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]

Thursday, April 2, 1998

• 1001

[Translation]

The Joint Chair (Senator Landon Pearson (Ontario, Lib.)): Welcome to the 15th meeting of the Special Joint Committee on Child Custody and Access.

Before we begin the meeting, I'd like to read the terms of reference of our committee. They state:

That a Special Joint Committee of the Senate and the House of Commons be appointed to examine and analyze issues relating to custody and access arrangements after separation and divorce, and in particular, to assess the need for a more child-centered approach to family law policies and practices that would emphasize joint parental responsibilities and child-focussed parenting arrangements based on children's needs and best interests.

We have the pleasure of welcoming here this morning Mr. Norman Levasseur, President of the Groupe d'action des pères pour le maintien des liens familiaux; Mr. Sylvain Camus, the Director General of Pères séparés; and Mssrs Turcotte, Claes and Prévost representing the Association lien pères-enfants de Québec.

As we only have an hour available and the members of the committee would like to put questions to you, we'd like you to do your presentations in five minutes.

Mr. Rock Turcotte (Association lien pères-enfants de Québec): Good morning. I'm Rock Turcotte and I'm Chairman of the Quebec City ALPE. We're pleased to be able to come here and talk to you about our experiences.

Quebec City ALPE is a young association of separated and divorced fathers from Quebec City and there are about 100 members presently to whom we offer counselling services. It also coordinates different activities to make the general public more aware of what separated and divorced fathers in Quebec go through.

We're already working in co-operation with different associations all around the world to enhance the father's role as well as the respect shown for the fact that children can have as good a life with their father as with their mother.

We'll take the opportunity of being here to clarify a point. We would like to remind you at the outset that children, both for their father as well as their mother, are unique. It goes without saying that it is everyone's responsibility to protect and preserve this fundamental right that is the basis of any civilized society. In our opinion, this right takes priority over any other.

We're quite conscious this morning that some groups who have appeared before this committee seem to have forgotten this fundamental right of children and have even wished, in one way or another, to undermine it, in fact. It's up to you to judge their real intentions, which are such that they are ready to deprive children, and especially our children, of this primordial right.

• 1005

Because of the time allocated, we'll go straight to the substance of our presentation. First of all, we set out the principles that must guide any change in the legislation concerning divorce and separation as well as the recommendations stemming from that.

The principles put forth by the Quebec City ALPE are as follows:

- take the required steps to avoid any form of useless confrontation whose only goal is to blackmail the other parent thus making the children, more or less directly or indirectly, hostages;

- see to it that joint and shared custody be a reality in fact, this being in the interest of the child;

- presume that both parents are good parents and that they act as such;

- make impossible any form of child abduction, whatever the pretext;

- protect the right of children to have free access to their father and mother in cases of divorce or separation;

- that any form of manipulation and blackmail, whatever it may be, as well as all the diverse legal red tape, be repressed and made useless in fact;

- render nul and void any legal procedure which would in any way impede free access by one or the other or both parents to the child as well as that of the child to both parents;

- that both parents not have to quarrel to obtain custody of the children because they are equal in fact.

In our opinion, those are the principles around which any change in the Divorce Act should evolve. From that stem more specific recommendations which are as follows. As representative of the Quebec City ALPE, here is what I have to say on that:

- the best way to protect the children's natural right to both their parents is through 50% joint and shared custody;

- that, as soon as legal proceedings with a view to obtaining separation or divorce are undertaken, joint and shared custody automatically enter into force as well as when the parents cease living together;

- that the children remain in their social and schooling environment at the time of divorce until the age of 12 years;

- that a child of more than 12 years of age be able to choose to live with one or the other of the parents for a period of one year, alternating between both, both inside as well as outside the school zone;

- that flexibility be introduced in the idea of joint and shared custody so that the maximum period of its calculation can be spread over two years without this leading to any right of so-called exclusive custody for one of the parents;

- that children of more than 14 years of age may request the possibility to live with either one of the parents, on an annual basis, while taking into account the school year;

- that no form of blackmail between parents through the use of the legal system or false criminal accusations be tolerated in any way;

- that the courts be very conscious of the possibility of parental alienation and parental domination by one or the other of the parents.

- that, when the child attains the age of 18 years, in the case of separation or divorce, all parental responsibilities flowing from the legislation concerning separation and divorce come to an end; the child is free to live where he chooses and as he chooses because he is, in fact, an adult.

Those are our recommendations concerning a review of the Divorce Act. In our opinion, the population in general has already reached a broad consensus on this. We will be happy to answer any questions you have.

The Joint Chair (Senator Landon Pearson): Thank you very much. Who would like to take the floor next?

Mr. Norman Levasseur (President, Groupe d'action des pères pour le maintien des liens familiaux): It's a pleasure to introduce the Groupe d'action des pères pour le maintien des liens familiaux, which has been in existence since March, 1996. The GAPMLF's goal is to protect and defend the rights of separated and divorced fathers and inform them as to what affects them. Our goal is mainly to give the children the right to be loved by both parents justly.

The GAPMLF is made up of separated or divorced fathers residing in the Trois-Rivières area. In our ranks, we have people from different segments of society, people on welfare, professionals in the areas of health, notaries, doctors, business people and so forth which shows that the problem facing separated and divorced fathers affects all segments of society. Fathers from everywhere in Canada call us to express solidarity.

• 1010

The Groupe d'action des pères pour le maintien des liens familiaux believes it is possible to give our children a healthy environment where they may flourish and live normally with both parents, as they deserve.

Today, in the case of a separation or a divorce, society disempowers the father in the area of parental functions. Society gives the mother the responsibility to educate her children in all meanings of the word. The role of the father is reduced to providing financial security, financial support through the amount given in alimony.

Visiting rights and access to children are the most frequent reason for resorting to court in cases of divorce or separation. These reasons regularly give rise to agonizing conflicts where children are caught in the middle, are often traumatized for the rest of their lives and must, in spite of themselves, choose between their father or their mother.

The GAPMLF would like to see the procedures surrounding the dissolution of a union totally taken out of the legal process. The GAPMLF thus suggests mandatory mediation for anything having to do with the custody and maintenance of the children in cases of dissolved marriages. In this context, we recommend shared custody as being the basic provision and, if shared custody is possible, a financial contribution to the support of the child, as a percentage, based on the principle of taxation, upon implementation.

The GAPMLF is concerned that in the event of a marriage breakdown, one of the two parents might have to rely on welfare. In those specific cases, the GAPMLF recommends that the government pay closer attention to avoid having society encourage under-the-table work.

The GAPMLF cannot say whether women are better than men at taking care of children, but does recognize that before the breakdown, both were good parents. Women entered the labour market en masse, for the greater benefit of society, which makes them equal to men. Men, on the other hand, are redefining their parenthood and their priorities. Previously, work came before family; today, family comes before work. Men are more concerned by their children's education. Now that we have established parental equality, how can we continue to benefit one of the parents to the detriment of the other?

The GAPMLF has decided in favour of one directive: the interest of the child. I won't read you the whole brief that we've sent you, only its conclusion.

The main conclusions indicate that the interest of the child is absolutely not respected and that fathers and children are the butt of unadulterated sexism. How did we come to reduce the notion of fatherhood to second class status? All that has been acquired gives women a totally enviable position. But this imbalance where the mother doesn't need the father anymore either to have or to continue having a family, will have disastrous consequences for men and children, and, in the longer term, for society.

Today, a man who wishes to experience a more affectionate and involved fatherhood with his children has a huge mountain to climb. Quite a number of men have redefined their fatherhood and their priorities vis-à-vis their professional commitments to get closer to their children through both their physical presence and their greater affection.

Unfortunately, that door will remain open only as long as it is allowed to be by the mother, because in the case of a divorce where the mother refuses shared custody or refuses to accept a pension that is fair and equitable and will allow the father a decent living, the father, without the agreement of the mother, will remain the kind father who has ties of affection with his children and who has learned to nurture them, but he'll have to undo all this and return to the old model of a father.

Should we continue creating a world where the mother can replace the biological father of her children by any other father of her choice and even totally eliminate the father from his children's lives? We are bequeathing a very cruel and disastrous society to our children, a society where it's far too easy for the mother to separate a father from his children, a society where the father does not count anymore and is not offered full consideration.

The Action Group would like to thank the government for listening to its point of view. We hope, in the best interest of the children, that the government as a whole will be bold enough to accept our recommendations to give families a child-based focus once again.

Thank you.

The Joint Chair (Senator Landon Pearson): Thank you very much. Is there another presentation?

• 1015

Mr. Sylvain Camus (Executive Director, Separated Fathers): Senator Pearson, Mr. Gallaway, ladies and gentlemen, the group Separated Fathers has provided the committee with a submission in French entitled “neither Samson, nor Dalila.” The sub-title is “Protecting the father-child relationship in accordance with the social interests of children, women and grandparents.”

Our position is similar to that of the two previous speakers. We are an organization working in east Montreal. We have been working quite intensively over the last few years in various areas. We used to work in the area of social rights, but we have set up groups just to develop services for fathers. In recent years, we have worked with different groups such as social workers dealing with fathers and fathers' groups defending their rights.

As you no doubt know, traditionally and still today, fathers have generally been restricted to the role of providers for the mother and the children, while the children are limited to seeing their father every second weekend. Under the Divorce Act, as you probably know, only 14.3% of children in 1990 in Canada were in shared custody arrangements; 73.3% of children were with their mother.

The situation for children in Quebec is even worse when we take into account common law relationships. In 1991, according to the Council on the Status of Women, only 7% of children benefited from shared custody, whereas the mother had custody in 77% of the cases. In Quebec, therefore, 93% of children are with only one parent.

When only one parent is given custody, the non-custodial parent generally loses most or all parental authority. If shared custody is not granted, the non-custodial parent generally loses his or her joint custody powers, that is the power to make decisions in cooperation with the other parent concerning the child's schooling, medical treatment and so on. Moreover, the non- custodial parent has little power and little access to school and medical information. Even this much parental freedom is subject to the whims of school authorities, daycare centres and medical authorities.

These situations arise regularly. We have come a long way from the 1950s, when women had to demand the right to be able to sign their child's report card, as was the case in Quebec.

With respect to children's relationships with non-custodial parents, that is, fathers, these parents have little protection if access rights are violated. According to the 1995 report of the Ontario Civil Justice Review Committee, referred to in a Federal Justice Department document, 69% of non-custodial parents, especially fathers, report problems in exercising their access rights, and using the legal system and police to enforce these rights is ineffective, slow and costly.

I would like to draw your attention to a ruling by Madam Justice L'Heureux-Dubé that has drastically changed case law: a custodial parent may leave the country or region with his or her child if he or she wishes, for the simple reason that custody has already been awarded to the “best parent”.

I would like to describe a situation that shows the excessiveness of this ruling. There is a father who exercises his access rights every two weeks. Every weekend that he has access, he makes the return trip from Montreal to Lac-Saint-Jean, which is over 400 kilometres, so that his child can benefit from his presence and his security. The mother, in fact, comes from the same area of Montreal and the grandparents of the child live there.

Fathers love their children and are profoundly attached to them. It is not because they don't have custody that they are not responsible or able to carry out the duties of custody. Thus power of custody gives the custodial parent, if he or she wishes to use it negatively, enormous power. In view of the time that the custodial parent spends with the child and the power he or she has to prevent access, they are able to alienate children from the other parent and play on their sense of guilt. Even certain exemplary fathers who have previously spent a year or taken sabbatical leave to be with their children are being refused shared custody and had their visiting rights violated.

In short, children are more often than not deprived of their father, and this has a long-term impact on their future development. Family mediation specialists working in the Montreal Court House have indicated various psychological effects on the child resulting from separation, according to his or her age and gender.

• 1020

We can summarize by saying that traditional arrangements prevail although in everyday family life roles are less and less clearly delineated or standardized. As we have moved forward, our traditional patterns have tended to disappear and the focus is increasingly on individual and personal achievement. Furthermore, progress in the area of the status of women has taken place in a paradoxical situation. During the 1960s and 1970s, women demanded economic autonomy, but over the past 15 years or so their demands have shifted to issues of violence and poverty.

While such demands are well founded in social terms, there is something paradoxical about them. The argument of victimization has been added to the demand for women's empowerment. Promotion of the status of women now has two components to it, emancipation or empowerment and traditional demands, and social policies have been developed to address both. This has become the dominant voice in society, while the views and needs of fathers have been marginalized. The granting of custody and visiting rights has followed this trend.

However, to be a parent is a freedom all citizens naturally enjoy; it is something you learn by doing and does not require any certificate of competence from the public authorities.

The community tradition focusses more on developing the autonomy of individuals while respecting their dignity. Should we not do the same thing by supporting separated fathers as they carry out their parental responsibilities and by helping them on the long road of separation?

Our social and community experience has led us to the following fundamental conclusion: in terms of social and institutional status, fathers are second-class citizens, as Mr. Levasseur indicated. In the interest of children with separated or divorced parents, it is essential at the present time to mitigate and counter the perverse impact of social reforms on fathers and children. We believe that shared custody could help in this regard and make it easier to maintain a father-child relationship.

We also believe that decisions regarding access should be accompanied by a clear explanation regarding the joint custody rights of the parent. Any arrangement to the contrary should require an explicit waiver, and in such a case, the rights of the non-custodial parent should be clearly explained. This should encourage each of the parents to assume their responsibility and should make it easier for rights to be enforced with respect to an institution, just as legal standards are imposed in a contract for the purpose of protecting the consumer.

Third, the Department of Justice should take the lead in publicly promoting such reforms through programs to educate parents and other people involved. Fathers have a great deal of power in society, like Samson, and this significant power is based on their social position. They should not be considered as powerless parents or parental idiots, like latter-day Samsons who have had their hair cropped by Dalila. Nor would such steps, which would be taken to ensure respect for the principle of joint parenting, have the effect of returning modern-day Dalilas to their previous situations. Neither Samson nor Dalila.

The Joint Chair (Senator Landon Pearson): Thank you very much. We'll move on to questions. Senator Jessiman.

[English]

Senator Duncan J. Jessiman (Manitoba, PC): Thank you. I'm sorry I can't speak your language. I hope you can speak English. If you can't, the interpreter will tell you what I'm saying.

We've heard from a number of fathers' associations. I would ask you the same question: Is it your view that the courts are gender-biased in favour of women? Is it your view that judges, when they hear the cases, are favouring mothers over fathers when it comes to actual custody of the children?

Mr. Norman Levasseur: Yes.

Senator Duncan Jessiman: We're told, however, that the percentage of fathers that actually ask for custody is very limited, and that those who do ask for custody receive it in more than 50% of the cases. Is that not your experience, or is that an untrue statement?

[Translation]

Mr. Norman Levasseur: I will answer. Custody is not sought because very often, the woman refuses. Because of that men do not ask for it, because if women refuse right at the outset, they will not go to fight it out in court, only to be told no. That is why they don't ask, and they are not encouraged to do so. When there is conflict between the two parents, even if the father asks for custody, it is not granted to him. For joint custody to be granted, the parents always have to get along fairly. We would like to see the opposite; we would like joint custody to be the usual process. If the parents get along reasonably well, they should be granted legal custody.

• 1025

Mr. Sylvain Camus: Senator,

[English]

when I was doing my groceries I bought this review about doing meals for the children and all that. It's called Coup de pouce. We found statistics on divorce and custody in Canada in terms of the gender of people who are going to ask, or not ask, for joint custody. This is included in my mémoire. I would like the committee to note that in every case, the percentage of fathers is smaller than the percentage of mothers, even if they ask for joint custody.

In some cases, some fathers don't even know they can ask for joint custody. There's a mentality that says not to ask for joint custody, because you're sure not to get it. As well, fathers who separate sometimes have the feeling that they don't have the competence to bring up their children.

So it's very important for them. This is the mentality. Sometimes they just turn around when the proceedings are already under way; they start as losers, in a certain way.

As well, in very many cases, before you go to trial, when there are intermediate procedures or decisions for the court, they're going to give custody to the mother. Because even if the mother wants to separate, often the father is going to leave the house, leaving the children with the mother, at least in the meantime. After that, if they don't have enough right of access, they're going to be penalized in the process, and they're going to start to be cut off.

They have as well very deep feelings and problems that can last from six months to two years. When you have been ten years with someone, you have an emotional upset, a major emotional upset. Sometimes you won't be able to express your feelings.

We don't have any support. Fathers do not have any support. Women have a lot of support, which is very good, but fathers also want some.

Senator Duncan Jessiman: From whom do you want that support?

Mr. Sylvain Camus: Community support, perhaps. When women go to women's centres they are all well informed about what is going on. To show you how excessive the problem is, to take battered women's shelters as an example, there are maybe 200 in Quebec. I would like to ask each of you if you know how many centres there are for men who are violent. In Montreal there is one centre, and I'm not even sure that it's actually functional. It was being put up last summer.

• 1030

This shows how the problems and situations of fathers are neglected. Fathers have to live like that and start from a traditional point of view. We don't have a parental model, which is often our mother. We have relations with our children that are different from what our father had with us.

Senator Duncan Jessiman: I wondering if I'm understanding you correctly. Are you saying there are fathers who are battered by their wives and there are no shelters for them? My understanding of these shelters is that because there has been physical violence against the mothers they end up in these shelters. Are you saying we should have shelters for men who are being abused by their wives?

Mr. Sylvain Camus: In certain ways there can be some, but what I was showing is that men who are violent, who have had accusations of violence against them, go to prison. They don't have any place where they can be sheltered and maintained, compared to what women have. So what I wondered was why there are actually so few, and I think this is a high point that shows the extreme of the services that have been given to women in the last years and how the situation of men and their relationship to their children is neglected.

The Joint Chair (Senator Landon Pearson): Mr. Turcotte wanted to answer. This is just cutting in, but quickly, please, and then we'll move on.

[Translation]

Mr. Rock Turcotte: This is the question I have for you: how many fathers ask for custody of their child? We know that very few are successful, from the people who come to meet with us. My colleague mentioned that about 10% of fathers go to court to obtain a favourable decision and 10% of those obtain it. This means that there are approximately 1% of fathers who obtain custody.

The advice we have to give fathers who turn to us is to withdraw their custody request. This is what we ask them: are you ready to demolish your children's mother? Most men won't get into that kind of debate; you're looking at a very small minority.

In light of that, what options do fathers then have? We know very well that shared joint custody is accepted by the courts at this time if the two parents get along and it is not accepted on a permanent basis. It can be called into question at any time and on any grounds.

As president of the ALPE, I can state that we are clearly and categorically opposed to the current situation, which is that one must absolutely demolish one of the two parents to obtain custody when both requested it. We find this totally unacceptable and we believe that the child's interest is not being served by this process.

The Joint Chair (Senator Landon Pearson): I must point out that you have already gone beyond the five minutes you had for that question. You will have other opportunities to speak.

Mr. Rock Turcotte: Very well.

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

Senator Lucie Pépin (Shawinigan, Lib.): I would like to put certain things in perspective. I understand your approach very well when you say that as fathers you are under the impression that you don't have much to say or the same rights as mothers where joint custody is concerned.

I must say right from the outset that I was one of the women who fought so that women would have alimony and also for women to have shelters to go to when they were beaten. I was not aware that there were very few shelters for men, but I can tell you that if women have them now, it is because they fought for them. We worked for years to obtain them. I would certainly like to see you have access to the same sort of thing.

I apologize but I do not know your name because you are the third speaker and you did not identify yourself in the beginning. You say there are men who have no place to go when they leave jail, where they went in the first place for beating their wives. I thought there were halfway houses for people in that kind of situation. Now, I don't know.

I'll put my three questions sequentially. Mr. Turcotte, are you advocating that joint custody be offered or be considered a right recognized to all families? That is what I would like to know.

• 1035

Mr. Rock Turcotte: What we are advocating is that when the parents do not agree and both go before a judge to ask for custody, that the court grant joint and shared custody. In that way the rules would be clear. If a judge has to decide, he must decide that custody will be joint, shared custody. Until the decision is handed down by the court, shared, joint custody should be the norm.

We would go even further. When the parents stop living together, supposing both are good parents, we would seek to reduce tension and stabilize the children. The father would then know that he had this recognized right and should he go to court it would be confirmed. We think that ultimately the real winners will not be the fathers first and foremost, but the children.

Senator Lucie Pépin: Would you then ask for joint custody including costs and decisions, or would the children also have to live two weeks with the father and two weeks with the mother? Would it depend on the age of the children?

Mr. Rock Turcotte: Up to the age of 12 years. That is what we put in our brief. We proposed that that be the situation until the child reaches the age of 12 years. Between 12 and 14 years of age, before the child can decide which of the two parents he or she wants to live with, we suggest that it be possible to extend shared custody during two years, or that the child be able to choose to live one year with his father and one year with his mother, but always at his or her request. He or she should be able to make that choice at that time.

We also think that between the ages of 12 and 14 if they are outside the school zone this becomes an interesting option because as soon as the child turns 14 he will be in a better position to choose the parents he wants to live with.

We go even further; at 14 his or her decision to go and live with his father or his mother does not have to be a final decision. He can change his mind once a year. What we want to avoid is that the child be got rid of; one fine morning, one of the parents gets up and drives the child over to the other parent's house for whatever reason. We want to avoid that situation.

Senator Lucie Pépin: I would advocate another approach. You want to do what you suggest for the good of the children. I agree with you entirely when you say that the parents should not have to demolish each other and that this approach would help them perhaps to stop quarrelling.

However, when a child of two, four or five years of age is forced to shuttle back and forth between his two parents... If they live on the same street, it's feasible. But most of the time they are in two different cities. It's difficult emotionally. I am not trying to favour either the mother or the father in this situation, but looking at things from the child's perspective.

From the emotional point of view, when a child has to go back and forth between two homes... He loves both parents, of course, but do you think this is the best solution to encourage a certain rootedness in the child?

Mr. Rock Turcotte: I'm going to refer to a concrete case, because this is what I have been experiencing with my young son. From the age of two years to when he turns six, I have custody one week out of three. I agreed that my ex-wife should have custody and I had the child one week out of three. The child adapted to the situation more quickly than you would think. In any case, when I hear what experts have to say, I find that their statements in no way correspond to what my child experienced. He is learning to live in one way with daddy, and in another way with mommy.

Now, he is in Halifax. Since she had custody, she could leave with the child. My son is in Halifax. He came at Christmas. He has been in Halifax for a year and a half. He asked me if he could come and spend a year with me. That is the request he made to me. So, if you ask me...

The Joint Chair (Senator Landon Pearson): Ms. St-Hilaire.

Senator Lucie Pépin: I haven't asked half my questions. It's not possible!

Mr. Caroline St-Hilaire (Longueuil, BQ): My comments are along the same lines as those made by Senator Pépin. First, I want to thank you for having come here this morning. You talked about shared custody and if I understood you correctly you are asking that joint custody be the first factor in any negotiations and be imposed, in fact.

You did not refer to mediation. You know that in Quebec, where most of you come from, when there is a separation, there is a mediation process that is triggered when there is to be a divorce. How do you feel about that mediation process?

Mr. Norman Levasseur: We are very comfortable with mediation. It helps people to have a less acrimonious divorce. It should be imposed, as it is in Quebec, by Canadian law.

Mediation allows people to find certain common ground. If there is no advantage to be gained by any one in fighting to make their point the involvement of lawyers or of other people who will cause more acrimony would be unnecessary. If a mediator can calm people down... There is always one of the two parents who does not really accept the divorce. One is always more unbalanced than the other. Sometimes people have to go to psychologists. All those services already exist. The only thing that is missing is the possibility of offering our children shared custody in their own interest.

• 1040

If the parents have problems there are all kinds of mechanisms, people, and community organizations that can support them and help them through things, precisely in the interest of the child.

But to answer the question that was raised earlier I will use myself as an example. I have two children and I must drive 320 km in one case and 700 in the other to go and get my son. This isn't normal. It certainly isn't normal that fathers have to do this kind of thing. My children would like us to have shared custody.

Ms. Caroline St-Hilaire: Why do you have to drive 700 km? I don't understand clearly.

Mr. Norman Levasseur: Because my children live with their mother.

Mr. Caroline St-Hilaire: Yes, and who is living far away from whom?

Mr. Norman Levasseur: Well, the mother lives far away from both.

Ms. Caroline St-Hilaire: So you are suggesting shared custody in this case.

Mr. Norman Levasseur: No, my case is ancient history. I'm thinking of the new cases, the ones yet to come.

Ms. Caroline St-Hilaire: Yes, but what would happen in a new case, where both parents live far away from each other?

Mr. Norman Levasseur: Why would they choose to live far away from each other? When they lived together, they lived in the same city. Why would one of the two parents move?

Ms. Caroline St-Hilaire: It's called evolution.

Mr. Norman Levasseur: Okay, it's evolution. But when a man and a woman meet, they agree to certain compromises. And what are those compromises? They love each other, they decide to reside in the same city and to start a family. That is where the children are to be raised. Why would one of the two parents then leave? That isn't evolution. There's a choice to be made, which is to choose the interest of the children. We should, then, live in the same city for the good of the children. We have to raise them.

