SJCA Committee Meeting

SPECIAL JOINT COMMITTEE ON THE CHILD CUSTODY AND ACCESS

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

EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, June 4, 1998

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[English]

The Joint Chair (Mr. Roger Gallaway (Sarnia—Lambton, Lib.)): Good morning, colleagues.

We have this morning with us, from the University of Sydney in Australia, from the Faculty of Law, Professor Reg Graycar. We want to welcome her here.

I understand you were forced to stay an extra day in Ottawa to be here today. I don't know if that's a hardship or not. A lot of members here feel that staying here an extra day is not the best of all worlds.

We very much appreciate the fact that you are here. It is somewhat serendipitous that you are in this part of the country when we in fact are talking of this subject of custody and access around the Divorce Act.

Senator Cools, you wanted to say something?

Senator Anne C. Cools (Toronto Centre, Lib.): Yes, thank you, Chairman.

I just want to note that it is now 11.30 a.m. This meeting was called for 11 a.m. and could not begin because there was a lack of members present to begin the meeting. Some people did show up for 11 a.m. I just want to make that note. This meeting was called—

The Joint Chair (Mr. Roger Gallaway): As you're well aware—

Senator Anne Cools: I'm not asking for an explanation; that's quite all right.

The Joint Chair (Mr. Roger Gallaway): Just on a point of information, I do want to advise you that there was in fact a vote, which started at about 11.05 a.m. or 11.10 a.m., in the House of Commons.

Senator Anne Cools: Well, I'm quite amenable to votes. Perhaps in the instance where members of the House of Commons are delayed, senators could be notified, because senators are doing double and triple duty sometimes at committees.

Do I have the floor, Chairman? I was speaking.

It would be very nice if, when we have some indication that a meeting is going to be delayed substantially, perhaps some of us could receive some sort of notification. Would that be possible, Senator Chairman?

The Joint Chair (Senator Landon Pearson (Ontario, Lib.)): Excuse me?

Senator Anne Cools: I just said that perhaps when there is a pretty clear indication that a meeting is being delayed because of a vote in the House of Commons, senators could have some indication so they can plan their time accordingly.

The Joint Chair (Senator Landon Pearson): If you would like the clerk to phone you and let you know, I presume that would be acceptable.

Madam St-Hilaire.

[Translation]

Ms. Caroline St-Hilaire (Longueuil, BQ): During a sub- committee meeting, this week, we discussed the fact that we could start hearing witnesses even if Members or Senators were absent. If we had to go the House for a vote, you would still be able to hear the witnesses. However, I do not believe that Senators can replace Members of Parliament. This is a joint committee.

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

[English]

Senator Anne Cools: Absolutely, Chairman. My understanding of the rules is that no senator can replace a commoner and no commoner can replace a senator and that a meeting cannot begin unless there's representation from both chambers in the instance of hearing witnesses, unless there are six people present. So the point is more along the lines of what I said.

I thank you, Mr. Chairman.

The Joint Chair (Mr. Roger Gallaway): Once again, just on a point of information, the normal rule in the House is that votes occur at the end of the day, usually at 5.30 p.m. or 6.30 p.m. In fact this was not a foreseen vote this morning; this was a procedural wrangle in the House, and the vote was called. So this is one that was unforeseen and was not predictable.

Senator Anne Cools: All right. I'm sensitive to your needs, and many of you are just so overburdened; we all are. I'm just saying that in instances where it's pretty clear that there is a vote, our offices, senators' offices, can be called and senators can be notified.

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

Professor Graycar, we apologize for the delay.

Professor Reg Graycar (Faculty of Law, University of Sydney): That's okay.

The Joint Chair (Mr. Roger Gallaway): Do you want to begin?

Prof. Reg Graycar: Yes, thank you.

I thought what would probably be best is if I just outlined a little bit about the background to the legislation, the stated aims, some of the actual changes that the 1995 legislation made to our Family Law Act, and our very preliminary findings on the research project. Then of course if you have any questions, I'd be happy to elaborate on any of that.

One of the things that I think is pretty widely agreed about the Australian legislation, the Family Law Reform Act—which came into effect in 1996, 20 or 21 years after the Family Law Act was first passed—is that there was no specific reform background. We'd had a number of different family-law-related inquiries, but generally there was nothing in particular, the commentators have noted, that led to these particular changes.

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Nonetheless, it seemed to be fairly widely agreed that the set of aims that were adopted came largely from looking at the English legislation, and the aims were very much to encourage both parents to be involved in the care of their children after separation; to reduce disputes between parents by removing the notion of winner takes all that some people associate with the language of custody and access; to emphasize the rights of children over the rights or needs of parents; to encourage private agreement and private ordering and increase the use of what's now called “primary dispute resolution”—we've abolished the word “alternative” and this is the primary form of dispute resolution; and, finally, to ensure that contact or access wouldn't expose people to a risk of violence and to ensure that violence was a factor taken into account in determining what was in the best interests of children.

So with those aims in mind, the very specific changes that were made—and you probably have a copy of our legislation, but if not, I've brought the main parts with me and I'd be happy to leave them here—were the insertion into the part of the Family Law Act that deals with children of a specific statement of objects and principles, which is adapted, I suppose, from the United Nations Convention on the Rights of the Child and includes provisions such as: except when it is or would be contrary to a child's best interests, children have the right to know and be cared for by both their parents, irrespective of the marital status of their parents; children have a right of contact on a regular basis with both their parents and with other people significant to their care, welfare, and development; that parents share duties and responsibilities concerning the care, welfare, and development of their children; and that parents should agree about the future parenting of their children. So that's the statement of objects and principles.

In terms of the changes to terminology, the previous legislation had used the term “welfare of the child”, and that was considered to be not a particularly appropriate term. It has negative connotations. So that was changed to “best interests”, and that's of course more consistent with usage internationally and in the convention.

Probably the key change, or the one that people talk about the most, is the change to the language. That is, removing the notions of custody and access and removing altogether the notion of guardianship, and replacing the legal concepts with a concept of parental responsibility.

In terms of the orders that can be made by courts or agreed to by the parents, these are now: residence orders, that is, where the child lives; contact orders, that is, when the child sees the other parent or access; and specific issues orders in cases where it's considered that some more definite outline of the responsibilities needs to be provided for.

The act makes it clear that parental responsibility is unaffected by separation and, similarly, a residence order is different from the old custodial guardianship order. It doesn't formally vest sole decision-making power in the residence parent. To do that, you would need a specific issues order, and if there's some sort of a dispute where it's considered that this is required, that's what will be made, either by the parties by agreement or by the court.

The amended legislation revised the list of best interests factors the court has to take into account and added a few. Specifically, I think, for these purposes there are now several references to the need to protect children from family violence, and that includes violence against any member of their family, not just directed at the children. So the existence of a family violence order is something that has to be taken into account.

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There's a new part of the act that tries—and this is very technical—to work out the relationship between the state and territory courts, or magistrates courts, that deal with family violence orders and the federal children's regime that the Family Law Act administers. And there's also a new part of the act, which I think I mentioned before under the aims, that deals with primary dispute resolution and basically exhorts all of the forms of dealings under the act to invoke those kinds of processes. Another technical aspect of that part was to set up an accreditation system for non-court-based primary dispute resolution agencies so that some of the non-government agencies now also run counselling and mediation services and have the authority to make input into the court process.

There were a number of I suppose different predictions and concerns about this legislation. By the time it was passed in Australia there had already been some doubt in England expressed by people like the former Law Commissioner, Brenda Hoggett, that it would really bring about changes in practice, and particularly a move to shared parenting.

Similarly, in Australia we had had some research done by the Australian Institute of Family Studies, which is our major family research organization, that came to similar conclusions. So there was some doubt about whether changing the language might really change the way in which parenting is carried out in practice after separation.

