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 30, 1998

• 0900

[English]

The Joint Chair (Senator Landon Pearson (Ontario, Lib.)): Good morning, ladies and gentlemen. Bonjour, tout le monde. Welcome to the twelfth meeting of the Special Joint Committee on Child Custody and Access.

We're very pleased to be in Toronto for the next three days to hear from the many people who've asked to appear in front of us and the many we have asked to come to talk to us.

I have one housekeeping matter to announce before we start, which is that audio devices are available for the translation. They're outside, I believe. If you take one, please be sure to return it. I think we get stuck for $300 for every one we lose, and they're not much use by themselves if you take them home.

Before we start, I'd like to remind both the witnesses and members that we will have to make our questions and answers short and pertinent, and that not all of us may be able to ask questions to every witness. I'd also like to remind everyone about this committee's terms of reference, which is that we've been appointed to examine and analyse issues relating to custody and access arrangements after separation and divorce, and in particular to assess the need for a more 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.

Appropriately enough, we're starting off with the Office of the Children's Lawyer and the Office of Child and Family Service Advocacy. Mr. Wilson McTavish is the children's lawyer, Dena Moyal is legal director in the personal rights department, and Lorraine Martin is clinical coordinator of social workers. From the Office of Child and Family Service Advocacy we have Judy Finlay, the chief advocate, and Leslie Hinkson, an advocacy officer.

I don't know how you've arranged to make your presentation. I know that Ms. Finlay has a submission, but it's only in English; it will not be distributed until it's in French.

Who's starting?

Mr. Wilson A. McTavish (Children's Lawyer, Office of the Children's Lawyer): Thank you, Madam Chair. We appreciate this invitation and being the first to speak to you from our special perspective.

The Office of the Children's Lawyer has existed since 1827, and formally since 1881, the date of Ontario's first judicature act. Until 1977 the office only concerned itself with the property rights of children who are beneficiaries in wills, trusts and estates, and as parties in civil litigation. We continue to do this important work, and today it represents about a fifth of the work of our office. The rest is personal rights, about which we are concerned.

In 1977 the official guardian, as the office was known then, was empowered by the Supreme Court of Ontario in the Reid and Reid case to act as legal representative for the children of divorce, with full legal rights of a party. Children are not parties in divorce actions, but the claim of custody and access is of vital concern to them, to you and to us.

As you know, the best interests of a child are determined by the court after hearing all of the relevant evidence and submissions of the child's lawyer, if one is appointed, and the lawyers for the parents.

• 0905

In 1980 the children's lawyer also began representing children in child protection cases, which you are not concerned with today, I think. That's when the Children's Aid Society removed children from their families under the authority of Ontario's Child and Family Services Act.

In April 1995 our name changed from official guardian to the children's lawyer to prevent confusion with the newly created Ontario Office of Public Guardian and Trustee, who acts for and is the trustee and substitute decision-maker of last resort for incapable adults.

I will speak for a few more minutes and then I'm done.

In my office in Toronto there are 84 staff, 18 lawyers and 12 social workers. Across the province there are 350 lawyers and 100 social workers who work on a case-by-case basis. Our continuing total caseload at any given time is about 8,000 cases. And remember about one-fifth of that applies to property rights.

We undertake approximately 1,600 custody and access cases annually— 800 for social workers and 800 for the lawyers. We also undertake around 1,500 child protection cases, of which we are not concerned today. In the private custody and access disputes, we represent the child's interest at law. It is for the judge hearing the case to decide what is in the child's best interest. Wishes, of course, are one element of the best interest test.

To be clear, we do not represent the child's best interest, nor do children instruct us. We obtain our authority to represent the child by court order, under sections 89 and 112 of the Courts of Justice Act of Ontario. The child does not hire us, nor do we require the parents or anyone to pay for our professional services. It is a public duty fully funded by the Attorney General of Ontario.

Our relationship to the child is one of solicitor and client. We have the responsibility to make sure that evidence about the child's wishes, consistent or not, is known to the court, and that we place those wishes into the context of the overall evidence. In essence, we have a public duty as crown counsel to present the interests and wishes, if any, of our client to the judge. These wishes are part of the facts that are gathered by us and the party from family, teachers, doctors and any other collateral sources of significance to the child.

In my view it is an onerous and difficult duty. We settle over 90% of our cases. We investigate, assess, negotiate and resolve problems from the strength of representing the child. We have a powerful position in the justice system. The Supreme Court of Canada in Young and Young and Gordon and Goertz clearly state that the best interests of the child prevails in each and every case. The care, custody and access for each child is unique.

I'll conclude by saying that both parents, and we have found this in every case, love their child. Every child we represent pleads for a reconciliation of their parents. Tearfully they acknowledge that can't happen, and then the child asks us to stop the fighting, and in many cases we do so. We encourage the parties to enter into agreement, and in a few cases we go to trial, or a court order or a judgment is obtained. It is vital that our child client feels secure, needed and loved. I must add that we take on the toughest cases in the justice system, although not all of them.

• 0910

Thank you.

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

Ms. Judy Finlay (Manager, Chief Advocate, Office of Child and Family Service Advocacy): I'm the provincial child advocate for Ontario, and I'd like to thank you for the opportunity to speak to you today.

I'm here today, however, representing the Canadian Council of Provincial Children's Advocates. I have surveyed each of the provinces to ensure that my submission represents the national point of view. I wasn't advised until recently that I would be here today, so even though my submission is being presented today, I think they're translating it and you'll receive it at another date.

Child advocacy is not new in Canada. There have been children's advocate offices around the country for about 20 years. In Quebec and Ontario we've existed since the late seventies. Alberta began its program in the late eighties, and Manitoba, Saskatchewan and British Columbia have had child advocates since 1992 and 1995. The maritime provinces and Northwest Territories are beginning negotiations with their respective governments at this time, so we're looking forward to having child advocacy in every territory and province in Canada.

In my submission I describe the general role of child advocates. Today I'll speak specifically to our experience in the area of custody and access situations.

You must understand that none of the provincial children's advocates have a mandate to advocate on behalf of young people before the court. However, due to the volume and the compelling nature of these calls related to custody and access disputes, advocates nationally have agreed together to respond and intervene.

The calls we receive represent the most contentious, volatile disputes, and there is always an element of violence or threat of violence involved. The callers have exhausted resources, both legally and social resources, and are afraid for the well-being of their children.

With regard to the frequency of calls, the western provinces estimate that 15% of all calls to the provincial child advocate are custody and access disputes. In Ontario it's about 6% of our calls, but we have the provision of the children's lawyer. So about 250 calls come to the advocate in Ontario.

Advocates are only mandated to intervene if there are child welfare concerns. It's not publicly known that the office of the child advocate is available for these kinds of disputes, so what we're receiving is really the tip of the iceberg in terms of the number of calls that are out there. We get calls from parents, both the custodial and the non-custodial parents, extended family members, foster parents and of course children themselves.

The provincial child advocates believe strongly that children's voices are not adequately represented. We need to have access to their voices— not just to what is perceived to be in their best interests, but what their wishes are as well. We need a child-centred approached to dispute resolution and a parenting plan. Children need a voice in both the formal proceedings and the private negotiations that go on between parents.

Children have a right to be protected from violence, either experiencing it or witnessing it. Early intervention on behalf of the child is absolutely necessary. In these very contentious cases there needs to be a spectrum of intrusive interventions at the front end, and supportive services to children. This would include peer support for young people.

Child welfare authorities, child welfare agencies, sometimes are reluctant to intervene in custody and access disputes, particularly if the case is before the court. Often we are too quick to dismiss complaints of children being abused or neglected. We aren't taking their allegations seriously enough because of the defence that they may be false allegations.

Finally, I'd like to say that there needs to be legislation to enable adequate access to siblings.

I'll stop here.

• 0915

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

Do any of the rest of you wish to speak, or are you there to be available for answers?

Ms Dena Moyal (Legal Director, Personal Rights Department, Office of the Children's Lawyer): —

[Inaudible—Editor] —

The Joint Chair (Senator Landon Pearson): Okay.

The first person who asked to speak is Mr. Forseth.

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

Welcome. You just mentioned part of the mandate of this committee. You talked about the child-centred approach. I'd like you to expand on perhaps two contrasting scenarios. Perhaps what we have now— If we're advocating a more child-centred approach, then there's the assumption that we are doing something else. There is another. So perhaps you could describe clearly what the other is, and then describe what would be a more child-centred approach and why it is better than whatever the other is.

Mr. Wilson McTavish: I've never really thought about the “other” approach. I think that's the reason why you are here. If you are referring to things like presumptions of joint custody, and so on, that's a large policy discussion.

Because I'm doing what I'm doing, I have always taken the child-centred approach. So if, for example, a father says in negotiations, and knows the law, he does have custody until there is a disruption between the relationship of the father and mother, then somebody asks the court to make an order, mother or father, it's at that time that the presumption— If I can put it that way, in common law both parents have the right to raise their children and have an equal say.

Now they can't get along, so is the approach of the father correct when he says he has joint custody at common law? I would say no; it is not until somebody has sorted it out and a decision has been made. If mom and dad agree after negotiating and mediating, joint custody is a wonderful thing. So I'm trying to answer.

Mr. Paul Forseth: Can any of you fill out a bit more? What are we talking about when we say a more child-centred approach? Let's be precise about that.

Ms. Judy Finlay: From my perspective, in regard to a more child-centred approach— and I'm speaking particularly to the most contentious situations because those are the ones that child advocates across the country deal with —I would say that there needs to be early intervention with the children when it has come to the fore that the issues are contentious; early intervention in terms of support and therapeutic involvement; early intervention in terms of family dispute resolution.

There's a program here in Toronto with the family court clinic and the Clarke Institute, which deals with the most contentious cases. It brings children and their families in early, deals with the children in terms of the family dissolution and break-up and deals with issues of divorce and separation with those children, but also deals with the parents who are in conflict and brings both the parents and the children together to talk about the impact of the conflict.

The child needs the opportunity to have a voice before the courts or in mediation situations, a direct voice. Also, there need to be supervised transfers of children between parents, as well as supervised access, particularly when there has been violence or threats of violence.

So there should be a range of models, a range of intervention strategies that are managed and coordinated in an integrated way in one setting. The parents we talk to have been to one resource after another, getting a piece of this and a piece of that, but never is it directed solely to the child. That's what I'm speaking of, starting with the child and building on that.

Mr. Paul Forseth: Does anyone else want to jump in there?

Mr. Wilson McTavish: I think I can say it in five little phrases: supervised access is very important, and Ontario has that in a limited, beginning way; mediation, access to good mediation; assessment, early, good assessment of the situation of the family, of the child's needs and the abilities of the parents; access to legal aid— parents who are self-represented have difficulty moving through this system; and an early, quick, efficient and effective trial. That means a unified family court for all of Ontario, sooner rather than later.

• 0920

Mr. Paul Forseth: I have one last supplemental question. When you talk about intervention and the support and therapeutic involvement that you mentioned, I assume these interventions are voluntary and there's really not much you can do to require people to get involved. It's often those that need the service most who are not particularly desirous to entering it. Perhaps you could just comment on that.

Ms. Judy Finlay: Presently those are the circumstances. So that's why we have such difficulty accessing these children who are in desperate need of intervention. When those situations are before the court I would recommend that there's enforced intervention for these children.

Even though we're not allowed to go before the court, I can remember a case where it was so contentious and volatile and there was so much violence that I finally did write a letter to the court. I recommended that if the dispute wasn't resolved in a way that was in the best interests of the child, I felt the child was in need of protection. That in fact was the case. So the judge did order that the child would be brought into protection, into the care of the child welfare authorities if in fact there wasn't some resolution to the dispute.

So there should be some way to enforce that children get the kind of support they require. As you all know, the longstanding effects on the well-being of children, both socially and emotionally, when disputes are allowed to be protracted and violent is far-reaching. So we do need to intervene early.

Mr. Wilson McTavish: Fear and ignorance is there. Information is what the public needs so the person who is in fear or ignorant or shy about bringing forth a very difficult problem should be able, in some comfort, to get information orally and in printed form.

Senator Erminie Cohen (New Brunswick, PC): Thank you for your participation. My questions all have to do with the effectiveness of early intervention programs, because we're hearing about early intervention not only from you but from most witnesses we receive.

I want to ask you to comment. I know how you feel about early intervention. I want to know if it really stops the warring atmosphere that could follow and how successful that's been. I want to hear your comments on the parent education programming concept and the parenting plan, the parenting responsibility and then the mediation vis-à-vis the litigation and how it affects the child. I feel all these areas are going to be very important when we come to final deliberation.

Lastly, we heard from you that children need a voice, but we've also heard that it could be very stressful for children to have to make a choice between two parents. So I also would like to hear your comments on that.

Mr. Wilson McTavish: While Ms. Finlay is thinking about the first three-quarters of your question, I'll answer the last part quickly.

I agree with you. The children's voice should not be placed in the witness box; it should not be placed in front of a special examiner to hear evidence. The child should not be confronted with the parents' problems. The voice of the child can be placed before the court and before mom and dad after solicitor-client interviews with our lawyers and social workers and after a comfortable discussion that the child may have with a professional person. It doesn't have to be in our office.

Hearsay is allowed in family court, especially the hearsay of children. So parents, lawyers and others who involve children directly in the dispute are doing a great disservice to the child and to the child's future.

Ms. Dena Moyal: We never ask children to make choices when we're interviewing them, and we have a very unique way of interviewing children. You notice here that we have the marriage, as we call it, of social work and the law, and that's to be sensitive to children's issues within the context of the family. It's very important for children's views and preferences to be heard and to be articulated but not for the pressure to be put on their shoulders.

• 0925

Ms. Lorraine Martin (Clinical Coordinator of Social Workers, Office of the Children's Lawyer): I can speak to mediation. I'm past president of Family Mediation Canada and I have quite a background in mediation. I was director of the family conciliation program in Manitoba, which was in fact a quasi-mandatory referral of all custody and access matters to provincially sponsored mediation services.

I want to make the point, Mr. Forseth, that getting into an argument of voluntary versus mandatory can be very narrowing, especially when we're discussing such complex and sometimes fuzzy issues. And if the services are available as they were in Manitoba, people use them; it becomes part of the culture. Not having the service available is what we're talking about in terms of not having the kinds of resources and parenting education and mediation that help people before the litigation and the adversarial system exacerbate in very difficult disputes.

Mr. Paul Forseth: Is it still available?

Ms Lorraine Martin: It is still available in Manitoba, yes.

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

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

The issue of children's rights is very interesting to me. I have seen some literature that suggests that children have, among other things, the right to be treated as important human beings, the right to a sense of security and belonging, the right to continue a relationship with their parents, the right to grow and flourish in an atmosphere free of exploitation, abuse and neglect, and the list goes on.

Wilson, in your opening remarks you said something that concerned me a little bit with regard to divorce proceedings. I think the way you phrased it was that of course children are not parties in a divorce action.

Mr. Wilson McTavish: Right.

Mr. Paul Szabo: And I'm wondering whether or not perhaps that is part of the problem. It seems to me that if there are rights a number of questions would arise. Are those rights enforceable under the law? Should we have a real children's bill of rights? Should we put the interests of the children ahead of the interests of the parents? Should there be mandatory parental counselling at the start?

What I hear from many people is more remediation rather than prevention. It appears to me that the starting point has to be when the relationship breaks down. The rights have to be articulated and the action plan has to be put in place, with all parties knowing whose rights are what, and what the consequences are if those rights are violated in any way, shape or form. Will you support a preventive approach as much as you do remediation?

Mr. Wilson McTavish: Let me try to answer the question, which is rooted in rights.

I make a distinction between positive rights and negative rights. The UN charter and the Charter of Rights and Freedoms in our country address what is called, in my opinion, negative rights. There are some basic rights that all persons are entitled to, and that includes children.

What you are addressing are the positive rights. In other words, we set certain standards in our society, such as health, education, welfare and so on, and those are the thresholds we're constantly exploring in a political, legislative parliamentarian way. To say that children and parties have rights to a certain level of health care, which children require and need as they grow up, for example, is actually automatic. We don't need a bill of rights for that.

So I turn the question to you on the fundamental right I think you're talking about. Is the children's right to life, liberty and security of the person— Does the Supreme Court of Canada say or does Parliament say that this means each child is entitled to both parents? Is that a negative right that will be enforced at law? That's a very tough question.

A witness: I just want to make two observations in response to that question and perhaps overlap a number of questions that have been posed this morning.

• 0930

One is from the perspective of advocacy practice. I guess that when I speak about advocacy, I realize that we all advocate to some extent. We find in a very practical way that when we talk about the voice of the child, we also speak about vulnerability and the ability of the child to really articulate or express how they feel about a particular experience. Most children can't do that in a verbal way, especially when they're very young. They do it by the way they behave.

I come back to the primary concern, and the child advocate submission. It's extremely important that this aspect be addressed with respect to the process of ownership in a legal process between parents. This is where some factors such as violence are not really addressed in a way that will be responsive to the interests of the child. We're very concerned about that.

To be more specific about that, our concern is that to a large extent the focus has to do with how the system deals with those kinds of decisions coming from the angle of the parent having ownership. So we should decide who should visit the child.

For us the problem with that is that quite often children say they don't really want to get exposed to one or another parent, simply because the experience with that relationship hasn't been very good.

Mr. Paul Szabo: Thank you.

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

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

First of all, as a senator from Toronto, I would love to take the opportunity to welcome the committee members to our fair city. I would particularly like to welcome the members from out west, Eric and Paul, and in particular our members of the Senate from down east. So I just would like to welcome all of you here, and hope that you enjoy the hospitality of Torontonians.

Having said that, Mr. McTavish, I would like to welcome you before our committee.

Mr. Wilson McTavish: Thank you.

Senator Anne Cools: If I'm not mistaken, I believe this is the first time you are appearing before a joint committee of Parliament.

Mr. Wilson McTavish: That's correct.

Senator Anne Cools: So it's a new experience for you?

Mr. Wilson McTavish: Yes, it is.

Senator Anne Cools: Very well.

Perhaps before we go on, chairman and members, I could clarify the difference in the two roles.

My understanding, Mr. McTavish, is that the Office of the Children's Lawyer, and you in particular, as the children's lawyer, are an order-in-council appointment.

Mr. Wilson McTavish: That's correct.

Senator Anne Cools: So your position is a political one?

Mr. Wilson McTavish: No, it's more like that of a judge.

Senator Anne Cools: Well, it's the same difference.

Mr. Wilson McTavish: Yes, it's a political appointment.

Senator Anne Cools: What I'm trying to ascertain for persons here and members of the committee who are not that familiar with Ontario is that you are not just a do-gooder. You have a mandate—

Mr. Wilson McTavish: I have a job.

Senator Anne Cools: —supported by a statute to do the job you're doing. That is what I'm trying to say.

On the other hand, the Office of Child and Family Service Advocacy— Ms Finlay and the gentlemen whose name I didn't get —are no such government body.

Ms. Judy Finlay: I'm here representing the national advocates. The two newest child advocates are in fact appointed by the legislature.

Senator Anne Cools: Right. That's in British Columbia?

Ms. Judy Finlay: British Columbia.

Senator Anne Cools: But that's not the case in Ontario?

Ms. Judy Finlay: It's not the case in Ontario.

Senator Anne Cools: I see. Therefore, Mr. McTavish has a much greater force of law behind him than the two of you. Very well.

Having established that, I'd just like to move on.

Mr. McTavish, I've spoken with you in the past. As you know, the predecessor title of your agency was the official guardian.

Mr. Wilson McTavish: Right.

Senator Anne Cools: And, as you know, the name was changed.

I might belong to that group of people who sincerely believe that a lot was launched in that name change. The role of the official guardian was the total guardianship, not just as a lawyer or as a children's lawyer.

Having said, that I have a couple of questions for you. I'm just wondering, and I'm very curious, as to why your agency has been a little— not slow off the mark, but less than speedy in confronting some of the problems we're seeing inside custody disputes.

• 0935

In particular, I draw from the child welfare tradition. Recently, as a result of several inquests conducted by the coroners of Ontario— They're also political appointments, as you know. I believe that some eight or ten have been extremely serious and extremely worthy of examination. They have been coming forward consistently with sets of recommendations. These say that child welfare legislation should take cognizance of children in protracted custody disputes. Basically they have been urging that the child welfare legislation begin to accept, and to admit, as Ms. Finlay was just saying, that children in these circumstances are children in need of protection.

Having said that— and some of the material that is coming forth is boldly assertive and boldly cutting-edge. If I may indulge the time of the committee for just a moment, if you remember, there was a case in British Columbia, the very famous case of little Matthew Vaudreuil, who was five years old and was killed rather cruelly by his own mother, Verna.

In any event, in that inquiry Judge Thomas Gove very thoroughly noted that this child consistently fell through the gaps of the child welfare system. I think he spoke for most of us. He noted that there were some 64 reports of abuse of this child by his mother. The very first report began the very first day of his birth, or thereafter.

Judge Gove very eloquently and lucidly made the point that the entire set of services was mother-centred, but not child-centred. I think that he made a very fantastic point, that the agencies were frequently confused as to who their client was, whether it was the child, the parent or the mother.

Having said all of that, I'm just wondering what has your department— Well, it's not a department, it's basically an agency.

Mr. Wilson McTavish: It is a department.

Senator Anne Cools: It is a department?

Mr. Wilson McTavish: Yes, and we're part of the Ministry—

Senator Anne Cools: I know that you report to the Attorney General of Ontario.

Mr. Wilson McTavish: Yes.

The Joint Chair (Senator Landon Pearson): Senator, you've taken all your five minutes. Would you please get to the question immediately, because other people have questions to ask, and we've only—

Senator Anne Cools: Well, I'll be happy to stop, Chairman.

Mr. Wilson McTavish: I think I could answer this fairly quickly.

It's interesting that the inquiry of a judge into a death of a child in Ontario around 1977 or 1978 produced the changes to the Child Welfare Act, as it was then known. Now it's the Child and Family Services Act. It also introduced section 38, which provides legal representation for children who are ordered to have it by the court.

My office fulfils that, and 1,500 cases a year are accepted in my office.

Senator Anne Cools: Right, I understand that.

Mr. Wilson McTavish: So that is so.

Second, the name “official guardian” was a misnomer, but we still do protect children. It stood for guardian ad litem, which meant the guardian of the defendant. They dropped ad litem after the 1881 act, so it is a misnomer to think of me as being anything more than the child's lawyer. I'm not the child's advocate. I'm not the child's social worker in CAS. I am not a service provider. I am the child's lawyer— and we are —so we act and speak for the child.

Yes, I agree with you that the coroners' inquests have produced a lot of discussion in my ministry. Family law justice strategy meetings are going on, and you will note that the Attorney General is extremely concerned.

Senator Anne Cools: Well, this particular Attorney General is, and to his credit, he has been attempting to facilitate many advances.

I wonder if you could then wrap your mind around—

The Joint Chair (Senator Landon Pearson): Senator, please, you've taken more than your five minutes, and Ms. Caplan would like— We can come back to you for a second round if there's still time.

Ms. Caplan.

Ms. Elinor Caplan (Thornhill, Lib.): Yes, thank you very much.

• 0940

I would like you to address the issues that you raised about the siblings. Perhaps you could expand a little on what exists today, and what specific recommendations you might have for legislation that would give access to siblings.

Ms. Judy Finlay: At present, unless they're represented by the children's lawyer, children don't have a voice in the court proceedings. They aren't able to express their needs or desires to continue to have access to their parents, and sometimes that's left out. So we're recommending legislation that enables extended family members, siblings and grandparents, to have adequate access to one another. We're asking that this be in the legislation.

Ms. Elinor Caplan: How would you suggest that this would be enforced?

Ms. Judy Finlay: It would be enforced like present access agreements. It would be incorporated in present access agreements in an equal way.

When children are of an age when they can ask for access, they should be able to petition the court for access as well. So kids, for example those 12 and over, should be able to petition independently for access to siblings or grandparents.

Ms. Elinor Caplan: So in your proposal siblings and grandparents are treated equally as far as the access rights of the child are concerned?

Ms. Judy Finlay: Yes. I think that in provinces such as Manitoba, for example, grandparents do have access. They have a legislated right to access. Siblings don't. In no province I'm aware of do siblings have a right to access. So, yes, I'm seeing them equally.

Ms. Elinor Caplan: If there were an access provision in legislation for siblings and grandparents, would children be able to request assistance on that from Mr. McTavish's office?

Mr. Wilson McTavish: Well, for siblings, I think they do now. They are part of the family, and we don't represent just one child in the family. In 99.9% of the cases we represent them all. We're terribly concerned as one of the elements in making a decision of breaking up the siblings or spoiling them— So that answers that question.

The grandparents question is more difficult; it's more policy-oriented. As you know, grandparents do have the right under both the Divorce Act and the Ontario Children's Law Reform Act to apply, as may any persons. What is being discussed is that they have an automatic right to be before the court, rather than instituting the action themselves.

Ms. Elinor Caplan: I guess the concern I have has to do with the effect of having to go to court. You talked about the negative impact on the court experience with children. So I'm wondering whether or not the proposal would be positive or negative from the perspective of having enforcement through the courts.

Mr. Wilson McTavish: If it's going to help, I'm all for anything that will get a child the extended family and more people to help the child grow up, which is the toughest job in the world.

Ms. Elinor Caplan: Thank you very much.

The Joint Chair (Senator Landon Pearson): Dr. Bennett.

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

What we've been hearing is that probably 80%— and I guess the numbers are different —of divorce actions have been resolved on their own, and perhaps 20% end up in court, or in any sort of problem. I would assume that your office deals mainly with the ones in the latter category. What percentage of those would end up having a lawyer from your office assigned to the children?

Mr. Wilson McTavish: Well, that's an interesting question. Under the Courts of Justice Act I have full control over the caseload.

All three family courts ask by order. In the custody and access delivery, which is different from child protection, over the past year we have set up a new, quicker, and more efficient method of doing it. We have a form order and an intake form for each of the parents. I don't want to see affidavits, and I don't want to see pleadings. I want to see the parents writing to us directly about the tough issues they are facing.

• 0945

We will then decide. We are trying. We accept around 60% of the cases referred to us by the courts. I'm trying to improve that within our budget by focusing the dispute on issues, which sometimes is very difficult to do.

Ms. Carolyn Bennett: We keep hearing that there are three things operating on this issue: resources; education: and language, the language of custody.

With respect to resources, obviously if we're going to have a unified family court or mediators on site, or all of those, it's quite clear— I guess I'm even more worried now if you're only able to take 60% of the people who are referred to you.

My real question has to do with the fact that this may be a small percentage of the ones who ought to come. I mean, almost anything that goes to court should have some advocacy on behalf of the children.

If the best interests of the child are what this is all about, in a time of unlimited resources, in the best possible world, would somebody from your office have a look at all the cases that end up in court?

Mr. Wilson McTavish: Oh, yes, I do, and my colleague, Dena Moyal, does. We have an intake staff of four or five people who are constantly reviewing this and looking at cases every day.

Ms. Carolyn Bennett: We also hear that sometimes there are power differentials in terms of relationships. There are people who perhaps would rather switch than fight, and some of the resolutions of these cases are not in the best interests of the child. It's a monetary issue, it's some other way of just running out of energy.

If we actually were going to design a new system—

Mr. Wilson McTavish: May I comment on that?

Ms. Carolyn Bennett: Yes.

Mr. Wilson McTavish: I have a solution. You weren't here for my opening remarks, but I mentioned that one-fifth of my work is in property rights. And every settlement, whether in court or not, in property rights for a child must be approved by court order, or it's not enforceable against the child at law. That's a very important concept, because children at law cannot agree; only the court can.

In my opinion— and this may be difficult —all custody and access disputes should be approved by the court. Now, whether those cases are not before the court— Some people do not sue; they settle. Some people aren't married; they don't require a divorce. Some people have side deals, and they don't engage the system at all. But certainly for the ones that are before the court, I'm recommending— whether it happens or not, I don't know —that in the new family law rules being pulled together now every custody, access, and child protection dispute be approved by a judge.

Ms. Carolyn Bennett: And these are our new judges who are particularly interested in this area, right?

Mr. Wilson McTavish: That's correct.

Ms. Carolyn Bennett: They're sensitive to the issue?

Mr. Wilson McTavish: They're very sensitive, yes. Right now, if the parents agree we do not go on with the case in private custody and access disputes. However, in child protection disputes we will go on with the case if we disagree with the settlement the CAS has made with the parents. That's a big distinction between the public litigation and the private litigation.

Ms. Carolyn Bennett: One thing was interesting to me from the Quebec Bar. That was a question about the difficulty of your role. Usually when you retain a lawyer, they have to do what you think is best for you, or you get a new lawyer. You keep shopping for lawyers until they do what you ask. In the children's case, it's obviously a bit different, because sometimes you're being asked to do what's in the best interests of the child, even though—

Mr. Wilson McTavish: No, I'm not.

Ms. Carolyn Bennett: —the child may have an alcoholic parent he chooses to look after, or it is a situation where somebody else may decide that's not in the best interests of this child.

Maybe we don't have enough research to say that to take a kid away from the alcoholic parent they wanted to look after may actually have been the best thing for that child later on.

How does your office make the determination of what—

Mr. Wilson McTavish: You're mixing concepts.

Ms. Carolyn Bennett: Yes.

Mr. Wilson McTavish: As I said in my opening remarks, we are crown counsel. We have a special duty; children do not retain us. I obtain my jurisdiction from the judge under the Courts of Justice Act, and the relationship between me and the children is— by the order. That's the first point.

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Second, we do not represent the children's best interest; we represent the children's interest. You'd be surprised how some children want to be with the alcoholic parent.

The problem is, to what extent, under what control, under what conditions, what is the child care plan? Who's going to think that through, so that child does not lose whatever benefit that alcoholic parent displays?

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

Senator DeWare.

Senator Mabel M. DeWare (Moncton, PC): Thank you very much. I really appreciate your coming before the committee this morning.

I was going to speak to Ms. Finlay about the piece of legislation, but you've already answered, and I realize it was because I was on the wrong track. I thought you were trying to get us actually to legislate adequate access to children, but that was not what you were—

This committee was put together because of a divorce bill last year that dealt with support for children. During the hearings on that divorce bill, everyone who came before the committee wanted to talk about custody and access, especially access.

So we had to say sorry, that isn't what we're discussing. In the interim, the minister said yes, maybe we have to do this.

So custody came about because although they're paying child support, there are fathers and mothers in this country who are not allowed to have access to those children, for whatever reason. Sometimes they are taking the children out of the province or away, and because of the means of funding they aren't able to see their children. There are all kinds of reasons, and they want us to do something about that.

Now, I know every case is separate. You can't legislate access, but how do you make it right? How do we make the courts punish the person who will not give access, if a court order has been legislated? How do you do that?

Mr. Leslie Hinkson (Advocacy Officer, Office of Child and Family Service Advocacy): I'm not too sure if we can speak to the whole question of enforcement. That's a very difficult one. People in the field struggle with this all the time. Certainly we repeatedly hear about those complaints.

We're concerned about the issue that was raised earlier, the whole question of power differential. People, individuals, the child and parents, those who advocate on behalf of the child, should have an opportunity to go before the court and present their case with sufficient resources in a way that the court could make an informed decision with respect to best interests. That's as much as we could hope for.

All too often we hear people complaining that they don't have access to that process. This comes back to the issue that has been raised by Senator Bennett.

We're starting to look at that in a very serious way right now. This is with respect to providing some mechanism for people to really have access to the opportunity to present their case in a way that an informed legal decision could be made.

We're not too sure about the enforcement piece; that's a very difficult one.

Mr. Wilson McTavish: Senator, I only have two comments. The first is please don't criminalize, whatever the problem is. Second, the support provision should not be hooked onto the access problem.

Senator Mabel DeWare: No, they're two separate things.

Mr. Wilson McTavish: The children are saying that. They don't care whether the money is paid or not, and they don't want dad in jail, so let's not.

Senator Mabel DeWare: Well, in most of these cases support wasn't the problem. The support was being looked after, but after the support, the access wasn't being allowed.

I know the cases are individual, and it must be very difficult to deal with. And as you say, we first have to— Do you think resources— Here we go again: resources probably are the answer to this situation. Resources allow the people to come before— plead their case, and make sure that they're dealt with properly.

Ms. Judy Finlay: It's not just resources to come before the court.

As I was indicating earlier, it's very critical that there be early intervention at the point of family dissolution, and not just representation in court. Even independent representation for children in court is very important. But what's more important is to wrap resources around the child, in terms of having them understand and resolve the issues about the family breakdown. Then also have the parents understand what the children are going through as a result of the family breakdown, the conflict between the parents, or the lack of opportunity for access for both parents. As Wilson was saying, all children want access to both parents, and I believe for the most part all parents want what's in the best interest of their children.

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I think there has to be an integrated, coordinated system that includes the court as part of the system but not the only part of the system. Yes, we need a range, a continuum, a spectrum of resources.

Senator Mabel DeWare: From what we're hearing, it looks as if we're talking about information sessions first.

Ms. Judy Finlay: Yes, but if we're talking about the most contentious cases, information isn't going to be absorbed by these parents in such complete conflict. I'm talking about something more enforced. Mediation isn't going to work either because of the power differential. I'm talking about more of a conflict management kind of approach, where we also provide for the children therapeutic resources. They don't need to be part of the conflict management between the parents, but they need to let their parents know the impact that it's having on them and they need some resolution as well.

There are actually very good programs throughout the country that do exactly this.

I think the unified family court is a good idea; however, you have to build in the range of services. Not all unified family courts have the range of services that are required.

In London, Ontario, for example, there is a unified family court, and in London itself there's a wealth of resources geared to family violence and family breakdown and they bring those resources to bear on the unified family court. But if we go to Barrie, or to northern Saskatchewan or northern British Columbia, and we provide a unified family court without the range or continuum of services that are child centred and the range of opportunities to resolve the issues, including access, they won't work.

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

Senator Cools, you're back on the list now.

Senator Anne Cools: Thank you.

Mr. McTavish— and I'm going to shift ground a bit —you made the very profound point that at common law both parents have custody, but there's a section of the Divorce Act that says the judge may award custody. I wonder whether you could answer very quickly three things.

First, what is the legal process by which one parent or the other loses custody? It now rests upon a judge's decision—

Mr. Wilson McTavish: Do you want me to answer that right now?

Senator Anne Cools: As a matter of fact, it is the hub of the issue. As you know, marriage presupposes joint custody.

