SJCA Committee Meeting

SPECIAL JOINT COMMITTEE ON THE CHILD CUSTODY AND ACCESS

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

EVIDENCE

[Recorded by Electronic Apparatus]

Monday, June 8, 1998

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[English]

The Joint Chair (Mr. Roger Gallaway (Sarnia—Lambton, Lib.)): I wonder if we could start and ask Ms. Morreau to come to the table, please.

I will make the public service announcement that this is meeting number 36 of this joint committee of the Senate and the House of Commons studying custody and access under the Divorce Act.

In case, Ms. Morreau, you're wondering why I said that, it's because this is being televised.

I assume you know that the procedure in here is that we are allotted one half-hour, and we would therefore ask that you keep your remarks within the five-minute range or thereabouts. Then that's followed by a period of questions. So if you want to begin now, we would appreciate that.

[Translation]

Ms. Louise Morreau (Individual Presentation): Thank you very much.

I tried to prepare a brief 5- to 10-minute presentation on recommendations pertaining to child custody.

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Today I'd like to talk to you about the idea of setting up an education program for parents and the children of parents who are in the process of divorcing or separating. This education program is based on one offered in the United States, because nearly every state offers such a program, and to this I have added a few personal touches. Without further ado, I'd like to describe the program.

This is an education program for families that will facilitate the transition between their current household organization and the life they will have following the divorce or separation. You have a united family, a father, a mother and children living in the same house. After the separation or divorce, there are two households, everything is divided in half and the child feels lost, and especially, very disturbed.

I will also, therefore, be talking about educating the children. Obviously, for children, there has to be an age limit. We often talk about children aged 8 to 16, when they reach the age of majority under the Divorce Act.

The first objective would be to acknowledge that a divorce causes both the parents and the children to experience extremely difficult and intense emotions. Acknowledging that this happens results in a big change in everyone's attitude. It also helps to identify the needs of the children during the course of the divorce.

We talk a great deal about the needs of the parents, namely, finding representation, finding out about their rights, etc., but at that point, I think the focus should be on the needs of the children in a divorce.

Thirdly, we must acknowledge the impact that the parents' attitude will have on the children both in the short and in the long term. I will discuss this in greater depth when I talk about the goals. Psychologists, lawyers and even judges who meet the children—intervenors at every level—agree that the attitude of the parents determines, to a large extent, the attitude of the children. The degree to which the children are upset depends a great deal on the parents' attitude.

Fourthly, we must analyse the basis for the conflict and try to discuss the matter with them during the course.

Finally, we must talk to the parents about their own children and their needs aside from the financial ones. We know that the law now addresses their financial needs, because we have scales that are very easy to follow, but we must also talk about the children's other needs.

This education program intended for both parents and children has the following goals.

First of all, we try to get the parents to understand that it is normal to go through a whole range of emotions that at times can be very nasty. In addition to anger, there can be bitterness, resentment, fear and so on and so forth. We must get parents to realize that it is normal to be feeling all of these emotions.

Another goal is to get the parents to see the divorce from the children's point of view. Time and time again it has been shown—and I'm surely not the first to tell you this—that most children think the divorce is their fault. It's easy to understand this when you think about it a bit. The children have often seen their parents arguing, often about them. The children may imagine that when they are not there, the parents don't fight and therefore the divorce is their fault. It's important to make parents realize this since the majority of them don't even think about this aspect.

Secondly, the children are also going through a great deal of change. There is the possibility of a move. Changing schools, changing friends. Also, there is the family, the family of the other parent, the uncles, the aunts, the grandparents that the children will be seeing less often. The children have to deal with all of these changes at the same time.

The third goal that I would suggest is that the parents be better prepared and emotionally available to answer their children's questions. For instance, through this course, we can show them how to communicate with the children, tell them how the children need to be reassured, and even give them some techniques: first of all, you listen and then, you verbalize. We give them a process to follow.

Fourthly, it is very important—in my opinion, this is one of the most important points—that the parents understand that certain attitudes can damage their children for life. Everyone knows that a divorce is not easy. It's very, very difficult and it affects you for a long time. Parents often argue in front of the children. You know how emotions are pretty raw during a divorce and you know the impact of these arguments on the children. If we were to explain this to the parents, I'm sure that we could alleviate this problem considerably.

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Parents who have new spouses should not introduce them too soon to the children. Obviously, everything that I'm saying must be weighed against the age of the children and other factors. I'm trying to give you the broad cut and thrust of the program.

One parent must avoid criticising the other parent. I'm sure we have all experienced this repeatedly with people we know who have divorced or separated. This can have a lifelong impact on the children.

It is important that non-custodial parents pick up their children on time. We could have a video showing a child sitting on top of his suitcase waiting for the father who has not finished his bowling game. The child views this as rejection. If we were to show this film to fathers, I think that they would try not to be late. The same thing applies to bringing the children back to the house on time. If the children are brought back to the house at 7 o'clock and the evening meal is served at 6:30, the mother is angry because the child has come home too late, because dinner is cold. It would be easy to avoid such negative emotions if parents were properly educated.

Often, parents use their children as informants: "Tell me what your father did on the week-end, who he was with." The child feels as though he has betrayed the other parent when he does that. It think that the parents should avoid doing this.

Finally, parents often give their children responsibilities that are too heavy for them. For instance, a mother says: "Now that your father has left, you're the man". The man is seven years old. This can be too much for the child. Some parents say: "I don't know what I would do without you. With everything I'm going through, it's good that you're there." This is too much for the children. It would be good to teach parents about the impact of such remarks on their children.

The fifth goal would be to help parents develop active listening skills. We have to teach them how to do this and bring them to a point where they are finding solutions themselves.

The sixth goal would be to get the parents to understand the needs and the rights of the children, but we must also make them understand how the other parent may be feeling. We don't always think about this because we are absorbed with our own pain when we are divorcing or separating. If we are the parent who was "left", we must understand that the husband may be experiencing such and such a thing. So we must show parents the flip side of the coin.

Finally, we must point out that each parent has an obligation to contribute to the financial well-being of the children when they each have an income. When this is not the case, the parent who has an income has an obligation to contribute to the needs of the other spouse, at least for a certain period of time.

There are many questions about this issue. The way I see this happening is as follows: automatically, when someone divorces or begins divorce proceedings in court, he or she will be obliged to take this course. I don't think that a court should hear the divorce case until it has been demonstrated that the parents and the children, if they are from 8 to 16 years of age, have participated in this course.

How many hours should this course take, and how many sessions should there be? Apparently, it has been shown that the fewer the sessions, the more people we attract. A four-hour session attracts a lot more people than two two-hour sessions. We have to get the people there, but they also have to listen. The course could include role playing, videos, technical information, presentations.

Should we charge for this course? Yes, certainly, but no more than 45 or $50. People who are unable to pay would simply have to fill out an affidavit or a proof of dependency. I think that there should be a minimum charge of 2 or $5, which would empower the people. People would say: "I paid and I'm going to get the information."

Should the parents go there together or alone? This program is offered in 43 states of the United States. In nine of these states, these courses are mandatory. Parents have no choice. Is it a good idea to go to the course together? I don't know because I'm not a psychologist. I'm not the one who can answer that question. I just wanted to raise it, in passing.

What type of educators should be giving the course? We should certainly have experts, psychologists who know how to deal with people. We should also have present at each session or course, someone familiar with the law, someone who knows both divorce law and laws pertaining to children, to explain the legal requirements. We should have at least one person from each profession. We should also ensure that there is at least one woman and one man so that people feel that they are being listened to and understood.

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That is abroad outline of the program that I would like to recommend to you. In my firm, I am a small-time lawyer. I do family law exclusively. By the way, I am very impressed to be sitting here with you. I can tell you that I rarely see cruel people in my office. However, these people, as parents, often have reactions that will mark their children for life.

Let's take the example of a mother. If we were to tell this mother that she shouldn't tell her son Frederic that he is now a little man because he will feel overburdened, and if we were to show her a video about the effects that can have, I am sure that this individual would no longer do this. She's not doing this to be mean or to be destructive, but because she is going through a very, very difficult time in her life.

Most people are good, but when they are going through something difficult like a divorce, we must recognize that we have to make changes, not only for the parents but especially for the children. They are the society of tomorrow. This is the recommendation that I would humbly make to this committee.

The Joint Chair (Mr. Roger Gallaway): Thank you. I know that there will be some questions. We will begin with Mr. Forseth.

[English]

Mr. Paul Forseth (New Westminster—Coquitlam—Burnaby, Ref.): Thank you very much for coming to committee today.

I note that clearly you're advocating an education program rather than mediation per se, but I'd like you to describe it in a little bit more detail. I'll give you a number of questions you could answer. Specifically, what program from the United States is the one you're recommending modelled on, how many hours is it, and who pays?

In addition to that, what incentives do you envision to encourage most litigants to actually participate in the program? I thought I heard you say something about a mandatory hurdle, that they would have to complete this program in order to progress further.

I've given you a number of questions, and I'd like you to answer them, especially if you've thought about how we would implement this specifically under the Divorce Act proceedings. There are a number of ways we could go on this.

So I'd like some of the background of where it comes from and some of the parameters around it. Also, how do we get people to actually take it up? Are you talking about a mandatory regulation of some type?

Ms. Louise Morreau: Thank you. As far as I'm concerned, yes, sir, it should be mandatory. I do believe that if it weren't, unfortunately a lot of parents would not attend.

I have studied and read about a lot of these education programs that come from the States, but the one that attracted me the most was Massachusetts'—for different reasons, but that's the one that attracted me the most.

I see it this way. As soon as the divorce is filed in court, within a certain amount of days—let's say, I don't know, within three weeks—you have to have filed somewhere to attend a program. When you do attend the program, how long would it be? I do believe that in under four hours you cannot do much. It would have to be done on evenings and weekends, obviously, because parents have to work, just like the rest of us.

And I do believe they have to pay for it. It would have to be a set fee for the majority of people, but of course we have to think also of people who cannot afford it. For those people who can't afford it, I would have to think a $5 minimum fee would be payable by every party concerned, just so you have a feeling of paying for something and then you go. I believe it's part of the responsibility to have the people go. So that's pay.

As for number of hours, it should be four hours. If we could do it in one session, it would be better, because it is hard to get people to come back. You come for two hours, and if for some reason what you have heard in the first two hours doesn't interest you—as we think, or I think, it would be interesting—then it's hard to get you to come back. So maybe the ideal would be a session of four hours in a row given by two educators.

I do believe that answers the majority of your questions. If I've forgotten some—

Mr. Paul Forseth: I'll just ask one supplemental. Often in conflicted couples, the first approach to the superior court that grants divorce is an application for an interim order to at least set some ground rules concerning how things will be in the interim, until the parties can negotiate further, either through their lawyers or whatever, the long separation agreement concerning division of assets and the will, and perhaps custody itself of the children is going to be drawn out, and there are issues where the parties are not agreeing. Maybe one party precipitously left and took the children or someone wants exclusive use of the matrimonial home. Often these matters are dealt with quickly in an interim order, and certainly we couldn't have an education program as a barrier to that.

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So I see you're recommending that perhaps this education program would come after interim proceedings. I'm wondering how mechanically we could put that into the law, rather than making perhaps just a broad recommendation to the provinces that within the administration of justice, under the rules, they do that rather than putting it in the legislation.

Mr. Louise Morreau: As far as the interim order goes, you're actually very much correct, because we do have to have them. Sometimes there's an emergency, it is too important, and we cannot wait.

Actually we do have that now in the province of Quebec, with the obligation to assist in an information session regarding mediation. If you do not have what I have come to call your passport, then the court is not going to hear you.

Well, I do believe it should be treated just exactly as this one is. If there is an emergency, you just go before the court and explain to the judge your emergency. You should be able to address yourself to the court in this matter, because there is an emergency, and then you go afterwards. Or what we have seen and are beginning to do more and more is that instead of waiting three weeks to go, we call some educating program in this case, or information session, as we have now, and say, “Could you please meet our people tomorrow?” It's done that way.

So there would be a choice.

Mr. Paul Forseth: Thank you very much.

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

Senator Pépin.

[Translation]

Senator Lucie Pépin (Shawinigan, Lib.): Welcome to our committee.

Ms. Morreau, you are a lawyer and you have been working in the field of family law for many years. You also represent fathers, which is interesting because we have heard many fathers. Often fathers tell us that the court does not appear to support them and that they know, at the outset, when they appear before the court, that the possibility of obtaining custody of their children is highly unlikely. They tell us that they are victims of discrimination from the outset. Given that you work in this field and that you very often help fathers, do you know the percentage of fathers who seek custody of their children? This is one of the complaints we hear most often, and several fathers have appeared before us and said that they want custody of their children but they know in advance that they will not get it.

Ms. Louise Morreau: It's unfortunate that we hear this comment, because people are taking it for granted that the Superior Court is biased. I do not share this opinion whatsoever. Quite the opposite, I think that the Divorce Act was designed to determine the best interest of the child and not to please either the father or the mother. This is what our superior courts are actually doing. They are hearing custody cases and trying to determine if it would be better for the child to live with the father or the mother.

In my practice—I work only in the field of matrimonial law—I represent slightly more men than women and I can assure you that the fathers who seek custody are on an equal footing with the women who seek custody—their chances of obtaining it are equal. It is true that at one time the mothers were awarded custody much more often, and even today, I'm sure that mothers are awarded custody of the children more often.

