SPECIAL JOINT COMMITTEE ON THE CHILD CUSTODY AND ACCESS

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

EVIDENCE

[Recorded by Electronic Apparatus]

Monday, May 11, 1998

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[English]

The Joint Chair (Mr. Roger Gallaway (Sarnia—Lambton, Lib.)): Good afternoon. I have to do a little commercial before we start, because this meeting is televised. This meeting is number 25 of the special joint committee studying child custody and access under the Divorce Act.

For the benefit of the members here today we have with us, from the Coalition on the Convention on the Rights of the Child, Fernande Meilleur, the chair, and Tara Collins. As an individual, we have Jeffery Wilson, a family law lawyer. Finally, from the Child Welfare League of Canada, Mr. Mel Gill, who is a board member and will be speaking on behalf of that association.

Welcome.

In no particular order we'll start with the Coalition on the Convention on the Rights of the Child. Please proceed, and we would ask you to keep your remarks as brief as possible.

[Translation]

Ms. Fernande Meilleur (Chair, Canadian Coalition for the Rights of Children): Thank you, Mr. Chairman, and good afternoon, Madam Chairperson.

First of all, as chair of the Canadian Coalition for the Rights of Children, I want to thank the Special Joint Committee which is considering the very complex issue of child custody and access for this opportunity to present the position of the many members of our Canadian coalition. We are all advocates of children's rights as they are spelled out in the United Nations Convention on the Rights of the Child, which was adopted in 1989 by the General Assembly and which has since been ratified by 191 states.

The Coalition was formed in 1989 and now has a membership of over 50 organizations concerned with the situation of children here and abroad. These organizations give us their support and let us use their resources on a voluntary basis, to advocate and promote children's rights as set out in the convention which Canada ratified in December 1991.

The Coalition is committed to the following goals: first, to monitor the implementation of the convention throughout Canada, according to recognized Amnesty International policies; second, foster education and awareness among the Canadian public, particularly among young people, about the convention and the rights of children; finally, set up a permanent network to ensure that the progress made here since Canada's ratification of the convention is on-going, disseminated and assessed.

In the preamble to the UN Convention on the Rights of the Child, we are reminded that the states parties recognize the inherent dignity and the equal and inalienable rights of all members of the human family that are the foundation of freedom, justice and peace in the world. It is also recognized in the preamble that a family environment, where there is an atmosphere of happiness, love and understanding, will foster the full and harmonious development of the child's personality.

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Failing this harmonious and protective environment, the state party must make up for it by guaranteeing fundamental rights to its young citizens and preparing them thoroughly for an active life as full-fledged members of the community who value peace, dignity, tolerance and equality and who are community-minded.

With this basic concern in mind, we are here to tell you about the needs of the child first. I would ask our assistant and researcher-coordinator Tara Collins, who has been working with the Coalition for three years, to make a presentation on the reasons why the views of the child have to be represented, according to some considerations that, in our opinion, the committee should take into account before making any decisions, in order to adequately protect the future of many young children. Tara, your turn.

Ms. Tara Collins (Canadian Coalition for the Rights of Children): Thank you, Fernande.

Imagine that your world as you have always known it is changing and coming crashing down around you. Pretend that there is no role for you to play and that you cannot express any opinion about these changes. Picture yourself as a child whose parents are not living together any more and are forever screaming.

Your committee has been mandated to assess the need for a more child-centred approach to custody and access issues. I would urge you not to forget the child as you go about your work.

I will make the rest of my presentation in English, but if you have any questions, feel free to use whichever language you prefer.

[English]

As Fernande pointed out, the UN Convention on the Rights of the Child is an international legal document that points out the elements of life to which children have a just claim and are due. The 191 signatories are obligated to

undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention.

In ratifying the convention, Canada has committed to take all appropriate measures to implement its provisions, to monitor implementation, and to report to the UN Committee on the Rights of the Child every five years.

In 1999 Canada is due to give its first periodic report to the UN committee, at which time the government is required to explain measures adopted and progress made toward fulfilment of convention rights. As a state party to the convention, Canada is bound by virtue of its own laws to implement the articles of the convention in order to ensure the well-being of its children.

In looking at the issue of custody and access, this committee must not only consider the rights of parents and third parties affected by the decision, but this committee must also concern itself with the focus of this exercise—the child or children involved in the dissolution of family and the aftermath of divorce.

The coalition strongly recommends that the committee heed Canada's obligations under the UN convention. A number of rights set out in the convention are particularly relevant to this exercise. I will be discussing them further in the rest of this presentation.

These articles are the following: article 3, best interests of the child; article 9, right of the child to live with his or her family unless not in the child's best interest; and article 12, respect for the child's views. The coalition strongly advocates that the results of this committee work reflect Canada's obligations under the UN Convention on the Rights of the Child.

I'll now look in more detail at article 3, best interests of the child, in order to develop a child-centred approach. This committee is mandated to develop a more child-focused approach to family law, policies and practices.

Defined in article 3 of the UN convention, state parties guarantee the following:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

This concept of best interests is identified in the Divorce Act, and yet its significance can mean different things to different people. This principle of best interests can be used to justify many different opinions in disputes over custody and access.

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There is a criticism that decisions based on the current best interests test may appear to be arbitrary and unpredictable. Since access and custody is granted at the judge's discretion, based on the best interests of the child it is our view that the convention article 3 can be a strong principle for judges if it is regularly considered as a procedural role.

The coalition urges this committee to recommend further examination of child impact assessment as a common judicial procedure in interpreting best interests. These assessments are used to design legislation, policies, and programs to ensure they do not have a negative effect on children. Also applicable to child custody and access, these assessments could help to assist decision-making. It is not in the scope of this submission to consider factors relevant to this type of assessment of best interests, but this committee should encourage the development of such a common test to accurately assess best interests for each child involved in custody or access cases before either a court or a mediator.

Subsequently, criticism about the influence of religious, moral, or social values influencing interpretation of best interests could be avoided. A common judicial test for assessment could ensure that each custody or access decision about a child is truly made in the child's best interests and doesn't simply justify one parent's point of view over another.

It must also be kept in mind that reassessment of custody or access arrangements may be necessary, as the child may have changing needs over time, or the situation of the parents may evolve. It should be acknowledged that the problems of custody and access are not always resolved when judicial decisions are handed down. The best interests of the child may not remain static over time. After all, the child is not considered a thing to be argued over like a car or a house that remains still in time upon dissolution of a family.

The needs of each young person involved can modify as time goes by. In order to truly respect the best interests of each young person up to the age of 18 years of age, decision-making may need to be revisited. Consequently, this committee should acknowledge that there may be a need to review decisions about custody and access over time.

Furthermore, the coalition strongly recommends strengthening non-adversarial alternatives for the resolution of conflict between parents about custody and access of children. As such, mediation, parental education, and other forms of alternate dispute resolution need to be encouraged. Consistent with the best interests of the child, these alternatives will lessen the trauma that children inevitably experience with the break-up of their parents.

The commitment to the best interests of the child can be a perplexing exercise, and it is a difficult principle to fully appreciate and implement. The reality is the best interests of the child may conflict with the interests of others. Nonetheless, as a general principle of the convention, the concept of best interests applies equally to every article in the convention and acts as a checklist for full compliance. As a result, this committee is urged to recommend further development and implementation of this important commitment to children and to ensure a truly child-focused approach to custody and access.

The second article we'll be looking at here is article 9, which is the right of the child to live with his or her family, unless not in the child's best interests.

The coalition recommends that this committee promote the ongoing relationship of a child to members of his or her family, if it is in his or her best interests, as detailed in subsections 16(10) and 17(9) of the Divorce Act. This is consistent with the convention's article 9.1, which preserves the right of a child not to be separated from his or parents against their will. The restriction included in this article allows for such separation only when it is necessary for the best interests of the child—for example, in situations of abuse or neglect, or where parents are living separately.

Article 9.2 details that in any proceedings related to the above, all interested parties, such as the child, shall be given an opportunity to participate in the proceedings and to make their views known.

Furthermore, article 9.3 details that state parties are to respect the rights of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except when it is contrary to the best interests of the child. Article 9 is very clear in this issue of the right of the child to have family relations.

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Accordingly, the coalition endorses the role of both parents and other extended relatives in the life of the child if it is in their best interest. This position is supported by article 5, which enumerates the fact that state parties should respect the rights, responsibilities, and duties of parents.

Article 7.1 outlines the right of a child to a name and nationality. As far as possible, the child should have the right to know and be cared for by his or her parents. Then in article 8.1, it says the right to preserve the child's identity, including name and family relations, needs to be respected.

Consequently, the CCRC recommends that any revision to the law should include the child's right to communicate with or to visit with both parents and other extended relatives. This is acknowledged, for example, in Quebec under article 611 of the Civil Code, where parents cannot interfere with a child's access to his or her grandparents.

In conclusion, the special joint committee should support the child's ongoing relationship with his or her family after family breakdown if it is in the best interests of the child. It is advocated that any attempt to restrict these rights of the child by a family member should be clearly proven.

Third is article 12, respect for the child's views. There is very limited children's participation in custody and access. As such, the involvement of the young person must not be forgotten in the work of this committee. There can be no mistake about the fact that consideration of the child's best interests is a distinct exercise from the involvement of young people in the matter.

As affirmed in article 12 of the convention, the child has a right to participate in all matters affecting him or her. This article states:

The child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

Who currently represents the interests and views of the child? Although there are several court procedures to consider the child's views, the coalition criticizes the fact that children have no legally enforceable right to participate in custody and access proceedings.

Children have historically not been represented in legal proceedings, due to the perception that they did not have rights. As the mandate of this committee's work, the development of a more child-focused approach necessitates the obligation to consider the views of young persons involved. The views of the child about custody and access may not always be in their best interests, as in the situation where a child wishes to remain with an abusive parent. However, the child still has the essential right to be heard in the process.

As another general principle of the convention, child and youth participation to express views or wishes should be facilitated, preferably by a non-adversarial process. A child unable to express him or herself at the time, due to either undeveloped capacity or disability, must be represented by a respectful, competent expert.

The importance of directly involving children and youth in issues of custody and access cannot be lost. In almost two years of working at the coalition, I have received several calls from individuals asking why the child does not have a voice in the issues of custody and access. Unfortunately I have no answer for them.

As article 1 outlines, the convention generally applies to everyone under the age of 18 years. This committee must respect and involve the views of every child and every young person involved in family breakdown, where these can be reasonably ascertained.