Mr. Wilson McTavish: It's when they disagree and bring it to the courts. The first second they bring it to the court, they are disagreeing.

Senator Anne Cools: But the interests of the state come in only when the state believes those two people can no longer decide what is in the best interests of the child.

Mr. Wilson McTavish: They are asking the judges to make a decision, not the state.

Senator Anne Cools: Well, in this instance the judge is the state's representative. You're cutting it a little bit. Anyway, that particular point is the hub of this entire issue and sooner or later we will get to it.

I have three questions.

First, what has your agency been doing about the epidemic of false allegations of sex abuse, usually, or physical abuse within child custody proceedings? That's the first question.

Two, what has your agency been doing about what we call in the new language parental alienation or prolonged chronic access denial?

Three, what is your agency doing about the what some people would describe as the less than proper responses of the law societies to address the question of the behaviours and the activities of certain lawyers?

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Those are the three questions.

Mr. Wilson McTavish: The last one I don't understand, Senator.

Senator Anne Cools: Okay.

Mr. Wilson McTavish: In response to the next one, on parental alienation, as you may know, we intervened in the Gordon v. Goertz case. The children's lawyer did.

Senator Anne Cools: Yes, I know you did.

Mr. Wilson McTavish: Our position was very clear. It's exactly what the Supreme Court of Canada held. We're not in favour of it, and what we are for is the child and what is best for that child in a very difficult situation.

As to an epidemic of false sexual abuse allegations, I think one is enough. We always look at affidavits very carefully, and we are encouraging in the new unified family court that affidavits be reduced, that these kinds of allegations not be allowed to come to the table, if possible. What we do want, though, is the duty to report. For any place there's smoke, there may be fire, and society, not only the court system, has the obligation to report to the children's aid societies any suspicion of abuse. That's the most important part of it.

I think I answered the legal process.

Senator Anne Cools: I'm very interested to note that the civil justice review, which was appointed by the previous government, echoes a lot of those concerns.

Mr. Wilson McTavish: Yes.

Senator Anne Cools: Thank you very much. I appreciate it.

Mr. Wilson McTavish: Thank you, Senator.

The Joint Chair (Senator Landon Pearson): Thank you very much. We've come to the end of our session. You've been extremely helpful. What I liked best of all, if I may say for the others who will be coming, is that your presentation at the beginning was short, so there was more time for people to ask questions. You've taught me some things. I'm delighted. I'm sure this has been the case for all of us. Thank you very much indeed.

Mr. Wilson McTavish: Thank you.

The Joint Chair (Senator Landon Pearson): We'll pause for a few minutes while we change the table of witnesses.

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The Joint Chair (Mr. Roger Gallaway (Sarnia—Lambton, Lib.)): Our next witnesses are the Easton Alliance for the Prevention of Family Violence; Mississauga Children's Rights; DADS Canada; and Human Equality Action and Resource Team.

Because of the number of you, I'm going to ask you to limit your comments, and we're looking for recommendations. I would ask that you be very, very brief; we'll say five minutes per group. I regret we have to make it that short, but there are a lot of very inquisitive members of Parliament and senators here, and we want to have as much time as possible to ask questions.

I would ask that Mr. Easton from Easton Alliance for the Prevention of Family Violence start.

Mr. Steven Easton (Managing Director, Easton Alliance for the Prevention of Family Violence): Good morning, honourable senators, honourable members of the House of Commons, ladies and gentlemen. Thank you for having me here today.

Twenty years ago, the term “domestic violence” was almost unheard of. Today the term is more widely understood. What we haven't heard is that domestic violence covers much broader ground than we have been told.

Our agency, to the best of my knowledge, is the only family violence prevention organization in Canada, providing support to abused men. We have therefore seen domestic violence as a larger, more complex social problem than our contemporaries in the field have. For this reason I am here today to offer this committee an insight into an untold aspect of domestic abuse and its impact on custody and access.

As was spoken of earlier, in any relationship between two or more people there exists a dynamic that may favour one person more than the others. Contrary to popular belief, women are not wholly without power in relationships. Men's power and women's power come from different aspects of our socialization. In general terms men's power is defined by career and their ability to provide for their families. Women, on the other hand, have been socialized to prepare for marriage and child rearing, and their power is based on family appropriation. Today, however, women are more career minded and men more family and child oriented. Now, not only is there a power in balance, but a confusion as to actually who has the power.

When women abuse men from this position of power, it often involves using the children as weapons against the husband. When the family breaks down, children are often used by abusive women as pawns in their power struggle. Often children who had loving relationships with their fathers suddenly turn against them or are denied access to them altogether. Powerlessness is about the removal of choice or the giving away of it.

“Breaking the cycle of violence” is a catch phrase used to acknowledge that family violence is cyclical and to emphasize the need to interrupt that cycle. Inter-generational transmission of family violence occurs when children live in an abusive home, witness abuse or are abused directly, grow up, have children of their own, and abuse their partner in the presence of their children or abuse their children.

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The children in this cycle will be 1,000 times more likely to repeat their parent's behaviour than a child from a non-abusive home. The need to break the cycle is obviously very important if we wish to end violence in our homes.

Male victims of family violence have had little social support, so they continue to be isolated from services that are ostensibly set up to assist all victims. Their victimization is further compounded by a sexist attitude in our society, which causes men to minimize their own experiences for fear of embarrassment at the mention of their abuse. Our society reinforces the notion that men must be strong, in control, and aggressive. Any man who falls short of these goals is not a real man. So in order to keep up the appearance of being strong and in control, abused men suffer their abuse in silence.

Our courts themselves have occasionally become unwitting accomplices in the abuse of individuals after the relationship has failed. Many times decisions made in family court are made without one party's knowledge, ex parte; radically alter a person's place of residence, their income, their access to the children, their ownership of personal property, and their parental authority; and are based on limited and sometimes unsupported allegations by one party against the other. This system of family law in Canada has, on occasion, been used for its power by abusive people to further their own agendas.

By way of example, if I'm married to a controlling woman and she didn't like my choices, she might employ a number of control tools to get me to comply. I might come home and find that I'm locked out of my house. I might find a gift from my mother smashed or pictures I had painted destroyed or perhaps photographs in my photo album ripped up. I might find that she is having an affair, or she might slap my face or pull my hair or scratch my arms. She might spend our money on things we don't need, putting us into bankruptcy, or she might take all the money out of our bank account and leave me penniless. If I have children, they might be asked to act as a mediator relaying her full messages, or my kids might be told how worthless I am and begin to turn against me.

If I decide to leave she might want to force me out. She might lie and make false statements, because she doesn't want people to know she was responsible for the demise of the relationship.

Is she then going to give me control over the court process? Will she give me reasonable access to my children? Will she deny me my access if the court decides to accede to my request for access? If I left her, she might even be angry and become vindictive. I might be accused of doing things to her and the kids I didn't do. She might try to claim that she was the victim all along and that it was I who was abusing her and the kids.

In court I will find a suspicious and unsympathetic judge, who will err on the side of caution and grant me supervised access, while my children grow up in the hands of the batterer. My children will then be abused, and the cycle of violence will continue.

Will I be angry? You bet I will.

Custody and access is about who has the power and control over the children of the marriage. Given to the wrong person, it will ruin the children and create a future generation of abusers, victims, and unhealthy people.

The Joint Chair (Mr. Roger Gallaway): I'm sorry to interrupt, but it has been five minutes. I wonder if you could wrap up now.

Mr. Steven Easton: I have a page and a half. Would that be acceptable?

The Joint Chair (Mr. Roger Gallaway): Okay, I'll tell you what. You make your recommendations.

Mr. Steven Easton: Our recommendation, based on the information provided, is that each province create one new department: the department of children and families. The department of children and families will oversee the activities of courts with jurisdiction over family law issues, domestic violence courts, children's aid societies and other child protection agencies, the family responsibilities office in Ontario and other support enforcement bodies, and the offices of the children's legal advocate and other children's lawyers.

In addition, we're recommending that each province create three new offices: the office of child and family research, the office of the family mediator, and the office of child and family services. These offices would be administered by the newly created department of children and families.

I know this is large in scope, so in the interim we've suggested several recommendations that would take place prior to this.

At present, family court pleadings require an attached financial statement. This should be expanded to include an attached parenting plan by both parties. This would ensure the judges have the opportunity to base decisions on the merits of each parent's ability to envision a structured parenting process for their children.

Joint custody or parenting should be considered the norm in separation and divorce. Where one party is seeking sole custody of the children, that party must provide the court with grounds to do so.

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Domestic abuse definitions should be broadened to include female perpetrated abuse against men and abuse in same-sex relationships.

Isolating a person from the family is already included in wife abuse literature as abuse. Access denial, which is essentially the same thing, should be included in that definition of child and spousal abuse.

I don't know how much longer you want me to go on. I have 25 recommendations, so—

The Joint Chair (Mr. Roger Gallaway): Okay. Those are part of the record. Thank you very much.

We'll move now. I regret we have to limit time, but we must.

From Mississauga Children's Rights is Mr. Wilson. Please proceed, Mr. Wilson. You have five minutes.

Mr. Grant Wilson (Mississauga Children's Rights): I'm here to speak about the enforcement of court orders.

There's been much concern in our society about the financial support issues. We have new support guidelines and new government agencies to collect financial support that cost tens of millions of dollars per year.

We have seen fathers going to jail because they don't pay. We have read that these fathers don't have the $10,000 in legal fees to go back to court to get a variation of the support order, because they are unemployed, bankrupt, on welfare, or have had a material change in circumstances.

Suffice to say, the tremendous cost for these parents to get variations of court orders when they become unemployed is the crisis that affects our children incredibly. Legal aid will not pay for these parents to obtain variations, and so fathers and children suffer.

Financial payments require the capacity to pay. Many loving, caring fathers can't pay what they've been ordered to pay. They don't have the capacity to pay.

I'm not here today to discuss financial support issues other than to emphasize that the capacity or lack of capacity to comply with these orders is an issue for support payers.

I am here today to discuss the capacity of parents, usually custodial mothers, to fulfil the court orders for visitation or residency with the other parent, usually the non-custodial father. The court orders for the children to be with each parent should be respected and enforced.

Currently there really is no enforcement. You can have the Supreme Court of Canada go out and order the children to be with the father, but the police aren't going to enforce it. I have extensive experience with the police. There is a very real problem in our society with visitation being cut off and court orders being violated. Angry custodial parents are abusing their children by placing them in the middle of the divorce fight, and the children suffer. These parents have the capacity to comply with the court ordered access or visitation order.

The anger problem is mainly with female custodial parents. Statistics show a very damaging picture for our children. Statistics in the United Kingdom state that a study was conducted by the Cheltenham Group, which surveyed 1,500 divorced and separated fathers. The respondents' statistics showed 41% of the fathers reported clinical stress, i.e., losing their jobs, seeing psychiatrists, etc. Ninety-nine percent wanted more contact with their children. Nearly half of the children have been cut off from all contact with their father within a three-year period.

The general household survey of the U.K. states the percentage of lone-parent households that are headed by mothers is 91%. Not much is different in Canada or the United States. I think the Canadian government should fund surveys of the fathers and mothers for the children's sake. The women's movement has a long history of research on women's issues. It's about time to fund and find out about fathers and children in Canada.

Children have the right to see a parent, as ordered by a court. We need some meaningful surveys about access and visitation denial.

A study of 400 divorced fathers in Indiana in 1987 states 31% of the fathers reported they had no access to their children in the last year. Thirty-three percent of the fathers reported the mother had currently left the state with the children. Sixty-eight percent of the fathers reported they had retained a lawyer. Of the fathers who had retained a lawyer, 37.9% were waiting for a hearing date to be set or had been denied a hearing of the issue. On the issue, 62.1% are granted a hearing. Of those granted a hearing, 27.2% reported the judge expressed sympathy for the problem and instructed the mother to obey the court order. Further, 43.2% stated that the judge appeared apathetic about the issue and instructed the lawyers to work something out, while 29.6% stated the judge appeared hostile toward them for bringing the issue to court. In the survey 100% stated the mother was not jailed for contempt of court, and 76.9% reported that the problem of access and visitation denial became more frequent after going to court on the issue.

Our children are suffering. We need some new laws.

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One such law you should examine is the Illinois Lawful Visitation Interference Law. In Illinois the state jails the parent who disobeys court orders for access and visitation. This law became effective on January 1, 1994. Section 5 of the criminal code of 1961, on lawful visitation interference, reads:

Every person who is in violation of visitation provisions of a court order relating to child custody or detains or conceals a child with the intent to deprive another person of his or her rights to visitation shall be guilty of unlawful visitation interference. A person committing unlawful visitation interference is guilty of a petty offence. However, a person violating this section after two prior convictions of unlawful visitation interference is guilty of a class A misdemeanour.

That means they're subject to jail time on a third offence.

Any law enforcement officer who has probable cause to believe the person has committed or is committing an act in violation of this section shall issue to that person a note to appear.

They're going to charge them.

It is an affirmative defence that a person or lawful custodian committed the act to protect the child from imminent physical harm, provided that the defendant's belief that there was physical harm imminent was reasonable and the defendant's conduct in withholding visitation rights was a reasonable response to the harm believed imminent. It is an affirmative defence that the act was committed with the mutual consent of all parties having a right to custody and visitation of the child, or it is an affirmative defence that the act was otherwise authorized by law.

A person convicted of unlawful visitation interference shall not be subject to a civil contempt citation for the same conduct for violating visitation provisions of a court order issued under the Illinois Marriage and Dissolution of Marriage Act.

I can't stress enough that if you don't have enforcement, you can have all the orders you want, all the laws you want, but they mean nothing.

The Joint Chair (Mr. Roger Gallaway): Mr. Wilson, your five minutes are up. Can you get to your recommendations, please?

Mr. Grant Wilson: That was the first law. The second law has to do with a federal child-parent relationship unlawful interference law. It's all of a page and a half. Would you like to hear it?

The Joint Chair (Mr. Roger Gallaway): Perhaps you can summarize it, as opposed to reading it.

Mr. Grant Wilson: Basically it says that if there's no court order for a parent to move, they can't move, and that we should support the child's relationship and the community they're in, which the parents thought was the best situation for them before they separated.

What it amounts to is that we have to eliminate the problem by which a parent can move anywhere they want across Canada and not have any enforcement of visitation or access. They can totally cut off access from a non-custodial parent. It will take years to go through the court system. They will fight over jurisdiction, and the children won't even know the non-custodial parent after the two-year fight is over.

I propose that federally— and this is what the police have advised me in my conversations with them —you have an enforceable law so that if a parent moves without the consent of the other parent, this will go before the court. It's a criminal offence, the police are going to apprehend the parent, charge them with the crime, and the parent and the children are going to be brought back to Ontario for the purpose of fighting this. They'll then have the children go to the non-custodial parent for a statutory period of one week or whatever. This would then have to be heard before a court, so it can't be drawn out. The person's going to be charged with a crime, and there's going to be some due process of law. There isn't now.

We currently have motions in general division to hear these matters. It might take up to 45 minutes, and there are no witnesses, no transcripts, no due process of law. It's somewhat ridiculous to say this is meaningful enforcement of these orders.

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

Now from DADS Canada we have Stacy Robb.

Ms. Pauline Green (Counsel, DADS Canada): Good morning.

The Joint Chair (Mr. Roger Gallaway): Good morning. Before you start, I'm sorry, but I'm going to have to cut you off in five minutes if we're going to get through this.

Ms. Pauline Green: That's all right. I've endeavoured to cut down my presentation a little bit.

I'm a family law lawyer, practising in Toronto. I'm also on the board of directors of DADS Canada. I'll let my cohort Stacy say a few words about DADS later on.

Parents have responsibilities to children, not just the right to have them in their custody or to spend time with them. Parents need to be encouraged or maybe required to go to school meetings, religious services, and medical appointments with children.

Joint parenting must be the norm, and sole custody must be the exception.

Marriage preparation courses are now almost mandatory in many religious weddings. Separation counselling or courses ought to be the norm for separating couples with problems with children. Separating couples can be encouraged to live closer together so that weekday visits can be more accessible, and they can be encouraged to go to activities involving the children after school.

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Professionals dealing with children— doctors, schools —must be educated so that the rights of the non-custodial access parent can be enforced. I've had problems with schools saying they can't give information. The Children's Law Reform Act makes that quite clear, but the schools don't seem to know it.

In a recent case where a father and mother had joint custody, the mother was able to change the child's religion. No one in the church checked with the father at all, and the child went forward to receive first holy communion. The father had to go along, because there was nothing much he could do. The child would then have been disappointed in celebrating what he had been brought up to believe was a big day in his life.

Many female clients take it for granted that they're going to get custody of the children, and they're going to regulate the amount of time the father spends with the child. This is not right. There is gender bias in the system. Many fathers are becoming more involved with their children.

There was a headline in the paper this morning about more fathers staying home with their children. In my practice over the last few years I've met some very fine fathers. Sometimes the mothers aren't as loving and caring, but they get custody, because that's what is expected.

Where there has been violence or harassment, it's more often towards a spouse than toward the children, and I know there's research that indicates that violence towards spouses impacts on the children. But I think we need to look at more supervised access, and different kinds of supervised access.

The supervisors must be trained in some way, even if they're friends or neighbours. They need some training on what to do, and there are different kinds of supervision. First, the non-custodial parent may not return the children on time. Only minimum supervision is needed for that. Second, if the father or non-access parent is perceived to be some kind of danger to the child— and I don't mean someone who is beating the child severely, or putting the child in absolute danger —a little closer supervision is needed for that.

Where there are problems about the parties not getting along, fighting, then a pick-up and drop-off access point is all that is needed.

I get lots of complaints, for example, that the father doesn't know how to care for the children. Well, neither do most new parents, and they're not required to take courses, nor are they stopped from taking care of their new-born children. There's no law providing that they have to take a parenting course.

The non-custodial parent can take a parenting course. There can be minimal and limited supervision to make sure that the father knows how to diaper, and doesn't drop the child, etc. With a small child, there's not going to be a prolonged visit in any event.

Custody enforcement is not a problem; access enforcement is. Police won't enforce the access orders, even if they are fairly specific. You get conflicting orders from the chief of police, police services boards, or whatever. We need other methods to enforce access, and it doesn't necessarily have to be jail terms.

I would like to turn the presentation over now to Stacy Robb, my cohort in DADS.

Mr. Stacy Robb (President, DADS Canada): Good morning. Thank you for having me. I'll be very brief, because I know you're pressed for time.

We would recommend that as a punishment, rather than having a person jailed, they be required to take classes on the effect of parental alienation syndrome on their children; and on a second offence, they be sentenced to perform community service so the community can benefit from some of the time that is being taken up by the courts; on a third offence, perhaps a shortened jail time; and on a fourth offence, change the custody order so that the offending party loses the custody. That would be one thing.

I would suggest that perhaps it may be time to look at a ministry of family affairs, and to get this matter out of our current court structure. Our current court structure is an adversarial body. It doesn't work. It's a $3,000 motion record. There are 28 pages in here of an assessment report where the assessor lied. The rest of the document, containing other expert evidence, proves that what's been stated here by the assessor is lies, and it isn't worth the paper it is written on.

That's the kind of thing you run into when you get into an adversarial system. You end up spending years trying to prove who is lying and who is telling the truth. By the time it's all said and done, the non-custodial parent ends up not knowing their children.

• 1030

So those are things we would be looking at, unsubstantiated allegations that end up coming out proven false. There needs to be something done about it, perhaps jail time.

But even more importantly, within our rules, and with respect to how family law integrates with the Criminal Code, there ought to be something there so that if a person is convicted of criminal harassment, for example, and they have absolute proof that in fact they were set up by the other spouse, they should be able to go in there, and get that conviction wiped out. That doesn't happen right now either.

Since you are pressed for time, I would just like to close this off with one other statement.

I have an affidavit in this binder. It is about an attempt from a social worker, employed by the CAS, to contaminate medical evidence and, in this particular case, to keep the child in the abuser's home. So it definitely is appropriate that we change the structure of how our family law system works.

I have many more things I could comment on; however, we are not funded. Hopefully before your inquiry is wrapped up, we will be able to send you a more in-depth analysis of how we feel such a structure could work.

Thank you very much for your time.

The Joint Chair (Mr. Roger Gallaway): It's a pleasure, Mr. Robb.

Now we have Mr. Windsor from Human Equality Action and Resource Team.

Mr. Butch Windsor (President, Human Equality Action and Resource Team): Good morning, co-chairs and members of the committee. I am chairman of the Toronto-based group HEART, the Human Equality Action and Resource Team. We work with non-custodial parents, usually fathers and grandparents.

I wish to present information regarding the issue of child abuse allegations, as they relate to divorce and custody. Probably the most obvious remark I could make, for anyone involved in this unfortunate area of law, is that there are no easy answers about sexual abuse.

The question of sexual abuse has produced two opposing stands that will never give in to the other. There is one side, which believes that abuse is everywhere, and the other, which believes we've gone overboard with the idea of finding abuse everywhere.

In A Canadian Perspective on Child Sexual Abuse: Accusations in the Gender War, Brian Hindmarch said that the extreme position many radical feminists take has resulted in unprecedented conflict between men and women. This phenomenon must be understood when examining the present child sexual abuse hysteria.

This conflict between men and women is clearly seen in custody access issues when false allegations of sexual abuse arrive in the conflicts. Complicating the situation is the influence of radical feminism in behavioural science.

The polarization of the sexes has produced biased research and theory, which is then used to support social policy and practice, especially in the area of sexual abuse.

Today, with 60% of the population divorcing, and 40% of the divorces containing child sexual abuse allegations, we need to re-examine what the liberalization of divorce has created.

Those most likely to support the findings of child abuse everywhere, and support mothers, are most likely to be the professionals— and I put a question mark after that —who profit most on the backs of damaged individuals.

Individuals damaged because of allegations of sexual abuse will most likely mean the immediate loss of contact with your children, alienation from the outside world because of the time and financial commitments to the proceedings, and a period of depression while one figures out what hit them.

Those who most support the position of too much abuse being claimed, and the positions of fathers, are from a group who have nothing to do with the divorce industry. Individuals like Yuille at the University of British Columbia, Cice at Cornell University, and Goodyear-Smith in New Zealand have started out looking at the issue of memory in children. They have found that the suggestibility of children is manipulated by so-called professionals who provide leading questions, or who position the children into admission of abuse where it never occurred.

The Yuilles and Cices of the world are being attacked by the organizations that should most value their studies. The investigation starts with an idea, not a conclusion, as in the other side's agenda. They do research that results in conclusions, which they admit must result in further examination to understand how the conclusions affect the issue they examined. This is done while the other side manipulates the data to reach the conclusions they started with, and where necessary, definitions are changed so the conclusion is more dramatic and self-promoting of the political stand intended to be promoted in their study.

As an example, Faller, from the University of Michigan, suggests that fathers commit sexual abuse of children because of divorce, and they have no one to monitor them while they have their children. Her studies are often from samplings from her clinic, which is notorious for finding sexual abuse. This is similar to the clinics in Alberta where six of seven psychologists were investigated by the profession, and the clinic eventually closed over the findings of sexual abuse in all cases.

To disprove the abuse allegation in findings of individuals leads to considerable costs, and is often out of the financial reach of those most often accused. This means long periods of separation from children, which results in a status quo being established, and custody for the parent who makes the allegation.

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No one has begun to look at the cost of such actions to the children. No one has looked at the destruction the children experience through the loss of a good parent to a lesser parent.

Child abuse allegations in divorce and custody expanded during the period of American history when joint custody and shared parenting were introduced in the courtroom. This is one of the means whereby a vindictive parent could break up the sharing of the children between the parents. It has become the weapon of choice in cases where it is more important to destroy a parent than it is to ensure the well-being of the children.

It was best explained to me that where a judge can pinpoint an advantage of power to the male, he will right the situation by giving the female everything. This has resulted in fathers being removed from the child's life where the father fights to gain custody. Judges often perceive this as a power advantage, because of the perception he or she holds of a father having an economic advantage.

Sexual abuse allegations are now being investigated by the same individuals who are most under attack.

The Joint Chair (Mr. Roger Gallaway): Mr. Windsor, I wonder if you could move on to your recommendations, please.

Mr. Butch Windsor: Sure I could.

Judges are out of touch with society; that is my second recommendation.

I'll go back to the first. The issue of custody and access has to be removed from the courtroom because of the unwillingness of judges to live up to their obligations to find the truth in cases.

The best interests of the children is the last issue a judge talks about. This only gets mentioned, because it is the one issue a judge can hang his hat on without being criticized for his or her findings. In many cases the child is never mentioned as having an interest or a need.

The third recommendation is that court proceedings, if they should continue, be videotaped to prevent judges who claim fathers are wallets, and mothers caregivers.

My first recommendation is that the presumption of a joint custody has to be instituted in our laws, notwithstanding the objections. Abuse allegations will certainly climb following this change, but the real experts in the field have to be supported, not agencies or organizations whose political agenda is well established, and well funded at present by government.

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

Finally, we have Mr. Kerton from Justice for Children for five minutes.

Mr. Dale Kerton (Justice for Children): Good morning. I am from Justice for Children in London, Ontario. Thank you for the privilege of allowing me to speak here today. I have edited three-quarters of the paperwork to cut it down to the basics of what I want to speak about.

Divorce and custody are not criminal acts, and should not be in criminal courts. We finally got them moved into a family court situation, and I think that was a positive step. We still have to go further to get them out of the court system into something that is a little less monitored by criminal law.

Section 16 of the Divorce Act has ten basic points, and it covers everything that is necessary for the custody of children. I find that it worked quite well, and if it was properly implemented, it would still have been working quite well without the initiation of the new Family Law Act and unified family courts.

The breakdown of the system is in the integrity of the lawyers and the willingness of the judges to perpetuate the financial gains of their fraternity. Judges in London, Ontario, consistently alter the rules to create more appearances in court. Lawyers create situations to stimulate conflict to earn more billable hours.

Judges' endorsements are not easily interpreted, and often unreadable and illegible. Again, you have to go back to the courthouse for interpretations. Most of this useless activity ends up in how we get to being called deadbeat parents.

What must be done immediately? In my opinion, I think the judges should be instructed to make the rules work, instead of using the rules to make more work, and create employment.

Judges must be counselled on how to assist unrepresented litigants, as the numbers of unrepresented litigants are growing, and they're getting more frustrated. Judges must be trained to treat them more fairly, and to see that their family needs are met.

Thirdly, I think there should be an instruction to judges to require both parties to be present at the proceedings in court. I would think this would serve to start the mediation process for a dispute.

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If both parties were brought into the courtroom, they would see that neither party wants to be in this situation. They would quite quickly realize that mediation would probably resolve most of their problems, and they would head back towards it, rather than fighting the fact that it's not mandatory.

I would expect that it would clog up the courts for a short period of time, but it would be a quick education for the litigants who would want to remove themselves from the system as quickly as possible after a few days of sitting in the courtroom.

In my experience, most of the time only one of the litigants is present, and the other person sends in their assistant or their lawyer. They don't get a true feeling of what's going on with the system and the children's needs.

To conclude, I think we must move swiftly to have the authorities in the system educated to make it work. Thank you.

The Joint Chair (Mr. Roger Gallaway): Thank you very much, and it was under time.

We'll start with questions. Mr. Lowther.

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

I want to applaud all the presenters here today. I just have one concern I'd first address to the committee. That is, we have five groups trying to present here, and for the previous presenters we had two groups, and they had a full hour. I think it's unfair for these presenters to take a full presentation they've all prepared and try to squeeze it into five minutes, when we gave the previous group a full hour.

Voices: Hear, hear!

Mr. Eric Lowther: These are the people who are on the front lines. They're experiencing this issue. They're coming here on their own dollar.

The people we had before are paid to be here. It particularly perturbs me that we as a committee would set these people up in this way.

I will move on to my questions. I will speak to the clerk and the rest of the people here, and suggest that we correct this situation when going forward.

As far as some of the comments you brought forward, I'd like to ask for some specifics. I think you did give us some, but I'd like some clarification.

First, on the issue of access— At the end of the day, when you boil all this down, we can talk about joint parenting, and a lot of other good things, but if people don't get access, joint parenting or not, it still doesn't work. So I'm curious to hear from the groups in those situations where— And let me just back up a little. The previous group we had here had some lawyers involved. They recognized that joint parenting was important, and the courts rule on somebody having access. But they had no direction at all as to what to do about it when no one respected the court order.

These are the lawyers telling us they don't know what to do when no one respects the court order, but they don't want to criminalize it. So this is amazing to me.

I would ask you people here to give us some of your thoughts on what should happen when the court has ruled in the best interest of the child, which is our mantra on this committee. Unfortunately, we all have a different idea of what that means, but— in the best interests of the child, who supposedly is having access to both parents. One parent, however, continually refuses to honour that access court decision for the children to get access to the other parent. What are the recommendations in your brief?

Mr. Butch Windsor: I would speak to the section of the Divorce Act involving orders of custody, and item 10 of section 16:

In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child—

For that purpose, thou shalt take into consideration the willingness of the person to whom custody is given to facilitate such contact. That's a very simple interpretation, and it works. If it is enforced, very simply the person who is given custody in most cases turns into a dictator.

Mr. Eric Lowther: Let's just speak to the enforcement piece. The recommendations are fine, but I want to know how we enforce it. We've had suggestions of incarceration in jail, switching custody, taking away driver's licences, all kinds of things.

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We have great ways to enforce the support side of things, but we seem to be stalling on ideas on how to enforce the access side of things in the best interests of the child. You know, I'd be interested to know your opinions on how we enforce— in the better interest of the child.

Mr. Butch Windsor: In this particular case, and in many of the cases I've been involved with, I think the best interest is to reverse custody, and that's it.

Mr. Eric Lowther: Thank you.

Mr. Grant Wilson: I think that basically we need a separate area in which to resolve this problem. I think you'll learn over time that taking away driver's licences and throwing people in jail to enforce support orders aren't working, and they won't work any other way either.

The problem you have is that there is a perception among the professionals who are most responsible for making and correcting the problems, and they haven't taken accountability for that responsibility. You know, they all sit back and say it's the parents fighting. But boy, I'll tell you, when the judges, the police, and the others— the social workers and psychologists —are involved, and they make a mockery of it, it's going to drive the parents crazy. That's why they fight. If the professionals did their job, we wouldn't be in the situation. They don't, and I don't think they can ever come to this table and say they do.

Mr. Steven Easton: I think you have to have the federal government declare that fathers count. I don't know if you're aware of it, but there's a bill before the U.S. Congress now, in March 1998. It's called the Fathers Count Bill of 1998. They're asking for $1.9 billion to go to assist fathers.

Maybe you should look at these things. If I had more than five minutes, I would have happily gone over this.

If you don't have enforcement, you have a useless court order. I've worked with probably 50 parents going to the police force in the Peel region, York, Hamilton— Wentworth, all sorts of parents. What it amounts to is that there is no enforcement.

The police are very sympathetic, but we all need to know what the laws are regarding this right now, and the only law in Ontario— There are only two that really apply. One of them provides that if you have a court order, the police are to enforce this court order in an Ontario court order.

It means that the police are to go out, stand by, and keep the peace. That does nothing for the child. It just creates more conflict. It gives parents a false hope that there's some kind of law out there.

If you survey the general public, you're going to find that most people already thought there was some kind of criminal offence you were committing by not turning the child over according to a court order. There isn't.

Mr. Eric Lowther: The main thrust in what you're saying is an underlying understanding of the importance of fathers, the perception that fathers count, and that will lead us towards better enforcement of the access. Right?

Mr. Steven Easton: Yes. There's no instrument of enforcement right now. So it doesn't matter what laws you come out with, or what arrangements you have. The children can be used as a weapon, and they can be taken out of the province. It doesn't really matter.

If there's no enforcement— In situations where that's happened, where there has been enforcement in the States, you find that people don't use the children as pawns. The children don't suffer this, and they have a continued relationship with both parents, as ordered by a court.

Mr. Eric Lowther: Good, thanks, Mr. Wilson.

Can we carry on at the end of the table, Mr. Chair?

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

Mr. Eric Lowther: Thank you.

Mr. Steven Easton: If I understand things correctly, laws are about setting social boundaries on people's behaviour.

Recently we've had a lot of progress with regard to domestic violence, in setting boundaries on people's behaviour, and laws have been applied to that. I think that the same thing needs to apply in domestic situations where there's been a breakdown. You know, if access is going to be enforced, as some of the other gentlemen have said, there needs to be some sort of boundary-setting with respect to another person's behaviour when they deny access. If that means some sort of legislation is brought into effect that ostensibly puts the person in jail— perhaps for a day —fines the individual, that's something that perhaps needs to be worked out by another panel. But some form of social boundary needs to be set in this area to say this is inappropriate behaviour, it's unacceptable, and we're not going to tolerate it.

Similar zero-tolerance laws are in effect in regard to domestic violence.

Mr. Eric Lowther: So you're saying some consequence is better than what we have right now, which is of no consequence?

Mr. Steven Easton: Well, if we don't set consequences for people's behaviour, we'll have all kinds of social problems. Laws are created to create a set of harmony within our society.

Mr. Stacy Robb: I covered that briefly when I spoke earlier. I would be suggesting that classes on parental alienation syndrome would be the first stage in a punishment sector. It could start when an officer is called to enforce a court order, or access is denied. The police authorities could very easily summon that person to court to explain themselves. The first punishment would be set out as three days of classes on parental alienation. That way you would be giving some education to the offending party.

• 1050

On the second offence, make the offender put some work into his community. If you take that person's time and send him to work at one of our hospitals, perhaps, or one of our centres with problem children, I think he'd get the point pretty quickly.

On the third offence, it would be jail. The shift in custody would be the next route to go, because you certainly don't want to have a situation where the child is being moved from one house to the other each time somebody denies contact. I think there should be a progressive form like that. Then at least both parties would be aware that if they don't play by the rules they will be punished.

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

Ms. Caplan.

Ms. Elinor Caplan: Thank you very much.

I would ask the gentleman who says he has documentation to leave it with us. Give it to the clerk before you leave today.

I'm particularly interested in some of the existing laws that have taken place, not only across North America and the United States but in other jurisdictions, and what the outcomes of those laws have been, whether you have deterrents or whether, as you've heard, they're not working.