There were also some concerns expressed about what appeared to be a bit of an incoherence or contradiction in the legislation between on the one hand for the first time really spelling out the importance of violence as a negative factor in terms of children's best interests— This was put into the act at around the time the case law had developed in that direction anyway. There were quite a few decisions of the full court spelling this out, but what hadn't happened was the legislation spelling it out.

There's that on the one hand, and on the other hand what's seen to be a right to contact expressed in the objects and principles clause. The first time the full court in Australia got to consider this they made it clear that obviously that right in the objects and principles clause is subject to the best interests of the child. That would be how you would apparently resolve this dispute, but some of our research findings show that it is causing difficulty.

Perhaps I should just tell you a little bit about the research project we're engaged in. It's funded by the Australian Research Council, which is equivalent to the Social Sciences and Humanities Research Council in Canada. They have a scheme where they encourage university researchers to work in collaboration with what they call industry, and my industry partner is the Family Court of Australia. So we are doing this collaborative project together, the University of Sydney and the Family Court of Australia, and I guess our aim is to asess the effects of these changes. Over a three-year period we've looked at the background. We've compared what's happened with England and we've started to do a whole series of research looking at the case law, interviewing lawyers, interviewing judges, counsellors, registrars, and community agency workers as well. And we're about to embark on a process of interviewing people who attend for advice sessions at one of the large legal aid services in the largest state.

The sorts of things we're looking at are the extent to which the reforms have actually led to a real increase in shared parenting, the extent to which they've led to an increase in the amount of contact that children are having with both parents, the extent to which, if any, there's a presumption developed in favour of contact and whether it's now more difficult or easier to suspend contact or that hasn't changed. Also, one of the issues that arose—and I think you've had similar issues here in Canada—is the question of whether or not it's more difficult to move away, to relocate with the child or children, the extent to which the new provisions dealing with family violence have led to any change in practice at all and whether there is that inconsistency I mentioned I mentioned that was seen as potential with the right-to-contact provisions, and really the extent to which the changes have either increased, reduced or not affected the amount of disputes between parents. Because one of the great aims was that parents would agree and there would be fewer disputes.

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Obviously the other thing we're looking at is the kinds of ways in which the advice given by professionals like lawyers, counsellors, mediators and so on has changed, if at all, and what they're telling people who see them about the effect of these changes.

As I've said, we've done a number of interviews so far with lawyers. We had one set of interviews only just before the first major decision on relocation, and it was quite interesting to interview people before the court told them what the provisions mean, in a sense. Obviously since then, all the interviews have taken place in the context of the shadow of the law, of the court telling them what these provisions are supposed to mean.

We've also found that a kind of contemporaneous development has been a quite significant decline in the availability of legal aid services for family law. So to some extent it's quite difficult to tell what changes, if any, are attributable to the decline in the availability of legal services or attributable to the new legislation. And although we have national legislation, we've noted some quite specific regional differences in the ways things are happening.

I could go through our very preliminary list of findings and I will leave you a summary of that if you like.

In terms of our interviews with lawyers, we've both interviewed lawyers and have also distributed questionnaires at a number of family law practitioners' gatherings. On the questionnaires, we've invited them to put their name and phone number if they're happy to be re-interviewed, so that we can see down the track whether their practice is changing, and quite a few have indicated their willingness to do that.

Basically what we've seen is that what the lawyers tell you and what they tell you that they tell their clients depends very much on their own personal views about the legislation.

If they think it's just a change in language and nothing more, just words, then they're going to tell their clients that nothing much has changed. On the other hand, if they think it's more significant, then they're going to try to tell their clients that things are different and they will now have to agree to this, that or the other thing. Some of them say, “Whatever we think, it depends on what the judges in our registry think or what the judicial registrar that we have to go before thinks.” That describes the lawyers.

We have had a pretty strong feeling expressed to the extent that the court is allowing contact to parents who might not previously have obtained an order for access. But that's what the lawyers tell us.

It's actually harder to tell that from the judgments we've looked at. I think all of this has to be put in the context that no more than 5% of cases get determined by the court. The question is, what's going on in practice in terms of agreements and in negotiations? That is why we consider it as important, if not more important, to talk to the lawyers, because reading the judgments is just a very small thing.

On the issue of the relevance of violence, we've been told by some lawyers that this has set the clock back to the position that we were in before the court developed a jurisprudence pointing out that violence in a child's household is not in the best interests of the child, because they say that the so-called right-to-contact provision is being used to override concerns about violence.

Another response that we've had, which is actually more from judges and registrars than from the lawyers, is that there is so much violence out there in the community that it's really hard to know what to do. We've had some quite despairing comments about the extent of violence.

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So it's really more a practice issue. We find that there are different arrangements being made for contact handover, though there are obviously still cases where courts decide it's not in the interests of children at all that there be contact with a parent, either because of violence or because of abuse of that child.

We have discovered that the counsellors take a very different view from the lawyers, and they are much more likely to tell people that the law has changed. And we've had some lawyers comment that they're a bit nervous about the sort of legal advice that counsellors appear to be giving to people.

We have really no evidence at all—and in fact, I think the evidence is to the contrary—that non-residence parents are spending more time with their children. When the act actually came into effect in June 1996, the solicitors have described to us a rush of fathers who suddenly demanded equal rights to their children because that's how the legislation had been presented in the media.

In fact, you find that even the most informed commentators, not just those from the tabloids, say that we now have shared parenting in Australia. But we find that there's almost no difference at all in practice, that after this sort of spate of “I have equal rights”, and so on, people had it explained to them just what it meant.

In fact, the lawyers are telling us that most of the fathers who talk that way are happier, say, to get an order agreed to that says “residence-residence”, but aren't spending any more time caring for the children. They're telling us that the childcare is still as it has always been, very much the mother's responsibility, with the father spending that short period of time with the child, the same kinds of periods as were previously assumed, which is every second weekend and half the school holidays. That seems to be the same situation.

To the extent that there's any shared residence being ordered by courts, you will find in some registries that it is being done in interim hearings because the courts are concerned about establishing a status quo, so that by the time it comes to a final hearing, one party would be seen to have an advantage by saying, “The child has been with me.” Again, that's very much a matter for particular registries and we find those regional differences quite interesting.

In fact, I think of the judges we have interviewed so far, not one has said that she or he has made a shared residence order with equal time. They might make a residence-residence order, but on top of that the time differences would still be quite manifest.

The next question we've looked at is the most common form of order, sometimes called the “symbolic shared residence”, but this is what I was suggesting hasn't actually changed the practice. They call it “residence-residence”, but there is no more contact, and that was a very widespread view, both from the judges and the lawyers.

On the question of whether non-residence parents are exercising more responsibility, the answer is no. Even the ones who might be spending a bit more time with the children are still leaving the big jobs to the full-time carers—or the more full-time carers.

And we asked the reasons for that and why they think that's the case, why this hasn't changed. There were three or four suggestions made.

One was that you can't expect people to be engaging in shared or cooperative parenting after separation if they never did it before separation, and you find that in a lot of these situations there wasn't a lot of shared parenting.

And quite a lot of the couples who the judges and lawyers come in contact with in these contexts have a reasonably high level of conflict involved, because of course the ones who can sort it out themselves aren't the ones that they see. And where there's high conflict there's never much likelihood of agreement.

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Sometimes there are practical impediments to sharing responsibility—for example, a lack of geographical proximity. They say that in cases involving violence, that's a very difficult situation in which people might cooperate. It's unlikely they would.

Basically, even the counsellors said to us that the fathers now express their expectations of increased rights regarding children because of the changes, but they agree that this doesn't necessarily translate into accepting more responsibility for the care of their children.

One anticipated outcome was that the level of disputes would decline and that things would be more readily sorted between the parents. Some solicitors have reported that there's an increased workload as a result of this legislation and that in some jurisdictions, but not others, they're using more specific issues orders. So they're using that framework to specify far more detailed arrangements than was previously the case.

