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]

Wednesday, February 25, 1998

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[English]

The Joint Chair (Mr. Roger Gallaway (Sarnia—Lambton, Lib.)): Good afternoon, everyone. We won't tarry with a lot of commentary today, but for members of the committee, I wonder if after we finish our main meeting here we could just stay for a few minutes to discuss our travel schedule. It will only be a couple of minutes.

On to the main matter of business today. We have with us today—and I hope you'll join me in welcoming—Professor Nick Bala from the Queen's University faculty of law. You have received, prior to this meeting, his brief.

Professor Bala, welcome to our committee. We look forward to what you will have to say to us today. If you want to proceed, you know the procedure in these committees.

Professor Nicholas Bala (Individual Presentation): Thank you very much. It's a privilege to be asked to meet with you today.

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By way of introduction, I am a professor and associate dean at the faculty of law at Queen's University, and I have a special interest in family and children's law.

I have submitted to you today two papers, which I'll be speaking to, dealing with issues of custody and access. One is a paper called “Rethinking Decisions About Children: Is the `Best Interests of the Child' Approach Really in the Best Interest of Children?”, co-authored with Professor Susan Miklas at Queen's. I have given you, at the request of the clerk, the summary chapter, which is translated. It is a longer report, and in fact I've left the full report with the research staff for your perusal if you wish.

The second document is one I co-authored this year with a number of other people on spousal violence and custody and access disputes. It is published by Status of Women Canada, and I think the full text is available for you.

Needless to say, I am speaking today in my personal capacity. I'm not speaking for my fellow authors or indeed for the organizations that sponsor those publications.

In the next few minutes I would just like to briefly address a few issues, first on the law of custody and access in general, and then specifically focusing on issues of domestic violence.

On issues of custody and access, I'm sure you've seen already, and will see it even more in the course of your hearings, and are probably aware of it from friends and relatives and so on, that issues related to children in the context of parental separation and divorce are intensely emotional. They're also very important for society as a whole. The issues that arise affect the child's life not only while the child is in that stage of life, but through adolescence and indeed through adulthood and through their entire lives.

Certainly these issues affect very large numbers of people in this country. One thing that's very important to appreciate as you're setting out on your cross-Canada hearings is that there is a great variation in how different divorces are handled and in the experiences of different people. When you are listening to people, it's important at least in some measure to distinguish between situations that are common and widespread and those that are more atypical but nevertheless very serious.

For example, the issue of allegations of sexual abuse in custody cases, which I have written about, is a very important and serious question, but it affects less than 1% of all cases. Issues for example of non-payment of child support—and I know you're not directly dealing with that—are very widespread. In 30%, 40%, 50%, 60% of cases there are problems with non-payment of child support, so it's a much more widespread problem.

It's important when you are thinking about issues to recognize that legislation and law and the courts and judges can only do so much—that the law is a very blunt social instrument. As you are thinking about issues of law reform, you should recognize the limits of the law and be thinking about a range of other non-legal solutions to problems.

It is also important to recognize that our knowledge is limited in this area. When I say “our”, I mean really the entire scholarly community and the professional community. We don't even really know what's happening in the justice system. If somebody were to ask, “In contested custody cases that judges actually decide, who wins more cases, fathers or mothers?”, we actually don't know in this country even that kind of basic information, although we have some sense of it, and it undoubtedly varies from place to place and over time.

We also have to recognize that not only are the issues emotional, they also have very a strong value basis, and individual value decisions are inherent in these kinds of issues.

We have to recognize that there are no panaceas in this area, and that what you'd be looking at is how you can improve the legal system, not how you can make it perfect. We'll never succeed, especially in this area, in making it perfect.

I think that as much as possible, the legal system and the legal regime have to emphasize supporting those parents who can make their own arrangements and are acting in a cooperative fashion. Issues of mediation and parenting plans—encouraging those is important, while recognizing that in some cases, particularly those where spousal abuse is an issue, it is not appropriate to have mediation, and recognizing the limits on a cooperative arrangement that can be made.

In the submission and in the first paper I gave you, “Rethinking Decisions about Children”, we argue that you should rethink the concepts of custody and access. A number of jurisdictions in the world have eliminated those concepts. When you think about those words, they are antiquated and in fact inappropriate. If they ever were appropriate, they certainly are not today. They don't recognize the reality of parenting, moving towards concepts based on parenting plans, on concepts recognizing that as much as possible, the parents are both going to continue to have a relationship with the children, and think about it the way that parents do.

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For example, thinking about a child's primary residence rather than custody is appropriate. Thinking about how the parents are going to develop a plan in which both parents may be involved in appropriate cases in their children's lives, with consultation and decision-making and a continuing relationship with both parents, will have at least symbolic and psychological significance, but will, I would argue, affect other cases.

Encouraging, where appropriate, a non-litigated, non-court-based solution is appropriate. I think mediation has an important role in these cases, although by no means is it a panacea. It is not appropriate in all cases, especially those where domestic violence is present.

I think we should recognize the value of things like parenting education. I realize this is moving away a bit from legislation, but a number of places in Canada, far too few, are adopting models in other countries, where they're sitting down with parents and educating them about what their children's needs are in the context of divorce, what their roles and rights are, and how they can work together towards having an appropriate solution to their problems.

There are pilot programs, for example, in Toronto, but also Edmonton, Charlottetown, and elsewhere, where lawyers and counsellors are meeting with parents, not both parents who are separating, but groups of parents, and providing them with some education and direction.

I think in cases where a judge is forced to decide a case—and those are the minority of cases—then it is appropriate to have certain legal rules.

I think a primary caregiver presumption is appropriate for young children, if there is a primary caregiver. In many divorce cases involving young children, there is the unnecessary threat of litigation when it's clear that one parent has been primarily caring for the child and it's appropriate to give a presumption, not a mandatory rule, that this person would continue to look after the child. I think a primary caregiver presumption is preferable to a maternal presumption. It recognizes that sometimes a father is a primary caregiver, and it has an appropriate factual context.

I think we have to recognize the role that the wishes of a child play in these cases, especially with adolescent children, and be realistic about saying with older children, those 14 and over, the wishes of the child are going to be very important. When you have children who are adolescents, it's really very hard to say if you're 15, here's what we're going to do. A judge can't tell them what to do; a parent can't tell them what to do. We have to recognize that.

With younger children, certainly their wishes and views are important, but we also have to recognize that there is the possibility of parents, in effect, either bribing their children or intimidating them. Indeed, in some cases involving abuse, children unfortunately identify with the abuser, and their wishes should be given limited weight.

I think it's important to recognize that in most cases both parents are going to continue to have involvement with their children's lives. Indeed, this will go on not only when they're legally within the framework of the Divorce Act, but—those of you who are familiar with this—it will go on when the children are adults. It will go with questions such as who is going to attend their wedding. Indeed, when one parent dies, the other parent is going to be dragged in. They'll say “Dad just died; what am I going to do?”

So the relationship between the two parents will go on until both of them are dead, and indeed, in some sense, in their children's emotional lives throughout their lives as well.

I think we should be encouraging, where appropriate, joint decision-making, joint involvement of both parents. Certainly consultation between parents about important decisions is desirable in most cases.

There is, however, a very important set of issues about spousal abuse. And as I mentioned and as is addressed more in this blue document that was published by Status of Women Canada, the issue of spousal abuse has not been appropriately recognized by our courts and indeed by our professions. Doctors, lawyers, judges, and the police have for too long not recognized the extent and importance of spousal abuse. It is not present in all cases, by any means, but it is a factor that has to be considered, and I believe should be directly addressed in the legislation.

When thinking about the issue of spousal abuse—and in the paper we discuss it in some length—it's very important to recognize we're talking about a very broad continuum of behaviour. In some marriages, and not an insignificant number of them, there is literally one instance of assault, which is certainly serious but may have less of an impact. In other situations a repeated cycle of abuse goes on on a regular basis. Indeed, it may escalate after separation, and ultimately we see too many tragic cases where it results in the death of the victim, and indeed often the children are killed as well. So we have to recognize this continuum and have appropriate legislation.