It must be a very difficult task for all members of the special joint committee to assess all the issues involved in custody and access. There is no doubt about the fact that many individuals are upset and bitter about their child custody and access situations. The desire to create a common solution to the problems of custody and access to children must be very strong.

However, it is important to keep in mind that worst-case scenarios are the exception rather than the rule. However distressing the experiences of some of these individuals might be, they should not direct law-making that will affect all. In particular, this committee must respect the uniqueness of every child's situation during separation and following divorce of his or her parents.

A legislative response by Parliament to deal with the issue of custody and access is needed only to ensure that the rights of children are respected when agreement between parents or other significant relatives cannot be reached voluntarily.

The Joint Chair (Mr. Roger Gallaway): Ms. Collins, are you just about done?

Ms. Tara Collins: Yes, I'm just about done.

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

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Ms. Tara Collins: The CCRC strongly endorses the mandate of this committee to assess the need for a more child-centred approach to family law policies and practices. The work of this committee is so very important, and its focus should not be lost. This exercise is not to favour one parent over another, but to focus on the child.

Although divorce can be devastating to parents, the children of divorce must accept and cope with the after-effects. The decisions of individual judges about custody and access orders have a huge impact on the lives of children involved. As such, the child must remain foremost as you deliberate changes to federal legislation, as it will most certainly affect children from divorced families across this country.

As someone whose parents divorced at the age of two, I beseech you to remember there are many children and youth in Canada who are depending on all of you. As Canadian lawmakers, you must recognize that children's rights are human rights and they are as important as the human rights of adults.

In conclusion, it is essential to respect Canada's obligations to the convention, and I urge you to do so.

Thank you.

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

Mr. Wilson, please.

Mr. Jeffery Wilson (Individual Presentation): Honourable members of the committee, I was, I thought, invited to attend to speak to you about the very narrow issue of representation for children in the context of custody and access disputes, specifically under the Divorce Act. I have 10 minutes, and I am trained as a counsel, so 10 minutes will be 10 minutes. In some way, it emulates what a child experiences in an access visit.

The first principle is that the test of best interest, which is probably the best test we can create to achieve a necessary degree of flexibility and to avoid the injection of stereotypic generalizations, cannot be interpreted to mean that the child is any less competent or less entitled than the adult to be heard before a decision is made affecting her welfare. The reason this is the case is because there is no empirical evidence of which I'm aware, and I challenge all of you, that suggests, concludes, or observes that the perceptions of children are less deserving of consideration than those of adults. After 20 years or more of representing parents, it is axiomatic to my practice that in these kinds of disputes the truth is, for the large part, irrelevant; it doesn't matter.

Think of the movie Little Big Man. I am dating you, perhaps, or I'm dating myself. The Indians are surrounded by Custer's forces, and he's slaughtering and killing them all. Dustin Hoffman comes into the tent and he says to the chief, the elder, the wise person of the community, why are they doing this? The best the chief can say to Dustin Hoffman, playing the role of the character, is “They're not human beings”.

Well, when people are in the midst of separation, those over the age of 18, who have the luxury of being adults in our community, are not human beings; they are rabid animals. And the perceptions are, for the large part, irrelevant.

Thirdly, there is empirical evidence within Canada to suggest that children are as reliable narrators of events of trauma as are adults. It comes from our own Canadian-made research in British Columbia and from other provinces that children, in reciting an event that happened to them, can narrate that event as realistically or as reliably as can an adult. Those of you who think we can't listen to children because they are not reliable narrators, your opinion is certainly important, but it doesn't hold with the empirical evidence.

Fourthly, the offices of the children's lawyer in the province of Ontario, the amicus curiae when it was in operation in Alberta, and the family advocate in British Columbia, and those other provinces that invoke a specie called guardian ad litem, do not act for children when they go before the court, as they not atypically do, and say they are there to articulate to the court what is in the best interests of the child.

None of you members would like it if I were your lawyer and I went before the court and said “I am representing Senator Pearson, your honour. This is what I, in my opinion, think is in her best interests. Now I am going to tell you what Senator Pearson's views are.”

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Children are not too stupid to understand the deception that occurs when you create a lawyer and have a lawyer and the lawyer turns out to be something more akin to a probation officer than a lawyer. So if you're going to have counsel for children, then it has to be legal counsel. And they can't be penalized for not being able to afford counsel because this is the same legal community that says children have to go to school, that they can't work and that discriminates against them in terms of their employability. You can't double-penalize them. If they can't work, you have to make legal services available for them.

If we're going to use the adversarial process, my submission to you is that children are as entitled as other members of the family to be represented in the same way that you would be represented, no less so. It would be outrageous for me to suggest that I take you back to 25 or 30 years ago when I didn't practice, or to 40 years ago—not that long ago—when women didn't have the right to be represented, when they had guardians ad litem articulating their views, so how can it be different for children? Why would someone conclude that this constituency in the midst of people not acting like human beings should not be represented?

However, if we were less intelligent in our approach and much more wise, then we would have to ask ourselves why we use the adversarial process, because when there is a parental separation, it has nothing to do with the law. I, for example, have 10 minutes here, which is like an access visit, but the difference is that I make a hell of a lot of money doing what I do. I bill $ 300 an hour. I'm very popular. I'm on the go across the country with respect to international abductions. But if you asked me if it makes sense, I would say unequivocally—we only know that word, we practice law—and for sure, no, it doesn't make sense, because the adversarial process is a legal model that looks down.

What we should be saying to ourselves is that the breakdown, the separation and the parenting arrangements are more akin to a parent struck with the tragedy of multiple sclerosis or a parent who is called to be posted somewhere on military duty. It is a change in circumstances.

It is not some kind of disease that requires the interjections of lawyers and the adjunct parasitic professionals—all the same—or judges who were formerly lawyers, all of whom are not trained to listen to children. This is a fact. This is why this area of law gets kicked around so much. Judges and lawyers are not really comfortable with it. Some of us are, those of us who are successful.

But it has nothing to do with serving the constituency. If we were interested in the rights of children, we would say that except in clearly defined circumstances, which would not be difficult to legislate—those dealing with domestic violence, physical and emotional abuse, and such other special and extraordinary circumstances as the judge determines—the following rules shall apply: one, you can't go to court; two, joint custody is presumed; three, you choose somebody from within the family, a non-paid facilitator.

If anyone thinks that judges saying “do this” works in the area of family law, you are wrong. The dissonance is so great. Forget about social, economic, and cultural values: you can't expect people to be effective parents on the premise of obedience. It doesn't work. It has to work through persuasion and it has to come from within the family.

If they still can't resolve matters, then we penalize them, because everybody is acting like children. They select a mediator—and we can talk about who does that, it doesn't matter—the mediator is paid and the mediator, if he or she can't achieve consensus, then makes a determination, which is binding, with the right of appeal to a judge so that we preserve our due process. God forbid that we should remove that from the process.

What I'm articulating in this last minute and a half is premised on certain values that come from many years of experience. The first is that the current process is more harmful than helpful. The second, as has been said by my colleague, is the search for ownership of custody—that is what we call it—is irrelevant to the needs of the child. No-name custody, it doesn't really matter.... It's a fight. It has nothing to do with anything.

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Thirdly, the separation of parents should not invite a legal model when it comes to parenting arrangements. I'm distinguishing it from financial arrangements.

Fourthly, lawyers and judges are largely incompetent to deal with these matters. That is not a criticism of my brethren or sisters or judges; they are constrained by the system under which they work.

Fifth, a decision that comes from within the family is more likely to be binding upon the family and to bring peace. The most important variable for the child, for almost every child that I have represented—and mostly I represent the husbands and wives, and the children do want both parents to live together—is not to be in the middle of conflict. That's it.

Sixth, the money that is spent by the participants is prohibitive. It cannot be justified, in any circumstance.

Lastly, parental separation, given its incidence in our community, is no longer a matter that can operate on the basis of a private model. Civil law presumes that there are only two parties—or maybe three parties, if we add the child. Given the incidence of breakdown in our society, this is a community problem. Therefore, it behoves the community to say that we are not going to allow this to be left to the residual rights, the passive rights of a mother or father—and which one is going to carry the torch doesn't matter, everybody's going to be Joan of Arc—ultimately to go to a court. It behoves the community to say that we have a critical situation within our society and it requires us to come up with a way to encourage the family to maintain and arrange for the young in the face of change.

Thank you.

A voice: Hear, hear.

The Joint Chair (Mr. Roger Gallaway): Excuse me, sir. There is no applause here, however much you agree. It is a parliamentary proceeding.

I'm wondering if Mr. Wilson will be requesting some sort of escort out of the building.

Voices: Oh, oh.

Mr. Jeffery Wilson: No. I can get out of the building pretty quickly.

Voices: Oh, oh.

The Joint Chair (Mr. Roger Gallaway): Finally, from the Child Welfare League of Canada, Mr. Mel Gill.

Mr. Mel Gill (Board Member, Child Welfare League of Canada): Thank you very much for the opportunity to be present on behalf of the Child Welfare League. The Child Welfare League of Canada was incorporated about three or four years ago subsequent to a long-term affiliation with the Child Welfare League of America.

The purpose of the Child Welfare League of Canada is advocacy and public education about the well-being of children and their families and, in particular, the focusing of its efforts on children who are at highest risk, the most vulnerable children who are at risk of child abuse or children's mental illness or involvement with the juvenile justice system.

The league also promotes excellence in service standards and practice with respect to intervention with families and promotes research and dissemination of information, about children at risk in particular.

Virtually all of what has been said by the coalition witnesses are recommendations that would be supported by the Child Welfare League of Canada. As a member of that coalition, I want to reinforce a couple of their points, and let me say publicly that I support most of what Mr. Wilson has said—and privately, perhaps more.

Voices: Oh, oh.

Mr. Mel Gill: In order to be of most assistance to the committee, I'd just like to say that there are a couple of metaphors for parenting which I think might be useful. One of them is that the two primary jobs of a parent are to give a child roots and to give a child wings. I think that the Convention on the Rights of the Child was formed bearing that in mind. That is, there is a primary responsibility on the part of the family to provide stability, nurturing, and guidance to children, and then, as they are capable, to gradually provide them with the tools necessary for independent living.

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One of the things that children who come into the care of the various child welfare authorities across the country repeatedly say is that they only wish their families had worked for them but that they know it wasn't possible in their circumstances. And that's true for the majority. Some of them never give up that hope.

The second thing that they ask for is stability. Stability is not what characterizes the circumstances a child is subjected to when parents are at war with each other over the custody of that child. The most important thing you can give a child is a low-anxiety environment that has parents communicating their love, for each other if possible, and definitely for the child.