There also have been, I think—and again, it's just been reported to us; we don't have the statistics—more applications for enforcement. Given the notion of shared parental responsibility, if one parent doesn't like what the other's doing, they then can bring a breach application. For example, in one case we were told about, the resident parent took a child to a naturopath, and the father was a doctor. He didn't like that, and sought breach orders because she didn't follow his advice.

Those types of things, at least anecdotally, seem to have increased. Similarly, another breach application was made where a mother had enrolled a child in a high school without consulting him. So people are saying now they have to be consulted on every single thing.

There's some concern that the notion of shared parental responsibility is increasing the possibility of harassment or interference rather than real sharing of responsibility, because these are the types of cases that are being reported to us. As I say, some solicitors are saying, perhaps a bit cynically, that they have an increased workload in drafting much more detailed orders to try to prevent this happening.

But we're not seeing this happening in the court decisions. Our researchers suggest that these disputes aren't really being played out in court. We can't see, in terms of the number of applications, a significant increase in applications for contravention of orders, but we think these are part of the tactics that are going on in the lawyers' negotiations.

With regard to the violence parts of the act, I think I mentioned already that the response seems to be not so much an increase in the number of cases where contact is declined or refused but rather more complicated arrangements for handover or for supervised contact.

That's not to say it's always considered to be in the best interests of children. We have a number of cases where the court has said this is not a situation where the children will benefit from contact with this violent parent, or obviously in cases where the child himself or herself has been abused. That's a situation where it would be very unlikely that contact would be ordered. But generally there is a range of different responses.

In the context of interim orders particularly, they're much more likely to order some kind of arranged contact—you know, supervised contact or a mutual handover contact—than stop it altogether unless there's an allegation about the child. Part of that is procedural. At interim hearings they don't bring in the full evidence, so they don't have the whole story in front of them. It's really about maintaining a situation.

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I don't know if this is a cultural difference or if you have this phenomenon as well, but apparently McDonald's is the most common neutral place for the handover of children. I don't know if that's familiar to you, but it's well known in Australia—the “McDonald's case”. At least McDonald's is an international phenomenon.

So we've had some concerns expressed, as I've said before, by solicitors, particularly those acting for women who've been the targets of violence, that this legislation is actually, despite its aims, working against some of their clients, and that the discourse of the right to contact is sometimes being used against that.

I think what we're finding is that if these cases go to court, the court is perfectly capable of balancing those different parts of the act, but there's really a question of who you see in terms of your negotiations and to which parts of the legislation they give emphasis. That seems to be emerging from our interim study.

Certainly we have some examples of cases where contact was ordered. There was one interesting case told to us by a judge. The kids were apparently traumatized by the father and by the violence in the relationship. We don't know why, but the mother's lawyer asked for supervised contact.

The judge said—and this is a quote:

I ordered there be no contact at all. I often feel as though the party's advisers don't understand the significance of violence. They aren't asserting a sufficient judgment. They're not educated about domestic violence. It's a major problem.

So the judge's view was that this was not a case where any form of contact was appropriate. I think the inference is that these particular legal advisers hadn't even contemplated that the court would agree with such an order.

Obviously, one of the things we're most interested in would be the understandings of this legislation and the perceptions around it.

There's an article, which I'll leave with you, written by one of the judges of the family court before the legislation came into effect. He looked at what it all means. He went through the different language provisions and said, well, as far as he could see, it didn't do anything, really, to change the law, and there was no clear evidence at all that there was anything about the law that was being addressed in the way the legislation was drafted.

He goes fairly carefully through the second-reading speeches and the parliamentary debates and so on. He posited a number of theories about what it was meant to change and the different ways in which it was intended to affect attitudes, perhaps. He talked about whether it was really just changing words; whether changing words can change people's perceptions; and whether it was about changing practice. With many people, he expressed some reservations about the ease of doing that simply by changing words.

He has three theories here: word association; exhortation and standards-setting; or framing the issues for decision. He's looked at these as the different possible ways in which the legislation was meant to effect some change.

Pretty early on he concluded that there wasn't meant to be a significant change in the actual law. I think that approach was pretty well confirmed by the full court of the family court last year in its first major decision, a case called B and B. It was a relocation case where the argument really was about balancing the different parts of the act and about how the statement of objects and principles, the so-called right to contact, fit in against the other general best interests provisions.

The court decided in this particular case that it was in the best interests of the children that they be allowed to move with their mother. It's a very interesting judgment, because it goes through the history of the reform act and through all the changes and so on. It obviously was intended to really set the stage for future jurisprudence.

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I could go into more detail about our findings, but I'd be very happy to answer any questions you have and leave you some of this literature, if that would be helpful.

The Joint Chair (Mr. Roger Gallaway): I'm certain there will be lots of questions this morning, and we're going to begin with Mr. Mayfield.

Mr. Philip Mayfield (Cariboo—Chilcotin, Ref.): Thank you very much, Mr. Chairman.

Professor Graycar, I want to thank you for being here, and I compliment you on your presentation and the articulate way you've done that.

I have three or four questions. I want to ask a little bit about violence. It seems as though some people understand violence in different ways.

First of all, I want to ask you if there is really a check-up on what one person calls violence. We've heard witnesses here talk about false accusations, and I'm not sure if it is a false accusation or whether it's just a different interpretation of what happened. Perhaps you could comment on that, and if we have time, I'll go on to something else.

Prof. Reg Graycar: As I think I mentioned, there is a very strong perception that there is a very high amount of violence among separating population.

I think the statistical evidence we have is that is the most dangerous time, in any event, in respect of violence against women. But the time after separation is statistically the time when a lot of people are very badly harmed. Our homicide statistics make that very clear as well, and I believe that's not dissimilar.

The sort of violence I'm talking about in the context of how it might be relevant to a children's hearing would probably be a situation where there had to be what we call apprehended violence orders, or restraining orders, or temporary restraining orders—different terms are used in different jurisdictions. The situation where the violence interferes with the best interest of the child would be the situation where the law would consider it relevant. I think the statistics indicate that people are much less likely to report violence, until it has become quite serious, than the alternative, the suggestion that there are false allegations.

I think I mentioned that one of the things that surprised us was the extent to which some of the decision-makers said to us, “It's so widespread that I don't know what to do”. They weren't saying they hear all these false complaints. They were saying so many of the cases involve violence that it's really hard to know what to do.

Mr. Philip Mayfield: The point I was pushing toward was adjudicating between perceived violence and actual violence. Witnesses have said the issue of violence is raised to strengthen one person's case against the other, whether or not it's true, and I wonder if you have considered how to deal with that.

Prof. Reg Graycar: I don't think we have any evidence in Australia that this is the case, and I don't know that it would help either, in a sense.

There was a study done in the family court about the concern expressed that child sexual abuse allegations are sometimes made in the context of custody and access, and that study showed that the incidence of those allegations and findings was no higher in that context than in the general population.

I don't know that it's really being suggested that violence is raised falsely as an issue, because there's almost invariably going to be some objective evidence by way of medical statements or the restraining order, or whatever, and I think that's different. If you look at the statistical incidence of violence among separating couples, you'll see that is quite a problem.

Mr. Philip Mayfield: I want to ask also about lawyers. We had a father here recently who is a lawyer himself, and he strongly recommended that there be some method of dealing with the sharp practices of lawyers. By way of example, he was talking about his former spouse having paid her counsel something like $110,000 over two years. The financial consequences of fees like this are disastrous in trying to sort out custody and the dissolving relationship. Have you developed any means of dealing with these sharp practices?

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Prof. Reg Graycar: I'm not really aware of any clear evidence of so-called sharp practices. There are occasionally cases reported in the newspapers of lawyers and their charges, but there's probably only a very small part of the community that would be in the situation of paying privately for fees that could blow out like that.

