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, November 2, 1998

• 1537

[English]

The Joint Chair (Mr. Roger Gallaway (Sarnia—Lambton, Lib.)): I call this meeting to order. This is meeting 45 of the Special Joint Committee on Child Custody and Access.

With us today are two witnesses, the first being the Hon. Ethel Blondin-Andrew, Secretary of State for Children and Youth, and the second being the Hon. Hedy Fry, Secretary of State for Multiculturalism and the Status of Women.

We're going to ask Secretary of State Fry to start, and ask that she introduce the officials who are with her from the department.

Hon. Hedy Fry (Secretary of State, Multiculturalism and Status of Women): Thank you very much, Mr. Chair.

I want to thank the committee for giving us the opportunity to present on this very important topic.

I would like to introduce Florence Ievers, the coordinator for Status of Women Canada, and Lorraine Pelot, who's now with Health Canada, but she has been in charge of this file and has only recently left us to go to Health Canada.

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

Ms. Hedy Fry: Thank you very much.

[Translation]

Before getting into my presentation, I would like to say that I've followed the committee hearings since the beginning, in February. The basic premise, yours, that of the committee members and of Parliament, as is indicated by the committee's mandate, is the interests of children.

How can we ensure, as far as possible, that divorce does not have a negative impact on the well-being of children? Although a good part of the discussions have been on that goal, many of the hearings have in fact revolved around statistics on men versus women, fathers versus mothers.

[English]

In our discussions, we want to be very careful not to exacerbate conflicts that already exist and to start pitting groups against each other. Without dealing with too many statistics, we know that anywhere between about 5% and 7% of cases reach court and involve high conflict. At least that's what the statistics we've heard repeatedly throughout these hearings have told us.

What we would like to put forward, as Status of Women Canada, is that before we mandate solutions that seem to be simplistic or that seem to be generic, we must be aware that in fact most cases must be taken in the context of the family life during the life of the family; the things that led to the conflict; and the conflict that exists. Therefore, they must be flexible. Arrangements must be individual and must be tailored to meet the needs of specific families and must also reflect the reality that exists in those families.

If we do that, then we will be able to deal with the issues as they truly affect the reality of the lives of the groups.

• 1540

I don't have to tell you—you've heard this, and have been listening to this for so many months now—that the context of divorce is one that is inherently detrimental to the children. Very few custody and access disputes reach the court, but those that do are the ones we hear about. Many of those that don't still have within them some elements of conflict, some elements of anger, some elements of dispute in which the children feel themselves batted back and forth.

We also know that in divorce, the family changes. No longer does the child live with two parents in a home. Suddenly, the parents are living separately, and that child is then quite often seen as a pawn that is to be moved from A to B to C to D. Quite often that leaves the child confused. The child loves both parents dearly, and the confusion between loving parents, being afraid of them, not wanting to pit parents against each other—because quite often the child feels that the child is the problem—the child in custody and access disputes sees herself or himself as the reason the parents are fighting, so that child automatically doesn't feel happy in either situation. We're dealing with a situation, then, in which everything is inherently geared to conflict and confusion.

We also know that divorce can exacerbate power imbalances and can increase the level of conflict that may or may not have existed during the life of that family.

I want to look at the tasks at hand from our perspective. We see two tasks. One deals specifically with the issues of violence, of conflict and power imbalances, and custody in a manner that promotes the well-being of the child. I think that is the first one we want to look at. The second task at hand deals with the issue of the well-being of the child. How do we look at how the child's best interests are served in this whole thing?

I know you know that those are your tasks, and I know you have been dealing with those tasks in that way.

How do we identify factors that are necessary to the well-being of children in divorcing families? We think those factors are fairly clear. One, how do we ensure that the safety and security of the child is met? How do we ensure that continuity and stability of the family is there for that child? How do we ensure that care is foremost in the minds of those who are delivering care to that child? And how do we ensure that there is an environment in which there is minimal parental conflict?

Let us first, then, deal with the first task at hand, which is to look at the issues of violence and abuse and power imbalances. Violence and abuse exist in very many forms. They can be psychological or emotional, they can be physical or sexual, and they can be verbal. I think one of the things we do know is that children are always there watching. We know that in four out of ten families, children witness violence within the family.

How does that impact on the child? Here you have a child loving both parents, and yet feeling the need to protect one parent against the other, feeling fear of the abuser parent, and feeling a sense to protect the abused parent. Yet confusion exists in the child, who feels loyal to both parents. So the child immediately is a pawn, whether the child likes it or not, in situations of conflict.

What I would like to talk about is that the child is never safe or secure where there is an issue of real violence or abuse, either to the child or to another parent. There is also no doubt, as you have heard before, that violence against men exists, but there is overwhelming evidence that the majority of spousal violence is against women.

We have in fact followed the numerous recent media accounts of women being murdered by their spouses, but violence is evidenced in our newspapers and in our courts every day. Some 21,900 cases of spousal assault were recorded in 1996, to 154 police departments in Canada. The proportion of male victims was 11% compared with female victims, at 89%.

Separation inherently is a time in which that violence is exacerbated. In the 1993 violence against women survey, we found that one-fifth of women who experience violence by a former spouse said that the first time it occurred was during or following separation.

• 1545

I am not blaming here; I am just trying to paint an environment for the child.

We know violence can be psychological and emotional. As a physician, I can tell you that the ones you don't see, the broken bones you don't find, the scars that don't heal, are the ones in which there is emotional or verbal abuse.

Again, as I said, it is a means of intimidation. The child is intimidated. Obviously, if the child is the direct receiver of the abuse, it's pretty clear that the child must be taken out of the abusive situation, but when one parent is the receiver of the abuse by another, the child is immediately caught in between.

Either the child learns that this is the way to resolve conflict and becomes, as we know happens in many cases, an abuser himself or herself, or the child is torn between loving, caring, wanting to defend and wanting to be loyal to both parents, and not knowing how to choose.

Family violence, as we well know, is an exercise of control and power over one person onto another. It is in fact for that reason that we feel violence must be taken into consideration, and the existing conflicts within the family, the existing situation in the family, before separation and divorce, must always be taken into consideration prior to making decisions.

We know that the abused parent quite often makes a decision with regard to custody and access out of fear, and we know that many abused parents may make decisions to protect the children. For example, they may trade off fair child support settlements to avoid a custody battle.

How do we, therefore, use some guiding principles in looking at determining custody and access of a violent parent?

The presence of violence should override concern about the effects on children of not having contact with both parents. If there is fear for the child's safety, the concern of which one of the parents has right of access is not the issue here; the safety of the child is first and foremost.

I know there have been discussions about whether or not there are false allegations of abuse. As a physician, I can tell you that one of the first things you do is not take chances. You suggest that the child is taken away from what may be a potentially abusive situation until that abuse is proven, because after it's been proven that the abuse situation is real, it may be too late; the child has been in it all along. If it's proven to be negative, well, nothing was lost, and the child can return to that parent.

I think it's very important, therefore, that any allegation of abuse is dealt with quickly and is investigated as soon as possible. We feel that the best people to do that are the courts, the legal system, because there is definitely a process by which this should be done.

Now, we know that abusers use custody and access themselves, as well as threats of custody disputes, to control the abused spouse. In terms of assessing protective action and behaviour of a parent who is a victim, abusers should not be able to take advantage, or disadvantage, by using homelessness, depression, unemployment, in terms of leaving the child behind on the part of the parent who is the victim in the relationship.

Professionals in the justice system, such as judges and assessors, need social context training to understand violence and its effects. In fact, violence should be defined in family law legislation.

Some forms are more evident and more commonly acknowledged than others. Physical violence and sexual violence leaves a trail. You can see it, you can examine it, and you can find traces of it. But there are other forms of violence, emotional and verbal, that we know do not leave those kinds of scars.

Courts and judges can then make determinations regarding evidence and proof, and individual instances of false allegations should be left to the justice system.

I know there has been discussion of whether or not, if there is a false allegation, parents making the false allegations should be put into jail. I suppose if we look at all of this from the context of what is in the best interests of the child, the question is, how does it serve the best interests of the child to put a parent into jail? I think that's the first thing you have to think about when you think of children.

In divorce, as I said, both parents no longer live in the home, and the child has to be shunted between parents. Now, good contact with both parents, if they are non-abusive, is excellent for the child. It's very important for the child's well-being. But it's also important for the child to have a clear sense of a home base.

• 1550

There must be a place where that child can feel there is a home, where that child has roots, where that child can have a sense of the stability the child needs to be able to grow and to be able to exist.

From a recent study on children in Canada, we found that children who move more than three or four times during their lifespan as a child are more prone to, and liable to, have behavioural problems, mainly because of the fact that they don't have any roots. They don't have any special place in which to be.

So when you talk about custody and access, I think it's very important to recognize that within custody and access, there is a place for that child to have a stable base that child can call home, even though the child should have liberal access to the non-custodial parent, whoever that is, and in cases where parents get along very well, then obviously joint custody works out quite well for both parents.

Joint custody, we believe, should not be legally imposed, and should not be forced on parents. It should be done by choice. Joint custody does not work where there is conflict between the parents. Again, as we've seen in the recent study on children in Canada, where there is parental conflict, the child has a greater incidence of behavioural problems.

It is not the moving from parent to parent to visit parents that creates the problem. It is when the parents, when the child visits, have conflicts against each other and are using one parent to say things about a parent, and the child goes back to the other home feeling they've been disloyal to the first parent. This creates in the child a sense of confusion, a sense of mixed loyalties, and therefore, in some of these instances, one has to consider whether both parents are necessarily always in the best interests of the child.