I take some issue with my colleague in that I don't think there is anyone sitting on this panel today who doesn't believe it's in the best interest of the child to have access to two loving nurturing parents, and to nurturing grandparents and siblings, which will give a sense of security to the child. Of course the qualification there is loving and nurturing. Often when we have a divorce situation the child becomes the battleground between two people who are angry.

I would like to see something that would encourage the kind of mediation in the child's interest that would result in the goal of access to nurturing and loving individuals— parents, grandparents, and siblings. We have to look at our laws to see what the result of that will be. If, as I've heard, the support laws are not working, we don't want to make the same mistakes when it comes to access.

I would like to know if you have any research from other jurisdictions around the world, particularly studies on what the effect has been. I believe in Florida, for example, on the support side it has incarceration for non-payment of support. I don't know whether it has anything corresponding on the access side, but my understanding is it's moderately effective.

I'd be interested in anything you have. If any of the presenters would like to take a few minutes to talk about any research they have, we certainly want to deter the kind of inappropriate and damaging behaviour to the child, and therefore set up incentives that will result in the goal I mentioned.

The Joint Chair (Mr. Roger Gallaway): Do you want to say something, Mr. Easton?

Mr. Steven Easton: I don't have any research, unfortunately, because our area has been specializing in domestic abuse, and this is particularly as a parameter of that abuse. I think it's important.

To be honest with you, most jurisdictions are facing the same crisis we're facing here. It's a universal problem. There may be little research that we can scrape up to be able to offer. However, I think it's important that we create some research of our own because there is a jurisdiction here; we've identified a problem. In doing so, I think it's important for this constituency to understand what the complexities of these issues are.

In doing that, we need to have research based in Canada. We need to have research based in Toronto, Winnipeg, and various other sites throughout North America and Canada, particularly, to identify how things have progressed, what kinds of changes have been made, what is successful and what is not.

Ms. Elinor Caplan: Do you think it would be helpful to look around the world at the other experiences to guide us in the development of legislation and then monitor that legislation with the kind of research you talk about?

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Mr. Steven Easton: Absolutely. Basically what we're doing here is investigating the personal aspects, but there is a research component that's important to look at as well. I definitely think that if we look at what other jurisdictions are doing, we can find some helpful scenarios, and perhaps even contact some of those other groups or agencies, perhaps, that are on the front line there, to find out the impact has had on their constituents.

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

Mr. Butch Windsor: I think the real question here is the question of leadership.

If you look at the government in the two studies they conducted— one on the custody and access issue, one on support —there was no beating around the bush with the support issues. The government came out with a very clear report. The custody and access issues made some very fine recommendations, and the government report that came out as a result of that study was so wishy-washy. It pitted men against women continually.

The study done by Judith Ryan made some recommendations and investigated the legislation around the world. They looked at Florida, and I think it was Massachusetts. They looked at Washington State, and they looked at Britain.

In the State of Washington, the shared-parenting concept had been introduced. The main issues there were that they took it out of the courtroom to a great extent by having training classes, by removing the issue of status quo, which is done the day you separate. Whether you believe it or not, judges' orders reflect what the status quo is the day you appear in court, and in about 95% of the cases, it continues until the day that the final decision is issued.

So you have recommendations. You have the studies. You haven't looked at them.

Ms. Elinor Caplan: I guess what I'm asking is, since the time that research and the study have been done, have we looked at what the outcomes of the legislation were that were in place at that period of time? Because what I've heard you and others say is that very often the best intentions of that legislation have not given the results that legislators had hoped for when they put it in place.

Mr. Butch Windsor: Well, my concern is that more legislation doesn't actually solve the problems. I mean, if you're looking at the issue of enforcement, you're going to make a police officer a lawyer, because he's going to have to read so much text to understand, and he's going to wash his hands of it, which is what he's done now. It needs to be very simple and very clear. We shouldn't be making lawyers out of everybody who's involved in this process. That's what has to be done well.

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

Senator Cohen.

Senator Erminie Cohen (New Brunswick, PC): Thank you.

I'm glad you made that statement, because I don't want you to make a lawyer out of me, either.

A few questions I wanted to pose. In listening to your cases, it is obvious that there's a great lack of research, and it's not only with your groups, but it's with all groups involved in the whole Divorce Act. We've been asking for research, and it's not available, or they're just going to start working on it, so I think it's admirable that you go ahead.

I echo my colleague Ms. Caplan's remarks when I say there isn't anyone around this table who doesn't believe a father is as important as a mother in raising a child, and I think the Divorce Act is balanced toward the woman, rather than the man.

One of you said the custodial parent usually acts as a dictator, and that anger usually rests with the custodial parent, and that's why visits are denied, and that children are used as weapons against husbands. I'm sure there are cases that reflect that. I'm sure all cases don't, but this one does.

In any of your research, or the reality you're living, have any of you used something like conflict management before the war started? Have you used early intervention— you know, any of the resource areas that are available —so that it didn't come to this impasse?

Mr. Butch Windsor: Probably the best example I can give you— and I use this all the time when people come to our organization —is that those couples I was able to get to mediation before they went to court haven't been to court yet. They stay away from the court process. They stay away from the anger that builds in the court process, and they've been able to manage with the recommendations that they put together with the mediator. All the other cases go on for years. I don't think you could find a person here who hasn't been in it at least almost ten years.

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Senator Erminie Cohen: Until the mediation is accepted.

Mr. Butch Windsor: Before they get to court.

Senator Erminie Cohen: Before, at the beginning.

Mr. Butch Windsor: Yes.

Mr. Stacy Robb: If you can get mediation before one party or the other side talks to a lawyer, you'll get good results. That's what I find and contend. We've had this happen where a couple has come and said they would like to do a divorce, they would like to do a separation agreement, and we'll go ahead and initiate the paperwork. We tell them straight out that if they get involved with the court system, it's going to cost their child their education. And if we can get them to realize how much the cost factor is, we'll get results. Other than that—

Mr. Dale Kerton: It was my experience personally that I tried all the rules to get to mediation, but the other person, not needing to cooperate or not being advised to cooperate, knowing that they could accomplish a lot more by going through the system, chose to take the system and were very successful by it. The object is of course to get to the mediation process before you go to a lawyer, and with some luck you'll probably be successful.

Senator Erminie Cohen: I have one additional question. My main concern is about fathers who don't have the means to help out financially because they've lost a job or because of the circumstances they're living in. How can poor fathers use the courts to help them have their access orders enforced when they can't afford a lawyer and they can't afford some of the resource areas, and what if he lives in a bachelor apartment?

Mr. Steven Easton: The problem is that when you're looking at a civil approach to this it means tens of thousands of dollars are going to be spent on lawyers to fund the family law industry. It means that a father has to go back by himself instead of our society recognizing that this should be done.

By making it a criminal offence, it means that the police can be involved. The police have told me that they will not be involved with civil matters. There are very limited laws, such as the Children's Law Reform Act, section 36.2, that affect the police. By making it a criminal matter, it has now become an issue for society, a form of child abuse and a form of abduction— and that's what it really is.

So if you people decide that's what it is and our society says that we're recognizing that need for the children to be with their father or mother as the case may be— but usually it affects the non-custodial parent, which, overwhelmingly, is the father —it shouldn't be up to parents to go back and spend tens of thousands of dollars trying to enforce this.

We have a gentleman sitting here today in the audience who went back 30 times, 30 times, without a judge doing anything. This made the front page of the Toronto Sun when finally the woman went to jail for two days. Since then she has thumbed her nose in court. If you look at the transcripts, she blatantly said to the judge, “He's never going to see the child”. She did this openly in court. This is the kind of thing you can see. Read the transcripts. We'll give them to you. This contempt is unbelievable. We wouldn't settle for this with any other area of the law. It's like it's sacred. Whatever mom says goes, and we really shouldn't disturb this, no matter what she does to thumb her nose at society or to damage these children.

The Joint Chair (Mr. Roger Gallaway): Thank you. Now for the last response.

Mr. Butch Windsor: I want to get to the answer for your question about the one bedroom. Today there are tough economic times. Families make tough choices. We have to educate the fathers who come into our organization that what was commonplace as a family, they cannot do as a single parent.

If you're in Toronto, go to the apartment buildings and see how many families are living in one-bedroom apartments with three or four kids, but make that person divorced and the father is no longer allowed to do it. What's happening to our thinking? How have we evolved from our knowing that both parents are needed for the child to the decision-making process that we've come to today in the courts?

Senator Erminie Cohen: Thank you. I wanted that answer on the record. Thank you very much.

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

[Translation]

Ms. St-Hilaire.

Ms. Caroline St-Hilaire (Longueuil, BQ): I would like to begin by thanking all the witnesses for their presentations. Concerning the suggestions from my colleague Ms. Cohen, I would like to ask Messrs. Robb and Wilson to send us copies of their submissions if possible.

You raised a number of questions and talked about abused men. If there are any statistics on abused men, actual figures or percentages, I would like to see them.

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You talked about dismantling the courts. What do you suggest as an alternative? Of course there's mediation, but when there's conflict, what happens if the courts are gone?

Mr. Easton, you recommended creation of a Department of Children and Families. How can that help abused men?

[English]

The Joint Chair (Mr. Roger Gallaway): Thank you. In no particular order, we'll go to Mr. Easton.

Mr. Steven Easton: I'm sorry, I didn't catch all of your dialogue until I put the headphones on. However, I guess one of the questions when I did put the headphones on was about the stats on domestic violence against men.

Ms. Caroline St-Hilaire: Yes.

Mr. Steven Easton: Our research comes from many different empirical sources, usually university studies conducted on a random sample of different populations. Those studies were at the University of Calgary, University of Winnipeg, University of North Carolina, and University of South Carolina.

A number of different sites in North America have provided figures that quite frankly are surprising. Much of the domestic violence literature that we knew of up to now indicated that there was a 95% abuse rate toward women and a 5% abuse rate toward men, but these studies conflict with that. These studies indicate that in domestic violence situations it's equal. In the same types of situations, even if you look at different family structures, such as same-sex families, the same statistics occur.

So what it's really telling us from the social surveys we've been able to analyse up to this point is that as human beings we're all equally capable of abusing one another. It just requires the right motivation.

It depends on where you get your statistics. But I find that the most reliable statistics are generally the random samples of populations. We have different polls that are used during elections because they're usually fairly reflective of the society that we live in to within a percentage point or so. All of these studies indicate about a 1:5 ratio of domestic violence in the home, with about 50% of the domestic violence happening toward men and 50% toward women.

Ms. Pauline Green: With regard to removing the family law from the courts, we're just starting a commission in Ontario that handles the Landlord and Tenant Act. The people who are going to be heading that up are going to be specially trained in landlord and tenant law.

We could think about doing something similar and put mediators and social workers into the process and make it a more meditative process rather than an adversarial one. We could build in education.

As a lawyer, I have seen the same sort of thing that other people have seen. Where you can get people to mediation or counselling before they get to the lawyers, you have a much better chance of having people work things out between themselves and not have a long, drawn-out fight that involves and hurts the children.

Mr. Stacy Robb: We were also in a newspaper article in the Ottawa Citizen some time ago. A law professor in the Ottawa Valley area— I don't remember her name —suggested that you needed an accountant, a psychologist to help work out the details, and a judge only to make the order final.

Mr. Grant Wilson: I am a victim of domestic violence. After we split, up my ex-wife broke into my house. I was assaulted in a bloody battle. She was convicted of assaulting me. She received no sentence, by the way. My tooth was damaged. My face was bleeding from the nose and on the cheek. My wrist was cut. I was badly bruised all over. The police came and took her out of my house. This was three weeks after my fiancée moved in with me and the children.

She's much smaller than I am, and I used a very minimal amount of force to try to subdue her. It's very difficult to explain to people that this happened, because many people say that because I played college football and hockey, I could destroy this woman. They said that a couple of shots to her face could probably rearrange her face permanently for the rest of her life.

So why is it that somebody does this? Well, they can get angry enough to do this. She knew that I probably would use a minimum of force. She was totally outraged, and broke into the house.

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I have studied these issues because of my own personal interest and I would like to bring to your attention a very brief article which appeared in the Journal of the American Medical Association on August 27, 1997. The article is about battered men. They believe, according to the study, that based on the index of spousal abuse, 19% of the women patients and 20% of the men had experienced recent physical domestic violence. They go on to end this with statement that a recognition of the global nature of violence may be more realistic than assuming that only women are victims. The researchers wrote in this month's Annals of Emergency Medicine. I'd be happy to give you a copy of this.

There are people out there— There was more violence in my situation before we broke up, whether it was spitting in my face and doing all sorts of things— I didn't do that to her. I have never been accused of being a violent person, nor ever have I had her challenge me in court to have me cut off from seeing my children. This was at a time when we had joint custody with equal residency. She lived just around the corner from me.

So these things do happen, and the problem, when you talk to other people about it, is that first of all, men think they have to “take it like a man”. For the sake of the relationship you don't go to the police, you say that she was upset. She was upset, women are emotional— this is the general gist of it. If we look at history, a man who has been beaten by his wife can be put on a donkey, wheeled through the square and shown to be an inferior person or inferior man.

We have to get away from these issues and realistically look at it, get decent research on it, and perhaps fund all parents' groups, not just women's issues, for the purpose of establishing this so that men can get their ideas together and the children's rights people can get their ideas together and look at these, with full-time help and a lot of time to discuss these issues and prepare research on it.

All the people here, including me, have spent a lot of time on it. I have to make a living. I have to support my children. I have three daughters.

By the way, just for your own information, in 1971 I got a B in women's studies at Sheridan College in Oakville.

Voices: Oh, oh.

Voices: Hear, hear.

The Joint Chair (Mr. Roger Gallaway): Mr. Windsor, you have the final word.

Mr. Butch Windsor: You asked a question about resolving the issues without the courts. I guess it basically starts with the presumption that both are parents. We've only created this problem by legislation because we put the fight into it. The Ryan study talks about the fact that we use terms of custody and access which date back into history and have no relevance to the issue of children. It's unfortunate that you haven't looked at it. You haven't given it proper consideration and it hasn't been dealt with since it was written in 1989.

The Joint Chair (Mr. Roger Gallaway): Yes, Senator Cools, I'm sorry. Do you have a question?

Senator Anne Cools: If I could detain the witness, could you please give us the name of that study— I believe it's by Judith Ryan —that you just cited? Do you have the name of it?

Mr. Butch Windsor: I don't have the name with me.

Senator Anne Cools: Okay. Perhaps our committee researcher can dig it up. It's a very famous study.

The Joint Chair (Mr. Roger Gallaway): Sorry. Go ahead, please.

Mr. Butch Windsor: I'm finished.

The Joint Chair (Mr. Roger Gallaway): Thank you. Now, for the final questioners— and we're working overtime —we have Mr. Szabo with one quick question and then Senator Cools with one quick question.

Mr. Paul Szabo: In Alberta they started a pilot project in Edmonton for mandatory counselling prior to the sanction of divorce. I understand that in B.C. the Attorney General has just announced pilot programs in Burnaby and one other community. And in Ontario, we have mandatory mediation in civil cases, but not in family law. It appears to me that the only winners here, based on your experience, are the lawyers.

Voices: Hear, hear.

Mr. Paul Szabo: And I wonder, since it appears there might be a little bit of support for that statement—

Voices: Oh, oh.

Mr. Paul Szabo: —whether it's time for us to stop battling in the courts and take the advice, I think, of people, of loving, caring parents: let's start working together on behalf of the interests of our children.

Voices: Hear, hear.

The Joint Chair (Mr. Roger Gallaway): I don't know if anyone wants to make a quick response to that.

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Mr. Stacy Robb: At 393 University Avenue, Ontario Court, General Division, they have just now instituted that any new proceeding coming into that court, before it gets to a judge, has to go before senior counsel, with counsel representing both parties present. So we are moving into that, but only in that particular court.

In the Brampton courts, for example, the rules are completely different. In Oshawa court, again the rules are completely different, but it is now just being instituted at 393 University Avenue. It is not on a roster insofar as the civil litigation, how it has now moved into case management and with mediation.

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

Mr. Grant Wilson: A program you may want to look into is the one in Dade County in Florida, which I believe has been going more than five years and has been very successful, where before parents can start litigation they have to go to a parenting divorce sort of course at the community colleges. It got an 85% excellent rating by the parents who attended. It's a mandatory thing before you can start litigation. It was certainly helpful to keep a focus on the children and what the issues concerning the children are, and how to handle things and what damages can done, and so on, and what parental alienation syndrome is about. There's a number of things they cover, and if we had more research dollars, we could sort of list all of these and get results and show that.

Ms. Pauline Green: I want to support Mr. Szabo's concern about moving away from the lawyers. As a lawyer, I can find other things to occupy my time besides family law.

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

Mr. Steven Easton: I think it's a shame that common law, which is based on the premise of us all having access to the law, has actually denigrated itself to the point where we don't even know how to file motions, people can't get into court, it's not user-friendly, and it requires a lawyer to be there to walk you through the process. That in itself, in my view, is wrong.

There was a question that came from this side of the floor earlier, and it ties into this whole thing about the mediator, that there needs to be a three-step process perhaps, just to simmer people down over a course of time.

Under that question you had with regard to the Department of Children and Families would be possibly a recommendation to set up an office of family mediators, in which case the mediation process can begin and give people a chance to sort of cool down, give them sort of a chance to back out of an adversarial process, and then have a staged process where, if they can't resolve it there, perhaps the children's legal advocate office changes its mandate slightly to then take over the negotiating process in the best interest of the children, and if that doesn't work, perhaps to send it forward to an assessment review, and if that doesn't work, the final step is to get it into court.

But at least it's going to take time to keep it out of the court process, because my experience has been that once it gets in that process, all hell breaks loose and you can forget about having any kind of resolution.

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

The final question is from Senator Cools.

Senator Anne Cools: I'm aware that the chairman was attempting to accommodate all of you and that we've gone over time a little bit, so perhaps I could just use the opportunity to thank all of you, not only for your presentations today but for the sort of anguish and suffering that you have endured. I am grateful that at last these issues are coming forward.

I know many of you had hoped to have a longer time to present, but I just want to assure you that the situation is that there are literally hundreds of demands to appear before this committee.

I want to thank you very, very personally, and you know that; I've talked to all of you at some point in time. Also to these people who are volunteers, they took time off from work. These people don't have a penny to do the work they've been doing; it's all voluntary.

To put two cases on the record— And I'll encourage you to put the cases that you have before us. Send us copies of the case law, where and whenever you have them. But I would like to put, to support Mr. Wilson's case of personal physical attacks on him, that there's a case called Toby Mutka, Mr. Toby Mutka. This man had his ex-wife drive a butcher knife six inches into his chest, and that man is still paying $1,500 a month spousal support to that assailant. I don't know of any other instance in the world where someone has to pay an assailant.

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I think Dr. Bennett wants a say.

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

Ms. Carolyn Bennett: Yet again, Senator Cools, I think when we have panels it's really important to ask them the questions. Maybe there's a time—

Senator Anne Cools: Excuse me, Doctor Bennett. Grant Wilson brought the case forward to me.

The Joint Chair (Mr. Roger Gallaway): Let her pose the question.

Ms. Carolyn Bennett: I have two quick questions.

One of the things that keeps coming to our attention is what is being done in other jurisdictions. The language of custody itself sets up a whole climate of winner and loser, and access in all these things comes with the winner proving he or she has won. If we could actually get rid of the language of custody and talk immediately about joint parental responsibility and parenting plans, maybe instead of actually having to finely tune the outcome of a bad climate, we could set it off the path. As we go to write the legislation, I wonder if you would have some input to that.

As we did hear the Office of the Children's Lawyer on the last panel, my experience has been if you can't access the Office of the Children's Lawyer, a lot of the dads in my practice also could not afford even a psychological assessment as to what would be in the best interests of the children. If you can't afford a psychological assessment to say what is in the best interests of the children, then again the pre-existing prejudice prevails.

The Joint Chair (Mr. Roger Gallaway): Go ahead.

Ms. Pauline Green: Okay. As far as the language is concerned, we do need to change it. In my practice I have a lot of people who don't know what custody actually means. Custody is a short-form word for a lot of responsibilities and rights. Perhaps we need to have something longer that people understand better. I think “parenting responsibilities” is a much better term. So yes, the language does need to be changed.

Mr. Stacy Robb: Rather than starting the proceedings with “an order is being sought against you”, I would like them to say “an order is being brought for the benefit of your children”. They should get all the hostile language out of it. Insofar as assessments are concerned, I don't put a lot of faith in them, psychological or otherwise. The assessment process right now in the province of Ontario doesn't have any kind of grit to it; it doesn't have any kind of governing body.

The Ontario College of Certified Social Workers is the only thing that's out there to protect the public from unethical assessors, and it doesn't have any clout. There are no standard parameters for assessments that say that in the course of an assessment performed by an MSW we're going to study this, this, and that. It doesn't have that.

When you try to complain against an assessor, when you have him, when you can prove he lied, nothing happens. In the meantime, seven years goes by, and who's going to go back to that assessor and correct him? Nobody.

There's just one other thing I'd like to add, with all of these things I've been watching and seeing. I come from a divorced home. I'm 42 years old now, and not once has any court official ever come back to me and said “Did we did do the right thing in your case, Mr. Robb?”

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

Mr. Grant Wilson: One of my recommendations is to have a totally different court system out there where judges are paid about half what they are paid now and they're not lawyers. They would have some legal training, some mediation training and conflict resolution training. They would be good parents themselves of much younger ages.

The courtroom would be more like a house. You would have a round table or no table with chairs in a circle. There would be more give and take from the judge. There would be questioning of the parents directly so they couldn't hide behind lawyers or have lawyers influence or play games. They could actually ask things of the judge and the judge could talk to these people and have the advantage of hearing their testimony, or whatever you want to call it.

It would be less intimidating and focus not just on the legal aspects but on mediation and on trying to get these people to come out with a plan together. You would have access to the court and wouldn't be waiting for months for procedural matters and whatever. If you have a problem with access this week, you could be in there within two weeks, the parents sitting down in front of a judge who is not there just to talk legals and doesn't have a total focus on that.

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Ms. Carolyn Bennett: We're also hearing it's very important to have the same judge each time with the case management—

Mr. Grant Wilson: This would also fall into that, and going back to the same judge, etc. Right now you have decisions being made in general division in Mississauga and Brampton that are made by judges, who don't even speak to the parents, in less than 45 minutes. The parents aren't even in attendance necessarily. There are no witnesses, there is only affidavit information. And this is for an interim order where these children are going to have a custody situation decided forever, because a very small percentage go to a trial, which by the way is four years off.

The Joint Chair (Mr. Roger Gallaway): Mr. Windsor, I think you will have the last word.

Mr. Butch Windsor: In 1985 John Crosbie said during justice hearings that we didn't need fairness to both parents and that we didn't need to remove the real presumption of a custody to a mother because of the tender-age principle. Five years afterwards judges were still using that terminology.

To answer your question, what I'm saying is that we can change the language, but we need to change attitudes, and if it means removing the cases from the courts, because judges are old fashioned, which is the way a judge described himself— Or we have to have proper legislation so that we can effect responsibility to the judges who do this.

That's why I recommended that we have videotapes in the courtroom. Judges get away with what they want today, transcripts are changed, and it's a shame. It's only to protect their backend and not to help the children who they say they're standing up for.

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

I want to thank all of you for coming here today. I know this is your time. It certainly has been a lively session. It's been an interesting session. It's even, as you've seen, been lively on this side of the table. I want to also point out to you, because I certainly agree with what Mr. Lowther has to say, that the demand in terms of witnesses upon the committee has been extreme. Once again I want to apologize to you for the time limitations. I also want to tell you and I want to tell those here that we are examining ways to hear from more and more people. We will perhaps have to go into smaller groups, but we do not want to avoid you; we want to hear from all we possibly can. Once again, thank you for coming.

The Joint Chair (Senator Landon Pearson): We'd like to change the table now.

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The Joint Chair (Senator Landon Pearson): I'd like to go ahead now.

I'd like to remind those who are witnesses that it's not only what you actually say at the particular moment, but your briefs and your other papers are taken into consideration. So sometimes the temptation to read through one's brief can be resisted when you know in fact that the information is going to be made available and that for those of us on the committee the question and answer period is the one that helps us understand some of the questions best. Also, we've decided to go into our lunch period a bit, so you're not going to be thrown out at noon. We'll try to give you the same amount of time as others.

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Ms. Elinor Caplan: Madam Chair, before the people here begin, I just want to say I have an appointment and must leave promptly at noon. I don't want anyone to think it's because I'm not interested that I've made a commitment. I must be up in my riding by one o'clock, so I do apologize in advance.

The Joint Chair (Senator Landon Pearson): All right. And when people go in and out, don't think they're not paying attention either. It's there, and we work at it from different ways.

I'd like to welcome this morning Mr. Bryan Smith, from Bastedo, Stewart and Smith; Mr. Richard Gaasenbeek, from Guyatt & Gaasenbeek; and from W. Glen How & Associates, Mr. How.

Mr. W. Glen How (W. Glen How & Associates): How, and Mr. Burns.

The Joint Chair (Senator Landon Pearson): Okay— and Mr. Burns.

I don't know if you've decided among you who is going to start.

Mr. Richard Gaasenbeek (Guyatt & Gaasenbeek): I have something in connection with what we've heard just previously, and that is that the role of lawyers was largely— what shall I say —decried and regretted. So I'm almost afraid to admit that I'm a lawyer. I've been practising in the Ontario courts for the last 37 years. With regard to the involvement of lawyers, I might mention an incident that actually happened. Since the tone of these hearings has been rather sad, this is a funny incident, and I recommend it to you.

I was arguing for a husband who had tried very hard to reconcile with his wife, and among others had written a series of letters in which he said, and I quote: “If only you'd get away from that effing A-hole your lawyer, maybe we can put our marriage back on the road”.

I had read these letters, and didn't think they'd ever be produced in evidence. The case went to trial. My client is in the witness box, and he's finished his evidence. He's now being cross-examined by my opponent, who tries to introduce these letters into evidence— over my objection, of course, because they after all were attempts at settlement —but the presiding judge says “No, no, no. I may not pay any attention to it. Let them in, and I can always ignore them.”

So my client is still in the witness box and the lawyer pulls out one of these letters. He says, “Did you write this letter?” “Yes”. “That's your handwriting?” “Yes”. “And you signed it?” “Yes”. “You called me an effing A-hole?” “Yes”. The lawyer says, “Well, did you really mean it?” My client turns to the judge and says, “Sir, I'm under oath. Do I have to answer this?”

Some hon. members: Oh, oh.

Mr. Richard Gaasenbeek: So it isn't all tears.

My brief is before you. I propose to not read the whole thing, because I was misled. I understood I was going to be here between eleven o'clock and noon, for an hour, so I prepared something to fill an hour. I know I won't have an hour; I'll only have five minutes.

I recommend its reading to you, unless it be said that lawyers are a heartless bunch that have no conscience. I recommend the brief to you in that as long ago as seven or eight or nine years ago, I realized that the enforcement of access orders was a farce, and I had misled a client into thinking that I could enforce his access when I should have known better. I had a moment of guilt feeling, in that I got his hope up that he'd see his daughter again, when in fact I should have been well enough informed to know that access was impossible to enforce.

Since I suffered these pangs of conscience, I prepared some written submissions to the court, saying “Look, the whole thing is a farce. Strike me off the record. I can't be bothered participating in a charade knowing full well that I'd be cited for contempt of court.” These submissions are attached to my brief. They promptly disappeared from the court record. I wonder why?

I was cited with contempt for reasons of conscience. I had nothing against the judge; I had something against the system. Eventually I stickhandled my way out of it, because I was in my mid-50s, and what else was I going to do but practise law? Nobody wants 50-year-old truck drivers, although I'd probably make more money.

Turning then briefly to page 15 of the brief, my fundamental point is this: political correctness is destroying the system, is destroying society itself.

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The foundation of a democratic society is the trustful cooperation between the citizen and the police, as A.P. Herbert said in one his pieces— I didn't think it up. But it's fundamentally true. Unless there is trust between law enforcement and the individual citizen, the whole thing is going to go down the drain.

I am a survivor of the Second World War. I lived in occupied Holland for five years. The moment the Germans marched in, the police force was taken over by the Gestapo, and for the next five years the police force was irrelevant.

I think the same notion underlies the O.J. Simpson case, which is a direct result of the Rodney King case, which showed that when it comes to racial violence, certain police forces in a certain country not far from here have the right to beat up blacks whenever they feel like it, with impunity and indeed with immunity, because none of them was ever convicted, while the evidence was there: Rodney King was savagely beaten.

Now, what trust and confidence does a black have living under those circumstances? To show you how extreme it gets, let me read to you a document, which is attached to my brief. These are police responses to black and white violence. It reads:

To effectively combat the serious and prevalent problem of black vs. white assault within our communities— police, as the criminal justice system's front-line workers and the agency which may have initial contact with a victim, have the responsibility of responding competently to the immediate and longer-term needs of white assault victims while indicating to offenders

—blacks —

that society does not tolerate violence.

The whole idea of the document— it goes on, it runs 11 pages —is that blacks beat whites, but whites never beat blacks.

On page two:

Police shall lay charges in all incidents of black vs. white assault where there are reasonable grounds to do so.

On page four:

Police will respond to all calls related to black vs. white assault including those that are received from third parties—

Anybody can blow the whistle on a black.

On page six:

In determining reasonable grounds, state troopers shall consider all relevant factors, which include, but are not limited to: verbal statements from the white victim, physical injuries or other physical evidence of an offence.

There's no indication that the police are interested in knowing what the black assailant said. That doesn't count. That doesn't matter. It's irrelevant. And so it goes.

None of you have seen it, because I don't think the briefs have caught up with you, but it was sent in last week. You will have it.

Senator Erminie Cohen: We do have it.

Mr. Richard Gaasenbeek: Oh, you have it. Good.

Well, then, this is not in your script, because it's new. Ladies and gentlemen, this document is a fraud. I created it myself, but it is not based on fiction. It is a literal copy of the Police Standards Manual produced right here in our province of Ontario. The only change I've made is to call women whites and men blacks. Here are the copies of the original documents— that is, a photocopy of it —as of January 13, 1994, which no doubt has been made more oppressive in the meantime.

I offer my sincere apologies for having misled you, but there was a point to be made, and I think I've made it. So much for the happy state of affairs in our noble province.

Mr. Chairman, here are some copies. These were handed to me by a friendly police officer some years ago. I recommend it to your reading. They are an outrage. They are a scandal. They have set aside the presumption of innocence. They have created a presumption of guilt, because the politically correct version of reality, ladies and gentlemen, is that men are violent, lecherous, irresponsible and selfish bastards, and women have halos around their heads.

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Just as much as O.J. Simpson was acquitted— I don't know if he was guilty or not, but that's not the point —just as much that the Dutch people had no use for their local police forces due to the Second World War, just as much you're going to find that many in this province have no use for the police forces and will despise them— Indeed, there are standing orders by the Attorney General in Manitoba as well as in this noble province that state that all police officers will under all circumstances arrest the male in all cases of domestic violence.

In my brief you'll find a couple of examples that I know about. One I defended personally. It didn't matter in the slightest that the wife said “Officers, I started this fight. My husband was asleep and I was angry. Please leave him alone.” He was arrested, dragged off to jail, photographed and fingerprinted, and it took four days to get a bail hearing, all because there is a presumption of guilt against the male sex in Ontario. And it is a scandal.

The Joint Chair (Senator Landon Pearson): Mr. Gaasenbeek, can you come to your specific recommendations?

Mr. Richard Gaasenbeek: Yes, I shall. The reason I mention it is that it's the domestic violence tale that wags the matrimonial dogfight, if you don't mind the mixed metaphor.

My specific recommendations are found on page— Oh, I must fill in some detail that was missing from the brief before you. On page 27, you'll see that I refer to statistics on suicide. Suicide is the prime indicator of mental health and mental well-being. It turns out that in all of Canada in 1992 there were 3,700 suicides, of which 2,900 were males and 800 were females. Doesn't that tell you something?

But then you say yes, but males are more violent, and obviously they kill each other more often. But if you look at the statistics for over a longer period of time— The particular graph I got hold of was for suicide rates in Canada from 1924 to 1990. In 1924, four women out of 100,000 killed themselves in that age group, 20 to 29.

The Joint Chair (Senator Landon Pearson): I hate to interrupt, but is this a recommendation?

Mr. Richard Gaasenbeek: The draft you have in front of you is not complete. I meant to fill in that missing detail, but I'll do it by way of an amending graph.

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

Mr. Richard Gaasenbeek: So as far as specific recommendations are concerned, I will refer briefly to custody, on page 41. The following are my suggestions for improvement.

First: mandatory open marriage counselling or separation counselling, if you like. That reflects what was suggested by other speakers and I fully support it.

Second: an amendment to the Divorce Act where both parents are willing and able to act as custodial parents, giving preference to the parent who supports joint custody or, failing that, the parent who proposes the most generous access regime.

Third: deny access, lose custody. It has already been suggested and I support it.

Fourth: for unreasonable access denial, offence punishable by summary conviction, which has already been suggested, and I support it.

Sixth, don't fiscally penalize married people and favour people who are divorced or separated. Marriage is an honourable estate; it should be supported by the state, not destroyed or disadvantaged.

Seventh, the Ontario Family Law Act states in its preamble that the purpose of this legislation is to strengthen the family as an institution. It does not define which family. The Divorce Act does not contain a similar provision, the last time I looked.

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The courts are not unanimous, but many have held that the support obligation to the first family unit takes priority over the needs of the second family unit. Thus, the economic foundation of the new family unit is undermined to support the broken-down family unit. As a result, the second family unit is also likely to fail.

Conduct is no longer relevant under the Divorce Act or the Family Law Act, and it does seem to me that to penalize the second family unit to sustain the broken-down first one only rewards failure. And on it goes.

Some of the most ferocious criticism I've heard of the existing state of affairs has come from second wives who are totally disenchanted and live with men who suffer weekly, if not daily, grief because access is being denied. At the same time, they live in poverty because the majority of his pay goes to feed his former family while his second wife goes hungry or must work to keep the family unit going.

If he's a bachelor, sure, nail him. But if he forms a new union, do not let him suffer financially because his first marriage fell apart. Hopefully, the second marriage will be more successful than the first, but it will not and cannot survive if it doesn't have the financial base upon which any marriage is grounded.

The next recommendation is the presumption in favour of joint custody. I won't belabour that, as it has already been recommended.

As for dealing with access, first, give priority to access-enforcement litigation over all other family court litigation. In other words, access enforcement comes first, then we deal with everything else.