I think the emphasis in this act on primary dispute resolution and private ordering, if it's working out, is obviously going to take the edge off those lawyers' fees. But ultimately the lawyers are still making agreements for the parties to the extent that there's something binding that's going to be registered by way of a consent order.

I don't think you could run up fees like that without actually a full-blown hearing. As I mentioned earlier, only about 5% of our cases go to hearing. That's the figure from 1976, from the beginning of the Family Law Act. It's too soon to see whether that figure will actually reduce or increase, in fact, but we never had a very high incidence.

Senator Anne Cools: Do you have the actual number? Could you repeat it, please?

The Joint Chair (Mr. Roger Gallaway): Could you give us the actual number that go to hearing?

Prof. Reg Graycar: The generally understood figure is about 5%.

As I say, it's too soon. We're having a bit of difficulty doing statistics on the changes because we have different terminologies, so we are looking at apples and oranges with some of the pre-reform and post-reform hearings. When a bit more time has passed, I think we'll be able to see very clearly how many children's cases go to full hearing over x period of time versus before. That's obviously where the cost lies.

With the decline in legal aid funding, a lot of people are representing themselves, but not to great effect, one hears anecdotally.

The Joint Chair (Mr. Roger Gallaway): If you don't mind, one more question.

Mr. Philip Mayfield: Okay, I'll make it a short one. I'll depend upon my colleagues to explore the area of non-legal dispute resolution.

I want to ask you briefly about extended family members having rights of access. Have you given any thought to that or is there a provision for that? I'm thinking of grandparents.

Prof. Reg Graycar: Yes, there was quite a lot of discussion of that issue at the time of these reforms. In fact, the main legal situation hasn't changed at all. I can't remember the phrase, whether it's “any interested person”, but there's clearly a broad standing provision, if you like, for who may apply for a parenting order, and it has never excluded grandparents. Grandparents are in a position to make those applications, as are other non-biological parents or other relatives, and so on.

There are now a couple of express provisions to grandparents in the legislation, but to my reading they don't actually change that legal position at all. I couldn't quite understand why they were there. I think it is because some of the grandparents' groups were concerned that they were not expressly recognized in the legislation. But to the extent that they are in a position to have contact with the children, to apply for contact or even in appropriate cases residence, that hasn't changed, and they certainly are.

Mr. Philip Mayfield: Thank you very much.

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

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

I want to thank you for a very focused look at the changes you've brought forward, basing a lot of it, I gather, on the British law changes. I think it's very exciting that you're doing a joint study.

In the course of the study you've undertaken, are you just basing it on the 5% that go to court? I ask this because one of the concerns we've had is that although this way you're saying that 95% settle outside—I think we've been given figures of somewhere between 80% and 90%—the question that has come to all of us is what's really happening for those outside of that 5% who go to court. They've gone, they've established and tabled and had court approval of their contact and their decisions with respect to how they want to settle their affairs.

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How many come back for a renegotiation of the settlement, and how well are those orders that were first of all received and accepted being challenged back in the courts? Are you including those binding court orders in your review, outside of the 5%?

Prof. Reg Graycar: Yes. That's the reason we've spoken as extensively as we have to lawyers—because most of the lawyers' clients aren't going to court, and yet they are making those agreements for them, or in respect of them. We're also—

Mrs. Sheila Finestone: When there's a variation of the binding order, do they go back to the lawyer, or do they go back to the court?

Prof. Reg Graycar: They would probably go back to the lawyer to help them decide whether they need to go back to court, whether they could just do it on their own, or whether it's a variation of substance or something that needs to go to court.

Mrs. Sheila Finestone: Okay. In the course of what you've been hearing and looking at, was there ever any suggestion of having, rather than a standard court, a judicial tribunal?

Prof. Reg Graycar: Well, some would argue that the Family Court of Australia is a very different sort of court in any event, because it has a specialist family law jurisdiction. I could get into a very tedious discussion of constitutional law and separation of powers—

Mrs. Sheila Finestone: We do this in Canada, by the way, very well.

Prof. Reg Graycar: —but the short version is that under our federal Constitution, federally established courts cannot exercise non-judicial powers. The Family Court of Australia, being a federal court, has to be a court. That being said, the fact that the Family Court has been established as this integrated court, with its own counselling service and mediation services, does distinguish it from other courts. And there are registrars who do a large part of the work in the court, which only then goes on to judicial hearing if there's a full-blown dispute.

Mrs. Sheila Finestone: On the question of child support, we have just recently amended the child support legislation, which has some problems attached to it. It was supposed to have allowed the discussions and the decisions around access and custody—what you're calling residential and contact—to be less of a problem, and the two were not supposed to be tied. But essentially the way it has been determined, there is a direct tie between the amount of child support and access. Where access is denied, the child support can be changed and varied, etc. The two have been tied I think inadvertently, but I think it's been a negative approach.

Prof. Reg Graycar: Right.

Mrs. Sheila Finestone: There are two things I'd like to ask you. First, in your support structure, do you take the income of both parents who both have responsibilities, and then deduct certain costs like residence and schooling, etc.?

Second, how do you ensure that the decisions of the courts around access are respected when there might be a refusal on the part of the residential parent to respect the decisions on access?

Prof. Reg Graycar: First of all, in relation to the formula, yes, the main focus is on the contact parent. I'm so used to saying non-custodial parent, because that's what it was when we—

Mr. Peter Mancini (Sydney—Victoria, NDP): We'll understand.

Mrs. Sheila Finestone: That's still in our legislation.

Prof. Reg Graycar: Yes, but we're not allowed to say that any more.

By the way, as an aside, I should point out that one of most interesting findings from one of the lawyers, and one who practices exclusively in this jurisdiction, is that in at least one registry, as soon as they all go into court, everybody says “Can we just stick to the old language? We're all comfortable with it, and we're too old to change. Everybody knows what we mean.” We were a bit shocked by that.

Anyway, the contact parent's income is taken into account. There is a formula that then—

Mrs. Sheila Finestone: As well as that of the residential parent?

Prof. Reg Graycar: Yes. There's a formula then that looks at the residence parent's income, and over a certain point that's taken into account. There are changes that have been announced but not yet legislated, which are going to fiddle with that formula, but I don't have the details with me. I think one of the things they're looking at is changing that balance.

• 1215

On the second thing, the policy in Australia has always been—and we've had the child support scheme now for ten years—and remains, and hasn't been changed by this legislation, that access and support are conceptually very different issues.

Mrs. Sheila Finestone: Thank you.

Prof. Reg Graycar: For example, one concern that's often expressed is would you deny access—or should we say contact?—to a good parent, simply because he can't afford to pay child support? And we don't require people below a certain level of income to pay child support. Then of course, the flip side of that is that in those fairly rare cases where contact is denied, you'd have to assume that parent had done something that was considered reasonably egregious. In that situation, it would probably be a double burden on the child to then stop them paying child support.

I think there has never been a really serious suggestion by any of the policy bodies in Australia— The Family Law Council, which is our national advisory body—and I was a member of that for four years, though I'm not now—has recently issued an issues paper or a discussion paper on penalties for breaches of the act. It has recommended very strongly that nothing change in relation to there being no link between access and child support, or contact and child support.

Mrs. Sheila Finestone: Do you have penalties— or you're saying you're just putting in penalties?

This committee has, over the last several months, heard from—and mostly from—men who say they have been denied access and have not been able to see their children, some for as many as 12 years, and some for a short period time, and that every time they want to assert the right that was given to them in the court judgment, the police here are not prepared to ensure and effect that access. It's used as a derogatory or harassment technique. But in the meantime, the child is suffering.

Are you saying you don't have that problem of enforcement of access rights?

Prof. Reg Graycar: We have a provision in the act that deals with enforcement in cases of breach of orders.

Mrs. Sheila Finestone: Do the police apply that?

Prof. Reg Graycar: The court can order that a person's breach—

Mrs. Sheila Finestone: Yes, I'm talking about cases where the court has ordered. What do you do when the court has ordered, and it's not been applied?

