EVIDENCE
[Recorded by Electronic Apparatus]
Friday, May 1, 1998
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[English]
The Joint Chair (Senator Landon Pearson (Ontario, Lib.)): Good morning. Welcome. We're very pleased to be in Winnipeg. We would like to welcome those who are going to speak to us today.
We would like to start off the day by reminding everyone what the mandate of our committee is. The mandate of this special joint committee is to examine and analyse issues relating to custody and access arrangements after separation and divorce. In particular, we will assess the need for a more child-centred approach to family law policies and practices that would emphasize joint parental responsibilities and child-focused parenting arrangements based on children's needs and best interests.
Our first witness today is from the Manitoba Association of Women's Shelters, Ms. Waltraud Grieger.
Senator Duncan J. Jessiman (Manitoba, PC): Madam Chair, what happened to our first witness?
Ms. Waltraud Grieger (Executive Director, Manitoba Association of Women's Shelters): That's me.
Senator Duncan Jessiman: Oh, I've got Waltraud Krieger from Nova House.
The Joint Chair (Senator Landon Pearson): Yes, that's her: Waltraud Grieger.
Senator Duncan Jessiman: Oh, I'm sorry. Okay.
Ms. Waltraud Grieger: I'll perhaps clarify that. When I initially called to do a presentation for the panel, I was going to do it on behalf of the shelter of which I'm the executive director. Since then, the provincial association of shelters has had a meeting, and I've been delegated to present on behalf of the Manitoba Association of Women's Shelters.
Senator Duncan Jessiman: Thank you.
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The Joint Chair (Senator Landon Pearson): Our pattern is—
Senator Anne C. Cools (Toronto Centre, Lib.): In the future, the committee should be aware that there's a change. Perhaps the committee might have a different point of view, but these people just don't make these changes on their own; the committee has to grant permission, of course.
Senator Duncan Jessiman: Nova House is part of your association, right?
Ms. Waltraud Grieger: Nova House is a women's shelter for abused women and children in Selkirk, Manitoba.
Senator Duncan Jessiman: Right, and it's part of the association.
Ms. Waltraud Grieger: Yes. We're a member of the Manitoba association.
Senator Duncan Jessiman: Thank you.
The Joint Chair (Senator Landon Pearson): Our pattern is to ask you to speak for approximately five minutes so there's time for questions.
Ms. Waltraud Grieger: First of all, good morning.
From the outset, I would like to submit my concerns to the members present this morning regarding the lack of information being distributed regarding the joint Senate-Commons committee hearings on the government's proposed child support bill. I was informed by sheer accident last Friday at a youth and corrections meeting that you were going to be arriving in Winnipeg today. As a result, I have not been able to prepare a detailed copy for distribution this morning.
I'm here this morning representing the Manitoba Association of Women's Shelters in the capacity of having served seven years as president and this year as past president.
Thank you for giving me an opportunity to share my concerns with you and suggest quite strongly recommendations that will work toward the well-being and safety of children across Canada. I want to believe that the government bill will strengthen and give more teeth to the child support provisions and make it more difficult for parents to renege on their responsibility to their children.
During the past decade, there has been a growing awareness within the criminal justice system, and generally among everyday people in the community, of the serious problem of domestic violence, wife abuse, and the children who are affected by that.
Senator Anne Cools: I have a point of order, Madam Chair. I believe the witness says she's speaking to the child support bill, and I believe she says she wanted to inform us that she had no information on the child support bill.
There is no bill before us in terms of child support or otherwise. Perhaps the chair could read the reference that the committee is studying to the witness again.
The Joint Chair (Senator Landon Pearson): I did.
Ms. Waltraud Grieger: Yes, you did.
The Joint Chair (Senator Landon Pearson): Yes. Do you understand that?
Ms. Waltraud Grieger: Yes.
The Joint Chair (Senator Landon Pearson): We will be making a report at the end of November.
Ms. Waltraud Grieger: Okay.
The Joint Chair (Senator Landon Pearson): Thank you.
Ms. Waltraud Grieger: That's my understanding.
The Attorney General's policy regarding domestic violence is straightforward: there is zero tolerance. Zero tolerance is aimed at ending violence against women and others who find themselves in abusive relationships. It has as much to do with the denunciation of a serious social problem as it has to do with changing public attitudes, yet today I stand here to defend whether laws governing child custody and access are fair or unfair to fathers after divorce. My immediate answer, without thinking, is yes and no, with the lack of child support provided by the non-custodial parent, the majority of whom are men.
Though the members of the Manitoba Association of Women's Shelters provided services to 5,017 women in 1995-96, 1,600 of those were children. As service providers, we believe that any child who lives or has lived with violence or the threat of violence is a child in need of protection, a child at risk.
We know that a man who abuses his wife may also abuse his children. Children may be accidentally hurt when they try to stop the violence or protect their mother. Children witnessing wife assault in their home may grow up to be abusive husbands or assaulted wives. Even if children are not the direct target of violence, they suffer from tremendous emotional abuse and possible neglect.
I would encourage the members of the panel to ensure that any legislation regarding well-being and safety needs to be a priority. I need to believe and know that your work will ensure that the children are not being physically or sexually abused, neglected, or deprived of their basic needs.
We are all responsible to ensure that after marriage or relationships end, the abuse does not continue through the children. They are not pawns and should not become the parents' weapon to continue hurting each other.
Fathers, as a way of continuing to abuse the mother, threaten to kidnap the children, make terrorizing calls, and harass mothers about visits, access, or support, and they pursue long, tortuous custody battles. Men are financially more able to tie up the mothers in court, whereas many women are dependent on legal aid.
Fathers should be assessed to see whether their desire for contact with the children is legitimate or whether it's to find out where his wife lives so as to continue to instil fear in her by stalking or harassing her.
The quality of his parenting should have been assessed by now. If there's a genuine interest in the children, it is in their best interests to have this fostered. They are part of him. Children usually want some form of contact with their dad once their fear of him and their safety is alleviated.
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If there is any concern
for either the mother's safety or the children's
safety, visits or exchanges must be terminated or
supervised by a reliable third party.
Mediation is something else that can be pursued, but it can only be effective if the violence has ended and the intimidation has stopped. Mediators must be trained to recognize the effects of violence on mothers and children. When wife assault has still not been addressed and resolved, with the victim safe, the child safe and the offender's behaviour changed, mediation is too dangerous. Violent men cannot be good fathers until their abusive, intimidating behaviour changes.
Violence against women has been defined in the United Nations Declaration on the Elimination of Violence Against Women as any act of gender-based violence that results in or is likely to result in physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private lives. Women's unequal situation renders them more vulnerable to male violence. It is well supported that Canadian women are most likely to be victimized by men they trust, respect and love.
For many, the fear of violence restricts their choices and ability to participate fully and freely in society. A 1993 Statistics Canada violence against women survey found that 51% of women in Canada reported having experienced male violence, defined as physical or sexual assault and considered an offence under the Criminal Code.
The experiences of front-line service providers tell a different story of women as victims and as survivors. From early childhood through adolescence, 81% of the victims were physically abused while growing up in their parental homes. Of the abuse suffered by these child victims, 55% was severe, meaning they were hit with hard instruments, beaten up or had direct threats of physical assault with knives, guns or weapons. Of these child victims of physical abuse, 28% reported that objects had been thrown at them; 51% had been hit with hard objects such as frying pans, hangers, iron cords and belts; 21% had been beaten up by a parent; and 11% had been threatened or harmed by a knife, gun or other weapon.
In describing the violence they had seen in their homes, 63% of victims reported having seen a parent hit approximately 6 to 52 times per year; 24% had a parent hit with hard objects such as hammers, belt buckles or telephones 6 to 53 times; 60% had seen a parent beaten up; 24% had seen a parent threatened or hurt with a knife, gun or other weapon. These statistics come from the 1985 National Family Violence Survey by Gerald Hoteling.
When we review access and custody we are able to convincingly tell a different story. Many of our women reach agreement on access to non-custodial parents without or prior to going to court. We have also become aware of statistics that indicate when fathers apply for custody, they stand a 50-50 chance of getting it. Another report would indicate that fathers who seek custody win 74% of cases at the provincial court level and 91% at the supreme court level. So where's the injustice? If anything, it would indicate a bias toward mom applying for custody.
As front-line workers, we are well aware that 95% of all cases of abuse are men against women. This would be an excellent indicator that children are witnesses to dads abusing their moms. We know and need to be ever vigilant of the irreversible consequences that are thrust upon child witnesses, now and in the future.
What about the court-mandated visits for one evening a week and every second weekend? What do we say to the children when they have been readied for the visit with dad and he doesn't show up? What about the dad who has access and goes back to court to reduce access because his intent of powering control over his wife has not materialized as a result of visits with the children, and she has remained out of the relationship?
How do you think the children feel with their aches and pains because of no visits or visits that are afterthoughts? What about the dad who quits his job and does his work privately under the table for cash so he doesn't have to pay maintenance? What about the dad who is forced into paying maintenance by having his wages garnished through the Parents' Maintenance Act because he doesn't comply? Is this family love or fatherly love, or is it about control and ensuring his wife and children live in poverty to teach her a lesson?
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The Joint Chair (Senator Landon Pearson): You're well over your five minutes. We'll hear your recommendations. Thank you.
Ms. Waltraud Grieger: I'm just about finished.
Who are they hurting? Their children, whom they say they care and love.
We also know that from 1974 to 1992 a married women was nine times as likely to be killed by her spouse as by a stranger. Risk factors found prove that the rate of husbands killing their wives elevates in the aftermath of a separation. An example is the Lavoie murder and suicide that happened in our province, which left three children fatherless and motherless.
From 1974 to 1992 we know that 1,435 women and 451 men were slain by their partners. In Manitoba, 78 women have been murdered since 1990, and in 1997 14 women were brutally killed by their partners. Yet the courts do not appreciate or recognize the high risk women are at after separation.
The courts mandate access visits while the women and children are in shelters. Shelter staff is forced to arrange transportation for visits with dad when charges have been laid and court dates set.
We also know the risk for spousal homicide is far greater in common-law relationships than in registered marriages. Teenaged wives incur the highest risk of being killed by their husbands.
It is also a known fact that in a rare but recurring variety of wife homicide, one or more of the children are also killed in the same incident. From 1974 to 1992 there were a total of 65 such “familicide” incidents involving 172 victims. Men committed 94% of these murders.
The recommendations we have are the following.
Any changes that are made to the act should prioritize the safety of women and children, and that has to be a priority for everybody in this country.
We also want to recommend that we ensure all non-custodial parents are held accountable for the maintenance of their children. Because a separation or a divorce occurs does not abdicate the responsibility for their children.
Our third recommendation is to ensure children are not forced to have access with their dad until all assessments have been done to ensure the mother's and the child's safety is being met.
Thank you.
The Joint Chair (Senator Landon Pearson): Thank you very much.
Mr. Forseth.
Mr. Paul Forseth (New Westminster—Coquitlam—Burnaby, Ref.): Welcome.
You said something to the effect that courts don't recognize the plight or the situation of women. Can you expand on that and perhaps give us some case examples or whatever?
Ms. Waltraud Grieger: Absolutely. When a woman comes into shelter with her children, she will make some decision on whether she's planning to leave this relationship or just needs some time off to think things out and decide whether to go back into the relationship or leave. If she decides she's going to leave the relationship, we encourage her to get some legal advice regarding some interim orders. So she will apply for an interim order in terms of custody. He may get served. At that time it goes back to court and the judge may, and in many cases does, give access, even though the woman is in a shelter.
We have a woman in shelter right now with two children and we are providing transportation for the children so they can have visits while she and the children are in shelter. You have to appreciate that he has been charged with numerous counts of assault and this is pending. But we as a shelter are now responsible to ensure we get the children to these visits, which are three hours in length once a week.
Mr. Paul Forseth: Okay. It's very commendable that you're providing that service, but how do you take that over to the situation that the courts are not sensitive to the situation?
Ms. Waltraud Grieger: Our experience as a front-line service provider has been that when there is a separation, when an order has come into being and when the partner recognizes she is now seriously thinking about leaving this relationship and he has no power and control over her, it really escalates the situation for the woman and the children at the time.
It also concerns me that my staff members are being put in a position where they actually have to transport because Child and Family Services will not accommodate providing those kinds of visits. It puts my staff at risk because I have no way of knowing whether this partner, once the kids are dropped off or picked up, will follow my staff back to the shelter. So for me it's a safety issue.
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Mr. Paul Forseth: Okay, and we'll just take that to the other situation you were talking about. Your first recommendation talked about the safety of a parent or children as the highest priority. Do you have examples where safety is not a priority?
That is your recommendation, but I just turn it around and say, well, sure, but give us some situations where safety is not the high priority so we can identify problems.
Ms. Waltraud Grieger: I would say that for all the women who are in shelter, one of the criteria for entering into a shelter is that safety is the risk for her as well as for the children. I haven't had any women in shelter who I would not see as being at risk.
Mr. Paul Forseth: All right. How many bed spaces do you have in your shelter?
Ms. Waltraud Grieger: We have bed space for 20 women and children.
Mr. Paul Forseth: Okay, and on average during a year how many individuals are cycled through your facility?
Ms. Waltraud Grieger: For the 1996-97 year we basically have had 171 women and 243 children go through the facility.
Mr. Paul Forseth: Can you give us a thumbnail sketch of some of your sources of funding?
Ms. Waltraud Grieger: The majority of our funding is provided through the Province of Manitoba, through family services. We get a grant. We also get a per diem for the number of nights women and children stay in shelter.
We also have access for the children's program through Health Canada through the CAPC project...that are available. It started out as the Brighter Futures program. We also do a lot of fund-raising, and depend on donations from within the community.
Mr. Paul Forseth: What is your mandate as to how long a resident who uses your facility is allowed to stay?
Ms. Waltraud Grieger: At this time we don't have a particular length of time. We used to have 10 days in our province, but that has basically been changed by the Province of Manitoba. Right now it's based on the client, in conjunction with a staff person making the assessment if the needs are longer or shorter. The average length of stay for our shelter is eight days.
Mr. Paul Forseth: It is eight days. Do you keep any statistics about...? I take it that your facility is a women-only facility?
Ms. Waltraud Grieger: Yes, it is.
Mr. Paul Forseth: Staff who are actually engaged in separation, divorce matters rather than.... I could see a scenario where someone seeks the services of your facility. Perhaps she laid the charge against her spouse in criminal court. That may or not be proceeded with. Later she might go on to live with a relative, maybe reconcile at some point, or whatever, but there's no particular involvement with the Divorce Act.
Do you keep any statistics as to the various kinds of legal proceedings in which your residents are involved?
Ms. Waltraud Grieger: No, and part of the reason for that is that we're a short-term crisis intervention facility. It's only within the last two years that we have got funding to do any long-term work with the clients. So we hope we will be able to track that a little better than we have in the past.
No, we have not been able to do that.
Mr. Paul Forseth: I just have one last question. What are the basic parameters for someone to be able to use your facility? I would think that services are scarce, and that any lady who says that she wants to go to your facility.... You have some screening, so you're providing some service to a specific client group.
What are some of the questions you ask? Then you can describe some of the mandate, so you can explain to us who you let into your facility and who you would normally not serve.
Ms. Waltraud Grieger: Basically our mandate is to provide services to abused women. So to be able to get into our facility, women will have to be able to present that they have been physically, emotionally, psychologically, sexually, or financially abused. I would suggest that a large number of our referrals come from other social service agencies, or they self-refer through the crisis line.
Questions that we would ask are, what has happened? What is the most recent incident? Can you explain to us, give us some history? Has there been any previous history? What other agencies have been involved? Have you had any contact with the police? Have you had any contact with a lawyer? Have you had any contact with other social service agencies? Has there ever been any documentation with your doctor about what has happened in your home? Those would be the criteria we would access.
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Mr. Paul Forseth: Thank you very much.
The Joint Chair (Senator Landon Pearson): Senator Cools.
Senator Anne Cools: Thank you very much, Chairman.
Is Osborne House a member of your organization?
Ms. Waltraud Grieger: Yes, they are.
Senator Anne Cools: Okay, I'm just very interested.
You said to Mr. Forseth that have no information on the number of clients you serve who actually petition for divorce or go through a divorce proceeding. You have no information—
Ms. Waltraud Grieger: We would have information about women who have initiated that process. We would not have the numbers of the ones who have completed....
Senator Anne Cools: Very well. Of the women you served, say last year, 1997, how many of those initiated...? First, tell me how many women you actually served, and then—
Ms. Waltraud Grieger: They were 171 and 243.
Senator Anne Cools: They were 171, okay. Of those 171, how many initiated divorce proceedings? How many actually initiated divorce proceedings?
Ms. Waltraud Grieger: Without going back into the client files and actually going through and getting the numbers, I would guess about 50%.
Senator Anne Cools: You're guessing 50%?
Ms. Waltraud Grieger: Yes.
Senator Anne Cools: Is that extremely high?
Ms. Waltraud Grieger: No, I think we're a lot better at providing services. I think we've come a long way.
I've worked in this field for 12 years. Certainly from where I started out 12 years ago, we are much better able to assess, we are much better able to get information out there and let women know that there are resources.
Senator Anne Cools: Absolutely. So perhaps you could send me some documentation on that 50%.
Ms. Waltraud Grieger: Absolutely.
Senator Anne Cools: I have another question about your client body. I'm speaking particularly to the people you serve, just your own service bases.
You make a lot of statements about women being killed. Of the women and children you've served, how many have been killed?
Ms. Waltraud Grieger: I would say that I'm not prepared to answer that question, and I will tell you why I'm not prepared.
The services provided to an abused woman and her children in my shelter are confidential. What I am prepared to share with the committee is the number of women—and their names—who have been killed in the province of Manitoba.
Senator Anne Cools: We have that information, but what we do not have information about is the persons who are being assisted, in other words, your client body, your client population. The information that is public is available to all of us. What is not available to us at all is the information about the client body.
The Joint Chair (Senator Landon Pearson): The witnesses claim for confidentiality.
Senator Anne Cools: This is not a confidential fact. This is not a confidential fact. This information is reported every day. We're not asking for names of individuals.
I'm just asking the witness, because the witness has said that people whom they served are being threatened, and so on. I would think that if the witness had one client who was killed last year, she would know.
Ms. Waltraud Grieger: I guess I would—
Senator Anne Cools: My question—
Ms. Waltraud Grieger: Sorry.
Senator Anne Cools: My question to you is that of the clients you serve, whom you are here to represent, on whose behalf you are here lobbying before...? The question again to you is, of those women you have served, you said you believed 50% actually filed for divorce.
I'm just wondering, of the women you've served, how many have been hurt? I would also ask you how many have been very seriously injured.
Among the children you have served, I would like to know how many have been threatened and hurt in the way you have said. I believe that later on we're having witnesses from the child protection services of Manitoba.
Ms. Waltraud Grieger: I guess what I am prepared to say is that many of the women who come into shelter have been seriously injured. Many of the children have been physically, sexually, psychologically and emotionally battered. That's all I'm prepared to say.
I would say that the 14 women who died in our province in 1997 may or may not have received services from shelters.
Senator Anne Cools: Okay. In 1997 alone, in Manitoba, you're saying that 14 women were killed by—
Ms. Waltraud Grieger: By their partners.
Senator Anne Cools: By partners?
Ms. Waltraud Grieger: Yes.
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Senator Anne Cools: Okay. The national average for women killed by partners is about 60 to 65 for the entire country. First, where do you get that number 14 for that year?
Ms. Waltraud Grieger: Well, it's 14 because we have had 14 vigils for women grieving about their loss of life and the families that have been affected. They're part of our police records and our justice records.
Senator Anne Cools: I'm asking you, does Manitoba have a greater problem than the rest of the country? What I'm trying to find out from you is why the number is so much higher in Manitoba than in the rest of the country?
Ms. Waltraud Grieger: I can't speak to that.
Senator Anne Cools: Maybe there's a bigger problem or something here?
Ms. Waltraud Grieger: No, I would think that domestic violence in all its forms is just as prevalent across Canada as it is in Manitoba.
Senator Anne Cools: Okay.
I have before me that Winnipeg is.... I'd like to verify some of the information we have before us with other studies that are being done, but I understand that a witness coming this afternoon has studied the subject matter.
Thank you very much.
The Joint Chair (Senator Landon Pearson): Ms. Wasylycia-Leis.
Ms. Judy Wasylycia-Leis (Winnipeg North Centre, NDP): Thank you very much, Madam Chair.
I'd like to thank Waltraud for appearing before the committee. Although I'm a new member and I haven't been a part of these hearings, it strikes me that the perspective you bring is vital to the work of this committee on addressing issues pertaining to custody and access.
I am concerned that at the outset you mentioned that you learned of these hearings only by chance. Were you aware of any advertising for these hearings, and how in fact did you learn of them?
Ms. Waltraud Grieger: No, I did not see any advertising, and I guess what surprises me more than anything else is the people who are going to be presenting as witnesses today.
I was at a youth and corrections meeting last Friday, and spoke to Jane Ursel, who is actually going to be presenting this afternoon. I found out that she had been advised by someone in Ottawa that the committee was doing a national trek in terms of finding out about access and custody issues. While I was at the meeting I quickly drafted a letter, faxed it off to my office, had my admin person fax it down to Ottawa, and asked to be put on the agenda.
So I do apologize that I'm not as prepared as I could be, or should have been, but we can both certainly get that information in.
I have talked to other women within other women's organizations, and none of them have been aware that this was going on. I just don't think it's acceptable that we are basically spending government dollars to have this group of individuals going across the country, and not having representation from a number of groups that aren't going to be represented this morning because they weren't aware of it.
I think there needs to be a better way of getting information out. Our association has not been notified that this was happening, and I think we have a vested interest. We work with women, we work with children, and we're committed to making our families better and healthier. I think we should have some input, and you should hear from us.
Ms. Judy Wasylycia-Leis: I share those concerns as a member of Parliament in this province. I think it's important that this committee hear the full range of views in Manitoba.
For the benefit of the whole committee, I'd like to know if you could possibly tell us which groups might have presented had they known about these hearings, which groups are involved in the issues, and perhaps we could inform them about these hearings and ask them at least to submit written presentations.
Senator Anne Cools: I have a point of order, Chairman. I believe that when you began the meeting, Chairman, you read the reference of the committee to the—
The Joint Chair (Senator Landon Pearson): Yes.
Senator Anne Cools: Perhaps the chairman should make public here today the day that the motions passed in the House of Commons, because it began in the Senate. That is the day the country was informed very formally that the committee would be travelling.
The Joint Chair (Senator Landon Pearson): All right. The reference was dated October 28, 1997, from the Senate, and from the House of Commons it was dated November 18, 1997—
Senator Anne Cools: Perhaps the chairman could clarify which—
The Joint Chair (Senator Landon Pearson): —in which it was clearly defined that we would travel, and the attorneys general of all provinces were notified of the travel plans and so on. So wherever the communications failed, it was out there.
Ms. Waltraud Grieger: I have that information, and I think that's the important piece. So certainly Judy—
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The Joint Chair (Senator Landon Pearson): Just to continue with your point of order, we have issued numerous press releases, we've broadcast on the parliamentary channel, and there have been numerous newspaper articles, so everybody—
Senator Anne Cools: It was ordered by that date that the committee was going to be travelling, because the reference was there.
The Joint Chair (Senator Landon Pearson): Anyway, please go ahead.
Ms. Judy Wasylycia-Leis: Regardless of what happened, how news gets out, and if there are any failings or not in terms of communication, I'm still interested in knowing what groups in Manitoba are involved in this whole area, who might have been here if they'd had more information, and who we might encourage to actually submit written presentations.
Ms. Waltraud Grieger: I have some suggestions. I think certainly the Winnipeg Service Providers is a group of about 15 to 18 organizations that provide direct services to abused women and children, as well as some services to men. I think they would be a really strong group in submitting a presentation.
I certainly think COVAW should also have an opportunity to submit something in writing. That's the Coalition on Violence Against Women.
I certainly know Kliniv probably was not aware. We certainly would think that several of the men who do men's programming over there would be interested in providing some information, and have certainly provided evidence for the Lavoie inquiry that went on.
So we could probably get a list of groups to you if that would be helpful.
Ms. Judy Wasylycia-Leis: Thank you very much.
Senator Anne Cools: Perhaps, Chairman—again on a point of order, perhaps as a senator—we should encourage members of the House of the Commons to be a little more vigilant in terms of informing people in their own constituencies about these hearings, because—
The Joint Chair (Senator Landon Pearson): I think we should encourage everyone.
Senator Anne Cools: The House of Commons especially. Thank you.
The Joint Chair (Senator Landon Pearson): Thank you, members. Thank you very much.
Senator Anne Cools: We encourage their attendance.
The Joint Chair (Senator Landon Pearson): Thank you very much.
Ms. Waltraud Grieger: Thank you very much.
The Joint Chair (Senator Landon Pearson): During the next half hour we have three witnesses as individuals: Mr. Brian Vroomen, Mr. Richard Boer, and Mr. Thomas Plesh.
Our practice during these individual sessions is for each person to speak for five minutes, and then we will ask questions afterwards. Try to stay within the five minutes. It doesn't leave much time. Be fair to each other.
Mr. Brian Vroomen (Individual Presentation): Hello. I want to thank the committee for allowing me my five minutes. I come from Dryden, Ontario, and I am a divorced, non-custodial father.
Before I get into this I just want to comment. I heard recently that scientists have only recently come to realize over the past several decades that research causes cancer in rats.
Well, that was supposed to be funny.
Mr. Paul Forseth: We hope that our deliberations won't cause too much disturbance or consternation in the community. We are hoping our committee hearings do respond to a real need. But we've had certain political comment out there that implies that we shouldn't really investigate.
But we will do our best to be open-minded. I'm quite satisfied that so far we have heard from a wide variety of people concerned with this issue, a very eclectic spectrum.
But please proceed, and I get your point.
Mr. Brian Vroomen: Well, first, I wanted to mention that while I'm not clear on what type of result and change will be implemented as a result of this committee hearing, I trust and hope that with the research that is being done here, my children and I will serve better than the rats do.
Having said that, essentially I gather that you all have a copy of the letter that I had written to the Honourable Allan Rock. I wrote that...I don't have it dated, but it was in response to the recommendation that he was making, and I have to admit that it was surprise to me. If it had not been for a fax from Fathers in Search of Justice, I would not have ever even known what types of changes Allan Rock had been proposing that were going to affect my children and me in a great way.
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My purpose for being here is not to reiterate what you've
already heard from other groups such as Fathers in
Search of Justice. I do believe in a lot of what they
say, especially after having been through what I have been
through. After just coming in and hearing the tail-end
of the old husband abuse issue, I didn't think it was
the purpose of this committee to listen to a father who
is getting tired of hearing about wife abuse and sexual
assault, because I look back and think....
I live in the country and I remember driving home one day; there was a sign talking about wife assault week and I heard a constable on the radio stating that it is wrong for your husband to sexually, emotionally and physically abuse you. I agree with that. What I disagree with is that it was specifically the husband who was mentioned. We seem to live in a society that does not recognize that men are being physically abused, emotionally abused and sexually abused in different ways, but I don't see a crisis shelter for men. I've never run into one. Ours seem to be a society that believes that men abuse women, and I know there are those types of people out there, but it also works the other way.
After hearing the previous speaker...I didn't want to say anything until I heard that, and it kind of got my dander up, because my tax dollars are funding study after study on wife abuse and yet I have not seen one that even addressed the issue of men. I'm going to see about that.
As I said, I had written a letter and I had sent a copy of that letter to the committee, which resulted in my being here. Most of the points I made in there were probably already suggested by other committees such as Fathers in Search of Justice.
I'll just briefly summarize some of the recommendations that I had made, the first one being that while I am held accountable for making support payments.... I pay $1,000 a month in support, and I have no problem with that. Even under the new rules I could probably be paying less but I want my children to be supported. I'm actually a dad who cares. I want my kids to be supported.
I'm fully accountable for making those payments. As a matter of fact, last week the Receiver General decided to dip into my bank account for moneys that were still owing for business debts that were incurred on my wife's behalf, where I had already had repayment terms in place, but that's another story. There is no accountability for the recipient to state where the support payments are being paid, or how they're being used.
I had my children for two months last summer. I maintained my support payments through support and custody, yet we had bought a bike for the kids and my wife owed me $50 for that. She couldn't afford to pay me. She had to wait until the next support cheque came in.
There's no accountability. I'm fully accountable, yet I see no accountability on the other side. How is the money being spent? I don't ask. I don't hassle, I don't ask, yet I sit there and it hurts me. It really does. When I look at how much vigour is applied to the non-custodial parent, typically the father, it angers me that the same type of vigour is not applied to the other person.
By the way, when my wife left she left. I got a phone call from someone saying you'd better sit down, your wife just left. That scared the hell out of me. I have two young boys. The youngest one was only one at the time. My elder one was about four at the time. She first came to Winnipeg and from here moved to Swan River, which is basically about 800 kilometres from where I live. I talked to my lawyer. I don't know what it would have cost in legal fees to try to keep them closer to home, but I basically had absolutely no hope. I was devastated both emotionally and financially. I had to try to make decisions. I could not see my kids until I signed an interim separation agreement.
Then she said, “Sure, you can see them, once we get this interim separation agreement and I know I have full custody.” People told me not to do it, but I wanted to see my kids so I signed it.
• 1050
I am a dad who cares a lot about his kids. I'm
supposed to see my kids for about two months in the
summer, and generally in the fall I'm supposed to see
them for a couple of weeks. Last year I was supposed
to see them twice. Once it didn't happen because my
ex-wife did not, for whatever reason, come down to
Winnipeg, which is where we meet. I was supposed to
have them before Christmas. We had arranged the date.
Our agreement says “mutually agreeable dates”. I was
supposed to see them before Christmas. We had a date
arranged two weeks ahead of time. Two days before I
was supposed to pick them up, she changed her mind.
The Joint Chair (Senator Landon Pearson): Mr. Vroomen, I hate to interrupt, but you have taken five minutes. Could you get to your recommendations, please?
Mr. Brian Vroomen: Okay. I have made recommendations in my letter. I just wanted this committee to see someone who does care about his kids, who does not beat his wife, never did, did not abuse her, and cares a lot about his kids.
Do you want me to reiterate them or just leave it at that?
Mr. Paul Forseth: It's fine.
The Joint Chair (Senator Landon Pearson): Okay. Thank you very much.
Mr. Boer.
Mr. Richard A. Boer (Individual Presentation): Senators and members of Parliament, I want to thank you for the opportunity to speak to you today on behalf of non-custodial parents in Thunder Bay.
I'm honoured and saddened by the necessity of being here. I'm honoured that I'm here because I get an opportunity perhaps to make a small difference in regard to support and access issues, but I'm saddened that I have to be here because it's sad that this organization has to exist in the first place. It indicates that already there is an imbalance and inequality in this system.
Because I only have five minutes and because what I have in front of me will take longer than five minutes, I'm just going to summarize really quickly what I have down here.
Last Monday our organization, which is called right now Thunder Bay Fathers, met for the first time. I've had a very good response from the community in Thunder Bay and northwestern Ontario. I was shocked and appalled at what happened at that first meeting. Of the 14 people who showed up at the first meeting, two were women, three were just new in the arena of divorce, and the rest were long-time fighters or battlers in the divorce courts.
The women were wives of non-custodial fathers, and their story I feel is just as sad as the ones the fathers have to tell.
What disturbed me the most was that of the 14 members who were there, three fathers were openly weeping, not because they had to pay child support, but because they didn't get to see their children. One didn't get to see his children because of the simple fact that he was accused of sexually molesting his daughter, and that never happened. He had a battle for a few months in court, and it was not proven, but that stigma is still attached to his head. He still walks around with the title “child molester” on his back. Two others were accused of physical violence against their wives and children; that was not proven. These gentlemen will not see their children again.
These fathers, oh yes, they'll see their children four days a month, and it's going to cost them anywhere from $ 500 to $1,000 per month to see these children. These fathers will not be given an opportunity to develop a deep relationship with their children. These fathers will no longer have a say in even how long they will allow their daughters' hair to grow.
These men are hurt; these men are hurting. These men are appalled by what's happening to their children in the other homes, which they can't do anything about.
There's one father I have written about in the speech in front of you whose daughter went through seven years of abuse on pretty much a daily basis. For seven years that daughter was beaten and emotionally abused. Children's Aid was aware of it, the court system was aware of it, everyone was aware of it, but the only one who was trying to help that girl was the father, and it took seven years before that girl was finally placed in that father's home. He finally got custody of that child three years ago. Right now that girl is still having nightmares about what happened during those seven years. I want to know why that had to happen. I'm not talking about the father any more, I'm talking about the children.
• 1055
A couple of fathers who were present at that meeting
now have custody of the children. These children are
now 13, 14 or 15 years old. There are three fathers
present like that. They have their children right now
because the mothers were sick and tired of taking care
of those kids. These mothers lost control. These
mothers screwed up and now the father, who was
incompetent earlier, has to deal with the mess.
There is one father whose son—this is a direct statement; it is not swearing on my behalf. One father came to me and said he got custody of his child because the mother could no longer handle him. The son asked his father, “Why did you not stand up to that bitch?” Those are not my words; those are the words of a 12-year-old boy who could not understand why his father left—which he didn't. He could not understand why the father didn't want him in the home—which he did. This father spent in excess of $100,000 in the court system, losing his house and everything, and he now lives in a one-bedroom apartment and his son sleeps on the couch.
That is going on a lot in Thunder Bay.
I know one father who has a three-year-old son who was beaten severely with a wooden spoon, from the son's own mouth, “by my mommy”. That child had bruises from the back of his neck to the back of his knees. The doctor called in a severe case of child abuse to Children's Aid, and a Children's Aid social worker went to the home and asked the mother what happened. The mother said he fell off a wagon. That child did not have bruises on the back of his elbows or bumps on the back of head. He only had bumps in the small of his back, where bruises would not had occurred if the child had fallen off a wagon.
The Joint Chair (Senator Landon Pearson): Mr. Boer, I hesitate to interrupt you, but the time for the three of you is limited. It's after five minutes, so could you give us a recommendation?
Mr. Richard Boer: I have some brief ones here.
From my point of view, the fathers of Thunder Bay want a minimum of joint custody. We don't want just four days a month with our children. We want family values, morals and a code of ethics to be reinstated in this society. I mention that because you people do have the power to change that and reinstate ethics in this society.
We want joint custody of our children, we want the opportunity to raise our children, and we want the opportunity to have a relationship with our children. We want the mothers to be accountable for the money they receive, because in my case, and in the case of the gentleman beside me, that accountability is not there. The fathers of Thunder Bay want to abolish the support system, period. They want joint custody: while the children are with the mother, the mother is financially responsible for the children; while the children are in my home, I will be responsible for my children.
Unless I am actually charged with abuse and it is proven, which in my case it was....
Senator Duncan Jessiman: Was it proven?
Mr. Richard Boer: No, it was not proven. In my case my ex-wife went to the courthouse and to crisis housing situation and said that I had physically abused her and this child.
The Joint Chair (Senator Landon Pearson): If you talk about something very specific like that, we need the case number and where it was—
Mr. Richard Boer: The only case number I can give you right now is a case number with family support. I don't have my own personal case number. I left that at home.
The Joint Chair (Mr. Roger Gallaway (Sarnia—Lambton, Lib.)): I need the name of the case. What is your full name?
Mr. Richard Boer: My name is Richard Boer.
The Joint Chair (Mr. Roger Gallaway): On what date did this first appear before the courts for a trial?
Mr. Richard Boer: I was never brought to trial.
The Joint Chair (Mr. Roger Gallaway): When were you first in court? Do you know the date?
Mr. Richard Boer: I appeared roughly six months after she left.
The Joint Chair (Mr. Roger Gallaway): When was that?
Mr. Richard Boer: I'm sorry, I did not realize I was going to be required to bring that information. I don't have it with me.
The Joint Chair (Senator Landon Pearson): Leave that piece of information off. Please just go to recommendations without the personal references.
• 1100
Mr. Richard Boer: Basically we want to eliminate no-fault divorces and we want accountability. We don't want women to be leaving their homes, their men or their marriages because they no longer feel like it and they want to leave. We don't want these no-fault divorces. If support is not eliminated, we want the government and family support to look at the new families that are created.
When a father gets remarried and has children, often he is not financially capable of raising those children and that family is forced to live below the minimum government welfare amount because the welfare system does not take support into consideration. So if a father is making $1,300 a month clear and has to pay $450 in support—
The Joint Chair (Senator Landon Pearson): I don't want to cut you off, but we need to give time to Mr. Plesh and have time for questions. We have a lot of people who want to speak to us and we have to share the time.
Mr. Thomas Plesh (Individual Presentation): Good morning, ladies and gentlemen. I would like to thank this assembly for the opportunity to tell my story. I hope that what I have to share will help others who may find themselves in a similar position in the future.
My name is Tom Plesh and I have been through a very traumatic divorce and custody and access battle. It caused a great deal of pain and suffering to me, my family and my friends, and in my opinion also wasted a great deal of the court's valuable time and resources.
I've encountered a number of problems.
First, I was kept from seeing my son for a period of time because I was falsely accused of sexual abuse.
Second, the process of being vindicated in this issue was lengthy and expensive.
Third, the court proceedings were drawn out deliberately by my ex-wife to place a financial burden on me so that I would be forced into a position of having to back down in regard to custody and visitation issues.
The Joint Chair (Senator Landon Pearson): This is another case that is being specifically referred to. We need the reference, the date and the—
Mr. Thomas Plesh: It was Plesh v. Plesh. The final judgment was in Winnipeg in 1992.
Fourth, my ex-wife filed for bankruptcy so that she would not be held responsible for court costs even after I was awarded some.
The following is a brief description of what took place.
On March 9, 1990, my wife left me and took our son Ryan, aged three and a half at the time. I was allowed to see Ryan three times between March 9 and March 30—two evening visits of three to four hours and one weekend visit from Friday evening to Sunday evening. On these three occasions, I requested a note stating the times that Ryan was to be picked up and returned to her residence. I faithfully honoured these times and agreements that were made. Unknown to me, she had filed for divorce on March 8, 1990—the day before we actually split up, when she took Ryan and cleaned out the house.
When we went to court, she petitioned for sole custody of our son. She learned that I too was participating for full custody, so she fired her first lawyer and came back to court with a new lawyer and allegations that I had sexually molested our son. These allegations were supported by her mother, a registered nurse. Her mother stated in an affidavit that she had suspected abuse for six months prior to our separation but, since we were still married, did not wish to notify the authorities. There did not seem to be any concern that I would again molest our son on the three occasions that I was allowed to see Ryan before the court appearances.
