[Recorded by Electronic Apparatus]
Wednesday, May 20, 1998
The Joint Chair (Senator Landon Pearson (Ontario, Lib.)): Good morning, and welcome to the 28th meeting of the Special Joint Committee on Child Custody and Access.
Before we start, I'd like to remind those of you who are here, including ourselves, about what our mandate is. The mandate of the special joint committee is to examine and analyse issues relating to custody and access arrangements after separation and divorce, and in particular, to assess the need for a more child-centred approach to family law policies and practices that would emphasize joint parental responsibilities and child-focused parenting arrangements based on children's needs and best interests.
We'd like to welcome as our first witness today, Mr. Gerald Chipeur. He is accompanied by Barbara Johnston. If you would make your as-brief-as-possible presentation, so we can ask you questions, we'd appreciate it.
Mr. Gerald Chipeur (Individual Presentation): Thank you very much.
Welcome to Alberta. It's nice to appear before the joint committee in our own province.
The purpose of the submission we will be making this morning is to highlight the approach the Supreme Court of Canada and other courts in Canada have taken to the question of religion in child custody and access disputes. We will then suggest that legislation is required to ensure compliance with the Charter of Rights and Freedoms and Canada's international obligations under the Convention on the Rights of the Child.
The convention requires a government to demonstrate that interference on religious grounds in custody and access issues is necessary before the government may proceed to act in a given situation. We suggest that the charter leads to a similar result.
Unfortunately in Canada the courts have not yet expressly adopted this standard. Instead, the courts have remained largely silent on this important question. Judicial silence has in turn allowed warring parties—litigants—to use religion as a weapon in child custody and access disputes.
The test that we are going to suggest to you is one that is based upon the principles found in the convention and the principles found in the charter. It is set out in our submissions, but to briefly summarize that test, we first of all suggest that the Divorce Act should prohibit the courts from even getting into the question of religion until one of the parties has established that the actions of the other that are religious in nature are harmful or potentially harmful to the child.
We suggest that this is required because there is no basis for an inquiry by the state—and the courts are part of the apparatus of the state—into the religious views and convictions of an individual citizen unless one can first establish, under the charter, that such inquiry is demonstrably justified in a free and democratic society.
So we say there should be, first of all, a threshold that one of the parties should get over before they even put religion on the table.
Once religion is on the table, we suggest the courts should then proceed to ensure that one of the parties, the party that is saying religion is an issue, then establishes that the religious activity in question is in fact harmful. We suggest that religion should never be a factor that the courts weigh in the sense of saying, well, which religion is better, or is it better to not be religious versus being religious?
We point to the other parts of the charter, section 15 in particular, and ask the questions: Would you consider gender? Would you consider race? Would you consider national origin? Would any of those factors ever be thrown into the pot? I think it's clear that the answer is no.
We're suggesting the same rule should apply in the case of religion under the Divorce Act. Unfortunately, judges have not been able to control themselves in this area, and they have entered into inquiries and have gone so far in some cases as to actually suggest that they were going to give custody to the majority religion parent and not to the minority religion parent because the child might be teased at school if they were raised in the minority religion.
I can give you an unending list of situations where personal biases of judges have entered into the equation, sometimes innocently, and sometimes the judges have even acknowledged that they are getting into this area and they sometimes express trepidation, but they still do it, because the Divorce Act does not prevent them from doing so.
We're suggesting while the best interest test, as it's set out in the Divorce Act, is fine in and of itself, in three cases in which the Supreme Court in Canada has had the opportunity to address this particular question—and my colleague and I have been in the Supreme Court on those three occasions—we've asked the court to say that the charter prevents this kind of religious inquiry and religious judgment. On all three occasions, the judges were so divided that they weren't able to come up with a rational test. This has led to individuals, the warring sides in these disputes, continuing to raise these issues in the courts as weapons to be used as a bargaining chip.
For example, in the most recent case, the father said: I don't want you to take the child to church with you because I'd like to take the child to baseball with me, and so I'm going to now suggest that you taking the child to church is harmful. You're taking the child to church too often. For hours and hours you have this child at Sunday school and church, and that's just not very good for the child.
The court at the end of the day said there was no basis for that argument, but even though there was no basis for it, they went all the way to the Supreme Court of Canada and they spent thousands and thousands of dollars on legal fees and went through the trauma for the child and that parent of dealing with an issue where if the legislation itself were to say best interest is obviously the test but we're not going to allow you to even get into the religious aspects of this until you first meet the test we're suggesting—
One final comment I'd like to make is that it's important to understand that, to a certain extent, some of the judges on the Supreme Court have corrupted the best interest test by asking the wrong question. If one were to simply say the courts should treat a married mother and father the same as a divorced mother and father, and vice-versa, I don't think they'd fall into these traps, but for some reason or another, once a divorce occurs, the judges think they have a more important role and a role that gets into the rights of the parents and in fact allows them as judges to tell those parents what to do in the area of religion in a way that they would never think of if those parents were married and living happily together.
It's important for the legislation to make it clear, as it does in the Divorce Act right now, but in this specific instance even more emphatically, that it is not appropriate for a judge to treat divorced parents any different from married parents.
To a certain extent, there's going to have to be a change in philosophy in the courts, and I think the Divorce Act amendment we're suggesting can help lead that change in philosophy from one where the state is assumed to always know what is best. It has been the state, through the judge, that says this is what I think is in the best interest. I think the state needs to use some wisdom and a little bit of humility and say maybe the state doesn't have all the answers, and maybe, as imperfect as the parents are, it's better for the state to step back and let the parents make those decisions when they have the child with them. The state can then say, we're not going to get into this question until we are absolutely certain there's harm here.
After all, if one can establish harm, it doesn't matter whether that child was left unattended when the parent went to the tavern or whether that child was left unattended when the parent went to the church. It's the same impact. We're saying that's the proper test.
We'd be happy to answer any questions you have about our submission and any other questions you may have of us.
The Joint Chair (Senator Landon Pearson): Who would like to start?
Ms. Carolyn Bennett (St. Paul's, Lib.): —
[Editor's Note—Inaudible]— a case where you felt there was a prejudice? I wonder if you could give us an example of how you think the best interests of the child were not served by the way a judge had dealt with religion.
Mr. Gerald Chipeur: Well, let me give you the three examples we were involved with. It's very clear.
The first two both involved fathers who were members of the Jehovah's Witnesses faith and mothers who were members of a majority faith. The mothers, in both cases—one out of British Columbia and one out of Quebec—said it was harmful to their children for the father to talk to the children about religion. It was harmful for the father to take the children to church. It was harmful for the father to have them in the presence of other members of his faith.
They then got orders in the lower courts that actually said the father may not talk to his children about his faith—may not even talk to them, not one word. That's includes prayer or anything else. The father may not take them to church. The father may not have them in the presence of other members of the faith.
The judges in B.C. were so prejudiced towards this father and his faith that they actually ordered solicitor-client costs against the father and against the father's church for the fact that they actually opposed that application by the mother to completely shut the children out from the faith of the father.
Senator Anne C. Cools (Toronto Centre, Lib.): Chair, he's referring to very specific cases. I think he's speaking about three cases. So that we know what he's talking about, could he—
The Joint Chair (Senator Landon Pearson): Oh, yes.
Mr. Gerald Chipeur: Sure. The name of the case was Young v. Young.
The Plouffe v. Shea case was the case out of Quebec.
At the end of the day, the Supreme Court of Canada said in Young v. Young that there should be no restrictions like that in that case, that the father should be able to do that.
We've seen little things, like in the most recent case, St. Laurent v. Soucy, the court of appeal in Quebec upheld an order that said you can't go and visit your neighbours with your child if you're going to talk about religion when you visit your neighbours; you can't take the child to church too much—restrictions that went to the very substance of the religion as opposed to just procedural issues relating to potential harm. That was after the testimony of the only expert who said there is no harm here, there's nothing wrong with these activities, this child is not being adversely impacted. Still the trial judge accepted, against the testimony of the experts, the testimony of the father, who didn't like the religion of the mother and wanted to have his child at the baseball games instead of at the church with the mother.
I could give you other examples. We've seen judges give orders relating to what kinds of prayers— we've had judges say a child shall be exposed only to Orthodox Jewish philosophy. I don't know how they would ever enforce it. Who's going to decide what is Orthodox and what is not? They've said the child can be served and eat only certain kinds of foods or drink certain kinds of drinks. So it gets into some fairly specific religious-based efforts by the judges to achieve what is in the best interests of the child.
Our position, very practically, is that if problems developed in that home, the parents and the child would be the ones who would have to resolve the problems. A disinterested third party such as a judge is not going to be able to solve everything by trying to use the best interests test to get into the question of the religious practices and beliefs of the parents and children in that marriage and family.
The Joint Chair (Senator Landon Pearson): Do you have a question?
Senator Anne Cools: Thank you very much, Chairman.
Chairman, I wonder if we could allow the members of the committee from Alberta to do their Albertan thing.
It's an old parliamentary tradition we have.
Mr. Eric Lowther (Calgary Centre): I guess what Senator Cools is referring to is that on behalf of all the Albertans here, and I am one, the member for Calgary Centre, I want to welcome the committee to Alberta. I hope you enjoy your stay here in Edmonton and get a chance to look outside sometime during the day for the sunsets. I'll leave it at that.
Thank you, Madam Chair.
Senator Thelma Chalifoux (Alberta): I really don't have a question, but I am Senator Chalifoux. I am from northern Alberta. I am an aboriginal woman. I too would like to welcome you, and I'm very, very pleased to see the interest in this problem the committee has raised.
My family have been Albertans for many generations, before it was ever Alberta. I have witnessed and seen a lot of issues that have come forward, and I really appreciate what you have brought forward in the case of religion.
I have one question. Because these cases have created a precedent, how would it affect the first nations and the aboriginal spirituality and religion of the first nations? We have a lot of mixed marriages, so how would the precedent affect them?
Mr. Gerald Chipeur: My answer as a lawyer is that I don't know the answer, and that's the problem. The Supreme Court has created significant uncertainty by allowing the questions to remain out there. What we are asking for is some certainty, so that you know when you go to a particular judge no one is going to be able to argue that your religion is worse than her religion or his religion.
Unfortunately, even here in Edmonton, one argument that was made previously very nicely highlights the problem. One side said she didn't think the father should have any access to her child because he's a witch, he's a member of the Wicca organization. The judge in Alberta said it was a question of religion and as judges they were not going to get into it.
That judge properly said they were not going to judge Wicca against another religion. Unfortunately, this has not been the consistent decision across the country. You never know when you're going to get a judge who will say if the child is raised as a witch, the child would be teased at school or would not be exposed to the right kind of moral influence, so custody should be given to the other parent or should not be given to the other parent or access should be refused.
The problem is not so much that there aren't precedents one way or the other. There are precedents on both sides of the question. We're asking for some clarification in the law that when it comes to religion, just as with gender, race, and all of the other principles and factors outlined in section 15 of the charter, religion should not be on the table without evidence of harm.
Senator Thelma Chalifoux: Thank you very much.
The Joint Chair (Senator Landon Pearson): Senator Cools.
Senator Anne Cools: Thank you, Chairman.
Before I put my question to the witnesses, they said they were involved in three cases. They cited one, Young v. Young. Could they also cite the other two cases, please.
When you say you were involved, I got the impression you meant that you argued those cases.
Mr. Gerald Chipeur: We did. We argued as interveners in Young v. Young, Plouffe and Shea, which is P. v. S. in the reported decisions. That's in our paper. We were also involved in St. Laurent v. Soucy; again, that's S. v. S. I believe in the—
Senator Anne Cools: So you didn't intervene or act in P.(D) v. S.(C), did you?
Mr. Gerald Chipeur: Yes, that's the Plouffe v. Shea decision. We were in all three.
Senator Anne Cools: Excellent. I just wanted to be clear. I know your work.
You have said some very insightful things. In one of the statements you made, you said the state should use wisdom—
Mr. Gerald Chipeur: And humility.
Senator Anne Cools: —and humility—when the judges and the court define— and I missed your exact words after that. Then you went on a few sentences later to speak about the judicial corruption of the doctrine of the best interests of the child.
I'm also very mindful of your work in general on the issues of judicial activism. I've read very carefully a lot of your work and concerns for the whole phenomenon of judicial activism. Certainly, in these cases of which you speak, these concerns certainly do come together.
I just wondered then if you could comment in light of those two thoughts: the judicial corruption of the doctrine of best interests of the child and the phenomenon of judicial corruption. The state so far has been delegating its authority to the judges to decide what the best interests of the child are.
Could you comment on one of the cases you intervened in, Young v. Young, in which the judge, Madam L'Heureux-Dubé, who, as we know, is a feminist judge, said “The role of the access parent is that of a very interested observer.” I wonder if you could respond to that.
Another time, in the case of P.(D) v. S.(C), and you probably know this case backwards and forwards—I'm reading from a document called The Best Interests of the Child—she concluded that the restrictions on access were necessary to promote the best interests of the child in light of the judge's findings that the father engaged in religious fanaticism and in transitional behaviour.
I wonder if you could tie your concerns together in light of these statements. The law around the issues you raise is in a terrible state of confusion, and the judges really have added to the confusion enormously.
Mr. Gerald Chipeur: The point we made after those two decisions came out was that while there are only seven judges, we got eight different decisions out of those cases.
Senator Anne Cools: Yes, I know.
Mr. Gerald Chipeur: Madam Justice L'Heureux-Dubé, I believe, was in the minority in Young v. Young, but in the majority in P.(D) v. S.(C).
It's impossible to determine what the law is after those two cases. Unfortunately, the most recent case, the St. Laurent v. Soucy case, in one paragraph dismissed the issue. We therefore have no direction from the court.
On the particular question you raised, the Divorce Act in subsection 16(10) specifically says the court shall give effect to the principle that a child of the marriage shall have as much contact with each spouse as is consistent with the best interests of the child.
The first priority is give as much contact as possible. Then it says “as is consistent with the best interests of the child”. How do you apply that test? This judge in fact said that she was going to come at it from the standpoint of themselves as the determiner of the best interests, that they were not going to show any humility, that they were going to believe they had the best picture of what's in the best interests of this child. In this case she believed this particular father was fanatical.
Based on her views of his religious beliefs, she came to the conclusion that the best interests test allowed her to not give effect to subsection 16(10). She could say that she wasn't going to give as much access as possible.
We're saying we don't believe the best interests factor in subsection 16(10) should be used in that way, in a way that is religiously biased against the beliefs of the father, unless first of all Justice L'Heureux-Dubé came to an independent decision that not only were the ideas he had about religion fanatical, but the child was going to be harmed by them.
There was never in any of those cases any finding of harm. There was no evidence of harm, and there was no finding of harm. There was no argument. All they argued was, what do I think is best for this child? Everyone was throwing out their views as to what they thought was best. The mother had one view, the judge had another, the father had another, and the psychologist had another. We're suggesting that is not the way to resolve issues when you're talking about the important area of freedom of religion.
We're saying we think there is a role and responsibility for parents regardless of whether they have access or custody, and we're saying they must have under subsection 16(10) a pre-eminent role, not just a role as an interested observer, which the courts can brush off. They must be a priority for the courts, and the courts aren't giving them priority. The courts are in fact saying they are more important to this child than the parents are. If the court thinks a parent is fanatical, it doesn't even have to come to a conclusion that the fanaticism is harmful; it just has to come to the conclusion that it doesn't like the parent's beliefs.
We think that is not an appropriate interpretation of subsection 16(10). We're saying we don't think the charter or the convention— It's important to understand that we're asking you to make the law consistent with both the charter, which is a constitutional document, and the Convention on the Rights of the Child, which is a positive obligation that Canada has in law. We're saying the current interpretation does not give enough clarity to prevent parents from acting in a way that would violate the charter and the Convention on the Rights of the Child.
Senator Anne Cools: I have to tell you that, as always, your answers are so well thought through. It is always a pleasure to listen to you.
I have one last, very quick question. What advice can you give to us, knowing of course that Parliament has superintendence over the judges according to the Constitution? What should we do with judges who choose to corrupt doctrine such as the best interests of the child and judges who decline to apply the law in the way that Parliament intended?
Mr. Gerald Chipeur: Well, in the most recent Supreme Court decision in this area, the judges suggested a dialogue. I'm suggesting to Parliament that you take up that dialogue—
Senator Anne Cools: Good.
Mr. Gerald Chipeur: —that you have a role. If the judges are going down a road you didn't intend them to go down, don't sit back and say the judges said it, the highest court in the land said it, because that's not the end of the story.
Parliament has the ability to pass laws to clarify what it meant and to completely reverse. You have, many times in the past, done just that. There have been many occasions on which the Supreme Court has said something—and we're not even saying the Supreme Court is in disagreement with what we're saying. We're just saying they've left the law so muddy that no one can rely upon it to direct the way in which they should act.
We're saying Parliament has a role and it should exercise that role in this area.
Senator Anne Cools: Thank you. Well said.
The Joint Chair (Senator Landon Pearson): Mr. Lowther, you had a quick question. We should come to the end of this section, but you may ask a quick one.
Mr. Eric Lowther: Thank you, Madam Chair.
My questions are really to sum up and more for clarity than anything else.
You're suggesting this amendment, Mr. Chipeur, because they're currently not complying with the intent of the charter. Isn't this a little redundant? They're not following what's there already, so we're going to add some more stuff and hope they follow that.
Mr. Gerald Chipeur: Well, the charter sets forth broad principles. Then it's up to the courts to apply those principles. The courts have avoided giving us any direction on how those principles should be applied in this particular situation three times now.
Mr. Eric Lowther: If they've avoided it there, will they avoid it here too?
Mr. Gerald Chipeur: If you tell them they may not enter into a religious inquiry, one would trust they would respect Parliament's statement of the law.
Mr. Eric Lowther: So it's an issue of tightening it up.
Mr. Gerald Chipeur: Yes, it's tightening it up and saying here's where you go, judges, you don't go into the area of religion, stay out. Unless harm is an issue— and then harm all by itself is the issue. It's not which religion is better. It's not whether religion or non-religion is good or bad, but it's what's the harm. Let's focus on the real issue here, which is the child and the harm to the child, and not on the philosophical debates that go on between judges and parents and between parents.
Mr. Eric Lowther: I guess some of the case law you've given us here and referenced in your presentation underline the need to tighten it up. Is that right?
Mr. Gerald Chipeur: That's right, because some judges get it right and other judges get it completely wrong.
Mr. Eric Lowther: I know we're pressed for time, but what would be the process where there is harm? If you can't bring up religion in the court, what do you bring up? You have the Wicca example. Let's say they're into some sort of mutilation or something. How do you bring it up if you can't say it's religion that's causing all this, if you can't even say the word?
Mr. Gerald Chipeur: Oh, no. If religion is an issue, the initial test requires you to go into the harm question and then you bring religion in. Absolutely. Let's say it's snake handling to show faith. If the religious practice itself, such as child sacrifice, is the harmful practice, you would immediately bring the issue, even though it had religious overtones, to the court. You would then say this religious practice is harmful and here's the evidence it's harmful. The court would then say, absolutely, we're going to charge full speed ahead on this issue because you've established harm.
That's what we're asking the courts to do. We're saying you must ask whether there is harm. The courts so far have said, no, we just think we should decide on what we think is best. If we like the Wicca religion better or if we don't like it, we're going to use that in our decision-making process. I'm not saying the Wicca religion has mutilation or anything, but if it did, they would have to establish first that mutilation was involved.
Mr. Eric Lowther: Do you have any final comments on the situation of two parents, one custodial and one non-custodial, who have very different faith positions and religious practices? What's the child's experience in that? Should the law have a hand in it? Should we stay out of it totally and let it evolve as it is? Where are you coming from there?
Mr. Gerald Chipeur: Yes, that's the humility part. I'm suggesting the law, regardless of which is better—and there may in fact be one that's better—has no right, no role, and no ability to decide which is better. We're suggesting that under subsection 16(10) let the child live in each home.
For example, we allow parents to take the children to a baseball game, to the movies, and to restaurants. Those parents expose them to all kinds of life experiences. We're saying religion should be no different. Religion is just another life experience each of the parents should be participating in with their children and letting their children know who they really are. If we allow restrictions on the religious activities, that child is not going to know that parent as the parent really is. At the end of the day, after so many years, 18 years maybe, after they've had a chance to live with both parents and see both religions, they're going to have to make a choice, and that's when they should make the choice. The court shouldn't be making the choice for them when they're young, and we make this point in our submission.
Mr. Eric Lowther: We appreciate your coming forward. That's great.
The Joint Chair (Senator Landon Pearson): Thank you.
Miss Bakopanos, we have come to the end of our session, but do you have a question?
Ms. Eleni Bakopanos (Ahuntsic, Lib.):
[Editor's Note: Inaudible]
Mr. Gerald Chipeur: That's right. We're saying that's an appropriate test because there is nothing better. It's like democracy. It's the worst of all political systems, but there's nothing better than it.
It may be there are warring parents who say harmful and cruel things about each other in the context of their religious beliefs, but there's nothing the state can do about it unless you can prove harm is there. If you can't prove harm, then the state had better just stand back and let those parents have as much access to and contact with that child as possible. At the end of the day, we have to allow life to evolve.
Ms. Eleni Bakopanos: We've heard a lot about mediation —
[Editor's Note: Inaudible]—
Mr. Gerald Chipeur: Sure, as long as there is voluntary mediation. If it's not voluntary, I don't think there'd be much use.
Ms. Eleni Bakopanos: Thank you.
The Joint Chair (Senator Landon Pearson): Thank you for coming.
Our next witness is Mr. Brian Fayant, from the Métis Regional Council - Zone 4 of the Métis Nation of Alberta.
Mr. Brian Fayant (President of Zone 4, Métis Nation of Alberta, Métis Regional Council): Good morning, Madam Chair. Thanks for allowing us to make a presentation.
Maybe I should give you a little information about myself. First of all, I was asked to come here on Thursday for my counterpart Pheb Goulet, who's one of the case management supervisors at Métis Child and Family Services. He certainly knows a lot more about the specifics on a day-to-day basis.
I have three years of study in social work, and I've got about 12 years of experience in the Métis Indian community with child care, child welfare, and a number of other capacities in the social services field.
I want to speak on two different issues. One is about access, but around poverty, and the other is about access as a Métis person. I want to discuss that a bit. I will have a written submission for you once we have a chance— but I wanted to be here this morning.
I have the social services portfolio for the Métis Nation of Alberta. I'll do my best to address the issues of our members, our families, and our children. Certainly the children are of great importance to us. The Métis people, the Métis nation, the family are in great transition right now.
I believe it's our desire to have children safe, welcome in their homes, welcome in their communities, welcome in this country, in Canada. I like to believe that. I say this because I also have some great concerns that the Métis child, the Métis family, and the Métis members of Canada are not necessarily feeling welcome.
I believe it is necessary to do this to ensure our children are contributing members in Canada. Your data will tell you that a large number of our people are in poverty, are on the streets, and are having a great struggle with their identity. They're suffering from a loss of identity. I think this all contributes to a number of things.
