SJCA Committee Meeting

SPECIAL JOINT COMMITTEE ON THE CHILD CUSTODY AND ACCESS

COMITÉ MIXTE SPÉCIAL SUR LA GARDE ET LE DROIT DE VISITE DES ENFANTS

EVIDENCE

[Recorded by Electronic Apparatus]

Monday, May 4, 1998

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[English]

The Joint Chair (Senator Landon Pearson (Ontario, Lib.)): Good afternoon, ladies and gentlemen. This is the 23rd meeting of the Special Joint Committee on Child Custody and Access. My co-chairman will be here shortly but sends his regrets for not being here right at the beginning.

We're very happy today to welcome the Canadian Bar Association to our hearings. I believe we will start with Mr. Hoyles, Ms. McKay, Mr. Raponi, and Ms. Mesbur. Would you please proceed.

Mr. John D. V. Hoyles (Executive Director, Canadian Bar Association): Thank you very much, Madam Chair. We appreciate having the opportunity to appear before you today on behalf of the Canadian Bar Association.

The Canadian Bar Association's mandate includes seeking improvements in the law and in the administration of justice. We have over 35,000 members from all 10 provinces and 2 territories, made up of lawyers, judges, and students.

It is with the aspect of seeking improvements in the law and the administration of justice in mind that we appear before you today. It is my privilege to introduce to you three distinguished members of the custody and access committee of the National Family Law Section of the CBA: Heather McKay from Calgary, the chair of the national family law section; Eugene Raponi from Victoria, the treasurer of the national section; and Ruth Mesbur, who practises in Toronto, member at large of the section executive.

The family law section consists of 6,900 members across Canada, representing the full range of family law interests, including those of access parents, custodial parents, grandparents, and children.

It is in active consultation with the government on various family law matters. The section most recently considered the issue of custody and access in its response to the 1993 Department of Justice consultation paper on the subject.

To prepare for the special committee's review of custody and access, all members of the national family law section executive, consisting of national officers and regional representatives, were solicited for their views.

Each of those representatives canvassed their local CBA family law bar for comment and provided input to the specially mandated custody and access committee. The committee met in November, and again more recently in Winnipeg for two days, to consider the legislation and to consider the work that this committee was doing.

The brief has been reviewed by the section executive, the national legislative law and reform committee, the table office of the Canadian Bar Association, and has been approved as a public statement of the family law section.

Madam Chair, I would indicate as well that the three people with me are all doing this on a volunteer basis. As well, all the people who did the consultation during the time of preparing for this are lawyers who do this work as members of the CBA on a volunteer basis. I just thought it would be useful for the committee to know that.

I would now ask the section representatives to address the substantive matters in the brief.

Thank you.

Ms. Heather McKay (Chair, Family Law Section, Canadian Bar Association): Thank you. Madam Chair, honourable senators and honourable members, we are very pleased and happy to be here as representatives of the Canadian Bar Association and to have the opportunity to address the committee on the issues of custody and access.

As family law lawyers, we wholeheartedly support your mandate to approach the matter from a child-focused perspective, focusing on parental responsibilities and the best interests of the child. We feel we are particularly well-equipped to advise you and address you on these issues, given the fact that we are, so to speak, the front-line workers.

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We act for all parties, including fathers, mothers, children and grandparents. We are involved in the continuum of dispute resolution from advice and negotiation to mediation and ultimately to litigation.

We have found that lengthy and contested custody battles are few and far between. For the most part, parents agree on the best interests of their child and make arrangements between them, with very little or no involvement in the litigation process. It is only when parents are unable to decide together what should happen in the best interests of their children that they have to resort to the litigation process.

The Divorce Act requires us as family law lawyers to counsel our clients on the advisability of negotiating settlements with respect to custody and to lead them towards mediation. In fact many of our members, family law lawyers, have taken a mediation course, and even if they aren't acting as mediators, they use those skills in their practice. Many judges are also training to learn how to become mediators to better deal with these very sensitive issues.

Virtually every jurisdiction in Canada has adopted some method of dispute resolution that they try to put up front before they get involved in the court litigation system. Some of these are mediation, pre-trial conferences, four-way negotiations among counsels and lawyers, counselling with psychologists, and bilateral custody assessments.

We need more funding for all of these. These are the things that we need to finance in order to defuse the very antagonistic approach that can be taken at the beginning of a file when people are just separating. It's a very emotional time, as I'm sure you all know, and those are the things that we think can deal with the litigation process on an up-front basis.

This experience and background we have as family law lawyers out there working with clients on a day-to-day basis have informed the recommendations we made in our report, which I will summarize for you. After that I will turn this over to Ms. Mesbur and Mr. Raponi to deal with in more detail.

I can only advise you that among the three of us we have about 55 years of family law experience, and the people with whom we consulted are basically family law practitioners also practising on a full-time basis.

We have provided you with our report, and the recommendations we have made are as follows:

We recommend that there be a definition of the best interests test in the Divorce Act.

Second, there should be a description of parental responsibility in the Divorce Act.

Third, there should be no presumption of joint custody or primary caregiver.

Fourth, with respect to the terminology of custody and access, there are pros and cons that need to be dealt with.

We recommend mandatory parental education.

We are not in favour of access enforcement legislation.

We request that resources be made available to deal with the dispute resolution process.

We recommend a unified family court in all jurisdictions.

Ms. Mesbur will then deal with the issues of custody and parental responsibilities and the best interests.

Ms. Ruth E. Mesbur (Family Law Specialist, Member of Family Law Section, Canadian Bar Association): Thank you. We begin with the proposition that may sound shocking to some of you—but I hope it will not—that parents do not have rights. Children have rights and parents have responsibilities. That, if you will, is the theme of our recommendations and one that is strongly held as a view by all of us.

In our view, children's rights are best protected where, first, decisions are made that are in their best interests, and second, where parents are required to carry out their parental responsibilities.

We hope our recommendations are responsive to your committee's mandate that we move towards a more child-centred and child-focused perspective in dealing with issues of custody and access. The only criterion, or only presumption, if you will, that we recommend is the best interests test, that custody and access should be determined only in accordance with the best interests of the children.

As you may be aware, although “best interests” has been the criterion in the Divorce Act for many years, it has not been a defined term and has not been expanded upon in terms of the kinds of things one should look at in determining the best interests.

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Many of our provinces across Canada, including Ontario, where I come from, do in fact set out specific criteria in their provincial legislation to be looked at in determining how a child's best interests should be developed. It is our recommendation that similar criteria should be enumerated in the Divorce Act. These are set out on page 4 of our brief in the English version.

Why do we think it's helpful to set out criteria? First, it's helpful for judges in focusing their deliberations. It's helpful for lawyers in focusing our advice to our clients. Perhaps most importantly, it's helpful for parents in focusing their own minds on determining what is best for their children. We focus on the children and not on what parents want. Parental responsibilities help parents to focus on the best interests of children as well. These are enumerated on page 6 of our brief in the English version.

What's important to remember here, in terms of parental responsibilities, is that the enumerated responsibilities do not mean that each parent in a separated situation must do each and every item equally with the other parent. Parental responsibilities set out the whole group of responsibilities parents must undertake and provide for their children.

It's important to reflect on what children need their parents to do for them. Simply put, these are to take care of them, feed them and clothe them, shelter them, provide them with financial support, and to see them and encourage the other parent to see them. This is because it's fair to say that most children in most families need a relationship with both of their parents and need two parents who care for them.

Being committed to the best interests of children means that we do not support any presumption, be it toward joint custody, primary parent, friendly parent—any of those things. Our only presumption is the best interests of the children.

Each family, each child, is unique. Each child has his or her own best interests. Best interests include the possibility of joint custody, the possibility of sole custody, the possibilities of parenting plans. Bests interests are flexible and responsive to the needs of individual children in individual families here in Canada.

Those outline our first two recommendations, and I'd now like to turn things over to Mr. Raponi to deal with the balance.

Mr. Eugene Raponi (Treasurer, Family Law Section, Canadian Bar Association): Thank you. The summary of recommendations that I will be dealing with are conveniently located on page 20 of the English version and pages 22 and 23 of the French version. They go from 3 to 7.

You'll note that only one of those, recommendation 5, is a recommendation with respect to a change to the legislation. That is that there ought to be a 90-day notice period if either parent plans to relocate. That's simply to ensure that there's an appropriate timeframe to address that difficult issue. The balance of the recommendations are to ensure that resources are provided so that education and collateral services can be provided to the parents and children.

For the moment I want to address the issue of access enforcement. We believe that access enforcement does not lend itself to legislative solutions. It is very complicated. It is a complicated area, and each case depends on its own facts and circumstances. It depends on the needs and circumstances of the particular child or children in the case.

I have acted as a child advocate appointed by the Attorney General in British Columbia under the Family Relations Act. They call them family advocates, but effectively they're child advocates, and they're appointed in order to advocate for the best interests of the children.

Because of budget restraints, child advocates are only appointed in extreme circumstances, in the most dysfunctional of situations between estranged spouses.

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I have had to deal with situations where there have been allegations of access denial by the custodial parent. I can tell you that in none of the cases I've been involved in would a simplistic solution be employable successfully. They were all complicated, and all of the circumstances had to be dealt with on an individual basis.

It is our view that the way to deal with the typical situation that presents itself after separation is first with mandatory education for the parents before litigation can commence. In other words, put the resources up front where the parents can best use them and best understand what's at issue with respect to their children. Second, resources should be directed to providing and assisting in alternative dispute resolution mechanisms. As Ms. McKay pointed out, we as family lawyers provide advice and are involved in a continuum of dispute resolution.