Although I was never formally charged with any crime, I feel I was treated by the court system as if I was guilty. I was immediately denied visitation rights, but the child development centre order by the court allowed two supervised one-hour visits in July.
• 1105
It took six to seven months for Ryan to be examined by
a psychiatrist. The psychiatrist was misinformed about
the situation, so he did not handle the case as he
would have if he had known all the facts. Even so, he
did not find any signs of sexual abuse.
Ryan was then seen by a psychologist—Dr. Ellis—as o rdered by the court because of the previous mix-up. Another six or seven months passed before his report was actually made to the court. In this report he stated that his examinations found nothing to support any allegations of abuse. He recommended that I be allowed to see Ryan on a regular basis, but would not recommend that I receive full custody because of the amount of time that had passed.
He also recommended that the visitations be supervised, not to protect Ryan but to protect me from further allegations. He further recommended the visits start for a period of one hour at a time, and increase to regular visitation. However, my ex-wife kept the visitations, supervised by her father, to one hour and did not increase the length of time until ordered by the court to do so.
During this time I personally saw two psychiatrists and a psychologist who submitted reports in my favour. These examinations were taken by me—they were not ordered by the court—in an effort to exonerate myself and speed up the access process. My ex-wife, however, indicated that she was not satisfied with any of these results—
The Joint Chair (Senator Landon Pearson): I hate to interrupt you, but it's been over five minutes.
Mr. Thomas Plesh: Already?
The Joint Chair (Senator Landon Pearson): Have you some recommendations?
Mr. Thomas Plesh: Okay.
I would like to see some sort of deterrent put in place to end the kind of abuse of the system that happened in my case. More importantly, for the sake of the children and the estranged parents, I would like to see an introduction of a fairer system to make it easier for the process of custody and access. Thank you.
The Joint Chair (Senator Landon Pearson): Thank you.
Mr. Forseth.
Mr. Paul Forseth: Welcome.
Mr. Brian Vroomen, you stated that you felt almost blackmailed. You said you were placed in a position where you would not have any contact with your child until an agreement was signed. Is that how it happened?
Mr. Brian Vroomen: I remember a conversation with her. She said she wanted to get the financial stuff and this thing signed so that I could then see the kids.
Remember, I was in a devastated state at that time. Emotionally I was not in great shape, nor financially. I wanted to see my kids. I did not get to say goodbye to them.
Mr. Paul Forseth: So you did complete some kind of an agreement?
Mr. Brian Vroomen: Yes. We had an interim separation agreement done with a lawyer.
Mr. Paul Forseth: Okay. Was that just one lawyer or did you have your own advice?
Mr. Brian Vroomen: I did have advice from...I can't remember if I did at the time, but I'm sure I did. But when we did have the divorce, I had a lawyer in place at that point.
Mr. Paul Forseth: The way you described your situation, you were somewhat hit by surprise.
Mr. Brian Vroomen: Yes.
Mr. Paul Forseth: You were emotionally distraught and your child has been taken from you. So you're in a desperate situation to be able to sign an agreement, any agreement, to be able to see your child. So did you have proper independent advice at that time? You may have gotten into a situation where you entered into some kind of an agreement or whatever that set a precedent that later worked in your disfavour.
Mr. Brian Vroomen: I had talks with a lawyer. I'm smart enough to know that I should have talked to a lawyer, so I probably did. What I wanted was to see my kids. I think I was told that giving her interim custody didn't necessarily imply that I was prejudicing myself against future joint custody, although other people told me that might be the case.
• 1110
Mr. Paul Forseth: Okay, did you ever go to trial on these matters, or was it eventually done by mediation?
Mr. Brian Vroomen: My lawyer suggested mediation, but she did not want mediation. It never went to court. I kept hearing about the costs that people incurred, and I'd rather spend my money on my kids.
Mr. Paul Forseth: So it was a negotiated arrangement between two lawyers' offices and with your involvement?
Mr. Brian Vroomen: Yes.
Mr. Paul Forseth: Okay.
Just describe what kind of household arrangements you had for child care before the separation. We regularly hear in testimony from dissolving families—in the majority of situations, mothers have the main day-to-day responsibility for care post-divorce or separation, and that is because that's the way it was before family dissolution. That's the way the couple had arranged their lives.
So perhaps you can describe the social lifestyle for child care and arrangements, both before and after. Just compare and contrast the before and the after.
Mr. Brian Vroomen: I run a seasonal business that is very intense from January to April 30. After that my time is pretty well my own. My ex-wife was interested in horses, so we moved out to the country and we bought horses. That was her business, and it was seasonal in the summertime.
So when I was home she would be out in the barn and I'd be watching the kids. During income tax season—I was in the income tax business—I made sure I stayed home for at least an hour or two in the morning to see the kids, because I wouldn't be home until midnight or later. Of course, the primary care was with her at that time.
During the summer she would be working with her horses. We'd be travelling to horse shows in Manitoba, and I would be taking care of the kids during the time she was doing her work. Then in the fall there was a mixture of both. When she was working I would watch the kids. I could control my hours.
Mr. Paul Forseth: Based on what you've said, would it be reasonable for me to assume that before separation you had more daily responsibility and child care opportunity than you did after separation and divorce, and that now you've been relegated to a lesser role?
Mr. Brian Vroomen: In terms of the time I have available for my kids, I have just as much, if not more, available now, but they just don't happen to be with me.
Mr. Paul Forseth: Okay.
The Joint Chair (Senator Landon Pearson): We have very little time to get the rest of the questions in.
Senator Cools.
Mr. Brian Vroomen: May I have two more minutes?
One thing that I didn't mention, and after hearing the other comments.... When we talk about what's best for kids, my oldest boy, who was four at the time, mentioned to me within a couple of months of her leaving that she didn't have to go away so far. That was his comment, and he was a four-year-old child.
Within a year she was living with another man who had two children, one of which was not his own—an older teenage boy—and another boy the age of my oldest boy. I thought that was not a good situation for my kids. From a family standpoint, I like the idea of family values. I'd like to see laws that support families, but I don't see that. I see laws that support individuals, not families.
The Joint Chair (Senator Landon Pearson): Thank you.
Senator Cools, be quick, because we have a long day and many people to hear from.
Senator Anne Cools: I have two questions and then I'll be lickety-split.
Mr. Plesh, are you seeing your children regularly now? Have the problems with that been resolved? Can you see your children?
Mr. Thomas Plesh: Right now I get every second weekend from 7 p.m. Friday to 7 p.m. Sunday, and every Wednesday from 6.30 p.m. to 8.30 p.m.
Senator Anne Cools: So the problems are resolved? You can see your children properly.
Mr. Thomas Plesh: Yes.
Senator Anne Cools: Chairman and members of the committee, there are a lot of these cases on the record, and I have cited a lot of these judgments in various speeches, but this is one where the body has come before us. I would just like to put on the record that in the Senate debates, March 26, 1996, I was quoting the case of Plesh v. Plesh. He introduced himself to me by pointing out that this was he.
• 1115
Mr. Justice Carr had this to say in his judgment:
Mr. Justice Carr continues:
Mr. Justice Carr gives a very stinging indictment of this particular form. I commend this to our researcher for some consideration. I have nothing more to say on the subject matter.
The Joint Chair (Senator Landon Pearson): Thank you.
Senator DeWare.
Senator Mabel M. DeWare (New Brunswick, PC): I was going to ask Mr. Plesh what happened to the end of.... You didn't get a chance to finish. Senator Cools has already done that.
Mr. Boer, you are talking for a group of people. Do you represent an association today?
Mr. Richard Boer: Yes, I'm representing the Thunder Bay Fathers. We are currently organizing as a chapter of Fathers for Justice. I was given approval by head office in Toronto to use the name Fathers for Justice at this time.
Senator Mabel DeWare: I'm glad to get that on the record.
At the end of your statement you started to talk about a second family, and then we had to cut you off. That has been brought to our attention—the fact that a non-custodial parent is paying support for his children and in the meantime has remarried, has another family and is having difficulty supporting them.
We've heard several cases where the father had to go out and work a second or a part-time job to help sustain his new family. I think we have to remind the judges that they have to be cognizant of the fact that there could be extended families on both sides, and that they need to take that into consideration when looking at the support payment.
Would you like to comment on that?
Mr. Richard Boer: I'm going to draw from my own experiences right now, because I don't want to draw somebody else's financial aspects into this. A perfect example is that as of today, I am laid off from my job. The president of my company told me that two weeks ago. My father had a heart attack—he drove me into town—so I can take care of the family farm. The president told me I would be laid off before May 1, and that is today.
About a month and a half ago I received my income tax cheque, which was around $2,000, and family support garnished that. I needed that money in order to make my payments. It took me 20 hours of long-distance phone calls and a few swear words in the twentieth hour to get that money back.
As the situation sits right now, because of those 20 hours of phone calls, instead of getting my cheque back right away, I got a notice stating that my support payments have been increased and I have to back pay for a whole year.
Last week I had to call the banks and tell them that I could not make a payment because I lost a week and a half of work, that I had to take care of my father and the farm because he had a heart attack. I have to make my mortgage payment today, but my wife will be calling the bank stating that we cannot pay. The property that we hoped to build a home on is up for sale because we can no longer afford to take care of it. My wife had her period last week. She had to use toilet paper because I could not afford to put tampons on the shopping list. That is the situation at my house right now.
I had to borrow $200 to come here and speak to you today. I wish it could have been longer, because there's a lot that I have to say. My family's financial situation right now is pathetic. There have been a number of instances where I've contacted family support and asked for help, and I received none. I've gone to the welfare office and asked for help. My wife has left there crying, because they basically said too bad, so sad.
I get no help or support from anybody. The situation that my wife and three-year-old daughter are in just doesn't matter. These two people, who are my family, are classified as second-class citizens due to their association to me.
• 1120
Senator Mabel DeWare: Mr. Boer, how many children are you supporting in your first marriage?
Mr. Richard Boer: Two.
Senator Mabel DeWare: Thank you.
The Joint Chair (Senator Landon Pearson): Ms. Wasylycia-Leis, this is the last question on this session, please.
Ms. Judy Wasylycia-Leis: Thank you, Madam Chair. My first question flows from Mr. Vroomen's opening comments. It's important for the record to say that the previous presenter, representing the Manitoba Association of Women's Shelters, as has been the case with many presentations to this committee across the country, was saying something fairly important for the work of this committee. This was that any committee on custody and access must grasp the seriousness of domestic violence and it must consider the safety of children during and after divorce. I'm assuming you would agree with that situation and I would ask you to comment on it.
Secondly, from my understanding the general theme of the presentations to the committee to date is that there's a common thread. This committee must look at the adversarial process pertaining to custody and access. Any change in the Divorce Act must take into account the best interests of the child, and government has a role to play in trying to make the process less adversarial. I'm wondering if you agree with that and if you have any specific suggestions for making the process less adversarial.
Mr. Brian Vroomen: Thank you. Can I call you Judy?
Ms. Judy Wasylycia-Leis: That's fine.
Mr. Brian Vroomen: First of all, I didn't want to say I don't agree with it. I do realize there's a place in society for crisis shelters, because I know there are guys out there who do this. It's more that I wanted equal time.
Guys don't come forward, but there are a lot of guys who are emotionally abused, physically abused, sexually abused. It may be in different ways, but it's out there.
I just get tired of seeing how my tax dollars are funding yet another study to find out how I beat women. What I want to see is more studies on men too. That there's a need in our society for both is what I was getting at. I didn't want to give the impression I'm against that; I want to see it finally recognized that it happens on both sides, not just one. Women do abuse men as well. I don't want to label myself, but I can say I was.
On your second question about the adversarial process, yes, I quite agree. I truly like to see these family laws. The process is adversarial. At one point my ex-wife and I had been talking about selling the business. She said it was my business and I had worked so hard. It scared the hell out of me because that's how I made my income. Then once she had switched to another lawyer.... Unfortunately, the business was in her name. I ran it, it was my business, but it was in her name.
When she switched lawyers all of a sudden she took my name off the signing authority. And I worked my rear end off; I worked 90-hour weeks. She took the money out of the account; she took my signing authority off. I had to beg her to sign pay cheques. I was never paid for a lot of the time I worked for her, and this was within two months of her telling me, “Gee, you worked so hard to build that business”.
She switched lawyers, and then all of a sudden she wouldn't sign the cheques until she had her lawyer look at them first. It was very adversarial. I didn't want to spend money on lawyers. I gave in to a lot of things; I wanted my kids to have the money. I figured they would get it somehow.
I like to think there should be a mandatory waiting or cooling-off period after separation occurs. My wife did not feel I was in any shape to make any decisions, but I didn't realize this until later on. I made a decision I shouldn't have. Even working with a lawyer...they make recommendations but each lawyer may say different things; they all have different experiences. I was in no shape...I would say, yes, certainly, whatever. I'd never been through this before and I hope I never have to go through it again.
There should be a mandatory waiting or cooling-off period, where custody is automatically joint. I had joint custody before she took off, so why the hell do I have to fight for it afterwards? I don't understand it.
Mediation should be mandatory—and not that there is just a single judge necessarily. I hear too often how a single judge will have his own opinion and decide in a certain favour.
I would like to see a mediation group of four, perhaps. It may be onerous, but you need more than two and you probably have to have two guys and two girls. There should be a mediation group that comes to some decisions to make it a fair process. That's what I'd like. I just want it to be fair.
• 1125
Two years before this happened I knew we weren't having fun, and
when you're in a relationship it's hard. You want to
have that conversation and say, “Look, it's not
working out”. That's the hardest thing to do.
One Saturday I said, “Brigitte, you're not having fun; I'm not having fun. We both should be happy as people. Why don't we try a trial separation?” We lived on a farm, and I said, “This is where you want to be. I can't go out and put hay out for the horses. This is where you want to be. I will go to town and get an apartment.”
It would have been difficult, but this was what I thought we needed to do. Let's try dating again. This is what I said, and it was a very calm conversation. She said, “Well, it's just before tax time. It's not a good time financially for us, why don't we wait?”
Then after income tax season comes and goes, we have cash, I'm happy again, that relationship is going great, we don't have any money problems. This is what I suggested.
The Joint Chair (Senator Landon Pearson): Thank you very much.
I think we have to thank all three of you very much.
We're going to take three minutes while you leave and we bring the next two witnesses to the table.
Mr. Richard Boer: Can I just take up a couple of seconds?
The Joint Chair (Senator Landon Pearson): Okay.
Mr. Richard Boer: I have a hand-out here. I only have one copy of it, but I'd like you to have a copy of this.
The Joint Chair (Senator Landon Pearson): Give it to the clerk.
Mr. Richard Boer: It's called the “Dirty Fighting Techniques Handout”, and it was given to one of my clients whose wife went to family counselling. They went to family counselling in order to restore the family's togetherness. He had counselling on how to become a good husband and father and she had the “Dirty Fighting Techniques”.
I thought you should be aware of that. Thank you.
The Joint Chair (Senator Landon Pearson): All right. Thank you.
The next two groups that will speak are New Vocal Man Inc., Joyce Owens, secretary; and Men's Equalization Inc., Mr. Roger Woloshyn.
Ms. Owens, would you like to begin, please.
Ms. Joyce Owens (Secretary, New Vocal Man Inc.): First, I thank the committee for the honour and the pleasure of appearing on behalf of New Vocal Man Inc., and this is basically a summary of over 500 families that we have worked with.
Custody following separation is usually unanimous when one of the partners leaves the home. Many custodial parents, usually women, who feel unjustifiably wrong believe now is the time to get even for whatever wrongs, imagined or otherwise. They are encouraged by legal counsel to go to shelters where the supposed wrongs are reinforced and enhanced. Men usually do not have shelters to encourage them with their wrongs, imagined or otherwise, but they find such solace in family and friends, as do women.
Custody following divorce is generally granted to women because judges erroneously believe that, having given their children life, women have the best interests of their children at heart. Wrong. In many cases this gives custodial parents the courage to be really vengeful and malicious for whatever imagined abuses these custodial parents purport to have happened.
Many custodial parents who do not want the non-custodial parent to seek custody are encouraged by legal counsel to allege abuses more heinous in nature, the most common being sexual in nature. This not being enough, women are encouraged to seek out feminist therapists, wherever possible, to substantiate and enforce the custodial parent's claim.
Access following separation is usually not encouraged unless the non-custodial parent is very adamant and insists on his or her right to access. The custodial parent now has the upper hand and in most cases uses children as bargaining chips only to make access difficult and unpleasant in the hopes that access, at least for the moment, will be abandoned.
• 1130
Non-custodial parents are often advised by legal
counsel that these issues will be resolved with divorce
and not to push at present. Thus, non-custodial
parents find themselves in what, in most cases, seems
to be an unending void.
Access following divorce is made extremely unpleasant and difficult for non-custodial parents as well as for children in hopes that access will be forfeited. Should the non-custodial parent insist on exercising his or her right to access, the road is peppered with horrendous obstacles.
False allegations, expecially sexual in nature, are sure to make access impossible for at least six months to a year. If the matters are dragged out in court, it can amount to what seems like a lifetime before the non-custodial parent ever has access to his or her children...along with the custodial parent moving with the children great distances away, which makes access very costly and, in some cases, prohibitive.
Custodial parents with these traits are encouraged by legal counsel to seek feminist therapists who help to encourage negative and damaging allegations, all at the expense of the children and the non-custodial parent.
The non-custodial parent is often the one who would be best suited to rear the children and who most often has the children's best interests at heart.
The children's and the non-custodial parent's right to know one another is not adhered to, nor is it encouraged. Our adversarial system in family matters encourages and promotes dishonesty, disharmony, malice, vengence and anything that can and will undermine whatever feelings of love, friendship and goodwill the children ever had toward the non-custodial parent, and vice versa.
This is all done in the best interests of the children, at an enormous cost to the non-custodial parent in maintenance, which is usually exorbitant emotionally, psychologically and physically. Children suffer in the same manner.
Due to the complexities of the issues involved, we apologize if this brief seems incomplete and incohesive. I would like to add that women are encouraged to go to women's shelters, where they are educated in what to say, how to act and how best to win a judge's sympathy to grant the custody. Most times these alleged abuses—and they are alleged—are perceived in their minds. They don't have to deal with reality, and it is so damned unfair, because the children suffer.
I know that for myself personally I would have been better off with my father than my mother. We have in our organization fought for fairness for both men and women, but it's predominantly the men who are dumped on.
Women seem to be able to get away with whatever. It is encouraged; it is sanctioned. And if they are caught, for God's sake, we don't make them go ahead and do the same time as men do, because they're supposed to be the weaker sex. That's balderdash. If they're prepared to go to those lengths, they should have to pay the same as any man.
Women want equality. Okay, then let's have equality right across the board, not that men have to pay this much and women don't even have to pay an iota. They make an absolute sham of the whole justice system and the family law.
Personally, I would like to see the—
The Joint Chair (Senator Landon Pearson): You're at the end of your five minutes.
Ms. Joyce Owens: Okay. Thank you.
Senator Duncan Jessiman: Do you have any recommendations?
Ms. Joyce Owens: Yes. Lawyers should have to be honest. Women's shelters should be horrendously cut back, and I don't mean that to be malicious. There is abuse out there, and yes, we need to address it and work with it so we can bring about constructive and positive results, not the negativity that is going on and the damaging of families and children. The scars last a lifetime.
• 1135
Thank you.
The Joint Chair (Senator Landon Pearson): Thank you.
Mr. Woloshyn.
Mr. Roger Woloshyn (President, Men's Equalization Inc.): Honourable members and honourable senators, I'm pleased to be before you this morning. I'm a victim of the divorce wars. My children are victims of the divorce wars. I'm the president of Men's Equalization in Manitoba.
I represent 300 men who are victims of the divorce wars. I speak for about 15,000 additional men who have been illegally arrested in divorce wars in Manitoba. They want me to speak for their children as well, although neither they nor their parents have custody rights to those children.
I'm sure the honourable members and senators have already heard of custody and access problems Canadians are suffering across our country. In Manitoba we have a special problem that exasperates the situation: the gender-biased, unfair court system that supports a gender-biased, self-centred, unfair family law support system. By that I mean Child and Family Services, women's advocacy groups and women's shelters.
That special problem is called zero-tolerance policy. It is a policy, not a law mandated by the Province of Manitoba, whereby people in domestic situations get arrested and sent to trial.
Here's how it works. The police get a call on a domestic matter. It matters not from whom, as you'll see in a moment. They head out to the call. When the police get to the call there is either evidence of an assault and/or a witness to the alleged assault, or there is not.
If there is evidence and a witness, the father usually is taken away to jail. Non-communication and non-molestation orders are immediately put into place.
If there is evidence and a witness, and the wife does not want the husband taken away, he's hauled off to jail anyway.
If there is no evidence or witness, and the wife wants the husband taken away, he's hauled off to jail.
At that point the marriage and the father's chances of ever being a father to his children are doomed.
In all circumstances when someone is arrested there must be a trial. Very often the charges will not hold up in court because there is no evidence and there is no witness. The father is forced to accept a peace bond whereby he is cut off from his children, and he may as well blow them a goodbye kiss.
If he insists on a trial, charges are stayed and he's free to be subjected to another arrest at the whim of his soon-to-be ex-wife.
The problems are compounded when Child and Family Services are called because of charges of molestation. And molestation, honourable members, is rapidly becoming the women's weapon of choice, replacing assault, because it gives them greater control over the children.
When a divorce finally comes around, the father's chances of getting a fair hearing are small, and his chances for custody of his children are zero.
Today over 17,000 arrests have been made under zero-tolerance policy. Well over 15,000 of those are of men. All have been robbed of their families. If children are involved, the children lose a father, a grandmother, a grandfather, and a host of supportive relatives.
If the action occurs in a rural area, the mother and the children usually leave the family farm, the farm becomes the subject of dispute, and it is almost invariably lost. The effect on our society, especially our rural society, is devastating.
The cost of divorce completely wipes out family resources, throws the father into debt, and effectively makes him a slave of the state. Note that it's the province that dictates what he will pay, enforces the payment, and brings the forces of the state to bear on him if he does not comply.
In my own case, I lost my driver's licence because I have no job and cannot afford to pay maintenance payments assigned to me. Living in a rural area, my chances of getting a job without a driver's licence or even taking care of personal business are zero. I believe that my passport has been withdrawn so that I cannot leave the country.
I am a slave. I don't even have a job as a slave.
My children are in Winnipeg. Although I have unlimited access, it is at the pleasure of whomever I can get to drive me into town so that I can see them.
I've attached to my presentation the very best written and researched article on the devastating effects of separation and divorce on children in our society. If you are a numbers person, please refer to it. All the numbers are there. I am not. I merely relate to you what I see, and what I feel in my heart.
• 1140
It is true that children without fathers are caught in
a trap that limits their prospects in life and
encourages a less responsible lifestyle.
In Manitoba we have the highest child poverty rate and
the greatest percentage of children in youth gangs, to go
along with the highest rate of divorce in Canada.
Recently published numbers indicate that we we're losing citizens at the highest rate in Canada, and our politicians wonder why.
I know, my honourable members; I know why. It is the justice system that determines the relationship of the state with our people. Our government in Manitoba is destroying families, disenfranchising fathers, alienating grandfathers and grandmothers, driving men to the underground economy, and effecting suicide.
The same can be said of the government in Ottawa, which has had no effective opposition for four years.
The Joint Chair (Senator Landon Pearson): Mr. Woloshyn, you've come to the end. Could you go to your recommendations, please.
Mr. Roger Woloshyn: What is the remedy? I believe that in dealing with divorce, custody and access, the adversarial system cannot be saved. I believe that we must reform the system to what I call the New Zealand model. Some call it mediation, but I think it is more than mediation. It is restorative justice rather than punitive justice.
In the New Zealand model, within seven days of a complaint the principals in the dispute are required to appear before a negotiator with all of their friends, relatives and supporters. A resolution is hammered out to which all parties agree. If no agreement is reached...here in Canada I would suggest that the principals be required to supply $20,000 in legal costs, turn the children over to the proper child care agency, and go to court—essentially the situation we have now.
I believe that some form of the New Zealand model is the only workable solution that would solve the problem of divorce, custody and access, and so on before it develops into dispute, and as a positive side-effect, it would suppress the exploding of the divorce industry, an industry that is crippling our economy in the province.
The Joint Chair (Senator Landon Pearson): Thank you very much.
Senator Jessiman.
Senator Duncan Jessiman: Yes, thanks.
Ms. Owens, would you tell us what the New Vocal Man Inc. is. I see that you are the secretary. Would you tell us whom you represent, and how long has it been in existence?
Ms. Joyce Owens: We incorporated in November 1991. We are a support group for people falsely accused, predominantly of sexual assault of some form or other. We have worked with and for over 500 families.
Senator Duncan Jessiman: Are you full-time?
Ms. Joyce Owens: No, this is allvolunteer.
Senator Duncan Jessiman: You're a volunteer as well?
Ms. Joyce Owens: That's right.
Senator Duncan Jessiman: Do you have an office?
Ms. Joyce Owens: Yes, it is our home address.
Senator Duncan Jessiman: You say that since 1991 you've acted on behalf of the 5%?
Ms. Joyce Owens: That's right.
Senator Duncan Jessiman: How many are in your group?
Ms. Joyce Owens: We don't have memberships as such any more. We deal with people on a one-on-one basis only. People in the past have found it too difficult to attend meetings and remember what has happened. Governments were moving too slow to change the law.
Senator Duncan Jessiman: If you're the secretary, are there any other officers?
Ms. Joyce Owens: A president.
Senator Duncan Jessiman: Who is the president?
Ms. Joyce Owens: My husband.
Senator Duncan Jessiman: So it is you and your husband. Is this something that you've started and you're keeping alive?
Ms. Joyce Owens: Yes, and we also have a vice-president and a couple of other members who are there to help with decisions.
Senator Duncan Jessiman: I see the “Inc.,” so do you have a charter of some kind?
Ms. Joyce Owens: Yes, we do.
Senator Duncan Jessiman: You must have members. How do you get elected, or this—
Ms. Joyce Owens: We are changing that. We're in the process of changing that because various people have moved away. Some have become ill.
Senator Duncan Jessiman: How do you become a member of your organization?
Ms. Joyce Owens: By calling us and—
Senator Duncan Jessiman: Do you have members now?
Ms. Joyce Owens: Yes, we do.
Senator Duncan Jessiman: How many members? You've treated 500 families. How many members would you have?
Ms. Joyce Owens: We have about 25 full-time members.
Senator Duncan Jessiman: Are they the ones who elect the people from year to year?
Ms. Joyce Owens: Yes.
Senator Duncan Jessiman: That's all I have.
The Joint Chair (Senator Landon Pearson): Thank you very much.
Madame Dalphond-Guiral.
• 1145
Ms. Madeleine Dalphond-Guiral (Laval Centre, BQ): Thank you.
I will pose my question in French.
[Translation]
Thank you for having come here today. Ms. Owens, I listened very closely to what you had to say. If I had a comment to make, I would say that what I felt after having listened to you, was that you consider the present system to bear the stamp of conspiracy and ill will. That is the impression I have, but perhaps I am mistaken.
I would like to ask you a question, and I also address it to the gentleman seated beside you. The great majority of divorce cases are settled amicably. Do you believe that in this great majority of divorces, there are sometimes rulings that are the consequence of pressures exerted by the parents on one side or the other? I would like to hear your views on that.
[English]
Ms. Joyce Owens: Yes, parents and friends do put a lot of pressure on people who are having a problem to get a divorce or dissolve the marriage. The arguments are then fuelled. That is wrong.
A lot of people do have a lot of bad faith in the system, and I don't blame them because it is adversarial. Whenever we have an adversarial system whereby people are encouraged to allege things that do not occur, it must be changed. Our children are being ruined, and we cannot have that. Provincial legislators have been asked to make constructive changes, and to date it has not been done.
[Translation]
Ms. Madeleine Dalphond-Guiral: Would you have a comment to make, Sir?
[English]
Mr. Roger Woloshyn: I think, yes, the people involved in the family situation—friends, relatives, and so on—do influence. I don't think we can divorce that influence from the Divorce Act itself. However, I think those people should also have some say in some method of reconciling whatever the situation might happen to be and then bring positive pressures to bear to keep the people together rather than to take them apart.
It is an axiom that two people working together on this task can do far more than two people working apart on the same task. Here we have two people parenting children; they are separated, and instead of working together on the same task of being parents to the children, we have less than one person working on that problem. Most of their time is diverted from the children to the adversarial role they find in divorce and separation.
The Joint Chair (Senator Landon Pearson): Thank you.
Ms. Wasylycia-Leis.
Ms. Judy Wasylycia-Leis: Thank you, Madam Chair.
I think it is important for the record to point out the testimony of those who have spoken on behalf of shelters here in Manitoba and across the country, that shelters do not accept women unless there is clear and hard evidence of real abuse, life-threatening situations. Even if a woman were seeking shelter to pursue a vindictive agenda, she would not be accepted. We don't have that kind of space—
Senator Anne Cools: Who's the “we?”
Ms. Judy Wasylycia-Leis: —or those kinds of services in this province or anywhere in this country to make it even in the realm of possibility.
I think it's important—and I'll ask my questions following this statement—that we recognize the reality facing so many women in our society who are facing very serious situations of abuse. In all my years in politics, I've never spoken to a woman who has turned to a shelter unless it's a very last resort in dealing with a horribly difficult, threatening situation.
• 1150
Can we even get to a system that
is non-adversarial? If we diminish the real situation
of women in domestic violence situations as
imaginary...is there not a way to improve the system without
diminishing those realities? Surely we can change
the system and make it better only if we don't deny the
facts and if we recognize the realities
facing many in our society.
Ms. Joyce Owens: We do not deny the facts, but what we find so very grossly a part—and I will correct you. A lot of women do go to shelters and are encouraged to do so in order to get educated so as to keep the ex at bay, because they do not want the ex to have access to the children.
Granted, we admit there is abuse, but we also know of women who have come to us with their husbands, who have gone to shelters because they wanted to have a rest, because communication was sorely lacking. When we have a problem with communicating, that is when we have a great deal of our problems. They escalate from there.
We have heard it from women ourselves, and it is terrible when this sort of thing is encouraged and is paid for by tax dollars.
We can change our system to be productive and constructive and positive. Right now it is the reverse, and no one is accountable for it.
We also believe that if any therapist, be it a social worker or whatever shingle is hung on the door, suggests these kinds of things, the therapist should be held equally responsible. In our opinion it is extremely serious when a family and children are put to ruin. We hold marriage and family sacred.
The Joint Chair (Senator Landon Pearson): Do you wish to make a comment to that?
Mr. Roger Woloshyn: I do.
I had noted the honourable member's question previously with respect to domestic violence. First of all, let me comment that the associate chief justice of Manitoba abhors the term “domestic violence”, because he believes it to be an oxymoron. However, I do appreciate what the member has to say.
Let me suggest to you, honourable member, that violence is the problem in society. It's not violence against women, it's violence against everyone. If you're going to start discriminating about who is subject to violence, you're going to have exactly the situation we have right now.
I have no problem with women's shelters. I have a problem with women's shelters that counsel women on how to get at men in court. That has happened. We have women members in Men's Equalization Inc. who have apologized for what they have done and for what the shelter has done to them. I have no problem with women's shelters when they're doing what they were designed to do.
The problem is this system of justice we have now—so called justice; it's not doing what it's designed to do.
If we're going to address the problem of domestic violence, let us address the problem of violence in our society. Let's take a look at WWF wrestling and the audiences there and what lessons are being taught to our young people. Those young people are eventually going to be parents. If they're taught that adversarial situations can be dealt with by violence, that's how they're going to be dealt with.
I would hope this committee would take a look at the problem of violence in our society and keep it in mind when you're coming up with your recommendations. Instead of having a punitive justice system and one that is based on the adversarial situation, why not try the restorative justice situation? Then we can have shelters for women, we can have shelters for men, we can have places where people can go and negotiate and try to resolve without violence. We will then eliminate as well the violence in the state that is being brought to bear against men.
• 1155
The Joint Chair (Senator Landon Pearson): Thank you. Were there any other questions?
Senator Cools.
Senator Anne Cools: Yes. I'd like to thank the witnesses for coming before us.
One of the very evident manifestations throughout our committee hearings so far and some of the stunning testimony that is coming from women are about the terrible injustices in our society.
I have before me a statement from a woman whose name is Theresa Collingridge. This is a woman who stayed at a women's shelter called Osborne House, which is here in Winnipeg. Early this morning I confirmed that Osborne House was a member of the association that was before us.
This is an account of this woman's experience inside Osborne House, as she titles it, and I read from her statement for the record. These are her words and not my words. Let's be crystal clear about this. She says:
I will read a few other quotations. She says:
Then she goes on:
This is the same person speaking. I continue:
This is from a particular woman who stayed in—
The Joint Chair (Senator Landon Pearson): Could you identify your document?
Senator Anne Cools: I did at the outset. I said it's a statement from Theresa Collingridge called “Inside Osborne House”.
The Joint Chair (Senator Landon Pearson): To whom?
Senator Anne Cools: I pulled this off the Internet, but it was delivered in Winnipeg on November 2, 1996, at a meeting organized by the Men's Equalization Inc.
The Joint Chair (Senator Landon Pearson): Thank you very much.
Senator Anne Cools: But I was given this in response to the questions and to these two statements, where they said they were members of these organizations.
The Joint Chair (Senator Landon Pearson): No, no. That's fine. I just wanted it to be identified.
Senator Anne Cools: I did. I began by saying—
The Joint Chair (Senator Landon Pearson): I just wanted to know exactly where it had come from. Thank you.
We are running half an hour late now, so thank you very much for your presentation.
We would like to call our next set of witnesses, who are appearing as individuals: Ellana Ronald; David Hems; and Michael Catling.
The Joint Chair (Mr. Roger Gallaway): Is Mr. Steele going to be speaking also?
Ms. Ellana Ronald (Individual Presentation): Yes.
The Joint Chair (Mr. Roger Gallaway): The two of you have five minutes.
Ms. Ellana Ronald: That's right.
The Joint Chair (Mr. Roger Gallaway): You're splitting your time, so if you want to proceed, please go ahead.
• 1200
Ms. Ellana Ronald: Ladies and gentlemen of this committee, my husband and I would like to thank you for giving us the opportunity to contribute to this historic examination of custody and access issues in Canada.
We are grandparents who came very close to being completely cut out of the lives of three grandchildren when the parents of these children were divorced in 1995. This was nearly accomplished when the mother of these children entered into a women's shelter and was assisted in making an allegation of child sexual abuse against their grandfather, the man who sits besides me here today and who will also address the committee.
Given the time constraints of this presentation, we would like to provide the committee with a detailed summary of our case, which was written by a local Winnipeg investigator who helped us to get through this devastating event. The report contains an extensive research review that evaluates the effective methods of investigation required to examine an allegation of child abuse, and we believe it would be valuable to the deliberations of this committee.
Mr. and Madam Chair, at this time we would like to ask the committee if it would consider placing this report into the record of these proceedings as read.
The Joint Chair (Mr. Roger Gallaway): Agreed.
Some hon. members: Agreed.
The Joint Chair (Mr. Roger Gallaway): Thank you.
Ms. Ellana Ronald: Three years ago our family was very nearly destroyed when my son and his wife separated and an allegation of child sexual abuse was made against my partner of 10 years. Our granddaughter was then four years old, and she claimed over and over her grandpa stabbed her with a knife in her private parts.
When this nightmare started, we understood that such a serious allegation needed to be investigated and we offered many times to be interviewed by the investigators charged with protecting our grandchildren. This committee needs to be aware that the investigations conducted in these cases are so incompetent that the investigators do not talk to the accused or anyone who is associated with the accused unless they are prepared to put in writing they believe the allegation.
In our own case, not only were my husband and I not interviewed, but also the father of these children was not interviewed and he was not allowed to see the children for three months until the investigation was completed. Soon after our son was allowed to see his children, he was also accused of stabbing his daughter in the vagina with a knife.
We were nevertheless asked to believe the child unquestioningly. Above our concerns for ourselves and the stability of our family, the hardest thing for us to deal with was what our granddaughter was going through. It was impossible for us to understand why the authorities were not examining or questioning the stability and the history of the mother of these children.
The mother had many problems, which had been evident to us since our son brought her into our lives. She would advise anyone who would listen that she had been a victim of incest at the hands of her own father, though no one ever questioned that family. She told everyone that her daughter from a prior relationship was also an abuse victim.
My husband will now take over the presentation.
Mr. Murray Steele (Individual Presentation): After 18 months of emotional and financial trauma, our case was finally referred to a clinical assessment process as a result of the intervention of our Minister of Family Services, Bonnie Mitchelson. The assessment determined that the mother exhibited the symptoms of a paranoid personality disorder and she had unusual sensitivity to abuse issues. When questioned about her own alleged incest experience, it was discovered that she believed she was abused in utero, or while she was still in her mother's womb.
The impact of this experience came close many times to destroying the whole family. Depression and anxiety were our most common emotions for almost two years.
As adults, there's no question that we were traumatized by the seemingly endless process. We lost our faith in the fairness and justice of our own society. We lost the illusion that Canada is a good and decent country, where people are entitled to certain inalienable rights. We now know that in family law the accused has no rights, though we hope this committee can make recommendations to change that.
Because of the experience and expertise provided by the Parents Helping Parents organization, we reached the end of the ordeal much more quickly than other families who maybe were not so lucky. We hope some good will come out of this horrible tragedy, which affected our family and us all.
• 1205
I would like to make the
following recommendations to the committee:
First is that the Divorce Act be amended to include a paragraph whereby it is recognized that where a parent makes false allegations in order to deny access to the other parent, the court will award custody to the non-accusing parent unless that parent is also found unfit.
Second is that the Divorce Act be amended to include a paragraph that will recognize the negative impact of false allegations on the well-being of children; and further, that submitting a child to a false allegation be recognized as child abuse, no different from actual physical or sexual abuse of that child.
Third is that the Divorce Act be amended to include a paragraph that will recognize the importance of grandparents in the lives of the children of divorce, and that a friendly grandparent rule such as that proposed by the Honourable Senator Duncan Jessiman be proposed and developed whereby the court must take into consideration the willingness of the custodial parent to allow a continuing relationship with grandparents following a divorce as a reason to deny or award custody.