Prof. Reg Graycar: Well, I think in theory—I'm not very good on this—the police can try to effect that order. I think the practice is that it is very difficult to intervene in those situations.

Certainly a lot of the discussion just before I left, in relation to this penalties project and how to deal with it, has raised the question of: Were the orders appropriate in the first place, and why are they being breached? If they're being breached, maybe instead of looking at penalties we should also be looking at the usefulness of orders that are continually breached—that is, whether they're the right orders.

I was reading some of the submissions, and there were some case studies in there of orders that had been made—again following on from this new legislation—following perhaps a meeting with counsellors, that said, “Now the court will never deny access, so you will have to agree to that”, and then a consent order is made, and then there's a breach. So, one of the approaches is, well, let's just go back and be a bit more careful about the kinds of orders we're making once we discover they're not being enforced.

Mrs. Sheila Finestone: Did I understand you to say—

The Joint Chair (Mr. Roger Gallaway): I'm sorry, Mrs. Finestone, but—

Mrs. Sheila Finestone: Can I finish this question?

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

Mr. Mancini.

Mr. Peter Mancini: I'll pick that up, because I think I know where Mrs. Finestone was going. I think I know.

Is it our understanding, then, that when a breach occurs, that although the mechanisms are in place to enforce the order with very severe sanctions—I would assume that like here, there can be imprisonment or fines—in practice the courts don't do that?

Prof. Reg Graycar: I couldn't give you the statistics, but my understanding would be that it's not a question that they would never do that. They would probably try to find an alternative.

Mr. Peter Mancini: Is that the subject of any ongoing study or statistics?

• 1220

Prof. Reg Graycar: There may be some actual statistical information in this penalties paper, and I could certainly arrange to send it to you. It just came out before I left, and I had a quick look at it.

The argument is always “If this is the primary caregiver, what are you going to do if you put her in jail?” Unfortunately, this is one of those situations that is very difficult. You can make orders about the payment or non-payment of child support more easily than you can about— Particularly, for example, if it were a mother who had a genuine but mistaken belief that the child was going to be harmed, she thinks she's acting in the child's best interest in refusing contact. How much in the best interests of the child would it be to put them in jail? I think that's the impression of some of the judges, that this is one of those horrible, too hard situations.

That's not to say that we don't have the law requiring—

Mr. Peter Mancini: Okay. I'm going to move off in a different direction, if I can, on some of the information you've given us. You said there was some study as to whether or not the level of disputes declined.

Prof. Reg Graycar: Yes.

Mr. Peter Mancini: I think you indicated to us that in some jurisdictions it did, and in some jurisdictions it appeared not to; the conflict was still there.

Was there any kind of common characteristic in the jurisdictions where the disputes did not decline? Was there a different level of income, or a different geographic location? Was there any commonality among those jurisdictions where the changes didn't seem to work and the disputes remained high?

Prof. Reg Graycar: I don't think we have enough information at the moment to really comment on that. To the extent that people have told us that the level of disputes has stayed the same or increased, that's very anecdotal, and this is precisely because we are trying to track the other 95%.

In a year or two we'll be in a very good position to count the number of cases that go to court and compare them with the pre-reform situation, but one can only speculate whether that would tell us very much.

Mr. Peter Mancini: A little later, I think there was some indication that not all the disputes end up being played out in the courts.

Prof. Reg Graycar: Oh, yes.

Mr. Peter Mancini: What's the waiting time to get into court? Is that a factor that comes into consideration there?

Prof. Reg Graycar: It may well be. Once again, depending on the registry in different places around the country, the waiting times can be very long. This is why I did mention earlier that there is some apparent difference in practice between interim and final orders being made, and probably precisely for that reason, because interim determinations in a jurisdiction with a very long waiting period could profoundly influence the outcome of a final decision because of the status quo provision.

Mr. Peter Mancini: In terms of the cases that did get played out in the courts, was there a greater percentage of legal aid cases or private cases?

There was some indication of the high fees that some people spend on lawyers. If in fact those cases don't end up in the courts, I wonder if you can tell me where there was a lack of legal resources, perhaps. Did those cases end up being played out in the courts more than cases where there was legal counsel?

Prof. Reg Graycar: We haven't looked at that in any detail, though actually that's something we probably will look at.

I would imagine not. It's very hard to tell, and there are a lot of guidelines that say legal aid is not available for this particular type of case or that particular type of case.

I think in one jurisdiction we've been told legal aid was not available to contest contact. I've actually queried that, and I want to go and check that out in terms of that jurisdiction's guidelines, because that seemed very categorical. If that's the case, then certain sorts of cases just won't be going to the courts, or certainly not by the bulk of people, who can't afford to litigate.

Mr. Peter Mancini: Thank you. I have one final question, which has to do with the grandparents issue.

• 1225

You indicated that essentially the main legal standing hasn't changed, although there have been some expressed provisions for grandparents. Has that resulted in an increase in the number of grandparents seeking access and an increase in the awarding of access to grandparents? Has it increased litigation as well?

Prof. Reg Graycar: Again, I don't have any particular information on that, but it's something we would want to look at at the end of our three years.

In terms of the non-litigated cases, I'm not sure how we would really study that, other than once again asking the lawyers we see about their own experiences.

Mr. Peter Mancini: Okay, thank you very much. It's been informative.

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

Senator Anne Cools: Thank you very much, Mr. Chairman.

I'd like to welcome the professor to Canada and say that I found her so articulate and well spoken that it's been a pleasure to listen to her. Her grace with the language is commendable. It's been lovely just listening to you.

My question has to do with a concern of mine, and concerns that have been raised repeatedly over the years, over the fact that here in this country many proceedings and motions within family court proceedings are not recorded. There are no transcripts. There have been moments on this committee when some have believed it's just meetings in chambers, but apparently this is a problem in this country.

I'm just curious as to whether the situation in Australia is the same as ours. What is the situation in Australia with respect to the recording and the making of transcripts of these kinds of proceedings?

Prof. Reg Graycar: There is a distinction between the recording and the making of transcripts. This gets played out in the context of appeals.

One of the great barriers to appealing a decision of the family court, in terms of cost, is that the parties who want to appeal have to pay for the cost of transcription. I can't tell you the exact per-page cost, but it is expensive. In other words, the proceedings are recorded, but they will only be written up if somebody requests the transcript. To do that they have to pay. I don't know the exact amount, but I know it's a matter of great concern to people who want to appeal.

Senator Anne Cools: I thank you for that. I'd just like to note that we have that problem here as well. The recording is made and the transcripts are available, but it's extremely expensive. I'm especially interested in this where no recording is made whatsoever. Do you have that problem in Australia, or are all your proceedings recorded?

Prof. Reg Graycar: In the judge's chambers—is that it?

Senator Anne Cools: No. We have many motions and different proceedings for which there is no recording at all.

Prof. Reg Graycar: I cannot say for sure what the situation is, but I would imagine anything that takes place in the court, and certainly in a judge's court, would be recorded. The duty lists would be recorded, but I don't know about conferences, for example, with the registrars or whatever—but they're not determinative themselves.

Senator Anne Cools: We had one lawyer who recommended on one occasion that if one has to choose between going into court with a lawyer and a tape recorder, to choose the tape recorder, which is fair. I think the example he uses is a dramatic one, and I appreciate the metaphor, but apparently there is a substantial problem in this country with the lack of recording of proceedings.

Thank you very much.

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

Ms. Carolyn Bennett (St. Paul's, Lib.): First, is primary dispute resolution the language used throughout, and not just in family law?

Prof. Reg Graycar: No, it certainly isn't. I think we still tend to talk about alternative dispute resolution.

I have a colleague at my law school who has a chair in dispute resolution, and she tries not to use the word “alternative”. It was considered a very strategic use of language to call it primary dispute resolution in the Family Law Act to get the message across, but it was not an alternative.

