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SPECIAL JOINT COMMITTEE ON THE CHILD CUSTODY AND ACCESS
COMITÉ MIXTE SPÉCIAL SUR LA GARDE ET LE DROIT DE VISITE DES ENFANTS
[Recorded by Electronic Apparatus]
Tuesday, March 31, 1998
The Joint Chair (Senator Landon Pearson (Ontario, Lib.)): Good morning. Welcome to the 13th meeting of the joint parliamentary committee on custody and access.
I'd like to start the session by reminding people of the basic terms of reference. We've been appointed 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. Those are our terms of reference.
We're happy to welcome this morning Deborah Merklinger, who will start; Dr. Marty McKay, who will continue; Barbara Chisholm, who will speak third; and Gillian McCluskey.
We'd like to suggest that you speak as briefly as possible, close to five minutes, because what's most interesting for us is the opportunity to question your experience and help to build our own knowledge.
Would you please start, Ms. Merklinger?
Ms. Deborah L. Merklinger (Family Mediator): Thank you very much for including me in this forum and in this potentially revolutionizing process.
Just as a brief introduction, I'm a lawyer, social worker, and mediator, and I have a private practice where I work strictly as a mediator and therapist and focus on the areas of custody and access, separation, and divorce.
I've attempted to work towards bringing out two recommendations that I believe would assist us in dealing with the mandate you have already stated, which is working towards a more child-centred approach to family law policies and practices and one that would emphasize joint parental responsibility and, most important, child-focused parenting agreements.
I've come to my recommendations as a result of my work on a day-to-day basis with families and children who are going through the separation process. As a result of the difficulties I've encountered and watched other people experience, most importantly the children, I would like to address two areas that I believe need some attention.
First, one of the things I would like to see happen is the implementation of what I, for lack of better words, call a mandatory screening process, which separated or separating parents would be a part of. The goal of the screening process as I see it would be, while possibly manyfold, at the very least twofold.
First, it would be to assess where in the separation process parents are emotionally, financially, logistically, legally, and practically. This screening process would be handled by skilled professionals who would be knowledgeable in the areas of law, mental health, and of course issues of domestic violence and spousal abuse.
Secondly, the goal of the screening process would be to ensure that these parents, who are screened and assessed as to where they are in a continuum of coping and their emotional wherewithal and legal status, would then be referred to an appropriate dispute resolution mechanism, such as, for example, conciliation counselling, mediation, or possibly custody and access assessment, hopefully primarily with a mediation emphasis; or, at the latter end of the continuum, arbitration, and in only the most necessary cases then, litigation. The professionals who would be involved in delivering these aforementioned processes would be made available to clients or parents through possibly an approved roster or panel of skilled professionals in each of the designated areas.
The way I see it, the referral process would have as its mandate a commitment to ensure that parents would be put into the least intrusive mechanism of dispute resolution, which would thereby enable them and assist them to resolve their outstanding parenting issues in the most humane way possible. As we all know, we're here because of the children, and the most holistic approach possible and the least intrusive mechanism would without doubt be the best.
I would suggest that the referral process be management or monitored in a timely fashion with regular status reviews.
Basically what I'm suggesting is that the goal of this particular recommendation would be to ensure that our family law policies and practices maintain and support an infrastructure that would ensure parents the maximum opportunity to work together from as early on in the process as is possible so that it's feasible for them to reach child-focused parenting agreements.
I would also recommend that the screening process be made available not only to people who are bringing on applications or some sort of legal action, but also to parents who have not yet begun to take legal action, so that entire step can be avoided.
With respect to whether or not the screening process should be mandatory, it's my idea that the screening process should be mandatory. Certainly it's up for discussion as to whether or not attendance at the referral placement be mandatory or voluntary. I believe that if the referral to the next stage were voluntary and parties were sent to the most appropriate dispute resolution mechanism, most would utilize such a potentially conflict-resolving and conflict-minimizing process.
So that's my first recommendation.
My second recommendation is to review and amend the language in the legislation regarding custody and access. For example, eliminate terminology such as joint custody, full custody, and access. Instead, use words like parenting agreement, time sharing, the child's home with mother, the child's home with father, the child's home with grandparents, etc.
Moreover, by changing the language, I would recommend that parents be required to detail understandings in the form of agreement regarding all areas of decision making, such as issues surrounding children's health, education, religion, extracurricular activities, travel, mobility, etc., as well as detailed commitments regarding parents' agreed-upon time sharing plans, both on a day-to-day basis and regarding holidays and special occasions, etc.
