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, March 16, 1998

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[English]

The Joint Chair (Senator Landon Pearson (Ontario, Lib.)): Good afternoon, everybody.

I think enough of us are here to hear those of you who have come to speak to us. We're pleased the witnesses have come and we're looking forward to what you're going to say.

From the National Action Committee on the Status of Women, we have Cori Kalinowski.

Do you have someone with you?

Ms. Carole Curtis (Member of Family Law Working Group, Member of Law Society, National Association of Women and the Law): My name is Carole Curtis. I am here from the National Association of Women and the Law. We have a slightly different order of presentation, if that's all right with the committee.

The Joint Chair (Senator Landon Pearson): That's fine.

Ms. Carole Curtis: As well, we hoped that each of the four organizations could get through their presentations first and then deal with questions second, if that is all right with the committee.

The Joint Chair (Senator Landon Pearson): That's fine.

Ms. Carole Curtis: The presenters from the YWCA would like to go first.

Thank you very much.

[Translation]

Mrs. Elaine Teofilovici (Head of the YWCA of Canada): I am Elaine Teofilovici. I am the Director general of the YWCA of Canada. I would like to introduce Sally Bryant Ballingall, former president of the YWCA of Canada and our lawyer.

Thank you, ladies and gentlemen, for having invited us this afternoon to present our opinions to this special joint committee.

The YWCA of Canada is the headquarters of 43 YWCA and YMCA- YWCAs across Canada that work in over 200 communities. Our mission is to be a voice for equality, a strong voice for women. We believe in a women's perspective, and in difference and diversity, the development of the whole person in spirit, mind and body, community mindedness and global interdependence.

At the national level, the YWCA's mandate is to focus on the elimination of violence and on the economic empowerment of women. For more than a century, YWCAs and YMCA-YWCAs have served the women and girls in their communities. Typical services have included child care and housing.

As the largest provider of shelters to women and children in Canada who have been victims of abuse, we have extensive experience in dealing with their particular needs an in attempting to support women and their children as they rebuild their lives after leaving an abusive situation.

In fact, since 1992, the YWCAs across Canada have helped 11,0000 women and children through 15 different associations.

Through our related services we offer counselling, legal help and legal referrals, adult education and work preparation and well- being programs.

We play a front-role line in the prevention of the cycle of violence through our publications and through our Week without Violence campaign, which invites people to live without violence for seven consecutive days.

As providers of daycare, after-school child care, camping and recreational activities for children, we are well aware of the impact of family violence and family breakdown on young Canadians. We see the need for their safety and security and the impact of their parents' marriage breakdown on their lives.

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Some of our programs are designed to meet the particular needs of children who require play therapy or support and counselling as a result of the violence they have seen or because of the breakdown of the family.

The YWCA of Canada is thus deeply concerned about the welfare of women and their families in Canada. We are honoured to make the following submission to the Special Joint Committee of the Senate and the House of Commons on Child Custody and Access.

A strong Divorce Act is critical to the well-being of women, children and families. The legislative provisions that make the child's best interests paramount must be preserved.

The current legislation makes the best interest of the child the only consideration in determining custody or access to a child or children of the marriage: see Section 16(8) of the Divorce Act. There is a further provision that the past conduct of a parent will not be taken into consideration in determining access or custody unless that conduct is relevant to the ability of that person to act as a parent of a child: see Section 16(9) of the Act.

A related principle articulated in the current Divorce Act is that a child should have as much contact with each spouse as is consistent with the best interests of the child. In making a custody order, the court is required to take into consideration the willingness of the person seeking custody to facilitate such access: see Section 16(10) of the Act. As noted below, we support this concept, except in cases where there has been family violence.

Some of the other relevant features in the Act allow a court to attach terms and conditions to custody and access orders (Section 16(6)) including terms regarding notification of any proposed change of the child's residence (Section 16(7)). Court orders can be varied in the best interests of the child if there has been a change in circumstances: see Section 17(5).

The Act requires lawyers to discuss the advisability of negotiating matters of custody, access and support and to inform the spouse of mediation facilities that might assist with such negotiations: see Section 9(2).

If there is any possibility of reconciliation, that must be discussed by the lawyer with the client, (Section 9(1)), and the court has a separate duty not to consider the evidence relative to a divorce if there is a possibility of reconciliation of the spouses: see Section 10 of the Act).

Despite an excellent legislative framework, there has been a general perception that the Divorce Act is not protecting some members of the family, or that there are parents whose rights are being denied by courts in Canada. This perception results not from bad law, but from facts about the role of women in society. The fact that women in Canada perform most of the functions associated with caring for family members is probably reflected in the fact that they are usually the custodial parent, whether by agreement of the parties or by order of the court.

Marriage breakdown is not an appropriate time to redefine the responsibilities of parents to care for their children in the interests of gender equity. Instead, it is a time to decide on those responsibilities in the best interests of the child, based on the child's existing relationship with each parent as it has developed during the course of the child's lifetime.

In cases where a court is called on to make a decision as to custody or access, there is ample legislative guidance as to the paramountcy of the rights of the child. One aspect of the law that should be strengthened is the custody and access provisions as they relate to families that have experienced violence. Let us not forget that more than 38 per cent of the women who are killed die at the hands of their spouse and that 30 per cent of women state that they have been abused by their spouse, whereas 39 per cent of handicapped women report this as being the case and 55 per cent of the cases of violence against women go unreported. Therefore it is not a minor problem.

Children are often fearful of the abusive parent. Children who grow up in violent homes are in an environment where they learn that violence is acceptable or normal. In fact, the statistics at the end of our presentation show that 25 per cent of the children in women's shelters find that it is normal for a man to beat a woman when the house is in disorder.

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The law must recognize that it is not in the best interests of a child to witness violence at home and that it is not in the best interests of the child to see that cycle of violence continue after parents separate.

More particularly, we make the following recommendations regarding access to children who have witnessed abuse.

Supervised access, specially supervision of the exchange of the child between parents, and the use of a neutral location for access should be mandatory in cases where there has been abuse of the custodial parent by the parent exercising access.

A child who has witnessed the abuse of one parent by the other should be interviewed independently by a qualified professional to determine his or her views and preferences regarding custody and access and the court should take those views and preferences into account in determining access and custody.

The cost of supervision and the cost for the use of a suitable access location that meets the child's needs should be paid by the parent who has abused the other spouse. These recommendations related to supervision have the additional benefit of protecting the spouse who has been the victim of abuse from being subjected to further threats, intimidation and abuse.

There is not sufficient recognition of the impact of child abuse in the current Divorce Act. Children who have been abused need specific protection under the Divorce Act.

In particular, we recommend as follows. Supervised access, including supervision of the exchange of the child between the parents, and the use of a neutral location for access should be mandatory in the cases where the child has been abused by the parent exercising access. A child who has been abused by a parent should be interviewed independently by a qualified professional to determine his or her views and preferences regarding custody and access and the court should take those views and preferences into account in determining access and custody.

Once again, the cost of supervision and the cost for the use of a suitable access location that meets the child's needs should be paid by the parent who has abused the child.

We are generally supportive of the proposition that a parent who seeks custody should be willing, in the interests of his or her children, to set aside differences with the other spouse to facilitate access. This general rule should not be applicable to those who have experienced family violence. It is normal and understandable for those who have been abused or those who have watched the abuse of other members of the family to be fearful of the abuser.

The law must recognize the reality of violence and not impose additional requirements upon its victims that are threatening or intimidating and place them at risk of further abuse. See appendices A, B and C that deal with violence and its consequences.

Our recommendation is as follows: in cases where a parent has been the victim of spousal abuse, the victim's willingness to facilitate contact with the abusive spouse should not be considered a factor in determining custody.

We therefore recommend education and supportive counselling be made available to parents and children at the time of marriage breakdown.

We also recommend that all applications, interim or final, for custody and access be given priority in the court's schedule and that they be tried within one year of the commencement of the proceedings.

We further recommend that steps be taken to ensure that mediation processes are truly voluntary, that participants are aware of their legal rights and obligations and that mediation not become a means by which an abusive spouse can continue the cycle of abuse.

Finally, we recommend more funding be made available for legal aid, including the payment of fees for expert witnesses who perform home studies and psychological assessments.

All of which is respectfully submitted in this brief.

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[English]

Ms. Sally Bryant Ballingall (Past President, YWCA of Canada): I'm going to briefly summarize the position of the YWCA with respect to your deliberations as they need to address the needs of women and children, particularly those women and children who are coming out of abusive situations. The YWCA makes these recommendations out of our long history of providing services for women coming out of abusive situations.

First and most important, the legislative provisions that provide for the child's best interests are paramount and must be preserved. The best interests of children cannot be ignored or traded away in the name of parental rights. Marriage breakdown is not an appropriate time to redefine the responsibilities of parents to care for their children in the interests of gender equity. Instead, it is the time to decide on those responsibilities that are in the best interests of the child, based on the child's existing relationship with each parent as it developed during the child's lifetime while the parents were married. The law must recognize that it is not in the best interest of a child to witness violence at home, and that it is not in the best interest of the child to see the cycle of violence continue after parents separate.

Children who have been abused need special protection under the Divorce Act. The law must recognize the reality of violence and not impose additional requirements upon victims of violence that are threatening, intimidating or place them at risk of further abuse.

Education is important to help meet the needs of both parents and children. Mediation cannot be permitted to substitute for a court decision if one party requires a formal legal process or is unable to negotiate because there has been an extreme imbalance of power due to family violence. We urge you to start from the position that mediation is never appropriate where there is a history of violence.

Lastly, without access to justice through representation by qualified counsel, the law cannot possibly hope to be fair in this area.

Thank you. Those are our submissions.

The Joint Chair (Senator Landon Pearson): Thank you. We'll move on to the next group.

Ms. Helen Saravanamutto (Vice-President, National Council of Women of Canada): Thank you.

I'm one of the vice-presidents, health and social development, of the National Council of Women of Canada. We're very pleased to be here. I'll let my colleague Ruth introduce herself in a minute.

We have a long history with the National Council, but both of us have worked in the field extensively and have social work backgrounds. So our presentation today is from the perspective of a social work background, working with the families.