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We have to recognize, then, that the legislation should specifically recognize that children are affected by spousal abuse issues. In a not insignificant number of cases where there is spousal abuse the children are directly abused as well. They are secondary or primary, even physical, victims. Even when children are not directly physically abused there are problems when children witness abuse or are aware that abuse is going on.

So I think custody and access legislation needs to recognize directly that spousal abuse is a factor in the “best interests of the child” test. There should be a presumption that primary residence will not be with an abusive parent or abusive spouse and that visitation contact, where abuse is an issue, has to be restricted.

In particular, where spousal abuse has been going on in a relationship, and especially if it is continuing after separation, visitation can be a primary place where abuse goes on when the parents are exchanging visitation, or when the father is coming to get the children, if he has been the abusive spouse. In many cases like that there has to be supervision of the process of exchange and protection for both the children and the parents. Certainly in those kinds of cases, although in general I think there is an important role for joint decision making, it is not going to be appropriate where spousal abuse is a factor.

That is the end of my prepared remarks. I would be happy to answer any of your questions.

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

I know Senator Jessiman is anxious to ask the first question, following on the proverb that the first shall be last or the last shall be first...which is it? Senator Jessiman.

Senator Duncan James Jessiman (Manitoba, PC): Thank you, Mr. Chairman.

I've asked this question of other witnesses. Our legislation has been strengthened as against those who have to pay funds to a custodial parent or a primary caregiver. They have been strengthened because if they don't pay they can lose their driver's licence, they could lose their passport; and I think that's all very good. But what is your view of the case of the primary caregiver refusing to give access to the secondary resident owner, or the non-custodial parent, as we are used to calling them? We know they can go to court and they can get an order for contempt, but that is hardly ever used.

What would your view be of taking away their driver's licence or their passport under those circumstances? You have to continue to pay, and there's still a responsibility to have access to the children. In fairness to both parties, if they insist on not allowing that person to see the children, wouldn't that be just as reasonable in those circumstances?

Prof. Nicholas Bala: First of all, to put a bit of context around issues of access—and you link them to child support—as I mentioned, non-payment of support is an issue, depending on how you are defining it, in 30% to 60% of child support cases. So it's a very widespread problem, with enormous financial implications also for governments, because many of those—

Senator Duncan Jessiman: And I agree with all the things we've done to do that, but—

Prof. Nicholas Bala: Access is a problem. The biggest access problem is actually fathers not visiting—non-custodial parents effectively abandoning their children, not visiting. The cases where a custodial parent, typically a mother, is refusing or hindering or undermining access are a relatively small percentage of cases. It's important to keep that in context. Studies suggest it's in 2% to 5% of cases. With 2% to 5% of the cases we are talking about tens of thousands of people in that position, and they should not be ignored. Their pain is very real. But we have to see the context.

I think by far the best way to deal with these situations is through education. When I talked about parenting education...a significant number of custodial parents are not aware of the psychological benefits to children from having access to their fathers. It also has to be recognized that if the mother, again typically, is denying access or hindering access, you have to ask why that is occurring. Is spousal abuse an issue in this case, or for that matter the abuse of the children?

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Senator Duncan Jessiman: I watched a case where it was just straight-out refusal. What's the answer?

Prof. Nicholas Bala: One of the things is if you're looking for a single thing—and you'd recognize—like let's send the mothers to jail who are—

Senator Duncan Jessiman: You can't do that.

Prof. Nicholas Bala: We can't do that. I think that if you're saying let's suspend their driver's licence, if they live out in the country, and they have to drive themselves and their children around—

Senator Duncan Jessiman: They do that to the man.

Prof. Nicholas Bala: I think the threat of contempt of court, and indeed in very limited cases giving effect to that, is appropriate, but I don't think we should go further. Indeed, I think that if you look at the powers of contempt of court, a judge, at least in theory, has the power to do what you're asking for now.

I don't think enacting that legislation is going to provide a greater measure of control over it. I think it's appropriate.... If you're concerned about that issue, there was draft legislation, not an act, in Ontario that for example would say where access has been denied maybe in some of those cases there should be a specific power that a judge can order compensatory access, sort of saying you didn't have access for last month, so next month you're going to have it every weekend.

Senator Duncan Jessiman: I've heard that, yes.

Prof. Nicholas Bala: Indeed, in appropriate cases the legislation in Ontario, which was not enacted, provided that—and it would be limited to real circumstances—maybe there should be some financial compensation if the custodial parent can afford it. If say the father went all the way across the country and came there and he was denied access, it would say maybe the custodial parent should pay for that.

I think that if you're thinking about those kinds of concerns there are things one can do. But trying to remedy the actual problem and so compensating for it calls for education around it, as opposed to a punitive response, which is really going to negatively affect the child.

Senator Duncan Jessiman: My second question is that you say children 14 and over should have a choice as to where they.... How does that get to the children? Do you think this is just something the judges should learn about and lawyers should learn about and eventually the children, or should there be something in the legislation that says to the judges that children 14 or over, or at some age, should have a choice?

Prof. Nicholas Bala: One of the things you're touching on, which is a very good point, is that I don't think you should write this legislation just for judges and lawyers.

You may hear some people come and say that Professor Bala talks about a primary caregiver presumption. Judges do that anyway. They'll say if you read the case law.... In fact in almost every case in the country that's ever been litigated, when a child is 14 or over, the judge follows their wishes anyway. The judges have enough experience.

Senator Duncan Jessiman: I see.

Prof. Nicholas Bala: But the legislation, whatever you have in there, should be written in a way.... We have to recognize, especially today, that more and more parents are not represented by lawyers. And it's not in the mandate of this committee, but I would certainly see cuts to legal aid as a very serious problem in this area in particular. But if you recognize that many parents are not represented by lawyers, that some lawyers do not specialize in this area, and even some judges don't, it's very useful to say these are the starting points, this is what you should know.

So I would encourage you to be much broader than the present legislative scheme that is written. As a law professor I'd say I know that already, you don't have to enact that, but I would encourage you to be specific. If you actually read the case law, it is clear that in almost every case where the child is 14 or over—or indeed even 12, but I chose 14 as a reasonable age—judges are actually following their wishes, recognizing you can't make an order.

Why should people have to consult a lawyer or go to court to find that out if they can say this is a presumption? I wouldn't say in every single case. There are exceptional cases, where a child has been intimidated or there has been abuse, where the child should not be with a parent simply based on his or her wishes. But by that age I think we have to recognize that most children are going to do what they want anyway.

Senator Duncan Jessiman: I have a third and last question.

Children of majority or over, now those who are sick or disabled weren't, but for other causes being interpreted, as you know, to mean higher education.... It's now clear that it can go way up. We got a lot of complaints, when we were sitting previously on this, about not the payment so much but payment to the primary caregiver. They said these children are now of the age of majority or over. They don't mind paying the money, but they're not certain the money is going to the good of the child. They want to pay it to the child because the mother—and I use “mother” because she is usually the person with custody, although not as often as in the past—doesn't necessarily use the money, some would say, for the child. There have been others who have said it should be paid directly to the child at that point. What's your view on that?

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Prof. Nicholas Bala: By the way, I'm not practising now. I'm a law professor. I'm in a university environment. The children I see and who are anguished about their parents' divorces—in fact I've seen three in the last month—are university-age children. Some of their parents are just separating now, so the children are 22 or 23, and it's incredibly upsetting for such children even at that age.

Of course there are also economic issues. This is an area in which our law differs from that in the United States, and in which I think our law is superior. In the United States, when the child reaches 18, by and large that's the end of it. Children of divorce there find it extremely difficult to pursue post-secondary education.