The second angle I would like to come at this from is that for too long children have been viewed as the property of their parents, and I think it's time we turn this around as we look at this legislation. Parents belong to the child. The child doesn't belong to the parent.

When you look at amendments to legislation, I hope you can keep that in mind as you try to come to grips with the notion of the best interests of the child. The “best interests of the child” is truly a test of Solomon. And as Mr. Wilson said, there are few who are in positions to make those decisions who have that level of wisdom, particularly when it's uninformed by an expression of the interests of the child and the views of the child.

The older a child is the more likely the child is to have some sense of what is best for them. In most cases they will tell you they want mommy and daddy to stop fighting. And the adversarial system that we work in mitigates against that. The importance of introducing some sort of a system that makes mediation mandatory as an alternative to getting into court and battling it out or trying to draw in child welfare agencies and use them as tools in their fight against each other is, I think, self-evident. When that happens it's so extremely destructive to the child and the stability of the child that the social and health costs linger on long after the battle is over.

There are just a couple of points that I want to reinforce from some of the material provided to you by the league.

First, in our experience, one of the best things that could happen across the country is the establishment of unified family courts, which would deal with child custody and access and with all family law matters, including child welfare and support.

Second, what's tantamount to plea bargaining often occurs in these situations where one parent negotiates for access in exchange for financial support. In the child welfare courts, it's often a negotiation for access in exchange for a consent order rather than going all the way through the courts. And often when we're dealing with this in child welfare courts, we end up with young children who are not able, in the absence of corroborating evidence, to provide sufficiently compelling evidence to allow a judge to rule one way or another.

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We would recommend that there should be a separation in custody and access situations between the custody issue or the access issue and the financial support that often is a part of this.

There are two final things I would say. One, the child's right to communicate with family, whether it's parents or other significant relatives, like grandparents, should be protected to the point where the person wanting to infringe that right to communicate should have some burden of proof to overturn it, so there's essentially a reverse onus in those cases.

Finally, I want to come back to article 3 of the convention, which states that the best interests of the child shall be “a primary consideration”. I would like to say that it should be “the” primary consideration, not “a” primary consideration.

Thank you very much.

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

We'll go to questions, and we'll start with Senator Pépin.

[Translation]

Senator Lucie Pépin (Shawinegan, Lib.): Good afternoon. Thank you for your presentation.

Mr. Wilson, you said many interesting things that have caught my attention. You said "Judges are not trained to listen to children." It reminds me of a conference last year by Madam Justice Claire L'Heureux-Dubé from the Supreme Court of Canada, in which she said precisely to judges and lawyers "You probably hear the children, but you are not listening to them." Could you give us a couple of examples of this? You seem to have a wealth of knowledge in the field, as you said so yourself.

Also, I would like to know what you think about joint custody, as it seems to become increasingly popular. I'll be honest with you. I am a bit biased. I agree that custody should be shared and that a child should be free to choose to live with both his mother and father. But what happens with children who are only one year old, or two or three years old and who spend two weeks with daddy and two weeks with mommy? Has there been a study on the impact of such an arrangement on the children?

If I am not mistaken, Mr. Gill said "Parents are to give a child roots and wings." I think that when children are very young and get shifted around like that, they may be at risk of not putting down any roots and of not flying very high when they turn five or six years old. This is my first question.

[English]

Mr. Jeffery Wilson: Permit me to answer in English. I'm not yet comfortable enough in French. I apologize.

First, dealing with the matter of listening to children, under the Divorce Act the statute is not a good guide at all, and neither is provincial legislation across the country that might supplement the Divorce Act as to when and how it is a judge is to listen to a child.

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Some judges choose to hear the child in chambers, with or without the parties. Some suggest that they'll hear the child but they'll seal the envelope—the magic box. Some say the child should not be anywhere near the courtroom—and that, if anything, would be the majority of judges—because the child is just another person who...he's not old enough, she's not old enough, and there's greater harm and there's a fear of manipulation by one parent if the child is anywhere close to the courtroom. It is the rare judge who is prepared to say “In my experience, let's hear from the child directly and get on the stand just like the husband and wife and be subject to cross-examination”.

Senator Lucie Pépin: Even if it is five, six, seven years old?

Mr. Jeffery Wilson: If it's five, six, or seven years old, then the question is how do we learn to listen to people as a function of their age? We learn how to deal with other persons who have other kinds of mental or physical challenges within the community. One of the challenges the child has is inexperience, but that does not necessarily mean that what they say is less reliable.

The one concern I would have, in my experience, is whether there is a problem in allowing a child to speak because then the child, because of her instinctual innocence, will think “I've been heard, therefore I have to get my way”, or “if I'm heard and I don't get my way, I feel rejected”. That's a problem, but it's less a problem, in my experience, than the feeling of impotence when all this is occurring and you are not part of it.

We lawyers are not trained to listen to children, which is not to suggest for the moment that social workers or psychiatrists or psychologists are. It is just to suggest that there's an absence within the process of a comfortable setting, like many parents, like the community at large, and the Divorce Act in how it deals with conflict, as you've put it quite accurately, reflects how we deal with children at large in terms of the community. But we have to figure out how we're going to incorporate what the child has to say.

The greatest evil—and I come back to a point I made—is don't give a child a lawyer, as they do watch enough television or enough of their parents are lawyers that they think they know what a lawyer is supposed to do. There are many models that suggest that when a child is the client, you should not articulate what the child wants. You should say what's in the best interests of the child. And in my experience, that is something I urge you to seriously reflect upon, the sense of what that would do to yourself if you had a view and it was not articulated with the same strength as the other persons' who are participating in the proceedings.

In terms of the second point on the question of joint custody, the fight is less about where the child will reside—and if I come across as cynical it's necessary, it's the way I preserve my sanity—and it's more about the label. We can readily identify the primary parent in almost all of these cases we're talking about here, with one qualification. It's the one who's there in the middle of the night, the one who knows the child's schedule, goes to the doctor and knows what the child eats. It's not a difficult exercise to identify the primary parent. The clinical knowledge in this area is replete with information that, you're right, when a child is young, that child needs to have a foundation, a home. We don't have to commit politically incorrect sentiments by saying that the child should be with the mother or the father. We can say that there is—as there is in most cases—a primary parent.

We do have as a function of economic realities in our society more and more families where both parents are working full-time, and where, unlike the generation when I started off practising, they are both actively involved in the raising of their children. The male parent is coming out of the closet and is doing a lot more in caring for the child. But even in those circumstances there is often an identifiable primary parent. And except in the cases of physical abuse—and remember I qualified it, because that's a different category, and that's a different category for the wishes of children—when you have a case of what we might call parental alienation or emotional abuse, then the wishes of the child should be heard. But we need more of a litigation.... That might be the only area where there might be some justification for the pursuit of truth.

• 1630

In the majority of cases about which we are talking.... I am of the firm belief that where we have two parents working, one's an airline attendant and the other's a worker at Stelco, they have different shifts, I'm convinced that they won't fight about where the child will reside. They will argue over the label. So let's take away the fuel for that fight, presume it to be joint custody.

[Translation]

Senator Lucie Pépin: You said that the decision should be made within the family. But if the parents can't agree on custody, then it comes back to what you were saying about primary parents. If they can't agree, what happens?

[English]

Mr. Jeffery Wilson: I say to you that except in those cases I've identified where we need legislative prescription I am of the firm belief they will agree. People fight in this area. And I'm sorry to use generalizations and I'm sorry to speak anecdotally, but I am required to do so because I'm here essentially as a function of experience. They fight more out of ignorance than knowledge. When we get the parents in a room together and we avoid the immediate tendency to polarize the situation, then generally speaking they will come to an understanding.

Their plates are full. The average Canadian needs time off from raising children, not time on. And if they have the opportunity to have someone who can give them each a sense—it's like anything else, international politics comes into the home—of involvement, a sense of dignity walking away.... I'm of the firm belief that a member of the family, in this particular area.... You know, in labour law we don't go to judges; in labour law we have a committee. Labour appoints somebody, management appoints somebody, they all know what they're going to say, and then they appoint a third party. And this seems to be a more effective way of resolving it than going to court.

When members of the family can be the wise men and wise women, I am of the belief they rise to the occasion. It is not an atypical experience, in my business, for the grandmother to come forward and to say “You know what, as much as I love my son, he's not ready to care for the children”. It's because all of us have an instinctual desire to protect children, and that's what I want to seize upon. But if you give these people the opportunity to go to court, then blood becomes power, and that grandmother, when she goes on the stand, she can't now say to the family facilitator.... She has to say “I love you, son, I vote for you”.

The last point I was going to make is that as persuasive as my colleagues are about the International Convention on the Rights of the Child, and as much as I would adopt, echo, and salute them for encouraging you to incorporate within the legislation the adoption of the convention principles, I also urge that you make this part of our internal divorce law. And while you may say the convention applies—which is an important enunciation that is absent in most of our legislation, for worse more than for better when it comes to children—you have to go further to legislatively prescribe within the Divorce Act what are the circumstances that give rise to, when you go to court, the identification of when the child needs a lawyer. Because one of the difficulties with the convention is it says a lot for everybody and it can become a collision course. So I want the exercise here to be a little more—I say it respectfully—rigorous, in terms of defining the circumstances.

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

Mr. Forseth.

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

The witnesses from the Coalition on the Convention on the Rights of the Child, and also Mr. Wilson, have talked at length about getting children into the process and having their views considered.

• 1655

Just as an aside, Mr. Wilson, I certainly would prefer the competence, compassion, and insight of probation officers over lawyers—unlike what you said—especially to be able to key into children and be able to facilitate them to speak.

I would like to ask you specifically about your recommendation, Mr. Wilson. You talked about maybe a non-judge context of solving these intractable problems, especially when families are highly conflicted. You talked about a “member of the family”. Perhaps you could describe some situations where you have used this. How do you find a member of the family who's neutral or who's not just going to perpetuate the elements of control? Often the reasons for separation and divorce are intertwined with the relatives on either side. So in your experience, do you have some practical experience in these non-court family solutions? It's like the clan solving it, rather than going to court.

Mr. Jeffery Wilson: In most cases that we deal with, we family lawyers—we're the “enemy of the people”—do solve most of these family law cases without going to court. The reason we solve them without going to court is because with experience we learn to bring everybody together in one room. In answer to your question, often a father or a mother of the parent will come, that's the grandparent. As soon as one knows that one grandparent is coming, then the other one comes, because—

Mr. Paul Forseth: Mr. Wilson, let me interrupt you there. You say you solve it, but what you're describing is not a lawyer at all, but a social worker, mediator, family court counsellor, family justice counsellor, or social services attached to a unified family court. It's that kind of thing. The evidence we've heard from so many is that basically, once a lawyer is doing lawyer stuff, that's the worst thing for kids as far as solving these matters around dissolving families.