Twenty years ago, it was a question of availability, in my opinion. The father worked and the mother was at home all day. So who do you think would be given custody of the children? As an aside, I'd be curious to know how many men sought custody in those days. I mean no disrespect by that; they were the breadwinners, they had to go out to work.

In 1998, when both parties are working in most cases—I can tell you that few of the men I represent seek custody—those who do, however have a good chance of getting it or, if not, they have a good chance of obtaining shared custody.

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I'm not telling you that I win every case. I'm not trying to pull the wool over your eyes, but I do think that the court listens to both the men and the women. I would even say that I'm certain about this.

Senator Lucie Pépin: We also hear that fathers have a great deal of difficulty in obtaining access rights. It was recommended that we use the law to make the custodial parent understand that the other parent cannot be deprived of his or her access to the children.

Ms. Louise Morreau: You're talking about taking away the other parent's access right. Is that what you mean?

Senator Lucie Pépin: Visits. This is one of the things we often hear about. They're no longer able to see their children.

Ms. Louise Morreau: After the ruling, Madam Senator?

Senator Lucie Pépin: Yes, yes. Let's say that a father has been given the right to have access to the children every 15 days or on Wednesdays or Thursdays. Fathers have told us that they are experiencing a lot of problems and they're not able to ensure that those rulings are enforced. Some call the police who tell them: "Listen, we would prefer— we don't want to enforce it." Just last week, people told us that police didn't want to get involved. They're very reluctant.

Ms. Louise Morreau: That's true.

Senator Lucie Pépin: Why?

Ms. Louise Morreau: This is true, and I think it's a good idea. I can't see the police officer arriving in the family milieu. The little four-and-a-half year old girl would be sitting in the back, and the lights would be flashing on the police car. I don't think that this would be in the best interest of the child.

However, Madam Senator, the Divorce Act stipulates, in section 16(10), that this is one of the grounds. I'll give you an example.

When both the father and the mother have equal parenting skills, the judge must decide which of the two parents is the most prepared to facilitate the other parent's access right. Our courts and even the Supreme Court of Canada have on many occasions taken custody away from a custodial parent because he or she was preventing the non-custodial parent from exercising his or her rights. Section 16 states very clearly that there is recourse for such a situation, such as contempt of court. If this were my client, I would tell him that he would get a rap on the knuckles from the judge, because unless the case is very serious, these people are not sent to prison. Parents aren't gangsters, pardon the expression.

Senator Lucie Pépin: But it has been suggested that we go that far. We've been told that if access is denied, the custodial parent should go to prison. It would appear that these people are finding it very difficult to see their children.

Ms. Louise Morreau: I would respectfully submit that these people are not criminals. These are parents. This is not in the interest of the child.

Secondly, there is one case that springs to mind. Most of you have probably heard about the case of little Caroline Champagne. This case took place in my region, in the province of Quebec. Her mother took her and hid her and the judge sent Ms. Champagne to prison for several months. Every two months or every six weeks—I don't recall exactly and I don't have the case in front of me—the judge got her out of jail and asked: "Ms. Champagne, do you wish to tell us where your child is?" She said no and returned to prison. The judge told her: "You have the keys to your cell, Ms. Champagne. When you are prepared to tell us, you will be released." She finally did and she was released.

This, however, is the exception. In my humble opinion, it is not in the interest of the child to put the parent in prison. Some parents find excuses: there is a hockey tournament; he's taking lessons; he has an ear infection; he's not feeling very well, etc. Finally, after a few weeks of this, the child no longer feels like going to his father's house because he no longer has a life at his father's house. He just has his life in his mother's home.

I believe that section 16(10) of the Divorce Act is very clear about this, as is section 17. Section 16 deals with custody and section 17 deals with modifications. Madam Senator, our courts do not hesitate to take custody away from the custodial parent and give it to the other parent if there is evidence that the custodial parent is preventing the other parent from exercising his access rights.

Senator Lucie Pépin: However, as you said, this costs a lot of money.

Ms. Louise Morreau: This is very expensive. What do you want me to say? Unfortunately, lawyers have to earn a living just like everyone else, and we bill by the hour. If we work for 10 hours, that's the hourly rate multiplied by 10. If we work for a 100 hours, it's again multiplied by 10.

Senator Lucie Pépin: We hear about another aspect on a regular basis, namely, false allegations. Often the father, or perhaps the step father, is accused of having been violent or abusive with the child. Some fathers have told us: "We now find it difficult to have access to our children because our ex-spouses have accused us."

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What percentage of these allegations are true, and how can we help these people? They have also told us that they find it very difficult to disprove the accusations. How can we make this whole aspect easier so that this issue is spelled out very clearly for everyone?

Ms. Louise Morreau: I'm also vice-president of a Quebec group called Les Familialistes, whose members are lawyers who practise family law. I can tell you that mothers who make false allegations are a minority. If what you are telling me is true, then we are dealing with an entirely different problem. I can't say that there have never been any false allegations. This is something that is highly unfortunate, but it does happen.

This happened to one of my clients. He arrived in my office and told me: "I want to hire you because I want to seek custody of my daughter; I've just been accused, at the Youth Protection Office, of having sexually abused my daughter." At first I suggested that he go to Sainte-Anne-de-Beaupré, thinking that I could not perform this miracle, but after hearing what he had to say, I fought for custody of his child and we won in Superior Court. The decision was appealed and we won in the Appeal Court. This all pertains to what we refer to as the parental alienation syndrome. One parent does everything in his power so that the other parent— In my opinion, a false allegation of sexual abuse is the concrete result of the parental alienation syndrome.

A father who is accused of sexually assaulting his daughter will never see her again. That's what the other parent is striving to achieve. The parent doesn't want the child to see the other parent ever again. I'm happy to reassure you, Senator Pépin, that this does not happen every day, nor every week. These are the cases investigated by the director of the Youth Protection Branch. If the complaint is not upheld, good luck in Superior Court. So we're talking about a minority.

The Joint Chair (Mr. Roger Gallaway): Ms. Picard.

Ms. Pauline Picard (Drummond, BQ): Thank you, Ms. Morreau, and welcome to the committee.

As it was stated earlier, you have practised family law for more than 10 years. I would like to tell you that some witnesses who have appeared before this committee have singled out Quebec's Civil Code legal system as it applies in particular to divorcing couples and to common law spouses.

I would like you to talk to us a bit about how decisions made under Quebec's Civil Code empower parents when it comes to custody of the children.

Ms. Louise Morreau: First of all, the Divorce Act applies to every divorcing parent. It's not complicated. This act applies to all parents who are married and divorced. Parents who are married and who separate are governed by the Quebec Civil Code, as are common law parents. The Quebec Civil Code also governs child custody.

I must tell you that the regulations provided for under the Quebec Civil Code, in section 31 and especially in 32, 33, 34 and 35 stipulate that any decision made with respect to the child must be made bearing in mind his or her interest. Once again, the law is not there to please mommy or daddy. We are there to look at the needs of the children. This is the only evidence that the court seeks to establish. So anything to do with child custody must be based on these principles.

Section 34 lists four things that must be done in order to decide what is in the best interests of the child. There is the psychological and material side; the section defines all of the instances. You know, both systems have a lot in common. I would agree that we are not enforcing the same piece of legislation, but it is similar in many respects. If I were to plead the case of parents who are living in a common law relationship and have two children, I would not hesitate whatsoever to use Divorce Act precedents when talking about the interests of the child and to apply them to the Civil Code of Quebec.

I do not think that procedural issues will prejudice the rights of the child or that the court would not consider the jurisprudence.

Ms. Pauline Picard: Thank you very much.

The Joint Chair (Mr. Roger Gallaway): One final question, Ms. Bennett.

[English]

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

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Sometimes parents don't come to this idea of divorce, and certainly now that it can be unilateral, I guess I wonder, when there's any mandatory hurdle, whether one partner, by not agreeing to go, could drag out the process such that things don't proceed, and it ends up not being good for kids.

Ms. Louise Morreau: You are so right, especially if we think there is one parent who leaves and the other who is being left. I don't have to tell you we kind of feel differently, depending on which end we are at, obviously.

In this case, when I talk about education that should be done, especially the person who is hurt should go more. This whole process and recommendation is for the children. So I think it should be mandatory for the parent who is hurt to go. As soon as this parent goes, it would certainly calm down. Instead of continuing to cry in front of the children—of course we all cry, but you know what I mean by doing only that—not cooking dinner or lunch and staying in her jammies all day and so forth, she will see what it does to the children. It's a big picker-upper if she goes and thinks “My kids will suffer from it”. I believe people will have a tendency to go.

If you do not go, then we would have to think it's just like the session right now about information regarding mediation. If one of the parents doesn't go, then the court could do something about it. In this case also, and especially in high-conflict cases, of course the first to pay are the kids. I definitely see it all the time. So especially in those cases, it is mandatory.

If not, judges have a bigger jurisdiction than mine. They could say “Okay, your child support will double until you go”. I don't know what, but it should be something to just aim where it hurts. Consequently, if it's the woman, it should be the same for her also. But make sure they go, because I really honestly, truly believe that if they were educated about this there would be a big difference in the kids' lives. I really do.

Ms. Carolyn Bennett: Thank you.

The Joint Chair (Mr. Roger Gallaway): I want to thank you, Ms. Morreau, for coming here today. You may be interested in knowing that this is perhaps our last week of sittings. Your presentation at the end of this period has been most interesting. So we want to thank you; it's been most informative. Thank you very much.

Ms. Louise Morreau: When we plead we're told it's cool— I teach at law school, at bar school, and I tell my kids that when you plead you start with a big point and finish with a big one. Here I realize I didn't do that at all. I just hope I was helpful.

Thank you very much.

The Joint Chair (Mr. Roger Gallaway): Well, it was a big finish for us this week.

We have Dr. Ross Finnie from the School of Public Policy, who unfortunately only has half an hour with us. We will get going right away. Make your comments as brief as possible.

Dr. Ross Finnie (School of Public Policy, Queen's University): My comments will be very brief, because I don't consider myself any sort of an expert on access or custody per se. I've written a fair amount on what happens at divorce, the income changes at divorce. I have a book on child support guidelines. I've had the honour to be before this committee previously, with respect to child support guidelines per se.

Typically, my remarks with respect to access and custody have simply been that it ought to be resolved as part of a balanced package that addresses issues on both sides. More than four years ago, when these initiatives came to the fore, there were fairly serious problems with how support payment amounts were being arrived at. Were they adequate? Were they fair? A good set of child support guidelines was the solution for dealing with that.

Guidelines have been enacted. However, the other side of the problem is of course issues related to custody and access. As we all know, these things should not be linked but often are. So in all of my writing, I've simply said “Gee, I know about child support guidelines. This is half of their problem. That ought to be done properly.” At the same time, the custody and access should be dealt with as part of a package, particularly because the two issues have historically so often been related. It's a chicken-and-egg situation. One person is not getting access because the other person is not making the payments, and the other person is not making the payments because that person is not getting access. Where did it all begin? Who knows, much of the time?

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So child support guidelines have been brought into place. You're now dealing with access and custody. It's commendable. The only point I would like to say with respect to the guidelines, though, is that I still believe the guidelines, as enacted, dealt inadequately in terms of taking account of the particular access and custody arrangements in place.

That is the particular point I've been making from the first time I started writing on this subject quite a number of years ago, as well as in my own testimony before this committee a couple of years ago. The lack of taking into account the amount of time the child spends between the two parents, unless that passed the threshold of 40%, I believe remains one of the great shortfalls in what was put in place. I would only hope that this committee, or whatever processes are initiated through this committee, as they are dealing with the access and custody issue, would also open up the procedures so that the compensation package could be fair and just with respect to whatever access and custody is finally arranged.

A case in point came from a particularly interesting person who contacted me the better part of a year ago on his arrangement. He has his children about 38% of the time. This individual pays the full amount. And this is one of the horror stories one could have envisioned, which I did; I said these cases are going to exist. He pays the same amount as someone who never sees his child, even though he has the children virtually 40% of the time.

I can't testify to this, but he said that in the original agreement—he hadn't made the calculation, but there were certain adjustments toward the end—his ex-spouse said certain school mornings she wanted to have counted on her side. Fine, he thought, what does it matter? Only after the fact did he come to realize that this arrangement took him from around 41% to 42% down to 38%, thereby adjusting the amount. This meant there was no longer any adjustment of his child support obligation.

These are the sorts of situations that are out there. He's thinking of taking it to higher courts. He sought legal advice. I volunteered my services to simply come before anyone and say this is what I think is right, based on my research and based on what I think is appropriate. So those cases are out there.

Now that you're dealing with access and custody, to the degree it can be done, it would be nice to clean up what I would see as one of the major flaws in what was, all in all, progress on the child support frontier with the original legislation.

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

We'll start with Senator DeWare.

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

Just on that line, as you know, I was part of that committee, and I know we were dealing with child support.

Dr. Ross Finnie: Yes, I remember.

Senator Mabel DeWare: Did you go before the social policy committee when they were dealing with the guidelines on child support this last month or so?

Dr. Ross Finnie: No.

Senator Mabel DeWare: You haven't been before the committee.

Dr. Ross Finnie: No.

Senator Mabel DeWare: That's unfortunate, because they were asked to monitor the guidelines and they were doing that. The questions you've just asked and some of those situations you've talked about could have come up before that committee. I didn't attend, so I'm not sure.

Dr. Ross Finnie: My understanding is that is one of the areas— What I hear from journalists and other feedback I get is that that is one of the areas of concern, perhaps the principal area of concern, with the current guidelines in place.