I notice the Minister of Finance is taking steps to help everybody go to university. I applaud that, but many people look to their parents. In almost every case in an intact family, parents will support their children to the extent that they can. When you have a divorce, though, the experience in the United States would certainly suggest that if you don't have a law, a lot of non-custodial parents will say they are not going to support the child because the child has been living with his or her mother for the last ten years. The non-custodial parent doesn't care what happens. And again, reinforcing the emotional sense of rejection is the financial problem of not being able to pursue post-secondary education, whether it's university of college or whatever.

I think having a legal regime there is extremely important. If you would like to amend it so that the money can go directly to the adult child, I think there would be much to be said for that. Indeed, how some judges interpret the legislation has seen them make orders that way already. If you want to clarify the law for people and put that in it, I think that might well be appropriate. I would very strongly urge you not to eliminate that obligation, however, but to simply redefine it.

Senator Duncan Jessiman: Thank you. Thanks, Mr. Chairman.

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

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

I'd like to welcome Professor Bala. I have a couple of questions. I'll try to be as cogent as I can, but before I actually place my first one, perhaps I could thank the professor for bringing forward the concept that the child who is in a very serious, protracted custody dispute situation frequently may be a child in need of protection. I would therefore just flag some developments in the child welfare field for members of the committee.

As you know, the coroners of Ontario have recently been conducting a series of eight inquests into children's deaths. In one of the most recently completed inquests, the coroners have actually represented that the Child and Family Services Act—which is what we used to call the Child Welfare Act in Ontario—should be amended to basically say that the definition of a child in need of protection should be expanded to specifically address certain circumstances, such as protracted disputes with respect to the child's custody.

This phenomenon is being replicated across the country because of the famous case of little Matthew Vaudreuil, who was killed by his mother. I think her name was Maureen. When Judge Gove did his inquiry into this very terrible death of a little five-year-old boy, he was able to note that the welfare services had records of 64 instances of child abuse, the first one being the very first day the child was born or something like that. He made the point again that these services were mother-focused or parent-focused, not child-focused.

So, Professor Bala, I'm very pleased that in your presentation you've upheld the principle of the standard of the best interests of the child. I commend that.

Leaving from there, I just wanted to throw that out, because these issues are relevant. Mr. Chairman, perhaps we could contemplate inviting the people from the coroner's office. Perhaps Dr. Young or Dr. Cairns could come to speak on these issues, or even Judge Gove.

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My second point comes from your chapter 7—I don't have the page number—in the document you sent to us, which is entitled “Law Reform for Politicians, Judges and Lawyers, Mediators, Assessors and Parents”. At paragraph four you speak to the issue of the best interests formula. You subsequently state that the standard has to be upheld, but in paragraph four you say:

The best interests formula is vague and requires decision-makers to inject into any dispute their own values, biases and beliefs about what will be “best” for someone else's children. The use of such an unpredictable legal standard promotes uncertainty, encourages litigation and may be exploited, whether consciously or not...

“Whether consciously or not”—the motivation is insufficient. I was struck by that particular statement, because I think most of us here agree that the standard of the best interests of the child is a benchmark, is an absolute standard kind of thing. I'd like your comment.

In terms of what you said, I'd like to refer you to the particular case of Oldfield v. Oldfield. For members of the committee, the case of Oldfield v. Oldfield is one of those cases where the mother of the child—I forget how many children, I think there were three children—acquires a new lover in another country and wants to move, and the father had been very close to the child. I'm sure you know about the case. It's talked about as one of those benchmark cases. And it is fascinating how the judge arrives at the concept of the best interests of the child.

I'm going to read this to you, Professor, and then ask you for your comment. The judge concludes, on page 238, that this woman would be very unhappy if she were not allowed to move to France, and says:

Is it “in the best interests of the children” to make an order which effectively defeats this prospect and leaves them in the daily care of a mother who loves them dearly but who is shackled by her discontent?

And her unhappiness.... Then he continues later on at page 251: because she wants to go to France—I think she's French—to marry a man.... This judge writes that she will have the opportunity to be in a “whole family”, with other children “and with a loving husband and male figure, who, it seems, is adept in dealing with children and caring in the way he does so”.

This, to me, is astounding. So the problem is solved. It's in the best interests of the children, he says, to take these children out of the country, away from this father who's very close to them. But the problem is solved, you see, because in conclusion he goes on to say essentially that they have the means to have frequent visits and that can be solved by making the child support payments quite high, which the father pays. These support payments are high enough that she can then afford to send the children back to Canada to visit four or five times a year.

The point I'm driving at.... And perhaps it was a good decision; I'm not questioning that. But when I read this judgment—I'm currently reviewing most of the case law on the best interests of the child—basically I just don't understand how the standard of the best interests of the child was applied there. Because on as whimsical or as profound a basis, one could say it was in the best interests of the children that they not be separated from their father. But he builds it on the personal happiness and love relationship that the mother is going to have.

I've been a bit long-winded, but this is not an unusual case. Neither is it an isolated case. I wonder if you could comment.

Prof. Nicholas Bala: There are a lot of good questions there, Senator. In the paper—and the full document is with your research staff—we go through the problem of the “best interests of the child” test. It is inherently, as you point out, a vague test, and in some sense if you ask what is “in the best interests of the child”, you're asking what values are important in life. If the mother says that if the child goes with her she'll make sure the child goes to ballet lessons and if the father says that if the child goes with him he'll make sure the child goes to hockey.... You get cases now about what happens if one parent smokes and you have second-hand smoke or what happens if.... You can go on endlessly.

Indeed, one of the problems is that “best interests” quickly becomes “who's the best parent?”, which quickly becomes “who's the worst person?” So you can invite that kind of thing.

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I'm not advocating moving away from that standard. Look at the previous standards. For example, to go back historically, children should go with their fathers because fathers are natural guardians. Then you say, well no, children should go with their mothers because mothers are natural caregivers.

I think “best interests” is the appropriate standard, but this is why it's important to specify what that means. Indeed, the last round of performance gave some specification to it. I submit to you that you should have a lot more specification about some of these issues.

This goes on to the issue you raised about litigation. Litigation in this area in particular is both financially very expensive and emotionally very destructive for the parents, and in particular for the child, who is caught in the middle.

I believe that the courts, nevertheless, have a role, and we can't eliminate or shouldn't eliminate that. But if you can even reduce the amount of litigation somewhat, it's a great gain. Therefore, more specificity in the legislation would be desirable.

You raised the issue of mobility. I think, to some extent, the Supreme Court of Canada, in the Gordon v. Goertz decision, which is I think relatively recent, very clearly moved away from a standard that would say that the custodial parent has a presumptive right to move with the child to one that recognizes and makes it clear that the child benefits from a relationship with both parents in most cases and that moving the child's residence may interfere with that. In terms of the development of the case, I think Gordon v. Goertz is an important decision. Again, the fact that it's there doesn't mean you shouldn't enact legislation to clarify and codify.

I don't think that one can have a rule that would say children should never move or that children should always be allowed to move. In this scenario, we'll need to have individualized decision-making. The question is, can you give judges some direction?

Senator Anne Cools: Right.

The Joint Chair (Mr. Roger Gallaway): Sorry, we're out of time. Madame St-Hilaire.

[Translation]

Mrs. Caroline St-Hilaire (Longueuil, BQ): Thank you for your presentation, Mr. Bala. I have read your document, or at least the summary. I noticed that the word "separation" comes up several times. For example, there is a reference to the sharing of the parenting role after a separation. I suppose that you are well aware that this matter comes under provincial jurisdiction.

You also deal at length with having access to mediation. I suppose that it is very difficult in cases where there is abuse or strong disagreement between the two parents. However, in Quebec, the family policy calls for a mediation process. I would like to know how you feel about the Quebec system, to the extent that you are familiar with it, and whether you think that that process could apply to divorce cases.