After that, when the children turn 18, when they leave home, the parents can do whatever they like. But when you have children you shouldn't let things deteriorate to the point where they are being shunted about all over the map. You have to care for them.

Ms. Caroline St-Hilaire: In that case, what I'm saying is along the same lines. You say children shouldn't be shunted about all over the place. It is that problem that makes me hesitate somewhat in regard to joint custody. Isn't that precisely what happens when there is joint custody; the child gets shuttled about from one side to the other?

Mr. Norman Levasseur: No, the child...

Mr. Caroline St-Hilaire: A child of two, or five years of age...

Mr. Norman Levasseur: No, I can tell you from experience that my children would like joint custody, would like to live one week with me and one week with their mother. It's impossible in any case because of the distance between us.

I think that all children adapt more easily than we think. Studies have been done and they are conclusive. For most of the people who have joint custody things go very well; children develop very well in such a system. Insofar as the children's development is concerned they will be more balanced because they will have known both of their parents, rather than living in a single-parent home. A single-parent home is hell for them. You increase the risk of having drop-outs, problems in school, delinquency and drug use.

We are familiar with studies on these topics. Many studies have been done and they are conclusive. So, why not go forward? Why does the government not decide to go forward for once? The Quebec government has not yet taken this step. It has set up mediation processes. Will the federal government amend the Divorce Act to take the child's interest into consideration first and foremost? I'm not talking about financial interests, because when you talk about money, you're not talking about the child's interests. Never.

Mr. Sylvain Camus: I would like to point out that I'm very favourable to family mediation. Fathers in general are favourable to it. But what happens when there is such mediation? What is the role of the mediator? What concepts are being used? How do they see the children? In what framework? That may be where the problem lies, currently.

The question was put to us in Quebec at one point when the parliamentary committee on alimony was sitting. We said that what was important was the basic philosophy. There ought to be a philosophy operating in favour of the two-parent family. However, we have no guarantee that when mediation takes place currently a philosophy favouring the two-parent family is being applied.

This is a very recent development. In Quebec the training family mediators receive is barely two weekends followed by ten mediation experiences, which most of them have not had because there have not been enough cases yet. The law is a recent one.

Senator Lucie Pépin: They have them now, I think.

Mr. Sylvain Camus: Yes, because it is mandatory, but look at the training that is given as well as the research on children concerning, for instance, the child's environment and the respect that is his due. I met people from the Conseil de la famille which is now the Conseil de la famille et de l'enfance who told me that they wanted to propose certain things in this regard. But since they have already proposed shared joint custody, they have recommended it to the government, and nothing is moving, they are still waiting for results in that regard.

A lot of mediation and research could be done here but is not being done. It could help to re-energize us in our quest and give added impetus to the decision-makers who shape public policy.

[English]

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

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

• 1045

The first presenter group mentioned the ages of children when perhaps they could have a greater say in what happens to their destiny, where they live, and so on. Then at the end, you introduced the concept of the upper age of 18 years old. I infer from this that you're talking about the court-ordered arrangements whereby one parent pays some child maintenance to the other parent for the upkeep of that child and that this should end at 18 years old.

Now we have the situation in the Divorce Act of Canada whereby in an intact family, when children grow up, essentially once they reach the age of majority—it happens to be 19 in British Columbia—and when they can sign their own contracts and obtain their own credit—they're essentially adults in all respects under all portions of law—parents really cannot be held liable for maintaining these children for university or whatever. But in a divorced family, a parent can be required to pay maintenance payments for that child for a number of years after the age of majority.

So I was interested in your comment here about introducing a cut-off age of 18 years old. Perhaps you could expand on that.

[Translation]

Mr. Rock Turcotte: We are proposing 18 as the cut-off point because in Quebec at this time a child acquires practically all of his or her rights at that age. In fact, we are seeking greater coherence. A person reaches the age of majority. Be it at 20 years of age or at 16, when a society states that a person has reached the age of majority and gives him the right to vote and to make his own decisions, the laws that govern divorces and separations should reflect that.

Then you have the other pieces of legislation dealing with responsibilities. We do believe that at that point tax dodging and anything having to do with taxation are there to... The better off parent will become the custodial parent. This has to be the pattern.

We say that divorce and separation law must address, in the agreements arrived at... In any case, that's what is happening, what is written and implemented in the courts, although it may not be as explicitly stated as I have just done. We recommend that at age 18 all the responsibilities described in the Divorce Act cease to exist. The child is an adult. The child will go and live wherever he wants. He can go and live with his father or with his mother. There must be consistency in the legislation. That's all.

If, in some provinces the legal age is 21 then it will be 21. As of the moment a child is recognized as an adult, he has the right to vote, he has the right to do whatever he wants, it is up to him to decide. I will admit that the financial situation of the parents are different. We know full well that the parent who is better off will take custody of the child. Alimonies are no longer an issue. Arrangements will be made with the child.

Quite often, we see fathers who still think they are still subject to the provisions of the Divorce Act when their children have reached the age of 20 or 22. They can still continue to make arrangements with the mother if they so wish but they can discuss matters directly with their children. The courts will agree.

If I mention this it's simply for clarification purposes. This must be perfectly clear when these sections are rewritten.

[English]

Mr. Paul Forseth: I have one other question. Each of the groups seemed to recommend the position of the presumption of joint custody upon separation and divorce under the general theme of giving fathers more power.

As you understand, each province has its own family relations act, and Quebec has its Civil Code, but the Divorce Act is across the country, and this committee can really only recommend changes to the Divorce Act. It really cannot tell provinces what to do.

What would be your recommendations to change the federal Divorce Act to follow up on your theme of giving more equality, which is what you're saying, more power, to fathers? What would be your specific legislative changes to the statute itself?

[Translation]

Mr. Rock Turcotte: I will first mention one thing. We thought that the problem would be partly settled through mediation. We now realize that unless you change the rules governing separation and divorce in the Canadian legislation, it is just wishful thinking. A father or a mother may give up child custody. We have no objection to that. It will be his or her choice.

• 1050

What we are saying is that provided a father or a mother who wants child custody is no longer concerned when separation takes place, his or her mind is at ease. I think we should do the same for the children. In Quebec, at the present time, when a tragedy occurs in a school, there is only one resource person. However, the Divorce Act affects 50 per cent of children. In some districts, a child living with both his parents is an exception. Everyone is involved.

We think that these are the rules of the game, the basic rules that have to be changed. Do you have anything to add, Mr. Claes?

Mr. Gilbert Claes (Association lien pères enfants de Québec): With regard to the question put by Mr. Paul Forseth, I would like to add that we should mention a principle when which lies everything: it is the parents' natural right recognized by all nations. A child has a right to grow up with both his parents. There is no law that can take this right away. In any country, whether federally or provincially, we must move in that direction: a father is a father and a mother is a mother. It is from that point of view that the legislator must act so as to suppress all features in a legislation that are likely to bring about conflicts among parents.

If, at all levels, efforts were made from that perspective, one or many problems would be eliminated right off the bat. Often, when a piece of legislation is written, it is based on special cases. I don't think this legislation should be based on special cases but on basic principles which can be found in the Universal declaration of the rights of the child.

[English]

The Joint Chair (Senator Landon Pearson): Mr. Jessiman, you had a supplementary.

Senator Duncan Jessiman: I would just like to explain this for your edification and for the record. The problem comes about as a result of the definition of a child of the marriage under the Divorce Act. A child of the marriage is defined as one who is under the age of majority and who has not withdrawn from the charge of the people or—now this is the part that causes problems—is the age of majority or over and under their charge but unable by reason of illness, disability or other cause to withdraw. Unfortunately for separated couples and non-custodial parents, the Supreme Court of Canada has interpreted “other cause” to include and mean education.

This is what has happened. The government wanted to change the act to say .“illness, disability or secondary education”. On our side of the set-up, we were trying to eliminate the words “other cause”. We came to an agreement, at least, because if they had added “or education”—that is how the courts are interpreting it—it would strengthen it even further.

It's unfair because, as Mr. Forseth pointed out, married couples do not have that legal obligation. The rationale behind that, however, is that the government thinks—they may be right—that when people do separate, their children are at great risk. They find that statistics show that they don't get the education—they haven't had it in the past—of children in homes where the people are living together as man and wife. There is an advantage for children of a couple who are separated. They can compel their parents to support them and put them through college.

The Joint Chair (Senator Landon Pearson): Thank you, Senator Jessiman, for putting that on the record.

It's not really a question, because Mr. Mancini has been waiting.

Senator Duncan Jessiman: I'm sorry, I just wanted to clarify something.

The Joint Chair (Senator Landon Pearson): Okay. We got the answer. It wasn't a question; it was a statement.

Mr. Sylvain Camus: Mr. Forseth, what the divorce law can do is give standards to the other provinces indirectly and to instigate the provinces to act as well.

The problem in Quebec regarding the Divorce Act for people who aren't married is that the statistics show that the situation is worse than for people who are married, and there is something to change there. Even in the Civil Code of Quebec, you don't have the same obligation to the other parent. So you should have a freer choice, but it's not applied. It's a problem there.

• 1055

There may be a relative way to impose such stuff. Maybe we can do as we do for alimony for children and say, well, if the provincial government wants to bring out a resolution in the same way as the divorce law, their Civil Code will dominate on the question of the allocation of access of children and the droit de garde.

[Translation]

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

Mr. Peter Mancini (Sydney—Victoria, NDP): I am a member from Nova Scotia. Since my French is not very good, I will ask my question in English.

[English]

My apologies.

Mr. Levasseur, you raised a very interesting point when you said that some fathers go back to the old model after divorce. They begin working harder because now they have support payments to make and what have you. But there's a truism, there's a fact, that upon divorce, where there were certain fixed expenses, they've now doubled, because there are two homes, two costs of everything. It brings us to a crux. It brings us to a fundamental judgment here. You've talked about how there's research to suggest that the denial of one parent leads to children in conflict with the law, with drug problems and what have you. But we know that is true of poverty as well. Children who live in poverty have higher instances of conflict.

If we're going to have joint custody, if each parent is going to spend equal amounts of time with each child, then that means neither of those parents can go to that old-fashioned model of working longer hours to make more money to ensure that the child has more financial resources. Is it your position that the child is better off with fewer financial resources and more time with each parent than with less time with one parent and more financial resources?

[Translation]

Mr. Norman Levasseur: Are you talking about more money and less time with the children or the opposite? This is a matter which we barely touched because we felt that people have redefined their fatherhood and that, although it is the father or the mother who has custody of the child he or she has to work. Therefore, one is not more available than the other. Those parents are on an equal footing. I do not think that it is really important to know whether the father is going to work harder to ensure that his child has more financial resources because, at any rate, he is with him during one week. The father can work himself to death if he wants the following week and the same goes for the mother.

Besides, at the moment, it's the mother who has legal custody. How can she manage to support the child when she has to work and cannot be home because she has to provide for the child 365 days a year, the father being away? He sees his child four days a month. We are not very visible fathers. We are just weekend custodians. I will even venture to say that child care educators have closer ties with our children than their own fathers because of the time they spend together.

• 1100

Therefore, everything has to be redefined. What we must keep in mind is the interest of the child and not the financial aspect of the matter. Everytime the matter of money comes up, conflicts arise and nothing works anymore.

Mr. Sylvain Camus: I would like to make a brief comment.

[English]

I would like to remind you that at the beginning of the 20th century custody was given to men. Why? Because they had the money. They paid for it. Why should we turn this question around now on fathers who want to have joint custody? I'm not talking about your intention, but I know of family discussion groups...

Mr. Peter Mancini: My only point is that we have to recognize that there is a reduction in the standard of living for the child. I personally don't think that is a terrible thing, because I don't think access should be tied to the ability to pay or to finances or what have you.

My second point—because our mandate really isn't to deal as much with support, although we have spent a lot of time on it today—is that in terms of the call for fifty-fifty shared custody, an equal amount of time with each parent, there is some research to suggest that it is better for the child instead of spending one block of time with each parent, especially young children. I'm thinking of children one, two, three or four years of age. There's some research to suggest that it is better for the child to have more frequent access for shorter periods of time. So, for example, instead of one week, maybe every day of the month for two hours may be better for the child, although more difficult for the parents.

My concern is that the child needs security, needs some sense of permanence, needs a schedule. That schedule can include access every day for the other parent, or a sharing of time, if we want to get away from access with every parent.

Do you have some concern that young children, especially young children, may be disrupted if they spend three days here, three days there, three days back and forth, as opposed to some time every day?

[Translation]

Mr. Norman Levasseur: Quite the contrary, the child will get its identity from both his parents. The adjustment is easier for him. He will be able to know both his parents equally and he will be able to find a way of growing up in that system. As far as he is concerned, this system is quite simple because both parents are not tearing each other apart. In the present context, when a child spends a couple of days with his father, the mother often states that, upon his return, he is all upset.

Of course, when a child misses his father, he is quite upset. But if he shares his time in equal parts with both of them, he will be in a better position to adjust. At the present time, it is quite devastating for the child because he is pulled between two worlds and doesn't know which way to turn. He is looking for his identity, he doesn't have one.

Mr. Rock Turcotte: With very young children, we refer to bedtime and not to days because the child does not understand. We always talk about spending one or two bedtimes at daddy or mommy. This is how things are expressed for the benefit of young children. The younger the child, the more reference is made to bedtimes of beddy-byes. When the child gets a little older, depending on how things go, our preference would be to aim for periods of one week so that the child has a little more time with one or the other and therefore he would not feel quite so lost.

Of course, when the child is small, he must adjust to live one way with dad and another way with mom. Of course, young couples have commitments. People whose child is less than two years old come to see us. We would feel like telling them to try and put up with each other for at least another couple of years.

That being said, young children do create a special problem. I often go in homes where I escort people and I have noticed that small babies are not that many. It is a minority. There is no use talking about a fictitious case which does not exist. This situation is very rare. It happens but it is rare. I do therefore feel that the younger the child, the shorter the period should be. But this does not prevent joint custody. It is a matter of bedtimes.

It can also happen that sometimes children feel better with the father than with the mother. We always assume that he feels better with the mother. Even when he's small, he might feel more comfortable with his father. Some men might have a better way with young children than the mother. It happens. We see cases like that among normal couples. Why make it an issue?

• 1105

[English]

The Joint Chair (Senator Landon Pearson): A quick answer.

Mr. Sylvain Camus: Mr. Mancini, I don't think the children are disrupted that much. They are disrupted, as Mr. Levasseur has said, when you have just a weekend, because on the weekend the change is very short. If you have problems on Friday night and on Sunday evening, it makes problems for the weekend, because they're not stabilized. It's like they're camping. When they come back, they want the parents to be always present, to bring them out and all that.

Mr. Peter Mancini: I agree with that.

Mr. Sylvain Camus: At the Palais de justice de Montréal, usually they recommend, for children below six years of age, a three- or four-day schedule, like a joint custody. It's better than one week/one week, because they need to see the parent often.

The other problem with children is when they become teenagers, from about ages 10 to 12, when they start to have their friendships and all that. At the same time, we see that a lot of the children, because they don't have access to the parents, decide to go with their fathers then. The problem is that if you only have a weekend out of two, you have to give a follow-up for a teenager, which is very difficult and is more distance from you.

Some are going to say if they have a month during summer it takes a month to get to pace with your children. After that it's over and you start having distance again, which is also very hard for the children. We don't think about the implications in the long term.

We treat children as if they were kings. The children can decide to go to one parent or another when they are teenagers, which isn't in their interest all the time because they have to live with constraints.

How can we create future citizens that have only rights? There's a problem there somewhere, and it's very frustrating sometimes for a father to say “I give very strong alimony to my children, to the mother, and I don't see my children”.

I even know about a father, the case of Bourdages, who was crying in court because he learned that his child had broken a leg a few months ago. He didn't even know about it.

The Joint Chair (Senator Landon Pearson): Thank you very much. I have two more questions. I'm in the hands of the committee. Do you want to go on? We're five minutes over time.

Dr. Bennett, you're next.

Ms. Carolyn Bennett (St. Paul's, Lib.): I apologize. I was going to try my very best French, with my coach here, but in the interest of time we will...

In regard to the language of what you call in French la garde et le droit de visite, we in English find “custody and access” is equally adversarial and sets up a climate of winner-loser, which then continues the atmosphere of power differential and what we've now just had a whole conversation about, almost arithmetic lessons: 50-50; hours here, hours there; who's winning, who's losing. It's always winning and losing. Is it 50-50?

The mother is fighting to take the kid to the hockey game, and she doesn't even want to be doing that, but it's an adversarial environment.

I guess what has been recommended, in a lot of other jurisdictions and certainly in this country since 1993, is to get rid of all of that language and start with the assumption that both parents have responsibilities and that they together, with the grandparents and the aunts, can sort out a parenting plan that actually works best for the children.

My concern when we talk about joint custody, in my experience as a family doctor, is that the judges won't give that if the parents can't get along. The reason we don't see an hourly or a daily change is when you're changing over from one parent to the other, the bigger the hunk of time each parent has them, the less opportunity for conflict there is at that changeover time.

• 1110

So if parents can't get along, the judge won't agree to that. But if maybe right from the outset of the divorce we set up an arrangement that wasn't based on winning and losing and arithmetic but just a parenting plan, we would see a better climate of cooperation. I wonder what you would think of just taking those words out of the act.

[Translation]

Mr. Gilbert Claes: To really simplify things, we could say that there is one father and one mother and that they are equal. Mathematically speaking, if they are equal it means 50-50.

When issues come up, it is because the mathematical ratio is changed to 20, 30, 49, 48. For purposes of simplification, we should let the parents know that from now on it is 50 per cent and not 49 or 51. If, we consider that there are two sexes, a man and a woman, a father and a mother, and that the ratio is 50-50, we might get rid of quite a few problems when it comes to making a decision or any kind of calculation.

At the present time, issues are always the cause of conflict. These issues are financial, they have to do with alimonies. If one has custody of the child 38 per cent of the time, this is not joint custody; but if the figure goes up to 40.2 per cent of the time, it becomes joint custody. There is therefore a mathematical distortion in that.

If we declare that from now on it is 50 per cent, by resorting to such simple terms, we shall be able to suppress a lot of problems. It cannot be 49 or 48 per cent but 50 per cent.

Mr. Norman Levasseur: I could also add that at the present time a conflict arises because there is an issue, namely to know who will get custody of the child. There is concern as to what is going to happen. If you suppress the issue by deciding that custody is shared on a 50-50 basis, there will be no more conflict. There wouldn't be any basis for them? Money? There will be no mention of money. Both parents will look after the child. What happens this week to the child? What are we doing? Agreed. He has problems in school? Can you help him with is math? No problem. The other parent will oblige.

At the present time, this is not possible. Personally, when I have my children although I know full well that my oldest girl has difficulty in mathematics, am I going to spend the two days I have with my children to teach her math? Of course not. As a parent, I have to have fun with them and to give them the opportunity to know me by doing things with them.

In the case of shared custody, there wouldn't be any conflict. It's almost a given. Perhaps parents will fight at the beginning about trivial matters, but matters will get settled. If it should continue, there will be people, psychologists and intervenors who are right there and ask nothing better than being consulted to help those parent to feel comfortable in a new way of life.

As for the child, he does not deserve to be divorced from one of his parents. If his parents divorce, he does not divorce his parents. At the present time, the child divorces his father.

[English]

Mr. Sylvain Camus: Ms. Bennett, I would like to ask you to define to us all what “don't get along” means. How can you define it when two parents “don't get along”? Where does it stop? Where does it start?

It's a very subjective notion, and what we have observed in cases—because I follow a lot of court cases—is that it becomes an easy answer to keep the other parent out of joint custody or to maintain power to receive money for the children, usually for the mother.

There is something very artificial, because usually—

Ms. Carolyn Bennett: We know the couples that are back in court forty times—whether Friday night will be 8 p.m. or 8.30 p.m. In those situations, the judges decide it is too difficult because neither parent is prepared to put the child first in order to deal with this power.

I had one other comment, and it was—

• 1115

Mr. Sylvain Camus: I want to finish my answer. I want to say that she is largely right, but there are a lot of exceptional cases. What does “not getting along” mean? It means we can't make a decision for the children's school. What they eat at my house and what they eat at your house doesn't matter. It means we can't get along with regard to a major medical decision. Those are the real answers.

From all the other cases where people don't get along...there are a lot of problems that people had before they were separated, when they were “normal”, which any normal couple has. The problem is that we make every case one of those special cases. This is very much a problem. It doesn't respect each parent's responsibility and liberty to act. There's a level of tolerance they have to gain.

[Translation]

The Joint Chair (Senator Landon Pearson): Everyone is quite interested in your opinions but I believe that we have just one question left to ask you. Others are waiting to give their testimony and we have to show them respect as well.

Senator Lucie Pépin: One of you has said and I agree with him that a child has the right to be loved by both his parents. I will look at this assertion from a different perspective. If I put myself in the child's place, I wonder what is the best way to love one's child when people divorce. Now I am not getting into an argument regarding the time share of 40 or 50 per cent because money is not even part of the equation. I simply consider feelings. I find it very important for a child to have a nest, to have roots somewhere, to build an emotional balance for the rest of his life.

You said that studies have been made. You also mentioned distances of 300 or 500 kilometres that some fathers have to cover. However, unless I misunderstood, if it is not the father or the mother who will undertake this trip, it will be the child. Am I right? I would like confirmation.

Mr. Norman Levasseur: I am going to reply to your question because of mentioned my own case. It is impossible for me to have joint custody; this has to be understood.

Senator Lucie Pépin: But who would cover the distance?

Mr. Norman Levasseur: On the other hand, I am the first to admit, since I am a parent, that joint custody should be the norm. Personally, I am an old-fashioned father as one could say.

Senator Lucie Pépin: Right.

Mr. Norman Levasseur: But there is a new generation coming up. I still have links to that new generation which would enjoy joint custody, but people have to get away.

Senator Lucie Pépin: When there is a distance to cover, who will do so? That's my question.

Mr. Norman Levasseur: There will be no distance to cover because, as I said earlier, when there is a separation or a divorce, the family circle will always be the home port for the children and they will have to stay there, unless there is an agreement. If there is no agreement, it will be their anchor point. Therefore, there will not be any 500 or 100 kilometre distance to cover. We have to consider the interests of the child.

Senator Lucie Pépin: I recently read a decision rendered by a Quebec judge. The mother lives in Rimouski and the father in Montreal and the children must spend two weeks with the mother and two weeks with the father. I don't know how they live through that.

Mr. Norman Levasseur: This is truly an exception.

Senator Lucie Pépin: If it is difficult for fathers, how much more difficult can it be for the children? That's my question.

Mr. Laurent Prévost (Association lien pères enfants de Québec): I will answer this question. I am a father and I recently separated from my wife. I have three children and joint custody. I find this solution wonderful. We live in the same village as several other divorced people there. What is good for the children is the fact that they spend 50 per cent of the time with us and 50 per cent with their mother. This is perfect for their emotional balance. It is good for my own balance, for that of the mother and of the children.

Senator Lucie Pépin: Because you live close to each other.

Mr. Laurent Prévost: That's the compromise you have to make when you separate; you have to live as close as possible to one another and especially protect the school environment of the child where between 75 and 80 per cent of his or her active time is spent. This is the compromise one has to make.

Mr. Sylvain Camus: Senator Pépin, we often suppose that the desire to travel or not of the children is similar to that of the adult. I know that when you reach the age of 25 or 30, you lose the desire to cover long distances. Sometimes when one is younger one can travel a lot. You have a girlfriend and you are ready to travel 200 miles to go and visit her. At a certain point in time, although some may choose to carry on, many slow down. However, children are at an age where they are quite flexible in that regard and there is no assurance that this is as much of a burden for them. The burden lies with the parents. It is with regard to them that the matter of transportation has to be taken into consideration.

Senator Lucie Pépin: I find that it is a lot for the children.

Mr. Sylvain Camus: I would also like to add one last point: to accept joint custody as a matter of course doesn't mean to impose joint custody.

Senator Lucie Pépin: Therefore, it's a principle.

The Joint Chair (Senator Landon Pearson): That's all. We have to give time to others, Ms. Pépin.

• 1120

Thank you very much. As you have seen, this was a very lively discussion and your testimony is very important to us. Thank you very much.

In three minutes, we will begin the discussion with the other witnesses.

• 1121

• 1125

[English]

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

[Translation]

We now welcome Mr. Pierre Chapdelaine and his daughter, Ms. Brazeau. I would point out to members of the committee that Ms. Brazeau is 17 years old and that we require permission of the members of the committee to hear a person under the age of 18.

[English]

I'd like to ask the committee for their consent to hear her.

Senator Anne C. Cools (Toronto Centre, Lib.): So moved.

Mademoiselle Brazeau, you should be aware of that, because we feel privileged to have you with us. Many people are not aware of this, but these committees operate under what we call the “inquisitorial powers of Parliament” and the same rules apply, just like the right to vote and so on. And just in the interests of your own protection, because we have a sovereign duty to protect you as a minor, I thought it was very important that the record show that we had contemplated and taken your protection into account.

Do you understand?

Ms. Annie Brazeau (Individual Presentation): Yes.