The financial needs of children should not be tied to their need for care. Meeting the financial needs of children should be legally imposed, as it is now, regardless of which parent has custody and authority to make decisions. Otherwise, child support can be used to lever or to force other decisions that may not promote the well-being of the children.

Satisfying the financial needs of children furthers their physical, mental and educational needs, so that they can have the tools and skills they need to go forward into the world. It is part of that continuing care stability of the child.

Because we recognize that within most divorce there is inherently a power imbalance, the cost of a dispute should not be limited by one parent's inability to participate in the system. I think there should be consideration given to legal aid or funded services to ensure that both parents have a voice in the system, especially where divorce has created an even greater power and economic imbalance, and one parent may not have access at all to any kind of legal aid to bring their cases forward.

Mediation should be one tool, we think, but not the only tool. There are many other tools that can be used for decreasing conflicts in situations. Forced mediation can lead to intimidation in many instances, especially where there is a power imbalance. If parents believe they cannot discuss the best interests of the child without being forced to have mediation, then, in fact, parents may be afraid to talk about the conflict, or to discuss issues that are of concern to them and to the child's well-being because they don't want to be forced into mediation where decisions would be made that may or may not be in the best interests of the child.

The task finally at hand is, how do we talk about the well-being of the child? We know children are accustomed to the patterns of care received in an intact family. Children who are loved and cared for, safe and secure, will be strong enough to weather the instability that comes in divorce. We know that.

We have seen, in fact—again, in this very recent study of children within Canada—that it is not whether a child lives with two parents or one parent. We know that 75% of Canadian children today live with their biological parents, and yet we find that only one-third of parents in Canada give children the necessary environment for their well-being.

Therefore, what we're trying to say is that it's not whether a child is with two parents or one parent. It is whether the child has stability, whether there is consistency of rules and regulations and values by which that child must live. Sometimes, when we talk about conflicts between parents, remember that the parents play each other out. One wants to be the good person and make the other one the bad person, and one parent will always try to do what the other parent says the kid shouldn't do so that the parent can curry favour with the child.

• 1555

That is one of the things that leads to behavioural problems in children, not the moving from parent to parent, but the playing off of who is the better parent. I think what we want to say is that those things should be taken into consideration when you talk about custody.

There are many custodial parents who wish that the non-custodial parent would take on more responsibility for the children. In many cases of custody and access, the issue is not whether or not the non-custodial parent gets to see the child, it's whether or not the child gets to see the non-custodial parent.

I think these types of arrangements, where parents can share the chores of caregiving for the child—going to the doctor, going to dental appointments, etc.—between the custodial and non-custodial parent gives the child a sense of a continuity of care, that both parents care for the child's physical and mental well-being. But in cases where parents are using the children as pawns to control or punish the other parent, children need to be protected. In these cases, they should receive care from the parent who has a proven record of care and responsibility for the children.

In dangerous situations, children need the stability that continuity of caregiving and responsibility can bring. So the parent who had traditionally been responsible for the caregiving and the continuity may well be the parent who can provide that sense of stability and continuity for the child.

Furthermore, children's needs or desires may be undermined by parents wanting to use the child as a pawn to control or punish the other parent, especially around access, and there could be a mechanism that is triggered by the child in these instances. I think we need to talk about mechanisms that are triggered by children themselves. That could involve a neutral third party who would discuss the confusion, the intimidation and the conflict that the child feels between both parents, and help that child to be able to come to a good and reasonable resolution that is safe for the child, and that is child made, with, as I said before, someone who speaks for the child and who is neutral.

In many instances where there is conflict, there has to be one parent who is going to be able to make decisions on an emergency basis, or an urgent basis, to care for the child's well-being. We think it is important to recognize that this should be the parent who, again, is the custodial parent, who has been proven to be the nurturing and the sustaining parent, who has given the caregiving for the bulk of the time.

Thankfully, many parents come to a good agreement before they go to court, because there is enormous pain involved in the break-up of a marriage where children are involved. Where divorcing parents cannot agree on custody and access, there are no simple solutions, I think, that are pain-free to all parties.

We have to recognize that this is not about whose right it is to have the child but what the child's right is to live free from conflict, to be safe, to be loved, to be nurtured, remembering that children who are involved in very strong custody and access conflict tend more than anything to feel the pain of loyalty to both parents. When parents fight over children it creates this real behavioural problem for the child. The child eventually believes the child cannot make the right decisions at any one time. Many children run away from home because of this kind of polarization, which is caused by that kind of conflict.

One should be guided by principles that always consider what is best for the child, and not necessarily what is best for the parent. Of course we recognize that children can grow up safe and healthy in single-parent families. Our recent study on children in Canada has shown that in many single-parent families, children are growing up to be safe and to be healthy. But we recognize that where there is conflict, parents may not necessarily agree on rules of parenting, and may play the child off against the other, and that is more detrimental to the child. Having two parents play that child off against each other in terms of rules for the child—leniency on one the hand, and the other parent being the disciplinarian and the dictator on the other hand—creates just as serious problems for the child as the child having both parents to go to and to live with at all times.

What we're trying to say is that if we look always not at whose right it is to have the child or to see the child or to visit the child but look at the child under the four headings of what is a safe and secure place for that child to be.... And that place may in some instances be only with one parent. That place may be happily with both parents. That place may be where they see more of one parent than the other, and there may need to be supervised access to another parent for a period of time. We have to recognize that it is the child's safety that is paramount, and not the parental need.

• 1600

Secondly, there must be continuity of care—a home base, a place for the child to dig its roots in and to be able to feel that it can go to and come from and reach out and grow in independence, visiting the other parent, but knowing it has a place to come back to that is safe. That is as key and important in terms of continuity for the child as anything else.

Finally, there is a need to recognize that the child has to have an access area where the child has to be able to find someone, a neutral third party, when both parents are totally incapable of agreeing on what is in the best interests of the child. That child has to have the ability to have access to a third person who will listen to the child, who will advocate for the child, and who will find the best interests of the child, as always.

If we keep in mind those very clear guidelines for what is in the best interests of the child, not which parent wins and which parent loses, we will avoid doing harm. The task at hand is to make certain that children are well loved, safe and secure.

I want to close by reminding you of that old Bible story of King Solomon. Two mothers were fighting over a child, and each said the child was hers. He finally resolved it—and it is a resolution we must be careful not to make for our children, cutting them in two as if they were a table or chair—by suggesting that the child be cut in two, and each half be given to each parent. The mother of the child said, “This is not my child; give the child to the other person”.

This is where, in the end, the person who loves and cares for that child most of all would be able to decide what is in the best interests of the child. That is always going to be evident in who decides which parents has rights, and not in what is decided for the best interests of the child.

If you bear that in mind, I think we will come up with some reasonable assumptions that are flexible, that take into consideration the independent conditions of families prior to divorce and separation—whether there was abuse or there wasn't abuse, what the levels of conflict were. Guided by these principles, I think we will be able to find something that will help our children grow up safe, strong, nurtured and loved, and not used as furniture.

Thank you very much.

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

Now we'll have Ms. Ethel Blondin-Andrew. With her is Patricia Walsh who, I understand, works actually in Health Canada.

Please proceed.

[Translation]

The Honorable Ethel Blondin-Andrew (Secretary of State (Children and Youth)): Thank you, Mr. Gallaway and Senator Pearson. It's a pleasure for me to be able to address the members of your distinguished committee.

I have been asked to speak on some native questions that are relevant to your study on provisions concerning child custody and access after a separation or a divorce.

[English]

I'm happy to do so, but will frame my remarks within the larger policy concerns applying to all Canadian children.

As indicated in Securing our Future Together, this government believes in ensuring that children have the best possible start in life, and that all children are able to reach their full potential. As Secretary of State for Children and Youth, I'm very interested in the child custody and access issue as it pertains to the healthy development of all children.

The family, in its many forms, is a positive and essential unit that should be appreciated, supported and protected. Unfortunately, divorce and separation are challenges many Canadian children face. Children are often the innocent victims of conflict in the adult world.

I know you've heard already some testimony about the National Longitudinal Survey on Children and Youth. This is the long-term study undertaken by Human Resources Development Canada in cooperation with Statistics Canada.

The latest results were featured at a conference last week, and they will provide policymakers an opportunity to begin understanding the impacts of divorce and identify other risk factors to a child's healthy development.

• 1605

What we do know, as my colleague has indicated, is that some 75% of Canadian children live in the same household with both parents. At the same time, the percentage of children born to parents in common-law relationships has nearly doubled over the past decade.

Most children are doing well in adapting to such changes as moving to a new house, a new school, a new neighbourhood. However, we also know from the survey results that children of divorced parents are more likely to have behavioural and emotional problems.

This is not always the case, as my colleague's indicated, but these are the results of some of the information we've received from the study.

Likewise, the majority of children living with a single parent are doing well overall but are more likely to repeat grades at school, have poorer language skills, and poorer health. It also goes without saying that there are children who come from lone- or single-parent families who are well nurtured, well loved and who have all the opportunities that any other children are afforded, emotionally, psychologically and otherwise.

Our data then strongly suggests there are some factors associated with living in a lone-parent environment that prejudice child development. It does not mean that lone parenthood, per se, is the main factor, but that there is most likely a constellation of factors strongly associated with lone parenthood.

We must be careful not to stigmatize non-traditional families, especially single-parent families, while looking for ways to meet the needs of children living in different family and household arrangements. It is important to recognize that the development of children is affected by a complex interplay of risk factors such as low income, and protective factors such as good parenting. We have also learned that good parenting can help overcome exposure to risk.