Fourth is that this committee recommend to the Department of Justice that criminal sanctions be imposed against persons who make false allegations of abuse. Further, where allegations arise in a divorce proceeding, the case should immediately be referred to a clinical assessment process to ascertain the truth or falseness of the allegations.
The final recommendation is that the professional community and judicial services be made aware, through education programs, of the damage caused to children and families by false allegations; also, that effective training programs be developed to assist judges and professionals about the investigative procedures required to determine the difference between true and false allegations.
My wife and I are prepared to answer any of your questions. We both thank the honourable members of this committee for the opportunity to make some contribution toward changing family law in this country and this province. Thank you very much.
The Joint Chair (Mr. Roger Gallaway): Thank you, Mr. Steele.
Mr. Hems, five minutes.
Mr. David Hems (Individual Presentation): I'd like to thank the committee for inviting me, because I think this issue is impacting huge numbers of families across this country. My interest stems from my own experiences over the past five years of separation and divorce and the emotional, psychological and financial difficulties I have had to endure just to try to maintain myself as an active and participating father.
During that time I've also realized that this is something that many loving, caring parents have also had to endure. I think it is plaguing our children.
For the first five and a half years of my daughter's life I had what I would consider a fairly normal role in her life. I held her at night when she couldn't sleep. I changed her diaper when she was in discomfort. I sang to her when she was distressed. I attempted any form of interaction that I could think of, watching the developing expressions and reactions with joy.
When my former wife and I began the process of separation, I naively believed that since we were both loving and caring parents, the responsibilities, joys and heartaches associated with parenting would continually be shared. It seemed reasonable that since we both made the decision to bring the child into the world, we had also jointly made a commitment to that child and our society to continue with the responsibility.
Furthermore, given that as parents we were two different people with different interests and different passions, it did not seem reasonable that we would want to rob our children of the opportunity to experience the exposure to these different interests and passions. What else but two loving parents providing a child with varied opportunities, development and interests could be deemed anything but in the best interests of the child?
My experience over the last five years has left me stunned at the way we treat our children. Through that time I've met numerous divorced and divorcing fathers and have been amazed at the commonality in the patterns of events that have pushed parents to the fringes of their children's lives.
• 1210
I have identified a few of the problems that I see.
One is that prior to a separation agreement, which in
itself can take months or years, access can be
restricted by one parent as a means of control for the
purposes of establishing a precedent as to which parent
the child will live with. This can be done without
recourse due to lack of court order or separation
agreement. Attempts to obtain even an interim order
can be time-consuming and expensive, as there are
numerous avenues to delay the procedures.
It also needs to be recognized that this affects a child's opportunity to develop relationships with his or her extended family, which includes grandparents, aunts, uncles and cousins, all of whom can provide support and care for the child.
Once that precedent has been established, any legal access is better than what the parent who had been denied access has had to endure. In other words, most parents will decide it's better to agree to some form of visitation that is offered in negotiation than to continue with what they have had to go through.
Lawyers tend to call these “generous access arrangements”, but it's more like a visitor than a parent. Usually during this period tensions have increased between the former spouses to the point that any discussion of joint custody is undermined. The question generally brought forward is how you can jointly make decisions about what is best for your child when you can barely speak to one another. So the general conclusion has been that in the best interests of the child, it is better to hand all the decision-making over to one parent—usually the one who has maintained control and has limited access to the other parent during the separation.
The Joint Chair (Mr. Roger Gallaway): Mr. Hems, you're just at your five minutes. Could you make your recommendations?
Mr. David Hems: I'll go with the recommendations.
I think there should be a legal presumption of shared parenting prior to final consent judgment to ensure that children are maintained in contact with both parents during this period. And I avoid the word “custody” here.
Our first priority in any separation needs to be the children. By having the division of marital property, spousal support and child support tied into the same process as custody and access, we set up a situation that can lead to one parent using the child to establish the need for greater material divisions and financial support for themselves. At the same time, the child begins to lose the psychological and emotional support that the other parent can provide.
There should also be compulsory mediation, with the mediator having the right and the obligation to testify in court if mediation fails to identify to the judge what the failures were. Under the present circumstances it's to the advantage of the parent controlling the children to ensure the mediation process breaks down. The mediator then reports that there's no hope of mediation and the joint custody option is abandoned.
When the child is in a social institution and that child becomes ill or injured, both parents should be the automatic contact. The present system places undue hardship on the non-custodial parent, as well as day cares and schools, which are placed in the middle while they're still trying to maintain their required ratios. For example, a stranger who is on the list as the next contact could come and pick up a child, or if no one's available a day care worker is stuck with that child, which undermines the operation of the whole day care.
No parent should be allowed to unilaterally move the child from one location to another. The parent wishing to move must be responsible for demonstrating why the location is in the best interests of the child. In many instances the custodial parent will relocate without informing the other parent. This effectively undermines any opportunity for effective dialogue to seek an alternative solution. I think a unilateral move demonstrates greater concern for the parent's well-being than for that of the child.
Denial of access should be treated for what it is—a failure to fulfil a court order, no different from any other court order. Parents are presently being jailed and losing societal privileges for failure to comply with support orders. Denying access for a child to a parent can have even more severe ramifications for the well-being of that child. Time lost with a child can never truly be compensated for.
• 1215
In summation, it's important for children
that they see both parents
participating in all aspects of their lives. The
present structure appears to work against this goal.
It tends to define the father as the provider to
the establishment of support payments and the mother as
the emotional and psychological caregiver to the
awarding of custody.
The impact of this is tremendous in that it robs the child of the support beyond the financial support a loving father can bring. It also perpetuates the pattern that so many individuals in our society have worked so hard to try to change: that of father as provider and mother as caregiver. These scenario types can never be broken down until our children see that both parents are able to provide them with a whole range of needs that are not gender specific. It's time to stop.
The Joint Chair (Mr. Roger Gallaway): Okay. We were a bit over time. Sorry about that.
Mr. Catling.
Mr. Michael Catling (Individual Presentation): I don't have anything written down. I just want to thank you, sir, from my heart for inviting me. This is the first time I've sat in on anything since the court battle five years ago.
I haven't seen my son in five years. His mother has taken him off to the States. My concern is why the government and the court systems don't listen.
When we sat in court and papers were offered to the judge from the child psychologists who had seen my son because he didn't want to go back with his mother, they didn't want to look at the papers. Lawyers lie. Money-wise, they break you in no time. I just finished paying off my lawyer's bills. Now I'm being sued from her for more money and some custody...what do you call it...I'm all rattled here.
The point is that we need to listen as Canadians to the children. I'll never get back those five years. There's not enough money in the world that'll ever give me back those five years of what I've lost. I know how he feels. I know how a lot of these fathers feel.
We have to look at our country and the children who are going to grow up in it. What are they going to be like if they just take them away from their fathers?
I know what it's like growing up without a father. My father died when I was seven years old. They took Jody away from me when he was seven years old.
She gets away with making phone calls and saying I'll never see him again. I don't even know where he is in the United States. I don't have a clue where he is. In the final papers, they took joint custody away from me and gave her sole custody. For what reason? I did nothing wrong. I was a good father.
I'm still trying to figure out in these five years what I did wrong. People need to listen to the fathers. I'm not knocking down women. I'm just saying it's been the hardest five years. I thought growing up without a father for 30 years was hard. These last five years were the toughest. Not to be able to hold his hand, not to be able to watch him score a goal, not to be able to see him on his birthday and not to have him for Christmas—that really hurts an awful lot. And every day I go to bed with the same broken heart and I wake up with a broken heart.
We need to listen as Canadians and be together. As senators and as a country, we need to get together and stop this.
The sad part is that the children are the ones who suffer. I'm an adult and I can handle the pain, but the children should have choices and they don't have any choices. We need to give children choices, a chance to speak.
Judges and lawyers need to check out the backgrounds of people and find out what's better for a child, and the sad part is that nobody can get along. You try to get along, but they don't want to get along. They just want to...whatever. It just hurts you all the time.
I'm not good with words. I never try to be anything better than what I am. I grew up and I worked hard. I've accepted a disability that I have now. And all I want is to see my son. And where do I go? I don't know where to go.
I went to see my MP, and all he did was scratch his head and say it was time for him to go golfing. He didn't even want to listen to me.
So please do something for us, because it is sad to live five years, and then what's it going to be? Perhaps six, seven, eight, nine, ten years...and someday some grown man is going to walk up to me and it's going to be my son, and I won't even know who he is.
That's really all I have to say. I'm frustrated with the system and I wish somebody would do something about it, because it hurts.
The Joint Chair (Mr. Roger Gallaway): You did fine with the words. Don't worry about it.
We'll start now, as you know, with the questions, and we'll start with Mr. Forseth.
• 1220
Mr. Paul Forseth: Thank you very much.
You said you accepted your disability. What was the disability?
Mr. Michael Catling: I was an autobody mechanic and my knees are toast now. I'm going for surgery in another few days to see if we can try to correct what damage is there to just get me walking half decently. I can't have knee replacements.
Mr. Paul Forseth: So because of a physical problem you're no longer able to pursue the career you've been involved in?
Mr. Michael Catling: I've been off work now for two and a half years.
Mr. Paul Forseth: All right.
I'm just wondering if the various witnesses this morning at our table, in retrospect, now looking at all they've been through, could give us any advice about what kind of help perhaps would have been helpful to them before the big blow-up, before the separation, or whatever happened in the family.
Would there have been some services that would have been helpful a year or two before this, that perhaps would have made a difference so this whole scenario you later went through would have been avoided? Based on your experience and looking back, can you give us some indication that some supportive services would have been available to ameliorate some of the internal problems within the family unit?
Mr. Michael Catling: We have doctors and psychologists. I've seen Dr. Ron Richert in Brandon about the hurt and so on.
I believe that before you're in court and anything like this goes on, they should be talking to the mother, the father and the child, together or separately, to find out what's best. As soon as you hire a lawyer the war starts; you're in court.
Mr. Paul Forseth: Thank you. That kind of testimony is somewhat in line with a lot of the testimony we've heard in this committee. Once we get into a legal context, then positions harden. Perhaps if there was a softer, mediated side or alternative dispute mechanism, then a better result would have been desirable.
Perhaps the others could also direct their mind to this retrospective advice that I'm asking for from them.
Mr. David Hems: Even if a program or an institution existed during the marriage that may have been helpful, we were too naive to understand the process that was going on to be able to utilize that.
Once the separation occurred, the first attempt I made was to go directly to the provincial mediation services. I think this is an important service. As I mentioned in my recommendation, because of the voluntary nature of it, the first thing I was told was that I was a potential child abuser, and that shut the mediation process down. Not that I was, not that there was any evidence that I was, but that I was a potential.... The mediator did not believe it. I spoke with her many times afterwards, but to her it was a demonstration that there could be no mediation because of the animosity.
Mr. Paul Forseth: We have also heard some of that testimony. Those kinds of accusations are used as a trump card, thrown on the table to short-circuit the responsibility for an alternative dispute mechanism and being involved in a proper resolution of the issue.
Can I have the other folks at the table here comment on my retrospective question?
Mr. Murray Steele: In the case of our son and daughter-in-law, mediation would not have worked; however, there are instances where it could work. The problem is the court systems and the Child and Family Services. If it's not going to work for the couple once those mechanisms cut in and there is zero tolerance and so on, it's like a locomotive going down a railway track. It just takes everything with it. If the system was corrected, then mediation would start to work, because that would have to be the alternative to select.
Mr. Paul Forseth: Thank you very much.
The Joint Chair (Mr. Roger Gallaway): Thank you.
Senator Jessiman.
Senator Duncan Jessiman: Thank you.
Mr. Catling, you said when you were first divorced that it was joint custody. What date was that? Can you give me the year?
Mr. Michael Catling: It was on September 20, 1990, or something around there.
• 1225
Senator Duncan Jessiman: That was changed in 1993?
Mr. Michael Catling: Yes.
Senator Duncan Jessiman: Was that a court hearing where she was given sole custody?
Mr. Michael Catling: Yes, it was.
Senator Duncan Jessiman: Were you at that hearing?
Mr. Michael Catling: No, I couldn't be at the one in Ontario because that's 18 hours away. At that time I was working and I couldn't get the time off.
Senator Duncan Jessiman: Do you know whether you were given rights of access?
Mr. Michael Catling: No, because the lawyer I hired went in. It took him five minutes and he walked out and said “It's over”. That was it.
Senator Duncan Jessiman: Did you get a copy of the order?
Mr. Michael Catling: I might have it at home.
Senator Duncan Jessiman: You don't know whether it says you have access or—
Mr. Michael Catling: No, I was supposed to have some kind of access and visitation rights.
Senator Duncan Jessiman: You were supposed to?
Mr. Michael Catling: Yes, and then she took off to the States with him....
Senator Duncan Jessiman: She was in Ontario. Were you to pay anything towards the maintenance of the child?
Mr. Michael Catling: Yes. I never turned that away. It was $75 or something like that a month, which was cheap. I said no problem at all. The lawyers had asked that she give me a phone number and an address where he'd be at, and she gave us a bogus one and disappeared.
Senator Duncan Jessiman: So you have not paid any money under the order.
Mr. Michael Catling: No. I didn't know where to give it and where to send it.
Senator Duncan Jessiman: They haven't brought any—
Mr. Michael Catling: They knew where I was, and that's the sad part about it. They threw it in the collector's bureau for just one of the games they play. They didn't have to do that. They just had to call me and I could have started paying, but the sad part about it is—
Senator Duncan Jessiman: Did you pay?
Mr. Michael Catling: No, because I don't know where he is.
Senator Duncan Jessiman: They put it in the collector's bureau—
Mr. Michael Catling: Yes, something like $1,600 has just been put in there. It should be more than that; it should be about $2,300.
Senator Duncan Jessiman: That's all I have. Thank you.
The Joint Chair (Mr. Roger Gallaway): Ms. Wasylycia-Leis.
Ms. Judy Wasylycia-Leis: I would like to thank all the presenters for appearing before the committee today. I know you each have your own personal story, but I want to put before you what I understand to be three common scenes that keep coming up at these committees. I want to see how you stand on them. One is that there is a need for less adversarial process; two, that there is a need for mandatory counselling; and three, that there is a need for a requirement that a full parenting plan be presented to the court before a divorce is granted. I'm wondering if you have comments on those three common scenes that keep coming up.
Mr. Murray Steele: I would agree that those are desirable and laudable efforts that we need to make. However, the system still needs to be corrected. The family court system and the zero tolerance problem we have in Manitoba.... Those basic things have to be corrected with true mediation before we can make these other things work.
Mr. David Hems: I also agree that those would be laudable things to do. My only concern would be that I don't know if they're feasible to implement until some of the mechanisms that are used to undermine.... Prior to sitting down and putting these shared parenting arrangements, whatever you want to call them, together, some of the mechanisms that have been used and have been spoken about.... How easy it is to make false accusations. Certain women have been basically trained not to work at any kind of mediation because it creates innovative solutions that may work against them in a financial way. So some of those kinds of things also need to be adjusted to implement what you're suggesting, which I think would be great.
Mr. Michael Catling: I believe you need to take a blank piece of paper and start over from scratch. The system needs to be changed completely, because this can't go on. It's not fair to people.
You only have one shot in life, and it doesn't need to be miserable. You need to sit down and start from scratch and ask fathers and mothers some questions, like you're doing right now. Before it ends up in court and people are spending money that doesn't need to be spent, they need to sit down and settle something so there are not so many heartaches and a child is not walking around hurt.
That's about all I can say.
The Joint Chair (Mr. Roger Gallaway): Senator Jessiman has the floor.
Senator Duncan Jessiman: Mr. Catling, where is your home?
Mr. Michael Catling: My home is in Brandon, Manitoba.
Senator Duncan Jessiman: When you had your divorce, was it in Brandon?
Mr. Michael Catling: No, it was in Ontario.
• 1230
Senator Duncan Jessiman: Did you move to Brandon? Because your wife was in Ontario.
Mr. Michael Catling: They were in Ontario, yes.
Senator Duncan Jessiman: Did you leave them first?
Mr. Michael Catling: No. She walked out on me with a truck driver.
Senator Duncan Jessiman: And went where?
Mr. Michael Catling: She was still in Ontario. From there, she ended up in the States, and left some other guy.
Senator Duncan Jessiman: In terms of the order she got from the judge to have sole custody and to give you access, did that include in it a clause that said if she was going to change her place of residence, she'd notify you 30 days—
Mr. Michael Catling: Yes, it's in there.
Senator Duncan Jessiman: So she hasn't complied with that.
Mr. Michael Catling: Right.
Senator Duncan Jessiman: But the order does include that.
Mr. Michael Catling: The last time she called she said I would never, ever see them. That was it. I shouldn't even look for them, because I wouldn't find them. That's why she took off to the States, to a different country.
Senator Duncan Jessiman: But the court ordered her to provide that.
Mr. Michael Catling: The court did order it, and of course she....
Senator Duncan Jessiman: Thanks.
The Joint Chair (Mr. Roger Gallaway): Thank you very much. We appreciate the fact that these are very intimate details of your life. We appreciate the fact that you've come here today to talk to us and to help us in our work.
If you want to stay, that's fine.
I'm going to call forward the next witness, Ms. Susan Baragar of the law firm of Wilder, Wilder and Langtry. You know what our routine is here, I presume.
Ms. Susan Baragar (Representative, Wilder, Wilder and Langtry): I have watched.
The Joint Chair (Mr. Roger Gallaway): If you want to proceed, please do so.
Ms. Susan Baragar: Thank you, members of the committee, for allowing me to be present.
First of all, I'll give you a little bit of my background. I was called to the bar in 1984. Approximately 95% of my practice is in the area of domestic law. I'm also a registered psychiatric nurse, so I have some knowledge of child development and therapy, those types of things, because I've acted as a counsellor and a therapist.
In my practice I have all kinds of clients and all kinds of situations. I guess sometimes, in changing laws, we want to come up with a magic bullet that's going to satisfy everyone, but I want to stress that family law, like any other area of life, is incredibly varied.
The common thread among all of my clients is that when they come in to see me, they're in crisis. A great part of their life has fallen apart. To varied degrees, they depend on that part of their life.
There are some who are mature, responsible people. They care very deeply about their children, and they rise above their own feelings to come to agreements with their ex-partner on custody and access. Sometimes there are some glitches and sometimes they need a little bit of help, but not a lot. They're usually able to deal with the problems that come up between them. Needless to say, their legal bills are very low, and their children come out of the situation with as minimal disruption as possible.
Unfortunately, I have other clients—and it really only takes one parent to be unreasonable, unfortunately, in a situation—who fight, and whose children become casualties in their war. There are a lot of different motivations for the fight, but I guess a common theme that then comes out is that the children are used as pawns in their battle.
Sometimes it's financial motivation. Sometimes they're working through their own grieving process, which includes a great deal of anger, and they're doing it through the court system, which isn't the appropriate place to do it. They should have counsellors to help them work through that. I often find brick walls in terms of trying to get them to go in and see a counsellor, because that means they have “something wrong with them”. So they won't go in and see a counsellor to try to work through that.
I'd like to talk about four wide areas. I would ask the committee to please remember that I'm dealing with generalities, not very specific cases. The first is the court process itself. The second is the role of the lawyer. Third is the role of counsellors, psychologists or psychiatrists. The fourth is the parties themselves—the men and women involved in these battles.
• 1235
With regard to the court process, I guess I'd like
to look at what we call interim proceedings. It's
a very large problem that creates bigger problems.
In our courts in Manitoba, they proceed by affidavit.
We have a standard saying in family law that there's his story, her story, his lawyer's story, and her lawyer's story. When I prepare an affidavit, my client comes in to me and gives me a certain number of facts. I then put those facts into the wording for an affidavit, so it might give a slightly different tilt from what my client is actually saying. The facts are the same, but if you have a client coming in who's yelling and screaming and swearing, that doesn't go in an affidavit, needless to say. Instead, what would go in the affidavit is “I am exceptionally angry”. Well, that has a different tilt.
No one except the lawyers, at that point in time, gets to see the parties and gets to actually hear what the parties have to say. The law at present is that you preserve the status quo at interim proceedings. The reality is, it's impossible to preserve the status quo, because you have parents who are breaking up. But in terms of what the law is, that's what the courts have been told. That's what the case law is. That's what they're told they're supposed to do.
The reasoning behind it, I imagine, is to keep things as much the same for the children until the trial, when the issues will actually be determined. The problem is, with affidavits and interim proceedings, credibility is a big factor. Who's telling the truth? That can't be tested.
Cross-examination can be held on affidavits, but once again, it's strictly paper. The judge does not get to hear the people. It's ineffective and it's expensive. If anybody has had to pay for a transcript, plus pay for their lawyer to be present while the transcript is being prepared, you'll know it's extremely expensive.
Then the matters basically sit, even if you're pushing matters as fast as you possibly can through the court system to try to get to trial. There are very lengthy delays. Currently our courts are setting trial dates in December, and that's if you were to get a trial date today. That doesn't take into consideration the time period you have to have for pretrial dates and various motions that go in between.
So it takes an awfully long time from the time you first start court proceedings until you finally get to trial and somebody actually gets to hear the parties. By that time, you now have a new and lengthy status quo, and case law says you want to preserve the status quo. What happens, basically, is that whatever happens at the interim proceedings is pretty much what you're going to get at trial. Nobody's even gotten to hear the parties except for the lawyers, and the lawyers only get to hear one side.
So I think that's a big problem in terms of looking at the legal system and how we deal with domestic problems. The whole interim procedure is very detrimental.
In terms of the role of lawyers, the majority of us are just trying to make a living in a tough area of practice. It is an adversarial process, and our role causes problems, because it's confusing. It's confusing not only for the client but also for us.
We have lawyers in our system who have been told—and to a certain degree, our own ethics in law tell us—that we are to advance a client's case with utmost diligence, etc. It's right in our canon of ethics. That's what we're supposed to do. There are lawyers in our system who look at it and say, look, I'm going to advance my client's case as long as they're able to pay me. They don't inflame the situation, but they basically allow a client who's already inflamed to take advantage of the system.
• 1240
Then we have what I would term the
barracuda lawyers, and they do inflame the system.
I would say they probably do so for financial gain.
There are those kinds of lawyers. They're pretty few
and far between, but they certainly are there. They take
advantage of an emotionally vulnerable client and they
influence that client to do a lot of unnecessary and
costly things—the things they're
doing are legal—to advance their case. As I say,
there are not very many of those types of lawyers, but they
do exist.
Then there are reasonable counsel who see their role as protecting their clients' interests, but they also attempt, especially behind the scenes, to keep their clients in line. They mediate, they negotiate, and they really see court as a last resort. They tell their clients how much it is going to cost and they try to look at things from a practical as well as a reality standpoint. When you have somebody like that on the other side, a lot of times you can stop things before they get totally exacerbated.
Then you have lawyers who are enmeshed with their clients. I use that word deliberately, and I'm sure that members are aware of what it means. They become too close to their clients and they lose objectivity. They take what their clients say as gospel and they fight like avenging angels on behalf of their clients. The lawyers and clients often inflame each other in that particular circumstance. The clients come in and give their perception of what's going on. The lawyer then says that's absolutely horrible and it goes back and forth. They've lost objectivity and they're inflaming each other.
They don't do this consciously, but it certainly happens. They lack what I call healthy skepticism. They lack the ability to keep in mind that they're only hearing one side of the story. Especially in family law, people can have such different perceptions of what has happened you'd think they were living on different planets. They lack that healthy skepticism. A lot of these are young lawyers. In family law there are a lot of young lawyers; it is such a brutal area that lawyers don't stay in it.
Then there are lawyers who see their role totally as negotiators and mediators, and in some circumstances that's wonderful. Unfortunately, sometimes you do have to fight. Sometimes you do have to go to court, especially when there are, perhaps, false allegations. With those kinds of things, you have to go to court. They will avoid court to such an extent that you now have a very lengthy status quo, bad agreements reached that don't work. So you can actually end up going back to court year after year after year to undo an agreement that probably never should have been reached in the first place, because it wasn't going to work.
I've actually had cases where we're now going back to try to undo something that was done seven years ago, and the parties have been back in court once a year for seven years. The first time it was by agreement, because the parties were told—in that particular case it was the dad—that it was better to go by way of agreement. He did. The agreement could never have worked in that particular circumstance, so now we're fighting it out, seven years and huge legal fees later.
In terms of the role of the counsellors and psychologists, if a serious allegation is made it is now pretty much automatic that you need an assessment or a report. The reports take a very long time to complete. They're extremely expensive; $6,600 is the average cost. Between $4,000 and $7,000 is the cost for a custody access assessment in these matters. So they are extremely expensive.
• 1245
There is often bias in these reports, because it depends on
the affiliation of the person who's preparing the
report. You have to question what exactly
these reports are testing for. Some are excellent reports.
They check out collateral sources and they prepare a
very good report. Others basically just go on what
the person says and it's the
judge's job to determine what's true and what's false.
If we have a psychologist who is told that mom says that dad does this, this and this, if the psychologist simply accepts that without checking it out, what we get in the report is just a repetition of the affidavit that has already been formed.
I even have cases where a person is on a child abuse registry and a psychologist recommended awarding control of the children to that particular person. So you have to wonder what these reports are testing for.
Unfortunately, in our court system many of our judges take what a counsellor or a psychologist says as gospel. They think they're the ones who have the training in that area, and if that's what the psychologist or the counsellor says, they will go along with it. To some degree, they totally delegate their decision-making authority to the psychologist or the counsellor. Yet they are the only ones who actually get to hear everybody, at least the majority of the facts that our rules of evidence allow. As a result, if you get a bad report you get a bad decision, and it's already taken far too long to get there to start with.
The Joint Chair (Mr. Roger Gallaway): I'm seeking the committee's directions on this. You've been talking for 15 minutes.
Ms. Susan Baragar: I apologize.
The Joint Chair (Mr. Roger Gallaway): Don't worry, and you don't have to apologize. I want to know if the committee would like Ms. Baragar to continue—we're only allowed a half hour—or if you would like to start asking questions of this person.
Senator Duncan Jessiman: Mr. Chair, I was going to say, if she has it all written down—
The Joint Chair (Mr. Roger Gallaway): I'm seeking your guidance.
Senator Duncan Jessiman: —could we not have it for the record?
Senator Anne Cools: I think Ms. Baragar's testimony is stunning, and I would be prepared to sacrifice my questioning time for her to continue.
The Joint Chair (Mr. Roger Gallaway): I think Senator Jessiman is discussing your adjective.
Senator Anne Cools: Oh, okay. Excellent. Sorry.
The Joint Chair (Mr. Roger Gallaway): Please continue.
Ms Susan Baragar: I will try to be very concise. It's difficult when it's such a very large area to cover.
The last is the parties. As I said, they're in crisis, they're extremely emotional, and there are some power imbalances that exist in our system. If one party, for example, is on legal aid and the other party is paying, we then have an extreme power imbalance, because one party can afford to go all the way through the court system and the other can't. If both are paying and one has a much higher income, we again have a power imbalance.
At present, I believe there is a power imbalance in terms of the ease with which abuse allegations can be made. And in the hands of an unscrupulous person, that power imbalance tends more to be with women.
Who has the children and who gets the children also creates a power imbalance. In our system, normally the mother can come forward and say she has been the primary caregiver and often that is factually true, but once we get into an interim motion under which she gets the children, there's now a power imbalance because she also has the power to withhold the children.
I don't think that women or men are innately nastier, but because of certain power imbalances that are within our system at present it allows women to take advantage of it more often. I'm not saying men wouldn't if they could—I don't know—but certainly I do have clients who happen to be female and who have taken advantage of the power imbalance that exists in our system.
• 1250
I also have clients who think it truly is in their
children's best interest not to see the father.
They rationalize that, and they can rationalize
anything after that. A lot of times they come
to believe their own rationalizations.
As well, I would ask the committee to remember that in many circumstances, finances also play a big part in this. Many women, when a marriage breaks up, are financially dependent on having the children. They may not have worked. In order to get child support—and also, often, spousal support—they have to have the children. If they don't have the children, they don't get support. Consequently, there is an added incentive to make perhaps spurious allegations, because their whole immediate financial livelihood depends on it.
In terms of changes, first, something has to be done with the interim proceedings. The only thing I can think of is that you have to go to oral hearings. Now, that means it's a lot more costly, because you have to have more judges, and they probably have to be going almost 24 hours a day, the way they do in the States.
My feeling is this: Do it once, do it right, and do it fast. If you're going to have to go to court, spending two years creating a status quo that may be a bad status quo is not a good idea. We have to get it in and do it fast.
In terms of the lawyers, you can't change people's personalities and whether or not they get enmeshed in this, but in our law schools I think there needs to be some training in terms of things counsellors have to learn when they go to school—for example, how to try to keep your objectivity.
As well, get rid of some of the paper. I know in my practice, I'm drowning in it, and the more paper I have to generate, the more I have to bill. We've done it in the criminal system. In a criminal case, I can have a file that is less than an inch thick, and I'm finished the file. In a family system, if I have to go to trial, I have drawers that contain one file.
With regard to counsellors and psychologists, we can't tell them what they have to do, but certainly we can mandate what reports we will accept and what reports we will not accept, and what they have to do in order to tender a report to the court. Do they or don't they check collateral resources? These kinds of things we can tell them in terms of the legislation.
In terms of the parties, we need alternative processes, but I would ask the members not to throw the baby out with the bathwater, because we also need the courts. We need them all, because every family is different.
We have a law already in the Divorce Act that says one of the things we're going to take into consideration in determining custody is who is the parent who is going to facilitate access better. I can tell you that in Manitoba, if it's given lip service at all, that is all it is given. That's something that has to be looked at. We already have the law, but we're not using it.
We also have to look at the consequences of denying access. What are we going to do here? It's a very complex issue, because throwing in jail a mom or a dad who has been the custodial parent is also going to cause great damage to the children. Fining them is going to take money away from the children.
So we have to find an alternative. The only alternative I've actually been able to come up with is possibly changing custody.
One of the other things I think we need to take into consideration—and we don't, at present—when we look at the parents is which one is better able to financially support the children. Now, that often puts women at a disadvantage, but I guess right now we encourage a system where everybody ends up in poverty.
• 1255
I'd like to end with one case I had. It was a mother
who had stayed home and looked after the children.
When the separation occurred, she stood back from
the situation and said “Okay, I've been the primary
caregiver. I know I can get custody. But if I
get custody, on his salary he can't pay me enough
so that my children can have a good standard of living.
If he has custody and I have liberal access,
I can then go back, establish a career, and my children
will get the benefit of not being in poverty,
and both my contact and his. We're all better off
than we would be the other way, where I would be in
poverty, the children would be in poverty, he would be
in poverty, and we'd be fighting.”
So that's something that needs to be considered, perhaps, and at present is not considered.
Thank you.
The Joint Chair (Mr. Roger Gallaway): Thank you, Ms. Baragar.
Mr. Forseth.
Mr. Paul Forseth: Thank you very much.
In your opening remarks you used the word “crisis”, and later on I think you repeated it several times, so it's the underlying theme, you might say, of the people you're dealing with. As you've described it, to them, their reality is crisis, so obviously these people have made a tremendous psychological and social investment in their ideal of the concept of family, which they're losing or didn't get or didn't achieve.
If you define them as really being in crisis, there's obviously a big gulf between their perceived situation, which they don't like, and their desire for some kind of happiness in terms of family. Central to that is their concept of family and their ideals. By your statements and your testimony today, then, you're saying that people really value the concept of family, and that when that foundational institution is injured, then people across this country are in crisis.
That's a really a big issue for a lot of people. We've heard testimony about how many families in our Canadian society are directly or indirectly touched by the dissolution of family units.
One of the other things that came to mind when I heard you speak today is that, as a lawyer, the abuses of lawyers, as described by Charles Dickens, years ago in England are alive and well.
I would like you to address two questions, and maybe you can make some recommendations. How do we get more humanely to peace, as opposed to what you described as crisis for dissolving families? Does it even mean doing whatever we can to keep lawyers out of the crisis? That's question one.
As well, how do we from a legal perspective minimize the power imbalances to help fulfil parental duties towards their children? That was a theme you talked about.
Maybe you could address some comments around those two themes.
Ms. Susan Baragar: How can we get there more humanely? I do think there should be some mandatory education. In Manitoba we have a course called “For the Sake of the Children”. I don't think mandatory mediation is the answer, because I do have clients who are not ready for mediation. To sit them in there is basically to condemn the mediation process to failure at that point in time.
However, I do think education—and by that I mean mandatory education, because I have many clients who won't go, even when I tell them to go—very early in the process can, for those people who really do care about their children but who allow their anger to run a bit rampant, put a bit of a stop to the process. So I do think mandatory education could help.
• 1300
In terms of, I suppose, keeping lawyers out, obviously
I would be out of a job, but I think somebody else
would pick up the ball. Whether you call it a lawyer,
an advocate or a counsellor, I guess at that point in time
there would be somebody else. If lawyers weren't
there, somebody else would be representing
the client and charging money for it. So I'm not sure
that taking lawyers out of the equation is necessarily
the answer.
In terms of the power imbalances, I think where there is a frivolous case, the person has to be cut off. I know Legal Aid Manitoba, for example, is working towards this. Legal Aid Manitoba can say, hey, if you're just going along with this because you're angry and there really isn't a good case here, then we as taxpayers and Legal Aid Manitoba will not support that any more.
That's one of the power imbalances, but in terms of some of the other power imbalances—for example, abuse, and the ease of making the allegations—if we are in the court system, once again, I think what we have to look at doing is making it a very rapid system. That will alleviate some of the power imbalance there. Because making an allegation in an affidavit is very different from testifying to it orally, knowing that you're going to be cross-examined and knowing that contradictory evidence can be presented to show you a liar. It's very easy in an affidavit to make a false or exaggerated allegation.
The Joint Chair (Mr. Roger Gallaway): Thank you.
Senator Jessiman.
Senator Duncan Jessiman: Thanks very much.
I didn't think your testimony was stunning, but I certainly thought it was very constructive. I thought it was very fair.
I would assume, and you can correct me if I'm wrong, that you act for women in more of your cases than for men.
Ms. Susan Baragar: No.
Senator Duncan Jessiman: More men than women?
Ms. Susan Baragar: I would say I represent very equally.
Senator Duncan Jessiman: Well, you certainly gave a very balanced presentation. I was most impressed.
Is this in practice...what you're saying? Because I don't think it's true, according to the law, that a woman, to get financial support for the children's maintenance, also sometimes, to get spousal support, has to get, as you said, the other. As the law provides, they're different. You know that as well as everybody out there. They're quite different in terms of what's required and the treatment of both. Spousal support is deducted from tax, whereas maintenance is not.
Certainly the law provides that a person could lose the custody of the children so that men would take care...and the woman should be able to get spousal support. Isn't that true?
Ms. Susan Baragar: In reality—
Senator Duncan Jessiman: No, but that's what the law provides.
Ms. Susan Baragar: Yes, that is what the law provides. However, if you look at the case law, at the Mogue case in particular—
Senator Duncan Jessiman: Mogue?
Ms. Susan Baragar: It's a Supreme Court of Canada case. It came out of our Manitoba courts. It is the leading case on spousal support.
In that case, the test for spousal support is whether or not a spouse has been economically disadvantaged by the marriage breakdown. If you have the children, you have a continuing economic disadvantage, and therefore you get spousal support.
Senator Duncan Jessiman: But you say the court has said that in the event you don't have the children, you're on your own, you don't have a job, he has millions, and—
Ms. Susan Baragar: No, there can be cases where the man has the child and you can still get spousal support, but what often happens is that if the man has the children, he will waive child support, and that's basically her spousal support.
Senator Duncan Jessiman: That brings me to the next question. What you're telling us is that in practice, if she gives up the children, he looks after them and she goes out and works—and you said, well, she'd be better off—under the present system, she has to pay, regardless of how wealthy he might be. If she goes out and earns $30,000 a year, even though he has $1 million a year, or $10 million, she would still have to pay. Is that not correct?
Ms. Susan Baragar: With child support?
Senator Duncan Jessiman: Yes.
Ms. Susan Baragar: In practice, it doesn't happen, but according to the law, yes.
Senator Duncan Jessiman: That's right. That's what the guidelines provide.
• 1305
Ms. Susan Baragar: The guidelines do provide it. In practice, it very rarely occurs, and in a case like that she would probably get spousal support on top of it—if he has millions. What we're generally dealing with is people who earn $25,000 to $45,000, which is a very different scenario.
Senator Duncan Jessiman: What I am pointing out—and you're agreeing with me—is that's how the system works. That's how the system is set up.
Ms. Susan Baragar: That's how the system is set up.
Senator Duncan Jessiman: You're right.
I have just one other question. You've said that this friendly parent rule, which is subsection 16(10)—and I just want to read it into the record again:
—these are the words you used—
Your testimony is if it's given any consideration, it's just lip service. What do you suggest we say? It couldn't be clearer. How do we put it in the legislation so the judges follow it?
Ms. Susan Baragar: You can make it mandatory. You can say, just as with the child support guidelines, it's mandatory, and if you don't, you have to give written reasons.
Senator Duncan Jessiman: Thanks very much.
The Joint Chair (Mr. Roger Gallaway): Madame Dalphond-Guiral.
[Translation]
Ms. Madeleine Dalphond-Guiral: Thank you, Mr. Chairman.
[English]
I will ask my question in French.
[Translation]
First of all, I would like to congratulate you on the quality of your presentation. It was clear and well organized. I would tend to think that this ability of yours comes from your initial training as a nurse, which taught you to listen, to look and to analyze, and from your specialized training in psychiatry, which taught you the importance of objectivity.
You made certain comments regarding the legal process, lawyers and those professionals who help families in difficulty. I found you extremely critical towards lawyers, especially since you are a member of that profession. I therefore listened with great interest to what you had to say.
You said some things that really struck me and that our committee should perhaps revisit. You said that it sometimes happens that family law lawyers seems to forget the...
[Editor's Notes: Inaudible]... respectable. We know that the lawyer is there to take care of his or her client's case, that the client should be the priority and that the lawyer must win the case for his or her client. If I ever had to call upon a lawyer, I would like him or her to see things in that way for me as well.
However, whenever we are dealing with divorce and children, would agree with me in saying that the interests of the child must come way before those of the client, which would be tantamount to a change in attitude for lawyers? I would like to know your impression.