Senator Mabel DeWare: Over the past several months we've been dealing with this, a lot of people have suggested that we talk about custody and access as a win-lose situation and question whether we should separate the two, custody from access, custody meaning you already have custody and you're being paid child support. Should we be dividing the two and should we change the nomenclature you're talking about and change custody and access to parenting, parenting time, residential parenting and so on? I ask this because, as you know, we use “custody” when we're talking about the Young Offenders Act and so on. Do you feel they should be separated, and should we change the terminology? Would it help?

• 1615

Dr. Ross Finnie: I don't have strong feelings on that, but perhaps it's related to this whole notion that there's this clear differentiation between joint custody and shared custody, very distinct classifications, when really— There's something qualitative there, but many times it's simply a quantitative difference across a continuum. What does it matter? Well, it matters if you call something that's say 40% different from something that's 39% and then the law gets constructed around that. That has important consequences.

Senator Mabel DeWare: You're talking about support there.

Dr. Ross Finnie: Yes.

Senator Mabel DeWare: We're just talking about access orders, and here's our problem. Access orders are being denied. Fathers and mothers are being denied these access orders. They don't seem to be able to get them, to have them properly carried out in Canada. The judges don't seem to want to do that. How are we going to get around that?

We had a judge from Michigan tell us that they enforce their access orders. People know they're enforced and they don't have the same problems we do here.

Dr. Ross Finnie: Yes.

Senator Mabel DeWare: How are we going to get around that?

I mean, if there is an access order out there, how do you make somebody— Like our former witness, I was going to ask her the question. She said parents should bring their children home on time when they have access. I was going to tell her some parents would love to have the opportunity to bring their children home on time.

Dr. Ross Finnie: Yes.

In terms of how does one enforce access and make sure the rules are obeyed, I just don't have the expertise on that, so I don't think it's appropriate for me— I'm not a legal scholar; this is not my bailiwick. On the other hand, I'm an economist, and one of the things we talk about is prices and costs and enforcement of various things. It seems to me, on principle, that if it were something we wanted to enforce, we could certainly do it. So as the government has implemented measures to make sure that child support is paid—of course, appropriately—why are we not seeing the same sorts of procedures to guarantee access? If licences are being denied—I'm just pulling this in, I don't know whether that's going on—if there are sanctions—

Senator Mabel DeWare: But the law is there to do it.

Dr. Ross Finnie: —we can have the law to do it if we wish.

From the very beginning, in my writing on this, I've said let's go with what's fair for everyone involved. I think the best way to think about these things is to suppose you didn't know which parent you were going to be. Let's think of a set of rules under which you'd draw straws as to which parent you are going to be. That's a good way of thinking about it independently, trying to extract yourself from your own feelings. What would be a fair set of rules? I think most of us would then say that whoever has custody of the child would want to make sure the payments get made, and at the same time, for the parent who is only getting access, that would be guaranteed. We would say “Let me draw my place in there so that I know I'm being treated fairly.”

Senator Mabel DeWare: But we mustn't forget whose place we're drawing here. The place we're supposed to be drawing here is the best interest of the child.

Dr. Ross Finnie: Oh, absolutely.

Senator Mabel DeWare: We sometimes keep forgetting that.

Dr. Ross Finnie: I guess I'm presuming here, because, again, my expertise is not how much time a child should spend with one parent versus the other. I think there are all sorts of—

Senator Mabel DeWare: Age comes into it.

Dr. Ross Finnie: Everything comes into it. I'm presuming the experts, the courts, have come to a just decision as to what that should be, and then that wisdom, whatever that rule is, should be enforced. It should be enforced the same as we should have a default right.

I mean, it seems to me there are still problems with parents not paying their child support, for whatever reason. We should have a just set of rules so that the child support is an appropriate amount and it does get paid, and the access is appropriate and the access is honoured. If we want to do that we can do it, it seems to me. It's a matter— Now, you're asking how. I'm saying some of these procedures seem to be effective, whether it be passports, whether it be this, whether it be that. I think if the will were there—

Senator Mabel DeWare: It could be done.

Dr. Ross Finnie: —it could be done.

Senator Mabel DeWare: Thank you.

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

Mr. Mayfield.

Mr. Philip Mayfield (Cariboo—Chilcotin, Ref.): You left off at an appropriate point. I'd like to ask you, in considering access and lack of access on the basis of the court's judgment, how would you enforce access? How would you enforce payment? Do you have any ideas on how you would do that?

• 1620

Dr. Ross Finnie: This is something I know something about, have thought about. Let me start with that.

The set of guidelines I had recommended were slightly different from the ones that were in my own writing. I would have gone for a simpler set. But let's say you have a fairly manageable set in place. I would go with payroll deduction as a more— When in doubt, go with payroll deduction. Don't force it. There have been problems with the payroll deduction procedures, I know, but get those ironed out and get a system that works. The simpler the system, the better the payroll deduction system would work.

On the collection side, it seems to me that significant progress is being made. Let's build on those strengths and move on from there.

Again, in terms of the access, I don't know enough about that issue. I'm an economist. Access is more in the area of expertise, I would say, of legal scholars, sociologists, etc. In terms of saying that when the non-custodial parent shows up for the child, that access ought to be guaranteed, all I can say is that it seems to me we ought to be able to come up with something.

The problem, it seems to me, again quickly unravels into this tit-for-tat. Historically, it was withholding for child support payments. I think there's still room for that, which is too bad. I think it's especially likely in a situation where they're seen as asymmetry where the non-custodial parents, in general, now have the impression that the enforcement measures are all on the other side and there's little that's been done to ensure the access. So in some sense it's not that the situation has been improved, it seems to me, because the psychology of the situation is now perhaps no less adversarial than it ever was in that respect.

In terms of do A, B, C, I can make suggestions with respect to the child support side, but I'm afraid I don't have expertise in terms of the access.

Mr. Philip Mayfield: Thank you very much.

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

Senator Erminie J. Cohen (Saint John, PC): I realize we're not discussing guidelines per se, custody and access, but as you have said, Dr. Finnie, they are interwoven, whether we like it or not.

I was wondering if you would mind elaborating on what you call the major flaw in the guidelines. I'm referring to that 40% clause. Could you explain a little bit further as to what you would like to see there or what we should consider?

Dr. Ross Finnie: Okay. This is something I feel comfortable talking about, in particular.

From the beginning of my writing on this, thinking about this, it has always seemed to me that of course you want the appropriate custody and access arrangements, and the financial nurturing of the child should take that into account. It seems to make sense to the lay person, the expert, individuals involved.

The guidelines, in fact, were constructed— That's something I know quite a bit about, having come up with guidelines myself and being involved with the justice department. In their documentation it's clear that they were basically designed on the assumption that the child spent all the time with one parent.

Then in the legislation, for various reasons—I would say rationalizations were given to keep things simple, etc., and you didn't want to penalize the custodial parent, etc.—it was provided that there be no adjustment unless the child was with the non-custodial parent 40% of the time.

The problem is, you have two things. You have the expenses on one side, going down. You have the expenses on the other side, going up. Certainly there are certain fixed costs. The costs of the custodial parent are not going to go down 40%. The heat and the rent, etc., those costs remain fixed. In fact the total costs of raising the child are going to increase once the custody is shared, but fair enough. If the costs of more shared custody, joint custody, rise, that's fair enough, and that has to be shared out appropriately. But as the costs go down on one side and they go up on the other and then overall they go up a little bit more in total, one can imagine that no adjustment at all is certainly unfair. Then it's a matter of can we come up with mechanisms that could be put into place that would be relatively efficient and on average could be fair.

• 1625

I say yes, you could. You could sit down and devise a formula. The guidelines themselves are based on underlying formulae, estimates of what it costs for a child to live with one parent or another, etc. That's how the guidelines are constructed. One could come up with a series of adjustments, a formula within a formula, that would allow for the appropriate sorts of adjustments that took into account the shifting of some costs from one parent to the other and the increase in total costs overall.

Now, a formula off the top of my head— I've played around with these before. I didn't come here today prepared with the sort of formula I could present to you, but it's something I have given considerable thought to, as have other colleagues, and those sorts of adjustments, formulae, could relatively easily be brought into place.

Senator Erminie Cohen: When we agreed to those formulae—or the government agreed to the formulae that are in place today—we didn't take into consideration the second family, which has been coming up in our discussions. All of a sudden we have a husband— Say the non-custodial parent's a man; he remarried, and he now has a new little family to support plus paying his support payments. If he decides he isn't making enough money, apparently if his new wife is working, some of her income has to go toward helping support that family.

In one case that came before us, he went out and got a part-time job to help support his family. His former wife found out that he had a part-time job, went to the courts and was able somehow to get half of that money, or a portion of that money as well. So we did not take into consideration the second families in these issues, which was unfortunate.

Dr. Ross Finnie: I agree. One of the other flaws, I thought, in the guideline as enacted was precisely that. Implicitly, it made the second family, second spouses, responsible for the child support for the first family. There wasn't enough of a separation of those circumstances. The standard of living comparisons, that whole area, was a dangerous part of that. And these are the consequences.

Senator Mabel DeWare: That's it.

Dr. Ross Finnie: This is it. I don't wish to gloat, but these are the complications I foresaw when those proposals were being suggested.

Senator Erminie Cohen: Dr. Finnie, is your 40% included in this?

Dr. Ross Finnie: I haven't seen a copy of that for a while.

Senator Erminie Cohen: These were sent to us today.

Dr. Ross Finnie: I'm a co-author on that, am I right?

Senator Erminie Cohen: I know you are. I just want to know, because then the committee could look at it.

Dr. Ross Finnie: The official justice department documents that were published, I can't remember— I have to be careful what I divulge publicly, as well.

Let me put it this way: In the book and my own articles that I've written on this subject, I didn't think there should be a 40% cut-off; I didn't think there should be any cut-off. I left it vague. As soon as expenses become significant, the shift in expenses or the increase in expenses become significant, that should be taken into account. I explicitly, in my own writings, again said that any sort of arbitrary cut-off, whether it be a third or 40%, was going to run into the sorts of problems we've seen. This fellow in Toronto who's at 38%, his costs are really not very different from his former wife's, because of the fixed costs on either side. That's what you get.

Now, you'd have to define what is a “significant difference”, and you might want some sort of very minimal—less than 10% or 15% or when there's no overnight stays or there's no special account, there's no special lodging or housing. Somehow you could come up with something written down that says basically there's no adjustment that should be made there. That could be written in.

Senator Erminie Cohen: Thank you.

Dr. Ross Finnie: You're welcome.

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

Senator Cools has a question.

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

Thank you, Dr. Finnie. Perhaps you could clarify or complete two statements you made that you didn't finish. The first one was “those standard of living provisions”. Perhaps you could tell us what you meant.

Dr. Ross Finnie: Yes. In the guidelines, as they were proposed and as they were enacted, there were certain adjustments to be made, or in other cases not made, according to these comparisons of standards of living of the two families.

• 1630

Now, this was after the guidelines expressed very clearly that for new spouses and a second family, there should be no responsibility with respect to child support of the initial family, but once you make the standard of living comparisons, you're implicitly doing that.

Frankly, I think it was hypocritical as it was written in, because on the one hand, it says this should not be done. It's true that it's not written directly into the formula, but the rules for playing around with the formula—that is, the amount to be paid—then take this into account. So on the one hand, we're trying to have it on the road of high principles, and on the other, we're letting slip in through the back door those types of considerations.

This works on both sides. It's not just in terms of the father remarrying and that woman then becoming on some level implicitly responsible for the child support of any child for which he's paying, but it's also on the side of, say, the custodial mother, in this case, more or less being penalized should she remarry, depending on that person's income level. That new person has nothing to do with the child support of the initial relationship.

I think child support should be between the two original parents and it should be based on an ability to pay, according to that person's income. It should be kept as simple as that. That's what all my formulas were saying. I always suggested keeping it simple, with no standard of living comparisons, because you get into precisely this type of problem.

Senator Anne Cools: Chairman, perhaps I could frame out my second question a little bit more fully.

We've heard a lot of talk about the lack of accountability from the recipient spouses. And we have to say “spouses”; we can't say “parent” any more. It seems man and woman have disappeared from the Divorce Act.

I wonder if you have thoughts on the issue of accountability of those moneys—that's number one—on the issue of the payment of child support for so-called adult children in terms of post-secondary education. I wonder if you could wrap your mind around that.

Dr. Ross Finnie: Yes. That's something I feel comfortable saying something about.

First, in terms of this precise issue of accountability, on the one hand, I think sometimes for the non-custodial parent, the one making the payments, it's too easy to say, “My money is not going toward the child”. One of the reasons we need guidelines is because it's very often, “Of course not; the money is going toward the household”. That's inevitable, and we all need to accept that. You can't expect every dollar you're paying out to show up in the form of a new coat or additional groceries on the table or that type of thing. It's going toward supporting that child. So a narrow accounting, dollar by dollar, is impossible, and it would be unreasonable.

On the other hand, let's accept that there are extreme cases, which we know exist, where the money is in fact by and large not going toward the child as it should be.

Well, between those two extremes, shouldn't we be able to come up with some set of procedures, a set of principles, a clear statement of principles and some type of procedure so that at least there's a course of appeal? Again, this is not my area of expertise, but I guess I could quote from my own articles in various family law quarterlies and my books, etc., that as we've put mechanisms in place for other things, we should put in place mechanisms—statements of principle and at least mechanisms of appeal—so that in obviously extreme cases investigations can be made and appropriate actions taken. At least those most extreme cases should get dealt with.