At one point I estimated that something like 95% of my caseload was comprised of families where the parents were separated or divorced or on the point of being so. So we have a long history of knowing what happens down in the trenches.

The Joint Chair (Senator Landon Pearson): Ms. Brown.

Ms. Ruth Brown (Past President, National Council of Women of Canada): I'm Ruth Brown and I'm past president of the National Council of Women.

The National Council was founded in 1893. It's a non-partisan federation of voluntary women's organizations. It is composed of 22 local councils, each of which has federated or local organizations belonging to it, four provincial councils, one study group, and 25 national organizations that are affiliated to it.

So it represents a network of diverse members of the community—different occupations, languages, origins and cultures—and does provide a significant cross-section of grassroots opinion. Policy is begun usually at the local council level and is then circulated, discussed and voted upon by the membership.

What we're presenting today has been prepared by a committee of members. The council has policy in some of the areas related to custody and access, but not in all of them. We're in the process of developing the rest.

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We're very pleased to have this opportunity to be here and support the need for a child-centred approach to family law policies and practices that would emphasize joint parental responsibilities and child-focused parenting arrangements based on children's needs and best interests.

Research shows that the best interests of children whose parents separate or divorce involve in most cases regular and ongoing contact with both parents. For children, the experience of having their parents separate can have a prolonged and negative impact on them, and a high incidence of depression occurs when parenting by one or both of the parents is disrupted or diminished. The best interests of most children are in most cases served by encouraging the involvement of both parents in their lives.

We are recommending, following from that, that joint custody and co-parenting be considered as a serious alternative in most cases, while realizing that it's not always going to work or be possible. By co-parenting and joint custody, we mean some arrangement where caregiving is carried out jointly.

Ms. Helen Saravanamutto: The well-being and development of children can be put seriously at risk by violent parents. The trauma associated with childhood abuse and witnessing violence directed at a parent leaves a lasting, profound, disabling legacy, as well as having the potential to jeopardize the immediate safety of the child. It's really important that the courts recognize such cases. The immediate safety and the long-term well-being of the children should be the first concern.

We would say it's not always easy to recognize when abuse has occurred. I remember when sexual abuse became recognized. Before that we didn't see any sexual abuse cases—not that they didn't occur, but we just didn't see them. Once we were trained and understood, once this became really in the field, then all sorts of cases popped up.

So I would emphasize that it's not easy to recognize abuse. People don't always express it and report it, and certainly I can tell you that professionals can miss it quite easily.

Similarly, parents with addictions or with serious mental illnesses can also fool people for a short period, and again, the children are put severely at risk. I myself had a case of somebody who was schizophrenic and was very violent but managed to fool most of the professionals for long periods. So I do emphasize that where there's domestic violence, addiction, or severe mental illness, we need some guidelines and we need some good education of professionals in that area.

Our next point refers to the need for secure income, and I would draw attention to the Campaign 2000 figures around the poverty rate among families with lone parents. It's 64%. That's nearly two in three. So we need to make sure that support payments are paid and paid regularly and that there be no excuses for this. We're recommending that they be adequate and that support payments by non-custodial parents be given a top priority.

Ms. Ruth Brown: As far as mediation is concerned, our members believe that in most—not all, but most—cases of family breakdown, parents should be encouraged to use mediation to arrive at decisions about custody and access. If decisions have to go to litigation, the process is very difficult, particularly if the parents have already been warring. It becomes costly, and there's often an escalation of hostilities. It increases the psychological stress on the child and sometimes the physical risk.

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We would recommend, then, as far as mediation is concerned, that legislation should continue to promote the use of mediation as an alternative to court litigation for settling family disputes.

Ms. Helen Saravanamutto: We do, however, support our colleagues from the Y in recognizing the limits of mediation, that mediation is not effective where there is a power imbalance, such as in abuse situations, or where there are parents with addictions, for example, or severe mental illness, and they are not able to follow through on situations. Not only is this not effective but it also can be really dangerous for the children, and the decisions that are likely to come out will not represent the realities of the best interests of the children.

We recommend that guidelines be very carefully and clearly spelled out where mediation is contraindicated and/or where it should be limited in scope.

We feel it is very important that children should be consulted in custody and access decisions. We feel the high incidence of depression amongst children whose parents are divorced or separated indicates, as we mentioned earlier, that they need some control in the situation. They need to be able to express both how they are feeling and the ambivalence of their feelings, quite often. Even in situations where there has been severe violence, children often want some kind of access to their parents, and will express this quite clearly—not always, but sometimes.

I remember, in my work very early on, asking a child at the end to fill in an evaluation form saying how she found the service. The last question was, “What else would you have liked?” This was from a very violent situation. She said, “For my mom and dad to be together again”.

Now, that doesn't mean to say that in reality they should be together. It means that children have these really ambivalent feelings you need to work through. You can't just cut things off.

Our next point is ensuring that access orders are obeyed. We know the media has reported that fathers' rights groups are pushing for custody and access to be tied to support payments, the rationale being that they are not allowed to see their children. We think this is totally unacceptable. Support is support. It addresses the needs of children, and should never be tied to custody and access decisions. We do not, however, support the fact that there should be no consequences of restricting access.

We talked earlier about the various ways. There are reasons why some kind of access is often needed. We think an effective way of ensuring access to non-custodial parents where the custodial parent is in contravention of an access order should be allowed, but it should not be anything to do with support payments.

We would like to emphasize at great length the importance of training family court judges, court workers and mediators, or any people working in the courts. We think measures should be put in effect to ensure that all family court judges are given extensive training on the dynamics of family abuse, particularly abuse against women. This training should be mandated for judges prior to their sitting on the bench, and upgrading course should be offered at regular intervals in order for the judges to be kept up to date with and abreast of the latest developments. The cost of such training should be shared by all levels of government, and the training for court workers and mediators should be standardized and include training on the dynamics of family violence, particularly abuse against women.

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We think it's very important for children to have access to counselling, not only with their parents but on a separate basis. If these issues are not dealt with, the effects can be long lasting, really throughout most of the adult life. They can last for 30, 40 years easily. We think this should be addressed and services should be provided.

Ms. Ruth Brown: Our last point is that our members are in favour of encouraging contact with grandparents. We are concerned for the grandparent who is caught in the fallout from family breakdown and finds himself unable to see his grandchildren. I think in many cases it will be of benefit to the child to have contact with grandparents, and with the extended family too.

We realize this is a complicated topic, because it can affect the dynamics of the family. Grandparents can be used as part of a battle, if there is one, about access. We do think it's important that be looked at and possibly be included in the mediation process. I don't know, but some way should be found to look at grandparents' rights as well.

So we're recommending that the federal government undertake a study to determine the best way of facilitating contact between grandparents and their grandchildren while protecting the well-being of children.

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

I'd like to ask the committee now...I know you've said that you'd like all to present before we ask questions, but there's a lot of listening and there may be some people who would like to ask a question or two before we move on. It's whatever you feel.

A voice: Carry on.

The Joint Chair (Senator Landon Pearson): Okay. Carry on, then.

Ms. Cori Kalinowski (Member, Justice Committee, National Action Committee on the Status of Women): Good afternoon. My name is Cori Kalinowski and I'm here on behalf of the National Action Committee on the Status of Women. I also bring to this committee my experience as a family lawyer in Toronto.

I have had the opportunity to review in detail the comprehensive brief that was prepared and filed by the National Association of Women and the Law, and I would like to state that the National Action Committee on the Status of Women, otherwise known as NAC, adopts its comments in full.

The issues affecting women and children that arise from the law and the application of the law relating to custody and access are numerous and complex, as that brief clearly illustrates. I will in my comments highlight as many of these issues as time will permit. In that context, I will state NAC's position in relation to custody and access, and its recommendations.

Prior to getting into the specific issue areas, I'd like to highlight a few realities that family law practitioners and people going through a family law dispute experience on a daily basis—sort of a summary of what's happening out there.

First of all, children see their mothers being assaulted, raped, and murdered in their home on a regular basis, and it's something we all have to recognize. It's out there and it happens all the time.

Mrs. Sheila Finestone (Mount Royal, Lib.): Could you qualify that, please?

Senator Anne C. Cools (Toronto Centre, Lib.): Please do. The majority of children in this country do not see their mothers being murdered and raped and so on.

Ms. Cori Kalinowski: I didn't say the majority. There are children who see their mothers raped and assaulted—

Mrs. Sheila Finestone: There are “some” children.

Ms. Cori Kalinowski: Another reality is that mothers are usually the custodial parent and fathers are granted access to the children. That's the normal situation.

Another reality is that children are happier if their mom or their custodial parent is happy, secure, and safe.

In terms of access, it's a reality that quality of time spent together between parent and child is more important than the quantity of time.

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It's another reality that men and women are not equal, and therefore are not equal bargaining parties.

It's also a reality that imposed joint custody does not work, and that imposed mediation does not work.

With respect to violence and abuse against women and children, it's a cold, hard and disturbing fact that men who are husbands, boyfriends and lovers beat, murder and rape the women with whom they share their life and often with whom they have children—not in all cases, but it happens, and once is too many times.

It's also a disturbing, cold, hard fact that men perpetrate that abuse and violence sometimes in front of their children; sometimes they're perpetrated against their children; sometimes the children are injured when they're trying to protect their mother. To experience violence and abuse within the home is nothing less than devastating for children, and we've heard that from other witnesses here today. The emotional scars such an experience will cause will last a lifetime.

Following a separation, the abuse often continues, and sometimes becomes worse. Often, women are murdered following a separation.

Although violence is often present in a relationship, there is currently no definition of abuse in the Divorce Act or any other legislation that I know of. NAC recognizes that legislation cannot resolve this problem by itself, but it can recognize existence of violence, and there can be legislation to recognize it and to acknowledge it, to protect women and children.

NAC recommends, therefore, that definition be included in the Divorce Act, to provide judges and counsel with a framework. That definition, in NAC's view, should include verbal abuse, psychological abuse, emotional abuse, physical abuse, financial abuse, and sexual abuse. Fundamentally, the definition of violence should include any behaviour that has as its goal the control of a woman's behaviour.