• 1230

Ms. Carolyn Bennett: Are there any rules as to who can participate? In situations of violence, are they able to participate in primary dispute resolution?

Prof. Reg Graycar: We have guidelines. We have practice directions and rules that deal with those situations. I have a copy of some parts of the act here, but not others.

In terms of mediation, I know the family law rules specifically have provisions that are designed to screen for cases involving violence. The assumption is that they're not appropriately suited to mediation because mediation generally involves equal bargaining power.

I think it was in early 1993 that the chief justice of the family court issued a practice direction for processes that court staff, including counsellors, registrars, and so on, should use in cases involving violence. It gave people a choice of not being interviewed together, separate waiting areas, and that kind of thing. But certainly as far as the formal family law rules go, I'm only aware of that provision in relation to mediation.

There has been a study in Australia too, and I could possibly send you the results of that. It was funded by a federal department, legal aid and family services. It examined the practices of all of the private dispute resolution bodies, such as the private counselling bodies, marriage guidance and so on, and their practices in relation to cases involving violence.

Ms. Carolyn Bennett: In the primary dispute resolution, what are the credentials of the people who do that? Is there an accreditation process, and who pays?

Prof. Reg Graycar: I think the answer is the user increasingly pays, and I think increasingly that's the philosophy of most things that are going on in Australia.

The part that deals with primary dispute resolution provides for the approval of counselling organizations and mediation organizations, and the funding of them as well. There has been a separate process of looking at setting up accreditation processes for the staff who work in them. I am not entirely sure where that is at the moment. It's something that's being looked at by a body called the Alternative Dispute Resolution Advisory Council, and they've been looking at accreditation standards. I don't think they are dealt with in the legislation, but I might be wrong on that. I haven't kept up with that particular issue.

There has been some concern about the possibility of different standards and different services being available inside the court and in the approved community agencies, but certainly the agencies themselves have to be approved to carry out these functions under the act.

Ms. Carolyn Bennett: In the 5% that go to court, we've heard from other witnesses that you have something called a master judge. Are the people who hear these cases particularly knowledgeable? Obviously, if they're only seeing 5% they're seeing the tough ones. What is the judicial education or specialization and follow-up for these?

Prof. Reg Graycar: That's an interesting question. I don't have with me the section of the act that describes the characteristics of someone to be appointed, but I think it's something incredibly vague, like a person suitable for dealing with family law disputes. It doesn't say terribly much about specialization or training.

I think you'll find that's the general situation in Australia. Some judges come to the jurisdiction with many years of experience in family law practice, while others come with no experience at all. The court itself has quite an extensive ongoing education process. I know they have at least annual judges' meetings and they usually run seminars on changes, bring in outside speakers and so on. I've participated in some of the court's education programs that have involved judges, counsellors, and registrars—a wide range of court staff. So there's some degree of ongoing education, if you like.

• 1235

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

Senator Cohen.

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

How do you address the issue of second families in Australia? We've heard from many witnesses who are in second-family situations now about how difficult it is for them financially to look after the first family; their second family is neglected. I think it's an area of concern that we're hearing more about.

Prof. Reg Graycar: Yes. This is in the context of child support, you mean.

Senator Erminie Cohen: Yes.

Prof. Reg Graycar: Obviously that is a concern that's expressed. But the policy concern is that people are still the children of these parents and they cannot stop being the children of these parents simply because the parents have other children.

My understanding is—but I'm not clear on the details of this—that these new amendments to the child-support scheme that are proposed for later this year take into account the second-family children, if there any, in recalculating the formula, but I couldn't tell you the details of that.

It's certainly a concern, but as I say, I think the government's response is that they're all children of this parent and they all need to be supported. The first children can't be abandoned simply because of the second family, so there needs to be some way to deal with that.

Senator Erminie Cohen: Thank you.

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

Senator Pépin.

Senator Lucie Pépin (Montreal, Lib.): I will ask you to use your translation device, because my main language is French and I can hardly speak judiciaire in English.

[Translation]

You told us that fathers do not spend any more time with their children now than before. What would have been the percentage of fathers who had obtained custody or who had asked for custody before changes were made to the legislation?

[English]

Prof. Reg Graycar: I suppose there are two very separate issues.

One is who has primary care of their children and who has an order from a court in relation to custody. In Australia, our research shows that contested cases in court have a quite high rate of orders of custody in favour of fathers. I have a study with me that's looked at two different periods and found that over this 10-year period the sole custody right for fathers in disputed cases is something like 30%, and then with shared custody and other arrangements or split arrangements that comes up.

But in the non-disputed cases, I think you find that generally mothers are responsible for the care of children—more than that 70%. In other words, the fathers have a different outcome in contested cases, but of course the contested cases are very different situations too.

[Translation]

Senator Lucie Pépin: But you told us that fathers do not spend more time with their children than before the changes.

• 1240

[English]

Prof. Reg Graycar: That is the parent who isn't the primary caregiver.

I'm talking about the change in contact and whether or not the provisions in the objects clause would actually change the way contact works or increase the sharing of parenting. The situations where the fathers are themselves the primary caregivers are different from the more normal cases we're looking at and the question of whether or not there's been an increase in contact time.

[Translation]

Senator Lucie Pépin: You said that the study was started in 1996 in order to establish the effectiveness of the new legislation. Do you have the feeling that the aim of the changes has been reached, that is to say that the rights and interests of children are better respected and that, because of that, they can go through the divorce more easily than before?

[English]

Prof. Reg Graycar: I think that's one of the questions that we really don't know the answer to yet. Quite independently of these changes, we've had quite a lot of work being done by bodies like the Family Law Council, and also by one of the family court registries, on how best to involve children in the proceedings, if at all, and how to make the situation the least traumatic for them.

I think one of the tensions that always comes up is the relationship between the child and the child's rights or interests and those of the custodial parent in particular, the resident parent who is spending most of the time with them.

There's a certain artificiality in separating those out and I think that's something that was addressed quite clearly by the full court in that decision, B and B, last year, the relocation case. Because even though you have parts of the act that talk about the child's rights and the child's interests, there is an extent to which that can't be considered in isolation from the broader context in which the child lives.

The Joint Chair (Mr. Roger Gallaway): Do you have more questions, Senator?

Senator Lucie Pépin: Yes.

Mrs. Sheila Finestone: Could that be tabled, Mr. Chairman?

Professor, I wonder if you would be good enough to share the case and the decision.

Prof. Reg Graycar: The decision in B and B? Absolutely.

Mrs. Sheila Finestone: Thank you.

[Translation]

Senator Lucie Pépin: When the legislation was changed, did you consider setting up education programs for parents and children? Would it not be possible to find some way to educate the parents so that they would know what to expect if they decide to divorce, and that children would also know what to expect from their parents? Did you consider that?

[English]

Prof. Reg Graycar: There are two separate responses.

First of all, one of the advantages of the family court being a specialist court is that a certain part of its resources have been devoted to public information, to producing documents. I have given the chair some documents that have been put out by the family court. They explain separation to children, what to expect and so on, and they court also has information days for parents about to embark upon this. That's been the situation since 1976.

Senator Lucie Pépin: Mandatory?

Prof. Reg Graycar: I don't think it is mandatory. I'm not sure. I have heard talk of that changing.

But the second thing is that in relation to the amended legislation, the reform act, it was passed in November 1995 and deliberately not brought into effect until June 1996, in order that there be a community education program. There were videos made. There were public meetings. There were advertisements in the newspaper. There was an extensive education campaign run by the Department of the Attorney General and also by some family law practitioners, the family court, the law society, and so on.

And when we started our research, one of the first comments made to us by some of the people who work in the system was “What a pity there was no education campaign.” So we're quite interested in knowing how big an education campaign you would have to run before people noticed that there was one.

Voices: Oh, oh.

Prof. Reg Graycar: I thought that said quite a lot to us.