I believe our primary energy has to be on the child. It has to be focused on what's important for the children.
In saying that, I want to talk about this financial piece right now. When I say a number of people in our community are struggling with finances, too large a number are living at the poverty level, if not below. I can't speak for Canada.
I was out to Winnipeg, and I certainly experienced the same thing amongst our, if you want to call them this, Métis ancestors over there. Certainly the same thing applies here in Alberta. We are about 5% of the population in Alberta, yet our child welfare issues tend to be anywhere from 40% to 60%, depending on the particular category.
Our children are being brought into care for different reasons. My understanding from child welfare is that it's probably because our parents are not capable of caring for their children. I believe there's more than one factor. I believe poverty has a lot to do with it.
In the case of children not having access to their parents, I believe a child ought to have access to both parents regardless of circumstances, unless there are abuse issues involved. That requires a different kind of intervention.
In any case, in this province I believe there's a law that says if a parent does not pay, if a parent cannot pay maintenance for a child, the parent cannot have access to the child. If you look at it from the child's perspective, all the child sees is he can't have access to his parents. What ends up happening is the child is feeling as much a loss, as much a separation, and as much a divorce and doing as much grieving as the parents who are parting.
If we look at it from the child's point of view, the child is hurting as much if not more. Why is it that I cannot have access to both my parents? They cannot articulate or comprehend the circumstances or the situations.
Yet our law says that since you cannot pay or you will not pay or you choose not to pay— whatever the reasons are, children do not really understand the story. What they see is they can't see their mothers or they can't see their fathers.
I think if that is taken into consideration, there has to be a different role when it comes to addressing a child's issues, the child's access to the parents.
In our province we call the parent who doesn't contribute toward the family a deadbeat parent. That means they don't want to participate in the financial welfare of their children. It could all very well be true. I still say this child does not really understand the deadbeat parent. They just do not see their father or their mother.
That's what I wanted to talk about. Have you guys considered those kinds of judgments, those kinds of prejudices? I believe they are so, and we have set them up to be so.
I worked in child welfare, and one of the things we would say is those parents are deadbeat parents, they are not willing to participate with their children, they mustn't love their children. Because they can't afford it does not mean they do not love. They might be afraid to go near the home, because they might be caught or picked up or whatever it is the law will do to them if they come around and see their children. I think it's an unfair presumption on our part to think the parent does not love or care for the child.
You probably know that the essence of a child's well-being is love and care and support. We need to do that. We need to build on it.
My other piece is I want to talk a bit on the Métis child. You may not know, so I'm going to tell you, that we have a close relationship with the first nations peoples. In Alberta the law is that when a first nations child is taken away from the first nations parent, the parent who has custody of the child must report it to the particular band the child comes from. This child is allowed to maintain his culture and to maintain a relationship with his immediate and extended family and with the community, so if for nothing else the child has a knowledge as he grows up that there was a law that allowed him to remain within his heritage, within his culture, within his family.
From the child's perspective I would sense this child probably appreciates the fact that his band or first nation did everything possible to ensure that if he wanted to, he could remain within his community, remain within his family. In fact, it goes to the point where you must, upon leaving that band, present a plan—this is what I'm going to do, this is where I'm taking the child, and this is what we'll do to make sure the child maintains his experience, his exposure to his culture and his society.
I dealt with a case in the north where the child was with a non-first nations parent. The members who took the child to Texas had to then say they would ensure that the child reads a certain amount of information about his band, that there will be birthday cards, there will be pictures. There's a whole series of planning to make sure the child has a sense of who he was.
In the Métis community there is no law for that. There is no requirement for any parent to inform any member. If you can take the child, you take the child. We believe it's our responsibility in our community to do our best to ensure that the child feels welcome, feels a part of our community, feels he can remain with the immediate family. The immediate family is the mother or father and the brothers and sisters. The extended family is uncles, aunts, and grandparents. Grandparents in our community are particularly critical.
Beyond that is the community, the ability to come back into one's community to participate and be exposed to activities, the languages, its culture, and its heritage in every way possible.
I don't know how this committee thinks, but the previous gentleman was saying there were some decisions made on race. I'm saying to you that first nations is a culture and a race. Yes, there is a requirement that the child remain with the parent or with the community or the band, or at least have some reasonable contact. We are saying the same thing. We believe it has to happen within our families.
Again, I can quote a case I worked on of a Métis woman who was very bitter and angry about having been taken away from her community. The Métis community and family did not do anything to assist or support that person through her pain and experience. I believe proper law will allow this to happen without a person— they feel disoriented enough. They feel a great enough sense of loss without the loss and support of their community.
Sometimes we don't have power over this. There are laws in this country that do take children away and determine it.
Again, my only caution is that where there are abuses— I'm sure everyone is concerned about that. Having been involved in child welfare for a long period of time, I know the abuses are varied. This committee may or may not be addressing abuses, so I'll presume you're just addressing the concerns of divorce and separation.
I had one more recommendation with regard to that.
When it's difficult for the parents to resolve a difference, a dispute, a conflict, I would suggest there be some form of child advocate—I heard someone else say mediation—so that the child has fair and equal access to both parents. I say without prejudice, without any other factors involved, just be concerned about that child. Let's put our best foot forward for that child. It's the child who has to be appreciated.
I want to ensure that our Métis children know they are welcome in our community and that they are not isolated or alienated in any way, shape, or form.
That's my presentation.
The Joint Chair (Senator Landon Pearson): Thank you very much.
Senator Thelma Chalifoux: Thank you, Brian.
Mr. Brian Fayant: You're welcome, Thelma.
Senator Thelma Chalifoux: I have to compliment you on a very well-presented presentation, in which you explained some of the issues the Métis communities face in this area.
This committee is charged with reviewing and looking at the Divorce Act and custody and access. The abuse issue is very much in the forefront in the presentations. I've just come on this committee; this is my second day, and yesterday I was in Vancouver. The abuses were very much in the forefront there also, and how we deal with them and what those issues are.
You talk about mediation, you talk about child advocacy. As a social worker who has worked in the field, have you had any experience with the child advocate's office here in Alberta? How would you perceive that in conjunction with what we have to do here in reviewing the Divorce Act?
Mr. Brian Fayant: My own experience has been through the department of child welfare. Divorce and separation tend to be court oriented and have less to do with child abuse. The field I'm more involved in is child abuse, but I have had some menial experience with the courts and divorce and separation.
How it tends to be handled is if you're going through a divorce or separation, generally the hope is there is no dispute and you will be able to resolve the problem without major court intervention, although in the courts they ask you to present your brief on how you're going to address the access issues. Sometimes it's visitation and sometimes it's “We'll share the responsibility to the best of our ability”.
Again, the issue is when there is a dispute rather than when problems have been resolved. Not all of us in the Métis community have money, not all of us have the money to contribute toward our children's well-being. When we can't contribute, we have to stay away; otherwise, we may be charged.
First of all, the maintenance law, which says you must pay in order to see your child, comes into force. That gives the maintenance people the authority to make a judgment that this parent is not a good parent, it's a deadbeat parent. It's kind of devastating for our community. If you cannot afford it, does it mean you don't love your child? If you cannot pay, does it mean you don't care? The child doesn't understand any of it anyway.
Senator Thelma Chalifoux: So what you're saying is that poverty is used as a means of discrimination—
Mr. Brian Fayant: It's a form of prejudice, I believe. I believe it's one piece that people—I don't think anyone does it intentionally. I don't believe people are setting out to be discriminatory. I think that particular law just does it by the nature that it exists. I don't think anyone wants to discriminate.
We want the parent to contribute so the child will have a little more support and a little more money to be able to play ball and do whatever he has to do. That is the natural thing. It's the good thing we're trying to do. We're trying to do the right thing by developing this law, but in our community the child is not getting access to his parent.
I'm just saying if I didn't see any laws, all I would care about is how the child can be brought up to feel good about being able to talk to either parent, regardless.
I wanted to present that perspective. I wanted you to see a different point of view. I wanted you to know that a lot of those people in Alberta are Métis people who are struggling with that very issue right now. I wanted to say not all of them are married. A high proportion of our people now live common-law. I don't know if it's more beneficial that way.
A lot of the names are no longer of the male line. In our community you take on your mother's name. That has all kinds of ramifications in our community. What once was perceived as a particular Canadian concept of family is certainly changing.
I talked with my counterparts at the Métis Child and Family Services. I insisted that I come and make a presentation. The only thing they were concerned about was grandparent accessibility and mental instability. They also wanted me to be sure to talk about cultural heritage.
On cultural heritage, it was just to say that Métis people are alive and well in the province of Alberta. We play a major role, but sometimes—
The very people we're concerned about are our children, who are suffering. I'm hoping that this committee at the top level will be able to ensure that our children will receive the best care possible. They can keep in mind, I guess, that love is of the most important essence for our children, not the laws always, although you have to create the laws to make that happen.
I thank you.
The Joint Chair (Senator Landon Pearson): There are more questions yet.
Mr. Brian Fayant: Oh.
The Joint Chair (Senator Landon Pearson): Not from Senator Chalifoux; from Mr. Lowther.
Mr. Eric Lowther: Thank you, Madam Chair.
I appreciate your presentation. I think you've already clarified, in the previous question, what I was going to ask, but I'll just sort of nail it down one more time. I'm trying to sift out of what you presented some sort of nuggets for me to make note of.
I hear you saying repeatedly that we should not link support to access—the idea that if you don't give the support payment, you give up access. It sounds like you're not in support of that, and that you think the access should be there regardless of whether or not the support payments are. Is that right? I don't want to put words in your mouth, but I thought that's what I heard you say.
Mr. Brian Fayant: I'm a little uncomfortable when you put it that way, because what we're suggesting is that we don't want the children to have access to dollars or resources— I'd be the first one to say I would wish that all our parents would contribute financially towards their children.
I was trying to be as hard as I could about the idea that the child ought to have access to both parents regardless of the circumstances, other than abuse—abuse being the only factor you truly have to worry about. The safety, security, and stability of the child is of the essence. When it comes to finances, I struggle. I tend to say that finances have a lesser role for me when it comes to the child being able to see mom or dad.
Mr. Eric Lowther: Do you support treating them as two separate issues—the support part of it as one issue and the access part of it as a separate issue, and that the issues shouldn't be linked or co-dependent?
Mr. Brian Fayant: In our discussions with the people I have to talk with, it wasn't an easy one. The intent of the maintenance act is to make sure the parent contributes towards that child, or at least— In our country we're saying that we can no longer give social allowance away because we're using the taxpayers' dollars to maintain someone else's child. I kind of appreciate that, but I believe when a child does not have access to their parents, they feel a great sense of loss, a great sense of loss of identity, in the sense of saying, “What happened to my mom? What happened to my dad? What happened to my community? What happened to my family?”
I have worked twelve years with children, and when they don't have access to the loved one, they are feeling a great sense of pain and hurt and disorientation. It's like “I do not belong any more”.
These children are the ones in our community that this government has to pick up, by the way, towards things like the EYOC, the Edmonton Young Offender Centre, the institutes, and the jails, because these children are feeling like they've been abandoned, discarded, and cast away.
I am saying that if we don't take care of it at the front end, we're going to take care of it at the back end, and the back end is equally as costly as paying for it up front.
Now I'm starting to argue and starting to think to myself, maybe we want to pay for it. I'm starting to think to myself, maybe we want to pay for it up front so that that child comes out feeling somewhat of a sense of well-being, a sense of a positive image, a sense where they feel, “I can at least talk to my mom and dad and I'm not an outcast here. I haven't been totally abandoned.”
We want to raise our children to be healthy, contributing members of society. There is a lot of work that we're doing right now in our own community, trying to rebuild and repair the damage that we've done amongst ourselves, for sure. I believe that some of these laws are not assisting us.
Mr. Eric Lowther: Good. Thanks.
The Joint Chair (Senator Landon Pearson): Dr. Bennett—last question.
Ms. Carolyn Bennett: Again, on the same theme, I guess I also—
[Editor's Note: Inaudible]—
Mr. Brian Fayant: You asked me if I would make a comment about a judge. I think it's the responsibility of all of us. When I say that in my own community it's the responsibility of my community— it's the responsibility of those parents. If I take it further, with what I'm doing today as a representative of the Métis nation, it's my responsibility to speak on behalf of the child and try to make changes also. I believe the frontline workers who are maintaining, if you want to call it that, carrying out the acts and the legislation that have been handed down to them from the province— it's the responsibility of those people as well as the responsibility of our own provincial government. But many times the federal government sets the tone and the mood and determines what direction we're going in. Particularly when it comes to child welfare issues or child care issues, or custody issues or access issues, it's the responsibility of us to lay down those directions or directives.
I believe the judges are simply supposed to be interpreters. Sometimes they may interpret to their own prejudice as well. We all have that, but I hope we are able to lay out the proper emphasis and that the emphasis is— When we say it concerns the interests of the child, it's interesting how when you have 100 people they will have different views of what's in the best interest of the child. So we have to get into that child's heart and that child's mind and that child's feelings to try to get somewhat of a sense— and even then I wonder how well we would do at that.
I think we have to set the directions for the judges. Apparently they make some pretty wild decisions, but they also have these laws and legislation that I know this province lives with. So now that you've asked us to at least look at it, it's really appreciated, because it's time to look at that from a child's perspective versus our adult perspective. And even then we're still going to be the adults we are, but we're doing the best we can. I believe the harder we try to help that child, the greater and healthier community we're going to have for the future for sure.
Ms. Carolyn Bennett: But I guess whether the judge or somehow a broader canvas of the people who know the child and know the interests of the child might make it less likely that the grandparents or the aunt are taken into consideration when one is trying to determine the future—
Mr. Brian Fayant: Certainly, for the most part I've come to know that this society tends to consider the immediate family “the family”. I'm generalizing, because I know that there are a number of other cultures that consider extended family critical and important.
In my own relationship with my community, the community is of importance as well; it goes beyond the family. Among the Métis we try to find relatives where there are no relatives almost, or we're related for 50 generations back. It's important enough to us to want to do that; unless maybe this is a Canadian movement right now. I think people are doing that too.
So I'm not trying to take a monopoly on that. I believe that Canada is doing a great search in itself right now, but it is significant in the Métis community as well. So in terms of what you're asking me, yes, the judges need then to take into consideration more than just the immediate family, more than just the extended family. There is the community as well.
Ms. Carolyn Bennett: Thank you very much.
The Joint Chair (Senator Landon Pearson): Thank you, Mr. Fayant. That was a very helpful and insightful presentation.
Mr. Brian Fayant: Thank you very much.
The Joint Chair (Senator Landon Pearson): We'll take a five-minute break, please.
The Joint Chair (Mr. Roger Gallaway): This is a half-hour session. With us are Dr. Brooks, Mr. Mahamad, and Mr. Mahé.
Gentlemen, we only have half an hour, so I'm going to ask you to limit your remarks to five minutes or we'll never have any questions.
We'll start with Dr. Brooks.
Dr. Christopher Brooks (Individual Presentation): Thank you.
My name is Christopher Brooks and I am a family physician in Calgary. I appreciate the opportunity to make this brief presentation to the special joint committee on child custody and access.
I have particular interest in this issue for the following reason. I have a 16-year-old daughter named Amy. In 1989, after two years of amicable separation, my estranged wife took Amy to a clinical psychologist who, without adequate investigation, made recommendations to various professionals in authority.
As a result, I was arrested and charged with the sexual abuse of Amy. See the attached “Notice to Accused”. My personal and professional life was immediately put in great jeopardy, and all my access to Amy stopped immediately.
Although the charges against me were eventually stayed, the damage was already done and I have not seen my daughter again. In other words, Amy and I have not met for the past eight years.
During my desperate struggle to stay out of prison in the face of false accusations, and at the same time to recover some kind of relationship with my daughter, I made three observations and I would like briefly to share these.
First, my seven-year-old daughter's psychologist was a clinical psychologist. However, he very quickly took on additional and conflicting roles. These were a therapist, forensic investigator, mediator, and an advocate for both Amy and her mother. He communicated with Amy's mother and her lawyer, Amy's school teacher, Amy's physician, Amy's headmaster, Amy's school psychologist, with the police and on at least three occasions with the crown prosecutor. The only person he steadfastly refused to communicate with was myself. Throughout it all he claimed to be attempting mediation between Amy and myself.
Second, the psychologist remained utterly unaware of the vital part that he was inadvertently playing in encouraging and developing the alienation of my daughter's affection. He stated more than once that whatever my daughter said to him in his office about me must be regarded as the actual truth.
Third, the psychologist also stated that he questioned Amy often about what I had done to her. Apparently he was unaware of the ease with which false memories can be instilled into the mind of a child who wants to please.
It was later revealed that during this time Amy's stories developed into bizarre and fantastic memories of ritualistic animal killing, witchcraft, bestiality, and attempted murder going back to her infancy.
In conclusion, I would like to make three recommendations. First, in all cases of custody and access, but especially where there are serious accusations or even criminal charges against one or other parent, the psychologists involved should be required to adhere strictly to their own mandate and to their own specific and limited area of professional expertise. They should not stray into or be encouraged to enter territory in which they do not belong.
Second, all professionals working in the field of custody and access, and this includes judges, lawyers, child welfare workers, police, and psychologists, should receive diligent and careful training in such sensitive areas as alienation of affection and development of false memories.
Third, any person clearly shown to have made false accusations of a criminal nature against another person with malicious intent be themselves prosecuted by the justice system.
In summary, my personal experience in one sentence is this. By the grace of God the accusations against me came to naught and I did not after all go to prison, but nevertheless, it seems that I have lost my daughter forever. Thank you.
The Joint Chair (Mr. Roger Gallaway): Thank you, Dr. Brooks.
Mr. Abdulahi Mahamad (Individual Presentation): Thank you, ladies and gentlemen, for giving me the opportunity to speak. English is not my first language, so if you have a difficult time understanding my language or some of the phrases that I may put, please do ask me. You can use half of my time to clarify the words.
This issue is as difficult and confusing as I submitted to the committee on the letters that I came about. I was in a very disappointed and hopeless stage when I met Professor Ferrel Christensen, who introduced me to a group of men that included Dr. Brooks and others. I found out that my problem was very small. I thought it was difficult and that the sky was falling on me. I immigrated to this country and I'm a visible minority, so I thought I was being treated differently than the rest of the people here, the fathers.
I found out that this is much more difficult than I thought. One of the people who talked to me, even though I was accused twice and defended myself against an accusation that I never committed or intended to commit—I was lucky enough to never have been convicted or have a criminal record.
My understanding and what I have seen is that I have an eight-year-old daughter who cannot speak herself, and her mother beat her up so badly that the child was put in a foster home. After the foster home, the mother found out that I was the one who made the phone call that the child was being abused.
Now the mother is furious and makes allegations again, even though I was not contacted for a period of one year. Now I have access through a court order. For eight years I did not see my child because I was fighting. The mother was granted sole custody and a restraining order.
Right now, I am more scared. The fact that I'm seeing the child makes me wonder what will happen to me. Is it good that I continue to see the child, even though I have a court order that I can see my child? What would I do or where will I end up? I am financially drained right now. Will it get worse and I'll have to go to jail?
I'd like to share with the committee pictures that were taken by the authorities, but I cannot submit them because they are too graphic. The child is eight years old and has a future. I would like to pass them around and have them back at the end of the meeting.
As I said, I immigrated to this country 11 years ago. I was government-sponsored. The government paid me a $150 damage deposit. Eight months after that, I moved to another apartment. When I moved—I was alone then—the landlord had not given me all my damage deposit, even though I cleaned up after myself. Then a friend told me that I could go to small claims court and for a $25 registration fee a registered letter would be sent to the landlord in order for him to rebate the damage deposit. This was for $150. I had to do that and return to the court showing that I had served him using registered mail.
I had a child that was 12 months old. The mother had accused me and gone to court and obtained sole custody and a restraining order without notification. I have been asking this question and I'd like to get an answer, because I could not get an answer. I am an immigrant. I don't know. I could not comprehend how the law of this free land can put a value on $150, but not value the life of a child, and a father who is a few blocks away does not need to be notified. Automatically the mother will be granted sole custody and a restraining order. If you see the child, you automatically go to jail.
Those are the experiences I have seen through the legal system here.
I have made a recommendation on page 2. When the child was put in the foster home for longer than one year, the taxpayers, including myself, paid enormous money. I was fighting it through the court system as another expense.
There was no need to do that. I have a house. I can take care of my child. I don't need anyone's help. Family and Social Services returned the child because they believed the mother. They said she must be telling the truth. When they found out, they said eight years ago Mr. Mahamad abused this mother, even though the court said I was not convicted of anything. She was using this thing.
My recommendation is that there should be a rotating watchdog committee for the child aid protection agencies, because they are so powerful. They are political organizations and they misuse the public money.
My child is back with her mother with a one-year supervision order. A psychologist has to approve it. I am very capable of taking care of my child, but I don't have my child. It was not allowed that I could see my child, so I had to go to court. Family and Social Services said I could not visit her.
The Joint Chair (Mr. Roger Gallaway): You're a little over five minutes. Could you make your other three recommendations and then we'll conclude.
Mr. Abdulahi Mahamad: Thank you.
The other recommendation is that child custody should be solely based on the best interest of the child and not the gender of the parents. And any false accusation should automatically be treated as a criminal offence. A parent who makes false accusations should lose custody of the children and be liable for the expense of the defendant and the system.
The Joint Chair (Mr. Roger Gallaway): Thank you.
Mr. Mahé, five minutes.
Mr. Alex Mahé (Individual Presentation): Thank you for giving me this opportunity to speak.
I'm a teacher of young children by trade. Back in 1987 a divorce began to happen and it was very acrimonious. It wasn't very pleasant. We finally ended up going to trial and the judge gave me joint custody of the children residing with my ex. The judge gave me three weekends a month, but my ex was adamant that this would change. She wasn't happy with that order, so a couple of years later, in 1989, when I went to exercise my one month of access, there was no reply. I remember that day and it makes me tremble just thinking about it, but it's been very difficult for the last 11 years.
To make a long story short, I went there and nobody was there, so I contacted the city police thinking that perhaps my children had been abducted by the mother and had left the country. I was very concerned. I spent a couple of days looking with the city police for my children. We could not locate them and a few days later I got a call from the sex crime unit. I said sure, I'll come right in, where are my children and what's this about?
I went there and was interviewed for probably two or three hours. The police investigator said he had already interviewed the mother and thought there was a lot of—it was not factual evidence, it was made up, fabricated and so on. He told me that I was free to go, to go pick up my children and enjoy my summer of access. I tried to do that, but I couldn't find my children anywhere, so I phoned the police back and asked how I was going to exercise my access. They said they couldn't help me because they weren't sure where to start.
Days later I located my children through some leads and stuff, and when I attempted to bring my children home, she wouldn't let me. So I called the police. We went to the police station and they said, Mr. Mahé, apparently your ex has taken the children to an organization and they say you've sexually abused— We can't tell you more, but get yourself a lawyer. That was the beginning of an unbelievable journey and incredible pain, because I had done absolutely nothing. I knew that for sure.