NAC recommends the inclusion in the Divorce Act of a presumption that abuse by one parent against the other is not in the best interest of the child—it seems like common sense. Further, a legal presumption is required that states that an abusive parent is precluded from having either custody of or unsupervised access to any children of the relationship. The law should also recognize that sometimes no access is in the best interest of the child—sometimes.

Unsupervised access in a situation where there has been abuse should only occur when evidence is tendered that the abusive conduct has stopped and it is in the best interest of the child to have contact with that abusive parent.

Violence in the home is devastating to society and should be a national concern. The law should give priority to safety issues for women and children who experience violence. This prioritizing must recognize that violence does not end when the parties separate.

Financial support must be given to shelters and to other organizations that provide support to women and children who have experienced abuse in the home. This financial support must also be funnelled towards the provision of legal services to women and children who have experienced abuse.

I'm going to move on to mediation now. A nightmare for a lot of women who are going through a marital breakdown and who have been abused by their husbands is to have to face the husband across the table in a mediation. It terrifies women.

It's cruel to give an abuser a forum to perpetuate the control over his former spouse, and therefore, to perpetuate the abuse. Women in that situation will panic. They'll do anything just to get out of the room, and I've seen it. The stress and the fear of facing her abusive partner will affect the children.

The law must recognize that mediation will not work in a situation where there has been and/or continues to be abuse. To work, mediation must be voluntary, and it can work where both parties are interested in pursuing mitigation and both parties are voluntarily entering into the process. Any negative consequences, such as a negative inference in the legislation, means that it is not voluntary. There must not be any negative consequences or punishment to those who choose not to participate in mediation.

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In the best of cases, equality of bargaining power between spouses is extremely rare, which means that useful mediation sessions are impossible. Mediation evolved out of labour law, and in labour law you have two strong parties; you have the union and you have the employer. Both parties hold a powerful bargaining chip. The union can call a strike; the employer can shut down the plant. Both of them have as an interest a viable organization at the end of the day.

When we're dealing with a family situation, historically women have not been equal to men. Men have had better jobs, more secure jobs. Men are socialized to react in different ways when it comes to advocating for themselves. In many cases, but not all, the man has the upper hand in the mediation.

In addition, while both parties should have a common goal of reaching an agreement that is in the best interest of the child, often they have a different perception of what the best interest of the child is. Some mediators may not recognize that there is a relationship between the welfare of the child and the economic security of the primary caregiver. As a result, money issues sometimes get put aside. Money issues include support or the division of property.

In addition, a lot of women entering into a mediation or into a situation where they're dealing with the issues arising from the breakdown of their relationship are very concerned about the custody of the children. As a result, they'll concede certain financial issues. They'll say, I don't care, I'll figure it out. I just want to make sure I have the children. Will I have the children? Will I have sole custody? The result is, again, it disadvantages the children because there isn't as much financial security with the mom.

Many practitioners have experienced the situation that many mediators favour joint custody as they strive for middle ground. The whole idea with mediation is to look for the middle ground. Many mediators perceive that the middle ground is joint custody arrangements. They may not recognize that there was abuse there. They may not recognize the control element that happens between parties, so they'll encourage a joint custody arrangement.

Joint custody simply does not work. The whole idea of joint custody evolved through the courts as something that should only be in place where the parties agree, where the parties can work together. We all know that in situations where there is a marital breakdown that's rare. There are certainly occasions where parties can work together for joint custody, but for the most part there's conflict.

Sometimes there's a high degree of conflict between the parents and they simply can't work together. They can't make the joint decisions. What happens in many cases is the joint custodial parent will sometimes manipulate the other parent through the joint decision-making requirements.

In the middle of all of this are the kids. The children are getting more and more confused and they're not getting relief from the conflict that plagued their lives before the break-up. It just can't be good for them.

Mediating a joint custody arrangement could have devastating effects on the children and their mother, especially if there has been some abuse. The mediator may not know about it.

Many mediators simply do not have the training or the experience required to deal with the conflict issues facing parties after a relationship breaks down. In addition, many mediators are not trained to deal with the conflict issues and the power imbalances between the parties. Often if there's been some sort of abuse that's not apparent, one party may do something very subtle that will just throw the other party into a state of fear. In addition, in many cases legal aid is not available for the woman so she doesn't have legal representation at the mediation. There's obvious problems there.

Mediation really must focus on the women and children first, dealing with the issues rather than just focusing on the avoidance of litigation.

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With respect to access, picture, if you will, two young children getting dressed in their best clothes, packing their little suitcases or knapsacks and waiting for their dad to pick them up. They're excited; they're looking forward to the visit. Their mom's looking forward to catching up on things around the house or on her work outside of home, on making a few extra dollars, or whatever. They wait and they wait. The phone rings. It's dad. He can't make it.

This story is based on true stories told to me by clients and by others. Some of these stories are 30 years old. Some happened a couple of weeks ago.

All too often access is not exercised in a predictable and reliable manner, causing severe disappointment in the children, who then turn to their mom to make it better. The mom then rearranges all of her plans; she diverts her energy towards helping the children work through the rejection and disappointment of having the access visit cancelled. The cost, financially and emotionally, for the children and for the mother is high.

These are stories that do not end up in court, nor do they become the subject of news reports or headlines in the newspaper. The reason is because it's too expensive to litigate a refusal to exercise access, but it happens all of the time.

The mother often has no choice but to help the children through it, to accommodate the access parent and to hope that he comes around and starts taking the access more seriously for the sake of the children.

Children need certainty. They need the security of knowing they can count on both their parents when access arrangements are in place. NAC recommends that the law recognize that children are harmed when access is not exercised in a regular, predictable and reliable manner and that quality of access is more important than frequency of access.

Tying child support to access can have harmful effects on the children. For the most part, child support payments are lower than what is required to financially support the children. Too often children in sole-parent households experience financial struggles, even when support is being paid. To punish children for conflicts with access arrangements would have a devastating effect.

NAC recommends that no consideration be given to tying child support to access.

There are times when no access is appropriate, such as in highly conflicted families or where there's been violence. It is in the best interests of children in some cases to avoid the toxic environment and to go without contact with one parent until things improve. And they could very well improve.

The law must be flexible to recognize that access arrangements will have to change as the children get older, or if and when the custodial parent decides to move to improve the lifestyle of her family unit. Women often have to move for employment reasons, to obtain support and assistance from extended family members, to save money on housing, and for many other reasons. The custodial parent should be permitted to make such decisions and access should be restructured without the fear of litigation and court-imposed restrictions on her mobility.

Recently, the Divorce Act was amended to include provisions stating that maximum contact with both parents is in the child's best interests, and whether the party will facilitate access is a consideration in determining who should have access. This law causes a wave of fear to run through many women. They ask many questions. Does this mean if I insist upon supervised access, I can lose custody even though he was abusing the kids? If the children are sick and they want to stay in their beds at my home when they are supposed to be going to their dad's house, does that mean I can lose custody?

Unfortunately, in light of this friendly parent rule, as we call it, it is difficult for lawyers to assure women asking these questions that everything will be okay, that common sense will prevail and they will not, of course, lose the children.

NAC recommends that the friendly parent rule be removed from the Divorce Act so that it is not used in a manner that is harmful to the children.

Thank you very much for your time and attention.

Ms. Carole Curtis: Good afternoon. I'm a family law lawyer in Toronto and I'm here today on behalf of the National Association of Women and the Law. NAWL is a national non-profit feminist organization that's active in legal research and law reform and public education.

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NAWL has prepared a brief. I hope the members of the committee have it. I'm not going to refer to the brief in detail or read it because it's 25 pages, but there's a detailed index. I suggest to you that the advantage of the index is that it's a handy little list of issues.

Custody and access is a very complicated area of the law. It is tempting, in looking at family law matters, to feel like we all have some knowledge and expertise in family law. After all, we were all children once, most of us are parents, and all of us live in families. We all think we understand families and know families. I just want to urge the committee to recognize that this is a simplistic analysis of what is a very difficult and complex area that is changing and evolving all the time.

The NAWL brief also includes a list of sources in the bibliography at the back, including scholarly articles, books, and research studies. Family law actually has been studied a great deal in some areas and in other areas there is a complete void of empirical data.

It's tempting for me to try to deal with all 27 issues, or however many are in my index, but that's a completely hopeless task in this timeframe and I'm not going to do it. I'm going to refer you to the brief and instead I'm going to try to do a bit of an overview and ask the committee some of the questions that I hope you will ask each other and ask yourselves in your discussions. Also, I'm going to try to pull together some of the issues that came out of the comments from the other groups.

It was surprising to me, frankly, how consistent the issues that were emphasized by each of the groups were, considering the wide range of membership and constituencies that each of these groups brings to the table. There were certain recurring themes. Certainly every one of the groups is concerned about violence against women and about how custody and access legislation should deal with this.

I might urge you to look at the three appendices attached to the YWCA brief, which contain a very detailed set of statistics about violence against women and wife assault. They're very helpful.

All of the groups mentioned mediation and are concerned about where mediation is appropriate in family law cases and where it is not appropriate. All of the groups discussed the gender roles that exist in families. Again, in your discussions I would remind you that the family is a profoundly political construct in our society. The fact that men and women have different roles in the families cannot be ignored in our legislation and cannot be changed simply by legislation.

Those are some of the areas the groups dealt with, and I wanted to add a couple of additional topics to this list of questions.

First, let's have realistic expectations for law reform. Let's be careful about moving into areas that are untested. Let's be careful about making Canadian children and their parents some kind of experiment. Also, I urge on the committee to remember that the framework of the law of Canada is equality. This needs to be examined, and NAWL certainly deals with that in the brief.

I'm going to go on and ask some more questions. The parenting responsibilities in our families are allocated in particular ways when parents live together, and that allocation in the majority of families is that women do the caregiving. Interestingly enough, that has not changed significantly in recent years, even though in the past 20 to 30 years there have been huge upheavals in our social structures.