Senator Anne Cools: Good. Thank you.

[Translation]

The Joint Chair (Mr. Roger Gallaway): All right. We only have 20 minutes. You may begin.

Mr. Pierre Chapdelaine (Individual Presentation): My English is not very good. I will therefore make my presentation in French. I do apologize to any unilingual anglophones here.

I would like to discuss family situations that lead to a separation or divorce and the events that a child may experience in such cases.

Annie and I have experienced certain things almost at the same time, except during the first separation from my former wife, with whom I've had a girl, who is now eight years old.

I think it's important to protect the child in those cases and to maintain access to that child. I'm talking about verbal as well as other types of protection. We have to minimize the effects of what can go on surrounding the separation or the divorce in terms of legal action, relations with Youth Protection Services or anything else related to that. The child should not be affected by all that. That's my principle and it worked very well for me.

What I can state personally, before I give the floor to Annie, is that I don't see that the problems that affect the child arise out of giving custody to the father or the mother.

Instead, I would denounce the system currently established in the province of Quebec; I'm referring to the judiciary that seems to uphold many complaints against fathers, even though they often turn out to be false, whenever there are appearances in court. This causes enormous harm—I speak from experience—in the life of a father. This is regrettable because it is the children who suffer. I'm thinking in financial terms. All our assets end up being spent for legal fees and court proceedings.

What I want to say to you today, based on my own experience, is that financial assets should be protected in the interests of the children, for their education.

I will let Annie make her statement, as she will explain the two situations that occurred in our family over the past five years. I think this will give her an opportunity to express herself and perhaps inform you about a different viewpoint, that of children.

• 1130

Ms. Annie Brazeau: I apologize. Although I do speak French, I express myself more easily in English.

[English]

I thank you for having me here today to be able to talk about my situation. I was asked to come here to speak about two different aspects of my life concerning divorce and what a child like me feels in all of this.

When I was six and my little sister was three, my parents got divorced—my mom and my biological father. I have to say I consider myself lucky because they didn't have the kind of divorce I see most parents having today, where they're always fighting, always saying “My child should be with me here” or “I should be doing this”, and everything should always be 50-50, about custody and stuff.

My mom at this moment has custody of me, but I think I'm lucky. I can see my father whenever I want. If I need to talk to him, I phone him. He phones me. He comes over to my house and sleeps at my house. He talks to Pierre, my mom's boyfriend at the moment. He has a very friendly relationship with my mother. I think because their relationship is so friendly it doesn't affect me and my sister as much as it would affect somebody whose parents always have this big tension and are always fighting.

I'm grown up now—I'm 17 years old. I love my father to death and I love my mom to death. I live with my mom and I'm happy with my mom. I'm happy where I am now. I'm happier than I was when I was six when they were always fighting. I thought getting a divorce would be better for them and I'm happy.

Even though we live so far away, I can see him. My mom and my father are in the army and they're always in different provinces, but I can see him whenever I want. I go down for Christmas and Easter. He's going to come down for my graduation with his girlfriend and his two kids, who I consider to be my stepbrother and stepsister. I've grown up with them.

In March 1994, Pierre and his ex-wife were going through a divorce and I found his little one, Amélie, who is living with us, was hurt by it. Even though she was only four and she didn't understand what was happening and said “Where's my daddy, where's my mom?” she still sort of understood. She had emotions too. When her parents cried, she cried. She'd come and talk to me. She was only four years old, but she still understood that.

I saw with the difficulties of divorce there were many accusations made against Pierre of things he did not do, and his ex-wife made Amélie, his daughter, believe he did them, so she sort of turned her against her father.

We have a big family now, but we have the type of family where we sit down and talk things out. There are no lies; it's all the truth. Of course, we've all done bad things and in the divorce both of them have done bad things. We sit down together.

Amélie, who's now eight, is forced to see her mom every second weekend. I'm not forced to see my dad. If I want to see my dad, I go to see my dad. If I want to see him twice a month, I see him twice a month. But the little one is forced to see her mom because the court says her mom has a right to see her. I'm not saying she doesn't have a right to see her. Her mom has a right to see her, but sometimes she doesn't want to go. She has friends at home and she's only eight. She takes ballet lessons on the base where we live now, and her mother has taken her away from the ballet lessons because she lives in Val-Bélair and it's a big trip, but she likes ballet and she had those opportunities taken away from her.

Sometimes we go on family outings and she can't go. We don't plan it that way. We really want her to go, but her mom wants her to come to see her. I feel it hurts her too that she can't decide. Maybe she's a little too young to decide right now, but she can actually have a say in something. I had a say in what I wanted to do, and I'm living a happy life now. I'm with my father, with my mom, and I'm surrounded by a loving family, even though they're not together like they were when I was young. Pierre treats me as his daughter, and I treat Amélie as my little sister. We're all friends, and we all get along together.

• 1135

So I think the child should not decide but should have a right to say he or she wants to go see dad or wants to go see mom. I do believe in 50-50, that the mom should have a chance to see her daughter or her son, and the father too.

I'll put myself in a situation. Let's say my father lives in Ontario and I live in Quebec City and there's a year here, a year there. It would sort of be crazy for me in terms of changing schools and friends. It's a different life.

I see my dad on weekends and at Easter, and I'm happy with that. If I wasn't, I'd say something.

Thank you.

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

We're going to start our questions with Mr. Forseth.

Mr. Paul Forseth: I just wanted to clarify the situation. It sounds like you're a product of the first marriage, and that your dad was remarried and divorced again, and that the child from the second marriage, this daughter, is now living with ex number one.

Ms. Annie Brazeau: No, my biological parents are divorced. I have a sister. My sister was six when they were divorced. My dad is marrying his girlfriend in August. She had two kids of her own when my dad met her. My mom met Pierre, who was going through a divorce with his ex-wife. He already had a daughter, and she lives with us now and goes to see her mom every two weeks.

Mr. Paul Forseth: Okay. I was just trying to sort out the constellation.

Ms. Annie Brazeau: It's really confusing.

Mr. Paul Forseth: Your kids, my kids, our kids.

Senator Anne Cools: His, hers, ours.

Mr. Paul Forseth: Or whatever, yes.

Senator Anne Cools: It's very complex.

Mr. Paul Forseth: The main point that I get from what you had to say is that, in a technical sense in law, you recognize the equality of rights and so on. From a child's perspective, to preserve continuity, sameness, and predictability in life routines, however, that really mitigates against that 50-50 rule.

Ms Annie Brazeau: Yes.

Mr. Paul Forseth: Then we get back to the concept of what is in the child's best interest—the child's socio-psychological sense of well-being—which would not necessarily mean 50% of the time back and forth. That's very disturbing to a child, especially if there's time distance, because you have a need for roots and a sense of community, a sense of your place and your space.

We heard from the previous group of fathers. You were sitting in the back and you heard their desire for presumptive joint custody or perhaps more of a 50-50 sharing of time. You're now expressing a personal view that would somewhat fly in the face of that because of your own personal needs for your own space and your own sense of timing in your life.

Ms. Annie Brazeau: I understand the 50-50 thing that they're talking about if the parents live really close to each other. I don't know, maybe it's okay if they live in the same town or something. But if they're thousands of kilometres apart, it takes the child who lives with his mom and puts him in a totally different lifestyle with his dad. If they live near to each other, the 50-50 is okay. It's good because the child can still go about his or her normal life routines.

Mr. Paul Forseth: Thank you.

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

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

• 1140

I understand what you're saying, that they have the same friends, can go to the same school, can have the same ballet lessons.

Your sister, Pierre's daughter, Amélie—she doesn't have the right to say, “I don't want to go this weekend; I'd like to stay with you”? She doesn't have that right?

Ms. Annie Brazeau: A couple of times she has taken tantrums because she did not want to go. She cried and yelled and cried. Every time she goes to her mom's she gets this, you know, big thing in front of her. She doesn't say anything, but she doesn't act like a happy little kid. When she comes back in the car, she's sort of, you know...it's the same thing. When she gets home, it's, “Hi!” So we take her out—whatever.

Senator Mabel DeWare: Isn't there some way her mother could be made to understand that there are times when it would be nice if Amélie could call her and say, “Mom, look, there's something going on this weekend, and I would really like to stay here”?

Ms. Annie Brazeau: It happened once, I think, but she always takes her time back. Instead of staying two days, she'll stay three days, or two weekends in a row. It happened once because my little cousin came down, and they're buddy-buddy.

I don't know this lady well. I've talked to her, but she's had nothing nice to say to me. I don't know, you'd have to talk to Pierre about that. He's the one who...

When we bring her to her mother's, we go to a maison familiale. The dad stays with the kid and when the mom comes, the dad leaves. So the dad and the mom never see each other, and the kid can never be with her dad and her mom at the same time. It's always, “Okay, I'm leaving, and your mom's coming in”, and stuff like that.

Senator Mabel DeWare: That's too bad.

Ms. Annie Brazeau: Yes.

Senator Mabel DeWare: Thank you.

Ms. Annie Brazeau: You're welcome.

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

Mr. Peter Mancini: Thank you.

It may be interesting for you to know that you're the third young woman who's come to us over the course of these hearings with a situation very similar to the one you've told us about, where you have come through a divorce with cooperation. It's nice for us to hear that. It's nice for us to know that sometimes it does work and that there are children who come out as articulate and helpful as you've been to us. Thank you for that.

I have a question for you, Mr. Chapdelaine, on the individual case you present us with. Why did your former mate leave the area in which you lived? Did she leave for work-related reasons?

[Translation]

Mr. Pierre Chapdelaine: I didn't want the situation to affect the children at home. We stay in the same environment. Threats were made, even death threats during these proceedings. My wife made threats against me and the child. This led to a certain amount of stress for the child when he was at his mother's.

It would be better if I read these threats. I left a note here. You will understand better. This was said on May 30th 1992 before witnesses, before the court:

If Pierre doesn't leave me the family assets and custody of the child, I will destroy him psychologically, physically and financially, I will squash him like a worm, I will drive him to suicide, and if that's not enough, I will kill him with a 12 gauge shotgun as well as all those who intervene in this, and the same goes for the child. I will have him arrested for harassment, death threats, and gross indecency against Amélie. He'll have to spend a lot on lawyers fees to defend himself.

That's why I spoke earlier... Thank you.

[English]

Mr. Peter Mancini: Thank you. I get the point. I have only a short time, and I understand the flavour of what you're saying.

Those are the questions I have.

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

Senator Jessiman and then Senator Pépin.

Senator Duncan Jessiman: To Pierre, if I may, when you were first divorced, is it true that your wife got custody of your child when your child was four years old? The child was four, right, when you were first divorced?

• 1145

[Translation]

Mr. Pierre Chapdelaine: Yes.

[English]

Senator Duncan Jessiman: Did you get custody right from the start? You have custody of the child now.

[Translation]

Mr. Pierre Chapdelaine: No, I did not have custody from the beginning.

[English]

Senator Duncan Jessiman: Right. So later you got custody. You now have custody of the child?

[Translation]

Mr. Pierre Chapdelaine: Yes, I now have legal custody. I will explain to you a bit about what happened. I think that will be important because of its connection with the children's point of view, which we are talking about today, so that we can change things.

[English]

Senator Duncan Jessiman: Right. That's what I understood to be the case.

[Translation]

Mr. Pierre Chapdelaine: I then tried, because of these threats, to lay complaints. However, it turns out to be impossible for a father to lay a complaint against his ex-spouse in such a situation. After two years of going to court, two political assistants from the Department of Justice and the Department of Public Security supported these complaints and also their own complaints. These complaints were deemed inadmissible.

So we took the complaints further, with the help of these political assistants. They were once again rejected. I then prepared the document that I sent to the then Quebec Minister of Justice, Mr. Bégin, stating that I sincerely believed that the system was working hand in glove with an apparatus aimed at taking over families assets.

[English]

Senator Duncan Jessiman: But at some point you must have received an order from a court to give you custody of this child.

[Translation]

Mr. Pierre Chapdelaine: Yes. I do not know if this is a special case, but the ombudsman was involved, as well as a judge and the youth protection service. They were forced to intervene in the interests of the child. As a result, I was given custody by the court.

[English]

Senator Duncan Jessiman: Sure. I guess the problem Annie has is the concern that the child doesn't want to go just even... Your wife, who is now divorced from you, the mother of this child, has access rights, and the child doesn't want to go to see her. Is it because she's afraid from what your wife threatened previously? Is she frightened to go see her mother?

[Translation]

Mr. Pierre Chapdelaine: Yes.

[English]

Senator Duncan Jessiman: I see. Is there nothing you can do to talk to your wife to try to assist both of them? Have you ever thought of a third party? It could be someone else under supervised access.

[Translation]

Mr. Pierre Chapdelaine: If I have gone through all these tribulations, it is because I have always tried to work out arrangements outside the courts. I tried to be agreeable in the interests of the child. But this amicable agreement led to false accusations. Once the case was in court, we realized that the agreement was being used as a pretext for various false accusations.

For example, the telephone calls ordered by the court, that is that I was to call 48 hours before having access to the child, were used against me; an arrest warrant was issued, saying that I was making harassing calls and death threats. During my criminal trial, it was clearly demonstrated that these calls were made so that I could have access to the child. It is therefore a bit difficult to know what you are to do; should you call or not?

If the mother does not answer the telephone, you have to call back. It is a court order. If she is not there, that is not supposed to be used against her. But it is registered and someone can say that the father called, for example, 18 times during the evening to have access to his child. That becomes a sort of opening for all sorts of accusations against the person trying to exercise the right to see his child.

[English]

The Joint Chair (Mr. Roger Gallaway): Okay, Senator Jessiman, we're running over our time again.

Senator Duncan Jessiman: Okay.

The Joint Chair (Mr. Roger Gallaway): Senator Pépin, could you limit it to one question? Then Senator Cools has one question.

[Translation]

Senator Lucie Pépin: There are studies that show that, depending on their age, children prefer not to go spend the weekend with their other parent because they are comfortable where they are. They are near their friends or have some other reason to stay put. That does not necessarily mean that they do not love their parents.

• 1150

If children cry and do not want to go to one of their parents, it is often for a reason. Annie, after listening to you, I said to myself that you had parents who were mature enough to be able to reach an agreement. I also know other people who have a similar agreement, which has enabled the children to live with one of the parents and receive visits from the other parent when he wanted to come. He could also sometimes bring his girlfriend. In this way, the children were not torn between the mother and the father, and did not have to choose. If I understand correctly, what you experienced would be what you think is the best situation.

Secondly, with respect to shared custody, children should not be forced to go to one parent rather than the other. Both parents should have to adapt to the needs of the children, depending on their age. Is that right?

Ms. Annie Brazeau: As you were saying—

Senator Lucie Pépin: You can say it in English if you want.

Ms. Annie Brazeau: No, that does not bother me. You were saying that I was glad to be able to see my father when I wanted and that it would be the same thing if I lived with my father and I could see my mother.

Senator Lucie Pépin: That's right, one parent or the other.

Ms. Annie Brazeau: But they live far apart. If my father lived closer, I would certainly see him more often. That is also the case for my mother. But they live a long way apart. I see my father when I want, when he comes with his girlfriend's children. This summer, my sister and I will go to his wedding. I like things that way.

Senator Lucie Pépin: I know other families who have similar arrangements, where children live the same way. The parents have had to make a lot of effort, but they did it for the children.

Ms. Annie Brazeau: That's right.

Senator Lucie Pépin: What bothers you, then, is seeing the little girl who has to leave because her mother does not understand that she wants to spend the weekend.

Ms. Annie Brazeau: Yes. If her mother was nice, the child would not be afraid. Yes, shared custody is wonderful, but she is afraid. And so why should she be forced to go? Even if she is eight, she has emotions that she feels inside. That is where she is at, but if she loved her mother, if she wanted to go see her, Pierre would let her go, like my mother and father do for me. But she does not want to go.

Senator Lucie Pépin: Thank you.

[English]

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

Senator Anne Cools: Thank you very much, Mr. Chairman. I would like to thank Annie for bringing home to us so very clearly the vulnerability and the needs of children in these circumstances.

My question is for you, Mr. Chapdelaine. A few moments ago you stated that threats were made against you and that false accusations were used. At the time you said this, you seemed to be reading from a court document of some kind. Were you? If so, could you put the reference on the record for us?

[Translation]

Senator Lucie Pépin:

[Editor's Note: Inaudible]

Mr. Pierre Chapdeleine: Ms. Cools, I left the document at the door earlier. The document is certified by sworn police officers.

[English]

Senator Anne Cools: Right, but could you just read the name of the document into the record here for now? It's not on the record if it's at the front.

[Translation]

Mr. Pierre Chapdeleine: It is a request for compensation for the damage caused at the time of my final divorce in 1995. The statements have been summarized because the pile of court documents was about six inches thick altogether. Instead of tabling all of them, I have summarized them and mentioned the important dates. I wanted to submit this summary to the court. That was refused, even though it was certified by sworn police officers. The document was refused by the judge.

• 1155

[English]

Senator Anne Cools: Thank you. I was just looking for that too, because when you read the record it just states my case. But we want to get the reference on the record—the case of so-and-so versus whomever—just so we tidy up our business today. People should know these submissions are coming out, but they are not really on the record as far as the transcript goes.

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

I want to thank our witnesses for coming here this morning.

[Translation]

Do you have a question?

Ms. Caroline St-Hilaire: Thank you very much. I have a question for Mr. Chapdeleine.

You said at the beginning of your presentation that you had been threatened. You said: “Many of these turn out to be false accusations”. I would like you to tell us if you are speaking on your own behalf or on behalf of a number of people.

Mr. Pierre Chapdeleine: I am talking about my case, my situation. What I mean is that when false accusations are made in a family situation, it can cause a lot of damage to the children. The focus is on the accusation and less on the children. You can't continue to give them their recreational activities because visits are suspended. You have to go again and again in court. That interferes with the child's best interest because there is more stress and the whole family suffers.

Ms. Caroline St-Hilaire: I wanted it to be clear that you were speaking in your own name. I would like a clarification from you because I am not an expert in this area.

Whatever would make a woman make threats like the ones you got? Why can't you lodge a complaint as a father? That's not clear in my mind.

Mr. Pierre Chapdelaine: I'm still wondering even today. But I still went rather high. I even went and met ministers of the Crown. All the ministers were aware of that situation before certain threats were executed. They were aware before the threats were even made. Those threats were even uttered in criminal court and you can check it up. There was even talk of sexual assault on my child and, after the criminal court, the DPJ received the complaint even though the judge in the criminal court had asked me to inform him and, if need be, call him up for this thing not to happen. They knew these accusations were false and they wanted to protect me as well as my family but that was not done. The DPJ continued to examine the complaints without even coming to the house even though I had Annie and Chantal with me.

Ms. Caroline St-Hilaire: In your opinion, why did your ex-spouse go to such lengths? It's very personal, but I'm trying to understand.

Mr. Pierre Chapdelaine: I can't give you too many details. She met 11 psychiatrists the same year at one point. I don't know what the cause was, but I think it's a family problem. Her brother is the one who uttered death threats against Mr. Parizeau about two years ago.

Ms. Caroline St-Hilaire: Thank you.

[English]

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

Senator Anne Cools: Mr. Chairman, could I have just one quick question.

The Joint Chair (Mr. Roger Gallaway): I'm not going to try to stop you. Go ahead.

Senator Anne Cools: Just out of curiosity, none of us thought to ask, but you said you have custody now of your little girl. Does your ex pay you child support?

[Translation]

Mr. Pierre Chapdelaine: Yes, I have $150 support a month.

[English]

Senator Anne Cools:

[Editor's Note: Inaudible]

[Translation]

Mr. Pierre Chapdelaine: Yes, we're earning the same salary.

[English]

Senator Anne Cools: Thank you.

The Joint Chair (Mr. Roger Gallaway): Once again I'll try to thank our witnesses.

[Translation]

The members of the committee have a lot to say this morning.

[English]

We want to thank you for coming. I think we have learned a great deal this morning from your experiences. Thank you for giving us your time.

We'll break for three minutes. We're really over time.

• 1159

• 1206

[Translation]

The Joint Chair (Mr. Roger Gallaway): Order! We will now welcome, from the Fédération des associations de familles monoparentales et recomposées du Québec, Ms. Claudette Maingué and Ms. Sylvie Lévesque and, from the Regroupement des familles monoparentales et recomposées de Laval, Ms. Agathe Maheu. We'll start with Ms. Maheu.

Ms. Agathe Maheu (Director, Regroupement des familles monoparentales et recomposées de Laval): You're starting with me, before my federation?

The Joint Chair (Mr. Roger Gallaway): Yes. Five minutes. If you don't mind.

Ms. Agathe Maheu: I'll try.

Ladies and gentlemen, members of the committee, I accepted your invitation. I can't say I was feeling too comfortable, but I can say that I have a lot of experience.

I've been head of a single-parent family for 25 years. I'm the mother of two boys and I'm here because I'm the co-founder and director of the Regroupement des familles monoparentales et recomposées.

I'd like to present our association. The first mission of our single-parent and blended family association is to help parents to get through a separation or a divorce. I would say that we have become a parenting school. We help parents to learn to live with separation and divorce and especially to improve the quality of life for their children in that kind of situation.

We've been around for 25 years. I can tell you right away that at the third meeting of our groups, where there were only women, a resource person, a psychiatrist, came to talk about our children. As mothers, 25 years ago, we were very worried for our children, especially if we were mothers of two or three boys. In those days, women had three or four children, on average. Nine out of ten women were on welfare. Of course, sir would take off and wash his hands of the whole thing and left you with the new kids and the old pots and pans.

That said, I've been working for 25 years for single-parent and blended families, more especially for women. I must tell you that our views had broadened as we've been listening to men also for the last seven or eight years. I could say a few words about how we broadened our views.

I should say right away that one of our main concerns was everything that happened at court. Today, I thought about it before coming here and I figured: a family law practice that would leave both parents and children happy after the family unit was dissolved, in my opinion, cannot be based on legislation and on the courts; it can only be based on parents who have a parental conscience, who are aware that they have parental responsibilities after separation or divorce. I'm mentioning separation because you know that there are more and more couples who don't get married but who do have children and separate.

• 1210

Legislation will never provide the answer that all children wish in their hearts, and that's that their parents will get back together and stop fighting. You can't even dream of any kind of legislation that would give that to children. I think that there are no perfect laws.

I could have come up with an analysis of the economic situation of both men and women and address the issue of interpersonal relationships between men and women over the past 25 years, but I mainly focused on what the courts do when they must make a decision relating to the interests of the child.

Our organization has produced a guide titled “Le guide juridique des étapes d'une rupture” that I can table if you wish. We tried to translate the language of the courts into everyday language to explain the whole legal process you have to go through when you want to separate or get divorced. I'll mainly tell you about what we say in our guide.

We say that the courts, basing themselves on legislation, must take into account the interests of the child whatever the form of custody, because there are four kinds of child custody. Where do the interests of the child lie for me, for you, for us all? We could go on at length because I think that the interests of the child flow mainly from the colour of our values.

That said, we established criteria to determine the interests of the child. Here are the criteria which the court uses. It uses the age of the children, their ability to choose, the opinion of the children, age and judgement permitting, the ability of the parents to take care of their children and provide an education, the ability of the parents to provide a stable family environment for the healthy development of the children, and the parents' ability to offer an education and activities conducive to the children's development. With those six criteria on their plate, the court, the lawyers and the parents have a lot to chew on.

As for the age of the children and their ability to choose, there's not really much to be said. A three-year old child does not have the same needs as a school age child or teenager.

That said, I must admit right away that there has been some improvement with the courts. In Quebec, we now have free family mediation services for all parents facing separation or divorce and who can't agree. You know that they can choose to use that service. I can tell you right away that our organization is already feeling the impact of this. We give it a lot of publicity because we have always believed that to decide about a child's custody, the parents had to talk but it's not a very easy thing to talk when you're fighting for all kinds of reasons and that the child is plucked down in the middle of all those concerns. I think this service will be efficient in Quebec. Actually, we'd been asking for such a service for a long time.

That being said, as far as the different models of child custody are concerned, there is physical custody, legal custody, joint custody and shared custody.

Legal and physical custody go hand in hand. When the parent has physical custody, he automatically has legal custody as well. At the present time, it is the woman who has the legal and physical custody of the child in 80 per cent of cases of separation or divorce. Why is this so? Men claim that judges have a favourable bias towards women when it comes to rearing children. That may be so but I have not verified it. I personally am willing to trust the courts when they are called upon to make a decision relating to the child's best interests. I think that they must be above any question of favourable bias. If they set out to analyze the proper criteria for granting child custody, they should not have any bias or prejudice. In any case, I am willing to trust the courts in that respect.

The Joint Chairman (Mr. Roger Gallaway): Madam, your five-minute period is just concluded.

Ms. Agathe Maheu: That may well be but I still have some important things to say. You can ask the federation to shorten its presentation.

Some honourable members: Oh, oh!

• 1215

Ms. Agathe Maheu: Some very important things have been said by witnesses and we can dine at our leisure later on.