So I got myself a good lawyer because I figured we've got to look into this. He found out that the children had been sent to a group called Group 5 and they were being given therapy for having been abused. I thought something has to be done here because these children are being treated for something that never happened. What's it going to do to the children? And all this time I had been really close with my children, so I knew they'd be missing me a lot, and I was missing them incredibly.
So I set out on a mission to give up all my savings, every penny I had—business, personal, and every way. We got the notes from this organization and in reading these notes for 10 minutes I have never felt so much pain. It was more pain than I had felt in my life up to then, and I'm sure until the day I die, because it was atrocious what was going on in those sessions.
They were saying that my children were saying certain things about me, yet my daughter—she was not involved yet—was receiving therapy. It was just unbelievable. There were sessions where my ex was there with the children, being interviewed. I knew that there was major coercion. You could see it in the notes. I had never seen anything like it.
Finally, after spending every penny I had—over $60,000—we went to trial and I was totally exonerated. Before that, I had to have supervised access. That had to be one of the most humbling, most unbelievable—I had to pay $25 an hour if I wanted to see my kids. Half the time I couldn't afford it, so I couldn't see my kids. So we were separated. When the access people would come over every once in a while, I'd have about two hours. It would take them approximately one hour travel time to get there, so I'd spend about an hour with my children and I'd be watched like an eagle.
These kids were university kids—18 or 20 years old, walking around with no shoes on, who knew nothing about child rearing. I had training in child rearing.
My children had toileting problems—here's an example—and I couldn't go in to help them. They would be crying, “Dad, come and help me; I've had an accident.” “No, you can't get in the washroom. You can't get anywhere near your kids.”
It was the most devastating, earth-shattering thing. I hired my own psychologist, trying to make it quick. I asked him and I pleaded with him to have the child come to these sessions with a neutral party, other than the mother, because I knew for sure major coercion had been going on. I had seen the notes. But this never happened, so the child always kept coming with my ex-wife.
That is why I had him here today. I was hoping he could speak, because he could have told his story. He's of the age where he remembers everything about the major coercion that went on, yet nobody would listen to him.
I asked on numerous occasions if he could talk to the judge. He knew the judge was the highest one in authority. If he could only tell him what was going on—
After the exoneration, the judge said strongly to my ex-wife that the children had had enough, they were being destroyed, torn apart, and for her not to bring these issues; it's closed. Mr. Mahé has not done this, and he is not the kind of guy to do this.
About six months later, bang, there was another false accusation. I was being hit from every corner. It wouldn't stop; it kept coming at me. We went back to court. I spent more money, borrowed from family. It reverberated around the entire family, my in-laws. It was an atrocious thing.
She received no reprimand for that. He basically said, no, Mr. Mahé has not done that. I was going for custody to get the kids out of there once and for all.
It was all settled in court. I was exonerated. My reputation was tainted. I had lost two jobs from her getting people to call in. I could never prove it, but people would call in and say that I was a child molester and working with kids. It would send reverberations. I would lose my job. I lost all credit and my whole life. To look at my children, who I love so dearly, who I would protect with my life, was the most devastating of all; they were so confused.
We went back to court. What ended up happening was, I had joint custody, so after coming out of the second trial over this whole false accusation thing, she got sole custody. My weekends were cut to two weekends instead of three.
Go figure that one; I never did. It makes no sense. The kids are still in there, and I'm still being thwarted my access, even after this, but I have no money left to go anywhere to do anything, and I'm burnt out.
I phoned social services and asked if there was an agency set up to give counselling to a man who has been through an incredible bout of false accusations of the worst nature, whose kids think he's a monster now, aren't even sure how to deal with him, how to look at him when he does see them. They look at him with fear from what they've heard, which is all false.
No, they hadn't anything to deal with this, no agency, nothing. I had to deal with it on my own and try to rebuild my life and my credit.
Finally, when my son was old enough, he got his own lawyer, and in 1997 a judge gave me exclusive custody of my child and couldn't believe the goings-on, had to hear it from the child's lawyer because the child could never be heard. Nobody would listen to him. They thought I was probably going to be saying something for him because they couldn't hear him. No matter what I said, it wouldn't count.
The Joint Chair (Mr. Roger Gallaway): First, could you tell us where your son's case was heard and when it was heard?
I want to know in what court it was heard. Was it heard here in Edmonton, and when?
Mr. Alex Mahé: Yes, it was heard here in Edmonton, in September 1997.
The Joint Chair (Mr. Roger Gallaway): What was the name of the judge?
Mr. Alex Mahé: It was Justice Marceau.
The Joint Chair (Mr. Roger Gallaway): At what court? Do you know?
Mr. Alex Mahé: It was the Court of Queen's Bench.
The Joint Chair (Mr. Roger Gallaway): I assume your case was a criminal trial.
Mr. Alex Mahé: No, I was never charged, but I had to deal with it because I had to get my children out of the situation they were in.
The Joint Chair (Mr. Roger Gallaway): Okay, fine.
We'll move on to questions now. Senator Cools will begin.
Senator Anne Cools: Thank you. I was trying to make sure we get the cases on the record, because there's a wide range of this sort of activity. In the doctor's instance, he was actually criminally charged, but for the most part there are never criminal charges made. Frequently these accusations are raised in a very safe hiding shelter of civil proceedings.
I have a couple of questions, if I may. I'd just like to say to all of you gentlemen here that I always feel enormous shame when I listen to these stories, and they are endless. It is endless, an epidemic, across the country, and I have to tell you that I feel an enormous shame at the silence of most politicians and most legislatures and the Parliament of Canada on this terrible travesty that has grown in our midst. I feel a lot of shame about that. But shame and a ha'penny won't buy me very much.
Having said that, I'd like to put a couple of questions to the gentlemen and to the doctor. I understand the feelings you had, and I feel bad about that. I'm fighting for you as hard as I can. It's a rough fight, but that's all right.
My question, first of all, to the doctor— In your extremely short presentation, too short—five minutes is a terribly inadequate time for this sort of complex issue—you referred to a clinical psychologist who you say without adequate investigation, meaning an insufficient investigation, made a recommendation. Could you please put his name on the record?
Dr. Christopher Brooks: His name was Dr. Gary Kneier.
Senator Anne Cools: Very well. Thank you. I'd like to know, were you able to obtain any remedies against him, or were you able to make any complaints about his lack of professionalism?
Dr. Christopher Brooks: Yes, Senator, I started a lawsuit against him.
Senator Anne Cools: Perhaps you could tell us what you sued him about and whether or not you won or lost.
Dr. Christopher Brooks: I sued him for failure to provide an adequate standard of care. It went on for about two years of discoveries.
Senator Anne Cools: How much did it cost you?
Dr. Christopher Brooks: The whole of my case cost me about $200,000.
Senator Anne Cools: It was $200,000 for a person who was assaulted by the state. Based on that, the state of your current relationship with your daughter is, as you describe, non-existent.
Dr. Christopher Brooks: I haven't seen her for eight years.
Senator Anne Cools: Have you been able to get any sort of assistance in a personal way from your profession, from your colleagues, doctors? Many doctors are so charged as you are, by the way.
Dr. Christopher Brooks: I have many friends and I received a lot of help from them, from my personal friends, from my professional colleagues, and, curiously enough, from many of my patients who heard what had happened. They came and said, “Doctor, you are not a sex maniac. You are not an abuser. Please continue to look after our children.”
Senator Anne Cools: Very well, because in this instance, in your particular case, the issue of false memories is a whole other kettle of fish.
Chairman, I'm prepared to pause for a moment to allow other members to question. I'll come back.
The Joint Chair (Mr. Roger Gallaway): Ms. Bakopanos.
Ms. Eleni Bakopanos: Thank you.
Thank you very much for your testimony. I know it was difficult. It was difficult for us also, as parents and also having children.
I'd like to stick to some of the recommendations you make within the framework of your presentation on false accusations and the people who make the false accusations, be it the mother, the social workers, or the psychologist. In terms of some of the recommendations you make, you say that perhaps we should change the Criminal Code, for instance, and that there should be an article in the Criminal Code for those people who make false accusations—once they're proven false, of course. I sympathize with you that the process is long and arduous, and I think certainly this committee is very sympathetic to assuring that the process be quick and that a decision be made, apart from the other factors in a divorce case, be it custody, access— but that accusations be dealt with quickly and that the person who is accused of such a heinous crime be absolved within a short period.
You talk about changing the Criminal Code. You talk about fines, jail terms. You talk about paying the expenses of the defendant. We've heard this throughout our whole deliberations.
The one that concerns me the most, I'll tell you, is losing custody of the children. What we're doing now is creating another weapon. If you throw the accuser in jail—
Dr. Christopher Brooks: I agree.
Ms. Eleni Bakopanos: —you are again perpetuating another scenario, which is just as traumatic, in my opinion, for children. It's not really a question, but I have trouble—
Dr. Christopher Brooks: Absolutely. I thank you for bringing that point up. The whole tenor of the accusations against me achieved what they were meant to achieve. I don't think my estranged wife wished me to go to prison—I give her that, I don't think she did—but she achieved her goal, which was that I never saw my daughter again.
This is not quite true. I did see her on a few occasions in highly artificial circumstances, either in court or with a lawyer. That was it.
Ms. Eleni Bakopanos: Let's assume the criminal provision existed at the present time, and—
Dr. Christopher Brooks: I think it would have scotched the whole thing. Once the key is turned in the system, there is no stopping it.
Ms. Eleni Bakopanos: It would be a deterrent, in your opinion.
Dr. Christopher Brooks: Absolutely.
Ms. Eleni Bakopanos: Okay. Anyone else?
Mr. Alex Mahé: I just want to make two suggestions for change since I didn't have a chance to do that.
The first one was that in a situation where a parent is accused of abusing his children, the accused should be immediately contacted by the agency to let him know. I know I could have averted thousands of government dollars—by Group 5 and what they were doing in all the sessions—by having been there and having explained my story.
An example of this is that my child always had toileting problems, and that was part of it, and yet it was made to look like a mountain. They were trying to link it to me. And I could have said, look at the doctor's records and so on and so forth.
So to contact me and make me part of it with my children present— as well as in some of the sessions if needed, so that the children feel safe enough in case they're being coerced. At least they know they can feel relaxed.
Number two, I suggest that all the sessions, including the police investigative interviews by both children and parents, be videotaped. That would be so important.
The session could have been videotaped and I could have even brought that into a court of law, what went on in Group 5, to show what was happening to my children. That would have been case closed.
I want to make the suggestion that the accused be part of the process right from the start.
Ms. Eleni Bakopanos: Mr. Mahamad, do you want to add anything?
Mr. Abdulahi Mahamad: Perhaps it would be a good idea if we had a community-centred child protection agency that the community and the friends know about. Once the mother or the father take false custody of the children and disappear with them to another province, the police who are in another city do not know the root of the problem. So they just assume— and it is an easy way for the continuation of lies and malicious accusations.
If we have a centred, stable place where, for instance, the community can get involved—they know the background of the history—that will perhaps eliminate the difficulty for the person who is trying to get access or custody and the burden on the system.
Ms. Eleni Bakopanos: Are you suggesting a national registry? If you're talking about a watchdog agency, are you referring only to a provincial one or a national one?
Mr. Abdulahi Mahamad: It would probably be a good idea to have a watchdog agency provincially, that is divided— and then into a city and so forth. It can watch the actions of the psychologists, for instance.
I had a child care worker who lied and I have the court transcripts. She lied. And I wrote to the Minister of Community and Social Services and nothing was done. And by the way, they said no, sorry, you are stuck with the caseworker. We're not changing her, and if you want to you can sue her.
Ms. Eleni Bakopanos: Instead of going through the courts, were any of you able to put forward a complaint in terms of those professional associations, the medical association and the clinical psychologists' association? Were any of you able to go down that route? How were they dealt with if you had an experience along those lines?
Dr. Christopher Brooks: I tried to do this as best I could in a non-conflict situation, but I found that once the key is turned in the system, conflict and confrontation are inevitable. You are compelled to follow this.
And I agree with what I think your question is asking: is there any way that we can avoid that? I'm not a lawyer; this is not my area. Just as I suggested that the clinical psychologist should stay in his area, I think I should stay in mine, except to give one principle. If there is some way of taking out the conflict and confrontation and having a reasonable, common-sense person there who has no axe to grind, no hidden agenda, whose income does not depend on keeping it going— if we could do something like that, set up a committee and come up with something significant, that would be ideal.
Ms. Eleni Bakopanos: Thank you.
The Joint Chair (Senator Roger Gallaway): Thank you.
We'll go to Mr. Lowther, and lastly we'll go to Senator Cools.
Mr. Eric Lowther: Thank you, Mr. Chair.
I'm going to follow on from what Ms. Bakopanos was saying, and perhaps it's a bit of a rehash. When I listen to your three stories there are some common themes here. You've been through accusations, a horrendous betrayal, and then you've been exonerated of the accusations. You have a clean record and yet, at the end of the day, you've spent all your money and you still don't have access to your kids.
If I look at your recommendations, the common element is that false accusations should automatically be treated as a criminal offence. There are some other sorts of things around the child protection authorities and the psychologists and the fact that these people should do what their profession requires them to do and they should do the right thing.
I'm wondering about these recommendations. If these had been in place when this all started, do you think it would have kept you from the horrendous road you've been down? When I hear your stories and I see these recommendations, I wonder whether this is going to do it for you guys. It seems to me that you still might have gone through it, but I'll leave it up to you to say.
Dr. Christopher Brooks: I would like to say that there is still a stain on my character. I was stopped by the police the other day; I was speeding. They went onto the computer and they came back and said, I see you were arrested for sexual abuse. I got out of my car and I— as I am getting emotional now. I'd like to make that point.
The other thing is that had those things been in place, yes, my case would have stopped.
Mr. Eric Lowther: It would have stopped.
Dr. Christopher Brooks: The most important of my recommendations is that all the people involved in custody and access be educated in some of the very sensitive areas of the ease with which a a compliant, helpful child, wishing to please, can be given false memories.
The psychologist who was treating my daughter treated her for 44 sessions. At each of those sessions it implemented the very fact that she was there and she was talking for the 33rd time about what her father had done.
It was implied to her little mind that her father had done something. Of course, she was an intelligent, bright girl, and she came up with some spectacular stories. The psychologist then decided, because this was part of his mandate as a clinician—not as a forensic investigator but as a clinician—to believe what he was told.
Mr. Eric Lowther: So if that psychologist had at that point said, there is no validity to these accusations according to my examination—
Dr. Christopher Brooks: No, he shouldn't even have said that. He should have said “I am a clinician and I will stay being the therapist of this child, who clearly has a problem”, which was true. He should have said “Any investigation or assessment of the veracity of the correctness of these terrible accusations I am going to leave to an expert in that field.” He should have handed it over to someone else and he never did. He wore too many hats.
The Joint Chair (Mr. Roger Gallaway): Mr. Mahamad.
Mr. Abdulahi Mahamad: I do not believe I would have gone through this difficulty. The mother had vindictive thoughts and she wanted to use the system. The system was there. The mother never knocked on my door; she didn't charge me twice. It is the system that facilitates this kind of agony and pain, which ends up hurting the children.
I don't think we can relieve the pain that all these fathers have suffered. The problem is the future of this nation is crying in psychological destruction, and the system is the one that is facilitating this, so the system needs to be corrected immediately.
Mr. Alex Mahé: I agree with both gentlemen here, and with Dr. Brooks when he was talking about the sadness of being tainted. You are tainted right from the beginning. That would never change, regardless of how the system would be changed.
However, in my case, if there had been some kind of possible punitive measures against the false accuser, my ex-wife would not have gone out with such a vigour against me. There were comments made when I finally went for my supervised access. She would laugh in my face and say, you're spending all your money, you're having fun out there.
It was that underlying vindictiveness saying, we've really got you, the system is stacked on my side, so look out.
I was crying out for help, and thanks to the Alberta report— I went to the media and I would say, I can't believe this, nobody is listening to me, nobody is listening to the kids.
I'd like to show the committee a couple of the Alberta reports that had to do with our story. They might better help you understand what was really going on. One is called Getting Rid of Dad. The other one—
The Joint Chair (Mr. Roger Gallaway): Would you leave them with us, please?
Mr. Alex Mahé: I really believe that if some of these changes to the system were in place, a lot of damage would be alleviated, not just for me but especially for the children. They are still suffering.
The Joint Chair (Mr. Roger Gallaway): We'll have a final word from Senator Cools. We're a little over time.
Senator Anne Cools: Thank you very much, Mr. Chairman. When I asked Dr. Brooks for the name of the therapist who acted so very improperly and insufficiently, he said it was Dr. Gary Kneier.
I took a second to check with the clerk. Dr. Gary Kneier appeared before our committee in Calgary some weeks ago.
It would have been a very interesting exercise, Mr. Chairman, if we could have had Dr. Gary Kneier alongside Dr. Brooks, to tell us how people go about making these kinds of assessments and to tell us about the terrible damage they wreak and the emotional wreckage they leave on the landscape for people.
I put out once again to this committee that this committee should spend some time looking at the issue of assessments of psychologists and the weight that is being given to them in these court processes. It is an issue that is commanding study and attention. The phenomenon of false accusation is crying out for punishment. Thank you.
The Joint Chair (Mr. Roger Gallaway): Thank you.
I know that this has been a difficult session to reveal some of the most intimate details of one's life. We do appreciate that you have come here and contributed to the work of this committee. Thank you very much.
Dr. Christopher Brooks: Thank you.
The Joint Chair (Mr. Roger Gallaway): I would now ask that our next group of witnesses, Mr. and Mrs. Cable, Mr. Rowley, Mr. Haiden, Mr. Mason, and Ms. Morrison, please come forward.
Welcome to you all.
We'll begin with Mr. Mason. Please proceed. You have five minutes—and it is five minutes.
Mr. Dan Mason (Individual Presentation): No problem.
Just a quick note because of what I heard in an earlier session. I'm speaking primarily on international convention and international law matters. Specifically, the international convention on the civil aspects of international child abduction has one premise in it that is helpful in the area of false accusations, in that the false accusations are looked at in a very narrow way. If a child is taken to another country, the members of the convention, the central authorities involved, usually look very narrowly on such accusations. Generally, the case law shows that they're not well accepted because of the realization that most parents or parents who try to get a legal advantage will in fact try to use false accusations as a reason. Thus the case law on the matters is very small. In fact, there is not one on the record I'm aware of that was successful on the basis of false accusations. They have very finely tuned this convention so that these things don't happen.
Anyway, that's not the primary subject.
Thanks for inviting me. A lot of my research involved communicating with Adair Dyer, who is deputy secretary general of The Hague in the Netherlands. I spoke on a number of occasions with the U.S. State Department, U.S. Immigration in Ottawa, Alberta, and throughout Canada, and with our Departments of Justice in Ottawa and in Alberta.
During my research I came across some aspects of custody and access, civil objections as well as legal kidnapping, where Canada really wasn't seen as being congruent with the international community based on their convictions and ideals.
For example, this was noted at The Hague Conference on Private International Law, January 18, 1993, by a special commission: “One of the ideals held by the international community is the concept that children have a right to both parents.” This right is specified in chapter 10 of the Convention on the Rights of the Child. The concept of any child having a right to both parents was a basic fundamental belief by the international community, such that the French delegate at that same convention put forward that access would be, for example, a natural corollary of rights of custody. This is not necessarily seen here in Canada, where custody and access are very split and very different. The international community looks at it from a totally different viewpoint. It is seen that both parents have a responsibility to children, that that responsibility is a shared consideration, not a single person's—
Mr. Eric Lowther: A point of order, Mr. Chairman. Does this particular witness have a presentation? Do you have a handout?
Mr. Dan Mason: Yes, I handed it to the people in the front, so it should be somewhere.
The Joint Chair (Mr. Roger Gallaway): They have it at the door.
Mr. Eric Lowther: Thank you. Sorry. Please continue.
Mr. Dan Mason: So much of this ideal since 1983, which is when the convention first came about, formed in a number of countries the concepts of joint custody of various different forms in different countries, but the consideration of joint custody largely because it solved a number of problems dealing with children, largely to give the responsibility to the parents that they both have a responsibility to the children, not a single parent.
In that commission Canada was noted for one particular case. I just want to bring that forward quickly. There are three other cases, but I'm just going to bring the one because it was noted by the commission in the Netherlands at that time.
It was a case where a child was taken to England. The Canadian authorities didn't act, so England instead, through a series of different proceedings administratively, brought the matter for the Canadian citizen to the English courts. The English court then solved the problem by getting the parent in England at that point, because that's where the mother moved to, to give the access rights to the father.
There are two or three cases where that didn't happen, but this is where the problem lies. In article XI of the convention, there is a “may” clause. Most countries adopt that “may” clause in a mandatory sense rather than in a permissive sense. With the permissive sense being there, our central authorities in Canada merely look at it as something that I may do if I feel like it, if the circumstances are right.
In speaking to the Alberta attorney general—and I believe the concept still remains with the federal central authority that the convention's a great tool to be used if there's a criminal or quasi-criminal abduction.
However, the convention is a civil act. It's meant for anybody whose child happens to be taken to another country, and the “may” clause stopped them from actually being commensurate. This problem, as I've seen in all the case law I've researched, is the problem. If it's mandatory, then the central authority would be obligated to act unless the circumstance shows that they shouldn't. But with the “may” clause being there, looking at it in a permissive sense, a person could have their children taken to another country and Canada may not act, but that would force another country to act not on Canada's behalf but its citizens' behalf. We should be commencing action just like every other country under the convention, rather than just responding.
Canada has three or four cases that are responsive. The most notable is Thomson v. Thomson, and in that case we responded to Scotland. There's an Ontario case where we responded to England. In all of these cases they were responsive, Canada did respond, but only if another country requested; if it's our own citizens, we don't respond. We haven't got any case law showing us actually commencing an action. Rather the other country had to take the ball and run with it.
The Joint Chair (Mr. Roger Gallaway): Mr. Mason, I have to inform you your time is up. I wonder if you could give us the name of the Ontario case to which you referred.
Mr. Dan Mason: The Ontario case that I'm speaking of is, I believe, C. v. C. but I may stand corrected on that.
The Joint Chair (Mr. Roger Gallaway): And where was that reported, do you know? Do you have an idea at least?
Mr. Dan Mason: Actually, it's in the leaflet that I've given you. You'll find the case in there.
The Joint Chair (Mr. Roger Gallaway): Fine. Thank you.
Now Ms. Morrison.
Ms. Maureen Morrison (Individual Presentation): Thank you. Honoured senators, ladies and gentlemen, thank you for extending me the privilege of presenting here today. I would like to bring to you an awareness of the observations my family's son heard in lawyers' offices, the family courtrooms, and the assessor's report.