Indeed many parents on their own directly and successfully address the issues of how to deal with their children after separation. They may never see a lawyer, or they may see a lawyer simply to formalize that arrangement in a separation agreement or consent order.

We deal with the continuum from the point of view of advice to clients, negotiation, mediation—I'm a mediator as well as a family law lawyer—and in the extreme cases, litigation. That's not to say we may not have an interim application in many cases, but the case of a custody trial is very rare. And that should be so, because once the parents have got to the point of going to trial for custody, in my view the child has already lost. I think every family lawyer, every experienced, sensible family lawyer, advises their client of that.

So services to parents that assist can include counselling, the provision of supervised access in appropriate circumstances, and they can enlarge the budget to provide for child advocates in appropriate circumstances.

Changing the law will do little or nothing to address these problems. Providing services, programs, and funding will.

Thank you.

The Joint Chair (Senator Landon Pearson): Thank you very much. Did you want to do a summation or is that your—

Mr. John Hoyles: That is it.

The Joint Chair (Senator Landon Pearson): All right. We will turn to questions and Senator Jessiman.

Senator Duncan J. Jessiman (Manitoba, PC): I have a lot of questions, so I'll just ask three or four and then come back. We have until 6 o'clock, don't we?

The Joint Chair (Senator Landon Pearson): We have until 5.30 p.m.

Senator Duncan Jessiman: The notice said 6 p.m.

The Joint Chair (Senator Landon Pearson): All right.

Senator Duncan Jessiman: Let's deal with your first recommendation. It says:

The National Family Law Section of the Canadian Bar Association recommends that the Divorce Act direct judges to consider the following specific factors when determining the best interests of the child:

That's on page 4 of your brief. Can you tell me whether these specific factors are used in any other legislation anywhere else in the world?

Ms. Ruth Mesbur: I think I can answer that, Senator. In Ontario very similar criteria have been a part of our Children's Law Reform Act since roughly...I'm trying to remember whether it's 1978 or 1986.

This recommendation in fact was also made by the Office of the Official Guardian, as they then were, now the Office of the Children's Lawyer, in a brief they presented in response to the custody and access work that was done in 1993.

Senator Duncan Jessiman: This is the kind of wording that you—

Ms. Ruth Mesbur: Absolutely, and I believe that other provinces have similar wording as well.

Senator Duncan Jessiman: So there has been some case law on this wording?

Ms. Ruth Mesbur: Absolutely.

Senator Duncan Jessiman: Tell me, just for my information—and I'm not trying to be critical; I'm trying to understand this. First, with respect to the length of time the child has lived in a stable home environment, are we talking about after a divorce, before a divorce? I would assume we're talking mostly about first-time divorces. I wouldn't think we'd be having legislation.... I know there are going to be situations where there's a second divorce or whatever, but if the family were getting along well together before and now they're going to separate and divorce, how does that have an effect as to who is best suited to be the primary care giver? Is that being used for that purpose?

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Ms. Ruth Mesbur: It's one of the criteria a court can look at. What's important to remember is that people don't separate and instantaneously end up in court where a final determination is made concerning the future of their children. Very often, parties will separate and will have informal arrangements for their children. That will continue for a period of time and it may be some time before they get into a court situation where this issue may well be an important criterion.

Remember also that the Divorce Act deals not only with a determination of custody at first instance, but also variation. Remember that custody and access decisions are never final. They are always open to variation, so that as circumstances change over the passage of time, under the Divorce Act a parent may be coming back and asking the court to alter the arrangements. Then it may well be relevant for a judge to look at how long this child has lived where he or she has and if that is an important criterion.

Senator Duncan Jessiman: Is this something over and above the friendly family rule, or whatever we call it?

Ms. Ruth Mesbur: The friendly parent rule?

Senator Duncan Jessiman: Yes, the friendly parent rule. Is this over and above that? Wouldn't you think one of the criteria in this should definitely be the same thing that says consideration should be given to the willingness of the person for whom custody is sought to facilitate contact by the person asking for access? Isn't that an important factor?

Ms. Ruth Mesbur: That's addressed here. It's addressed in two places in these recommendations, Senator. First of all, if you look at page 5 of the English, the last criterion is “the importance and benefit to the child of having an ongoing relationship with his or her parents”—“parents” is plural.

Senator Duncan Jessiman: Shouldn't that also be in? If this is what the judge is to look at alone, if these are the facts, wouldn't you think part of it should be part of the friendly parent rule?

Ms. Ruth Mesbur: I think they're connected. I don't think it matters whether they're in the same place within the legislation or not.

Senator Duncan Jessiman: You know what the courts do with legislation. Come on now. We're now putting in legislation. We're telling the judge this is what you take into account when you're going to decide who is to have primary care or who is to have the residence. We're trying to get away from custody and access. What happens if we don't put in the question of saying you're the person who's suited, but if you're not going to let the other parent have access, that's an important factor?

Ms. Ruth Mesbur: I draw your attention as well, Senator, to the provision that says we have to look at the ability of each parent to fulfil the parental responsibilities. If you then look at page 6, at the enumerated criteria we suggest for parental responsibilities, you will see that fostering a relationship with the other parent is one of those enumerated responsibilities:

Making the child available to the other parent or spending time with the child as agreed by the parents or ordered by the court.

Senator Duncan Jessiman: I see that.

Ms. Ruth Mesbur: That's part of encouraging the relationship with the other parent. I hope that answers your question.

Senator Duncan Jessiman: I would like to think you would agree that maybe it could be in both places so that there's no confusion.

Ms. Ruth Mesbur: Perhaps.

The Joint Chair (Senator Landon Pearson): One more question and then we'll come back to you in the second round.

Senator Duncan Jessiman: All right.

Let's deal with recommendation 2. Are you suggesting here that this should replace the present subsection 16(5), or is this something in excess of?

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Ms. Ruth Mesbur: This is in excess of.

Senator Duncan Jessiman: Good. I agree with that. If it's to replace it, I wouldn't agree with it, but that's fine. Thank you very much.

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

Ms. Carolyn Bennett (St. Paul's, Lib.): In order to understand the size of the problem, we are hearing various numbers, but when you say few and far between in terms of how many actually end up in court or at trial, what percentage of divorces do you think that is?

Ms. Heather McKay: We've discussed this. We're hesitant to give percentages because we haven't the empirical data. What we have is our combined understanding of our own cases. Given that, I would suggest that at least 90% of cases—and please don't quote me on this—

Ms. Carolyn Bennett: That's what we're hearing.

Ms. Heather McKay: —are really very lightly litigated, maybe just an interim application, or absolutely settled. Most clients you get come into your office and, if you're an experienced family law lawyer, you can really guide them along the path to settling. It's only the people who really have a very difficult time communicating with each other, respecting the other parent's role often, who really get into big problems. I would say the big litigation is 1% of the time.

Ms. Carolyn Bennett: How many divorces are there in Canada a year?

Ms. Ruth Mesbur: I have no idea.

Mr. Eugene Raponi: No idea.

Ms. Ruth Mesbur: As an anecdote that may help you, Dr. Bennett, I've been in practice for over 24 years. I practise family law exclusively. I'm a specialist in family law. The last contested custody trial I had was 18 years ago. That may give you some indication of how rare this is, and I don't know that my experience is unique.

Ms. Carolyn Bennett: One of the things we keep hearing is resources, whether that's for unified family courts or for mediation on site, or whatever. If this is a very small group, not that resources should dictate it, but do you think a judge can actually determine the best interest of the child without a sort of formal assessment process that is child-centred?

What I'm saying is, when you get to the high-conflict things, I keep thinking somebody needs to be speaking for the child. Certainly in Winnipeg, on Friday, there was a psychologist's team of people—there are always two persons so it can't just be a personality conflict—that assesses the situation and determines what's the best interest of the child. Do you think if we are in the high-conflict ones, that kind of assessment should be mandatory and paid for by the court?

Mr. Eugene Raponi: If I can address that, because I think it goes to some of the comments I made in my earlier submissions, in the high-conflict situations I think there ought to be somebody who is speaking for the child. That's where someone like a child advocate can get involved.

Remember, a child advocate has a certain level of expertise in terms of his or her practice, but can access the appropriate resources, for example, a psychologist, and fund an assessment, one that's an impartial assessment, if you will, because the family advocate can select, hopefully with consent of parties or counsel, a psychologist that will do a family assessment, will deal with the children, deal with the parties, and come forward with recommendations. But that isn't necessary in every case. It really is determined by what the various issues are that are driving the litigation.

Ms. Carolyn Bennett: I have a concern. When we heard from one of the child advocates in particular, she saw her role as basically reiterating what the kid is saying. I want to know whether there sometimes needs to be more evaluation. Particularly, I think the situation where I'm most concerned is when the kid is saying he or she doesn't want to see one of the parents. Doesn't that ring bells in all of us that this kid is going to be in trouble for the rest of their lives if we don't give the support and the counselling right now? Even if that ends up being the right thing or the right decision for that kid, the kid needs support, and shouldn't we be able to provide it?

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Mr. Eugene Raponi: The short answer to that is yes.

Ms. Ruth Mesbur: Yes, absolutely.

Senator Duncan Jessiman: I have a supplement.

I agree we should have resources available, but not everyone is penniless, and those who can afford to pay should pay. Why should the people all across Canada be paying for people who decide to marry, separate, divorce, and fight? Why should we all have to pay? Those who can afford it should pay, shouldn't they?