Shared and joint custody are models for custody that are in the process of development. They are seen as the ideal solution and I believe that shared or joint custody are the ideal. But we should keep in mind that there is a difference between shared custody and joint custody. The slight difference that amounts to a very important one and that may complicate life is that in shared custody, both spouses have the legal and physical custody of the children whereas in joint custody, both parents have legal custody but they do not both have physical custody. Joint custody may be more accommodating. We should not set our sights too high, this is more of an ideal or an aspiration. I also dream of the day when men and women will be able to love each other even after a divorce and that there will be enough love for us to love our children. However that is not the present day??? reality and I don't think there is any need to elaborate on this point.

That being said, when we say that shared custody is the ideal solution, we have to take reality into account. You've seen examples of reality here today. When parents do not live in the same city or the same neighbourhood, where do children go to school? It's an illusion to imagine that all parents will be able to adjust to the requirements of shared custody.

Joint custody is a bit better because the child has his own dwelling place and has the right to see his father or mother when he wants and as he wants. The parents are able to communicate with each other. A while ago, I had a conversation with my colleagues, the gentlemen over there, who talked about giving information. As I see it, giving information amounts to communicating. We hear information on the radio and the people we hear it from are communicators.

In any case, if men and women are unable to communicate with each other, there is no point in trying to sell the ideal of shared custody where the child spends 50 per cent of his time with his father and 50 per cent of his time with his mother.

We also have to look at the reality experienced by children. You don't have any eight year-old children here to speak as witnesses but I know there are eight year-old children... I can give you some examples. I could give you examples all afternoon because we've heard from 3,000 people over the year, people who call us about all the big problems that you've heard about. We attempt to help these people unravel their situation. When an eight year-old child doesn't want to go to his father and he has to be brought to a halfway house to spend some time with his father or mother under supervision, how exactly does the child's welfare fit in? An eight year-old can say yes I want to see dad or I don't want to see him. Children have their reasons, I won't get in to all of that. The things we see in the news are the nasty situations but there are other reasons that are far more subtle, they may not be obvious but they do exist.

Well, that's it. I am ready to answer your questions. I should just say that we have a children's education program, entitled: “Children's Response to Divorce, Family Breakdown and its Impact”. We are implementing the program in all organizations. I would ask honourable members and senators to revive the conceptive of family groups, which can service schools for families that have broken down. Thank you.

The Joint Chair (Mr. Roger Gallaway): You have all proposed education programs.

Ms. Claudette Maingué (Fédération des associations de familles monoparentales et recomposées de Québec): Let me jump right in here. Our federation brings together 50 single-parent and restructured families in Quebec. Through these associations, we reach about 20,000 people. So we will be providing you with a more comprehensive picture. We will not be looking at individual cases, but rather giving you an overview of the situation.

Of course, you all know that families today are very different from what they used to be. And as families change, attitudes are changing along with them. Nowadays, among young couples, tasks are not shared between the two partners as they were 20 years ago, when in most cases the father was the breadwinner and the mother stayed home to bring up the children. In many families today, both parents work, and this changes family dynamics. Nonetheless, according to a recent survey, it seems that over 80% of women are still dealing with household tasks, though we are gradually moving towards changes in both behaviour and attitudes.

• 1220

At the same time, the percentage of negotiated agreements is rising. Between 1985 and 1990, agreement was reached out of court in 63% of cases, while between 1990 and 1995, that figure climbed to 81%. Nonetheless, custody of children is still awarded to women in most cases.

This means that only 19% percentage of all cases have to be decided by a judge. So these 19% of cases are litigious, with one parent wanting shared custody and the other wanting sole custody, for example.

In today's families, both parents care for their children in equal measure, or close to it. It is not always the same parent who takes the children to daycare; the parents share these tasks in the way that suits them best. They both assume these responsibilities. That is how it happens. At least, this is how we believe things are. When a custody arrangement is not challenged, it tends to some extent to reflect the care giving arrangement in place before the parents divorced.

When there is a challenge, there is a discrepancy. When one parent says that the other parent did not take full responsibility, there may be many nuances involved. If we see that shared custody is physically possible, if parents do not live too far apart and do not seem to have any major problems, shared custody should perhaps be considered. I don't know whether this is fair, but the criteria on which judges base their custody decisions are primarily the best interests of the child, secondly each parent's demonstrated parenting abilities, and thirdly cooperation.

Cooperation can of course not be imposed. In 1993, the federal government held public hearings on the presumption of shared custody, and experts agreed that cooperation, and therefore the shared custody that flows from it, could not be imposed.

A few moments ago, Ms. Maheu said that in Quebec, pursuant to Bill 65, the hearing is preceded by mediation. The province also has Bill 14, which applies during the hearing itself. A judge may order mediation if he observes during the hearing that the parties may be brought to agree.

Bear in mind that such important issues as child custody are being negotiated at the time when both parties are functioning on an emotional level, rather than on a rational level. There is nothing we can do to change that. That's how it will always be. However, sometimes there are ways of bringing the two parties together. So we could perhaps give them an opportunity to come to some agreement through a process like mediation.

Sylvie, do you have anything to add?

Ms. Sylvie Lévesque (Director General, Fédération des associations de familles monoparentales et recomposées du Québec): As we were just saying, when a family breaks down, we ask a great many questions: Who will get custody of the children? How will everything be shared out? How can we come to some agreement? So we have to make the best possible use of all measures, legislation and opportunities available to parents when they divorce, so that they can come to a more comfortable agreement in the best interests of the children.

But we must take facts into account. Women are still responsible for most parenting duties. In addition, most women are still under the poverty line. This is something we should not forget. When parents share responsibility for their children before they split, how is it that after they split one parent or the other can no longer assume those responsibilities? We have to find a way of putting this message across.

There is a great deal of inequality here. These days, there are many individual cases. This is somewhat unfortunate. Obviously, most decisions must be based on the legislation, but we should take into account the fact that up to 80 per cent of child custody arrangements are negotiated, and the two parties reach an agreement.

• 1225

Obviously, there will be cases where either one parent or the other is unfit. There are imperfect women, as there are imperfect men. And sometimes, for economic reasons, one parent wants to have power over the other. People here brought up emotional situations that both children and parents have experienced. I hope that the committee will take into account not only cases in point, but also more general cases and aspects.

[English]

The Joint Chair (Mr. Roger Gallaway): Thank you. We're going to begin with Senator Jessiman.

Senator Duncan Jessiman: I'm going to ask you a question, if I may. I understand your federation has a school for parents. Is that correct?

Ms. Agathe Maheu: No.

Senator Duncan Jessiman: No? That's what came across in the translation.

[Translation]

Ms. Agathe Maheu: To my mind, a community organization has a specific mission, a mission to help, listen to and inform parents undergoing separation. Their mission is to educate. We have been around for 25 years, and with the programs we offer—just take a look at our pamphlet—we think that our approach meets the needs of these parents. However, we are not a recognized school.

[English]

Senator Duncan Jessiman: I would like you to explain how it works. You don't have a building and you're not the only one there. How many people do you have? Do parents come and sit and listen to someone give lectures? Do they look at videos? How do you do it? How do you get your information across to people? Do some of them come before they separate or do they come after they separate? You told us that at first it was only women. Now there are men who come. Give us some idea of the numbers. I'd like to find out more about it so we can find out what you do have and put it on the record.

[Translation]

Ms. Agathe Maheu: Our organization's mission is to bring together separated and divorced parents and their children. We are known through that program, which is disseminated. Parents call us, and explain their needs. We provide services, information on the legal procedures involved in separation and divorce. We focus particularly on child's custody and the division of family assets.

Five people work with us. We have a permanent staff. We receive funding. We work with competent resource persons, including psychiatrists, psychologists, remedial educators and social workers, in designing programs to educate parents.

How do we work? When a parent calls us, there is always some emergency going on. The parent needs information, is going through a lot of pain. and is full of anxiety. We try to make things less dramatic. We say things like “You'll get through this. Here is something you can do.”

[English]

Senator Duncan Jessiman: Do they come to you or do you go to them?

[Translation]

Ms. Agathe Maheu: They come to us.

[English]

Senator Duncan Jessiman: That's fine.

[Translation]

Ms. Agathe Maheu: We suggest they do 12 sessions with a resource person, on the stages of break up. What am I experiencing as a man, what am I experiencing as a woman, when I break up with my spouse? Why am I experiencing these things? Why am I experiencing so many emotions? We encourage participants to look back at their past, and to draw upon their family values and other resources to see how they can cope. Then, we talk about the children.

[English]

Senator Duncan Jessiman: Each case is separate. You don't have a class where ten or twelve or fifteen people come at the same time?

[Translation]

Ms. Agathe Maheu: We have groups of 12 to 15 persons who get together for the program on the stages of separation but they are not mixed groups. We have groups for men and groups for women. When we come to the discussion on the role of parents following a separation or a divorce, we then bring the parents together. We speak to them about...

• 1230

[English]

Senator Duncan Jessiman: So would a meeting be one hour, two hours or three hours? What's the ideal time so people really become informed?

[Translation]

Ms. Agathe Maheu: There are three hours of meetings per week. The program lasts 12 weeks.

[English]

Senator Duncan Jessiman: I have one other question. You said you were funded. Do I assume that you are funded by the Government of Quebec or from the federal government? Who pays the costs of your organization?

[Translation]

Ms. Agathe Maheu: Centraide Montréal provides most of the funds. We also receive funds from the Health and Social Services Ministry. The money we receive from the federal level comes mostly from employability programs. I forgot to tell you that we also receive a great deal of help from law students and social service students.

[English]

Senator Duncan Jessiman: Finally, does your organization represent Montreal or all of Quebec?

[Translation]

Ms. Agathe Maheu: Our organization is mostly active in the Laval region but is known throughout the province of Quebec through the Federation. Through the Federation we train group leaders in other organizations so that they can use our intervention programs...

[English]

Senator Duncan Jessiman: Thanks very much.

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

Dr. Bennett, please.

Ms. Carolyn Bennett: You mentioned there were four different kinds of custody. Could you explain those for us?

[Translation]

Ms. Agathe Maheu: The types of custody I have referred to are the ones to be found in the Act. There is physical custody, legal custody, shared custody and joint custody.

In principle, a parent who has been awarded physical custody automatically has legal custody. This is still the most prevalent type today, since 80% of women have the physical and legal custody of children. It is a type of custody. I would say that it is the old model, and it is becoming a bit less frequent because of the evolution in attitudes and social transformations involving men and women.

There is shared custody. In that case, both parents have the legal custody of the child and the physical custody of the child. That means that the parents must agree on a number of days, weeks or months per year the child will live with his father. That is shared custody.

As for joint custody, the nuance is that both parents have the legal custody of the child, which means that they make all decisions concerning the child together, but only one parent has the physical custody and visiting rights are counted by the hour, the second, the day or the week, with the new form the courts use when they award alimony. I did not dare get into that, but we know that when there is separation or divorce, alimony is of crucial importance for children. There has been this idea around forever that women make money with alimony. Now, there is an increasing number of men who are being granted alimony payments and they are realizing that no one lives from alimony payments; they are used to support the children.

So that is the core of the issue. The courts have given lawyers this extensive form, I would say, because the poor ordinary Joe or Jane knows his or her salary, but they are unable to do the calculations involved because the form is so complicated. We are starting to help them. We help them with the assistance of law students because they can do those calculations. It seems to be a tool that has been devised again with lawyers in mind, because of course, one does have to make money from divorce and separation. The whole situation should be removed from the courts a bit more.

That being said, I am critical when I say that...

• 1235

[English]

Ms. Carolyn Bennett: We call it the divorce industry.

[Translation]

Ms. Agathe Maheu: That's it.

[English]

Ms. Carolyn Bennett: In Quebec you said there is free mediation. Is that one visit, ten visits, or limitless visits until you can finally agree? Is there a restriction on the amount of free mediation that any couple could have?

[Translation]

Ms. Agathe Maheu: I'll tell you what I know and the Federation may want to add something. I know that there is a mandatory visit. There is a mandatory mediation service. The first mandatory visit is an information visit for the two parents involved but sometimes only one parent decides to go. So the parent who decides to go, goes. If both of them come, that's even better, but sometimes the two parents don't want to go together to an information session on mediation. If after a first information session they decide to continue, they can benefit from a maximum of six free visits to attempt to agree on sharing the estate, the custody of the child or children, and alimony.

Is that it? That is what I know about it, in any case. That is how it works in our area.

Ms. Claudette Maingué: There are these six sessions when the divorce first occurs. There are three sessions when there are revisions. There are three ways of carrying out mediation under Law 65. There is a mandatory information group session. Both spouses can go together or separately. There is mediation that begins at that time if the people agree. There are a lot of people who are accredited to do mediation, who are recognized by the justice ministry here; some of them are lawyers, notaries, psychologists, social workers and professional counsellors. Further, some youth centres have accredited persons on staff to do mediation.

After those sessions, people can continue at their own expense but this is still much less costly than the usual avenue, with the help of lawyers.

[English]

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

Madame St-Hilaire.

[Translation]

Ms. Caroline St-Hilaire: Thank you. You almost forgot me once again.

Thank you very much, ladies. First of all I'd like to thank you for having given us a realistic picture of the situation. You are really a group that represents single-parent families. You don't represent the interests of men or women in particular, but really of both persons, of both individuals. Until now, we had only heard one version, each time. Personally, I find what you have to say very interesting.

Ms. Maheu, you said that separation falls under provincial jurisdiction and that there was mediation, and that divorce falls under another law, a federal one in that case. Furthermore there aren't as many marriages as there used to be, as we know. In those cases we're no longer talking about divorce, but of separation.

Do you find when you deal with these people that dealing with those two different jurisdictions is complicated? Should there be mediation automatically, whether we are talking about divorce or separation?

Ms. Agathe Maheu: Difficult to manage? Personally, I don't even think about the jurisdictions involved. I know that divorce falls under federal jurisdiction. We worked on the Divorce Act when it was amended, for instance to ask that changes no longer be necessary in divorce cases. We wanted one year of non-cohabitation to be sufficient grounds. That is federal.

You ask me if it's more difficult to deal with cases because there are fewer people who are legally married. Based on what I know of people who live in such free unions, I can tell you my experience has been that it is hell for them. I'll give you an example.

Ms. Caroline St-Hilaire: It is hell for those who have lived in these consensual relationships?

Ms. Agathe Maheu: Yes, when they separate while they are quarrelling. I'm not talking about divorce, but separation. They have common assets. They own houses jointly. They have had children together. We know that custody and alimony for children are governed by the law, but when you come to sharing assets, such as homes... Both of them have equal rights.

In my day, the law allowed harridans like me to throw their spouse out of the house and send him a subpoena to let him know that: “It's not working anymore, you must leave our home.” The law used to allow us to do that.

• 1240

I think we are losing ground when we can no longer resort to that in cases of separation or divorce when people are in horrible situations, situations involving violence particularly. When we were legally married as in my day we could order a violent spouse to leave the home whereas today, in these common law relationships, both people are masters in their own house. “As long as the house is not sold, we will stay together. You can live downstairs, and I will live upstairs.” I find these situations more difficult to manage. I don't agree with the attitude behind this sort of situation young couples have to go through. When you meet young people, you say to them: “If you don't get married legally, at least prepare some kind of written agreement in case a separation should occur. Better safe than sorry, an ounce of prevention is worth a pound of cure.” But this has not become general practice; the couples who decide to live together common law, to buy a house and have children and also prepare a written contract are few and far between. These situations are very difficult. There are fewer things you can depend on. It's harder to say: “The law allows you to do this or that.” I think that we have to react.

Ms. Claudette Maingué: To give you a more specific and more direct answer, I would say that when the 1995 budget was tabled, I believe the minister had put forward the broad outlines of a policy on all of these problems involving children in cases of divorce.

It seems to me that the federal decision-makers should deal with broad policy outlines and basic principles and leave the management to the provinces. Then there would be uniformity in the system for everyone. There is no basic contradiction between one and the other. We can come up with our own laws, but we can't contradict the broad principle.

Ms. Caroline St-Hilaire: I have a brief supplementary question. It is fathers who have for the most part told us that they are in favour of join custody. I'd like to hear what you have to say on that since you also deal with men. If I understood correctly, you advocate joint custody rather than mandatory shared custody at the outset.

Ms. Sylvie Lévesque: Yes, but as we mentioned earlier about mediation, how can we impose anything? Both parties have to decide on a voluntary basis what they want to do with their children.

If, when the divorce is pronounced, the court automatically imposes custody on someone, if the mother or the father doesn't want to get involved, in our opinion, the results won't necessarily be very good for the child or children.

So I think we should have very broad guidelines, principles. We can say that both parents are responsible for their children. They decide together to have children before the divorce and both parents then are responsible. Afterwards, I think we need and should favour a much more flexible and appropriate process, such as mediation for instance, to avoid, when these things are being decided... These situations are of course very emotional. There are situations where violence is not present, where there is no pressure, no abuse. All men aren't violent, thank God. So in that context I think that we have to put the emphasis on processes allowing both parties to come to some agreement. If we impose something, in our opinion, we will not get conclusive results. There again we will see power struggles involving the time allowed for visits, various types of control or certain powers. We shouldn't deny that money is often an issue. People sometimes think that if they obtain shared custody they won't have to pay alimony, and that is not the case. The amounts are set according to income.

Poverty still has a female face today. The National Council of Welfare published a study two days ago. More than 100,000 children in Canada still live in poverty. That reality has to be taken into account.

Ms. Caroline St-Hilaire: Thank you.

The Joint Chairman (Senator Gallaway): Senator Pépin.

Senator Lucie Pépin: You say that 81% of agreements are negotiated. Only 19% of decisions must be handed down by a judge. Do you think there is some relationship between the percentage of negotiated agreements and the percentage of single-parent families headed by women who live in poverty?

Ms. Sylvie Lévesque: Eighty-two percent?

Senator Lucie Pépin: It is said that—

Ms. Sylvie Lévesque: Eighty-two percent of women who head up single-parent families—

Senator Lucie Pépin: That's it. I just saw the statistics. So, parents come to some agreement and negotiate, but it seems there are a lot of them who abandon their responsibilities as soon as the agreement has been arrived at. In those cases the mother has to take on the responsibilities.

• 1245

Would you have a study on the impact of shared physical custody on children between the ages of 2 and 15? Every two weeks they have to pack up their suitcase to go to the other parent's house. There was a young woman of 18 who came here and spontaneously said: “For the first time, when I have my own apartment, I'm going to have all of my things in the same place. I think I will never be able to leave that place.” I was deeply troubled by that statement. With the groups you see, do you have some idea of the impact of this shuttling about, just that, without talking about the emotional trauma?

Ms. Agathe Maheu: I was talking about that, in a way, earlier. I was talking about shared custody that is touted as ideal. I could have told you about the impact of that type of custody on children. I have to admit that when there is shared custody and that the agreement the parents have arrived at is tenuous, if there is quite a bit of quarrelling, the children don't feel secure and they are very, very manipulative. When things aren't going to their liking with their father, they decide to go with their mother.

Children are impoverished in a situation like that one. I'll give you the concrete example of an eight-year old child. Last week, the mother renegotiated the custody agreement. The child wants to go to live with his father. He is eight years old. Together we looked at the reasons why he wanted to go to his father's place. At eight, he has begun to neglect his homework. The mother uses discipline and limits the number of hours he can spend in front of the television. The little boy is very angry and says: “I'm going to live with daddy.” The father of course gets into this, as you can imagine. So the child's custody arrangements are changed: he goes to live with daddy.

The woman had alimony for the child, and this allowed her to pay for an extra room, a small t.v., and so on. This is the time of year when people move. “We have to change the custody agreement right away, because if the child leaves, I'm going to have to move because I will no longer be able to afford to pay for his room.” When the child comes back to his mother, he won't have a bedroom.

We see a lot of situations like that. Where is the interest of the child in that case? I think that it would have been to everyone's advantage for the parents to sit down and examine the reasons why the child wanted to go and live with his father. Of course, the father will no longer be paying alimony and the mother is very poor, but where is the best interest of the eight-year-old child in all of that?

That is why I was talking about educating parents. I think that parents should go to school during a year after their separation or their divorce to understand what their children are going through, but first and foremost to understand what they are going through themselves.

I would therefore emphasize the need for education and good information, because this is where we can help the child. We must do some studies on these children.

[English]

The Joint Chair (Mr. Roger Gallaway): It's almost 12.50 p.m. We're almost an hour overtime. I'd ask Mr. Mancini to pose the last question.

[Translation]

Mr. Peter Mancini: Thank you, ladies.

[English]

Thank you very much for a heavy dose of realism in your presentation. I have one quick question, though, on something you said that caused me a little bit of concern.

You said access is often tied to support. My understanding is that the two are not tied together, that in fact there are many parents who can't afford support but are good parents and have lots of access. There may also be parents who have tremendous financial resources but maybe are not interested or not necessarily the best parent to have access. So when you say that, is that your practical experience, that access and support are tied together?

[Translation]

Ms. Agathe Maheu: I didn't express myself very well if you understood that I had made a link between support and access. I'm not making any kind of link whatsoever. Support, that's one thing. This is a responsibility of parenting. Access has to do with education and the conflicts that men and women may experience following a separation or a divorce.

• 1250

I feel that once you've understood what someone experiences following a separation, once you understand the emotional dependence that a person may have on their spouse, and this applies both to women and men, because men are now dependent on us as we were on them for a long time. When you manage to understand that, there are no problems with respect to access. When, as an adult, you understand what one experiences following a divorce... You are heartbroken, sir. Your heart is broken, regardless of whether this happens when you are 30, 40, 50 or 60. Why do young people commit suicide today? Young people commit suicide when their heart is broken. When men kill their wives, it's because of their tremendous dependency on their former spouses. That's what it's all about. But we don't recognize this and we don't understand what a person goes through. Perhaps we have been emotionally dependent an entire life, dependent on our mothers, on our fathers, and so on and so forth. This is why, when we go through a separation or a divorce, we have to go to school for a year.

I have been a single parent for 25 years and I went to school throughout this entire time to get a better understanding of the situation, and I still don't understand certain things that men and women say to each other. This is why men need services just as much as women do; women need services and children need services. When I talk about services, I mean school. I remember the nice old priest who supported us when we established our association. He told me: “Great scott, education for adults!” When you're not prepared for a situation and you figure out what you're supposed to be doing only as you experience it, that's when education for adults needs to be provided.

[English]

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

Thank you for coming.

[Translation]

We have 10 minutes before the next session starts. We will take a 10-minute break. The members of the committee may want to eat something. You can share your time amongst you.

Ms. Sylvie Lévesque: May I add something?

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

Ms. Sylvie Lévesque: We prepared a written text which we have submitted to you. Unfortunately, it is in French only. We hope that you will be able to read it.

The Joint Chair (Mr. Roger Gallaway): No problem. Thank you.

• 1252

• 1306

[English]

The Joint Chair (Mr. Roger Gallaway): We have before us from G.R.A.N.D.—they will tell us what G.R.A.N.D. means—

Senator Anne Cools: Grand people.

[Translation]

The Joint Chair (Mr. Roger Gallaway): We welcome Ms. Mathilde Erlich-Goldberg and Mr. Albert Goldberg, who represent G.R.A.N.D. I believe that you attended this morning's session. We will give you 10 minutes to express your point of view. We will then have a question period, just as we do in the House. I would invite you to begin, please.

Ms. Mathilde Erlich-Goldberg (President, G.R.A.N.D.): Good afternoon. I will speak in French, as I do not have a very good command of English. My name is Mathilde Erlich-Goldberg and I am president of G.R.A.N.D. for the province of Quebec. I am also a grandmother who, unfortunately, has not seen her granddaughter for quite a long period of time, ever since our daughter died nearly six years ago.

We formed a group to help grandparents who, sadly, do not see their grandchildren because of divorces, separations, death, suicides, abuse, or, in many cases, financial and family problems that often started a long time ago. G.R.A.N.D. is the name of this group that we established to support and help grandparents. We are all volunteer workers and our numbers are quite high, nearly 400 members and sympathizers. We have been in operation for nearly four and a half years. We are accompanied by a lawyer, Michel Girard, who also works with us on a volunteer basis. He has made a very big contribution and attends all of our monthly meetings and provides us with advice to help our grandparents.

I must tell you that we deal with very, very special problems or cases, and I feel compelled to say this since we have had some very special cases this week. For example, we have grandparents whose children are drug users and who have had their grandchildren turned over to the DPJ (Youth Protection Branch). This is a serious problem here, in Montreal.

We offer support to the grandparents. We have to offer them moral support. We have a serious problem in Quebec. Section 611 of the Civil Code states that grandparents have, except in certain circumstances, access rights to their grandchildren and yet we wind up in court. When we appear before a judge—and I myself have been in this situation—we unfortunately come to the realization that, in most cases, the judge is not educated or does not know how to deal with the grandmother or grandfather appearing before him. He doesn't understand the problem. This must change.

The members of G.R.A.N.D. would like things to change so that when grandparents arrive in court with their lawyer, the judge will have a better understanding of the love that they have for their grandchildren, and of the grandchildren's interest in seeing their grandparents. This is very important. We must not forget that, in many cases, the grandparents are deprived of their grandchildren's love, just as the grandchildren are deprived of their love, because they are not allowed to see each other. Right now, this issue is very important to us.