What are Parliament and the legislatures saying by providing, at state expense, the enforcement of support orders, but when it comes to enforcing access orders, it is made impossible for all practical purposes? It's saying that a handful of dollars is more important than the right of children, as ordered by the court in their interest, to know who their father is. The lawmaking bodies, aided and abetted by the courts, are saying that material gain— greed —is more important than the love between child and father.

I don't care what religion you belong to or if you're an atheist, but it's fundamental to our way of thinking that emotional and spiritual matters are more important than mere material goods and money. It's a scandal of major proportion that the law itself should encourage greed and discourage feelings, emotions, and relationships.

Third, visit breaches of access orders with immediate sanctions. The first breach should be a severe reprimand, make-up access, etc. The second breach should be mandatory incarceration for one day. The third breach should be two days of incarceration. With the fourth breach, it should last for four days. Keep doubling it.

This scheme would very quickly dispel the notion that access orders may be violated at will, and will rarely, if ever, go beyond the first or second offence. The savings in court time will be enormous.

Fourth, if you deny access, you lose custody. I won't go into it any further.

Support should be coupled to access. If the notion that a child's right to know and love his father is more important than a handful of dollars is correct, there's no reason why support could not be effected by a denial of access. If mother knows that she and the children will go hungry if she denies access and she loves them enough to not want them to be hungry, then it will be a powerful incentive to make sure that access is not frustrated, and so on.

I recommend the draft to you. I'm running out of time.

This connection is notable. Research indicates that parents who have had regular access to their children are much less likely to default on support orders than parents who never see their children.

To sum up then, custody litigation is heavily weighted in favour of mothers, and fathers face daunting odds of losing the battle over custody. As I said earlier in the brief, the dice are loaded. As a lawyer, I don't mind going to court knowing that the dice are not loaded. I win some and I lose some. But when I go to court and I have to advise my client 75% to 80% of the time that they are going to lose because the dice are loaded, whatever lingering respect my client had for the system goes down the drain.

• 1155

Access enforcement, for all practical purposes, is impossible. Wayne Allen, who you'll hear tomorrow, was in court 60 times, at an average cost of $2,000 each time for a lawyer; that's $120,000. That is what it cost him to finally get what he wanted: an order incarcerating the custodial mom. You'll hear from him tomorrow. I won't cut the grass in front of him. I recommend you listen to him.

How did he do it? He became a professional litigant. He quit his job and decided to devote himself full-time to seeing his daughter and going to court once a week, whether the judges liked him or not, until they got so fed up with his going there that they said, “All right, if we must, we'll incarcerate mom”. And they did for five days. She was out after two.

The Joint Chair (Senator Landon Pearson): Thank you. Is that the end?

Mr. Richard Gaasenbeek: I have one final point. Political correctness dictates that the mother almost always wins the fight, and it undermines the fundamental trust on which a democracy is based, which is that the police act and investigate impartially and do not start with the proposition that men are guilty and women are innocent.

Voices: Hear, hear!

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

Mr. W. Glen How (W. Glen How & Associates): I'm Glen How, a practising lawyer, and I would like to make some submissions on this subject. I've been practising in custody matters for more than 50 years. I've been three times in the Supreme Court of Canada in the last few years on the different questions of custody that I'm about to discuss.

I had filed a brief in English.

[Translation]

I would ask the francophone members of the Committee to please excuse me because, due to a time shortage, I'm unable to submit the French version of the brief. We should be able to get it to you before the end of the week.

[English]

I'd like to refer to one or two of these cases so you'll see where the trouble is coming from. Almost one year ago, one of my clients was forced to go to the Supreme Court of Canada in order to be allowed to take her child to a wedding. She wanted to take the child to a wedding in her local church. We went to the Superior Court and were refused. We went to the Quebec Court of Appeal and were refused. Finally the Supreme Court of Canada got to consider this major decision about whether a little boy could go with his mother to sit at a wedding in the family. This is just an example of the nonsensical amount of religious prejudice that you sometimes have to face these days.

When we got to the Supreme Court for the hearing of the case, the Supreme Court removed all the restrictions, all these things. I'd had six different cases in the Quebec Court of Appeal, and they had left restrictions on in every single case. So this case has raised a question. Here we are in 1997, we've had a Charter of Rights now for 15 years, and freedom of religion is still surrounded by these restrictions on minorities and sponsored and permitted by some of the judges. I'm not against judges. I'm not against lawyers either, except if they get in the way. But the point is some judges simply don't clue in to the reality of what religious liberty is all about.

I act for Jehova's Witnesses in the main, but we're not the only people who are being subject to this kind of discrimination. The Seventh-Day Adventists join in these various cases in order to try to get themselves relieved from some of the religious restrictions. Indeed, one of the Jewish writers, Mr. Syrtash, has mentioned the kind of discrimination Jehova's Witnesses suffer in these cases. I just mention these things.

• 1200

The supreme law of the land is the Constitution, which guarantees equal rights and religious liberty. And to date the Supreme Court of Canada has flatly refused to apply the charter to this. We had two lengthy cases in 1993 and they talked around and they gave judgments that were so contradictory as to be really a public scandal.

May I just quote Julien Payne, one of our leading writers on child custody matters? Here's his comment about that case. It was Young v. Young. He said:

In that case the Supreme Court of Canada reviewed the law of custody and access, albeit in judgments that collectively border on the incomprehensible by reason of their multiplicity and lack of a clear consensus.

That was the confused state the Supreme Court left the law in. There was another case in Quebec the same day. On the same set of facts in both cases they ruled in favour of the man in the common-law province. Up until then he hadn't even been allowed to read the Bible to his children during access, but he was allowed the restrictions. Her imposed restrictions were removed. In Quebec the husband was demanding the same kinds of restrictions, and the Supreme Court, on the same set of facts, reversed itself and said that in Quebec it wouldn't be the same. It was contradictory.

The other case I've had recently— and you'll find it in detail in this paper, which you will get in a few days —was a case where the father, in this case, wanted to call as a witness a Roman Catholic priest to give his opinion on a good religion for a child to be raised in and whether he should be raised in the religion of Jehovah's Witnesses or of Roman Catholics.

So a Roman Catholic priest, whose bias is perfectly obvious— and not only that, he is personally on a crusade against Jehovah's Witnesses —was qualified as an expert to tell the court what kind of a religious upbringing a child should have. We have a guarantee of religious liberty in the highest court of the land, and this was absolutely wrong. The trial judge, actually, was very fair. He didn't like this, but he was bound by these judgments of the Quebec Court of Appeal. In the Quebec Court of Appeal there have been a number of judges who have dissented from these restrictions.

I just mention these to show that there is something here that's quite wrong and that some judges have objected to it.

I want to just say one word about Justice Sopinka in the Supreme Court of Canada. He died recently, but he's the only judge who gave a clear guideline. I'll just read his words:

If the ultimate determination in deciding issues of custody and access is the best interest of the child, it must be reconciled with the Charter of Rights and Freedoms.

In other words, you can't decide that the best interests of the child require that the child and the other parent be restricted in the exercise of religious liberty.

He then went on to say:

What is in the best interests of the child is the generally applicable test, but in its application to religious expression, risk of substantial harm is not only an important factor, but it must be shown.

You've had a lot of discussion here today about the best interests of the child. Frankly, it's a laudable objective. It sounds sweet, but since nobody knows what it is, the end result is that the judges are left with total discretion. They do whatever they think might be in the best interests, and many of them are influenced by their own religious background. And some of the judges have not relied on evidence; they've put in their own evidence.

This is something that is very undermining and is certainly something I will recommend this committee to address itself to.

• 1205

I'll make these three quick recommendations, and I'm trying to be as short as I can.

For mediation, yes, definitely, that is a good thing, except for one thing. Mediators and judges should be trained, as far as religion is concerned, to keep out of it. It's not something they know about, and it's not something they should play around with when it's purely a matter of what's the best philosophy. Mind you, if you get a religion that's doing something criminal or something of that kind, it's different, but simply to say that because I don't think what they believe is a good thing, then I'll remove custody from that parent—

The second one is guidelines. I urged the Supreme Court of Canada and submitted a set of guidelines to them that should be followed. They didn't. As one of our other judges said, yes, they ducked it. I respect the Supreme Court. Some of the judges like Justice Sopinka and Justice McLachlin have done well. But the court as a court has failed to deal with this problem.

Then the last of these guidelines is they should not be getting into religious arguments on the matter of custody. Let each parent talk, and then the child nine times out of ten pays very little attention to either, but the child will ultimately make up his own mind. He can't make up his own mind which religion he wants if he hasn't learned of them both, so let it go. It's not something we should be involved in.

There's one other thing. I'll support my friend here. Lawyers are a mixed bag, like everybody else. Some of them raise the subject of religion, hoping they'll win a case on religious prejudice against an unpopular minority. You don't only have one or two cases. In the case I'm on now in Three Rivers— I was there this past week —there have been nine days of religious argument already, and the case isn't finished yet. More and more, you get into cases where this kind of religious interference is used as an excuse to bring to court, hoping that they'll win a case when they haven't any real grounds for it at all.

So neither the statute nor the Supreme Court have laid down any guidelines, and I hope before this is finished, this committee will do so.

Thank you very much.

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

Mr. Smith.

Mr. Bryan Smith (Partner, Bastedo, Stewart and Smith): Thank you. I'm a partner at a firm known as Bastedo, Stewart and Smith. I've been practising matrimonial law for approximately 10 years, and I restrict my practice to matrimonial issues exclusively. I have certification from the Law Society of Upper Canada as a specialist in matrimonial law.

From what I've heard today, I'm somewhat in the minority, because my general recommendation to the committee— and I speak exclusively on my own behalf, I'm not here representing a particular group today, and I'm not representing the bar or any of its various groups —is that very little, if anything, be changed in the Divorce Act. I will delineate my reasons for that.

There's an old phrase that says “If it ain't broke, you don't fix it.” The question is, is it broken?

I'll explain my views on that shortly, but I have one recommendation that I think should be implemented by legislation, and that would be a mandatory mediation phrase or clause or insertion in the statute of some sort, and that's very difficult to work with.

The reason I would not change much, if anything, in the Divorce Act is because the Divorce Act is an empowering statute. It empowers people to do things and gives them powers that they don't otherwise have if the statute is not there. In practice, I believe the statute now does empower, particularly women who have remained home with their children in a preferential matter to men, and not by the reading of the statute but by the way the cases have interpreted this statute and applied it.

My concern is that when you amend the statute what you're doing is changing and empowering a different group altogether. I think the committee has to obtain some more research and ask itself, are you empowering a different group for the group, or are you empowering another group for the children? If the test of what this committee is concerned about is what's best for the children, why should you empower another group if the empowering of that group is not necessarily going to make the children better off?

• 1210

Right now, the way the cases work that come into my office, generally speaking, is that you can give your clients options and in any particular case we can say what would probably happen in the court. I expect that after the legislation is changed, and after it's run through the courts and interpretations are put on it, we will be able to do the same, but I expect that the results of the options will be that we may be reversing the order. If we start with the presumption of joint custody, for example, you'll tell the client that you're going to end up with joint custody unless you can show X, Y and Z.

I have to tell the committee that I don't know this is the right thing to do. If the system works well in general cases, is it necessary to amend the legislation for specific instances? My view is it's not, because when you amend the legislation you're going to create new exceptions and new problems and we're going to be back litigating and arguing over other issues and the other side of the coin.

The way around most custody disputes, frankly, is to exclude the lawyers, which most people in this room earlier seemed to agree with. Our training is not in social work; our training is in legal analysis and advocacy. I represent as many men as I do women. And if my client wants me to take position X I take position X, provided I can substantiate it with some law and they provide me with the reasonable facts to do that.

Mediators, on the other hand, don't have a vested interest because they're not advocating. In my view, the way to take this out of the lawyers' hands and put it in a different setting is to require the parties to attend at an early stage in the process, and I don't mean within the court process, I mean within the separation process.

That presents two problems in and of itself. Not everyone goes to court and not everyone has a lawyer, so there are people out there who are separated and are grappling with these issues on their own. There is no publicly funded facility I'm aware of where these people can go for help and to try to work these situations out themselves. If they get in the court setting itself, there is not any publicly funded system to speak of within the court system to help them.

There was some discussion earlier about what happens at 393 University, and there's a misunderstanding of the procedure. If you bring an application to vary support in Toronto, to vary custody and access, you end up on your first appearance in front of a senior lawyer who tries to help you out. If it doesn't work, you go to court and end up in front of a judge.

If it's an initial application for custody or access, you are not permitted to bring a hearing in front of a judge until you've first had a settlement meeting with the judge, something that is called a case conference. Although they're not per se settlement meetings, that's really what happens: they try to narrow the issues.

The problem is the settlement judge, or the case conference judge, does not have any teeth. They cannot order mediation. You don't have mandatory mediation under the legislation. They can order an assessment, but by that time and by the time you get there, the parties have already filed conflicting briefs. I, on behalf of the wife, will have filed a brief that says that the husband did X, Y and Z, and then when I act for the husband my opposition will probably say the opposite.

The parties are already polarized by the time they get to court. Their statements are in writing. And there's nothing more acrimonious than a statement that's made out of bitterness or hate at the time and then put into writing. Because when it gets into writing, the person picks it up at their home at night, and they look at it and they read it, and then they can't see the nose on the end of their face and they get all hung up on all the issues. Money is important; it affects custody and access. But until you can pull it out of the system and get them to go to mediation, or some therapy is probably even a better word, before they get into the process, then you're not going to get very far in resolving these acrimonious disputes.

Most of the cases I have in my office involve people who come in and they've already been separated for six months when they come to see me. This happens quite often. And generally speaking there's not a serious custody or access issue. If people come in to see me the day after they separate, then there are going to be problems, because the emotions are running high. So if there were a way to legislate a cooling-off period, then the cases are going to be settled quicker and with less disruption over custody and access.

• 1215

With respect to the suggestion of a number of people that there be a presumption of joint custody, my personal view is that would not be a positive thing to do. If what the committee is striving to do is get rid of the labelling by replacing custody or access with joint custody, you're just pinning one label on the other. The language has to be much more careful than that.

Perhaps you could take out the word “custody” altogether and say “parenting” or “residence”— primary residence, secondary residence. The problem with words such as “primary” and “secondary” is that they're also valuing, because you have a winner and a loser. You can have a parenting plan that can use different language. If the statute is to be amended, my submission is that it would be inappropriate to move to a joint custody suggestion. If you move to a parenting scheme of some sort, that might be appropriate.

One word of caution: people come into my office all the time and say they have a joint parenting plan, and they pull out a 28-page joint parenting plan. True joint parents and people who are truly joint parenting don't need 28 pages. They need about two pages, with their names and signatures on it, saying “We will joint parent”. They know what that means. The people who can't get that far aren't good candidates for that sort of regime.

Thank you.

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

Senator DeWare.

Senator Mabel DeWare: Thank you.

I really appreciate your coming before the committee today. I have two questions; actually one's a statement and the other is a question. The first one will be for Mr. Richard Gaasenbeek.

I read your appendix 1. I feel your frustration in your demonstration to us today, but in appendix 1, you're talking about a male who's just been divorced, and you ask why he should bust his gut to provide a house, cars, a boat, and a cottage for a wife and kids when most of it will be taken away from him if in the end the wife decides she is tired of washing of his socks, not to speak of the 50% of his income that he's going to lose as well. That's right: in this country, if you divorce, your assets are split.

You say he has to be nuts to undertake anything of that sort. I know this is just a phrase taken out of all of the information you have here. I come from the other perspective. I think we've all gone through divorces in our families or friends, and we all have seen the pain. Some of them have turned out wonderfully and they have gone on to have wonderful lives. My concern is I'm from the other end. The percentages are low. I believe in the family unit first. The fact is we in this country have 7.5 million families who are surviving and are well and happy families. We have to do something about this access and custody, but we have to remember in the back of our minds that first and foremost it's the family unit we want to keep together. We have to work towards that.

Getting back to Mr. Smith, all of the people we've been hearing from, and I think the bar association in Quebec, said do not legislate mediation. Mediators have said to us, do not legislate mediation. So what I'm hearing from you is something, but you're saying maybe legislate in probation sessions or parenting sessions.

Mr. Bryan Smith: It may be better put as legislate therapy, counselling, or education.

Most people have no idea, other than what their lawyer tells them, what it really means to have custody. One of the problems with lawyers is we all have different views on what things mean and the way we interpret cases and legislation. Something has to be put in front of us before we put together the document that causes people to be very divided. There's nothing now.

Senator Mabel DeWare: How can we encourage our young lawyers— or lawyers, period —to, when a couple or a spouse comes to them and wants to start a divorce action— How can we guarantee that they're going to say first, “I think you should go to an information session before you start litigation”? How can we enforce that?

Mr. Bryan Smith: Some of the courts in the United States have mandatory counselling sessions prior to the attendance in court. A pilot project has been started in Toronto, although it hasn't got far enough off the ground yet, where people are going to go to these sessions before they get into the court setting. It will be run by the law society, which is trying to educate these people.

• 1220

I expect it can be done either through changes to the legislation itself or perhaps through changes to the rules of civil procedure. If there's a procedural step you must take before you file your motion record, you won't be able to file your motion record if you didn't go to an education session.

Senator Mabel DeWare: I like that last phrase, rules of procedural—

Mr. Bryan Smith: It's rules of civil procedure. You may want to ask your constitutional panel about that, because there are issues with respect to who has the power to do that.

Mr. Richard Gaasenbeek: Senator, you asked me what can be done to promote reconciliation. Indeed, the Divorce Act contains a requirement for all counsel to explore that possibility before they even start a divorce.

I've always taken that obligation seriously. I've asked clients, men and women, what the chances are. I'm happy to say that on at least two occasions I was successful. I was able to get both clients before me and I changed hats. I said, “Look, I am no longer the wife's lawyer or the husband's lawyer. I'm now wearing the hat of a mediator. What can you do to put your marriage back together?”

One marriage broke down five years later, and I haven't heard from the other couple since. They were older people in their sixties, and part of the problem was they were both retired and had too much time on their hands. I told them to go to see On Golden Pond and then come back. Do you remember that marvellous movie? It was a beautiful movie. They came back, we talked it over, and they decided to reconcile. I was very proud of that.

Mr. Glen How: The point I see that is missing in this whole picture is that we spend so much time and money— in fact, billions of dollars —enabling people to fly apart, break up their families and leave the children half-orphaned. But how much time, money and attention are we giving to teach people how to live together in the first place? That could be done by requiring pre-marital lectures. It wouldn't necessarily need to be statutory, but if enough attention were given to it in the press it could become semi-required, and then teach people.

Nowadays, with so many divorces, many young couples have never seen or lived in a peaceable home. They get together and follow what they've seen. You have divorce feeding and supporting itself. On this subject, I have a book here called The Secret of Family Happiness— I will submit one with my brief —showing people how to get together and stay together. This should be a preliminary thing.

I agree with my learned friend here, Mr. Smith, that once you file in your court documents all the nasty things people can say about each other, your chance of a reconciliation has gone down at least 80%. The main thing is it's very damaging. Once you have a trial and one person figures he or she has to prove the other one is no good to win the case, it's 100%. You can never put them back together.

Let's have these things before any documents are filed in court and give some attention to teaching people how to live together in marriage instead of facilitating getting them apart.

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

Mr. Richard Gaasenbeek: If I may for a moment, you asked me about appendix 1, which was a letter I wrote one time. As long as the system is perceived to be as biased as it is, and as long as the judicial dice are loaded, men will back out. That incident was an illustration of it. They'll say “Keep all your charms. I'll go alone.” And it is a pity, because it is fundamental to society that the family be supported instead of men backing away from it wholesale, saying “I've been burned once— never again.”

• 1225

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

Senator Cools.

Senator Anne Cools: Thank you, Chairman.

To the witnesses: you're all lawyers, so I want to take the opportunity to ask your opinion. As you know, there has been a lot of evidence put before this committee about the activities of lawyers, and in some instances about the questionable activities of lawyers. And I was very shocked, because a couple of weeks ago, I was reading a case of a particular lawyer in Toronto— I think her name was Carole Curtis —and she had given advice to a client. I'll just put this on the record.

It was a case of a transfer of custody from the mother to the father, and Ms. Curtis wrote a letter, as follows:

Your client should seriously consider not allowing this child to be transferred to her father on April 28, 1990. We appreciate this is a very serious step and will put her in breach of a court order. We strongly urge that she not disappear with the child, but that rather she keep the father advised at all times that the child is safe. However, if there is any likelihood that he will attend with the police under a certified court order, then she should not be at home.

I believe that many people would consider that to be legal advice.

What I have before me is a record of the Law Society of Upper Canada disciplinary committee's findings, and I just wonder if any of you, as lawyers— The disciplinary committee was composed of Thomas Bastedo, Stephen Goudge, and Hope Seeley. I believe, Mr. Bastedo, your firm is Bastedo, Stewart and Smith.

I just wonder if, as lawyers— If this is a case where this kind of situation went before the Law Society for review, and basically the Law Society basically exonerated the lawyer, I just wonder, as lawyers, what advice you could give to us, as a committee, in terms of what kinds of actions the federal Government of Canada can take with respect to lawyers who act improperly.

Mr. Richard Gaasenbeek: It would seem to me that the advice given here was tantamount to a suggestion that the client disobey a court order, and accordingly, the client would be guilty of contempt. It seems to me that the existing law is wide enough that if contempt of court is a crime, then similarly, counselling to contempt of court would also be a crime. But in any event, I think your legislation goes some distance to deal with that.

If you want a textbook of how to thwart custody litigation, read my letter addressed to the Honourable Judge Steinberg, of February 6, 1990, in which I quoted from another letter. The only response, incidentally, Madam Chairman, was that I got an inquiry from the Law Society wanting to know where that other letter came from. But it had been sent to me in confidence and I destroyed the original, so the author was never retrieved. So the message was clear: shoot the messenger.

Mr. W. Glen How: It seems to me that I don't have enough details of the background. Simply advising, for example— In some cases where there has been access, for example, and it's strongly believed that the access parent is damaging the child or abusing the child, then I would recommend that she not— The custodial parent with whole access should go immediately to the court and get it ironed out. But these things are not rigid, and sometimes these situations change. But certainly I agree with my friend that you can't advise people as a matter of practice to violate court orders.

Senator Anne Cools: In that sort of instance, what kind of chance would that parent— in this instance, the father —have in the face of such legal advice and in the face of such action by the Law Society of Upper Canada? Perhaps Mr. Smith could respond to that.

• 1230

Mr. Bryan Smith: I'm not going to comment on that case. My partner chaired that panel. It would be most inappropriate. I'm also aware that—

Senator Anne Cools: I'm sorry, I don't mean for you to comment on the case, but on the problem in general.

Mr. Bryan Smith: I'm not going to comment on the discipline. That's a matter for the Law Society of Upper Canada, and they've dealt with it.

The other thing is that you're using a specific case. I'm aware that Ms. Curtis appeared before this panel last week, and I don't think it's appropriate that I comment.

The Joint Chair (Senator Landon Pearson): Any other comment on that then?

Senator Anne Cools: Fine.

Mr. Glen How: Mr. Bastedo is one of our senior men in this field. As for his judgment on that, I would hesitate before disagreeing with it, because he looks at things carefully before he makes a judgment.

Senator Anne Cools: He's an outstanding citizen, there's no doubt about that, but my concern is the rather widespread reports that we have coming forward to us of lawyers and the way that they're giving advice. I'm just very curious.

Mr. Glen How: I can just say that I deal with a lot of different lawyers, and I will tell you that every lawsuit and family dispute should be settled and not go to court. When you go to court, at least one person has dug in their toes in, refusing to settle.

I find that with honest and reasonable lawyers, I have no trouble. They make a balanced distribution of the rights. But some people who are looking for trouble or are unethical will certainly create trouble. It can be so.

That's why we need to have some kind of mandatory mediation by people with power and people who are trained. They can put a stop to it before two lawyers have turned a minor domestic dispute into a hateful lifetime of abuse.

Voices: Hear, hear.

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

Mr. Richard Gaasenbeek: There's another factor here, and that concerns one of the crises that the Law Society of Upper Canada, or the legal profession, is going through, and that's the crisis of numbers.

When I was called to the bar in 1960, there were 5,000 lawyers in Ontario. First of all, there weren't as many divorces. Second, the ones we did have consisted of— The poor had nothing to fight over, and in any event, there was no legal aid. They couldn't afford us as far as the kids were concerned. Somehow, they resolved it. We didn't really worry about it.

As for the middle class, we knew they could not afford to litigate, so the whole philosophy was to bang their heads together until they settled.

The rich could afford to litigate, but unfortunately I never had any rich clients, so I didn't get involved in that.

President Lincoln said that “there is nothing more dangerous to society than a hungry lawyer”. Okay, we now have 25,000 lawyers practising in Ontario, whereas when I started there were 5,000. The legal problems the public faces have not increased fivefold. One would have hoped that with enlightenment and improvement there would be fewer legal problems. So what we have here is 25,000 hungry lawyers.

Voices: Hear, hear.

The Joint Chair (Senator Landon Pearson): Mr. Lowther, are you a lawyer?

Mr. Eric Lowther: Lawyers have taken a lot of flak these days just in general in that profession, and I want to applaud the panel here today. I think you've redeemed at least a segment of the profession anyway with your excellent comments. There were some excellent comments. There are a lot of cab drivers in Calgary, but I have my favourite guy whom I always call, so maybe I'll have to get your card afterwards.

A common theme across the table here, even though there's some difference in opinion, is this idea of mediation. One person referred a little earlier to what should be comprised in that mediation. I get a little concerned when we start throwing blanket terms around about mediation. There are different ideas of what should come under that umbrella. We might all embrace the idea of mediation as some sort of black box through which we process people who come out of the other end with all their problems solved.

But I'm concerned about what's in that black box. If it's the wrong stuff, we could actually make the problem worse. I'm wondering, with the experience you've gained and the stories you've heard—

I really concur with Mr. Smith's comment there such that we should be realistic here: a lawyer's job is to win the case. They're there to champion their client's cause, and if they win the case, they've done their job. It's not so much to solve the problem, it's to win the case. You'll always have problems in that kind of arena as far as having everybody be a winner. You're always going to have a winner and a loser in that kind of environment. So the thrust of my question is what should be the driving principles in mediation so that whoever the mediator is, if he's doing his job he hits the bell on all the key principles?

• 1235

The Joint Chair (Senator Landon Pearson): First, out of pity for us because we have to start again at one o'clock, we'd like this to be, if possible, the last question and answer session. That will give us ten minutes to have lunch.

Mr. W. Glen How: Sir, first they need somebody, whether it's a lawyer or whoever, to give them some advice on how to set their family back together. You have to listen to their story. I had a case of that kind where a husband came to me first, then I discussed it with him and I found out he was doing lots of wrong things and so was the wife. So instead of trying to go nose to nose in court, I got them both in and I explained to them where they were going wrong, where it was falling apart.

I used material such as this book on The Secret of Family Happiness and they got together. Later on the husband phoned me and said they didn't know that family life could be so happy. However, they didn't continue doing this. Don't go back together till you make some rules that will overcome the problem. Don't just go back and keep doing the same things. I drew up a sort of Magna Carta on both sides and said now if you'll follow those rules and work together it'll work. For a time it did, but when they stopped paying attention to the guidelines they got back into trouble again.

So the point is first try to get them together, and then, if they're going to settle, a mediator can get them together and listen to them one at a time and work out the details. It's when they both get together determined to fight that you get so much abuse of each other they can't think straight, they become so emotional they don't even know what's for their own good. So somebody has to do their thinking for them and then lay down some guidelines. If they do that, what they don't realize in their animosity many times is that no matter if you go to court and win, all you've succeeded in doing is breaking up your family and causing all kinds of trouble for your children.

The Joint Chair (Senator Landon Pearson): Richard, you have the last word.

Mr. Richard Gaasenbeek: I support what the previous speaker said.

To answer the question of what should be part of mediation, it can be many things. But among the things that come to mind is one, a video explaining the process and what damage it is going to do to the people, and most of all the kids, if they insist on fighting it out; and second, the importance of PAS and indeed the grief that the parents themselves will suffer if they are away from their children. By the way, since men, politically correctly speaking, don't have any feelings, the grief they feel has never been investigated. I suggest it ought to be, and it could be called child alienation syndrome, or CAS for short.

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

Mr. Richard Gaasenbeek: One more thing: I've often recommended to people who were about to fight to go to see War of the Roses. If you want that, you can have it.

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

Please leave your headsets in the room if you're going to leave now, and members can leave their papers here. We will resume at one o'clock. Thank you very much.

• 1240

• 1312

The Joint Chair (Mr. Roger Gallaway): I would ask people to take their seats, and we'll get started on our afternoon session of day one in Toronto.

We have with us this afternoon four groups, actually represented by three groups. We have Grandparents Raising Children, and we have Grandparents Requesting Access and Dignity, or GRAND. Both groups are going to be represented by Ms. Brooks. We have also Carol Libman and Judy Cutler, from the Canadian Association of Retired Persons; and Linda Casey, from Helping Unite Grandparents and Grandchildren. We'll start with Ms. Brooks.

Having regard to time constraints, Ms. Brooks, I would ask that you keep your comments within the five-minute range, if you can. Go ahead.

Ms. Joan Brooks (Grandparents Requesting Access and Dignity): I'd like to introduce myself. My name is Joan Brooks, and I have for the past 11 years been a spokesperson, chair, and president for GRAND Society.

We have been part of the community since 1982. We are also the first support group for grandparents seeking access to their grandchildren in Canada. We now have eight chapters of GRAND Society across Canada, and this is not a boast but a very sad statement to make for today's society. Our leaders from these chapters are wonderful, warm, caring grandparents who give from the heart above and beyond the call. I originally enclosed a list of chapters.

The volume of grandparents seeking access and advice from us has grown over the years into thousands, since 1986. We always suggest mediation, as opposed to litigation, but in many cases grandparents must seek access through the courts to their grandchildren, adding a great deal of stress and a costly legal process. Many grandparents have spent their life savings this way, and really, court is the last place a grandparent should be.

• 1315

Over the years I have taken mental counts of access denied and have come up with these stats on my own. In a meeting of approximately 50 grandparents, access was denied to paternal grandparents in the 60% range and to maternal grandparents in the 30% range, with a 10% range for death and other reasons.

I have seen access denied because a grandparent had a speech impediment. Two other grandmothers were going to be charged with sexual abuse— this is grandmothers, not grandfathers —unless they stopped their access proceedings. Needless to say, they stopped their access. We have seven cases where the grandparent's child died and the grandparent was faced with a double loss— the loss of a child and the loss of a grandchild or grandchildren. Some we have helped, others we could not.

These are a few stories I have shared with you from over the years. Too many times I have had to hang up the phone with a sobbing grandparent on the other end of the line saying “Keep your chin up. You're not alone.” The hardest cases I deal with are the grandparents who have lost children.

You are the ones who can and will make changes to our family law. Please, I ask you on behalf of all grandparents across Canada who have been denied access through no fault of their own, use Godspeed and His insight, for it is in the best interest of these children to know or get to know their grandparents to make life's cycle complete.

As one judge in a Brampton courtroom said a few years ago, “Grandparents are the backbone of this country.” I hold this statement very close to my heart. I would like to think that grandparents are the backbone of every country. Thank you.

On our recommendations, we ask the committee to consider changes to the Divorce Act to ensure that grandparents are considered special people in their grandchildren's lives, where it would be a positive relationship.

We ask the committee that judges order mediation for grandparents prior to any court proceedings and that judges be given refresher courses dealing with grandparents in access disputes in the courts. This would only help ease the backlog of cases pending for our judges.

We ask the committee that where one grandparent is at fault, all family members must not be held accountable for one person's actions, and access be considered to other members of said family.

A paper should be done on how many grandparents are seeking access or custody to their grandchildren through the Canadian courts. Laws have been in place for grandparents in Quebec through article 611 since 1981. In New Brunswick there's Bill 16. And most recently, in Alberta there's Bill 204.

Hopefully you will give consideration to our suggestions and do so with Godspeed for all grandparents who are going through this heartbreak of access denied.

Thank you.

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

Now from the Canadian Association of Retired Persons—

Ms. Joan Brooks: On Grandparents Raising Grandchildren, am I not going to present?

The Joint Chair (Mr. Roger Gallaway): I'm sorry. I didn't realize it was going to be separate. Please go ahead.

Ms. Joan Brooks: I would like to say again to the committee members that I'm wearing two hats today. My name is still Joan Brooks, and I founded a group called Grandparents Raising Grandchildren on November 11, 1990, after gaining custody of my then two small grandsons in 1989, with the help of Rendi Fine, an MSW director from the self-help resource centre in Toronto.

• 1320

Child rearing at any age can be a challenge, and even more so as one ages. And it can be quite stressful at times. As grandparents, we have stepped in to prevent our grandchildren from being placed into care, keeping these children with their extended families until a parent is able to resume parenting or give equal care. In some cases, this has come to pass.

There are many reasons why grandparents are parenting their own grandchildren. Here are a few. In some cases the parent is too young to parent. Other parents have lost interest. Others have mental illness. Some don't because of drugs. There is only one case that I'm aware of where the parent has died of AIDS.

Grandparents are more than glad to step in and save their grandchildren, but in many cases they may need financial help. I know of two grandparents who had to declare bankruptcy and another who had to take a part-time job at the age of 71 after her retirement to make ends meet for her and her grandchild. This same grandparent spent her life's savings trying to save her grandchild. This is just not right and should be looked into as quickly as possible.

There are 3.4 million grandparents raising their own grandchildren in the U.S. of A., and 90% of these children will never return home because of drugs. The only stats we have for Canada come from the CAS. As of April, 1996, the number of grandparents seeking and gaining custody of their own grandchildren is up 38%.

Hopefully, the dialogue that begins here today will open up other governments to taking a closer look at grandparents raising their own grandchildren, with more compassion and help for those in financial need, along with help and compassion for the emotional needs of a grandparent and a grandchild. Then another grandparent need not declare bankruptcy to help raise a grandchild, nor spend his or her life's savings trying to fill this need. There needs to be more awareness of this problem. I and other grandparents are not isolated cases in Canada. You need to be aware that we are dealing with a major problem here.

Many grandparents are dealing not only with the raising of these grandchildren but also with seniors' health issues, and we can still give our grandchildren a better life. One need not enter into a speed contest to raise a child.