It hasn't changed even in the face of large numbers of women being in the paid workforce outside the home. Somewhere around 60% of women who have children under five years old work outside the home in the paid workforce. It hasn't changed even in the face of large-scale changes to the family by reason of marriage breakdown and by the increasing number of coupling arrangements, where after your marriage you got into other full-time couple arrangements, and also with respect to the changing definition of the family, with same-sex couples and blended second and third families.

I guess the issue I'm urging on the committee at this point is that there are real limits to the role the law can play in changing patterns of post-divorce parenting behaviour.

The other question I would like the committee to ask itself is what kinds of separating parents we should premise our custody and access laws on. What is the average separating couple, if there is such a thing? Perhaps another perspective is ought we to be designing a system that works for everybody or a system that works for the majority of separating families?

• 1635

There was a lot of discussion today about families with violence and where women are assaulted. There's another category of difficult family. We in our brief make a distinction between high-conflict families and families where there is wife assault, and I urge you to remember that in your deliberations.

I describe a high-conflict family as a family that falls short of actual violence or assault but for whom, post-separation, a hostile relationship continues. Perhaps a therapist would call that a dysfunctional relationship. There are many separated families who cannot let go of the need to fight with each other one, two, five, and seven years post-separation. We certainly need to bear those families in mind, but we also need to have realistic expectations about the help the justice system or legislation can give to those families.

All of the groups today have urged you to look at whether or not legislation should specifically refer to violence as an issue in determining what is in a child's best interests. Many of the groups have even gone as far as to say that there is a presumption that custody should not be granted to a parent who has assaulted the other parent and that access that is not supervised should not be granted.

One of the issues mentioned in some of the briefs is the lack of legal aid and the lack of meaningful access to the justice system. It's very tempting for legislators to draft legislation and say if this doesn't work, people can go to court and a judge can decide. That's no longer available to the majority of Canadians.

Civil legal aid has been devastated in Canada. Family law legal aid is almost non-existent, even in my Ontario, which I used to be very proud of. In the last three years 75% of the legal aid program has been cut in family law. So we need to have a system that works for people whether they have access to lawyers and to the justice system or not.

We need to separate issues around caregiving from issues around decision making. These are the two categories of things that are very important with respect to children, and these are the two categories that get really fudged and merged together in our discussions. The parent who is responsible for caregiving should be and generally is the parent responsible for decision making. That's what happens in intact families generally and that's what should happen in separated families.

There are other jurisdictions that have gone to different forms of parenting legislation, and I'm sure the research facilities here will provide you with information about them. The real question in those jurisdictions becomes, does increased parental authority and power, for example, for the parent with whom the child doesn't reside really result in a model that is more child focused? Or is the result of that model that the only thing to be gained really is increased parental authority and power for the access parent?

Australia has gone to a model in which this is the case, and so has the United Kingdom. In those jurisdictions the literature is already asking the question, does this benefit the child? How does it benefit the child?

I would urge the committee also to ask what is the purpose of law reform in this area? Why are we doing this? In 1993 the federal-provincial-territorial task force issued its first paper on custody and access, which raised a lot of questions. In five years the world has changed quite a bit.

So why are we here? Is one of the impetuses for law reform to facilitate the adjustment of children in separating and divorcing families? Should that be an impetus? Can legislation accomplish that kind of goal? Are there limits to the role the law can play in changing the patterns of post-separation parenting behaviour? Is simply changing the language going to have any result in the way parenting responsibilities are allocated?

It's very important for the committee to remember that the vast majority of separating and divorcing families do not see judges, ever. The vast majority resolve their disputes either sitting at the kitchen table or with the help of lawyers or other dispute resolution professionals. The families who end up in court litigating are a small percentage.

It may in fact be beyond the scope of family law legislation to attempt a radical transformation of structural differences in child care arrangements. It may be beyond the power of statutory language, for example, to make parents cooperate better or behave better post-separation and in child custody disputes. Surely that is everybody's goal. It is my goal too. I deal with these people every day of my life, and I would love it if they cooperated better. I am asking the committee whether that is a realistic expectation for legislation.

• 1640

I am asking the committee to look at whether the best interests of the child should remain the standard in decision making about post-divorce parenting or whether we should look at other standards. Should we look at primary caregiver, for example? Is that in fact what the best interests of the child has evolved into, examining who was the primary caregiver?

I am asking the committee to be wary of jumping into areas that are untested and unexamined by empirical data. No recent studies tell us, for example, that the new regimes with parenting plans in the States, particularly in Washington, have in fact improved the conditions or the lives of children in these jurisdictions, or have altered the patterns of child rearing for these children, or have led to increased involvement by the fathers of these children. We ought to be cautious about dismantling the current system without knowing what its replacement is and without knowing that its replacement will achieve stated objectives.

We ought to be cautious about following what some academics call the U.S. tendency to have a flavour of the month. California went to presumptive joint custody about 10 or 15 years ago. Then they moved away from it. They tried it and didn't like it.

There is very little documented evidence about the impact of shared parenting or joint custody on divorcing couples and their children, notwithstanding the fact that it was tried in American jurisdictions. It is not clear that legislation that mandates joint custody or shared parenting meets even one of the most basic objectives of simplifying the resolution of child custody disputes on marital breakdown. It is frankly an unusual separating couple that can cooperate to the extent necessary and have the contact necessary to have joint decision making or joint caregiving.

When you are looking at shared parenting, ask yourselves whether you are looking at joint decision making or joint caregiving. Many women will tell you that if their partner asked for joint caregiving, they would gladly share the caregiving of their children. It is a very onerous task to be a single parent, and it is a very difficult life. The research tells us, and the NAWL paper has references to this, that when fathers ask for joint custody, generally what they are asking for is not a 50-50 time share, like in a condo, but joint decision making, which I suggest to you is a right without a concomitant responsibility, the responsibility being the caregiving.

Any examination of joint custody or shared custody needs to recognize that shared decision making is not appropriate for high-conflict families or for families in which there is an assaulted woman.

The other problem with joint parenting or caregiving is that it doesn't take sufficient account of the fact that it is women who are the primary caregivers of children in intact relationships and generally during post-separation as well and that women are differently situated from men.

I have a lot of material on this, but I know I am near the end of my time. I will refer you to the list of topics in the NAWL brief, which, as I said before, I couldn't possibly hope to go through today. I will turn it over to questions.

The Joint Chair (Senator Landon Pearson): Thank you very much. You have certainly raised some sensible questions, which I hope we are all asking ourselves already without having been asked to ask ourselves those questions.

Mr. Forseth, please.

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

I would like to direct a comment about this last concept you were talking about, the distinction between caregiving and decision making. That is a very interesting way to talk about it. Basically what I've heard today is, I grant you, the obvious, but we have to look at why this committee exists and where we go from here.

• 1645

Perhaps, Carole Curtis, you could comment a little more on your solution to having fathers more involved with their children, indeed taking up the caregiving. You also said there were studies to show that mothers would gladly share the caregiving.

I'm wondering if you could also comment on whether they would be prepared to share the costs of that caregiving—not just on the basis of the current principles we now have as a result of Bill C-41, which outlines ability to pay but not demonstrated need and the other things. Maybe you can get into that issue a little bit more, of the contrast between decision making and caregiving, what the research is on it, and what you're recommending.

Ms. Carole Curtis: I'm happy to try to deal with it. I'd just like to say that I had a lot of trouble hearing your question.

In the NAWL brief at paragraph 44, there's a reference to part of the problem in family law being diminished access, which is a problem I think you're alluding to. The data tell us that when access diminishes, the problem is not with the custodial parent interfering with access, which is what the media would have us believe, but with access parents not necessarily exercising their access.

Most women would be happy to have consistent and regular access. That's what their children want, and that's what's in their children's interest. That's the least disruptive thing to the adult's life and to the children's lives.

I think it's a big leap for the legislative committee to think that legislation can change behaviour, that legislation can result in fathers becoming more interested in caregiving of their children post-separation, if those fathers don't have it in their hearts at the time of separation.

One of the things we as a society have allowed to happen is people moving on to their next relationship with minimum accountability to their first relationship. I see it all the time in my practice. I see parents going into a second or third relationship. I see men being willing to support the children they're living with, whether they're their children or not—being willing to support her children, his second wife's children, because they're living with those children—and not support their own children. We have sanctioned that in a lot of ways by not enforcing support appropriately.

I'm not suggesting there's no way to do it, I'm just not certain legislation is the way to do it.

Mr. Paul Forseth: Okay. I'll have just the one supplemental.

In paragraph 44 you say that the failure to exercise access or to be consistent in the exercise of access is very disruptive and difficult for the child and for the custodial parent. You also mentioned that the news media seemed to focus on the fact that perhaps the visiting parent or the access parent is not feeling very comfortable these days. That's the media issue of so-called fathers' rights. The response has been that the real problem is the lack of the taking up of the access provided by an agreement or an order. So we have a balance there, and you're saying that legislation is not going to fix either one of those.

Could there be a slight change to the law or to the system to make it happen? But in the main, if legislation is not the solution, how do we make it happen?

I'll add to that. The parties have talked today about the limits of mediation, and I'm wondering about the backdrop, how do we create a situation where parties will more frequently choose to go to mediation. In view of the alternative, which may not be as attractive, they will choose mediation; in other words, setting up the incentive situation.

It seems the incentives are not necessarily there now for people to voluntarily choose mediation. I've never heard of mediation being forced down people's throats, because anybody who is worth their salt as a trained mediator understands how to handle power relationships and certainly not force mediation on people. That's fundamental; it's lesson one to be a mediator.

• 1650

Let's get back to this issue of balance of access. There are two issues here. One is failure to take up access, and the disappointment and disruption that brings, and the other is the inability to be able to exercise the access that was awarded or agreed to, and no seeming consequences when that disruption happens.

Ms. Carole Curtis: I'm glad you raised the issue of the limits of mediation. Mediation is a tool for dispute resolution that is suitable in a small percentage of families. It is not a tool that is suitable across the broad spectrum of families.

Before mediators existed, and even today, lawyers resolved disputes or families resolved disputes at the kitchen table. It's my full-time day job to resolve disputes. When mediators came on the scene in family law, it was really interesting to me that the number of cases that went to trial didn't suddenly reduce. In other words, mediators were not settling those 5% of cases that went to trial. They were settling the 95% that were getting settled before.