Mr. Eugene Raponi: I agree with you, but you have to bear in mind a couple of things. First of all, litigation is extremely expensive. It's been said that most lawyers couldn't afford to retain counsel, and that's probably true. The other thing you have to appreciate is that there are costs that can be assessed by the court ultimately, and that can deal with it. And lastly, there are situations where there are parties of means, and the courts can ask that there be a child advocate appointed but paid by the parties.

Senator Duncan Jessiman: As long as it's not automatic.

Ms. Carolyn Bennett: If people have to pay, I'm concerned that they'd take shortcuts. If it's optional as to whether you get an assessment and only the people who can afford it get one, somehow there's a differential in the application of the law or in actually being able to deliver what the law says, which is the best interests of the child.

Ms. Ruth Mesbur: In Ontario we have the Office of the Children's Lawyer, which as you may or may not know is part of the Ministry of the Attorney General. The mandate of the Office of the Children's Lawyer, which includes staff lawyers and staff social workers funded by the government, is to participate in contested custody and access cases where appropriate and to provide child representation with the assistance of a social worker—and this is by in-house counsel as well as by outside counsel who are retained—and also to do custody and access assessments. There isn't sufficient funding, in my view, for the Office of the Children's Lawyer—and I'm biased, because I'm from Ontario—but it's a particularly good model that seems to work extremely well.

Ms. Carolyn Bennett: At the moment they're only allowed to accept 60% of their referrals.

Ms. Ruth Mesbur: That's right. But it's a methodology of providing the kind of service you're referring to, Dr. Bennett, particularly where the parties cannot afford it.

Ms. Carolyn Bennett: Do you ever see that in all high-conflict ones, that particular office is included?

Ms. Ruth Mesbur: In the best of all possible worlds.

Ms. Carolyn Bennett: Okay.

And just to go to the group that isn't in court, when you say “mandatory parental education”, we're including that group too, right? In the groups with low conflict, we need education to make sure those decisions or agreements are in the best interests of the child too, and they need some education as well.

Ms. Ruth Mesbur: Most parents seem to, even if they're resistant to going to a mandatory program.... The experience as I understand it from other jurisdictions is that the feedback has been very good. Even though people are reluctant to go, their response to the program afterwards is, “Gee, I learned something. This is a good thing.”

Ms. Heather McKay: We have that program in Alberta. It was a trial program in Edmonton and has now been adopted in Calgary and other jurisdictions, and it's mandatory. Everyone who files a divorce petition dealing with custody and access must take the course before they can proceed with any interim applications. Even in very non-litigious matters, they have to proceed to the course. And I can agree with Ruth that the response has been positive.

Ms. Carolyn Bennett: Thank you.

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

Mr. Paul Forseth (New Westminster—Coquitlam—Burnaby, Ref.): I'd like to look at page 12 of your submission, under the title “Access Enforcement”. You open the paragraph by saying:

Although we recognize that some non-custodial parents experience problems exercising access to their children, our experience is that the much greater problem is that parents do not exercise the access they have been granted.

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I'm wondering if you can give us any data or evidence to support that very interesting statement, because you're tying those two things together, and you're weighing them. Then you say that the much greater problem is that parents do not exercise the access they've been granted. When you tie the two together, you're talking about a problem that may involve further litigation, because certainly it does involve that in terms of, on the one side, those having trouble exercising access. That's certainly the evidence we've heard.

I'm just looking for some substantiation with regard to that rather interesting statement.

Mr. Eugene Raponi: Let me take the first kick at that one. Then I'm going to ask Ms. Mesbur to answer as well, because I know she has some thoughts about this.

My understanding from reading the literature is that there is a problem with non-custodial spouses, non-custodial parents, having the right of access but not exercising it. In our democratic system we don't force people to exercise entitlements. We don't force a non-custodial parent to see his or her child if he or she chooses not to, notwithstanding their entitlement.

There is also a situation—and it crops up, although rarely, in our view—where there is systematic denial of access by the custodial parent to the non-custodial parent.

The loser in both of those situations is the child. It's the child who does not have the ability to have a relationship with his or her other parent. That's why we say that the difficulty there is from both sides of the coin, and enforcing court orders in situations like that is a difficult thing. You're not going to put a parent in jail. It's problematic to involve, for example, the police force in enforcing those kinds of orders.

So that's the difficulty.

Ms. Ruth Mesbur: I think the other thing to remember—

Senator Duncan Jessiman: Probably all of us here have read the literature, although maybe not as much as you.

The Joint Chair (Senator Landon Pearson): Is that a supplementary question, Senator?

Senator Duncan Jessiman: I just wonder what your experience is. We've read the literature. I mean, God, we've been at this for....

Ms. Ruth Mesbur: My experience is that the non-exercise of access is a far greater problem or issue for children than is the denial of access, but the thing to remember is that the result for the child is identical. If we are going to be child-focused, that's what we need to look at.

How do you fix the problem and the underlying reasons for why this child is not seeing the parent? Why has the relationship between the child and the parent broken down? Simplistic quick fixes—send in the police, take away a driver's licence, and so on—do not address the fundamental problem. Frankly, it does not address what we say has to be the primary consideration: What is best for this child?

I don't know if that answers your question. I hope it does.

Mr. Paul Forseth: You did make this statement about the entitlement notion, but isn't that directly in opposition to your parental responsibility model? You talked about how parents don't have rights; kids do. Parents have responsibilities. Now you're talking about entitlement to see. That's an inconsistent statement.

Ms. Ruth Mesbur: I think the better way of looking at it is the responsibility to see the child, that if there is an order at the end of the day that says a parent shall see the child alternate weekends or whatever, and that parent chooses not to, that parent is not fulfilling his or her responsibility to be a parent, and to see the child. It's very difficult, however, to envision how you might enforce that. Are you going to send a sheriff's officer to pick up the parent and drag them to the child and say, “Take Johnnie to McDonald's”? It's ludicrous, and it doesn't address the fundamental question of why it's happening.

Mr. Paul Forseth: Okay.

As part of your recommendations you're suggesting that we not recommend any further legislative change specifically around enforcement, yet there still remains the latent power of the court under its contempt procedure to at least have the options of fine or jail. But apparently provincial governments don't agree with that.

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A number of provinces, in their provincial legislation of the Family Relations Act, clearly make the violation of an order an offence, which then can be proceeded in the criminal division. Looking at the new legislation proposed by the Northwest Territories, I believe, when they were looking at the current law in Canada and bringing their piece of legislation before their legislature, they clearly included specific sections concerning an offence of violating an order.

I'm just pointing out that your recommendations are quite out of step with what a number of the provinces have done.

Mr. Eugene Raponi: Bear in mind that provincial courts do not have the power to enforce orders by way of contempt. Provincial courts are restricted to contempt in the face of the court, whereas section 96 judges do have broader powers and can therefore employ contempt provisions to deal with people not complying with the terms of orders.

Accordingly, in British Columbia, for example, there is an offence provision under the Family Relations Act that can be employed. The difficulty, just as in the section 96 courts, is what judge will in fact jail a parent where, as is usually the case, it's not clear what's underlying the apparent denial of access. There can be many circumstances whereby there is an appropriate reason in one particular case that the child was not delivered up. You have to get at that reason before you step in and provide a sanction.

Mr. Paul Forseth: I would think that's what court procedures are all about. One of the things is that you have to have some legal means to get before the court.

One of the perhaps subvertive reasons or methods in British Columbia is that every time you have a difficulty, you make an application to bury the order and try to manufacture some circumstances. There's now a change in circumstances sufficient that you can convince a JP to issue process and get a summons at least sent out by mail in the first place. So you get before some kind of authority again so that then maybe a counselling referral could be made or if there are social services attached to a court, a counsellor can invite the parties in to say what the problem is. It's the legal door to begin that process.

Mr. Eugene Raponi: I think what you're referring to isn't an arbitrary process. I think it's the continuum that generally happens in situations where access is problematic.

Generally speaking, the first order or agreement says the non-custodial parent will have generous and reasonable access, and it's undefined. When that breaks down, the next application will be that because access is problematic, that's a change in circumstances and we want defined access. So you go back to court and ask for a specific and defined access order. That will set you up ultimately for your application for contempt, because then you have a very specified term in the order as to when that child is to be delivered up.

Mr. Paul Forseth: So we've boiled it down to this, then. You're saying there's no need for any kind of parallelism between provincial statutes and the Divorce Act because of the underlying fundamental difference of the power of the judge. Usually it's the provincial court that is trying to enforce even Supreme Court orders as well as its own orders, and usually it's the provincial court level that's the enforcement court.

Mr. Eugene Raponi: That may very well be the case, but I don't know what this committee can do to enhance the powers of a provincial court judge when our Constitution sort of determines that.

Mr. Paul Forseth: The question would be if amendments to the Divorce Act would provide the same range of alternative remedies that might be available in a provincial statute. If a provincial statute involves a crown prosecutor in gathering evidence, then all the available remedies under the Summary Convictions Act would be available, everything from performance orders to compensation restitution to community supervision by a probation officer or somebody else, or any other defined individual ordered by the judge, such as the local priest, who could supervise under court direction.

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Mr. Eugene Raponi: But the powers of a section 96 judge contemplate all of that. What you may wish to do is suggest that in fact the prosecutor's office get involved in bringing forward applications in respect of contempt so it's not the party who's bearing the cost of it. But the fact is the powers are already there. The section 96 court can tailor the appropriate remedy in the particular situation.

Mr. Paul Forseth: I just didn't think all those remedies were available in a purely contempt of court proceeding at Supreme Court. That's not my understanding.

Ms. Ruth Mesbur: They are.

Mr. Eugene Raponi: They are.