Senator Anne Cools: Am I understanding you correctly? Are you saying that the guidelines should also include a statement of these kinds of principles?

Dr. Ross Finnie: Yes.

• 1635

Perhaps I could read this:

Regarding both access and the disposition of the child support dollars, initiatives could include certain statements of principle and the establishment of avenues of appeal comparable to those available to custodial parents whose ex-partners fall behind in payments.

Such measures would send the appropriate signals and provide concerned non-custodial parents with assurances that their concerns were taken seriously and that due processes of justice were available. Such measures would make for a child support package that was more complete and more balanced.

That's from an article that appeared in the Family Law Quarterly in August of 1997.

Senator Anne Cools: Because where those issues seem to come together is especially with adult children. I mean, it's sort of silly to be using expressions like “adult children”, but where it seems to come together is in the instances of post-secondary education or university education and adult children, and where the child is away at university and not receiving much benefit.

You also made reference to particular points since, as you've told us today, you had originally been involved with the Department of Justice in the development of guidelines. These are not the guidelines you had proposed, because that was another set of problems, but at the time, as you will recall, we were told, assiduously and repeatedly, that these guidelines would so-call simplify the process and would provide certainty and so on and so forth.

Many of the lawyers the department at the time relied upon to urge us to pass those guidelines, to pass Bill C-41, are now telling us, well, maybe it's not so. Now they're telling us they're not simple at all, and there's not that much certainty, and they're extraordinarily complex.

We had a witness, I think in Prince Edward Island, who told us that, as a lawyer, it took her 50 hours to begin to comprehend and to master those guidelines. I think Carole Curtis also said something similar at the Senate social affairs committee.

I'm just wondering if you have any views on the issue of the simplicity that has now turned out to be greater complexity and the certainty that is now greater uncertainty.

Dr. Ross Finnie: I agree. In many ways, the guidelines implemented were complicated in certain places where they should have been simple, and they were too simple in places where they should have been a little more sophisticated.

What do I mean by that? For the sake of simplicity, and for various reasons, no adjustments were made for the amount of time the child spends with the other parent. At the same time, if they had asked me, I would have been delighted to sit down and say, well, let's see what we can come up with, a simple formula that would allow for adjustments but would be fairly predictable, with simple procedures.

The guideline formula I had always proposed is basically a simple set of percentages of the non-custodial parent's income, which is not too far from the basic guideline. A minute ago I was referring to the fact that they kept it simple where it should have been a little more sophisticated or detailed. On the other hand, once you start to bring in—

My various criticisms of the guidelines as implemented included, in particular, the add-ons for the extra costs. I said at the time that first of all, those costs are basically already included in the guideline amount, so any adjustments upwards of that would amount to double counting, double payment. That's not appropriate.

At the same time, one can get bogged down in this sort of detail. The guideline is meant to cover things, keep the exceptions as exceptional as possible, for precisely this type of case—that is to say, the extra-curricular, etc.—and the other is these standard of living comparisons, which I saw as the other black hole of complications into which energies and procedures could become involved.

My sense was, on the one hand, let's keep them very simple, with percentages of the non-custodial parent's income and only very exceptional cases for “extra”-curricular activities. What does that mean—a new pair of running shoes? I mean, one could predict—

• 1640

Keep that as simple as possible, but at the same time, have the adjustments for the amount of time the child was with each of the parents.

So with a whole lot more give on the one side and a little take on the other, I think that would have put more of the complexity where it was appropriate—it wouldn't have been a great deal of complexity—and greater simplicity where that would have been appropriate, and we would have a guideline that works better.

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

I know that Senator Pépin has a very brief question now.

Senator Lucie Pépin: It won't be brief.

The Joint Chair (Mr. Roger Gallaway): It won't be?

Senator Lucie Pépin: No. I'm more confused than I was.

The Joint Chair (Mr. Roger Gallaway): I have one very brief question for you, Professor.

It would appear, and there are those who would disagree with me, that the objective of Bill C-41 was to simplify—we know that's not true—to remove discretion from the courts so as to have a predictable set of guidelines.

Would you, as a professor of public policy, advocate the same type of philosophical approach, that is to remove a lot of the discretionary decision-making of the courts in terms of dealing with what we now call custody and access?

Dr. Ross Finnie: How much time—

The Joint Chair (Mr. Roger Gallaway): You have 30 seconds.

Dr. Ross Finnie: No, I don't think so. I wouldn't even offer an opinion on that. My expertise is not in that area.

The Joint Chair (Mr. Roger Gallaway): Well, you certainly have generated a lot of thought, debate, and questions on a topic that is tangentially tied to what we're dealing with. We thank you for being here today.

Dr. Ross Finnie: Once again, it's been my pleasure. Thank you very much.

The Joint Chair (Mr. Roger Gallaway): I'll be back in half an hour or less.

The Joint Chair (Senator Landon Pearson): We would like to ask Mr. Jim Gentle, Mr. Christopher Heeney, and Mr. Leo Lehtiniemi to come forward, please.

Mr. Gentle, are you ready to start? As you know, we're to go for five minutes each . The time for questions is a short period, I'm afraid, but please go ahead.

Mr. Jim Gentle (Individual Presentation): First of all, I'd like to thank you for this opportunity. I think what you're doing here is extremely important.

I'd like to stress that, overall, my ex-spouse and I do get along. We have the same goals for our children, which is that we want to be able to provide the best in health and education, and a good childhood.

• 1645

I have three children: a ten-year-old and eight-year-old twins. I have a very strong, healthy relationship with them. Basically, they're my life and that's what I work for.

Now I'm about to explain to you my experience in the current situation of access and custody. I made some comments back on March 24. First, basically, you might say that what I put down on March 24 was a human rights issue. I was just amazed, amazed, and amazed at the way I was treated. I was told that I had to get a woman for a lawyer and that I could be accused of all kinds of things if I didn't. I had to wonder. I asked myself whether discrimination was legal in this country. I sit there and say it's not, but then I get confused over it.

I'll never forget when I went to court after my divorce. The situation was that my ex-wife wanted to have the children moved from Kingston to Quebec City. When I went to court, I noticed a poster put out back in 1993 by the Solicitor General's office of the Ontario government. It was in the hallway right in the courthouse. It was a picture of a little girl holding a teddy bear. The caption said, “Tell her again why it's okay that daddy doesn't pay support.”

I couldn't believe this. This thing, as far as I was concerned, was a form of hate literature. It was targeted toward a certain group of individuals, which was based on their marital status and gender. Simply put, this meant divorced men. I thought to myself, what would happen if there were a poster in this courtroom against ethnics? It could be any ethnics at all, including Italians, which I am. I just couldn't believe this.

As for the court system, I'm going to use my own situation. As you know, the word “abuse” has been used used and used and overused. It has been beaten to death. I actually went through an experience once where my ex-wife and my children came back to Kingston from Quebec for a summer trip for about a week. Basically, I wanted to take my children to Toronto for a bit of a visit. This would have been the first time ever that my ex-wife would have been away from the children ever.

My little son and I unfortunately had a bit of an incident. To make a long story short, I ended up getting charged.

I was going through a system in which I was told and told and told that I don't have a chance. I was told by a lawyer, who is now a judge in Toronto, that there was no excuse and that I should not have been charged. It was ridiculous. I was told by a police officer the next day that my child was being used as a pawn for control purposes and that this was not unusual. I was told by an arresting officer that if he didn't leave his old man, he would have beat the shit out of him. I honestly believe that this incident occurred because of this officer's own personal circumstances.

I went through that. To make a long story short, to avoid my son coming into a court—this a six-year-old child, if you can believe that—I just said that I was guilty and that they should do what they wanted to do. Again, I was told and told and told by police and everyone else that this is quite common. It works. It's disgusting, but it works.

I was also told by the police officer to get anger management, so I went to see someone. They said to me that I didn't need anger management, I needed abuse management. What's that? Well, I was told basically that I had to learn how to basically understand my ex-wife because of her control situation and basically my abusive manner. I was also told that week they were in Kingston that I would have had some problems. In any situation, I was going to get myself into some trouble. It's the old story: if you're too nice, you get nailed. It's quite common. It's phenomenal.

During the court case with respect to me trying to keep my children in Kingston—this goes back to 1993—we had an assessment by the family court clinic. It stated that a move to Quebec City with the boys is likely to be detrimental to the relationship already existing between me and my sons. I don't think the judge read this report. During the separation, I used to see my children every day, It was extremely rare that I wouldn't see them two days in a row. I use to go to see them at about 8.30 a.m. on weekends, and after work, the whole bit. I saw them on a consistent basis. I was very, very close to them.

I remember that I bumped into the individual who wrote this report for the family court clinic. This is when I was on business this past December. She's no longer working there. She remembered me, just like that, even though it's been close to five years. She said she couldn't believe the decision.

The Joint Chair (Senator Landon Pearson): Mr. Gentle, you've had six minutes. Do you have some recommendations for us?

• 1650

Mr. Jim Gentle: Okay.

My recommendation is if there is a way of doing this, keep the courts out of it. I don't know if there's a way of doing that, but there must be some sort of a minimum access period, and perhaps joint custody should become the norm.

We have guidelines now, I understand, with respect to this family support payment issue. I would suggest too, if the courts are going to continue to be involved, a mandatory education system should be in place so these judges have a clear understanding of how their decisions are affecting children and their parents.

It's the same with family support. I have no use for these individuals who aren't paying their support, these fathers who don't pay. They say the majority are fathers, and I believe that. At the same time, if the mother is playing games with a child—and the awarding is important—there should be something in place to ensure a child has access to their father. That has to be enforced, and if not, something should happen. My understanding of family support is if you don't pay you don't get your licence. I have no complaint with that at all.

These ongoing accusations of abuse should be looked upon in a very strict manner. This is a tactic. Those who are using this tactic should be accountable, including the lawyers. I think that's very important, because a lot of the seeds are planted by the lawyers. Again, the use of a child as a pawn for control purposes is just not acceptable.

My children live in Quebec City. It's a six-hour drive from Kingston to Quebec City. I do that every month and then I go back. I leave on the Friday night and come back on the Sunday night. So I have a 12-hour round-trip, you might say, driving in a vehicle every month. I stay in a hotel, the whole bit.

I end up getting approximately 10 to 12 hours over the weekend with my children. So on a monthly basis I get 10 to 12 hours with my children. It's almost as if it's per hour of driving time. It's amazing. I have a great time with my children.

I just couldn't believe the way I was treated through the system, though, and that's why I'm here. It's staggering to me.

The Joint Chair (Senator Landon Pearson): Mr. Gentle, others need time to talk too.

Mr. Jim Gentle: Okay, yes.

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

Mr. Heeney.

Mr. Christopher Heeney (Individual Presentation): Honourable senators, members of Parliament, I am very honoured to be here and I thank you for giving me the opportunity to speak.

I'm a 41-year-old single father with three daughters aged ten and a half, six and a half, and five and a half. I have a college degree in computer science and I have been employed as a systems analyst in the public service for the past seventeen years.

I had always been a good father and faithful husband, and in May 1995 my former spouse and I mutually consented to separate due to irreconcilable differences. During mediation, I put a great deal of effort into providing parental and financial plans that were equitable and achievable for both parents. My employer had authorized me to work at home 60% of the time, and our mediator thought my plans were achievable.

However, my former spouse would not negotiate on our position of custody and access, in which she stipulated I could only see our children every second weekend and one day during the off-week. After two mediation sessions, my former spouse forced her demands on me by invoking an ex parte order that was based on a false affidavit.

Currently I am not allowed to see my children on their birthdays. I attend the children's birthday parties with their friends, go trick-or-treating with my children, attend their medical and dental appointments, and by law I am not even considered part of my children's family. This is segregation; it is discriminatory, and extremely cruel and unjust.

Family law is adversarial and fails society because it attempts to resolve the emotional issues with force rather than compassion, and it inevitably becomes problematic. There is typically very little factual or circumstantial evidence to support allegations. So the outcome must be based on past practices and sworn affidavits from mentally distraught individuals.

The expectation that parents calmly deal with the emotional issue of custody and access in an adversarial system is unrealistic and unachievable. Ironically, this adversarial system is dependent on honesty for its success.

The primary objective of family law should be to heal the emotional wounds in order to help both parents work together for the best interests of their children. The focus should be on facilitating parental working relationships, not parental segregation. The existing judicial system attempts to resolve emotional issues by turning parents into adversaries instead of through healing. The problem is then compounded by gunslinging lawyers who feed on the pain and suffering of distraught parents.

• 1655

The parental and financial issues can be better resolved through services and skills that are readily available. Psychologists can perform the custody assessments that will assess parental abilities and the children's well-being and would be available for ongoing counselling. Financial auditors and advisers can be available to help parents equitably distribute mutual assets and prepare future financial plans. Real estate brokers would be available to help parents in the sale of their homes and find new ones.

Custody and access are divisive, demeaning, and controlling terms that must be relegated as obsolete. Parental roles and bonds cannot be severed without devastating consequences for parents and children. Focus must be shifted from segregation to shared parenting.

My recommendations over the short term include that an ex parte order only be used in extreme circumstances, and that a request for a custody assessment must be included. The order should be accompanied by a written set of rights that is read verbally to the accused, and the accused should be provided with a set of guidelines on how to proceed.

Custody assessments must have some legal weight behind them. There is no reason to go through a custody assessment if the judiciary is not obliged to implement its recommendations. Mediators must be given the authority to arbitrate decisions.