Children who grow up in adverse conditions and are exposed to multiple risk factors, such as parental alcoholism or other addictions, low incomes, hostile parenting or poor health, are often the most vulnerable.

While results for aboriginal children are not available from this study, I think its implications should be considered in view of several indicators we do have.

To begin with, aboriginal children make up a larger proportion of their communities. About 40% of aboriginal children are under 15, compared with 20% of non-aboriginal Canadians. This is from the 1994 census. The Canadian Institute of Child Health has noted that while the bulk of Canadian population is aging into retirement years, the majority of aboriginal population is aging into reproductive years. Furthermore, aboriginal women are having more children and at a younger age than non-aboriginal women. This comes from The Health of Canada's Children, the second edition.

The testimony you have heard from various national and regional aboriginal organizations reveals a number of serious concerns that go beyond the statistics to the reality of aboriginal life. This testimony has generally addressed issues not directly related to the legal principles applied to the determination of child custody and access under the Divorce Act, but reveal a set of concerns about the impacts on children of the breakdown of marriages.

In preparing for this appearance, I discovered that there is not much published about the specific picture of marital breakdown in the aboriginal community or its impact on children. You've heard from aboriginal organizations about another aspect of child custody that is of great concern. Studies show that aboriginal children are apprehended from their homes at an alarming rate. Of Canadian children and youth in care in 1996-97, 24.7% were aboriginal. Yet these individuals represent only 4.5% of young people up to the age of 20.

With respect to the central issue before this committee, I would make the following general observations and comments.

The Divorce Act provides for the sole criteria for the determining of the issue of custody to be in the best interests of the child. While I support this test, it is an extremely vague one. One way to improve the test would be to outline a series of factors to guide judges in determining what in fact are the best interests of the child.

In such a list, I would like to see included the importance, from an aboriginal perspective, of the extended family in raising a child and the desirability of preserving and enhancing the child's sense of culture and identity.

• 1610

Fortunately, extended families are part of aboriginal tradition. In many cases, children who, for whatever reason, are unable to live with their parents, live with their relatives or grandparents. The custom of the extended family or the community taking over of a child is still quite common. In fact, extended families are expected to support the raising of children. That has its many challenges with the current system. It's a joint challenge between the federal government and the provinces.

I would also like to bring to the attention of the committee that the federal self-government policy provides that aboriginal peoples may negotiate self-government agreements that include law-making authority over property rights, marriage, adoption and divorce.

With regard to the United Nations Convention on the Rights of the Child, it is worthy of note that article 30 of this convention protects the rights of indigenous children to enjoy, in community with other members of his or her group, their culture and language. That has a direct relationship to what happens in these circumstances.

The Government of Canada encourages the development of culturally sensitive and child-centred policies for aboriginal children by all responsible authorities. More generally speaking, I would like to say it is extremely important that we do our utmost to ensure the healthy development of all Canadian children, whatever their cultural background and whatever family structure they find themselves in.

Consistent with this, this government has launched a number of initiatives that provide support to parents with the aim of ensuring the healthy development of their children. Prevention and early intervention for at-risk children have been the priorities, and specific measures have been taken to meet the pressing needs of aboriginal children in particular.

The initiatives include: the Community Action Program for Children; the Canada Prenatal Nutrition Program; the Aboriginal Headstart Program, which now applies to all aboriginal peoples; and the First Nations and Inuit Childcare Program.

With regard to the impacts of divorce and separation, minimizing the stress and the changes to the child and his or her environment is important in ensuring a smooth transition in an already difficult situation. I think that was very aptly put by my colleague, the Secretary of State for the Status of Women.

I would also like to draw your attention to a Health Canada publication, “Because Life Goes On”. This booklet is used extensively by parents, the legal, health and social services professions, and offers suggestions to help children cope with separation and divorce.

Because you don't have a restriction on props, I'd like to let you know that this publication is available, and widely used. It's much subscribed to.

In closing, I encourage the committee to consider the issue of aboriginal child custody and access in its different aspects and to identify areas requiring further research to build public policy in this area.

It is a common complaint—and it is a common condition of polls and surveys and census taking—that for various reasons, some of which the responsibility is owned by different parties, including the aboriginal people themselves, we do not have the kind of information and data we need to build a frame of reference and to set some baseline data in order to make the kind of policy statements or even mission statements.

We as a government have attempted to do early intervention programs that have allowed for the healthy development of all children. In particular, where we have a high and fast-growing population of aboriginal people, we've made that special effort. But really, the committee should consider that there is much more work required.

I think perhaps the traditional modes of gathering information and data are not conducive to dealing with remote and isolated communities where, for the most part, you have oral traditions, where paper and the amount of information processing in the way we do it with other groups is probably not the best way. Usually a hands-on approach is the best.

• 1615

So I think that should be a consideration given to the work you're undertaking, that you're dealing with a process that has a gap, really, an information gap.

I'm not saying the department or the various agencies that undertake to do this aren't doing a good job. It's an extremely difficult thing to do. You need consensus if you go for information, and that's not always there. However, it's also an investment. In many of the surveys and polls that are taken, it's deemed to be too remote, too far, too expensive to bother. I think that has to change.

In closing, Mr. Chairman—and I beg your indulgence—I wish you the very best with your deliberations. I know this is a very complicated issue. I look forward to reading your recommendations.

Thank you for your time and attention. Mushi cho.

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

Colleagues, there are 16 of us here today. We do have a finite period of time. I would please ask you, if you can—or if you're not going to ask questions, that's fine—to please be as precise as possible.

We'll begin questioning with Ms. Grey.

Ms. Deborah Grey (Edmonton North, Ref.): Thanks very much, Roger.

I would like to start by thanking the committee for the tremendous amount of work you've done across the country. I wasn't able to be part of those deliberations, although I did stop in, in my home city of Edmonton, and was fascinated by the stories of people I heard there, people who took time out of a business day to come and plead with some members of this committee to talk about their own personal situations. A lot of them are hurting.

I guess I'd start, being a visitor here, by just looking around the room.

Hedy, I see the women who are with you, and appreciate the work you've done. Were any men in on any of these expert consultations you've been doing?

Ms. Hedy Fry: Three papers have come out of Status of Women Canada's research facilities, and in two of those three, there were men involved.

Ms. Deborah Grey: Okay.

And members of the committee, are you people all visiting here today, or were there a number of men sitting on this committee? I'm just interested.

The Joint Chair (Mr. Roger Gallaway): That's an unusual way to pose a question.

Voices: Oh, oh.

Ms. Deborah Grey: Roger, are you the only Liberal member on this committee? I understand you're the chair, and you've been here. I know you're not a visitor, sir.

The Joint Chair (Mr. Roger Gallaway): I would say the turnout today, just for your own information, is reflective of the committee.

Ms. Deborah Grey: Very good. Thank you.

Hedy, I want to ask you a couple of questions here, specifically on one thing you said regarding non-custodial parents. You said the issue is not whether or not non-custodial parents get to see their kids but whether the child gets to see the non-custodial parent.

Does that mean, then, that children have the total say in this, that maybe the non-custodial parent...? Can you see their frustration, that they feel they don't have a great say in whether they get to see their kids or not?

Ms. Hedy Fry: I recognize fully the frustrations that occur on either side by both parents, custodial and/or non-custodial. I'm saying what we need to focus on is the issue that it is not whether we're talking about parental rights here; we're talking about the rights of the child. We should always, when we get into a problem of conflict, focus firmly on what is going to be the best thing for the child, not necessarily the best thing for the parent.

Ms. Deborah Grey: Okay.

You also said that the child needs a neutral third party. Who might that be? Who is neutral in a case when there is such tremendous pain in a family? Who would you recommend to be a neutral third party?

Ms. Hedy Fry: I didn't say the child always needs a neutral third party, but in certain cases where the the child is confused and doesn't know what to do, and is suffering a great deal of pain and anger and frustration, then the child needs to have someone to go to who is going to look at the child's issue from the child's point of view.

There are many people—social workers, child advocate mediators, psychologists—who have spent a lot of time dealing with how to help children go through a divorce and separation, how to listen to the child for a change, as opposed to the parents, who tend to be the ones whose lawyers do a lot of the talking. How do we get somebody who listens to the child and thinks of the child and hears what the child is saying? And there are people for whom that is their profession; that's what they do.

Ms. Deborah Grey: I am a child of a divorced family. My parents split up when I was quite young. I can remember some of those sessions with the neutral third party. For me, that was a more frightful experience than listening to my alcoholic father go on a rage at home. I'm sorry to say that, but that is very true.

• 1620

We went to the mental health centre, and the neutral third party seemed to have more of an agenda for me, as one of the children in this divorce situation.

I'm wondering what we can do to help that situation, because I see a tremendous responsibility for those professional people, and I'm scared to think sometimes that they may have been coerced by a particular agenda, which doesn't help the kids.

Ms. Hedy Fry: I think, Deborah, that is a very good reason that forced or mandatory mediation is not the best thing. I think you've just given a very good reason as to why it isn't the best way to go.

We're talking about a child-triggered mechanism. If a child requests that they really want to talk to somebody because they can't talk to mommy and they can't talk to daddy, then the child can trigger that. So we're talking about a time when, if a child wishes to, a child can trigger a neutral person.

At times like this, I think many children sometimes need a neutral person to talk to.

Ms. Deborah Grey: The scary thing is, when you're a kid, when you think someone's neutral, even with your kid's mind you can figure out after one or two meetings that they're not even close to neutral. That to me is the frightening thing.

