just put a lie detector test in court when somebody's making a serious accusation? That way, if the woman is being abused, she can be protected. If somebody's just saying—pardon my French—if he told me to shut up 15 years ago, that's emotional abuse, why can't we just put a lie detector test and say okay, we're going to save billions of dollars of taxpayers' money, we're going to save the children, and this is the whole idea? We're here to protect a child. We're here for all the parents to get access.

The access orders should be enforced. If the access continues to be denied, why can't we just charge that person? Why, as a parent, do we have to keep going back to court and paying hundreds of thousands of dollars to lawyer fees all the time, continuously? It never stops.

So far it has cost me $85,000. Where else do I have to go? How much money do I really have to spend to try to protect my child?

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

I can't answer that question precisely, but one could presume that if in a criminal court we only use lie detectors, we can do away with judges.

Thank you very much. I appreciate the fact that you've given up your time to be here.

I'd ask the next group to come forward, please.

• 1540

We have a combined panel here. From Women's Centres CONNECT, we have Bernadette MacDonald and Georgia MacNeil, and from the Islamic Society of North America, Dr. Jamal Badawi.

I don't know how you're going to split your time. Are you going to both speak?

Ms. Georgia MacNeil (Women's Centres CONNECT): I'll give a brief presentation with some recommendations and Ms. MacDonald will respond to questions.

The Joint Chair (Mr. Roger Gallaway): All right. Go ahead then, please.

Ms. Georgia MacNeil: Thank you very much for the opportunity to address the committee.

I'm speaking on behalf of Women's Centres CONNECT, and that means I represent the six women's centres in Nova Scotia. We're located in rural communities across the province. I just want to address the problems we see amongst our clients.

In preparation for this presentation, I surveyed the coordinators of the six women's centres. I wanted to find out the numbers of people they were seeing who have problems around custody and access and I wanted to know what their specific concerns were. This is what we found.

Last year women's centres served over 800 women across this province who had problems with custody and access issues. I won't pretend to speak on behalf of the general public. The women we serve represent that small minority of contentious cases, so let's be clear about that. We're dealing with a small percentage of the population, but their concerns are valid and their protection is of great concern to us.

One coordinator reported that in virtually all of the cases she saw, violence and abuse were issues for the women. Other coordinators said that in the majority of cases, violence and abuse were of concern. So this is where I'm coming from and this is where our recommendations are coming from.

What I'd like to do is just read our recommendations and then we'd be very happy to respond to questions.

Mrs. Sheila Finestone: Do you have a copy of them?

Ms. Georgia MacNeil: I don't, but they will be submitted very soon.

I also want to mention that I have quite a list of statistics around allegations and false allegations, which I'd be happy to put forward to the committee.

Mrs. Sheila Finestone: Can you also tell us what percentage of the population you're dealing with—not now, but afterwards?

Ms. Georgia MacNeil: Yes.

Mrs. Sheila Finestone: Thank you.

Ms. Georgia MacNeil: First of all, regarding gender-based analysis, the move towards gender-neutral language and inclusivity actually makes certain portions of the population invisible, and therefore their problems are not addressed. So we do recommend a gender-based analysis of new legislation, and that means the differential impact of policies and implementations needs to be looked at. It needs to recognize women's position of disadvantage in some cases. We also recommend that lawyers, judges, and court workers need to be trained in this analysis to ensure that women and children are treated fairly and are protected from potential harm.

With regard to focusing on the best interests of the child, we would recommend that in considering the best interests, the court must recognize that the likelihood of physical, emotional, or sexual abuse is higher in cases where custody and access is contentious. We need to have the court provide guidelines for identifying women and children who are at risk so they can be protected under the law.

• 1545

We recommend that the primary caregiver presumption be used as part of the consideration of determining the child's best interests. The historical arrangement of care-giving within the family before the marriage or household broke down is of extreme importance. This needs to be recognized and the participation of both parents needs to be recognized in determining the child's best interests. But in determining custody arrangements, especially where violence and abuse have been issues, the primary caregiver presumption should be the guiding principle.

With regard to violence and abuse in the household, we recommend that in cases where physical, psychological, and/or sexual abuse have been proven or alleged, the court must consider the past behaviour of the abusive parent in determining custody and access arrangements. This recommendation speaks directly to the fact that in many cases, past behaviour is not deemed necessary for consideration. This puts many women and children at risk, and it needs to be officially recognized in policy that this consideration must be made. We further recommend that in cases where violence and abuse have existed, sole custody be awarded to the non-abusive parent.