My hope or fantasy is that many battles fought over labels and terminology and power might in some way be eliminated by doing away with the harsh terminology, such as access. Instead, we should encourage and support parents to focus on the substance of their agreements, instead of simply the form, and really put their attention toward the children.
Possibly, we might even have a standard parenting agreement that could be filed by all parents that would cover the various areas that must be dealt with—these are all parents who separate—unless they show that the particular area is not relevant to their families.
Once again, I'm suggesting a goal of encouraging parents to focus on children's needs and best interests, and eliminate unnecessary power struggles that waste both the time and money of the public and private sectors and that, moreover, is of no benefit to the nation's children.
Finally with respect to the shift in language, let's reserve words like “custody” and “access” for legislation like that of the Criminal Code.
Thank you very much.
The Joint Chair (Senator Landon Pearson): Dr. McKay.
Dr. Marty McKay (Clinical Psychologist): Good morning.
I'm a psychologist, and I'm here to speak to you about my 20 years of carrying out custody and access assessments, the pain that I have seen in the lives of children, and the difficulties that I have experienced in continuing in the role of an assessor due to what I feel are significant shortcomings and room for abuses that prevail in our family law system.
I have always been interested in vulnerable groups. I consulted to the Children's Aid Society for 15 years. I worked with battered women in transition homes. Within the past 10 years I've come to see that men, or fathers, constitute a vulnerable group within the family law system. By a decision for a women to leave a marriage, a man may be bereft of his children, falsely accused of abuse, have his children coached to give evidence against him, and end up fighting for his reputation, access to his children, and his freedom in some cases.
I have seen some terrible cases that have caused me great concern for the future of children who are being deprived of half of their heritage and who have half of their emotional life torn away from them. I'm surprised, starting out as a feminist myself and one concerned about abuses and unfairness toward women, to reach a position where I am genuinely concerned about the future of fathers.
My position is that assessments are being used to deprive children of meaningful relationships with both parents. They're being misused. They're being informed by a political attitude that see a woman's word as much stronger than a man's; that on the basis of an accusation a man cannot clear himself. It doesn't matter if he passes a psychological assessment, a lie detector test, or even a penile measure for child abuse. He could still be on a child abuse register and prevented from seeing his children, except under the most rigorously supervised conditions, when he has done nothing wrong.
I'm well aware that abuse exists. In 15 years of consulting with the Children's Aid Society, I know that children are abused sexually, physically, emotionally. That's why I feel it is so important not to give credence to false allegations, especially when children's lives and futures are at stake.
My position is that joint custody should be the de facto position, and that mandated mediation should be required for up to two years post-divorce to settle disputes that arise between ex-spouses.
I believe that without the adversarial system and the ease with which false accusations and adversarial fires can now be fuelled and burned, without those opportunities, most couples can come to reasonable arrangements in caring for their children post-divorce. But they need education, they need the assistance of professionals—professionals who are committed to fairness, who do not see one parent as virtuous and another parent as evil, who give both parents the right to continue having meaningful relationships with their children, who are not informed by some kind of misguided political correctness.
The Joint Chair (Senator Landon Pearson): Thank you very much.
Ms. Barbara A. Chisholm (Ontario Association of Social Workers): Thank you, Madam Chairman.
I am speaking today representing the Ontario Association of Social Workers, which is one of 10 provincial membership organizations of professional social workers in the country that belong to the Canadian Association of Social Workers. That organization, in turn, is a member of 55 international federations, so that we represent a body of opinion.
The philosophy that underscores our recommendations today may be stated in four areas:
1. Continuing relationship with and contact with both parents, including step-parents, following separation and/or divorce is the entitlement of the child, and exists regards of the nature and status of the adults' relationship with each other, with one exception: where contact with a parent or former caretaker places the child at risk physically, psychologically or sexually. In such situations, restricted or even no contact may be indicated, and indeed may be in the child's best interests.
2. The arrangements for access and the observance of those arrangements should not be a bargaining chip in any other arrangements—for example, financial.
3. Each situation of the reorganization of a family, especially where the ongoing parenting of children is concerned, deserves to be addressed on its own merits, rather than through generalizations that may be inappropriate—for example, that small children should always be in the custodial care of mothers.
4. The idea of mandatory family mediation of custody access disputes following separation or divorce should be approached cautiously as government policy, and should not be undertaken in those situations where there are or have been allegations of family violence, physical or psychological or both, even if the allegations remain unsubstantiated, or in instances of significant economic disparity, because of the potential for an imbalance of power.