[English]

Prof. Nicholas Bala: I think that the Quebec model—I would not hold myself out as an expert in what's going on in Quebec, although I certainly have read about it and I met people who work there—as in a number of areas in regard to children, is something of a model for the rest of the country in terms of what they've been doing with mediation. My understanding is, for example, that it's the only province right now with family mediators having a process of certification.

In other provinces, including Ontario, one of the problems with mediation is that anybody can be a mediator. Some mediators are very skilled and knowledgeable and deal very well with the range of cases including, at least in some situations, ones in which there may have been some domestic violence.

There are other cases in which, in the worst-case situations, people are mediators who are literally reliving their own divorce. They say they were dealt with badly by the courts, so now they will say they're a mediator. They will help other people who don't have lawyers or access to counsellors about how to deal with their divorce. Their role becomes, in effect, very manipulative and inappropriate.

That's why, for example, in regard to mediation, having a qualification model, which they have in Quebec, is very appropriate. Having government financial support for mediation is very appropriate. If we allow people to go to a judge without paying, other than a relatively small fee, why shouldn't we allow them to go to a mediator?

So I think there's a lot that can be done with mediation. I do think, though, that it's not appropriate in all cases. I particularly touch on the ones involving domestic violence.

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I don't think anyone should be forced to go to mediation. I think in this country people have a right to go to court. But a lot of education has to be done with professionals, with lawyers and judges, about the appropriate role of mediation.

One of the exciting things about Quebec is that it has a comprehensive model of mediation, by and large. It deals not only with custody and access but also with economic issues. There is a role for that kind of comprehensive mediation.

Again, that has to be approached with some caution. Mediation is especially appropriate around child-related issues. It becomes more difficult when you get into economic issues.

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

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

As a former divorce mediator myself, I agree with a lot of the generalities you've talked about. But you understand the background and the existence of this committee, and you understand the particular terms of reference of this committee. It comes out of a history. I would like you to direct your comments to some summary advice on what we need to address at this committee.

I hear what you're saying. The government supports the soft alternative: non-legal approaches will address the mandate of this committee, rather than particular legislative alternatives. Do you want to address the context of why this committee exists and your advice, at this point, on where we should go?

Prof. Nicholas Bala: I'm not exactly an expert on what your jurisdiction is and how you came to be here. My understanding was that in the course of the child-support hearings, among other places, people began to express concerns about custody and access laws in this country, although I think the history of that predated those hearings.

Ideally, child support and custody and access reform should have been dealt with at once. To me, that was not a reason not to go ahead with child support, the government having separated the two issues. It's certainly now appropriate to look at custody and access laws in this country.

As the full text of the paper I gave you indicates, most jurisdictions in the world have been looking at and reforming their laws in the past decade. Canada has fallen behind in this scenario, where it's particularly unfortunate to fall behind because it means we have many problems other jurisdictions deal with better and we haven't dealt with.

It is my understanding that this committee is not drafting a specific piece of legislation but rather looking at the issue more broadly. Some of your recommendations may well be legislatively focused, specifically in the federal area of jurisdiction, but it is my understanding—I may be wrong—you may also make recommendations about a broader range of issues, some of which would involve federal spending, and indeed some of which might involve provincial spending, or even provincial legislation.

Obviously you want to have a sense of respect for provincial jurisdiction in this area. One of the realities, though, is that in the family law area, when I teach the family law course, constitutional issues, federal-provincial issues, are quite important, but they cut in unfortunate ways, in the sense that the substance of a lot of federal and provincial legislation in this area is often identical.

This is not an area in which any province is saying, look, let's give fathers a guaranteed right to custody of their children. On the contrary, in the child support area the provinces have tended to move with the federal child support guidelines. Rather, the problems, because of the split jurisdiction, are procedural, in a broad sense.

For example, why don't we have unified family courts in this country? That's an area where you require federal-provincial cooperation. Everybody who has looked at unified family courts says they are a good idea. They make social, political, legal sense. They save resources. But because the federal government and the provinces can't agree about who is going to appoint the judges or who is going to pay them, in most places in the country we don't have them. That's certainly an area where I would see this committee, for example, saying...if you come to the view that unified family courts are part of the solution—and I submit to you they are—you would make a recommendation.

Mr. Paul Forseth: This is just a supplementary to what you have said. The justice minister told me the reason why we don't have unified family courts is not that the federal government is not prepared to appoint those judges. In fact, it has vacancies and money set aside for doing that. It's the provinces that have to put together the other support services and organizationally put it together and also pass an appropriate provincial statute that pulls it together. So the justice minister said clearly that they're waiting for the provinces and will actively pursue any province that comes forward with a plan.

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I don't think that's the issue, but I was trying to get your specific advice here as to what you're recommending, based on that history you alluded to. Could you suggest the one or two points that are most significant that would ameliorate that problem of discontent that we're hearing from the community, which gave rise to this committee?

Prof. Nicholas Bala: I would caution you not to look for just one or two things. I think there's a whole range of interrelated issues that have to be addressed. There's not going to be a magic bullet in this area. There's no country that doesn't have anguished parents and children who are suffering as a result of parental separation, but many countries are right now doing a better job than Canada. So the question is, can you make a set of recommendations that will move in the direction of helping children, often through helping their parents?

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

Ms. Eleni Bakopanos (Ahuntsic, Lib.): I'm really interested in the document entitled “Rethinking Decisions About Children”. But I have to tell you, the aspect I like very much is the educational part that you're stressing at the end, because I think that's the key, personally. You can have the best laws in the country, but if there isn't an education that is done both of the public and also the parents and the children going through the whole system.... You allude to it, yet you don't offer any guidance in terms of our committee.

Would it be appropriate to have an educational system within primary and secondary schools? Even if the children themselves never go through the process, they have classmates who in fact may go through the process of divorce and some of the issues you were discussing.

Are we talking about also having an education prior to going to mediation? Even if you go to mediation, if you don't know the limits of what is available, you may not come out with the results you would like in terms of mediation.

Should we have, then, education after the fact, after the decision has been rendered and after the judges—who I think also need some sort of education? You mention that in your document at the same time.

Would you like to offer us some guidance?

Prof. Nicholas Bala: As someone who works in a post-secondary educational institution, I'm a big believer in education, and in some ways, of course, the members of this committee are going through an educational process.

Ms. Eleni Bakopanos: Yes.

Prof. Nicholas Bala: I think there is an important role in the school system for supporting children who are going through divorce. In many schools, or some schools at least, I think there should be more identification of those children when they're in that process, which in fact goes on for years. Providing them with support, particularly group support and group counselling, is often very appropriate. There's certainly a role. And now most schools, when they have family programs, recognize the diversity of form of the family, and same-sex parents, and divorce, and so on, and I think that's appropriate.

Most of the education people need, though, is when they're having a problem. We have a doctor here who has talked to us about how we get in the schools and what we can do with health education. I think there's a place for health in education, and this is part of it. You can talk about healthy living, but if you say, well, let's talk about cancer and what you do if you have it, people have a low level of interest in it until they have it.

So I would focus most of the educational resources on people who are in the process of separating, divorcing, recognizing that it's a process. It goes on for a long period of time, and for many people there are moments of anguish and anger. Then after a period of time, if they get appropriate support and legal advice and so on, much of the anger and pain diminish, although some of that will go on forever, and for the children it will go on for the rest of their lives as well. So I would focus the resource.

One of the interesting things is to the extent we have research.... And I think England, by the way, is ahead of us again in this area. They have a legislative provision. Of course they don't have the constitutional problems we do, but they have mandated that they're going to have and they are starting to have.... I can leave you the name of one of the researchers, Janet Walker, who's actually evaluating different models around the country of parenting education. They are looking at exactly how you would structure that. There are a number of different ways. You could have mixed gender groups, not the same separating parents, but you would have fathers and mothers together. What are the advantages of that? Do you use videotapes? Do you use educational written material? Do you have one session or many sessions?