Regarding child sexual abuse, we recognize that allegations are very serious. The statistics we have found—and we have looked at a number of studies—indicate a false allegation rate of somewhere between 3% and 8%, depending on the age of the child and other circumstances. I would be happy to provide this information to the committee, earmarked outside our brief so you can have access to it. What we really want to stress is that it's a serious allegation, but in the vast majority of cases, the allegations do not prove to be false. It's in the child's and the mother's best interests certainly to be protected from these allegations. Awarding custody or access to an abuser puts both children and their mothers at great risk.

We recommend that custody and access are not appropriately awarded to the abuser where there has been child sexual abuse. We would recommend supervised access in certain situations, and I'll talk about that later.

Regarding joint custody, the benefits of joint custody are not proven beyond a shadow of a doubt in cases where there is high conflict. Even in cases where both parents are willing to cooperate and put their differences aside for the good of the child, the evidence doesn't seem to be in yet that there is an overwhelming benefit to the child. We would suggest there needs to be more research within a Canadian context on existing joint custody arrangements to see that they do indeed benefit the child.

In cases where joint custody might appear to be beneficial to the children and the parents, we would suggest it must be voluntary. Any coercion is really just likely to heighten conflict and not be beneficial. We would also recommend that there not be a presumption of joint custody and that mandatory joint custody not be put forward.

In terms of access, again, we're really looking at a very specific situation where there have been violence and abuse. No child should be put in a position of having to choose between parents. If there has been abuse, children can very often be very afraid of the abusive parent. It's not likely that you will uncover the child's true feelings about who they would really like to be with. In many cases the child will say they want to be with so-and-so, who is the abuser, because they in fact want to please that person. So it's a very muddy area.

• 1550

The Joint Chair (Senator Landon Pearson): You've been about eight minutes. Would you please come to your final remarks?

Ms. Georgia MacNeil: Oh, I'm sorry. Okay.

My last recommendation deals with mediation. Again, in contentious cases where violence and abuse have been present, mediation does not work, because there is an inherent power imbalance, and the mediation process can revictimize the victims of this process.

In cases where mediation is indicated, we agree with other presenters that standards have to be set. Mediators must understand the issues around power dynamics, and mediators must be accredited.

If you have any questions, we'd be happy to answer them.

The Joint Chair (Senator Landon Pearson): In the interests of time, we've asked Mr. Badawi also to speak, and then the questions can come to both of you.

Dr. Jamal Badawi (Member of the Shura Council, Islamic Society of North America): Thanks, Madam.

The purpose of this submission is to familiarize the honourable members of this committee with the provisions of Islamic law concerning child custody and access. Islam is a complete way of living that deals with spiritual, moral, socioeconomic, political and legal aspects of human life. Child custody and access is one area dealt with by Islamic law. It is relevant to the Muslim community in Canada and may be of benefit to other fellow Canadians as well.

Islamic law is based on the Koran which Muslims believe to be the verbatim revelation to Prophet Muhammad some 1400 years ago, and the Sunna, which means inspired teachings of the prophet.

While the Koran and Sunna are the two primary sources of Islam, interpretations of their texts and their detailed application may be subject to varying scholarly interpretations in some details. The information provided in this submission represents either the issues where there is no difference of opinion known to me, or the prevailing position of Muslim jurists. Wherever appropriate, other juristic opinions are provided for in the endnotes.

I deal with six areas in this very brief submission. One is the basic orientation. The basic orientation of Islamic law concerning custody and access is to balance the interests of the child, parents, and society at large. However, physical, emotional, intellectual and spiritual development of the child is the primary concern. As the young child's need for his or her mother is greater in the earlier years of his or her life, custody in Islamic law is weighed heavily in favour of the mother.

The second issue is the mother's priority in earlier years. Generally speaking, custody is granted to the mother until the child is seven years old, if a male, or nine years old, if a female. Subsequent to that, the child is given the choice between continuing under the custody of his or her mother or shifting custody to his or her father.

If the mother is incapable of taking custody of the child, for example due to physical or other reasons, then custody is given to any one of 15 other categories of females first. If none of such categories is possible, custody is given to the father, or other male relatives in the order of the degree of their relatedness to the child.

The third issue is conditions for granting custody. For a parent to be granted custody, the following conditions are required:

1. adolescence;

2. sanity;

3. ability to look after the needs and interests of the child;

4. the custodian should not be dwelling with a person who does not like the child, or in a setting that is regarded as unlawful or immoral according to Islamic teachings;

5. the custodian should be a Muslim—of course, for a Muslim child—and of good moral character, being a role model for the child; and

6. the mother is not remarried to another person. In my end notes I indicate dissenting opinions also about that condition.