I don't know whether we need to create more situations of availability for mediation. Mediation is being forced on people these days. In every province in the country projects are under way to put in circumstances of mandatory referral to mediation, even in circumstances where it is completely inappropriate.

Assaulted women are being given mandatory referrals to mediation. That doesn't mean they have to mediate, but they're getting a referral to mediation and they're given a very strong message that they ought to mediate, even if they shouldn't.

My experience of the system is very different from yours, sir. The system is not structured with disincentives to mediation; in fact, the system at present is enormously open to mediation, in part because of the financial pressures on the justice system in the last five years.

Frankly, the wrong reason to make mediation part of the process is that we can't afford other things. That's the wrong reason. Mediation, like joint custody, requires a maturity on the part of the adults; it requires that both adults be past the high anger stage of the separation; it requires an ability to put the needs of the children first, which is very hard for separating adults to do; and it requires that both parents be genuinely interested in resolving the dispute. A lot of separated parties are not there yet. They're not genuinely interested in resolving it. They need to work out their anger, their hostility. I still get clients who really are into the fight, because it's the only relationship they have with the other parent.

The Joint Chair (Senator Landon Pearson): Supplemental.

Ms. Helen Saravanamutto: I would like to address the issue of access on the part of fathers or the non-custodial parent.

It's very, very difficult for some non-custodial parents to spend time with their kids. They don't necessarily have adequate accommodations. They don't necessarily have places to take their kids.

We need a lot more services to support families in these situations. The funds are being cut off, for example, from supervised access facilities. We don't need that. We need more of these services.

That's the way you get access. You don't do it through the law system. You do it through services to parents, such as counselling services and safe homes for people to visit, but not through mediation.

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

Anne, did you have a question?

Senator Anne Cools: Thank you, Chairman.

I was looking for a point of clarification. I kept hearing a caution from Ms. Curtis and from others that this committee shouldn't do this and this committee shouldn't do that. I was wondering where the impression came from that the committee was about to do anything. My understanding is that the committee has begun to study the issues.

I was just looking for some clarification, because one was feeling as though we were in the process of forming conclusions, and that hasn't happened. I was very curious, that's all. I just wanted some clarification on the fact that you think you should instruct the committee. That's all.

Ms. Carole Curtis: Well, I hope the committee is not offended by my suggestions. There is a list of questions I'd the committee to look at.

Senator Anne Cools: No, I was just wondering where this information is coming from. In other words, is somebody writing this about us?

• 1655

Ms. Carole Curtis: It's being written about the committee; it's on the Internet. There's a lot of information out there, for example, about what issues fathers' groups might bring to the committee. Also, many of us at this table have done these kinds of hearings before. These issues are of great concern to Canadian women, so that's why we bring them to you.

The Joint Chair (Senator Landon Pearson): Senator Cohen, do you have a supplementary too?

Senator Erminie J. Cohen (Saint John, PC): Caregiving, decision making...and thanks for your questions, because I think the questions you asked us to consider are going to be important in the long run.

I just wanted you to clarify something for me. Caregiving vis-à-vis decision making is a whole new door that you've opened in my mind for consideration. I'm not sure if I heard you right, but did you say the caregiver is the one who usually is responsible for decision making in intact families? I always considered that in an intact family it would be a joint decision for decision making.

I want you to clarify that for me, please.

Ms. Carole Curtis: Maybe I'm talking about different levels of decision making, and I don't want to go into so much detail that it's not helpful to the committee.

The person in our society who is the primary caregiver is still the mother, whether we're in separated families or intact families, and that is also the person who generally interviews the nanny and hires the nanny, who sorts out which swimming lessons or piano lessons the child might go to, who does all the driving for hockey and buys the hockey equipment—maybe the dad buys the hockey equipment—and those sorts of things. There's a whole range of decisions from important ones, such as which private school or which doctor...those decisions are generally made by the caregiver—let's find a good doctor, let's find a specialist.

Senator Rose-Marie Losier-Cool (Bathurst, Lib.): It's still that way?

Ms. Carole Curtis: Family law has been my full-time job for 20 years, and it's still that way. It's that way in families from every socioeconomic level. It's that way in families where the mom earns $200,000 a year because she's an investment banker. She's still the one who's making those decisions. She's still the one who is making the Hallowe'en costumes, and she's still the one who is going out and buying the cupcakes at eight o'clock at night because they have to be at the kid's lunch the next day.

The Joint Chair (Senator Landon Pearson): Different experiences.

Carolyn Bennett.

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

What we have been distilling from the beginning is that there seem to be the same three issues: resources, education, and language. What was interesting to me was that even though this committee is struck to look at legislation, practice is the most important piece. We obviously need a great deal of education, regardless of what we put into the law, on having it applied properly. From some of the assumptions I think people on the bench, in law offices, or even in some of the high school parenting classes have, we've got a long way to go.

I want to know if you have any suggestions as to what we can do should we ever implement something new. In my practice in family medicine, sometimes there is still a view that day care is bad. So if the working mom has to put the kid in day care, but the dad's new girlfriend will stay home and look after the kid, that's a better choice for that kid.

Mental illness isn't understood. If somebody has diabetes, that's one thing; if they have manic depressive illness and have to be admitted once every couple of years to have their medication stabilized, that's bad.

A lot of good and bad have been handed down for generations, and the people who may only be making the decision...the committee has heard from the 5% to 20% who end up in contentious.... We obviously need to do some work on things, whether it's same sex or all the goods and bads in the way that decisions have been made up till now, regardless of legislation.

Clearly we need more resources for legal aid. Clearly we need some resources, because I think one of the stumbling blocks a lot of women in particular have is not having the resources to get done the home study or psychological assessment that might determine what's in the best interests of the child. At the moment it's a he-she fight, and there's no money to sort out what's in the best interests of the child. That seems to be a money issue.

• 1700

I also need some help with some of the language we've heard this afternoon, words such as “rights” as opposed to “responsibilities”. We tried to think about what it would look like without the word “custody” in the legislation. If you actually had parenting plans...and whether this Washington data say it doesn't improve, but does it make things worse? If there wasn't a bone to fight over, and if from the day the kid is born there were just parenting responsibilities for both sides, could we evolve a plan that did take into consideration what traditionally has been happening in this family in terms of who has been giving the most care, who buys the cupcakes, and decision making?

Those are my three areas. I don't think there's any discussion on whether or not we need more money.

The one other word I wrote down was “turf”. I think there seems to be some feeling that mediation is a good thing for lots of people. It doesn't necessarily matter whether it's a lawyer who's been to school or a social worker who's been to school. I mean somebody on site, in the courtroom, who can help what might take 18 months for these people to come to some agreement. That skilled person could perhaps shorten it in the best interests of the child. Maybe the two parties don't have to be in the same room; you could go from room to room.

Is there a way with that kind of mediation, through suggestion perhaps or seeing a videotape, to get around the power differential in certain relationships?

Ms. Carole Curtis: Yes.

The Joint Chair (Senator Landon Pearson): Just a moment, please. Our time is getting to a close and we have several other questioners, so I'd appreciate both questions and answers being as quick as possible.

Ms. Carole Curtis: Those are huge questions. I'm willing to deal with them—I love this stuff—but they are huge questions. You and I could spend two days talking about those questions.

Senator Anne Cools: We had two hours here today.

Ms. Carole Curtis: Changing the language of custody and access is a very appealing quick fix kind of thing to legislators. It cannot and will not change the extent to which child care responsibility continues to be allocated in a gendered manner. There are articles about this, and there's a book about it by two American experts. It's in my bibliography. Mnookin and Maccoby write about it, and they write about the fact that despite revolutionary changes in the law to attempt to eliminate gender stereotypes and to encourage gender equality, the characteristic roles that mothers and fathers have in their families remain fundamentally different and women continue to be disproportionately responsible for child care during the marriage.

Also, on the issue of changing language, I urge you to look at the Australian and the U.K. experiences and on the literature that's available about them. There is, for example, the Australian experience. They published a book after the legislation was passed that dealt with the issue of language and the changes in language.

I suggest to you, and other academic experts suggest, that it is really beyond the scope of family law to make radical transformation in the structural differences of child care, just by language or just by legislation. I think it's an unrealistic expectation.

On turf, the word “mediation” means something particular to people who work in the family law field. It means a neutral third-party professional privately retained by the parties or provided in the courthouse, who sits with the parties in a room together and attempts to have the parties resolve their difference.

What I heard you talking about really sounded like early judicial intervention. That's a wonderful thing, and it's happening. It's happening all across Ontario, but we get some resistance about it because a lot of judges took this job at a time when judging equalled adjudication. It equalled sitting up in the court room, above everybody, hearing the sides, and making a decision.

• 1705

Judging has been completely redefined in the 1990s, and it needs to be redefined. If we can get early judicial intervention or early intervention by experts whose goal is to try to facilitate some settlement, that's wonderful. That is not mediation. It is a task different from mediation, and we should as a society be using our highly paid skilled judiciary to do whatever job is needed. If that's what's needed now, that's what they should be doing. I don't mean that the judges should be mediating. I mean that early judicial intervention should be a mandatory part of our justice system in order to assist in the resolution of disputes.

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

Senator Erminie Cohen: I have a supplementary. Is the judiciary trained for that?

Ms. Carole Curtis: No, and they hate it. I shouldn't make sweeping generalizations like that, but the older judges who were appointed at a time when adjudicating was all they did are really resistant to doing a different kind of judging. The newer judges, the ones who have been appointed in the last five to ten years, a lot of them women, are more open to this. But judges don't see it as judging. They see it as some kind of touchy-feely, horrible stuff, you know.

Senator Erminie Cohen: So you're saying you think this early judicial intervention is a good idea—

Ms. Carole Curtis: Absolutely. It's happening.

Senator Erminie Cohen: —and that it should go hand in hand with the education of judges.

Ms. Carole Curtis: Absolutely. The YWCA talked about education of judges.

A voice: Mediators also.

The Joint Chair (Senator Landon Pearson): Was that your question?