We have come to believe the family court system treats children as non-human beings, resulting in legalized child abuse. My husband and I have been married 42 years, an oddity in today's society, we were told by my son's lawyer. We have 4 children and 11 grandchildren, and we took pride in the fact that we raised our children to be loving, law-abiding citizens. That reality was shattered for us in August 1993 when we first experienced what false accusations and lies could do to the life of a loving husband, a father, and our three beautiful grandchildren.
In the absence of time, I'm not going to go into details regarding my son's story, except to say that his business associate, a married man with two children, left his wife and children and my daughter-in-law left my son and took his three children, aged 10, 8, and 6, with her. My daughter-in-law had obtained a restraining order full of false accusations, stating she feared for her life and restricting my son all access to her and her children, even by telephone.
She also filed for a divorce 10 days after a three-week family vacation, a 12th anniversary celebration, and three days later she dropped the children off at my son's so she could go away with her new friend for the weekend.
Needless to say, both grandparents were in shock. My son thought his wife had had a nervous breakdown. We, the grandparents, met on that weekend alone with the children because we thought that's where we would get the truth. They pleaded with us not to have to go back to their mother. They wanted to stay with their father and were very upset about the lies they heard their mother telling people about their father.
We were all helpless. She had been well coached by her lawyer and women's groups, and she was in control with the restraining order. We had to return the kids to her that weekend.
The kids phoned their dad, crying, when their mother left them with a babysitter. My daughter-in-law had a monitoring system put on her phone, and when my son returned their calls, my nine-year-old grandson, the most vulnerable one and the one who even today she gives prizes to and treats to various things if he tells her a story, was taken to the police station to tell the RCMP that his dad had phoned the house, and my son was arrested.
Have you ever seen your son brought into a courtroom in handcuffs or experienced the fear and humiliation he must have gone through? Do you know what a nine-year-old boy felt like when he found out that he put his dad in jail, or the rejection he felt from his younger brother and his older sister? But you know what he said to me? He said, “Grandma, my dad just phoned, and my dad always told me to tell the truth.”
Three times my son was arrested for breaking the restraining order, always on the weekends that was to be his turn to have the children. The children knew that when their dad didn't come, their mom had put him in jail. One time he had to talk the middle child, eight years old, through an emotional crisis. His ten-year-old daughter called and said, “Matthew is tearing his bedroom apart”, and the babysitter couldn't stop him. He was working out his anger.
My son's home was past the gates of an apartment complex my daughter-in-law had moved into. Seeing the kids playing he stopped and they came out to the street to see him. He was charged with stalking and was looking at a possible two to five years in jail, until we finally had a judge who saw through the games that were being played and dismissed the case.
I've always been proud to be a woman, a wife, and mother. I returned to college at age 45, and I worked for 17 years for the Government of Alberta. I know, and most of you women around this table know, that women need equality in the workplace, but they need to gain that equality with professionalism and respect. I was the first woman in over 40 years elected to a family fraternal organization's provincial chair. During my term of office I visited most of the women's shelters in Alberta, donating money to that cause.
We need women's shelters to protect those in need, but I have discovered that these women abuse that for their own agendas and so the women's shelters suffer. I sit on an international board of directors and I'm a director of the Independent Order of Foresters' prevention of child abuse fund. I know there are many men in this audience today who are very bitter for the treatment they have received as men, but I want to tell you that when I sat in the courtroom and saw the abuse of men, and ultimately your children, by lawyers and judges, I was ashamed to call myself a woman.
Women do need to stand up for their rights, but those women who abuse the rights of other women need to be judged accordingly and made accountable for their actions in the legal system. Where in our family justice system does it say equal rights for men and women? Where are the men's shelters and support system when they find themselves falsely accused or removed from their homes and families? And, more importantly, where in our justice system does it say a child's voice must be heard?
Why can't children tell their stories? Why can't they say who they want to stay with and feel safe with, be it temporary or permanent? Where in our system is there a concern for the child's well-being or the impact this traumatic time in their life will have on their future as adults?
Have you ever had to turn your back on your child's cry for help or tried to explain to them the justice system is fair most of the time, but sometimes gets lost when it's hard to tell who's telling the truth? Convince a ten-year-old, who tried to tell an assessor her mother lied and the assessor makes the judgment call that the father puts the child up to it, that life is good if you tell the truth.
The Joint Chair (Mr. Roger Gallaway): I'm sorry to interrupt, but you're well over time. I wonder if you have some specific recommendations.
Ms. Maureen Morrison: I beg you to use your powers to look at the system, with all its flaws, through the eyes of a child and bring back accountability and responsibility to the adult who abuses it. Ensure there is accountability in evidence before the judge who grants the restraining order. Cap the lawyers' fees or investigators' fees that reach exorbitant levels. Monitor the judges who sit in judgment of people's lives.
Thank you for allowing me to speak and share with you my thoughts through the eyes of the child and their fears and anger.
The Joint Chair (Mr. Roger Gallaway): Thank you.
Mr. James Haiden (Individual Presentation): Good morning, honourable senators and members of Parliament.
It has been just one year since the introduction of Bill C-41, and I'm so pleased. It was a much-needed piece of legislation. I'm also pleased that by virtue of appearing here before you this morning, it's recognized that monetary support only goes half the way.
Having only recently become a Canadian, I can tell you that I am pleased that I am a citizen of a country whose human rights legislation is foremost on their agenda, and I'm pleased to be here this morning to realize that I'm involved in a process that is seeking to find more human rights for people who are being denied—I speak about children.
I call myself a separated father, because it is very indicative of a phenomenon going on in today's society. Men and women choose to marry. We also choose to divorce. But my children didn't choose to be born, and my children didn't choose to be separated from who they love.
My separation began in 1988. From 1988 until 1991 I was a hands-on father. Our children didn't realize that they were separated, because the same routine had kept going. Dad took care of the kids during the day, mom took them at night, and they were happy. I don't even think they knew we were separated, because they weren't kept from their mother or their father.
In 1991, when my former spouse was dropping off the children in the morning, she announced to me that she was taking the kids and moving to a town 288 kilometres away. I was stunned. I thought to myself, my girls are only five and seven. Who's going to be there for them in the morning? Who will be there for them after school? Who will be there for them on their sick days, and who will be there for them on those days when they weren't even sick but they did say they were, because they wanted to be with dad; they wanted some alone time?
She was allowed to move. I did petition the courts, and the girls were given an access order whereby she had to bring them to me once a month and meet me halfway on the highway once a month. It was a system that really worked well, and I understand now the reason it worked well. There was a high degree of cooperation between her and I. We felt as though we were the authors of our own circumstance.
I had those kids for as many as 150 days a year until 1996, and after eight years of a separated situation where we did work hand in hand to raise our children, she informed me that she planned to move to Costa Rica. I was absolutely stunned, and although she wasn't allowed to go to Costa Rica, she has not bothered to enforce the access order since that time, and it's rare that I get to have my children.
My only recommendations for change are that I think, first and foremost, there has to be a presumption of joint custody before we're in front of a judge. I think my former spouse needed to know that I wouldn't be out of the process. I think she needed to know that I would be expected to be there, and that in the same way that I gave money, I should give my own time. But I think she knew, back in 1988, or in 1989 when we actually went to court, that she would probably get sole custody, which she did.
My second recommendation is this. We go to school to learn so many things today, but we don't go to school to learn how to be a husband or a wife or how to be a parent. I sometimes think if we went to school after separation, to make ourselves aware of those pitfalls that will be out there, perhaps there can still be a degree of cooperation. Perhaps we can learn to put what is important to us aside for what's important to the children. Most importantly, custody battles do not have to be part of a divorce proceeding, and we have to take custody hearings outside of the adversarial climate that prevails.
Finally, grandparents and other members of the extended family often would be willing to play a role if they were asked. Often, as in my case, they have played a significant role in the nurture of my children, but they're left out in the cold now with no rights whatsoever.
My mom tells me of a time she remembers—I know the time well—when my four-year-old daughter busted out with chicken pox. Mom stayed home to take care of my daughter; I had to go to work. She relayed back to me what a trooper she thought she was.
I've said the things that I need to say. If I had won joint custody from the beginning, it would have helped me for the first eight years and would be continuing to help me bring my girls up to the age of responsibility.
I want to thank each and every one of you who had a hand in Bill C-41. I have not been able to avail myself of the relief yet, but I will.
The last thought I would like to leave you with here today is that two parents are better than one and that cooperation—not coercion—is the spirit by which children are raised.
The Joint Chair (Mr. Roger Gallaway): Thank you very much, Mr. Haiden.
Mr. Rowley, five minutes, please.
Mr. Terence Rowley (Individual Presentation): Good morning, Senators. Thank you for the opportunity to speak before you this morning.
Most of the points I was going to make today have already been brought up. In my case, the false accusation was brought by collusion between— I separated from my wife in February 1995. My wife at that point got an ex parte order to get me removed from the house. It was collusion between herself and, at the time, my 16-year-old daughter. There were false accusations, and these were proven to be so, but it was enough to get me out of the house. Once she had possession, she remained in the house for two years. I was paying all the bills and being bankrupted in the process.
I made a divorce settlement with my wife in May 1996. That included child support, which I had been voluntarily paying from August 1995. There were two children in the marriage. My daughter is going to be 21. She's no longer a dependent child. My son will be turning 18 next month.
One of the big problems I had was getting access to information on my children. Once I was out of the house, I was denied any information on them. Litigation was going on but I was given no access to information, such as how they were doing at school. I know that under the Divorce Act I'm entitled to information on the children's education and their attendance, and on their health, but you try to get that information from a school when you are the non-custodial parent. They say they can't give you the information and that they need a court order. The Divorce Act says you're entitled to information, but you're not.
I did manage to get a court order on October 30, 1997. I went to court. I represented myself after spending approximately $15,000 on litigation and getting nowhere. I got the access order.
When I got it, I immediately contacted the Edmonton Public School Board. I found out that my son had been registered in school for two and a half years, but he was only registered; he never attended. He was just registered to give the illusion that he was attending school. I also found out that he had been working full time for nine months.
When this was brought to the judge's attention, nothing was done. There was no penalty given toward the mother. I did get a perfect attendance order, which stated that the mother had to give me the attendance every month and he had to have perfect attendance without sickness. The mother had used sickness as a crutch in the past.
I'm going to court again next week, and I've got the records. This perfect attendance order was put in place in October 1997. He was registered in school but did not attend. Hopefully, when I go back to court, this matter will be rectified.
Here I am paying child support for the last year for a child who has been going to work full time. There has been nothing done about it. I feel that if I'm paying child support as a non-custodial parent, the custodial parent should have some accountability for how the child is doing in school. If I had received that information, that boy would have been in school, but I was denied it.
This is one point I would like to see addressed: the accountability of the custodial parent. If I'm good enough to pay, they should be good enough to give me the information on my children.
I'm not only divorcing my wife, I'm divorcing my children. I had an excellent relationship with my son prior to the separation. He used to be involved in all sports. We used to go camping and do things together. Since the separation, I've had no dealings with my son. The only time I've seen him is in court, and that has been it. I've been completely alienated from my children.
I hope that one day, when they get older, they'll come around and realize what they've done. They're old enough to have said to their mother that this wasn't right, but they didn't.
With regard to recommendations, I think one of the things I've learned from this is the acrimony that is exacerbated once the lawyers get involved. I had a written agreement with my wife. I agreed to buy her out of everything. I realized she was entitled to half of everything, such as half of my pension. I agreed to all of this, but it still took two years and $15,000 of litigation on my part to get an agreement that I had already prior to the lawyers getting involved. That money would have been better served going toward those children's education, maybe put in a fund.
Now, the litigation that takes place bankrupts both parents. Who ultimately suffers? It's the children. The only beneficiaries of a lengthy litigation are the lawyers. It's certainly not the children or the parents.
I would like to see lawyers' fees capped. I would like to see people who perjure themselves brought to court. I've seen my ex-wife, in sworn affidavits, blatantly lie, yet nothing is done or said about that. It has to be addressed.
There was a gentlemen before us. He was the doctor who spoke about false accusations and having to spend $200,000. That's ridiculous. That should be treated as a criminal offence.
I think child support should be contingent upon the non-custodial parent getting free access to all information. Maybe the school boards in the different provinces have to be made aware that under the Divorce Act, the non-custodial parent is privy to this information.
That's all I can—
The Joint Chair (Mr. Roger Gallaway): I'm afraid your time is up. Are you finished?
Mr. Terence Rowley: I was just going to say thank you. I'm finished.
The Joint Chair (Mr. Roger Gallaway): I wonder if you could tell us whether your divorce is completed.
Mr. Terence Rowley: No, my divorce was signed and agreed to in May 1997. My wife got a $100,000-plus settlement from me and agreement on child support, but within a month of her being advanced all the money, she was back in court and wanted a variance on the amount she was paid. I had agreed to pay $500, which under the new guidelines was right within the amount. She had no intention of living up to the agreement she had signed.
The Joint Chair (Mr. Roger Gallaway): Here's what I want to know. You've referred to a number of false affidavits.
Mr. Terence Rowley: Yes.
The Joint Chair (Mr. Roger Gallaway): I wonder if you could tell us where your case has been tried. Is it here in Edmonton?
Mr. Terence Rowley: It was in Edmonton.
The Joint Chair (Mr. Roger Gallaway): Do you have a file number for it?
Mr. Terence Rowley: Do I have a file before the court right now?
The Joint Chair (Mr. Roger Gallaway): No, a file number for your case.
Mr. Terence Rowley: Yes, but I don't have it with me now.
The Joint Chair (Mr. Roger Gallaway): What's the style of cause?
Mr. Terence Rowley: Pardon?
The Joint Chair (Mr. Roger Gallaway): The style of cause is obviously Rowley v. Rowley.
Mr. Terence Rowley: I don't understand the question.
The Joint Chair (Mr. Roger Gallaway): Every case filed in the court has a—
Mr. Terence Rowley: Rowley v. Rowley is the case, and I do have a case number, but I don't have the number with me right now.
The Joint Chair (Mr. Roger Gallaway): Okay. Perhaps you could provide that to the clerk.
Mr. Terence Rowley: Oh, certainly.
The Joint Chair (Mr. Roger Gallaway): Fine, thank you.
Mr. and Mrs. Cable are next.
Ms. Elsie Cable (Individual Presentation): Good morning, senators and members of Parliament. Thank you for allowing us the opportunity to speak before the committee.
We'd like to draw to your attention, if it hasn't been drawn there already, the fact that men and women are not treated equally before the courts, and that the justice system has failed to deliver justice and equality to children and their families.
False allegations, lies, and deceptions are openly acknowledged and even often rewarded, and poor decisions by judges and custody assessors are destroying the children of divorce.
We are paternal grandparents who, in our 30 years of marriage, have not suffered such lasting pain, devastation, or financial ruin until our son separated from his wife in July 1995. The separation was to be amicable. They were divorcing each other, not their five-year-old asthmatic son.
We had an excellent relationship with our son and his family and expressed our desire for this relationship to continue. Our view was—and is—that children need both parents and extended families. However, it took only three days after the separation for the access denial and the power struggle to begin.
Our son, who is considered an excellent father, had to turn to the courts for assistance. He was granted 10 overnight visits per month. We have a court order to remain our grandson's caregivers while the parents were at work.
While awaiting trial, a custody assessment was done. The assessor, a social worker in private practice, Mr. Sterling Green, made recommendations based on false observations and conclusions.
Suddenly, our son was no longer an excellent father and we were no longer the loving, caring grandparents. The recommendations were that our grandson be removed from our care, even though for five and a half years prior to that time he had spent time an enormous time in our care whether the mother worked or not.
The favoured parent, however, didn't even act on his recommendations until many months later, when it was convenient and in her best interests. So this further proved to us that the stories that were told to the assessor were indeed untrue.
It is now our understanding that these kinds of assessments are an all too common occurrence. Eventually the couple agreed on joint custody, shared residency, and maintenance to be paid to the mother. As previously mentioned, our grandson is asthmatic and his health has been a contentious issue throughout the separation.
He has been and remains on a powerful inhaled steroid daily. After more than 30 doctor or hospitals visits within a 24-month period for respiratory problems and the exacerbation of his asthma, our son pleaded with the mother to stop deliberately exposing the child to harmful irritants and allergens that were directly contributing to his repeated illnesses. This was to no avail.
So our son again appeals to the courts to help protect his son. The courts were provided with many letters from doctors, lab test results, and pictures clearly showing the neglect. However, the judge, Justice Adele Kent, having been presented with false affidavits and the misleading assessment report from 20 months before, favoured the negligent parent and awarded the mother sole medical custody plus court costs.
This decision was unmistakably not in the best interests of the child. Now the mom has the blessing of the court to keep harming our grandson. The judge adjourned the mother's cross-application for sole residential custody, making it very clear to our son that should he bring this matter before the courts again, he would surely lose his joint custody and maintenance would be reviewed.
We ask: how is any of this in the best interests of the child? Should anything happen to our grandson as a result of these decisions, who is going to be held responsible?
Mr. Russell Cable (Individual Presentation): Our recommendations are as follows:
- presumptive joint custody;
- shared and equal access;
- enforcement of access orders, with contempt of court and charges after three denials;
- false affidavits and allegations should be an indictable offence under the Criminal Code of Canada;
- parental alienation should be classed as a form of child abuse, with consequences, as an example, such as loss of custody, imprisonment and/or a heavy fine;
- assessors, mental health professionals, lawyers, and judges need to be accountable for their decisions;
- divide the financial responsibilities of raising a child based on the joint capabilities of both parents to contribute; and
- base child support guidelines on a sliding scale for time spent with the child.
We ask the committee to please help in stopping the abuse of our children, grandchildren, and families. We feel that parents have responsibilities and obligations, and children should have the rights.
The Joint Chair (Senator Landon Pearson): Thank you.
We move to questions. Ms. Bakopanos.
Ms. Eleni Bakopanos: Thank you, Madam Chair.
I'll ask the same question that I asked the previous witnesses. I'm interested in knowing about your recommendation to make false accusation an indictable offence under the Criminal Code. We can start with Mr. and Mrs. Cable.
I have a real problem with that. It is not that I don't think action should be taken against people who make forward false accusations and they are proven to be false, but I have a real problem making it an indictable offence. We're talking about 15 to 20 years of imprisonment depending on the judge. Do you want to comment on that? We're depriving the children of another parent who may have malicious intent against the parent but not necessarily against the children. I don't want to get into that debate.
Mr. Russell Cable: When false allegations and affidavits are made against an innocent parent, it's a lifetime occurrence for the damage that is caused, the pain, the anguish to the father or to the mother, depending on the situation, and to the children. Is there any financial or time limit that you can put to ease that pain? We believe that for those who deliberately make false sexual allegations or whatever, there should should be a strong punishable sentence, whether heavy fines, criminal or whatever.
Ms. Eleni Bakopanos: There's a difference between fines and the Criminal Code. That's the distinction that I want to get to. Some witnesses have said we should make it a fine. An indictable offence is a very serious offence under the Criminal Code.
Mrs. Elsie Cable: But some of the allegations that are brought against the fathers, usually—
Ms. Eleni Bakopanos: I'm not denying the fact that these allegations remain. Dr. Brooks, who was here before, said that it remains on his record. He was arrested for speeding and it was on his record. I agree.
Does anyone else want to comment on the indictable offence?
Ms. Maureen Morrison: What is the difference between a woman making a false accusation and an indictable offence if she's proven guilty, and a man charged with stalking? He's facing criminal charges, right?
Ms. Eleni Bakopanos: But would you agree, as we said earlier, to a speedy resolution of the false accusation? Part of the reason it remains is that it takes so long, so it becomes public knowledge much more so. If there was a speedy treatment of that aspect of the divorce proceedings— If you separate the two, the custody and access and payments and so forth from the false accusations so that there's a speedy resolution— Perhaps not in terms of the judge; maybe it should be in terms of mediation. Maybe it should be another person rather than the court system.
Ms. Maureen Morrison: I believe that if more action is taken right at the start of divorce proceedings, and that if these deterrents are put in place so that you know if you make false accusations you're going to be accountable for them— If children are heard right at the start of a separation or divorce, I think a lot of the problems we're encountering will go away.
Ms. Eleni Bakopanos: So it would be a deterrent, in your opinion, because an indictable offence is in the Criminal Code.
Mr. Dan Mason: As a deterrent, I don't think money will suffice. I believe the deterrent has to be such that although you want to recognize any real cases, the danger of dragging on the case is going to be a minimum of one or two years. How are you going to catch it right at the beginning if you don't have that person recognized at the beginning of the proceeding? If this is found to be false there are severe ramifications, but the severe has to take place rather than just be spoken by a judge. There must be the definite in place. If it's true, you have no problem, but if it is false, you have a problem.
Senator Anne Cools: On a point of order, Madam Chair, I want some clarification. My understanding is that the Criminal Code already has a sanction on perjury and false affidavits, so it is already a criminal offence to either perjure oneself or to use false affidavits. Could the chairman clarify that issue, please?
The Joint Chair (Senator Landon Pearson): I can't because I don't know whether—
Ms. Eleni Bakopanos: Senator, my only point is how far we want to make this a deterrent.
Senator Anne Cools: I asked the chairman for some clarification.
The Joint Chair (Senator Landon Pearson): I'm not a criminal lawyer. I don't have that information.
Senator Anne Cools: No, but you're the chairman. Clarify it to the witnesses.
The Joint Chair (Senator Landon Pearson): I don't understand what you're saying.
Senator Anne Cools: Obviously.
Ms. Eleni Bakopanos: I have one more question.
Mr. Haiden, you brought up the issue of extensive education, which has often come up with other groups that have come before this committee. How do you educate respect? How do you educate that people become non-confrontational when emotions and other issues are involved?
I agree with you. I think that before you become a parent you should get some parenting skills, some sort of education. I also agree with your recommendation that much more has to be done in terms of educating both parties, including the children, in terms of the whole process you have to go through when separation and divorce occurs.
Mr. James Haiden: Yes, and I think when we put divorce inside that type of an arena—perhaps there would even be a possibility that a divorce would be averted through some type of education. It's too easy.
Nowadays, after one year of separation, regardless of what happened, you're divorced. It wouldn't matter if I were a very abusive human being. At the end of one year we're simply separated and divorced by no contest.
It seems to me that if we made things a little more difficult to obtain—anything obtained freely is usually not worth having, and things you really work for are the things you're most proud of having.
With the idea of presumptive joint custody first, and then we both go into a classroom setting—it doesn't have to be together, but it has to be a process where you're not going to get out of it that easily. If you're going to divorce and to alter the lives of your children forever, you are not going to do it in ignorant bliss. You're going to be taught, whether you like it or not.
Again, you cannot teach somebody respect. You cannot teach a mother to love her children. You can only expose them and you can only hope.
Especially for a process that takes place over a year— I'm not talking about two courses that you take between 7 p.m. and 9 p.m. I'm talking about “Living Apart 201”, which takes place over a period of a year, so that there is that time to absorb it and to ruminate on it. Then we tend to either draw something from it or totally discard it, but the whole point is that it's a process and it takes place over a period of time. It's not like “I don't love you any more, leave the house and we're divorced”.