Just one last comment in closing up. In your reference to King Solomon, you forgot the first part of the story, Hedy, that there were two mothers who gave birth—in 1 Kings, Chapter III—and the one baby had died. So when they went with the second one to do the tug-of-war with that child, King Solomon tried to come up with something. Let's get the whole story, the well-rounded view, before we start talking about carving children up like furniture. It was taken out of context.

Ms. Hedy Fry: No, I think it still came down to the fact that there was one child to be distributed between two people. One person felt that the child was not chattel, that the child should go intact with one person, and was prepared to give that child up.

I think that was what I was trying to bring out, the fact that people tend to do, when they love their children, what is best for the child, quite often.

Ms. Deborah Grey: Granted, but the fact that one child was dead already is I think a fairly major part of the story that you forgot.

Anyway, that's the context of it, and I appreciate your comments.

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

Senator DeWare.

Senator Mabel M. DeWare (Moncton, PC): I want to thank you very much for coming before the committee today. As you know, we've been around, and around, and around, and around—and I think we're going to go around some more.

During our hearings we did manage to have two children before the committee, all properly done. One of our senators plus staff had a videoconference with some of them. Their message to us was, how old do we have to be before somebody is going to listen to what we want, to who we want to live with? You could tell that they were terribly frustrated. They had gone through kind of bad experiences.

It was interesting; one girl came in support of her sibling, because the family had been torn apart. One was living with one and one with the other, and they wanted to be together, which she came in support of.

That's what you're saying—in the best interests of the children. Really, the whole committee realizes that.

There is a lot of emotional abuse out there. Family violence has to be taken into consideration. We did have, as you know from reading the transcripts, a lot of men's organizations come before the committee.

One of the things that was of concern to me—and I'm just going to say this one thing—is when there's been false accusations, and a father or mother has been falsely accused of abuse. You made the statement that if it's a false accusation, nothing's lost, and the child can return to that parent. Well, apparently it doesn't quite work that way. If there's been a false accusation, it may take a couple of years for the person to prove that it was a false accusation. By this time there's been no contact with that particular child for that time, either by mom or dad.

How do we get this child back into the family context again with that particular person? It's going to have to be probably supervised access. They could be total strangers after a couple of years, and at a cost. We're wondering how we can avoid that.

I don't know how you can avoid that, because we're talking about people, and you can't always direct it, but how do we make people understand the seriousness of that?

• 1625

Can we do that, do you think, through an education program that the parents would have to attend—not necessarily together, as you know—to show them what divorce can do to children?

Ms. Hedy Fry: That's an interesting question. There's no black or white answer to it.

First and foremost, on what you said about the length of time to address the issue of false accusations, that has to be speeded up. So I think we want to talk about how we shorten that timeframe.

We also do not want to hamstring the hands of the judge, or whoever's looking at the issue of false allegations, by not allowing them access to all of the experts that may or may not have talked to the child to get to the bottom of this. On the one hand, you want to make sure that the child is protected from the potential for harm. And the question is, if the allegation was not false, then the child had been in a harmful situation and had been exposed to further harm. That's the first thing you want to prevent. That's why it's not simple. It must speedily resolved.

And you want to be very careful. In many instances, the thought of throwing people into jail, if they came up with an accusation, doesn't stop people from talking about allegations and questions and concerns they all may or may not have. We know that if a false allegation occurs anyway, the courts are very clear on perjury. So you have already court processes to deal with the issue of perjury and the issue of lying.

So it's important to have speedy resolution of the problem; it's important to make sure that you err on the side of safety of the child; and it's important to recognize that there are processes for perjury, if it so happened that it turned out to be perjury. Erring on the side of safety of the child is the very first thing, and ensuring that you don't stop people who have allegations—and who are afraid, if they cannot prove them, that they'll be sent to jail—from speaking out at all. It's that fine balance, individual cases being taken into consideration by the courts, I think.

Senator Mabel DeWare: How do we speed it up? We have one case, a divorce situation, where the judge hasn't even talked to them for 18 months.

I would like the opinion of either one of you on how you feel about unified family courts. Can we strengthen those, and can they do some of this process for us?

Ms. Hedy Fry: I think unified family courts might actually speed up that process. I think it might make the system work better, and I think it might be exactly what we need to shorten that timeframe—again, ensuring that there is ample access to representation and to legal aid for persons involved who do not have the adequate resources.

The Joint Chair (Senator Landon Pearson (Ontario, Lib.)): Ms. Blondin, do you want to answer that question as well, on the unified family court?

Ms. Ethel Blondin-Andrew: I think any approach that helps to expedite the whole process and to reduce the pain and discomfort to children is something that should be supported.

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

Senator Mabel DeWare: I don't want to monopolize this, but I was very pleased to see you, in your report, talk about extended families, which I think a lot of us agree is a very important part of this issue. We're trying to rectify something that's gone wrong in that.

I was also pleased in your intervention here to see prevention and early intervention, which, coming from New Brunswick, we have quite a bit to do with. Really, it works, if it's done properly and in time.

I appreciate your having those comments in your statement.

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

Dr. Bennett, you're next on the list.

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

It really seems that a lot of the witnesses who came here were from education and resources. I guess we would hope from the committee, when these recommendations come forward, that you would be able to help us with the piece that would involve making sure that the resources to have child-centred solutions would be in place in either unified family courts, or such things as videos before people could file their divorce papers.

From Ms. Grey's point of view, and in terms of the friend of the court or the kind of support for children to be able to actually tell their story effectively, I think this seemed to be one of the most poignant lessons, particularly for those of us who got to meet with some of the children.

• 1630

We saw children's advocates who had absolutely no training, who just said what the kids told them to say, with no analysis. One of the things I feel is that if a child says they never want to see one of the parents again, to me, as a family physician, that is an alarm bell, and we should treat that as though one of their parents just died.

If in our society one of the parents just died, we would put all of our psycho-social support in for that child. I would hope that we could develop programs that would identify these children at risk who, ten years later, are going to be in big trouble because they will either feel they were duped that they didn't get to see one of their parents or that no one actually investigated why they decided this, and maybe it is a history of abuse or something like that.

As we've been looking at the child-centred solutions, I think we need some commitment from our ministers that there will be a fight for the resources necessary to deal with this properly.

The Joint Chair (Senator Landon Pearson): Is that a question or a comment?

Ms. Carolyn Bennett: It's not a question, but...well, it's a question: Do we have a commitment?

Ms. Ethel Blondin-Andrew: I'd like to think that everything we do in this rather complex and difficult situation is to minimize the negative impact on children. It would be great to think that we could find solutions and not interim measures, but this is not an easy thing. Divorce and separation and the dissolution of family is really the dissolution, in some cases, of a child's world view, and their world essentially. It's a very complex issue.

In order to make the situation more liveable, more acceptable to children—and I think that's the goal—if that takes resources to educate people, I think one of the keys is early intervention. If you're a better parent, if you're a better nurturer, and if you have the wherewithal to be a healthy parent, I think you'll recognize what is the priority that should be placed on children in these circumstances.

Ms. Carolyn Bennett: I guess what I'm trying to say is that one of the problems in advice to change the Divorce Act is that it becomes a justice issue, because the door in is that they come because they need something from the courts. What those of us who have spent a lot of time in this field feel is that this adversarial thing isn't working, and it's actually a social issue, not really a justice issue. But I don't think we're going to get a less adversarial result unless we put in place the mediation and the social fabric or the safety net for our society so that we can show people that going to court is really the last resort, and rarely in the best interests of kids.

Ms. Ethel Blondin-Andrew: Maybe I could finish what I was saying. The resources we invest into building better parenting skills is to that end—to recognize the circumstances that child or those children are in, and to make the best possible choices in an already complex and difficult situation.

I don't think there is a magic solution. I don't think there's going to be a wonderful result with no downsides. This is a messy business when you get into separation and divorce. Let's face it, there's an upside and a downside to many of the circumstances we deal with, and much of this is downside stuff. It's difficult on families, it's difficult on parents, and it's mostly difficult on the children.

I think what we have to do is minimize the impact and try to work as best as possible to create conditions so that children don't suffer the emotional and psychological scars that many of these circumstances leave and that go into adulthood, carried on for years.

• 1635

Ms. Carolyn Bennett: Secretary of State is a really interesting job. I think it's one of the best, because it gets the idea to knock together all the ministries to be able to find horizontal solutions for these problems. I guess I would hope that even though this sort of falls to the justice minister, there will be an ability for our government to be able to find a horizontal solution that will cross over all of the ministries, and our secretaries of state, who will be looking out for the women and the children and the youth and the future parents and the boys who will be dads one day and all of that, will take a holistic approach.

Ms. Hedy Fry: I want to support Ethel, and Ethel's concept of primary prevention. As a family practitioner, you know that primary prevention, such as good parenting skills learned at the school level, is key to anything. So I don't think it's only horizontally across governments we're going to find answers but it's also vertically, between different levels of government and different jurisdictions that we would find the answer.

How do we create good parents when 75% of Canadian children live with their two biological parents in the home and only one-third of Canadian children are getting good, positive parenting skills? It tells you that there's a whole chunk of parents who are living together with their kids who still don't know how to do good parenting and how to be consistent and give the child that continuity and that safe environment in a consistent way.

So I think Ethel's answer is clear, that we have to be careful that we don't always look for legislative answers to everything. Legislation alone is not a magic bullet. It doesn't resolve...and legislation quite often can create greater unnecessary imbalances, especially when you're talking about very individual, difficult, complex family situations.

There is a need to be flexible for education, for primary prevention, and all of those other areas, and that crosses all levels of government and jurisdictions.

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

Ms. Ethel Blondin-Andrew: I'd like to add something.

The Joint Chair (Senator Landon Pearson): Okay.