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So there are a number of different models, but my understanding is this is a very cost-effective way of reaching a lot of people and reducing court costs, for example.

As a model, let's say you have one hundred separating people and save only two or three of them from litigating. Given that many of them won't go there anyway and the financial cost to the state of just running the courts, you can run a lot of educational programs for the money you're saving. There is also the emotional saving.

I think in this scenario we can get a lot of social utility with a relatively limited social expenditure. There are places in Canada that are piloting different kinds of models, and I would certainly encourage that to be part of your report. Largely, however, this is an area of provincial responsibility; but funding pilot programs, for example, is something the federal government can and should do in this area.

Ms. Eleni Bakopanos: Do you also believe in support groups? There's been a rise in non-custodial parents forming support groups. I don't want to call them lobby groups, although some people do.

Prof. Nicholas Bala: I think support groups are very valuable for people in a range of situations who have gone through or are going through difficult life experiences, of which divorce is very high on that list. For people who have experienced the death of a spouse, it's invaluable for many of them, not all of them, to have a support group.

You're right, there's a range between support groups and lobby groups. I think it's appropriate in a democracy like this for people to have lobby groups. It's important for them to mobilize their resources.

Ms. Eleni Bakopanos: I agree.

Prof. Nicholas Bala: My only cautionary comment to you, as the ultimate decision-makers, is to recognize that when you have that dynamic, the people who come forward as spokesmen and spokeswomen are often those who have had the worst experiences and are the angriest. They're telling their side of their story.

Yesterday I was listening on a local regional CBC radio channel to an interview about parents who were going through this process. Some man was saying he had kept up all his child support payments and they sent him to jail anyway. Whatever was going on, I couldn't believe that. Maybe he shouldn't have gone to jail, but he couldn't have been making all his child support payments.

As a lawyer I would say to listen to some people talk about this issue. What's the other side of the story I'm hearing? You have to go through that, obviously, in a sensitive kind of way if you're hearing witnesses, but recognize that they are telling you their side of the story. There's another side of the story.

In that regard, I'll caution you that you will hear a lot of lawyer-bashing and judge-bashing. People say “These lawyers made me crazy.” There are certainly some lawyers who need more education and judges who don't deal with these cases well, but in my experience, when you look at the very high-conflict divorces that are being talked about, when the lawyers are alone with their clients they're saying “Let's think about the children and be reasonable. Here's an offer to settle.” It's the parents who are becoming more and more emotional and crazed and pushing the process forward.

I don't want to say lawyers never do that, but divorce brings out the worst in people. In that process they sometimes act a certain way and when they look back they may not be proud of what they've done. They say “It's not my fault, I had no responsibility. It was the lawyer, it was the judge, it was the mediator, it was the politicians. I was fine.” I would just ask you to approach those kinds of comments with a judicious sense of caution.

Ms. Eleni Bakopanos: Thank you for that wisdom.

The Joint Chair (Mr. Roger Gallaway): A pleasure, Ms. Bakopanos.

Senator Cohen.

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

In reference to the question that was just asked, I wanted to tell the committee I also sit on the guideline committee on divorce. We heard a lawyer from Halifax, Nova Scotia, from a family law firm that initiates a positive parenting education program when couples come to the firm to divorce. It has been so effective that it has caused much less hardship and less war-like conditions for the families in the best interests of the children. I think it's something we should look at besides mediation.

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I thank you for telling us that mediation shouldn't be forced, because we've had some lawyers who have appeared before us saying that they don't believe in mediation. You said there's an appropriate role for it, but that sometimes judges and lawyers have to be educated to that effect. I think that's another area we have to think of in the whole education process.

I also noticed in your report that you have a whole paragraph on language terminology. I just wanted to ask you how important you feel language terminology is when we begin to work on our report.

Prof. Nicholas Bala: I'll just pick up on that by saying that in my view, most experienced family law lawyers and judges are sensitive, are constructive, and are trying to bring about a resolution to these cases with the least expense and emotional pain. They also recognize that sometimes it does take two to settle a case, and that you sometimes have to litigate if you're dealing with someone on the other side who's not prepared to settle. Sometimes there are cases involving abuse and certain really abusive spouses who are in effect abusing the legal system. If you're representing someone who is a victim of abuse, you're saying that you're not going to give joint custody and that you will go to court if you have to. So I think that some of the litigation is unfortunately necessary.

On the issue of language, though, virtually every jurisdiction that has modernized its law in this area in the last decade or so has recognized that terms like “custody” and “access” are not appropriate. Unless you're familiar with the legal terminology, they're not terms that naturally flow to a parent. They have unfortunate connotations. They're not concepts that capture what parents are actually doing or should be doing, and they are concepts that tend to alienate one parent or indeed both parents. So I think we'd like to have legislation that recognizes what it is that parents are really doing.

Again, is changing the language a panacea? Absolutely not. To my knowledge, no one has done a really good double-blind study of what the effect of changing the language is, but those people who have been in jurisdictions that have changed their language seem to suggest that it seems to have some use. It certainly makes it easier to communicate with clients in a meaningful way.

There is certainly no downside to changing the language either. It's not a costly thing. But if you're enacting new legislation in any event—and I think you're moving in that direction—and if you're talking about people rethinking some of their concepts in the way I am advocating or suggesting to you, or others that are going to significantly change the system, you might as well change the language anyway.

Senator Erminie Cohen: Thank you.

There's just one other question I'm curious about. For people who are in poverty, who can't afford the luxury of going to a lawyer and having a lawyer suggest mediation, legal aid is very vital. Legal aid, however, is not available for very many jurisdictions in this country. I was just wondering if this committee should work in that area or not when we come to our final conclusion. Do you feel that's important, that there's a segment of our population that is totally without help there?

Prof. Nicholas Bala: I don't view a lawyer in this area as a luxury. At least in some cases, a lawyer is a necessity. In fact, again at least in some cases, having a lawyer not only provides advice and protects people's economic and social rights, but he or she can actually lower the temperature. A good family lawyer will provide a range of very important advice for people.

You are right that legal aid is one of the cuts that we've unfortunately seen in the various aspects of our social safety net. You may start to fear that the legal aid pot is shrinking in different jurisdictions within the bar. There is an understandable tension between spending money on people who are going to go to jail and spending money on family law cases and these other kinds of cases. I think it's very unfortunate that we've seen these cuts. These are areas that are particularly socially important, and I would certainly urge you to make appropriate recommendations.

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The federal government actually does spend money on legal aid. I think they funnel it through the provinces. As in other areas, like health care, where they have stipulations, I think it's appropriate to have that in this area as well.

I think there is a role for court personnel and indeed for paralegals in some cases. There may be less expensive models of delivery of legal services than some of the models that are there now.

It is an enormous problem. And in some of these cases, I think, it is penny wise and pound foolish. If you start to talk to judges about family law litigants who aren't represented, they say, “Fine. We've just saved legal aid because they're not going to pay for a lawyer.” So now we have people representing themselves who don't understand the process and who are taking up an enormous amount of court time, and it's not anybody's fault. It's actually more expensive than having lawyers representing people. Like some other areas, with the cuts in the social safety net I think we're actually increasing costs in very unfortunate ways.

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

Mrs. Sheila Finestone (Mount Royal, Lib.): Thank you very much, and thank you for all the literature you provided to us. I must say it's bulky reading, but it's been very interesting.

I would like to follow up somewhat on the question of my colleague from Ahuntsic, Eleni Bakopanos, but I would like to take it in another direction, if I may. You were talking about education. I have some concerns about the number of times in your documentation I've noted your serious concern about the definition of “the best interests of the child”. I share that concern.

Secondly, if the definition were clearly defined and if the parameters were enlarged to include the fact that there's often violence within those families and the impact of violence, whether physical or sexual violence, is a factor of prime importance in the continuing well-being of that child, then you would have a better parameter with which to allow families to personally develop a plan or to allow lawyers to work on a mediation plan.