Ms. Eleni Bakopanos: I want a quick answer from you. Do you agree with mandatory mediation if there is no violence?
Mr. Dan Mason: Yes.
Ms. Eleni Bakopanos: Thank you, Madam Chair.
Mr. Dan Mason: Might I make a comment?
The Joint Chair (Senator Landon Pearson): Yes.
Mr. Dan Mason: I agree. On joint custody, Ron Henry in the U.S. made a presentation in Virginia to the Senate standing committee there on joint custody.
A lot of problems do get resolved by the automatic assumption of joint custody before divorce and separation, because in the mind of the individual the battle isn't there. The battle begins once there is a chance for me to succeed over the other person. If I have more rights than that other person, then I will succeed. The international community recognizes that.
If joint custody is there, there is no battle unless there is some other reason. It's going to take away a lot of battles in the courts, alleviate it a lot of time, if the court's stand on the whole subject matter— Some of these won't even come up because the issue isn't there. When joint custody is there, the issue is the children.
It's recognized in some courts that the fighting in fact is a method of child abuse. So if we can look at joint custody, it will take away a lot of problems.
The Joint Chair (Senator Landon Pearson): Thank you.
Mr. Eric Lowther: Thank you, Madam Chair.
Mr. Mason, I'm not sure what your credentials are. You seem to be aware of the international scenario.
Mr. Dan Mason: I did a study on international law that started with one convention and moved on to three conventions, including the fourth protocol of the convention on fundamental human rights and freedoms.
Mr. Eric Lowther: Was this an area of personal interest?
Mr. Dan Mason: It was an area of personal interest, largely due to my case and another case that was with me at the time. My case was resolved in the end, but it wasn't with any help from the central authorities in Canada. It was something I did on my own. The convention wasn't being used in Canada as it should, and the interest was to see that the convention does get fully used, especially because of the border-hopping. U.S. immigration authorities, in my discussions with them, were concerned.
Mr. Eric Lowther: I see that presumptive joint custody is also a recommendation of Parks, I believe it is. I've been to other of our meetings and I keep hearing this theme of presumptive joint custody, joint custody, shared parenting and this kind of terminology. You were saying, Mr. Mason, that this is not what the Canadian scenario is. You were comparing us to the international community. What was that again?
Mr. Dan Mason: I was using a point that the special commission used. I think a French delegate brought the subject in that commission, and they were studying how the convention was operating in different countries. The end result was that the presumption of joint custody often remedies a lot of problems. That was the international special commission's recommendation.
Mr. Eric Lowther: And we don't have that presumption here, whereas other countries do. Is that the idea?
Mr. Dan Mason: If we had it, it would be evident.
Mr. Eric Lowther: And they're saying it's not.
Mr. Dan Mason: They're saying we probably wouldn't have had to deal with this case had there been a joint custody presumption.
Mr. Eric Lowther: Gotcha. Thank you.
I want to go to Ms. Morrison. This has to do with people making false accusations. As Ms. Bakopanos brought out, a number of people have recommended that there should be some sort of consequences or a charge or a criminal offence for false accusations. It's a common theme.
In our discussions we want to move quickly to resolve. If there's an accusation, let's quickly find out if it's for real or not. If it is for real, we want to do something about it, and if it's not for real, let's not drag it on. Maybe if we had some sort of consequence to a false accusation, it wouldn't even happen in the first place. That's the quickest way to an early resolution—do not even have it happen.
I think we can all see the logic of that, but at the same time— You've been close to these situations. Thankfully I haven't, but there's a lot of pain and hate and emotion and things going on in these relationships. So we plug this hole that says no more false accusations. The magic button is pushed and no more false accusations are going to happen because we've passed the super Canadian law that stops it.
Where does all that emotion go? What happens now? Is that going to solve it? You have people who are wired up and—
Ms. Maureen Morrison: I can appreciate that, but I can only relate to our own situation when I speak. There was no doubt in our minds that right would rule over wrong, that the divorce papers and the lies in it would surface, that the restraining order would be taken away. There was absolutely no doubt in our minds that this would happen.
We were not proactive, whereas my daughter-in-law apparently had been proactive for some time. We were all reacting. Her mother and father were reacting, and we were reacting. My son thought his wife had had a nervous breakdown, and that if he could get her back and get her into counselling, she would be just fine. So he phoned a friend he played hockey with who was a lawyer. He said don't worry about it, just go with the flow, you'll get joint custody and save yourself a lot of legal fees.
As a result, to this day I think the restraining order is probably still there. We don't know for sure.
Mr. Eric Lowther: So what would a law that would have stopped false accusations done?
Ms. Maureen Morrison: Why can a woman or a man—but I guess it's abused by women—walk into some place and make all these allegations and have absolutely no facts to back it up?
Mr. Eric Lowther: So would it have stopped things—
Ms. Maureen Morrison: If the children had been questioned as we questioned them— My first question to my grandchildren was in front of their other grandmother: “When did your dad start hitting your mother?” And my granddaughter looked at me and said, “Get real, Gramma. My dad loves my mother. He doesn't hit her.” And I said, “Well, when did he start pushing her around the house?” And they just looked at me as if I were someone from outer space. They said, “My mom is lying. It's not true.”
Where can a woman walk in and get that kind of restraining order and divorce proceedings? And it only applies, mind you, when the woman wants it, because at any time, she could walk in and out of the house of my son, who she was so afraid of.
I felt sorry for the RCMP, but I applaud them. They spent hours talking to my husband and me about the legal system and how their hands were tied. They have to follow the restraining order; they're not to sit in judgment as to whether it's right or wrong. But they treated my son with dignity.
Maybe some of the RCMP and the police should be here to testify as well, because a lot of people don't believe in our system, but dear God, if we don't have a legal system we can be proud of and respect, and where the rights of innocent people and children can be protected, then what kind of world are we living in?
You're looking at family violence in children today. Have you ever thought of where those children became violent? I look at my 10-year-old grandson. I know why he's violent in his school. I know why he tears his bedroom apart. I know why he's going to have a hell of a life in the future. He was the little boy who was taken down to tell the truth—that, yes, his dad phoned his mother's house.
I feel sorry for my daughter-in-law, because I believe—and I have consulted with psychologists and psychiatrists who are well known in California and have been on many talk shows—that she has a personality disorder and is possibly manic-depressive. Those children have to live in that house. The assessment says she went from a Chatty Cathy to absolute anger to tears and “Poor me” within a matter of five minutes.
You have to start at the beginning; you have to start right when it starts. I'm sorry; I can't help you, Eric. I can only tell you there are a lot of bleeding hearts out there.
Mr. Eric Lowther: Thank you.
The Joint Chair (Senator Landon Pearson): Senator Cools, last question.
Senator Anne Cools: Thank you very much, Chairman.
I'd like to thank the witnesses and I would like to pick up on Maureen Morrison's statements and testimony.
I'd like to underscore the fact that the testimony the women brought forward here, especially today, has been repeated across the country. A dramatic aspect of many of these hearings has been the testimony coming from grandmothers, daughters, second wives, and even wives who have rethought their positions after many years of the dust settling on the relationship.
I'd like to pick up on Ms. Morrison's and the other witnesses' issues of female aggression. Female aggression is something I know something about. As a matter of fact, I frequently say I learned about female aggression from living in the Liberal Party caucus. I learned about female aggression. I know it very well from the party caucuses.
We keep hearing, here in this committee and outside, from people I would describe as ideologues—and we must differentiate between ideology and law—basically that women who offend either the law of the land or the rules of polite society simply must never be prosecuted. We hear this again and again. We hear again and again the assertion that women can do no wrong, that women cannot tell lies. Yet all the evidence is to the opposite. We hear these assertions.
I see people like you come to us, having such confidence and belief that the Parliament of Canada is finally listening to you and will take you very seriously. Yet we sit here at this table and hear the assertions coming from this table. I would submit that the assertion that a woman can do no wrong is an invitation to certain women to do a lot of wrong.
My question is circuitous in a way, because Dr. Dutton told us yesterday about the phenomenal use by certain women of what he called shaming techniques. It having come to that, I wonder if you could make any suggestions to this committee and to the Parliament of Canada as to how we could address the assertion that women are basically all good and angelic and men are basically all evil and demoniacal. That is the crux of the matter.
I wonder if anybody would care to address that question.
Ms. Maureen Morrison: I would, Senator Anne Cools.
I believe there's equality in this world and I think we'll see it. I hope we will see it when our grandchildren grow up to be parents. In the workforce I worked in—and I think I have the advantage, as most of you ladies do too—I worked with young parents. Our times have changed. I was allowed to stay home for 15 years, but unfortunately, today most men and women have to work to raise their families and provide for them.
That means there are two parents in a house now, whereas once there was mom and then dad was the fun guy who came home. Now you have two parents, and their time is very limited in what they can do, and their leisure time is limited. There are dual roles. If these laws don't change, what's going to happen to that male, who's continually being shoved out the door and being denied access to his children, and ultimately what's going to happen to those children, who are used to having mom and dad?
Mr. Dan Mason: We live in a superstitious time in this area. Perhaps address the fact that superstitions affect human beings—all sizes, both sexes, human beings. Superstition is being allowed in courtrooms and anywhere else, not much different from the witch hunts in the Salem days. Why don't we move away from superstition? There should be rules, for example rules of court, that move bias and superstition away from the whole premise. Without bias, perhaps some of these false accusations would just show up like glass.
Rather than being superstitious people, which we have been since the turn of the century, we should have a law that addresses superstition. Instead of being superstitious people and creating witch trials, much similar to what we're going through now, if we address the fact that superstition should not exist in our Parliament or in our courts, perhaps then we can move forward as a society.
The Joint Chair (Senator Landon Pearson): I just need to make a couple of comments.
If we're going to have all the people who work here and do all this hard work behind, we'd like to give them at least half an hour break, and we will resume again at 1 o'clock. Are there another couple of comments?
Mr. James Haiden: Honourable members, there's no doubt in my mind that women have not been equal and perhaps even in the workplace today still are not. I would suggest and I would submit that once women have truly attained equality in all aspects of life, they will be found to be as truly evil as they are truly good, the same as men.
The Joint Chair (Senator Landon Pearson): Thank you very much.
Ms. Maureen Morrison: Thank you.
The Joint Chair (Senator Landon Pearson): In fairness to our witnesses, we went a bit late before lunch and people are a bit slower regathering. You've been sitting there patiently and we'd like to hear what you have to say. Our members will be coming in. As you know, this is all recorded, so even though it seems like you're not talking to so many, you are in fact talking to quite a lot of invisible presences.
We have Dr. Brian Hindmarch, a psychologist, and Ms. Mary Jane Klein from the Mediation and Family Court Services.
Would you go ahead, please, Dr. Hindmarch.
Dr. Brian Hindmarch (Individual Presentation): As you're aware, I've already submitted a written brief. I worked on the assumption that it would have been read. In any event, I don't propose to sit here and read the entire thing. You can do that at your leisure.
To briefly encapsulate it, in my capacity as a psychologist in private practice doing open custody assessments, I've probably done well over 450 over the years and I have consulted in that many more.
One of the things that have become painfully obvious over that time is that the adversarial system as applied to custody and access issues doesn't work very well. Everybody is well aware of that, otherwise we all wouldn't be here.
In my view, the disadvantage is the fact that it is by definition adversarial. It sets up a win-lose stance on the part of the participants right from the outset. Lawyers often will allow or encourage sometimes the most inflammatory of allegations to be included in affidavits.
At the outset, matrimonial property issues, support issues and child custody issues will all tend to be lumped into the same bunch of material. The best interests of the children are mixed up in there with who gets the Tupperware and who's going to provide support payments for what.
It gets very confusing. Hostilities continue to rise over the course of these things, and this is long before anyone such as myself has ever been appointed to address the best interests of the children involved.
Quite frequently, somewhere at this juncture there will be an interim order granted by the court, establishing, as fixed, the status quo for a period of time, ordering an assessment and so on. We're talking about all this going on over a period sometimes of many months, if not years, before the best interests question is formally addressed by an outside assessor.
With this win-lose mentality that's inherent in this process, this is where all the allegation material tends to creep into the scenario, the sexual abuse allegations and so on. By nature, the process lends itself to throwing into the conflict the most strenuous accusations and allegations such as sexual abuse issues and so on in the hopes of “winning”. The end result is that the courts are often then called upon to make an interim order, based on not much substance other than a bunch of allegations. This situation will then persist, the children being in sometimes a rather untenable position for a very long period of time until an assessment is finally done.
My other concern is that I'll complete an assessment, I'll write a report with very specific recommendations on what, in my humble opinion, is in the best interest of the children vis-à-vis custody and access, but frequently there is nothing compelling the parties to then take that before the court immediately and deal with it.
Consequently, what I often find is that after I have submitted one of these reports to the lawyers I won't hear anything. Several months or more later, I'll be approached by the lawyers again and I'll be retained to do a brief update because nothing has happened in the interim.
There was one example I cited in my written submission. There was a case recently where two children were being divided up on a two-week, two-week basis in homes that were hundreds of kilometres apart. The oldest boy was attending two kindergartens simultaneously, trying to adjust to two peer groups simultaneously.
This is just one of a multitude of examples that I could give you of the kind of stuff these children are being subjected to with this kind of delay.
I don't propose to have any answers or solutions to this. It would seem to me that somewhere, inherent in the system, there should be a process whereby the best interests in terms of custody and access could be separated from all of the other contentious issues. It could be dealt with in a more expedited fashion. It would bring this to a closure for the children involved much more quickly than the present system would allow for.
In that vein, two concepts have arisen out of the U.S. in the last few years, one being the concept of a mini-assessment. An assessor is appointed to meet briefly with each of the litigating parties, with the children. On the basis of that, without getting into reviewing all the multitudes of affidavits and allegations and so on, the assessor submits a very brief report saying basically this is what it looks like, this is what appears to be the best solution for the children for now.
We've probably done a couple of dozen of those assessments within the last year and a half or so. Some situations lend themselves to them very well, some don't. The results are pretty encouraging insofar as that being one means of starting to short-circuit this process a little bit rather than waiting to do an entire open custody assessment, which can take a long time to organize and a long time to perform.
The other concept that came out of the States is what they call in California the special masters concept, whereby the courts appoint someone, a psychologist usually, with quasi-judicial powers to oversee these more intractable cases on an ongoing basis and act as mediator-cum-therapist-cum-assessor.
This has never been done in quite that fashion in this country, to the best of my knowledge. In this jurisdiction I was recently asked by the Court of Queen's Bench, by a judge who had been appointed case manager on a particularly intractable file, to basically do just that, to re-involve myself with a family I had already done an assessment on. I acted as assessor/mediator/therapist, and I worked with this family on an ongoing basis as a way of keeping it out of the adversarial court system. In this particular case it worked reasonable well.
In closing, I would suggest using some of these more innovative ways of getting these particularly more intractable cases out of the ongoing mill of the adversarial system through a case manager approach, whereby the case is looked at individually on an ongoing basis rather than just becoming “part of the system”. It is a much more expeditious way of dealing with the best interests of children and protecting them from this ongoing conflict that the system tends to perpetuate at this point.
The Joint Chair (Senator Landon Pearson): Thank you very much.
Ms. Mary Jane Klein (Individual Presentation): Thank you, Senator Pearson.
I would agree with everything that Dr. Hindmarch has said. I speak from my capacity as a family lawyer and a family mediator, a custody access assessor and an amicus curiae.
I have observed that a substantial percentage of access issues arise out of the difficulties with respect to child support. There are a number of advantages to a proposed regime whereby support, once determined through an agreement or an order and registered with the enforcement program in a province, be paid directly by the province to the payee. The province could then recover funds from the payor.
This would have the advantage of reducing the stress of uncertainty experienced by the payees. It would reduce the potential for unpleasant confrontation between the parties. It would eliminate non-payment by payors as a control strategy and it might go some distance to creating a shorter feedback loop to judges who deem an unemployed payor to be capable of paying, based on previous earning ability, when this in fact may no longer be realistic.
With respect to the families for whom access concerns remain after the support issue is dealt with, in my experience these families fall into three not exclusive categories.
There are those families where the residential parent has genuine, realistic concerns about the safety and welfare of the children when they are in the care of the access parent. They are few in number but they happen.
There are those families where there may be somewhat compromised parenting skills on the part of the access parent and a degree of over-protectiveness on the part of the residential parent.
There are then those families where there's no objective reason for access to be limited; however, the feelings or convictions of the residential parent lead them to attempt to thwart a relationship between the child and the access parent.
It's this latter group that presents the greatest frustration for most professionals involved in the family law system.
These families are before the courts on a regular basis—we all know them—until the access parent has run out of money or heart. The parents pay the bills and the children pay the price.
An access assistance program along the lines of the model developed in Manitoba might go some distance to assisting these families. It uses highly skilled workers and consultants with enforcement through the family court services for contempt proceedings, where necessary. Where a decision is made, for whatever reason, that access requires supervision, it is essential that a subsidy be available to low-income parents, lest an order or agreement for supervised access be the equivalent of denial of access.
An open mediation model with recommendations or full-day mini-assessments, as described by Dr. Hindmarch, might assist the second category above, where regular, closed mediation has not succeeded. It is submitted that this should be the default approach initially taken and it can usually succeed in 70% of the cases. This can be utilized by families hoping to avoid the stress and expense of a full, open assessment.
As families first access the court system, a triage function should be performed by staff skilled in assessing family dynamics. They could direct families to the most appropriate level of service to resolve their situation at the earliest possible time before the damaging allegations start flying and the affidavits are going back and forth. These assessors could remain available to families as their situation changes over time, and they could provide an overall monitoring and case management function.
That is my submission. Thank you.
The Joint Chair (Senator Landon Pearson): Thank you very much.
We'll start with questions from Mr. Lowther.
Mr. Eric Lowther: Thank you, Madam Chair. I need to collect my thoughts for a second for Dr. Hindmarch.
Are you a psychologist?
Dr. Brian Hindmarch: That's correct.
Mr. Eric Lowther: I don't know enough about psychology. We've had different testimonies come forward, and they do these psychological assessments. Let's say you have someone who has accused another person of the sexual abuse of a child. Do you meet with this child and then try to determine whether it actually happened? Is that the kind of work you do, Dr. Hindmarch?
Dr. Brian Hindmarch: Not specifically and not for the most part. By the time a sexual abuse allegation arrives on my doorstep, it's already been raised elsewhere. With the reporting laws under the Child Welfare Act, these things invariably already have been or are in the process of being investigated by child welfare and/or the police.
Mr. Eric Lowther: Okay.
Dr. Brian Hindmarch: In the context of an open custody assessment, the vast majority of the times it's not really incumbent upon me to do a primary investigation.
Mr. Eric Lowther: Maybe this is stretching the purpose of the committee a bit, but I guess I'm using this opportunity to educate myself a bit.
What tools are there in the psychological field to determine whether a child, when one parent is saying he's been sexually abused and now we have a psychologist who sits with this child and tries to determine whether this is real or not— Is that a science? Does everybody do it differently? Is there a consistent approach that can give you some sort of confidence factor? Or is it just that we tend to believe this child and we don't believe others?
I guess there is the physical exam, but apart from that, are there ways to determine whether it's legitimate?
Dr. Brian Hindmarch: That's a very big question and an even bigger answer. We could spend the rest of this afternoon and beyond discussing that with all of the points you have raised.
There are a lot of surrounding and circumstantial issues that need to be looked at when an allegation of this nature arises. No, it's not entirely a science. It's not entirely a science in that there are no psycho-physiological measures and no psychometric measures one could administer to determine whether a child was abused, whether the adult is a pedophile or what have you.
You have to look at the circumstances surrounding the allegation and look at the histories of the individuals involved. In the majority of the cases where an allegation of sexual abuse arises in the context of an open custody assessment, you have a father who has never had any history of sexual aberration, who has had a normal adult heterosexual orientation all his life and has never been in trouble with the law or anything else. In the context of an acrimonious custody battle, he is then accused of sometimes the most heinous and rarest, from a psychopathological perspective, of sexual abuse allegations.
You have to look at the probabilities in that kind of a context—
Mr. Eric Lowther: I don't mean to be rude by interrupting you. If I'm cutting you off before you have a chance to make a key point, please jump back to the key point. But what I hear you saying is that you almost do a kind of judicial review. Has there been a pattern of anything like this before? Is this consistent with the behaviours of the past? What's the circumstance? Then at the end of the day, it sounds as though you make kind of a swag decision, that, gee, I don't think this could have happened. It's not so much based on some type of clinical or psychological approach to the thing as it is gut feel.
Dr. Brian Hindmarch: I can't discount the existence of the gut feeling. I think that's inherent in any kind of assessment work. But to broaden my answer just a tad, there are psychological tests you do administer, of course. The literature is pretty consistent in stating that when there are sexual anomalies of the type we're discussing here, there will usually be some type of anomaly on the battery of psychological tests, not necessarily a consistent one that can be correlated 100% with pedophilia or anything like that, but some glitch, something in those psychological tests that is out of the ordinary. When you don't see that, it further detracts from the credibility.
There's been a lot of literature produced on the personality factors of the person making the accusation and so on. I guess all I'm saying is that this whole issue has to be looked at in context. Again, I would stress that the psychologist doing an open custody assessment is not the primary investigator of an allegation of sexual abuse in the first place, under the reporting laws. That's already been done, usually, by the time we come to an open assessment stage. Child welfare and the police have already investigated.
Mr. Eric Lowther: One of your opening comments—just to shift gears in another direction—was that the system today is sort of adversarial, with winners and losers.
We've heard this before. We've also heard presentations from different groups that it might be advantageous to have couples who are contemplating separation, in the middle of separation, or in the throes of divorce to go straight into a counselling type of arena or videotape sessions that show the impact on children if you start to fight over them and these kinds of things, as opposed to taking the adversarial approach through lawyers and courts and things.
It sounds like the two concepts you laid out here. The special masters was one. I missed the first one you said.
Dr. Brian Hindmarch: Mini-assessment?
Mr. Eric Lowther: Yes. Is that the type of thing you're in support of, Dr. Hindmarch, this, “Gee, before you do that, let's look at the impacts from a historical perspective, because unless you do, you're going to be one of these statistics too”?
Dr. Brian Hindmarch: Absolutely. In this jurisdiction, the family court has the parenting after separation course, which couples now have to take. That's along the lines of what you're describing.
Mr. Eric Lowther: Yes.
Dr. Brian Hindmarch: So far, at least, that seems to be meeting with some success. I am all for that. I think that is an excellent way to make people aware of the ramifications of their behaviours on their children before they occur, rather than retrospectively, which is certainly a good thing.
Just to temper that answer a little bit, human nature being what it is, I think there is a percentage of people who simply are incapable of separating their own psychological agenda from that of their children. There is no blanket approach or blanket solution that is going to prevent some of these individuals from wreaking all kinds of havoc in the lives of their children.