Ms. Ethel Blondin-Andrew: There are two things we're doing that I think are rather groundbreaking.

First, we're building a national children's agenda. I don't know if the discussions such as these should escape that process.

We're also looking at a centre of excellence on the well-being of children. I think this would be a very integral part of that discussion in building that particular mechanism for children, for the well-being of our children in this country.

Ms. Carolyn Bennett:

[Inaudible—Editor]

The Joint Chair (Senator Landon Pearson): Dr. Bennett, please; it's Mr. Mancini's turn.

Ms. Carolyn Bennett: —of the children who were asked to have a lawyer in Ontario and didn't get one.

The Joint Chair (Mr. Roger Gallaway): You can't answer that.

Mr. Mancini.

Mr. Peter Mancini (Sydney—Victoria, NDP): I'll start by making two points.

First of all, I don't feel emasculated that Deborah didn't notice me—

Ms. Deborah Grey: I did notice you.

Mr. Peter Mancini: Oh, good.

Ms. Deborah Grey: I counted four men around the circle.

Mr. Peter Mancini: I haven't been noticed before, so....

Ms. Deborah Grey: You done good.

Mr. Peter Mancini: Secondly, I want to thank you for coming before the committee. I think many of the issues you've raised are issues we have had to grapple with. I found your remarks interesting. We should sit down over dinner sometime, and with your extra salaries as secretaries of state, you could pay.

Voices: Oh, oh.

Mr. Peter Mancini: I want to pick up on a point that Senator DeWare perhaps left on, because I think it's interesting that in both presentations—and I think this may be a cultural point—you talked about the extended family.

I've worked in the family law area. I've represented many native people in child protection cases, and I understand the role played by the extended family. Sometimes provincial legislation has not recognized that.

At the same time, there have been arguments put before the committee that grandparents and perhaps extended family members ought to have standing in the courts in divorce matters, in terms of custody and access to children. I think there may be two different sides here.

I can see support for it on one hand, and on the other, there have been some comments made that we don't need to heighten tensions. I wonder if I could get your feelings on whether adding parties who have standing to the courts may increase the tension and the possibility of litigation. If the answer is yes, ought there to be some cultural sensitivity on that issue? Or is the answer no?

That's my first question.

Ms. Hedy Fry: Ethel, do you want to take it?

Mr. Peter Mancini: Or do you want to go for dinner?

Voices: Oh, oh.

Ms. Hedy Fry: We can go for dinner, if you'll pay.

• 1640

Coming out of, again, my experience as a family practitioner, having dealt with a lot of cases like this, I think it would exacerbate the conflict. The questions you would have to ask yourself are, first, what would happen if there was only one grandparent on one parental side? Does that give that particular parent a greater right? Does that give that parent a better family? Children have enough of a hard time sharing themselves between two families than having to share themselves between three and four families. To have grandparents joining in the fray and picking sides, etc., creates even greater confusion, greater conflict and animosity.

If grandparents can stay out of the fray, it might actually give the children sort of a haven and a safe place, occasionally, to feel that there are some people who are above it all and who don't side with anybody else.

I just don't think we should encourage any other people than the parents right now to become involved in this issue, while still saying that the parents shouldn't have complete rights to say they have a right to have this child, because this child is theirs. It should be the child's right that is foremost.

If the child's right is foremost, and it's looked at always in the best interests of the child, then minimizing conflict of any kind is very important.

Mr. Peter Mancini: Thank you.

Ethel?

Ms. Ethel Blondin-Andrew: I can't claim to be a legal expert on this issue in terms of any party's standing in court on this particular issue, but I can tell you that from a cultural perspective and from an aboriginal perspective, the extended family is extremely important. It's not what it used to be, though. The circumstances of aboriginal people have changed greatly, and so has that role been diminished. There have been many negative impacts because of that, because the support is perhaps not there when it's needed.

In the circumstances, I would agree that it's something I have a bit of hesitation on legislating. Enforcement is such a nasty issue when it comes to divorce and separation. Already we have law upon law, and review upon review, and enforcement issues that are piling one upon the other, and still the results are not what we'd like them to be. In the end, the losers appear to be the children.

In this circumstance, I would say that, from my cultural perspective—and I can speak only from my own frame of reference—it's something you do with cooperation, mutual understanding, with a great deal of affection and a great deal of respect for other people. It's not something I would think that aboriginal people in particular would want to see legislated. But I can't speak for all aboriginal people, because their circumstances are different.

Grandparents play an absolutely necessary role. It would be interesting to find out how many grandparents are raising their children and grandchildren on their pension, and what a huge and onerous task that is. That's a completely different set of circumstances.

I can't speak to the general population, because I honestly don't have the expertise to do that, but my experience tells me that in the aboriginal community, even in and out of divorce and separation cases and family breakdown, with grandparents and other extended relatives it's a very close-knit community. It's very hard to separate yourself from those.

I think it's even more difficult, because children are the centrepiece of our communities and of the families. So it's very hard to detach and to cut those binds that bring families together.

Mr. Peter Mancini: Okay. Thank you.

The Joint Chair (Senator Landon Pearson): Mr. Mancini, can you leave the next question for the second round? Many people want to ask questions. Thank you.

[Translation]

Ms. St-Hilaire.

Ms. Caroline St-Hilaire (Longueuil, BQ): First of all, I would like to thank the two secretaries of State here with us today. Of course, it would have been nice to hear the opinion of the Sollicitor General, but I suppose he's very busy.

I have two comments that I would like to start off with. Ms. Fry, you said that, in listening to men and women, you had the impression that men's interests were often played off against those of women. I agree with you that we have to look out for the interests of children before those of men, women or parents.

Ms. Fry, you're the Secretary of State for the Status of Women. You've talked a lot about the interests of children, which is all well and good, but I would rather hear what you have to say about the status of women.

• 1645

There has been a lot of talk, in this committee, about false accusations, family violence, about the fact that custody is often given to the mother rather than to the father. So, I would to hear what women think about this whole situation.

[English]

Ms. Hedy Fry: Once we break it down into what men are saying, what women are saying, what custodial parents are saying, what non-custodial parents are saying, what fathers are saying, and what mothers are saying, then we get back to this concept of which one of the parents has the right. If we look at what is in the best interests of the child, no child should be forced to live with an abusive parent. If we keep that as a neutral set of values, and then you take that and transpose it on information you may have about who tends to be the most abused of the couple in a marriage, then you may find that you might in some instances come up with an answer to your question.

What I'm suggesting is that we stop looking at it from that issue. Let us say that we look for the child not being forced to live with an abusive parent.

We talked about power imbalances earlier on. We know that in many instances women tend to be the poorest and have the least resources to be able to go and have legal aid and to bring their cases forward. We have to ensure that we level that playing field so that resources are available to whichever set of parents don't have the best resources, to get to the truth and to get to the best interests of the child.

If we stick to the fact of what, in the case of conflict between two parents, is in the best interests of the child, we will nearly always find that we will make the right decisions. You can transpose that on what you know to be statistics, or what the reality of the cases are. Courts should be judged by the individual cases they have in front of them.

[Translation]

Ms. Caroline St-Hilaire: One last little question. In your presentation, you talked about children's interests. I would like to ask you if, when all is said and done, you're suggesting that the Divorce Act be changed. As you know, the Divorce Act is federal and the administration of justice is provincial, just as the family and social services are. I would like to know then if you are thinking of amending the Divorce Act and, if so, how do you propose to do that without interfering at the provincial level.

[English]

Ms. Hedy Fry: Well, I think you're talking about the custody and access component here. That's what you're discussing. We've already talked about not tying issues of maintenance and divorce and the ability for child maintenance into custody and access. I don't think those should be tied.

If we look at the child as the focus, and the centre, the child has a right to have care. That care is economic, physical, mental, emotional and all of those aspects of care. That is the right of the child. The child should be supported by whichever parent has the ability to support that child, and both parents, if they can, should be contributing. In many instances, again, if you look statistically, nearly always the mother is the one who is at the lowest economic level. So the care of the child should be foremost. Again, economic support for the child is key.

Custody and access should be separated from that. I think that's what we're trying to suggest, that you should never tie those two things in. Otherwise, you're saying, “Because I pay for the care of my child, I must see my child”. It again goes back to what are parental rights.

Let us focus on the child as being the centre of it all—the child's need for care, for safety, for continuity, to be free from an abusive situation, the child's need to have a solid home base where the child can always feel it belongs.

Again, we find that in most instances, if we look at the parent who is mostly responsible for that child's nurturing, that child's continuity of care, for doing all of the things for the child, quite often that parent may be the one who can provide that environment for the child.

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

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

I'd like to welcome our secretaries of state to this committee, and to thank them for taking the time to come. I have a couple of questions.

How much time do we have?

The Joint Chair (Mr. Roger Gallaway): About five minutes.

• 1650

Senator Anne Cools: Thank you.

Dr. Fry, you articulated some of the needs of children. You talked about financial needs and you talked about security and so on and so forth. I believe I spotted one that was very visibly absent, which I would articulate as the need of children for two parents. I wonder if you could comment on that.

When you do comment on it, I wonder if you could comment on it in the context of the Liberal Party of Canada's position on the needs of children within custody and access.

I am the senior member of this Liberal caucus, as we sit in this committee, and the Liberal Party of Canada had a very strong position on these issues. I'm very curious as to how Dr. Fry got from that position to the position she articulated today.

Ms. Hedy Fry: I am not here to speak for the Liberal Party of Canada, I'm here to speak as Secretary of State for the Status of Women. I would like to speak to that. I would like to speak not only based on my position as Secretary of State but also from my own experience as a family physician for 23 years.