I also noted that compassion should never supersede nor eliminate objectivity. When we talk about judges, lawyers and workers, I believe it is clear that we can talk objectivity. Concerning the parties involved in the dispute, I believe one must forget that and recognize that they are in a crisis situation and that, by definition, they are therefore unable to be objective and we shouldn't expect that of them.
• 1310
There, I have expressed three opinions. I would like to hear
your views on that.
[English]
Ms. Susan Baragar: In dealing with lawyers, I think what has to be changed, and it's not something the Divorce Act can do.... I think we need to change some of the canons of ethics that we go by in our professional associations, such that our responsibilities are a little bit different when we are looking at children. I think what we need to do is state that we have a three-part responsibility: we have a responsibility as an officer of the court; we have a responsibility to our client; and we must also have a responsibility to the children, who are unrepresented in this matter. The judge has the parens patriae jurisdiction, which is to take care of the children, but a lot of times, by the time we finally get to the judge, damage has already been done.
I think our canons of ethics have to take that into consideration and tell lawyers that that is your duty; it is not just your duty to the person paying the bill. So that's in terms of lawyers.
I also agree that objectivity is absolutely necessary when you are working with people in crisis, because their perceptions are very skewed a lot of the time—not always, but a lot of the time their perception is very skewed. It is something that I think our law schools need to address in training lawyers, especially those who work in the area of family law. Once again, that is not something the Divorce Act can deal with.
In terms of looking at the problems in family law, there are so many areas that have to be involved. The Divorce Act itself I believe needs to make certain changes, but those changes by themselves will not be a cure. It has to be a concerted effort by many different factions and many different pieces of legislation.
I hope I've answered your question.
Ms. Madeleine Dalphond-Guiral: Merci.
The Joint Chair (Mr. Roger Gallaway): Mr. Forseth wants a very brief last question.
Mr. Paul Forseth: Thank you.
Do you have any views about the difference between the Criminal Code provisions of requiring the provision of the basic necessities of life, or child welfare legislation, the laws that parents are to provide until the age of majority, whether it's 18 or 19 years, depending on the province you're in, as compared to the Divorce Act where maintenance even for university students, children 25 years old and so on, is required? There's a curious disparity that the law requires. I'm just wondering if you have any recommendations to change the Divorce Act to eliminate this lack of parallelism or inconsistency, or to deal with that issue.
Ms. Susan Baragar: It's something that primarily fathers have brought up to me because they tend to be the payer spouse. It is a very curious inconsistency that in Manitoba, after the age of 16, you can actually tell your children to leave if they're really misbehaving, perhaps destroying property or doing whatever. However, if you are a non-custodial parent you must provide for your children until, by definition, they are no longer a child of the marriage, which is the dependency definition, and yes, it can be even into a second degree, although the usual cut-off is age 21 or a first degree. That tends to be where the case lies.
So there is a very big disparity. If you're a divorced non-custodial parent, you have to support your children far past what you would have to support them if you were together.
Do I think there should be some parallelism? I believe there should be consistency in the law, yes. I think that's something that certainly confuses people.
Mr. Paul Forseth: Could you anticipate a one-liner in the Divorce Act that said that child maintenance orders under this act remain in force until the age of majority? That would leave it up to the provinces to decide what that particular age of majority is.
Ms. Susan Baragar: I think it really depends on where your priority is. Do you want a cut-off at the age of majority or do you want to encourage children to be able to go on to higher learning? I think what needs to happen is that after the age of majority support ought not be paid to the custodial parent, which sometimes still happens. If any support is paid after the age of majority, I think it should be to the children themselves for their university.
• 1315
Mr. Paul Forseth: I think there is a cut-off in the provincial legislation.
Ms. Susan Baragar: Yes, there is.
Mr. Paul Forseth: So a child maintenance order made in family court under provincial provisions—that order becomes null and void at what age?
Ms. Susan Baragar: At age 18 under the Family Maintenance Act. Under the Child Welfare Act I believe you can actually not support your children at 16. Under the Divorce Act it's often age 21 or first degree, depending on the circumstances.
I think there should be consistency in the legislation. There are pros and cons for each piece of legislation, but I think there should be consistency, whatever it is.
Mr. Paul Forseth: Thank you.
The Joint Chair (Mr. Roger Gallaway): Thank you, Mr. Forseth and Ms. Baragar.
This has been thoughtful and, to use other people's words, stunning and excellent. We have noticed that there's a regional difference in this country in terms of lawyers in Manitoba and Saskatchewan, if I can compare yesterday's testimony to yours of today. We have gone extremely over time, but I know the committee members felt it was well worth it. Thank you.
Ms. Susan Baragar: Thank you.
The Joint Chair (Mr. Roger Gallaway): Committee members, we'll take a five-minute break and then continue with the next group. We're going to be working through lunch.
• 1317
• 1329
The Joint Chair (Mr. Roger Gallaway): Let's try this one more time. Please take your seats. I wonder if Mr. Scott, Reverend Unger, and Mr. Burns could come forward to take their places.
Once again, I'm going to have to tell you that you've got five minutes. I'm going to cut you off at five minutes, even if you haven't made your recommendations, because we are about an hour behind at this point and we are scheduled to take our afternoon session at 1 p.m. We can't end the day being an hour behind or I'm going to have a lot of angry members of Parliament and senators here. I don't like that. I can't deal with it.
• 1330
Mr. Scott, please start.
Mr. Keith Scott (Individual Presentation): Senator Cools isn't here right now.
The Joint Chair (Mr. Roger Gallaway): No, but she'll be in.
Mr. Keith Scott: Let me begin by complimenting those who forced this initiative. However, if your final report does not allow for a venue for the ultimate retribution against those custodial parents who consciously violate court orders, then you will have done a great disservice to the children of divorce and you will have wasted my time, your time, and no doubt some taxpayers' dollars.
That being said, I come before you today to genuinely offer recommendations, not bitching. I have two initiatives that hopefully require closer scrutiny, but I'll start with some simple ones, if I may.
Where joint custody is awarded, all travel for visitation and access must be shared. In spite of my joint custody agreement, I currently travel 1,800 kilometres every second weekend of the month to access visitations with my children, while my children's custodial mother travels one kilometre. This can't continue. With a directive to the attorneys general of the respective provinces, this can be changed.
If a parent wins joint custody, joint means shared, so travel and visitation must be shared. In 1991 I took enough initiative to record my expenses for that weekend. You'll be appalled to know that a weekend costs me anywhere between $800 and $1,200 per visitation.
If it's okay to marry, have children, and live in Red Rock, for instance, then it should be okay to reside there during a divorce. Custodial parents must not be allowed to relocate unilaterally. If relocation is necessary, the non-custodial parent must endorse this before it happens. If the custodial parent relocates without this consent, support must be stopped immediately. No ifs, ands, or buts.
When a judgment is issued and payments are based on a specific locale, why should one parent be able to significantly alter the terms by relocating as far as possible from their former spouse? By doing so, this guarantees that my costs escalate. Also, the likelihood of me being able to remain in the lives of my children is diminished, yet the court-ordered support continues to flow. Again, with a directive to the provincial ministries, this could become a standard clause in future divorces.
In my particular case, my payments were based on my ex-wife living in Sault Ste. Marie. She has now relocated two hours farther south, my costs have increased significantly, and I have no viable cost-effective way to get back before the courts.
When minor children are involved in a divorce, the court must demand that the custodial parent install direct dial telephones. While I, according to my court order, enjoy liberal and generous telephone access, it is impossible for my three-year-old to remember the 15 digits on his calling card. His mother refuses to assist as it wasn't a court order that she do so.
Given today's technology and the current levels of vindictiveness generated by the system as it exists, surely direct dial telephones aren't too much to ask. This could be easily doable. Something has to be done to prevent custodial parents like my ex-wife from violating a court order by merely taking the phone off the hook.
Though court-ordered, it can be enforced that no support payments go to a house, residence, or recipient that is not in compliance. This means all the related expenses to be borne by the father. I will gladly pay to talk to my children, and surely we can come up with a phone that, when you pick it up, it automatically dials one number and one number only: mine.
Automatic health care coverage is a must. There's no negotiation. After an abduction across an international border—mine were so abducted—when they return to their native land as Canadian citizens who were born and raised in Canada prior to being abducted, I am appalled that when they get home from their summer visitation, they have no health care coverage. Because they don't live in Canada for an extended period that's long enough to qualify, they're ineligible.
The American system is so far behind ours that my ex-wife, even if she could provide something, would provide something inadequate. However, she refuses. When my kids get sick over the course of their two-month visitation, they get two aspirin, two Advils, two Sinutabs—they get two of everything—and are sent to bed to cry themselves to sleep because I can't get them health care coverage in Canada.
My son needs braces and my daughter needs glasses. I can't get them coverage. I have to pay out of my own pocket because my children are not eligible for social insurance numbers that are required by my employer before they can be covered by my health care benefits that I pay for monthly. That's a crime.
• 1335
Custom cards are required, picture-endorsed and legally
binding. At present we're reduced to lying to
alleviate the headaches while trying to cross the
border back into Canada. The folks at Canada Customs
believe I should carry my court divorce decree. If I
did, I'm not sure what it would tell them. It
identifies no one. They ask for copies of the
children's birth certificates. Again, a birth
certificate cannot correspond to the person
because it is not pictured.
As we get close to the border my son tells me, “Tell me, Dad, and I'll pretend I'm sleeping, because that way they never ask who we are or where we're going”. It's merely a method by the people at customs to try to convince themselves they've done something to prevent parental abductions. At this point, nothing can be done. My case is not the norm, and I suppose it isn't, so hopefully a situation or a call to customs can rectify this situation so daddy can take his kids back and forth without suffering the third degree. My four-year-old tells me to lie because it's a lot easier than telling the truth.
The Joint Chairman (Mr. Roger Gallaway): Your time is up.
Senator Anne Cools: Perhaps, Chairman, if he has a prepared submission we could take the rest of it as read.
The Joint Chairman (Mr. Roger Gallaway): Do we have agreement on that?
Some hon. members: Yes.
The Joint Chairman (Mr. Roger Gallaway): Okay, fine. We're really pressed for time.
Senator Anne Cools: Taking it as read means it will be on the record.
Mr. Keith Scott: If I could make two recommendations—
The Joint Chairman (Mr. Roger Gallaway): Go ahead.
Mr. Keith Scott: The two recommendations that are created in my mind are, one, we need a divorce judgment registry, a ministerial agency created that would put into a computer database all of the divorce decrees, province-wide, a 24-hour telephone access agency so when I phone up and say I've got access via telephone and my rights are being refused, somebody can verify that there's a complaint registered. That person can take a phone and try dialing the number that I'm trying. If they get the same busy signal for two and a half days, there's a violation.
That is only important if you're prepared to address the fact that a false accusation in a court order and an affidavit is a crime, and I believe it is. I think lying under oath is perjury, and I cannot comprehend why the attorneys general in the respective provinces do not prosecute this crime.
Finally, I had planned to ask for an impartial tribunal, one in each province. A male phones in and has a problem with his access and visitations, multiple violations. He appears before the tribunal. The tribunal makes a ruling that supports it and away we go. We need to have a process whereby custody can be reversed, because if you come up with a whole pile of other creative initiatives and the ultimate retribution is not in that ruling, then it will essentially be lip service and nothing will change.
Women have to know, custodial parents have to know that if they violate a court order there's a punishment. Right now there is none.
The Joint Chairman (Mr. Roger Gallaway): Thank you.
Mr. Unger.
Reverend Wayne Unger (Individual Presentation): My name is Wayne Unger. I'm a pastor of a church in Virden, Manitoba.
Four years ago we established a bus ministry to reach out to the children and young people of our particular community. We found we were picking up a lot of kids from single-parent homes, with all the baggage that is oftentimes attached to that. We saw a lot of difficulties with parents and their children and so on.
The recommendation I'd make concerns the issue of accountability. We found that if children were enrolled in our Sunday school, the parent would make that a priority. So if a mom or dad had visitation rights for every other weekend, it would ensure that the parent would see that their kids were ready for Sunday school.
Oftentimes, maybe beforehand, the father or the mother might be drunk or there might be other women involved or men involved, but if there were some kind of accountability established in that particular home, where the child would have to be ready for Sunday school at a given time, for that hour they would have to be there. We found it worked very well, and it is working well today.
We're picking up children and teaching them good moral living, teaching them forgiveness, that it's not right to steal, that we need to love one another. We found it a positive influence in the children's lives. We feel it's bettering our community in Virden, Manitoba.
That's just a recommendation.
The Joint Chair (Mr. Roger Gallaway): Thank you.
The Joint Chair (Senator Landon Pearson): Thank you.
The Joint Chair (Mr. Roger Gallaway): Mr. Burns.
Mr. Brent R. Burns (Individual Presentation): Good morning.
Hillary Clinton said it takes a whole village to raise a child, and now she's saying it takes a whole village to control her husband. That's a little bit of humour. I'm glad we can laugh about that.
• 1340
My name is Brent Burns. I am a sole-support parent
and I've just completed my first year of law school. I hope
I have something to contribute. I think our purpose
will best be served by avoiding he said and she said
arguments.
Needless to say, family law is first cousin to the criminal justice system. Those who, by will or by force, embrace the chaos of family law quickly find this out. For the proxy professional engaged in this industry, family court is an economy. The raw material for that economy is the pain and discontent of others, something that is easily exploited by the adversarial approach.
Let me depict two schools of thought, which in fact is my recommendation. The first is retributive justice, inherently destructive and punitive. The Oxford English Dictionary defines retributive as recompense for evil or rarely for good done, vengeance, requital. Second is restorative justice. Again, Oxford English Dictionary: tending to restore health or strength, reinstate, bring back to dignity or right.
If I may, allow me to compare retributive and restorative justice. Retributive justice: blame fixing. Restorative justice: dialogue. Retributive: emphasis on differences. Restorative: searches for commonalities. Retributive: one injury added to another. Restorative: emphasis on healing, repair, and comfort after separation and divorce. Retributive: state monopoly on response and outcome. Restorative: family and community roles are recognized. Retributive: outcome encourages irresponsible behaviour. Restorative: responsible behaviour is simply encouraged. Retributive: community ties weakened for non-custodial parent—I am a sole custodial parent. Restorative: ties maintained for non-custodial parent with a holistic approach. Retributive: process alienates parent from child. Restorative: encourages parent-child relationships. Retributive: proxy professionals are key actors. Restorative: family, children, and community are central, with professional help available. Retributive: competitive values encouraged. Restorative: cooperation encouraged. Retributive: assumed win and lose. Restorative: possibility for those who want to win and win.
The retributive approach is to prove the other party wrong, the conqueror and the vanquished, the victim and the criminal. And in a failed relationship, where is the criminal? I just don't get it. Am I missing something?
Unless we change to a restorative approach, the custodial parent will forever be hard-pressed to secure deserved financial support from the non-custodial parent, and decent access for the non-custodial parent will forever be contentious.
The road less travelled is restorative justice. The social cost of retributive justice is astronomical: broken hearts, dreams, alienation, dissemination of our families, neighbourhoods, communities and even Canadian society.
We are responsible as adults for much of the disappointment, anger, and frustration imposed upon this younger generation that is coming up fast behind us. We still have time before that generation takes over the helm of democratic control. We are responsible to fix it.
The remedies we are looking for do not lie with the adversarial lawyer, as restorative justice is now and will always be an alien and foreign concept to such trained people. Those people are best suited for the division of property, not children. Keep in mind that asking a lawyer to quit litigation is like asking Henry Ford to quit producing automobiles—it just isn't done.
As I see it, current family law not only breaches the sanctity of parent-child relationships, but discriminates against the parent who is non-custodial, mother or father. I believe it is our desire to right that wrong and it is our interest in restorative justice that brings us together today. It will be with considerable strength and courage that we take the road less travelled and stand against the objectionable disdain of others. The opportunity before us is not for the weak of heart or for those who secure their income from the status quo, but for those of us who dare to be perceived as radical.
The Supreme Court of Canada—
The Joint Chair (Mr. Roger Gallaway): Mr. Burns—
Mr. Brent Burns: I've got ten seconds, and it's not my fault we're running late.
The Supreme Court of Canada adheres to the best interest of the child test in resolving custodial disputes. In my opinion, the best interest of the child is access to mom and dad, regardless of financial contribution or past conduct, provided this conduct has not abused the child. If it has, the criminal justice system should be involved.
In our dialogue, which will occur shortly, I invite you to ask me questions about my experience in court as a custodial or non-custodial parent, the harm done to my children through that process and how this discriminates against what the adversarial system would term the losing party. Thank you for your time.
• 1345
The Joint Chair (Mr. Roger Gallaway): Thank you.
We will start with Mr. Forseth.
Mr. Paul Forseth: Thank you.
I wanted to ask a quick question of Reverend Unger. You were describing something of a systematic event, such as a bus arriving on time by appointment, as revealing family pathology, just as parental neglect is often not recognized until children are required to attend school, and then the routines and the regularity required by public school reveal much about what's going on in the home.
In view of what you've discovered in providing bus service for a Sunday school, how did you then respond? What did you do? You say what you're doing works so well. Can you flesh that out a little bit?
Rev. Wayne Unger: We try to talk to the parents, or parent, if there's difficulty there, maybe on a counselling basis. Of course, that makes my workload heavier, but that's what we're there for, to try to help the parent along. Why are there alcohol problems? Maybe they have some difficulty that they're just not dealing with, and maybe...not at a church level, but we can help them deal with some of these issues they're facing.
Mr. Paul Forseth: And you're meeting with some success.
Rev. Wayne Unger: Yes, a little. I'm not saying we're in any way tearing up the community, but I hope we're doing something positive. That's all we want to do. We want to try to shape these kids in a positive way, and hopefully we can help the parents along the way as well.
Mr. Paul Forseth: It's interesting, because I would assume the bus arriving, or you becoming aware of this family...there was a voluntary—
Rev. Wayne Unger: Yes. This wouldn't cost the taxpayer any money. For instance, if I recommend to this particular committee that if the parents would sit down and say yes, we need to send our kids to a kids club or Sunday school, I think that would be something positive, and it wouldn't cost the taxpayer any money whatsoever. The organization is there ready to offer support and help and prayer, and I believe that's very important.
The Joint Chair (Mr. Roger Gallaway): Does anyone else have any questions?
Senator DeWare.
Senator Mabel DeWare: I would also like to ask the Reverend a question. We hear quite often about non-custodial parents not allowed to see their children unless they're supervised, and sometimes in the beginning the supervision is done in a gym or someplace where there are a lot of children involved. Could you use your facilities for supervised access?
Rev. Wayne Unger: Yes, definitely. Our church happens to have a gym, although we don't use it during the Sunday school hour that much. We have facilities there that are usable, and at times we've had different clubs and organizations use it. For that particular Sunday school hour, from 10 o'clock till 11 o'clock, the kids are someplace where they're being taught something positive. I believe there is an accountability aspect to it as well.
Senator Mabel DeWare: I think today you've brought something to us that we haven't thought of before. You could provide a safe haven. We've heard people say “The child doesn't want to stay with a non-custodial parent”, or something, or for some reason a child doesn't want to stay overnight with a parent, or something's happened. Who do they call? Where do they go? If their other parent is 200 miles away, there's just no way they can call. It might be nice if we could develop areas in our communities, as you're suggesting.
Rev. Wayne Unger: I happen to belong to the Pentecostal Assemblies of Canada, which is an organization of the church. We have 1,100 churches across our nation, and a lot of them do have bus programs, Sunday school programs. I've talked to fellow pastors and so on, and they can have a very positive influence on children's lives.
We are concerned about our children and young people, and that's why we're doing it. It's not a money-making thing; it comes from the church. We find it's very good and very positive in our community.
• 1350
Senator Mabel DeWare: Mr. Scott, I believe you made a statement in your presentation to us today about withholding child support because of the custody and access—things were denied or hadn't been straightened out yet. We've also heard from some other witnesses over the past month or so that they do not feel that child support and custody and access should be combined. They should definitely be separated, because if you deny the support, you're denying the child, and they're very concerned about that. I'd like to have you elaborate on that a little bit more.
Mr. Keith Scott: I don't have a problem with them being united, provided there's an equal response by the various levels of government to enforce the rights. Obviously it's difficult to say withholding your child support is a positive factor, but when you can't visit your child, when you have a court order and a legally binding document and you have somebody who's violating it.... For 15 years men have been beating the door down, saying, my rights are being abused and nobody's listening. What option do we have?
I don't think they're all withholding it because they want to or because they can. Some of them are trying to send a message. With the 75% failure rate of the family support plan in the province of Ontario, I think if we rectify the problem rather than treat the symptoms, we'll make some headway.
Senator Mabel DeWare: Well, somehow we have to find a system by which the court orders are addressed.
Mr. Keith Scott: Correct.
Senator Mabel DeWare: How we do that, I don't know. But that seems to be the problem.
Mr. Keith Scott: If you want to go for dinner tonight and read this—
Senator Mabel DeWare: Is that an invitation?
Mr. Keith Scott: Yes, Ma'am.
Senator Mabel DeWare: Sorry, I have a five o'clock flight to catch. But remember, you're going to leave that for us, and we'll all have the—
Mr. Keith Scott: We need some way to verify the allegation. If the allegations are being made—and three people, when I walked in at first, said “There's an allegation.” I have the same thing. I was alleged to be abusive. I have a court order document where my ex-wife admitted under oath that there was no abuse. As the lawyer said, she made the allegation in writing. Here's the affidavit. I have the documents with me.
Are any of you old enough to know Jack Stokes?
Senator Anne Cools: Are those cases on the record?
In any event, Mr. Scott, I believe the committee has agreed to take your statement as read, which means it will be on the record. If you say you have the court order, perhaps then, for the sake of the committee, you could just flag the exact page number where—
Mr. Keith Scott: I didn't make reference to my court number in here, but I could certainly have it added.
Senator Anne Cools: Okay, but you just said a second ago that your ex admitted under oath that there was no—
Mr. Keith Scott: That's correct.
Senator Anne Cools: Perhaps you could make that citation so that members could have—
Mr. Keith Scott: It's in the examination for discovery document.
Senator Anne Cools: Do you have the page number? Just give us the page number. I'm just trying to facilitate the reading of these, because I know that members like Judy Wasylycia-Leis, when she returns, will want to read the rest of it.
Mr. Keith Scott: There's the court document.
Senator Mabel DeWare: We need the date and the number.
Mr. Keith Scott: I'll get that for you rather than waste your time.
Senator Anne Cools: Okay.
Mr. Keith Scott: It says:
She alleged that she was physically abused. In the court transcript—and it cost me $2,000 to fly to Sault Ste. Marie to get a transcript produced—the question was asked, “Has your husband every struck you?” The answer was “No.” “Has he ever raised a hand to you?” “No.”
Senator Anne Cools: Those were the exact points the previous witnesses were making. Anything can be said in an affidavit. Once it comes under cross-examination, the scrutiny of the judge, the story frequently shifts. In any event, the information is before us, Mr. Scott.
Mr. Keith Scott: I don't think this is. My document is, but none of this is in there.
The Joint Chair (Mr. Roger Gallaway): It's on the record, though.
Senator Anne Cools: Once the reference is on the record, we can get it. Besides, send me a copy.
The Joint Chair (Mr. Roger Gallaway): Senator Cools, do you have another question?
Senator Anne Cools: Yes. I just wanted to say that the issues that were raised here—Mr. Scott raised the abduction and other questions. But I think Reverend Wayne Unger has raised new issues, and at some point in time governments are going to have to look again at how to support families in different ways. I know he's with the Pentecostal Assemblies, and they do a lot of work supporting families and couples and so on.
I just highlight that. Perhaps at some point in our recommendations we may look at these sorts of issues, because I can tell you that millions of dollars are being spent. Lots of the individuals in these churches who run these programs could be well assisted by a $5,000 or $10,000 grant here and there. I just put that out.
• 1355
The Joint Chair (Mr. Roger Gallaway): Reverend Unger.
Rev. Wayne Unger: Speaking of that, may I excuse myself? I have a wedding rehearsal at five o'clock and an appointment at 1.30 in Portage.
Senator Anne Cools: At least it's not a funeral.
Some hon. members: Oh, oh.
The Joint Chair (Mr. Roger Gallaway): If there are no other questions—
Mr. Brent Burns: I would like to make a statement. I feel slightly insulted. I came here, I put a lot of work in and nobody asked me a question. I would like to bring this to your attention.
The Joint Chair (Mr. Roger Gallaway): Excuse me, you come here as a witness and it's up to the members here to pose questions.
Mr. Brent Burns: All right. Thank you. I didn't think you were listening...you in particular, Mr. Gallaway.
The Joint Chair (Mr. Roger Gallaway): Excuse me, you cannot make comments like that, sir.
Mr. Brent Burns: I still live in Canada, and I can make comments like that.
The Joint Chair (Mr. Roger Gallaway): This is a proceeding of the Parliament of Canada. I was listening to you. I heard everything you said.
Mr. Brent Burns: Did you? Could you get your finger out of my face then, please, sir. Thank you.
It's back in.
The Joint Chair (Mr. Roger Gallaway): We stand adjourned for five minutes.
Mr. Brent Burns: Absolutely.
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• 1410
The Joint Chair (Senator Landon Pearson): If people don't feel too offended by the fact that we're occasionally putting a piece of bread in our mouths, we'd like to get on with the session.
This afternoon our first presentations will be from the Pyschology Association, Dr. Rosalyn Golfman, and from Parents Helping Parents, Ms. Louise Malenfant.
Senator Anne Cools: Just before we continue, I think this gentleman wants to come to the microphone very quickly to make an apology to Chairman Gallaway.
Mr. Brent Burns: I want to apologize to Roger Gallaway for being a little pretentious about my presentation and how it was delivered. I do understand it is a parliamentary committee and I'm just an ordinary person, an ordinary Canadian, and I'm quite out of my element. So I apologize for that.
The Joint Chair (Mr. Roger Gallaway): Thank you.
Senator Anne Cools: Thank you.
The Joint Chair (Senator Landon Pearson): Please go ahead.
Ms. Louise Malenfant (Parents Helping Parents): I'm Louise Malenfant of Parents Helping Parents.
Dr. Rosalyn Golfman (Individual Presentation): I'm Rosalyn Golfman and I'd like to clarify I'm not representing the Psychology Association but a group of my colleagues and social workers who do private custody evaluations.
I will read my presentation, and if I go too quickly, just slow me down. I've done this before.
I represent a group of psychologists and social workers who specialize in pcycho-social evaluations regarding custody and access to children after divorce, and we specialize in cases that frequently involve allegations of sexual abuse. Our group would like to have input into your examination of custody and access issues. We feel that our experience may be helpful in the future handling of the complex issues of custody and access disputes. It is the underlying assumption held by our group of evaluators that custody issues and allegations of sexual abuse are complex and require examination of multiple sources of information.
I'd like to present the process we use in our model for conducting evaluations. We do a comprehensive evaluation of all parties. We find that one-sided evaluations are limited and have minimal credibility. Additionally, we utilize interview data derived from interviews with the children and observations of the child with both parents. In our group, we use two evaluators on each case. Each of us is involved in separate meetings with the parents' children and extended family members as appropriate. We've just begun on a consistent basis, in the last year, to use this to evaluate, and we find it quite helpful.
The comprehensive evaluation and report preparation involves psychological testing. We utilize the MMPI, the Milton-Rorschach family apperception test, drawings, games, parent interaction, inventory, a parental stress inventory, and the Peabody verbal perception test, an IQ test. We utilize extensive collateral information, both professional and personal. Collateral sources of information involve immediate and extended family members, family friends, babysitters, teachers, counsellors, police, and professionals representing various agencies involved with families.
A comprehensive evaluation should also include home visits, which we always do. Occasionally we may observe the child at school or at the day care. In the event that our team of evaluators is not in agreement concerning an aspect of personality interpretation or child-parent interrelationships, and there are a number of other issues, the protocol we have established requires that the issues be resolved by persuasive logic, research, or further investigation and testing. And we also take a long time, usually four to six months, because we want to get a good sense of the family and therefore we don't want to do a quick evaluation.
• 1415
A scientific evaluation requires that we develop
alternate hypotheses, a neutral stance and an openness
to possibilities that might resemble the style of a
private detective. The strength of a comprehensive
evaluation is found within its format, which allows the
information that is derived from the multiple clinical
interviews to be examined against the relevant
background material and against empirical research.
The American Professional Society on the Abuse of Children since 1990 has utilized something similar. Actually, we use their comprehensive format and its prototype for all sexual abuse evaluations. So we do a very similar comprehensive evaluation.
With regard to allegations of sexual abuse, particularly in young children under the age of five, we have found a relatively small but significant number of false allegations of sexual abuse following the dissolution of a relationship. False allegations may occur in highly conflictual separating couples. It is our collective experience that parents and children may misinterpret or may have distorted or misinformed perceptions of the child's relationship to the ex-partner.
Young children are highly susceptible to false memories and inaccurate reporting when they are asked repeated questions and when they are retelling the story many times when they're asked leading questions.
Also, one parent's anxiety regarding the abuse may subtly affect the child's accurate reporting abilities. That's the most significant point, really. It's quite subtle.
Parents may observe behaviours in their children that could indicate sexual abuse, but frequently these same behaviours could also be explained by the aspects of a conflictual relationship or the trauma of separation. Often these resemble post-traumatic stress disorder.
Child behaviours of concern include resistance to visitation, nightmares before and after visits, masturbation, learning problems that may be manifested in school, physical aggression, emotional ability and behaviours that could be a consequence of the stress related to the loss of the daily contact with a non-custodial parent. These are often misunderstood as the child having been sexually abused and they could also be sexual abuse symptoms as well.
False allegations of sexual abuse may be the result of a misunderstanding or misinterpretation of events forwarded by the accuser. It is our experience that one parent may correctly perceive the child may have been sexually violated, but may inadvertently leave the child to disclosure of the non-custodial parent as opposed to possibly the babysitter, a family friend or significant other or viewing videotapes for fear that he or she may be seen as incapable of protecting the child.
It is noteworthy that during the separation one parent may have a disturbed perception of the child's relationship to the ex-partner. For example, when the child returns from a visit happy or is unwilling to let that parent leave, the custodial parent may conclude that the child has been brainwashed and then may thus feel threatened. Also, if the ex-partner had a disturbing effect on that spouse, then that parent may assume erroneously that it may be the same for the child, that the child may feel exactly the same as the parent. Also, unusual aligning reactions could be precipitated by fear of losing the mother or father if loyalty or pleasure with the other parent is shown.
The Joint Chair (Senator Landon Pearson): You've gone over your time, but I'm sure the committee will permit you to continue, because it's very interesting.
Dr. Rosalyn Golfman: Have I gone over my five minutes?
The Joint Chair (Senator Landon Pearson): Yes, but never mind. Just go ahead. The nature of your testimony is pretty sensational.
Dr. Rosalyn Golfman: Okay. I've just prepared some recommendations as a result of what I'm saying.
The Joint Chair (Senator Landon Pearson): Good.
Dr. Rosalyn Golfman: We think there should be quality control in the evaluations. I think there should be utilization of a comprehensive evaluation that does psychological testing and that does evaluate all parties.
We'd also like to see police policy changes regarding the releases of pertinent information when police have interviewed a child. At this time, it seems to be unpredictable access. Sometimes they'll let us view it and sometimes they won't.
• 1420
The same goes for Child and Family Services files.
Sometimes they'll let us review how they interviewed
the child and sometimes they won't, and we don't know
what it depends on. Often we have to get a subpoena
from the court, which is a costly, lengthy process.
So we'd also like to see some changes in that. If we're doing a comprehensive evaluation, we should be able to review what the child has actually said.
We feel that at Child and Family Services, when they're conducting the evaluation, all parties need to be involved when assessing child sexual abuse. The alleged perpetrator should be interviewed. Right now what is happening is that they say the police will interview the perpetrator, but if the police find insignificant evidence to make a charge, Child and Family Services is still saying that the child has been sexually abused and then puts the child in some kind of abuse therapy.
We find this confusing, because then we're doing an evaluation where the person hasn't been charged but CFS is still holding onto the claim that the child has been abused. That issue needs to be looked at.
This is a little bit off topic, but we also think there should be a special master appointed to manage these cases. When we make recommendations they're not followed through, and we don't know who's managing the case or what happens with our recommendations. Then they end up going back to court, and again, it's a lengthy, costly process.
In the States they have what they call “special managers”, who have quasi-judicial authority. They can manage a lot of the minor issues—when the child visits, if the child doesn't want to visit—and they have some kind of power to enforce. If there's an access issue, such as when a child has been alienated from a parent, they should have some kind of authority.
The Joint Chair (Senator Landon Pearson): Thank you very much. I'm sure there'll be lots of questions later.
Ms. Malenfant.
Ms. Louise Malenfant: Madam Chairperson, I wonder if you can let me know when I've had enough time and perhaps leave me a few moments for some recommendations at the end.
The Joint Chair (Senator Landon Pearson): Sure.
Ms. Louise Malenfant: Okay.
For the past four years I have operated an advocacy program in the province of Manitoba that examines and addresses the issues of family law in this province.
I think we have come a tremendous way in Manitoba. Two and a half years ago, it was acknowledged that 25% of the allegations that Child and Family Services were investigating in this province arose during divorce proceedings. That's something like 700 cases in the city of Winnipeg alone.
We had a validation rate for child sexual abuse that was at 51% of all allegations made. If you compare this with, for example, the American national rate, you're looking at the fact that 14% of all allegations include sexual abuse, and of those, only 40% are substantiated.
So we had a very significant problem in Manitoba of the overvalidation of child sexual abuse allegations and an unwillingness to recognize the problem of allegations that arise in the context of divorce.
I am very pleased to say that Manitoba has seriously evolved since that time. In the past year we have not found one CFS-substantiated allegation in divorce, although there continues to be false allegations in the divorce process caused by lawyers who are placing allegations and affidavit materials without substantiation from either CFS or the police. We have had a fast-falling apprehension rate in Manitoba, and as I said, a very fast-falling rate of CFS-substantiated allegations in divorce. We're very pleased by that.
The civil justice review task force report, which was commissioned by then Minister of Justice Rosemary Vodrey, identified the problem of allegations in divorce. The report was released in 1996. We believe it has brought these problems to the forefront in Manitoba, and there has been some significant change since that time.
What I'd like to address or bring forward to the committee is one of the biggest fears I think people have when they talk about sexual abuse allegations in divorce proceedings: What if the allegation is true? One of the things that has occurred in our research is that there is a distinctive profile to a true allegation and a distinctive profile to a false allegation. I'd like to very quickly go over the profile of a false allegation and why it is so distinctive.
In the first place, a disclosure involved in a false allegation will often have very few details about any sexual behaviour. A child may be able to say very briefly, “Daddy touched my private parts”, or “Someone touched me”, but they really don't have any contextual details of where this happened, when this happened, how many times it happened and what exactly happened in terms of the sexual behaviour of the alleged perpetrator. In a true allegation, children at very young ages are often able to provide much of these kinds of details, which gives a ring of truth to what they're saying.
• 1425
A false allegation of abuse similarly often includes
incidents of violence where children say they had gross
invasive violent experiences with knives, pliers, and
satanic ritual elements, and there's no physical
evidence to substantiate what amounts to sexual abuse
incidents that could have almost killed a child if they
were actually true.
We believe there is a psychosis that is triggered with the false allegation. Very often the parent has a recognizable personality disorder that doesn't come out until a case is assessed. Very often, in Manitoba at least, these allegations arise out of the women's shelters. We've had reports now from a number of women who entered women's shelters.
Here in Manitoba, two of the women's shelters have a play room where children are separated from the mothers. This room is viewed as a place where mothers get a break from child care while they're in the shelter. We believe this is where children are being questioned, using leading questioning methods, by the women's shelter staff. Very often it's a very simplistic disclosure that arises from a women's shelter, incongruent with these very violent, aggressive, and deeply disturbed incidents that have no evidence to substantiate them.
We believe it is very important that we begin to examine the roles the women's shelters have taken on in our society. Certainly the women who enter women's shelters are not investigated. There is no investigation conducted, and yet every woman is assumed to be a viable victim of either domestic violence or child abuse.
So those are some of the problems. I think you can see I'm going through a prepared report here, and I won't be able to get through it in my allotted time. I wonder if the committee would take this report as read so the observations of this organization could be available to the committee.
The Joint Chair (Senator Landon Pearson): Agreed.
Submission by Parents Helping Parents:
Parents Helping Parents is a Manitoba organization which was founded in November of 1994 to assist families experiencing problems in family law. Established by sociologist Louise Malenfant, the most significant problem identified was the initiation of child abuse allegations during divorce proceedings. Through extensive research in the area of child abuse investigation procedures, it became apparent that a distinctive profile emerges which distinguishes a true from a false allegation of child abuse.
The problem of false allegations during divorce proceedings was extensive in Manitoba, as it was acknowledged by the CEO of the Child and Family Services in Manitoba that 25% of all investigations arose during divorce proceedings1 . In June of 1996, executive at Winnipeg CFS also admitted that only 15% of allegations made in divorce cases were likely true2.
Parents Helping Parents has examined approximately 350 case files since its inception, and we have accepted advocacy responsibility for 64 cases. Of these 64 cases, 49 families have been reunited with the children following exoneration of a child abuse allegation. Parents Helping Parents has brought the results of its research to public attention through the media, through extensive communications with the government of the day, and ongoing involvement with the Child and Family Service and Health Care systems which investigate child abuse allegations.
Since 1994, Premier Gary Filmon and the Ministers of the Manitoba Government have initiated a revolution which has almost eliminated false allegations of child abuse during divorce proceedings. We have called this phenomenon the Manitoba Miracle. In 1996, then Minister of Justice Rosemary Vodrey launched a wide reaching investigation into the family law system, and created a watershed event which exposed the practice of false allegations in divorce proceedings. Chairman David Newman reported, “The Committee heard horror stories about the traumatic impact on the accused person, on the immediate family andchildren affected by malicious false allegations. . .”3. The Civil Justice Review recommended that “when false accusations are discovered, strong and effective sanctions should be imposed (pp 27)”.
Since the release if the Manitoba Civil Justice Review Task Force Report, dramatic changes have occurred throughout the social systems involved in family law issues. In two years, Family Minister Bonnie Mitchelson swept clean all executive offices of the Child and Family Services. In that time period we saw a new Deputy Minister, Assistant Deputy Minister, Director and Winnipeg CEO take office in the child protection system. In the Health Care services which investigate child abuse, we saw a new Director take over at the Child Protection Centre, an organization which provides examinations for all sexual abuse allegations originating in Winnipeg and the surrounding area. At the Manitoba Adolescent Treatment Centre, a multi purpose investigative centre which was regularly implicated in many false allegations in divorce, the new Director takes over in June of 1998.