The fourth issue is the father's financial obligations. The father of a child who is in the custody of its mother is responsible for all the child's needs: food, clothing, housing—that is, if the mother does not own a dwelling—medication, and any other necessity of life.

The fifth issue is access to the child. The most ideal situation for the child is to be reared in the full presence of both parents. If divorce is inevitable, and custody is granted to one parent, reasonable access should be granted to the other parent.

• 1555

Finally, six: travelling with the child. If the journey is temporary, the child may stay with the other resident parent if that is in his or her best interest. The same rule applies when a custodial parent is moving to another city or country, unless the move is intended to hurt the other parent and deprive him or her from access to the child.

If I have any recommendation to make, it is that in a multicultural, multifaceted society like Canada I think it's useful to keep in mind the religious and cultural dimensions of the parties involved in any family dispute. We believe that further consultation and comments on draft legislation will be helpful to all parties concerned.

Thank you very much.

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

The Joint Chair (Mr. Roger Gallaway): We'll proceed to questions, and we'll start with Mr. Mancini.

Mr. Peter Mancini: I have some questions of Ms. MacNeil and Ms. MacDonald—good Cape Breton names, I'd say, but I'm not going to infer that you're from there.

When you talk about women's centres, the six women's centres in the province, are they transition houses or women's.... Let me put right it in the context of my own riding. Is it a transition house you're representing, or is it Every Women's Centre—that kind of an organization?

Ms. Bernadette MacDonald (Women's Centres CONNECT): That's right. Yes. You're from Sydney?

Mr. Peter Mancini: Yes.

Ms. Bernadette MacDonald: It's like Every Women's Centre in Sydney, yes.

Mr. Peter Mancini: Okay. I'm familiar with it. That clarifies it for me.

I have some questions, based on your brief. To be quite honest, I'm a little bit intrigued, and I'm not sure that I heard you correctly when you said that the current legislation, which says that past conduct should not be a consideration in awarding custody.... Do you feel that should be removed? Because I see real problems with that.

Ms. Georgia MacNeil: As I understand it, the judge is not required in every case to consider past conduct unless it is deemed relevant to the case at hand. I have read of cases where past history of abuse has not been admissible as evidence because it was not deemed to be relevant. We certainly believe that past histories of abuse are relevant to the safety of the children and the custodial parent.

Mr. Peter Mancini: I wanted to be clear on that, and you might want to clarify that, because past conduct can sometimes be very detrimental. I don't mean to get involved in.... The purpose of that was to get away from things like prior adultery, and I've argued those cases, where the judge ought not to have taken it into consideration.

Ms. Georgia MacNeil: Absolutely. In our brief we outlined specifically what we mean by that.

Mr. Peter Mancini: Okay. Thank you.

Mrs. Finestone touched on this earlier with some of the other witnesses, and I think we have to address it, because it is a difficult area. When you talk about how abuse—physical, sexual, or emotional—must be recognized, where a court has clearly indicated that access is to be provided to the non-custodial parent and that access order is flagrantly disregarded, should we consider that as emotional abuse to the child? When the court has said this child is entitled to access to this parent and that order is not respected, should we consider that as part of the emotional abuse the court should take into account later on?

Ms. Georgia MacNeil: I think what we're looking at here is in the court determinations of custody and access arrangements. Whatever ensues after such an arrangement has been made—I don't know whether it's new history or old history or a continuation of the history. I think each individual case needs to be looked at.

Mr. Peter Mancini: Okay.

Mrs. Sheila Finestone: Can I...?

Mr. Peter Mancini: Yes.

Mrs. Sheila Finestone: Are you saying that one could ignore the decisions of a court?

Ms. Georgia MacNeil: No. No, I'm not.

Mrs. Sheila Finestone: Thank you. I wanted that quite clear. Okay.

Ms. Bernadette MacDonald: Can I just comment on that?

Mr. Peter Mancini: Yes.

Ms. Bernadette MacDonald: The cases we deal with are almost always dealing with violence. There are usually restrictions associated with that. What happens is that usually the man is not following those restrictions, and that is why the woman is holding back access. There's usually always a reason to be holding back that access, with the women we're dealing with.

• 1600

Mr. Peter Mancini: Okay, those are my questions. I'll pass in the interest of time.

The Joint Chair (Mr. Roger Gallaway): Mrs. Finestone, do you want to be on the list?