In some respects, you have recommended that for children to have a voice or to be able to express themselves, don't give them a lawyer. So I'm kind of wondering how you're saying then that lawyers are solving these things. What you're describing is the direct opposite to what a lawyer does.

Mr. Jeffery Wilson: I didn't say not to give them a lawyer.

Senator Anne Cools (Toronto Centre, Lib.): He said lawyers and judges.

Mr. Jeffery Wilson: If we maintain an adversarial process, then we should maintain that it's an alternative submission. The first thing is that if we maintain an adversarial process, then children should have lawyers. If we're truly thinking about the rights of children, then we might think about whether or not the adversarial process is the best process that we as a community can create.

The model of the legislation would say that except in circumstances of physical or emotional abuse, or domestic violence, or such other circumstances, special and extraordinary circumstances, as a judge, in his or her unfettered discretion, deems appropriate, the following parenting plan model shall apply. Then the first incident of that is that recourse to the courts will be replaced by immediate recourse to a member of the family or members jointly selected by the parties.

Mr. Paul Forseth: So you're talking about an alternate dispute settlement mechanism that involved mediation and that, in the final analysis, adopts some kind of arbitration, with someone perhaps coming down with a prescription after balancing the parties in a process.

Mr. Jeffery Wilson: Except in the areas that I have identified, we don't need to go to court. That's what we're saying to the constituents.

Mr. Paul Forseth: The problem we have is the exceptions. Everyone wants to throw up the exception right away as a trump card and say that there's violence and whatever so as to get out of any of that kind of stuff—

Mr. Jeffery Wilson: Right.

Mr. Paul Forseth: —and not involve themselves or take any responsibility for solving the situation they've created.

Mr. Jeffery Wilson: Right. As cynical as I am, you need to have some faith in the law. You know we had that experience with the Hague Convention on the civil aspects of international child abduction. The law said that we're not going to allow you to go through the back door and argue violence in order to take the child and go to another jurisdiction for form shopping.

So over time, case precedent has established itself by saying that it has to be very extreme and the circumstances have to be identified before I'm going to listen to you and allow you to escape the jurisdiction where the child was habitually residing.

• 1640

I think that if the legislation had clear intent and spirit then judges would be, I submit, willing partners to this plan based on their own experiences and would write legislation and case law that would send out the message that the evidence has to be extreme and clear before you come before the court. Essentially, you would need prior leave to proceed along the court route.

The Joint Chair (Mr. Roger Gallaway): Madame Dalphond-Guiral.

Senator Anne Cools: Chairman, I just noticed that Mr. Gill was trying to get a signal to you.

The Joint Chair (Mr. Roger Gallaway): Oh, I'm sorry.

Mr. Mel Gill: Can I just quickly respond on the issue of mediation? One of the key principles of successful mediation is that you need a neutral party, which is why it works to some extent reasonably well in labour negotiations. You could use a similar model, but I think the key issue is having a neutral mediator.

You won't find that in most cases in a family member from either side of the family. You might find people within the extended family who can assist in that process, but you still need a neutral mediator. All of this should be steered in the direction of a non-adversarial, non-judicial process at the first step.

Somehow you need to lower the stakes of what's involved in the fight between the two parents. If you can do that, as Mr. Wilson suggested, with making joint custody the assumed model for resolving who looks after the child or children in a dispute and you need something more by way of a higher onus to reverse that presumption, then I think you would have gone some step forward.

There is, in child welfare, some experience with family case conferencing, but it's enormously time-consuming and costly to organize and stay on top of. Particularly with the family spread out all across the country or the globe, it often becomes very difficult.

Mr. Jeffery Wilson: I'm suggesting that you may want to deprofessionalize the area. So to some extent, I differ with my colleague, because the first step should come from within the family. The New Zealand model would be the place to look. You want to try to see if you can solve it from within the family to give people a sense of power in those situations where there's no domestic violence.

I totally agree with my friend that if that fails, for whatever reason, then we need an entirely neutral person who can be from some process of selection and who is paid. But first, you're essentially doing this because we're going back to the intergenerational notion of caring for the young. We're bringing in the grandparents who are active participants more and more in these cases as we're all getting older. So we're using them in a constructive way rather than forcing them to go to a lawyer as well.

The Joint Chair (Mr. Roger Gallaway): Senator Pépin has a very quick question.

[Translation]

Senator Lucie Pépin: I would like to add something to what you said. Aren't you afraid that if the facilitator is not a member of the family and if he or she is totally independent, that he or she would act just like a judge and do what judges are doing right now? In fact, judges are independent compared to someone from the family who knows the children and who can perceive what their wishes are probably more easily than someone who is perfectly neutral and who knows neither the parents nor the children.

[English]

Mr. Jeffery Wilson: But the difference is that a judge works under constraints. Sometimes it's effective because a judge has much more power.

Consider judges and the message they send out. There are those who are radical and bring everybody together for something akin to a primal scream. They are very rare indeed. The judge has hearsay evidence and all sorts of rules of evidence to deal with. Lawyers are there, so there's transference, countertransference, and jockeying going on among the lawyers. There's advocacy at work, but it's a different form of advocacy.

So there's quite a bit going on, and people are not doing the talking in many instances. It also depends quite a bit on the particular judge's ability to speak.

Mr. Mel Gill: I think if families can work things out themselves, that's great. You still need a neutral third party to go between the two, even if it's two grandparents, in order to get a final resolution.

• 1645

A good mediator will back out if the person sees that family members are able to resolve it among themselves, but by the time it gets to the embittered stage, it's not likely going to happen without a third party. I agree with my colleague that it ought to be someone other than lawyers who does the mediating.

[Translation]

The Joint Chair (Mr. Roger Gallaway): As I announced it a few minutes ago, you now have the floor.

Ms. Madeleine Dalphond-Guiral (Laval Centre, BQ): My question is for today's star, Mr. Wilson.

While listening to you, I couldn't help but think about different circumstances and compare them to the situation we are now discussing. I have many years of experience in pediatrics. In the fifties, sixties and seventies, doctors did not listen to children who said that they were in pain. At the end of the day, it was the nurse or the doctor who decided whether a child was really in pain and in need of painkillers.

In the last twelve or fifteen years, we have been infinitely more sensitive to children's pain. They are the ones who know whether they are hurting and we now use painkillers much more liberally than before. In the case of a divorce, everyone agrees that the children are suffering intensely and I think that we must listen to them.

Of course, if a child is only one year old, it is impossible. There are children who are perfectly capable of communicating their feelings at three years old, but others can only do it at a later age. So, here is my first question. Would you be able, and in fact this question is to our four witnesses, to focus on a number of criteria that could be used to assess the competency of a child to express her needs and her pain?

It will be very easy for you to answer my second question, Mr. Wilson. You told us that you had many years of experience under your belt. I feel like asking you how long it took you to realize that in the end, the present system was not the best to help either the parents or the children.

The model you are suggesting seems to me, as a mother and a grandmother who was never divorced because I must have learned well my parental responsibilities... Have you had the opportunity to suggest this model to colleagues in your field and to other first- line professionals who try and settle difficult situations?

Ms. Fernande Meilleur: I will not really try to answer your first question, if I may, Madam, but I will give you some food for thought, something that is very important according to both the coalition and the convention and something that we must not forget. A child who is one year or just a few month old, as you said, has needs that are as varied and as different as those of a child who is old enough to express herself. And we know that parents may separate at any time during the life of a child.

• 1650

Of course, what we know is rather theoretical compared to the principles set out in the convention that we are trying to implement, but we still want to pass along this matter for your consideration. Our message is that the child is going through an evolution and the review in court must take into account each phase that the child goes through and also the child's development.

Consequently, we feel it is very important that the person listening to the child be someone from her family. Nevertheless, I agree with Mr. Wilson and Mr. Gill in that sense, but that person must be able to observe and assess the child's development daily, and not only during the weekend or once a month, in order to make findings as to the real condition of the child.

[English]

Mr. Jeffery Wilson: There are two concepts. There's a difference between the child having a lawyer, and listening to the child's wishes. To have a lawyer requires someone to conclude the person is competent. In our community we leave that decision, by and large, to the lawyer, because lawyers are concerned about their own liability. Therefore, whenever there are suspicious or concerning circumstances they will bring in the public trustee or some creature like it that exists across the nation. But generally speaking, a lawyer has the prerogative within the umbrella of the solicitor and client relationship to ask whether this person is competent.

The Law Society of Upper Canada, in a 1976-77 study, concluded that the same principles that apply in determining competency for adults should apply in respect to children; that is, we leave it to the lawyer to decide. When the lawyer concludes that the child is not competent to give instructions within the context of custody, to be distinguished from a car accident or a property dispute, then a different model can be applied—a litigation guardian. The role of that person is not to articulate or act upon the child's instructions, but to act based upon the interests of the child, as if the person is mentally challenged and cannot give instructions.

In the adversarial model, I have represented children as counsel who were aged five, six, and seven but not four, in my twenty years, because it's too hard and I would be too presumptuous to figure out what it is. I've worked with non-legal people to assist me, essentially, protect my own liability, and ensure I'm doing right in being as blunt as I am, sometimes, all the way up to sixteen, seventeen, and eighteen. That's in the model of counsel representing the child.

I appreciate that a child at any age could be competent, as determined by the lawyer, to give instructions, but that's a matter a lawyer will decide. The general observation is that the younger the age, the harder it is to meet that test.

The next problem you have across the nation is when do we listen to children, as distinguished from when are they competent to give instruction as clients? The legislation across the nation, because custody is a provincial and federal matter, uses words like “wishes, views and preferences to the extent they can be ascertained”. This is somewhat “He who knows, doesn't know”. What is a wish? All of us have wishes at almost at any age. A five-year-old has a wish. It might be a fantasy, but they have a wish: “I want both my parents to be together”.

The difficulty for the committee is if we are going to say we have to listen to children in the context of the adversarial or non-adversarial model, then be careful with the language you use. Once you use the word “wishes”, I am very hard-pressed to understand how anybody's wishes cannot be heard. It's a wish, it's a fantasy, that's all. It could be a ridiculous wish. Who knows what ridiculous is in view of what we hear from the adults in these cases, but it's a wish. That's right.