Parents Helping Parents is very proud to report to the rest of Canada that since March of 1997, we have not found one newly initiated false allegation in divorce substantiated by our child protection services. False allegations continue to enter divorce proceedings by way of lawyers who place allegations of criminal behaviour in affidavit materials, without substantiation from child welfare or police authorities, and without consequence to the accusing parent or lawyer involved. These type of false allegations are less harmful as they are more easily exposed, but in terms of length of process and financial terms, they still require up to two years and approximately $20,000.00 to reach a conclusion. In that time, the accusing parent and her lawyer have established a significant status quo of custody which is very rarely changed at trial. This is why nine out of ten custody decisions never reach a trial proceeding in the family courts of Canada.
Lawyers have now usurped CFS social workers as the primary cause of false allegations in divorce. The new investigation procedures which have been initiated by the child protection and health care systems have reduced the incidence of false allegations in divorce by a stunning margin. For that reason, we would like to provide this Committee with more information about the Manitoba experience which exposed the causes of false allegations, and the methods used to reduce the incidence of false allegations in divorce proceedings.
CAUSE # 1—“VALIDATION” METHODS OF INVESTIGATION
An extensive review of the scientific literature of child sexual abuse investigation has been conducted by Parents Helping Parents.*uc4*uf In 1994, the investigations of sexual abuse conducted by Manitoba CFS had not evolved in methodology since the early 1980's when the simplistic and discredited “children never lie” school of thought had reached its ascendancy.
This theory was based on the legitimate notion that a child who could describe the experience of a sexual act with advanced knowledge of sexuality must have experienced it in order to be able to describe it accurately. Unfortunately, this theory has been widely applied to all disclosures made by children, even those which do not demonstrate any sexual knowledge held by the child.
In the current literature on this subject, this simplistic tenet has been widely discredited. It is now recognized that an invasive questioning process or a relevant adult agenda such as divorce, can in fact influence the disclosure of a child. This has been proven time and again by the wild disclosures that have been made by children in the famous cases such as the McMartin Preschool case, or the recent Canadian case in Martensville. Children, particularly young children, can be taught about the Easter Bunny, Santa Claus and the Tooth Fairy. They can also be taught by disturbed adults to produce a facile disclosure of sexual abuse which lacks detail in order to advance a selfish cause. Effective investigation can distinguish a true from a false allegation profile, when child protection social workers are properly trained in the investigation of sexual abuse.
The “children never lie” school can be broadly described as one which “validates” an allegation instead of conducting an investigation to determine whether it is true or false. Since all validators approach any disclosure made by a child as “true", they approach investigations with this preconceived notion which curtails any reasonable investigation. This theory has become an ideology which governs the conduct of sex abuse investigations by child protection social workers and health care workers.
Practitioners who subscribe to the “children never lie” school are also likely to subscribe to a belief in the “child sexual abuse accommodation syndrome". This theory supports the concept that a child who retracts an allegation is suffering from the impact of the allegation on family life, and retracts the abuse to return the family to its original form6. While there is little doubt that this type of retraction does occur, it is just as likely that many retractions are true. Some children report that they were questioned extensively by social workers or psychologists who would not let up until the child told them what they wanted to hear. Such allegations are then regretted by the child who retracts the allegation when the pressure is taken off.
Practitioners who subscribe to the child sexual abuse accommodation syndrome are likely to refuse to believe a child in all instances when a retraction is made. These same people say that children never lie when making an allegation, yet would have us believe that children always lie when they make a retraction. It is this kind of nonsensical logic which is rampant in the social work and psychology communities. It is the result of poor training, excessive validation tendencies, and fears that a true offender might get away at the expense of recognizing the trauma of a false allegation. Better one hundred innocent men be found guilty than one guilty man go free.
As a result of this ignorance, Manitoba had what may have been the highest rate of validation for sexual abuse in the Western world. The Child Abuse registry statistics for 1994 showed that 51% of the cases placed on the registry involved sexual abuse7. Compare this to the U.S. national rate for 1990 which showed that sexual abuse allegations comprised 14% of reported cases and of these, only 40% were substantiated8.
The more effective and modern school of thought taking ascendency in Manitoba approaches sexual abuse investigations with the basic assumption that an allegation may be either true or false, and all the variables which can come into play are fully analyzed to determine degree of influence in any particular case. This is known as the assessment approach to a child sexual abuse investigation.
This school for example recognizes that in highly contentious divorce cases, an allegation must be closely examined for signs that a child is being influenced for the purpose of depriving one of the parents, usually the father, of access to children after divorce. Sexual Allegations In Divorce (SAID Syndrome) was very prevalent in Manitoba, because CFS did not recognize the influence that a contentious divorce played in a sexual abuse allegation. An allegation of sexual abuse usually results in total deprivation of access to the accused and all of his paternal family members.
Like the layperson, CFS social workers were terrified that a sexual abuse victim would not be protected and wanted to “err on the side of caution” to prevent access by an accused person to the subject child. CFS rushed to name a perpetrator far too early in the investigative process, often ensuring that subsequent evidence in the case was discounted in the effort to maintain the validation. The true horror of substandard investigations is that when CFS overcommits too soon to the designation of a perpetrator, they may be missing or ignoring evidence pointing to a real pedophile who continues to have access to the child.
IMPACT ON THE CHILD
Unfortunately, there is no such thing as caution when dealing with a child sexual abuse allegation as a child is always in need of protection whether the abuse is true or false. A child who is victimized by a false allegation is in the care of a disturbed adult placing their own needs before those of the child. As well, the child will be permanently deprived of important relationships with the accused, and often, with the entire family system of the accused. Children of a false allegation are often submitted to long term psychological “treatment” which in itself can cause personality disorders and social dysfunction in the child. A child submitted to unnecessary treatment may begin to exhibit the long term sequelae of sexual abuse, including sexualized play, nightmares and sexual phobias. PHP believes that many of these children will grow up to make false allegations against others.
Jan Paradise MD et al found that cases where a custody/access dispute existed were more likely to occur when the child in question was less than 4 years of age. They suggest that a child's young age may reflect the “greater likelihood that a child will become a focus of contention if he or she is younger, and therefore perhaps more easily influenced or less able to provide a detailed and consistent history9.
Quoted in the Alberta Report, Dr. Ralph Underwager has said that the damage to children from a false abuse claim is traumatic to a child and adds: “It is extremely violent to treat children who haven't been abused as if they have been. The consequence is an unresolved conflict between the child's own perception of reality with the distorted perception of revered authority figures, like parents [and social workers]10.
A study conducted at Oxford University's Westminster College, which compares the effect on children to that “of being raised in a war zone.” “Children become excessively anxious, depressed and fearful, says the study, and Underwager concurs, remarking that [the children] do not know where the next attack is going to come from.11” Underwager says that it is also very difficult to distinguish between the symptoms of a genuinely abused child and a child who has been traumatized by therapy.
Children submitted to false treatment learn about sex from the very system that is supposed to be protecting them. PHP considers this to be a virulent form of system sexual abuse that must end. If a reasonable knowledge of the science of sexual abuse investigation were acquired by CFS, then it would become readily apparent that the profile of a false allegation exists as does a profile for a true allegation.
For example, in a false allegation a child's disclosure will be simple and lack detail. Often, the disclosure will include the commission of a violent act with knives or pliers, reflecting the child's lack of knowledge about sexual abuse. A false allegation is more likely to arise during a divorce, and often involves contact with women's shelters, health care workers and CFS social workers.
The accusing mother in a divorce allegation will often refuse to accept that her child has not been abused, and seems unaware of the trauma brought to the child by the investigative process itself. Such mother's often will shop for medical and psychology practitioners who are willing to substantiate a finding of sexual abuse. These mothers are often hypervigilant about sexual abuse issues. In addition, mothers who promote a false allegation often exhibit specific personality disorders on examination. In Manitoba, false allegations of sexual abuse are often accompanied by allegations of rape and domestic violence as well, showing a propensity to make allegations without limitation.
The child welfare system of Manitoba has slowly begun to disavow the belief that it is erring on the side of caution when it validates a false allegation. The sad truth is that whether an allegation is true or false, a child is in need of protection when an allegation arises, whether it be from a real perpetrator or a disturbed parent who is robbing them of their innocence to promote a self serving agenda.
It should be noted that several cases explored by PHP have been clinically assessed, and it has been subsequently discovered that the accusing mothers harboured significant psychological problems or personality disorders. One mother who had accused her husband during divorce warned her ex-husband that if he continued to try to see his children then she would kill herself and the children rather than allow him to see them. This troubled Manitoba woman eventually took herself to a local park, doused herself with gasoline and lit herself on fire causing her own death. Thankfully, she did not make good her threat of taking the children with her.
RECOMMENDATIONS ON SEXUAL ABUSE INVESTIGATIONS
CAUSE #2—THE IMPORTANCE OF EXPERTS
Accurate diagnosis of sexual abuse is based on many factors, including the integrity and the prejudicial biases of the experts involved12. Schuman has written, “in some quarters there is such a degree of sensitivity or outrage about possible child abuse that a presumtion exists that such abuse has occurred whenever it is alleged.13” The assumption that all sexual allegations must be the result of actual abuse was certainly the case for Manitoba's Child and Family Service. Data obtained in the province in March of 1994 made the claim that fully 51% of the children in foster care had been sexually abused14. Compare this figure to the national U.S. rate which as of 1990 constituted 14% of all reported cases, and 60% of those were determined to be “unfounded”15. This suggests that Manitoba CFS had produced the largest sexual abuse rate in the western hemisphere.
The phenomenon of social agencies gradually developing “favourites” are what Benedek and Schetky call a “new cottage industry”
In their study of child protective services, Jones and McGraw observed that many practitioners appeared to have had their minds made up well before sufficient information had been obtained17. Gardner suggests that the substantiation of a sexual abuse examination must take into account any “known biases of the assessor”, particularly in custody/access disputes, as well as the assesor's experience in court testimony and previous similar cases18.
In Manitoba, the most important experts in a sexual abuse investigation work at the multi-disciplinary Child Protection Centre, which examines every child who is the focus of an allegation. When we compare the extent of the validation of sexual abuse rates once prevalent at the CPC as compared to other jurisdictions, a gross difference was notable showing that the CPC rarely sees a child which has not been sexually abused. The over-validation problem at the CPC goes back as far as ten years. For example, the 1986 statistics for the Child Protection Centre showed that 360 cases of suspected child physical abuse were presented to the Centre that year. Of these 360, the CPC determined that 339 of the children had been sexually abused19. The CPC had a substantiation rate of 94% that year for those children not even presenting for sexual abuse. Compare this to the U.S. national rate of 1990 where a 40% substantiation rate was obtained for sexual abuse examinations, and only 14% of reported cases involved sexual abuse20.
In the past year, CFS and the health care system have begun to implement text book investigation procedures for allegations in divorce. Unfortunately, that does not stop disturbed parents from encroaching upon the mental and emotional stability of their children, nor does it stop unscrupulous lawyers, psychologists and women's shelter staff from pursuing the implementation of this perverse strategy of ensuring custody for one parent, and depriving the other parent of access.
CASE STUDIES
Parents Helping Parents now provides a brief summary of a selection of cases we have investigated in the past four years.
What all of these cases demonstrate in graphic detail is that parents who perpetrate false allegations on their children usually have underlying psychological problems. They demonstrate the cost to society, to the justice system, the medical system and the child welfare system, who all expend resources for years in support of what are often parents who require long term psychiatric care. Even when such cases are concluded, the children usually remain in the care of these mothers. That is because Manitoba refuses, in the face of all evidence, to recognize that children are in need of protection when they are submitted to a false allegation of abuse.
CAUSE #3—DIVORCE AND WOMEN'S SHELTERS
Over the past five years, since the institution of the Zero Tolerance policy on domestic violence, it is now possible for men to be accused of either domestic violence or child abuse without corroborating evidence. Justice for men is now inverted, in that they are guilty until they find a way to prove themselves innocent.
It is deeply troubling when we consider what effect the anti-male policies of our current generation will have on the young boys being raised today. We believe it signals the death of fatherhood and masculinity taking place in our generation, and every man, woman and child is allowing it to happen. Parents Helping Parents believes that this is having a traumatic impact on the boys raised today, to the extent that it has become a societal form of child abuse.
The manner in which the laws of divorce have considered only the female gender over the past years has greatly upset the delicate balance of power in the divorce court. Today, an allegation of domestic violence during the onset of a divorce case has the effect of placing a man on the defensive from the beginning of negotiations. It is now possible for women to make claims of domestic violence without any corroboration other then their own testimony. The Zero Tolerance Policy is naively based on the presumption that women are not capable of subverting the intentions of the law, nor are they capable of lying or manipulation to further their own ends in a divorce dispute. Anyone who has known a woman on this planet also knows how ingenuous this stereotype is.
The absence of the need for corroborating evidence has seen a dramatic rise in dismissed charges which have reached the 50% mark of all domestic violence charges made to the courts of Manitoba. In spite of dismissals, allegations of domestic violence will often plague the affidavits in a divorce process. It is not uncommon to see cases where an accused possesses no history of violence and yet is labelled a domestic abuser at the time of divorce. Parents Helping Parents suggests that real victims of violence will usually have medical or police reports to corroborate their claims, and we believe that this law is being abused by women to empower themselves against men by deception. The potential for abuse of the Zero Tolerance Law is very great.
One Manitoba case demonstrates the gender bias of our family court system. In January of 1995, twenty-one year old Nathan Manton was shot in the head by his ex wife of four months21. The couple were involved in a custody battle for their two year old child at the time of the shooting. The mother was also facing charges from a prior incident when she was charged with uttering threats, possession of a weapon and assault with a knife. She admitted that she threatened the father with a knife while he was holding the child in his arms. In spite of these charges, a Manitoba Judge awarded interim custody to the mother. Two weeks after this decision, Nathan Manton was killed with a shot to the head which his wife admitted administering in the young man's own apartment. Her defense was that he threatened to kill her if she did not kill him. No charges were ever laid in the death of Nathan Manton and no trial ever took place22. Crown prosecutors accepted the mother's defense. It is unlikely that any man would ever get away with such an alibi if he had shot his ex-wife in her own home.
THE PARENT ALIENATION SYNDROME
The feminist orientation of women's shelters and other support services for women have permeated the justice system to establish an ideology which suggests that women are incapable of violence or deceit, and men are all potential violent, sexual predators. This has been demonstrated by the dishonest use of allegations of domestic violence and child abuse, the most virulent form of what has been termed the parent alienation syndrome. The syndrome refers to the divorce phenomenon of the custodial parent's use of extreme feelings of anger, hate and fear to alienate children of divorce from the non-custodial parent. The method used to initiate the syndrome involves a perpetual maintenance of an atmosphere created by these intense feelings in the home of the custodial parent against the non-custodial parent.
Children of divorce can be drawn into the parent alienation syndrome by being terrified into an alignment with the more powerful custodial parent. These children are compelled to reject visitation with the non-custodial parent or face the wrath and hostilities being directed toward them until they do reject visitation. The parent alienation syndrome is characterized by the intensity of the feelings engendered, and the extremity of total alienation from the non-custodial parent. The fear alienation is often the precursor to a virulent child sexual abuse allegation and is the most dangerous of the three to the child's relationship to the non-custodial parent.
The harm caused to children by this virulent emotional abuse should not be under-estimated. One father has noted that although the courts are starting to recognize that custodial parents are often the cause of parent alienation, they are reluctant to change the custody of the children subjected to it for fear that the removal from the mother will be “traumatic”. This father suggests that this is like saying, “the children are in a prisoner of war camp, but it would traumatize them to take them out of it, so we will just leave them there.”
Parents Helping Parents believes that one of the most significant causes of the parent alienation syndrome is the operation of Manitoba's women's shelters. Women's shelters are ostensibly established to care for abused women, but we believe they have now become one-stop-divorce-shops for women. We believe that these shelters are contributing in a significant way to the initiation of the parent alienation syndrome in the divorce process.
The issue of domestic violence is a sacred cow in Manitoba, and it has been sometime since anyone took a close look at their operation in this province. We suggest that they do not strictly serve the abused women of this province, but in order to justify their current funding levels, they have become transition houses for any woman contemplating separation from a male partner. While in itself this would not be objectionable, Parents Helping Parents has become alarmed at the number of false allegations of sexual abuse which originate from the shelters.
Women's shelter staff will often distribute significantly alienating literature which may initiate the parent alienation syndrome when women enter into a shelter in the early stages of a marital separation. The parent alienation syndrome is extremely harmful to the emotional and psychological wellbeing of the children of divorce, and children are certainly harmed by the chronic deprivation of access often engendered when the parent alienation syndrome is initiated. Yet the blaming literature being distributed at the shelters do not acknowledge the possibility of a woman's responsibility for behaviour contributing to the ending of a relationship. We believe that many perfectly normal women are being drawn into the establishment of the parent alienation syndrome by the philosophy espoused at the shelters.
It is possible for women to present themselves at women's shelters in this province without any need to show that they are indeed abuse victims. Often, a stay in a women's shelter is used as evidence that a woman is the victim of abuse. Whereas only medical and police reports could once verify a domestic violence allegation, the women's shelters now have taken on that function for women.
Several women have reported that they went to the shelter as a way of transitioning out of their marital home, only to be asked repeatedly and on a daily basis whether they had been hit by their husbands, accompanied by intense persuasion to level criminal charges or place restraining orders on their husbands or former partners. Several women have reported that they were told they would be priorized on housing lists if they filed charges or placed restraining orders on their former partners.
One PHP case involves an aboriginal woman with six children who made the mistake of entering a women's shelter when she was considering leaving her husband. Her partner had no history of violence, was 53 years old, and had been disabled by liver cancer and the resultant colostomy operation. She was considering leaving the home as a significant teen conflict problem existed with her two eldest daughters from a former partner. She brought the two eldest girls and her infant son to the shelter, leaving the other three children in the care of their father. CFS was notified and subsequently apprehended the three children in the father's care and brought them to the shelter.
The woman described to Parents Helping Parents how she was asked on a daily basis whether her ex partner had ever hit her, to which she always replied “no”. She refused to press criminal charges or lay a restraining order on her husband. After several weeks of staying at the shelter with six children, the woman was advised that she would receive housing faster if she placed a restraining order on her husband. She eventually did lay a restraining order to obtain housing.
When the third week had passed in the shelter, the woman decided to reunite with her husband. CFS immediately apprehended all six children and have refused to return them until her husband leaves the marital home. Though the woman repeatedly denies that she is a victim of domestic violence, CFS has now held the children for three months. The 6 children reside in 5 different foster homes, and several have been moved three times since apprehension. One of the children has attempted suicide by trying to hang herself. The agency has thus far refused to return the children to the home in spite of the absence of evidence and no criminal charges of domestic violence.
Parents Helping Parents has examined numerous cases of sexual abuse that are originating following a stay in a women's shelter, often arising during the first stage of a marital separation. There are reports that children are being taken into private playrooms without their parents present to be questioned about sexual abuse. Women's shelter employees have no training in interview methods for sexual abuse, and we have enough problems with the poor training of CFS social workers. Repeated questioning of young children using sexual themes can produce disclosures about sexual abuse.
A dramatic illustration of this problem is provided by the following case study. Mrs. B took herself and her daughter to a women's shelter in preparation for a marital separation. Mrs. B maintains that there was no violence in the marriage, but that she required assistance to find her own home as the family recently moved here from Alberta. During the three week stay in the shelter, their five year old daughter was taken to a downstairs playroom by shelter staff. When the mother came to check on her daughter, she was advised that the child “was more comfortable” without her mother present.
In the third week, the child made disclosures of sexual abuse as allegedly perpetrated by her father. CFS social workers were called in to the case. The mother and Parents Helping Parents did meet with agency staff and successfully negotiated a plan of assessment. The assessment found that the child had not been abused, and was more traumatized by the agency process itself. The child was heard to make disparaging remarks about “CFS”, and exhibited a lack of trust to unknown adults who tried to question her. She was also found to be very anxious to see her father return to her home. The father was very co-operative and found to have no paedophiliac tendencies. This father was cleared of all allegations and returned to the home approximately three months after the stay in the women's shelter.
It should be noted by Manitobans that there are no standards of entry into a women's shelter for abuse, and these centres seem to be attracting some women who are using the shelter to corroborate allegations or initiate allegations. The following case study demonstrates the problem.
In 1995, Mr. A's commonlaw partner of three years entered into a women's shelter. Shortly afterwards, the 3 1/2 year old daughter of Mr. A disclosed that someone had rubbed cream on her stomach and touched her at the women's shelter. Staff at the women's shelter declared that the only time the child was alone was when she was in the playroom with shelter staff, a room that is off limits to mothers.
Two weeks after Mr. A. reported his daughter's disclosures, the father found himself accused of sexually abusing his child. The case was assessed and Mr. A. was exonerated. He also submitted to two polygraph examinations administered privately and by the police department, which also exonerated him. Though there are now no experts or child welfare authorities who support this allegation, the father has had to submit to supervised access with his daughter at a cost of $12,000.00 since the allegation began. The case of Antonowich v. Thom will be brought to trial for a custody determination in May of 1998.
We have now heard a number of stories from mothers who have said that they were not allowed to enter the playroom with their children, as this was a time “to give mothers a break”. We suspect that this is when shelter staff implement a leading questioning procedure with children which can result in a false allegation of child abuse. These allegations are marked by a simple disclosure, such as “Daddy touched my private parts”, a repetitive phrase in allegations which arise in shelters. The children involved are often between the ages of 3 to 5, and the disclosures often evolve into depictions of violent and invasive abuse that can not be confirmed by physical evidence.
It has been also noted by Parents Helping Parents that a common women's shelter drawing game played by children is resulting in sexual abuse allegations. The game draws two lines on a regular sheet of paper creating four drawing squares. In the squares, the child draws while an adult writes the alleged comment made by the child. It is known to us as the “Mad, glad, happy, sad game” because each of the boxes include one of these themes. On four occasions, Parents Helping Parents has seen these game sheets with the adult writing on the sad box noting, “I am sad when someone touches my private parts.” Parents Helping Parents is alarmed at the leading nature of this game, and concerned regarding the growing evidence to suggest that women's shelters are now presuming to take on the role of interviewers far sexual abuse.
RECOMMENDATIONS ON WOMEN'S SHELTERS
CAUSE #4—FEMINISM'S INFLUENCE ON CUSTODY AND ACCESS LAW
In most Canadian jurisdictions, access and custody have become burning issues as fathers are reacting to a court system which always gives mothers custody, and makes no effort to enforce access orders. This Committee has heard from many witnesses who have tried to suggest that there is no problem, since only one out of ten cases ever are decided at trial in the divorce courts. Local feminist Penni Mitchell recently asserted in her column about the Senate-Commons Committee the absence of trials indicated “a harmonious state of affairs.” She further argued:
If our criminal system demonstrated a 90% conviction rate with only 1 in 10 cases going to trial, we would view that as a significant measure of injustice. We would argue that the absence of trials in the family courts is not an accurate measure of conflict, and we should be looking at the length of time matters are before the courts. The Manitoba Civil Justice Review noted that the average length of time a family matter was before the courts was 2 1/2 years, with cases before the courts as long as 10 years. It is a fact that after a two year status quo of custody, a father's chances of changing custody are almost nil.
It is disconcerting to note that the successful movement to eliminate gender stereotypes is being drawn backwards, by feminist thinkers who would like to continue the drive for equality in the public sphere, while maintaining a special preference for women in the private sphere of family law. Yet the ideology of motherhood has excluded men from the family, and we will suggest that this attitude fails to recognize the many changes that have taken place in the value system of men as a group. The entire discussion about gender seems exclusively pre-occupied with the role of women, and fails to recognize that men are changing right along side women, and discovering the human lotion of caring, personal interaction, and the joys of fatherhood and family life.
The broad generalizations about the personalities and behavioral traits of men and women hold up rather poorly when individual adults are studied24. As well, women have no special attributes that so especially suit them for child rearing that they merit a preference in custody disputes. Instead of turning the clock backwards when we glorify women and demonize men, we need to recognize the serious harm caused to children by the standard deprivation of fathers taking place following divorce. We need to value parenthood in the developing lives of our children, instead of choosing sides and creating policies that further entrench the gender war taking place in family law.
RECOMMENDATIONS:
On behalf of the families of Parents Helping Parents, we would like to thank the Committee on Custody and Access for providing us with the opportunity to make a contribution to your important work.
_________________________
1, Bray, Allison (September 3, 1995) “Abuse: Too many cry wolf”. Winnipeg Free Press. Al, A3.
2, Johnson, Glen (June 23, 1996) Hundreds Tagged as Kid Molesters: 560 men falsely accused of child abuse. Winnipeg Sun. pp 1-3.
3, David (Chair) (September 1996) Manitoba Civil Justice Review Task Force Report. Presented to The Honourable Rosemary Vodrey, Minister of Justice.
4, Malenfant, Louise (1995) “B.T. v. Dr. Jekyll”. psyeudonymed version of complaint made to the Manitoba College of Physicians and Surgeons undertaking a full literature review on medical evidence for sexual abuse investigations. unpublished.
5, See also Malenfant, Louise (1995) “The Validation Funnel”. pseudonymed case study of a sexual allegation in divorce which undertook to provide a full literature review of the psychology evidence of a sexual abuse investigation. Three accused paternal family members in the case were eventually cleared of all wrongdoing.
6, Summit, Roland MD (1983) The child sexual abuse accommodation syndrome. Child Abuse and Neglect. 7. pp 177-193.
7, See Parker, Roy (1994)
8, Besharov, D. (1990) Gaining control over child abuse reports. Public Welfare. 48.2. pp 3480.
9, IBID, pp 839.
10, McGovern, Celeste (1994) Alberta Report. October 3 issue. pp 44.
11, Prosser, Jon (1995) An ethnographic case study approach to studying the process of child abuse investigation in the United Kingdom. Issues in child Abuse Accusations. Vol 7: No. 3. pp 146-163.
12, Gardner, R. (1991) Sex Abuse Hysteria: Salem Witch Trials Revisited. New Jersey: Creative Therapeutics. pp 119.
13, Schuman, D.C.(1984) False allegations of physical and sexual abuse. Paper presented at the Annual Conference of the American Academy of Psychiatry and the Law. Nassau, Bahamas.
14, Parker, Roy (1994) Unpublished data. Visiting professor at the University of Manitoba.
15, Besharov, D. (1990) Gaining control over child abuse reports. Public Welfare. 48:2. pp 34-80.
16, Benedek and Schetky. In Robin, Michael (ed) (1991) Assessing Child Maltreatment Reports: The Problem of False Allegations. Haworth Press: New York. pp 95.
17, Jones, G & J. McGraw (1987) Reliable and fictitious accounts of sexual abuse to children. Journal of Interpersonal Violence. 2. pp 27-45.
18, Cole, pp 7.1.04.
19, Morris, Maggie MD (1988) Sexual abuse of the female child. contemporary Ob/Gyn. 37.
20, Besharov, D (1990) Gaining control over child abuse reports. Public Welfare. 48:2. pp 34-80.
21, Owen, Bruce (January 5, 1996) E.K. Man Shot Dead: Wife Arrested. Winnipeg Free Press. pp Al-A2.
22, Kuxhaus, David (September 12, 1996) Wife's Murder Charge Stayed. Winnipeg Free Press. pp Al-A2.
23, Mitchell, Penni (April 28, 1998) Divorce Wars Heating Up. Winnipeg Free Press. pp A12.
24, Chambers, M (1984) Rethinking the substantive rules for custody disputes in divorce. 83. Michigan Law Review. pp 477-520.
25, See Scott v. Scott (Jan. 29 1990) Ontario Supreme Court. Fitzgerald L.J.S.C. presiding; W.A.H. V. S.M.L. (June 26, 1997) Nova Scotia Family Court. Legere Fam. Ct. J. presiding; Lindsay v. Lindsay (Dec. 29, 1995) Ontario Court of Justice. Kileen J. presiding; P (TMA) v. P(FA) (May 24, 1995) Alberta Queens Bench. Trussler J presiding.
Ms. Louise Malenfant: Thank you.
The Joint Chair (Senator Landon Pearson): Would you go to your recommendations, please?
Ms. Louise Malenfant: One of the things that needs to be kept in mind is how these false allegations got started in the first place, because they haven't always been around. One of the things that needs to be recognized, and certainly is recognized here in Manitoba, is there was a validation ideology that imbued the child welfare services and health care services that investigated child abuse allegations. These began with an assumption that every allegation that is made is true, that children never lie and you cannot influence a child to lie about sexual abuse. This has evolved, particularly in Manitoba, to assessment procedures such as those provided by Dr. Golfman, who's highly regarded by our organization, as providing systematic assessment procedures that clearly get to the bottom of a true versus a false allegation.
I'd like to make some recommendations to the committee. In the first place, we firmly believe there need to be criminal and civil sanctions to people who make false allegations of abuse during divorce proceedings, or otherwise. We've provided as an appendix a three-page review of a law that was discussed in California that addresses the problem of false allegations of child abuse in divorce proceedings.
The other very important recommendation we'd like to make to this committee is with respect to the Divorce Act. The friendly parent rule, subsection 16(10), is not working. It is very rarely invoked in the court proceedings. And we believe that in addition to subsection 16(10) there needs to be a paragraph that identifies that a child submitted to a false allegation is traumatized no differently than other child abuse, and a parent who is willing to submit their child to that should not be given custody of the child. In other words, we're saying let's not reward bad behaviour by giving custody to the person who's willing to make the dirtiest allegations.
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I have many
other recommendations, but I think those are the
most important ones that Parents Helping Parents have
come to.
We also feel that there need to be criminal sanctions regarding lawyers who make false allegations. Nobody is stopping them, and in fact their clients are rewarded by the behaviour of placing false allegations in affidavits that are not substantiated by either child welfare or police authorities.
With that, I will end my comments. Thank you.
Senator Anne Cools: I'm prepared to sacrifice my first five minutes of questions for the witness to read all of her recommendations to the committee.
The Joint Chair (Senator Landon Pearson): Why don't you just ask the question?
Mr. Paul Forseth: That would be the nature of your question.
Ms. Louise Malenfant: You would like to hear some more of our recommendations, Senator Cools?
Senator Anne Cools: What I was trying to say is that the committee could probably benefit, and I was prepared to sacrifice my questioning time.
Ms. Louise Malenfant: Okay. I'll give a few more recommendations then.
Certainly one of the things we recommend is that as soon as allegations arise in divorce proceedings, they may be immediately diverted to a special master, as Dr. Golfman has said, or somebody within the court system who can identify these cases quickly and get them fast-tracked into an assessment process. We have found that once a good clinical assessment has been undertaken in a case, these allegations tend to go away.
We also recommend that visitation continue when an allegation has been made, under supervised conditions, and preferably by services provided by the court system itself. There are a lot of biases in the provision of services in this province, and I would assume across the country, and I think the closer we have it to the court, the better processes and services we get, so we can avoid those biases.
With respect to experts, there needs to be a good, solid identification of the biases in the community and an identification of those treatment providers.
I think the most important thing Parents Helping Parents has discovered in our efforts to try to assist fathers who have been accused of child abuse during divorce—and I would just like to say that we have accepted responsibility for 64 cases, and of those, 49 fathers have been reunited with their children after divorce. Joint custody is often what occurs following the clearance of the allegation. We have found that very often once parents who are making allegations have been confronted with their behaviour, there's no further access denial or allegations in a case.
Certainly Parents Helping Parents believes that a presumption of joint custody would in effect equalize the balance of power between the parties in a divorce proceeding, reduce the number of times allegations arise, and indeed give consequences to those parents who are willing to submit their children to the trauma of a false allegation and deny them access to the paternal family after divorce.
The Joint Chair (Senator Landon Pearson): Mr. Forseth.
Mr. Paul Forseth: I will address the comment to both of you. You may be able to provide this to us later, but is there any essential body of literature? Perhaps you can cite authorities of studies related to the problem of initial complaints of sexual abuse that are then assessed by psychologists that turn out not to be true—not necessarily related to the child custody and access dynamic, but just the complaint, the assessment, and then the guidelines for psychologists practising in the field. Perhaps you can cite some authorities of helpful literature.
Dr. Rosalyn Golfman: One of the best books around is called Jeopardy in the Courtroom, by Ceci and Bruck. It was written two years ago, and it has all of the major studies and all of the identifying behaviours and false allegations. It's the most comprehensive book available on the topic.
Mr. Paul Forseth: Is it an American book?
Dr. Rosalyn Golfman: It's an American book called Jeopardy in the Courtroom.
Ms. Louise Malenfant: There are a very good team of Canadian researchers focused in Ontario. They are Wehrspan and Klajner-Diamond, and they are cited in my presentation. These people have developed a keen analysis of evidence in an abuse allegation case and really significantly identify the different forms of allegation, the true versus the false. I'm very impressed with their research.
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Some American
researchers as well are Benedek and Schetky.
They're MDs who have also identified the profile of a
true versus a false allegation.
Mr. Paul Forseth: Thank you.
The Joint Chair (Senator Landon Pearson): The next questioner is Dr. Bennett.
Ms. Carolyn Bennett (St. Paul's, Lib.): Clearly, throughout the hearings there has been some concern about the quality of the assessments and sometimes the superficiality of them. We've heard all varieties, but they tend to be taken as the truth, as you, Dr. Golfman, said in your presentation. There are also structural things like unified family courts and all of that.
I guess what we're trying to figure out is this. In the small percentages of divorces that end up in court in high-conflict things, is there a best possible way to look after those? Should the children almost always have an assessment so that their needs are looked after? If you actually were going to design a multi-disciplinary way of dealing with this with a master or all of that, how would you structure it? How would you ensure the high quality of the assessment for all the kids in Canada?
Dr. Rosalyn Golfman: I think you would do it with some quality control by I guess legislating a type of an assessment or by following certain guidelines.
Ms. Carolyn Bennett: So you think there actually could be—
Dr. Rosalyn Golfman: I think Ontario has—
Ms. Carolyn Bennett: —what we need to see in an assessment.
Dr. Rosalyn Golfman: Yes, Ontario has guidelines for assessments such that you can have psychological tests done and all parties evaluated. These are the sort of things that I think should be legislated. It should be immediate if there's a divorce.
Ms. Carolyn Bennett: So if we're rewriting the Divorce Act in terms of custody and access, before anybody can come to that decision this needs to be in place.
Dr. Rosalyn Golfman: Yes, I think so. You need an immediate evaluation done.
Also, I'm part of a providers group that's trying to set up a counselling centre for high-conflict families whereby we would have parenting courses. We would do evaluations.
We're a long way away. We have $25,000 to see five families. We're going to be setting up some guidelines to do that hopefully. We're going to be trying to address the issue of some of the things I've mentioned. I think if we had some type of centre to do these evaluations and have quality control, that would be helpful.
Ms. Carolyn Bennett: Yesterday a child advocate came before the committee. I was concerned that the approach was whether you take at face value what the kid said. It's usually only in extenuating circumstances that this would be referred for counselling or assessment, or all of that. But basically, the job of the advocate is to just put on the table what the kid says. I guess I wondered what the value of that would be. Maybe it's just me as a family doctor that I can't see that. If I were going to put resources into something, I would put resources into your assessment and in the science of it, as opposed to just the pure advocacy of it.
Dr. Rosalyn Golfman: That's one-sided. You can't get accurate information, especially in the sexual abuse allegations. You don't know where it's coming from or the context of the allegation. You have to know that. You have to talk to everybody involved in that to understand why this has come about. Why is the child saying what they're saying?
Ms. Carolyn Bennett: I would love to hear what you have to say as well, but I have one other question. Do you think that in any divorce when a child says they don't want to see a parent then there must be a psychological assessment?
Dr. Rosalyn Golfman: If a child doesn't want to see a parent, yes. If the child does not want to see the parent, you must assess why not.
Ms. Carolyn Bennett: Okay.
Dr. Rosalyn Golfman: You can't go on the child's opinion or one parent's opinion because of all the things I've said. There are so many factors. I think it's extremely complicated.
Then, as Louise was saying, there are personality disorders that you may identify that the parent may misunderstand. I think a very small amount of parents absolutely make up a lie and intend to alienate the child. That's quite rare when that happens. It's really a misinterpretation or misunderstanding of the relationship.
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Ms. Carolyn Bennett: Or an insecurity.
Dr. Rosalyn Golfman: Or an insecurity.
I think it's often unwitting. I think if you do an evaluation and you point out what's going on for that parent, what the personality disorder is, you have a better chance of getting at the truth and of coming up with proper recommendations as to what ought to be done.
Ms. Carolyn Bennett: I'm so grateful, actually, to both of your presentations, because I think the issue of personality disorders and the assessment of personality disorders is a very serious issue in looking at these high-conflict—
Dr. Rosalyn Golfman: Exactly.
Ms. Carolyn Bennett: —and the spinning out of the high-conflict ones. I think that's been very helpful.
Ms. Louise Malenfant: Dr. Bennett, I think some of your questions were profoundly insightful, particularly your critical analysis of the theory that the child must be believed and you take the child's words at face value. This is Mr. Govereau's standard position, but it's really so out of date. The professional literature on the investigation of child sexual abuse and child abuse in general has not held tenets of that kind since the early 1980s, when it was believed that children could not lie. Since then, of course, we've developed understanding of phenomena such as the parental alienation syndrome, where a child is encouraged to hate and despise the alienated parent by the custodial parent. You can actually create these incredibly disturbed, violent, sexual abuse disclosures that can go on for years.
I think the problem with the position of our children's advocate, Wayne Govereau, is that he fails to recognize the trauma visited upon children who are subjected to this. We believe it is no different from a child being actually sexually abused in a physical way.
One final comment I would make to your queries is that in any given jurisdiction it's always very difficult to identify who are conducting proper assessments and who are not, especially the individual who's just coming to the legal process as an individual with their own case. They have no way of knowing how to evaluate the people who are giving assessments.
In Manitoba, part of what Parents Helping Parents has done is to identify that there are favoured practitioners who can be relied upon to always find abuse, to favour and have biases in terms of which gender they normally prefer, and we've identified those. If people come to us and ask what is this assessment person like, we can tell them to avoid them like the plague. We know who the good people are. We know the people who are conducting proper scientific assessments in the community.