Now I'll give you the recommendations, and then I'll be finished, Mr. Gallaway.

We ask the committee that all children's programs dealing with placement of children be made aware that grandparents are willing to take these children into their homes and that we are here to be utilized.

We ask that more financial aid be given to grandparents who are in need while raising their grandchildren, for a better standard of living for these children.

We ask the committee to ensure that all governments work together for these children deemed to be “throwaway children”. Hopefully not, for they are our future.

We ask the committee to ensure that all programs, such as CAS, CCAS, and native family services, work together to save these children and to give them what every child is entitled to: love, food, shelter and someone who cares for all of their well-being and who will help guide them.

We also request that a paper be done about the number of grandparents seeking and gaining custody of their own grandchildren in Canada.

Thank you.

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

And now, once again, Mrs. Libman.

Ms. Carol Libman (Representative, Canadian Association of Retired Persons): Thank you.

The Canadian Association of Retired Persons is on record as being in support of legislation that would grant access by grandparents to children whose parents have divorced or when one partner has died and the other remarried. In some cases, grandparents should also be considered when granting of custody is to be decided.

We agree with the mandate of the special joint committee: the needs and best interests of the child must be paramount in making such decisions.

Incidentally, when we sent in our submission, which I inadvertently dated May 30 instead of March 30— I'm sure everybody noticed that —let me say that the weather outside is like May 30.

Voices: Oh, oh.

Ms. Carol Libman: We also included a couple of articles from our CARP newspaper, which go into this in a great deal of detail.

And also, in the paper and over the phone we do refer people to your organization because you're a grassroots operation and we're a national association which deals with a great many issues.

• 1325

CARP supported Bill C-232 and the amended Bill C-245 when they were introduced in the House of Commons by MP Daphne Jennings. In the report of the Standing Committee on Justice and Legal Affairs of May 14, 1996, Mrs. Jennings noted that:

This bill would provide that a person wishing to make an application under the Divorce Act to be granted access to or custody of any of his or her grandchildren shall not be required to obtain leave of the court to make such an application.

One of the concerns raised by committee members was that this bill would increase litigation. However, in reporting on the testimony given before the committee by several lawyers and a professor of law at the University of Ottawa, Mrs. Jennings stated that this is unlikely to happen. In fact, Mr. Charles Merovitz, barrister and solicitor in Ottawa, stated that what is more likely to occur is that there would be an acceptance of the grandchild's right of access to the grandparent, and that may even lead to less litigation.

Under the present system, access can be applied for by use of an affidavit. However, there is a right to cross-examine on the affidavit. That cross-examination can take several hours, and the preparation can take several hours. This is time- and money-consuming and might discourage grandparents who might otherwise wish to apply.

Mr. Merovitz, by the way, was a successful lawyer in the first Ontario case in the appellate courts that unequivocally stated that access is a child's right. The Ontario legislation was amended after that case to reflect that principle.

Another witness, Barbara Baird, family law barrister and solicitor from Fredericton, New Brunswick, stated that in spite of concerns of the Canadian Bar Association that there might be an influx of cases of grandparents going to court for access and visitation rights, that has not been the experience in New Brunswick. Mrs. Baird felt that grandparents often lend a unique perspective to the issue of parenting, which might not otherwise have been given to the court, and would help in making the proper determination.

Another witness, Sheila Keet, family law barrister and solicitor from Vancouver, said:

When we speak of the rights of grandparents, we are really talking about the rights of the child to a relationship with a grandparent. These are not rights, in my view, that biological parents or the state should be entitled to remove or reassign, unless there are serious reasons detrimental to the well-being of the child.

CARP agrees with these opinions, and therefore would support a family law bill that would recognize the importance of grandparents to grandchildren, and at the same time be centred on the well-being of the child.

We do have a couple of questions. There is legislation covering this issue in several provinces. Our question is, how will a federal bill operate vis-à-vis provincial law, which exists, I believe, in Quebec, New Brunswick, and Alberta?

The other issue, which does not come under the Divorce Act— and I don't know where this is going to come, actually —is about death of one partner, where the other partner remarries and that partner's new wife or husband adopts. How does that impact on any right of grandparents? In our view, of course, they still exist, just like the uncles and the aunts and the next-door neighbours.

This is just about all that CARP has to say, except that obviously we have thousands and thousands and thousands of grandparents among us, including me— and Judy keeps hoping. We therefore support strengthening the family through the continued access of grandparents.

The Joint Chair (Mr. Roger Gallaway): Thanks, Mrs. Libman.

Now, at microphone 10— we are pointing it out this way this afternoon —is Linda Casey, who is with Helping Unite Grandparents and Grandchildren. Please proceed.

Ms. Linda Casey (Founder, Helping Unite Grandparents and Grandchildren): Good afternoon, honourable Senate members and honourable members. My name is Linda Casey, and I am founder of HUGG, which is an acronym for Helping Unite Grandparents and Grandchildren.

Due to the obvious time constraint, I am unable to address the many issues surrounding the denial of the right of a grandparent to be involved in their grandchild's life. In our case, my husband and I were the primary caregivers to our grandchild. However, one issue I do intend to focus on is the issue of actual court orders for access.

You have before you a package of our supplementary documents. Enclosed in those documents are two court orders, examples designated A and B. They both define the dates and the times that the visits are to take place, and they both have the basic wording of a restraining order. The difference here is that if a grandparent has an order similar to example A, and the visits are not being met, not being complied with, the police will tell you there is absolutely nothing they can do. They'll call it a civil issue, and tell you that the only recourse is to take the parties back to court.

• 1330

For a grandparent to have actually got to the point of getting court orders for access undoubtedly would have cost them thousands of dollars in legal fees. And if the visits are not being complied with, then what you have is a worthless piece of paper.

But if you have court orders similar to example B, and the visits are not being complied with, the police now have the extreme authority to apprehend and deliver that child to me. And I have to ask, why? The reason is that the actual words “police ordered to assist” were physically written on that piece of paper.

What I do suggest here is a convergence of the two extremes, a place in the middle of the road that would better reflect the best interests of the children.

We strongly recommend that if a person has court orders for access, and they are not being complied with, the police are to automatically charge that parent who is in care and control of the child under section 127 of the Criminal Code. Section 127 clearly states that disobeying a court order is an indictable offence.

Possible police intervention is to be stated on all access orders, and parents denying access that a judge has ordered must be given the clear message that they will endure immediate consequences for their actions.

It seems the government had no hesitancy about making sure that people who smoke are aware of the health hazards by putting a message on a package of cigarettes that cigarettes can kill you. But for our defenceless children, who are being used as pawns and leverage every day, the government's actions are sorely inadequate.

I submit to you that the reason is that police involvement would require more funding at the local police level. The Attorney General and the Solicitor General support these cost-cutting measures. Certainly they are saving dollars, but it is being put on the back of every child who, through no choice of their own, is involved in the sad issue of access denial.

The police can arrest without a warrant and on reasonable and probable grounds any person they believe to have contravened a restraining order under the Children's Law Reform Act. But if a judge has determined that access will take place, and it is not being complied with, the police will do nothing.

Restraining orders protect us adults, but who is protecting the children?

I stress to you that all court orders for access are to have included the clear message that non-compliance will result in serious consequences. Then the choices are left up to the parent.

And the police involved are to be given a crystal-clear message and direction on what steps they are to follow. To a parent denying access to a child, potential police involvement is a major deterrent.

My husband and I had court orders similar to A. We were denied access to our granddaughter for 32 weeks. At one point we were granted a court order similar to B, the police-enforced orders. To this point we have never missed a visit. I stress that if people know that there are going to be consequences, and they will be acted on, it is a major deterrent.

In closing, I would like to thank all the honourable members for allowing me the opportunity to speak here today. Thank you.

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

Now, as you know, we turn to questioning. I think Mr. Forseth will start.

• 1335

Mr. Paul Forseth: Thank you.

As you know, being advocate groups, you understand that there are critics out there— and I'm not one of them —who say that automatically injecting grandparents just gives more fuel to the fight in the hotly contested cases. For example, the fact that they have additional financial resources they just give to the adult children to pay for further legal fees just perpetuates the court contest.

Also, because of the relationship of the grandparents to the litigant parents, often it becomes a group of us verses them, a feud of the Hatfields and the McCoys, or the Montagues and the Capulets, and it worsens the whole cycle of dispute resolution. I'm certain that's some of the criticism you've heard.

One of you mentioned my former colleague, the member of Parliament Daphne Jennings, and how her private member's bill was given such a rough ride by the government. It was deliberately put into the waste-paper basket, of course, by not being reported out of the justice committee.

So I would like you to respond to those criticisms you hear. Maybe you have some good arguments, or whatever, to put those to rest. You may have followed some of the deliberations surrounding Ms. Jennings' bill through the Commons. You might have some response on the reasons given at committee why that bill was sent to the waste-paper basket.

Ms. Carol Libman: In rereading what I just read this morning, coming down on the subway, it's a little difficult to understand, because initially most people seemed to favour it.

Then she did have an amendment to it. That knocked out some of the clauses that were problematic. People seemed to line up by party, for or against.

I find it a little difficult to understand. I don't have the entire dossier on this; I just have part of it. It would seem to me that mediation would be the best way all around.

I have heard of personal cases where the grandparents are still very close to the other in-law who got divorced. I mean, there are lots of cases like that. If grandparents could be considered kind of neutral, loving folks, who want to take care of the grandchildren more than anything, and stay out of the problems between the—

Usually it's a whole shock when children get divorced. It's quite shocking to the grandparents. They still want to keep in touch with the grandchildren, and if they're intelligent about it, they'll try to stay more or less neutral on this subject.

On your comment about them being able to put extra bucks into the legal case, they can do that anyway; it doesn't have anything to do with grandchildren. If they feel like bankrolling their son or daughter, they can do it. It has nothing to do with grandchildren, so I don't think we should confuse those two.

Ms. Joan Brooks: We strongly advise the grandparent in our group, first, not to take sides, to remain neutral, not to talk against either parent, to be the calm in the storm.

Our world as we knew it, the family as we knew it, is coming apart. I speak from experience. It is very hard for a grandparent not to say anything in favour of their own child, but we strongly suggest that you do keep your mouth closed.

You are there solely for the grandchild— again, I say, a calm in the storm —and as we know, things can get very stormy when divorces are pending or finalized. But this is what we strongly suggest.

You are the grandparent, and you should stay within the grandparent role. Let the parent parent, but never take sides, and never talk against either parent.

Also, if I can say something with regard to grandparents having the financial resources for litigation, I want to just totally dispel the myth that when denied access for whatever reason, the grandparents' first reaction is to go and see a lawyer right away. That's not the way it is.

There are grandparents. I've talked to dozens of them who have tried suggesting mediation, and it has been rejected. An offer has been put on the table, and it is rejected. This is because of the simple reason that one party is going to dig in their heels, and just refuse to be reasonable.

Certainly we don't want to go to court. We don't want to do that for any reason, for the children, what it does to them, no. But there are some people who are just not willing to negotiate.

• 1340

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

Ms. Carolyn Bennett: Thank you.

Thank you very much for coming. Not knowing Ms. Jennings' bill, I have only heard the hearsay that some of the objection was not that it's not a good thing for kids to see their grandparents, but that it became the right of the grandparents to see the children against all odds.

This committee is desperately trying to find child-centred solutions. I would want to know from this group, are there situations where the right of the grandparents to see the child would be waived?

As soon as there is legislation, then you worry. I worry that there's a sort of ethnic bias, that we aren't seeing the multicultural approach in this panel, that there are other cultures that do this better without it being a court-awarded right.

I feel I would always want to see the best interests of the child. Are there ever situations that you've seen where the relationship with the grandparent is actually inflammatory to the ongoing thing? How would the court or the legislation sort that out in what's actually best for the kids?

Ms. Carol Libman: Well, I think if you had in there that it has to be for the best interests of the child, then you take the same criteria as you do for anything else. You wouldn't let a molesting father or a molesting mother see the child anyway, except maybe with supervision. So the same would apply to grandparents, I would think. They're people. They're not necessarily angels, but—

Ms. Joan Brooks: I would like to add a comment, if I may. First, I would like to thank you for delivering my grandson a few years ago.

Ms. Carolyn Bennett: I hope it was a child-centred birth experience.

Ms. Joan Brooks: It was one I'll never forget.

Grandparents, the same as parents, don't all come with halos. Why not take a bit from article 611 from the province of Quebec, “without a serious proven reason” in denial of access? Of course, not all grandparents benefit their grandchildren.

I would also maintain that for every grandparent that comes out to a meeting or a place such as this, there are at least four who will stay home because there's a stigma and they're ashamed for it to be known. They have nothing in common with other grandparents in denial of access, and other grandparents cannot understand, whereas in a self-help, peer support group, when you sit down at the table everyone knows you're there for that same reason.

But no, if there are serious allegations, then of course that would have to be looked at more closely.

Ms. Carolyn Bennett: For grandparents who have ended up being the primary caregiver, do you find that the response the court has to that— Obviously I think certainly in the West Indian community and in the aboriginal community, where it's quite normal that the grandmother be the primary caregiver while the daughter-mother goes out to work, there's a very different relationship in those. Do you feel that our courts in Canada have been able to acknowledge that in terms of what then happens when that relationship breaks down, or do you feel that even then it has not been fairly dealt with?

Ms. Joan Brooks: Speaking from an aboriginal point of view, which I am, an aboriginal status, it's common that you just sort of inherit your grandchildren. It's a bit different, but even that is coming away from being— whatever you want to call it. Our group is a very diverse group of grandparents. It touches on everyone. No one is above it any more, on all ethnic levels and all financial levels.

I think if more awareness is brought, in all fairness, from these groups and hearings such as you're presenting today, if we are given the chance to give an exposé, for want of a better word, of what is happening within the communities, I think you'll be more aware.

Ms. Carolyn Bennett: Thank you.

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

Mr. Eric Lowther: I have a very brief question, Mr. Chair.

In regard to grandparents rights to have access to the children, grandparents' responsibilities, where do we stand there? We want to have access as grandparents, let's say. I'm not one, but we want to have access. But are we prepared or do we think it would be wise for the grandparents to also have, with that access, some responsibilities entrenched or captured in legislation or from whatever we might recommend from this committee?

• 1345

Ms. Joan Brooks: You mean financial, as in Quebec in times past when the grandparent was responsible for the grandchild?

Mr. Eric Lowther: Perhaps that. I guess where I'm coming from is that if you're a parent, you have some responsibilities, and with that, you have the opportunity to say that you also want access or should have access as well.

I'm wondering if the grandparents who are here and the voices of the grandparents associations are saying that they want to have access but they really don't want to have any responsibility. Or are they saying that they want to have access and yes, they are prepared to step up to the responsibilities?

Ms. Joan Brooks: I think more grandparents than not would certainly take the responsibilities given to them of helping the parents.

I do have a problem with the word “right”, because we know that it is in the best interests of these children or a child, whatever the case may be.

Mr. Eric Lowther: I apologize, I did not phrase this very well. I think what I was more wanting to pursue is this: should this be the option of the grandparent? A grandparent who wants to get involved has the support of legislation to get involved. But if they wish to opt out, they can quite easily opt out too. They can say that they don't want to have anything to do with this. They would not be part of this process, whereas a parent couldn't do that as readily.

As a grandparent, I wonder whether you step into the same realm as that of a parent, where the law kind of requires you to be involved. This is as opposed to taking the tack that it's easier for a grandparent to be involved but it's simply a matter of choice for a grandparent, whereas for a parent it wouldn't be a matter of choice. It's sort of inherent in the whole approach.

Ms. Joan Brooks: I don't know if I'm receiving you or not, but actually the parent is the parent.

Mr. Eric Lowther: Right.

Ms. Joan Brooks: The grandparent is the grandparent. I don't think grandparents go out searching for these grandchildren to raise at a later stage in life. But I say thank God we're here for them, as opposed to having them going into care at a great cost to taxpayers. As we know, it's much cheaper to keep these children within their extended families.

Again, I have a problem with the word “right”. Are you trying to say that you feel that grandparents should be on an equal level with the parents?

Mr. Eric Lowther: I don't know what I'm trying to say, to be honest with you on that.

Voices: Hear, hear.

Ms. Joan Brooks: The parent is here, the grandparent is here.

Mr. Eric Lowther: I think what I'm struggling to try to get out here is this: Should the big system here that we're trying to fix consider automatically that grandparents have a role to play and they need to be part of this process right at the start? That's a pre-assumption, a foundational position. Or should it be more like it is today? Maybe we're worse than this, but if the grandparents make enough noise or if they're interested, then maybe they have access to the debate. That's kind of, I think, where we're at today, and it's not even that good.

Those are the two sides that I'm kind of wondering about. Where would you line up on this issue? Should it be foundational and expected such that you're in the program right from the beginning? Or should it be that if they want to, they can?

Ms. Joan Brooks: Right now, as for grandparents of of children who aren't divorced, some spend more time with their grandchildren, some spend less. Some live in Vancouver and the grandchildren live in Halifax. There are all these things to be taken into consideration. But I think grandparents should just be considered a normal part of the family. Whatever has happened to that family, they're just still there.

I think you probably have already done research on what's happened in Quebec, where grandparents are required to help support children if, for instance, their son or daughter who has to pay child support is not in a position to do it.

But I think that has varied over the years. In the last court case I read, it was simply to make sure the child was fed and clothed properly, not that they had to go to a private school. The grandparents did not have to fork over for that, but they did have to make sure that the basic needs of the child were supported.

• 1350

Possibly more research on what has happened in Quebec would give us some kind of a line on this.

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

Senator Erminie Cohen: I have a supplementary to that. The Quebec Civil Code does recognize the importance to children of their grandparents and the grandparent-grandchild relationship, and prohibits parents from interfering in that relationship. That stands as of now.

I'm a grandparent myself, and I know that when a child is in turmoil, in the middle of a war, there has to be a safe haven for that child to go and see that there are marriages that are intact and that do work. The child's future depends on that experience. He may also be frightened to enter into a relationship when he just hears warring words around him and feels the atmosphere.

I missed the beginning of your address. You made comments such that grandparents should remain neutral and be there for the grandchild, and that we should let the parents parent.

In the best interests of the child, the pre-assumption that was made by my colleague may be right: maybe the starting point should be that when the relationship breaks down, there should be a plan in place. This is like a preventive approach so that, at that point, grandparents are ready to step in and take the natural road that they want to take anyway, because they're there for the child.

It's maybe a comment, not really a question.

The Joint Chair (Mr. Roger Gallaway): Do you have a response?

Ms. Judy Cutler (Canadian Association of Retired Persons): I just wanted to add that my parents were divorced. I had a grandmother who remained loving and neutral, which took me beyond the situation and reminded me about the values of family. So I think it's very important. I think she would have been the same whether my parents were divorced or not.

It sort of bothers me to hear talk now about grandparents being different when the parents are or are not divorced. They're still the grandparents, and I think most of them would remain neutral with the grandchildren.

Senator Erminie Cohen: A comment that I heard on television this morning said that there were some 71,500 divorces in 1996. I just figured out that this means 286,000 sets of grandparents. So we have to consider this whole big constituency out there, because there are a lot of them. I think that the intervention is important. I'm hoping that when our meetings are over we may come to a very positive step for grandparents.

The Joint Chair (Mr. Roger Gallaway): You have a supplementary?

Ms. Carolyn Bennett: I was just wondering, are there books that you like in terms of resources for grandparents going through this? I think a lot of what has been said is so sensible. I hope that when couples are about to separate, the grandparents could go and read a little bit about what you're saying in terms of just how to be there as a safe haven for the kids. Is there any book you really like?

Ms. Joan Brooks: There's a Canadian author who has assessed this, and she has written a book called Grandparents Don't Just Babysit. There are a few American authors as well who are very good.

Ms. Carolyn Bennett: Thank you.

The Joint Chair (Mr. Roger Gallaway): I want to thank you for coming this afternoon. It's important for us to be reminded that families are more than fathers and mothers and children. We're very pleased that you were here.

I just wanted to add another point. I'm pleased that Mr. Forseth raised the question of Ms. Jennings' bill. I should point out that Ms. Jennings' bill was a private member's bill. Believe me, I know from my own experience that they're very problematic.

I was a member of the justice committee, and I want to assure you that there were no instructions from the Minister of Justice. In fact, as a Liberal member in the last Parliament, we were evenly divided on what should be done with this bill. Hopefully, this is our opportunity to go in a larger sense toward addressing the issue. So thank you for coming.

Ms. Carol Libman: I have one question. This is not then part of any divorce act. This is not part of any divorce act, which the original bill was. This is a whole separate bill. It won't come under the Divorce Act, so it will also cover—

The Joint Chair (Mr. Roger Gallaway): We're not dealing with a bill.

Ms. Carol Libman: We're starting from scratch.

• 1355

The Joint Chair (Mr. Roger Gallaway): We will deal with the Divorce Act, of necessity. We cannot deal with the Family Law Act, which is provincial, so when you refer to children who have died and left grandchildren, we cannot deal with that contingency. We can only deal with the federal jurisdiction, which falls under the Divorce Act. Those other matters to which you refer—

Ms. Carol Libman: They're all provincial.

The Joint Chair (Mr. Roger Gallaway): Canada is always a very complex country, and there's always this division of jurisdiction. Those situations fall under provincial legislation.

Ms. Joan Brooks: Perhaps if I may add something, very briefly, when we're dealing with child access and custody hearings, we must also think about the intact family, where there is no divorce and yet there is denial of access to the grandparents, and hopefully consider that as well.

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

Ms. Joan Brooks: Thank you.

Ms. Linda Casey: Also, if I may add something, one of the things I would like to stress is that for grandparents who are being denied access, educate, don't alienate. I can't stress that enough.

Also, if I could take another moment, another point is that it is not only grandparents who are denied the access here; it's aunts, uncles, nephews, nieces, whatever. It isn't just two people who are being denied access.

If I could make one other point here, for us, during the whole legal process of trying to obtain access, there was nobody there for the child. The Office of the Children's Lawyer can be involved, certainly, but unless the child is physically abused, something outward like that, if it's an emotional thing for the child there's nobody there. In our particular case, for our granddaughter, there was nobody there for her. We wanted to be there, but we were forbidden.

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

Ms. Linda Casey: Thank you.

The Joint Chair (Mr. Roger Gallaway): We'll adjourn for five minutes, five minutes only.

• 1357

• 1402

The Joint Chair (Senator Landon Pearson): Welcome to our next panel: Resa Eisen; Dr. Howard Waiser; and Dr. Elsa Broder, from the Hincks Centre for Children's Mental Health.

We're looking forward to what you have to say because we haven't had that much yet on what I believe you're going to be talking about, which is working with children and experiencing divorce. So would you start please.

Ms. Resa S. Eisen (Individual Presentation): Certainly. Good afternoon. I don't know if you know about backgrounds. I'm a social worker in private practice in Toronto and I've specialized in working with families of divorce as a counsellor, an assessor, and a mediator for about 22 years, and I've been in my own private practice since 1982.

I thought what I would do is present to the committee some thoughts that are dear to my heart about working with families of divorce. I'll just read that and then we can get on with the presentations of Dr. Waiser and Dr. Broder.

Honourable committee members, historically the courts and mental health professionals have been involved in dealing with families after separation and divorce to help decide the custody of the children.

The principles that have guided child custody determination have changed significantly over the years. Robert McWinney, in his article on the changing fashions in the determination of child custody, elaborates on this. He describes the principle that prevailed for centuries, which saw the father, the man, as having the rightful claim to the custody of his children, as he did his other property. In the years that followed the tender-years doctrine, which viewed the development of the child as exclusively dependent on the emotional relationship between mother and child, became the guiding principle. More recently, Goldstein, Solnit and Freud, in their 1979 text, provided the basis upon which child custody determination became the guiding principle. In essence, they talked about the best interest of the child and that was the fundamental premise.

Best interest translated into a theory that there was a psychological parent and that this relationship had to be decisive in order to meet the child's inherent need for security and continuity of care.

In some ways, the best interest doctrine and the current family law have something in common. That is, they view that one adult can perform parental functions better than the other adult. In family law, the focus is on who is going to have custody of the child and who is going to be the access parent. In the mental health field, assessors spend considerable time and effort determining which parent has the best qualifications to support the child's emotional, social, educational and health needs and thus be awarded custody of the child. Both, in my opinion, limit the scope of this complex and multifaceted dilemma and reflect the model of control rather than care for the children of divorce.

• 1405

To put this in perspective, most parents, when they are faced with having to make very difficult decisions about children as a result of their marital breakdown, work it out themselves or they seek the assistance of a counsellor or mediator when they need help. The court is truly not the place where most people want such critical decisions to be made, but the law is a template upon which child custody issues rest. The very first person often consulted by the parties is a lawyer, who they look to for guidance and advice as to the best course of action. We know that lawyers have the legal principles of custody and access to guide them. Whether there is civility or acrimony, the law regarding children whose parents are separating is the law of custody.

As long as the question of who is the better parent remains the test of custody determination, then by definition one parent must win and the other must lose. From the beginning of the decision-making process, the legal context invites and often reinforces an adversarial approach where parents are opponents and automatic enemies. Who among us would not suffer a dramatic impact on our self-esteem as we set out to prove our worthiness and the other's lack of value? Separation is already the crisis of a lifetime, creating an upheaval of tremendous proportions. All that is familiar is gone. Everything is in some form of chaos and loss is everywhere.

It's not that parents don't want to think about their children in matters of custody; it's that they don't want to, even can't bear the thought, of losing their connection to their children. To be relegated to the inferior status of non-custodial parent, to become the access parent who is the visitor, is unacceptable and even humiliating and depressing. The law as it stands does not offer many options. Once you necessarily engage the legal system, a system predicated on adversarial resolution of interpersonal and legal difficulties, the essential task vis-à-vis maintaining the integrity of the parent-child relationship is at risk of becoming blurred at best and annihilated at worst.

Application of the law also makes finite something that is fluid and ever-changing. Whatever the family organization pre-separation, there is an expectation in law of a whole new set of parental functions and behaviours. This new set is fought on the premise of inalienable rights, exclusivity of parental roles and the Solomon-like dilemma of cutting the child up in more than halves.

Is it too simplistic to consider laws that break away from the emphasis of parental rights and winning or losing to laws that emphasize parental contribution and responsibility? Is it possible to have laws that presume parental worth and value and laws that expect shared roles and contributions? Could we develop laws that help parents remain committed to their children's well-being and help them shift their own identities from co-spouses to co-parents? The literature certainly supports this concept.

Research has shown us time and time again that children do not care who has ownership of them but rather they have great concerns about how each parent will be able to maintain their relationships with them. We know that children who experience ongoing conflict between their parents suffer the long-term effects of being caught in between the most important people in their lives. It is a damaging and untenable position to be in.

Lee, Shaughnessy, and Banks write about a court service that was set up in Arizona to actually enforce access orders. They talked with the children and concluded that when visits with the non-custodial parent were more frequent, the children's overall and school adjustments improved. These children were less depressed when they had quality relationships with both their mother and father.

For parents, however, the only quality role is that of custodial parent. As Robert McWinney writes:

Even without the other parent's flaunting his or her victory, the legal diminishment of a person's parenthood can hardly enhance either the feeling or the performance of the access parent, and the subsequent bereavement for the loss of meaningful parental status can detrimentally affect both parent and child.

Lawyers and mental health professionals alike have known of many examples where the performance of the access parent has indeed been questionable. In an alienated and disenfranchised position, the non-custodial parent's involvement might completely diminish over time or become overtly antagonistic. The custodial parent also might behave in ways that were neither inclusive nor supportive of the other's involvement.

Joint custody was meant to acknowledge the mutuality of parenting and there's been much written about whether it has been a help or a hindrance. Philosophically, as joint custodians, parents could distribute the workload more evenly, children would be less caught in loyalty binds, and mothers and fathers would be equal. In my practice, the concept of equality is the one most often linked to joint custody. This could lead to an erroneous and potentially damaging desire to have equal participation in the child's life in all ways and at all times. It is a curious idea when one compares the notion of equality to what actually takes place in the intact family. However, this form of joint custody is different from the idea of jointly contributing and sharing in the life of a child, and it often creates an atmosphere of competition and debate. It is time for an ethical shift.

• 1410

The Joint Chair (Senator Landon Pearson): We're trying to keep the presentations as short as possible because our time is short and questions are—

Ms. Resa Eisen: I have these last few paragraphs.

The Joint Chair (Senator Landon Pearson): Okay.

Ms. Resa Eisen: It is time for an ethical shift supported in law and congruent with our knowledge of family systems. As authors Leonoff and Montague say, responsibilities are a far more personally demanding dimension than rights, and will often lead to different conclusions. Mediators experience this all the time in custody and access disputes. Even the most difficult cases can result in a mediated settlement when the perspective is one of self-determination and choice. Mediators help parents talk about their respective contributions, time-sharing thinking through educational needs and financing the lives of their children. The other is not the enemy but a co-author and co-contributor.

Of course there will always be situations where mediation or any other form of conflict resolution will be ineffective. The highly conflicted family, the family of significant power imbalances, the parents who use every opportunity to launch their next attack— these are situations that often invite the structure and authority of the courts. Assessors will still be called upon to make determinations in cases where the parents' behaviour has clearly interfered with the right to self-determination.

In conclusion, the presumption of parental contribution and parental responsibility is, in my opinion, the necessary cornerstone. Developing legislation that is enhancing rather than diminishing, and that establishes standards that encourage a continuation rather than a severing of parental bonds, and assisting the parents in ways to contribute to their children's emotional and practical well-being would be the focus. I believe the law can define parental contribution and can define parental responsibility. This would allow for a legal product that would be far more descriptive and would allow for a considerable definition.

It would also allow for change, for all custody matters are dependent on the age and stage of the child, as well as on parental circumstances at the time the child is being raised. It is similar to the model of shared parenting, but in the current state, parenting plans are the creation of the parties and their counsel and not an established part of family law. If we want to focus on the best interests of the child, we need to develop laws that shift the emphasis from parental rights and control to parental responsibilities and contributions, to reflect the real lives of the people the law will impact on. This seems to be far more congruent with what is truly in the best interests of the child as a member of his or her separating family.

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

Dr. Waiser.

Dr. Howard B. Waiser (Individual Presentation): I'm Howard Waiser. I'm a psychologist, but aside from that my background is very similar to Resa's. I do have an extensive practice in parenting, custody cases, and mediation. Let me read my text.

One of the problems in dealing with legal aspects of custody and access is that we're trying to formalize a psychological and family dynamic to our judicial system. We believe that by litigating the issues at hand we can impose structure and discipline to parties, and that everyone will cooperate with the judicial decree. The truth of the matter is that everyone involved in a custody matter is overwhelmed by the emotional aspects, and these are not conducive or responsive to litigation or authoritative direction.

Custody by its very nature suggests possession and control of a party, in this case the children of the marriage. The cases that are of judicial concern are those in which both parties want to be involved, possibly because of their feelings of love and concern for the children, or perhaps as a form of vendetta against the other person. Between these poles are a host of dynamics that direct and dictate the parents' involvement with the children.

The very nature of custody cases suggests that there will be a winner and also a loser. Such an attitude is not conducive to healthy family relationships nor to the emotional development of children. I propose that instead of focusing on custody and access as is presently done, the attitude and mental set of persons involved in these cases change to issues of parenting and to the residential placement of the children. Parents in this matter will always be that. A father can never be replaced by someone else, and a mother cannot have her role usurped by any other person.

In a healthy family, be it separated or intact, both parents are working together for the benefit of their children. They are co-parenting, following certain inherent dynamics within the family relationship and complying with expectations that have evolved during the course of their union. When the family separates, this co-parenting attitude will change but should not be eliminated or obstructed. Rather, the dynamics of the co-parenting relationship take on a new form, because the parents are not in contact with each other and because the nature of their relationship has changed.

However, it's important that they continue to be involved with each other for the benefit of the children, and that we not allow one parent to be the winner whereby he or she has control of the children and therefore of the other parent as well.

• 1415

Neither must we allow somebody to be a loser, because then one has limited investment in continuing the process. By focusing on parenting instead of custody, everyone can continue to be involved in the family's relationships. This is not to suggest that both parents will always have equal involvement with their children, but rather that their time and input will be directed by their willingness and ability to serve in this role, and the benefits the children can realize from this arrangement.

The possible paradigms for this involvement are limited only by our imaginations, be it the standard alternate weekend and Wednesday evening meetings, or the situation where the children may remain in the home and the parents move in and out. Children need to have both parents throughout their lives, and to maintain this involvement in whatever form it may take.

Complemental with this shift in attitude about parenting is a shift in our view about the placement of these children. It is recommended that the focus of attention and attitude of where the children should live be subsumed within a philosophy of residential placement, the idea being that they are not in the custody of a particular parent, but rather that the home of that parent is identified as their place of primary residence. In this way we have identified the home where they can be best served, but not at the expense of their relationship with the other parent.

A primary residence is important so the children can identify an address where they can get their mail, for school placement and to register for local sporting teams. This is the place where the child habitually lives. It is a physical setting, but not a place of authority or control by the residential parent.

Let me now focus on the issue of decision-making in any family. It's a myth that all decisions in any system are made by mutual consent and agreement. In any family there is usually one person who makes most of the decisions. Making these decisions is not an issue of power, control or authority. It's a position of responsibility. Being in control suggests that one can direct others and bask in the glory that may arise. Being responsible means that one is accountable for the decisions that are made, be they good or bad. It is this accountability that makes this a task. We must alter the perception of how we view this dynamic so that we can ensure this process is handled properly.

The ideal situation would be when both parents could discuss the issue at hand and then reach a conclusion based on mutual respect and cooperation. However, the reality is that when there is not consensus, one person must assume responsibility for making decisions and be held accountable for whatever may result. This is a task that would normally be given to the parent who knows the most about the issue or the one who knows the child best. When the parents cannot agree who this should be, it will likely fall to the person with whom the children reside, as this is the parent who is likely to have the greatest insight into what is best for the children.

How are some of these decisions made about where the children should reside? Recently, mediation has come into vogue for this process but has not proven to be the panacea to the problem that many had expected. Mediation works, and works well, when you have parents who can set aside their own personal agendas and work together for the sake of their children.

What about those cases where this does not exist? I'd like to remind the committee about another form of conflict resolution— assessment. This is a process where the clinician has the opportunity to view the members of a family individually in various combinations in a more natural and realistic way than is available in court.