Mr. Paul Forseth: But in the face of contempt of Supreme Court, the only options are fine or jail. That's it.

Mr. Eugene Raponi: The section 96 court, which is an original court of jurisdiction, has one parens patriae jurisdiction. It can create any solution that is enforceable.

The Joint Chair (Senator Landon Pearson): We'll go to Senator Jessiman now.

Senator Duncan Jessiman: In your own brief you say that in the limited situations where parents frustrate access and the problem cannot be addressed by mediation or education, contempt charges or changes in custody arrangements are already possible remedies.

From what we've heard, I would think—and I want you to agree or disagree—that at some point this should be automatic. I don't say the first time, but if without justification, some person persists, not the 42 times or whatever number of times it took in Ontario to get a person charged with contempt and put in jail—I don't think that's the answer—but after a certain period of unjustified denial of access, shouldn't custody just automatically change?

Assuming the parties are able to look after the child, at some point, if the other parent.... Because of our particular system being adversarial as it is, it seems the person who gets custody has won something, and it's wrong. If they knew and they persisted in not giving access to a parent who was qualified to look after that child, shouldn't it be automatic?

Ms. Ruth Mesbur: How can that automatically be in the best interests of the child?

Senator Duncan Jessiman: It's always subject to the judge's discretion of course, but surely if we had in the legislation something to the effect that.... Using your words, if you've gone through the various things, it hasn't worked, and they still continue to deny, they'll keep on doing it. If they know, as everyone does know.... Certainly anybody on this committee knows. Everywhere we go we hear about this case that took 42 contempts of court before the courts actually acted. I'm saying if we had something in the legislation and people knew the judge had that power, if legislation were in there encouraging the judges to exercise that....

Ms. Heather McKay: I would like to respond to that, if I could, briefly.

First of all, those types of cases, as we've indicated, are few and far between, and very dreadful when they do occur. But we take the position that you shouldn't legislate for that type of situation, because that's not the norm. If we started to change the Divorce Act to legislate for the biggest problems, we'd be changing the law in a way that wouldn't benefit all of the people who settle.

Secondly, if we go back to the premise we started with—that a parent who exercises no access, a parent who chooses not to have his or her access, is doing as much harm to a child as a parent who denies access—it seems to be grossly unfair to make presumptions and automatic changes of custody for a parent who is denied access, for whatever reason, and not to have any remedy for the custodial parent who has to raise those children by himself or herself.

So it may not be the best solution in the world, but it's the best one we have to allow the judges in those circumstances—and they are very experienced judges, for the most part—to weigh what is in the best interests of the child, with no presumptions and no automatic changes of custody.

Judges do change custody. Judges do find people in contempt all of the time.

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Senator Duncan Jessiman: So in effect you're saying they have that power now, so let the judges act under the power they already have.

Ms. Heather McKay: They do. And most judges, in my experience, section 96 judges—and I'm sure we can all speak the same—will do their utmost to act in the best interest of the child. Cases that take 46 times are not the norm.

Senator Duncan Jessiman: Let's go back to grandparents' rights, because we've heard from a lot of grandparents across the country. You say on page 9, “There is no justifiable rationale for entrusting parents of intact families with that discretion”, meaning when you're married and have your children, the grandparents can't come along and demand that they see them. That's true.

What you haven't addressed are the cases where one of the parents dies and the other parent marries again. This is the complaint we've had—that surely grandparents should stand in some better relationship than just any other person. I would think that the very least you people should recommend as far as grandparents are concerned—it may even go further than grandparents, but let's just leave it at grandparents for the moment—is that they shouldn't have to make a special leave to the court to apply for access.

You do mention in your brief that they can apply, because they're under subsection 16(1) just like the others are, but because they're not a spouse, they have to have special leave from the court. I think any other person other than a spouse and a grandparent should maybe have to have leave so you don't have so many applications. Surely grandparents, though, should not have to take a bite at the apple twice, first to apply to get leave and then to apply to get access.

We've heard some pretty heart-rending testimony, and these are actual cases. These aren't in a textbook, some kind we've read about. These are people who have been nurturing these children almost since birth. Unfortunately one of the spouses dies and then the other spouse gets married, and she or he denies access to the other grandparent.

All I'm suggesting is that I'd like to think the bar association would say, well, under those circumstances maybe they shouldn't have to get leave from the court. That's not going very far. That's my first question.

Mr. Eugene Raponi: If I can address that, first of all, as a parent, I have to tell you that I support the involvement of grandparents in the lives of their grandchildren. I think that's terrific.

As a family lawyer, I know that practically speaking, grandparents stand on a far higher plane than the neighbour in terms of getting a specific access order. By and large, what we're saying is that grandparents should not be involved in the litigation, in the process—that the access by grandparents ought to be through the parents, as is typically the case in both intact families as well as separated families.

The fact is that there is a remedy in the Divorce Act presently. You're quite correct that it is a two-step remedy, but practically, in my submission, that first step is not a difficult one to overcome. It need not even be overcome in two stages; it can be overcome in one application.

Moreover, most of the provincial legislation, as I understand it, has the remedy as of right. For example, in Ontario and in British Columbia, and I am sure in other provinces as well, the provincial legislation allows anyone, including grandparents, to bring a proceeding, as of right, to secure an access order.

Obviously, as I said earlier, the grandparent is in a much superior position to bring that kind of access order in the circumstances that you have outlined than someone else who is further removed from the child.

Senator Duncan Jessiman: That being the case, I would think it just follows, then. Why would the federal legislation be more restrictive as far as grandparents are concerned? It would take a very simple change of subsection (1) or subsection (3) to say a person other than a spouse or a parent of a spouse.

Mr. Eugene Raponi: Our concern, which is expressed in our brief, is that there be as few players as possible by right in respect of divorce and issues relating to children, because the more people who are in stirring the pot, the more difficulty you have in creating a wonderful stew. That's our concern.

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If you give grandparents special rights, does that mean they thereby acquire specific responsibilities? In other words, by saying grandparents are special and deserve special rights, does that mean that perhaps if they're of means that they ought to pay child support? Remember, a rights-based analysis conflicts with the underlying principle, which is the paramountcy of the interests of the children. As soon as you start talking about rights of other parties, you have a conflict, a contradiction in terms.

Senator Duncan Jessiman: Anyway, we're not going to....

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

Ms. Carolyn Bennett: I just wanted a quick question around violence. We're hearing a lot that alternative dispute resolution is just not appropriate if there has been violence in the relationship. How would you determine a process by which those people get sorted out separately and into a different track?

Ms. Heather McKay: Many of us as family law lawyers will have dealt with violence within a family, whether it is spousal physical violence or verbal abuse. As lawyers, all three of us are mediators as well. We use those skills I think even in advising our clients.

I don't know that there's a particular solution, except to say that when you have your client in your office, they can have the right to mediate. You can mediate without putting two people in the same room. There is caucusing. I frequently go with my client and have a four-way meeting so they feel empowered, but also, you can't further disempower them by not allowing them to make their own decisions about a settlement.

Those are some of the issues. That's how I deal with it, in some ways. Perhaps there are other solutions that Ms. Mesbur can address.

Ms. Ruth Mesbur: Often when people say alternate dispute resolution, they mean mediation, and it's not. Alternate dispute resolution is any way of resolving a dispute other than the ultimate decision-maker being a court.

There are other ways of accomplishing ADR in situations with violence, as Heather says, with the lawyer participating. You can have a pre-trial conference or a judicial intervention where there is a settlement meeting with a judge, which again puts yet another layer of protection for the spouse who feels disadvantaged or powerless or threatened in fact by violence. So there are many methods whereby you can create a solution without the ultimate test of a trial, if you will, which still protect a person who's been subjected to family violence. It's a question of resources again. We keep coming back to the money.

Ms. Carolyn Bennett: What the committee keeps hearing is that if violence is present, mediation is not appropriate. Amen.

Ms. Ruth Mesbur: Mediation may not be appropriate—and there's a lot of confusion about what terms mean—if what is meant by mediation is that two parties alone meet with a facilitator who assists the two parties in reaching a solution themselves. Situations where there is family violence may not be appropriate for that kind of alternative dispute resolution. However, there are many other alternative methods of resolving the dispute that will have sufficient protection for the spouse who has been subjected to family violence.

Ms. Carolyn Bennett: I guess I'm hoping that maybe you could help the committee with the language around this and maybe write us a sentence or two around your views on that, just because it is the continuum from conciliation to mediation to ADR to caucusing to Kissinger to.... You know, there's a...

Ms. Ruth Mesbur: Okay. ADR is a blanket—

Ms. Carolyn Bennett: Okay; the big one.

Ms. Ruth Mesbur: —and all of these other things are a subset of ADR. You have mediation. You have arbitration. You have in Ontario something called dispute resolution officers. I'm a DRO. We're senior family law lawyers who in Toronto volunteer one day a month to go to court and meet with parties who are applying to vary their divorce judgments to see if we can't assist them in reaching a resolution. That involves the parties and their lawyers, for example. You have pre-trial conferences.

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I understand in Alberta they have judicial resolution officers, where judges do that kind of work.

You have the simplest of all: negotiation. Old-fashioned negotiation, either across the kitchen table or between the lawyers, is one of the subsets of ADR. I think it's far more useful to talk about alternative dispute resolution in all of its fulsomeness, if you will, than to get caught up with mediation. Mediation has become a loaded term in family law because of concerns about power imbalances and violence, and I think you can avoid all of that by not focusing on that one method of ADR to the exclusion of the others.

I don't know if that helps you at all.

Ms. Carolyn Bennett: I think one of the problems seems to be that people equate mediation with ADR and that's all there is—

Ms. Ruth Mesbur: That's right.