Senator Erminie Cohen: No, that wasn't my question. My question is to anyone who's interested in answering.

We had a group here this week, Fathers are Capable Too, or FACT. They recommended a parenting coordinator system, which is an impartial body to set up a parenting schedule for as long as required. I just wanted to get an opinion at this table as to whether this system would also help in situations of abuse. I wanted to hear what you thought about that idea.

Ms. Elaine Teofilovici: Our paper speaks to treating completely differently a situation in which there is abuse or violence. We will maintain this position on the field, and I speak for YWCAs. I'm not speaking any further. In our experience the abuse continues. It may take other forms, but it will continue, through mediation, through other parental agreements, through access, through custody. It just continues.

The problem there is much different from other problems or other reasons for which spouses may separate or divorce. Again, I stress the fact that it is not solved through a mediation process, it is not solved through law, and one has to be very, very aware of that.

Senator Erminie Cohen: So you're saying this parent coordinating system, whereby they would set up a parenting schedule, would not work in cases of abuse.

Ms. Elaine Teofilovici: The abuse is going to continue. Maybe there will be some changes in behaviour, but there's going to be continuation of past relationships.

Senator Erminie Cohen: Right. Thank you.

The Joint Chair (Senator Landon Pearson): Carolyn Bennett has a supplemental.

Ms. Carolyn Bennett: To follow up on that, the invisibility of abuse in what looks like a functional relationship, are you aware of any objective tools or questionnaires that can be given to parties separately, as we used to do with the depression handout in the waiting room? Is there a tool that could be used to sort it out?

Ms. Carole Curtis: The problem with attempting to identify assaulted women that way is that a lot of women don't identify themselves as being in an abusive relationship, even though they are. They've been socialized to believe the responsibility for the relationship is theirs. He has convinced her, for example, that if she were a better cook he wouldn't hit her, if she were a better lover he wouldn't hit her. I've had women who have been physically assaulted and don't seem themselves as assaulted.

So I think it's a bit of an oversimplification to think you can identify and remove people from that circumstance, when the women themselves don't necessarily understand where they've been and what kind of relationship they're in, that it's a crime, that they don't have to put up with it.

A voice: They're not dumb.

• 1710

Ms. Elaine Teofilovici: I would also like to add that many women who are victims of violence are ashamed. For that reason they will not disclose to their friends, to their family, even to their children, when children have not been witnesses, what is going on.

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

Senator Anne Cools: Thank you, Chairman.

First of all, I'd like to thank the witnesses for coming today. Some of you, at least one or two, have been in front of committees before. I just thought you should know that we welcome you.

I have a couple of questions and a couple of comments. I was very struck that, almost to a person, the case for examination of the Divorce Act was erected, step by step, on the issue of domestic violence. I was very struck by the use of terms like “power” and “domination”.

My understanding is that, to a person, you seem to be largely agreed that the Divorce Act should take cognizance of domestic violence and should punish domestic violence, particularly in awards and decisions to do with custody and access. Is that a fair interpretation? Is that what you said?

Ms. Carole Curtis: I don't think anybody at this table used the word “punish” or suggested punishment. That's really not the analysis. The analysis is that it's a relevant factor in determining custody and access, that it should be presumptive but it be taken into account.

Senator Anne Cools: Excellent. Very well.

Therefore, if we're to say that any judge, or anyone making an order under the Divorce Act in the areas of custody and access, should take into account domestic violence, would you agree that they should also take into account the domestic violence that is child abuse?

Ms. Carole Curtis: Absolutely.

Senator Anne Cools: Absolutely. Good.

I'd like to share with you some data from the Toronto Institute for the Prevention of Child Abuse in a 1994 report on child maltreatment. This was a study of data from 54 children's aid societies.

Of the total substantiated cases of child maltreatment, mothers were perpetrators in 49% of the cases and fathers in 31%. In the category of child neglect, mothers were perpetrators in 85% of the substantiated cases. In the category of child physical abuse, biological mothers were perpetrators in 39% of the substantiated cases and fathers in 40% of the cases.

Based on what you were saying, no woman would be allowed close to a child. One of you said—and I find it disturbing, very disturbing, because the Divorce Act is an instrument of separation, not an instrument of social welfare or an instrument for redressing historical imbalances or gender differences; it is a piece of legislation that has its purposes—that the Divorce Act should pay careful attention to domestic violence because 38% of women are killed by intimates.

Well, I have data that says—and they did say this, very clearly—that 85% of perpetrators of child abuse are mothers. I would just caution that I'm not into whether it's mothers or fathers; what I'm into is the fundamental basis of thinking that the Divorce Act should get involved in this particular issue.

Can you respond, first of all, about domestic violence? When you speak about domestic violence, you speak about what men do, not about what women do. When it comes to child abuse and when it comes to domestic violence at home, we know women play an active role.

• 1715

Let us be quite clear: most families will never use domestic violence. We go around talking about violence and we paint every family in this country. Well, fortunately the majority of families in this country live quite happily without resorting to violence. But of those who do, when it comes to children, women are higher offenders than men.

Could you comment, please?

Ms. Carole Curtis: It's a bit dangerous to rely on those statistics in looking at the Divorce Act. Those are stats that deal with families who have come into contact with the child protection system, families who are involved with Children's Aid. What would be really interesting on those breakdowns of 49% women and 39% men would be to find out what percentage of families who come into contact with Children's Aid are single-mother families. Also, what percentage of them are families where poverty is a big issue? These are very complicated social issues where children are assaulted or abused.

Senator Anne Cools: We know that.

Ms. Carole Curtis: The other thing is that the figure that was given about 38%—and I didn't give it—is from the YMCA statistics, and what it actually says is that 38% of all women murdered in Canada are killed by a current or estranged intimate partner. That's what the number is.

The Divorce Act is an instrument of social welfare. It is an enormously important instrument of social welfare. I hope this committee recognizes that. It's a very influential piece of legislation. But it also needs to reflect the reality of Canadian families and not have the expectation that it can dramatically change the society just by changing the language or changing the structure.

Senator Anne Cools: Well, that is our view. That is the committee's view.

Ms. Carole Curtis: I'm trying to convince the committee of another view.

Senator Anne Cools: Well, as far as I know, the committee's not in the process of preparing legislation, but maybe you have information I don't have. As far as I know, the committee is not about to produce a piece of legislation.

If I could continue, I have a couple of questions.

The Joint Chair (Senator Landon Pearson): Quickly, because there are three others waiting.

Senator Anne Cools: Thank you.

I'd like to go to two other questions. You've done a lot of speaking about the issue of enforcement of child support. I don't think there's a single person here who would disagree that the state should stand behind supporting families.

On the issue of the state standing behind the enforcement of access, especially in the areas of chronic access denial, parental alienation, and the wide range of various other issues, I wonder what some of you or all of you could recommend the committee could do to cause the courts to enforce access and in addition to take strong measures against any individual, professional, or parent who violates access orders or who basically commits contempts of court.

Ms. Carole Curtis: I'd like to deal with the conflicted access issue, if I could. Conflicted or denied access gets a disproportionate amount of media attention for the level of problem that it actually is in family law. It is actually a very small part of family law.

Most families have some conflict regarding access, particularly in the first year or two post-separation, and that conflict might flare up again when one of the parents re-partners. But most families are able to resolve the conflict, either directly or with the assistance of their lawyers. It is rare that conflicted access or denied access gets to court. I know the media coverage it gets wouldn't make you think it's rare, but it is rare.

There are some families—and they're the ones I called the high-conflict families earlier; I asked you to make a distinction between assaulting behaviour and high conflict—where the conflict between the parents is so high and the contact so toxic that access may not be in the child's best interest, because it may not be resolvable. It may not be able to be worked out. In my experience that's about 5% or less of families. It may be that the justice system can't fix those problems and can't be expected to fix some of those problems.

Is jail the way to enforce access? I—

Senator Anne Cools: I don't think so.

I was asking you for your thoughts. I wasn't asking you to ask us. I was asking for your thoughts.

In the instance of widespread denial of access...and there is a lot of it. There isn't a single member of either of the two chambers of Parliament who doesn't have stacks, if not volumes, of letters in this regard.

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I am asking you, what do you recommend that we can recommend in this area? Some of us have worked in this field for 30 years. We know how problematic it is. As a matter of fact, some of us here can teach some of you there a few things, but basically we're asking you what can we do, what recommendations?

The Joint Chair (Senator Landon Pearson): Go ahead, but quickly, so that we can pass on to the other questioners.

Ms. Carole Curtis: I know you have other questions. I just want to deal with this issue, because this is—

Senator Anne Cools: I have one more question, Madam Chairman.

The Joint Chair (Senator Landon Pearson): I know, but you've been over your time, Senator Cools. Could you bring it at the end?

Ms. Carole Curtis: There have to be other ways of dealing with this than throwing the custodial parent in jail. If a punishment is what is in order—

Senator Anne Cools: Nobody has proposed that.

Ms. Carole Curtis: —courts need to be more inventive. Perhaps make-up access should be ordered, maybe community service, maybe a fine, those kinds of things, but most of these cases, if they're high-conflict families, are not resolvable. It may not be fixable, and maybe we can't design a legislative structure to fix it.

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

Mr. Roger Gallaway (Sarnia—Lambton, Lib.): Thank you.

I want to get out of this business, because we hear a lot about quantification, and I must say that what I heard earlier in the presentation was the assumption that...or at least if you were watching or listening to this program, you would assume that all marriages end in some sort of violence.

So I want to talk about what Ms. Curtis referred to as being the normal or the average family, and I want to refer to the fact that you seem to say, in regard to access, that if it's not broken, don't fit it, that there's a relatively small number of these cases.

I'll refer to what Senator Cools mentioned, that there's a lot of anecdotal evidence, and certainly the proof is in the number of these groups that are springing up. There was a demonstration in Hamilton recently of disgruntled fathers, with respect to access.

So there's a lot of anecdotal evidence. When we're dealing with non-payment of support, that's very easy to quantify. Yet when you're talking about access orders that are being denied, it's impossible to quantify that, for the simple reason that to get access requires that you fuel the legal community with money to get access, to get to court.