In an assessment, you have a professional with a clinical background and experience who is dealing with the parties and is not unduly influenced by the nature and persuasive manner of the lawyers. They have the time and inclination to explore various parenting paradigms with the parents and the children, and then design a residential system that can accommodate the needs and abilities of the parties involved. An assessor, unlike a lawyer, gets to see both sides of the coin, and unlike a judge has the time to address the emotional and psychological aspects of the case.

The Joint Chair (Senator Landon Pearson): How much longer?

Dr. Howard Waiser: I have a paragraph and a half.

The Joint Chair (Senator Landon Pearson): Okay.

Dr. Howard Waiser: As I say, a judge has the time for the emotional and psychological aspects of the case— more so than just the legal formalities of the matter. In the end an assessor reaches a conclusion, recommends a family design that is functional and places the needs of the children first.

This can be challenged by the parties if they do not agree, but at least they have had their case fairly evaluated. An assessor works on behalf of the children. The assessor identifies them as the clients and helps the process to realize its goal of identifying the best child-focused living arrangement for this family.

I'd like to offer the committee copies of a manuscript entitled “Custody and Access Assessment Guidelines”. It was recently published by the Psychology Foundation of Canada. While my support for the title of this book may sound in contrast to my position today, I too was restricted by the rules and expectations of the day, but I hope my recommendations and this manuscript can be helpful in your deliberations.

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

• 1420

Dr. Broder, I feel badly about keeping people in a tight line, but questions are important to us and we like to hear what you say. We also have to caution that if you speak too quickly, it's hard on the interpreter, so you're in a bind. Go ahead.

Dr. Elsa Broder (Head of Medical Staff, Hincks Centre for Children's Mental Health): I'll do it if I can.

Just to tell you the context in which I work, I'm a child psychiatrist and associate professor at the University of Toronto in the department of psychiatry. I'm the head of medical staff at the Hincks Centre, which is a children's mental health centre, and I was one of the founding members of the custody project of the department of psychiatry. So I come to you with experience from a number of different settings.

Rather than reading some notes, I thought I would talk a little bit more extemporaneously about some of the issues that I feel are important.

In my job at the Hincks treatment centre, I'm often dealing with the fallout of separation and divorce. More than 50% of the children we see in our centre do come from single-parent families, and of course usually in the greatest percentage of cases they're mother-led single-parent families, which brings a whole bunch of problems for me.

Just before coming here, I was seeing a family in which separation and divorce is the issue, and I said what should I tell this august group? They said one thing, together— and this was a “his and hers”. They said get the lawyers out. They've been trying hard, and I think the issue they're trying to point to, which is one that's near and dear to my heart, is that decisions about the care of children are basically a social and a mental health issue. It's not a legal issue; it shouldn't be a legal issue here.

Unfortunately, the fact that we make such decisions within an adversary system drives the whole decision-making process, and as the others have said, it pits one parent against the other. My concern— and I left a document for you from the Sparrow Lake Alliance on the child in limbo —is that it's not child-focused decision-making, hence it's not really in the best interests of the child. It's a “his-and-hers” mind versus yours, and it really doesn't focus on the children.

Children, to grow up, need a secure base in order to reach their potential. They need to know what will happen to them, who will care for them, who they can rely on. They need predictability, and they need their time sense to be respected. Too often these kinds of things are ignored completely, and, as the task force points out, the kids are really left in limbo, not knowing what's going to happen for them.

It seems to me decision-making needs to be made by people who are really knowledgeable about the needs of children and their development, and they need to have enough clout to help the parent make it happen.

I don't think there's any one answer to the way of proceeding with this. Mediation has its place, if it's child-focused. Unfortunately, I think often it's not child-focused, and it's again “his and hers” in trying to work something out.

Assessment arbitration has its place, and underneath a lot of this stuff it's a mental health issue, in that the parents need help in disengaging from one another and from mourning the dream of the perfect family where everybody lives happily ever after.

I've had some experience with the courts, and I do think the case-management model has a lot to offer. It's really disastrous when every time they go to court you have a different person who is dealing with the situation. So continuity is important.

The second thing I want to mention is that custody and access agreements are unfortunately often written in stone, and they forget that children are growing and developing and they have different needs. There needs to be a non-adversarial, non-legal way in which these kinds of alterations can be made.

The third point I want to mention is about the disappearing fathers. I'm very concerned about what happens to fathers. I think children need two parents, and I don't believe parents should be able to divorce their kids. Both parents have a continuing responsibility to be involved, and they can give things to the children.

• 1425

In practice, even though it's legislated that the non-custodial parent should have information and things of this sort, it doesn't happen, because the non-custodial parent turns up at the school and they say, “You have no rights here. We're not going to give you school reports; we're not going to give you health reports.” I just don't think that's particularly conducive. They don't even get told when parent-teacher meetings are and things like that. If you want fathers to be involved, they need that kind of information.

The fourth point I want to make is that we're in a time of fiscal restraint and we've been cut back at our treatment centre, and I don't think we're atypical of most, so it's almost impossible, for the well-being of parents, to get the kind of help they need. Many of the people I see can't go to Resa or Howard; they don't have the money to do that. This morning I turned away three families who were looking for help because it was cheap; it was under OHIP. That's not a very helpful situation. I don't know if you can do anything about it, but I certainly have concerns about that, because I really don't believe the legal system is the best place. You need a whole array of services from people who are child-focused and knowledgeable.

Then the last point I want to make is I was actually surprised when I went back and read the current Divorce Act. It doesn't really say what the best interests of the child are and how they are to be ascertained. I know in Ontario the Children's Law Reform Act and the Child and Family Services Act do spell out some of it. Some of these issues need to be spoken to.

At this point I'm going to stop.

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

Now we'd like to welcome Dr. Hood, who came in a bit late, but that's all right. You're here. It's a late time, at the end of the line. He's from the Clark Institute of Psychiatry.

Dr. Eric Hood (Coordinator, Co-op Education, Clark Institute of Psychiatry): That's correct. Thank you.

I'm also with the university and share much of the experience Dr. Broder has described, working with families before the courts. A great part of my work has been in providing reports to court to assist them in determining how the custody and access arrangements should be set up.

Over the years we've seen a number of ideas come and go and we've seen a number of assumptions disappear. I think 25 years ago people were very worried about the effects of divorce on children in general.

In some ways, some of the research that's gone on over the years has been reassuring. Children don't necessarily need two parents to grow up well. That doesn't mean they won't feel badly about not having two parents, but many kids with one good relationship with one adult do very well in life, and that's reassuring. That's not to advocate that parents should be shut out.

But that kind of worrying about the overall effect we can perhaps put to one side. What's more alarming is that in the smaller percentage of cases that persist in high conflict— going to court, litigating, back to court year after year, parents quarrelling, parents attacking each other —those children are very vulnerable. This is very harmful. That becomes clearer and clearer. That's very much the population that those of us who do assessments end up seeing.

One little boy we had in a treatment program a couple of years ago was asked by a judge— We had a few judges visiting and they sat down with some of these kids for a few minutes. One of the judges said, “What's it like for you to be in this situation?”, and the boy said, “You can never tell the truth”.

I don't think he meant he had to tell lies, but he meant he had to weigh his words and his comments all the time so as not to offend Dad or Mom. So there are kids living in these kinds of war zones— and believe me, they are war zones —who are having to watch what they say and where they put their feet.

I can speak very personally about it, because those of us who work in trying to assess and understand these situations— dealing with each parent and with the children, dealing with the parents and kids together, or dealing parents together in the room —end up very stressed, very troubled, by the experience of dealing with these situations. It's as if we're like the children, and it makes our stomachs churn. If it does that to me and it's not my family, what's the pressure on the children?

I am a bit concerned that in your hearings you're going to hear a lot of stuff that's dressed up as child-centred but doesn't really tell you what's happening to the kids, that the axe is being ground on behalf of one adult or another. So I want to make that pitch to you.

• 1430

A certain percentage of kids are really suffering from the warfare. I think the common notion is 10% of families go to litigation, so you can bet that 10% of kids, and probably quite a number of others, have a fair bit of stress. I'm sure that 90% of the kids whose parents separate will tell you they'd rather have them together, even when they know there will be conflict. That's a natural developmental thing, which children are not going to change their minds about until they hit age 11 or 12. We'll never take that away from them.

From a psychological and emotional point of view, the other point I strongly wanted to make is that in family breakdown, there's no winning. Sometimes there's relief for some people, but there's no winning and everybody ends up feeling deprived and ripped off. Mothers feel poorer. They feel burdened with more responsibility. I'm talking about the general pattern, when the moms are the ones carrying the load. Kids feel ripped off. There's not as much money to go around. There's not as much adult attention. Of course, fathers can feel very deprived since they're no longer within the bosom of a family. It's unlikely anyone's going to come out of it feeling good. Already a high level of a sense of deprivation, discontent, or anger is going on.

One of the things, not from a research point of view but certainly from a clinical experience point of view, that has been very clear in working with the high conflict families is that many or most of these parents have had their own traumatic experiences of a variety of kinds, whether it's been abuse, parental abandonment, or losses in early life. This make them candidates to be very sensitive to and very hurt about other disappointments in their adult life. Buttons get pushed, they go through a marital separation, and it brings back a tremendous sense of pain and loss that has to do with something in their earlier lives. It may sound like fancy psychology, but believe me it's really there and you can see it.

Unfortunately, people often don't realize these connections and so their drive to fight in the litigation may be getting fueled by events long past in their own lives and they themselves may say were not painful. I mean, I've had people say to me: Oh yes, my mother moved away when we were 10 because she moved to Canada, but it didn't bother us. We went into boarding school and our father worked on the boats, but it didn't bother us, it didn't upset us.

Well, if you're 10 and your mother and father both had to bail out on you for whatever good reason, it's painful. But this poor chap couldn't see it, and now he's locked in a fight with the mother of his kids.

I think the sensitivities and the vulnerabilities are something important to have in mind, as well as the fact that in these situations you're dealing with adults who are very often, at least on an emotional level, being pushed back into childhood feelings of fear, abandonment, and loss.

However rational they may be at most times, however grown up, and however well they've achieved, when it comes to these very sensitive, intimate family situations, they're dealing with childhood feelings and not with grown-up rational thoughts all the time.

I've a lot of concern about how easy it is to litigate versus how much pressure there is to solve problems and to make plans for children. It's all too easy for people to submit terrible affidavits that have a ghastly effect on the other parent. Often they're really quite poisonous, and it's often at the beginning of a process. Some U.S. jurisdictions have tried to get around this by building in mandatory parental planning, which has to be carried out with a professional before any litigation can begin. I think we need something to get in the way of the litigation, something that forces parents to look at the day-to-day needs of their children. What's Johnny going to do on Monday, Tuesday, Wednesday? How are you going to do it? Who's going to be there? We need to force them into that truly child-focused kind of thinking.

The Joint Chair (Senator Landon Pearson): Dr. Hood, you weren't here when I told everybody else they had to speak as quickly as possible. We have only about half an hour left.

Dr. Eric Hood: Am I out of time?

The Joint Chair (Senator Landon Pearson): You may go another tiny bit, with your main recommendations.

Dr. Eric Hood: Sure.

The words “joint planning” are listed in your material, and I think it's an admirable thing to be looking toward. I usually tell parents that I don't expect them to be good friends with each other, but they have to act like business partners. Business partners sit down, they have an agenda, they go through it, and they shouldn't get emotional. It's a nice ideal, but it's what parents should be striving for and we should be beating them over the heads to think about it. I think we need public education to emphasize this sort of thing.

It's not going to work for everyone. A percentage of people won't manage it. I think in whatever recommendations you have you'll have to allow for the fact that a fair percentage of people can't ever sit down and plan together, and there have to be other methods of ensuring that plans are made in a decent way for children, perhaps by referring to professionals who can assist in the way that Dr. Waiser was talking about.

• 1435

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

Senator Cohen.

Senator Erminie Cohen: Thank you.

Thank you very much for the message you have delivered to us today. You have given us a lot to think about. I think it was Dr. Broder who mentioned that the decision about the care of children is not a legal matter but has to be done by people who care and understand. I think there was also an off reference about lawyers.

We have to understand that the divorce law was written by lawyers, so I think we're sitting here today because something is missing in that area.

Dr. Elsa Broder: That's what my family said.

Senator Erminie Cohen: I have several questions, but I'll do one now. Maybe I'll have a chance for a second round.

To anybody: Under our present legal system parents are advised, and this is in the best interests of the child, to stay in the matrimonial home, because leaving will cause them to lose an advantage in a custody dispute. This is an extremely bad situation for children emotionally, because they're in the middle of a war zone and they can lose respect for either parent or both of them. Do you think the legislation should change and provide for a different kind of a resolution, one that doesn't require parents to remain together to gain a tactical advantage?

Dr. Elsa Broder: Again, if you're couching decision making within an adversarial process, you're trying to gain all kinds of advantages.

Continuity of care is an important thing for a child, but how it's used to me is the concerning thing, because it's used in a way that really doesn't address the needs of the child. The children are constantly caught, as you say, in the war zone and they're pulled in every which direction. If you could find a way of getting around that, I think there's much to be said—

Dr. Howard Waiser: That's the dilemma. To be sure, even though everything is done without bias, etc., the truth is that the parent with whom the children are living will have the advantage. I think some kind of equalizing— I've actually had a flood of those lately. They seem to be coming out of the woodwork somehow.

I have a couple whose kids are staying home and the parents are moving in on a couple of days basis. It also happens on a daily basis. One parent comes in, makes dinner, and does some other things. They're sharing, but they're not seeing each other. It's maintaining some kind of reasonable balance. That was worked out by the lawyers, so I guess once in a while we do get lucky.

Dr. Eric Hood: I think when this type of situation occurs, people are stalling. They're putting off the evil day when they have to make a decision themselves and face the need to plan for the future. It's kind of stalling, which isn't very productive. People need to get on with what they are going to do next year, next month. I don't think it really serves people very well.

Senator Erminie Cohen: Thank you. I'll hold my question.

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

Mr. Paul Szabo: Thank you.

The divorce rate in Canada is about 50%— well, it is down to about a third now. We have over a million common-law families, and their breakdown rate is about 50% more than married couples.

In 1996 common-law couples represented 14% of all families, but if you looked at the under-30 age group, actually 42% of couples under 30 are common law. This says to me the problem, whatever it is now, is going to get much greater as we get down the pipe with family breakdown.

Ms. Eisen talked about one must win and one must lose, and I'm still looking for the one winner, other than the lawyer. Dr. Broder, I think, is quite right. According to the Vanier Institute, 12% of all families are lone-parent families, but they account for 46% of all children living in poverty, 70% of young offenders, 75% of teen suicides, and 80% of adolescents in psychiatric hospitals. It goes on and on.

We all know, intuitively and probably from our experience, what affects the positive outcomes of children, and a lot of it has to do with consistent, secure attachment to a committed adult, whether it be a parent or not. It seems to me if we don't have a parent or two parents, or either parent, exercising good faith where it concerns the needs of the children, we have to answer one question, which I hope you're going to answer for me. If we really all do understand what affects positive child outcomes, and everybody can attest to how much we love children after we break up and that we're going to fight because we love them so much, how the hell do we explain the skyrocketing break-up of the Canadian family?

• 1440

The Joint Chair (Senator Landon Pearson): Who's going to handle that one?

Dr. Elsa Broder: There is no one answer to that question, but I don't necessarily think the only thing that helps children in divorces is having one primary parent. The other thing that research points to, whether it's the common-law family or a married family, is having two parents who they see working in their own best interest.

When you talk about parents who are still living in the same matrimonial home, they're not just losing respect perhaps, they're actually in physical danger in some ways and sometimes are witnessing some kind of violence between their parents that wouldn't have predated the fact they have to live in the matrimonial home. As lawyers say, if you don't live in the matrimonial home, you will lose an advantage.

I think there are many, many factors that go into helping children, but we know when they see their parents— Even when children come in for my assessment, they're amazed to hear their parents are actually talking about them and making plans and decisions, instead of one parent doing all of it and the other parent having no access to it.

Dr. Howard Waiser: There is really a host of naivety on the part of many parents. Many times people have come in wondering what the effect is on the children. They just don't seem to appreciate the impact and the trauma these kids are going through.

By and large, as Eric mentioned, 90% will do almost anything to keep their parents together. It's you can beat me, that's okay, but just don't leave. They're devastated by— and parents sit there and scratch their heads and are bewildered by the impact.

It's like people who come out of court, look at their lawyer, and ask if they won, and the lawyer says they just broke for lunch. People don't understand what's happening even within their family.

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

Mr. Lowther.

Mr. Eric Lowther: Thank you.

I'd like to follow up on what you were referring to, Dr. Waiser.

In this committee we've heard a lot of ideas and suggestions on how to deal with difficult situations, and I think we're getting some good ideas about how to deal with these difficult situations. If we follow this all the way to the end, we'll be good at handling problems and perhaps keeping nice and neat.

I wonder how much energy and effort we could put into the preventative side of this thing, following a little bit on what Mr. Szabo was saying. If we put this much energy into keeping people together, would it be fruit bearing or worth while?

Dr. Howard Waiser: I've heard from talking to parents that they always have to give it one last try. By the time they've gotten to me, often they've given it that last try. I don't have any magic potion to keep a marriage together. Sometimes the characters have just grown apart. Sometimes, again for the children, even though the children would like them to be together, given a time of reconciliation there is peace in the house after all and people can now work together.

Mr. Eric Lowther: We had one witness tell us that when parents were exposed to good information on the impacts on the child, 10% of the people who went through that process actually decided to stick it out. Do you have any comments on that?

Dr. Howard Waiser: The question is, is sticking it out still for the benefit of the children? I like that notion and would probably support it. Information itself, people knowing more about the impact on child development, can do nothing but enhance their role of parenting, whatever it may happen.

Mr. Eric Lowther: Okay, thanks.

Dr. Hood, there's a number we roll around in this committee and I don't think we've ever really nailed it down. We get the sense that a great number of families go through discussion of some sort when they're breaking up and come to terms, and it never hits the courtroom. Then this other, we presume to be smaller, component actually does get to the courtroom. About 80% never get to the courtroom; they solve their problems, go away generally happy, and things work out. But for 20% it doesn't happen that way.

• 1445

From your experience and perhaps that of some of the others here, does that sound like the right number? I think we're picking it out of the air, hoping it's the right number, but I'm not sure it is.

Dr. Eric Hood: The number I've heard that litigates is 10%. Maybe it's more, but I've heard that number from a couple of sources over the years. That just means those are the highest conflict people. There can be lots of stress and difficulty for the other 80% or 90% as well, and not all of them solve all their problems and feel happy about them.

Some fathers walk away, because they don't like the aggravation. Some moms give in on the position they feel is important. Kids have to put up with all sorts of difficulties and deprivations.

I don't think we serve any of this population all that well. I don't think society really thinks about what these kids need, yet it's an increasing population.

Mr. Eric Lowther: You said something very interesting there. I don't think we serve any of this population very well. If we ever slipped into the way of thinking that we're really dealing only with the 20% or the 10% who fall out at the end or for whom mediation and all these other good things didn't work, we could be really deceiving ourselves. A lot of the people in the 80% could be having all kinds of great problems, but it just doesn't appear in the courtroom. Is that true?

Mr. Eric Hood: There's a current term called the burden of suffering, and the burden of suffering could be much larger than, say, 10% of the kids. Many more kids could be suffering, and it could be affecting them in their day-to-day lives or in their development and therefore in their futures.

Dr. Elsa Broder: —

[Inaudible—Editor] —talk to the family. I think it's very naive to think that just because they don't end up in court there aren't significant issues that need to be dealt with.

Mr. Eric Lowther: A lot of these families spend a lot of money on lawyer's fees.

You made an interesting comment, Dr. Broder, about the costs for some of the services you folks provide. There's just not enough money to fund some of the good mediation, psychological and psychiatric assistance, and those kinds of things. Yet many of the people who are caught up in this are spending, I've heard, huge numbers; they're spending $10,000, $20,000, $30,000, $40,000, $50,000, and $100,000 in ongoing court costs with lawyers. How can we redirect some of those dollars to more beneficial services instead of funding court battles? Do you think there's any—

Ms. Reisa Eisen: I think we're still looking at the original premise that even those 90% of the families are dealing with custody and access issues. There's no way of getting around that unless people decide they're going to do their own agreement and not ever see a lawyer. Regardless of whether they actually have a plan or have ideas of how they want to parent their children, they still have to work with lawyers to come up with a legal document that's going to define what their roles are.

Mr. Eric Lowther: Change the foundation.

Ms. Reisa Eisen: The foundation, exactly. Right away this sets the temperature and the environment that even those 90% of the families could get into conflict. I don't remember who on the panel said it, but you know you can often see very civilized people trying to have a discussion look pretty crazy, because they're trying to sort out who's going to have this child to own and to look after. I think a lot of money is spent trying to sort that out.

I think Dr. Hood made reference to the affidavit. Even starting at that level can be extremely expensive and very time-consuming.

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

Madam St-Hilaire.

[Translation]

Ms. Caroline St-Hilaire: I would like to begin by thanking you. You have said that an approach that is more emotional than legal may be preferable, and I tend to agree with you. I ask myself only one question on this subject. When you get involved in a situation, as Dr. Hood said, I believe, you become emotionally involved. I would like to know on what criteria you base your determination of where the child is to live.

• 1450

[English]

Dr. Eric Hood: Are you worrying that because I feel it emotionally, I won't be rational about my thinking?

[Translation]

Ms. Caroline St-Hilaire: You are undoubtedly a rational thinker. I wonder how you manage to remain rational and on what you base your determination of where the child should live, considering the fact that you are so emotionally involved.

[English]

Dr. Eric Hood: In most cases there isn't going to be a change in where the child lives. That's quite unusual. But there often are changes in the arrangements, which people are also very passionate about. One may feel the arrangements could be improved for the child in order to reduce conflict between the parents, for example, to make the situation less stressful for the children.

What I rely on very much, and I'm sure my colleagues will speak to it too, is speaking to my fellow team members and other professional colleagues about these difficulties, about these cases, because they're so powerful. I've often had the experience of speaking to a mother one day and a father the next and feel as if I'm going crazy. But if I speak to Dr. Broder about the case and I'm feeling kind of confused, she'll say to me, “Well, it sounds like you think—” That helps me get back to my more objective position. That's the kind of thinking, discussing, and consulting useful in that kind of dilemma.

As for the criteria in trying to come up with decisions or plans, it depends very much on a lot of variables in each child's or family's situation.

Does that—

Ms. Caroline St-Hilaire: Yes.

Dr. Howard Waiser: Part of my initial introduction to parents— I like to try to meet both parents the first time —and part of the philosophy I try to maintain as much as I can is letting them know this is their family and they're going to have to be involved with each other hopefully for the next 30 years because of graduations, weddings, grandchildren, etc., but that this is a case for me, that it's going to be filed away after I'm through with it. I try to establish some distance for myself. Otherwise, as Eric was saying, you don't sleep and you don't eat and you end up being one of Elsa's patients instead.

It's important to have some professional distance. Even with that, you still do hoops in bed at night.

[Translation]

Ms. Caroline St-Hilaire: You mentioned mandatory mediation or, at least, family planning, an interesting idea. On the other hand, like my colleague Eric Lowther said, what do we do in the 10 or 20 percent of cases where mediation is impossible because of serious conflict? We are at a dead-end. What are your suggestions?

[English]

Dr. Elsa Broder: I guess there's a continuum of service. A large percentage of people actually make decisions themselves. Then when the system gets involved. Mediation skims off a certain section, and then it goes on to assessment and arbitration.

At the custody project where Eric and I work, we collect our information and use the information to begin to do more of a mental health intervention to try to help the parents make decisions truthfully. We use the big stick to say, hey, we have some information here. I would suspect that takes care of a huge percentage.

There's still a small percentage— we don't know exactly —that have to have their day in court. Nothing is really going to work there.

There are no simple answers to any of it. Sometimes time settles things down, but sometimes it doesn't. Sometimes somebody decides to go into therapy and that helps things. There isn't any one thing that I think is the answer to the question.

Ms. Reisa Eisen: The more complex the case, I think, the greater the resources that are required. When those cases really do need to go in front of a judge for some kind of authority and judicial order, I would like to see the court system and the mental health professionals work together to build a plan for this family. Sometimes they really do require, as Dr. Broder was saying, therapists, mediators, and case managers for the court process. The higher the conflict, often the greater the resources that are required.

• 1455

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

Ms. Carolyn Bennett: Thank you very much.

A lot of what we're hearing this afternoon is that the high conflict couples are the ones the court is meant to deal with. I'm equally concerned about this other group, those who are just too tired to fight. Their resolution may not be in the best interest of the child, and these people may end up getting professional help later in their career or have trouble bonding or with their own parenting skills. Certainly in my family practice we saw some of those kids who felt that because of a power differential the wrong decision was made.

I would like to know whether you think there's anything we can do in the Divorce Act— or maybe it is a resource kind of thing. If mediation were more available or resourced properly or if there were access to your services— Obviously if you see an MD or a psychologist in a situation such as the Hincks, it's free; otherwise, people have to pay.

If there were a way of getting people help earlier, would we see different resolutions? Is there something you think the committee should be recommending for those people in the other group?

I thought Dr. Waiser said something about mediation not always being that good. Is that a skill set problem in that it's a new profession and doesn't necessarily have the same sort of—

Dr. Howard Waiser: Let me answer that last question first.

I think more so it was that everybody had great expectations and hopes for it— this was a new system, a new style of fairy dust that was going to be sprinkled, and everybody was going to dance out of court together. Well, we've tried it. It is definitely an asset. It's better than the assessment part going bad, which leads to more conflict, but it's not as good as we had hoped it would be.

There is a bit of research on this from the states, but we're talking percentages as opposed to gross. I think it's more the people who are involved. I don't think it's necessarily the mediators, but a mindset that people often come into mediation with.

I have no doubt that with earlier intervention, there would be fewer family break-ups and even the ones that are going to occur would be less hostile. People would work more together. It would be less of the ego. I'm sure we've all had cases where the attitude is they're my kids and nobody's taking my kids away from me. That comes from both mothers and fathers. If we can defuse some of the hostility and look more at what's important for the children, I'm sure we could cut it down about 50%. That's just a shot in the dark.

Ms. Reisa Eisen: I think it's an educational process. If people who were contemplating separation didn't go to lawyers as the only and first step and there were other resources at that point to talk about the implications and all those kinds of things— People do come to me as a therapist when they're contemplating separation, and we have a chance to talk about some of those issues. Sometimes people decide they're not going to separate; sometimes they decide they're going to separate, but with a different knowledge set.

I think it would be very valuable to have services such as mediation, some form of dialogue available to people when they're contemplating separation or divorce. I don't think there's any question about it.

To add to what Dr. Waiser said, mediation is now being looked at as viable in even the most difficult cases. We're looking at mediation, for example, in cases of domestic violence. It's a different form of mediation, but the purpose of it is the same, which is to help the parties get involved in their own dilemma and try to be part of the solution, instead of having a solution imposed on them. I think that buy-in is probably one of the most important educative pieces. If they get involved and don't have somebody telling them how they're going to live their lives, it's quite amazing how people will make use of that and start to solve some difficult problems.

• 1500

Dr. Elsa Broder: I think we should listen to my patients who said— and this is radical —change the presumption under which decision-making is made.

Ms. Carolyn Bennett: I guess also, to do a small commercial for family doctors— or whether it's the priest or the person over the back fence —I think we have to change in terms of an education, as the first thing people do is go and get a lawyer, and there are many other avenues that need to be explored first.

Have any of you seen the video that's supposed to come to the unified family court in Toronto?

Ms. Resa Eisen: I have.

Ms. Carolyn Bennett: Yes? Do you think it's—

Ms. Resa Eisen: It's wonderful. I'm in it, but that's not why I said it's wonderful. No— it's wonderful because it really is very educational in looking at all the different aspects of the process, and what happens to children and what happens to parents, what happens when you get a lawyer, and what the options are in mediation. It's really quite inclusive in terms of giving information.

Ms. Carolyn Bennett: And the routine in Toronto will be that as they file, they have to see the video before they can proceed?

Ms. Resa Eisen: It's a pilot project. There will be a control group and a study group, and the study group will actually all go to to the family information information session before they appear before a judge. That will be researched— about whether that has any dramatic impact or not.

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

Senator Cools.

Senator Anne Cools: Chairman, I'd just like to thank the witnesses for what I thought was an extremely sound and well-thought-through presentation, but Senator, I'm prepared to defer. Paul here wants to ask a question. If there's any time afterwards, I would care to come back to ask a question.

Mr. Paul Forseth: I'd just like to ask— There are a couple of operative games that go on. One of them is “I want to make sure I get custody of the kids, because if I get the kids then the other one was the turkey in the relationship. I would be validated by my local social circle and maybe society at large that I got the kids and therefore I was okay; it was the other one who was the problem in the relationship.” That's the face-saving game.

The other game is “I have to get custody of the kids because I want to be a maintenance receiver, not a maintenance payer. I will never pay maintenance to my spouse because look what they did to me. I cannot ever pay money to that individual so therefore I need custody and I'm going to get custody.”

Those are two games that are operating an awful lot. I'm wondering what you recommend as to how we can get at those, to cut those games off, or that they are not able to be played.

Dr. Elsa Broder: I should mention the other game, where “He or she was so nasty to me that I'm going to get them where it hurts the most”.

Mr. Paul Forseth: Which is—

Dr. Elsa Broder: Custody. Cut him out, call sexual abuse, get that individual away so that they can't have anything.

Mr. Paul Forseth: Okay.

Dr. Eric Hood: In your criteria you talk about responsibilities, and it seems to me that in recent years I've thought more and more about facing parents about their responsibilities. I hear them howling about their rights and how they've been mistreated and how they're victims and all the rest of it, but I don't hear them talking very clearly about their responsibilities.

As I said, I think people are often regressed to sounding quite like quarrelsome kids rather than responsible adults. Whatever kinds of procedures or expectations are set up, you need to be facing parents with those responsibilities. Of course, the responsibilities have to be defined, whether financial or social or whatever.

I think too often, whether it's professionals in my business or in other parts of the system, we feel quite intimidated by the passion of a parent's feelings. We end up accommodating and exceeding and getting intimidated. I see it all the time. Arrangements get made and solutions get agreed, not because this is the best thing for the child, but because you want to get them out of your courtroom or you need to get them out of your office. It's hard dealing with this sort of rage or the close to the threat of it.

Ms. Resa Eisen: The other comment I would make is it often amazes me that this family functioned before the separation. And that gets wiped off the slate. How did they do things before separation hit the table? Who looked after certain parts of the child's life? How did the child get financed?

• 1505

Why at the point of separation that disappears and vanishes is always so astounding to me, because typically, even though there's a marital separation, they were doing okay with the children. In cases where they weren't, often we see them in the mental health field, but if they were, what happens to all those plans that they had functioning prior to the separation? That's something we really forget about.

Dr. Howard Waiser: And that's important too— you sort of sit back in bewilderment of parents who come in and say, “I lived with that rotten person, that person's crazy, they were always a crook, they were always a gambler”. You scratch your head and think, what does that say about you also?

The Joint Chair (Senator Landon Pearson): On that note, I have two tiny questions from two senators. Anne, it's your tiny question.

Senator Anne Cools: Yes, it's very brief, and you may not be able to answer the question, because it may be a little bit late and it may be a little more time-consuming. One of them— and I'll just put it out, and if you can't respond, you can respond to me privately —was that I had noted that the witness at the end talked about falsehoods in affidavits. Perhaps he could respond to that.

But my larger question is on the larger issue of the entry of mental health— behavioural sciences and mental health professionals —into the business of divorce.

How do you feel about some of this? When one looks at the number of assessments that are being conducted by mental health professionals in the court processes these days, and the fact that so many judges are now relying on those assessments to make their decisions, my questions to you basically are, first, what weight should judges really put on assessments in the court proceedings from mental health professionals? Second, who in the long run evaluates the standards by which those assessments have to be written?

Dr. Howard Waiser: I brought up the assessment issue. Let me tackle that one. Personally I think that my assessment should be given untold weight.

Some hon. members: Oh, oh.

Senator Anne Cools: Untold weight?

Dr. Howard Waiser: A little modesty on my part.

That again becomes the issue of the court system and the judge. I'm getting part of the information; they're getting this, plus other information too. They have to evaluate, too, the credibility of the assessment itself.

I sometimes get asked to critique assessments, and I shake my head, wondering, “What person from grade seven did this?”

Senator Anne Cools: Precisely. The reason I put that to you as mental health professionals is that I just finished reviewing a battery of assessments, and I was shaking my head.

Dr. Howard Waiser: Well, we are trying to organize—

Senator Anne Cools: So you are working on it.

Dr. Howard Waiser: The body that put together that manuscript is the Ontario Interdisciplinary Association of Custody Access Assessors—

Senator Anne Cools: Right.

Dr. Howard Waiser: —which is a mouthful.

Senator Anne Cools: So people are taking heed of the fact that there is a plethora of complaints in the field about it.

Dr. Howard Waiser: Yes.

Senator Anne Cools: Oh, good.

Dr. Howard Waiser: In psychology, the number one source of complaint is assessments.

Senator Anne Cools: Oh, really? Could you tell me a little bit more about that?

Dr. Howard Waiser: It's battling up there with sexual impropriety, but I won't touch that one. It's the number one source of complaints now. One of the troubles is you only get complaints about the person who you didn't support, in a case. But with the college in Ontario, as I say, that's the chief source of complaint. I think about 23% of the complaints were involved with custody and access.

Senator Anne Cools: I thank you for that.

To our researchers and to the chairs of the committee, at some point in time we should really look at the issue of these assessments.

The Joint Chair (Senator Landon Pearson): Senator Cohen, a quick last word.

Senator Erminie Cohen: I don't have one, finally.

The Joint Chair (Senator Landon Pearson): Okay.

Did you want a quick last word, Dr. Broder?

Dr. Elsa Broder: We've been talking a lot about parents and about their psychopathology. I don't think we should forget the kids, because the kids have their psychopathology too. It's a circular and interactive process, and I think that one has to look at how it all fits together.

The Joint Chair (Senator Landon Pearson): Thank you very much indeed. This has been a very, very interesting panel. Thank you.