Ms. Carolyn Bennett: —and then are saying, simplistically, mediation is never appropriate. But they're forgetting there are many other ways of going about this—

Ms. Ruth Mesbur: Yes, exactly.

Ms. Carolyn Bennett: —because of the power imbalance and those things. So we need to clean that up in terms of not equating mediation with ADR and throwing it all out.

Ms. Ruth Mesbur: It's part of the education process. Ontario right now is in the process of introducing mandatory information sessions for parents, much along the lines of what's going on in Alberta.

The focus of the program will involve a video that includes judges talking, lawyers talking, mediators talking, kids talking, moms and dads talking about their experiences, which will be the backbone of the program, which will be run by lawyers and social workers in conjunction, who will talk about the process, the needs of children, and alternatives. So the hope is, at the outset, before people get horribly involved in litigation, they can be educated about some of the alternatives that are available, not just mediation but negotiation, settlement meetings, all of those things.

Ms. Carolyn Bennett: Because of the problem with the word “mediation”, is there a way you could craft a process that was ADR, that the groups who are very opposed would agree that in a situation where there was pre-existing violence they would feel safe or comfortable entering into that process?

Senator Mabel M. DeWare (Moncton, PC): Put ADR and then say, what would be the best of all worlds? Could something like that be helpful to you?

Ms. Ruth Mesbur: It's all about choice, and I suppose what all of us are saying about many of the issues is that in our experience, the more flexible the system and the more choice available to the decision-makers.... Whether the decision-makers are the parties themselves, across the kitchen table, or the parties with the assistance of a mediator, arbitrator, lawyers, or in the most unfortunate situations, the judge, the decision-maker should have a broad range of choices to help them make those decisions.

Ms. Heather McKay: I don't think it would be necessary or advisable to try to craft one thing for people who are victims of violence. I think what that person requires is a choice. If that person chooses to attend mediation and have their lawyer present, then that's one choice they can entertain.

All of us, and all of the members of our executive, and most family law lawyers I know, try to present each client, whether they're victims of family violence or not, with every option that's available. Once you get to know the client, you can help them in many ways: sending them to psychologists for counselling; assisting with understanding the process; setting up four-way meetings with the other lawyer and the clients to make them feel more comfortable; simply, in certain circumstances, going into court and getting them a court order that gives them protection if the violence is of that nature.

So as lawyers and as the participants in the legal system, I think they need the full range, and the judges need the full flexibility to make the kinds of orders they need to make.

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Ms. Carolyn Bennett: But really, it's the word “mandatory” that upsets people when they say that everybody should have mandatory mediation. Is that the upsetting word?

Ms. Heather McKay: I think so. Here's the other thing, however, that I just want to draw your attention to. There are some jurisdictions that have defined mandatory mediation. It's hard to mandatorily mediate when you don't have two parties that want to go in there and talk.

What is sometimes better is a mandatory conciliation process where each person would go to a trained mediator or trained person and be given some information. That's where we go back to the parental responsibility clauses and the parental education. We think that would assist.

Ms. Carolyn Bennett: I just wanted to know when we'll get to see the video.

Ms. Ruth Mesbur: I've seen the first rough cut and it's wonderful. Interestingly, on that, the video, in Ontario, was done by volunteers. Again, there were lawyers, mediators, judges, and the parties. Everybody was playing their roles. It's terrific. It was professionally produced. It was shown to a number of focus groups, all of which had wonderful things to say about it. It's actually very powerful and very moving.

It's in the process, as I understand it—I missed a meeting this morning to be here—of being authorized for release by the premier's office, because it's partly funded by the Attorney General's ministry. Hopefully, it will be out and up and running by July 1. I hope you'll all have an opportunity to see it.

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

Ms. Bakopanos.

Ms. Eleni Bakopanos (Ahuntsic, Lib.): Thank you, Madam Chair.

Dr. Bennett took some of the questions I was going to ask. I'll make a comment, first of all.

I think it's a great recommendation in terms of having an educational process. I would say we should begin it at grade 1 for everyone, kids and adults. So I really, really endorse that. I think it's very useful. Congratulations to the Government of Alberta.

When you talk about a government-funded parental education program, are you referring to the provincial government or the federal government, with education being under provincial jurisdiction?

Ms. Heather McKay: I think what we're saying is that we'd like some funding from the federal government to deal with these issues because these issues are under the Divorce Act as well. So there is always that jurisdictional issue, but certainly, if the federal government can save some money in the long term by having less litigation, fewer matters being heard by the court, in the end it's going to benefit everyone, especially the children.

Mr. Eugene Raponi: I think as lawyers we recognize the difficulty in a federation where there are different levels of government having different powers and so on, but the fact is that there is allegedly some money savings through the new tax regime, and that money ought to be put back into the system in such a way as to help children and parents.

Ms. Eleni Bakopanos: You don't mention educating judges in your brief. If you did mention it in your oral presentation, I wasn't here, I'm sorry. You said to educate the public, parents, and police officers, but not judges. Did I misunderstand you?

Mr. Eugene Raponi: In our previous brief, we addressed that specifically. That previous brief continues to be the policy of our group, but clearly we don't want to exclude judges from learning.

Ms. Eleni Bakopanos: Thank you very much.

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

Senator Mabel DeWare: First, I want to welcome you here today, and I apologize for being late. I never heard tell of a plane having a flat tire, but mine did.

I don't know whether you mentioned in your deliberations at what time you felt the age of the child should be taken into consideration in terms of their wishes. I realize the child can't make the decisions because they're underage in most cases, but they can have an influence with their feelings. At what time do you really have to take their wishes into consideration?

Ms. Ruth Mesbur: Our proposal says that, in terms of best interests, the wishes of children are appropriate where they can reasonably be ascertained. Obviously, with a one-year-old or a two-year-old, you can't. We're not suggesting that children be interviewed by judges, but certainly child advocates, and in Ontario the Office of the Children's Lawyer, are quite skilled at meeting with children who are relatively young.

• 1700

They don't say to them: what do you want? They instead ascertain from them what their feelings and desires are in terms of ongoing relationships with both of their parents. So I don't know that you can say it's at this age or that age, but you can create systems where you can get age-appropriate information from children at various ages.

Senator Mabel DeWare: It was interesting. We had one young girl come before our committee who said that she felt she was ready to make her decisions at 12. She hoped that somebody would listen.

Ms. Ruth Mesbur: Sometimes they are; sometimes they're not ready to make decisions ever.

Senator Mabel DeWare: I think they're discussing whether they should have to go live with one parent when they really didn't want to. Those are the kinds of decisions they're concerned about.

When you've got a really serious problem with two people who really don't want to get along and aren't really considering the rights of the child, is that when the advocate could step in and present that child's case or let the judge know that we do have a situation here where they should be thinking about the rights?

Mr. Eugene Raponi: Yes. That's a situation I've been involved in, as are many child advocates. Again, as Ms. Mesbur said, it's a situation where you don't necessarily give the ultimate decision to a child, depending on that child's maturity or age, but you want to ensure that the child has input. So by talking to the child and other people, you can understand and advocate for what's in the child's best interests.

Senator Mabel DeWare: I think that's important.

Thank you, Madam Chair.

The Joint Chair (Senator Landon Pearson): Mr. Forseth, you have another question.

Mr. Paul Forseth: In your brief, on page 13, it says:

However, when access problems are deliberate and persistent, a judge should have the power to order the police to intervene and enforce the access. In the limited situations where parents frustrate access and the problem cannot be addressed by mediation or education, contempt charges or a change in custody arrangements are already possible remedies. While we believe that the ad hoc use of police for access enforcement is traumatic and not in best interests of the child, we recommend that a number of officers in every police force receive specialized training and education to enable them to intervene in these difficult situations, equipping them with the tools necessary to deal with parents in conflict and the children who are caught in the middle. All matters involving children, including child protection, domestic violence and access enforcement could then be assigned to a specially trained unit.

Well, it's my observation that we already have a rather high skill level with the police to deal with all kinds of domestic situations or whatever in a household. Would it not be helpful to have a legislative base for the police, on a rare occasion under the direction of the court—so there would be a further court proceeding—to stand by and preserve the peace as an access parent attempts to exercise their access by appointment? Right now, it's just under the general provisions of contempt.

You outline perhaps some situations that go beyond even my contemplation when you say that the police should intervene and enforce the access. I don't know how a policeman would do that. But should there not be a legislative base for that in view of what you're talking about in your paragraph?

Mr. Eugene Raponi: What we recognize in those comments and recommendations is that police do become involved in situations involving children. For example—this happens probably more often than we would like to see—consider child protection matters. When a child has to be removed by a social worker in a situation where it's clear that there will be some difficulties, they will have a policeman or policewoman stand by to assist them in exactly the circumstances you've outlined.

What we're suggesting is that, in those situations, the police officers should have training and that special units should be created that have sensitivity to what's going on for the child.

For example, the Hague convention, where there are abduction cases, contemplates the child being removed and returned to the custodial parent. In those situations, typically, the police will get involved.

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What we're saying is that knowing this happens, we should have police who are trained specifically for that function. What we're saying in terms of private custody is that this almost would never be suitable, but it might be, so the same sensitivity training and the same individuals could be employed for that use.

Mr. Paul Forseth: Okay, but my question is around providing some legislative base to that rather than just leaving it open to the contempt of court situation.

Ms. Heather McKay: In section 96, judges have the jurisdiction to include a provision in a court order—I've had it done—requiring the police to assist with access. That's very rare, but I know I've heard of people taking their court order to the police, asking them to go with them, and the police will go. I don't think that's the best approach to access, but that has happened, and there is the jurisdiction there to do it. The police can enforce a court order.