Mrs. Sheila Finestone: Thank you. I just wanted to hitch-hike on that, Mr. Chairman. If you want I'll come back later. It's okay.

The Joint Chair (Mr. Roger Gallaway): Go ahead, but make it brief.

Mrs. Sheila Finestone: I'm really very concerned. I don't care if you're a women's centre or a men's centre. I don't care where you are, if the law of this land renders a decision, then you respect that decision as it's rendered through an appointed judge in a court that is part of the Canadian judiciary system. We have a democratic society that has the judiciary, which is separate from the executive and separate from the parliamentarians. If you don't respect that, I don't care who you are, you have no right to say that because of such and such they have the right to ignore it. They do not have the right to ignore it.

You have an obligation, if you're a centre, to ensure they are protected and there is supervision, but you do not have the right to make excuses for them. There is no excuse for ignoring the laws of this land, and I want that very clearly understood. If it's not, I think it's just a shame.

Mrs. Bernadette MacDonald: I'm not making excuses—

Mrs. Sheila Finestone: You did just now, and I'd like to be very clear that I don't appreciate you making that kind of an excuse.

Mrs. Bernadette MacDonald: I'm saying that access orders, in terms of the women we're dealing with—

Mrs. Sheila Finestone: Then go back to the court and get it changed. Don't make an excuse for why they didn't respect that order—

Mrs. Bernadette MacDonald: Many women have done that time and time again.

Mrs. Sheila Finestone: Okay, thank you very much, Mr. Chairman.

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

Ms. Carolyn Bennett: When we talk about false allegations, in your statistics are those allegations of sexual abuse of the child, or is there ever a broader false allegation of physical abuse to the wife?

Ms. Georgia MacNeil: The information I have deals specifically with childhood sexual abuse. I can't give you any information on anything else.

Ms. Carolyn Bennett: I have been a little worried about the labelling of primary caregiver. In my practice, sometimes women's work.... I don't necessarily see that it's very clear sometimes who the primary caregiver is, certainly in the women and families I looked after. There are certain families where the mother may be a nurse and have to work two 12-hour shifts on the weekends.

I just think that to actually ask the court to decide who's the primary caregiver in some of these situations.... It may not be in the best interests of the child if we need to have a winner and a loser and have what I perceive to be a kind of silliness in the 60-40, 61-39 stuff that is around some of the support decisions that are then visited upon the initial decision as to what this plan looks like, and ends up not being customized to the reality of that child's life.

I want to know why most of the women's groups that have presented have felt very strongly that this primary caregiver assignment needs to be made.

Ms. Georgia MacNeil: I think it really tries to address the reality of any given situation. Again, when you're talking in populations you can't talk about individuals, so this is the difficulty we have. However, historically it is the woman who is generally responsible for the majority of the care and nurturing, and this is why we use the primary caregiver label. It certainly doesn't fit for 100% of families. I understand your point, but I think we're just trying to adjust the reality of the majority of the women we see.

Ms. Carolyn Bennett: If we ended up with better judges, better systems, better-educated lawyers or mediators, or all of that, do you think we could get away from this kind of labelling?

Ms. Georgia MacNeil: I think it would be ideal, if possible.

• 1605

Ms. Carolyn Bennett: In trying to get rid of custody, access, and all of those very winner-loser things, I would hate to substitute it with another set of labelling that gets us back to the drawing board. If we wrote legislation that included those kinds of terms, I don't think we would feel that we would have moved forward at all. That's sort of where I sit today.

Ms. Bernadette MacDonald: I would like to add to that, as a woman who has worked in a women's centre, many of the women's groups that I know of are very much involved in equality, and that means equality across the board, for men and women. That really means for men to take full responsibility, and what we see is that men aren't taking full responsibility.

It would be great if there were a revolution in men's psyches and that there was true equality, and I feel that women are really wanting equality. We are getting there as a society, but we do have a way to go, and I think this forum indicates the confusion we're in, in terms of our society right now.

Ms. Carolyn Bennett: I find difficulty with equality as a goal and equal participation of responsibility of parenting if you immediately designate somebody secondary, or tertiary, or quaternary, or whatever, because of nannies and grandparents and all these other people. I'm not sure it moves our agenda forward.

Ms. Bernadette MacDonald: We're certainly limited by our language.

Ms. Carolyn Bennett: Yes. Thank you.

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

Mr. Lowther, followed by Senator Pépin.

Mr. Eric Lowther: It's like doing a committee under water, with this music next door. I'm glad I have my earphones on.