I have some concerns about where and how the issue of domestic violence comes into the portrait, and how access to that information is available. The police records, etc., don't always show the incidents of spousal abuse, and as we all know, children are directly affected. And there is a cyclical effect as they become adults, in the ways in which they handle their own interpersonal relationships. I think that's a very serious matter and must be taken into consideration.

First, as you are not happy with the formula for the best interests of the child, I wondered if you had designed such a format, and if you had, if you could deposit same with us.

Secondly, I wondered if you have included the whole question of violence against women and the impact of violence on children.

Thirdly, you're talking about spousal violence. There's spousal violence on both sides, as we know. The incidence of women in the spousal violence situation is far less than it is for men as far as being the perpetrators of violence. So when we talk about spousal violence, it could have a larger connotation, depending on the family format.

When you were writing the material you've given us, I wondered if you had taken into account the fact that there are very seriously changed family formats today, whether it is two women living together or two men living together with children, whether it is a second marriage or whether there is a boyfriend or a girlfriend in the picture. If you had had all those factors in mind when you were doing the Australian study, which was much before this, would you have changed anything?

Prof. Nicholas Bala: I should say that with the first one that I wrote, the “Rethinking Decisions About Children” document, which a number of you have referred to, it actually, particularly in the full report, does mention issues of domestic violence, and it does in what I've give you.

Mrs. Sheila Finestone: Yes, in chapter seven.

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Prof. Nicholas Bala: The more recent document that I have left with you deals with domestic violence in much greater detail.

I critique the best interests test in the sense that one has to recognize its limitations. I also don't advocate your moving away from it. Some jurisdictions say that rather than the best interests, let's use a test and call it the welfare of the child or something, and just rearticulate something that continues to be vague.

I think that best interests is a good aspiration, although one wouldn't ever argue the opposite, which is we don't care about the children at all. So we're probably going to be stuck with the general words, and I think they're useful for inspirational purposes.

Immediately beyond that, one has to articulate certain criteria for what one means, and in particular, to talk about domestic violence. Because one of the things that abusive partners do is threaten custody litigation as well as physical abuse, and they'll say “If you leave, I will get custody of the children”.

If you actually litigate that out, and it's proven they're abusive, they may not get custody, but they're dealing with someone who is already under their control and may not be aware of the legislation, or they look at the legislation and don't say anything about it. So it's important to set out in the legislation the importance of domestic violence in these cases.

Within the federal jurisdiction you're probably limited to situations of divorce. There's no question that issues of domestic violence also are present in same-sex relationships, and in this document I give you a few citations for that. There's less research about that.

I think you're right in identifying that there are relationships in which the woman is the primary instigator of abuse—physical abuse. I would emphasize to you that those cases are very clearly a minority of cases, that the abuse of women by men is a more prevalent and more serious problem.

Again, though, if you're dealing with the one—if a man says maybe most women are, as it so happens.... There are certainly documented cases where the man is the victim of abuse by his wife, where she is either physically or emotionally the stronger one. There are cases where women stab or shoot men without any particular provocation, and those men deserve protection. Certainly the recommendations that I put forward are very much and deliberately gender-neutral, but also they should be seen in a gendered context.

Mrs. Sheila Finestone: Excuse me. That was a question. In your definition of “spousal”, you perceive that to be gender-neutral—yes or no?

Prof. Nicholas Bala: The definitions are deliberately gender-neutral, but they are also in a context in which there is a differential gendered impact.

Mrs. Sheila Finestone: Yes.

Prof. Nicholas Bala: I guess what I would say about all family law, and to come back to the question about lobby groups, is that historically in this country we had laws that were gender-specific. For example, it was specifically said that a woman could not get a divorce based on her husband's adultery, but a man could. There was an explicit double standard.

We have now quite appropriately moved to legislation that is gender-neutral. It talks about spouse and parents, not fathers and mothers. Having said that, almost every family law has a differential gendered impact. So whatever you propose, either “fathers groups” or “mothers groups”—using those in quotation marks—they're going to come and say “We don't like that law, because it has a differential gendered impact”. You can't have a law in this area that doesn't.

Mrs. Sheila Finestone: Professor Bala, let me tell you—

The Joint Chair (Mr. Roger Gallaway): Ms. Finestone—

Mrs. Sheila Finestone: I just want to make one observation.

An hon. member:

[Editor's Note: Inaudible].

Mrs. Sheila Finestone: Mr. Bala, I want you to know that gender analysis and gender evaluation is absolutely fundamental to any kind of law, and it includes this kind of law. It's been adopted by this government, and I think it's vital.

The Joint Chair (Mr. Roger Gallaway): Thank you, Mrs. Finestone. Mr. Lowther has a short question.

Mr. Eric Lowther (Calgary Centre, Ref.): Going back to one of the questions we had earlier about the terminology, I notice in your report you give some suggestions about terminology. We talk about how maybe custody and access are not productive types of terminology. What are your alternatives? I see “parenting plan” and “primary caregiver”. Did you have some others?

Prof. Nicholas Bala: In the report we mention, and indeed one can start to look at.... I think the Washington State model is very useful to look at. England, again, has different terminology, but has moved away from “custody” and “access”.

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The problem with “custody”, of course, is that it usually has this set connotation of being in a prison context. It also suggests that one parent, the custodial parent, is totally responsible for that child and the other person merely has access. I have a right of access to this building. As a citizen, you'll get police standing at the doorway trying to protect people and so on, but it sounds very limited. So I think that if you're moving in that direction, the report suggests....

“Parenting plan”, by the way, is not just terminology, it's an idea that says that parents should be required or expected to develop a plan that doesn't just say this person has custody and this person has access, but tries to spell out what we are going to do to care for this child together. It's a joint responsibility. Given that we are living separate from one another, what are we going to do in terms of schooling, health care, and recreation? There's a whole range of things.

The jurisdictions that have that actually, going to the issue of lack of representation, have developed written materials for parents saying that if you don't have a lawyer, or before you come to a lawyer, read this material. It says that here are some model precedents you can have where you can fill in the blanks about what your plans are.

It says to the parents that we want you to engage in developing a plan today for your children and recognize that this isn't a plan once and for all, this is a plan that you will have to revisit once a year, or more often, as the children mature. This is just as parents who are living in a family situation sit down, more often informally, and say that we have to make plans for our children. In the ordinary situation of parental separation, try to involve both parents in decision-making about the children. More importantly than just decision-making, psychologically involve them both in their childrens' lives so that, on an ongoing basis, that will go on.

One of the problems in this area is that, legally, we want to have people decide things once and for all, but the reality of people's lives is that they go on, as I said, forever. You want to try to say you're going to go to court once at most, hopefully.

Say we have a parenting plan that says the parents themselves say they've made this plan and that they're going to revisit it next year and they have a way of trying to resolve disputes within it just as you do in a collective agreement. That would be a useful model to have.

Mr. Eric Lowther: The focus of my question, though, Mr. Bala, was the terminology of custody and access and alternatives to it to get our focus shifted a little bit.

I've got a good description of a parenting plan; I didn't really want that. I just wondered if there was any other terminology you've encountered that's maybe more productive toward resolutions.

Prof. Nicholas Bala: I think that certainly a “primary residence”, for example, is a better word than “custody”. It connotes more than, in the context of a parenting plan, developing a parenting arrangement for the other parents by saying that one parent is the primary resident. What is going to be the parenting arrangement involving the other parent? This should be addressing in a more detailed fashion what are going to be the educational, health care, and extracurricular arrangements of the children.

That level of detail should be in a parenting plan. Indeed, in many jurisdictions the legislation specifically addresses those kinds of things. I would commend to you, for example, the Washington State model.

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

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

I guess my first question is: could we get rid of the word “custody” in the legislation? Is that possible? Can we actually just begin to talk about parenting plans? Would that be a solution to a lot of the power differential that seems to spring eternal whenever people feel that they might a loser in a situation or look bad in front of their kids?