• 1310

I will now turn the floor over to my spouse, my other half who helps me a great deal.

Mr. Albert Goldberg (Vice-President, G.R.A.N.D.): The abbreviation G.R.A.N.D. is, to some extent, the emblem of the association and it means “grandparents requiring access and dignity“. We can do a literal translation in to English and the abbreviation remains the same.

We must understand the importance of the role played by grandparents in society in general. There is the emotional component, but there is also the role they play in the development of grandchildren. When you cut ties between grandparents and grandchildren, it's like a country with no history. A people cannot live without its history; a people cannot prepare for the future if they do not know the past. There are three generations; there is the past, which represents the history of a country or of a family, and these are the grandparents; there's the present, and these are the parents; and then there's the future, meaning the grandchildren.

It is very difficult to separate the future from the past, and this applies to everyone. Our work focusses primarily on the grandchildren because, at any rate, the grandparents' future is behind them. Cutting the ties between grandchildren and grandparents is a tragic thing.

I would like to point out that, in Quebec, we are lucky that we are protected by section 611. This section provides for grandparents' rights, and these rights are independent of situations. Elsewhere in Canada, it would appear that the access of grandparents comes under the Divorce Act. Divorce is perhaps one of the reasons that separate grandparents from grandchildren, but it is not the only one. I appreciate that, in Quebec, regardless of whether or not a divorce has taken place, we have this Civil Code section that guarantees grandparents natural access to the grandchildren, except, naturally, in cases of incest or in cases where there are valid reasons which we would not defend. This is, therefore, very important.

In my opinion, the access rights of the grandparents should be independent of the situation, whether this be a divorce, blackmail over money issues, or a child blaming parents for the divorce. We hear such stories. Parents who don't accept grandparents divorcing forbid them to see the grandchildren, saying that they are not setting a good example. It is not right for a child to judge the reasons leading to his parents' divorce, anymore than it is right for the mother or the father to fill the child's head with ideas about the father being a good-for-nothing, etc.

Elsewhere in Canada, I would like some thought to be given to separating the issue of grandparents' access to their grandchildren from the causes leading to the situation. It would not be catastrophic to include access rights in the Divorce Act; at any rate, this is what I think. I don't think that we are doing a very good job at preparing a country's future if we don't understand that, in families, grandparents may very well play the most important role. They are not there to raise the grandchildren; rather, they are confidants. When a grandchild confides in his grandparents, he knows that he won't be judged. His parents will judge his actions. Grandparents are friends who will listen and they are also people that the child can confide in in full confidence. If asked, grandparents will provide advice, but they won't do this if they aren't asked. They're there to love and spoil their grandchildren. The role they play is quite different.

If a part of this natural thing is removed from a grandchild's life, his psyche will suffer. It is very important that this right be conferred.

• 1315

Ms. Mathilde Erlich-Goldberg: I'd like to point out that last week, we received—I think everybody received—Le Téléphone Juridique in La Presse. I flipped through it and I think it's great. However, to my great surprise, I found nothing on the subject of grandparents. It talked about...

Mr. Albert Goldberg: ...family law.

Ms. Mathilde Erlich-Goldberg: It talked about family law, it talked about children and families, adoption, legal responsibilities pertaining to parents and children, parental authority, guardianship and human rights. Where are the grandparents and grandchildren? Where is section 611? Where are the grandparents? Grandparents are part of the family.

[English]

Senator Anne Cools: Mr. Chair, can we ask what she's referring to so she can put it on the record, so when we read the record we can all know?

We need the document you're reading from.

[Translation]

Mr. Albert Goldberg: Le Téléphone Juridique was drafted by the Société québécoise d'information juridique, the Government of Quebec, the Quebec Ministry of Justice and the Canadian Department of Justice. The three justice departments omitted grandparents; they did not do this intentionally, but this is revealing. When you make a slip of the tongue, it's sometimes revealing. Grandparents were absent from this document which was sent to almost the entire population and distributed in the newspapers.

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

Senator Lucie Pépin: Thank you for your presentation and I understand you. I'm a grandmother. If ever I were deprived of the right to see my granddaughter, I would fall apart. So I understand everything.

However, there is one thing that I don't grasp. Is it the law that prohibits you from seeing your grandchildren or is it the parents who do this? Is it because you have no remedy under the law that you cannot demand to see your grandchildren after the separation of your own children? What is the mechanism that prohibits you from seeing your grandchildren?

Mr. Albert Goldberg: The parents, for various reasons. For example, this happened to us when we lost our daughter. She died two weeks after giving birth to a daughter. At the time, my wife was extremely sick and hospitalized. I was looking after my wife and going to see my daughter, etc. My wife was discharged from the hospital for only one day in order to attend our daughter's funeral and then she went back. Six months later, my wife came out of the hospital. During this six-month period, the other grandmother looked after the child.

At the beginning, she gave us our granddaughter two or three times per week because this suited her and she worked. She was very happy when we took her for the weekend, etc. Then, at one point, she became jealous. When I would arrive, the little girl, who adored me, would jump into my arms. There was certainly some jealousy there. Then, my former son-in-law remarried. He was entitled to do this and it's natural. He and his wife decided that there was another family and other grandparents. The woman he married already had a child and he told my granddaughter: “This is your sister.” Our daughter died twice. Our granddaughter heard no mention of her mother, and she had a sister.

After Mr. Girard, who is accompanying us, represented us in court and secured visitation rights for us, the little girl came to our house and saw the photo of her mother. We explained that she had two mothers: one who was in heaven and the other who was raising her.

When they don't want to let us see the little girl, they don't and they come up with an excuse: “She's sick, I don't want you to come to the house, you're at my house.” And you can't go into someone else's home; they call the police and you...

Senator Lucie Pépin: You have no recourse.

Mr. Albert Goldberg: You wind up in jail.

Ms. Mathilde Erlich-Goldberg: Yes, there is some recourse, but you're constantly going to court.

Senator Lucie Pépin: That's it. If I recall correctly, about a year ago, there was quite a debate about the responsibility of grandparents and child support. If parents didn't pay, it was up to the grandparents to do so.

Mr. Albert Goldberg: Yes.

Ms. Mathilde Erlich-Goldberg: Yes.

Senator Lucie Pépin: When this debate took place, I had told one of my friends: “That means that grandparents have all the responsibility, but no rights.“

Mr. Albert Goldberg: That's right.

• 1320

Senator Lucie Pépin: In fact, nothing has been done to rectify this.

Mr. Albert Goldberg: Yes, fortunately. I submitted a brief with another lawyer. At that time, Mr. Bégin was the Quebec Minister of Justice. Every time I can, I take the opportunity to praise him because he was really very good. We managed to eliminate grandparents' support. This is one of our organization's major achievements. Grandparents no longer have this sword of Damocles over their heads. They are no longer compelled to pay. This does not mean that we are not encouraging all grandparents to do the most they can for their grandchildren, and usually they do in such cases. So we succeeded in eliminating this type of child support. I think that this constituted a major success for many grandparents, particularly those who are poor. When you're wealthy, $1,000 is nothing, but when you're poor, $100 is a lot.

Senator Lucie Pépin: Thank you. I hope that you will be able to campaign to have your document added to the list of those we have received.

Mr. Albert Goldberg: Yes, yes.

Senator Lucie Pépin: Thank you.

[English]

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

Mr. Peter Mancini: Merci. Thank you.

I'm sure your own case is very difficult. I come from a very extended family on the east coast, and when I think of the contribution my grandparents made on both sides of my family... I'm sure it would be difficult in your situation.

I'm going to confine my remarks to situations of divorce, because the death of a child brings particular circumstances into play. It's interesting the contrast between the Quebec Civil Code and what's happening in my own province. Indeed, in my province of Nova Scotia, the case law developing is almost indicating it's very difficult for grandparents to hop over the legal barriers. In essence, the courts are saying if the grandparents are to have access, it should be through their child who is a parent of the grandchild.

Can you envision why that shouldn't be so? Surely if each parent of the child has time with the child and they're the children of the grandparents, it's their obligation to share their time with the child with their parents, isn't it? Isn't that their responsibility as opposed to the court's responsibility?

Am I clear?

[Translation]

Mr. Albert Goldberg: Yes, that is quite clear. Generally speaking, legislation states that it is first and foremost the responsibility of the individual before it becomes that of the courts. Unfortunately, when the individual does not have any sense of responsibility, the courts are there to rectify the situation. They never intervene first.

Moreover, our association has always recommended conciliation or mediation before turning to the courts. We try to do this. In our opinion, going to court is so traumatizing that we try to avoid it as much as possible. We only go to court as a last recourse, when all avenues of discussion have been exhausted. We prefer discussion and we try to resolve problems. I fully agree that this should be an individual responsibility, that of the parents, of course.

[English]

Mr. Peter Mancini: In the world we live in, children only have so much time. Their time today is eaten up. They go to school from 9 a.m. to 3 p.m. They have an activity from 3 p.m. until 5 p.m. They have supper from 5 p.m. until 6 p.m. They have homework from 7 p.m. until 8 p.m. At least that's the way it is with my kids.

When their parents divorce they chop the children's time up even more. If we give grandparents the right in the Divorce Act to seek access, are we not then taking the child's world and dividing it more and more into competing claims for the child? Is there not a danger to the child's well-being if we do that?

• 1325

[Translation]

Mr. Albert Goldberg: No, it is a matter of opinion. When I was a child, we had ten times as much homework. First of all, school ended at four, five or even six o'clock. We had homework and often worked until midnight.

When you look at things from your own point of view, you imagine that you are the centre of the world, but if you look at other civilizations... I had an occasion to teach French to young Chinese students. That brought me in contact with the Chinese community. According to Chinese custom, the grandparents raise the grandchildren. Children are never hit, whereas in our society, there are problems. Chinese people never beat their children and the children are well brought up. I was lucky. You should have seen how the students treated me and what they did for me at the end of the year. It was incredible. So I think we need to broaden our horizons. I think that there is always time for everything. What people don't know how to do, generally speaking, is to focus on what is important. When time is lacking, you need to ignore what is not important and find time for what is important. Sometimes the opposite happens: we do what is unimportant and do not have time for what is important. It depends on the value that we give to time.

I am sure—excuse me for being so definite—that we can, if we are organized, have time for everyone. Time spent with grandparents is not useless. It is a time for affection. Love is the important thing in life. The rest is secondary. When we are loved and we love, we have strength to knock over mountains.

If we have been lucky, after losing a child, to be able to do certain things, it is because I have a wonderful wife. That has given me support in life. I believe that everything I have done has been possible because I had someone beside me who gave me the strength I needed. If we can inculcate that into our children, they will have the strength to overcome any obstacle. Perhaps the child will play a little less hockey and do a little more math. It depends on whether you consider math more important than hockey. If you consider a career pushing a puck to be more important... That is what happens in life.

I believe there is time for everything and that, if we take time for grandparents, parents will arrange for certain things that are not important to be given up. That is my opinion.

Ms. Mathilde Erlich-Goldberg: I agree, sir. I sometimes see parents in my office who tell me that they want their children to be able to go, but they have hockey and skiing and they do not have time to go.

I am convinced that here, among us, there are people who are like me. My parents worked. I was a child in wartime. I lived with my grandmother, who helped and supported me. I had a marvellous grandmother that I will never forget. My grandfather went to war and died, but my grandmother taught me wonderful things. I have not forgotten them. But they were not my parents.

When I had my children, I did not always agree with my mother. We had differences of opinion. We have a right to have differences of opinion with our parents. However, on a day when my children were not at school, on a Thursday, I would take the train and bring my children to my mother's for the day. I could not have said no to her. Never. Now, parents always say no. Why? A telephone call is a small thing. Well, there are parents who refuse to let the children call their grandparents.

• 1330

I am going to talk about something else that I find deplorable. I used to work in the medical field and I would visit homes for the aged. I would talk with the elderly residents. Their grandchildren were never brought to see them. The parents never came to visit them. They never saw their grandchildren. Do you think that is all right? It is terrifying.

[English]

Mr. Peter Mancini: I know much of my time has gone. I would end with this thought. I appreciate much of what you say, and I think what you are saying is a message we have to hear, but we live in times—and especially where I come from—where because of work situations, so many people leave now. The employment situation demands that the employee travel from one part of this country to the other, and back and forth. So we're in very difficult times, but that's not to detract from the strong message you've given us.

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

Senator Cools.

Senator Anne Cools: Very quickly, I want to thank the witnesses but also to remind the chair, as I did yesterday, that the particular issues they're raising, especially around bereavement and death and continued access or exposure to family members, is part of a set of larger issues that the committee is really going to have to address.

We had the converse situation yesterday. A witness told us that she had been alienated from her father, and when he died she could get very little access or information, or any of those grief allowances, so to speak.

The point, Chair, is a larger set of issues that we should be looking at: the impact of bereavement and death in these kinds of family conflicts.

The Joint Chair (Senator Landon Pearson): I'd like to apologize

[Translation]

to the witnesses. We have not taken time for lunch. If there are people here who leave to go eat, it is not because they do not want to listen to you. It is because they are hungry.

Mr. Albert Goldberg: We understand very well. We thank you very much for taking the time to listen to us. It is certainly tiring, because you have been here since this morning. We understand that perfectly and thank you for the time that you are taking and your attention.

The Joint Chair (Senator Landon Pearson): Thank you very much. There is one more question for you.

[English]

Ms. Bennett.

Ms. Carolyn Bennett: As we came to the idea of people understanding that we are supposed to be rewriting the Divorce Act, some people have said, don't do what Alberta—I think—did, which is to put grandparents in the legislation. They said, it's too difficult to administer; it's impractical.

I would like some advice as to whether it needs to be in the legislation of the Divorce Act or whether it should be a suggestion as we start to hopefully prefer the term “parenting plan” instead of “custody and access”, whether in determining a parenting plan, access to grandparents or favoured aunt or all of those people would be included in that plan.

Yesterday we had somebody testify that there should be a freezing of financial assets from the moment of separation so that, all of a sudden, all of the money doesn't get spent on something else and the kids no longer have money to stay in the same house—all those sorts of things.

My other experience is that kids get signed up for all the lessons, and there are all kinds of other ways to exert power, and then the lessons take precedence over visitation, or the grandparents, or whatever. There are many ways of controlling the child's life so that you keep the power and the power doesn't go to the person you're fighting with. It looks like it's in the child's interests, but basically the kid has no time to play. The kid is signed up for lessons all over the place, and there's no time to be a kid, or a grandchild, or all of those things.

I would like to know if you have any advice on whether access to grandparents should be in the legislation or an example in the parenting plan. What do we do about this funny power thing, where the kids get signed up for all these lessons as a punishment to the spouse?

• 1335

[Translation]

Mr. Albert Goldberg: Let us take an example. When you have a car accident, you can kill someone, but you can also kill someone with a revolver or poison. What is punishable is not the means by which you killed the person but the fact that you did it.

The lack of contact between grandparents and grandchildren is not always the result of a divorce. If grandparents cannot see their grandchildren or the grandchildren see their grandparents, it is not always because a divorce has taken place. I would therefore like to see a provision in the act to guarantee access for both grandchildren and grandparents, whatever the cause.

It is a great idea to include this in the Divorce Act, but I think it would be unfortunate to limit it to the Divorce Act. In my opinion, this right should exist for all grandparents and grandchildren. It is like parental responsibility, whether there has been a divorce or not. If you are a father and divorced, does that mean that you no longer have an obligation to take care of your children? We should keep the same responsibilities, whether we are married or divorced or living with someone. When we have a child, we have responsibilities. The problem in our society is that we always talk about rights and we do not talk about responsibilities.

Responsibilities are something that exist independent of marriage or a piece of paper. What grandparents and grandchildren should be given is independent of the paper, whether there is a marriage, a divorce or anything else. That should also be included in the Divorce Act, but not only in that act. At least, that is my opinion.

Ms. Mathilde Erlich-Goldberg: Grandparents should be included in divorce settlements, but also in cases of death or suicide. Section 611 should be kept.

There are fewer divorces, but there are separations because there are a lot of people who live together. And there are therefore separations. It would be good to include grandparents, as you were saying, but those who have other problems cannot be involved in that situation. We therefore need to keep section 611. When the mother or father dies because of an accident or suicide, what do we do? It is not a divorce situation. Grandparents are excluded. They are told: “Now, you are nothing”.

There are also many cases of single-parent and blended families. We see cases in which grandparents are completely excluded and have to go to court because the people do not want to use mediation.

[English]

Ms. Carolyn Bennett: As we move to more current or contemporary definitions of “family”, I wonder what you would think of some provision that the children have a right to stay in touch with their roots, because that may be the next door neighbour. It is just a matter of making provision for that sort of security, so that children know where they've come from. Is there a way that we could make it not necessarily a right of the grandparents to see the children, but an intention at the time of divorce? The children would then have a continuity with people who are identified as helping them through this difficult time, helping them in terms of security and stability.

• 1340

[Translation]

Ms. Mathilde Erlich-Goldberg: With your permission, Mr. Girard would like to say a word.

Mr. Michel Girard (Lawyer): In answer to Mr. Mancini's question, the problem of access by grandparents in divorce situations does not arise usually. The custodial parent allows his or her parents to see the child and the non-custodial parent does the same. Where the problem does arise, is when, for example, women who find themselves financially strapped return home to their mother and the grandparents and the child develop a very stable relationship; at some point, a conflict may arise in the roles. After five or six months, the mother finds a new spouse and the grandmother is deprived of the daily presence of the children. That is where the problem arises, and including the rights of grandparents in the Divorce Act will help.

Here is another situation where it would be advisable to include grandparents' rights in the Divorce Act. Unfortunately, it still happens too often in our society that men, once they are divorced, once they are no longer living with the mother, deny their paternity and all their parental responsibility. They often resign from their job and do not pay any support. Who is the loser in such a situation? The children. The children are denied their father and the paternal grandmother or grandparents have a very hard time retaining access to the children, because the father is behaving with such lack of gratitude. Even in Quebec, it is difficult to get access rights in such situations under section 611. If such a provision were to be included in the Divorce Act, the grandmother or grandparents could say for example, “Yes, we acknowledge that our son is not fulfilling all his obligations, but we would nevertheless like to retain some contact.” That would be advantageous.

Mr. Mancini asked a question about the fragmentation of access rights. If the father is not involved in the children's lives, then there will not be any excess of fragmentation with respect to access rights. If this is a genuine problem because the grandmother had provided housing for the mother and the children and would like some access rights again, all that is required is that some balance be restored to the situation. Initially, the grandmother may have been too involved with the children, and now she finds she has no involvement at all. All that is required is that some balance be restored. In my view, these situations occur relatively frequently and argue in favour of including grandparents' rights in the Divorce Act.

As was mentioned at the beginning, there's the whole issue involving children who are declared to be in a compromised situation by the Youth Protection Director. If grandparents' rights were included in the Divorce Act, all lawyers and judges would be aware of everything grandparents may do for children, in their interest.

[English]

Ms. Carolyn Bennett: Thank you.

I was just going to say that yesterday, as a mother of two sons, I was warned by one of the estranged fathers that we had better get this right at this committee or I'm at a much greater risk of never getting to see my grandchildren and other people.

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

Senator Mabel DeWare: Thank you.

It's interesting to have the grandparents come before this committee. I believe we have heard three or four personal cases, and I really appreciate it that the Goldbergs have come here today to tell us about theirs, in light of the fact that we might be able to do something for grandparents.

Two of the cases that we heard besides yours were about the death of a child and the grandparents being cut off. That would be devastating to me, because I'm also a grandparent and a great-grandparent.

Like Mr. Mancini, I come from Atlantic Canada. There seem to be more extended families in Atlantic Canada for some reason or other. When grandpa dies, grandma comes to live with the family. When the cousin needs to go to university, she comes to live with the family while she's going to university. It's just one of those things. The family values are there, and that's what I think we're losing in this country. Unfortunately, that also deals with religion, which is being cut off from some people as well, as we've heard in our hearings.

• 1345

It all comes with the basic values of family life and respect for each other. How do you legislate family values? They're something that's taught and embedded, and we're losing them in this country. Everybody's moving too fast, the values are changing, but we need those roots. That's almost what we're talking about: the rights of grandparents, and the rights of siblings who have been cut off as well—and they've been coming to us with their requests—and dads and moms. I just don't know whether there's an answer in terms of how we can get ourselves around that to make it right. You don't legislate family values, I guess. If we could, how could we do that?

A voice:

[Editor's Note: Inaudible]

Senator Mabel DeWare: Then let's do it. We would like to do that, but how do we do it?

[Translation]

Ms. Mathilde Erlich-Goldberg: I think that what you are saying is true: we are very much losing the value of the family, and we should begin again our efforts to educate children, brothers and sisters. It is true that in the Civil Code, aunts and uncles or brothers and sisters do not have these rights when unfortunate incidents of this type occur. Something should be done, but what? Perhaps that is up to you. We are here to help you.

I will turn the floor over to Mr. Girard, because he would like to add something.

Mr. Michel Girard: You asked how Canadian family values can be changed through legislation. This is how I would answer that question. When I was a child, smoking was popular. I have seen plenty of legislation about tobacco advertising and “No smoking” signs. Today, as a smoker, I see that I am somewhat out of date and even in the minority. The Parliament of Canada expresses the will of the people. Regardless of the party in power, when a bill is passed, it reflects a sort of society standard. It can take years to change standards.

Today we have nuclear families—made up of the mother and father and the children—but I think that eventually, we are going to go back to broader networks and realize that we may need our aunts, uncles and grandparents. I think that is a good thing, because eventually, I believe we will see that we made a mistake in seeing the family as composed of only the father, mother, and child.

We are living in a world in which we have increasingly far-reaching relations with the whole planet. I'm thinking of the Internet, for example. I think that nuclear families are going to start establishing ties with the larger, extended family.

As legislators, whether you are members of the Senate or House of Commons, you have an important goal in that you are reaffirming the importance of the links between grandparents and children, by of course emphasizing first and foremost the interests of the child.

In divorce cases, when I began, in practice, mothers would say for example: “I am the mother and I am entitled to have custody”. The father would say: ” I am entitled to have access”. The Junior Bar of Montreal has made videos which are shown in the waiting rooms of courthouses so as to educate parents to the issue of children's interests. Even before anyone else has mentioned it, we increasingly hear parents state: “You have to think about the interests of the child.”

Obviously, there is legislative and educational work to be done. but I think first legislation must be passed. That is the first expression of what we want on be the norm.

The Joint Chairman (Senator Landon Pearson): That was very interesting. Thank you very much for your presentation.

[English]

Senator Mabel DeWare: Thank you, Madam Chair.

Senator Lucie Pépin: May I add something?

[Translation]

I would like to conclude by pointing out to you that today parents are so busy and have so little time because they are both working that grandparents have a role to play, such as going to get the children from day care or sometimes looking after them when the parents are working.

• 1350

Therefore, I am convinced that grandparents have a role, particularly when the parents are divorced.

Ms. Mathilde Erlich-Goldberg: This role is being taken away from them. Thank you.

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

[English]

We're going to take a 10-minute pause.

• 1351

• 1407

[Translation]

The Joint Chairman (Senator Landon Pearson): I would ask everyone to take their seats. We will resume.

We will now hear Mr. Solloway, Mr. Spicer and Mr. Spencer- Lewin.

[English]

Mr. Solloway, please begin.

Mr. Ian Solloway (Individual Presentation): Madam Chair, members of the committee, I am Ian Solloway, a practising family law lawyer in Montreal.

[Translation]

Thank you for inviting me to give my views on the issues of custody and access under the Divorce Act.

[English]

I'm going to try to be as brief and as concise as I can. I know my time is limited to five minutes, and five minutes of lawyers' time can perhaps stretch to an hour.

I'll try to confine my remarks to three specific areas. For your own information, I'm going to talk about the current terminology, the perceived gender bias under the Divorce Act, and the question of parental mobility or relocation.

It's virtually a truism to say that divorce, by definition, is a hurtful hostility and a hostility-provoking process. To the extent that the process involves litigation about parenting, the process is even more hurtful and more painful. The current legal framework—that is, the adversarial process to custody and access determination—has proved to be absolutely, atrociously ill-suited to the needs of the child.

I don't think I'm saying anything new, or something you haven't heard before.

In my view, the single most exacerbating factor in perpetuating the hurt, hostility, and anxiety that permeates contested custody and access litigation and often survives the litigation itself is the current terminology used in our family law statues, in particular, our Divorce Act—namely, the use of the terms “custody” and “access”.

Simply stated, the term “custody” is a word that, in my view, no longer has any place in family law generally and in the Divorce Act specifically. Apart from being a term that is commonly applied to incarcerated criminals, when used in relation to children of divorce, the term implies that children are property, or spoils to be divided amongst the parents, the same way as the china, the CDs, and other marital assets are divided.

Similarly, “access” is a term derived from property law and applies a right of passage, a right of entry. The word diminishes the role of the non-custodial parent to something akin to “parent by leave of the court”.