The child being at the centre, or the concept of best interests of the child, is supported by this government. We're talking about a children's agenda, and have moved forward to look at issues for the financial security of the child, for the safety of the child from violence, etc.—

Senator Anne Cools: My point, Mr. Chairman, was a very narrow point. I was asking for an opinion on the need of children for two parents.

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

Go ahead.

Senator Anne Cools: Fair enough.

Ms. Hedy Fry: I think children need to be brought up in a loving, supportive, and nurturing environment. That environment can be whomever are those people who care, love, and will give that child safety—physically, emotionally, and mentally—security and continuity of care.

Senator Anne Cools: But I was asking about your position, as Secretary of State for the Status of Women, on the needs of children for their two parents.

Ms. Hedy Fry: And I think I gave you the answer, Senator Cools. I said that children need to be brought up in environments and by persons who will give them love, security, and stability—mentally, physically, emotionally and economically—in every way. Those people can be anyone who will give the child that.

In some cases, it may not necessarily be either parent, or both parents, or any parents.

Senator Anne Cools: I'd like to draw the attention of this committee to a document, called Divorce Law in Canada, produced by Mark MacGuigan. As you know, Mark MacGuigan, then Minister of Justice, conducted, to his mind and to my mind at the time, an extremely extensive and exhaustive overhaul of the divorce law, which he tabled in the House of Commons as Bill C-10.

For the consideration of this committee, and because many of us knew MacGuigan and were close to this work, in this document there is a section called “The Rights of Children”. Page 22 reads:

Given the impact a divorce has on the interests and welfare of a child, divorce law should ensure that the rights of children are protected.

1) Where feasible, a child should have maximum access to both parents.

Item 3 reads:

In making such decisions, the court should consider the best interests of the child, particularly the child's interest in having maximum access to both parents.

This was the position of the Liberal Party of Canada and the Liberal caucus in 1984, 1985 and 1986. Having said that, I wonder if Dr. Fry can tell us what the term “best interests of the child” means, and what its origins are, as a legal doctrine.

Ms. Hedy Fry: I think the term “best interests of the child” means what will provide the child with a stable, nurturing, loving environment that will provide for the child's emotional, mental, physical, and economic needs. That is what I think is the best interests of the child.

It is difficult to look at the best interests of the child today, when we look at the changing demographics of Canada, and compare it with the best interests of the child 20, 25, 30, 40 years ago.

• 1655

To me, the term “best interests of the child” is pretty clear. It is what will give the child those things that are essential for the needs of the child to grow up to be strong, to be confident, to be free from care and to feel that this child can be a contributing member of society, a good citizen with self-esteem.

Senator Anne Cools: I'd like to make the point that “best interests of the child” has a peculiar and a particular historical origin, one that this committee has, as of yet, not addressed. I just put that out. It was that concept that Mark MacGuigan was driving at when he introduced the term “best interests of the child” into divorce legislation for the first time in this country. I just make that point.

My final point is on the issue of domestic violence. Domestic violence raises its head a lot in this committee. I've been very, very struck that domestic violence, according to the minister, means a different thing to her than what it means to me. And that's quite fine. But what I would like to thank the minister for is for introducing to us here one of the conundrums of the era, and one of the painful and tragic issues that has been put before this committee.

I note that Dr. Fry quoted the Book of Kings, Old Testament, 3:5, and cited Solomon. I'd just like to put the statement she quoted in a greater context.

The wisdom of Solomon, in that instance, as I read the Bible—and I recommend anybody to read it—was that Solomon understood that one of those women had committed an infanticide, which, as we know, traditionally is a woman's crime, as witnessed by section 233 of the Criminal Code. A man cannot be charged with infanticide. Only a woman can be. It traditionally has been a woman's crime. It's a tragic and terrible, terrible thing. If you've ever come close to it, it just puts the fear of God into your heart.

The point of Solomon's wisdom in that instance is that he understood that the woman who had committed an infanticide, and had caused or allowed to happen the death of one child, could very easily allow the death of the other, and that the woman who would be the genuine mother of the child would be interested in rescuing that child, and holding that child to her bosom.

So I thank Dr. Fry for putting out before us the fact of female violence, particularly to children. I know it is a terrible thing, and it frightens all of our hearts, but it is a fact of life. In point of fact, when it comes to child abuse and domestic violence, children are at greater risk from women than they are from men in terms of child abuse.

But the point I make, Dr. Fry, is that the majority of people involved in divorce do not involve themselves in domestic violence. The fact of the matter is, a lot of the statistics that you refer to...and you don't really give us a lot of data. You make a lot of statements: “It is well known...”; “We know that...”; “It is well established that...”; “The overwhelming evidence is...” and so on. There are a lot of those sorts of statements.

But the fact of the matter is, only a small number of the total population involve themselves in domestic violence in any event, and therefore, when we look at considerations of divorce, we should look at general population trends rather than trends in crime or trends in what I would describe as deviance.

The Joint Chair (Mr. Roger Gallaway): Senator Cools, I'm sorry, but you're a little over time.

Senator Anne Cools: I'll bring it to a conclusion, then.

I think it's very important that there are large numbers of Canadian men and women who are standing ready, willing and able to be good parents to their children if they would get the opportunity, and I don't think it serves public policy very well to suggest that the majority of those, or even many of them, are involved in domestic violence.

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

• 1700

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

There have been references to a couple of things. One is that legislation is not the only answer, and I would agree with that, but unfortunately, as legislators, that's where we're at, looking at the legislation and the rules that go along with divorce, at least from the federal level.

One of the things that concerns me is that in setting up a process to assist separating couples in resolving their problems to have to an amicable solution, hopefully for the best interests of the child.... And I would also add that in my understanding of best interests of the child, if there is one person who does not have a best interests looked after, then the whole unit is going to still be at “dis-ease”. I know in families, normal families that are not contemplating separation, that if something has happened or one of the family has done something, it affects the whole family.

I guess the point I'm making in these parentheses is that as I look at best interests of the child, I think we have to look at the best interests of all those who are involved, or there's going to be that sense of uneasiness and lack of settlement that will allow for the best interests of the child.

But I'll get back to the issue I want to deal with. As we look at the system that has been set up, so often we have heard witnesses say that they probably needed some help, but they were certainly doing better before the legal system and some of the professionals got involved.

I listened to my colleague, Deborah Grey, mention the same thing again today.

For example, I listened to one man, who was a lawyer, make a plea to the committee to try to do something to keep shark lawyers from exacerbating a difficult situation.

I listened to a judge here say that affidavits come to him that he knows are a pack of lies but he can't do anything about it, because the information brought before him is beyond his ability to test it.

I heard you, Hedy, say that there are means of dealing with perjury, but in fact in this area of law, it's very difficult to deal with perjury.

What I would like to hear two ministers of the Crown relate to the committee is, do you have any thoughts about how the committee can deal with these kinds of problems that families have, and how we might recommend that the legislation be dealt with to change?

Unfortunately for me, many of the arguments—perhaps all of the arguments—you've brought have been brought to the committee many times before, by many witnesses. At this stage of our deliberations what we're looking for are people who can help us understand the problem in a way that we can make proper and meaningful recommendations about how to deal with these problems.

Ms. Hedy Fry: I think you've presented the complexities of the issues very well.

There is no magic answer. There is no magic bullet. There is no one-size-fits-all solution. These are individual and very different issues, and individual and very different cases. If in one case there is a false allegation, in another case there may not be a false allegation. So I think we should continue to look at how we have solutions that are flexible.

Legislation has a tendency to give you a one-size-fits-all solution. The question is to find a process by which judges can have the appropriate training, can have the access to resources. Persons coming to the judges must be able to have a level playing field so that one person doesn't have more money to pay a high-priced lawyer when the other person doesn't have anybody. Those are the things we need to look at.

How do we make sure everyone has equal access, speedy access, to the issues and to the questions that come? And let them be individually tailored to the individual families and to the individual children, because I think that's the only way we would find the answers. We need to look at a process that is very flexible and that is individually centred.

As a family physician, I can tell you that there is no one answer for treatment for any problem that comes to you. You cannot suggest that if you have six families coming to you, and six families have six children, all with the same medical problem, you will treat them all the same way. You can't do that. There are individual issues.

• 1705

Mr. Philip Mayfield: Is there a means for, say, dealing with a lawyer or a counsellor who takes advantage of that situation to not necessarily help the clients but for their own personal advantage? Is there a way of dealing with that, which was one problem that was brought to the committee?

Is there a way of testing evidence in affidavits that's brought to judges so that a judge can look at this and say, “Well, I know at least this is accurate information ”, without having to wonder whether it's a pack of lies? Are there ways of dealing with these kinds of technicalities that you'd like to speak to?

Ms. Hedy Fry: Again, I think if a judge is faced with legal arguments on both sides, stating certain things, then the judge should have the usual recourse of judges to call in expert testimony, to have people look at the issues, to see what they think from a neutral, third-party, professional perspective.

Carolyn said she's heard of a lot of people who don't have the ability to do that. How do we talk about having trained people who have in fact the ability to give that kind of expert testimony? It's how we deal with every court case. Regardless of what the issues are, people come to court and they have one point of view, and the other person's lawyer has another point of view.

How does a judge deal with that, whether it be because somebody said you stole their car, or somebody said you were the one who burned down their house, or whatever the reasons are? The bottom line is that the judge has a series of tools at his or her hands to be able to reach into and say, okay, I need to get medical testimony here; I need to get expert evidence here; I need to get somebody to look at the crime scene and see whether there was arson or not; I need this and I need that to eventually try to make the best decision I can make, given all the information I can from parties other than the two who are fighting with each other.