Restraining orders can be used as whipping sticks by custodial parents and are implemented far too liberally by the judiciary. A restraining order must be supported by a custody assessment, by physical evidence, or a third party before it can be granted.

Polygraph testing should be part of a custody assessment, and the results should be admissible in court when parents have relevant statements that are conflicting.

Falsifying affidavits must be made a criminal offence, with stiff monetary penalties being the deterrent. Lawyers who coach their clients to deceive is an obstruction of justice, and they must be dealt with harshly by imposing stiff monetary penalties and revoking their licenses.

The judiciary and legal profession must be accountable for their actions, as in any other public service industry. Annual surveys should be conducted by an independent and impartial body that rates judges' decisions and lawyers' conduct against clients' satisfaction. The judiciary must be responsible for providing explanations for their decisions.

The support payment interval should be based on the support payer's pay schedule, and the level of support should not impede the support payers' ability to maintain a lifestyle equitable to that of the recipient.

An advisory committee should be formed with the objective of promulgating information to separated parents.

An ombudsman should be appointed to review the grievances by non-custodial parents who have been unfairly treated by the existing judicial system. They should have the power and authority to overturn court orders awarded to custodial parents who have used false affidavits and shrewd lawyers to gain custody and support.

Government should promote a shared parenting policy that is primarily based on facilitation through mediation and arbitration, instead of a policy that is based on enforcement and control. Training in anger management, conflict resolution, and negotiation skills, should be mandatory for parents after separation. Also, the “three strikes and you're out” rule should be used to manage delinquent parents.

In closing, I would like to conclude by saying that an amicable process means equal opportunity to children and parents who otherwise may be disadvantaged by a hostile, divisive, and adversarial process. An amicable process will improve society instead of undermine it. This will in turn reduce the burden to governments. Children, parents, society, and governments all have an opportunity to benefit from a more conciliatory system based on compassion and equality.

Finally, I would just like to add that I have prepared a 40-page brief that is currently being translated. It documents an excellent case study, and it has relevant material and details that I cannot possibly cover in the time that's been allotted to me today. So if you have any questions pertaining to this document, please either formally or informally contact me at your convenience.

Thank you very much.

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

Mr. Lehtiniemi.

Mr. Leo Lehtiniemi (Individual Presentation): Good afternoon, and thank you, members of the committee, for allowing me to appear.

I'd like to restrict my comments to matters related to custody and access that members of the committee and MPs have the power and authority to change.

I sympathize with the experiences that I've heard recounted here, and I can relate to them. I will not discuss specifics about which I have experience and knowledge and which may have more emotional impact than what I'm going to talk about, because it's the broad issues that require the attention and the change.

• 1700

The first issue involves the safety of children and fairness to men. The Government of Canada defined family violence as violence against women and children. This has come to be interpreted as violence by men. The focus tends to have been adopted by the provinces and the legal systems. As a result, systematic information has not been collected on violence by women and by children in Canada.

Anger and the sometimes resultant violence are not gender-specific, they are human behaviours. Population-based surveys have shown that violence by women is as common as violence by men and that more than half the violence against children is inflicted by women. The selective focus taken by the Government of Canada does a disservice to men and to children because the issue of violence by mothers is seldom taken into account by the legal system in deciding custody arrangements.

While there has been research and compilations of statistics on violence against women, there now needs to be a commensurate research effort focused on violence by women. I recommend that the committee take measures to ensure that the definition of family violence in Canada is expanded to include violence by men, women, and children and to ensure that funding is directed to collecting data on these aspects of family violence.

I think it's also important to look at violence in its context. It's usually at the culmination of a series of events that precede it. These must be studied and analysed if we are to make any real headway in alleviating violence in families.

The second issue has to do with the equitability in program funding. Governments have established a variety of programs for women that respond to and simultaneously draw attention to the problems that women face. These include women's shelters, counselling services, and funding to support community-based groups. There are some programs for men that deal with anger management. The assumption underlying these is that men are violent and that women need help.

That's okay as far as it goes. I don't think there's any question that these things are needed, however, men also need access to counselling and support in times of family crisis before they are stressed to the point of inappropriate behaviour. We also need centres for men where they can receive counselling and assistance in responding to physical, verbal, emotional, and psychological abuse that they experience from their lovers, partners, spouses, and mothers. Whereas there are now publicized anger-management programs for men, there is a need for equally visible public programs for women to deal with their anger, abusive behaviour, and violence.

The committee should recommend that all government policies, programs, guidelines, and regulations be made gender-neutral and that men and women be treated equally. This would mean, among other things, that equivalent and/or corresponding programs for men should be established immediately wherever there are women's programs unless the exclusively women's programs are discontinued.

The third issue has to do with better integration of programs and legislation to ensure that the formal custody arrangements that are awarded can be observed in practice. In my case, I was awarded joint custody. I speak from having found that I didn't have the capacity to offer my kids accommodation at home that was equivalent to what my wife got because of various legislation that was brought to bear in the sequence of events.

The current practice of the legal system places fathers at a disadvantage with regard to custody. The need to pay spousal and child support, in addition to the cost of establishing a new household, means that a newly separated father is often forced to have more modest accommodation when compared with the marital home. The result is that the children must endure some deprivation and hardship when and if they live with their father.

The situation is worse if the division of assets includes a cash payment of the current net value of a pension plan. This further diminishes the father's ability to provide equivalent accommodation for children when the father has custody or when they visit him. In fact, it could put the father into debt immediately, even though he may never live to collect that pension for which he has to pay half the value at that point in time.

After the assets have been divided in a separation or divorce proceeding, a spouse can apply for CPP credit-splitting, which is done as an independent exercise. In the case of persons covered by federal superannuation plans, a reduction comes into effect at age 65 in their pension, when the CPP benefits are presumed to begin.

This adjustment is not considered in the calculation of the division of assets. While the financial effects may be deferred, the emotional impact is immediate and can flavour the relationship between the parents and how well they cooperate in the custody and access issues.

The grounds for the appeal of CPP credit-splitting do not address this, and the allowable appeal period is ludicrous given the legal, financial, and emotional demands on the parent at that time.

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Last, a formal appeal would be inappropriate and futile because it's not an issue that's covered by the letter of the law. This is not a matter of what the letter of the law says. It's instead a matter of what is right and fair and in everyone's best interests, and I feel the law should be changed to better reflect and accommodate that, in the interest of ensuring that the emotional climate in which there are custody and access issues is neutralized instead of being made more explosive.

The committee, I feel, should recommend a review of all federal programs and practices that impinge on marital break-up and custody and support to ensure they do not contribute to gender bias or otherwise disadvantage either parent's capacity to fulfil his or her rights, responsibilities and obligations regarding child access and custody. I think there's a real distinction between the de jure stuff that is done and the de facto world we live in. That has to be kept in mind.

The last issue I'd like to address has to do with making the process understandable to the participants and making it demonstrably fair. The experts, the family law professionals, feed on the emotional vulnerability, misery and confusion associated with the complexity of separation and divorce, custody and support. Action is needed to alleviate this situation. The emotional costs of the experience are bad enough without the extra aggravation.

I suggest to that end that there's a need to develop a checklist—in plain English—of the steps that have to be carried out by parents in separation and divorce processes, and it should be made available to all provinces and all divorce mediators, etc.

There's a need to identify what professional expertise is best qualified to carry out each step of the process. For example, a qualified accountant should carry out an independent review of the financial situation of both parties rather than having the lawyers set up and create a situation where false affidavits are sworn and you negotiate to the middle, which is a waste of time, causes a lot of emotion and makes a lot of fees for the legal profession.

The Joint Chair (Senator Landon Pearson): Mr. Lehtiniemi, your time is coming to an end. You're well beyond your five minutes, though.

Mr. Leo Lehtiniemi: Okay.

There should be publicly available guidelines regarding reasonable time and cost requirements and associated quality standards for each output in the process of separation and divorce.

There is a need to identify more effective means than those currently available to follow up on orders that were given—other than further legal action. It's just too much for people to put up with when they're faced with that option when they don't get fair access as granted under an agreement.

I would suggest that the committee recommend immediate measures to streamline, demystify, lower the cost, and make separation and divorce settlements more equitable, enforceable and understandable.

Thank you.

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

We now have a shortened time for questioners. Mr. Forseth, you can begin.

Mr. Paul Forseth: Thank you very much.

Today is June 8 in Ottawa, and we had somewhat of an incredible question in the House of Commons today during question period. Basically that question came from the NDP in commenting about this committee and somewhat about the evidence we've just heard; it questioned the integrity of this committee on the kind of testimony you gentlemen have given. They were saying, in essence, that the kind of evidence you've given should be discounted, because perhaps the more that you as fathers are finding your voice and representing your pain, they say, somehow the committee is being biased or steamrollered in a particular way.

I would like you to comment about that and suggest what you would like us to recommend to change the Divorce Act itself so that we can get to a more balanced sense of fairness, try to get away from the gender wars, and try to get to a more unbiased situation that would help children especially.

The kind of testimony that we've heard from you and from others at other times assumes that the system seems to be incapable of developing a neutral view on the best interests of children, that depending on who has the particular arguments or momentum of the time, the system continually gets off track.

And certainly there's a long history of women victims finding their voice, and certainly it's been a long struggle to get that voice, and certainly they now have the tremendous resources of government and we have faculties in university that concentrate solely on the women's perspective in society. And in view of all of that and you coming here beginning to give a different voice, we're finding even in the House of Commons that the credibility of you even coming to this committee is being questioned, as is the kind of testimony that you give.

So obviously we have a lot of work to do to try to get to that land of unbiased fairness and get away from the gender wars.

Perhaps you could just comment briefly on that.

Mr. Jim Gentle: Is their question that this committee could be somewhat biased towards—

Mr. Paul Forseth: The comment has also been made in the press that this committee is overbalanced in receiving testimony from fathers' rights groups and that particular side, that we've already made up our minds, and that the character of the committee is displayed in the kinds of witness lists we have—all those kinds of what I would say are completely specious arguments. But they are there.

• 1710

Mr. Jim Gentle: I find that odd. Again, however, I can only talk about my own personal circumstances.

I have here an access agreement. Now, before my children left for Quebec City, sometimes out of frustration I went to the local detachment in Amherstview in Kingston with this and was told by numerous OPP officers, “Sorry, Jim, this is nothing but a piece of paper. Nothing. That's all it is. You can't do a thing. You have to go back to court.” Go back to court, go back to court—

When I lost my case, I had so many people— Not just my lawyer, but even this person who wrote up that report from the family clinic was amazed. I could have appealed. But again, it's money, money, money.

As a father, you do your best for your children. I wouldn't be here— Again, all of us wouldn't be here. But as far as being biased is concerned, I don't think it is. I think this is here because there's a huge problem out there.

Mr. Paul Forseth: Okay, so you're saying that there's a problem in the community and that the kind of voice we have been hearing at committee is representative of some constituent community.

And we also have heard, in a legal sense of course, that the whole issue of a parent moving to a different community is very much a legal problem. We've seen a lot of briefs around that issue.

Mr. Lehtiniemi, I take it you also want to comment.

Mr. Leo Lehtiniemi: First I'd like to read my credentials into the record. I am a sociologist by training with a background in research and analysis of statistical data, and I am familiar with the literature.

I'm a former senior level practitioner experienced in review of government programs, and I have reviewed a fair number of background documents in regard to this issue. It became of interest to me when I went through the process myself. I'm an executive member of a civil liberties association and that requires a certain amount of balance when I take a look at things.

As a sociologist, I might point out that there's an issue of power and a division of scarce resources that's very much at play here. And anybody who's a beneficiary of the current definitions of what the problem is and what deserves money will resist any change to that, because it might mean that they get less because somebody else is going to start getting part of the pot.

The legal system will be resistant to change because it will mean learning new things. Resistance to change is a fact of life whenever you try to bring in something new, and people will bring up every reason in the world to maintain the status quo.

I think it will require courage on the part of the committee to carry on in the face of that, because if you take a good hard look at the facts, many of which haven't been collected because of the way we define the problem—but there is some information—there will be sufficient support to move forward. Most things that are worth doing are hard to do.

Mr. Paul Forseth: Thank you very much.

The Joint Chair (Senator Landon Pearson): Mr. Heeney wishes to make a comment.

Mr. Christopher Heeney: I really don't understand why someone would say that, unless, obviously, they really don't understand what's going on. It's something you have to experience. I've been going through it for three years and I know a lot of people have gone through it for a lot longer than that.

The root cause of the problems—and why we're here—is that it's an adversarial system. You treat others and get treated like enemies. There's no compassion there whatsoever. Until that is resolved, the problems aren't going to go away.

The Joint Chair (Senator Landon Pearson): Senator Cools, are you raising a point of order?

Senator Anne Cools: Yes. Thank you, chairman.

I was just wondering about the statement that Mr. Forseth made. I believe he was citing from a member of the House of Commons. Perhaps he should tell us who the member of the House of Commons was. I'm interested in knowing. It was a question in question period? Just so that we know.

Senator Lucie Pépin: One look at Hansard and we'll know.

Senator Anne Cools: Well, no— To whom was the question put? Was it to the chairman of the committee?

Senator Erminie Cohen: —

[Inaudible—Editor]—

Senator Anne Cools: Well, he just raised it, so once it's raised, it's raised, and once it's raised, we have a right to know what it was.

Mr. Paul Forseth: I'll just cite the reference. In regular question period today, there was a question from the NDP to the government. The government responded with some generic answer. But certainly the question reflects an attitude that impinges upon the integrity of this committee.

• 1715

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

Senator Marjory LeBreton (Ontario, PC): Thank you, Chair.