It has been my experience that far too many child custody disputes are really arguments over labels rather than over substantive child care arrangements. Labels such as “custodial”, “non-custodial”, or “access” parent tend to promote the win-lose mentality of this type of litigation. The ultimate losers in all of this are the children. There's no question about it.

• 1410

The terms “custody” and “access” are wholly inappropriate—and more often than not damaging—to describe the relationship between divorcing or divorced parents and their children. If there is ultimately to be any hope of successfully reducing the anger, hurt, and hostility associated with marital dissolution and the removal of the adversarial approach to the resolution of post-divorce divorced parenting issues, the words “custody” and “access” must—and I underline the word “must”—be removed from the divorce law, and from the legal lexicon for that matter.

[Translation]

The terms “custody” and “access” should be removed from our legal vocabulary.

[English]

That brings me directly to the second area of concern, the perception of gender bias. We have done away with many of the myths surrounding child care in marital dissolution situations. The historical and presumptive bias against fathers under the tender years or the maternal preference doctrines, which typically held that mother was not only the parent most capable, emotionally and physically, of parenting a child post-divorce, but the only parent capable of so doing, is no longer publicly accepted, both in the psychological literature and by our courts. It is commonly recognized that parenting is not a biological function but a sociological process, in that an engaged and active father is extremely important, if not crucial, in the post-divorce development of the child.

However, there is a certain reality in the father custody case that cannot be ignored. Any lawyer giving realistic, practical, and cost-effective advice to a father client seeking custody under the current legal framework must sensitize the father client to the fact that even if he is able to prove his availability, his capability, and his commitment as a primary caregiver parent, his chances of receiving sole custody are remote at best.

There is an unevenness of court decisions when it comes to fathers seeking custody. Too often other considerations somehow factor into some judges' thinking. If the father, for instance, wants to devote more time to his child by reducing or readjusting his work schedule, he may be criticized by the court for being irresponsible, for not making as much money as he could to support his child.

So the father not only does not obtain custody, but in certain instances his access may be reduced, and the court may well assess him a notional or theoretical income for child support purposes. In very many cases, the father is in virtually a catch-22 situation.

The point I am trying to make is that despite a father's availability, capability, and commitment, there is too often the reality that the father is not judged by the same standard as the mother when it comes to custody determination. In custody litigation, fathers are still too often seen in a stereotypical fashion as the breadwinners rather than the nurturers.

The question therefore becomes, are there alternative forms of parenting arrangements that might accommodate the various competing points of view? In my view, the answer is yes. However, let me say immediately that I do not believe the answer is joint custody.

Many people have called for a rebuttable legislative presumption of joint custody as the solution in the Divorce Act to eliminate the adversarial nature of the process, to eliminate the perceived if not real gender bias against fathers, and to promote and facilitate post-divorce parenting.

My experience as a practitioner is that joint custody has been and is one of the most highly publicized but least understood placebos in family law. Court-ordered or -imposed joint custody is not the panacea. It will not, in my view, solve problems and make successful co-parenting happen.

A judge—I think it was in the Ontario Court of Appeal—Mr. Justice Thorson, several years ago described joint custody as “a triumph of optimism over prudence”. That's very true. There are no—

The Joint Chair (Senator Landon Pearson): Mr. Solloway—

Mr. Ian Solloway: Is the time up?

The Joint Chair (Senator Landon Pearson): Come on. You're over five minutes.

• 1415

Mr. Ian Solloway: I just have a couple of things, and I want to get to the question of parental relocation.

There's no universal truth about parenting, either pre-divorce or post-divorce, that can be packaged into a nice tidy arrangement. Legislative or court-imposed joint custody will not make co-parenting happen. You can't mandate or legislate good parenting. Only good parents can do that.

This brings me to the solution I am advocating, which is probably one that you have considered and will be considering: the parenting plan approach. This was adopted, as you probably know, in the state of Washington in 1987, and it has been in place in England since 1991. By this plan, parents will be required to address the rights and needs of the child by focusing on parental responsibilities in four areas: residential requirements, financial support, allocation of decision-making, and dispute resolution procedures.

If there's a necessity to make a residential order, that's what it would be. It would be a residential order and the words “custody” and “access” would be left out. There are all kinds of advantages, which we could discuss during the question period, as to why in my view this approach is recommended. The other major issue, and something that I will leave you with—you probably recognize it—is the issue of parental relocation or mobility, as it's sometimes called. In my view, it's the most problematic issue post-divorce in family law today.

It typically involves, very simplistically, the rights of the fundamental freedom of movement of the custodial parent on the one hand versus the right of the non-custodial parent to maintain and enjoy a continued relationship with his or her child unaffected by geographical barriers. There is no easy solution. The Supreme Court has pronounced on that. I'm not going to get into the majority and minority views at this point, whether there should be a presumption in favour of the custodial parent or not.

Let me say, though, that in terms of how this question can be answered, I believe it can be answered in the following way. Whenever there is a relocation or mobility issue post-divorce, it would be my view that all persons with any court-ordered residential relationship with a child made under the Divorce Act must give a prior notice of at least 60 days to the other parent before a move. Two, the notice must include a proposal for revised visitation if the present one is unworkable as a result of the relocation. Three, if there is no objection by the parent receiving the notice within the 30-day period, the relocation is deemed to be consented to and permitted without the necessity of returning to court. Four, if the receiving parent objects in writing to the notice of relocation within the 30-day period, the relocating parent shall submit the matter to obligatory pre-hearing mediation. If the mediation fails, the matter shall be referred to the court for adjudication.

I'm going to stop there. Forgive me for being over my time. These other gentlemen are waiting. I thank you.

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

Mr. Spicer.

Mr. Robert Spicer (Individual Presentation): Good day. Honourable senators, members of the House of Commons, and the committee, thank you for this opportunity to appear before the committee to present our experiences through marriage, separation, divorce, custody, access, and remarriage with stepchildren, including parental alienation and false accusations.

I was married to my ex-wife in 1985 in Toronto in a Jewish orthodox ceremony. We had a son in 1986 and a daughter in 1988. She has unfortunately grand mal epilepsy and suffers from personality disorders. I'm referring to my ex-wife. She attempted suicide and was physically and emotionally abusive. All attempts to get help from professionals failed miserably. We eventually moved here to Montreal in 1989 and finally separated in 1990. She moved out of our home when I was in Toronto on business, taking the children and most of the furniture with her. She contacted a lawyer to start divorce proceedings and has since gone through well over a dozen legal aid lawyers.

A preliminary agreement was worked out with the lawyers where I was able to have visitations every second weekend. Later that year I met my new wife and we planned to get married as soon as my divorce was granted. In the meantime, she moved in with me and has helped me in so many ways. The mother of my children contacted youth protection accusing me of sexual and physical abuse. DYP assigned a junior worker to investigate. He believed the lies and told me that I should consider myself fortunate that charges were not being laid against me. In the meantime, I was repeatedly denied access to my children. She falsely accused me in December 1991 of death threats and assault when I dropped the children off after a weekend visit. Charges were laid against me, forcing me to retain a criminal lawyer at great expense to defend myself in court.

• 1420

I was forced to bring a witness with me every time I tried to pick up my children, to protect myself from any more false charges. Even then, she often called the police when I arrived saying she was afraid, frustrating my attempts to take my children. When I asked the police to intervene on my behalf, they said this was a civil matter and they would not interfere.

During these difficult times, I was devastated and could not concentrate on my work. I lost my business and was later forced to declare personal bankruptcy. On one occasion, after picking up my children, she called the police and falsely accused me of kidnapping them. This was finally straightened out when the police realized it was my actual weekend visitation. The police laid no charges against my ex-wife for falsely declaring I had kidnapped the children. The criminal charges against me were eventually dismissed.

My lawyer counselled me to try to settle custody and visitation out of court. She was offered uncontested custody, alimony, and child support—very generous. All we asked for in return was reasonable access and my saving the children's religious education and upbringing. She refused and repeatedly delayed court proceedings. She became alienated against her religion, confusing the children even more.

We finally got to superior court in mid 1993. Testimony lasted for six days. I was again accused of physical abuse of my children and she presented photographs. The judge realized she had been attempting to alienate the children against me for a long period of time and it was she who had not told the truth, with numerous false charges and accusations against me. The children were suffering and were in danger. I was capable and anxious to take responsibility for raising my children, especially with my new wife.

In August 1993 divorce was granted and full custody was given to me. She was granted visitation rights every second weekend, some holidays, and during the summertime. I officially remarried. The children were re-integrated into the Jewish school system and a kosher environment. After a proper evaluation, our son started a supplemental program at a school to help him with his newly identified learning disabilities. Our daughter started a program to help her with her behavioural problems, the effect of long-term abuse by her mother. For the past five years, my wife, children, and I have participated in various counselling programs to help us cope and grow.

During spring 1996, on a weekend visit with their mother, severe physical and emotional abuse was uncovered. Our son confided to his teacher that his mother had repeatedly beat him with a belt and buckle, so much so that his thighs and backside were severely bruised. She had refused to let him contact me. Our daughter said her mother's male friend had grabbed her and thrown her against the bed, hurting her head and traumatizing her.

My son's school signalled Batshaw Youth Protection and they contacted me to pick up my children. She frantically called the police in an attempt to obstruct me at the schools. The police arrived and agreed with the DYP recommendation asking me to take the children to my home. I later discovered the police didn't believe the children's mother had actually assaulted them and they had included this notation in their report.

The youth court judge ordered DYP to provide supervised visitations for the mother and psychological assessments for the entire family. She was requested to attend group therapy that my children and I were already attending.

These supervised visitations lasted for one year. Unbelievably, no criminal charges were laid against her or her male friend. As the provisional youth court supervised visitation order was about to expire, and with the recommendation of DYP, I petitioned the superior court in June 1997 for a revision of the original unsupervised weekend visitation rights. Incidentally, we appeared before the same judge who had originally awarded me custody. He then ordered that visitations be slashed to every second Sunday afternoon. This was conditional on her regular attendance at group therapy and that she must provide only kosher food for the children.

Her subsequent attempt to appeal this court decision was refused. We are continuing with the group therapy. The children are being empowered to start making their own decisions about visiting with their mother in a safe way. She continues to have difficulties with this process. My son is 11 and my daughter is 9.

My wife and I are trying to cope with the day-to-day situations with the children and my ex-wife, often with great difficulties to our relationship. These continue to be trying times and I sure don't wish this on anybody else. While much of our story is very personal, I have shared it with you because we feel this may help other families realize that with the strongest trust, never giving up, and commitment and focus on the children, we can make a difference. You are not alone in these trying times.

I thank God for His trust in allowing me to raise my children, and give special thanks to my wife, who is here today.

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

Mr. Nicholas Spencer-Lewin (Individual): I'm going to take a risk and just talk instead of reading.

• 1425

I was married to a woman who was six years older than me, who owned the family home and earned $60,000 in a Quebec government job, with the pension and benefits. I was self-employed and earned approximately $20,000 a year. We had two kids and lived on the plateau of Montreal.

My wife took an extended leave of absence and went back to acupuncture school, even though she had a Masters of Science, where she became indoctrinated in a religious sect by one of her professors.

She planned for six months with a lawyer, such that the last day of school she locked me out of the house and presented me with an extremely exaggerated set of allegations.

I had been an unusually involved father. Everybody around us commented. I cleaned the toilet, sewed the Halloween costumes, cooked the dinner. Everything was shared 50-50.

When this happened, I got a lawyer right away. They said you can't do a single thing. There's no point in asking for joint custody. You just have to go along with it.

The situation was so bizarre. My wife was telling the kids that I was a piece of garbage and basically telling me that she had the green aura of a healer and taunting me behind my back, but she was such an intelligent woman that she could present well in front of authorities or anything.

Anyway, we tried to negotiate. Nothing happened. My mother realized that it was such a bizarre situation, and she decided to finance my case. She decided that I shouldn't put up with it.

I didn't realize she was in this cult until my kids started telling me stories of indoctrination, so I finally decided to sue for custody.

We went to court for an interim hearing. The judge walked in, and before he even sat down he said, well, what do we have to do, hit these guys over the head with a shovel to make them pay? The shock of the system was so much greater than the divorce itself. I just couldn't believe it.

It ended up taking three years to go to court. I had to borrow $175,000. We were in court for six weeks in the summer of 1995. My kids had to endure two years in a religious sect in an illegal school, where they were asking me questions like, “Daddy, is it true? Mommy said Satan cut off your foreskin”—and all kinds of ridiculous crap. The school had a belief in eugenics, about breeding a better race.

At any rate, basically we had this huge court hearing, and even though the judge was severely critical of what my wife had done with the children and he said that I was an excellent father and an example to follow, I still couldn't win custody. I got generous access. The kids are an hour out of town. I do all the driving. My wife earns three times more than I do. I have the kids 38% of the time. I'm supposed to pay her $925 a month, which I can't afford.

I've been trying to go back to court for the eighth time for child support. I've been waiting a year to go back to court.

I'm presented with a constant set of factors that keep me from having peace of mind. My ex-wife wants to go to near Medellin in Colombia to visit a member of the sect, and I have to make a court motion and get the Department of Foreign Affairs to testify that it's the most dangerous place in the world to go. Then she says, “Okay, I won't go”, so we stopped the court motion, and then after, she says, “I'm going to go anyway.”

Basically, this has been going on for five years. I've had a lot of time to reflect. I've talked to a lot of people. I've seen women who are divorced who are real victims, who bend over backwards to accommodate their children, no matter what jerks their fathers are, like one woman I'm working for right now whose husband took off with a twenty-year-old woman when the third kid was three months old, and she gives him all the access he wants. Meanwhile, I see manipulative women using the system to their benefit. I'm absolutely convinced that there's a prejudice in the system.

I think the law is vaguely written and unevenly applied. I think it's absolutely ridiculous to break the co-parenting unit by giving full custody and getting involved in adversarial divorce and confusing the emotional turmoil of the divorce with the needs of the children. I think it's motivationally perverse to pay enormous child support and then be forced into an arm's-length relationship with your own child.

• 1430

Things are changing. In my situation, I know three men who are the undisputed primary caregivers for their children. Even if the majority of men don't really clean the toilet and take care of their kids, I think men have to be encouraged to do that. I think it's essential for kids' well-being that they do, and I think the law should give the benefit of the doubt to men, not quasi-criminalize them. It's absolutely ridiculous. You go through a divorce and you suffer worse scrutiny than any ordinary person merely because you divorced.

I actually read in the Globe and Mail that it was suggested that the divorce laws were constructed because they were a form of aggressive dissuasion for people considering divorce. What an absolutely ridiculous comment. I know so many people who neglect their kids within marriage, and then all of a sudden you're divorced and a person like me, who fights like crazy and sacrifices income and spends time with their kids, is treated like a piece of dirt.

I paid $12,000 to a psychologist to evaluate my case, and he buys a new Lexus. My lawyer gets to buy a new house. I'm living in a rental apartment in the plateau. I don't know how I'm going to go back to court again. I'm going to have to represent myself.

Anyway, there is so much I could say, but...

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

Our final witness at this time is Joyce Pooran.

Ms. Joyce Pooran (Individual Presentation): I'm just going to talk about what happened in my case.

I was married in 1969 and divorced in 1983. I had two sons, one adopted, one born of the union of the marriage. In 1987, I was petitioned for custody, a new amount of alimony, and $10,000 in arrears. Custody was granted to my ex-husband in 1988. I was told I was an excellent mother and to go and enjoy my life.

My children immediately had problems in school, and with drugs and alcohol. My oldest son was in six schools in three years. He was finally found dead in the middle of the street at 4:30 a.m. Even on the day he was found dead, his father didn't know where he was or that he wasn't home, until his friends started calling. The father of the girlfriend told my ex-husband that he should call the police because something happened on such and such a street.

My surviving son is now 21. I don't see him any more, even though he doesn't live very far from me. They have broken into my house. They have stoned my car—not my children, but actually their friends, because they had a lot of drug-addict friends.

Basically, as my attorneys have said in the past, the doors were opened and the children's lines were cut loose. All their activities were diminished. They were kicked out of school numerous times. They were not allowed to come to see me. They had to sign petitions to go to court and say things about me. The judge said to my children that she could tell they had an excellent mother by just talking to them.

It's now ten years down the road. I no longer have my mortgage-free house. I no longer own my own car. I am now on welfare, and I'm still fighting. I'm still fighting because even when my son died, I had to fight. I had to get an injunction to stop the funeral. My rights had been violated all the way—all the way!—until the death of my son.

In 1992, after the death of my son, I went to the youth court, but still nothing was done there. Actually, I was asked by Judge Ruffo to bring my case to court.

Senator Anne Cools: Did you say Judge Ruffo?

Ms. Joyce Pooran: Yes, in the youth court. We were not friends, but I had known Judge Ruffo through this whole process with my children. I remember the day after my son was buried, she called me and said she was very sorry and that, considering all the troubles I had been through, she heard a lot of peace in me.

• 1435

She asked me to bring it to court, and I did bring it to court, but the case was postponed, and for some reason, Judge Ruffo could not make a decision in my case. She was not allowed to make it, and I think most people know why in this case.

Nothing worked out for my surviving son, and I don't know what's going to happen to him. I don't think I've borne the loss of my son yet because I'm still fighting. I'm fighting to put closure to the issue of his death. I cannot afford to go to court because I don't have any more money.

Most lawyers like my case very much, but they don't want to do it under the legal aid system. I'm having a very hard time with it. I cannot understand the justice system. I just cannot understand. One bad judgment maybe, but two and three, with evidence?

I'm sure, Senator Cools, that you have my file in your office, and that's only one-third or a quarter of the file. I have over 300 pages. I have knocked on every single politician's door, youth protection...I made 51 signalements prior to my son's death and that's only by myself. I had city councillors, schools—nobody did a thing.

At the end of August, 1991, my son went to the high school, drunk, at 9 o'clock in the morning. The child was saying “please, help me” and nobody bothered.

They never bothered to call me. They never want to tell me anything because I'm going to have them put everything in writing and then send it off to the youth protection people.

It seems to me that in this whole thing I was the topic of conversation rather than the children. The real issue was not my children.

So I really have no respect for the judicial system. I'd like to ask this committee who is really responsible here.

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

Senator Anne Cools: It's a pox that we allow this sort of thing to go on.

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

Senator Anne Cools: It's a pox.

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

Ms. Carolyn Bennett: Thank you all for this very important panel. I think every story is important, but from Mr. Solloway...it was a tremendous summary, I think, of what we've been doing as a committee up until now, with hopefully some real solutions.

The one thing that keeps coming back...if we did get rid of the words “custody” and “access” in international mobility issues, what would be your suggestion with child abduction if indeed neither parent actually has custody? Or whatever language we choose. How would you get around that?

Mr. Ian Solloway: Don't forget, we have international conventions already in place. We have the Hague convention, which speaks about the respect between designated states, of existing custody... For want of a better term, I would like to use the words “residential orders”, and to the extent that we all understand what we're talking about, I think it really should not be a great problem. I think there are over 40 states now that are party to the Hague convention on international child abduction. I don't really see that as a particular problem.

To get back to the use of the terms, for practitioners, where we have to live within the system, so often we see custody cases coming down to a question of power and control. You've heard all of this before, but it's true. The reality out there is, “I'm the custodial parent”, and when you are the custodial parent, there's a certain role, there's a certain expectation that comes with that, a role that one lives. One sees that perpetuated. To the extent that can be eliminated, I think we're going a long way towards eliminating the whole adversarial process.

I don't know that it can be done entirely, because the court certainly has a role to play, but what we want to do is reduce the role of the court and get the parents focused in on a child-centred view of the process. Clearly, the only people who have rights in this type of litigation, in my view, are children. Only to the extent that their parents' interests coincide with those of their children do parents have rights. Parents have responsibilities, not rights. We have to make sure that underscores the Divorce Act.

• 1440

I heard the last presentation on grandparenting rights, and so forth. That's all very fine, but we have to focus in on the child. Focus on the child and to the extent that everybody's interests coincide with what's in the best interests of the child—we can get into a whole discussion of that—that's fine. I don't really see that as a problem, to get back to your point.

Ms. Carolyn Bennett: I think we are all coming to this in terms of the winner-loser set-up. Therefore, the winner has to prove that they really are the winner, that they will keep exerting the power, and that there is an issue.

In the other jurisdictions, is it generally that the parenting plan must address those same four issues—residential, financial, decision-making, and dispute resolution—and that those four things must be addressed in every parenting plan?

Mr. Ian Solloway: Typically, the answer to that is yes. I'm given to understand by colleagues in those jurisdictions that they are enjoying tremendous success. The rate of return or relitigation, or litigation to start with, has dropped dramatically in the state of Washington and in England. They're not seeing that much of the so-called typical custody access type of scenarios any more.

Ms. Carolyn Bennett: In your experience, can we get away from the arithmetic lessons? Can we get away from the 50-50? Can we get away from parenting plans having the sum total at the end of the week being 50-50? That's certainly not the way I plan my life.

Mr. Ian Solloway: That probably is going to have some residual impact because of the child support guidelines and because, at least here in Quebec, the time factor impacts on the child support payment. To the extent that you have more than 20% of the residential time, you're deemed under our rules to have a shared parenting relationship for the purpose of child support.

I don't know whether the legislator considered that when the child support guidelines came out, but that's a problem. Although it's not irresolvable, I think it remains a problem today.

But I think we have to divorce, if you will, the child support aspect from the residential aspect. The residential aspect is problematic. We have to focus in on the use of the word “residential” rather than “access”, “visitation”, or “custody”. Get rid of those terms.

The Joint Chair (Senator Landon Pearson): Mr. Forseth, you're next.

Mr. Paul Forseth: Mr. Solloway, based on your comments, I would ask you to clarify on more specific terms what the inherent problems are with rebuttable joint guardianship and custody, residential orders, time sharing, and so on? You were advising us to not go that route. That would be my first question to you.

Mr. Ian Solloway: We know right now that joint custody of course is the exception rather than the rule under Canadian family law. I think the research has borne it out. I know that Judith Wallerstein in California I believe has done some considerable research as to whether imposed joint custody is the solution. I think the statistics bear out that custody works, whether it's joint or sole, if done by way of agreement, but when it's imposed, the likelihood of relitigation is still there.

Mr. Paul Forseth: Let's get back to the notion of “imposed”, because when we have a couple together, they do have joint guardianship, joint custody. So post-separation, to maintain what they had earlier, wouldn't be imposing anything.

Mr. Ian Solloway: Well, except that if you have a situation, for instance—I might be taking an extreme example—where there is an incident of domestic violence and joint custody was the presumption, or you may have situations where somebody opts for a joint custody regime because he or she is afraid of not having any custody at all.

• 1445

In my view, joint custody will not necessarily mean that a parent who was uninvolved to start will magically become involved just because he or she is joint custodial parent. It doesn't mean that; it doesn't work that way. That has been my experience.

I would rather we talk about concrete plans, where we're talking about responsibilities in various areas: residence, decision-making, and who's going to be doing what. Get away from the terminology of custody, whether joint or sole, and deal with the issues that are real in parents' lives.

Mr. Paul Forseth: Let's take you on a slightly different tack. You also talked about responsibility over rights. How would you anticipate that we could write that into the Divorce Act to somehow rejig the system so that it indeed would set up an incentive system resulting in a look at responsibilities rather than pushing for rights?

Mr. Ian Solloway: I think underlining the parental plan approach we're not necessarily talking about responsibilities rather than rights. We're talking about parental responsibilities or obligations in certain very specific areas. To the extent that we're focusing on the word “responsibility” it speaks for itself. I think the notions of the child having the right to have the adequate care given to him or her to be secure, to be provided for, to be maintained, are all notions that can easily be provided for in law.

We, in our civil law in Quebec, have these notions. It's written into the Civil Code. Articles 32, 33, and 34 of the Quebec Civil Code speak of the rights of the child, the right of the child to be heard and the right of the child with respect to decisions made in his interest.

Again, without being repetitive, the notion of the parenting plan approach is child focused, it's child oriented, and I think to the extent this approach is adopted in some fashion, it necessarily assumes a child-centred approach to divorce.

Senator Anne Cools: Chairman, could I have a supplementary to Paul?

The Joint Chair (Senator Landon Pearson): It's your turn anyway.

Senator Anne Cools: I have a supplementary. One hears “Leave it to the judges”, “Leave it to the courts”, and “Leave it to the law society”. Obviously all those premises are very false and very erroneous, because we're seeing a very good example of what is going on.

If I could just take issue with one little statement you said, it was that the parenting plan would be a paramount instrument. I have before me an article by Nicholas Bala, who appeared before us, called “The Best Interests of the Child”. He surveys some of the case law in this article on the judicial interpretations of best interest of the child. Mr. Bala, writing about Madam Justice Claire L'Heureux-Dubé of the Supreme Court, says “she offers an explicitly feminist analysis”. He then goes on to quote her on the case of Young v. Young: “The role of the access parent is `that of a very interested observer”. Dr. Bala goes on to again quote Madam Justice L'Heureux-Dubé: “The custodial parent...has the best vantage point from which to assess the interests of the child.”

I ask you, for any individual going into a courtroom with the judges telling you that this is their point of view, what effect would any parenting plan have on that?