I have a question for Ms. MacNeil. I got the sense from your comments here that you're not too positive on joint custody. We're finding these words “joint custody” mean different things to different people: two houses, two complete homes, 50-50 right down to the second, and children sort of shunted back and forth; or conversely, it could simply mean for some people sort of a presumptive position that we should have or attempt to have children having relationships with both parents. So all ends of the spectrum are there.

What type of joint custody are you against, and is there any type that you could be for on that continuum?

Ms. Georgia MacNeil: It's not the type of joint custody that I would come down either for or against. I think in an ideal world where parents can put their differences aside for the good of the children, it's wonderful for the children to have maximum contact with both parents. However, in the cases we deal with, they're very contentious; there is a very great power struggle within the families of most of the women we deal with.

Joint custody is not appropriate when abuse is an issue. It continues the abusive situation, to the detriment of the children and to detriment of their caregivers.

Mr. Eric Lowther: Thank you.

The Joint Chair (Mr. Roger Gallaway): Senator Pépin, and then Senator Cools.

Senator Lucie Pépin: I'll have to ask you to use the translation. What I have to say needs some nuance that I cannot say in English, so I have to use my own language.

[Translation]

If I understood correctly, and correct me if I am wrong, under Islamic law, when a husband or wife say they want to divorce, there is no problem and they are divorced. Am I mistaken, or is that what is provided for in the Islamic law on divorce?

[English]

Dr. Jamal Badawi: Madame, ideally, in Islamic law, first of all, the prophet indicated that divorce is the most hated permissible act in the sight of God and has to be reserved only as the final step.

Secondly, there is a misconception that divorce in Islamic law is very easy. It is just like saying marriage in Christianity is very easy, to stand in front of the priest and say “I do”.

It is not like that. The Koran provides for various steps whenever there is any dispute between husband and wife, various steps to settle that between themselves. If that doesn't work, the Koran recommends that there be two arbiters, one from the wife's family and one from the husband's family, to try to intervene and try to resolve the problem.

• 1610

If all that doesn't work, there are various forms of marriage dissolution in Islam. One, it could be on an agreement between both parties. Second, it could be on the unilateral will of the husband. Third, it could be on the unilateral will of the wife if she specified that in her marriage contract. It could also be by order of a court of law, or it could be by another system of—

[Translation]

Senator Lucie Pépin: But we are in Canada. So we follow Canadian laws. It is important to take your culture and background into account, but it seems to me that Canadian laws should prevail over your customs.

If I understood correctly, you told us that a young girl or baby girl should be kept by a young 15-year old girl rather than the father, according to your tradition. Since you live here, you have to follow our laws.

Would you have any problem with joint custody? Would it be acceptable to you if girls had as much access to their father as to their mother? What kind of problems do Canadian laws pose for people from your culture?

[English]

Dr. Jamal Badawi: One underlying assumption in Islamic law whenever it provides for this list of priorities is to also keep the interests of the child in mind. I did not have time during my submission to go through some other details that I indicated in my endnotes, but this is not just automatic. It simply shows the bias, you might say, or the tendency in Islamic law to favour the female side. As Muslim jurists indicate, in the earlier years of the child, the need for a female is far greater.

That's why there are a number of categories of female entitlement. Even, for example, the maternal grandmother takes precedence over the paternal grandmother, even though both of them are females.

We're talking here of children about up to the age of seven approximately for the male or the age of nine for the female. After that time, the interests of the child also could be examined in terms of who would be most fit to take custody of the child.

So you're quite right that if the mother is only 15 years old and deemed to be immature and incapable of looking after the child, this was also one of the conditions that I listed as a criterion. So it's not automatic, it's simply a guideline in terms of priority.

[Translation]

Senator Lucie Pépin: I want to know whether I understood. Right now in Canada, if a girl's mother is 15 or 16 years old, you would be tempted to follow your own tradition rather than our laws. Did I understand that correctly?

[English]

Dr. Jamal Badawi: I'm not an expert on the Canadian legislation, but I would say that from an Islamic perspective, if the mother is capable of looking after her young baby, according to our tradition, to our religion, she takes precedence over the father.

The Joint Chair (Mr. Roger Gallaway): This will be your last question.

[Translation]

Senator Lucie Pépin: You talked about remarriage. What happens in the case of a remarriage? You just mentioned remarriage and stopped there. What happens in that case? Who has custody of the children? Can the custodial parent keep the child or is the child sent to the other parent? What happens?