Having said that, though, the type of approach you're suggesting is to me certainly a viable way to approach it from the outset. If nothing else, you very quickly at least weed out the type of individuals I've just described from, hopefully, the majority of other parents, who in fact are concerned primarily with the well-being of their children. I think if they could come to realize ahead of time all of the ramifications of the kind you're describing, it probably would serve to very much moderate, in a lot of cases, their interactions with each other subsequently and perhaps avoid an awful lot of conflict.
The Joint Chair (Senator Landon Pearson): Thank you. We're moving on.
Mr. Eric Lowther: Yes, and that's fine. I have one tiny little question, if time allows, for the end. Go ahead.
The Joint Chair (Senator Landon Pearson): Senator Cools.
Senator Anne Cools: Thank you, Chair.
I'd like to thank both of the witnesses. Of course I know of their work. I know Dr. Hindmarch's work as well. My apologies for missing the first few minutes of your presentation.
Dr. Hindmarch, I have your presentation at page 2. You go, to my mind, to the heart of the matter on the issue of false allegations. You say some things that we know at this point in time from the research.
In the middle paragraph you speak to the fact that the research, “has shown that the vast majority of these allegations prove— to be false”. You go on about the “preposterous” nature of some of these false sexual allegations, etc. You move right into what frequently is the heart of the matter—and I use your words—“the full support of their solicitors”.
You continue in the next paragraph with, “However, there should be some means by which— sensitivity could be injected into these situations by lawyers”. You keep going along the same line, and then finally you say, “The bland acceptance of such inflammatory material by lawyers is unacceptable”.
Dr. Hindmarch, as you know, what you're saying here has been repeated a lot, and I've raised it in this committee, but what I've raised has not found much favour. I've raised the issue of the civil justice review in Ontario, the Manitoba civil justice review, and they've all been saying the same types of things, but to date no body of information has come forward from this committee for members to look at or that brings together some of the issues.
I think you're very well acquainted with the issues. When we raise the issue of concern, of lawyers, we're told to leave it to the law societies. Yet people tell us that the law societies take no action whatsoever to remedy the situation.
My question to you, Dr. Hindmarch, is what action can the Government of Canada take to look at this behaviour, or to hold lawyers accountable for the preposterous statements they advance in affidavits?
Dr. Brian Hindmarch: The short answer? I don't know.
The longer answer, I guess, is that it goes back full circle to what I had prefaced my opening remarks with—that is, the fact that the adversarial legal system, by definition, is set up to foster this type of approach. The Romans designed it to prove innocence or guilt beyond reasonable doubt, and who owned the goat, I suppose. It was never a system that was designed to address these kinds of things.
So it's that mind-set—it's us against them, and if we provide this much material and they only provide this much, then we will have more and we will win—and the pervasive thinking that goes into the whole adversarial approach that I think has to somehow be bypassed. Whether you do that through law societies, I don't know.
Senator Anne Cools: But Dr. Hindmarch, here you're not speaking to the issue of the adversarial process. What you're speaking to here in your submission is the issue of falsehood. The adversarial process has worked for quite these many years. Here we're talking about falsehood. So it's not the adversarial process, it's the use of falsehood as advanced—your words here—by lawyers.
Now, this morning we had another witness before us, Dr. Brooks, who spoke about another professional—not a lawyer, a psychologist—Dr. Gary Kneier, who was advancing these wrongs, or however you want to say it. But in the instance of lawyers, what we're talking about here is old-fashioned truth. Whether it's the eighth commandment or Psalm 24 or whatever, somehow or other the standard as to what is truth has been altered, and according to your own submission, altered by lawyers.
Dr. Brian Hindmarch: Absolutely.
Senator Anne Cools: Now a question to you: what are we going to do in the instance of lawyers who are advancing these falsehoods?
Dr. Brian Hindmarch: Again, that's very difficult to answer.
Whether it's a matter of education or appealing to their sense of whatever, I don't know. I don't know any way you can govern or legislate the kind of material that is allowed to be set forth in affidavit form. Theoretically it's supposed to be sworn under oath and it's supposed to be true. But upon reviewing thousands of these documents over the years, I have encountered multitudes of things that are absolute fabrications, that anyone with a modicum of intelligence would know were absolute falsehoods.
They're set forth and sworn in an affidavit and the lawyer has been involved in that. I know exactly what you're asking me—how do we keep these people from doing this? I don't know. Appeal to their common decency or their sense of honesty? I don't know. How one legislates that, I don't know.
All I'm saying is this is what's happening, and perhaps the way to deal with it is not to try to enact some means of making sure lawyers and their clients always tell the absolute truth, but change the way in which we access the system so that this stuff is not placed first and foremost before the best interests of the child. We're talking about changing human nature to some extent, Senator Cools, and I don't know if you can do that.
Senator Anne Cools: Thank you.
The Joint Chair (Senator Landon Pearson): Can we move on? We have a short period of time.
Ms. Eleni Bakopanos: I'll be very brief, Madam Chair.
My question is to Dr. Hindmarch. I was very interested in the concept of case managers that you cite in your document. Could you describe that a little bit more? It's quasi-judicial—powers are appointed to guide families towards resolution, thus bypassing much of the legal—
Dr. Brian Hindmarch: That's the way the concept was set up in the United States. I attended a conference in Tampa, Florida, two years ago at which this was presented. It's been tried a number of times in California.
Ms. Eleni Bakopanos: But who is there? Who are the case managers?
Dr. Brian Hindmarch: The case managers in California, as they are setting it up there, are usually psychologists appointed by a judge. A judge says “This is an intractable case and I want you to manage it. These people are going to come to you with their problems. You settle it. Do that on an ongoing basis and keep me posted if you need me.”
Ms. Eleni Bakopanos: And their decision is a decision of the court?
Dr. Brian Hindmarch: This is by order of the court.
I don't think it's accidental that this concept arose in the wealthiest per capita jurisdiction in the United States. It raises a whole host of financial questions in terms of the applicability of this concept elsewhere, but in our jurisdiction here, Queen's Bench judges are routinely appointed as case managers. That means they are seized with a case. The lawyers can go to them on an ongoing basis for dispute resolution.
What I was discussing earlier was an offshoot of that. We recently experimented with a similar situation in which the judge ordered that these individuals would come to me for x number of sessions, and funding was arranged for that because it was an experimental sort of thing. I would basically serve that kind of function, which I did for half a dozen or so sessions. We did get a lot of issues resolved in the context of approaching it that way.
Ms. Eleni Bakopanos: How does it differ from mediation? The case managers are there to mediate between the parties.
Dr. Brian Hindmarch: The case managers are judges.
Ms. Eleni Bakopanos: It would only be used in conflictual situations, right? It wouldn't be used if there was consensus. It would only be used when there is conflict and when conflict cannot be resolved in any other manner. What's the difference between the case manager approach and mandatory mediation that would require a psychologist, a lawyer and other parties?
Dr. Brian Hindmarch: The concept, as it was done in this particular instance in which I was involved—I wasn't so much trying to mediate peace between the warring factions. My focus as an impartial person is based on the best interests of the children involved. I don't care who's happy at the end of the day. I don't care if they both feel that they got a fair shake. One or the other of the parents may be quite unhappy with it, so it's not mediation in the sense that both parties are going away happy—
Ms. Eleni Bakopanos: But I want you to tell me—
Dr. Brian Hindmarch: —it's a case of me looking at what's best for the child. So I may be being a mediator in a very general sense, but at the end of the day I'm saying, “I'm not saying this to make both of you happy. I'm saying this because this is what is best for your child, and whether you like it or not is not my problem.” That's the difference.
The Joint Chair (Senator Landon Pearson): Thank you very much.
Senator Chalifoux, a quick question.
Senator Thelma Chalifoux: Yes, it's to Ms. Klein.
I understand you practice family law.
Ms. Mary Jane Klein: I'm with Mediation and Family Court Services right now. I have practised law for a number of years.
Senator Thelma Chalifoux: Okay. This committee has been charged with looking at the Divorce Act and custody and access in regard to regulations and the act. We've heard a lot about mediation. Is it practised here in Alberta? That's the first question. My second question is, in your mediation, are grandparents and extended families used within that mediation? Do you think that should be a consideration of this committee when we look at the act?
Ms. Mary Jane Klein: Yes, there is family mediation practised extensively in Alberta. Within our jurisdiction, we obtain about 900 agreements a year under the Queen's Bench program.
Anyone who's appropriate to be involved in the mediation is invited to be included after the original parties have been seen and provided they're comfortable with adding others to the mediation. If there's a dispute between grandparents and one or more of the parents, they are the parties and of course we would mediate with them quite happily—and very often with good results.
Senator Thelma Chalifoux: Do you think this committee should consider that when we review the act?
Ms. Mary Jane Klein: Yes, I do. The value of the extended family is immeasurable. It's frequently underrated and often ignored. It's certainly one of the things on our checklist, that we always include unrestricted access to all extended family, that they be encouraged by both parties, and in general it is included as one of the terms of an agreement.
Senator Thelma Chalifoux: Is the mediation process in Alberta policy or is it regulation?
Ms. Mary Jane Klein: It's policy. We don't have mandatory mediation here.
Senator Thelma Chalifoux: Thank you very much.
Thank you, Madam Chairman.
The Joint Chair (Senator Landon Pearson): Mr. Gallaway has a question.
The Joint Chair (Mr. Roger Gallaway): Dr. Hindmarch, I just wanted to ask you a very quick question. Assuming that somebody has need for your services, what does it cost for an assessment?
Dr. Brian Hindmarch: Complete open custody assessments generally tend to run somewhere between $3,000 and $5,000 in total. In this jurisdiction, though, there are subsidies available through the Edmonton custody mediation project. Those are done at a reduced rate and they are subsidized up to about 97% in some cases. So there are subsidies available for these things, and legal aid special disbursements can be obtained by lawyers for shortfalls and so on.
The Joint Chair (Mr. Roger Gallaway): Okay. Thank you.
The Joint Chair (Senator Landon Pearson): Mr. Lowther, we're trying to—
Mr. Eric Lowther: It's okay. My question has been answered. Thank you, Madam Chair.
The Joint Chair (Senator Landon Pearson): Thank you both very much indeed for your presentations.
Senator Anne Cools: There is an issue that was just put in my hands by someone sitting in the audience. On a question of privilege, it was just put into my hands. It is something that I think has been taken off the Internet. It's headline is “Women Given Rough Ride at Custody and Access Hearings in Canada”. It seems to be an article about this committee. I haven't fully read the entire thing, but it's really quite offensive. I wonder if perhaps, Chairman, we could set aside some time at the end of the day to deal with it.
The Joint Chair (Mr. Roger Gallaway): Yes, I think we can deal with it in part today.
Senator Anne Cools: Well, we can just put it aside now. We can then take decisions as we go along.
The Joint Chair (Mr. Roger Gallaway): I appreciate the fact, Senator, that you've put it on the record. That's the important thing at this point.
Senator Anne Cools: Right, okay, so later, because I would like to read this into the record. I'd be grateful. This is the sort of thing this committee keeps enduring.
The Joint Chair (Mr. Roger Gallaway): I would now ask our next group of witnesses to come forward. We have Professor Christensen; Guy L'Heureux; Mr. George Moss, who's the founder of the Children's and Parents' Equality Society; and from the Men's Equal Access Society, Michael McGill.
Welcome to you all. We'll start with Mr. McGill. I presume you've seen some of our proceedings today. I would ask you to limit yourself to about five minutes, please.
Mr. Michael McGill (Member, Men's Equal Access Society): Sure. Actually, my address to the meeting today deals with quite a bit that Dr. Hindmarch just finished up on, dealing with the courts.
The courts that address family matters are the forums for deciding parenting disputes that affect the children of separating and divorcing parents. It's these courts that make decisions of enormous importance to the well-being of children. Yet the adversarial nature of many courts can exacerbate rather than resolve or aid the family conflict.
A growing number of judges, attorneys, mediators, and mental health professionals have challenged the notion that the only way to resolve family disputes is through the adversarial court process. These experts believe the win-lose nature of the proceedings often inflames existing conflicts, to the detriment of both parents and children.
Secondly, the process to challenge the evidence placed before the court with increasing regularity in the adversarial process is inadmissible and contains false information that is placed before the court and is regularly entertained.
Some of the recommendations are as follows.
First of all, both parents should have equal status, which includes parenting time, parental decision-making, and effective input to their children's future growth and upbringing.
Secondly, parents should attempt to develop parenting plans that clarify and formalize their parenting responsibility.
A third would be to require parents who come before the courts without an agreed-upon parenting plan to participate in mediation to resolve their differences. Also, individuals who do come before the courts should have to attend mediation, unless there is a matter of crucial consequence.
Also, a new court system should be set up specifically for family law. We need uniformity across all jurisdictions in Canada, which we don't have right now. Each jurisdiction as we go across has different rulings and different implications for the same set of rules. We need judges, lawyers, mediators, and other court personnel who are specially trained in issues of family law and family dynamics.
Thirdly, with this new system we need criminal sanctions for lawyers and individuals who advance and perpetrate false allegations.
We also need a system that provides effective and timely court management and coordination. From intake to case resolution, the courts need to effectively assign, schedule, and track the case's progress through the system.
That is my submission.
The Joint Chair (Mr. Roger Gallaway): Thank you very much.
We'll now have Mr. Moss.
Mr. George Moss (Founder, Children's and Parents' Equality Society): I appreciate this opportunity. I'm co-founder of CAPE, a voluntary organization that promotes shared parenting after separation and divorce. We have been exposed to this process and these issues for approximately 15 years through seminars, organizational conferences, by conducting support group sessions and mediation, by lobbying government for change.
In turn, I would like to address major issues affecting children and the non-custodial parents after separation and divorce. We made recommendations to the last 1985 amendments to the Divorce Act, favouring shared parenting or presumption of joint custody over the continuing adversarial process, and to introduce joint party resolutions through mediation. Subsequently, amendments for mediation were made in a mild form, although we were advised that former recommendations of shared parenting would be phased in in future changes.
The existing adversarial process has to be phased out. It sets the stage for ongoing conflict and confrontation, polarizing the respective parties on who gets custody of the children. It sets up ongoing power plays leading to falsifying affidavits, allegations of child abuse and countless other issues further magnified by many lawyers.
The fallout from this process results in extraordinary stress affecting their health and well-being and their ability to parent properly. Extreme cases have resulted in abductions, violence, murders and suicides. The ripple effect to children is devastating and it has scarred many for life. In many prolonged cases finances are wiped out, escalating the stress, forcing many to social assistance and the abandonment of their children.
I would like to stress that a shared parenting program and presumption of joint custody would change attitudes at the very initial stages, whereby the focus would be on the well-being of the children and their goal to achieve this by the parties.
Utilization of such terms as access and visitation do not reflect well in raising children and in proper parenting and they should be phased out.
Repeated denials of access on legal court orders is rampant. These, in turn, are supported by falsifying affidavits to support abuse of denials. Stronger enforcements and prosecutions have to be introduced, including change of custody.
Parenting programs should be compulsory for all parents involved in separation and divorce, as in many cases allegations are made of parties being unfit. Brainwashing of young children is rampant, including the subliminal effect on children of a parent's conduct.
In continuing conflict and denial of access children learn to manipulate and to tell lies by observing the conduct of their parent in providing reasons and excuses to the other parent, police officers, or other intervening parties for denial of access at the time.
In most cases, young children desire both parents but, in turn, are obedient to a denying parent, resulting in crying their silent tears when being denied their emotional needs to the other non-custodial parent. As they grow up, these tears convert to frustration and anger. As a result, teens start venting out towards a parent and the system in general. Many end up as youth offenders who were scarred at a very early stage. These children, especially boys, are very vulnerable to abnormal behaviour and violence towards women or their spouses when adults.
Yet society continues to blame young offenders, not knowing that the judicial system failed to meet their obligations as young children. And in many cases it has scarred them for life.
There is misconduct on the part of certain members of the RCMP and justices of the peace in communities, whereby many access court orders are not enforced due to parties knowing each other through their churches, social or community organizations. Many make their own interpretation of court orders.
My recommendation is to require a provincial judge and an access coordinator to be on duty at all times to respond to access problems as they occur, including the weekends, holidays and so on.
On issues dealing with schools, further destruction of children occurs where a child attending school is severely scarred when they are greatly disappointed at not seeing their non-custodial parent at school or at any other of their school functions, indicating to them that the parent has no interest in them or their well-being, and not knowing that the School Act restricts non-custodial parents from attending the school of their children.
Anne McLellan, in addressing the changes to the youth offenders program, provides funds that will be available for treatment and various other programs. We recommend that a percentage of these funds be applied to access enforcement and other programs that will reduce the emotional scarring of children at a very early age, which leads to countless problems in society as these children grow up.
In closing, the biggest problems is that over time the system has been allowed to corrupt itself. The only resolution is to bring about changes in legislation as required, and strong reinforcement of existing legislation, which will result in prosecutions and the fear of prosecution, and thus change the attitude of the numerous parties that are using and abusing the system with complete disregard for the long-term destructive effects on children.
There is one last item I'd like to bring forward and table. On July 9, 1995 we had representation from 75 organizations and people within a workshop conference with the Minister of Justice. We have the end result of that document, which I would recommend each one of you read. Subsequent to that, I was a co-chairperson working with the justice committees in making recommendations for changes.
With the exchanges that were brought forward, we made some very valid changes. We are very disappointed the only recommendation that came out of this whole program was the parent awareness program, which was brought about by Madame Trussler with Brian Evans' assistance. But in turn, the issue that has repeatedly come back to us is that of the responsibility of federal jurisdiction, so from that standpoint I would highly recommend you read the material.
We also have some closing recommendations, if you'd like to hear them.
The Joint Chair (Mr. Roger Gallaway): I think you're very much over time, so I think we'll just stop it there, Mr. Moss. Perhaps you'll be able to give them to us in the course of the questions.
Mr. George Moss: I appreciate that.
The Joint Chair (Mr. Roger Gallaway): I wonder if you could just state the name of the report you're tabling.
Mr. George Moss: The name of the report is the Workshop Featuring Non-Custodial Parents and the Law, on July 25, 1995, the Alberta Justice College with the Minister of Justice, the Honourable Brian Evans, and the attached meetings of the Alberta Justice and Parent Organizations Committee, the winter of 1996.
The Joint Chair (Mr. Roger Gallaway): Thank you very much.
Mr. Guy L'Heureux (Founder, Canadian Men's Survivors of Child Abuse Resource Centre): After having operated a crisis line for men for about four and a half years, I think what we're hearing here basically is male pain, men's pain, the lack of care and concern for the overall wellness of men in our society. If we don't start to really address that particular issue, this society will suffer the consequences in the not-too-distant future.
Also, after having heard enough pain from men in this community to last me 50 lifetimes, I also know that neither gender has the monopoly on good or evil. Males are likely to be the sexual abusers of children, and females prey on 43% of male victims. So 43% of male victims have been sexually abused by females. Females are likely to be the physical abusers of children, and males run a close second. I believe emotional abuse is about even.
This whole picture is what I characterize as true gender equality in violence against boys, so to speak.
It should be obvious to this panel by now that when love leaves, mom and dad don't see eye to eye on just about anything. Therefore, we need to view this from the eyes of the children. The children absolutely require the right to access all their love networks to maintain custody of their humanity. I'm talking about love here, and building balanced human beings.
It is really that simple. It's their needs that are paramount, not the needs of belligerent parents who view these autonomous entities as chattel. The day for elevating children to full human being status has arrived, and it's long overdue. They are, after all, on the same journey, part of the same herd, to be protected from all predators.
I recently presented and participated at a symposium in this community to address the problems of troubled youths. The community psychologist who coordinated this event invited us to humble ourselves to children and ask them how they felt. To a person, they told us that they were lonely, that they felt unloved, and that no one seemed to care.
It's obvious we're running a very high deficit in the area of basic human needs in our society today, and the children are crying out. Every day we have new media stories of kids killing kids as they reel from the lack of love, empathy and compassion, something they cannot give because they've never received it.
Last week Canadians decided to increase that deficit that's poisoning these troubled children with another crackdown in the Young Offenders Act. Now we will name some of them to wear the mark of Cain, if you will.
Well, I suggest we publish the names along with the pictures of the victims of child suicide—you know, the coroner's pictures taken before they are brought down from their gruesome gallows. That's not likely to happen, is it?
Males commit suicide at a rate of four to one female, with our little brothers of the first nations having the highest rate in the country. And the great society yawns. I'm certain if females took their lives at a rate of four to one male, and white girls between the ages of 11 and 17 had the highest rate, all hell would break loose.
We don't want to deal with that, do we? Instead, we choose to further isolate these unloved children, mostly male, crushed with loneliness and despair, and choose to make them the scapegoats, the convenient scapegoats, of a society that cares precious little for them.
A study by the B.C. Attorney General's department found that 24% of young offenders in their sample were suffering from fetal alcohol syndrome, FAE, or more accurately—I think we need to name that wonderful euphemism—“criminal negligence causing permanent brain damage”. That's what it is, so let's call it what it is.
Another 20% had suffered traumatic brain injury, and 75% of this group had also been victims of child abuse. Four out of five were male children.
The great society demands that these unfortunate victims, many mentally retarded, many borderline mentally retarded, be held fully responsible for their behaviour. Then we go forth in deep denial, believing the universe is unfolding as it should.
This is truly remarkable behaviour for a society that puts forward the view that Canada is first among just societies; remarkable indeed.
The Joint Chair (Mr. Roger Gallaway): I really don't want to disturb you, but you're over the allotted time.
Mr. Guy L'Heureux: I have just one more paragraph.
The Joint Chair (Mr. Roger Gallaway): Thank you.
Mr. Guy L'Heureux: I beg this panel to rescue our little brothers and sisters. They are our past and our future. We must look inward into the collective soul of this society to the light of the love side and nurture them with the spiritual milk of human kindness. If we fail to do that, we will be consumed by the darkness, where demons prey.
The Joint Chair (Mr. Roger Gallaway): Thank you.
For a point of clarification, you did refer to one study from British Columbia. As well, at the beginning you referred to a number of statistics. I wonder if there is reference in your submission as to where you obtained those.
Mr. Guy L'Heureux: I have a copy here, sir, of the summary of that study. I didn't get a chance to photocopy it, but I will get it done.
The Joint Chair (Mr. Roger Gallaway): I wonder if you could submit that, or fasten it to your brief.
Mr. Guy L'Heureux: Another book here that should be mandatory reading for every member of Parliament is published by Health Canada. It was released last spring. It's entitled The Invisible Boy: Revisioning the Victimization of Male Children and Teens, by Dr. Frederick Mathews. He's the director of Central Toronto Youth Services, and he's a clinical psychologist.
This is where I'm getting my numbers from.
The Joint Chair (Mr. Roger Gallaway): Thank you very much.
Mr. Guy L'Heureux: Thank you.
The Joint Chair (Mr. Roger Gallaway): Last is Professor Christensen. Please proceed.