Thank you for appearing, witnesses. I am new to this joint committee, having taken the place of Duncan Jessiman, but I have been sitting on the Senate committee hearing the same issue.

I was particularly struck, Mr. Heeney, with your testimony. You were in the room, I believe, when Louise Morreau was giving her testimony. I was struck by your comment and wondered if you had some particular comment to make on her recommendations, because after all, we are here, and I agree with you that it's an adversarial situation when divorce matters get before the courts. In your particular case it sounds like it would have helped.

In terms of mandatory education, where parents, when they're put into this adversarial position, actually sit down with the professionals and are made to understand the impact of their actions and their statements on their children, I wonder whether you—and I think you said that actually in your presentation to us—would support mandatory education.

Mr. Christopher Heeney: Yes, definitely. That's one of the problems when you come into this situation. I knew nothing about litigation. I'm a manager, so I have some idea how to deal with conflict: get both parties together and try to explain the process and what's— Mind you, what do you explain to them—whether you can have an adversarial lawyer or a non-adversarial lawyer? There has to be more to it than that. You have to have a process with guidelines on how to proceed through a divorce in an amicable way versus being able to sit on the sidelines and hire a gunslinging lawyer to do your dirty work for you, which is basically what my former spouse had done. She had been seeing a lawyer for a year and a half before she finally issued an ex parte order. I knew nothing about litigation. Definitely education should be mandatory.

Senator Marjory LeBreton: Because it struck me when I listened to Ms. Morreau that parents on either side say and do things in front of their children. Let me use the example of saying to a young seven-year-old boy, “You're the man of the house”, and putting that kind of a burden on that child. Perhaps in this heightened situation the parents are in, the impact on the children should be explained to both of them.

Mr. Christopher Heeney: And the children should be involved as well.

Senator Marjory LeBreton: Initially the things that you should and should not say to your children and perhaps later bring the children in— That was my only question. Does anybody else want to respond?

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

Mr. Jim Gentle: I went through this whole thing in 1993, basically, and it's extremely emotional. You're trying to make a living and do your best for your children, and 40% of my income goes towards child support and alimony. She's in school still, in university. She had to leave to go back to Quebec City; that's why she went for it. She still hasn't done it, but that's not an issue to me, because the bottom line is the children are fine.

I think most fathers going into this are really good fathers, the great majority, but it's amazing what happens. You just seem to do your best. But what I experienced was the more I tried to do and the more time I tried to spend I just kept on getting slapped, it seemed. It's incredible. I can understand why a lot of fathers back off and the next thing you know they're gone. They shouldn't be; they should hang in there. It's not easy. It's incredible.

Senator Marjory LeBreton: Would being forced to go through mandatory education where the parents realize the impact of their actions on their children have helped in your case, Mr. Gentle?

Mr. Jim Gentle: I think it would have helped if we had a better understanding of how the whole system worked. In addition to that, I think there has to be some sort of an education with respect to the courts too, because given some of the decisions being made, they seem to be all over the map. I had a situation where I had to go to court in Napanee, the district I live in basically, for support payments in 1993, and the judge who was supposed to show up had a reputation for being very fair. That's all I wanted. There's no way I wanted her to get something low. That's not good for my children. At the same time, I didn't want to get to the point where I'm on wieners and beans and I can't do anything with the kids.

• 1720

It turned out that this judge couldn't make it for whatever reason, and when it was discovered who was going to be appearing that day you should have heard the lawyers in the hallway. It was like a state of panic. I was asking, what's going on? This one lawyer, I'll never forget, asked what I was there for. I said child support. He looked at me and said “Good luck—you're going to need it”. It shouldn't be like that.

Mr. Leo Lehtiniemi: The issue of education is one that will succeed only when both parties are willing to go along with it. Before I actually left the marriage I spent about five months having counselling for my kids and my ex-wife with a child psychiatrist to go over the issues that had led to the break-up of that marriage. It identified things that would have to be dealt with afterward.

My ex-wife hired a very competent firm of legal professionals. I hired somebody who I was told was competent and fair and who I think was competent and fair. My wife's lawyer served notice during the month that my lawyer had said she'd be on holidays and asked if we would please defer any actions. My wife's lawyer gave us three weeks to get the response done.

There is a legal gamesmanship that goes on. The anger of a spouse who is left is phenomenal and has to be factored in. They might use any means at all at their disposal to get even. In my case, when I said I'm leaving, I will not tolerate this any longer, I was told point blank that she would take me for every cent I possibly could give her.

Senator Marjory LeBreton: So in your case then—

Mr. Leo Lehtiniemi: Education would not have helped.

Senator Marjory LeBreton: —clearly the lawyers made the situation worse.

Mr. Jim Gentle: Yes.

This is a money tree. This is a beautiful money tree. I'm in mortgage financing for a national company. In our business we say there are two wonderful things that lawyers like the best, and that's foreclosure and divorce.

The Joint Chair (Senator Landon Pearson): Senator, you have a tiny question? We're now 25 minutes over time.

Senator Mabel DeWare: I just wanted to ask Jim, who told you to get a female lawyer? You said you were almost told you had to.

Mr. Jim Gentle: Yes. Because I'm in mortgage financing I know a lot of individuals who are lawyers in Kingston. So when I was going through this I'd ask a question and I'd ask two or three different men lawyers. They said no, you have to use a woman lawyer, because you'll be accused, if you don't, of being a woman-hater.

And I would say to Mr. Forseth that I'm amazed that a member of the NDP would say that this whole thing is biased. Because in my opinion my question back to him would be, as I mentioned here, why did, back in 1993, right in the courthouse—the NDP was in power in Ontario—they have, through the Solicitor General's office, posters basically promoting discrimination? That would have been my question.

For him to even ask that question I think is disgusting. The reason you're having this is because you're openly recognizing there's a problem. And there is.

I have a lot of friends, women, and they know how much support I pay. They know how much I go through with respect to travelling to see my kids and how dedicated I am to my children. These mothers, I'll be honest with you, they'd back me up 100%. They say “You're top notch; you pay $2,000 a month.” That's close to 40% of my income. You go every month to see your kids, it doesn't matter what the weather is like. When I go there, if the kids want to get shoes or shorts, you know the story, it has to be Nike. If I have the money I give it to them. I do anything I possibly can. I pay a lot of money for benefits, the best I can possibly get. And I have no problem with that. So I can't understand the thinking of this person in the House of Commons.

I lost my father, by the way, when I was 15 years old. He passed away. It's not funny. And for a lot of these children, because of this situation, it's the same thing. It's not fun. I think of him every day.

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

As a final comment, you have a another question, Senator DeWare?

Senator Mabel DeWare: Christopher wanted to make a comment.

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

Mr. Christopher Heeney: I just wanted to add that as I was going through this, through the litigation, it was certainly recommended to me, but by friends, to have a woman lawyer. The perception is, I suppose, for whatever reason, that they can be nastier or they're more believed. Basically what I did was I was ignoring most of that because I had a non-adversarial lawyer. I didn't want any of the games or problems, and that was my downfall. But that's what was recommended to me by my friends, and that's the perception.

• 1725

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

Could we have put on the record your cases, the numbers and the style of cause, the three cases of your divorce records—

Mr. Christopher Heeney: I'm sorry. The numbers?

The Joint Chair (Senator Landon Pearson): If you don't have them you could send them to us, but it's the name of your case, the number—

Senator Anne Cools: The number is not so important, but we need the name of the case, like Jones v. Smith, and the jurisdiction.

Mr. Christopher Heeney: It's Paquette v. Heeney, and I don't have the number with me.

Senator Anne Cools: What was the year and jurisdiction?

Mr. Christopher Heeney: It would have been in Ottawa in June 1995.

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

Mr. Gentle.

Mr. Jim Gentle: It's Gentle v. Ouellet. It's the Ontario Court Provincial Division in Napanee, Ontario, February 1993.

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

Mr. Lehtiniemi.

Mr. Leo Lehtiniemi: It was Lehtiniemi v. Lehtiniemi. The final divorce decree was granted here in Ottawa. I believe it was in 1993, but I can provide that information to the clerk.

I would like to indicate for the record that I did send a submission. It has detailed case information. I did not want to go over it because it repeated what you had heard.

The Joint Chair (Senator Landon Pearson): Okay. That's fine. Thank you very much indeed.

Thank you to all three of you for your stories and contribution.

Now from the National Foundation for Family Research and Education, we have Ms. Adrienne Snow.

Ms. Adrienne Snow (Co-ordinator, Policy and Communications, National Foundation for Family Research and Education): Good afternoon. I'd like to thank you for giving us an opportunity to participate in these committee hearings.

I will start by just recapping some numbers I'm sure you're all familiar with about current divorce rates in Canada, and the dramatic increase in the number of families that have become entangled in custody and access proceedings in recent years.

In contrast to a few thousand divorces per year prior to the 1968 divorce law reforms in Canada, today the number has dramatically increased to approximately 80,000 per year, according to both Ross Finnie and the Vanier Institute of the Family. By the end of the 1970s, Canada and all American states adopted variations of no-fault divorce. In effect, no-fault divorce allows one partner to divorce the other without cause, leading to the current situation of unilateral divorce where, according to researcher Maggie Gallagher, 80% of all American divorces are the unilateral decision of one partner.

Ironically, no-fault divorce legislation, as you know, was intended to reduce divorce rates and remove acrimony from divorce proceedings, but in Canada the numbers are stark. Before the introduction of the Divorce Act in 1968 the divorce rate sat at 8%. By 1987, the year after the institution of no-fault divorce, that figure had skyrocketed to 44%. Last year it fell to a stable rate of around 40%, according to the Vanier Institute of the Family in Ottawa.

• 1730

However, in spite of these changes in divorce rates, it's clear that the current regime is not satisfactory to most Canadians, we believe. More North Americans, regardless of age, have increasingly expressed concerns regarding making divorce easier for couples to obtain. In 1974, a Canadian survey revealed that 33% of people aged 18 to 29, 37% of people aged 30 to 39, and 42% of people aged 40 to 49 said divorce should be more difficult to obtain.

When these people were resurveyed in 1995, 47% of the first group, 42% of the second group, and 53% of the third group believed that divorce should become more difficult to obtain.

The general public is not the only group that is concerned about the current state of divorce, custody, and access. According to York University sociologist Anne-Marie Ambert, who is currently researching a book on ex-spouses and new spouses, a large proportion of divorced couples come to regret the decision.

Professor Ambert was quoted in the April 20, 1998, issue of Maclean's magazine as saying:

In one-third of the cases I've studied there are no serious grounds for divorce, and the participants themselves say things like “If I had to do it over again, I wouldn't do it”.

Of course it's not just the general public and divorcing partners who are disturbed by the current state of affairs. And here I come to the real point of my presentation. There's a third group that's deeply affected by Canada's current divorce regime—its no-fault, smash-and-grab divorce system and the way custody and access are awarded—and that group is, of course, children.

We often hear the argument that this cannot possibly be true. It is better for a child to be raised by one happy, independent parent than by a man and a woman who are locked in an unhappy conflict-ridden relationship. However, according to Barbara Dafoe Whitehead, author of The Divorce Culture, if the conflict in a marriage is high-level, persistent, and marked by physical violence or severe abuse, researchers conclude that children may be better off if the parents separate. However, some reliable estimates suggest that only about 10% to 15% of marriages ending in divorce actually involve high-level conflict and violence. This leaves a substantial percentage of troubled marriages involving children in the softer, and therefore potentially salvageable, category.

This point has also been made by William Galston, a professor of public affairs at the University of Maryland, and President Clinton's deputy assistant for domestic policy from 1993 to 1995. Mr. Galston has observed:

There's a critical distinction between divorces involving physical abuse or extreme emotional cruelty and those that do not. Minor children in the former category are, on balance, better off than if their parents had remained married, but the opposite is the case for children in the latter category, which is much larger. Divorce in these cases has an independent negative effect on the well-being of minor children, along a number of key dimensions: school performance, high school completion, college attendance and graduation, labour force attachment and work patterns, depression and other psychological illnesses, crime, suicide, out-of-wedlock births, and the propensity to become divorced. There's also evidence that the experience of divorce diminishes trust and impedes the capacity of children, once grown, to form stable, lasting relationships.

The reason for this can be found in the extensive body of psychological and medical literature pertaining to attachment theory that now exists. This is the area in which our foundation is currently active in its research.

According to attachment theory, at six months of age the infant develops an internal representation of the attachment relationship, which guides his behaviour in new situations. Attachment is viewed as a persisting tie that binds one person to another, and tends to be manifested under conditions of stress. Through the attachment relationship, children develop a sense of security; expectations about others, which form the basis for all subsequent social relationships; and conceptions of self.

Research has demonstrated that infants who develop secure attachments to both partents—and I must emphasize both parents in the context of this discussion—function more competently at older ages than infants who develop only one or no secure attachments.

In recent years, studies have focused on investigating influences on the stability of attachment patterns. According to research by Dr. Jay Belsky at the University of Pennsylvania and others, it may be that changing features of the family, such as those occasioned by divorce, actually contribute to less stable attachment relationships between children and their parents, and thereby increase the risk of children developing psychological and behavioural pathologies.

• 1735

Indeed, recent research by Dr. Claudio Violato at the University of Calgary and the psychological research staff of our foundation suggests that divorce is an extremely stressful event for almost all children.