[English]

Dr. Jamal Badawi: In my submission, I gave the more common opinion that if the mother remarries, then the other parent, the father in that case, would take custody of the child. The assumption is that the new husband may not necessarily look after the baby.

However, in my endnotes also I did refer to other jurisprudential opinions. For example, there are some Muslim jurists who say that it is immaterial as to whether the mother remarries or not, so long as the atmosphere and the setting is conducive for the development and interests of the child.

Some jurists make a distinction between that case and the mother remarrying a relative of the child, like his uncle, for example, in which case the interests of the child will be guaranteed. So there's a range of opinion, all centred around the interests of the child.

• 1615

[Translation]

Senator Lucie Pépin: Let me remind you that you live in Canada. We have laws. If you decided to live here, that meant you accepted our laws. I understand your culture, but I have a hard time understanding why a custodial mother who remarries should lose custody of her children. I find that very difficult to understand.

I do not want you to be offended by my question, but would that be one of the reasons for so many child kidnappings? Fathers take the child and take it outside Canada. Is that one of the explanations for the number of child kidnappings by members of the Islamic community?

[English]

Dr. Jamal Badawi: First of all, Madam, I must bring to your attention the fact that I did not appear here before the committee to say we should violate Canadian law. I appeared before the committee, as I indicated in the very introduction, to familiarize the committee, on behalf of the Muslim community, about the law of custody and access according to Islam.

Secondly, it's a stereotype to refer to kidnapping only with regard to the Muslim community. Everybody's doing that. It is wrong, whether the person who is doing that is claiming to be a Muslim, Christian, Jew or what not. So I think we should not mix stereotypes with what Islamic law actually teaches.

Thirdly, I'd like to bring to your attention something very important also. In Islamic law, theoretically and historically, even if Muslims were 99% in the majority, they allowed religious communities, such as Jews and Christians, to have their own personal laws for marriage, divorce, custody and inheritance. This has also been an historical practice. For example, in Egypt until today, even though the Christians are a small minority, they can go to their own religious court. This has historically been the case in the Muslim treatment of religious minorities.

I hope that some day in Canada also, within the broad concept and perspective of the law of the land, there will also be recognition and payback of the tolerance Muslims have shown historically in dealing with religious minorities in such personal or family matters.

[Translation]

Senator Lucie Pépin: I did not want to...

[English]

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

Senator Lucie Pépin: One more point.

[Translation]

I did not want to offend you by talking about kidnapping. I am not necessarily saying that all kidnappings are your community's fault, not at all. You set the record straight. I agree with you. Thank you.

[English]

The Joint Chair (Mr. Roger Gallaway): Senator Cools, followed by Mrs. Finestone.

Dr. Jamal Badawi: What is wrong is what is wrong regardless of who's doing it. We should not mix that with Islamic law, about which I am talking today.

The Joint Chair (Mr. Roger Gallaway): All right. We'll end it there.

Senator Cools.

Senator Anne Cools: Thank you very much, Chairman.

I'd like to thank the witnesses for coming before us.

The issues of parental abduction are very different from the issues you were raising here. They're issues we still have to get hold of in this committee. We had one or two witnesses, but I think we should have some more.

The witnesses from the Women's Centres CONNECT raised the issue of violence and aggression in families and intimate relationships. For a moment I thought they were proposing to return fault to divorce, but I think they clarified that. Am I right on that?

Ms. Georgia MacNeil: I don't know what you mean by returning fault. I'm sorry.

Senator Anne Cools: Right now we have so-called no-fault divorce. Many people worked for years—

Ms. Georgia MacNeil: Okay. I'm not a lawyer.

Senator Anne Cools: There are very few lawyers here. That was one of the reasons the whole issue of past conduct was removed from consideration in the divorce law. What I'm hearing you say is you want to look more at conduct.

Ms. Georgia MacNeil: I think in cases where the protection of the mother and child.... I think the protection of people at risk has to be considered.

Senator Anne Cools: Okay.

My question to you has to do with the women you serve and assist. You haven't given us any idea of the number of people you serve, but I gather from you it's quite significant.

• 1620

Ms. Georgia MacNeil: As I said in my introduction, in the last year, women's centres served over 800 women with custody and access issues.

Senator Anne Cools: Very well. Perfect. So you served 800 women with custody and access issues. How many of those were physically abused women?

Ms. Georgia MacNeil: I can't give you the breakdown there. That wasn't given to me by the coordinators. However, what was given to me was that the majority of women face either psychological or physical abuse.