Mr. Paul Forseth: Under the situation you've described, you've got a complainant who is in essence saying that an offence might occur. Often it's while they're knocking at the door to exercise access that some other Criminal Code offence is likely to happen. When they open the door, they're likely to be assaulted or something.

Mr. Eugene Raponi: The court can—it often does this, for example, in restraining orders—specifically embody in the order a provision for the police to enforce the order summarily. That can be, and is, done all the time in terms of orders.

We're saying that it's not every police person that ought to attend in those situations; it ought to be those police persons who have had specialized training.

Ms. Heather McKay: It's very traumatic for children to be confronted at the door with a police officer under any circumstances, which is why we were recommending they be specifically trained. I know that in Calgary now they have set up a special division in the city police to deal with domestic violence issues, and they are specially trained.

Mr. Paul Forseth: Okay, so you outline a range of scenarios, but my question still remains: should there not be some legislative base within the Divorce Act that contemplates the range of choices the court may take? This is rather than just the unstated power of the court to make remedies under its general contempt provisions, which can be a very spotty situation with the luck of the draw in terms of what judge you get.

Mr. Eugene Raponi: We don't believe so. We believe those are extraordinary remedies. They're remedies that would only arise once an application has been made to the court. Every section 96 court judge is aware of his or her powers, and we see no point in enumerating those things in legislation.

Mr. Paul Forseth: But the point of the legislation is the signal it sends and the ability of those involved to provide peace and order to the community. That's the underlying assumption of why we have a Criminal Code and everything else. It's for what signal it sends to the community.

Ms. Heather McKay: No, I think we have to look at what signal we want to send. It is not our recommendation that the signal we send out is that a denial of access will land you in jail, nor is it our intention or desire—we can't do this—to legislate for the many people who do not exercise their access.

I think it goes back to our same premise at the beginning. It seems rather unfair to put a signal in there that if you don't do exactly what the order says, you will go to jail only if you're the parent who's denying access. You don't have any enforcement provisions for the parent who is not exercising access, which we previously stated affects the child just as drastically. We think it's more appropriate to leave the flexibility with the judge to look at the best interests of the child.

Mr. Paul Forseth: It's a circular argument, and now we've come back to what is “best interests”. I'll leave it at that temporarily.

The Joint Chair (Senator Landon Pearson): Are there any other questions? Senator Jessiman, do you have another one?

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Mr. John Hoyles: As a point of information, my three colleagues have all made plans based on their understanding that this committee was going to conclude at 5:30 p.m., and they have planes to catch. We're in the hands of the committee, but as they're here on a pro bono basis, I don't want them yelling at me that they missed their planes.

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

Senator Duncan Jessiman: Recommendation 3 on page 12—are you suggesting to this committee, because it is a committee in respect of the Divorce Act, that we put something in the act to that effect? You say “that separating spouses be required to attend a government-funded parental education program before commencing...”.

I think we all agree with that, but where do we do it? Is it your recommendation that something like that be placed in the Divorce Act?

Mr. Eugene Raponi: I think that probably exceeds our area of expertise, but my sense is that you do not need to put it in the legislation. It's a question of practice. It's probably in provincial jurisdiction, and it's a question of how access to justice is administered. If it's a requirement in any registry that prior to issuing a divorce petition, for example, the parents attend the parenting courses, except in extreme circumstances, you need not amend the legislation in order to provide for that.

Senator Duncan Jessiman: How do we provide for it? You say it's—

Mr. Eugene Raponi: You recognize that it's important and you recommend that it be done. I think the recommendations you will be making—I may be mistaken on this—are not directed at suggestions in terms of amendments to the legislation. Your suggestions can go beyond that, talking about programs and other things, that there ought to be funding for and work done by the various levels of government to ensure that the best interests of the children are looked at.

Senator Duncan Jessiman: We'll do that.

On the same page, page 12, you'll have to explain this statistic to me. We are talking about access and enforcement and you're saying it isn't nearly as bad as non-payment. You say, and this is the last sentence of the second last full paragraph:

For example, a Manitoba study found that there is 85% default rate on the payment of child support, but only a 15% problem of access denial.

I can see if it's less than a 6:1 ratio. Are you saying that out of all the people separated and divorced in Manitoba, 85 out of every 100 default in payment? I can't believe that's true.

Mr. Eugene Raponi: My understanding of where that comes from.... First of all, it's a reference from an article that we referred to, but one of the members of the national executive had some personal knowledge of this matter. As I understand it, it arose from an enforcement program that was established in Manitoba to assist parties in enforcement of both access and maintenance. They were required to address these problems in that program at an 85% to 15% rate, and as a result they disbanded the access enforcement aspect of the program because it was under-utilized.

Senator Duncan Jessiman: Just explain. Is it 85 out of every 100 who don't pay and 15 out of every 100 who are denied access? I want you to tell me whether that's what you're saying, because if that is what you're saying, I want to ask another question.

Mr. Eugene Raponi: I don't think we can answer that.

Senator Duncan Jessiman: Let me go forward. Let's assume that I'm reading it correctly. I'm told there are 70,000 divorces each year. If 15% of them—and I don't say there are, but that's what you say—are denied access, that's 10,500 cases of denial of access each year. If you think that isn't substantial, I do. So I think we've got to get those statistics. If the figures are that 85% don't pay and 15% don't give access, then we have 10,500 cases of refusing access every year, which seems to be horrendous to me.

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Mr. Eugene Raponi: Senator Jessiman, I think you've touched upon an issue that we discussed earlier that I think is very important. One of the things that needs to be done is to determine with objective scientific evidence precisely what the nature of the problem is.

My understanding of this is that it's not 15% of all divorces that had the problem with access denial; rather it was 15% of the experience of the program in Manitoba that had that. However, it seems to me that one can't make recommendations in respect of a problem without knowing precisely what that problem is.

Senator Duncan Jessiman: I agree with you. I'm only using your statistics. You gave us these percentages. I just used it to say it looks to me, if those percentages are correct—I don't think they are—that we've got a much bigger problem than I thought we had.

Ms. Heather McKay: The percentages don't apply to the overall divorce system but to that one limited program in Manitoba that was dealing with access and maintenance enforcement. That's why they had to disband it—because there was not a lot of access denial that they had to deal with. Perhaps we could have worded that more specifically, and we apologize for that, but that's what it is with respect to.

Senator Duncan Jessiman: Okay. I have a few more questions here.

The Joint Chair (Senator Landon Pearson): Senator Jessiman, there is another person who wants to speak, and I want to let them go at 5:30 p.m.

Mr. Harb.

Mr. Mac Harb (Ottawa Centre, Lib.): Thank you.

I just have a question concerning page 9 of your presentation dealing with grandparents' rights. In the event a father or mother passes away, or they have divorced and there is a new marriage in the picture, why do you still not believe there should be legislation in order to facilitate the access of grandparents to their grandchildren in those events?

Mr. Eugene Raponi: I think Senator Jessiman asked that question earlier. Our position is that there are effective remedies in those circumstances. Grandparents, by virtue of their relationship with the children, in our view are dealt with appropriately and seen to be important members of the extended family. There are remedies both in the Divorce Act and in provincial legislation to deal with that particular problem.

Mr. Mac Harb: So you don't think we should make it easier for them to make an application to the court in order to seek access through them in the circumstance or event that there is a divorce and the new parents do not want their grandparents to continue to see those children?

Mr. Eugene Raponi: I don't think it's a question of making it easier. Right now I think it is easy for the grandparent to make that application.

The Joint Chair (Senator Landon Pearson): Senator Jessiman, do you want to have a final question or are you finished?

Senator Duncan Jessiman: I could stay for an hour, but—

The Joint Chair (Senator Landon Pearson): I know.

Senator Duncan Jessiman: I've got lots here. I've worked on this.

The Joint Chair (Senator Landon Pearson): Okay. How about two more questions so they can catch their flights?

Senator Duncan Jessiman: They have 10 minutes. My notice said 6 p.m.

Page 14 of your brief deals with mobility. As you know, at present the act provides that if someone moves out of the province—we're talking about the custodial parent taking the child out of the province—they have to give 30 days' notice. You're suggesting it should be extended to 90 days so that it gives the non-custodial parent an opportunity to start an action.

What would be wrong with putting the shoe on the other foot? Why shouldn't there be some responsibility on the person who wants to leave the province with the child, who wants to take the child out of the jurisdiction, to apply to the...if they can't agree? We all agree that most of the parents who are separating do make agreements, and if a person wants to move out of the province they usually can agree on terms on which they'll do that. At the moment they have to give 30 days' notice, and that's all they have, but you're suggesting it should be wider so that it gives you more time. What's wrong with saying the person leaving should apply, not the person trying to stop them from leaving? Why isn't the onus on the person taking the child out of the province?

• 1720

Ms. Heather McKay: Actually, the onus is not put on either party. Either party can bring that application. Frequently the parent wanting to remove the children from the jurisdiction brings the application.

Senator Duncan Jessiman: They're not obliged to under this legislation now. They just leave if they give them notice. If they give them notice, nothing happens; they leave.

Ms. Heather McKay: That's right. If they give them notice and nothing happens, they could leave, but practically speaking that's not what happens. In reality, for the most part what happens is parties probably would have dealt with it in the separation agreement. I usually put a clause in there that neither party will remove the child from the jurisdiction without appropriate consent or an order of the court.