Most of the research describing the effects of divorce has focused on the immediate post-divorce situation for children whose custodial parent is their mother and whose contact with their non-custodial parent, usually the father, may be frequent, intermittent, or non-existent. Although each child may respond in a unique way, almost all children experience the transition of divorce and decreased contact with one parent, which is an inevitable part of divorce, as painful.

Parental preoccupation with tensions and problems in the marital relationship may lead to reduced time with children and inconsistent monitoring and regulating of children's behaviour. Divorce for many children is associated with substantial short-term elevations in emotional distress.

Children may, as the result of divorce, fear abandonment by the other parent or the loss of both parents as they once knew them. Undeserved self-blame and inaccurate perceptions of rejection exemplify maladaptive cognitive and effective responses. Feelings of abandonment may stem from the child's belief that they are not worthy of affection and not loved by parents. Some children, as the result of decreased contact with one parent, begin to withdraw from people and the world around them. Depression may be manifested in frequent daydreaming, inattentiveness in school, and poor grades.

To sum up what attachment theory and the growing body of scientific research tell us about the effects of divorce and a custody and access system that more usually than not deprives children of regular contact with one of their parents, let me quickly recap.

First, children form attachments to both parents at an early age.

Senator Lucie Pépin: Could you speak a little slower, please?

Ms. Adrienne Snow: Certainly.

Senator Lucie Pépin: Could you speak a little louder?

Ms. Adrienne Snow: Sure.

How am I doing for time?

The Joint Chair (Senator Landon Pearson): You're over the time, but you can go on.

Ms. Adrienne Snow: Okay.

Senator Lucie Pépin: I think it's important that we understand.

Ms. Adrienne Snow: Two, these attachments are severely disrupted by the continued and often increased conflict between parents that occurs during the divorce, and specifically the custody and access process.

Three, the lack of availability of both parents, who tend to become preoccupied with their own needs and emotional state during and after the divorce, and the disengagement of the non-custodial parent following divorce both contribute to the disruption of the child's attachment to this crucial mother-father unit.

Although many people talk about the decline in material well-being that frequently accompanies divorce as being the important factor in the emotional disturbances experienced by children of divorce, the balance of the research shows that poverty by itself does not lead to pathologies among children of divorced parents. Rather it's the impact poverty may have on parenting style and skills that has been shown to have a causative effect on the development of emotional difficulties for children post-divorce. Specifically, poor parents tend to lack time to supervise their children, as they spend more time pursuing gainful employment.

Physical instability and life changes, such as one or more changes in residence or the arrival of a step-parent or step-siblings, combine with the structural instability caused by the loss of contact with one parent to increase children's risk for a variety of disorders following divorce.

What are the implications of all this evidence? According to a large national study entitled “Non-Custodial Parents' Participation in their Children's Lives”, which was conducted for the United States Department of Health and Human Services in 1996,

The analyses suggest that continued contact with a non-resident parent has a beneficial influence on teens, children, and young adults. Moreover, contact has a positive association with both the payment of child support and with compliance with child support orders.

The results of the analyses are broadly suggestive of arguments for joint custody, though the influence of joint custody differs somewhat depending upon whether it is joint, legal, or joint legal and physical custody. Non-residential parents with joint legal and physical custody are more likely to pay child support and to comply more fully with their support obligations than parents in other arrangements. In other words, arrangements that facilitate and encourage the ongoing presence of both parents in children's lives after divorce lie at the heart of developing a truly child-centred system of custody and access.

In a number of studies, including one conducted in 1989 by Professors Peck and Manocherian, children have indicated that they both want and need an ongoing relationship with both parents. The evidence suggests that children are aware of the special biological, psychological, and sociological benefits of having two parents, rather than only one parent, involved in child-rearing.

• 1740

Researchers also point to the numerous studies that consistently reveal that the loss of a paternal role model can predispose children to delinquency, suicide, alcohol and drug abuse, sleep disorders, lower academic achievement, confused sexual identity, promiscuity, and a pessimistic perception of the world.

So how do we achieve this, a system that respects children's needs for two healthy, nurturing parents in their lives? First, and the most obvious answer, is to find ways to reduce the incidence of divorce altogether. There are a number of ways this can be done, some of which are being tried in jurisdictions throughout North America and around the world. To give you a very quick overview of them, I'll again quote from Dr. William Galston, President Clinton's former policy adviser:

There are three points at which we may be able to reduce divorces involving minor children. The first occurs at or before marriage. It's stunning how many schools talk about sex while failing to discuss marriage in any sustained manner. It is a legitimate function of public education to treat marriage seriously, as a human and social institution.

The second point of intervention occurs during marriage. At a minimum, we should systematically re-examine our economic and social policies and our tax code with an eye to creating a marriage-friendly environment. In addition, religious institutions can offer programs for couples who want to renew marriages or confront problems that could lead to marital dissolution if left unaddressed.

The third key point of intervention occurs at the threshold of divorce. We could institute significant changes in the current no-fault regime, in effect creating a two-tiered system. For couples without minor children, current law could be left in place. For couples with minor children, we should eliminate unilateral no-fault where one person can readily obtain a divorce without the other's consent, and return to an updated fault system, with the alternative of a five-year waiting period. Even in cases where both parties consent, there should be suitable breaking mechanisms, a mandatory pause of at least a year for reflection, counselling, and mediation.

Of course, where divorce cannot prevented, a range of policy options also exist that may help children better maintain that crucial health-giving bond with both parents.

Carl Schneider, a professor of law at the University of Michigan, wrote in a 1996 book, entitled Promises to Keep, that:

In principle, the law has long endorsed the principle that children of divorce should stay close to both parents, and it has sought to accomplish that end by awarding the non-custodial parent the right to visit his children. In practice, these awards often prove fruitless. Many non-custodial parents find that, for many reasons, they gradually become estranged from their children.

The Joint Chair (Senator Landon Pearson): Are you near the end now?

Ms. Adrienne Snow: Yes.

The Joint Chair (Senator Landon Pearson): Otherwise, there won't be time for questions.

Ms. Adrienne Snow: Another 60 seconds, I would say.

Two direct approaches to this problem may be imagined. First, one could penalize people who did not exercise the visitation privileges by devices like taking those privileges away, or by increasing the amount of child support they owe.

Of course, in Canada there's already been a great deal of talk and considerable action on that aspect of the problem. However, Dr. Schneider's second suggestion, that custodial parents who thwart visitation should be penalized for their interference, has been much less discussed but clearly is an equally important part of this equation.

In any case, regardless of the decisions you as policy-makers take on these matters, what is clear is that our current system is not child-centred and is not working. During the past 30 years, Canada's divorce rate has quintupled; our child and teen suicide rate has climbed to the third highest in the world; and one in five Canadian youth now suffer from one or more clinical levels of emotional or mental disorders.

Surely it's time to reverse these trends by helping our children enjoy the benefits a large body of scientific evidence now suggests they reap from the continued presence and support of both a mother and a father in their lives.

My colleagues and I at the National Foundation for Family Research and Education call on all of you, members of the House of Commons and the Senate, to use your considerable talents and influence to help make this possible.

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

Mr. Mayfield.

Mr. Philip Mayfield: You made the statement that divorce should be more difficult to obtain, and a little bit later you went on to talk about a two-tiered divorce system and reintroducing some kind of fault divorce again.

I'm not sure how you would do that. I wonder if you could perhaps go into a bit more detail about this. I think of the problems that existed before no-fault divorce was instituted, and I guess I'm a little surprised to hear that being suggested again. I'd sure like to hear how you have thought through your position to that point.

Ms. Adrienne Snow: Quite frankly, our organization's expertise lies in the area of psychological research. That suggestion, the proposal to bring back some form of two-tiered fault divorce system, was drafted by William Galston, a policy adviser to President Clinton.

• 1745

I don't pretend to be an expert at drafting new divorce laws. You guys are the policy-makers. I merely raise it as one of a range of options that could be considered as a way of reversing the tide toward no-fault divorce.

Mr. Philip Mayfield: Would you be able to comment on your initial statement, then, that divorce should be more difficult to obtain? How would you see that happening?

Ms. Adrienne Snow: Presumably some return to a fault system or to longer waiting periods so that the one-third of the population the professor from York refers to as people who regret the decision to divorce have a longer cooling-out period. Thinking about the implications of what they're doing could be beneficial.

Obviously it's not within the power of the government, and nor should it be, to prevent people from obtaining divorce at all. I don't think anyone would suggest that for a moment. But with such a large body of evidence that shows that divorce does tend to put children at very high risk, surely there's value in considering policy alternatives that do slow down the movement from a married household to a divorced household within a 12-month period.

Mr. Philip Mayfield: Thank you very much.

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

Senator Erminie Cohen: Thank you for your presentation. You made a couple of points. Education in the schools was one that I don't think I've heard before in relation to the whole area of divorce. Then you talked about early intervention and a cooling-out period.

Well, I think that's a very good formula for maybe prevention. Parents would really understand the results of an unhealthy atmosphere on children. They would go into marriage with a far better knowledge of all these areas.

The more we hear witnesses, the more we realize that public education is a tool we really have to take a serious look at, beginning from grade school right through to pre-divorce. If people sign marriage contracts before they marry in the event that the marriage doesn't work, then maybe we have to take a whole look at people signing a parenting plan, even though at that time they don't know what kind of parent they're going to be. It would be something that would protect the whole institution and perhaps prepare them for the fact that there could be a divorce.

I mean, we fall in love, get married, but we sign a contract in case that marriage breaks up to say what we're going to do. We have to take the bigger picture.

So I wanted to comment that I liked the whole concept of these stages of education, beginning from public school. Do you want to comment any further?

Ms. Adrienne Snow: I think marriage used to be both a legally and a socially privileged institution in our society, and for a variety of reasons that has changed since World War II. There's nothing inherently wrong with that, and for couples where no young children are involved, there probably is indeed nothing wrong with that at all. However, we do now know that the damage done to many children is severe and lasting when they're trapped in acrimonious custody and access disputes or in a divorce of any kind.

You're absolutely right that finding a way to send a signal to all members of the public—that is, if they're going to get married and have children, they're undertaking a special set of responsibilities that need to be thought about seriously before they enter into them—would be very positive.

Professor Schneider, the person to whom I referred earlier, says you need to look at not just penalizing parents for not visiting children but also penalizing parents for interfering with visitation rights. He actually came up with a scheme similar to what you're describing, where people sign almost a parenting contract before marriage.

He also proposes that they sign a contract to bank money away in a child-raising savings account, which would be tax-free, like an RRSP, only it's an “RKSP”, a registered kids' saving plan. It would be there to help with educational expenses for the children as they age or in the event of divorce to ensure that an adequate standard of living is maintained for the children without penalizing either parent unduly.

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

Senator Anne Cools: Thank you, Madam Chairman.

You've raised some very interesting numbers.

I'm seeking from you an opinion more than anything else. One, is divorce a right? Two, whose right is it if it's a right? If it's not a right, why are more divorces not declined? When last has a judge refused to grant a divorce? I'm just curious: Is it a right or is it not a right?

Ms. Adrienne Snow: You are asking me to editorialize, which I wasn't prepared to do.

• 1750

Senator Anne Cools: No, we've had people appear before us and say that no divorce should be granted to anyone unless the children are properly looked after and so on and so forth.

Ms. Adrienne Snow: My personal opinion—and this is not in any way a position of our foundation—is that marriage is of course first and foremost a contract, and under the standards of Canadian law, we do allow people to break contracts provided certain conditions are met. Given the social importance and value of the marriage contract where children are concerned, it may be reasonable and perfectly within the rights of the state to impose fairly heavy penalties and/or impediments to the breaking of that contract.

To say it's absolutely unbreakable, in a secular society in this day and age, is probably not realistic or desirable. There are situations where divorce is necessary.

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

Senator LeBreton.

Senator Marjory LeBreton: I had one very brief question, and it was a result of something you said in your presentation when you talked about no-fault divorce and the increasing numbers since the Divorce Act was changed in 1968. You said divorce took place because of the unilateral decision of one partner to leave the marriage. Do you have statistical breakdowns as to what percentage of that were mothers and what percentage were fathers?

Ms. Adrienne Snow: No, I don't. The only statistic I have on that is the one I've cited, which is Maggie Gallagher's number that 80% of divorces in the United States do come about because of a unilateral decision.

Senator Marjory LeBreton: Of one parent.

Ms. Adrienne Snow: If you delve into her work, she's done a lot of work in this area. There may be gender breakdowns on that, but I don't have that at my fingertips right now.

Senator Marjory LeBreton: Okay.

Senator Anne Cools: As a point of information for Senator Cohen, most petitions for divorce are filed by women; most marriage breakdowns are initiated by women. I can give you statistics for 100 years.

Senator Marjory LeBreton: No, but that wasn't the question.

Senator Anne Cools: No, it's just one of those things we have—

Senator Marjory LeBreton: I asked about unilateral decisions by one party.

Senator Anne Cools: Ah, well, that's different, yes.

Senator Marjory LeBreton: If one partner decides to leave, I can't imagine— I just wanted to know whether there were any statistics as to what precipitates it in the first place.

Senator Anne Cools: Oh, grounds for divorce is a different question.

Senator Marjory LeBreton: I asked the question, Senator Cools, of the witness. I didn't know you were speaking on behalf of the witness.

Anyhow, thank you.

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

Senator Anne Cools: On a point of order, please, I was not speaking; I was adding a point of information.

The Joint Chair (Senator Landon Pearson): Thank you very much indeed, Ms. Snow. Your ample and excellent presentation was very helpful.

Ms. Adrienne Snow: My apologies for the rapid-fire delivery, and thank you for your time.