• 1655

The next question asked was how long did it take me to realize this. It took about 29 minutes. It took a long time when I was practising before I was called to the bar representing children. Many of you have sat in court. Watch it, but don't watch in terms of who is right or who is wrong. Watch it in the sense of whether this is the best process we as a community can come up with. That's why you should watch it.

Don't pick on the judges. A particular case and the wrong that was done in a particular case, whether it be reported in the Star or the Globe and Mail or the Sun, depending upon the view, does not advance the argument at all.

Mrs. Sheila Finestone: Even if you're not...

[Inaudible—Editor]?

Mr. Jeffery Wilson: No, it's the system you must examine. The judges are doing the best they can. This is not their favourite area of law. They do the best they can within the limitations that are imposed upon them.

I confess, and I don't apologize for it, I haven't been good in peer relations. So when you asked me whether I have shared this model with anybody, I've talked about it and written about it in my publications, but I have not gone to my sisters and brothers and said “Come on, let's form the Toronto mediation team and go see the Senate and play the senators”. It isn't something I've done, but I know it's shared by other members and a number of judges. They are not comfortable having this as the average case. You've removed child support, in general. Look at it that way. We've generally, for the average family, removed child support from juridical debate, except in extraordinary circumstances. Similarly, we can remove parenting arrangements from juridical debate, except in the special and extraordinary circumstances.

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

Senator Erminie J. Cohen (Saint John, PC): Thank you.

Mr. Wilson, have you had much success in using the family as the forum for mediation success stories? You say you approve of it. You haven't shared it with your peer group that much, but have you had much success in that area yourself?

Mr. Jeffery Wilson: Under the existing adversarial model, lawyers go to court as barristers, but we spend quite a bit of time as solicitors. Under the existing adversarial model, we are struggling with and creating our own ADR, so we do a lot of inherent mediation.

The answer to your question is yes, it's an everyday part of my life that I will have both husband and wife in my office and I will be working with maybe a grandmother or a grandfather, with the other lawyer.

The difficulty with this model is the most important ingredient for this to work is how well the lawyers get along. They have to have confidence in one another and a sense of trust for this to work. It can't be quite like L.A. Law.

Senator Erminie Cohen: So when you say you should resolve it from within the family, there have to be lawyers present, and it's lawyers many times who cause the whole war zone.

Mr. Jeffery Wilson: Right. Once we write that first letter without prejudice—I love you without prejudice.... The point I'm making is there are two models. Under the existing adversarial model you're hard-pressed to get rid of lawyers. It will be difficult, because once you have an adversarial model, you need to have the creatures that thrive under that model. I'm suggesting you reserve the adversarial model for those special and extraordinary cases.

I believe the non-adversarial model, based on my experience, will apply to the majority of Canadians. You don't go to a lawyer. We stop thinking lawyer, courtroom, and judges. The legislation prescribes that the family select somebody within it. It may fail. It may suffer from the absence of neutrality and because there may be some power politics within the family. But it has to go through it. It's not binding unless the family comes to some arrangement. If it doesn't, then it goes to a neutral mediator. So there's no lawyer.

The only time there would be a lawyer in the non-adversarial model I'm proposing for your consideration is when that mediator says “Okay, I've given it my best. This is getting out of hand. The conflict is more harmful than any result. Whether we eat rye bread or pita bread, there's a limit here. I'm making a ruling.” Then you can go to a lawyer and appeal to a judge based on the role of the mediator becoming an arbitrator.

• 1700

Senator Erminie Cohen: I want to run something else by anybody in this committee.

First of all, I agree with you. I wish everything, all separation and divorce proceedings, could come out of the court, because that's a zone in itself that's not healthy.

The International Social Service, when they met with us as a witness, said you can't force mediation. You can't force it, but what they suggested, which really appealed to me, was that the court should enforce what they call mandatory consultation, to explain to the two people involved the benefits of mediation for the family.

In many instances it works out much better, because it's not as though you have to go into mediation and there's no other way. But this way you're forced to discuss the benefits of it.

I just wanted to throw it out to any of you to see if you've had any experience with that or if it's a whole new concept. What do you think?

Mr. Mel Gill: One of the things that's essential in successful mediation, as well as a neutral mediator, is that the power balance between the two parties has to be relatively equal. If you take the financial piece of it out, that goes some distance.

There may be something else worth considering, and that is in the area of parent education. Essentially parallel to prenuptial agreements, there could be some way, before things get heated up, when the couple still love each other, at the time they're getting married, to build some kind of promise into the marriage agreement that they will resolve their difficulties in a particular way in the event they have children.

Certainly parent education is extremely important.

Mr. Jeffery Wilson: I don't agree with the International Social Service. When people are in the throes of separation, they're miserable and/or they tend to want to be miserable, and we use the law as a symbolic gesture to assist people. It's an assistive device. So I can throw out as an assistive device, “Go get the best lawyer in town and litigate”, or I can throw out as an assistive device, “Mediate. And that's not negotiable. This is what you do, because we as a community think it makes more sense that you mediate rather than litigate.”

I don't see that as a particularly radical concept. I agree that for it to be effective, people have to want to do it, but this is not therapy. This is not therapy we're talking about here, where more might be required. This is saying the system we're going to use is mediation. That's what you're stuck with. If you can't make your own decision within the family, go see a mediator, and if you can't make your decision there, that mediator is going to arbitrate.

What I'm trying to emphasize to you members is, once I remove the cases of domestic violence, abuse, and the special and extraordinary circumstances, it doesn't matter what the decision is. It's irrelevant. It is irrelevant. You have no idea what people argue about. It's not going to change anything. It's better if the arbitrator.... We could have—what do you call those things for the piano?

Senator Erminie Cohen: A metronome.

Mr. Jeffery Wilson: Okay, and the arbitrator could say “You have two minutes and you have two minutes, 15 seconds of reply, and here's my decision.” The decision in itself will bring greater relief for the child and release for the parties than will the process, once I remove, as I have, those very, very difficult cases.

What are we talking about? How many major decisions are there? I don't know. Choice of school—that's one I can think of. Medical—everybody becomes a doctor immediately upon separation. That's another one. Think about, in your own families, how many major decisions there are. Once people separate, you cannot believe how many there become. When I said pita bread and rye bread, I wasn't being sarcastic. Somebody always goes to pita upon a separation.

Some hon. members: Oh, oh!

The Joint Chair (Mr. Roger Gallaway): Mrs. Finestone.

Mrs. Sheila Finestone (Mount Royal, Lib.): Thank you very much.

• 1705

Not only are you a witness who has had a great deal of experience, you're also a man with great wit and humour on a subject matter that is of tremendous emotional difficulty, not only for the parents, but for the child and the larger family.

There are a few things I'd like to clear up with you. Do you think that if you change the nomenclature to something else, the label “custody and access”is going to make it any different in terms of who got what and who won the prize?

Mr. Jeffery Wilson: For the majority of cases the answer is yes, definitely.

Mrs. Sheila Finestone: What are the replacement names you would use?

Mr. Jeffery Wilson: You don't even need anything. You don't even need a name. The only thing that's relevant is the time, where the child is going to reside.

Now, Professor Bala will tell you about primary residence and secondary residence, but then we're just going to litigate over primary residence and secondary residence, and we're going to replace sole custody with that.

It's better. That's the argument. You know, once we get into academia, we get lots of labels left and right.

Mrs. Sheila Finestone: Okay. I'm trying to use the experience you've gathered to take a look, as we have had suggested to us, at legislation in England and in Australia that are using new names, new places, and new nomenclature. Is it just a rose by another name?

Mr. Jeffery Wilson: It is.

Mrs. Sheila Finestone: So you think it is a rose by another name, or do we need another name?

Mr. Jeffery Wilson: The best way is a concrete answer. Here's the legislation: upon the event of a separation the parents shall meet—except with the qualifier—and they shall determine the parenting arrangements that apply in respect of the child.

Mrs. Sheila Finestone: All right, so you want to call it “parenting arrangements,” or something of that nature?

Mr. Jeffery Wilson: Parenting arrangements, and they're going to talk about the time the child spends with each parent.

Mrs. Sheila Finestone: Fine.

Mr. Mel Gill: Can I suggest “care” or “care and parenting?”

Mr. Jeffery Wilson: Sure.

Mrs. Sheila Finestone: Care and parenting is fine. This is for the record: I'm not taking a position right now. I'm not arguing in favour or against. I just want to get some clarity within the verbiage, if I may.

From your exchange with the other members of the committee, would you suggest that the age of the child shall determine the process, as well? In other words, if a child is under age three or four, and has not developed effective literacy skills, there are a number of mechanisms....

I would agree with you that body language can tell us a great deal. A child's body language in aversion or acceptance of love and affection can be reflected very quickly. However, as a grandparent I can tell you that they have good days and bad days. On good days some of my grandchildren like to know that I'm around. As far as they're concerned, on bad days, come back when I'm 13, and I can bring a bar mitzvah present.

Voices: Oh, oh.

Mrs. Sheila Finestone: So let's be quite practical about the good and bad days.

If you wish to remove social service components that respond to a call—and we've gone through this whole business about what is a legitimate call and what isn't a legitimate call—would you not say that a social service person who has had some contact with the family...? Alternatively, would you not say that the child's pediatrician, or someone who has had contact with that child....? If the child is below a certain age, there has to be professional intervention as to the determination of where the child shall be housed?

Mr. Jeffery Wilson: I think there are a lot of observations in the questions. If we're using what I call the non-adversarial model, the parenting care plan that I put forward, and we add the word “care” to it—because it's reflective of what we want people to do, which is to care for children—then we don't need any professionals.

At the first stage the parents are going to decide what's best. They know what's best for their child, and we as a community want to tell parents that. We want to empower them upon the event of separation, not disempower them. When they go to a lawyer, you are disempowering them.

Mrs. Sheila Finestone: I heard that part. I can't use up my time returning to the lawyers and their dollars and cents in their pockets. I don't wish to return to that scene. I want to go on to your parenting plan model, if I may.

Mr. Jeffery Wilson: You don't need a professional in the parenting plan model. If they go to mediation, if they can't resolve it among themselves, and they go to mediation, then I turn to my friend.

In my experience, in the course of trying to resolve it, a good mediator is eventually going to find out who has been involved in the child's life, if there is a dispute over medical problems or something of that type, and will bring that person—

Mrs. Sheila Finestone: So you are now on your first step, sir.

• 1710

Mr. Gill, I would appreciate your intervention as well. I'm sorry I didn't hear your testimony. I am also on House duty at the same time. It makes it a little difficult and disjointed.

The issue of calling on a family member.... Well, no, I think I'd like to settle the age of the child first.