Prof. Nicholas Bala: I think you captured much of the reason why I would advocate moving to that model. I don't want to mislead you and say that this is a solution. No, this is part of a solution. This is moving in a much better direction than we are now.

You'll keep them from being winners or losers, which is not appropriate and which is not how the children want to think of it. Indeed, if you talk to parents who have a reasonable separation, which many in this country do.... We tend, and understandably, to focus on those who litigate it and have gone to court, but most parents work out their own arrangements. They work it out themselves or maybe they work it out involving a religious adviser, a family friend, a psychologist, a mediator, or someone. Parents decide a lot more cases in this country than judges do, and if you didn't indicate them “in the legal system”, they wouldn't start thinking about custody and access. We want to encourage people to do that.

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Ms. Carolyn Bennett: Today we're focusing on spousal abuse, and I would tend to think that is the group that ends up out here in the highly contested, or the places where the power differential has been a big issue in this relationship all along. They're not the 80% who tend to settle this thing themselves, or the various statistics we've had.

We do have to define these kinds of aberrant power differentials, because some of them are there even without a hit. Sometimes the ones where there is a hit are easier because the criminal court proceeds and a judge can send the father or the abuser to counselling.

In the document, there's not a lot about the criminal charges being laid or not laid, whether that's helpful, whether that's always bad. It does say that we hope the legislation will be able to require perpetrators to undertake counselling. Certainly to their surprise, in my practice, that quite often helps, and the people who are the least likely to have shown up for counselling, once they're put in a group of similar people, actually start to talk.

We then start to get into the generational problem you reported. If we look at these people who all have either an insecure attachment to their mother or an abandoned father or an abusive family situation themselves, they start to deal with what really is their issue and the reason they've not dealt well with intimate relationships, period, at all.

Can we, in writing a law, make sure those things happen, and how would you go about that?

Prof. Nicholas Bala: Well, you're raising a lot of issues, Dr. Bennett. Certainly I advocate changing the terminology, and that doesn't mean that in a situation of.... I don't think it's inappropriate, even in a situation of spousal abuse, to say the child will primarily reside with the mother, and indeed to say that in this particular case, there will be no contact between the father and the child. That's the most serious case along there, but there are cases where that is clearly appropriate. That doesn't mean you have to keep using words such as “custody” and “access”.

You're right in identifying that there is a spectrum of abuse, so in the report, we talk about the fact that spousal abuse is not a unitary phenomenon; it's a range of situations that have a range of solutions. Education of professionals, including doctors, is an important part of dealing with this.

Recognizing that it's a problem, all doctors—and my wife is a medical educator, and I think she advocates this—all doctors should be asking all their patients, “Are you a victim of abuse?” All lawyers in a divorce situation should certainly raise that question. I tell them that as students; they don't all do it. Having a recognition in the legislation is an important part of the solution.

I would urge you not to think about any of these problems as having a single solution. Everything is related to everything else. It's related to schools, health care, police, and judges. When we educate people, it's not a once-over thing. We're going to have to go on educating, because we're going to have new professionals and we're going to learn more.

Ms. Carolyn Bennett: As a government, though.... It seems that criminal charges are laid very rarely for the huge amount of abuse that's going on, and when they are, the penny does drop that this is not okay, and somebody might be more likely to go and get help. Do you feel we are being soft in not making it more routine that criminal charges be laid?

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Prof. Nicholas Bala: Well, I should say, in fairness to those who work in the criminal justice system, that in this scenario, we've seen a lot of change in the last 15 years, and even in the last five years. In Toronto, for example, as you may know, there are now special domestic violence courts, where the crown prosecutors have training and some resources to start to deal with these cases more effectively.

There are certainly problems. Some judges are not taking these cases seriously enough. A bigger problem is that some people are not being charged. I don't personally favour a model where, for every single assault, no matter what it is and who it is, there are going to be criminal charges. That is both not realistic and not appropriate.

The victim has to have some role in that. There will be some women who say, “My husband has struck me once. It was a very upsetting thing. I don't want him to go before a criminal court judge on this one occasion, because I know what it will do to me in a variety of ways—economically, psychologically, or in our community—and I choose not to do that.”

I feel uncomfortable about somebody saying, for example, if a doctor learns of a spousal abuse situation, the doctor must report it to police, and that man must be charged, regardless of what the victim says. I do not favour that for spousal abuse, whereas I think it's appropriate for child abuse.

Does the criminal justice system have a role? Absolutely. Is it the only answer? No. When you get into talking about mandatory counselling, for example, that's a very useful thing, but the research says it's not 100% effective by any means.

The question to me always, when you're working on this level, is does it reduce the level of reoffending, not does it eliminate it? If you're asking what we are going to do to eliminate this problem, you might say it doesn't eliminate it, so forget it; we're not going to do it. The appropriate thing is to look for improvements, cost-effective improvements

Ms. Carolyn Bennett: Professor Bala, I have just one thing. The kind of counselling these men receive seems to be of huge debate. Just anger management doesn't do it, and that's where we've seen the bulk of the research—sending these people off to anger management school and actually not dealing with their underlying issues. You can't throw out the research just because it may actually be bad counselling that they were referred to. Or maybe you can. Maybe that's what I'm saying.

Prof. Nicholas Bala: I agree that there is a range of different kinds of programs, and unquestionably some of them are more effective than others. This is why, by the way, research is an important part of what we're talking about.

I would simply caution you not to enact legislation saying that today in Ottawa we have discovered the best kind of counselling, and everybody in the country should do that and only that. It's an area where I would encourage a range of different models and research. As professionals who work in that, what you can do and should do is say that judges can require this, the government will fund it, and there will be appropriate professional bodies to supervise it, and if they find that some programs are more effective, they will replicate those and stop doing those that are less effective.

Ms. Carolyn Bennett: Thank you very much.

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

There seems to be a pocket of a lot of questions over here today. Senator DeWare.

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

Professor Bala, you said in your opening statement that Quebec is a model for the rest of the country when it comes to the mediation aspect. Could you compare that a little bit with Alberta? We understand they have a pretty good mediation program.

Prof. Nicholas Bala: I don't want to set up a rivalry between provinces and I wouldn't want to hold myself as an expert, although again, I have some familiarity with what's going on in Alberta.

What makes the Quebec model relatively worth looking at is they have a province-wide program, a high level of government support, and certification of mediators. In fact in Alberta, particularly in Edmonton but to a lesser extent in Calgary, they have access to mediation and they have an effort in the court. Edmonton, for example, is one of the places where they're doing more parenting education, and that should be a model for other people to look at as well.

One of the difficult things you're going to run into is how far you're going to go into areas of provincial jurisdiction in your report. I would certainly urge you to be judicious but also to talk about some of the provincial issues that come up, recognizing that they'll have the ultimate responsibility for making the decisions.

Senator Mabel DeWare: And there could be some examples we could take from them.

Prof. Nicholas Bala: Yes. I gather you're going to have cross-country hearings.

Senator Mabel DeWare: Yes.

Prof. Nicholas Bala: I'm sure you'll hear from some people who do things differently.

Again, child support guidelines are probably a good example. Quebec has a very different model of implementation of child support guidelines. Philosophically, in some ways, if I were drafting the legislation, there's a lot to be looked at in their model.

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What I like as a researcher in this area, as I say, is that we're having a natural experiment. Quebec is doing it one way and Alberta is doing it another way. Let's sit back after two or three years and see which is more effective in which kinds of cases. At this point in this country, on certain issues we don't all have to do the same thing. Maybe we'll never do the same thing, but we can learn from one another. What would be unfortunate is if we would say, well, Quebec does that, but we don't care what they do and we want to do something else. Let's study what they're doing, let's learn what they're doing and the strengths of it, and in a federal model, allow other provinces to apply it.

Senator Mabel DeWare: But we in model families don't all bring our children up the same way either.