So I think that's the only way there is, in this world where we have no set, pat answer for any problem, and we have absolutely no way of ensuring that everything that will ever be done will always be right or will always be wrong. I don't think there's a magic answer.

It's to give the judges the tools they have there, to be able to do it and to do it as speedily as possible to counterbalance arguments on both sides.

The Joint Chair (Mr. Roger Gallaway): Ms. Blondin-Andrew.

Ms. Ethel Blondin-Andrew: In this circumstance—and I beg the indulgence of the committee—you're talking about 5% to 7% high-conflict. The good news is that 95% of them are resolvable. How so? Probably by prevention, intervention, mediation, counselling—a whole set of human resources that don't come into play in legislation.

I've been here for 10 years, and I've sat on committees and helped co-author some of the eight reports we've presided over. The committees are masters of their own destiny. Many wonderful recommendations come forward from committees.

The questions you're asking appear to have no set magic solution, or no answer that you can find in any institution or book, or that any committee could probably prescribe from elsewhere. I think you're going to have to encase that innovation that allowed these groups, 95% of this conflict group, to resolve their issues. How did they do that? How did they achieve that?

If you're talking about enforcement here, which is what would end up happening, that, as you see, has not really been a 100% solution. When you have enforcement, you have reviews and changes, as I indicated early on, which haven't worked any better than what probably worked well with the 95%. You're talking about a small percentage here.

I'm not sure there is a magic solution or one answer that will work, because these are unique circumstances, and human nature is at play at its best and its worst under these circumstances.

I would appeal to the committee that you find a way. I mean, you can make any recommendation, any innovative suggestion, that would encase that innovation—mediation, counselling, whatever it is—or even prescribe the kinds of resources that might be needed to do that.

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

I have you down, Mr. Mancini, for the second round.

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

I didn't realize, when I was coming to a custody and access meeting, that I was going to hear so many interesting biblical commentaries today. You never know from day to day what's going to occur.

I want to thank both speakers very much for their presentations. You reflect many of the sentiments that I personally feel.

• 1710

I just want to point out for the record that I think you made a very good point, and one we have to recognize, that very few custody and access disputes reach court. I think when you read the write-ups and you hear the discussions, you feel that practically everybody ends up in court, and yet only 5% to 7%, as you just said, Minister, are high-conflict cases. So I think that really bears repeating.

On appointments to the bench, I'd like to make a personal recommendation that when lawyers are appointed to the bench, we make sure that they have had massive practice in family law. Because there are situations, I know in my province, where judges appointed to family law courts to sit on the bench do not have a family law background. It can cause great havoc. But that's just an aside.

I wanted to thank you for your statistics on the spousal abuse area. I've kind of been hoping to hear the breakdown of spousal abuse cases—the 21,900, where 11% are male and 89% are female—because there has been major discussion in our travels. This is the first time I've really had the numbers. I thank you for that, because I think that's important to hear.

I did want you to comment, if you might, on concerns that were expressed from witnesses as to parental alienation—I think you did touch on denied access here—and also on language, either one.

Ms. Sheila Finestone (Mount Royal, Lib.): Excuse me, Madam Chair, but just as a point of information—and I'm sorry I must leave—I would like to object to the fact that there were seven questions from the other side of the floor and one from this side. I think that's wrong.

Senator Anne Cools: Maybe we should review that. I thought it was first come, first served, as you did it.

The Joint Chair (Senator Landon Pearson): That's right. We've had two from this side, but we've taken the names as they've come up.

Please go ahead.

Ms. Hedy Fry: First and foremost....

Sorry, Senator Cohen; I can't remember the questions. One had to do with language. What was the other one?

Senator Erminie Cohen: I wanted you to touch on parental alienation, which we heard expressed here with the witnesses; denied access, which you touched upon; and the language.

Ms. Hedy Fry: The issue of parental alienation, I think, can be dealt with if you look at speedy resolutions to issues of questions of allegations, where the child should not visit with one parent or another. If we resolve that speedily, I think alienation will not have time to occur, and if, during the period of time, you have supervised access, then that could make sure the child is in contact with that particular parent. So I think that could deal with that.

With regard to language, we know that gender, race, ethnicity, etc., tend to create another level of discrimination and denial of access to all kinds of things, so in many cases, language might create some problems in terms of access to justice and access to the court system, etc.

In those instances where you have a parent, one of the two parents or both parents, where one may be better educated than the other, when the other one may not have the linguistic skills or speak another language and not speak English or French very well, then I think the courts would have to look at how they'd find a way to have translators or to find some way to get that information from the person who doesn't speak the language of the court so that person could have access.

It's all about access. It's all about ensuring that there is a level playing field for access for both parties, whether it be lack of access for economic reasons, whether it be lack of access for linguistic reasons, whether it be lack of access for cultural or racial reasons, or whatever. It's important that we ensure that there is equal access, a level playing field to have access, to the resources needed by both sides.

We've seen that one of the major problems is that one side or the other may have far more economic resources, and the ability to buy, as we've said earlier on, high-priced, powerful lawyers for one person, when the other person has nothing, and no ability to have access, who quite often gives up or who quite often doesn't have very good representation. How do we ensure that there is an ability for good legal aid and for good resource allocation?

Senator Erminie Cohen: Thank you.

The Joint Chair (Senator Landon Pearson): Is that enough?

Senator Erminie Cohen: For now, yes. I want to give the other side a chance.

• 1715

The Joint Chair (Senator Landon Pearson): There wasn't actually anyone else from this side asking.

The next person is Mr. Lowther.

Mr. Eric Lowther (Calgary Centre, Ref.): Thank you, Madam Chair. I'd be glad to defer my question to the other side, if there's a question there.

Senator Anne Cools: And I would have been happy to defer too. I mean, senators come last.

Mr. Eric Lowther: Are there any takers on that side? If not, I'll go ahead.

We've heard the positions of the ministers here, and I've found it quite interesting. I was trying to compare it back to the testimonies we heard as we travelled the country, and how it lined up. On some areas I think it did line up pretty well in terms of some of the concerns we heard about violence. We all share those concerns. But there's one area I'm still not quite clear about.

I got the impression, when we went across the country and heard the testimonies, that the theme we heard was that it was in the best interests of the child to have as much as possible a close and continuous relationship with both parents, and that whatever recommendations we make should try, or do everything possible, to strengthen and maintain continuous relationship, as close as possible, with both parents.

I'm not sure I heard that here. What I'm hearing here is that they should be looked after, and cared for by somebody who loves them. That's a nice thing to say, but it's not the same as both parents.

Now, am I not hearing it right, or is that an accurate representation of the difference in position?

Ms. Hedy Fry: I'm sorry if that's what you heard. That's not at all what I said. I did say that in cases where both parents are seeking to discuss the issue where there's conflict with regard to custody and access, it should always be looked at with regard to the best interests of the child, and not whether one parent has a right or another over the child.

The child is not a commodity. I think that is what I was saying. But I think the question here is, if it ever turns out that neither parent is good for the child, there obviously has to be someone who is going to be good for the child. We're not talking about a blanket statement. We're just saying that if you take the cases and you make sure that the best interests of the child for love, for continuity, for emotional support, for freedom from violence, for safety, etc., are all met, the chances are that one or both parents.... Again, we're back to the statement that was made. We're not talking about the majority of divorces here. We're talking about the ones where there is a great deal of conflict and there is a great deal of anger.

Generally, these particular cases have other background to them. There are other reasons for the conflict, other things. You need to look at the whole lifetime of the marriage and the things that led up to where they got to. You can't just look at it in a vacuum.

Mr. Eric Lowther: I certainly understand that for these high-conflict situations there's no silver bullet, as you said. I think in this committee we've come to realize that this is a big issue, that there's no quick fix. But what would give me a great deal of comfort, or at least consistency with what I think we heard from the witnesses, is that when there's no evidence of abuse or neglect, our approach to this problem should be—and this is what I thought I heard the witnesses say—that it is in the best interests of the children to make every effort possible to maintain a close and continuous relationship with both parents.

Now, I realize there will be these issues on the fringes that are very difficult, but as an underlying principle, we're trying to say it is in the best interests of the children. This is what we're hearing and what we're trying to reflect, I think, in this committee—to try to maintain a good relationship, a close one, with both parents.

Would you agree with that?

Ms. Hedy Fry: Where there is no evidence of violence or evidence of abuse, I think what you should be looking at is how the parents find a way of resolving their personal conflicts so that the child is not caught in the middle, so that the child gets an opportunity to have a good relationship with both parents.

• 1720

Mr. Eric Lowther: You said at the beginning that where there isn't evidence of that, you do agree: Both parents.

Ms. Hedy Fry: Yes.

Mr. Eric Lowther: Good.

Ms. Hedy Fry: But I think you have to look at the history, look at the causes, look at the context of the situation and not just take it in a vacuum with the broad statement that both parents are absolutely necessary for the well-being for the child.

Mr. Eric Lowther: Yes. I think that's excellent. It's quite encouraging to hear that you concur there.

I personally have acquaintances who have been subject to violent abuse in the home. They're tragic situations, and I wish we could move quicker on them.

I also have heard on this committee how false accusations of abuse have been used in power plays in divorce situations. Again, under the banner of “best interests of the children”, would you include false accusations of violence or abuse as a type of abuse, or at least certainly not in the best interests of the children, and at least a form of abuse itself? False accusations is a form of abuse itself, perhaps. Would you agree?