I am of the strong view, personally—and I have a personal bias—that the age of the child has a great deal to do with the determination as to who should be part of that parenting care plan. A child of tender age is very different from a child who has started school, whether it is kindergarten or preschool, and I have a sense that there should be some differentiation there.

You do not agree with that differentiation? You believe that an outside member of the family can come in, whether the child is newborn or age 15, and be the mediator or the mentor or the guider, and would have the skills and the competence to be non-biased and to effect some kind of decision-making, irrespective of the age of the child?

Mr. Jeffery Wilson: No, I don't necessarily believe that.

Mrs. Sheila Finestone: Would you like to define if there is an age?

Mr. Jeffery Wilson: I believe it's important that the family go through the process of doing that first, whether it's successful or not. Even if it turns out to be someone who is biased, it's important that people are talking to one another.

Then they go to mediation. I don't think the age matters when it comes to the process of mediation.

Mrs. Sheila Finestone: All right, that's your view. You don't think the age matters. Now I'd like to hear from Mr. Gill.

I don't know who you represent, but if you have something you'd like to say about the age, I'd like that for the record, please.

Mr. Mel Gill: The age issue goes to representation rather than to whether or not you mediate. But people come to lawyers because they've exhausted whatever remedies and negotiating might be possible within the family constellation. So at the point that a couple or one or the other of the parents asks for some form of state or community intervention, the first point of that intervention needs to be a good mediator, and a good mediator will say, “What have you tried? Are there people within your extended family or your friendship network who can help out?”

But beyond community education and the sort of thing I talked about, a promise—

Mrs. Sheila Finestone: Age, Mr. Gill.

Mr. Mel Gill: Well, age goes to representation, not to whether or not you mediate. The younger the child, the more difficult it is to represent the child's preferences. But if you have a mediated process, then if the mediator believes some sort of family assessment is necessary—a professional assessment—they'll seek that, as the courts now do.

Mrs. Sheila Finestone: I happen to be very pleased to hear about a model that's outside the adversarial model, and I'm delighted to examine this plan, but I'd like to see where and how we can design that plan to take into account certain realities. Even where parents of good will decide they can't get along with each other but they both care about the well-being of that child, there are still issues that I think, or that I may be wrong in thinking, relate to the age of the child in terms of determining where that child should stay.

Secondly, I'd like to ask about any studies or anything you may have noted about—and I think my colleague, Madame Pépin, may have mentioned this on my first or second sortie out of this room—this moving a child from one home, one domicile, to another as part and parcel of the determination of the best parenting care plan. Has any work been done to indicate what that does in terms of the child's sense of rootedness, sense of belonging, sense of child relationships with peers who may live in the district, and for two days they see them and the next two days they don't see them, and then maybe this weekend they'll see them but maybe next weekend they won't? Does it have an impact, again, based on age? And what is the healthful decision, from the work you've been doing—any one of you?

Mr. Mel Gill: Can I make a first attempt to respond to that? I think I understand your age question a little differently now.

As Mr. Wilson said, in most relationships you can identify who the primary parent is. With a very young child, particularly if you have a mother who's at home, it probably tends to be the mother, but that's not necessarily the case. The couples themselves can identify who the primary parent is in most relationships.

The issue of where the child should live and their roots is problematic, given the kind of society we live in. Ideally the child should stay fixed in a particular residence and the parents should switch, if you're looking for permanency with respect to friendships and school and so on. But that's tough to work out for most people.

• 1715

What's more important than that is that the parents are respectful of each other and not at war every time the child goes from parent A to parent B. If there's a low level of tension and anxiety in that exchange, but parents can for most purposes get along—

Mrs. Sheila Finestone: Frankly, Mr. Gill, by removing the lawyer or the legal aid person, who I think is an absolute must—everybody should have the right to representation if they are going to go to the second or third step of the parenting plan—do you think you are going to be able to determine the best interests of the child, as you're trying to say, with two parents who are going to be caring and loving toward the child, ignoring their own personal conflict, which is almost an overriding situation? I mean, is that realistic?

Mr. Mel Gill: Two things. If you de-escalate the stakes and make a presumption that there will be joint custody, that, to some extent, reduces the areas of dispute. If you take the financial issues out of the equation, that further de-escalates. As Mr. Wilson said, there's not a lot more to be left to decide beyond that, except where the child is going to live and go to school, or what doctor and dentist they're going to use. Then you get into other issues of culture and religion and so on.

Mrs. Sheila Finestone: We're talking about the best interests of the child, and we have several conventions that direct us to do and to undertake certain things.

I heard, Mr. Wilson, your concern, and in a sense, I think I share some of your concerns with respect to just ad hoc taking every part of the UN Convention on the Rights of the Child or the European convention or the Hague convention. There are things that are great in all three of them, and there are things that I find very difficult, but in all three conventions you look at, they talk to the importance of the use of family mediation—which is your second step, in a sense, and I presume these are family mediators well trained in how to remain neutral, or arbitrators—and make a number of points. They insist that this would improve communication between members of the family; reduce conflict between parties in dispute; produce amicable settlements; provide continuity of personal contracts and contacts between parent and children; and reduce the length of time otherwise required to settle conflicts.

Do you think, and do you recommend, that mediation be made in your second or third step of parenting care plan program, that this be made mandatory; that if you have reached this, you've passed the family or the good parent, whatever you want to call that first stage, and you've move to the second stage, a well-trained, competent mediator should be mandatory as opposed to voluntary? Or is there another step in between, as I think was referred to by the senator earlier? I've forgotten what they call it. It's a non-adversarial type of thing.

Mr. Jeffery Wilson: Consultation.

Mrs. Sheila Finestone: Yes, the consultation.

Mr. Jeffery Wilson: I'm of the view, as I've shared here, that it should be mandatory, but I'm still trying to figure out what are the issues that turn on age in the context of the family taking control of its own circumstances. We have two parents—

Mrs. Sheila Finestone: Who are at war. So you have two parents who are not exactly prepared to be the most consensual, and they all have personal—

Mr. Jeffery Wilson: You asked about studies. Studies are like the law. I can tell you to read Martha Fineman, or you can read Howard Irving from Canada, or the Wallerstein studies. For whatever study that says “A”, I can probably find a study that says “B”, because it becomes a political discourse, amongst other things, in this whole discussion.

In the context of age, when you say they're “at war”, if we remove from it those particular cases that I've spoken about a number of times, then it's a mindset, and a language-set, for you to say they're at war. They're only at war because we have legislation that invites people to go to war. It's the legislation that creates a civil law dispute, in the same way that if you hit my car, I'm going to litigate this. It's the same model; it's the resolution of a civil dispute.

• 1720

Mrs. Sheila Finestone: You know, I love this model. I think it sounds great. But I think you have to have some sense. Can we afford to be so adventurous into a field of personal family life that you can move forward by removing any of that legislative process, except as a last step? I want to know what kind of structure you'd need. You'd need no structure.

Mr. Jeffery Wilson: But I don't want to let you off the hook, because with the model you have, you're committing surgery right now. If someone comes in and says I have a wart on my thumb—this is what our society says—some of us might say take a potato and rub it. The system we have says amputate it.

Don't pretend for a moment—

Mrs. Sheila Finestone: Now you use laser beams, and this is a new laser.

Mr. Jeffery Wilson: But don't pretend that the existing system isn't full of a number of values. And we could try this as we did with unified family court. We started unified family courts in the country on a pilot project basis—

Mrs. Sheila Finestone: Do you like that?

Mr. Jeffery Wilson: —and we could similarly do this on a pilot project basis. We don't have to go like Sony and do it all over the world immediately.

Mrs. Sheila Finestone: Let me finish this, because I think it's very important.

So in the few provinces that have moved and show a greater awareness of change in society and have put unified family courts in and are doing the training of the judges, which I think is darn well about time and far too late, and have competent mediators available should they be required, we should leave that system in place for a while, and test in another province that might move in an interesting direction this kind of a parenting care plan. Is that what you're suggesting is the best move before we change any legislation?

Mr. Jeffery Wilson: Right. You could create a pilot project through legislation, but under the non-adversarial model it is important that you remove altogether the spectre of the court, other than for the process of appealing the ruling of the arbitrator.

Mrs. Sheila Finestone: So you don't have the judge in—

Mr. Jeffery Wilson: No.

Mrs. Sheila Finestone: No judge.

Mr. Jeffery Wilson: It would be out of their hands—

Mrs. Sheila Finestone: It's fascinating.

Mr. Jeffery Wilson: —in the same way that child support is by and large, for the average couple, average parents, out of the hands of the judiciary, other than going to the income, once we get that, and going down the table.

Mrs. Sheila Finestone: I wish you had been around when I did that hearing.

Mr. Mel Gill: If I can make a statement on the point of mandatory mediation, I believe it has worked very well in civil law in this community, in particular of late, and it should be the first point of intervention of the state. I hadn't thought about turning it into an arbitration for mediation and then an appeal to the court. I'm not sure I'd go that far. But I don't think we can wait. There's too much violence and damage being created, and we need to create legislation that enables the mediation at an early date.

Mrs. Sheila Finestone:

[Editor's Note: Inaudible]...but we could try the other as a model. Is that what you're saying?

Mr. Mel Gill: I'm not sure there's any difference.

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

Senator Anne Cools: Thank you, Chairman.

I'd like to thank the witnesses for coming before us. I know they worked very well, and I think they've done a lot of excellent work over the years.

Mr. Wilson, I've read a lot of your work. I thought you would like to know that.

I have a couple of questions, and I'll more or less take them in order. The first set of witnesses presented to us on the issue of the United Nations Convention on the Rights of the Child. My reading of the convention, which, as you cited yourself, upholds the family in the preamble, and I believe you cited articles 9, 14, and 18, is that it is not particularly useful for us. My understanding of the convention is that it does not countenance divorce, and neither does it countenance the children of divorce or the unique problems that are before this committee of custody and access.

• 1725

As a matter of fact, my reading of the convention goes in another direction. My reading of the convention goes in a direction that basically says a child has a right not to have his parents divorce or that judges should be empowered to deny parents divorces. I wonder if you could respond on that first point for me, that the convention does not countenance divorce.

Ms. Tara Collins: With the articles that I mentioned, certainly the convention applies to the situation of children in a number of different situations, and certainly in terms of divorce a number of articles apply to children in these situations. Specifically, as I mentioned in my presentation, convention article 9 is very clear about the right of the child to live with his or her family unless it's not in the child's best interest. In article 9.1, which preserves the right of the child not to be separated from his or her parents against their will, this restriction includes for such separation when it's necessary for the best interests of the child, for example, in situations of abuse and neglect or where parents live separately. In other words, then the article goes on and talks about—

Senator Anne Cools: That's my point. It speaks to the right of the children not to be separated from parents, but it does not speak to the issue of parents having the right to separate from each other.