The Joint Chair (Senator Landon Pearson): But you got it all on the record, so thank you very much indeed.

The Joint Chair (Mr. Roger Gallaway): Okay, we'll enter the final half-hour of our afternoon. With us we have Monsieur Yvan Clermont and Mike Sheridan from Statistics Canada.

You've seen how we operate here, and in fact I'm certain you know how committees work. Are you both going to speak?

Mr. Yvan Clermont (Statistics Canada): Yes.

The Joint Chair (Mr. Roger Gallaway): If you want to proceed, please go ahead.

• 1755

Mr. Mike Sheridan (Statistics Canada): Thank you very much, Mr. Chair.

First of all, I want to thank you for the invitation to come here today and speak to you a little bit about the national longitudinal survey of children and youth. My colleague, Mr. Clermont, and I will try, in the time we have available today, to provide you with somewhat of a very quick overview of the survey. In particular, we'd like to try to focus on the release that Statistics Canada made last week in its daily, on analysis of separation and custody-related issues based on the data from the national longitudinal survey of children.

We'd also like to give you a quick glimpse of the types of studies that have been conducted to date using the survey, as well as possibly some of the future initiatives and future possibilities for studies. Based on a quick look at the web site, in terms of this particular committee, as well as listening just very briefly to some of the testimony here today, there is a huge number of very complex and statistical number-based issues around what this committee is looking at. In terms of using statistical information, certainly I think we are going to be able to help this committee with a set of objectives and well-defined concepts and definitions and harmonized data.

My personal feeling is that we are indeed fortunate to have a survey in Canada like the national longitudinal survey of children and youth. That project has been developed by Statistics Canada jointly with Human Resources Development Canada. We have a very large and well-known advisory committee that directs the work of the survey team in both the design and implementation of the survey instruments, as well as overseeing and contributing to the analysis of these data, making sure that indeed the complexity and the design of this survey are in line with the kinds of research and analysis that are so important and are associated with outcomes of children and youth in Canada.

We conducted the survey on two occasions. It's a longitudinal survey. It's about outcomes and well-being estimates of children. The funding for the survey was based on the Brighter Futures initiative. Since 1994, when we originally conducted our benchmark interview, we've done surveys in 1996 and 1998 on a sample of about 23,000 children, a national sample, available with provincial data. The 23,000 children who were in that survey will be resurveyed every second year into the foreseeable future.

I think many of the questions on the outcomes of children and youth, whether they are living with or without their parents, are complex. The analysis is complex. The techniques to make these data meaningful and to say something about what environments make better outcomes for children than others, what sorts of family structures, what sorts of family environments, are again extremely complicated and subject to a number of interpretations. So our goal is to basically produce a set of objective, well-defined data products and services that can contribute to the debate on these issues.

I'll now turn the floor over to my colleague, Mr. Clermont, and he will give us a quick rundown on some of the data that have come out of the survey, as well as a summary or synopsis of the release that we think is of specific interest to this committee.

[Translation]

Mr. Yvan Clermont: Thank you, Mike.

To summarize the results of a recent study, let's say that the preliminary data have enabled us to observe that a growing number of Canadian children are experiencing the separation of their parents at a younger and younger age. For example, one out five children born in 1987 and 1988 had experienced their parents' separating before they reach the age of five. For people born between 1961 and 1963, this same rate was not attained until they were 16 years old.

• 1800

The report that came out last week, on June 2, also talks about the likelihood of parents separating depending on whether or not they were in a common law relationship or married. The results showed that the likelihood of separation was much greater when parents lived in a common law relationship.

For example, in 1995, 63% of children 10 years old whose parents were common law spouses, already had separated parents. That was the case of only 14% of children whose parents were married and who had never lived in a common-law or other relationship before.

However, there would appear to be major regional differences in the degree of the relationship that exists between various types of marriage and the chances of experiencing parental separation. Only 37% of Quebec children whose parents were in common-law marriages had experienced separation by 6 years old, as opposed to about 60% in the rest of the provinces and 44% in the Atlantic provinces.

[English]

The results also show that about one in three children whose parents have separated live in a situation where no financial support is in place. This situation varies as well depending on the type of arrangement existing for the custody of the child. The less they go to court for an agreement for custody, the more likely the existence of an agreement for financial support.

To see more details about these relationships that exist, I would encourage you very much to look at the results of the daily, which are more extensive.

We ignore for the moment what can explain such a strong link between those two things. Further research will permit us to derive more results for this. Of the children whose parents have agreed in court or privately for financial support, 65% of payments are received regularly by the custodial parent from the non-custodial parent. That is to say, 35% of payments are irregular or haven't been received for the last six months.

We will soon have a more detailed report on child custody, which will be produced jointly with the Department of Human Resources Development and the Department of Justice. We think this report should be ready by the beginning of July.

Last week's results were the last results to be published from the first collection of our survey. Future collection among the same respondents and further analysis of the available data offer huge research potential. Links between the family history and the other parts of the questionnaire have not been made yet, but further releases will put the emphasis on the effects of the child's parents' break-up on his or her development in general.

[Translation]

In the near future, we propose to measure the short- and long-term impact of various family patterns on the overall development of children. It will then be possible to assess whether children suffer from psychological damage or behavioural problems following a parental separation. If so, we will be able to assess whether these impacts are mitigated by time or whether they vary according to whether the separation occurred early or later in the life of the child.

In a longitudinal perspective, it will be possible to assess the risk factors for parental separation. It will also be possible to assess whether dysfunctional intact families constitute a better or worse environment for child development than a separated family.

• 1805

The data users will be able to explore a number of research areas. When I talk about the data users, I mean our major client, HRDC, Statistics Canada and all the researchers who have access to the data.

The national longitudinal study on children is very broad, and we expect, in future cycles of the study, to obtain better measures of the tensions that exist between parents before they obtain a child care and financial support settlement, and the tensions that exist or continue to exist thereafter.

We also expect to report on the types of legal agreements for child care in greater detail, and to determine better ways of measuring possible restrictions on access to children by the other parent.

[English]

So far, the NLSCY wasn't measured to produce numerous research on several facets of child development. So how the things you were able to do now will be able to be linked to these new data, which are available now, which talk about the custody and the time of separation in the child's life— To give you a taste of what has been done so far, in a report called Growing up in Canada, we had researchers who had been working on contract with Statistics Canada, for example, on characteristics of physical health of mothers when they're giving birth and what the determinants are of children's birth weight. We also have studies that looked into what the determinants are of difficult temperament in young children.

[Translation]

Furthermore, we have other articles that have established comparisons on the basis of several other factors. For example, we compared children in two types of families: broken families or single-parent families with two-parent families. We can talk about intact families, but that may also include blended families. We compared these two types of families on the basis of levels of hyperactivity, emotional problems, behavioural problems and learning difficulties at school.

On the basis of our preliminary results, it would appear that children in single-parent families, living with a single parent, experience more problems of this nature. It would also seem that children who experience one type of behavioural problem are also likely to show other types of behavioural problems.

By the same token, by taking into account a number of factors that have an influence on child development in general, we tried to determine what protective factors might promote good child development, in spite of the fact that children live in a single-parent family or face other risk factors. It would appear that effective and positive parenting constitutes an important protective factor that may shield children from the impact of other risk factors.

Finally, we examined the characteristics or determinants of children's success in mathematics tests. Our results showed that the mother's education is the predominant factor in young children's success in school.

In the future, it will be possible to link all of the survey contents to the issues of child custody and separation.

I have given you an overview of what has been done and of the future possibilities of the study. Thank you.

[English]

The Joint Chair (Mr. Roger Gallaway): Thank you very much. I know we have questions, and we're going to start with Mr. Forseth.

Mr. Paul Forseth: Thank you for coming today.

Is the report you're talking about available to the public in pamphlet form at this point? If it is, can you state for the record how the public can get a copy of the report?

• 1810

Mr. Mike Sheridan: We brought a copy of Growing up in Canada. We'd be pleased to leave it with the clerk for the committee. It's available in both official languages, as it has been published for some time. The detailed version of the report that was released last week in the daily is available. The authors of that report were a professor of demography from the University of Montreal, and the other name doesn't come to me immediately. Those are available from Statistics Canada to anyone who asks.

Mr. Paul Forseth: This is the longitudinal study you're talking about.

Mr. Mike Sheridan: This is the longitudinal study we're talking about.

Mr. Paul Forseth: Because of the press that the release of this study got across the country, I'm certainly sure many would be interested in having a look at that.

Could you just rehearse for us perhaps the main implication of that particular study for our committee's mandate, trying to look at proceedings around the Divorce Act to make them, in generic terms, a bit more child friendly or more child-focused? What particular parts of that study should we draw our attention to?

Mr. Mike Sheridan: I would think that the issues related to the actual constraints or the actual formality of the agreement that governs a particular separation would appear, at least at this juncture, to have impacts on outcomes for both the children and the spouses involved in that particular issue, or I should say the partners involved in that particular issue. So I think that clearly the committee would be interested in the sorts of analyses that were done around that particular issue. I would suggest that would be important.

I would suggest also that really the fruits of this particular analytical and research endeavour won't be available for another 10 or 15 years, because indeed the longitudinal nature of it and the outcomes of the impact on children as a result of a number of factors—including the amount of family income that is available, the number of parenting opportunities, the type of education—all impact on outcomes. I listened to some of the data in the previous presentation, and there's going to have to be a lot of data confrontation about this issue and talking about the information, talking about the data and doing some real heavy-duty analysis and research on it.

Mr. Paul Forseth: I gather from what you said that in a dissolving family the data reconfirms what we can obviously infer from just common sense: that the more peaceably and reasonably people are able to manage their affairs, rather than getting into a hotly contested court contest and continuing to have an atmosphere of anger and competition and one side against another— Clearly the conflicted alternative is not good for children, and if people are able to manage their affairs and reasonably accommodate each other, children are better accommodated on that side.

Mr. Yvan Clermont: This is what the data seem to be showing. One thing though is we weren't able to measure well the tensions existing at the time of separation for the parents. We only have a very broad measure of how tense things were for the whole process. We don't know if the tension brought people to go to court or the court thing brought people to be tense. These are things we can't say; the data can't tell us that. The only thing is there seemed to be a very strong link effectively.

Mr. Paul Forseth: Okay. Thank you.

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

Senator LeBreton.

Senator Marjory LeBreton: Thank you, Chair.

Actually I'm on the same topic Mr. Forseth was on. On page four of the daily—and I'm not a statistician and I'm certainly not a numbers person—it says:

At first glance, the likelihood of children maintaining regular contact with a non-custodial parent appeared to be linked to the type of financial arrangement between the parents. For example, 75% of children whose parents had a private agreement for financial support in 1994-95 saw their non-custodial parent regularly, at least once a month, compared with just 51% of children whose parents had a court-ordered financial arrangement. About 49% of children whose parents had no financial arrangement saw their non-custodial parent regularly.

• 1815

First of all, these numbers don't add up to 100, so I don't know how these numbers are arrived at. But the other thing this seems to suggest is if you look at just the straight numbers, as was just pointed out, once the courts got into it, it seemed to have a direct impact on the visitations by non-custodial parents.

Mr. Yvan Clermont: Here again, it's the same issue I was discussing before. First of all, the numbers don't add up to 100 when you add up the columns, but they do when you add up the rows—well, with maybe one more or less, because of rounding.

In fact this is an interesting link we thought we should be making. Here again, we don't know exactly what happened. Some of the people who got into a separation here got into a separation a year prior to the survey, or ten years prior to the survey. So the information we have is only about how the process went. We would have needed a more extensive section in the questionnaire related to this in order to better see exactly what happens there.

Senator Marjory LeBreton: And you are going to be doing that.

Mr. Yvan Clermont: The link is showing things. It may suggest things. But this requires more research in order to be more conclusive on that.

Senator Marjory LeBreton: That's definitely the suggestion: that the more adversarial, the more the courts are involved, the less beneficial it is for the children.

Mr. Yvan Clermont: Yes. But there's one thing I'd like to say on that as well, and that is it's very dangerous to do that type of link, that the more the court is involved the less beneficial it is for the children, because maybe all the problematic cases end up in court—

Senator Marjory LeBreton: That's true, yes.

Mr. Yvan Clermont: —whereas a fine separation—if I can call it that—doesn't need to end up in court.

Senator Marjory LeBreton: Yes, that's true.

Mr. Yvan Clermont: So you get a polarization of different types of people in both cases. This is why we have to be very careful about this.

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

Mr. Mayfield.

Mr. Philip Mayfield: Thank you very much.

I note that you found that one out of five children experienced parental separation before five. I think that's what you said. I was wondering if there's any further break-out in your data of say children who may be adopted children or who may have only one biological parent in the family. Is there separate data for that?

Mr. Yvan Clermont: There could always be the possibility to do a breakdown, as you suggest here. The problem is that with a sample of 23,000 kids, with only a certain proportion experiencing divorce or separation of their parents, it's hard to be statistically significant, choosing a smaller and smaller sub-sample of children and trying to track down what happens to them and do reliable estimates of these rates of separation for those classes.

Mr. Philip Mayfield: Thank you very much.

The Joint Chair (Mr. Roger Gallaway): Thank you very much, gentlemen, for coming here.

I know that it's the end of the day and we've gone overtime, and I appreciate the fact that you've waited for us. Thank you very much. It's been most interesting.

Mr. Mike Sheridan: Thank you.

The Joint Chair (Mr. Roger Gallaway): This committee will stand adjourned until Wednesday at 3.30.