Mr. Ian Solloway: I think it would take the decision-making to a large extent out of the hands of the court, because to the extent that parents are going to be obliged by statute to come up with a parenting plan, we're going to see the courts less and less involved. I think that's really the objective here. We don't want the judges necessarily to be involved. We want parents to be involved in their own post-divorce parenting arrangement. Again, if there is a statutory obligation for parents to come up with a plan, the courts will only get involved to the extent that there is no plan or it is unfeasible. The courts then get into the making of various orders—residential orders, for instance, or decision-making orders. I'm looking at very specific things.

• 1450

Yes, we come down to the best interest of the child. Clearly, that's the test and so forth, but that's in the eye of the beholder. In this case, the beholder is the judge, but I think we've given the courts some other avenue to work with.

Senator Anne Cools: I'm not quarrelling, Mr. Solloway. I think you did a fantastic job. I'm not quarrelling with your sense of a parenting plan. As a matter of fact, I'm a great supporter of parenting plans. What I was trying to say, though, is that even with a good parenting plan, the issue still remains as to what “best interest of the child” means. That is the essential point that Dr. Bala is making here. In this instance, these judges are saying that “best interest of the child” means the non-custodial parent is only an interested visitor.

I would submit to you that, yes, we need parenting plans, but we have to go a little bit farther. We have to do some very mystical work to discover and to give courts some direction, so that they can draw their power from statutes when it comes to what the best interest of the child is.

Mr. Ian Solloway: I would agree with you, Senator, and I would—

Senator Anne Cools: Oh, good.

Mr. Ian Solloway: —agree with you specifically in the case of domestic violence. That is a big issue. I think the courts have a role to play, and it has to be taken into account. We can discuss about whether or not past conduct should be factored into child custody awards. We have the current attitude of the Divorce Act, in which past conduct is statutorily not taken into account unless it impacts on the ability of the parent to parent. I think that's wrong.

Senator Anne Cools: Absolutely, and I understand what you're saying. I appreciate it, and I thank you. There are hundreds of thousands of these cases, and I thank the particular witness who brought in his instance of false accusations, who brought in that phenomenon of the cult. Very often, there are cult-like experiences involved in some of these cases.

When all three of these witnesses were speaking, I thought they rather eloquently related their very tragic and terrible personal circumstances. I wonder if each one could name their case on the record for us so that all the facts will have been put before us and persons like myself will know which cases to call on when we want to pull the judgments in order to read their files very carefully. Could you each put your name on the record, and the name of your case, such as the case of John v. Joe, or whatever it is? I know some of the cases, but can you each please do that for me?

Mr. Robert Spicer: Most certainly. I have provided a written extract of my presentation. My name is Robert Spicer. What else would you...?

Senator Anne Cools: Just put the case name on the record. You see, providing your written material doesn't put it into the transcript.

The Joint Chair (Mr. Roger Gallaway): You want them to read the name of the judgment from the court.

Senator Anne Cools: Right. Give me the name of the document, the reason for judgment in the case of so-and-so v. so-and-so in the court of. What is the name of your case?

Mr. Robert Spicer: My last name is Spicer and my ex-wife's last name is Guenoun.

Senator Anne Cools: Good. So if we could just get it on the record, it was the case of Guenoun v. Spicer—

Mr. Robert Spicer: —and it was in Montreal.

Senator Anne Cools: Right, in Montreal. In what year?

Mr. Robert Spicer: In 1993, I believe it was, under Judge Irwin Halperin.

Senator Anne Cools: Perfect. That way, we have it on the record. We can pull it out and look at it easily.

And yours, sir?

Mr. Nicholas Spencer-Lewin: Lewin v. Jackson, July 1996, Justice Audet.

Senator Anne Cools: Very good, thank you. In which jurisdiction?

Mr. Nicholas Spencer-Lewin: Montreal.

Ms. Joyce Pooran: Pooran v. Rubin, Judge Warren, 1988, Montreal.

Senator Anne Cools: So it's also in the jurisdiction of Montreal.

I thank you very much. I'm intimately acquainted with the cases, and it remains to me an enormous, bewildering profundity as to how we, as politicians, members of the federal Parliament of Canada, have allowed these kinds of things to go on. I thank you for putting this out with as much composure as you were able to muster together. At least people are now beginning to listen, because your stories are so typical. I can just as easily produce a hundred thousand cases as I can produce one case. I have files on these cases in my office. I thank you for that.

• 1455

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

Senator DeWare.

Senator Mabel DeWare: I would like to ask Mr. Lewin something. Could you tell me how old your children were at the time your wife decided you should leave the house, and how old were they when you were able to get access for 38% of the time?

Mr. Nicholas Spencer-Lewin: They were five and seven at the time of the separation. It took three years to get to court.

Senator Mabel DeWare: And you didn't see them?

Mr. Nicholas Spencer-Lewin: No, I saw them. My wife was very calculating about the whole thing. She didn't interfere with basic access. For instance, the interim judgment said that any extra access beyond every second weekend would be à l'amiable. There was zero à l'amiable. There was absolutely no flexibility or extra arrangements. There was no negotiating about anything whatsoever.

Senator Mabel DeWare: Joyce, I would like to ask you this: was it in 1983 that you received your divorce?

Ms. Joyce Pooran: Yes, in 1983.

Senator Mabel DeWare: And it was 1987 when your husband petitioned for the custody of the children?

Ms. Joyce Pooran: That's right, and there was no amount of alimony.

Senator Mabel DeWare: Did you have them until that time?

Ms. Joyce Pooran: Yes.

Senator Mabel DeWare: Why did he petition then at that late date, five years later?

Ms. Joyce Pooran: I think it had a lot to do with money. He wanted the alimony cancelled. I didn't know anything.

Actually, this whole thing was all prepared for six months prior to me being petitioned. He was out of work at that time and said that he couldn't pay me. Of course, I let it go. What's the point of going to court or fighting over money? I thought if he was really genuine in what he was saying that as soon as he started working, he would pay me. So I did nothing about it.

Then six months later, there was a bailiff at my door while I was writing exams. In fact, I was doing a real estate course. The reason I went in for real estate was that I could be home when my children went to school and also be home when they came back.

My children were very close to me, I can tell you. The thing that is really very heartbreaking is that my late son would always say to me that he was really sorry. That really hurt me.

Senator Mabel DeWare: He did get custody of your children?

Ms. Joyce Pooran: Yes.

Senator Mabel DeWare: He ended up apparently not being a very concerned father. There was no discipline. He allowed them to—

Ms. Joyce Pooran: None whatsoever.

Senator Mabel DeWare: Did you think that the reason you lost a son could have had something to do with the fact that they were taken away from you?

Ms. Joyce Pooran: Could you repeat the question? How did I lose custody?

The judge gave custody to the father. She told me I was an excellent mother and that I should go enjoy my life. Enjoyment of life isn't a reason to change custody. She even said to my children that she could tell they had an excellent mother, but that I was talking to them.

I have the judgment. I can give it to you at any time. I have it on tape.

I went back to court after fighting for a whole year. I went to every politician. I knocked on hundreds of doors. I screamed at the top of my voice. I literally watched my children go down the tubes.

Senator Mabel DeWare: I can see that.

Ms Joyce Pooran: I had drug addicts put between my children and me. I screamed at the top of my lungs, and I'm still doing it.

Senator Mabel DeWare: I'm sorry.

The Joint Chair (Senator Landon Pearson): Any other questions? Mr. Mancini.

Mr. Peter Mancini: I have a couple of questions. The first is for Mr. Solloway.

Thank you for the presentation. It's very helpful. As a family lawyer myself, much of what you said rings very true with me.

I have a question for you that came to light for me earlier today when we were hearing from other witnesses. You were talking about the gender-bias issue. The faces of many of my clients come before me when I hear you say that when a man says he's prepared to reduce his income-earning potential to spend more time at home to be a better parent because now he's separated, you have to advise him that he will be prejudiced against if he does that.

Are we challenging here? There is a theory that says the standard of living for the child should be kept as close an approximation as possible to what it was at the time the parties were together. Upon separation, the standard of living of the child ought to be reduced as little as possible because essentially it's not their fault the parties have decided to go their separate ways, which will reduce the household income considerably.

• 1500

Are we challenging that doctrine and saying it may be better for both parents to have to reduce their work time because the children need more time? Are we now saying the standard of living of the child may have to be reduced to ensure a fair amount of time is spent with each parent?

Mr. Ian Solloway: I don't think we're necessarily saying that. The reality, of course, is the child's standard of living in most instances will fall somewhat. We all know the statistics. There are empirical statistics to support the fact that the mother's standard of living falls dramatically in the event of divorce. A single father's sometimes goes up.

I think we have to make certain value judgments here. A father's role has changed over the last ten or fifteen years. Fathers are not asked now by judges, at least overtly, what they know about parenting. That might have been asked twenty years ago, but it's now a given that the father has an extremely important if not crucial role in the development of the child.

We want to try to encourage that. Of course, we want to try to minimize the financial loss, but parents acting responsibly and in the best interests of the child will do what they can to minimize the financial loss.

I think most mothers welcome the input of the father. For every mother who puts a barrier to a father's continued involvement with a child post-divorce, there are 100 who would encourage that involvement. We have to make sure we're on the same wavelength. We may well want to try to accomplish everything, but the important thing here is to get the parents involved in parenting post-divorce, and let them come up with their solutions.

Mr. Peter Mancini: Okay. Thank you.

My second question is to the other members of the panel, each in turn. I thank you for presenting to us your own particular histories. But very little, if anything, we've heard from Mr. Solloway would have done much to help your particular cases that have come before us.

I've been reminded by one of my colleagues of the Australian model of a special judge, because whether we have joint custody, shared parenting, negotiations or mandatory mediation, we take it out of the adversarial system.

When I hear each of your particular cases, I don't think, from the rough scratch you've been able to give us in this timeframe, mediation would have worked or a presumption of joint custody would have worked. One gentleman has told us—and I do want to hear your response—how cunning and able to manipulate his ex-spouse was. I assume the situation is the same in your case, and there were powers they could exercise.

Sadly, and I hope I can hear something, you represent to me the difficult situation that in some cases there is no other course but an adversarial process and a final arbitrator, who has to hear the evidence and make a determination.

Without getting into the personal history, because we only have so much time, is there one thing you could tell us that would have resolved your situation faster or better that we could put into legislation? I'm sure each of you would say “If the judge had given me custody at the get-go we would have been saved all of this”, but that was not going to happen given your own personal histories. So what solutions can we implement in legislation from your experience?

• 1505

Ms. Joyce Pooran: I would like to say, first of all, it is the judicial system. What is happening here is that the parent who is doing this is aided and abetted by the judicial system, by the social service system, by the school system. Why is this?

In my case, for instance, the schools were there. The letters were there from the schools. The schools told the courts the children were going down, down, down. The situation was getting really bad. The judge supported me for two days. Then when the social worker made a report, the focus was on me instead of my children. Always the focus was on me, because I rocked the boat.

The focus has to be on children. I hear so often “in the best interests of the child”. Can anybody tell me what the best interests of the child are? You've heard all these cases. I haven't heard one thing in the best interests of the child yet from the system.

Mr. Peter Mancini: But is the answer to that to make sure you have more access to free legal help so you can continue the fight?

Ms. Joyce Pooran: Yes, I would like to finish my case.

Mr. Peter Mancini: Is the answer to that to make sure you have access to free psychological reports immediately? What are the answers to that? I am asking you to help me find those answers.

Ms. Joyce Pooran: I think one of the things is that we have to put more effort into children. We have to educate the judicial system and the social services system.

I think we need to get away from all these expert witnesses. The best expert witnesses you can have are the people who are actually with the children all day: the schools, the principals in the schools, the guidance counsellors. I think the guidance counsellors are terrific. They really give a good...

Mr. Peter Mancini: Okay.

Mr. Nicholas Spencer-Lewin: I think mine is an extreme case, where my kids went through a lot of crap. It could have been mitigated or the situation could have been put within reasonable boundaries just by really respecting the notion of best interests, by looking at the status quo of the children and trying to keep the children roughly where they are.

In my case, my wife was able to take the children out of town into a religious sect. If they really had looked at where they were, where the whole family was around them, what was going on, if there was some respect for the non-custodial parent, even if they give the woman custody, they would have tried to keep the access with both parents and kept them in town, and then they wouldn't have gone through all this crap.

Even in an extreme case when you have to have a judge for an arbitrator, I think the judges are so... I go through this case and I just have a notion of common sense. I am watching what has happened to me, and I find that one judge sitting up there, with no answerability, as if this were resolving a dispute between two children who are arguing and you can't tell who's telling the truth, doesn't have the capacity to know.

Mr. Peter Mancini: So are you suggesting a different method of applying to the judges? I would like something more concrete.

Mr. Nicholas Spencer-Lewin: I think the judge should do nothing but sign the final agreement, and this should be dealt with by not one individual but two or three people who are health professionals, not bloody lawyers and judges—somebody who is sensitive. There has to be a dialogue that is humane, which means a give and take.

Mr. Peter Mancini: With respect, would that have happened with your spouse?

Mr. Nicholas Spencer-Lewin: If you have to sit down in a room and talk or lose your right... You keep the status quo, and whoever wants to be the one that leaves can say goodbye and go. There is an onus to respect the children's status quo and try to stay around them and accommodate them, even if one person has custody.

Mr. Peter Mancini: Thank you.

Mr. Robert Spicer: It's interesting. We're talking here, but in the real world there is very little thought and a lot of hate and a lot of anger and a lot of recruiting the biggest guns you can get, a lot of lying, and often it doesn't work.

I'm very grateful that I have good friends and have received good advice. It cost me a lot of money. It cost me things that we can't really put a value on. I was committed to my children, and I had a lot of support.

I've heard a lot of good ideas here. As far as presenting a parenting plan, I think this is an excellent idea. I did all these things, and it still took me two years and eight months and a lot of money to get to court.

I think when we're talking rationally, as we are today, a lot of things can be done.

But there is a lot of incompetence in the expert witnesses, and there are a lot of prejudices.

The Joint Chair (Senator Landon Pearson): Just a supplementary, Senator Cools.

• 1510

Senator Anne Cools: You're raising very important issues, like the assessments, the expert witnesses and the entire huge massive industry that has grown up around it, but one issue that the three of you haven't touched on is the role of certain lawyers in the whole processes. They want to raise these affidavits and these court documents. You really have to wonder where the lawyers are at when writing some of this and advancing some of this nonsense. I wondered if any of you three...I'm sure Mr. Solloway has encountered that many times. It's just sheer unscrupulousness. Quite often you're dealing with malice, hatred, revenge, and unscrupulousness.

I just wondered, of the three of you who have gone through these kinds of ordeals in the hands of the system...because I noticed that—I'm sorry, I keep forgetting your name, sir—

Mr. Nicholas Spencer-Lewin: Nicholas Lewin.

Senator Anne Cools: Mr. Lewin, you referred to the shock and the let-down that you felt from the system when you realized how it was really working. Most people go into these systems saying, “Oh well, justice will be done. I don't have to worry. I've done nothing wrong. Certainly any judge can see it.” And these people get stunned. They're knocked flying into orbit.

I've read a lot of the documentation and I don't understand why so many of these lawyers advance these very obvious falsehoods. I wondered if anybody has.

Mr. Nicholas Spencer-Lewin: I swear, I don't know how my wife's lawyer sleeps at night. I'm not kidding. I wouldn't get in the same elevator with the guy. The first affidavit I was served with was so absolutely... I'm telling you, I had to go to the doctor and get tranquillizers. I couldn't believe it. She accused me of abusing the children. She said she was severely abused and she was a battered woman. In our marriage, she called me an “artist” and derided me for not earning enough, and then on this affidavit she said that I was severely underreporting my income and claimed I earned three times more than I did. Everybody knew I took care of the kids, and she said she was the primary caregiver and couldn't figure out why in the world I'd want to have anything to do with the children. It literally put me in a state of shock.

Senator Anne Cools: We're still in a state of shock.

Have any of you forwarded complaints to the law society? If so, what happened then? The lawyers tell us to leave it to the lawyers.

Mr. Peter Mancini: I just need a clarification. The lawyer didn't say that. Your wife swore the affidavit saying that.

Mr. Nicholas Spencer-Lewin: But the lawyer—

Mr. Peter Mancini: The lawyer took her affidavit.

Mr. Nicholas Spencer-Lewin: That's right.

Mr. Peter Mancini: Thank you. That's the clarification I wanted, Senator.

The Joint Chair (Senator Landon Pearson): Are there any other comments?

Mr. Robert Spicer: My ex-wife has had maybe 18 lawyers, and I must say that I thought most of them gave her good advice, but she refused to take it. My firm, a firm in Montreal, was very fair, I think. I listened to them. I didn't always agree with them. But most certainly, you have to seek good professional advice and you have to listen.

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

Senator Lucie Pépin: I think Mr. Mancini asked a question I wanted to ask, but there's one question left. Many people tell us that every time they go to court they see a new judge. You say, Mr. Spicer, that you were lucky you had the same judge.

But I was wondering, Monsieur Lewin, did you have to start your history and your case in front of new judges every time you went to court? Or was it the same judge?

Mr. Nicholas Spencer-Lewin: I've been in front of five judges, but the judge who heard us for six weeks decided to remain seized of the files for future hearings, which doesn't do me any good, because I can't afford to go back in front of him anyway.

Senator Lucie Pépin: D'accord. Thank you.

The Joint Chair (Senator Landon Pearson): Thank you all very much for your stories. They really add to our sense of what the issues are. Thank you for coming here today.

• 1514

• 1522

The Joint Chair (Mr. Roger Gallaway): Order, please.

[Translation]

I am sorry to have to tell you that we are in our final hour of today's hearing.

[English]

We have before us three witnesses: Mr. Boucher, Mr. Gadoury, and Ms. Kalaba. I think we'll start with Ms. Kalaba.

Ms. Besime Kalaba (Individual Presentation): Thank you.

Bonjour and good afternoon, ladies and gentlemen. In the next five minutes it will be very challenging for me to explain to you what my children, Tirana who was five at the time and is now ten, and my son Dashmir, who was three then and now is eight, have experienced in the last five years.

The pain and suffering and loss of enjoyment from life is indescribable. For the past five years, the experience of which is still going on, I have found there is absolutely no justice in the courts when it comes to custody and access issues. This goes all the way from provincial to general division courts. This, however, does not exclude the areas of injustice that include social service programs, the Ontario Legal Aid Plan, the Family Responsibility Office, Employment Insurance, children's aid societies, the Office of the Children's Lawyer, and even what is now taking place in the workforce.

I have been placed and forced into a legal maze with no way out. I have faced many judges. In my case, the judge who has been hearing my case is the honourable Judge Brownstone. He is a judge who makes orders not based on facts. He refuses to allow a party to elaborate. He refuses to reread and cross-reference any motions. He hardly ever reads any affidavits that are prepared before him. The behaviour and conduct in the court room of Judge Brownstone and some judges I have been before is unacceptable and is something not really to be desired.

Just to give you an idea of Judge Brownstone's conduct during my motions and hearings that have taken place in his court room, where I have been forced to represent myself, he constantly interrupts the person who is speaking. He has little or no patience. He has a short fuse. He makes accusations and allegations. He gives his own beliefs and opinions. He answers his own questions. He does not permit evidence to be brought forward. He makes orders and judgments not based on the facts. He raises his voice by shouting at you. He intimidates you. He threatens and persecutes without even knowing the facts. He attacks. He has no compassion, mercy or sympathy. He is easily annoyed, becomes cross, and is angry at the world. The list goes on.

• 1525

I believe this particular judge, Judge H. Brownstone, has gone mad and is impossible to speak to. To give you one small example, prior to one of my hearings, which, if you would like to know, is court file number D169/97, Judge H. Brownstone, on December 18, 1997, actually raised out his hand, pointed his index finger at a gentleman and demanded that he be quiet and listen to him because he was the law. He stated in a very loud voice, actually shouting out loud, “You be quiet and listen to me. I have the power in this courtroom and you don't. When you're in my courtroom you have to listen to me.” Boy, I was really looking forward to having my case and my notice of motion heard before him.

I come from a background of earning over a quarter of a million dollars in sales, having owned three Cut Above hair salons, a triplex, a home, and six businesses, all of which have been owned and registered in my name upon my ex-husband's request and demands. This is not to mention a shop that is equal to 5,000 square feet that we have built together over a 12-year period.

This is where the injustice begins. One party decides to separate, leaving with all of the assets, and the other party is left with all the debts incurred from the marriage. Because one party refuses to pay suppliers, loans, mortgages, the other party is left to face her home being repossessed and hair salons going bankrupt, upon the other party's efforts. Properties are sold and bank accounts are emptied from the matrimonial account. It goes right into the solicitor's account, without any aid. Business assets are removed and relocated, leaving myself and my children homeless.

One goes to social services for aid, and a financial statement is required for the businesses over which you have sole proprietorship. One goes to legal aid, and a financial statement is required. One goes to a solicitor, and, prior to even being retained, a financial statement is required, because with the financial statement a lawyer will decide whether or not he really wants to represent you. When you go to the Ontario court, whether it's at the provincial or even the general division, you are also required to bring an up-to-date financial statement.

I am sick of financial statements, when one party has removed all of the assets and records from the other person's possession and you cannot produce any evidence.

I am a mother who has been forced to represent myself. My lawyer, Kelly A. Simms, took ill and was forced to give up the practice of law. To make it even worse, the firm can also go to the courts and put in a notice of motion to remove themselves from the record because they have prior commitments and scheduling that can't permit me to be in there. The courts actually grant this without even allowing the party to speak, and then they are left alone to face the aforementioned authorities.

When one gives consent to the other party because one is led to believe it is in the best interests of the children and chooses not to fight or confront the courts to be successful because it is in the best interests of the children...after five years of giving consent upon consent for the best interests of the children, the courts have turned these consents and now have actually pointed the finger at you by stating you have abandoned your children.

I'll give you an example of the process from where it all started. In 1994 my son was attacked and mauled by a dog on my property. I in turn went to his aid and saved his life. In the process of doing that I almost lost my right arm and my left arm. My daughter witnessed this attack on us. The children were sent to their father's care for only—and it was made very clear—a temporary time until I could regain the use of my arm.

Upon going to retrieve the children, one is told no, take me to court. Prior to going to court, because I wanted to maintain peace and not bring any upset to the children, the advice I was given from Detective Brad Brigham from 52 Division was: “Don't play tug of war with the children, for the children's well-being. Get a lawyer. If you choose not to take our advice, you are taking the chance of starting a domestic assault on yourself. Your husband is still on a bail condition, and you have already been advised by West Gwillimbury Police not to confront him unless there is a third party. Madam, please get an interim court order and we will assist you.”

Constable Mike Cannon of the youth bureau of 52 Division says: “Trust us. If you follow the law, it can't be used against you. Trust us. If you follow the legislation, you will always win in the end. The children are young. They're only three and five years of age. They are dealing with a lot right now, especially your son, who is just recovering from a dog attack, and your daughter, who is now seeing a psychologist because she witnessed the attack. If you go to the respondent's home or the children's school and attempt to retrieve them, the only thing you will accomplish is the courts will see you as someone who responds irrationally, and that's not in your best favour.”

• 1530

I go to the Ontario Legal Aid Plan, and they also suggest that the police are correct; it is better to go by the law. The Ministry of Community and Social Services said: “The police advised you well. I have seen too many mothers come in here bruised and assaulted by their husbands trying to retrieve their children on their own without the assistance of police.”

The Joint Chair (Mr. Roger Gallaway): I'm sorry to interrupt, but you're well over five minutes. If you have some very specific recommendations you can give to us, please, do so, but if not, we'll end it.

Ms. Besime Kalaba: Yes, I do.

The Joint Chair (Mr. Roger Gallaway): I wonder if you could make the recommendations then.

Ms. Besime Kalaba: One of my recommendations is I would like to see a matrimonial history chart, a present status graph chart study commenced. This graph chart will indicate the peaks and valleys of drastic changes. It's a two-line graph chart that indicates one party's past financial, emotional, and psychological being and also the present status. When the two charts from both parties are combined, it will zero in on the parties' whole life situation and it will also show which party's life has been interrupted psychologically, emotionally, and financially. The other chart will also show the other party's, whether it's high or low.

The study flow chart will zero in on the party whose life has been interrupted and whose life has not been interrupted. This will indicate both parties' financial, emotional, and psychological conditions prior to divorce or separation and after.

The second part of the family aptitude test or study—and I don't know what you may want to call it—will show the access time and the financial support of the children from both parties. The chart will also indicate, when they're combined, whose days stand where.

Of course there has to be a way of monitoring access time for the children between both parties. This should be monitored from the time of separation and up to two years, and it should be done every three months. This can also be monitored by phone. It can be monitored by mail or even by using our ATM machines, which are readily available across Canada. It can be entered into this computer.

For quick access and availability, ATM machines are highly suggested because they are readily available. Not only will this monitor show access time, but it can be used as evidence in court. It will also create new jobs in Canada and a new department development for monitoring this type of situation that our families are facing.