Senator Duncan Jessiman: And why wouldn't we put that in the legislation? It seems reasonable. You put it in your agreements. It's only you people who are practising...but some people who separate don't have the same kinds of lawyers; they don't have it in those agreements. They look at the legislation and say, give them a 30-day notice and out of here.

Mr. Eugene Raponi: This is because the underlying theme is that judicial intervention only occurs if it's necessary. This is in another part of the brief. In a situation where 90 days has been given as notice by the custodial parent to the non-custodial parent, and that non-custodial parent does nothing, then why invite the court application if there's no reason to do so?

Senator Duncan Jessiman: Why should the onus be on—

Mr. Eugene Raponi: If that's a problem, then the ability is there for that non-custodial parent to apply.

Senator Duncan Jessiman: I think that's unfair.

Ms. Heather McKay: If the non-custodial parent gets the notice and they say to the custodial parent, you are not leaving without my permission, then there's a Mexican stand-off. One or the other of them has to bring the application.

Senator Duncan Jessiman: It should be clear in the legislation. It doesn't read that way, and I thought I read it fairly clearly. If that's all they have to do, it doesn't say, if the other party says no, then we go to court to decide it.

What you're saying here is give it 90 days so they can apply to the court to stop it from happening.

Mr. Eugene Raponi: Practically speaking, when that happens and the custodial parent elects not to bother getting a court order and leaves—

Senator Duncan Jessiman: Or doesn't go...it's not a question of neglecting to because—

Mr. Eugene Raponi: If the custodial parent elects not to bring an application and no application is brought within that 90-day period and he or she simply leaves, there is a difficulty there. That person will be advised by his or her lawyer not to do this.

The difficulty is what happens if he or she chooses to move to the other city, and then the application is brought and the judge agrees with the non-custodial parent and he says to bring that child back. That's the risk you run if you don't bring the application. That's why you will probably be advised, as the custodial parent, to bring the application.

Senator Duncan Jessiman: The legislation should be clearer if that's the way it works in practice and if that's what you put in your agreement so that everyone has this protection.

You talk about spousal violence, and we've heard of that, and we've heard rumours that there's going to be some change in subsection 16(9) of the act, where it now says:

(9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.

Surely if a person has been violent before, that past conduct would be relevant to the ability of that person to act as a parent of the child, so it's probably tougher now, isn't it?

Ms. Heather McKay: It's a bit contradictory because on one aspect you say you don't look at conduct, so some lawyers argue—

Senator Duncan Jessiman: You don't look at conduct unless the conduct is relevant.

Ms. Heather McKay: I agree. And then at some point there was some social scientist, I believe, who said that spousal violence may not necessarily be relevant to parenting, only violence toward the child.

What the social scientists are now saying is that any form of violence within a family—spousal violence, violence to the child, sibling violence, or whatever—could be a factor that should be considered in the best interests of the child.

Senator Duncan Jessiman: That still would be covered under the present act.

Ms. Heather McKay: It might be. That's true.

Senator Duncan Jessiman: If you're going to bring in violence, on the other hand, there may be past conduct other than violence that may also not be in the best interests of the child that might be brought up.

Ms. Heather McKay: I agree you need to be careful about what conduct you look at.

Senator Duncan Jessiman: I have one more question.

The Joint Chair (Senator Landon Pearson): All right.

• 1725

Senator Duncan Jessiman: Most people agree that unified family courts are a good thing, but we had one counsel who says they're the largest firm in Canada that does family law, Merchant Law Group. You must know them. They're out of Saskatchewan, but they have offices in various cities in Canada.

They think the unified family courts have gotten to be such that the judges think they know more than the lawyers and they're better off just getting persons who are ordinary judges. I would think otherwise. I want your view.

Ms. Heather McKay: We support unified family courts. Many of our members and members of our executive come from jurisdictions with unified family courts. They are very happy with the results because of the fact that there can be adjuncts to the unified family court so you get a full-service approach for litigants.

Ms. Mesbur could respond to that even better because she comes from such a jurisdiction. I don't.

Ms. Ruth Mesbur: Ontario has been very pleased with our family court system—

Senator Duncan Jessiman: Manitoba has too.

Ms. Ruth Mesbur: —and has been expanding it. We're hopeful that in Toronto we'll be getting one of the unified family courts.

Senator Duncan Jessiman: You are not going to agree with my last question. What do you know about the experience of England? What they want to do is get rid of us lawyers—I'm a lawyer—and they want to get rid of anything to do with the court at all, judges and everything else. They want them to get to the mediation. Do you know anything about it? If you do, tell us what you know and what you think.

Ms. Heather McKay: We know a little bit about it. That wasn't my understanding of what they wanted. In support of family law lawyers, and it's not just because I'm a family law lawyer, I believe most of them are very dedicated to helping people going through these situations. Many times they assist in diffusing the process; many times they give people empowerment by telling them the law and how to go through it. They also give options.

As family law lawyers we discuss this at great length. We wish you to know that most family law lawyers we know try to promote the best interests of the children and they try to work with families to mediate, to arbitrate, to do anything that will assist them. So I don't think it's a good idea to get rid of lawyers.

Some hon. members: Oh, oh!

Senator Duncan Jessiman: You'll be the mediators of the future.

The Joint Chair (Senator Landon Pearson): On that note, thank you. We would like to get rid of you so you can go and get your flight. Thank you very much for a very interesting presentation.

Ms. Heather McKay: Good luck in your committee.

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

No, we're not finished. The first order of business was...remember we did bring forward the sixth report of the subcommittee on agenda and procedures. We were unable to have it—

Senator Anne C. Cools (Toronto Centre, Lib.): They're obliging us. We can do the partial issues first.

The Joint Chair (Senator Landon Pearson): Sorry, this will just take a minute.

Senator Anne Cools: This takes discussion.

The Joint Chair (Senator Landon Pearson): I'm sorry. I'm in the hands of the committee. We had agreed we would put this forward first, and if the committee wishes to move to—

Mr. Paul Forseth: We'll stand it down.

Senator Anne Cools: Just go on to the next issue, to the—

The Joint Chair (Senator Landon Pearson): No, I just want to have the committee's opinion on whether they want to deal with this one first or...it's up to the committee to decide.

Do you want to deal with the sixth report, which would be quite quick?

Mr. Paul Forseth: Can we stand it down to the end?

Senator Anne Cools: Can we stand it to the end of the committee meeting?

The Joint Chair (Senator Landon Pearson): We can, but does all the committee agree to that?

• 1730

Senator Anne Cools: A point of privilege takes precedence. I thought you knew the rules.

Senator Mabel DeWare: Madam Chairman, can this item be postponed until Wednesday, if we stand it down?

The Joint Chair (Senator Landon Pearson): Our concern is that we need 12 people to pass it.

Senator Mabel DeWare: And we might not have 12 on Wednesday?

The Joint Chair (Senator Landon Pearson): I would hope we'd have that on Wednesday, but the staff needs the permission to go ahead with the arrangements, that's all.

We're in the hands of the committee. If the committee wants to postpone it, that's fine.

Senator Anne Cools: Let's stand it for a few minutes, Senator Pearson. That was suggested.

Ms. Eleni Bakopanos: Senator Cools, what's wrong with adopting this issue?

Senator Anne Cools: Because this has not been discussed at all. There has been no discussion on it so far—unless one wants to take 10 or 15 minutes and have a discussion on it first.

The Joint Chair (Senator Landon Pearson): Do you wish to stand it and then have the other issue dealt with first?

Mr. Paul Forseth: Or deal with them both today.

Senator Anne Cools: Yes, but deal with the first one first. Deal with the pressing one. One doesn't have any choice, according to the rules.

The Joint Chair (Senator Landon Pearson): Well, the two of us had agreed to go forward with this first.

Really, I'm in the hands of the committee. If you want to proceed with the other one first—

Mr. Paul Forseth: Can we do that?

Senator Anne Cools: I have a point of privilege to raise, then.

The Joint Chair (Senator Landon Pearson): All right.

Senator Anne Cools: Am I on?

Chairman, maybe you should give a little bit of background on how we got here.

The Joint Chair (Mr. Roger Gallaway (Sarnia—Lambton, Lib.)): I can tell those present that on April 20, Senator Cools raised to the committee a matter of privilege. That privilege revolves around or emanates from an article that appeared in the Toronto Star, written by Michele Landsberg, on April 18, in which she makes certain statements regarding this committee.

Senator Cools on April 20, which was the first possible date after, raised this matter before the committee as a matter of privilege. At that time we agreed, after some discussion, that the discussion would be suspended until this date. Therefore, we are resuming debate where, in a sense, we left off.

Senator Cools, would you like to speak?

Senator Anne Cools: Thank you, Chairman.

Basically, what I had done on April 18 is to place on the record what I thought were some extremely offensive statements, offensive to Parliament and to the committee in particular. At the outset I made it quite clear that, yes, the article attacks individual members of the committee very personally, but the issues I was asking the committee to consider were what I considered to be the attacks on proceedings in Parliament.

Before I press on, I'd just like to cite Erskine May in his very famous Treatise on the Law, Privileges, Proceedings and Usage of Parliament”, the twenty-first edition, at page 127:

Analogous to molestation of Members on account of their behaviour in Parliament are speeches and writings reflecting upon their conduct as Members. On 26 February 1702 the House of Commons resolved that to print or publish any libels reflecting upon any Member of the House for or relating to his service therein, was a high violation of the rights and privileges of the House.

Written imputations, as affecting a Member of Parliament, may amount to breach of privilege, without, perhaps, being libels at common law, but to constitute a breach of privilege a libel upon a Member must concern the character or conduct of the Member in that capacity.