Ms. Carolyn Bennett: As we are looking at the possible solutions, I know that one of your recommendation was for joint custody. Do either of you have any opinion on getting rid of the language of custody and access, such as some jurisdictions have, so that the kid has the rights and the parents have the responsibilities? And how do we sort out the shared responsibilities for time, money, all of those things, and develop the parenting plan without those words in the act? I guess the theory was that it would get rid of the winner-loser ethos and people having to continue to fight. Do you think that by changing the language we could start to move toward less adversarial stuff?
Ms. Louise Malenfant: As long as you change the actual balance of power between the genders that is currently active right now. Right now, there is gender bias in favour of women in the family court system. I know the committee has heard on a number of occasions that only one out of ten cases gets to trial, ergo there's very little conflict out there, the committee is wasting its time and stirring up troubled waters for no reason.
I think what people fail to understand in that particular ethos is that you cannot measure the degree of conflict in our system by the number of cases that get to trial. You can only measure by how long a matter has been before the courts. Here in Manitoba, the average time that a family law case is before the courts is 2.1 years. The longest is over 10 years, without a trial and without resolution. This is, I'm sure, rampant right across the country. But people like to use the assumption that because there's no trial there's no problem.
When we talk about language, I do believe it's important to get away from sole custody, because I think sole custody gives a licence to one parent to eliminate the other parent out of the lives of children.
• 1445
If you want to go to shared
parenting arrangements, I think that's certainly less
adversarial. As long as you balance the rights between
both parents so that one doesn't have the power to eliminate
the other, that would go a long way to preventing
some of these terrible problems in Canada.
Ms. Carolyn Bennett: One quick question. The length of time to get to court, is that a resource issue in terms of not enough judges and courtroom time?
Dr. Rosalyn Golfman: No. I think it's a matter of getting the evaluation done immediately. If it goes to family conciliation court, then it usually takes a year to do the evaluation.
Ms. Louise Malenfant: In addition to not getting evaluations started right away when allegations are made, that's a big problem. For the lawyer who represents the accuser—it is in the interest of the accuser to delay matters indefinitely—the longer that status quo is established, the better it is for the accusing parent. By the time you get to court.... I mean, I represent fathers who have not seen their children for four, five, or six years, and they've never been to trial. They've had very serious allegations made against them without criminal charges being laid, very serious child abuse allegations.
In answer to your question, Dr. Bennett, the key here is understanding that the party who has custody at the time the allegation is made is very much benefited by delaying proceedings. We need to ensure that to some extent we take away the power to delay proceedings by initiating assessment immediately and getting those cases to court immediately. Also, I think we should not give so much weight to the status quo, because parents who are willing to submit their kids to these terrible ordeals should not have custody, period.
Dr. Rosalyn Golfman: What about the assessment? They don't usually go to court. A lot of them don't go to court. There are a lot of assessments being done that never reach the court; they get settled.
The Joint Chair (Senator Landon Pearson): Senator Cools.
Senator Anne Cools: I'd like to thank the witnesses. These particular witnesses who are before us know a lot about the issues that have come forward. I would like to urge the committee, perhaps when we get back to Ottawa we may want to consider bringing them back as we go forward in learning more about the issue.
I'd like to pick up on one small point that was made by both witnesses, particularly Ms. Malenfant, where she said this particular brand of false abuse allegations has not always been with us. I wonder, as we have described the profiles of the true versus the false allegations, if either of the two witnesses have any insights or knowledge about the origin of these allegations or this style of...basically, these strategies, these very violent strategies of eliminating one parent over the other. Do you have any insights into the origins of it, the timing in our society when they originated, and the social forces at work that have given rise to them?
Ms. Louise Malenfant: If you don't mind, I'd like to give that a shot, Rosalyn.
My training is as an historical sociologist, and part of what an historical sociologist does is to go back to origins when we're trying to identify phenomena in the community. We then look at evolution and transmutation in the community.
What we have done and what Parents Helping Parents has identified is that in the early 1980s, late 1970s, feminism had a lot of influence in our society and we were listening to a lot of feminism. One of the phenomena of feminism was the fact that many women who had never felt free to come forward and talk about sexual abuse were suddenly coming forward and describing very real—quite certainly they probably happened—events of child sexual abuse in their past histories.
What happened after that, however, was that it began to transmute into a belief or a philosophy that every child has been abused, that every woman has been a victim and that every man is a violent perpetrator of abuse. It grew into these very rigid stereotypes that in turn influenced society when you talk about child welfare, child protection investigations, health care providers investigating allegations, and even in terms of lawyers who are assisting parties in divorce proceedings. It became very commonplace to hear about child abuse and to believe in the child abuse.
• 1450
When you couple that with this ideology, if you will,
that children never lie, that you must believe the child,
and that there's no such thing as a false allegation,
this is when the problem grew into a really horrible
problem in Canada and also in the U.S.
Here in Canada we're only now grappling
to come out of the darkness of this phenomenon,
but in the U.S. they resolved it
approximately five to six years ago.
Senator Anne Cools: In my own work, I pinpointed the growth or the proliferation of it to be around 1985.
Dr. Rosalyn Golfman: I think it goes back even further, to Freud, when Freud originally said children were sexually abused, and that's what caused neuroses. Then he said it was strictly the fantasies of children, when he changed his mind.
So I think children were never believed; they were underbelieved; and then, as Louise said, with feminism, they were always believed, and would never make up such a story.
I don't think it was until about 1991, when researchers such as Ceci and Bruck and Goodman and others started looking at false memories and how to implant them in children, that they began to realize that you can make suggestions to children and they can make up incredible stories. They did major research in this area that is now turning the corner. I think a lot of people who were trained before 1991 just aren't aware of the research and the magnitude of it, and what we're getting.
Senator Anne Cools: I think the magnitude of it is very critical.
Dr. Rosalyn Golfman: Yes. I think there's an awareness now. To make the statement that we should just be child advocates.... I think children are very important. We have to take them extremely seriously, because mostly they do tell the truth about these issues. They have no reason not to. But in certain circumstances and contexts, you have to look at why they are telling that story.
Ms. Louise Malenfant: To add to that, Senator, one of the deficiencies in the literature even today, and even in the U.S., is that there isn't a lot of research done on the impact of a false allegation on a child, but what has been done is quite disturbing.
Children express post-traumatic stress disorder symptomologies. They become very anxious, depressed and fearful. It's not uncommon for such children to have a history of making multiple allegations over the course of their young lives. They become sensitized to sexuality. It's not uncommon for them to exhibit all the symptoms that a child who has been sexually abused actually exhibits.
So it's a very traumatizing experience, not to mention the fact that their entire histories are changed when they are denied access to not only the accused father but also everybody in that father's family, as it often amounts to. It creates a very disturbing reality for children who cannot distinguish reality from fiction. They often end up having significant personality disorders of their own. It's a very painful process for a child.
So the idea that we can err on the side of caution and just assume that all allegations are true is really not child advocacy, because children are extremely harmed by the imposition of a false allegation.
The Joint Chair (Senator Landon Pearson): I don't often take a question, as chair, but I think Dr. Bennett's reflection of the comments of the Saskatchewan...were not entirely correct.
Her point was that if a child makes a comment, then you put that child in the centre of your investigation. She was quite clear that you don't always believe the child or whatever. All you say is that your job, as a person who is a child advocate, is to put the child in there and work out from that centre.
My question is to you, particularly, because of your excellent description of an interdisciplinary approach, which I really liked. What do you do now when you do determine that an allegation is true?
Dr. Rosalyn Golfman: Then we don't have access with the parent, or we may advise that the parent get some therapy. It depends on what the allegation was and the extent of it and what the parent had done, or if the parent admits to the allegation. But when it is true, we're very concerned.
The Joint Chair (Senator Landon Pearson): Is your assessment sometimes or always court-ordered?
Dr. Rosalyn Golfman: Sometimes, not always.
The Joint Chair (Senator Landon Pearson): Okay.
Dr. Rosalyn Golfman: But often we advise no access, and certainly no overnight access, until the child's a certain age. It really depends on what it is.
We take a very hard line, when it is true, to protect the child. We're very concerned about the child.
• 1455
The Joint Chair (Senator Landon Pearson): Thank you very much.
Were there some other questions?
Judy and then Paul.
Ms. Judy Wasylycia-Leis: Thank you.
I apologize for coming in at the tail-end of your presentation, but what I did hear we heard earlier today, and I wanted to see if there are any studies that will support some of the statements made.
It seems to me that feminism is taking a bit of a rap here today, and I don't know if that's been happening across the country. The movement, as I would describe feminism, to allow for people to achieve their fullest potential is not exactly the kind of movement that would be at the root cause of children making false allegations. It would seem to me it would have the opposite effect of building a more wholesome society.
I'm wondering if there are any objective studies, scientific analyses, or academic journals you can point to that would show statistically that there's a link between the movement to achieve equality between men and women, as it goes back to the early 1970s, and the phenomenon, or at least the allegations, of so many false allegations being made. Further to that, are there any studies to even document the significance of false allegations in society today? That's to both of you.
Dr. Rosalyn Golfman: There are studies, yes.
Ms. Judy Wasylycia-Leis: I'd like to hear them.
Dr. Rosalyn Golfman: Again, they're quite new, and the percentages go from 5% to 50%. It depends on whether it's in a custody dispute or not, where the allegations arise. I don't think there's anything that addresses what you're talking about, but certainly I would agree with you that feminism is not the root of this problem. Maybe radical feminism is. But I would agree that feminism works towards having equal parenting rights between parents, so I don't think that's the root of the problem. I would agree with that statement.
Ms. Louise Malenfant: Well, I think we disagree on this one.
In publications up to 1985, a pride was taken in the disclosure of child sexual abuse, and rightly so. For years child abuse had been kept in the closet and you couldn't talk about it and nobody believed it. That was a serious problem in our society.
The original disclosure and release of that was a wonderful and profound exposure of the problem of child abuse in our society, and as a community we began to try to deal with it and identify it. I believe there's a book by J.E.B. Dubois, who's an American. It's a very small book, but it provides a history of this particular evolution and makes the very proud statement that feminism created the environment that was needed to talk about child abuse out in the open.
In terms of what I consider to be the pathology of child abuse allegations and disclosures, it is more complex than merely feminism, but feminism began to distort after 1985 into a phenomenon that we call “victimology”, where all women were perceived as victims, all children were perceived as victims, and all men as perpetrators. These very black-and-white stereotypes became ingrained in the court system, so that a child abuse allegation was always believed, until there was a renaissance, if you will, and a discovery that there are proper scientific assessment procedures to identifying the difference between a true and a false allegation. That's only happening here in Winnipeg very recently.
You asked for statistics about child abuse allegations in divorce proceedings. It really depends on the source. Feminist sources will tell you that less than 2% of divorces include such allegations, but in Manitoba two years ago the chief executive officer of the child welfare system admitted that 25% of all allegations arose during divorce proceedings, and of those, less than 15% were likely true. For our system to admit that was very traumatizing for them at the time, but we are evolving as a result of that acknowledgement.
The Joint Chair (Senator Landon Pearson): Senator Jessiman.
Senator Duncan Jessiman: No questions.
The Joint Chair (Senator Landon Pearson): Okay. Mr. Forseth.
• 1500
Mr. Paul Forseth: I wanted to pick up on just one nuance that you talked about. You envisioned the possibility that perhaps you would allow that because of some act of violence or inappropriate behaviour per se by an adult towards a child, or an incident of sexual touching, it may not always rule out adult-child contact. If you foresee where there had been an offence and yet appropriate interventions and admissions of responsibility, contact in the future, in certain public situations such as a birthday party, a wedding, a picnic in the park with others, may be much better for healing the broken relationship than complete cut-off.
Dr. Rosalyn Golfman: I would agree with that. I don't think I said it would be a complete cut-off. It would depend on the circumstances and whether there was an admission and responsibilities, whether the parent had therapy, and it would depend on what type of allegations were being made. Some of them are extremely serious.
Mr. Paul Forseth: Right. So much of the testimony we've heard seems to rely on the assumption that if there's an offence, that's it. It's a stone wall forever, cut off.
Senator Anne Cools: Not even an offence, an accusation—
Mr. Paul Forseth: I'm talking about an offence not in the criminal context but in the social context. If we're to be child-centred, we think of what is best for the future development of that child into a healed, wholesome—
Dr. Rosalyn Golfman: Again, a lot of children want to see their parents. They have a lot of good memories and a lot of good aspects that they remember, so we try to have it supervised so the child does have access. And again, it depends what the parent offers. If the parent has a lot to offer that child and is willing to be supervised, we don't see a problem with that if the parent's willing to be consistent. And we have made recommendations, where we clearly think there was an offence made and the children are very much wanting to see that parent and to have a relationship with the parent, whereby we do make arrangements for that.
Ms. Louise Malenfant: Mr. Forseth, I'd like to bring to the committee's attention a strange anomaly in our system. If you deny an allegation and maintain your innocence—and often this can go on for many years—then you do not see that child. If you're lucky maybe you'll have supervised visitation, but many people are cut off completely until they're willing to admit guilt and seek treatment.
On the other hand, if you admit that you engaged in a pedophile experience with a child, you're chances of seeing that child sooner are ten to one. If you admit that you sexually abused a child, you could start seeing that child again in six to eight months, as long as you play the game and admit your guilt.
So I'd like to reinforce the idea that there are good, sound scientific assessment procedures that can distinguish a true from a false allegation, and people should not be punished for maintaining their innocence and not being willing to admit to what is probably the worst allegation you can make against a person.
Mr. Paul Forseth: You've just confirmed some of the testimony we've had in other days, where social welfare agencies have, in essence, been trying to extort an admission from an individual.
Ms. Louise Malenfant: It happens all the time, sir. In fact, they won't even talk to other family members. When you do an assessment of a case, you should talk to anybody who has information about that case, particularly the family system where an allegation arises. But in our child welfare system—and I'm pleased to say that this has changed in Manitoba—until just a year ago they would ask all potential witnesses to sign, in writing, that they believed the allegation before the agency was willing to even talk to them and get the information or evidence from them. Everybody wants an investigation. Even the accused wants an investigation. Particularly the family members I've heard over and over saying “If this person did this, we want to protect the child.” Yet they're not allowed to provide evidence unless they're willing to admit, or willing to acknowledge, that the allegation is true. It's a very bad problem.
Mr. Paul Forseth: Thank you.
The Joint Chair (Senator Landon Pearson): Thank you very much to both of you. It's been extremely useful testimony.
Mr. Paul Forseth: Thank you.
Dr. Rosalyn Golfman: Thank you for allowing us to come.
The Joint Chair (Senator Landon Pearson): If our next witnesses would like to come to the table, we'll take two or three minutes to do the change. We have, from the University of Manitoba and the Winnipeg Family Violence Court, Jane Ursel, from the department of sociology.
• 1505
Senator Anne Cools: Before the witnesses sit down, Madam Chair, two or three witnesses ago when the witnesses were on, including Tom Plesh, he was cut off just before he finished reading the last paragraph of his submission, so I wonder if we could just include the last paragraph of his submission, taken as read.
The Joint Chair (Senator Landon Pearson): Yes, we all agree.
Senator Anne Cools: So I just passed it on.
The Joint Chair (Senator Landon Pearson): At microphone number 11, Dr. Reena Sommer, PhD.
Ms. Ursel, would you like to begin.
Dr. Jane Ursel (Department of Sociology, University of Manitoba, and Winnipeg Family Violence Court): Thank you, Madam Chair, and thank you, committee members, for inviting me here today.
I would like to address one aspect of this very important and weighty matter, and this is the issue of providing for safe access, for being concerned about family circumstances when we are dealing with family violence matters.
I know there has been discussion across the country about the incidence of it, data about its frequency, the characteristics of both the offender and the victim, and so I've had a unique opportunity over the last eight years to collect data from the Winnipeg Family Violence Court.
The Family Violence Court is a criminal court. It's a provincial court in Winnipeg that was created in mid-September 1990. This court hears all matters of family violence, and the definition they use is in terms of the relationship of the victim to the accused. And all people who are in a relationship of trust, dependency and/or kinship are eligible to have their cases in Family Violence Court.
As a result of this, we find that there are partner abuse cases that include both married and common-law, ex-married and ex-common-law boyfriend and girlfriend, and ex-girlfriend and boyfriend, as well as same-sex partner relationships.
In addition, all child abuse cases are heard preliminarily and sometimes fully in the provincial specialized court because all children are in a relationship of trust to adults.
The one circumstance when a child abuse case would not go through the specialized Family Violence Court is if the child's alleged assailant is a youth himself. Then this case would go through a youth court.
Finally, the third category of cases that are heard in this specialist Family Violence Court are elder abuse cases, where an elder is in a relationship of trust, dependency or kinship to an adult caretaker, whether it be a family member, an institution employee, etc.
What I would like to do today is circulate the data from our court for the period of 1993 to 1996, which demonstrates first the disturbing frequency with which these incidents occur and frequently gives a breakdown of the characteristics of the victim and the offender. So I will circulate this at this time, and then if there are any questions, I would be happy to answer them.
While the material is being circulated, I would simply like to—
The Joint Chair (Senator Landon Pearson): I would like to bring to your attention, because I think it's very important, that we need permission to circulate it because it's only in one language. We've been given it, I think, generally.
Dr. Jane Ursel: I'm sorry about that.
The Joint Chair (Senator Landon Pearson): It's okay. We must remember our parliamentary facts.
Dr. Jane Ursel: I'm just circulating one page.
The Joint Chair (Senator Landon Pearson): That's okay.
Dr. Jane Ursel: Are there sufficient copies?
• 1510
What I would like to point out to you as you review
this table is that these are based on criminal matters
that have come before this specialized court, and the
data I've presented to you deals with those cases
in which there was a finding of guilt.
I know there's a great deal of debate. I had an opportunity to hear previous witnesses about whether allegations are true or false. The data I'm providing deal only with those in which a court has determined that these are true cases; these are convictions.
As you peruse the table, there are a couple of matters I would like to bring to your attention. First of all, unfortunately, in the three-year time period that I have the data for you today, there were 5,674 cases of spousal abuse. The court indicates that 92% of the convicted offenders were male and 89% of the victims of those offences were female.
The next category we broke down simply because you get multiple victims when you have child and spouse assault. In this case, 89% of the offenders were male and 40% of the victims were female. There were 55 who were male or female, which would typically be the wife and one or more of her children.
In the third case, we have cases of child abuse...562 convictions in the same time period; 89% of the accused were male and 76% of the victims were female, with the remainder male and female children who were victimized.
In the case of elder abuse, 91% of the accused were male and 81% of the victims were female.
I think it is a sad statement about our society that the factor that makes a person at risk is vulnerability. This is Winnipeg. Winnipeg has a population of 650,000 approximately—
Senator Duncan Jessiman: Have you broken it down between aboriginal and others?
Dr. Jane Ursel: We do have breakdowns in the larger data set of aboriginal and non-aboriginal and persons of other than European origin. Those data indicate that persons of aboriginal origin are overrepresented in this court.
I have done comparisons of the population in the Family Violence Court with the general criminal court, and unfortunately people of aboriginal origin are overrepresented in both courts.
Senator Duncan Jessiman: Are the statistics the same? It's still more male—
Dr. Jane Ursel: Yes.
Senator Duncan Jessiman: It's still the same percentage; it doesn't make any difference.
Dr. Jane Ursel: There may be a small variation, but the overall pattern is the same.
Senator Anne Cools: You say the aboriginals are overrepresented.
Dr. Jane Ursel: That's correct.
Senator Anne Cools: So of those total numbers, in absolute terms, how many of those would be aboriginals?
Dr. Jane Ursel: Probably about 35%. Winnipeg, as well as Saskatchewan, has a higher concentration of aboriginal persons than in the rest of Canada. And we use the term “aboriginal origin” broadly, so these would be people who are Métis as well as treaty status and non-treaty status.
Senator Anne Cools: For example, of the children—
The Joint Chair (Senator Landon Pearson): Excuse me, Senator Cools—
Senator Anne Cools: I understand. It's just new information for me.
Dr. Jane Ursel: I'll just finish and then I'll be happy to entertain questions when I've completed.
This data has indicated that of course family violence is serious and endemic in our community. “Endemic” indeed was the term used by Justice Schulman when he conducted a lengthy inquiry into a tragic domestic homicide/suicide back in 1995.
• 1515
I bring this data to you because I think you have a
very important and critical task in maintaining the
well-being and care of the children of our society. I
know that frequently in these debates we are often
victims of ideological struggles over what is the
truth in the absence of data. My
argument for you today, and what I hope this
committee will be able to take back to Ottawa, is the
absolute importance of having the various government
offices who deal with matters of custody and access,
especially when they're being disputed, collecting
much more more detailed data than we have available to
us today.
I can tell you that in Winnipeg in the past year there were 200 court-ordered assessments, but I cannot tell you anything more than that. We do not have detailed data collection procedures available in our offices in the city, nor I believe throughout the province, nor are we unusual. I think this is a problem that faces everyone in Canada.
I think you are faced with an incredible dilemma. When judges have to rule on a particular individual's family case, the judge requires all the evidence, and the judge will go to great lengths to ensure that all the evidence is available.
Unfortunately, when policy-makers are called upon to make policy that will affect all of us in Canada, you don't have access to all of the evidence. You often don't have access to anything more than various people presenting their points of view and arguing from their perspectives.
I think it is important for you and for policy-makers who follow you that mechanisms be put in place across Canada, in all of our provincial offices and all of our provincial courts, to collect the kind of data that allow policy-makers to make informed decisions and not to be misled by the great passion and the great beliefs that individuals may hold on either side or on many sides of the controversy.
So my argument here today is an argument perhaps of caution and concern, that when we are dealing with issues of the welfare of our children, who are our citizens and our decision-makers of tomorrow, these policies should be based on factual information.
Although I've heard many disputes about the nature of the data we have before us, I think the one thing that maybe everyone on both sides could agree with is the fact that violence is inter-generational. Most frequently you learn violence in terms of how you've been raised.
So you have a very weighty and critical role to play in terms of ensuring that children are not exposed to violent environments, particularly after the fact that certain incidents have been identified, dealt with by the courts, and, in many cases, findings of guilt have occurred.
The Joint Chair (Senator Landon Pearson): Thank you very much.
Dr. Reena Sommer.
Dr. Reena Sommer (Individual Presentation): Thank you, Madam Chairman.
I bring to this meeting contributions from two distinct areas of expertise: my work as a researcher and my work as a family life consultant. Together they have shaped and solidified my understanding of how families function and how they cope under a variety of conditions.
Importantly, by being able to draw from aspects of both disciplines I am able to move beyond the emptiness and detachment of unnamed and unknown data points by experiencing firsthand the human drama that each represents. In doing so, I can consider the strength and limitations of each discipline, which is providing me with a more finely tuned picture of family life.
My work as a researcher has focused on perpetrators of spousal abuse within the general population. What Dr. Ursel has just spoken about is her work based on data that are extracted from the Family Violence Court. These are two very distinct data sources and should not be interchanged.
• 1520
One of the problems that has occurred over time is we
tend to generalize from one to the other, and that has
to be the biggest mistake. It doesn't work. It's like
comparing apples and oranges. That's not to say Dr.
Ursel's data are not valid. They are very valid. She
does excellent research and her methodology is strong.
Her results are the way they are. But mixing one with
the other is a great travesty.
The results of my research have found there are no significant differences between the rates of abuse perpetrated by males and females. They're basically equivalent. That's not to say one is more injured or less injured than the other. I'm just saying there are as many men as there are women who perpetrate abuse against their partners.
These findings have been met with controversy and have been widely disputed, even in the presence of similar findings reported by other Canadian, U.S. and British researchers. I lost count of how many studies there are available in the literature. I rely a lot on a colleague of mine, Dr. Murray Strauss, for leads on this, and he has been cited as tallying well over 200 such studies.
Unfortunately, this area of research has been highly politicized by special interest groups who fail to recognize the difference between a family conflict sample, which is more the population I deal with, and the crime studies Dr. Ursel does. The two are mixed. They also fail to consider that violence often stems from inappropriate management of conflict and anger, and it is not a gender issue; it is a human condition.
Because of the predominating and narrow view of human interactions, findings such as mine and others have been ignored, minimized or simply discounted. My clinical work, on the other hand, has been more mainstream and certainly less newsworthy. It has been divided between working as a consultant and therapist in first nations communities in northern Manitoba—as a matter of fact, I just flew in last night—and conducting similar work, but servicing the general population, in Winnipeg.
This work has complemented my research, and I have to pick up right now on a point that was raised by previous witnesses, which brought me to thinking about the false allegations. It has never become so clear to me, since I started to do work as a consultant and as a therapist, how powerful I can be. When faced with an allegation, I can make it go either way if I choose, and ethics dictate how I work. I have the power to do it, but I shy away from those types of cases because they really are messy. A therapist is a particularly powerful person, and things can be turned any way you would like. Children are very malleable.
Senator Anne Cools: And vulnerable.
Dr. Reena Sommer: Yes.
The work I do in my private consulting practice has demonstrated first that domestic abuse comes in many forms, with its effects extending well beyond the perpetrator and the victim—and by that I mean the children. The children are the greatest victims because they are the ones who watch it and experience it. You don't have to be directly hit, slapped, punched or kicked, but to see your parents fighting is as bad as hitting, punching or kicking the child. It's the greatest assault you can do.
Second, the demarcation between perpetrator and victim is often blurred because the abuse most often occurs within the context of poor communication skills, ineffective means of managing anger, alcohol and drug abuse, and histories of abuse experienced in the respective partners' families of origin.
• 1525
Importantly, the abuse tends—and this is the abuse I
see in my practice—to be non-physical. It typically
takes more of an emotional abuse level. It tends not to
be physical, but when it is, it also tends to be
reciprocal, and it is not serious enough to require
medical attention. That is why most of the people who
report to the general population surveys do not show up
in the crime statistics: they don't seek help.
Thirdly, often concerns regarding domestic abuse or a partner's ability or inability to parent are raised at a time when couples experience difficulty resolving the dissolution of their relationship. It is my experience that allegations of abuse and inadequate parenting are fuelled by anger and resentment as well as by both parents' vulnerability and fear of losing their children.
Based on my 10 years of studying and working with families, I would like to put forth the following three recommendations. I could put forth a lot more, but this is very narrow, and it's specific to the type of work I do.
Number one, while domestic abuse is an important consideration in determining custody and access, when allegations of abuse are made, caution must be exercised to ensure that the context, history, and progression of family violence are clearly established and well understood.
Two, an attempt should be made to mediate all custody and access cases as a first course of action. The exceptions would be those cases where safety is a concern, as indicated by documented histories of, let's say, unidirectional abuse, violent criminal activity, or mental illness, just to name three. Given the reciprocal nature of most domestic abuse cases found in the general population, safety can be ensured by a trained mediator by establishing ground rules regarding the conduct during meetings.
Finally, when attempting to resolve custody and access issues, the feelings that underlie custody disputes should be addressed first. Often parents' fears, angers, and resentments can be allayed, and when they are, the concerns about custody and access likewise tend to diminish. Rather than jumping the gun and starting this whole process, talk. I think that was brought up with the last set of witnesses: talk. Talk to as many people as you can. What you'll find quite often in many of these cases is fear, anger, resentment, and vulnerability that somehow, because of the separation and pending divorce, parents are going to lose out.
Often I'll sit with clients in my office, and out of the clear blue, one of them will say, “You just did this; you just threw this at her”. Then I'll ask, “Can you clarify that?” And it turns out it really didn't happen that way; it's just they're so angry. They're so angry. But if that same statement were given to someone else and not clarified, you'd have a whole thing in motion.
At this point I'm going to close and turn it over to you. I thank you again.
The Joint Chair (Senator Landon Pearson): Thank you.
Questions? Senator Jessiman.
Senator Duncan Jessiman: Dr. Ursel, I was just astounded at your data, because what I had read before is just what Dr. Sommer said, that the abuse comes both ways. So I have to ask you something about your data. Is this abuse we're talking about here physical?
Dr. Jane Ursel: These are incidents that would be covered by the Canadian Criminal Code.
Senator Duncan Jessiman: Right.
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Dr. Jane Ursel: In most cases they would be physical.
Senator Duncan Jessiman: Right.
Dr. Jane Ursel: The two exceptions would be in cases of criminal harassment, where behaviours other than direct physical assault are covered by our criminal harassment legislation.
Senator Duncan Jessiman: Do you know whether any of these 6,508 are of harassment that's physical?
Dr. Jane Ursel: There are 78 criminal harassment cases within that. However, I believe most of them were also coupled with an assault charge at one stage within that same year.
The other incidents that can result in criminal charges that may not necessarily involve a direct physical assault are utter threats.
Senator Duncan Jessiman: Right. Do you disagree with Dr. Sommer when she says that in the information she has from her study she finds that women are just as abusive to men as men are to women? Do you disagree with that?
Dr. Jane Ursel: Yes. I think in—
Senator Duncan Jessiman: Do you have data to back that up?
Dr. Jane Ursel: Yes. I think that where the difference might lie is that Dr. Sommer is dealing with conflict in a relationship. Studies have been done—I know this has been much discussed at this particular table in another city—such as the Canadian study on violence against women that was done in 1993, where there was an attempt to measure degrees of violence.
I would certainly agree that many couples, both members, may have difficulty resolving conflict and may choose strategies that are certainly optimal. But I believe that when we come to measuring the actual degree of physical harm, there is a difference in assaults of men against women. The magnitude of harm that can be caused typically is greater when it is a male assailant upon a female victim.
I'd like to give you one example. It's an example that's particularly well known in our city because it was the event that led up to the Lavoie inquiry.
This was a domestic murder-suicide. This couple came to the attention of our courts twice. The second time was the horrific event of the murder-suicide. The first time resulted in a charge of common assault that was the result of the accused hurling a pumpkin at the victim.
I think this demonstrates the extraordinary need to be cautious about understanding the escalating cycle of violence. It would have been very hard for interveners at that very first stage of conflict, a year and a half before the second cycle of conflict, that led ultimately to the wife's murder and the husband's suicide.... We need to be very cautious in understanding the cycle of violence and in understanding both partners' abilities to cause harm to one another.
Clearly, in the first assault, one would have said it wasn't terribly serious. An item was thrown across the room and—
Senator Duncan Jessiman: Who threw the pumpkin?
Dr. Jane Ursel: The husband threw the pumpkin at the wife.
Senator Duncan Jessiman: I had to ask that question because of the size of a pumpkin.
Dr. Jane Ursel: I want to say that there are certainly many ways in which couples frequently deal with conflict and many ways in which it's not optimal. What I'm addressing are those cases where we're dealing with serious bodily harm to people in an intimate relationship, whether they are the child, spouse, or elder parent. This is where they're vulnerable and at risk of being assaulted. We need to be extremely cautious about that.
Certainly after our courts have intervened—their test is far more demanding than any test of an academic journal—we can gather data and publish it. In the courts, you have to prove beyond a reasonable doubt.
Senator Duncan Jessiman: I don't know if there are any statistics on this, but I'm trying to rationalize how you could be so.... I'm trying to rationalize this, because yours are convictions in a criminal court.
• 1535
Does it make any sense at all that the reason the
statistics are, as you show them, 92% to 7%, we're
told...? From what I've read, women are just as abusive
to men as men are to women in marriage and conflict,
yet you've given us these statistics. Is it not likely
that women are probably not charged as often by men?
If a man is assaulted by the woman, the man doesn't
charge her, whereas if the woman is assaulted by the
man, the woman charges him.
Dr. Jane Ursel: In our jurisdiction, of course, it's never up to the victim to charge. The victim has to call for help.
Senator Duncan Jessiman: You can also have a private—
Dr. Jane Ursel: You can, but these are all cases where the charges were laid and the police arrested the offenders. We have a zero-tolerance policy.
Senator Duncan Jessiman: Does it apply to women too?
Dr. Jane Ursel: Of course, and of course women are arrested.
Senator Duncan Jessiman: That's not what I'm told. If a man charges a woman he has to prove it. If a woman charges a man—this is only what I'm told—they assume the woman is telling the truth, and he's taken away until he proves himself innocent.
Dr. Jane Ursel: I think this is a very strong argument in favour of my recommendation that we need the data.
Senator Duncan Jessiman: I don't disagree.
Dr. Jane Ursel: I know many people of both genders have had very unhappy circumstances, and they can colour one's perception about what happens in the rest of the community.
Senator Duncan Jessiman: Do you have any data, or where would we get data on those who have been just charged—maybe even jailed—with nothing proven, and then when the hearing takes place there's an acquittal? With this no tolerance policy, how many men have been released because it wasn't proven, and how many women have been charged and taken to jail and proven not guilty?
Dr. Jane Ursel: The data I've provided in front of you, which is actual convictions, indicates the interesting gender dynamic. If we look at only cases where arrests have been made, we find the same pattern. I certainly can provide it to the committee. I didn't bring it, but I will make arrangements to provide that. I can provide the data on both the arrest rate and the conviction rate.
Senator Duncan Jessiman: I would like the data on the arrests of those of both genders who were found not guilty.
Dr. Jane Ursel: Yes.
Senator Duncan Jessiman: Okay, thank you.
The Joint Chair (Mr. Roger Gallaway): Mr. Forseth.
Mr. Paul Forseth: I was just following on the same theme about your data, because you very much emphasized in your presentation “all of the evidence”. I believe you're going in the right direction to really get hard data, but it's again limited in its helpfulness to deduce public policy without the contextual data.
Its outcome is only in a criminal provable context, and I'll just cite an extreme example to illustrate the point. How do you get at the mental patient or disturbed personality spouse who manipulates the system for self-vindication and makes themselves the victim of a black eye by their spouse? That's an extreme case, but we're looking at the results of Criminal Code finalities for sentencing, and that may poorly correlate with the dark family secrets of violence and abuse and what is really going on in a relationship.
So I would suggest that to provide support for your data you need to describe how a complaint starts, where it comes from, who the referral agencies are to get this complaint going, and the successive hurdles, from the very origins of something that happens over the kitchen table, of how it gets to the distilled end product data you present.
We also, in that context, need to look at who is on the bench, who is the prosecutor, and the underlying assumptions about why this particular court was established and what it is trying to do. When you provide that overall contextual material, we can perhaps get to the public policy things so we make the proper inferences for the numbers we look at, even simply the breakdown of the particular Criminal Code violations. Are they all common assaults? What's the relative percentage of sexual touching or the section of the Criminal Code concerning stalking and so on? Those kind of breakdowns are also helpful.
• 1540
Dr. Jane Ursel: Thank you. I will refer you to two reports that have been filed with the federal government, and you can receive that information. Also, I would like to thank you for a comment you made. Perhaps you can be a key promoter of a type of research you're suggesting, which nobody has been willing to fund to date, and that is to look at the background.
I have sat in personally on 300 wife abuse trials. I have collected data on over 22,000. I have sat in over 150 child abuse cases and have data on probably 1,500. I've only provided you with the most recent years.
I have a number of times requested to various government departments, federally and provincially, that it would be extremely valuable not only to have the institutional data but to be able to do interviews with the accused and the victim. This type of research, while being critically important, tends to be very labour intensive and consequently expensive. I have been turned down by the government, both federally and provincially, for these far more thorough studies you are advising, which I would dearly love to do. But I would need to pay my staff to help me do them.
Mr. Paul Forseth: I can give you one hand. I think there are a number of Ph.D. students looking for specific topics to zero in on, and also master's degree people. We have universities in this town, and they are great gold mines for those kinds of projects.
Dr. Jane Ursel: Indeed, I have employed 25 graduate students in this particular research project alone on the Family Violence Court—a number of law students and numerous social science students.
Mr. Paul Forseth: That's great, because when I look at the data here, in essence, the numbers on that sheet could have been provided by a secretary from the court registry.
Dr. Jane Ursel: They couldn't have been, if you're familiar with the data collection procedure. The secretary does not know this data, nor would the judges or the Minister of Justice if there weren't people there going through the files daily collecting the data.
Mr. Paul Forseth: That's right. We really have an area for research, and I commend you. I hope you keep digging, because we need that good, hard material to infer appropriate public policy.
Dr. Jane Ursel: I agree.
The Joint Chair (Senator Landon Pearson): Thank you.
Senator Cools.
Senator Anne Cools: I have a couple of questions. Perhaps before I complete my questions, Dr. Sommer could put on the record the names of these colleagues like Brinkerhoff and Lupri, Dr. Strauss and Dr. Dutton, and the Canadians and the Americans who have done the general population surveys.
I'd like to thank you, Dr. Ursel. To my mind your findings are entirely predictable and consistent. I used to be on the National Parole Board, as you know, so we know in the federal system penitentiaries there are 10,000 men and about 300 to 400 women. I think we know quite well that more men are convicted of anything than women. I'm not too sure how your figures relate to the 10,000 inmates in the federal penitentiaries.
Dr. Jane Ursel: Most of these people would be provincial inmates, if they received incarceration sentences at all.
Senator Anne Cools: Well, I would say the opposite. I can also go forward to say the same thing. The ratio between provincial inmates, men and women, is roughly the same thing. There are some who would say those numbers alone indicate something very stunningly wrong, just as I reacted when you told me the high percentage of these offenders or offences among native people. Some would draw the conclusion that those numbers show there's some tremendous societal wrongdoing to aboriginal people. Anyway, I'm not going into all of that.
I want to know a couple of things. Do these numbers represent individuals or convictions?
Dr. Jane Ursel: These are individuals.
• 1545
Senator Anne Cools: Are some of these multiple convictions, or are they one per person?
Dr. Jane Ursel: An individual would only be counted one time within a 12-month calendar year.
Senator Anne Cools: Good.
If you have this information—and if you don't, I quite understand, because it's not easy to get that information—I'd like to know how many of these cases are common-law versus married.
Dr. Jane Ursel: There is a higher percentage of common-law relationships.
Senator Anne Cools: Very well.
Dr. Jane Ursel: In the two reports to which I've referred, that is indicated.
Senator Anne Cools: Exactly.
Dr. Jane Ursel: I don't believe, off the top of my head, it's more than 50.
Senator Anne Cools: Fine.
Dr. Ursel has worked hard, and is bringing forth, I think, very good data, but the data is confirming the overwhelming problems. There are far more of these convictions in common-law situations than in married situations.
Since what is before us is divorce post-marriage, some of the data really is not relevant to us at all. It is relevant to the wider issues of violence within couples. There's no doubt about that.
In terms of divorce, then, I guess if people haven't been married, they don't get divorced. But that's a different issue.
You know, they tell me Quebec is going in that general direction.
But to come back to the ones who are married, do we have specific numbers of those who are married?