The second suggestion—

The Joint Chair (Mr. Roger Gallaway): I'm sorry. How many more do you have?

Ms. Besime Kalaba: I have five suggestions.

The Joint Chair (Mr. Roger Gallaway): You're going to have to go much faster. I'm sorry, but you were aware that you only had five minutes, and you're long past that.

Ms. Besime Kalaba: Yes. I did time myself. I thought I spoke fast enough.

The Joint Chair (Mr. Roger Gallaway): You're probably at about nine minutes at the moment, so you have one minute.

Ms. Besime Kalaba: If suggestions that have currently not been before the committee are not applied immediately and if actions are not implemented, our society will be faced with an increase of crimes conducted by children because the system has failed. All they're showing our children today is that other authorities have more power than the parties who have created them. We are showing children in Canada that their hope and faith, their rights, will be exercised by authorities other than their parents. The current system is only encouraging the children in Canada to turn to crime, to sexual promiscuity, to drugs, to alcohol, to prescription drugs and to suicide, not to mention other activities, because they are turning to other means for assistance.

This is what children and parents in Canada have to deal with, while the government, with the assistance of the courts, refuses to be accountable for it. It is not only the children of Canada and the parents, the citizens, and the Government of Canada; it is also God who is crying out to help the children be guided, protected, educated in the areas that He originally intended. God is speaking to us and to His people. He wants to wake you up and wake us up in Habakkub 1:4. The law is paralysed and justice never prevails. The wicked hem in the righteous so that justice is perverted.

• 1535

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

[Translation]

Mr. Boucher.

Mr. Jacques Boucher (Individual presentation): Thank you. I would first like to say that little consideration is given to our children. When they are separated from one of their parents, they are not removed just from one parent, but also from the friends of that parent, from their grandfather, grandmother and cousins. They are discriminated against because they are deprived of exposure to the same range of ideas they would otherwise have, since there may be two different sets of philosophical ideas in two families. There are also different activities which can be undertaken. I would say that for about 18 years the child is mistreated, and then people wonder why there is violence.

I would propose that we adopt the German legislative model which will come into force on July 1st next and includes a presumption of shared custody in every case of separation and divorce. I prefer this model, which gives the children access to their parents on a daily basis. As you will appreciate, having access to one's parents, even for only two minutes in the morning, is very important for a child.

You must also put an end to parental alienation, to false accusations and those situations where one of the parents can restrict access to a child. The rights of a parent should never be increased on the basis of accusations. Rather, in cases where a parent makes false accusations or fails to comply with the legal system, access should be reduced. For example, access could be reduced to a half day or one evening a week for a three-month period. Such a penalty should not be too tough or too long-lasting, because the child is being penalized at the same time. I think that is the kind of thing that should be done.

Furthermore, the rights of a parent should never be reduced on the basis of groundless accusations. What is happening at the present time is not difficult to understand: insinuations are made before the Youth Court, and a decision is made to limit an individual's access. As is well known, such groundless accusations could not be made before a criminal court. In my view, this is a complete denial of justice because such insinuations are not based on fact and serve only to create doubts in the mind of the judge. A parent's access should never be reduced on the basis of such a system.

There should be a mediation process during which parents are informed of all the negative consequences their child might suffer if they denigrate each other. Most parents are not informed of such consequences and do not understand the impact such behaviour might have.

I have summarized the main points of the brief I sent to you. I also submitted a complementary document. Thank you.

The Joint Chairman (Mr. Roger Gallaway): Thank you. Mr. Gadoury.

Mr. François Gadoury (Individual Presentation): My name is François Gadoury and I am the father of two children. I have been through a long legal saga.

I got married in August 1988. I was then working for the Canadian Armed Forces. The following summer, that is in August 1989, I resigned from the Canadian Armed Forces and returned from Belgium to Canada. I had a pension fund, an RRSP, etc. I was working in the insurance business, and things were going well.

• 1540

In the spring of 1994, my ex-wife and I decided to buy a house. Strangely, one month later, in March 1994, my wife asked for a separation, and the legal saga began. In July I moved alone to the house which we had bought together. Things started to go badly because my wife, who had been working until the time of our separation, had left her job. That was advantageous to her because she could then use legal aid.

On December 27, 1994, after the first Christmas following our separation, a decision had already been handed down regarding access and I was going to fetch my children who were to stay with me for a one-week period during the holidays. But then I was accused for the first time of assault and making death threats.

In view of all the procedures and other necessary arrangements, the trial did not take place in the end until September 14, 1995, although certain conditions had to be complied with until that date. As a result, since we shared custody of the children, whenever my wife brought the children to me, there had to be a witness there, and there also had to be a witness whenever I drove them back to Trois-Rivières.

In June 1995, my wife arrived two hours and ten minutes late, and my witness, who was with his wife and three children, was unable to wait until she came. What is strange is that on the same day my wife filed a second complaint at the police station stating that I did not have a witness. Just imagine the situation; she arrived two and a half hours late, thus failing to comply with the civil judgment handed down, but I was the one accused in criminal court of not meeting the conditions. That seems to me totally illogical. That same evening, the police came to my home and asked me what was happening. I told them that I would probably go and see my children on Sunday and that I would speak to my lawyer, partly because the case was still pending. The following Sunday, that is July 11 1995, I went and made a statement at the police station indicating that the complaint was groundless, that my wife had not arrived on time and that she had failed to comply with the civil judgment on access, which specified at what time she should come. I didn't hear anymore about it for some time, but one day I received a summons delivered by a process server accusing me of breaching the conditions laid down. I couldn't get over it!

I was acquitted in my first trial, which took place in September 14, 1995, and where I was accused of assault and uttering death threats. According to my logic, the second trial made even less sense: I was accused of breach of conditions, when it was my ex-wife who had arrived two and a half hours late. Moreover, I reminded myself that I was acquitted in my first trial. At the time I had an insurance bureau, and I had decided to call the Crown prosecutor to try and do something and show that the situation did not make sense. Nevertheless they decided to take the case to court.

So I had to appear in Repentigny on October 25, 1995, on a charge of breach of conditions. I was obviously acquitted. The judge found it ridiculous. I didn't even have to testify once my ex admitted that she was two hours and ten minutes late. I do not understand what I was there for.

The Joint Chairman (Mr. Roger Gallaway): Excuse me, but your statement has already gone on longer than five minutes. Would you like to raise any specific points, propose any changes or make any recommendations?

Mr. François Gadoury: I was at the third change that was laid, and it's important for me to tell you about it. The same police officer who had showed up for my second charge came to my home at 4:30 a.m.

I would recommend that before arresting someone and starting legal proceedings you should make sure that the charges are based on facts. Perhaps there should be a more detailed investigation.

• 1545

It is quite clear that given the outcome of my second trial, I lodged a complaint with the police ethics committee. the complaint was accepted and referred to the police ethics committee last December. I then learned that the investigator had never conducted an investigation and that he had sent the file directly to the Crown counsel.

I find this situation regrettable, because I had gone to the trouble of making a statement and showing that the charges did not make sense. I had even included a copy of the civil judgment. I cannot believe this legal system. I had to face three criminal charges, including one from the DYP. I do not understand why nothing is done with people who bring false charges.

Moreover, curiously, the lawyer for the police ethics committee asked the same question of the lawyer who accepted the complaint: “Why did you not charge the woman with wrongdoing?” It was clear that the situation made no sense. At that time, I had to get rid of the house that I had bought with my pension from the Canadian Forces and my insurance bureau, all because of these false charges. In the end, even if I was acquitted, I see that the person who brought the false charges managed nevertheless to get out of the situation. That makes no sense. Moreover, the DYP forces us to have witnesses to use our access rights. It is incredible.

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

Our next witness will be Mr. Duchoeny.

[English]

Mr. Joel Duchoeny (Individual Presentation): Do I have to press anything?

The Joint Chair (Mr. Roger Gallaway): It's automatic.

Mr. Joel Duchoeny: Then my tax dollars are being spent well.

I'm not a professional speaker, so I'm nervous as anything, probably like these other people are, since we're discussing the most important part of our life, the most important thing to us. I've prepared what I consider to be a very good document. I hope you read it. I know you probably have a lot of things to look at, being here and being across the country for many days.

To summarize a little bit, I was married for about six years. This summer I'll have been separated—whatever you want to call it—for almost two years. My ex- or estranged wife had two children from a previous marriage, a now-18-year-old girl who is mentally handicapped with the mental age of a 2- or 3-year-old, and a 15-year-old boy. Together we had a child, our daughter Erika, and we both love her dearly. She's tremendous, as every parent knows their kids are.

At the time of our separation, at the interim hearing, we had come to an agreement on access to the child. I would see my daughter two times one week and then the weekend and two times the next week for supper with no weekend. That seemed to work okay, but after a little while I felt metred. I had to watch the clock, and with a 6-year-old that's pretty hard. You know, they don't get dressed when you want. So I felt that was unnatural.

My wife started to send me lawyers' letters if I brought my daughter home late—that's after eight o'clock—even though she was putting my daughter to bed at eleven o'clock—not sometimes; this was her regular bedtime. We then started this battle.

I asked her to repackage my first week so that I would have my daughter for a continuous time and we wouldn't have this transfer problem. I would then get to see my daughter in a more natural way. My daughter wants to live with me. That's what she says, but I realize she wants to live with both parents because she really loves both of us.

At this point, when I asked for this, I tried to get it through my wife's own social worker, who agreed to the plan and thought it was a good plan. My wife, however, wouldn't even discuss it. Consequently, we went to court and we went to a child psychologist. Suddenly, I turned from being a wonderful father to our children to being...I can't say it here. I went to being a monster, a psychopath, I don't know, whatever other words... I was in need of psychiatric care, but for years and years I was the best thing since Swiss cheese. The court recommended that we see a child psychologist selected from a court list.

Unfortunately, I lost. Otherwise, I wouldn't be here. Not only did I lose, but my wife didn't ask for much of a change. She only asked for one supper less than I already had every two weeks. She had given me my daughter at Christmas time for some extra days because she was on vacation, so obviously I wasn't so bad, in spite of her rhetoric.

• 1550

Her name-calling and all of that only started when I asked for my daughter in a different package. But the psychologist found that my mother—no, not my mother, I mean my wife...God, what a Freudian slip! The psychologist found that my wife—sorry about that—was a Mother Teresa and I was a whatever and cut my time even more than my wife had asked.

The terrible thing here is that my wife's own friends are laughing at this. They know what she's like. They know her. They love her. They care for her. They're her friends. If my friends were drunk, I would tell them they were wrong—and her friends are telling her she's wrong. She's depriving her daughter of her father who loves her. She loves to be with her father and I love to have her with me.

All that really happened was that my wife presented herself better in front of a psychologist. I said what the psychologist wanted to hear. I told her why I was angry. There are a lot of reasons why I'm angry. My wife has done a lot of things. And the psychologist didn't verify anything. I gave her places to verify, with social workers, with my wife's social worker, with the school, with the banks, with the things she could use to verify that my wife was being dishonest.

Somehow, in one little room with a chair and everything, she summed up everything. Given what was at stake, which was my daughter, she owed it to me to verify these things. This isn't a matter of “whoever presents themselves better in front of a psychologist wins their daughter”. So now—it sounds good to most people—I see my daughter from Thursday night to Sunday night one week, which is great, but the following week I don't see her for 10 days. I see her for three hours in 10 days.

To give you an example of what my wife is doing, last week or two weeks ago my daughter had chickenpox. The week or two weeks before that, also on my time, she had the flu. So I asked my wife for a make-up day when my daughter got over the chickenpox so I could have her with me. I saw her for 3 hours in 19 days: “I'm sorry, but we have to apply the schedule”. There is no goodwill. This is the type of person the psychologist saw as a good mother who does everything. Again, the hardest part for me to accept is that even my wife's own friends are laughing at the psychologist's report.

If you punch me in the face and we both know you did and then somehow you win in court, we both still know you did. That's what's happening.

I do this better in this report. My daughter and I have a bond that's amazing. You can read the report. It's much better. I am much calmer in it.

There's one thing I wanted to add because you asked for a point from the gentleman at the end. I didn't prepare a point. I only came in with this story. It's that—

The Joint Chair (Mr. Roger Gallaway): That's fine. You've prepared a brief and—

Mr. Joel Duchoeny: Can I just state the point, though?

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

Mr. Joel Duchoeny: Unless a child would be removed from the father...when the family is together, unless the father is maybe a molester or an alcoholic—I don't know what the categories are—the father should be entitled to at least 50% when the parents are separated. There is too much opportunity for abuse by both parents—opportunity to fault the other one, to slander the other one, to play the games. That's what's happening.

If I was a good enough father that there was no question about it when I was married to my wife, then anything after... Let's face it, it has to be tainted from both sides.

I've spent a fortune on lawyers. My wife pleaded that she had no money, even though she just leased a $30,000 car and kept our live-in maid for nine months. I'm paying $20,000 a year for one child. I pay for the private school. I pay the insurance. I paid my lawyer. I paid the psychologist. I'm going to end up paying her lawyer. And I don't see my child?

There's too much opportunity and reason for abuse here.

The Joint Chair (Mr. Roger Gallaway): Thank you. We're going start questions, with Mr. Forseth.

Mr. Paul Forseth: Thank you.

The judgment was made on what date?

Mr. Joel Duchoeny: The last judgment, the interim divorce judgment, was February 16, 1998, just last month.

Mr. Paul Forseth: But what about the trial that gave custody to the mother?

Mr. Joel Duchoeny: That was on February 3, 1997.

Mr. Paul Forseth: What court was that?

Mr. Joel Duchoeny: Downtown, here in Montreal.

Mr. Paul Forseth: And who was the judge?

• 1555

Mr. Joel Duchoeny: The first judge was Gomery, but there was no contestation of the first judgment. We were both happy with it. We had the child pretty well equally.

Mr. Paul Forseth: There was a subsequent judgment you were unhappy with.

Mr. Joel Duchoeny: The subsequent judgment was just last month.

Mr. Paul Forseth: Who was that judge?

Mr. Joel Duchoeny: I wasn't there. It was an interim. We were trying to delay it. I was told it would be delayed. I was shocked when they made a judgment.

Mr. Paul Forseth: What level of court are we dealing with?

Mr. Joel Duchoeny: I don't know. I could find out for you. It's an interim divorce court.

Mr. Paul Forseth: What is the name of the respondent? Your name is in the record, but what is the name of the other party?

Mr. Joel Duchoeny: Harriet Gold.

Mr. Paul Forseth: Okay. Thank you.

I'm going to refer to Beauchesne's, 6th edition, section 493.

The Joint Chair (Senator Landon Pearson): Tell them you're raising a point of order.

Mr. Paul Forseth: It's okay.

On page 150 it reads:

All references to judges and courts of justice of the nature of personal attack and censure have always been considered unparliamentary...

Near the end of the citation it says:

The Speaker has cautioned members

—that's members of the House of Commons—

to exercise great care in making statements about persons who are outside the House and unable to reply.

We certainly can be very critical of judges in their rulings and cases, but I think we must be careful about making personal attacks on them as individuals and people.

At committee, we must be careful about this quasi-judicial body criticizing another court, but we have conducted our hearings and proceedings in a somewhat relaxed manner to facilitate evidence, and we do the best we can.

Perhaps in this case we've allowed our liberty to go too far in the personal references to a judge. On behalf of the committee, I would like to say we apologize for that and will try to govern ourselves a little more circumspectly in the future.

I have heard from all four of you and the general theme is, how in the world do we get to the truth? You've given us clear examples of how perhaps our adversarial system sets up an incentive system for one side or the other, where it would be in their interests to lie. That would help them, especially in view of the reputation that to do so and commit perjury brings no consequences. Also, you have outlined the fact that our justice system is a very blunt instrument, and you may be asking it to do things it might not be capable of doing.

So, in a summary sense, I would just like to see if I can get some kind of one-liner or thought from each of you as a result of your experience with the justice system. What would you have wanted from that system? Obviously, you would have wanted a judgment in your favour, but what would you have wanted beyond that, to help us change or adjust the system in some way to begin to reduce the number of cases that have turned out as poorly as yours have? What is your one observation or recommendation to somehow change the system?

[Translation]

Mr. François Gadoury: As I said earlier, I think that there must be an investigation when charges are brought against someone. I do not understand why the declaration was not verified by an investigator and why it was sent directly to the Crown counsel. Nor do I understand why, in my case, when there was a witness up until a certain time, in the second charge that she laid against me, the investigator did not even check with the witness as to whether it was true or not.

If there had been an investigation at the start, perhaps there would not have been a trial. Moreover, once a second or a third charge has been brought, someone should perhaps question whether or not there is abuse. Arresting the father just because the charge is brought does not make much sense.

Mr. Jacques Boucher: I think that shared custody would resolve a number of problems. As I mentioned earlier, if the person who brings the charges lost some of his or her rights, he or she would be less likely to bring charges, especially if the person had nothing to gain with respect to the custody of the children, whether the charges were true or false. If there were no advantages to be gained, the person would not bring the charges.

• 1600

[English]

Mr. Joel Duchoeny: For most of us, I would think that going to court, standing in front of a judge, talking to a judge, and preparing yourself is very draining and emotional. I don't want to go again, not financially. I'm spent emotionally. I can't go again. It's not in anybody's interest. It only builds up animosity between my ex and myself. There's no reason for that.

The courts themselves come across as very holier than thou. You can't say anything. I'm just a normal layman: I want to say something to that person, but you're not allowed to. There's this and that.

Therefore, I don't think this is the medium to handle divorce. Divorce is not a crime. It has to be mediated somehow. Mediation means we start off as equals. We all want an honest, fair, and balanced decision, and the only way to start off with that is for both parents to start off at the same level.

The courts don't do that. The scales are there to show that they're going to flex in one way or another. So the courts are not the means to do this.

Ms. Besime Kalaba: Monitoring systems, such as the one I mentioned earlier, will eliminate totally pointing a finger at the parties, and it actually will zero in on the family that is exposed to, subjected to, or experiencing financial, emotional, or psychological abuse. This type of abuse eliminates the courts for aiding, abetting, and supporting the abusive party or the party who was committing the crime. This will also eliminate the people who are committing the crime from the court for being accountable.

The other area that I really find difficult that I have experience in is the improper use of child support payments by the party. A child support payment made to the party is no guarantee that the payments are being used for the best interests of the child's education, clothing, extracurricular time, medical attention, entertainment, or trips.

In joint custody access, a trust fund should be established where money is credited and debited for the use of the child's well-being and welfare. Child support payments are at times meeting only one requirement, and the other requirements are not being met at all. So therefore, when the child comes into the other party's care, additional money is pumped out because needs have not been met by the parent receiving child support payments.

Mr. Joel Duchoeny: One other statement. I noticed that judgments are made against the father because the mother usually ends up with the child. Given that there's only a ruling against the father, there's a line to measure.

When I brought my daughter back at 8.15 p.m., 8.03 p.m., or 8.20 p.m. instead of 8 p.m., you could measure that. I had no way of monitoring exactly what you're talking about in terms of the money she spent or what time she put the child to bed. I couldn't counter that. She used that as a weapon.

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

[Translation]

Ms. St-Hilaire.

Ms. Caroline St-Hilaire: Thank you very much. We have heard four rather sad stories. I agree with you that men and women are equally responsible for their children; they are both equal. I think that it was Mr. Boucher who said that children should have access to their parents at all times.

I wonder about cases of violence and cases where charges are laid. Are they false? In principle they are not, at least not in my opinion. In court, whether we are talking about men or women, how can you prove anything? For example, I have heard a lot of stories of abused men and women. How can you prove that in court? You talked about investigations. At any rate, I think it is difficult to prove. How can you provide evidence of that in court?

Mr. Jacques Boucher: If it cannot be proven, then charges should not be laid. It seems to me that it's the least they could do.

Ms. Caroline St-Hilaire: Okay. If I'm alone with my spouse at home and he beats me up, how can I prove that the next morning, or perhaps even in six months? The next day it would not be that difficult because I would still have the marks. But six months later, how could I prove that in court? I would have some trouble, wouldn't I?

Mr. Jacques Boucher: Well, there are marks. It is clear that if there are no witnesses it is a bit more difficult. But the same is true for any other act under the Criminal Code: charges must be based on facts. A child should not be penalized based on an account of violence of that nature. The child was not abused, the woman was. That's something different. As far as I'm concerned that is another issue. The child has a right to see his parents.

• 1605

Violence is something different. The child is automatically abused when one of his two parents is removed, and he is abused for 18 years. That is exactly why Quebec has one of the highest rates of youth suicide, not only in Canada, but in the world. Only Italy and another country have higher rates.

This situation is even worse in Quebec than it is elsewhere because in cases of divorce joint custody in granted in only 9.8% of the cases, according to statistics from 1994. The situation is less serious in Canada: joint custody is granted in 26% of the cases.

Why is it that we are forced to settle these matters in court, whereas in California, only 2% of custody cases end up in court? Earlier on, I submitted a brief that complements the one that I had already sent in. It contains data from the studies I mentioned.

Ms. Caroline St-Hilaire: Just to make sure that I understand you, Mr. Boucher, you are saying that there should be joint custody, that the child should be able to go and stay with his father or his mother regardless of whether or not there was abuse.

Mr. Jacques Boucher: If the child was not abused, the problem is different. If the parent is violent, he can be charged for assault, but you cannot penalize him in his relationship with his son.

Ms. Caroline St-Hilaire: Thank you.

[English]

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

Mr. Joel Duchoeny: I'm not speaking from any statistics, any experience, but I'm just thinking that if a parent is violent—and most people accuse fathers of being in the group that has more violent parents—then they wouldn't be fighting for their child. They might for a little while, to get at the mother, but eventually the child would be a burden. They couldn't go out to do whatever they do and it wouldn't be worth it to them.

Parents who fight for their children, who want their children, are not your violent parents, I don't think.

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

Ms. Besime Kalaba: I would like to add to that. I know in my situation I was physically abused by my spouse, and I immediately—that night—went to the police station and reported it. They did take action against him and removed him from the home. But in my particular situation, we owned a 5,000 square foot shop in the back of our home. So I had my matrimonial home only 200 feet away from the company where it was running. The bail recognizance allows the respondent, or my spouse, to work from the hours of 8 a.m. until 10 p.m. That's a 14-hour shift to do anything he chooses to do there. If I were to go and see how he's conducting the business, because I have part ownership in that company, you are told you're aiding him to break his bail recognizance. That process gives him the opportunity to liquidate and remove possessions.

Now it's five years later. I try to bring that to the court's attention and they say, “Madam, that happened over five years ago. It's irrelevant now.”

Furthermore, orders are granted to give him relief of things and statements that he has made in a sworn affidavit.

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

Mr. Joel Duchoeny: Thank you.

I get very involved in this story. This is a very touchy subject for me. I love my daughter. That's a situation where you have a criminal act and it's agreed that for a criminal act you should follow a different route.

I don't know what the percentage is of divorces where both sides aren't perfect and both sides are parents. Those shouldn't go through the whole similar pattern to what they're going through, and that's the problem. It would free up the courts; it would free up a lot of money for me. Never mind that.

I don't know how, given the antagonistic system, I'm going to get back to a peaceful state with my wife, to have a long and peaceful separation for the good of my daughter. There have been things said, things done. This is short term. In two years we may have destroyed 20 years of separation.

Ms. Besime Kalaba: I really need to make a comment. I know we have talked about settlement conferences and pre-trials, mediation and co-mediation. When all of that fails...and I know in my case I have been trying to get settlement conferences. They don't work; pre-trials don't work, because the other party is standing firm on reports that have been made from children's aid societies or possibly the Office of the Children's Lawyer, because they can stand firm in that recommendation, even though it's backed up with facts and evidence.

• 1610

Under court rule 31(1), under the Children's Law Reform Act, it states that unless both parties agree to call mediation, the other party can't get it. I've had that problem on many occasions.

To get away from that, if no settlement conference is achieved, it should be brought before the court and only before a judge who has been specifically trained, educated, and qualified to make orders in these special cases. It should also allow the judge to combine the rules of civil procedure, the Children's Law Reform Act and the Divorce Act.

I'm at a provincial division where a judge has no jurisdiction to enforce such an order, because it has to be taken to the general division and vice versa. They cannot be incorporated into one.

This is 500 pages. It has cost me my job. It has cost me distress. I've lost enjoyment of my life as well as the enjoyment of my children. This is just to ask for an adjournment, which, thank God, I finally got from one judge, Judge Beaman, who listened to my evidence for once and granted me an adjournment. But again, it's pre-emptive on me finding a solicitor. If I can't find a solicitor in less than a month, I have to proceed to trial.

I don't know anything about questioning witnesses or how to bring evidence forward. I don't know how to do cross-examinations, yet I am being forced to go to court to represent myself.

This has to stop. Our children are suffering. The children in Canada are suffering. Our society and taxpayers' money are suffering. It's a battle that's going on and on that has to be addressed.

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

I want to thank everyone for coming here today. This is a work in progress and each day we add more and more to the work. We add more and more to the dimensions of what we thought the size of this whole issue might be. It seems to me it's getting larger. Thank you for coming.

The meeting is adjourned.