Professor Ferrel Christensen (Individual Presentation): Mr. Chairman, members of Parliament, I thank you for this opportunity.
By way of background, I have spent 26 years as a professor at the University of Alberta teaching logic, ethics, and the philosophy of science. I have spent the last 15 years of my life intensively studying gender equality issues.
This committee has stressed its desire to hear proposed solutions to the problems of children in divorce. By now you have heard many valuable proposals for changes in laws and policies, but by my lights, the biggest change needed to solve the problems is not in those regulations. It is in the attitudes that determine how the laws and policies are administered. In a word, the biggest change needed is ending the prejudice against fathers.
The laws and rules themselves are gender neutral. Their administration is very often not. In social services and law courts and many related venues, a bias against men and fathers is widespread. This prejudice has many manifestations, but the one I will address here is that involving family violence, an area I have studied extensively. I have only a few minutes, but I will later supply this committee with some extensive written analysis.
For years now, the publicity on abuse in the family has promoted the belief that only men do it, that there is hardly enough violence against spouses and children by women to mention. Government agencies, private organizations and news media have all parroted the party line.
Distressingly to me as a trained scientist and ethicist, even some social scientists have knowingly distorted the truth in this matter. Yet there is no rational room for doubt on the facts. As revealed by large numbers of evidential sources, women and men commit child abuse and spouse abuse about equally often.
By this point, the committee will have seen some of that evidence, so I will continue.
Stereotypes have consequences. They hurt people. They influence judges, police, lawmakers and others with massive power to hurt. Just ask Donald Marshall. In the minds of many in Canada today, however, prejudice is evil only if directed at certain designated groups. I submit that if the same vilifying stereotypes aimed at men were directed toward natives or immigrant groups or gays or women, they would be denounced all across the land, and rightly so.
The irony is that anti-male stereotypes hurt all men: native men, black men, disabled men, and gay men. More relevant in this context, anti-male prejudice also hurts women, who are the mothers, sisters, grandmothers, and wives of men. Most of all, anti-male prejudice hurts children.
By this point, the committee has heard many stories of this kind of harm. What I will do briefly is codify ways in which the family violence stereotype hurts everyone.
Sadly, certain groups appearing before this committee have heavily promoted the stereotype that only men are abusive in the family. Rather than decrying the harm to children of losing a parent and seeking ways to promote shared parenting after divorce, they have filled pages warning against those violent men.
No decent person would allow the innocent to be subjected to violence. Persons genuinely concerned about such harms, I submit to you, would not ignore half the problem. Consider the reasons.
First, promoting the stereotype sends a message to violent women that they have no problem to overcome, only those nasty men do. It creates a tendency for authorities to overlook children abused by their mothers or else to assume the abuser must be the father. The result is often that police and social workers prevent fathers from protecting their children from abusive mothers. Imagine the pain of the parent trying desperately to protect a child and finding that the all-powerful state stands in the way.
Second, fatherlessness itself tends to produce child abuse. The stress of rearing children alone is one reason. Another is that stepfathers and boyfriends, not having bonded with the child, are more likely than natural fathers to abuse them. Indeed, abuse by the mother or her new partner is one of the illegitimate reasons for access denial: to keep the father from finding out.
Third, ripping apart the bond between the father and a child is itself a form of abuse to both parent and child. Those who promote the stereotype do not place such things as access denial and parental alienation on their list of types of abuse, but it is one of the greatest harms a parent or child can suffer. In fact, the fear of losing their children in divorce is one of the main reasons why men remain with abusive wives. Both sexes have their special vulnerabilities.
Fourth, the stereotype itself encourages destruction of the father-child bond. One way it does this is by aiding those mothers, who are fortunately a small minority, who selfishly want to get the father out of the children's life. It provides her with a perfect weapon: just tell authorities he's abusive to her or to them. Since only men do evil things in the family, she must be the one telling the truth.
Note well that false accusations constitute yet another form of abuse. It's merely indirect or proxy aggression committed with the weapons of the state. Here again, however, is a form of abuse not listed by those who promote the stereotype.
Fifth, the emotional harm caused to children by parental loss is in turn a cause of violence committed by children as they grow up. There is a huge amount of sociological literature on this. Everything from rape and other crimes to teen pregnancy to poor school performance has been convincingly traced to father absence. Yet again, those who promote the stereotypes seem unconcerned with this kind of harm.
Last, there's the violence caused by the emotional pain and harm of losing a child. Those who promote the stereotype make a special issue of violence committed by men in divorce. Here again, no decent person would deny protection to the innocent from violently possessive persons, but some of the violence men commit in divorce is the result of being pushed over the edge by all the kinds of anti-father bias in the system. If it were women who were routinely having their children ripped away in divorce, I submit to you that far more women would be driven to violence. Family violence is a human problem, not a gender problem.
I have some concrete suggestions. I gather I'm probably out of time now. I trust I can bring them up in questions.
The Joint Chair (Mr. Roger Gallaway): Yes. Professor Christensen, you referred to a written analysis that you're going to submit also.
Prof. Ferrel Christensen: Yes. The timing got thrown off with the changes in the committee's plans. That's the multiple changes. I decided to put off preparing the material until summer. Then I didn't have time to change plans again when you decided you would come to Edmonton. I really appreciate your coming to Edmonton, but it threw off my schedule.
Yes, I plan to give it, but it's going to take the form— I'm enlisting the cooperation of some other academics for critiquing the submission to this committee sponsored by the Status of Women Canada. I find it to be a seriously prostituted piece of scientific writing, and I would like you to see the reasons in great detail.
The Joint Chair (Mr. Roger Gallaway): Thank you.
We will now proceed to questions. I'm looking to see who would like to start.
Mr. Eric Lowther: I just have a little question for Mr. Moss.
You made a reference to the brainwashing of children. Somebody said that parents can brainwash the children. I think that was the context of it in there, sort of. I think what you meant was they might get the impression that one of the parents was doing something that was wrong and they hadn't actually thought of that before but the other parent continues to stimulate them in this way and they kind of get brainwashed.
We've had some debates in this committee about the voice of children needing to be heard. I have a struggle with this a little bit in that, yes, we need to hear the voice of children, but how do we know the voice of children is not a brainwashed voice of children, or a heavily influenced one, or one that has had things suggested to it? We heard earlier today that some of the treatment programs actually plant thoughts in their mind. Now we're hearing the voice of children, but how do we know from a child that it's actually—They're not at the age of maturity. They can be influenced.
Have you ever wrestled with this question of how we need to hear from the voice of children? I don't discount that. I think we do need to hear them, but at the same time, we need to protect against that voice being skewed. It's an immature voice that has been influenced.
Do you have any comments on that?
Mr. George Moss: In my opinion, we're addressing an issue that should be addressed at a lot earlier stage. In other words, it's prevention. We're dealing with these issues at a very early stage. When you allow this, through the adversarial process, to get started and the polarization to get going, before you know it—
This process starts with the children, because in the meantime the power play goes on to deny the other parent access. Justification has to take place, so the only justification that can take place is that the parent has to instil within that child the reason why they may have better choices and do things other than going to their non-custodial parent, and when the police come along to enforce the issue, they follow through as parrots, in a way. Even though, deep down, they want to go with that parent, they want to be obedient to the existing parent on the home front.
As a result of that, those issues should not be allowed to be nurtured along and get to a certain point at which tremendous damage is done down the road.
Mr. Eric Lowther: So it's early—
Mr. George Moss: Early resolution has been mentioned with respect to attitude. To me, attitude is the most important factor when you're dealing with separation and divorce, and the focus on the children in this should be first. Once they start getting away from that focus, the power play starts and the children are lost in the whole process.
Mr. Eric Lowther: Thank you.
The Joint Chair (Mr. Roger Gallaway): Colleagues, before we go any further, I want to welcome to our table here today Senator Forest, who has joined us.
Senator Anne Cools: Thank you, Chairman.
I'd like to thank the witnesses for what I thought was very insightful testimony. I would also like to thank the witnesses for their commitment to balance, fairness, and the understanding that human anguish is universally shared by both genders. We only have two genders; it's not as though we had ten. There are only the two.
I also thank Dr. Christensen for bringing forth in his presentation, as in Mr. L'Heureux's and the others of course, that probably in today's community the single greatest obstacle to the protection of the children and the children's best interests is the prejudice you spoke about, and prejudice is a terrible ill.
My questions, first of all, are to Dr. Christensen. Dr. Christensen referred to the prostitution of science and scientific method.
I'm impressed, Dr. Christensen, that you have basically been studying the issues of ethics and moral philosophy all your life, so I believe that gives you a lot of credibility to speak to the issue.
There's a new term developing in many academic circles, and it's called data rape. I've heard so much testimony before this committee that is data rape par excellence. I don't understand why we even receive some of it as testimony. I think some of it is contempt of Parliament. Those are my private views.
But if I could come to a particular study, as you know, Statistics Canada did a big study some years ago and I believe it was called The Violence against women survey. Many Canadians and many members of Parliament do not know that particular study has been the subject of much debate at many international conferences. I've certainly attended one. It was in New Hampshire at Dr. Straus' family laboratory's annual domestic violence conference. That particular study has been the subject of much academic criticism. I tried to bring it forth in this committee by raising some of the concerns Dr. Straus himself had raised about the deployment of his own methodology. Again, it found no favour.
I would like to ask Dr. Christensen if he has any comments about the Statistics Canada very expensive study, The Violence against women survey, and if he's looked at it. Number two, another very expensive study produced the report called Changing the Landscape: Ending Violence, Achieving Equality. It cost $10 million, an astronomical cost, and I don't think anybody at this table has ever looked at it. I wonder if Dr. Christensen could comment. My theme was data rape.
Prof. Ferrel Christensen: There's no time here to discuss the Statistics Canada survey. There are too many things to be said. But there is one very obvious matter that does not require an expert. I can put it in these terms. How would you feel if the federal government sponsored a study of that type entitled “Violence Against Whites”? Everyone would recognize the prejudice in that sort of approach. It's the same thing in a study like this. Men bleed too, men feel pain too, and when you look at the whole spectrum of violence, men are on the receiving end of violence more than women are. Just to leave out half the population is indicative of a very deep problem in the attitudes of the government and of certain scientists. There's a very deep problem there, and that's why I focused on the issue I did today.
I'll take this opportunity, if I may. I indicated I have some suggestions to try to end the prejudice. They're very general in a way. To end the prejudice of any kind against men or any group at all, you scrupulously end the government's funding of prejudice groups and investigate prejudice in government itself—government agencies and so on—just as you do regarding prejudice toward men, women, natives, francophones, or what have you.
Again, I won't speak to my example here. Because of the detail, I will leave something with you instead. The $10-million one was an absolute outrage. There are no kind words to be said for that—it's pretended science.
But the one on which I have some materials because of some special work I've done is the scientifically unethical research on dating violence from a few years ago carried out by Walter DeKeseredy. His work, to use a comparison often used, is every bit as corrupt as the alleged actions of police and scientists in the Guy Paul Morin case. There was a massive suppression of evidence, twisting of facts and so on.
At the time I tried to do something about it. I got together with half a dozen behavioural scientists and petitioned Diane Marlowe, who at that time was the health minister. The health ministry had funded this research. She turned a deaf ear. I don't know what you have the power to do, but I am officially submitting today some documents, indication of this dating abuse survey by Dr. DeKeseredy, requesting you use whatever investigative powers you may have to look into it.
Until people reach the point where they no longer support their prejudice with pretend science, we will be unable to solve any social problems in this country.
The Joint Chairman (Mr. Roger Gallaway): Thank you.
Senator Anne Cools: Perhaps the committee could undertake to look at it with some fierceness. I forget the exact name of it. It's DeKeseredy and Telly, isn't it?
Prof. Ferrel Christensen: Yes, she was a junior researcher.
Senator Anne Cools: What is the name of the—I think it's called dating something between dates.
Prof. Ferrel Christensen: It's a long title and I might get around to it. It's the dating abuse survey done about three or four years ago, which was on front pages across Canada. I've critiqued it fairly thoroughly in these documents, which I will leave with you, and further documents such as the instruments used in the research and so on, which I will submit if you decide to take this up.
Senator Anne Cools: As an addendum to what Dr. Christensen has said about that particular study—actually, I haven't thought about that one for a few days—I came across a lot of material, a lot of criticism of that particular study, and I tried to get a meeting with our Minister of Health at the time, Mr. Dingwall. It took me weeks to get a return call from him. It took nine months to get a meeting. Then he met with me for five minutes.
Ms. Eleni Bakopanos: I have a point of order. I fail to see what this has to do with the subject we are dealing with.
Senator Anne Cools: It took five minutes.
Ms. Eleni Bakopanos: You're criticizing a minister of the government.
Senator Anne Cools: I'm not criticizing him.
Ms. Eleni Bakopanos: Yes, you are.
Senator Anne Cools: There is no criticism.
Ms. Eleni Bakopanos: You just said it took a long—
Senator Anne Cools: On a point of order, let's discuss it properly. Let's speak to it properly.
The Joint Chair (Mr. Roger Gallaway): All right. Please raise your point of order.
Ms. Eleni Bakopanos: I did. I fail to see what criticism of a minister of the government has to do with the issue we are dealing with at the present time.
The Joint Chair (Mr. Roger Gallaway): Quite frankly, I don't think you're raising a point of order. She's making an observation.
Senator Anne Cools: Frankly, I have offered no criticism. I have stated a set of facts. I shall repeat them in case you didn't hear.
Ms. Eleni Bakopanos: I have very good hearing, Senator.
The Joint Chair (Mr. Roger Gallaway): Please let the senator speak.
Senator Anne Cools: Do I have the floor?
The Joint Chair (Mr. Roger Gallaway): You have the floor. Go ahead.
Senator Anne Cools: As I was saying, I attempted to raise this issue with the Minister of Health, Minister Dingwall. I called Mr. Dingwall. Mr. Dingwall took several weeks to return a phone call. Finally I spoke with Mr. Dingwall. It took nine months to get a meeting with Mr. Dingwall. When the meeting took place it was for five minutes, during which time he was on House duty in the House of Commons. That was the first and the last of the issue, as far as Mr. Dingwall was concerned.
I have said nothing critical. Nothing at all.
The Joint Chair (Mr. Roger Gallaway): Thank you.
Senator Anne Cools: She doesn't—
The Joint Chair (Mr. Roger Gallaway): Please. Ms. Bakopanos has the floor.
Ms. Eleni Bakopanos: Thank you.
My question is for Professor Christensen.
I'll play the devil's advocate.
Prof. Ferrel Christensen: Yes. I love that.
Ms. Eleni Bakopanos: Why is one set of data valid and another set of data prostituted, in your own terminology?
We've had various witnesses come before this committee who feel their set of data is the data we should be in fact examining. We've had another set of witnesses, you and others, who feel the other set of data is much more appropriate for usage in this committee's report. I'm rather confused as to whose data I should believe. You're saying the Status of Women—
Prof. Ferrel Christensen: The problem is not different sets of data. The problem is what is done with the data. What kind of manipulations, what kinds of omissions of fact—
Ms. Eleni Bakopanos: That's the point. How do I know your own data hasn't been manipulated? How do I know that?
Prof. Ferrel Christensen: Here is my general answer.
I don't whether it will help, but what we're dealing with here in general is not something that requires experts to adjudicate. If you look very carefully at the kind of arguments and evidence I give and the kind they give, even without a large background in statistics you should be able to tell exactly who's telling the truth. But it does require, because of the general complexity of the subject, careful looking at.
I will go over my reasons very carefully. It has nothing to do with different sets of data. It has to do with how one reads these things and what one does with them after one has them. Data can be manufactured. That's not usually the problem.
Ms. Eleni Bakopanos: But I will put on the record that I also feel that data can be used to make a point one way or the other. It has happened in other issues, not this issue only.
Prof. Ferrel Christensen: People misuse data all the time.
Ms. Eleni Bakopanos: All the time; we will agree on that.
Prof. Ferrel Christensen: That doesn't mean there are not objective standards. I insist that there are objective standards for doing this, and my written submission will lay out my reasons.
Ms. Eleni Bakopanos: You have given us some of your reasons, in fact, and the solutions you've proposed to this committee—
Prof. Ferrel Christensen: This is just an overview.
Ms. Eleni Bakopanos: —are based—
The Joint Chair (Mr. Roger Gallaway): One moment, please. You have to let Ms. Bakopanos finish before you answer.
Prof. Ferrel Christensen: Fine. Sorry.
Ms. Eleni Bakopanos: Thank you.
But your solutions are based, of course, on your interpretation of the data that's out there.
Prof. Ferrel Christensen: My solutions have to do with spending years of seeing people twist the data for political purposes. I will argue for that in the lengthy analysis I will submit later on.
Ms. Eleni Bakopanos: But on the other side of the issue, they argue the same thing, that data has been used in other—
Prof. Ferrel Christensen: Those are conclusions. Look at the evidence. Look at the careful reasoning I've put in on the DeKeseredy case. Look at the other evidence I'll give you.
The fact that two people disagree does not mean there's no way to decide. You have to look at the evidence to decide.
Ms. Eleni Bakopanos: I'm not saying there isn't a reason. I mean, that's the task we've been given, to a certain extent.
Prof. Ferrel Christensen: I hope you will take the task very seriously.
Ms. Eleni Bakopanos: We take our job very seriously, for sure.
Prof. Ferrel Christensen: Good.
Ms. Eleni Bakopanos: Thank you for your comments.
The Joint Chair (Mr. Roger Gallaway): Thank you very much.
Are there any further questions? Dr. Bennett.
Ms. Carolyn Bennett: Mr. Moss, did you put your recommendations on the table yet?
Mr. George Moss: No, they're right over here.
Ms. Carolyn Bennett: Because that would be my question.
Mr. George Moss: My recommendations? The first would be to have a designated judge program. Judges who are on duty and are familiar with family law, at the courthouse in the major centres, and even smaller centres, during Christmas, New Year's, and spring break, can give instant judicial advice to peace officers in detachments where civil access parenting documents are unclear.
Second is putting into place provincially administered access laws paralleling maintenance or collection-of-money laws. For example, a parallel access version of the reciprocal enforcement of maintenance orders act is very much needed right across Canada.
Third is an access coordinator in both of Alberta's major cities. Some space could be allotted from the MEP offices, for example. The coordinator should have background in human resources and social work.
Four is an access custody order registration bank, whose use would be voluntary. Copies of individual orders would be available to the police to reach and read. These orders would be placed in this bank by non-custodial fathers in Alberta and those fathers who would come to Alberta to parent their children here from time to time.
The last item recommended is a designated officer program, with training for particular officers on the importance of family values post-divorce. There could be one officer per detachment, or per satellite office in the cities, who knows custody orders and is proactive about these orders even though they are civil in nature. The names and phone numbers of these officers could be made available to men's groups and other family law lawyers.
Those are some of the major issues.
The Joint Chair (Mr. Roger Gallaway): Thank you very much, Mr. Moss.
I want to thank you all for being here today. This is an ongoing process, and you have certainly contributed, I would suggest, a great deal to our study and to our work. We appreciate the fact that you have taken the time to come here today and to speak on behalf of your organizations.
I'm going to suggest that we have what I refer to as a “seventh-inning stretch” for seven minutes.
The Joint Chair (Mr. Roger Gallaway): Colleagues, we have with us Senator Forest, who wants to make a statement, and we also want to welcome Miss Deborah Grey to our table.
Senator Jean B. Forest (Edmonton, Lib.): I just want to say I am sorry that because of two other commitments today I was late in arriving. I did sit on the previous committee, which dealt with child support, and it was a recommendation from the Senate that there be another hearing with respect to custody and access because we heard so much about it at that time. I'm happy to be here in my home city and pleased to hear that so many people are coming forward. I look forward to the rest of the afternoon.
Thank you, Mr. Chair.
The Joint Chair (Mr. Roger Gallaway): Thank you, Senator.
Deborah, do you want to say something?
Miss Deborah Grey (Edmonton North, Ref.): Sure. I'll just say hello and thank all of you for putting Edmonton on your agenda. I know that Edmonton wasn't part of the original cross-country tour, and of course we who live here feel that, Edmonton being the provincial capital, there are a lot of people who are concerned about child custody and access.
I'm looking forward to hearing what people have to say and I hope and pray that the committee really listens hard. I'm not officially part of this committee, but I know there are some huge issues in terms of child custody and access. We need to listen to both sides of the story and we need to go to the source, so I just want to say thank you to the committee for going to the source, for coming to Alberta's capital, Edmonton.
I know that all day you have heard—and are going to hear—some good stories as you listen to stories of people's lives. That is where we have to go—to the ground level—to find out how this kind of legislation really affects people in their homes and in their families.
Thank you. I'm looking forward to the next round of witnesses.
The Joint Chair (Mr. Roger Gallaway): Thank you. On behalf of the travelling road show, let me say we're very pleased that you would come here this afternoon during “break week”, as it's called.
Miss Deborah Grey: This is my break and this is my home, so any other exotic place in the world— To me, home is the best place to be. I was glad to stop in.
The Joint Chair (Mr. Roger Gallaway): We now welcome our last panel of the afternoon: Mr. Ron Evans; Mr. Matt Taylor; Ms. Lynne Jenkinson; and finally, Mr. Denis Paquette. We'll start with Mr. Evans.
Mr. Evans, I regret that due to time constraints we're going to have to keep you to five minutes for your presentation.
Mr. Ron Evans (Individual Presentation): Okay, that sounds good.
Mr. Chairman, senators, and members of Parliament, thank you very much for the opportunity to speak to you. I was notified at quite a late date that I could make a presentation to you. I'm not going to read the whole presentation. I'll skip through it rather quickly, although I don't want to miss the points I want to make.
I'm not asking that the judicial system be altered dramatically to incorporate a new concept. However, I am pointing out that the unequal enforcement of custody and access issues has resulted in gender bias in the judicial system. This bias is not only unhealthy for the judicial system and for society, it contravenes the Charter of Rights and Freedoms.
For example, section 15.1 of the charter states:
In the case that I've presented here—I'm familiar with this case—the first part of the divorce and the conditions of that divorce are quite straightforward in regard to access, custody and payment.
Item 6 is this statement: “It is ordered that the amounts owing under this order be paid to the director of maintenance enforcement.” This is the part of the order that is just put into the order. The petitioner and the respondent don't have a say about that, although the petitioner in this case is able to file after the fact, in writing, to have this removed so that the person can pay directly to the petitioner.
A significant difference in the court's treatment of the petitioner and respondent is evident in this item. Item 6 explicitly identifies the means by which maintenance payments will be enforced by a third party, that is, through the intervention of the director of maintenance enforcement, through the Maintenance Enforcement Act. The director has the power to garnishee wages and to suspend an individual's driving privileges.
I'll just move on to item 3. As this case developed, there was a withholding of the children from access, so an ex parte order was sought and obtained on August 18, 1997. The reason for that was that the petitioner had notified, indirectly, that she was going to move to Toronto. Further, on August 26, the order was granted that extended the ex parte order, and then a further order for an indefinite term on September 16 was obtained. It's just a general pattern of order after order, and the distinguishing part is that the petitioner did not “win the case”, if I can use that term, in court, but just refused to respond to any of the court's orders or to telephone calls from lawyers and has just in effect disappeared.