Dr. Jane Ursel: Yes, we do.
Senator Anne Cools: Can you supply me with those?
Dr. Jane Ursel: I can certainly do that.
Senator Anne Cools: Okay.
Within those who are married, do you have any indication, for those going through divorce proceedings, of those who either file and discontinue or complete the proceedings?
Dr. Jane Ursel: No, and this is one of the areas in which I'm indicating that we definitely need better data collection. It's a problem not only for us researchers but also a serious problem for court personnel who may be prosecuting a domestic violence case and who not have sufficient information from Unified Family Court.
One of the hopes in recommending better data collection at all levels, including Unified Family Court, is that we could have a better ability to cross-reference such cases.
Senator Anne Cools: Dr. Ursel, have you ever heard of Erin Pizzey?
Dr. Jane Ursel: No.
Senator Anne Cools: She started the domestic violence social service industry in England and founded the very first women's shelter there. She makes the point again and again that the more pathological and the more repetitive and recidivistic the violence, and the more intractable it is, the less likely it is for the couple to go to divorce. She calls it the “dance of death”.
I was wondering if you knew her work or if you had studied the issues around that intractable, very deep, pathological, repetitive violence...which somehow or other remains isolated from our communities and very rarely seeks help, to be quite frank, and very rarely goes through divorce.
Dr. Jane Ursel: I am familiar, certainly, with the fact that violence occurs in many different degrees and levels of severity and levels of pathology. I have been called upon a number of times to testify at domestic homicide-suicide inquests. However, I do want to indicate to you also that these figures are not representative of only that extreme. The individuals involved in the Family Violence Court—
Senator Anne Cools: I wasn't suggesting they were. I was asking if you had studied those particular sets of pathologies.
Two questions, finally. This is a very complex matter. How many of these convictions are as a result of guilty pleas and plea bargains?
Dr. Jane Ursel: The large percentage. The Family Violence Court is not substantially different from the general court. I did a study comparing them. Approximately 20% of cases are sent to trial. The overwhelming majority are either resolved through guilty pleas or stays of proceeding. The Family Violence Court is no different from general criminal court in that matter.
Senator Anne Cools: So to get some harder data, we would have to look at the guilty pleas within the ones who were married and who may have gotten divorced.
Dr. Jane Ursel: Of course I can tell you about the guilty pleas and the status of the marital relationship, but unfortunately, because of the way our courts are currently organizing their data, I can't cross-reference that with ongoing family matters.
• 1550
Senator Anne Cools: Okay. Then are you also familiar with Dr. Strauss's work, where he differentiates, and he cautions that we should at all times differentiate, between attacks and injuries?
Dr. Jane Ursel: I am familiar with Dr. Strauss's work.
Senator Anne Cools: Okay.
Finally, if I could come back to Dr. Sommer, what we're discovering from this particular set of data is that we're no farther ahead in terms of what is going on in marriages seeking divorce on this particular question. I wonder if Dr. Sommer could put on the record a little bit more about the major studies, especially the Canadian ones, on the general population surveys. And I wonder if Dr. Sommer could comment on the Statistics Canada studies.
I wonder if you could just list those studies, because I keep hoping that our researchers will bring forward some of these studies for us.
Dr. Reena Sommer: Okay.
Senator Anne Cools: Also, could you make some comments about the Statistics Canada study? It has not really come before this committee yet, but that Statistics Canada study has been under fire at many conferences internationally for quite some time. I raised Dr. Strauss's remarks about it in Toronto.
The Joint Chair (Senator Landon Pearson): We're anxious to get her answer, because you've already used beyond your time.
Senator Anne Cools: But if we have other people who wish to ask questions....
Dr. Reena Sommer: I would be glad to address that. Also, I'm working under a time constriction. I have an appointment at 3.30 p.m., so I'm going to have to leave shortly.
Before I begin talking about the research, I'm kind of puzzled right now, because I see a lot of focus on crime statistics, yet I'm assuming that the policy you are trying to develop here is for the general population, for everybody—you, me, and everybody else, people on the street.
The Joint Chair (Senator Landon Pearson): I don't think that's quite right. I don't think there's been an extensive concentration on crime statistics.
Dr. Reena Sommer: Okay. Well, yes, this is the only little bit I've been at, but in this discussion there's been a lot of focus on the crime studies, and when you're developing social policy for everyone, you have to look at everyone. I know you've listened attentively, and your questions have been excellent. I'd just caution you that the data Dr. Ursel has presented is a small, tiny slice of the bigger picture—a tiny, tiny slice.
As for the research by Dr. Strauss, he did a paper where he compared crime statistics with family conflicts, general population studies. He looked at three major crime studies, and they happened to be U.S., where crime is higher; they have higher rates of crime there. I know they're not Canadian, but they have higher rates of crime. The crime statistics were somewhere between 0.02% and 1% of the domestic abuse that's found in the general population. The domestic abuse that was found in the crime statistics was a tiny, little slice, and you really need to understand that.
In terms of the other research that's been done, Senator Cools has already mentioned the major researchers. There's work done in Alberta by Brinkerhoff and Lupri. There's work done by Dutton. In the States of course there's Strauss and colleagues, Richard Gelles and Suzanne Steinmetz. There's quite a gang in the eastern U.S., the New Hampshire area. Then there's a researcher in Britain who did a large general population survey in Britain. I had his name; I believe the group was Templer—yes, Templer et al.
• 1555
Anyway, they've worked with general population surveys.
What that means is that the survey is a randomized
methodology of surveying people. They asked them many
different questions on conflict, conflict specifically related
to how couples get along. The typical instrument
they use is the one that was developed by Murray
Strauss and colleagues called the conflict tactic
scale, and over and over and over again they find the
same results within a percentage or two that basically
show that men and women perpetrate abuse at the same rate.
There's really no difference.
Senator Cools wanted me to comment on the violence against women survey that was conducted a number of years ago.
An interesting feature of that survey was that about two years before it was actually conducted the researchers involved contacted Dr. Strauss and wanted documentation of his research tool, the conflict tactic scale. They proceeded to spend about a year trying to tear it apart. In the end, lo and behold, they used it with minor modifications, the same tool. They added a couple of questions, reworded things. Basically, it was the same tactic and they administered it across Canada to women alone.
That survey asked many, many different questions. It was a very large survey. But in one part of it they wanted to know about what went on in a marital relationship and they came out with a very glaring statistic that made all the front pages across Canada: that approximately 51% of women had been abused at some time since the age of 16. That was a composite of all the different types of abuse—harassment, fear, actual assault, crime, victimization and partner abuse. The 51% is a composite. It also means, or it could mean, that if my partner had thrown something at me 25 years ago and it never ever happened again, if in a fit of rage or frustration my husband threw something at me, I would have been in that statistic. I would have been one of those abused women.
The Joint Chair (Senator Landon Pearson): Thank you.
I think we have a number of questions, so perhaps we can get on to them, please. Ms. Wasylycia-Leis.
Ms. Judy Wasylycia-Leis: Thank you, Madam Chair.
I'd like to thank the presenters for appearing before the committee. In particular, I'd like to thank Jane Ursel for the statistics. Although these are statistics pertaining to criminal convictions, I'm assuming this is very helpful for the work of the committee, in that criminal convictions are at the one end of the spectrum of violence, and presumably, if a gender difference exists at that end, it's likely to be present at all levels or all parts of the spectrum on violence. I guess it affects one question to Dr. Ursel in terms of the literature and the work she's done in this area, although she said the data is not all in. Perhaps that's a fair conclusion, though.
Maybe I'll give all my questions at once, if that's okay. It will take less time.
Secondly, we've heard a lot today and I'm sure at other times about women being encouraged to go to shelters when there isn't really a basis for that and being counselled in pursuing vengeful or vindictive actions against a partner. I'm just wondering—you've had a lot of experience in this area in terms of shelters over the years—if there's any evidence to support those kinds of statements.
Thirdly, today and at other times presenters have suggested that if we're ever going to develop a meaningful approach to custody and access, we're going to have to rethink zero tolerance. I'm worried about that because I think many of us are involved in trying to pursue zero tolerance in our schools, on the streets, in our homes, in our communities, as a very important goal for a peaceful society. I would very much like to hear Dr. Ursel's comments about the effectiveness of a zero-tolerance policy.
Fourthly, with respect to people suggesting that there's a significant syndrome of false allegations of sexual abuse in our society today, I'm wondering if there is any evidence to support that.
• 1600
My third last question: many have suggested that the
problems we face today are a result of the movement of
the 1970s to see greater equality between women and
men. What's your opinion on that?
Another question: some have suggested the courts are biased in favour of women. Is there any evidence to support that?
My last question pertains to some literature that suggests there is evidence to show that violence is a factor for half or more of all women who seek divorce, that violence escalates at the time of separation and that batterers are twice as likely to seek full custody of their children. Is there any evidence to support those statements?
Dr. Reena Sommer: As I said before, I need to leave now for an appointment. Thank you very much.
Senator Anne Cools: Just before Dr. Sommer leaves, she listed those studies but she did not list her own.
The Joint Chair (Senator Landon Pearson):
[Editor's Note: Inaudible]...her own under consideration.
Dr. Reena Sommer: Thank you very much.
The Joint Chair (Senator Landon Pearson): Thank you.
Ms. Jane Ursel: I hope I took good notes. There were a lot of questions but I think some of them I can collapse.
With regard to your comment on previous suggestions—I wasn't here for them—I will just.... Correct me if I am interpreting it incorrectly, but I believe the suggestion was that women are encouraged to go to shelters, even perhaps when they don't need to, and at that time they're encouraged to make false allegations. Then there was your question about zero tolerance.
One of the things we've learned in our province, where we really do, perhaps, have much more comprehensive zero tolerance than any other jurisdiction, is that one of the things that happens as a result of having police intervene and arrest is that we find fewer women going to shelters, that if women can be safe in their home that is where they would prefer to stay, close to their children's school, close to their place of work, etc. So one of the interesting developments we've observed in Manitoba is that as arrest rates have gone up, demand for residential shelter services has declined.
I think this indicates clearly that women would rather not go to shelters. It's profoundly disruptive of their lives, of their children's lives, and it can at times be profoundly disruptive of their work. I don't think women choose to go to shelters for any kind of trivial reason. Truly, use of shelters is used as a last resort.
When you provide other options that are safe and secure, women seek those other options. I think Manitoba is an interesting example, because we have had zero tolerance for a sufficiently long time that we've been able to see some of its broader implications and, as Mr. Forseth suggested, we are looking at a phenomenon that touches many aspects of our communities' lives.
In response to the question about shelters, therefore, I don't think women go there frivolously. I think there are very clear rules and guidelines and principles of professional behaviour for people who work in shelters. Our shelters, relative to other provinces, are well funded and sustain a consistent professional staff, so there's not a lot of turn-over. Rules of practice and behaviour are understood and practised.
If the data we've seen in the last four or five years is going to be sustained and if we find it being replicated, for example, in Ontario, where they now have family violence courts and where they're moving toward more aggressive arrest policies, I suspect that what we have happening is earlier intervention in a cycle of violence that prevents the escalation of that violence per se and also provides family members with more options and doesn't make shelter the only solution available to people.
I would see zero tolerance, if it is able to replicate those results in other jurisdictions, as a positive thing for a peaceful society.
• 1605
With regard to whether or not the courts are biased in favour of
women, my knowledge is limited to the criminal courts.
As I said, I've sat in on hundreds of spousal abuse
trials—actually close to 600 over the last eight
years and about 150 child abuse trials—and I have been
impressed by the balance and sensitivity and awareness
of our judiciary. I have also followed the decisions
that have been made in our specialized courts and
compared them to the decisions made in our Court of
Queen's Bench when cases go to appeal. I have found
that the decisions made in our specialized family
violence court have the same rate of being upheld as
the decision in Court of Queen's Bench. So I'm
satisfied that we have a balanced, well-informed
judiciary who are handling these matters.
The last question—and if I've missed things, draw it to my attention—was the issue that violence escalates at the time of separation. Certainly, there is a lot of evidence of that in Canada. Probably the most compelling and disturbing evidence is the homicide rate in Canada. People are at greatest risk when they are separating, and this is a frightful and horrifying reality. It's frequently a reality that may keep people in a relationship when they would be better out of it.
The Joint Chair (Senator Landon Pearson): Mr. Gallaway.
Mr. Roger Gallaway (Sarnia—Lambton, Lib.): Thank you.
I'm sorry that Dr. Sommer had to leave, so I'm going to pose this question to Dr. Ursel. I want to reflect some of the frustration that Senator Jessiman was feeling at what we're hearing today. We've heard from Dr. Sommer, who talks about violence in the general population, and I think there's a difference between violence and criminal convictions.
Ms. Jane Ursel: I would agree.
Mr. Roger Gallaway: I want to say that this panel this afternoon has been very interesting in the sense that we have walked into an area that we have not gone into to date. We've skirted the edges of it, but I think we're confronting it more so this afternoon.
My question is in a very general sense. I'm trying to reconcile what Dr. Sommer said and what you have brought to us in terms of statistics. You made a comment that I thought was interesting. Someone on this side mentioned someone laying a charge, and you said, no, it's the person who calls and then the police take over and they lay the charge, as a logical follow-through on a zero-tolerance policy.
It appears, in terms of convictions you've laid out in this—we're talking now about criminal convictions—that the ratio is 20:1, roughly, which I believe is what it is in other criminal offences, male versus female. But we are not making recommendations to amend the Criminal Code; we're dealing with a piece of legislation that deals with relationships. So I'm not particularly interested in what goes on in criminal courts per se, because we're not going there; we're going into relationships.
I want to ask you then if you're aware of studies. You appear to be a criminologist, if I might say so, in terms of presenting this study today—and I hope you don't take that as being.... I don't know what the pecking order is in universities between sociologists and criminologists.
We are dealing with the very intimate relationships within homes. You made the point that the police respond when someone calls. I want to know what you know in terms of that or what you can offer in terms of that, that there may be gender differences, whereby women call and men don't, but within that home there are equal acts of violence as between the man and the woman. You're providing us with a registry of criminal convictions. We're going into that home where the Criminal Code isn't going; it's the Divorce Act. In fact, the women, dare I suggest it, might be every bit as violent as the man, but the man, as a cultural/gender matter, does not call the police.
Senator Anne Cools: If he does, it wouldn't matter anyway.
• 1610
Dr. Jane Ursel: I appreciate that your task is not to revise the criminal court. However, I don't think in addressing matters of law regarding the family it would be wise to ignore criminal matters that involve families. I hope that's not what your suggestion is and I presume, because you had a follow-up question, it isn't what your suggestion is. I do believe this data is relevant to your task and I think it is important to consider in your deliberations.
I would also like to point out, and this really speaks to my point earlier, that we are in a unique position in Manitoba because we are one of the few provinces that have this data. Most provinces do not distinguish between domestic assaults and general assaults, so they can't even tell you that data. Again, my point is we must have policy made informed by the evidence, the strong evidence that's available. I have offered to you today a very small piece of evidence that I thought I could discuss in five minutes, which is what I was told I had to do. However, there are back-up reports, and I've indicated where they are and I'll be happy to send copies to the committee.
With regard to calls, we do know who makes the calls because we record our data from the police incident report as the first stage of data entry. We do know that about 76% of the calls are made by the victim. We do know therefore, because more of the victims are female than male, that in the 76% of those calls the majority would be female. However, there are also calls made by children and there are also calls made by neighbours and other family friends or, typically, people who have overheard the altercation.
It is the police practice, it is the basis of the zero-tolerance policy, that if they arrive at the incident and there is both the original complaint and the counter-complaint, they charge in both cases.
The Joint Chair (Senator Landon Pearson): Thank you.
Dr. Bennett, you had a question.
Ms. Carolyn Bennett: I think it was mainly answered. In terms of qualitative research around this data, obviously you would love to have the resources to do more, but in terms of the escalation of violence in custody and access cases, do you have any off-the-top idea of the percentage of these cases that would be involved in custody and access disputes?
Dr. Jane Ursel: No, I'm sorry, I have no way of collecting that data at this point.
Ms. Carolyn Bennett: There obviously are two different groups here. What is your interpretation of the work of Dr. Strauss?
Dr. Jane Ursel: I think Dr. Strauss does very fine work, but I think we're measuring different kinds of things. And I think Dr. Sommer attempted to describe the fact that there is a difference between the strategies couples use to resolve conflicts, which may be good strategies or bad strategies, and the material I work with, which is dealing with assaults, for which the data is quite unambiguous, I think.
Senator Anne Cools: I have a point of order. She's not measuring assault, she's measuring criminal convictions and assaults. Dr. Strauss's data measures assaults in general; this data here is measuring convictions—
The Joint Chair (Senator Landon Pearson): I understand that.
Senator Anne Cools: —and it is very valid work, Dr. Ursel, and I commend you for doing it.
The Joint Chair (Senator Landon Pearson): Thank you very much indeed for your presentation. It's been very interesting.
Dr. Jane Ursel: Thank you.
• 1615
The Joint Chair (Mr. Roger Gallaway): Mrs. Britton is speaking on behalf of the GRAND Society, the Manitoba chapter. We've heard from your counterparts in other provinces. So, welcome, and please proceed.
Ms. Eileen Britton (President, GRAND Society, Manitoba Chapter): As the president of the GRAND Society, Manitoba chapter, I come before you today to address the issue of grandparents' rights in the Divorce Act.
The GRAND Society was founded in Toronto in 1982 by three social workers. It is an organization that acts as a support group for grandparents who are denied access to their grandchildren.
There is often a special bond between grandchildren and their grandparents, one that enriches and fulfils family life for young and old alike. Sometimes that bond is broken by divorce, separation, the death of one or both parents, and other situations. When this breakdown in the family occurs, grandchildren and grandparents suffer.
I come before you today to ask that the Divorce Act be amended to include the recognition of grandparents to have continued access to their grandchildren after a divorce. The amendments to the Divorce Act should establish that in the best interests of a child, continued association with their grandparents should not be terminated following a divorce or separation without just cause.
In the aboriginal culture there is a symbol called the medicine wheel. The medicine wheel is a teaching tool of the aboriginal people. It shows the many ways in which everything in the universe is interconnected. It is a model of what human beings can become if they have the opportunity and the will to maximize their potential. As the earth travels from season to season, from spring to winter, so does life—from birth to rebirth in the spirit world, from infancy to old age. Infants and elders are the ones in closest proximity to the spirit world, one having just arrived and one soon to leave. Hence, their relationship is vital, for one complements the other. The elder gives wisdom and knowledge to the child and the child provides the balance and vigour of youth to the elder. If any quadrant is missing in a person's life there will be imbalance in that life and the person will not be able to develop to their full potential.
Traditionally, many parents would give their first-born to the grandparents when the second child was born. Of course, this was a while ago and times have changed. Children were treated as gifts for the entire family, not just for the parents.
I find the symbolism of the aboriginal people very meaningful and not unlike our own culture in many ways. However, over the years, with societal changes, the mobility and transience of families, the breakdown of the family unit through divorce, separation, death, and other situations, children have borne the brunt of these changes.
Referring to the sentence in the medicine wheel where children were treated as gifts for the entire family and not just for the parents brings clearly into focus that in today's society, when there is a breakdown in the family unit, these children are not treated as gifts but become little weapons that are wielded in disputes.
In divorce situations it is the non-custodial parent, most often the father, and his extended family who are totally cut off from the children they love. In some cases false reports of child abuse are alleged against the non-custodial parent, causing immense pain and frustration to the extended family. The cost of a false allegation can devastate the family of the accused, both financially and emotionally.
It has always been a concern of the GRAND Society that there is no federal legislation in place to protect the rights of grandparents with respect to their grandchildren. There are provincial laws in New Brunswick, Quebec, and Alberta that address the rights of grandparents. In all 50 states in the United States, legislators have passed laws giving grandparents the right to petition the court for legally enforced visitation privileges or custody rights to their grandchildren.
• 1620
We respectfully recommend to the committee that the
Divorce Act be amended to recognize grandparents in the
law regarding custody and access and that grandparents
should not have to seek leave of the court before
making an application for custody and access, which is
presently the case.
We recommend to the committee that where false allegations are raised in an attempt to prevent access to children, the court should view this itself as abuse and take it into consideration when making custody and access decisions.
These amendments to the Divorce Act would hopefully give judges the tools that are needed to make orders that include grandparents. It is in the best interests of children to maintain an ongoing relationship with their grandparents, and it should not be terminated without just cause.
We in the GRAND Society are convinced that these amendments will encourage parties to settle custody and access matters among themselves through mediation rather than have decisions made by judges. Mediation instead of litigation would help to eliminate financial devastation for families and it would cause less disruption and heartbreak for the children. There are thousands of grandparents and non-custodial parents across Canada who have been totally cut off from the children they love.
We in the GRAND Society are hopeful that the recommendations made by this committee will be influential in bringing about these necessary changes to the Divorce Act. We speak for our grandchildren, those silent voices, who are children of the future and the most precious resource we have. There is no greater joy than to be able to love and spoil a grandchild.
I thank you.
The Joint Chair (Mr. Roger Gallaway): Should we move to questions now? We'll begin with Mr. Forseth.
Mr. Paul Forseth: You may be aware that you're not the first grandparents group we've heard from. Even the House of Commons' Hansard record is full of debate around that particular issue with private members' bills, and so on.
I was just struck by your opening statement. You said “special bond”.
Ms. Eileen Britton: Yes.
Mr. Paul Forseth: You used that term.
Ms. Eileen Britton: Yes.
Mr. Paul Forseth: What immediately came to me was “special bond, special law”. That's what you're asking for.
Ms. Eileen Britton: Yes.
Mr. Paul Forseth: The arguments are all there. I don't know if I heard anything new other than the reinforcement of the same concept that says if you have a special bond, then axiomatically it should be followed with a special law.
Ms. Eileen Britton: Yes.
Mr. Paul Forseth: What we need to do now is incorporate that into the balance of the proceedings and see if it will become part of our recommendations again. It has been the recommendations of other contexts, forums, and situations. It remains to be seen what our recommendations will be, but I want to thank you for reminding us again of that special bond.
Mr. Eileen Britton: Thank you very much.
The Joint Chair (Mr. Roger Gallaway): Are there other questions?
Ms. Judy Wasylycia-Leis: Thank you, Mr. Chairperson.
Thank you very much for taking the time to appear before this committee.
You've made a couple of recommendations. One is that we need a specific amendment to the Divorce Act. Second, you say we also need to turn our minds and resources to approaches around mediation and get away from legalistic litigation approaches.
Would it be fair to say that even if we do amend the Divorce Act, unless we're committed to putting in place mediation services, counselling services, parenting courses and all the rest, any legislative change will be meaningless without that commitment in terms of programs and societal support?
Ms. Eileen Britton: That's right. Mediation is I think the most important tool of all. I think also that judges and lawyers should be more aware of just how important it is to be updated on societal changes. Doctors have to take courses on updating things as life goes along, and I think that lawyers and judges should also be more aware of how important it is to be updated on what's happening. I don't think they really fully realize just how important it is for grandparents and what they're missing.
• 1625
Ms. Judy Wasylycia-Leis: The flip side of that is that in fact grandparents could play a valuable service to parents who are separated or going through divorce, and they could play a useful role in terms of support for the children involved. Instead, what you seem to be saying is that the grandparents themselves become used as pawns or tools or weapons in this whole battle.
Is that based on the people you work with, the general experience of grandparents in separation and divorce cases?
Ms. Eileen Britton: Yes, definitely. There's a great many of our little ones out there who are constantly being pulled between the parents, and usually the non-custodial parent...is the one who loses the contact with their grandchildren. It's a very sad situation that occurs, because the children are constantly being used in domestic situations and grandparents are constantly in a position where they're being used too, because if they don't do what the parent asks, then the child will not be allowed to see their grandparents.
There are all kinds of different issues that have to be addressed.
Ms. Judy Wasylycia-Leis: Thank you.
The Joint Chair (Mr. Roger Gallaway): Are there other questions? I see there are no more questions.
I want to thank you for coming, Mrs. Britton.
Ms. Eileen Britton: Thank you.
The Joint Chair (Mr. Roger Gallaway): It's important, I think, and I know your organization is active in many provinces.
Ms. Eileen Britton: Yes, we are.
The Joint Chair (Mr. Roger Gallaway): I appreciate the fact that you have arrived here today to remind us of grandparents. We've had it in every city, and I think it's very important.
Ms. Eileen Britton: Yes, and I thank you very much for hearing me today.
The Joint Chair (Mr. Roger Gallaway): Thank you very much.
It's 3.26 p.m. and we're on time. I think we're going to take a seventh-inning stretch for a few minutes, so we'll suspend for four minutes.
• 1627
• 1637
The Joint Chair (Mr. Roger Gallaway): I wonder if Kathleen Harvey, Ginette Lemoine, and Duncan Croll could come forward.
Senator Anne Cools: Mr. Chairman, I'd like to take just a moment before we call the witnesses.
An article was handed to me just a few moments ago from the Winnipeg Free Press, an article by somebody called Penni Mitchell, headed “Divorce wars heating up”. There are some very erroneous, ugly, and terrible statements in that article, and I would like us at some point, as a question of privilege, to have a discussion about it.
It says here:
I have no recollection of that kind of cross-examination whatsoever. I just raise it as a question of privilege.
The Joint Chair (Mr. Roger Gallaway): Senator, perhaps we can dispose of it with that other matter on Monday.
Senator Anne Cools: Okay. I just wanted to put it on the record.
The Joint Chair (Mr. Roger Gallaway): Thank you, Senator.
A voice:
[Inaudible—Editor].
Senator Anne Cools: Oh, nonsense. Truth is inconsequential. Don't bother some people with the facts at all.
The Joint Chair (Mr. Roger Gallaway): Before we begin, there is a person present whose name I do not know. It was mentioned to me that there's a family law lawyer who wishes to make a three-minute presentation at the end of this session. I would seek the agreement of members.
• 1640
I'm sorry; I don't know your name.
Ms. Rowena Fisher (Individual Presentation): Rowena Fisher.
The Joint Chair (Mr. Roger Gallaway): Okay. Could we have concurrence to allow Mrs. Fisher to speak?
Some hon. members: Agreed.
The Joint Chair (Mr. Roger Gallaway): Okay. Thank you.
Sorry, Mrs. Harvey. Do you want to speak for five minutes, please?
Ms. Kathleen Harvey (Individual Presentation): What I'm going to say touches a little on what the previous speaker talked about. But I'm not representing a group; I'm representing only my family, specifically my eldest son, my husband, and myself—father and grandparents of a nine-year-old child.
My son obtained a divorce in 1989. The baby was very small at that time, and the divorce ruling gave his ex-wife custody of the child. He had access given for one day every second week only, with a verbal agreement that at the time she turned two, he would be able to take her for a weekend every second week.
Soon after that, his ex-wife reneged on that agreement, and it gradually became more and more difficult for him to maintain a fatherly relationship with his daughter. He began to feel more and more like an occasional babysitter. Later on, his ex-wife moved without giving him an address, and although she sometimes telephoned him, he was only able in the end to see his daughter at the times his wife would phone and set up an appointment.
All this time he was mandated to pay maintenance for his child through the Manitoba government maintenance enforcement branch, and he did in fact pay it throughout this time.
In 1996 his ex-wife formed a new relationship and moved to Vancouver without informing him that she was going or where she was going to. She has since contacted him twice by telephone, but she gave him an address that did not exist and no telephone number. It was only by getting reports through her school here in Winnipeg that he was able to find out exactly where she'd moved to and which school his daughter was now attending in Vancouver.
When his wife moved and disappeared, at no time was he able to get any police agency or government agency, or even the maintenance enforcement branch, to help him find out where she had actually moved to. He was always told that although he had court-ordered access to his daughter, in order to enforce that, he would have to go back to court each time. There seemed to be no reason to go back to court if what had originally been given by the court was not able to be enforced.
At this time the North Vancouver School Board, where he had inquired as to whether he could receive reports about his daughter's schooling, said that no, according to their Freedom of Information and Protection of Privacy Act, the reports were the sole property of his nine-year-old daughter and they were not able to release them. This is despite the fact that, as we've learned, through the federal Divorce Act, a father, a non-custodial parent, who is granted access to his child has the right to be given information as to her education and her welfare, and school should by law provide it.
He went on to inquire through the B.C. protection of privacy commission whether that actually covered his case and was informed by Mr. David Flaherty of this commission that they did not feel this act pertained at all to his case or his daughter's case. But he still has not been able to get any information from the North Vancouver school district, although he has since asked them again to provide this.
While he doesn't want to go back to court to try to enforce acts that might disrupt his daughter's life, he would like to have information about how she is settling into her new life. He finds that trying to get her school information would be relevant to him knowing this.
At the time of the divorce, we as grandparents had no legal rights at all, although we are involved actively in the lives of our five other grandchildren and we have made similar financial provisions for all of them. We feel very strongly that when a divorce involves children and does not involve allegations of abuse, at the time of the divorce the judge or a mediator should be an advocate for the child's right to support an interest from and equal access to both parents and both sets of grandparents. The present system seems to be generally adversarial and tends to make one parent or another the winner, without consideration for the fact that the child is better for being loved by both families. It seems to me at the time of divorce the parents are often too hurt and angry with one another to be fair in thinking about their children.
• 1645
We also feel that the court-ordered access provisions
at the time of the divorce should be enforceable across
the country, and should not be separately enforceable in
different provinces without having to go back to court
each time. At the moment, it seems to me that this is
a ready source of income for the courts and the lawyers,
but it's a financial burden for the parents.
I also feel that there should be some deterrence on the ability of custodial parents to impede access to a child. They may be ex-partners but they are not ex-parents, and at the moment a father who does not pay his child support can lose his driver's licence and so on. It seems to me there should be similar provisions for a custodial parent who does not allow access.
I haven't dealt with the divorces that involve allegations of abuse, because our experience did not entail that, but it is our view that the results of the present conflicting provincial and federal legal systems are damaging children—and their parents and grandparents.
The Joint Chair (Mr. Roger Gallaway): Thank you.
Ms. Ginette Lemoine (Individual Presentation): Do I have five minutes?
The Joint Chair (Mr. Roger Gallaway): Yes.
Ms. Ginette Lemoine: I have no notes. I'm just speaking on a situation that's happened with myself.
The Joint Chair (Mr. Roger Gallaway): That's fine. Please go ahead.
Ms. Ginette Lemoine: I'm involved with a guy who has a child from another relationship. With that, it's going to be three years, and it has been a disaster since everything started. The mother, who has custody of his little girl, is proven to be needing psychiatric assessment. She has attempted suicide a few times throughout the years. The Child Protection Centre is involved but yet she has custody of this little girl.
I have involved children's advocacy and the CFS, all in Winnipeg. Because there is no physical abuse, there's no bruising, they will not get involved. But nobody seems to be looking at the mental well-being of this little girl, which I don't understand.
Through the three years I've got to know some other people who have been through the same situation. There's another friend of mine who hadn't seen his little girl for what would have been a year. There are sworn affidavits from the courts that the mother has told this little girl, who is four years old, that daddy died, the dog died, the family dog died.... She just reunited with her dad two weeks ago. What kind of emotional stress is that putting on a little four-year old?
Looking at my situation, I have a daughter with Paul now. She's only a year and a half, but you can tell she feels the stress that's going on from the home, because every two weeks when we have visitation with this little girl, every second Sunday night we more or less have the police at our door. There are always false allegations of some strange stupid thing. We cannot bring this little girl near her grandparents on the paternal side because she's allegedly told the police that they've all threatened to kill the mother. There's nothing in a court ruling. It's her word against the world's because she's the woman, she's the mother, she gave birth to this little girl, she rules; women rule.
I could turn around and call the police on Paul tomorrow because of another issue, zero tolerance, but to me they all go together. If the father is taken away from the house on a domestic dispute, right away he loses his chance of ever having custody of any of his kids. It doesn't matter what's the situation. He has the assault on him, whether it be proven true or false. He'll never have access to his kids. He'll have to spend his entire life savings in court just to be able to see his kids. And we know it's proven that the mothers are not always the best parents.
To me, the law should be changed so that every case should be investigated on an individual basis. And that's not what they're doing; they're just stereotyping. The mother gave birth, the mother gives custody. The mother has the right to do whatever she wants. And I'm speaking as a mother. I could turn around and do the same thing if I chose to, and I would probably get away with it.
I look at some parents, and the fathers are better parents. They'll spend the time with their kids, they have the patience. Not all, but there are a lot of them out there whom I've seen. Yet they've never been given the chance.
• 1650
The Joint Chair (Mr. Roger Gallaway): Thank you.
Mr. Croll.
Mr. Duncan Croll (Individual Presentation): I'm just going to read from my brief and then give you an outline of what my situation has been.
If there's one thing I know to be true, it is this: economic decisions determine social outcomes. The position our government has taken on the issue of child support payments is no exception to this rule.
Unfortunately, in May 1997 when our elected representatives implemented some legislation known as Bill C-41, they either forgot this rule or disregarded it. Whatever the case, rather than considering the long-term implications on families of such legislation, they chose instead to focus their resources in favour of a more politically expedient political agenda, one that relies on the erroneous idea that the most significant role a father plays in child care is expressed through the level of financial contribution he does or does not make to his ex-wife.
This is by no means a new idea. In fact, it is a view that has often been expressed through the actions of the media, the courts and a few select feminist lobby groups. Nevertheless it demonstrates to me one thing, that being a complete inability or unwillingness to deal honestly with the real issue.
Focusing public attention on the character of deadbeat fathers does not alter this fact; it underlines it. You see, contrary to the view of the aforementioned groups as well as our political establishment, fatherhood is about much more than money; it is about a father's involvement and his presence. It comes from the challenges he creates and the guidance he provides to overcome them. It comes from the love, the respect and the understanding that underlies every caring act he bestows upon his children. Reactionary policies such as Bill C-41, which aim to widen the net of social control, heighten the level of systemic discrimination and further scapegoat men, serve only to undermine this relationship.
Some of the more tangible ways in which this occurs I will now describe in the hope that you will come to understand not simply this act's impact on the father, but the consequent impact upon their children and society at large.
To begin with, Bill C-41 takes away a much-needed tax deduction to fathers, which had been in consideration of their post-contribution financial status. Our government tries to justify this by equating dual-household families with single-household ones as if they were one and the same, when in truth they know they are not. Then to add insult to injury, they set arbitrary guidelines for child maintenance without taking into account the expenses that result from the fathers' own participation in their children's lives.
Although they do all this under the pretence that it serves the best interest of the child, ultimately it does not; in fact, it does precisely the opposite. By further supplementing the incomes of single mothers, most of whom in this day and age are themselves in the workforce, you are in consequence financially disempowering the already tenuous relationship most single fathers are allowed to have with their children. Not only is this done with total disregard for the true nature and depth of a father's paternal commitment, but it completely ignores the vital importance this attachment has on nurturing a child's development.
As the situation now stands, fathers are already facing substantial disincentives to full involvement in the lives of their young, from vindictive, self-centred emotionally irresponsible ex-spouses who are more concerned with playing out their own control dramas than with serving the best interests of their children, to a gender-biased family court system, which seems incapable of recognizing the important function a father plays in developing a strong, well-adjusted, emotionally responsible and productive adult.
On a political level, the lack of any legislation that would preclude the relocation of our children while guaranteeing their right to a minimum level of access to their father immediately upon separation means that those who choose to act on their children's behalf also have to face the indignity and extraordinary legal expense of a court battle. In most cases, for those who can afford this course of action and for some of us who cannot, our chances of becoming joint and equal custodians, sharing in decisions that guide the direction of our children's lives, are minimal at best.
• 1655
Usually, we are relegated to the role of babysitter or
big brother, with little or no ability to positively
influence the course of our children's development other than by
our presence. Unfortunately, our courts are not even
above violating this basic trust, as they have often
been found using their wide range of discretionary
powers to place arbitrary and unjustifiable limits on
conditions of access.
This does not make for effective parenting. It undermines it. In most cases, these added restrictions create a situation where many potentially good fathers find themselves unable to provide both quality time and discipline to their children. Some cope by playing the role of Good-time Charlie, making the best of the limited time available. Others, who find the whole dynamic of their relationship compromised, leave. To the extent that our government continues to deprive fathers of the resources through which to exercise their full capacity to parent, they contribute to this outcome. In the process, they put more children at risk. In no way do I find this acceptable.
For children to acquire a belief in their own ability to explore the widest possible horizons of their physical, psychological, social, intellectual and spiritual worlds, they must first be provided with a strong sense of their own identity. In order to obtain this, children must be permitted to benefit from the accumulated wisdom and experiences of those who pass before them. I see this as a child's right of birth. In defending it, I act with a firm conviction that to separate children from their fathers is to deny them the very resources they need to confidently access the opportunities in their lives and discover their own potential.
The Joint Chair (Mr. Roger Gallaway): Are you almost finished? You're just a little bit over time.
Mr. Duncan Croll: Yes.
I do not look forward to appreciating what devastating consequences the loss of this heritage can effect when taken to the logical extreme. You need only witness the high rates of infant mortality, teenage suicide and alcohol-related deaths that are the legacy of the Residential Schools Act on Canada's aboriginal community to evidence this.
Closer to home, all you have to do is investigate much of the current research that relates to the subject of absent or distantly involved fathers to realize that it is the largest correlating factor in the incidence of juvenile deliquency.
On a more personal level, I grew up without a father. Given my experience, I know only too well the magnitude of the loss and the consequent impact it can have on a child's life.
So rather than drafting legislation to further alienate them from their fathers, I suggest a federal alternative for government intervention would be to devise child support guidelines that could facilitate paternal involvement. These guidelines should reflect a level of payment consistent with the expenses of a non-involved parent, to be scaled downward respective to degree of participation and incurred costs.
In addition, I recommend that conditions of separation be established to include minimum access requirements and joint custody provisions. Not only does this ensure a more stable transition for the child, but it might also preclude some of the embittered custody disputes that currently plague our justice system. This, in turn, can provide the foundation upon which more fundamental change may occur.
At present, legal aid and other associated court costs represent quite substantial expenditures for the government as well as for the people involved. By refocusing these federal resources and legislative priorities toward proactive initiatives such as post-separation counselling, shared parenting agreements and post-divorce third-party arbitration, much of this could be avoided.
The Joint Chair (Mr. Roger Gallaway): Thank you very much.
Are there any questions? Dr. Bennett.
Ms. Carolyn Bennett: I was interested in the last part of the presentation when you talked about post-separation counselling. Have you any experience with that?