I had a letter from a gentleman who suggested that a lawyer had quoted him $30,000 to enforce a simple access order. I've mentioned this to a lawyer, who said that seems a little excessive, but the fact of the matter is that it costs money, a lot of money, to enforce.

I have a very simple question. We have a state mechanism to ensure that one side of the equation is addressed; that is, that money is collected and that stability be put into that part of it. We have a lot of evidence rolling around about the number of paying parents who are in default, but we have little evidence—we have a lot of anecdotal evidence, but we have no empirical data—that rolls around the number of access orders where one parent is in fact seeking to control the behaviour of the other parent by denying access.

So my question to you would be: are you in favour of a state mechanism, then, that would complete the equation, that is, would ensure that access orders be enforced in a reasonable fashion, much as we have a state mechanism to ensure that payments are followed through with?

Ms. Carole Curtis: It won't surprise you to hear me say, sir, that I am not in favour of that. I mean, you're talking about children; you're not talking about money. It is much easier to have the state involved in the collection of money than it is to have the state involved in changing behaviours of adults and children.

Some of those cases, also, are situations where the children don't want to go. So the real question, of course, is why don't they want to go? What happened in this family that these kids don't want to go? In other words, is one of the adults responsible for that? Is the father responsible for it in his behaviour to the child? Is the mother responsible for it in her behaviour to the child?

So I guess I'm urging on you that these conflicted accesses are complicated. It's not as simple as garnisheeing a bank account or taking a payroll deduction.

The Joint Chair (Senator Landon Pearson): Madame St-Jacques.

Sorry, the National Council of Women want to respond—quickly.

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Ms. Helen Saravanamutto: I have real difficulty with your equating access and support. We don't think the two go together at all, and we've been at great pains to separate them.

At the same time, I think that denial of access can happen on both sides of the equation, and there definitely should be some way of resolving this. We're in disagreement with our colleagues, but as our colleagues said, there are things like community service orders and so on.

We need to put money into more than just services as far as the law is concerned. We also need to look at the separating parents as individuals and see what supports they need. This is a profoundly disturbing experience for the parents and the children, and we must not forget that. We cannot take the children right out of the family and say this is in their best interests.

We need to look at this in terms of support, and it isn't just legal support, it's also counselling support. We have come out very strongly to say that support services should be available, particularly counselling in all sorts of areas. Sometimes the separating parents need to do a lot of grieving for this relationship, and they can't make really good decisions until they've done that.

We have experience in working with couples that are separating. It is hard work for everyone and extremely painful, but it isn't resolved in the best interests of the children by the adversarial approach. It really isn't.

The Joint Chair (Senator Landon Pearson): Did the YWCA want to make a comment too?

Ms. Elaine Teofilovici: Yes, I want to address the first comment made with regard to violence.

While it's true that violence statistics will show a certain percentage of women who experience violence from their husbands, the committee needs to understand that few of these women will invoke—they don't need to invoke the reason for separating from or divorcing their husband. Few of them need to come with a blaming attitude with regard to violence.

I don't know if I'm making myself clear—they don't need to identify the violence, but it's there. Of the 11,000 women who went through YWCA shelters in 1992, very few were going to accuse their husbands or seek separation or divorce.

Senator Anne Cools: So you believe the majority of women who go to shelters do not seek divorces. Thank you for that. They do not seek divorces.

Ms. Elaine Teofilovici: Women will often seek separation or divorce when the father starts being abusive with the children. That is the move forward for them.

The Joint Chair (Senator Landon Pearson): Ms. Poulin.

Ms. Judy Poulin (Member, SCOPE, National Association of Women and the Law): I just want to comment that if we are considering putting some mechanism in place to enforce when access has been denied, we also must be prepared to enforce when access is not exercised, because that is a much bigger problem.

[Translation]

The Joint Chair (Senator Landon Pearson): Mrs. St-Jacques.

Mrs. Diane St-Jacques (Shefford, PC): I was surprised to hear you say that joint custody was not a solution advantageous to the children, except when the parents have conjugal violence problems. Personally, I have always felt that having both parents was in the best interests of the children.

In my milieu, there are people I know who live that way in a very positive manner. I was wondering if you had any statistics on this issue. I would also like you to explain the inconvenients of shared custody because in my opinion parents share custody and the attendant responsibilities. Do you have any statistics that show that that does not work?

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[English]

Ms. Carole Curtis: As for what's happened with joint custody in Canada, first, there's no legislation in Canada that defines joint custody, which allows Canadian separating parents to use it to mean whatever they want it to mean. So it's a bit dangerous for us to use that expression, because nobody really knows what it means.

The majority of families in Canada that call their arrangements “joint custody” actually have an arrangement that resembles sole custody with access. There is actually a primary residence for the children, and the other parent has what looks like access.

Calling those arrangements joint custody can be problematic for the primary caregiver. For one thing, men often are not interested in paying the same amount of child support when the arrangement is called joint custody. They expect there to be a reduction in child support, even if the arrangement is actually sole custody with access. Also, if the arrangement is called “joint custody”, the ability of the custodial parent to relocate to another city might be restricted.

The big issue for women, I think, is that it's frequently asked for as a way to get a say in joint decision making, but not to share in caregiving. If you share caregiving and decision making, that seems even, but if you're sharing only decision making and not taking on additional caregiving responsibilities, then the result is a way to continue to exercise control over the wife, rather than to be an equal sharing parent. So those are some of the issues.

There are some statistics, but the problem with the statistics is that the name is applied to a variety of arrangements. The statistics would not be helpful without looking at the arrangements in each of those cases. If you asked your friends who have joint custody, I'm sure you would find that they all have different arrangements.

A real 50-50 time share is quite unusual. For one thing, a family has to be financially well off to afford it. They have to be able to afford to live close to each other. They have to be able to afford to have two sets of sneakers, two sets of Game Boys and whatever, to have the kids go back and forth all the time. So it's really unavailable to everybody except the upper middle class.

[Translation]

Mrs. Diane St-Jacques: Thank you.

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

Mrs. Diane St-Jacques: I have another minor question about children who experience violence at home and whose parents separate. Could there be a provision in the law to help children where there is a separation because of violence? We know that violence perpetuates itself. A chid who has been the victim of violence in his family will probably relive it as an adult because we know that it is an unending cycle. Can things be done to avoid that child causing violence in his family later on?

Mrs. Elaine Teofilovici: Our experience in support services offered in shelters for abused women and children is described in the statistics that are appended. It seems that 25 per cent of children in shelters are there because of the father's violence against the mother. In shelters, we provide psychological help to the children and to their mothers and finally the child recognizes that his father has no right to beat his mother for any reason.

I believe that it is essential to use education, prevention and psychological help in the case of children. I believe that can yield excellent results.

[English]

Ms. Ruth Brown: I would add that there are a lot of children who will never reach shelters. If they've experienced violence, they will certainly need counselling and may need therapy. They will really need help dealing with the consequences of what they've witnessed.

Ms. Carole Curtis:

[Editor's Note: Inaudible] ...done a lot of investigation into the consequences for children of witnessing assaults on their mothers. His book is referred to in the bibliography in the NAWL papers, so please have your research staff look at the book and see what he says about it. He says that children who witness their mother being assaulted experience the same trauma as though they were assaulted themselves.

• 1735

[Translation]

Mr. Pierre Brien (Témiscamingue, BQ): Before asking my question I would also like to thank the witnesses who have come here today.

There is an element that surprises me somewhat. Mrs. Bennett talked a while ago about a form of mediation that was a little different from what we traditionally hear about. Among other things, she talked about new ways of doing things, of meeting the interested parties separately and one after the other.

Mrs. Curtis also seemed to be saying that judges should work a little differently in the system. Perhaps mediation could be improved and done a little differently. It seems to me it could be faster and more effective, but we must be aware of the fact that mediation won't work in all cases, especially when there has been severe violence. But mediation could perhaps be used even in those cases. Why not work on improving mediation formulas instead of going through the heavier and more traditional judicial process?

[English]

Ms. Carole Curtis: First of all, litigation is not the alternative to mediation. The alternative to mediation is settlement in some other fashion. Mediators want to get you to believe that if you don't mediate, you're going to end up in court, but that's not what the data shows us. The data shows that the majority of families don't end up in court, and that they resolve their disputes through the assistance of lawyers or other people.

The women's community is with one voice on the issue that mediation is a difficult process for women generally—not just assaulted women, but women generally. Women are not socialized to be their own advocates. They are not the equals of their partners in relationships. Just look around to your friends or your family. Even accomplished, well-educated, high-income-earning women are not necessarily the equals of their partners and do not come to the table as equals. It's a process that, I suggest, by definition excludes assaulted women, but it excludes a lot of women because of the structure of the process.

The representative from NAC talked about the fact that mediation came from the labour law model in which the parties came to the table as relative equals in their bargaining power, and also with the intention of having a long-term relationship. That is a very different dynamic from family law.

In terms of whether mediation should apply to all cases or to more cases, mediation is very helpful tool in certain circumstances and for certain families, but it is not helpful or appropriate for all families.

That's not to say that early judicial intervention would not be a helpful tool. Early judicial intervention is a completely different thing from mediation. Even though you might think the results are similar—in other words, the parents are forced to look at these issues and to talk about them—it's a very different tool.

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

Senator Anne Cools:

[Editor's Note: Inaudible] ...Ms. Curtis' studies by Dr. Jaffi, I would also recommend to the committee the work of Canadian researchers in domestic violence. In particular I would recommend the work of Dr. Reena Summers of Winnipeg, Manitoba, and Dr. Merlin Brinkerhoff and Dr. Eugene Luprie from Alberta.

Their data, which is based on general population surveys, shows that domestic violence is reciprocal and that roughly 50%.... In the general population surveys, no one can quite explain why the shelter populations are always so dramatically different, although I have my own ideas. There have been about 500 major studies on domestic violence, and for the most part they show reciprocity. About 25% is by him only, 25% is by her only, and 50% is mutual. So reciprocity in domestic violence is well known.

I want to put that on the record so that we can balance things out again. If there's one thing I know a lot about, it is domestic violence. I've spent my life working in domestic violence.