In addition to that, at page 129 of the very same document of Erskine May, under the heading, “Misrepresenting Members' proceedings”, I cite:

Wilful misrepresentation of the proceedings of Members is an offence of the same character as a libel.

On 22 April 1699 the Commons resolved, `That the publishing the names of the Members of this House and reflecting upon them, and misrepresenting their proceedings in Parliament, is a breach of the privilege of this House, and destructive of the freedom of Parliament'.

• 1735

The article in question, and there was some previous debate.... Paul just pointed out to me that Ms. Landsberg has launched yet another attack on the committee—

Ms. Carolyn Bennett: Quoting Hansard verbatim.

Senator Anne Cools: —quoting Hansard verbatim, yes. This is not this article we're speaking about whereby we're raising this.

The question that is directly before me is the issue of April 18, so we must be mindful of that. I just noticed that it continues. In this article, May 2, 1998, again the committee is under attack. It says here, “the committee hearings so far have been an insult to reason”. It continues: “And this same committee will be recommending new custody laws to Parliament. That's why I have so little room to speak in praise...”. Well, that's unnecessary.

It is very crystal clear. It is not individual. The attacks are very clearly on Parliament, and there are a couple of ways we could proceed. I look for guidance to the chairman. Do we want to have some discussion and then move on from there? I have a motion I could propose.

The Joint Chair (Mr. Roger Gallaway): Someone has asked to speak.

Ms. Shaughnessy Cohen (Windsor—St. Clair, Lib.): I'd like to put the motion.

The Joint Chair (Mr. Roger Gallaway): All right. Why don't you put the motion and we'll have—

Senator Anne Cools: The motion is on the table. It was done before. Anybody can speak to the motion. Once the motion is before us, the debate is on the motion. Shall I move it?

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

Senator Anne Cools: It's a deliberate misrepresentation of committee hearings and committee members' activities, and it's an attack on the committee, the committee chairman, and the proceedings of Parliament itself. That being the case, I propose the motion as follows:

That a purpose of Parliament's privilege is the performance of Parliament's democratic representative function in the service and representation of the public, the citizens of Canada; and

the Law of Parliament asserts that the protection of Parliament's privileges and the protection of Proceedings in Parliament are the bounden duty of individual Members, and of the Parliament of Canada collectively; and

the Special Joint Committee on Child Custody and Access, wishing to uphold these privileges, and being concerned that Michele Landsberg's article in the Toronto Star, April 18, 1998, is a breach of the Law of Parliament and a contempt of Parliament; and

that the Committee, wishing to express confidence in its Joint Chairs, Senator Landon Pearson and Roger Galloway, and in the Parliament of Canada, ask the Joint Chairs to advance the Committee's concerns regarding a contempt of Parliament in the respective Houses of Parliament.

The Joint Chair (Mr. Roger Gallaway): Do you have a copy of that you could give to our clerk?

Do you want to speak now? Then we'll have Senator Jessiman.

Senator Anne Cools: Go ahead.

Ms. Shaughnessy Cohen: I would agree that Michele Landsberg in this article is irresponsible. It's clear to me that she's spoken irresponsibly and that she's spoken I think without probably knowing what she's talking about. Having said that, I think to puff one's self up and come down on her like a ton of bricks is an overreaction in this situation.

There are other ways to deal with this. One way to deal with it would be for the committee or for a member of the committee to make a complaint to the press council. I think she should be dealt with by something probably greater than a letter to the editor.

Parliament is an institution that should be able to command respect on its own, and we're judged by our behaviour. It seems to me to come down like a ton of bricks on an issue like this on someone who's expressing an opinion in a free press is a bit extreme, and I suggest it would reflect badly on the institution of Parliament. It's very easy to get on one's high horse, and sometimes it's very hard to get off.

• 1740

My view personally is that there should be a complaint, probably to the press council, and that this kind of emotion is an overreaction to the ramblings of an irresponsible journalist.

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

Senator Duncan Jessiman: As a committee we should take advice on this from counsel. As far as the Senate is concerned, I think we should refer to our own solicitor, Mark Audcent. I assume there are similar people in the...or we should agree on counsel. The committee should agree on either one or both or an independent. I would think before it goes further, we as members should get advice on how drastic this is, how bad it is. She's out to get somebody here, and it looks like us. I think we should get advice. It's my view.

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

Senator Mabel DeWare: Mr. Chairman, I think I have to sympathize a bit with Shaughnessy in this area, because anyone who's an elected member of Parliament or of one of the legislative assemblies in this country has been ridiculed by the press over and over. We don't like it. They write cartoons about us. I think Claudette has just been through a little case of that.

If we all wrote to the press or to the person involved and said we don't like it, it would just add to the situation and they would be back at it again.

I feel Senator Cools had the right to bring it up in committee at the appropriate time. It's on the record of this committee, and it will stay there. If we feel our own counsel should be spoken to, we could go that way first to find out what advice they have. Maybe we could take it to the Board of Internal Economy and ask them what advice they have.

I couldn't agree with the motion that Senator Cools has put on the table today.

The Joint Chair (Mr. Roger Gallaway): Do you want to speak again?

Senator Anne Cools: Yes. The motion is extremely mild mannered and essentially says nothing very heavy-handed. Maybe I should read it again.

All the motion seeks to assert is that the committee has confidence in its chairmen. The motion seeks no conclusion on the issue of content. The motion is so mild as to be purring very, very gently.

The fact of the matter is those articles she has written are being repeated across the country—I offer members the verbatim account of the hearings of the day itself that she was writing about; I could offer it to members. In any event, the fact remains that it was a very bilious and a hateful, vitriolic attack on the Senate committee. Its wanton disregard for the truth or the events of that committee I thought were very, very shocking. As I said before, I view it as a deliberate misrepresentation and a deliberate manipulation of what happened that day.

It may very well be that truth is irrelevant in today's community, or it may very well be that truth is irrelevant to some. In any event, the fact of the matter is that it is not an individual in these articles who is under attack, it is a proceeding in Parliament.

• 1745

I would also submit that any journalist or any person who's writing such articles in respect of Parliament's privileges and in respect of parliamentary papers and activities would first of all have a strong commitment to tell the truth, and these articles certainly do not reflect the truth. In addition, I would say the individual journalist and the publisher certainly have the responsibility to publish in good faith and without ill will.

My motion is premised on a very straightforward set of principles: that we believe that Parliament is an important institution and that Parliament's privilege is to do its work. Representing the citizens of this country is very important. I move that the committee, feeling that somehow or other the committee members and the chairmen have been offended or slighted, express to the public at large that when our committee is under attack, some sort of confidence be asserted in the chairmen themselves.

The only conclusion the motion makes is that the committee wishes to express confidence in its joint chairs and in the Parliament of Canada, and it asks the joint chairs in their discretionary way, using the skills they want, to proceed in the individual Houses.

Having said that, Chairman, go ahead. You can call your vote.

Ms. Eleni Bakopanos: We have dealt with this issue. We have had a problem having a quorum. As far as I'm concerned, we've heard both sides of the issue. I'd like to vote.

The Joint Chair (Mr. Roger Gallaway): Mr. Forseth was on the list, so we'll let him speak last.

Ms. Eleni Bakopanos: Oh, sorry.

Mr. Paul Forseth: Thank you.

From my perspective, I've seen four articles, and we're almost looking at hate publishing here.

There are different standards for reporting per se, as compared to offering an opinion column or a journalistic interpretation of issues of the day, but still there are reasonable bounds where comment becomes contempt of the powers and standing of Parliament. Of course we need critical comment, but what I've seen in the overall pattern of the articles is that it does go over the edge into contempt.

From our view, related to the concern of being controversial and thereby maybe selling more newspapers, I think these kinds of products would actually cause a loss of the reputation of the paper and maybe sales would go down. But that's the freedom of the market and that's the democracy of public opinion, and public opinion does weed out the excesses. But we're in a different situation here. There are fundamentals to be protected, and we need to be mindful of that.

The Joint Chair (Mr. Roger Gallaway): Okay. Anyone else?

So we'll put the question.

(Motion negatived)

Senator Anne Cools: The chairmen have to resign.

Mr. Paul Forseth: You've just voted non-confidence—

Senator Anne Cools: You've just voted non-confidence in your chairmen.

Mr. Paul Forseth: Yes.

Ms. Eleni Bakopanos: No, we didn't.

Mr. Denis Coderre (Bourassa, Lib.): We voted against your motion. We didn't vote against the chairs.

Ms. Eleni Bakopanos: Not at all.

Mr. Denis Coderre: Thank you very much.

Ms. Eleni Bakopanos: Can we now go to the other order of business?

The Joint Chair (Mr. Roger Gallaway): We can.

Ms. Eleni Bakopanos: Thank you.

The Joint Chair (Senator Landon Pearson): What we have in this sixth report is with respect to our future business.

We have a proposed hearing scheduled. Really it's not anything particularly complicated. It's to hear expert individuals and professionals and aboriginal groups, which conforms with the themes we agreed to at the beginning, but we need the approval of the committee to go ahead and make the arrangements.

Then we agreed that six members and two staff could attend the 35th annual conference of the Association of Family and Conciliation Courts in Washington.

Also—and this was important—the steering committee agreed on an in camera meeting, to be organized with a panel of judges, and that the panel be representative of the regions of the country. We agreed to hear some testimony from children in camera from the Victoria separation and divorce program.

• 1750

That's all it was, those four items. Can someone therefore move this report be adopted?

Senator Mabel DeWare: I so move.

(Motion agreed to)

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

We stand adjourned until Wednesday at 3:30 p.m.