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

Senator Mabel M. DeWare (Moncton, PC): Thank you.

• 1245

I would like to apologize you, professor, for being late. I had another committee I had to attend. I welcome you here. I know you're going to have the Olympic Summer Games in your country soon.

When I first came in you made an expression about people on the lower level of income who were not required to pay support. Could you tell us what level that would be? Have you any idea?

Prof. Reg Graycar: I don't have those guidelines with me. The last time I looked— Probably the easiest way to pitch that level would be a person on social security or welfare payments. It would be an obvious assumption that that person wouldn't pay.

One of the proposed changes that I've seen in these new draft guidelines is that everybody will pay say $5 a week as a symbolic exercise. But certainly in the last 10 years of the child support scheme that started in 1987, below a certain income anyone on state support would not pay child support.

Senator Mabel DeWare: Does custody and access come under your Divorce Act in Australia, or is it a separate act?

Prof. Reg Graycar: It's all part of what's called the Family Law Act. It is a federal law, because the federal Constitution gives the federal Parliament power to make laws with respect to marriage and divorce and custody of children, where that's related.

What happened is that also in 1987, at the same time as the child support scheme started, most of the states agreed to defer to the federal government their powers over children in cases where the parents weren't married, the ex-nuptial children. So since 1987 we have pretty much a national regime in respect to children's custody and access, residence, contact, etc., but a more selected scheme in respect to parents' property. Obviously divorce is only available for people who are married.

Senator Mabel DeWare: Thank you very much.

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

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

I find it very interesting that in a federation we've seen upward delegation, where provinces were giving their historical jurisdiction back to the federal government. That might be something for us to consider, because when we look at our problems here every province has some type of family relations act. British Columbia has had one since 1974-75. It was quite progressive at the time. It has historically arisen out of the provincial jurisdiction for social welfare and looking after children who are homeless and so on.

I wanted to get at the issue of the non-court assistance for conflict resolution for parents and children. We have talked at this committee about what we call education modules for parents before any court process, as distinct from say mandatory mediation, or even escalating to arbitration that, I suppose upon appeal, could escalate into a court trial if needed. I'm wondering if your regime does lay out some type of successive hurdle approach of escalation with even perhaps mandatory levels.

We've heard testimony here that in some jurisdictions locally in the provinces they have been requiring conflicted parents to complete at least an education module and show that certificate. Otherwise, they're not going to get a court application.

Now, we've certainly heard testimony that mediation per se cannot be mandated, because that has so much to do with the willingness of the parties to have a stake in the proceedings. But that's quite distinct from an upfront education module, which can, as part of it, be a sales pitch for the advisability of mediating and taking ownership over resolving the situation rather than just being litigants in a court setting.

I want you to perhaps describe your discussions around that. Do you have some experience with the mandatory aspect of these things?

• 1250

Prof. Reg Graycar: I think it's almost always the practice that when there are disputes involving children, court counsellors are involved. In terms of the exhortations of parents to settle without litigating, I think simply the relatively small number that end up in court is some testament to the general effectiveness of that.

One of the things we've been told recently is that there are some contexts in which mediation is in effect mandatory, and that is conditions imposed by legal aid granting bodies as a condition to granting legal aid. In other words, go and mediate, and only if you can't resolve it in that way will we consider legal aid. I don't know if that's still the situation, because this was happening before the really, really big cuts. This is when we thought there were big cuts, but they've become even more dramatic.

I think the family court itself has processes that are designed at every part of its procedures to encourage settlement. That is what's distinctive about it as a court and as a specialist court, that it's designed, in a sense, to facilitate those kinds of settlements. It has the registrar's conferences for property, the counsellors are heavily involved in the children's disputes, and then, as I said, in addition they have their mediation section.

Without having the kind of process that you described, I think in other ways it has always been very geared to primary dispute resolution.

Mr. Paul Forseth: A number of your responses have talked about how you're looking at how things are working out but maybe it's too early to tell. I'm wondering if you have any hints at all, looking at your jurisdiction, about unfinished business, work that needs to be done to fine-tune the system so that the law really can facilitate services being brought to bear on conflicting parents. Are there any early indications of further fine-tuning?

Prof. Reg Graycar: I think it's unlikely that there'll be any major legislative changes in the short term. These are the first big changes in relation to the children's provisions since the act came into effect, apart from the child support scheme and the referral of powers. But they didn't really change the way in which custody and access was dealt with.

One of the things that's interesting is the cultural differences, if you like. It's often suggested—and I think this might be the case here—that our law is similar to the English law and therefore it's being interpreted in the same way. I think that in fact they're being interpreted quite differently, and that one of the reasons for that—the only one I can really think of—is the specialist nature of the court and its experience leading to perhaps less dramatic change in the way children's issues are dealt with.

There are a couple of things published, which I'll leave with the committee, that look at the legal distinctions between the English and the Australian law. But I think that what we're probably going to find is quite a lot of differences in practice as well as in law.

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

Mr. Paul Forseth: Okay.

You're referring to England, but England is going into a whole new regime as well.

Prof. Reg Graycar: It did so quite a bit earlier. One of the things we noted when we first were looking at this and when we first wrote about it was not only was there no particular reform background in England other than an exhortation that this would increase sharing of parenting, but also that there hadn't been any evaluations done. Yet in Australia, certainly the council I was on was asked to look at the implementation of the children's act, the English act, in Australia. Our concern as researchers was that no research had really been done on the outcome of those changes, so it was pretty important that we research our own.

Mr. Paul Forseth: What I'm trying to get at is you've been saying in many different ways that although the law has changed, it may not really change human nature and just the way people live, but, in summary, it would have been worth while to do that anyway, that regardless of the evidence you're looking at, sociologically or whatever, it just was the thing to do.

• 1255

Prof. Reg Graycar: I'm not so sure that's my concluded view, and I'd want to wait until we'd finished this project to say it was worth while.

I think I agree with the judge who wrote that there really has been no actual change in the law as such, that there has been a change in the legislation but the underlying basic provisions haven't changed all that much, and that what we're seeing is more a change in emphasis, exhortation, stated aims and intentions. I think, again, it's too early to tell, in terms of the development of the court's jurisprudence, how they're going to interpret the provisions, but his analysis is that despite quite a lot of different words used, fundamentally there hasn't been much change. Yet, as I think I've said before, in terms of community discussion, people see it as very different.

So we're interested in that link between changing law and changing community expectations and whether you can actually change people's parenting practices by doing either, either by changing the law or by creating a kind of climate of expectation. So that's the main aim of our research project.

Mr. Paul Forseth: That's very interesting. Thank you very much.

Prof. Reg Graycar: Thank you.

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

[Translation]

Ms. St-Hilaire.

Ms. Caroline St-Hilaire: First of all, I would like to thank our witness, who was extremely interesting. I would like to state that, contrary to my colleague, Mr. Forseth, I do not tend to refer this whole matter to the federal level. I come from Quebec and I tend to believe that Quebec might be interested in getting back those provincial responsibilities. That was my small aside.

In Quebec, there is compulsory mediation in separation cases, and we know that divorce is a federal matter. Do you think that compulsory mediation would be possible in cases of family violence?

[English]

Prof. Reg Graycar: Am I correct in thinking you asked me if it was possible that there would be compulsory mediation about family violence, or in cases where there is family violence?

[Translation]

Ms. Caroline St-Hilaire: No, I was rather asking if mediation, whether compulsory of not, could be considered in cases of family violence and could contribute to resolving those conflicts without necessarily going to court.

[English]

Prof. Reg Graycar: I think the fairly widely understood view in Australia is that mediation should not take place about any issue between people in cases where there has been violence, but we do have a set of guidelines on mediation in cases involving violence, which were drafted by a colleague of mine some years ago and are used fairly widely.