Ms. Hedy Fry: I don't know; “Abuse against whom?” would be the question. I think the question here is that if there is an accusation of abuse, then it should be investigated as soon as possible. We talked about timelines being very close and very quick here. I think in any false accusations, perjury is going to be the first thing the court would have to say. If you bring and swear before a court that this is so, and brought false evidence, again, you would be subject to perjury on whatever grounds. And those are the ways you should deal with the issues.

I don't see that it's in the best interests of the child for any one person to be suggesting that a parent is thrown into jail because of a false allegation.

Mr. Eric Lowther: And I certainly wasn't suggesting that. Where I'm going with this is, again, under the banner of “best interests of the child”. We all recognize that violence is not in the best interests of the child, whether it's directed at the child or one of the spouses. But I'm wondering if we shouldn't include, from what we heard across the country on this, that false accusations should be included under that same heading, that they are also not in the best interests of the child, and almost, if not on par, with violence.

We tend to get serious about violence, proven violence, as we should, but we don't seem to take the same level of concern about false accusations. It's, “Oh, it's false; okay, it all goes back to normal, and everybody's happy, and no one's hurt”. Well, I'd suggest that someone is hurt: the child is hurt, the one who's been accused is hurt, and—

The Joint Chair (Senator Landon Pearson): Mr. Lowther, I know it's an important issue, but we have two more people who'd like to speak, and we have talked about false allegations before.

Mr. Eric Lowther: Fair enough.

Ms. Hedy Fry: I'd like to quickly comment, though, that if you're going to move forward and ask, “What does a false accusation mean, and how does that abuse the child?”, the other question you then would have to ask is, “What of parents who do not observe access, and who say they're coming to pick up the kid this weekend and don't?”

Should that constitute a hurt? How do you balance those things off? You can't just look at one side and not look at the other side.

So the question is, if parents are continually letting their children down when they say they will pick them up, etc., where do you figure that into the access equation? You have to still take each individual case as it goes and look at how you work it out and how you resolve it.

The Joint Chair (Senator Landon Pearson): Ethel Blondin-Andrew, do you have a comment on that?

Ms. Ethel Blondin-Andrew: Actually, I do, on the whole issue of what's in the best interests of the child.

The Convention on the Rights of the Child, Senator, is very clear, in article 9, sections 1 and 3 in particular, on the rights of children in such circumstances. In fact, if I could, I'll read article 9, section 3:

State Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests.

• 1725

This of course comes out of the minister's department. Article 18 also makes very specific reference; it even goes as far as to say:

States Parties shall use best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child.

And so on and so forth.

It would be a good reminder that we support this convention, and this is the reflection of the underpinnings of our legislative mandate, and where we want to go in terms of policy. So it would be a good reminder to look at those particular sections.

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

I know both ministers need to leave. I have two people on the second list who will both be quick, right?

Mr. Mancini.

Mr. Peter Mancini: Thank you. I have two very quick questions.

One of the issues coming out of the discussion you had with Mr. Lowther—and you're right, every single case is so different—is that we've heard on this committee that there ought to be a presumption in determining custody in favour of the primary caregiver. We've heard that there ought to be a presumption of joint custody. As parties approach the court, we've heard that there ought to be a presumption of shared custody.

First of all, do you think there ought to be a presumption at all, and if so, which one?

Ms. Hedy Fry: It depends on what you mean by a presumption of joint custody. If it means that you must mandate joint custody, then I don't think that is reasonable or fair. Again, as Ethel read it out here, a child should have contact with, and the right to have, both parents, except when to do so is not in the best interests of the child.

I think what we're talking about here is that if both parents believe the child has a right to a loving, caring relationship, and that the child has the right to be free from intimidation, manipulation and violence inflicted on each other by the other, whether it be verbal or otherwise, then those parents will, in the best interests of the child, find a way to resolve that, and remove the child from being the centrepiece of whatever their conflicts are.

So we have to think about what the onus is on the parents as well. Presuming that parents will automatically and naturally do all of those things is not taking into consideration reasons for separation and divorce in the first place. It brings with it a great deal of pain and anger and all kinds of things.

So I think we're back again to talking about “presuming”. You should talk about how the child can have access to both parents unless it is not in the best interests of the child to do so. You have to recognize that from all of the perspectives of what is in the best interests of the child, including freedom from intimidation and manipulation.

Mr. Peter Mancini: My second question, I'll be very brief on. It doesn't fall squarely within our mandate, but we can't ignore it. It keeps coming up.

You've talked about flexibility, and the need for flexibility, and I agree with you. In terms of the mandated maintenance payments—and I don't want to get into that to too great an extent—ought there be, in your opinion, flexibility on the part of a husband and wife to contract out of those tables if they think it's in the best interests of the child? I'm not saying the court should deviate, but if the parties themselves say, “Look, the supporting parent has to pay so much”, should they have the freedom to contract out of that, if they so desire?

Ms. Hedy Fry: If custody and access is a lever that is being used to negotiate maintenance, no, they should be separate issues, because too often maintenance is used as a bit of a blackmailing tool to deal with custody and access: “I won't pay unless...”, or “I won't let you see the kid unless...”. Once again, the child is being used as a pawn, and once again, if you consider that the parents believe they have the right to this child—which I disagree with entirely—the child has a right to have the ability to live in the same economic way it would have lived if both parents were living together. A child has a right, therefore, if those parents are well-to-do and could have sent the kid to university, to go to university. If they could have given the child the best dental care, then they should be able to give the child the best dental care.

• 1730

Again, what is in the best interests of the physical, emotional and spiritual well-being of the child? None of that can be detracted. One of them is, you have to take care of the kid. Children need money to grow and to get clothes and be fed, and for health care and dental care, etc.

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

Senator Mabel DeWare: While we have you here, three quick questions.

One, we're concerned about the phrase “custody and access”. We would like to see if we can find a way to change that, if possible. I know it would make a reflection in a lot of legislation. “Custody” also means “incarceration” in some ways, and we'd like to get rid of that, and come to “parenting” or something.

Our committee has talked a lot about a parenting plan, that parents, before they divorced, were parents before. They should have to develop a parenting plan to show how they're going to support these children and all the ramifications of it. The judge would have something to do with that.

Finally, we had a lot of criticism about lawyers and judges—a lot of criticism. Of course, there's always criticism about lawyers and judges. It doesn't matter if it's custody and access or whatever.

Mr. Peter Mancini: Not always well founded.

Senator Mabel DeWare: Not always well founded.

I'm wondering if there is some way in this instance, dealing with this court, for there to be a special education process for judges and lawyers, to sensitize them to what they're dealing with here—children and divorce. They have to be sensitized. They have to have a feeling for it.

Those are my three points.

Ms. Hedy Fry: As long as removing the term “custody and access” and bringing about “joint parenting” or “parenting responsibilities” doesn't mean it's a euphemism for “mandated joint custody”. Because I am concerned that this is what it might mean. I'm concerned that it means that parents automatically have rights.

“Parenting” brings about the rights of the parent, again, as opposed to the rights of the child. So we're back to, “Parents have the right to do this, and the right to do that, etc.”, when it should be the child's right, too, the kinds of things, under the Convention on the Rights of the Child, that are always going to be in the best interests of the child.

So that's my concern about that terminology.

I think it's extremely important that the justice system in all areas become sensitive to the fact that race, gender, age, language, and disability create massive barriers for access of persons to justice systems. How do judges and lawyers, the justice system, understand how those things present barriers? They must be sensitive to those if they're going to understand the individual realities of the lives of the people they deal with.

If you have a one-size-fits-all solution, you never recognize that people are all different, and face different circumstances. Many of them are doubly and triply disadvantaged by all of those differences that we talked about.

So I think it's important to have a kind of justice system that is not just sensitive to, but that really understands, this concept that equality is not sameness; that equality means recognizing different barriers, and finding ways to remove those barriers so we all get onto a level playing field.

I think that would go a long way to understanding the system and to helping judges and lawyers make good decisions.

Senator Mabel DeWare: We could go on all night.

Ms. Hedy Fry: I know.

The Joint Chair (Senator Landon Pearson): Do you have a comment, Ms. Blondin-Andrew, on that question of the change of language on custody and access and so on?

Ms. Ethel Blondin-Andrew: Actually, I had a comment on the previous one, which was that to support, as suggested, that we legislate that if there can be an agreement struck between the two parties, they opt out of the court battle, would be to presume that of course these two individuals would do what's in the best interests of the child, and I don't think we can take that risk. I think we have to err on the side of the children. We have to make sure they don't slip between the cracks because two individuals are making perhaps a deal that works for them but not necessarily in the interests of the child.

• 1735

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

Finally, I think you have a brief one, Senator Cools.

Senator Anne Cools: We can let it pass—but thank you.

I want to underscore the point that, more than anything else, I think we have to uphold equality, and that when we uphold equality for men and for women, and uphold, as we said before, the interests of the children, and when we condemn violence and abuse, we condemn it by both genders. When we say children should be protected from it, which I believe they should be, they should be protected from it by both genders.

I was especially struck by the disinclination to ask the courts to extend its protection of its court orders to its children, because I think the state of these children is indeed unfortunate if the court is not prepared to stand behind its court orders, whether those court orders be financial support or access.

My feeling is if a court is not prepared to stand behind its orders, it shouldn't make them, in either respect, either of child support or of access. But we have to somehow or the other come to a position of balance and fairness at the centre.

Thank you.

The Joint Chair (Senator Landon Pearson): Thank you both very much for coming and spending so much time with us this afternoon. It's been extremely interesting, and we appreciate your comments. I hope you'll look forward, as we do, to the end of this process and the delivery of the report.

The Joint Chair (Mr. Roger Gallaway): The committee is adjourned until 6 p.m.