I'd like to ask one more question. In the beginning you said there was a lack of information about custody and access. Then you said you didn't even know in what percentage of cases custody was awarded to the mother or to the father. Yet later on you proceeded to give us some statistics on the 2%, 5%, 1% of cases. Was that your information, or is that documented somewhere?

Prof. Nicholas Bala: As to what I gave you and give you in the report, there is information under the divorce registry about in how many cases fathers get custody, mothers get custody, or there's joint custody. The figures are roughly 75% mother; 15% joint; 10% father.

That does not tell you, though, about contested cases. So if you're asking, there's an argument. This is an argument; I'm not making it this way: Judges are biased against fathers; mothers win lots of custody cases, most custody cases when they go before a judge. In fact, if you said of those cases that went to trial and a judge was asked to decide whether it would be father, mother, or joint custody, of those cases, we don't know how judges are deciding. We have some sense of it by reading the reported cases, but those are just a fraction of all the cases that are litigated. The divorce registry statistics include the cases that are dealt with by way of settlement, plus those that are litigated, and doesn't differentiate. So we don't know.

That's an example of an area where it would certainly be useful to have more research. If we're saying judges are biased against men or women, we'd like to know. We don't even know what judges are doing.

Senator Mabel DeWare: So for the cases where the parents are refused access or having trouble with access, you put down 2% to 5%. Does that come out of that same study?

Prof. Nicholas Bala: No, and as hopefully a good academic, each of the figures I cited has a source. So the 2% to 5%—and my memory is not perfect—is in fact from a study that was done in Alberta by someone called Perry and was carried out by the Canadian Research Institute for Law and the Family. I won't take up your time now to give you a citation, but I will be happy afterwards to give you or your research staff the citation for the particular study that dealt with that.

You could say I said 2% to 5%; that's for Alberta. Someone could say, well, tell me about Saskatchewan; tell me about Ontario. The answer is we don't know, but again, literature in other jurisdictions would say that the percentage of cases is low. There's no jurisdiction that says it's 50%.

Senator Mabel DeWare: No. Thank you greatly.

The Joint Chair (Mr. Roger Gallaway): Senator Deware didn't use all of her time. We're going to give the penultimate question to Senator Jessiman, followed by a quick question from Senator Pearson.

Senator Duncan Jessiman: On gender bias, there are some jurisdictions where they do have legislation that says there should not be gender bias when they're determining who's to get.... Are you familiar with that?

Prof. Nicholas Bala: Well, two or three. In fact the Ontario Children's Law Reform Act says that the parents are equally entitled. And indeed, as I read the Divorce Act it makes it pretty clear that in the legislation there is no statutory preference.

Some judges in this country still say that there is what they call a tender years presumption, that a child of tender years should be with the mother, tender years being seven or under, let's say. I personally don't. I think that is not an appropriate standard.

That's different from saying that for a young child, if there is a primary caregiver.... And in many families there's not; both parents are equal. But in many families, and when one reads the litigated cases, for example, there will be a man who will be, let's say, a doctor, who will say, well, maybe my wife was home taking care of the kids, but I can afford to get a lawyer and I'm going to litigate this thing and I think I'm the better parent, even though she spent 90% of the time with the children and I'm just there in the evenings.

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And I'd say, let's make it clear for those kinds of cases that whoever the primary caregiver is, that person presumptively will get custody or will be the primary residential parent so that those people are not dragged through the courts, because the primary caregiver is also the person who can least afford to litigate. Because, by definition almost, the other one who's off in the labour force has the income and is more likely to litigate. It would be very useful to have a statutory primary caregiver presumption, which some states have.

I want to say I recognize that there are some families in which the father is the primary caregiver. And indeed, in our economic and social circumstances, they are more common now. They are certainly in the minority, but those men deserve that protection as well.

Senator Duncan Jessiman: Thank you.

The Joint Chair (Mr. Roger Gallaway): The last word goes to Senator Pearson.

The Joint Chair (Senator Landon Pearson (Ontario, Lib.)): Thank you, Dr. Bala. You've spoken very well about the children having a chance to have some input into the decisions that are being made about them, both the older children and the younger children. I like the approach you've taken.

I have a separate question, which is about the opportunity for us to hear from young people. Because there's another thing, which of course, as you know, is in the UN Convention on the Rights of the Child, in Article 12, where a child has the right to be heard in any decisions that are being made that will affect his or her life. I'm not talking about the direct decision in this case; I'm talking about recommendations on legislation or decision making. Have you some suggestions about the best way to go about that?

Prof. Nicholas Bala: I think it would be very valuable—and indeed you'll be hearing primarily from adults—to hear from children. I would caution you in two or three ways.

First of all, I don't think you want to bring them into this kind of forum—

Senator Landon Pearson: No.

Prof. Nicholas Bala: —although one of the things you can do is talk to adults who were children of divorce. As I mentioned, there's literature on the fact that people who were children of divorce remember and suffer the pain 20 or 30 years later. It may even be that there are members of your committee who were in that.... You're not going to call them as witnesses, but it would not be hard to find adult survivors of parental divorces. That's one thing.

Second, when we're talking about ascertaining the wishes of the child, in the full report we go into quite a lot of detail, saying that one has to be very cautious about how one does that. In the worst cases, somebody just says—and sometimes judges do this and I don't think it's appropriate to say this to the child—“Tell me who you want to live with.” That puts the child in an incredibly difficult situation. Indeed, when the parents do it—and in some cases they will do it—typically the child will say to each parent, “I want to be with you.” That's the dynamic. Unfortunately, both parents think, “I wouldn't litigate to get custody but for the fact that my child told me that”, whereas if they were sensitive, they would hear that the child is really saying, “I love you and I want the relationship to continue. I don't want to be in this position.”

So asking children directly.... I mean, I'm a big advocate of hearing from children. For example, in the criminal context I think we should do a lot to have children as witnesses in court in appropriate cases or we should keep them out of court and bring that evidence before the court.

I don't think it's appropriate to ask a child who is seven years old how he or she would rewrite the Criminal Code. You want to be careful about the questions that you're asking and about how you ask them. I would suggest that if your budget permits, you may want to have a researcher, a psychologist...there are many groups. In many schools across Canada, for example, there are groups for children who have gone through divorce. Would the parents consent to a videotaping of that session where you would have them asked, not just about their personal experience, but about how they would like to see the justice system improved?

Just ask the children, “How could your situation have been improved?” Just ask groups of children what they would say about that. And then come and watch the videotape in a way that would protect their confidentiality. You may have the consent of the parents and or maybe you can just listen to an audiotape. But you certainly don't want the kids on national television.

A voice: No, that's right.

Prof. Nicholas Bala: There are ways to do this and respect their privacy and get insights from them. I think that's a very important perspective to hear. It's important to hear not just what the parents are saying, but what the children are saying.

I mentioned that there are two sides to every story: there are more than two sides. In fact, in these kinds of cases there are at least three sides, in that the children will have a different perception from that of their parents as well. It would be very useful to hear that, again, in a way that not only doesn't embarrass the children, but doesn't compromise their relationship with the parents.

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One of the problems.... Even if you say in a custody dispute let's ask a psychologist to interview these children and make a recommendation to the judge, and then the parents read this is what the child said about them, that has to also, in the context of an individual case, be handled with sensitivity, and similarly if you're going to go out and get their views, with sensitivity and respect for their confidentiality.

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

The Joint Chair (Mr. Roger Gallaway): Thank you, Professor Bala. I'm glad that you came this afternoon. You should realize you're on national television this afternoon also. And on behalf of all the committee members, I want to thank you for coming and providing us with a very informative and a very educational session. Thank you very much.

Prof. Nicholas Bala: Thank you.

The Joint Chair (Mr. Roger Gallaway): If all the committee members could stay just for one minute, we'll go in camera for a few minutes.

[Proceedings continue in camera]