They say that while mediation is almost always inappropriate in cases involving violence, there's always the situation where a person wants to go to mediation, and it would be inappropriate to stop them from doing that if they make an informed consent. But the distinction is always drawn between mediating about the violence and mediating on other issues—for example, on what happens to the children in a context where there has been violence between the parents.

I don't think it has ever been considered acceptable that a way to resolve the issue of violence is to mediate about it, and I certainly know that would not be the practice in Australia.

[Translation]

Ms. Caroline St-Hilaire: A final brief question, even though it may be too early to know the answer. One of your major changes was related to the language of the act. We are studying the same matter. Do you think that changing the language can lead to a reduction of the disputes and, in that way, protect the children's interests?

[English]

Prof. Reg Graycar: This is the $64,000 question. If you go back to some of the very early proposals for changing the language, I think the argument has always been that the language of custody creates a win-lose environment. Certainly one of the reports that the Family Law Council made, called “Patterns of Parenting After Separation”, expressed the concern that a lot of non-custodial parents, as they then were, did not continue to maintain a relationship with their children because they felt excluded by that language. So some of the concern expressed was to keep them more involved, rather than give them more rights, because I think there was a very high proportion of children who weren't seeing their other parent at all. That was one of the reasons to try to move away from that.

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Earlier we talked about enforcement of access or contact, but one of the concerns that's often raised is that there is no enforcement to make a parent exercise their contact. One of the guiding principles was to try to find a way to make the parents who weren't living with the child want to maintain that relationship. That was seen as one aspect of changing the terminology.

Has it made a difference? We can't say at this stage. But from what we're told, it looks like perhaps not. Many residence orders are being made, which are different from the old custody and access, yet one parent is only spending those short amounts of time. I think it's a bit too early to tell.

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

Mr. Paul Szabo (Mississauga South, Lib.): Thank you, Mr. Chairman.

I was interested in the enforcement of access orders. I am aware that in the U.S. State of Illinois they have a new law called unlawful visitation interference. It is described as “detaining or concealing a child with the intent of depriving another person of his or her rights to visitation”. The first offence would be a petty offence. After two convictions it would go to misdemeanour in which the fine could be increased and incarceration could even be ordered.

It's interesting, because the objectives that you articulated at the beginning of your presentation I think are very consistent with those of this committee in terms of being child-centred and stressing the importance of the joint parenting responsibilities and all of those aspects. I was very interested by the fact that it sounds like you stopped—that you were prepared to put a law in but were not prepared to enforce it. This must have caused somebody some grief as you did your consultations in developing the legislation. Why did it really stop?

Prof. Reg Graycar: I don't think anything stopped; I think that part of the legislation hasn't really changed at all. It is always unlawful to violate a court order. I think that statistically you will find that the people who seek enforcement of orders of the family court tend to be more the contact parent in relation to access than say the woman who has had a property order that isn't enforceable where the guy moves money around or whatever. This is something I came across in my reading last week: there are a number of submissions made about unenforceable property orders and the fact that people are much less likely to seek enforcement.

There is no doubt that people are sent to jail in appropriate cases, but what I'm saying is that is not an automatic response of courts, despite the fact that the letter of the law says it is an offence, because there are these other factors to take into account. We're talking about children's best interests, and despite the fact that the child has a section 60(b) right to contact both parents, the court may consider that it's not in the best interests of the child to jail one of the parents. I'm just saying that it's much harder than looking at a whole lot of other obvious penalty provisions and their enforcement in a situation like this.

Mr. Paul Szabo: I'm sure that you went through a comprehensive process, and I know what this committee has experienced. There are those who are talking about a more clinical or social approach to the issues at hand. But interestingly enough, it has brought out a whole other subject, and that is the broader subject of domestic or family violence and the pitting of men against women.

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I want to ask you if that was the case you experienced in Australia as these discussions on custody and access were dealt with. An addendum to that question would be has Australia ever done a comprehensive survey or research of family violence in your country, and do you know what the general results were?

Prof. Reg Graycar: I have a number of comments.

First of all, I think it overstates the case to say there were extensive consultations preceding this legislation. As I think some of the articles I'm going to leave with the committee make clear, there is no clear reform trajectory at all. There were various different sorts of expressions of dissatisfaction, but not a specific process of inquiry into these issues.

In fact our large parliamentary inquiry into family law recommended pretty much that the children's provisions stay the same, and it was the Attorney General who subsequently asked the Family Law Council to report on the “implementation of the Children Act into Australia,” the English act, and the idea was that it seemed to be accepted that changing the language was a good idea. I think that's quite interesting.

In the context of the hearings on other issues, obviously there are a lot of concerns addressed by people about the way it works.

The concern about violence and its relevance to children developed quite independently, as part of the family court's jurisprudence over the last five years, and there was increasingly case law accepting some of the social science findings that it was not in children's best interests to be in a situation of conflict. I think previously the law had been, well, as long as he isn't bashing the kid, what happens between the parents is separate. I think that view was less accepted by the court prior to these amendments. One view is that these amendments really only state what law had developed, although the other view is that there's now that tension between the objects and principals in violence.

On the question of statistical information on violence, in 1996 there was a national women's safety survey undertaken using, I think, the methodology of the Canadian study, which was the first wide population study. I can't tell you the exact figures, but I could certainly send them to the committee. My recollection is that they were pretty similar to the Canadian study; that is, that something like—I might be wrong—25% of people had experienced violence in their relationships. I didn't bring that data with me, and I wouldn't like to rely on it until I get back and have a look, but I'm happy to send the summary of that study to the committee.

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

The last very short question is from Mrs. Finestone.

Mrs. Sheila Finestone: Thank you.

You had underscored the fact that it's called “primary dispute resolution procedure”. Do I understand that these words are used to indicate an obligation towards a dispute resolution, and if so, do other stages, which would include a final arbitration?

Prof. Reg Graycar: I think the use of the terminology is to indicate that 95% of cases are dealt with without a judicial determination. Therefore it's misleading to suggest that those forms of dispute resolution are alternative, because they've always been traditionally viewed as alternative to litigation. The point they were trying to make is that litigation is the alternative for the 5% who can't settle.

Mrs. Sheila Finestone: There isn't that arbitration, so it doesn't go mediation, arbitration, litigation.

Prof. Reg Graycar: No. Mediation and counselling are the two main forms of primary dispute resolution used in family law.

Mrs. Sheila Finestone: Okay.

Mr. Chairman, to close off, I thought it would be of interest to our guest to share with her the Tuesday, June 2, release by Statistics Canada on the major national longitudinal study on children and youth, and the changes in family environment that indicate the changes in the structure of the family, the percentage of divorces, and the differences between common-law and married. It would be very important for this committee also to get a copy. It's a very good study. I'm glad that my colleague Paul brought it in.

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Thank you very much.

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

Professor Graycar, I—

Mr. Philip Mayfield: May I ask just a brief question, please?

The Joint Chair (Mr. Roger Gallaway): You can ask one brief one. We're over our time. I recognize that we did start late, but I know that a number of people have other meetings to attend at this point. So you can have one quick one.

Mr. Philip Mayfield: I was wondering if you would comment briefly on the accreditation procedures of the non-court dispute resolution personnel.

Prof. Reg Graycar: I think I mentioned that I'm not clear on what's formally required at the moment. That's something that has been developed by our National Alternative Dispute Resolution Advisory Council. I know their first brief was to come up with accreditation processes.

The Joint Chair (Mr. Roger Gallaway): Thank you very much. I want to thank you once again.

Prof. Reg Graycar: Thank you.

The Joint Chair (Mr. Roger Gallaway): This has been extremely informative for us. We've been waiting for this kind of information. As you may know, we're coming to the end of our session here in terms of hearing from witnesses, and we're pleased that we have heard from you. I know from the number of people who wanted to ask questions that it was very helpful.

Prof. Reg Graycar: Thank you for the opportunity.

The Joint Chair (Mr. Roger Gallaway): We will meet again on Monday at 3:30 p.m.

The meeting is adjourned.