Senator Anne Cools: I'm looking for spousal violence. That is what I'm trying to get at. Of the 800 women, how many were physically abused by husbands? I can understand if you don't have that.

Ms. Georgia MacNeil: I can certainly ask for it and include it in my brief, but I don't have it at this moment.

Senator Anne Cools: Okay. So of the women you served, you cannot tell me how many were actually abused physically.

Ms. Georgia MacNeil: I cannot.

Senator Anne Cools: You can't.

Ms. Bernadette MacDonald: May I ask you a question?

Senator Anne Cools: You should put any questions to the chair.

The Joint Chair (Mr. Roger Gallaway): No, members are not subjected to questions.

Ms. Bernadette MacDonald: Okay.

Senator Anne Cools: Very well. May I continue, Mr. Chairman?

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

Senator Anne Cools: Thank you.

Of the women you have served who have been abused—and I have no doubt that the numbers are significant—how many of those are common-law relationships and how many of those are married relationships?

Ms. Bernadette MacDonald: I work at the Pictou County Women's Centre in New Glasgow, and most women I deal with are married.

Senator Anne Cools: Most. Can you give me a percentage?

Ms. Bernadette MacDonald: I would say most. I don't want to be saying 90%, but I'm saying most women I deal with at the women's centre are married.

Senator Anne Cools: Okay, so you deal with a client body other than her 800 women. Then I'm getting confused.

Ms. Bernadette MacDonald: No, I'm part of the 800 women.

Senator Anne Cools: Oh, you're part of the 800 women.

Ms. Bernadette MacDonald: Yes.

Senator Anne Cools: Okay, so your numbers are subsumed in there. I understand.

Ms. Bernadette MacDonald: Yes.

Senator Anne Cools: Very well. Of the ones who are married, what percentage of those are involved in divorces?

Ms. Bernadette MacDonald: In the forces?

Senator Anne Cools: In divorces.

Ms. Bernadette MacDonald: Oh, in divorces. Sorry, I thought we were going another way now.

Senator Anne Cools: No, divorces. Of the women you work with who are abused, how many are involved in divorces?

Ms. Bernadette MacDonald: Most are not involved in divorces.

Senator Anne Cools: Most are not involved in divorces.

Ms. Bernadette MacDonald: No, they haven't gone that far yet in the process.

Senator Anne Cools: So most of the women you are dealing with who are abused have not yet filed for divorce.

Ms. Bernadette MacDonald: That's right. Most of them are just going through separation.

Senator Anne Cools: Oh, absolutely. But I want you to know that across the country, this is what we're told, most of the women of whom we speak here in abuses are not actually involved in divorce proceedings.

The Joint Chair (Mr. Roger Gallaway): Are you finished, Senator Cools?

Senator Anne Cools: Yes, thank you.

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

Mrs. Finestone.

Mrs. Sheila Finestone: Thank you very much, Mr. Chairman.

I would like to pursue, for my own clarification, some observations made by Madame Pépin. And I do appreciate the fact that you have given us the general outline; it's important.

Also, I'd like to put on the record that as Canada has changed significantly over the last maybe 30 or 40 years, nonetheless we have had minority groups within Canada for a very, very long time, be it Mennonites, Hutterites, and many others.

With respect to those who follow Islam, could you explain where you told us about the spiritual, emotional, and other responsibilities that would certainly favour custody to the mothers for the earlier years, which we would refer to and some people have referred to as primary caregivers in the early years, at age seven for young boys—which is like the Catholic Church saying give me your child until seven and I'll give you a good, solid Catholic person for the rest of your life—and until age nine for the girls?

One would therefore presume in their early years the primary caregiver is the woman, irrespective. However, I want to know what happens after age seven or age nine. Is there a transfer of that caregiver? Is it an automatic obligation of the woman to transfer the son to the father's home, or of the man to transfer the daughter to the mother's home? How does it work after age seven or age nine if they're still separated?

• 1625

Dr. Jamal Badawi: No, Madame, it's not automatic.

I'd like first of all to make a comment on the age. Some jurists even say nine and eleven. Some jurists say in the case of a female, she may stay with her mother until she becomes adolescent. Some even say she may stay with her mother until she gets married, because she needs the training of her mother as a future wife and mother, more so than her father. But generally speaking, after the age of seven or nine, the child is given the choice between continuing under the primary custodial care of his or her mother or moving in with the father.

Mrs. Sheila Finestone: So then it's incumbent upon the child?

Dr. Jamal Badawi: Yes, the child could make that choice. However, some jurists said if the child is hesitant and does not make any choice, he can just cast a lot.