Having said that, Madam Chair, I would like to—

Ms. Carole Curtis: You don't expect me to let that go by, do you, Senator Cools?

Senator Anne Cools: I certainly do. I've let a lot of what you had to say about men today.... I appreciate that you have a point of view, but I can tell you that if a group of men were sitting there and speaking about women the way some of you have been speaking, the chairman and everybody would have called it to order. I just point that out, because indulgence has been asked for and it has been had. I think we can present our points of view without basically trying to impugn one gender or the other, because after all, we only have two.

• 1740

I have a question. I'm reading from a relatively recent document put out by the National Action Committee on the Status of Women on spousal violence and custody and access disputes. In chapter 1, the following statement occurs. This is on page 15 of a study by Johnston and Campbell: “The incidence of false allegations probably varies over time (and perhaps locality).”

Johnston and Campbell compared two samples. They studied divorcing parents who were contesting custody of visitation:

With respect to exaggeration and elaboration of incidents...in the first sample studied during the years 1982-84, only two women clearly did this. In the second sample, seen more recently during 1989-90, by which time some spouses and their attorneys had become very familiar with the feminist sociopolitical position with respect to domestic violence and the battered women's syndrome—through television, the press and women's shelters—seven women and one man (13%) were judged to have exaggerated the issue of violence as a ploy in the custody dispute.

I just put this out. There's no time today, but it is painful to watch true victims of many forms of abuse perish and remain uncared for and unattended to because there are so many ghost writers around. I just want to put that on the record.

Colleagues, I have to go.

The Joint Chair (Senator Landon Pearson): Sheila Finestone.

Mrs. Sheila Finestone: It's been a very interesting discussion. As one who feels very strongly that we're shared partners in this world and who has a great respect for the role of both men and women in the raising of families, I think the shared partnership expands beyond just the household role.

I wanted to ask one question. I think one or two of you said we should really live with the present legislation and you would be very cautious. I think it was Carole Curtis who said we should be cautious about dismantling the present system. We shouldn't touch the present law but look at the regulations in a very careful way in terms of defining the question of access to mediation and we should explicitly determine that if there is sexual violence it's proven.

Second, mediation should be voluntary. There is not to be any forced mediation.

Third, the provincial courts should be encouraged to set up some type of family court, mediation option, and legal aid system, none of which actually fall under federal jurisdiction.

My concern when you talk about the fact that we have to amend this law is whether there is specific.... I mean specific; I don't want a whole big, long history of words and everything else. I didn't see one specific recommendation in any one of the three briefs, all of which were very interesting reading, as you can tell by my highlighting them all over the place.... Yes, they're very interesting, but we're dealing with concrete need and fact with respect to amendments to the law.

• 1745

So if you haven't concrete language for amending the law in specific areas and you haven't concrete recommendations—and I noted five of them in one of your briefs, I think from the YWCA—then I don't see any helpful direction other than a review of the symptomology, the sad case of the state of marriage in this country, in many instances, although not all marriages, thank goodness; not violence in all families, thank goodness. I think we all ought to watch our language, because we will transmit a message that is inaccurate in portraying society out there.

So if you have a concrete recommendation, please send it in to the committee so that we can look at it.

Thank you very much, Madam Chairman.

Ms. Carole Curtis: I'm very sorry that the committee, or at least one member of the committee, didn't understand the comments I made earlier in asking questions, didn't understand those questions to not be considered recommendations—

Mrs. Sheila Finestone: Excuse me, Carole. I understood and appreciated the list of questions. I don't think we're a bunch of dumb-bells sitting around here. We have a list of questions we've been posing to ourselves for weeks. Your questions add to them and clarify them. There wasn't one new one in the lot. That's one.

Ms. Carole Curtis: That's very encouraging—

Mrs. Sheila Finestone: Good.

Ms. Carole Curtis: —but our job is to come to you with our expertise in our areas and to represent our constituencies, and we do that. Some of us bring expertise as part of our jobs, not just in our volunteer work on these committees and for these organizations, to put forward to you what we think the issues are for the women and children of Canada. That's what we've done today.

Mrs. Sheila Finestone: I want to thank you for that, but I want to point out that because you have extensive expertise and because you have been involved, particularly in the National Council of Women in casework and direct service, and particularly in the Y, which has the largest service organization with respect to women who have suffered and have had difficulties, I wanted some concrete suggestions as to where the law—because that's what this committee is here for—needs change, or where the regulations need change.

I'm glad you focused on issues, but we need some solid and concrete recommendations. That's my suggestion to you.

Thank you.

The Joint Chair (Senator Landon Pearson): We did have concrete recommendations from the Y.

I would ask your patience for a moment. We have one more questioner, Mr. Eric Lowther. We've run past our time, but it's been very interesting.

Senator Nolin.

Senator Pierre Claude Nolin (De Salaberry, PC): I would be happy if they wanted to comment on that, because some of them have specific recommendations, and I think they should be allowed to say them.

Ms. Elaine Teofilovici: If you would please check the document again, there is a series of recommendations written in our document.

The Joint Chair (Senator Landon Pearson): Carolyn.

Ms. Carolyn Bennett: In terms of early judicial intervention—and this may be a stupid question—does it have to be done by a judge?

Ms. Carole Curtis: No, not at all. I'm saying judicial because you put it into the courthouse. You said, you know, “once we're in the courthouse”.

It doesn't have to be done by a judge. In fact, there's a project in Toronto that's been ongoing for two or three years where requests for variation are dealt with by a dispute resolution officer who's not a judge but a senior member of the bar. The settlement rate of those variation requests is very high, about 70%.

People are told what information they need to bring, to please bring back their financial statement, or bring their income tax return. The senior member of the bar might express an opinion that this isn't going to happen, that you're not going to get it reduced to zero but you might get it reduced to $600, or that type of thing, and people settle.

So early intervention is the key. I said judicial intervention only because you had put it into the courthouse.

Ms. Carolyn Bennett: As well, you like that term better than mediation.

Ms. Carole Curtis: It's not mediation. It's a different thing from mediation.

Ms. Carolyn Bennett: Okay. Thank you.

Ms. Carole Curtis: To insist that people who have gone into the justice system have to come to a meeting is very different than to tell people they must go to mediation. Mandatory mediation is an oxymoron. Mediation is a voluntary process.

The Joint Chair (Senator Landon Pearson): A couple of women have a comment on this before I go to Mr. Lowther.

Ms. Brown.

Ms. Ruth Brown: Surely mediation and early intervention...we're both talking about the same things, I think.

A voice: No.

Ms. Carolyn Bennett: Explain the difference.

The Joint Chair (Senator Landon Pearson): I don't think we have time to get that clarification now if Mr. Lowther is going to have the last question.

Mr. Eric Lowther (Calgary Centre, Ref.): Thank you very much, Madam Chair.

I'm basically asking for an opinion from a number of the groups here on a recommendation we heard at an earlier committee meeting. Perhaps I could paint a scenario, and I recognize this may not represent the majority of cases, but it's one of the ones we're trying to deal with. It goes along the lines of Mrs. Finestone's comments.

• 1750

One parent has been given custody and is looking after the child, and the other parent has been given access, and there's a repeated inability for the one parent to get access. Either the child is not there, or access is denied, or whatever. It goes through the court system and the parent tries to get access, but continues not to get access, or the court rules in this parent's favour...you're right, you should get it.

One of the suggestions we heard put forward was, rather than incarceration of the parent who has custody, the better approach might be to actually have the parent who has custody risk losing custody and have it go the other way, if they won't honour the access requirement that the court has issued. If they won't honour that, then perhaps they risk losing it.

I don't know whether this question has been asked before because I came in late, but I would really be curious to hear what the various groups think of that suggestion. It seems to be worth some merit here and something we should consider.

Ms. Carole Curtis: There was a long discussion earlier this afternoon about conflicted and denied access, and I won't repeat the answer on that because you can get it from the transcript.

I will say that this kind of solution is punitive to the child. It's very disruptive to the children. The children have a caregiving arrangement that may have existed for years. They have a school; they have friends; they're established. It is punishing the wrong person if there is an actual breach of the order.

There are lots of other ways to do it, and earlier we talked about community service orders, fines.

Mr. Eric Lowther: Just for the sake of time, I am curious to know whether or not you're supportive of that approach. It sounds like you are not supportive of that approach of risking the access.

A witness: No.

A witness: Nobody is.

A witness: We are not supportive of it either.

Mr. Eric Lowther: So even though the court has said to the one parent, yes, you should get access, if he doesn't get it, it doesn't mean the court might want to consider reversing the access to custody. That's your opinion.

The Joint Chair (Senator Landon Pearson): Ms. Kalinowski.

Ms. Cori Kalinowski: Thank you very much.

There are certainly other ways to address the concerns with access, and it's very important to look at why there's a problem with access, instead of just the fact of the access being a problem. There may be an illness with the child. There may be a fear of the parent. There might be some sexual abuse by the parent's brother, for all you know. There could be a lot of issues with the access parent that you have to explore.

Presuming, as you have, that there is none of that and that access is being denied wrongfully, there are different options, such an increasing the access, fines, community service orders as opposed to incarceration. I don't recommend that one. Using imprisonment in this situation is far too strict and far too harmful for the child. The child will never, ever forget that daddy put mommy in jail.

Mr. Eric Lowther: I don't think I was talking about imprisonment.

Ms. Carole Curtis: I know, but it's on the table.

The Joint Chair (Senator Landon Pearson): We'll hear from the National Council of Women and then the YWCA.

Ms. Ruth Brown: What we wanted to say has already been said. You have to look at the interests of the child. Changing custody doesn't seem like the right solution at all to what is admittedly a problem, and you have to look at the problem, but that's not the right solution.

Ms. Helen Saravanamutto: The child bonds with the custodial parent very closely and that would really disrupt this bonding and cause the child great psychological harm.

The Joint Chair (Senator Landon Pearson): Thank you very, very much for this afternoon. It's been quite challenging. There have been a lot of questions. We're appreciated your answers and they will be put into the record and thought about. All those questions will be reconsidered.

The meeting is adjourned to the call of the chair.