• 1509

• 1515

The Joint Chair (Mr. Roger Gallaway): In this session we have, from the Ontario Legal Aid Plan, Mr. Robert Holden, the provincial director, and Keith Wilkins, who's the client services coordinator. We also have, from Fairness in Family Law, Mr. James Hodgins, the executive director, and Yvonne Choquette. And we also have, all the way from Windsor and appearing in her own right, Sharman Bondy.

Welcome. We'll start with Mr. Holden from the Ontario Legal Aid Plan.

Mr. Robert Holden (Provincial Director, Ontario Legal Aid Plan): We are delighted and honoured that we were invited to attend this afternoon.

We really don't have a brief of any type to present and really don't have anything to say on the issue of joint custody. That's obviously a politically charged subject. I think we may have personal views, but I don't think it would be appropriate to be putting up a Legal Aid Plan position on that subject. I want to make a few points, though, that could be useful in letting you appreciate or understand from a cost point of view how difficult changes in the law are for organizations such as the Legal Aid Plan.

Our experience over the last couple of years with a variety of changes has led us to believe that one of the real problems that drives increased costs in the legal profession is uncertainty. So we would urge you, whenever possible, to try to develop guidelines so that people have a better understanding of just what the rules are and what the changes in the law might mean to them.

We have spent some time over the last few years within the plan and with our area directors across the province, utilizing alternate dispute resolution techniques, and we have found them to be very helpful. We've found that most of the clients find this kind of assistance very helpful and not as confrontational as the courtroom experience. And certainly, from a taxpayer point of view, it reduces our cost in our experience.

The final thing I'd like to say is that we would hope that if ultimately you're going to be recommending there be certain changes to the law, you do your best to try to determine what the cost impact of those changes will be. We've had the experience over the last couple of years of having changes announced without any consultation with the Legal Aid Plan, both in this province and throughout Canada, and with tight budgets already, it is very difficult to go from year to year without people understanding what the impact will be on a legal aid plan and if there is going to be increased funding required so that efforts can be made at an early stage to try to gain access to those additional funds.

Those are my brief comments. Thank you very much.

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

From Fairness in Family Law, Mr. Hodgins.

• 1520

Mr. James Hodgins (Executive Director, Fairness in Family Law): Thank you, Mr. Gallaway, for the opportunity to meet with you and your committee members today. My name is James Hodgins. I'm with the Canadian Committee for Fairness in Family Law, as is Yvonne Choquette. We are a group in the Toronto region that works to try to better understand and recommend in the area of family law.

My presentation is to suggest a couple of improvements that we believe would make a real change for children in the area of custody and access. I'd like to ask each of you to remember back to being six years old. You're in your homes and I hope you have both parents in your lives and life is toodling along. Then suddenly your parents are separating and all of a sudden there are people involved in your life— assessors, courts, and the next thing you know, you're one of the many children in Canada who ends up in a single-parent family.

In fact, 90% of children of divorce end up in essentially a single-parent-modelled family. Their other parent is largely unavailable to them, and that means their opportunities for nurturing, love, affection, tenderness, academic support, financial support are not really available to them on a day-to-day basis.

That's not very exciting for you and I'm sure for kids who are going through this. About 1.5 million children in the last 15 years in Canada have gone through a divorce, and of those 1.5 million, the majority of them have ended up in essentially single-parent type arrangements.

You might ask whether there is any other option. The current Divorce Act basically acquiesces to the single-parent model, because if two parents cannot agree on a parenting arrangement, somebody has to be chosen to be the winner.

The first recommendation we have is that the Divorce Act should largely be directed to— Sole-parenting, single-parenting, should be extremely difficult to be realized. People shouldn't be able to abdicate their responsibilities as parents. They should have to stick in there and figure out how they're going to migrate from being in a one-house environment to a two-house environment.

For you kids, the second thing we'd like to propose is a presumption of shared parenting. Shared parenting is essentially two parents. You had two parents until the point that you separated, and the bottom line is that you'd like to keep your two parents. So what we're saying is that we have a presumption of that.

You may say it's going to be difficult, but it's not difficult to operate a shared parenting arrangement. In fact, many kids who are involved in this type of arrangement will say it's the only way it should be. It's fair. We get to have both parents. We love you both and we continue to get the academic, social, physical, moral and financial support that we always wanted from you.

So the obvious strategy for the committee to consider is the removal of sole parenting, single parenting, as the model of almost default, and we make shared parenting the model of presumption in this country.

Thank you.

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

Finally, and very nervous today— it's her first time before a committee —is Sharman Bondy, from Windsor.

Ms. Sharman Bondy (Individual Presentation): My time is very limited. I think you can appreciate that it's impossible to ask a lawyer to speak in something like five minutes, but I will try to.

I'm not a social worker. My background not in psychology or psychiatry, but I have spent the better part of the last 18 years of my practice representing children and advocating for the rights of children. And I'd like to think that I've done that within the context of representing all parents, both mothers and fathers, and last but not least, children.

• 1525

If we look at the amendments that have been made to the Divorce Act since 1968, they were in response to various ideologies that have existed and social change that occurred slowly but surely over the last 30 years. Entitlement for support, for example, is no longer based on some concept of conduct. One's entitlement to a divorce is no longer necessarily based on conduct. Ultimately we came to the conclusion that when it came to dividing up property rights when marriages broke down, child care and household management was just as important as being a good financial provider.

We've gone in the direction of amendments in the field of child support with the imposition of guidelines. I support those guidelines because they're a step in the right direction for the children of Canada. They give them financial security. Through those amendments, although perhaps in particular case situations unjust, unfair and restrictive, it is ultimately the children who must benefit and who must be the focus.

I want to analogize that to child custody and access. It is the effect of these actions of the legislature, in the form of these amendments, where we have bridged the gaps in ideology and perhaps changed the way people think— the way people think about divorce, about support, and about property division.

I'd like to think that legislative change made Canada a better place. Why? Because from that change came consistency in the law, and without consistency you can't have any effective legal, judicial, or societal process. And second, with foreseeability of the law, persons who contemplate marriage, separations, and divorce know what they have to face and the implications and obligations.

But I think the single largest void left in Canada's system is how we deal with custody and access. We have various philosophies about what is in the best interests of children. I think it's incumbent upon legislatures to say they want a set of guidelines much like they've done in the support field so that they recognize that children benefit from the role of both parents. As an advocate for children, I support guidelines that promote joint custody, and that's the point I'm here for.

Clearly there are exceptions. There are exceptions to children, to families, and to moms and dads. But fundamentally, give children and people and mothers and fathers the right to understand their ability to problem-solve, to cooperate, to collaborate around the care of their children post-divorce, where we give them that presumption of joint decision-making. When we give them that to start off with, are we not giving the children of this country what they deserve, which is some peace, stability, and consistency? You can only achieve this through a statement of principle, be it in the enabling part of the legislation or in describing the elements of custody.

Lastly, it's not enough to have the platitude you currently find in subsection 16.(10) of the Divorce Act that maximum contact is a wonderful thing to be maintained. You must have a statement of guiding principle that from now on will give the consistency and foreseeability that parents require in their joint decision-making with respect to children.

I think I'm at my five minutes.

The Joint Chair (Mr. Roger Gallaway): You're right on five minutes. Very good.

We're going to start with Senator Cohen.

Senator Erminie Cohen: My question is directed to the last speaker. You don't have to be nervous; you do very well.

You're talking about a set of guidelines that would be very effective in joint parenting. I'm sitting on a committee right now that's investigating the guidelines you referred to for child custody in families, and they're not as effective as we had hoped they would be. All of the witnesses appearing in front of us have found holes in them. So we're reviewing them. They're not supposed to be reviewed for five years, but there's a strong case to revisit them shortly.

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Wouldn't it be more practical for early intervention, before parents get into a war, that they establish those guidelines with a trained person who's available to them? Would that not be better than spelling out guidelines that have to be left to the discretion of judges, who do not have the proper education and are not trained because they haven't been involved in the guidelines we've already seen implemented? Put in the guidelines and train later on. Wouldn't it be more effective that way? Having heard witnesses on the guidelines now, the jury's still out with me.

Ms. Bondy: Let me just speak to that issue. I think the guidelines are a step in the right direction, because you cannot have the inconsistency that was there in the law. So although it may not be a panacea or a perfect response, it's a step.

When you ask whether the question is really early intervention and non-legal intervention, the difficulty is that unless you see a pronouncement with respect to what is in the best interests of children enshrined in legislation, much like you see pronouncements in the provincial property division legislation, I don't think you'll see the social change that accompanies it.

The mindset of the parent to understand that as long as they're bickering over the concept of just joint decision-making— I'm not suggesting that every child has to be split up between residences, because you have to make that distinction. We're not talking about residences; we're talking about joint decision-making. When you give two people that gift to work with, I think the early intervention or judicial intervention is only going to work if you give the judiciary and service providers the answer. You've got to tell them this kind of behaviour affects your child and let's start off with this presumption, albeit a rebuttable one, because there are going to be exceptions. But let's start off because it's from there that you see social change and ultimately you do what is best for children.

Senator Erminie Cohen: In response to that, one side doesn't always get all. We just heard from psychologists who appeared in front of us and said that discussion about care of children is not really a legal issue. They said the care of children who are involved in divorce requires a special kind of person who's been involved in the whole social aspect. They were very clear that it's not a legal issue, so—

Ms. Bondy: I would disagree with that. I've worn many hats in my legal career, one of which is counsel for children's aid and representing children in child protection proceedings. Part of any plan of custody— Here's the problem: the focus is wrong. It's about the rights of parents, as opposed to the plan for children. What's the day-to-day life going to be? So the focus must shift away from rights and the property notions that support custody.

So I disagree. I think part of it is what you're going to do for your child on a day-to-day basis. What's the plan for education, for religion, for meals and for child care? That is an integral part of every custody determination. The judges need to hear that and they need to be educated.

Senator Erminie Cohen: I agree with you there. Thank you.

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

Ms. Carolyn Bennett: Mr. Wilkins, one of the concerns a lot of the patients in my practice had was that it's very difficult to get a legal aid certificate for a family law matter. How does that policy come, how does that happen? How do you justify the fact that people may actually remain in abusive relationships or defer to the partner when these decisions get made because they can't afford a lawyer?

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Mr. Keith Wilkins (Ontario Legal Aid Plan): The circumstances of the plan changed rather remarkably in April 1996. Starting at that time, family law representation was prioritized. From April 1996 until 1997, only priority one was covered. Priority one dealt specifically with safety issues, threats and psychological abuse. There was a widely held public perception— perhaps assisted by the newspapers —that legal aid in respect of family matters did not exist any more. That was wrong. And since April 1, 1996, we have been trying to get the message out through shelters and public presentations that legal aid is available, and that it is intolerable for anyone to remain in an abusive relationship. It's not in their interest and it's definitely not in the interests of the children.

Ms. Carolyn Bennett: In a situation where there would be a mediator on site in a unified family court, the funding for that would come— If that happened, hopefully we would need fewer lawyers. I'm worried that in the silos of government these decisions don't get made in a solution-oriented fashion, and that we're cutting back on the law side but not actually increasing the resources on the prevention and mediation side.

Mr. Keith Wilkins: I agree with you, but I should draw to your attention the fact that in the existing unified family courts there is experience where duty counsel are providing assistance with two people who have been able to successfully mediate an issue. It's tying up the paper end of it and bringing a quick resolution to their issue on the day of court, rather than having the issue go on and perhaps be overlooked or be the subject of some misunderstanding.

Ms. Carolyn Bennett: Thank you.

Mr. Keith Wilkins: You're welcome.

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

Mr. Paul Forseth: Thank you.

You talked about the presumption of joint custody and you said that does provide predictability. But I've also heard the opposite argument: that it sets up a situation to fight, and that it does not really address the issue of continuity, sameness, and predictability for children, and that in a dissolving family situation you need a single parent to take charge to provide some stability, otherwise the child will continue to be a ping-pong ball that is bounced back and forth.

I'm looking at the model here, which appears to be a little like King Solomon. It's splitting the kid down the middle to satisfy parental agendas and lifestyles. But does it really address the psychological and social needs of children? They're forever going to be on a space shuttle going back and forth between two houses. I would like a counterargument to those arguments to defend the position of the presumption of joint custodies, saying that in many of these hotly contested situations the best we can do is to disengage people and provide someone who can finally make some decisions and control the situation, such as sole custody with access to the other under defined terms.

Mr. James Hodgins: Which of us was the question directed to?

Mr. Paul Forseth: Both of you.

Mr. James Hodgins: I'd like to say that this space between one residence and the future for kids is a very challenging and strange experience day-to-day, but ultimately they're going to land at some spot. The concept that kids end up landing in two homes is about the fact that they end up landing with their parents in about as good a model as they can have short of being in the same residence. The idea that they're on a space shuttle is a myth propagated by a lot of adults who really haven't been there as kids, or who haven't been there with adults who had to make the process work.

• 1540

On this panel here, which I'm sorry hasn't been able to be shown more easily, are some quotes from children who are part of this process— and there are several families that Yvonne and I could speak to —who say this is the best way. They say, “We love you both and we want to spend time with you both. This is the way that allows us to accommodate it.”

And very little goes back and forth between homes. In one instance the only thing that goes back and forth on the shuttle is a knapsack or a teddy bear, Paul.

The kids ultimately can in fact accommodate a shared parenting two-home residence very well. To get there, having somebody to actually help you along the way is necessary. It may be necessary that there be some process to help you to get that, but if you have two active, interested parents to get there, then it can definitely happen.

Mr. Paul Forseth: Perhaps you can respond to your issue of the presumption of joint custody, because it's often also said that these parents probably wouldn't be divorcing anyway if they were able to successfully negotiate the shared parenting of joint custody; they'd be probably the consultative people who would not get a divorce in the first place.

Ms. Sharman Bondy: One thing that needs to be understood is that custody is a bundle of rights that you exercise in relation to your child. It's not necessarily about how you carve up the time or the residency. So when I say “a presumption of joint custody”, I talk about the presumption that it is in the best interests of the child for both parents to be equal participants in the decision-making relating to the child.

As for the last question you raised, which was—

Mr. Paul Forseth: Ensuring continuity and predictability in a stressful situation.

Ms. Sharman Bondy: There are always going to be exceptions, but I truly believe— And all I have is my own experience. I don't have any particular groups or any bandwagon, or any horn to blow or any particular gender ideology. Where I come from is, we are so caught up in the concept of preserving access and custody as a right of the parent that we've lost the focus, which needs to be that it should be the right of the child to be loved, be cared for, and be provided for. And that has nothing to do with residence; that has to do with mutual decision-making.

Unless you put that somewhere, unless you say that, people are not going to go down that road. They don't have to.

Mr. Paul Forseth: I understand that your concept of custody would be the bundle of rights of guardianship and to be able to administer the estate of the child, sign on behalf of the child for medical treatment—

Ms. Sharman Bondy: To participate in education, to participate together in whatever involves the day-to-day decision-making.

Mr. Paul Forseth: That's in line with a lot of the testimony we've heard. That's the ideal, but it doesn't happen. One parent or the other is being cut out of those decisions and then they say, “Oh, how do I ever— It's an ideal on paper that's not worth the paper it's written on, because they have no way of making it happen.

Ms. Sharman Bondy: With respect, they don't have to right now. No one has to. As long as one party to a joint custody arrangement says they don't want it, it cannot be ordered. So they don't have to.

That's where I say, why shouldn't the focus be on the child's right to insist, post-divorce, post-separation, that they have the right to have this equal participation and to benefit from both a mother and father, or the custodial and non-custodial role?

Mr. Paul Forseth: Okay. Say you have a Supreme Court order of divorce that includes joint custody, and you might even say joint guardianship, and they arrange their own access that meets their lifestyle, but then one parent goes and takes the child to a private religious school. The other parent wasn't consulted at all, and they just go up the wall about this. You have a great big battle. The parent says, “Well, I can't take this back to court. It's not worth it. The court is not going to do anything. If I take it back to court with affidavits and everything, the judge will just say, `You shouldn't do it'.”

• 1545

So in effect the order, which was made in the beautiful concept of the ideal, is not worth the paper it's written on. That parent does not have those rights unless the other parent gives them voluntarily.

Ms. Sharman Bondy: You're talking about parents' rights again.

Mr. Paul Forseth: Or control.

Ms. Sharman Bondy: I guess what I would suggest to you is this. One of the avenues I've utilized after my role as counsel is exhausted, either in drafting agreements or after a hearing, is that after you know what your rights are and after the determination of those rights, you might resort to an avenue such as counselling or mediation.

I have to take issue with people who say “Don't have any resort initially”, because there's so much confusion out there about what access means. One Supreme Court justice has described it as the role of an interested observer in the life of a child. A lot of people don't see access that way. So they need to be really clear on what's happening and on what their role is in the life of a child.

With all due respect, I've heard a lot of talk about lawyers and the legal system, but I have to say some of us out there have it right. Some of us out there care very much about kids and families and people. We have to get it right, and we have to be able to give the judiciary the tools to make it clear what we mean by these terms.

Mr. Paul Forseth: Okay. I'll just close with this comment. If you want to come from the position of the child's rights, then maybe it might be in line with what we heard earlier today: that when the parent does behave as I suggested, it's then seen as child abuse, which then kicks in the consequence that it's an offence, because we have child abuse laws in this country.

Ms. Sharman Bondy: We really struggle with what it means to be abused. We are only now opening the door so that for children who are victims of and see and live with domestic violence, that will be considered in the finding of protection. As for whether or not we're going to go the next quantum step, we may not have to if we, and particularly the legislature, say to parents very firmly, “You guys get your act together where it relates to your child, because it's not fair to your child”.

Voices: Hear, hear!

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

Mr. Hodgins, you wanted to make a remark.

Mr. James Hodgins: Thank you, Mr. Gallaway.

On the question of parenting and terminologies and so forth, I see a vision in which there are two types of parenting: you have either one parent or two parents involved in your life. Sole custody is essentially one parent. Joint legal custody is essentially one parent. Only joint legal physical custody starts to move into a two-parent, real involvement situation as to shared custody and shared parenting arrangements.

We have to have that vision up front, and once we have that vision, we have to clearly communicate. Right now 90% of the cases in this country end up in effectively a single-parent decision. How is that happening? Well, it's in the act, as someone at the table here already said. There's nothing that says anything other than that will be the case.

A lot of people presume that must be the way it is, so it becomes the way of our society, until we say, “Hey, you are a parent. You're separating, but you're still a parent. You're both in there. You guys figure out your routines for parent management and parent handling, supporting the kids, loving the kids.” That has to be there, not the presumption that they drift off and become— schedule two on my panel here —an every-second-weekend father. That's what 90% of the parents in this situation are ending up in. They're spending very little time parenting their children. The children are being robbed of their parents.

I don't know, Yvonne, if you have anything else you'd like to add to this.

Ms. Yvonne Choquette (Fairness in Family Law): I'd just say the reason we are together is we actually know people who have lived with joint parenting plans or shared parenting plans. In one case this is 10 years down the road after separation, and in another it's four or five years. The children in those homes are happy. They're not seeing psychologists. School is going well. Things are moving along just fine. The parents are making decisions. Those cases are ones that were outside the court system.

I mention these because if it can work for these people outside the court system, it can work for many, many other families. But when we have the law, as my friend over here has suggested, that says you can go to the court and have the court make a decision for one parent, you run into a lot of problems.

• 1550

We need to have a presumption that the child will continue to have those two parents after separation. It can only be the best thing for the child. How could it not be best for the child to have both parents in their lives? A child is born with two parents. God made it that way. It's God's plan, and it seems unfair that the child should have only one parent after separation and divorce. Let's look at what's best for the child.

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

Mr. Lowther.

Mr. Eric Lowther: Thank you.

I just had a couple of questions for the legal aid group. Is your group supportive of the joint custody approach?

Mr. Robert Holden: As I said at the beginning, sir, I think it would be inappropriate for us to really comment on that politically charged subject. Whatever the law is, we will do the best we can to provide services to those in need. We don't want to take a position on whether joint custody is desirable or not.

Mr. Eric Lowther: So if somebody came to legal aid, if I can understand this, and asked for your services, would there be any assessment as to whether this situation might be one that would work in a joint-custody or a shared-parenting type of arrangement, or do you just simply do the— Or rather, what would you do? I won't put words in your mouth.

Mr. Robert Holden: If it's an issue as to custody, then we're prepared to provide assistance, assuming that the applicant is financially eligible. We would utilize the test of what a client of modest means would do. What is the issue of access, for example? What are the custody problems? But in most cases we will provide assistance, assuming a client who was of means would spend money to go to court. That is really our task.

Mr. Eric Lowther: So we have somebody of modest means here, who is having a family problem break-up and is contemplating either separation or divorce, and their first thought is “I'll go and get some ideas from legal aid, because they're sort of there to help me out”.

You're telling me, if I'm hearing you right, that you would take the tack that we've heard some people here say is not positive, but is actually negative, and that is, “What's your side of it? We'll advocate for you and try to get you to win your cause”, and get into this whole adversarial arrangement with no real “legal aid”— quote unquote —in the realm of some sort of shared-parenting approach, or “Can you work this out?” or some sort of resolution prior to litigation or going into court, and all the rest of it.

That surprises me, that the legal aid operation would just sort of jump on and say okay, let's start advocating and let's go to war.

Mr. Robert Holden: Well, it's not that we're saying let's advocate and go to war. First of all, the person who receives the legal aid assistance will have a choice of her or his own lawyer. We don't provide counsel to go and advocate on behalf of that client. We would say to the person, “We'll provide assistance. We have a roster of lawyers who are prepared to do legal aid work. You choose a lawyer.”

Subsequently, it may well be that, as I mentioned earlier, we try to assist to resolve the differences. For example, if you have a husband and wife who are fighting over custody, or if there are issues as to access, we will set up a meeting and ask them to come in with their lawyers and meet with legal aid personnel to see whether or not it is possible to resolve the differences between the parties. Otherwise, they have access to the same justice system as do the people who have the means to hire lawyers. We're not setting up a different legal system for poor people.

Mr. Eric Lowther: Right. But this is a first point of contact for a lot of people, and you're telling me that there's really no formalized assessment at all, or any real effort beyond advising these people of a more conciliatory approach and that maybe they should come at this from a more positive angle. It's more the traditional legal route of “Here are your legal avenues, and you get your strong lawyer and the other one will get theirs, and we'll shake it out in the courts”.

• 1555

That's surprising to me. It seems to me that's the first point people in need come to. There's a vacuum there, it seems to me. It's sort of exactly what we heard here earlier— that the legal profession is not helping this. We've had people say “Take lawyers out of this”. And here we have low-income folks who are having troubles, and they get to the point where they go to legal and ask what they can do. They don't get told to work it out. They get told, “Here's how we funnel you into this system that has winners and losers.” It seems to me that would be a first point of defence.

I'm not getting any signals here that you agree with me, and I always like to get the witnesses to agree with me.

Mr. Robert Holden: You may be right. Maybe there is a vacuum.

We as a legal aid plan in this province— and I think it's true in the other provinces and territories —are not sort of equipped to provide psychological assistance or social work assistance. We think it's important that people have access to counsel. Increasingly, I think it's fair to say that counsel are aware of the kinds of issues you are talking about, and are shying away from hard-fought courtroom battles.

But our sense is that we don't have the skills or the financing to provide the early kind of assistance that you're suggesting. We allow the person to go to a lawyer. That lawyer will contact the lawyer on the other side. Subsequently, once these clients have the assistance of counsel, at that point we will try to assist in this other route, by setting up what we call five-way meetings with trained area directors— trained by Resa, actually, who was a witness during the last session —to try to bring people together.

Mr. Eric Lowther: But by that time you're into the lawyers on both sides, the legal—

Mr. Robert Holden: You are. But my sense is that most people think there is some value in that process, in having lawyers available and making sure that there is strong independent advice given— particularly to women, who make up 75% of our clients in this context —to make sure that they understand what their rights are, and also to give some time, if you will, before people are actually brought into a meeting, some sort of cooling-out period, so that people understand what their rights are and have a chance to sit back and exercise their judgment. Then we will bring the parties in for a meeting, to see if the issues can be resolved.

Mr. Eric Lowther: My last little question is along this same line. Would you be supportive, as representatives of legal aid, of an added service to what you provide— a sort of a first form of contact for people who come to you on these kinds of issues, that is mediation-oriented and would work to mediate a solution before it ever comes into the legal channeling of the people who come into it?

Mr. Robert Holden: I think we would welcome an opportunity to at least try that on a pilot basis, if you will. There are a number of pilots that we hope to establish in the next year in the area of family law. I think what you're suggesting is something that ought to be tried. I just wouldn't want to pre-judge it. It sounds as if there might be a lot of merit, and something we would try.

Mr. Eric Lowther: Thank you.

Mr. Keith Wilkins: Can I just add something? There is a second vein of the Ontario Legal Aid Plan, which is duty counsel. Duty counsel provides summary advice at court, and often results in successful negotiations and settlements of cases at a very early stage in proceedings. This is often done with the assistance of mediation services, when they are available, through the six unified family courts across the province. That is available. That is part of the plan now.

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The Attorney General of Ontario has funded a family law information centre in Ottawa as a pilot. Their duty counsel are working with that family law information centre to provide advice in addition to that information centre approach.

What Mr. Holden was speaking of was the traditional, “I'll go out and get my lawyer and we'll go to war” approach, and what the legal aid plan tries to do is bring the parties together to try to work out a resolution part-way through. But there is also this front-end summary advice kind of resolution of cases at an early stage, where it is possible as well.

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

We have three remaining questioners: Senator Cohen, Dr. Bennett, and Senator Pearson. Senator Cohen.

Senator Erminie Cohen: Mine was really a supplementary to my colleague. He'd like to have witnesses agree with him. I just want him to know that this colleague agrees with him.

Voices: Oh, oh!

Senator Erminie Cohen: I wanted to ask a question of the legal aid people who are with us today, and it practically was answered. In a perfect world, to create a level playing field and to give the poor the same advantages as you or I could get if we paid for them, what would you like to see happen?

Mr. Robert Holden: Is that a general question, or within this context?

Senator Erminie Cohen: It will be on the record.

Mr. Robert Holden: Well, I'd like to see the federal government consider funding the legal aid plans the way they used to. The funding has been really slashed across Canada as well as in Ontario.

It's important, within Ontario's context, to try to ensure that the current level of funding from the provincial government is at least maintained. In Ontario, as you may know, we have had some fairly dramatic reductions in our funding over the last couple of years. With the changes we have made over the last couple of years and with the ideas we hope to implement over the next year, if we continue to have at least the current level of funding, we think we will be able to provide excellent services to the people of Ontario. We're worried, however, that there might be further cutbacks.

Senator Erminie Cohen: Would that give you the extra resources my colleague has suggested?

Mr. Robert Holden: It would allow us to at least do a pilot. If after the pilot it were demonstrated that that in fact would be a better system of delivering services, I'm not sure; we might at that point need some additional funding.

Senator Erminie Cohen: Thank you.

Mr. Robert Holden: But you'd have to do an assessment, because it may well be, as I'm sure Mr. Lowther believes, that if you had a system like that in place, while it might increase the cost at the front end, it might dramatically reduce the cost at the back end. But that's the kind of assessment we would have to do during a pilot.

Senator Erminie Cohen: Thank you.

The Joint Chair (Mr. Roger Gallaway): Dr. Bennett.

Ms. Carolyn Bennett: If we could, in this best possible world, get the ones that could be mediated— I was quite moved by the testimony of Ms. Bondy. Would you then say that in the best possible world, in the high-conflict litigated ones, the children would always have a lawyer?

Ms. Sharman Bondy: I have no difficulty with that. I've represented children in the context of those proceedings on many an occasion. The difficulty, though, is that children, in the context of custody proceedings, are not a party to the proceedings, because of their age and because of the implications in terms of costs. But it's helpful to the process that they choose counsel.

I want to respond to something. I don't always think it's the lawyer, though, with all due respect, who has the mindset for argument. It's the client. It's the concept, the social value, that it's okay to argue and it's okay to be exclusive that is the fundamental problem. A lawyer responds to the instructions provided by the client, so when the client says “I don't want a joint arrangement”, they'll respond to that. But in these contested cases, particularly where you have an instructing child, a child capable of giving instructions to the counsel, there's a real role for counsel in those proceedings.

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

The Joint Chair (Senator Landon Pearson): I'd like to follow up on Dr. Bennett's questions, because I was impressed with your support for the voice of children. As you're aware, under the Convention on the Rights of the Child, in article 12, a child has the right to be heard in any legal or administrative proceeding that concerns him or her.

So my question was how is that voice best represented, and you've answered that it's not always best represented by a lawyer.

Ms. Sharman Bondy: That's right.

The Joint Chair (Senator Landon Pearson): We've heard from mediators who have worked very skilfully with younger children, not ever asking anybody to make choices. But I know that by the time a child is 12 or 13, they need a stronger voice than I see them getting. So I just wondered if you have some comments.

Ms. Sharman Bondy: They also need somebody who's going to say it's okay to spend time with both parents; it's okay to love both parents. But also, along with the mediation route, which is no panacea, is public education about what is good parenting. That is probably more important than mediation. How does a mediator facilitate a resolution of the problem without everybody being on the same line about what is best?

If you have a piece of legislation and you have the tools to say, “You two have to get it together. You got it together to have this little baby, and you had this child, so you're going to have to get it together to make their life reasonable post-divorce.”— That gives the mediator the tools; it gives the judiciary the tools; it gives the lawyers the tools to do something with it.

The Joint Chair (Senator Landon Pearson): Can you also say they need to get it together with older children, to at least hear what they have to say?

Ms. Sharman Bondy: Oh, absolutely, but one of the biggest problems you have in representing the older child is the battering that goes on in terms of both parents seeing love as exclusive and seeing custody as exclusive. So you see many children of these ages bombarded with conflict from both parents.

Absolutely, the role of counsel can be to say to the child, “You know, what you tell me is subject to solicitor-client privilege. I'm not going to tell anybody. I can't tell anybody. But I am here to try to advocate for you.”

I've had very many successful cases, because I believe that, again, when you advocate for the child, that's what it's all about.

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

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

Thank you all for coming. We will take about a four-minute break for our next panel to convene.

Thank you.

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• 1617

The Joint Chair (Senator Landon Pearson): Ladies and gentlemen, we're into the last panel of the day. We have six people who are presenting, perhaps some together: Eugene Colosimo, Darlene Ceci-Laws, Kevin Laws, Michael Day, Bruce Haines, and Simon Wauchop. I'm not sure which end we should start with.

Mr. Eugene Colosimo (Individual Presentation): I am Eugene, here.

The Joint Chair (Senator Landon Pearson): We'll start with number seven, and go this way. As some of you have been sitting here, you know to try to present in as short a time as possible so that there is time for questions.

Mr. Kevin Laws (Individual Presentation): We have requested to appear before this committee to bring to your attention, by way of living example, how today's amended Divorce Act and guidelines can be used to financially ruin and emotionally destroy the future for people like myself, my wife, and our young children, who are now innocent victims of this system.

Over twelve years ago, my ex-wife divorced me, and took our children in search of a new life. I was left to do the same. Our court-ordered settlement provided for child support and one year of spousal support, after which there was to be no entitlement.

I married my wife Darlene one and a half years after receiving the decree nisi and absolute in 1986. We have since planned and had a family of our own, and have two boys, ages four and six.

I have always maintained child support obligations to my children of the first marriage. My wife and I jointly see that they receive full medical and dental coverage. We acknowledge the child support payments have been adjusted fairly, for three times over the last few years, and they've always been consistent with my income.

Unfortunately, we quickly learned that adjustment process has cost us thousands in legal fees, just to avoid having to pay outrageous amounts that have been filed for. We've even experienced an attempt just four years ago to have spousal support reinstated. This was rightfully dismissed.

Today I'm under an interim order requiring me to pay spousal support, 11 years after termination, and only four years since the reinstatement request was dismissed. I also continue to pay child support for a 23-year-old daughter who works part-time and for my 18-year-old son, who works part-time but is still in high school— I acknowledge this.

I'm just wondering if something has been overlooked here in making all of these orders, or more importantly, not even considered. I'd just like to let my wife address that.

Ms. Darlene Ceci-Laws (Individual Presentation): I married this man fully aware of his child support obligations as ordered by the court, and acknowledged the adjustments that have been made. We planned our lives and future for a family honouring these obligations. We also anticipated that at some point in time, when his children became adults, the court-ordered child support would be withdrawn. We both worked hard to better ourselves and our careers to meet these obligations and to provide a secure future for our two young children. The courts have not only taken that security away from us, but shortly will have taken the home our family lives in, if this injustice is not corrected.

• 1620

What financial support guarantees do my children have? None. As working parents we have only the little that is left after supporting a work-capable ex-spouse and adult child. There is no financial security for me and our children, unless they become part of the child support system too through divorce, which will guarantee that their father is forced by law to provide the necessary support for them. Is this how the system intends to protect children?

Mr. Kevin Laws: We could cite some specific sections of the Divorce Act that have allowed this atrocity to happen, but I believe relating this story itself is a better reflection of the situation and the many problems that do exist with interpretations of the child support guidelines in the Divorce Act.

There's never been any significant change to warrant this type of order, but it was ordered. I believe it's merely the situation that my ex-wife no longer seeks employment, and the courts have decided that I should be the person to pay her welfare, not the government.

I suppose legal reference resides in the interpretation that my child support amount, because it will be adjusted when my daughter eventually gets eliminated, constitutes a change. This is the interpretation, and they're basing it on that to reinstate spousal support.

How can the elimination of or change in child support fall into the definition of an unforeseen circumstance? The change itself has been brought about by the definition of the system. A new act now redefines what change is and allows an open-door policy for anything. Most importantly, how can the new act nullify existing orders? We planned our lives around them, and they have now created hardships as a result.

Over 12 years ago I was forced to seek a new life through the divorce process. My ex-wife literally took everything I had lived for for 11 years. Now the system must not allow the same person the right to be able to do that again, where it involves a second family.

My wife, whom I think I can speak for, would probably never have gotten involved with me had she known this situation was going to result in something like this. Quite honestly, I can say I probably would have never allowed it. But where does that leave our children today?

Thank you.

The Joint Chair (Senator Landon Pearson): Thank you. We'll move on to the next speaker, and the questions will come to you after.

Mr. Simon Wauchop (Individual Presentation): I thank you for accepting my request to make a submission to the committee on the issue of custody and support, as it's become very important to me in the last 18 months.