Mr. Duncan Croll: I have taken some post-secondary courses at the Interfaith Marriage and Family Therapy Institute. Apparently, they do some of that, and I highly recommend that particular group of people.
• 1700
Ms. Carolyn Bennett: When I was in family practice, one of the interesting things was that there were certain counsellors who were good at marriage counselling and then there were some really skilled people who were good at separation counselling. Usually we had to tell people that we were actually choosing to send them to one or the other. If there was absolutely no real chance of reconciliation, they might as well be sent to someone who was good at that.
Do you think we would be better, when people have actually decided to separate and even before they have come to divorce, to provide a team of people who could be accessed? As well, do you think the government should pay for that?
Mr. Duncan Croll: In terms of the resources we're currently putting towards both legal aid and the court system itself, once you take the system.... Right now, fathers are fighting an uphill battle. If you have as a default a system whereby there is automatic joint custody, and if you have to fight, you have to fight away from that, and there is a minimum level of access to the non-residential parent of maybe three weekends per month or something like that, then once you have that default in place, I believe the level of fighting in court will go down, and therefore the level of aid the government is funnelling money into will go down, and the court costs themselves will go down.
When you take the money from that, which is a reactive system, and you put it into more proactive policies, such as these particular things, you're doing something positive.
The last part of those three things I had mentioned, post-divorce third-party arbitration, would be something whereby if there is not a legitimate reason for continuing this battle, the party responsible for it is made to pay the full court costs or a certain percentage, depending upon your degree of responsibility. You have to put something in place that will motivate people away from the courts as opposed to necessitating people into them.
Does that answer your question?
Ms. Carolyn Bennett: Great. Thank you.
The Joint Chair (Mr. Roger Gallaway): Thank you.
Mr. Forseth.
Mr. Paul Forseth: Thank you.
I want to make a comment to Ginette.
You mentioned the zero-tolerance policy. Sometimes the unforeseen effect of that is a zero-fairness policy. Well-meaning action at least has a negative potential.
I would encourage the fellow you're with, the father of the child, to keep on marching in terms of increasing involvement with the child, protecting the child's interests, and working with whatever agencies exist, as imperfect as they are.
Ms. Ginette Lemoine: But because there's no physical abuse, no physical bruising, they've more or less told me there's nothing they can do.
Mr. Paul Forseth: That's one worker. But the thing is—
Ms. Ginette Lemoine: But I've been to CFS. I've been to the children's advocacy.
Mr. Paul Forseth: —these are not one-time situations. You have to be vigilant on behalf of a child. That's the role of a parent.
Ms. Ginette Lemoine: But I've called—
The Joint Chair (Mr. Roger Gallaway): Ms. Lemoine, perhaps you should let Mr. Forseth finish.
Mr. Paul Forseth: In a situation where you were discouraged to seek help or whatever one month, you may be met next month with a new set of circumstances. You have to keep careful records. Keep notes. These things are sometimes very difficult for a social service agency to get hold of.
In British Columbia, the social services and child protection agencies made international headlines by their inability to respond. It is difficult for a bureaucracy to respond to the intricacies of a family. There are the accusations on the other side, and Big Brother coming in and destroying families by apprehending too quickly, and all of that.
• 1705
I suggest the father just keep doing the best he can,
work with whatever agencies there are, and keep good
documentation, because some day he may become the
day-to-day responsible parent. Do not give up, because
the child needs a dad and he must be there regardless.
The emphasis should be on his role as a parent to
protect the interests of the child and be the best
father he can. He shouldn't spend energy fighting
agencies, but concentrate on being the best dad he can,
which involves that parental protective role.
That's just a comment of encouragement to you. Systems are difficult and imperfect, but they're all we have.
Ms. Ginette Lemoine: Out of curiosity, what do you tell a little girl who knows her mother uses her as a pawn and says “You'll see your daddy when I see money”? They've garnished everything. He has no income, yet this little six-year-old knows she's a pawn. How do you explain that to a little girl?
Mr. Paul Forseth: Sometimes you don't explain. You just say, “That's the way it is. We can't worry about what's over there, but while you're here we love you and we're going to do the best for you.” There are limits.
The Joint Chair (Mr. Roger Gallaway): Thank you, Mr. Forseth. I want to thank Ms. Harvey, Ms. Lemoine and Mr. Croll for coming. Mr. Croll, we notice you have your son with you. We haven't seen enough children this week. Thank you all for coming.
I would like Ms. Fisher to come forward. We appreciate the fact that you have come. It'll have to be brief, unfortunately. I understand you are a lawyer in family law practice.
Ms. Rowena Fisher: I was called to the bar in 1991. I do family law with a small firm. My clients come from all areas of the social strata.
The first thing I'd like to say is these hearings were not well publicized. I didn't see anything in the newspaper as to where they were being held, and I'm sure other people who would have wanted to make presentations haven't come because of that.
There are certain areas I think the committee should be looking at. I'm not going to give the answers, but I'm going to point to areas where I think you should be looking further.
First is legal aid funding and how this affects custody and access dispute resolution.
Second, in Manitoba you should be getting a report or some input from our family conciliation branch in terms of what it does in the areas of parent education—you heard the For the Sake of the Children program mentioned this morning—mediation on custody and access issues, and assessments.
The third place you should be looking for information is the family law branch. Somebody made a reference this morning to what happens if your child is abducted. You would hear in Manitoba what happens if somebody makes a complaint to the police that the child has been abducted, in terms of possible charges under the Criminal Code and what the family law branch here can do for people in that situation.
Also, with respect to the family law branch, you should be looking to it to find out what the charging policy of the police is in terms of zero tolerance. This is an area I practise in, but my understanding is that the police still have to have reasonable and probable grounds, as they do in making any charge. The only difference with domestic violence is there isn't the discretion left in the complainant to pursue the charge—the charge must be pursued. I'm saying, go to the family law branch and find out what the reality is.
The committee shouldn't lose sight of the fact that today there is a variety of families. You have people who are married, unmarried, and have children by multiple partners. It's not a case of somebody getting married, having kids and getting a divorce. You have all sorts of permutations, and the dynamics that come from them are very different. I appreciate this is a federal committee and what you're looking at isn't divorce, but everybody didn't get married and so the dynamics are very different.
• 1710
I've heard a lot of references to whether these people
got divorced. You start court proceedings in Manitoba
by way of a document called a petition for divorce or
by way of a petition. Obviously, you can't file a
petition for divorce if you weren't married, but you
can file a petition whether you were or were not
married.
The reason a petition is filed rather than a petition for divorce—there's no great magic—is often for practical things. For instance, do you have a marriage certificate and therefore can get the names right in order to file a petition for divorce? Are you in such a dreadful hurry that you can't wait to get the marriage certificate from vital statistics?
The other reason you may not file a petition for divorce in a marriage situation is that it may escalate the problems between the parties. If I file a petition for divorce, he's going to get very angry, and you just don't do it. If the parties don't reconcile, the divorce is actually just the whimper at the very end. The custody and access things are what takes the time.
Just listening this morning, if I were an outsider looking in, I would think these allegations of sexual abuse were rampant. I don't think they are. It certainly hasn't been my experience in family law since 1991.
Somebody made another comment about how long it takes to get through the court process. Unlike civil cases, delay in family matters is not necessarily bad. Sometimes you have a lot of emotion at the very beginning. People don't know the person they've been married to for the last twenty-five years, and everything is in turmoil.
Sometimes you can resolve things by agreement on an interim basis, where you go before the court for an interim order. Sometimes the delay at that point is very beneficial in that people get into a pattern, things calm down, and ultimately the whole thing is settled by way of agreement.
If you rush those people through to trial, you would have a trial because things are still in tumult. You have to be careful to not make the generalization that lack of speed is not beneficial. Sometimes it is beneficial.
The Joint Chair (Mr. Roger Gallaway): Ms. Fisher, your time's up.
Ms. Rowena Fisher: Two quick ones.
The Joint Chair (Mr. Roger Gallaway): Okay, quickly.
Ms. Rowena Fisher: Families look at the undue hardship of the guidelines. You can get reports on the kids through the FMA and also through the Divorce Act. Somebody mentioned you couldn't. There is a child custody enforcement act in Manitoba to enforce orders through the other provinces. I think you should be careful about what you're looking at. If people refer to joint custody, what are they really talking about? You have to get down to the time parents are spending with their kids, not what label you put on it.
The Joint Chair (Mr. Roger Gallaway): Thank you very much. How did you find out about the committee?
Ms. Rowena Fisher: I'm actually on the Manitoba family law section of the bar association. I knew about it through my involvement with the group, but I didn't see it.
The Joint Chair (Mr. Roger Gallaway): I should tell you it was advertised in a certain fashion. Also, the letter was sent by my colleague Senator Pearson and me to the Attorney General of Manitoba. We had some groups here today who are provincially funded and were also complaining they weren't aware of it. Interestingly, yesterday there were a number of people in Regina who knew about it because they had read about it in McLean's magazine and the Globe and Mail.
Ms. Rowena Fisher: I think it would certainly have been helpful if it had been in the local paper. I didn't see it.
The Joint Chair (Mr. Roger Gallaway): It may have been; I can't tell you. Thank you.
Senator Anne Cools: Our powers don't extend yet to controlling the newspapers.
The Joint Chair (Mr. Roger Gallaway): Next week, Senator Cools. Nor do they extend to provincial legislatures.
Senator Anne Cools: You raised one very important aspect, which is the provincial takeover of these issues. As she said, the divorce at the end is a whimper. The provincial jurisdictions have really encroached for quite some time, so we should look at that at some time.
The Joint Chair (Mr. Roger Gallaway): Thank you very much.
We've come to a very sad point in the day.
Senator Anne Cools: Is it over?
The Joint Chair (Mr. Roger Gallaway): No, we're coming to our last grouping.
I would ask Mr. McKenzie, Mr. Anderson, Mr. Goldhawk and Mr. MacKay to come forward. Members will notice there is another name, Mr. Densmore. I don't know if he is here, if he didn't register or what.
• 1715
To our witnesses, I don't want to be talking here
about this. It's been a long week, if I can put it
that way, and somebody has to be last. So we're glad
you're here.
We'll begin with Mr. Goldhawk.
Mr. Dave Goldhawk (Individual Presentation): Thank you very much.
Ladies and gentlemen, I'm very grateful to have this opportunity to speak here today. It's my hope that this committee will initiate new legislation and revise existing laws so as to prevent what has happened to my children, my family and me, and others like us from ever happening to anyone in the future. We are victims of the current legal and social services system.
I would like to let you know first of all that when my separation first occurred, I was granted access to my two children for six out of seven days. This continued for a period of six months. I then appeared again in court on issues of custody. I was granted an increase, again, particularly for Christmas access. As a result of this, that very evening, following that court hearing, false allegations were laid against me.
False allegations are used as a legal tactic to create victims of horrific consequences all for the greed of winning a legal dispute, revenge, or the justification of insecurities on the part of the accuser.
False allegations of sexual abuse of one's own children is catastrophic. Psychological damage to innocent children so cruelly being used as legal pawns is unimaginable. Yet legal and social services continue to place the children into the care of those persons who are willing to maliciously make their own children victims where no crime has ever occurred. The humiliating and degrading physical examinations, emotional and psychological damage, and stigma that might be applied to them will last a lifetime.
Social services have guaranteed answers to keep their own consciences pure. If the child confirms any of the allegations that are made, it must therefore be true. If the child were to deny any of the allegations made, the child must be protecting the accused, and thereby the allegations must also be true. Even when there is no independent support of the allegations, a person is guilty even when cleared of the charges in criminal court.
Fighting the false allegations in criminal court cost me personally $8,000. I was humiliated by being arrested and processed as a criminal before I was allowed my own rights. Within 30 minutes, after a preliminary hearing, the charges were dismissed. Yet these results didn't have any effect in the family court. This is in fact where facts are not necessary and the probability is made a court jester.
False allegations of sexual abuse have destroyed my personal life.
Financially, legal fees forced me into bankruptcy. Despite having assets of over $100,000—I earn more than $40,000 annually—I pay 50% of my net pay for child support. I have no disposable income to pay for a lawyer, yet I earn too much money to apply for legal assistance. At the same time, my ex-wife earns more than $60,000 and has a family income of more than $110,000.
The social stigma of allegations also knows no limits. My career as a provincial team coach and coaching instructor was destroyed. The volunteer work I did as a leader for Cubs and Beavers ended when Scouts Canada was being pressured by my ex-wife. Developing any new personal relationships where children are involved is also impossible.
My emotional and psychological damage has resulted in lost wages and career opportunities. It has intimidated me from continuing the legal struggle to protect my relationship with my children. I have not been able to have contact with my children in the last two years. I'm entitled to access, but I cannot even afford my own groceries, let alone the costs associated with supervised visits or further expensive court hearings.
Currently, legal and social services permit false allegations without penalty. Current statistics will not be able to tell you that people who do not want to attempt custody or access act out of fear of what has happened to family units like my children and me, fear of the strong political lobbyists who continue to pursue their own interests through the disguised interests of “children first” and those who support them.
• 1720
It's horrific enough for children to deal with their
parent's separation and divorce. They, along with the
accused, become victims the moment false allegations
are made.
As long as this is condoned, allegations will continue to be a tactic used for contested access and custody. The very system that claims to have the interests of children first is in fact condemning those children to the care of the persons who would use them and victimize them for their own personal gain.
Our lives have been shattered and destroyed by this very system. Please, for the sake of the children and those who truly care for them, protect those who are innocent from those who are not.
Thank you.
The Joint Chair (Senator Landon Pearson): Thank you very much, Mr. Goldhawk.
Mr. Dennis McKenzie.
Mr. Dennis McKenzie (Individual Presentation): We have a brief submission. In the event that we don't have time to get through it, would the committee consider placing our submission into the record as read?
Senator Anne Cools: Sure.
The Joint Chair (Senator Landon Pearson): Yes, okay.
Mr. Dennis McKenzie: We'd like to thank the committee for providing us with the opportunity to contribute to your deliberations as you examine the problems of custody and access during divorce proceedings.
My name is Dennis McKenzie and my associate seated here today is Ross MacKay. Both Ross and I are fathers who have been going through the experiences of having serious criminal allegations made against us during divorce proceedings. These allegations were developed solely by our ex-wives with the assistance of their lawyers, who developed false affidavit materials that accused us of child abuse and domestic violence. Like many other fathers we met through our association with Parents Helping Parents, these allegations were made against us without any substantiation from either child welfare or police authorities.
The committee has allowed us five minutes each to present our views. We will be combining this time to provide you with a joint presentation. Mr. Anthony Antonowich has also asked us to represent him here today. Together, we three fathers have joined our stories together to make a joint complaint to the Law Society of Manitoba regarding the conduct of lawyers involved in our cases. This is because, as individuals, we know that the law society would dismiss each of us and do nothing about the perjured testimony that was placed before the courts to deprive us of access to our children.
We've examined the law society complaint digests going back to 1985, and we can advise the committee that the only ethical breach ever dealt with by the law society is the act of lawyers stealing money from their clients. Stealing children through the act of placing false and unsubstantiated allegations before the court is not recognized as a problem by lawyers.
I'll provide a brief overview of the three cases to the committee.
The first father was separated from his wife in 1997. He was accused in affidavit materials of sexual deviance and domestic violence, as well as the sexual and physical abuse of his children, though none of these offences were reported or investigated by child welfare or police authorities. This father spent $12,000 in the first year of his divorce for legal services. The allegations have succeeded in causing the court to deny regular overnight access with the children and have established status quo custody for the mother in this case.
The second father was accused of being violent and sexually abusive toward his wife in January 1997. These offences were said to have been committed while he was sleeping. He was also accused of being physically abusive with both children and of sexually abusing his four-year-old daughter.
None of these allegations were corroborated by child welfare or police. Nevertheless, this father spent $15,000 in the first three months of his divorce proceedings in an effort to protect himself from the allegations. The allegations caused the court to impose professional supervision requirements on visitations, which was restricted to eight hours per week. Status quo custody was established by the mother in this case as well.
In addition, attorneys for both parties consented to an amount of child spousal support that exceeded the father's take-home pay. Although maintenance enforcement took his entire paycheque, the father continued to go into arrears. Although this father earned $30,000 per year, his basic rent and food costs were paid by welfare in the city.
When federal child support guidelines came into effect, this father applied to the court to have support payments reduced to the guideline amount, which would have reduced the amount paid by $1,500 per month. The court, however, refused to hear the case, and it changed the support payment before the trial of the matter.
• 1725
This case went to trial in March 1998. The judge did
repair some of the damage. She ordered non-consent
joint custody in this high-conflict case, eliminated
supervision of visits, and reduced support payments to
the guideline amount.
We have attached to our submission a copy of this decision for the committee. The decision is under appeal by the mother.
The third father was accused of sexually abusing his daughter in September 1995. The girl was brought to a Child and Family Services employee for abuse treatment. The CFS employee subsequently posed as a formal representative of the CFS opinion, without legal representation or a supervisor's approval. Her job description did not include investigation of abuse allegations. She also attended all court proceedings as support for the mother by sitting in the hallway and waiting for word from the mother.
The lawyer for the mother assisted the CFS employee in preparing affidavit materials and presenting them to the court, as a serious breach of procedure. All CFS employees who present an opinion on behalf of the child welfare authorities are represented by legal counsel for that agency. In affidavit materials, the CFS employee claimed that the police had believed the man was guilty, when the police have no record of ever speaking to her.
The police further testified that they had never formed the opinion that the man was guilty of any offence. This father submitted to two polygraph tests—one of those administered by the police officer during a three-hour process of interrogation. In fact, four police officers will be testifying at this man's trial that they believe he is innocent of all allegations.
Father number three is now in his third year of defending himself of the allegations made against him. His case is finally going to trial in May 1998. He has been restricted to supervised visits since the ordeal began, has spent $20,000 in legal services, and has spent $12,000 for supervision costs.
This father has made a formal complaint against his own lawyer and the lawyer for the mother for facilitating the perjured testimony of the CFS employee. This is the only case the law society proceeded with, and his former lawyer has requested two extensions without responding to the charges made against him.
I now turn the presentation over to my colleague.
Mr. Ross MacKay (Individual Presentation): Though divorce and custody proceedings are often fraught with hostility and bitterness between the parties, such proceedings are made worse by the lack of integrity routinely demonstrated by lawyers. Parents Helping Parents has attempted to assist families experiencing the trauma of divorce, and it is a compelling argument for legal reform when we must advise individuals that the most dangerous problem they face is the unethical conduct of lawyers who practise family law.
We have spoken with a highly placed official in the Ministry of Justice in Manitoba. This person said they were sick and tired of the garbage in the family law system. If you were in the criminal or civil law system you would not be exposed to this treatment.
We have also talked with one of the ministers in the Manitoba government and advised him of our complaint to the law society. His response was, “It's about time someone did something like this. Do you know how many guys I've had in my office crying their eyes out about what they are going through with false allegations?”
From these comments from government officials, it would appear to us that they are aware of the problems and are not happy with the current system.
The law society has done nothing to address the problem of lawyers who place unsubstantiated allegations of criminal activity in the affidavits of their clients. It has consistently refused to acknowledge that the uglier, dirtier and messier a family law matter becomes, the more profitable the case becomes for the lawyers involved. It has become common practice for lawyers to develop affidavits on behalf of their clients describing criminal activity that has not been investigated by the proper authorities, or where criminal charges have not been laid. Lawyers for both parties increase their fees 10 times when the allegations arise in divorce.
Child abuse and domestic violence accusations have the effect of ensuring custody to the accusing party, and often submit the parenting relationship of the accused to severe restriction and supervision. These accusations poison the divorce process and create scenarios where the accuser is completely empowered, while the accused is denied any rights at all.
The allegations often cause a case to be delayed for years before trial, which also creates a substantial status quo of custody that is impossible to overcome. Making false allegations is therefore very advantageous to the accuser, who risks no punishment if found out.
It is not uncommon for falsely accusing mothers to retain custody of the children just by virtue of the status quo. We are therefore rewarding bad behaviour and encouraging it by our failure to respond to it.
The law societies have rules that specifically address lawyers who place false allegations before the courts. They are never enforced. As a result, such allegations are retained in family court and nothing is done to censor the perpetration of fraud upon the courts. Placing perjured evidence before the courts is rampant practice and has deeply eroded the respect owing the court. It is also impossible to ignore the hatred and scorn heaped upon lawyers as the grade of dishonesty of the many who have now overtaken the ethical conduct of the few.
• 1730
Law societies made up of lawyers are unable and
unwilling to police their own conduct. Most complaints
are dismissed by the law society under the theory that
most people will go away after the first rejection of
their complaint. False allegations have become so
profitable to the accusers and to the lawyers that we
as a society must intervene and end this highly
damaging practice.
I will now provide you with a list of our recommendations.
Number one, we support and applaud Senator Anne Cools' introduction of Bill S-12, which would make the placement of false allegations before the court a criminal offence and punishable by law. Only criminal sanctions will end the practice of lawyers placing unsubstantiated allegations before the courts.
Number two, we recommend that the Divorce Act be amended to enhance the friendly parent rule so that mothers who make false allegations are not rewarded for their behaviour, and that courts be instructed to award custody to the parent who has not placed false information before the court.
Three, we further recommend that the Divorce Act be amended to include a provision that instructs the court to reduce the weight given to the status quo of custody when it has been determined that false allegations have been made by the custodial parent.
Four, we support the presumption of joint custody, as this will reduce the imbalance of power between custodial and non-custodial parents. It is this imbalance that has caused a 90% rate of maternal custody in Canada and given mothers the power to dictate post-divorce relationships between fathers and their children. This is the imbalance that has created the pathology of false allegations, as more mothers are committed to completely eliminating fathers following divorce proceedings.
Thank you.
The Joint Chair (Senator Landon Pearson): Thank you very much.
Mr. Kris Anderson.
Mr. Kris Anderson (Individual Presentation): What we have before us today is an enormous problem of immense proportion that we're starting to hear about; it's remarkable. I'm very surprised at the number of people here. I read information about it in magazines and the newspaper off and on.
Thank you very much for taking the time. I don't know how much I can thank you. Hopefully this goes a lot further than how it's been so far, anyway.
I'm a 37-year-old Caucasian male. I'm a spray-painter at Motor Coach Industries. I work hard for a living. I have three daughters; two of them were present here just a short while ago. My wife recently gained custody of them. For the life of me, I don't know.... Nobody here so far has mentioned this, but these children are being treated, as far as I'm concerned, like material objects. I get nowhere when I talk to anyone; it's just incredible.
I've been separated since January 19, 1998. There were charges at the beginning. They were dismissed, as were the charges against these gentlemen.
The idea we have before us today is shared parenting. As far as parents are concerned, you have to nurture your kids and love them. The justice system in this province is just heinous; it's barbaric. The main thing we have to get onside here is the authorities. Basically you have Child and Family Services, you have the justice department—everything seems to go awry. There's nowhere a male can turn to for help or advice or anything. The gentleman here before me just said, with legal aid and that, it can run you into the ground; it's just unbelievable.
You go over the whole case with the authorities, and it's just like talking to a wall. You have no history of abusing your children or anything, and yet your spouse is allowed to go and do whatever she wants and life goes on, it seems. The children are affected in such a way that they'll never grow and change; it's just unbelievable.
I'm somewhat flabbergasted by the number of people here. I've even cried over this by myself, and I've lost time from work. All kinds of things have come at me just like an atomic bomb. I don't believe I'm part of this. In fact I'm the only one here who looks like a biker, but I'm not; I'm a loving, caring father who wants to go nurture his children and love them. But I can't. My wife is a cold, calculating woman who just wants nothing but her way, and that's it. I have tried over and over again with the authorities, and it seems that there's no where to go. There's money. If you have money you have a bigger voice, I suppose, but at the same time it does absolutely nothing so far.
• 1735
This shared parenting idea is a concept, I suppose, but
it's a name only so far. If it's to become
anything that could do any good in the system, it has to
be practised. My company changed its name from Motor
Coach to Motor Coach II, and that's just a name change.
Shared parenting as opposed to sole custody has its place in this country and I believe it will do an enormous amount of good. Children are being alienated from one parent or the other—normally it's the male—and there just doesn't seem to be a good reason for it. I don't understand it. I run into roadblocks all the time. It's heinous.
At the same time, I read an article in the Winnipeg Free Press last week. It showed me the male suicide rate as opposed to the female suicide rate. I'm not sure if anyone read it, but during the same time period there were 20-some males who took their lives as opposed to 4 females. I'm not saying that they should be equal—there shouldn't be any suicides—but I'm sure if we were to do an in-depth study we'd find that some of those suicides are attributed to custody battles, court battles, ones that originate through marriage and divorce.
There's no need for that. If people had heart and showed each other that they cared, we'd all have a better world to live in. It seems so cold, and I don't understand. It's really pitiful.
We live in a democracy, from what I believe, and I'm beginning to believe it's a dictatorship. You're told what to do. You're alleged to have done things. You're up against the wall, and there seems to be nowhere to turn, especially the children. You have the courts right now, and you get one parent pitted against the other. Nobody wants to drag the children into this battle, but at the same time, their opinion and their word to me is very important. I've never heard of anyone ever consulting with the child or asking them anything at all and listening to their opinion, especially through Child and Family Services—and any other authority in this province, for that matter, and this country.
The Joint Chair (Senator Landon Pearson): Mr. Anderson, could you come to your recommendations, please.
Mr. Kris Anderson: Yes, I'm rambling on, I'm sorry. Forgive me.
As I said before, and I repeat, we have a problem of enormous proportions here, and God bless you for taking the time to try to do something about it. I'm not aware of what the bill contains or whatever you're proposing, but I trust that it's going to improve things a slight bit. Thank you for your time.
The Joint Chair (Senator Landon Pearson): Mr. David Densmore, who was a little late coming to the table but who's now here, has five minutes.
Mr. David Densmore (Individual Presentation): My apologies to the committee for not realizing that I was going to be presenting today. Thank you all very much for being here, and especially to Senator Cools for all the work she's done on behalf of fathers who would like a little support from Parliament.
I'm going to jump to my recommendation first. I've boiled 10,000 hours worth of research and effort into one recommendation. It is that there be recognition that there are different types of divorce. Not all divorces are a simple family breakdown. I'm going to give you a little bit of body to what I mean by that and then summarize it, and I'll be under five minutes.
A type 1A divorce is a simple voluntary withdrawal. That's when one spouse decides to pack up and leave. A 1B is a voluntary withdrawal with an explanation. Perhaps one spouse finds himself upset with his wife's habits and arguing with his wife and decides not to submit the wife or the children to that sort of circumstance and wanders away, but is not really looking to leave the family, just wants a cooling-down period.
• 1740
The difficult type of divorce is a reverse separation,
where one spouse is asking the courts to kick the other
spouse out of the home and separate him from his
children. There are two of these. A 2A is a
reverse separation with cause. The spouse who is
supposed to leave the home might have a problem that
really makes the home life impossible.
The type 2B, which is the one that I think is causing most of the problems and one I think you've heard a great number of people here today talk about, is a reverse separation without cause. This is where one of the spouses petitions the court through a lawyer—who can be very clever about how she goes about this—to remove the second spouse, usually the father, from the home and separate him from the children. And really, there's no valid reason for this.
By recognizing the type 2B, the reverse separation without cause, as an illegal form of separation, something that cannot be tolerated in our society, we would eliminate a great deal of our problems. There are other ways to resolve differences between spouses without actually going through the process and the pain and the expense of divorce.
I see the type 2B, the reverse separation without cause, as an assault through the legal system on an innocent spouse and the innocent children. I'm willing to recognize the lawyer who files sometimes false affidavits, and the judge who may make an interim order giving a legal substance to that reverse separation without cause, as accessories to that assault against the innocent father and the innocent children.
I look at the cost to the taxpayers, the cutbacks to the health care system and the education system, as costs directly attributable to the draw on the public purse that unnecessary divorces are creating. One of the things that no one seems eager to do is to present a thorough cost-benefit analysis of divorces. When that happens, they will find the cost of divorce—and this is just to the taxpayers—at somewhere between $250,000 and $2 million per divorce. That money has to come from somewhere, and unfortunately, I think it does come from the health care and the education systems.
I'll tell you a little bit about my case just because everybody seems to have something to say. My wife was having an affair with her minister, who was married to someone else at the time, and in order to devote more time to this gentleman she refused to work and contribute to the family. So her income went from $45,000 a year to $15,000 a year.
When I perhaps became a little impatient and suggested that maybe she should have her affair on a part-time basis and work and contribute to the family on a part-time basis—I was being very liberal at the time—she did contact a lawyer and had me kicked out of my home. It's been four years and I have not been allowed to state my side of the story.
That's all I have to say.
The Joint Chairman (Senator Landon Pearson): Thank you very much.
Questions? Dr. Bennett.
Ms. Carolyn Bennett: Earlier today we had a psychologist present who, with her peers, does assessments. What seems telling about most of the cases that we heard of, which seemed just so unfair, is that the partner is unwell psychologically; earlier today we heard them described as personality disorders. It just seems to me that if we could label the people—not on a gender basis at all—who are unwell when it comes to their behaviour around separation, that it is indeed a personality disorder or worse, it would just shine a light on what's actually going on.
Would you describe whether there has been an assessment or whether there could be a psychological assessment of the situation? I don't think any of us would be upset having an assessment ourselves in this situation. What is the obstruction to just getting the facts in that kind of way?
• 1745
Mr. Dennis McKenzie: I can only speak from personal experience and my own opinion. I've had an assessment done, and I was the one who had it ordered. Everything that goes to the courts, though, is pretty much favoured toward the woman. They get who they want.
At these assessments, the psychologist can be and is lied to by one of the parties, generally. If they're not willing to do the work to find out who's lying and who's not, you're going to be left with an incomplete assessment being done and, of course, a poor report being brought back to the courts.
Ms. Carolyn Bennett: So it really is that in your situation it was a poor report.
Mr. Dennis McKenzie: It wasn't a really poor report. It was one of the better reports, possibly, by this woman, but done without her checking on some of the pertinent information.
Ms. Carolyn Bennett: It wasn't a thorough report then, right?
Mr. Dennis McKenzie: It wasn't very thorough, no. It could have been much more thorough, and I would have been in a much better position if she had checked the information.
Ms. Carolyn Bennett: Did you hear Dr. Golfman's testimony today?
Mr. Dennis McKenzie: No, I wasn't here to hear Dr. Golfman.
Mr. Ross MacKay: I did. I've personally gone through an assessment. One of the things that kind of lashes out at me in this experience is that a key word we often hear is “dysfunctional”. There are lots of families out there, though, who are dysfunctional but who aren't put under the magnifying glass by the legal system, because they're not getting a divorce.
Suddenly you're into a divorce process and you're under this magnifying glass, and if you breathe wrong you're in trouble. In a certain sense I think we go too far. Mankind has been here for x years, and we've survived this long. Why all of a sudden do we have to magnify every little detail, dig up every little piece of garbage, to try to say one parent is worse than the other or whatever, instead of acknowledging that children need both parents? That should be the key focus, not which one is going to be the absolute best and that the other one is just a hunk of junk to be discarded.
In my case I haven't seen the final assessment, but I believe it's going to come back as very good. The second time I was there, the psychologist was disregarding the allegations against me. She said this doesn't add up. Abused children don't want to see the abuser, and mine were constantly talking about how they wanted to come and see me. It was strictly a weapon that was used.
Fortunately, when we got into the court system we had a very good judge, who said to my ex and her lawyer, “If I give this man unsupervised visits, who's going to protect him from you two?” This was a very good judge, and he said, “He needs supervised visits for his own protection.” He did order assessment, which we knew was going to happen, because it was so bizarre.
Once we got in front of this judge it was very good, because he was a very good judge. I was rather fortunate. Other people I talked to didn't have the same outcome I did.
One fellow brought up suicide. I had a cousin recently commit suicide, and part of it, the family believes, was the constant losing in court, in front of one particular judge as a rule. He wondered why this judge hated him so much. It wasn't a question of him; it was that he was the wrong gender.
Ms. Carolyn Bennett: Right—
The Joint Chair (Senator Landon Pearson): Does someone else have a comment?
Ms. Carolyn Bennett: Sorry. I was just going to say that's something the committee is hearing about a great deal—the great disparity in terms of judges and the sort of serendipity of who you get. I guess there has been an interest in having a special court with judges who are particularly interested in this area—making sure they're always available.
I have to say I was very impressed with Dr. Golfman's approach, which is to always have two people so that you get two different perspectives. Sometimes there are people who just rub us the wrong way, and it's just a personality thing. If you had two different people applying the same psychological tests or tools, I think it would help in getting some clarity on some of the function or dysfunction.
Mr. Ross MacKay: Speaking from experience again of going through an assessment, I had the costs of the assessment ordered against me. There's the potential of a charge-back, but if there were two assessors involved, I couldn't afford it. I'd have to give up.
Ms. Carolyn Bennett: No. You see, we get to say we think that should be for free.
Some hon. members: Oh, oh!
Mr. Ross MacKay: I agree with you. I'll give you my MasterCard bill right now.
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Ms. Carolyn Bennett: We're just exploring everything. We get to blue-sky whatever might be most helpful. I think what we're trying to see is it might ultimately save a whole bunch of money, if you prevent it, label it, deal with it, and then ultimately not end up with two years of nonsense.
Mr. Ross MacKay: I agree with it, Doctor. Let's deal with it quickly; get it in quick. Once my allegations started, I said “Let's just get to court”, so we got into the assessment process fast, which saved a lot of aggravation and hardship over an extended period of time. But I totally agree, if assessment is required, it should be ordered through a master or something like that, almost immediately if it's getting wild. Get a court-ordered assessment immediately and don't wait two or three years before it's finally ordered.
Ms. Carolyn Bennett: Thanks very much.
The Joint Chair (Senator Landon Pearson): Thank you very much.
Senator Anne Cools: I would just like to qualify what this witness said that the judge said. Perhaps he could give us the name of the judge where that statement could be found.
Mr. Dennis McKenzie: I believe one question of Ms Bennett's wasn't answered.
Senator Anne Cools: Yes. It was you, I guess, who said that.
Mr. Dennis McKenzie: With regard to the judges?
Senator Anne Cools: Yes. The judge said you needed protection from those two.
Mr. Ross MacKay: This is Justice Hanssen, and he's not normally a family law judge, from my understanding, but a civil judge. He just didn't seem to want to allow any of the garbage to go on.
Senator Anne Cools: In what court was this and when?
Mr. Ross MacKay: Court of Queen's Bench, October 3 of last year.
Mr. Dennis McKenzie: There was one question that wasn't answered very well, I don't think.
Senator Anne Cools: Or the name of the case.
Mr. Ross MacKay: MacKay v. MacKay.
Senator Anne Cools: Okay.
Mr. Dennis MacKenzie: Your question regarding how to determine which parent is unbalanced was one I don't think we quite touched on too much, but I wanted to address that a little bit.
In my own personal experience, I went through various affidavits, voluminous amounts...and the one making the allegations that are outrageous, outlandish.... This fellow says he looks like a biker. My brother was accused by my ex of being a city gang member, a biker, and things like that. My mother had outlandish allegations made against her about myself.
They make these kinds of allegations that tend to form a bit of a pattern, I think. It could be a little more quickly recognized by psychologists if they would do a little more in-depth work.
Ms. Carolyn Bennett: Did your partner have an assessment?
Mr. Dennis MacKenzie: We had an assessment, but as I said, it was not thorough. We got to take the test home and do whatever we wanted with it, fill it in however. I know I filled mine in, but....
The Joint Chair (Senator Landon Pearson): Is there some other question from this side?
This is not a lack of interest; it's fatigue.
Mr. Dave Goldhawk: May I also add to the part about assessment. I also went through the process of having an assessment done. There was a definite bias against me, but it did reveal that there were definite difficulties on the part of my ex-wife. Unfortunately, I had an assessment done on my assessment, and it was revealed that the conclusion that was presented in court, which dramatically changed the course of my own personal case, and this was done by Dr. Laura Mills.... There was no substance to support it in the body of her text. Her conclusion was a separate entity compared to everything she had composed in her assessment of not only myself and my family members, but also of my ex-wife and her family members, as well as the interaction with her two children.
I should say too that the interaction between my children and myself was done over a period of ten minutes, and that was it. Actually, there were five minutes with my son and five minutes with my daughter. This was done in a public park. The psychologist related to the fact that my daughter ran to her. Rather than looking at that simply as an act of affection and saying “I'm a friendly little kid and I'm just going over to say hi”, she said no, that isn't the case; she is running away from her dad out of fear. I was not interacting with my daughter but was interactive with my son on the monkey bars.
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An earlier comment was made that sometimes professionals
have too much power. Somebody can write a conclusion
that is not substantiated by the body of their report,
submit it as evidence to a civil court that does not
rely on fact but on opinion, and then have a judge
rule and also word it that it is his or her opinion.
Then you cannot even appeal it because you cannot
appeal an opinion.
The Joint Chair (Senator Landon Pearson): Mr. Densmore, you had something you wanted to ask.
Mr. David Densmore: I just wanted to add to the comment about the assessment. The lady who spoke here is one of the better assessors in the city. Unfortunately, there are no programs in this country to train assessors in how to do assessments. There is one available in the United States, and no assessor in this city has taken that course.
My background is a very rigorous science. I recognize good science when I see it. I've not come across anyone who really does a good job of assessments here in this province or in this city. It's just unfortunate. It's very easy to get a degree in psychology, hang out your shingle and pick up $3,000 for an assessment.
Mr. Kris Anderson: Try $6,000 now.
Mr. David Densmore: Is it $6,000 now? To do the job properly, it requires a great deal more effort and training than most of the assessors in this city are willing to put into it. Unfortunately, there are no controls over how well they do their job, and not really any standards to hold them up to.
The Joint Chair (Senator Landon Pearson): We've had numerous comments to that account.
Mr. David Densmore: Very good.
The Joint Chair (Senator Landon Pearson): That's the end of the questions.
I'd like to thank you all very much for coming and telling us your stories. It adds to our understanding of the issues and we really appreciate it.
I'd like to also thank the audience for coming and some of you for staying for quite a long time. We appreciate the interest. We're sorry the message obviously didn't get out to everybody so everybody would have a chance, but we wouldn't have been able accommodate them in some ways, too.
I'd like to thank the members of the committee for being so attentive and for the long hard days we've all been sharing.
We are now adjourned until Monday, May 4, in Ottawa at 3.30 p.m. Thank you.