Ms. Tara Collins: This is the right to children.

Senator Anne Cools: Perhaps we could have somebody review the convention, but my understanding is that the convention nowhere mentions divorce, and it does say in article 9.1 “where parents are living separately”, but it does not say there that they're speaking to divorce. People could be living in different countries for different reasons.

My understanding of the convention on the rights of the child is that it does not speak directly to divorce. Maybe it should. That's a different issue. Then perhaps that would have to be advanced. My understanding of the convention—and it would be interesting to see what the Arab countries would say about it and what the Roman Catholic countries would say, and so on—is that politically no convention endorsing or upholding divorce could have passed the UN. That is my information.

Ms. Tara Collins: In the work that led up to the creation of the convention, it was a number of years of work and there was a UN working group made up of 42 different countries representing different geographical regions—

Senator Anne Cools: I know all that.

Ms. Tara Collins: —religions, languages, etc. So it was fairly representative of a number of different issues. In that case, the convention's creation does represent global concerns.

I just want to make the point, though, if I could, that the convention is designed to apply to children in all situations. Although it may not specifically state children in divorce, it says children in situations where they have the right to live with their family, they have the right to have that kind of support, that this is part of their identify, it's part of their right to—

Senator Anne Cools: I agree with you, and I sincerely agree with the convention when it says that children should not be separated from children's parents. I agree with you completely. But I was just trying to say to you that at law the convention itself does not make mention of divorce and it does not countenance divorce, because the concern in the convention is that children are entitled to family life and that children are entitled to the support of both parents. So the focus is of the parents to the child, not of the parents towards each other. I just put that out for you.

If you could cite me where it says divorce.... I assure you that when law is drafted it is drafted with particular care as to what it intends. This is what I am trying to say. Conventions have an effect at a certain level, but what I'm trying to say is that this does not countenance divorce. You can make it look that way, you can make it sound that way, but it does not countenance divorce. I just wanted to make that point. I agree with you; I support the intention of what it is trying to do. But it does not speak to divorce.

• 1730

Ms. Tara Collins: In response, I would just make the point that this convention is not speaking to parents, it's speaking to children.

Senator Anne Cools: That's my point.

Ms. Tara Collins: So there are a number of articles that are relevant to this, because what I was trying to emphasize in my presentation is that this committee has an obligation to consider how to focus approaches to things. So as such this convention is very relevant in your consideration and your discussions about all this, because the child has a right to have a voice in the process. The child has the right to have their best interests considered, and they have the right.... I'd like to point out to you the question of family: the point is that the family is whatever the situation is. The child who has divorced parents still has a family.

Senator Anne Cools: I'm supporting you.

Ms. Tara Collins: Yes.

Senator Anne Cools: I am supporting you. I am saying to you that the convention upholds the rights of the children not to be separated from their parents, but it does not uphold the rights of all parents to be separated from each other. And that is the focal point, because to build a set of arguments, as Mr. Wilson so very beautifully does, one could build a set of arguments to show that the convention supports the fact that divorce is not a right. But that's another issue. It's not my position, but I'm just trying to say to you that in dealing with the words on the plain face of it, the convention does not speak to divorce. I just wanted to make that point.

Mr. Wilson, I found your comments, your presentation, extremely insightful, and I would like an opinion from you. We had some witnesses before us the other day and I inquired of them about a section of the Child Welfare Act, now renamed Child and Family Services Act. Now you see even that renaming is a shift away from children. But that's another point, because it used to be very clear, the Child Welfare Act. Then it was renamed the Child and Family Services Act, and I know how it happened and why it happened.

If you go to section 72 of the act, and subsection 72(8).... If you don't have a copy, I would be quite.... You do? Good. It's lovely to have people who are prepared with the material in front of them. It's marvellous. For the rest of the committee, the section I'm describing is in the part III and it's section 72.

As you know, subsections 72(1) through to subsection 72(8) speak of the duty of professionals to report. If you look at subsections 72(1), 72(2), 72(3), 72(4), 72(5), 72(6), they all speak about the application of the section and the subsection to professionals. It's all about the duty of professionals to report child abuse, or profound suspicion of child abuse.

However, then one gets to subsection 72(7) and subsection 72(8). There's a dramatic turnabout in subsection section 72(7), but mostly subsection (8). And in particular subsection (8) exempts lawyers from the duty to report. I'll put the section on the record, if I can, or maybe the committee, with leave, could take it as....

We have to stop operating without quorums. I'm going to start raising this. This is very improper. But with leave, perhaps we could print into the record subsection 72(7). We are not a quorum here.

The Joint Chair (Senator Landon Pearson): We are quorum for receiving evidence.

Senator Anne Cools: But not for taking any decisions. Okay, subsection 72(7). We're not a quorum for receiving evidence. We may receive evidence.

Mrs. Sheila Finestone: You're leaving it after that important point....

[Inaudible—Editor].

Senator Anne Cools: I am. I'm trying to get leave.

Mrs. Sheila Finestone: Yes. I give you leave. Go.

Senator Anne Cools: Good. Thank you.

• 1735

Perhaps the committee could take as read subsections 72(7) and 72(8).

In subsection 72(7), basically the subtitle is “Section Overrides Privilege”, and in subsection 72(8), “Exceptions to Solicitor-Client Privilege”.

I'll read subsection 72(8). The exact words are:

Nothing in this section abrogates any privilege that may exist between a solicitor and his or her client.

That's 1984, chapter 65, section 88.

Now you know, Mr. Wilson, that's very, very new in the act. In child welfare legislation, 1984 is, to my mind, really yesterday. It's really quite recent.

I did a bit of work at one point in time into the entry of that section into the act and how it got there. You smile; obviously you know a little bit about the history and how and why it got there, and the crystallized interests that grew up and were able to lobby to persuade certain attorneys general, or whoever, to get it done.

You gave some pretty strong testimony. You said lawyers and judges really don't know how to listen to children. I found that very striking, because we have had many people come before us, including the Department of Justice, who will tell us that the only consideration—which are the words of the Divorce Act—that judges pay attention to in these orders is the best interest of the child. You have told us that this is all a sham and it's bogus and that we should look at it more seriously.

But in view of the particular issue I'm raising here, in view of the activities of the lawyers and your, to my mind, stunning and excellent testimony to the extent that we have to find a way to de-professionalize the courts, the system itself, to de-adversarialize it, and so on, I wonder if you have any thoughts on that particular section in the Child Welfare Act.

I don't understand why it's still in the act, and I don't understand why people like Mr. Gill and people like the children's league have not sounded loud alarms to have that removed. What it basically says is a lawyer can be exempt. A lawyer can know of child abuse and not have to report it.

That was a pretty long question.

Mr. Jeffery Wilson: I think I have it, Senator.

Senator Anne Cools: Good. Thank you.

Mr. Jeffery Wilson: The first thing I want to say, to pick up on one point, is that judges and lawyers in their advocacy do focus entirely on the best interests of the children. It is not a problem of willingness; they reluctantly do this because the legislation requires that they do it.

When I say that judges and lawyers are not good listeners to children, I'm saying that the system under which they work is not the appropriate model for listening to children. I'm not making a criticism of the judiciary or lawyers. I'm saying the system we have does not optimize the ability of our community to hear children.

Now, on the second point—and I'm a little confused with exactly how this is relevant to the issue of representation, but I do see the tie—even before this section came into effect, and as the Law Society of Upper Canada teaches at the bar admission course every year, there is a solicitor and client privilege. It is one of the most fundamental tenets that we, as a community, preserve in our society, that I can go to a lawyer, and more than a priest, more than a psychiatrist, I can tell the lawyer that I have committed a crime or I've done something wrong. We are obliged, and the community has set this as a precedent, as a standard, because people have a right to have counsel. So you're treading on something that has been true for centuries—not that it necessarily means that it's right—that a person can go to a lawyer, tell them they've committed a crime, and there is privilege.

All subsection 72(8) does is preserve the privilege that existed beforehand, because the section might otherwise suggest the opposite when it says that all professionals have a duty to report abuse and that there is no privilege in respect of a psychiatrist, a member of the clergy, a teacher, and so on.

• 1740

So they needed to put in subsection 72(8)—and this is my interpretation, and we could probably have five lawyers and five different interpretations or five senators and five different interpretations—in order to make clear that having said what they said in subsection 72(4), they are preserving the privilege.

The exception to this privilege is if a client comes into my office and says “I am about to commit a crime of abuse” or “I am thinking of it”, or gives me grounds to believe that person is about to commit an act of abuse or another criminal offence. As we teach our students in the law society, a high ethical command takes control. When it's an offence that's about to be committed, then there's an obligation to report.

I'm trying to tie it into the divorce discussion. If a child came to me and the child were competent to give instructions—if this is where you're heading—if a 13-year-old young woman said “I don't want to live with my mom and dad”....

This is a question I get asked again and again, save and except for the recent questions about everybody coming to Canada having children here too, which is a whole new area.

If she comes to me and says “I'm 13 years old and I want to live with my 19-year-old pimp. I don't want to live with my mom and I don't want to live with my dad. I want to live with my pimp.”... She might not put it that way, but we identify that the person is somebody with whom the child, for many of us, should not be associated, and she tells me this.

Senator Anne Cools: No, but I understand that. In a way you haven't directed your mind precisely to the question I'm asking.

First of all, there's a difference between solicitor-client privilege and solicitor-client confidentiality. Here they speak precisely to the issue of privilege. You say, and I understand, that if a client comes in and says to a lawyer, “I'm accused of having abused my child”, yes, the law accords that person proper representation to legal counsel. No one has any quarrel with that. Where the quarrel comes is when that client, who has said to the lawyer, “I am accused of having abused my child” and is retained by the lawyer, tomorrow or the next day continues to abuse the child. That is where the problem comes, Mr. Wilson, in terms of whether or not that lawyer has the duty to disclose or not to disclose.

Mr. Jeffery Wilson: I've answered that by saying that where the lawyer, in her or his best ability, has reasonable and probable grounds to believe an offence is occurring or is about to occur or will repeat itself—

Senator Anne Cools: No, not according to this.

Mr. Jeffery Wilson: No, I'm telling you the law. You have me here. I've written the book. So I want it clear that it's my opinion and it's one that we at the law society, in teaching child protection law.... Every year it's almost an examinable question. Where the lawyer has reasonable and probable grounds to believe the offence is about to be committed or will be repeated in the future, then the lawyer cannot rely upon subsection 72(8). The lawyer has a duty under the ethics of our law society to report that event, to report the client.