A further ex parte order was granted December 11 to serve a substitute person, which in this case was the sister. Further, the family is evasive and does not want to have anything to do with this situation.
It's really frustrating because no one knows—or seems to know—why the courts do not enforce the order. If it were a maintenance issue or a custody issue there would be no question about it, but this is a court order to restrain the individual from leaving the vicinity, the city of Edmonton. Another interesting point is that based on past experiences of people in the court system, this person probably would have won the case in court anyway.
If I could just move now to item 8, in summary I'd like to suggest that the issues of child custody and access be put to a test of reasonableness. For example, would a reasonable person expect to be treated fairly in a Canadian court? And second, would a reasonable person expect that a court order handed down by a judge in a Canadian court would be enforced? Based on the Charter of Rights and Freedoms, the answer should be yes, in both cases.
These questions are not intended to be rhetorical. The purpose here is to emphasize that these are normal expectations of reasonable people who have been in contact with the Canadian judicial system.
Unfortunately, in some cases the judicial system has not enforced its own orders and has therefore failed to fulfil these expectations. This is especially true as it pertains to issues of child custody and access. The result is that many citizens have been frustrated in their attempts to obtain relief when other individuals fail to uphold their portion of a divorce agreement.
In this case, the court orders and the ex parte orders have been refused and ignored and the person has refused to acknowledge the rule of law in Canada. And if there's one case, there are probably others around. The unfortunate part is that this individual has been successful in thwarting the legal process just by refusal to acknowledge any activity, whether it is orders or letters or whatever is going on.
It's also evident that the petitioner has failed to respond to court orders, as identified. In that way, the children have been refused access to their father. The poor father hasn't had access to the children. The attempts to obtain a remedy to the situation have failed. It is apparent that the courts are concerned with financial matters and that parental access to children is not a priority.
In the case outlined, the petitioner has not maintained the terms of the divorce agreement and is in contempt of a court order, an ex parte order and another court order. Still, nothing has been done by the courts to enforce the orders.
If I could just move now to—
The Joint Chair (Mr. Roger Gallaway): You are just a little bit over the time limit. I wonder if you could wrap it up.
Mr. Ron Evans: I have two recommendations. They're linked.
First, court orders must be enforceable, such as, for example, a system similar to maintenance enforcement. I would suggest that a friend of the court or a psychologist be available for consultation by the aggrieved party. The friend of the court would keep meticulous records of contacts between the parent and the friend of the court and would maintain a journal of those activities.
Secondly, the parties involved must respect judicial decisions. A move towards achieving respect can be made by demonstrating judicial intolerance for the actions of people who ignore the provisions of the court orders.
The Joint Chair (Mr. Roger Gallaway): Thank you.
Have you studied law? The reason I ask is that you are using the test of the reasonable man. We should rephrase it to be “the test of the reasonable person”, but that was the test that was applied by Lord Denning, Master of the Rolls, a very famous British jurist.
Mr. Ron Evans: No, I'm not a lawyer.
The Joint Chair (Mr. Roger Gallaway): It's a very interesting observation.
Mr. Taylor, please.
Mr. Matt Taylor (Individual Presentation): Thank you, Mr. Chairman. I'm here in my capacity as a dad to speak on what I feel is important—shared parenting. I believe it's our children's right.
First, I'll tell you a little about myself. I'm a dad. Prior to being divorced, I dropped my kids off five days a week. I picked them up two or three days a week. I sang songs to them at bedtime. I read stories to them. Every time they woke up—and I say every time—in the middle of the night, I got up and picked them up. After the divorce, I see my children alternate weekends and for a few hours on Wednesday evenings. My kids asked me why and I said that those were the rules. They said that they didn't like the rules, and I don't know how to answer that.
I came here today because, frankly, I don't believe in the legal system any more. I've never been to court, but I was taught to believe that you're innocent until proven guilty. But if you've had a brush with the divorce court— I no longer believe that if you are innocent the court will look after your interests—or your children's interests, in this case.
So I came here today. I looked briefly at the throne speech of this government, which talked about making a difference in the lives of all of our children and focusing on what our children need in order to thrive. It said that one of our objectives as a country should be to ensure that all Canadian children have the best possible opportunity to develop their full potential. The government formed this committee. I hope this committee is capable of putting forward an excellent report with specific recommendations.
My recommendations I've left with you.
I'd like to make a few points. In the throne speech they talk about what children need in order to thrive. Obviously they need their basic needs addressed, but I don't believe money is what's needed for children to thrive. I believe relationships are important.
Money? Look at Charles Dickens. He was brought up in jail because his father had no money. Ben Franklin, Einstein—none of these people were rich. So I think our government has focused on the wrong end of the horse. I think if we can concentrate first on the relationships as a result of a divorce, the money will flow.
For me, shared parenting is a child's right in marriage, in separation, or in divorce. As many people have pointed out, it is common practice in marriage today that both parents share equally—it's supported by the Charter of Rights and Freedoms—and in many cases the father may contribute more to the traditional role of a parent.
This is a shift from perhaps the 1940s and 1950s, but it's deemed a desirable practice. I think in most scenarios where a marriage breaks up and they arrive at an amicable out-of-court arrangement, shared parenting is upheld. Unfortunately, in the courts it is not the common result. Alternative weekends is the common result. So I would suggest that the courts are out of step.
One more minute?
The Joint Chair (Mr. Roger Gallaway): Yes, one more minute.
Mr. Matt Taylor: I believe shared parenting does involve unrestricted access. However, that's an ideal, and in many cases that get to court, ideals are blown right out of the water.
I think shared parenting, from the courts, should be the first alternative unless it can be proved that it is not in the child's best interests. Unfortunately, the present scenario is that it is the last alternative.
In my own case, I've spent over $20,000. I'm pretty much broke. It's just who can hold out longest as to whether or not my children will be able to have what they've been asking for.
I hope you write a good report. My concern is that there's a whole bunch of people outside there who are thinking, “If I ever wind up being divorced, well, I look after my kids equally with my wife now, so that will happen to me afterwards”. The sad truth is that it may not.
I'm sorry, but I have to go. I have a plane. I'm picking up my kids at 5.30 p.m. in Calgary, and I hope I make it.
The Joint Chair (Mr. Roger Gallaway): It's much appreciated that you came. Thank you very much.
Ms. Lynne Jenkinson (Individual Presentation): My involvement in the issue of custody and access is a very personal one, so in that respect I will keep my submission brief. I've also talked to other people with similar concerns, and I hope I can bring their concerns to the table as well.
I am the stepmother of two children, age 11 and 15, and I feel that non-custodial parents are receiving no support from the justice system in their quest for custody and access. The system must be held accountable in some way. The full trust cannot be given to the custodial parents with the non-custodial parents always being put in an adversarial position.
Mediation for the parents must be of the utmost importance, with the emotional upbringing of the children being the most important outcome. Maintenance must also be directly tied to all cases of dispute.
We need an acceptance of a two-parent system. Each parent brings unique views to the upbringing of the children. Neither parent should be left out in the cold. The interests of the child are paramount, but continue to get lost in legal wrangling.
The topic of custody and access becomes too defensive an issue rather than a cooperative effort. Basic changes must be made at the legal level to change this.
Lawyers must be better trained to handle those situations. Lawyers and judges must be trained to be better mediators. They're not looking out for the interests of the children. They are more concerned with the interests of the parents. In the end, the system must be accountable to the children, not the adults.
When it comes to accountability, there must also be basic changes to the system. If a custodial parent denies access, they must be penalized. Too many custodial parents are using the children as pawns, knowing that in the end they will not be held responsible for their actions. They are in contempt of a court order and they must be held responsible—jail time, whatever you can do.
Law enforcement agencies must also be willing to step in and help with access. Currently, law enforcement agencies don't want to help non-custodial parents.
The justice system must also be prompt in decisions, rather than dragging them out for months. Three months to a child is a long time without a parent. Imagine what two years feels like.
Spouses should accommodate situations and work together somehow. Don't expect the person who is paying the majority to drop everything and show up.
I don't think there should be any custodial parents in the case of divorce. Joint custody agreements should be the norm, not the exception. Where the child is old enough, it should be up to them. They know what they want.
For visitation, expenses should be shared. It seems to be left up to the non-custodial parent to pay.
I revert now to maintenance. Custodial parents should not get it, the children should. Children should not be paying room and board. If you have children, parents have to work to support them. There is no question that when there is a divorce, the child's lifestyle will change. But let's not focus on the monetary. We must focus on the emotional well-being of the child. Large support cheques do not provide the support needed. A child needs monetary and emotional support. If the government can introduce a table of monetary support, a table of joint custody dates should not be that hard.
The government must allow for quick intervention and access in cases of dispute. Society is failing the children while supporting the custodial parent, no questions asked. Access and custody will continue to be a problem unless fundamental changes in the thinking of the justice system are undertaken.
There are no bad guys here, just forgotten children. I say save the children. The adults are supposed to know what is best, but that is not always the case.
I thank the committee for its time and hope the changes that are needed can be implemented.
The Joint Chair (Mr. Roger Gallaway): Thank you, Ms. Jenkinson.
Finally, Mr. Paquette. Well, somebody has to be last.
Mr. Denis Paquette (Individual Presentation): Hurray, I'm last.
I'd like to thank the committee for this opportunity. I've been divorced since 1993. I have three children and I share joint custody with my ex-wife on a two weeks, two weeks basis.
I'd like to inform the committee that it's working. It's a good system. But I was lucky to get full custody. When I went for custody, the judge said he thought it was the law in Alberta that the mom got automatic custody. The only reason I got 50-50 custody is that the mother wasn't able to take care of the children on a full-time basis.
I think you should make it law that both parents have equal custody rights. Joint custody should be automatic.
In my memo to you I made reference to Bill C-42. I have a copy attached to my memo. Bill C-42 talks about equal custody. I guess that's a question I can ask you later, what happened to that bill. I don't know what happened to it.
In cases where joint custody is not possible, then you should provide laws that ensure that agreed access is not tampered with by one parent. I know of cases where people had custody of the children on weekends, would go to pick up the children, and the mother would have taken the children away for the weekend. They play those kinds of games. I've learned this from talking to other people.
I have a bunch of concerns on child support. Do you want to hear child support concerns, too?
The Joint Chair (Mr. Roger Gallaway): I have no objection to hearing those. I must tell you, though, the mandate of this committee is not to deal with child support. That's not to say we can't make comments about it.
Mr. Denis Paquette: When I wrote my brief, five of my comments were on child support. When they phoned me and asked me to come, I thought maybe they wanted to hear about it.
The Joint Chair (Mr. Roger Gallaway): Okay. You have about two minutes left.
Mr. Denis Paquette: First, make it law that both divorced parents are equally financially responsible to provide for the children. Where joint custody is awarded, then no child support gets paid. This would be treating both parents equally. Before they divorce, both parents are equally responsible for the finances and the upbringing of the children. After the divorce, that should be the same way.
You should complete a study to calculate exactly what are the additional costs for providing for the children. Introduce child support tables based on their actual costs. The tables you've introduced don't make any sense. The way I understand it, if I'm making $50,000 a year as a single person and I get married to someone who's not working, I have to make 40% more, which is $70,000. If I end up with two children, I have to make $100,000 a year. That's what the tables are based on.
Maybe they should make it so that employers give us a 40% raise when we get married, and 30% for each kid, because that's the way it's set up. I'm sure that's not the way welfare is set up.
Make the above actual-cost child support tables law and not adjustable. This would eliminate the need for lawyers and the money can be saved for the children. I spent about $16,000 on lawyers fees. I assume my ex-wife spent the same. If you had simple tables, you could go to a government agency and say, I make so much money, she makes so much money, this is the situation with the custody. Get the lawyers out of there. Then you have $30,000 more for the kids.
Make it law that the parent receiving the child support must provide proof that the money was actually spent on the children. I have to pay everything. It goes to the ex-wife. I'm also liable for dental and this and that. I have to pay this. If she decides she's not going to pay her dental share or for glasses for the children, then I have to go court to get it. It's not worth my while.
Make it law that there will be no child support payments once the child is 18. Intact families are not legally required to provide financial support for their children once they are 18. Also, at 18 the child is an adult and legally responsible for himself. I like my kids. If they want to go to school I'll help them, but if I'm financially strapped and I can't do it, then I can't help them. They're going to have to start work. Why should a divorced person have to do this? It doesn't make any sense.
My final point, which is the most important one, is if you can find a way to do mediation— Right now, if you get a divorce it's a conflict situation. I didn't know better and I went to a lawyer and said that I wanted a divorce; she went to a lawyer, and then it's a conflict.
A while back an MLA in Alberta suggested that it should be mandatory that divorced parents see a psychologist for a certain period. This would do a lot of good. You might find out why your spouse is leaving. You might reconcile. Even if you don't reconcile, that's fine, then you can start talking about how life is going to be after your divorce.
The decisions for divorce should not be made in front of a judge. They should be made sitting down calmly with a psychologist. You think and you have time to cool off.
The other thing is that you don't need two lawyers. You should have one lawyer. There are a lot of lawyers who go into mediation now and that's what you should do. You should mediate your divorce. The law should be there and the law should be straightforward, with no interpretation. The lawyers are going to say that the cases are different. Yes, there might be some different cases, but there are a lot of cases that are very clear-cut. The only reason the lawyers say that is because if there's no conflict, they don't make any money.
That's it. Thank you.
The Joint Chair (Mr. Roger Gallaway): Thank you very much.
We'll have some questions and we'll start with Ms. Bakopanos.
Ms. Eleni Bakopanos: Thank you very much. My question is to Mr. Evans.
You talked about imposing sanctions to dissuade people from deliberately impeding the judicial process; in other words, respecting court orders.
Mr. Ron Evans: Yes, that's right.
Ms. Eleni Bakopanos: What sanctions are you suggesting?
Mr. Ron Evans: I would certainly say something similar to penalizing a person on a level similar to maintenance enforcement— if necessary, even jail terms. There was a case recently in the United States, which was in the Alberta Report; the judge has imposed these types of sanctions on what he called dead-beat moms.
Ms. Eleni Bakopanos: So this would mean changes to the Criminal Code, changes to—
Mr. Ron Evans: I'm not sure of the exact penal code article, but the system is in place to enforce court orders. I'm sure judges must be able to make some sort of decision for someone who thumbs their nose at the court. They also do that in custody and maintenance issues. When the person refuses to pay or doesn't pay, a court order is issued and they have sanctions imposed on their welfare, their work, their driving ability, which might in some cases be their livelihood.
Ms. Eleni Bakopanos: But isn't part of the problem the fact that police cannot enforce some of those orders even if there is a sanction?
Mr. Ron Evans: I'm not aware of that.
Ms. Eleni Bakopanos: The testimony that has come before the committee has suggested this to a certain extent.
Mr. Ron Evans: What I can say to that is I know people personally who are not driving because they have had someone phone up their ex-spouse and complain that they weren't receiving maintenance payments, and they no longer have driving privileges.
Ms. Eleni Bakopanos: Thank you.
Mr. Paquette, do you agree that lawyers fees should be capped, considering your own personal experience? We've had testimony to that effect before this committee.
Mr. Denis Paquette: If you use a lawyer as a mediator, then both parents parents pay for it and you don't have the conflict situation, so you have a much better chance of agreeing. You don't have to go to court, and not only are you saving the parents money and the children money, but the courts are saving a lot of money too.
You go and get married. You get a justice of the peace. You get married so simply, and divorce should be sort of automatic, too, in that way, like with the table and all the guidelines and all that.
You're treated like a criminal right now. You have to go to court. You have to fight for custody of your children, and it's in a conflict situation, which is not ideal.
Ms. Eleni Bakopanos: So you must favour, then, mandatory mediation, as some of the other witnesses have stated before this committee.
Mr. Denis Paquette: Yes.
Ms. Eleni Bakopanos: I have one last question, to Ms. Jenkinson.
You talked about forgotten children. You talked a lot about your own experience. Is there one thing in particular that you would like us to actually recommend?
As I've said before, you can't legislate respect; you can't legislate people to love their children, to put the best interests of their child before their own, and so forth. But in your personal experience, was there one thing in the process—
Ms. Lynne Jenkinson: I think the whole process is that they have to listen to the children.
In my situation, I think if a judge had listened to the children, I would have seen those children before two and a half years went by. I now have had my 15-year-old stepdaughter living with me since January, and she did write something down and we have given it to the committee, because she felt that the children should be heard as well.
I don't know. You can't legislate love. I know that. There's no respect. There's nothing.
But listen to the children; don't just listen to the adults. These children are old enough. I think a child can very well tell a judge, “I want to see my daddy; my mommy isn't allowing me to.”
Ms. Eleni Bakopanos: Thank you.
The Joint Chair (Mr. Roger Gallaway): Thank you, Ms. Bakopanos.
As a point of clarification on a question you asked, Mr. Evans, I didn't hear what you said. Were you asking for the police to enforce orders?
Mr. Ron Evans: No, I said if you had someone like, say, a friend of the court, a psychologist or someone who could be appointed by the court to intervene in these situations, the aggrieved party could go to this person and present their case.
The Joint Chair (Mr. Roger Gallaway): Fine, thank you.
Mr. Eric Lowther: Ms. Jenkinson, there's a phrase you used that I picked up on and that I would like you to expand on, because I wasn't quite sure what the crux of your point was. It was “maintenance tied to all cases of dispute”.
Ms. Lynne Jenkinson: I feel there are too many women using the children as pawns. If you deny a father access, he still has to pay maintenance. It has to be looked at.
In our situation, we sued for custody because we weren't seeing the children. She was holding the children back as a way to gain an increase in maintenance.
Mr. Eric Lowther: Did you have a recommendation around that?
Ms. Lynne Jenkinson: I hate to say I don't know what to do about it, but somehow they can't ignore it. Custody and access is not separate from maintenance. This is the same issue. I know the children need the money to survive, but they also need daddy.
Mr. Eric Lowther: Thank you.
Mr. Paquette, you have the unique situation of a 50-50 arrangement. We've been talking about that in this committee forever, and we want to maybe get there for a lot of people. It seemed to kind of drop in your lap that you got this, and you say it's working well. Is it two weeks with you and then two weeks with her? Can you describe how it's working?
Mr. Denis Paquette: The children live with me for two weeks, and then they live with their mother for two weeks. They go to the same school, and basically that's about it.
There's an advantage to that in that when you don't have the children for two weeks, then you can take one of the children for a one-on-one activity, which I think is very beneficial, because in an intact family I don't think you can even do that. This way, if I want to do something special with my son or my two daughters, I can do that. I find it's working well.
Mr. Eric Lowther: It sounds like you and your wife— How did you come to this agreement? Was there any animosity in your arrangement or was it pretty friendly? Did you say you should look after the kids?
Mr. Denis Paquette: That's a totally different story. As for how we separated, I could write a book about what happened there. Basically, she wasn't able to care for the children on a full-time basis. That's what she told the judge. As I said, the judge thought it was law for the children to go with the mom automatically, so because she said she didn't want full care of the children, that's when the 50-50 came in.
She left me in April 1991. We went to court in September 1991, and the judge made that decision. Then we went to a psychologist, Dr. Hindmarch, who I think spoke today. He looked at our situation and he recommended the 50-50. That's what happened. I was lucky, I guess. I think I was lucky.
Mr. Eric Lowther: Was that a child-centred decision or was that a decision based on your own perspective such that it was best for you? Was it that you were going to do it 50-50 because you really thought that was going to work best for the kids?
Mr. Denis Paquette: At the start, because of her instability, I hired a nanny when she left. I thought at the time that it would be best if the children stayed with one of the parents who was stable. In this case, I was the one who was emotionally and financially stable and what not. So I wanted full custody.
When we went to court and I asked for full custody, he said he was going to give the mother full custody. She said no, she didn't want full custody. Then it was 50-50. That was on an interim basis until the psychologist did a study.
When I went to see the psychologist, I told him the same story I'm telling you. I felt it best if the child stayed in an intact family with an emotionally and financially responsible parent, which my ex-wife wasn't at the time. He sort of agreed with that at the start of the study, but after three or four months he changed his mind for some reason and went for 50-50. Since then my ex-wife has stabilized and she's able to care for the children and what not. It's working out.
Mr. Eric Lowther: That's a good story to end the day on.
The Joint Chair (Mr. Roger Gallaway): It's very good.
I want to personally thank our witnesses for ending our day here in Edmonton. We appreciate what you had to say. You contributed to the work of this committee.
I secondly want to thank our colleagues from Alberta, Miss Grey, Mr. Lowther, Senator Forest, and Senator Chalifoux, for being with us here.
Although it seems that we've been here a very brief time, it's been a very intensive and interesting day. I think it's been a very productive day for the work that we're doing.
Finally, I want to say to those who are here in the audience with us that I can see a lot of what I would call familiar faces. I know that a lot of you have been here for all or most of the day, and we do appreciate your interest in the work of the Parliament of Canada. We do appreciate the fact that you've taken the time to be here and to observe, in one sense, Parliament at work. Thank you very much.
Excuse me, Senator Cools is back.
I'm sorry, before we adjourn—
Senator Anne Cools: Something was handed to me. I haven't been able to read the whole thing, but it's called “Custody and access hearings in Canada: Women given rough ride”. It's a printout or it's drawn down from the Internet. It's quite an extensive piece. “Eileen Morrow” is written below. She's a lobbyist for the Ontario Association of Interval and Transition Houses.
There's a headline here that says “Feminist told to answer to men's groups' claims”. It's a two-page document by Eileen Morrow. It's quite specious. It talks about men stalking witnesses: “Outside the room, guys were doing the usual stalking behaviour around us, lurking around us”. It's quite extensive.
It names me a few times, and quite wrongfully, I would add.
I can read it all into the record right now, or we can just give the date. It seems to be the May 19, 1998 issue. I'm not too sure what it is an issue of.
The Joint Chair (Mr. Roger Gallaway): Perhaps there's a web site address.
Perhaps, Senator, in the interest of— and I don't want to cut this discussion off, but we do have a plane to catch.
Senator Anne Cools: I quite understand, but I'm also mindful of many of these things. As long as we can say that I have raised it here and I shall continue— I'm quite prepared to let the clerk of the committee have a copy.
All I'm going to say is either we're going to deal with some of this or people are going to have to take private action on these issues, because it's an offensive article, yet again, by a witness who came before us. That is extremely improper.
Perhaps the clerk can take a copy. We can take it as read— it doesn't matter as long as we understand very clearly the issue shall be revisited with some thoroughness.
The Joint Chair (Mr. Roger Gallaway): Yes.
Senator Anne Cools: Thank you.
The Joint Chair (Mr. Roger Gallaway): Thank you very much.
This meeting is adjourned until Monday, 9 a.m. Newfoundland time, in St. John's.