Mrs. Sheila Finestone: What does that mean, “cast a lot”? Throw the dice?

Dr. Jamal Badawi: Yes, throw the dice, if the child doesn't make a choice. That would be one way of resolving the standoff if the child is undecided.

Some jurists, however, dissented from that. They said one has to examine the long-term interest of the child, regardless of whether he's reached the age of seven or not. Even at that age, still the judge may look into the best interest of the child and may assign him still the same custody and parent. So it's not automatic.

Mrs. Sheila Finestone: Thank you.

My last question is with respect to divorce. I heard what you said, and I think that in most religions where there's orthodoxy in the religion, divorce is frowned upon. For that matter, under the Convention on the Rights of the Child, the word “divorce” never appears, and it is not part of the International Convention on the Rights of the Child. It quite specifically addresses that language in that way because of the cultural differences found in different religions across this world.

Canada to date has one set of rules and one set of laws for all its population, irrespective. I heard what you had to say, but let us presume they do go for a divorce. Would that divorce be allowable under Canadian law through the Canadian courts, or would it be subject, like a Jewish divorce, to a decree nisi before you could get a final decree where the full freedom is accorded to both the man and the woman? How does it work in Islamic law?

Dr. Jamal Badawi: Islamic law, Madame, allows both sides to get out of an unhappy marriage. This is the stereotype. Again, I'm dealing with the stereotype, because some remarks have been made that we're stereotypical, unfortunately.

Divorce in Islam is the right of both sides. It takes, as I said, different forms, one of which could be even the unilateral will of the wife, if she specified that at the time of marriage. It could go to court. It could go to court even if there were no legal ground in Islamic law to ask for a divorce, such as the husband, for example, being violent with her or not supporting her. There is a system known as khul, or divestiture, whereby the wife would say “All right, I'm offering to return your marital gift, but I want out. There is no fault on your part, but I can't stand continuing this.” So in terms of freedom—

Mrs. Sheila Finestone: So therefore, within Islamic law, the woman has the right, whereas within Jewish law, the get is strictly a man's right.

Dr. Jamal Badawi: That's right. There are four or five different forms of marriage dissolution in Islam, one of which actually could be initiated by the wife through a court of law or even without a fault on the part of the husband.

But to come directly to your issue of the law versus religious divorce, obviously, for those who are committed, practising Muslims, they need to have a divorce also that's acceptable and meets the requirements of Islamic law. You would be surprised that often those requirements are parallel to the Canadian law. Sometimes we tend to think of religious laws as totally divergent. Actually the objectives of Islamic law are very similar to the objectives of secular law in many respects. So in that sense there is no.... It could take place before or after; it doesn't matter.

Mrs. Sheila Finestone: What I'm concerned about, frankly, is if a Canadian court awards custody to the wife, to the woman, because she is seen, within the case being presented, as the primary caregiver, there cannot be a going back at the different age and changing that decision, except through a mutual agreement. That would be an understandable and an acceptable procedure?

• 1630

Dr. Jamal Badawi: Yes.

Mrs. Sheila Finestone: Well, I think that's fine.

Dr. Jamal Badawi: If the parents were both committed, they would make this kind of agreement.

Mrs. Sheila Finestone: If you will recall, Mr. Chairman, at one point it was recommended that you would have a friend of the family as the first intervener when there was a problem, followed by a mediator, followed by an arbitration process before you got to the courts, and that at the very outset you should have a parenting plan anyway. It strikes me that you have some of those aspects presented right here.

Thank you.

Dr. Jamal Badawi: May I add one piece of information? In North America some effort has now been made, both in the United States and in Canada, to encourage this kind of arbitration through a committee of scholars at the local or regional level, or even we have the National Juristic Council, of which I happen to be a member. They can arbitrate disputes between husband and wife on the basis of Islamic law, sign the agreement, and take it to the judge, and my understanding is that if the judge feels there is no violation of other laws and it's mutually agreeable, it becomes an effective order. So that would be at least one interim way of accommodation.

Mrs. Sheila Finestone: Thank you very much.

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

I should point out, Mrs. Finestone, that there's another religion in North America that does this in a parallel fashion, and that's the Salvation Army. The Salvation Army does the same type of thing, which I find very interesting. A religious community mediates and works out the solution, and then if they wish to divorce, it's upon the terms as mutually agreed upon and as set down by the church elders, I guess. That's quite interesting.

Thank you very much.

This committee will now stand adjourned until tomorrow morning at 9.30 in Charlottetown.