So if a client says to me “I have hit my daughter; I want to get help”, we can organize the help and it can be privileged. If a client says—which they don't often say that I can think of—“I have hit my daughter, and when I go home tomorrow, I'm going to smash her up a bit more”, then the privilege that otherwise existed ends.

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

Senator Anne Cools: I wasn't finished, but maybe I can go back in the second round if we have time.

The Joint Chair (Senator Landon Pearson): We're running out of time.

Senator Anne Cools: Well, perhaps then I could have an extra minute.

We had a witness before us in Toronto who sued Children's Aid. He was falsely accused of sexually abusing his children, and he successfully sued the Children's Aid. You probably know the case. Anyway, his name was Reverend Baxter. I've forgotten the exact name of the case at the moment.

• 1745

He demonstrated in his lawsuit that in the final stages the Children's Aid had knowledge that its accusations were false and the children were being abused by somebody else, yet no one had any obligation to report, or they believed they had no obligation to report.

You're dealing with a very profound and extreme case here.

The Joint Chair (Senator Landon Pearson): You said you'd be very quick. There's still another question to come.

Senator Anne Cools: Okay, I'll defer.

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

Senator Erminie Cohen: Thank you very much.

The phrase “the best interests of the child” is used by witnesses and that's what this is all about. There's no definition in the Divorce Act of what the best interests of the child are. Do you think it would be helpful if we defined the best interests of the child in the Divorce Act? Can it be defined?

Mr. Jeffery Wilson: Wherever it's been defined, be it any provincial legislation or the UN Convention on the Rights of the Child, it's defined so broadly.... It's like beauty: it's in the eyes of the beholder. Any judge can seize upon the factors they want and there's always a residual clause that says “any other circumstance considered to be relevant”.

But if you consider or give reflection to what the witnesses are saying today about this notion of mandatory mediation, the non-adversarial model, then a definition one might want to put into the Divorce Act—you would do it in your legislative terms—is the community believes it is in the best interests of the child that you don't go to court, and alternative dispute resolution be implemented.

Senator Erminie Cohen: So if we're in agreement, that's how we could include it.

Mr. Jeffery Wilson: You could include it or say that in Canada, when a judge acts under the Divorce Act, the judge applies the same criterion as if he or she were sitting under the Children's Law Reform Act, or if it's British Columbia, the Family Relations Act. It's the same test.

Mr. Mel Gill: Some of the child welfare acts across the country get at the notion of best interests in sort of a negative way. They say you can't endanger the health, social or psychological well-being or safety of the child. You could probably put that in a positive sense. The best interests must consider the health, social well-being, psychological well-being and safety of the child. But it's very difficult, and the courts where those best interests tests have been used have really struggled with how to define that.

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

Mrs. Finestone, I think yours is the last question.

Mrs. Sheila Finestone: I'd like to return to the question of the age of the child and the consultation with the child.

How would you foresee consulting the child with the parents present? Would you consider that the child should be with the parents when the child is consulted, or would the child be in a sort of in camera session with the family member, the arbitrator, or the mediator, at whatever stage in the evolution of the parenting care plan we're thinking about, or even in the present system as it is working with family court? I believe you have to take the child's opinion into account, but under what kinds of physical arrangements would that happen and what kinds of circumstances, Mr. Wilson?

Mr. Jeffery Wilson: There's a witness who should be here, Elizabeth Ridgely from the George Hull Centre, because we've worked on these kinds of cases.

I think the sooner the child talks to the parents directly and upfront the better. These things get blown completely out of perspective, and that's the seeds of destruction. Children can talk to their parents. It takes greater skill and acumen on the part of the mediator to enable the child to speak and be empowered, but if we're talking about the non-adversarial model where we don't have the manipulation etc., and the abuse, then I think everybody should be in the same room together.

• 1750

Mr. Mel Gill: But not initially.

Mrs. Sheila Finestone: I am very concerned about that, Mr. Gill, as you are.

Mr. Mel Gill: Absolutely. Again, in most cases mediators will meet privately with the various parties before they bring them together to get a good sense of what is possible by way of resolution and what is not. You need to meet privately with children in order to get an uninfluenced and uncoerced sense of what they really want. Sometimes that child is going to need help in telling the father or mother, “I really don't want to live with you”. That won't come out in the first instance.

The other thing, of course, is the setting and the circumstances.

Mrs. Sheila Finestone: A two-way window is what I was wondering, and whether you would recommend that at the meeting.

I thank you, Mr. Gill, because I have some very serious reservations. If you bring a family member in and you have that child in the room, the family member may be the most skilled person in the world, or maybe just a goodwill member with whom they will exchange, but one mistake on the part of that relationship, when you have the child with those two parents—and let's say they may have been able to put aside their personal difficulties and focus on what is best for their kid—and that child has an expression that will reflect negatively on one of the two parents, then it's going to be used in the most destructive way. You will never be able to rebuild any kind of a positive relationship, even on the visitation rights and everything else.

Mr. Jeffery Wilson: You're more cynical than I am. If the child's not there, I would suggest to you that the child hears about it very soon.

Mrs. Sheila Finestone: Excuse me, but I think you should consult with the child. You should do that consultation in camera first.

Mr. Jeffery Wilson: Sure.

Mrs. Sheila Finestone: As a matter of fact, it wouldn't hurt for the parents to watch in a two-way mirror so that the shock they first have to absorb would be outside of the visual and emotional impact of the child.

Mr. Jeffery Wilson: The difficulty with the point you're raising is that if you think at all about what we're calling the lay, or within-the-family, facilitator, then to distinguish from what Mr. Gill has talked about in terms of the mediation, you're in an entirely de-professionalized setting. You can't say to an uncle or aunt or grandparent that they're going to be a facilitator but they have to work behind a two-way mirror, etc.

So you are, to some extent, raising the risks. You're exposing the child to some of the concerns you're identifying, but you would be doing it in the interests of enabling the family to try to work it out on its own. Legislation might be necessary, based on the witnesses you hear, to say that at this process, maybe children shouldn't be involved. It should be a matter that the elders, or the adults, deal with it, without the children, to see if they resolve it, if you are of the belief, which I am, that once the parents make a decision in these non-adversarial matters, that's what the child likes the best—conflict-free resolution, whatever the decision.

Mrs. Sheila Finestone: The other part of that child—

The Joint Chair (Senator Landon Pearson): Would you like to comment on that?

Mrs. Sheila Finestone: Could you hold off on that for one second? I'd like to hear your opinion. It's very important, because I think they are somewhat divergent and yet you could find common ground—or that's the sense I'm getting.

I'd like to ask you that where there are allegations of mistreatment, how would you handle it? Let's put it this way. I know you exempted violence and all the other things from this kind of a pattern, and you put it into the more adversarial pattern of the court system. If there was an allegation of mistreatment of this child, sexual or any other kind of physical violence, how would you treat that situation should it come up in your intervention with the children?

Mr. Jeffery Wilson: Once there is the allegation of abuse, then I'm of the view that the litigation process is not the best, but it's the one we have. It's necessary in order to get to the truth of the matter and to immediately respond, through child welfare intervention, as to whether there's merit to the allegation.

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What occurs, and what the problem is in these allegations of sexual abuse, of which you've heard much, is that the custody case often becomes a determination of whether or not the abuse occurred. What should take place is that as soon as someone raises the ante, so to speak, meritoriously or without foundation, and makes that allegation of sexual abuse, we then have experts in this field and a specific court designed throughout the country to respond to that problem. So there's a halt to the private dispute between the parents—

Mrs. Sheila Finestone: Are you talking about criminal court process?

Mr. Jeffery Wilson: No, the child protection process.

Mrs. Sheila Finestone: Okay.

Mr. Jeffery Wilson: You go the child protection route, whereby a judge, on a standard that is the civil balance of probabilities, not the criminal, makes a determination as to whether or not abuse occurred and that's it, subject to appeal, so that the custody case does not become a disguised determination of whether or not abuse occurred.

Mrs. Sheila Finestone: And where does the child welfare—

The Joint Chair (Senator Landon Pearson): We do have a supplemental question, just because—

Mrs. Sheila Finestone: Okay.

The Joint Chair (Senator Landon Pearson): Mr. Gill is going to intervene.

Mr. Mel Gill: I don't know what the statistics show, but my guess is that the majority of child custody cases are settled without any state intervention.

The difficulty I have with Mr. Wilson's suggestion about family involvement or family mediation is that I'm not sure how it would be facilitated. You still need to have a residual state vehicle for responding to people who come and say they've tried what they can to help them fight this out. I think the first point of state intervention still has to be mediation, mediation which will go back and review what's been done and what might still be possible with the family. Nevertheless, you must have someone who does that.

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

You have a supplemental, Senator Pépin, and then you have to go.

[Translation]

Senator Lucie Pépin: I have always believed that the real trauma for a child whose parents are separating is having to choose between mommy and daddy, particularly when the parents are fighting. If he is told that he must make a choice, I think that a five or six year-old child will have a hard time saying whether he wants to go live with his dad or with his mom, because he is distressed to see his parents arguing. He doesn't want to have to choose between his father and his mother.

[English]

Mr. Jeffery Wilson: So that's what they'll say. They'll say “I don't want you to separate”. It's better that they say it at the beginning rather than walking around and saying “How come no one listens to me and I never get the chance to say that?” It would be better for parents to hear that right at the beginning because that will encourage the parents—-

Senator Lucie Pépin: But you say that the child will be able to choose and say where he wants to go.

Mr. Jeffery Wilson: Most of the children, I suspect, based on my experience, will say “Mom and Dad, stay together”.

Senator Lucie Pépin: Do you have any?

Mr. Jeffery Wilson: Yes, I do. They'll say “Stay together”.

The Joint Chair (Senator Landon Pearson): We will have a quick question from me before we go. It is six o'clock, and we're going to break the quorum.

I was interested, Mr. Wilson, when you were speaking of joint custody. One of the things we've been hearing is that rather than using the words “joint custody” we should be using the words “joint parental responsibility”. Do you feel more comfortable with that?

Mr. Jeffery Wilson: Joint parental care, joint parental responsibility—

The Joint Chair (Senator Landon Pearson): Joint parental care and so on, so that we're not talking custody we're talking joint.... Okay.

I'd like to thank you very much. It's been an extremely interesting afternoon. Thank you for staying with us this long and answering our questions.

We're adjourned until 3.30 p.m. on Wednesday.