Let me begin by saying that as a child growing up in New Zealand, one of my teachers told his standard four— that's a grade five class —that the nineteenth century was Great Britain's, the twentieth century would be the United States', and the twenty-first century would belong to Canada.

If this bold prediction is to be fulfilled, I believe Canada must be perceived as a strong but fair nation. This means that Canada's citizens, all of them, must be treated in a fair and equitable manner; that the laws must be clear, easily understood, and applied without discrimination; and that the people of the country must be assured they are allowed an open and just hearing when dealing with their governments and the courts.

This includes the way we, as a society, treat our children. However, in the event of break-up of a marriage or a partnership, the children are not necessarily treated fairly or equitably. They are not the individuals who are finding it difficult to communicate, cooperate, or simply work together. As a society we have a responsibility to make sure they are not used by either party to the break-up against the other and they don't end up feeling like they've been divorced like their parents.

On the issue of custody, any decision of custody should start on the principle of full joint custody, and I heard some of the discussions on that earlier this afternoon. I understand that in the United Kingdom, and at least in one U.S. state, the concept of custody has been abolished and that except in extreme cases both parents continue to be responsible for nurturing, educating, and providing moral guidance of their children. I urge you to consider a similar approach for Canada.

• 1625

Anything less than full joint custody should only be recommended after a full independent investigation of the family, the family dynamics and the parenting roles, both existing and in the past, and only when there's a clear and present danger to the children.

A criterion for sole custody should not be that one of the parents tells the court that the parents disagree about parenting issues, at least not until further significant investigation. Can any parent in this room say they have not disagreed with their partner at some time about some aspects of their children's upbringing?

If my teacher's prediction is to come true, the application of law must reflect the spirit in which it is written, and citizens must be able to approach the courts without any fear that they will not be heard or be treated unjustly. Recent experience in the application of family law does not assure me that this is the case. To quote the Ontario Family Law Act:

“net family property” means the value of all the property, except property described in subsection (2),—

I will discuss that later.

—that a spouse earns at the valuation date, after deducting

the spouse's debts and other liabilities, and

the value of property, other than a matrimonial home, that the spouse owned on the date of the marriage—

Subsection (2) says this of excluded property:

The value of the following property that a spouse owns on the valuation date does not form part of the spouse's net family property:

1. Property, other than a matrimonial home, that was acquired by gift or inheritance from a third person after the date of the marriage.

This is what the law says, but in practice people can have their property, including assets brought into the marriage or inherited, taken by the courts and paid in full to their partners. This can and does happen in motions court before the presentation of evidence, before proper cross-examination or independent review of the family roles.

If and when a court renders such a one-sided decision, it is not surprising that the party who has been affected negatively, and has had his assets expropriated, appeals the decision. As you are aware, this is a lengthy and costly process, and leaves the family— including the children —in limbo and is certainly not in their best interests.

Specifically, I would want to have the committee consider the following. What is the point of having laws and regulations on the books if the courts ignore them? In a divorce or separation, should it be possible for one spouse to take away the other spouse's rights and responsibilities with respect to parenting, education and guidance of the children? This should not be possible unless there is clear evidence of violence or abuse against the child.

As I said above, issues must be determined on a fair and equitable basis. One spouse claiming that there are differences between the parties in the manner in which the children should be brought up cannot be grounds for rejecting a joint custody or joint parenting.

No child should be asked to choose between his parents. Most children have enough love for both parents and neither of the parents is divorcing the children. The website for the Ontario Attorney General states:

Parents often want to know, “Will the social worker ask my children where they want to live?” Children's thoughts, feelings and experiences are important and will be discussed. However, the social worker will not ask the children to choose between parents. This would be not fair to the children and would only keep them in the middle of your dispute.

Surely, asking if one of the parents has to leave the family home, and which one you would like to stay and which one you would like to leave, amounts to asking the same question, and that in fact is what the children's lawyer does in Ontario.

The role of grandparents should also be assessed. One set of grandparents should not be allowed to interfere in a situation to the detriment of the other parent. The law must be fair to all parties. It should not be possible for one spouse to take all family assets, leaving the other parent with all the debts and having to turn to shelter and social services to survive.

How can it be in the best interests of the children to have one of their parents left destitute, unable to afford a roof over his or her head, let alone afford money for family activities and outings? If we teach our children that anything is justified in order to achieve our goals to the detriment of others, even one of your own parents, we should not be surprised when they do not develop an understanding of what is right and wrong. Surely, we've seen enough of the results of this type of parenting in recent years.

• 1630

In a world that increasingly depends on human resources rather than natural resources, our children are our greatest asset. In the event of marriage breakdowns, society must be diligent in its efforts to limit the psychological impact on the children and maximize their ability to reach their full potential in life. No parent or spouse should be allowed to use access to the children as leverage to punish the other parent for perceived or real wrongs. Hopefully, children can learn from both parents' experiences, and if they have any opportunity to grow and to add to our society, they should have free and unlimited access to the knowledge and experience of all of their family, not just half of it. It surely is not in their best interests to have such access limited by the unfortunate break-up of their parents' relationship.

Ladies and gentlemen, thank you for allowing me to make this presentation. If my teacher's prediction, now almost 50 years old, is to be proved accurate, we must make sure that our laws are applied fairly and equitably, and this includes how they affect our youngest citizens. I urge you again to look at the option of abolishing custody along the lines of the British model, and not making it impossible for one spouse or parent to take away the other parent's roles and responsibility to her or his children.

Thank you.

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

Mr. Day.

Mr. Michael Day (Individual Presentation): Thank you for the opportunity to make a submission to you this afternoon.

I'm a lawyer in Mississauga. My practice is primarily family law. I have one principal submission that I'd like to make.

Under the Divorce Act as it now stands, when the court is making an order for support, it is mandated not to take into consideration the conduct of a spouse toward another spouse. That conduct is particularly relevant within the setting of custody and access. Often in contested proceedings, both before the separation and during the separation, one spouse may be treating the other spouse in a totally unreasonable and aggressive fashion without any concern of consequence to the court. The court right now can only make orders to find another unreasonable party in contempt. In my practice, which is 20 years, I've had only one justice make an order finding another spouse in contempt that was followed through on.

The course a court usually takes when one partner is being wilful and contemptful is to adjourn the matter and give the spouse who is at fault the opportunity to change his or her ways. Often that never happens. Often the spouse who's affected by the behaviour of the unreasonable partner runs out of money and can't pursue the issue any further within the court process.

Contempt orders, as a practical matter, are totally ineffectual. In my submission, there are many occasions when a custodial parent who is refused access would be much more willing to cooperate and provide the non-custodial parent with access if there were a financial consequence to him or her by reason of their behaviour. If the court had authority to take into consideration conduct in awarding a spousal support order, I think access to non-custodial parents would be much more often secured. In that way, the best interests of the children could be facilitated by having both parents serve a role in their lives.

I had a situation about two years ago where I was acting for a gentleman who had been in a marriage that was very violent. He was, by all accounts, a victim of an abusive wife. It got to the point where he was stabbed while he was sleeping. He survived the attack, but it was only through the perseverance of doctors. They removed a butcher knife from his chest. He has been under psychiatric care since that attack.

• 1635

My client appeared before a judge on a financial issue— the wife was looking for support. The judge ordered that he pay support of $1,500 a month, and the court quite rightly said they couldn't do anything because conduct is irrelevant. What this woman did to this man was not within the purview of the court to determine what was a fair support order.

I have clients with children whose wives have left the jurisdiction with no purpose other than to deny access because they don't like the father. A contempt application when the wife is out of the jurisdiction is meaningless. It costs too much there, and there is nothing that can be done. I send that client away because I can't do anything.

The wife is receiving support through the help of the Family Responsibility Office here in Ontario. If there were some mechanism where a court could look at the conduct of the wife that kidnapped or removed the children from the jurisdiction and make an order for spousal support, or a variation of an order for spousal support, that would give me, as lawyer for the partner who's left behind, some ammunition to try to put the father back into the lives of the children. Right now under section 15 we can't do that.

The Ontario Family Law Act says that within the provincial setting, the court can take into consideration a course of conduct that is so unconscionable that it amounts to gross repudiation of the marriage. If this committee could take into consideration provisions similar to that, which would allow a judge in a federal hearing to take into consideration a course of conduct so unconscionable that it's a repudiation of the marriage, or a repudiation of the father's or the mother's right to have access, that would give the party who's left behind some ammunition to try to get back into the lives of his or her children.

The rationale for non-conduct issues is clear enough. If the court is asked to take into account conduct on each and every interim motion, the system will bog down. I'm not asking this committee to take into consideration any conduct other than conduct that is at such a level that a common person would say it amounts to a repudiation of a parenting relationship or a repudiation of a marriage. A butcher knife in a chest is an obvious situation. A wife who has left the jurisdiction for the sole purpose of being spiteful to the partner left behind is an obvious situation. But right now we can't do anything, and that's because the statute doesn't allow us to look at conduct.

Those are my submissions. Thank you.

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

Mr. Eugene Colosimo (Individual Presentation): Thank you, co-chairs. I have a five-minute presentation and a two-minute poem called “Divorce”. Is it possible to give both?

The Joint Chair (Senator Landon Pearson): Okay.

Mr. Eugene Colosimo: I think you might enjoy it.

I had a home, a job, a wife,
A loving child and a zest for life,
But I lost them all in quick succession
And sank into a deep depression.



Divorce was quite a revelation
Not just a split but devastation.
They took my child, my joy, my soul
And left my life a gaping hole.



So with legal help I fought the system
Not wishing to become a victim.
Don't take my child away from me,
Please, your honour, show sympathy.
No matter what else that you do,
Don't break my lonely heart in two.



But family court was not the answer;
They squashed my claims like a sprouting cancer.
It seems too few men have the right
To raise their kids or can stomach the fight
And those that do fight on their own
Soon feel the lash cut to the bone.



They pushed my back against the wall
And jerked my strings like a marionette doll.
Conform, they said, don't rock the boat
The support plan has you by the throat.



I fought for justice to prevail
But spent six months in the county jail.
Each day penned up, I grew more wild.
Was this in the best interests of my child?
A little girl I cannot see
In Canada, how can this be?



Access denial is child abuse
But it's pay support or wear a noose.
The law's an ass, it must be changed
The politicians must be deranged.



This has all the ingredients
For civil disobedience
But six years of fighting has left me broke,
And when I think of my child I start to choke.
I spend most days now in the park,
Feeding pigeons till after dark.



No work, no will, no energy
No way to stop the insanity.
On human rights we built this nation
But family court was male castration.



• 1640







For my five-minute presentation, think about what you want to do with a man like me in this situation. What does my future hold?

My name is Eugene Colosio. I'm a 44-year-old, university-educated, Toronto-born child molester, according to my ex-wife. I'm a deadbeat dad, according to my government. In reality, I'm a loving father and I've never been charged with any crime. I am, however, embroiled in a seven-year-old $200,000 custody access battle that has no end in sight. I am still locked in the original interim custody order, with no cross-examinations or discoveries to date in the 40 trips to court.

My access was temporarily suspended in 1994 and has yet to be restored, so I have not had access to or even a photograph of my seven-year-old daughter since she was three. I must be the worst man on earth. Family law is founded on delays, and bringing the matter to trial seems an impossibility. Justice delayed is truly justice denied. I must now accept the reality that I will never gaze upon my daughter as a child again. Her mother has sworn to this.

I am told that my child is so terrified of me that she now self-mutilates when her therapist mentions access. No one seems to think that these new developments constitute parental alienation or child abuse. A broad-based media campaign is needed to bring home the point that access denial and parental alienation are serious forms of child abuse. My two-year marriage was an obvious disaster, but the loss of my child has left me emotionally devastated, physically debilitated, financially bankrupted, psychologically raped and without work since 1995.

I no longer care about Quebec separation, the national debt, the unemployment situation, health care, education, Bosnia, the rain forest or saving the whales. I no longer understand what my parental responsibility is to a child who for all intents and purposes is dead, whose name has been changed from my own, whose whereabouts I'm not entitled to know, whose dreams and aspirations I'm not allowed to share, whose voice I'm not permitted to hear, and whose picture I'm not permitted to see.

I publicly offer $50,000 or the next two-years' wages to anyone who can restore my relationship to my child within the next year —something my ex-wife should be compelled to do starting tomorrow. Such is my lack of trust and faith in the family court system.

If my daughter fell into the alligator pit at the zoo, I would hurl myself in to get her out. Make no mistake about that. If I woke to her screams because her room was on fire, I would crash through that wall of flames to save her. If a grizzly bear grabbed her from our tent, I would have summoned up all the rage necessary to chase him down, and you would have all applauded my efforts.

But unfortunately for the both of us, it was my ex-wife who took the child. She did so just as completely and has swallowed her up just as completely. But I'm not entitled to that emotion. I'm not permitted that same rage. In fact there are those who would tell this committee that any anger in this situation would be grounds for me to never see her again. I'm not ashamed of my passion.

What is going on in family law? Why is fatherhood and the contribution of men so undervalued? Would Wayne Gretzky be the greatest hockey player that ever lived without the dedicated daily effort of his father? Wayne doesn't think so.

I am told that I have a responsibility to my family, and that is to have my support payment garnished at source without any assurance that access will be forthcoming. This is nothing more than a form of taxation without representation, such as brought on the American revolution.

But what about my ex-wife's responsibility to the family? There is a dog food commercial currently running that says “Next to your love, your dog's food is the most important thing you can give him”. For a dog, love is more important than food. Why isn't love the foremost mandate of the Family Responsibility Office?

• 1645

Child support and access are inextricably amalgamated. You cannot tear my purse strings from my heart strings. I would not be so bold to suggest that a father withhold his support payments to extort access. I am saying make it the primary mandate of the Family Responsibility Office to get tough with these deadbeat moms and permanently withhold funds in any month that access is denied.

With the implementation of shared parenting, of course, most current ills would disappear. Access denial would be a thing of the past if both parents were legislated to have equal importance and equal share in the day-to-day child rearing. False allegations would also disappear once we guaranteed that no parent can lose contact with a child for any reason.

Parenting may have to be temporarily supervised, but no matter what the deficiency, sufficient support services must be made available to ameliorate the shortcomings. If a man's a drunk, we'll give him AA. He'll get his supervised access.

You would never have an allegation of abuse if a mother knew it would not work, that he was going to get his access no matter what. Mobility conflicts will also disappear when both parents are equally involved in a child's upbringing. The child would simply and effortlessly slip into the sedentary parent's home on a full-time basis. There would be fewer impoverished parents needing to move in the first place for economic benefit if parenting time was shared and the daily costs of raising the child more evenly absorbed.

Mediation too would be more effective and involve less scope if both parents were on a level playing field and guaranteed shared parenting rights at the outset of separation. Thank you.

The Joint Chair (Senator Landon Pearson): Mr. Haines, please.

Mr. Bruce Haines (Individual Presentation): Thank you, Senator.

I appreciate the privilege of appearing here today. I've been told that I have five minutes. I'll try to keep to it because I know it's late in the day. In return I would ask you to review the submissions I've made to the committee.

I've been practising law for 35 years. In my first case in the Supreme Court of Canada in the early 1970s, I was able to persuade the court to grant the father of a child born out of wedlock visitation or, as it were, access rights.

When I entered the practice of law, mom stayed at home, dad was the breadwinner, and she looked after the children. We developed and carried on an attitude that mother knows best, but father pays best when it comes to issues of child custody and support.

Over the years, despite our gender-neutral language in the Divorce Act and other legislation— and it is gender neutral —we've developed what I perceive in the practical implementation of those laws to be an entrenched systemic gender bias. I don't say judicial bias, because I don't mean judicial bias.

What do I mean? When I talk about an entrenched systemic gender bias, I have in mind a river that's flowing with a current and it goes in one direction. The judge is out in the middle in a boat, the lawyers are in another boat, the litigants are in another boat. They're trying to do their best vis-à-vis one another, but they don't concentrate on the direction in which that river is flowing and it's taking us down a road that we need to reconsider. In my view, the Senate and House committee have a unique opportunity to take a remedial look at what we're doing in custody and access in relation to children.

My first suggestion is going to be let's get rid of the concept of custody and access. Why? No doubt from my experience, I see the concept of custody as denoting a winner, access as denoting a loser. There may be those who tell me men never seek custody. They don't seek custody because they're afraid to. They've been told time and time again father pays best because mother knows best, and you don't have a chance. Unless she's an unfit mother, forget it. I see the practical illustration of that even today.

• 1650

In my office, in the last year I've dealt with two cases. In one case there were assaults by the wife on the husband, and they were serious assaults. They went through the traditional process in provincial court, but the prosecutor withdrew the charges despite tape-recorded evidence, because he didn't think there was sufficient evidence to convict the wife of the very same charges that were laid against the husband of another client of mine, who happened to be a wife. They weren't quite as serious, but they are much the same thing. For threats, he got nine months. What was the difference? This was in the same provincial court, in the same jurisdiction.

What I've seen happen is that fathers develop a defeatist attitude because the system, very early on, may end up contriving to put them out of the house— the so-called kick-out order —because the wife or mother will come along and say he has assaulted her. Maybe he hasn't, but she knows, so often she'll manipulate the system to say that he did it or that he said this or said that.

The Attorney General talks about a zero-tolerance policy. I've yet to see it applied equally to both spouses. In addition, I see that when courts come to interpret the Divorce Act. They talk about not looking at conduct unless it's relevant to the ability to parent. But that becomes a blinkered approach. They will not look at the conduct of a wife who breaks up a family unit when she walks away to live with her employer and tells the husband to get lost. That's not conduct relevant to child rearing.

I've also seen the section of the Divorce Act that says that when it considers the awarding of custody, the court will take into consideration the parent who facilitates contact. I have yet to see that section used. I read all of the family law reports across this country, and it's almost never mentioned.

We have an alienation that has developed. As I listened to this gentleman talking, the picture that was emerging was that of a loving husband who looked after the children, who reared them, nurtured them, worked hard, was someone who was a loving parent. But he was suddenly tossed out of his home and can't see his kids.

I couldn't help but reflect that you get those occasions when you hear of the dreadful case of the father who walks in, shoots his wife, shoots his kid, and shoots himself. Sometimes in the application of our laws, that river flows along. We overlook that we're driving people into violence.

What we have to do is develop a new paradigm of joint parenting. Forget the words “custody” and “access”. The rule has to be— As a lawyer who has been practising for 35 years, I can tell you that if you give power and custody to one party and only access to the other, they end up using them, they hit them over the head. The child loses. But with the joint parenting concept, we go to the spouses and tell them they're going to jointly parent the child and that's going to be the end of it.

At the moment the concept of joint parenting doesn't work. Why? The courts say they will go with it if the parents will cooperate. Well, some wives say no, they want their support and want their kids around them, so they won't cooperate. They can make it a self-fulfilling prophecy by which they can't impose joint custody. We have to stop those games.

I can't suggest the new paradigm to this committee. That would be presumptuous of me. But I do say that it has to be carefully, methodically re-examined. Let's catch up to the 21st century.

My five minutes are up, so I thank you.

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

Senator DeWare.

Senator Mabel DeWare: Thank you very much. Those were some very heart-wrenching witnesses that we've just heard. I'm not going to question them all, but I really did appreciate hearing that poem.

• 1655

I want to start with Kevin and his wife.

Being a member of the committee that brought in the new grid last year, the formulas and the regulations that you're talking about, I just want to tell you that I realize what's happening. I received a letter this year, and I was wondering if it was from you. It talked about what has happened with the same situation you're in.

There was a family, but they were divorced. He was paying his custody in support of his family, the same as you are. He then married and had a young family, and the only way he could support them was by going out to get another part-time job in addition to the one he had. That was the only way he could earn enough money to help support this new little family. The ex-spouse found out that he was making more money, so she went to court and got the judge to give her access to some more. The object of going out and working hard to support his young family therefore went down the tubes.

First of all, can I ask you what you're paying right now? You started with $800. It went to $900. It went to $1,200. What do you pay per month today?

Mr. Kevin Laws: Currently, with the interim spousal support, it's $1,979.

Senator Mabel DeWare: You're paying $1,979 now?

Mr. Kevin Laws: Yes.

Senator Mabel DeWare: And you have appealed that?

Mr. Kevin Laws: The leave for motion to appeal was granted based on subsection 17(10), failure to show significant change in circumstances causally related to the marriage. At the appellate level in London, the appeal was dismissed, stating that an adjustment of child support to the new guidelines amount constituted change.

Senator Mabel DeWare: My understanding was that under the new guidelines, the spouse could go in and ask for the order to be changed— and that would be a change from the old situation that you were in as of April 1. But if you, as a paying custodian, could show undue hardship in your case, they would have to take that into consideration.

Senator Anne Cools: Where does it say that?

Senator Mabel DeWare: That is in the act.

Senator Anne Cools: It's not in the act, but it is in the guidelines that we're reviewing now. Just remember that.

Senator Erminie Cohen: I'll remember.

Senator Mabel DeWare: They put that in the guidelines? Well isn't that interesting? So it's working one way for the spouse to get access to the extra money that the non-custodial parent is paying, but it is not working the other way.

Mr. Kevin Laws: That's correct.

Senator Mabel DeWare: Isn't that interesting? Well, they're reviewing those guidelines right now, so we'll have to seriously look at that.

Do you have any other comments?

Mr. Kevin Laws: I was just going to say something that's kind of ironic. The adjustment in child support, from what I was paying to the new guidelines, actually resulted in a net reduction from $1,200 to $879. Given the fact that she's a welfare recipient, she actually receives less money. I pay less net, but when the tax implications are factored in, it costs me $2,600 more per year. I only can assume this net difference is somehow ending up in Revenue Canada's hands. So there's a prime example of how the new child support guidelines' intentions to put more money in the hands of the children have miserably failed.

Senator Mabel DeWare: And that's because you're not allowed to deduct that any more.

Mr. Kevin Laws: That's correct. And she never had to pay taxes in the first place, because she was receiving welfare.

Senator Mabel DeWare: Thank you very much.

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

Mr. Paul Szabo: Mr. Day and Mr. Haines, between the two of you, I guess you have about fifty years' experience in these matters. I would like to ask you a question, because probably everyone wants to know your opinion on it, although I don't know that there is a good answer.

Under the current divorce laws, lawyers are required to inform the client of mediation services and the advisability of negotiating issues. They have that obligation. I assume that we go through something, but I suspect it's not something that is as constructive as it might otherwise be if it was mandated that they go through or try mediation first.

The question I want to ask you is this: In view of the fact that in over 80% of the cases custody is awarded to the mother, and in view of the fact that we are here discussing all of these terrible problems that we have with custody and access issues, should we then conclude that the courts have been in error in a large number of their custody awards?

• 1700

Mr. Michael Day: I guess my response to that is it's almost a foregone conclusion that the mother will have custody.

When I'm interviewing a male client, and I ask for both male and female, I ask him if he is interested in pursuing custody of his children. Quite often, I get a shocked look from the client. The look is followed usually by a question. He asks: “Do you mean I've got a chance?” My response to him is that the odds are against him. I say we should listen to what happened to his marriage and why it broke down.

I ask all my clients if there's a chance of mediation or reconciliation. Before I even get the question completed, I hear a resounding no. They say it's not going to work. They say that this is why they're there.

So is it a judge's error that the wife gets custody in most cases? I think it's just a mindset so far.

When I go to court with a male client who is looking for custody, it's always an uphill battle. I always have to have a special-fact situation in order to have a good chance at getting custody.

Mr. Bruce Haines: As I said, it's not an issue of judicial bias, it's a problem of an entrenched gender-systemic bias.

In one of the two cases I mentioned where the charges were withdrawn against the wife who had seriously assaulted the husband, her attitude— she remarked this to him —was that in Ontario, even whores get the kids. Quite frankly, it's a statement that's not without merit.

We also see other situations where for example existing access orders are violated by custodial parents day in and day out. It's the old story of Johnny's sick, Johnny doesn't want to come out, or Johnny decided that he had to go see a friend. Whatever reason it is, the consequence of the wife disobeying the so-called access order is none, with one exception. After numerous— 10, 15, 20, or 30 —occasions, a judge— it was not too far away from here —had the guts to send the lady to jail for 60 days. It's under appeal. There was a crowd of men there cheering. They couldn't believe it. You know, they were right.

Let me tell you the consequences of the husband who violates a custody order. He's picked up and charged with abduction under section 282 of the Criminal Code. He's dealt with harshly. That's the routine, and not the exception that we saw.

So I say no, it's not judicial bias. They're all in that same river that has a current. All I'm trying to suggest is let's take the current out of the river.

Thank you.

The Joint Chair (Senator Landon Pearson): Dr. Bennett.

Ms. Carolyn Bennett: I guess my question is this: While we're trying to get the current out of the river, do you think that in terms of trying to change the culture, the kinds of stories we hear today are fewer in these highly contested situations in which children have a lawyer?

Mr. Bruce Haines: You see as often as not, by the time you can get to that stage, that the children may be so badly denigrated by the person who has interim custody.

I have a constant problem whereby I'm presented with denigration in which dad is afraid to do anything. He'll show up on Saturday and bring the gifts, but he's afraid of a meaningful relationship because mother, who has them most of the time, may do a number on them.

• 1705

I don't see a panacea in children representation. I do see the benefit of early mediation. One of the reasons why that's so important is so that the parties don't end up hating each other even more.

Ms. Carolyn Bennett: I guess then in a situation where this dad is being denied access— Obviously, I think there's a consensus that this is generally not in the best interests of the children. There should be some ongoing therapeutic relationship for the children so that they have a way of dealing with this in terms of the parental alienation or a way of just having a sounding board or a built-in second opinion in terms of the opinion generated in the custodial home.

Mr. Bruce Haines: If we got rid of the concepts of custody and access—

Ms. Carolyn Bennett: I think the committee is certainly hearing—

Mr. Bruce Haines: Okay. Well, if you do that and start educating the public through your legislative changes and making this very clear, you may find that a lot of those problems start to disappear.

Ms. Carolyn Bennett: Okay.

Mr. Michael Day: May I respond to the child representation question?

Representation by a lawyer for a child is in large measure successful if the lawyer is aggressive, if the child lawyer is aggressive. I've done child rep work for a number of years, and the direction we've been asked to take is a very low profile one. A child's representative is supposed to not take an adversarial or normal advocate position. They are to sit back, listen, and then make recommendations to the judge at the end of the process. It may be two years down the road before the child rep will be able to get up on his or her feet and tell the judge what he or she thinks.

My feeling is that the representative of the child should be mandated to have to get up on his or her feet right at the outset and take a position as soon as possible. Right now, that's not happening. The process and practice is that if the children are old enough, the rep will interview the child. Sometimes you hear what the child's preferences are, but quite often it's not until way down the process.

So for child representation to work, I think the lawyer for the child has to get up and advocate a little bit more forcefully than what's happening so far.

Ms. Carolyn Bennett: Thank you.

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

Mr. Paul Forseth: Thank you, Madam Chair.

There was a very positive statement made that there was a need for a new paradigm type of joint parenting concept. Does that also involve the mutual responsibility to pay the costs of this joint parenting concept?

I take it that at one point, in maintenance, we had to consider the ability to pay, and also the demonstrated need. It was also not just one or the other, it was household versus household. It was whether that individual was related or whether they were living together or not.

Say it was the father, and he was going to pay. His ability to pay would be affected by the considerable income of his girlfriend. Or maybe he now was living with a lady and paying no rent, which allowed him to pay more child maintenance. Or it could be the other way around. A mother sought refuge and was living with her parents, but she didn't have to pay any rent. Her groceries were being subsidized. So that household, perhaps, had to be taken into account. It's relative in terms of household versus household. It's the ability to pay and the demonstrated need.

We don't have that situation now with the new paradigm, the new maintenance situation. It would certainly seem that the current maintenance scheme that we have flies in the face of what you are looking for, which is this new paradigm of a joint parenting concept.

I believe the other statement is true. It talked about heartstrings and strings to your pocketbook as being together. Do you want to comment on that a little bit?

• 1710

Mr. Bruce Haines: Within the concept of joint parenting, I have not excluded the idea of the primary place where the child resides. On the contrary, I assume that in many cases you're going to have that situation.

In terms of the cost, by which I assume you mean child support as opposed to legal costs, I don't see that you have to readdress, or set off completely, the issue of child maintenance costs against the concept of joint parenting. To some extent, of course, that's already done in the guidelines.

I see it more as an important issue to educate the public and lead the public on— and now catch up with them, in a way —to come to a joint parenting concept where we stop creating a class of winners and losers. Where do we find ways? We draft legislation to compel an implementation of a custody situation that will not give lip service to gender-neutral language. We're going to have to work very hard on this and think through it a lot.

Mr. Paul Forseth: All right.

I had referred earlier to the ideal order that does provide, say, joint guardianship or joint custody. But in effect, the comeback is that it's not worth the paper it's written on unless there's a mechanism to actually make it happen when it is denied.

I use the typical example of one parent who registers the child in a religious school or private school situation without consultation with the other parent. The whole business of separate schools and so on is an issue that tore this country apart and is foundational to our Constitution. So those issues are things that people get pretty angry about, because it fundamentally defines who they are as people. It has cultural background and all the rest of it.

We've heard evidence about, sure, wanting to have these ideal orders, that it's a true level playing field, but how do we then make it happen? We have parents now who have joint custody or guardianship orders, but they say it's not worth the paper it's written on, because they have no mechanism to actually make it in fact.

The word is out there: you can do what you please because they can't do anything to you. What would be your recommendation to undo that?

Mr. Bruce Haines: As I said in my written submission, I haven't come here today to set up a paradigm. That's going to take a lot of study.

I hear what you say about the examples you've given. In most cases, parents who fight over the custody of children can't even afford private schools. They're working from paycheque to paycheque.

These are things that are going to have to be thought out, and thought out clearly, as we try to set up a system. What I've tried to outline today, as a generalist, is that I've looked at my experience, 35 years of what's happened. I've acted for husbands and wives equally. I know there's something seriously wrong with the system. We're not going where we should be going.

I don't purport to have all of the answers. Perhaps I don't even have very many of them. But I do say we have to roll up our sleeves and think about what we're doing. There's a lot of good people in the community who can answer those questions better than I can. There are a lot of people who have a broad range of experience. Let's get to work at it.

Mr. Paul Forseth: Is there anyone else at the table who would like to add a closing comment?

Mr. Eugene Colosimo: I would like to say that judges need to enforce the rules that are already there. There are plenty of laws on the books, such as the friendly parent rule. The judges are not making decisions that are on the books. You can't get what's already there. They're just not doing it.

We have men in our group who have joint custody, and the mother's in Italy with the kids. He has $30,000 in a fund to bring those kids to Canada, but she's not bringing them. There are laws that are not being enforced.

So just have the judges enforce the rules that are out there, like the one we saw in Brampton last month. That would be a great start— education for judges.

The Joint Chair (Senator Landon Pearson): Ms. St-Hilaire.

[Translation]

Ms. Caroline St-Hilaire: Thank you very much.

You just said that the Divorce Act leads to general rules, whereas it's often case by case.

• 1715

Because my questions are somewhat personal, I have only one, for Mr. Laws.

If the mandatory mediation we talked about had been possible in your case, could it have resolved some of the problems you faced?

[English]

Mr. Kevin Laws: There was no mediation throughout the whole process of the divorce at the time. Is this what you're referring to?

The divorce was actually a contested divorce on my part. After it went to trial, the ultimate settlement was in minutes, with my agreeing to drop the contesting charges. They stated quite bluntly that there would be no attempts for remediation in solving the issues.

Mr. Eugene Colosimo: Can I add something? Mandatory mediation, without being binding, if I'm starting on a level playing field, isn't going to work. It takes two to tango but only one for high conflict.

In my situation, for instance, I would love the mediation. Don't you think that every mediator in the world would give me 1%? My ex has 100% and I have zero. Can you think of any mediation where I wouldn't get 1%? She would lose, then, wouldn't she, from what she has now.

Bring her to a mandatory— Insisting that she mediate and then have her walk away and break it off at any time wouldn't do it. It has to be binding. I'd have to be bargaining from a position of strength as well.

So it has to be on a level playing field and it has to be binding. What good is demanding that she come to the table when she can walk away and know it's all there for her at the end?

The Joint Chair (Senator Landon Pearson): I have one final question, because you have so much experience. It's been really helpful and interesting to listen to you.

Now, you all have brought different things, but I think in this case I'm appealing to the lawyer's experience.

Recently a couple of cases have been brought to my attention that I find very tragic. In these cases, neither parent wants the child. Have you had some of that kind of experience, and if so, what do you do about it?

Mr. Bruce Haines: I've had a rise in two cases collaterally, where the grandparents wanted to step in and take over the care of the children. In one case, that went through on a consent basis, and there was no problem. In the other case, it's tragic to say that the only thing the actual parents could agree on was that the grandparents shouldn't have custody of the children.

Unfortunately, there is nothing in the Divorce Act, as it now exists, that clearly allows grandparents to seek the custody— that is, the parenting —of the children. I would think that a very easy legislative change to the Divorce Act could insert that as a right of application— not that you'd necessarily succeed, but it's not just parents who have a role; it's also grandparents.

Very frequently, they will stand by. I've seen them cry tears in my office over what the fight between mom and dad is doing to their grandchildren. They want to stop the fallout.

The Joint Chair (Senator Landon Pearson): Thank you. That's quite helpful.

I think there are certain jurisdictions, such as in other countries, where there is a presumption that in the case where neither parent is prepared, or is judged fit, as in child protection cases, to look after the child, the extended family in whatever way, whether it's grandparents or others, would have the preferential role.

Would something like that be useful?

Mr. Bruce Haines: Several of the provinces do have legislation— in Manitoba, I think —that specifically allows grandparents to seek child custody under provincial law.

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

Mr. Simon Wauchop: Could I add something to this? In my particular case, my wife's parents stepped in, to my detriment, and took over with the children, without even consulting me. In fact, that situation was used against me in court once we got into court.

• 1720

The Joint Chair (Senator Landon Pearson): I understand that issue, but I was looking at the cases I have encountered, in which neither parent wants the child and the child is suffering terribly from rejection on both sides. It does happen, and it's tragic. Your suggestions, I think, are quite helpful.

Thank you all very much. We've had a very long day, as you know. It was extremely interesting, and there were a lot of very helpful suggestions. If you wait for a long time, such as the end of November, you will find how it all comes out.

We will be convening tomorrow in this room.

The meeting is adjourned to the call of the chair.