First, the Ontario Association of Social Workers suggests that a major and fundamental step that would lead to significant improved resolution of custody and access disputes is to require special training for judges appointed to family law divisions, to be provided before such appointees sit. Such training should address the following topics: the ages and stages of childhood, especially the first five years; what attachment theory means and the consequences of an attachment disorder; the implications of access arrangements that set up travel and separation for the very young child; the place and use of mediation or assessments and how to utilize them; current research on gay and lesbian parenting; gender bias in custody preferences; and lastly, the difference between the blood tie and the so-called psychological parent tie.
Second, guidelines should be established to assist the court in considering parental relocation plans involving the children.
Third, parental alienation, sometimes called a syndrome and sometimes called a symptom, does exist and should be recognized as a behaviour requiring professional intervention. Guidelines should clearly indicate that if the behaviour does not significantly modify or change, transfer of custody may be indicated. This behaviour differs from sincere allegations of wrongdoing. Those are two very separate behaviours.
Fourth, special masters should be appointed to deal with high-conflict cases where the parties are enmeshed in the quarrel. This would take these often very time-consuming cases out of the mainstream court load. Such special masters should receive particular training in alternate dispute resolution techniques and be prepared to monitor the cases on a long-term basis.
Fifth, restrictions on the number of adjournments allowed in custody access disputes should be put in place, as well as restrictions on the number of returns to court. After these limits have been reached, the matter should then be routinely subject to referral to the special master mentioned in four above.
Sixth, training for lawyers should be broadened to recognize that in family law matters, counsel representing a parent is functioning within the shadow of the children's future. Thus, the obligation to the parent-client is different to that extent from the obligation and other aspects of legal practice. The adversarial approach should be modified so that in fact the children's interests are paramount.
Seventh, adequate funding for supervised access programs should ensure facilities that cannot only, really, facilitate the contact between child and parent—for example, matters of space, equipment, staff ratios, security, and so on—but also ensure provision of such facilities in all communities across Canada.
Eighth, mandatory parenting education programs for parents unable or unwilling to resolve their dispute should be a part of any resolution, especially for the high-conflict cases.
In our professional opinion, failure to implement these recommendations will result in a continuation of the current clogged court system that is providing inconsistent results and is sometimes exacerbating quarrels between the two parents, rather than resolving them.
Thank you very much.
The Joint Chair (Senator Landon Pearson): Thank you very much indeed.
Senator Duncan James Jessiman (Manitoba, PC): I'd like to direct this first question to Dr. Merklinger. Is your mandatory screening process to apply before you get a separation order from the court, as well as after a divorce?
Ms. Deborah Merklinger: I'm suggesting that the mandatory screening process be applied to anybody who has made any sort of application. Before any kind of court process begins, the parties will have been through the screening process. I'm also suggesting, though, that it be made available to people who have not yet begun any kind of application but want assistance in order to avoid any sort of court application.
My thinking is focused on how, at the very earliest point in time, we can get people into a process that will help them find the right place to work on what they need to do around their children's needs.
Senator Duncan Jessiman: So would you suggest that this be voluntary before they get to the point where they want something from the court in the way of a document, such as a separation order?
Ms. Deborah Merklinger: Yes.
Senator Duncan Jessiman: If they then want something from the court, are you suggesting to us that it should be mandatory?
Ms. Deborah Merklinger: Yes.
Senator Duncan Jessiman: Should we have something to that effect in our legislation?
Ms. Deborah Merklinger: Yes.
Senator Duncan Jessiman: You go on to suggest that, also voluntarily or mandatorily, we should have a dispute resolution mechanism. I'm assuming you're going to conciliation, where you have a conciliation officer who talks to both parties and hopefully gets them to agree. Secondly, you might have arbitration, where someone is going to decide it. Would you suggest that this arbitration be binding on both parties?
Ms. Deborah Merklinger: I'm suggesting that the arbitration should still be at the latter end of the continuum. It would go from conciliation counselling to mediation. But in terms of my thinking through whether or not parties must attend mediation, there are different reasons, different camps around whether we support mandatory attendance to whatever it is.
In terms of my own personal view around mediation, I also agree with Dr. Chisholm. In any case in which there is an indication of family violence—allegations and/or occurrence—or where there are severe power imbalances, mediation is contraindicated.
We can go into whether or not there are different contexts of mediation, such as caucusing and so on. I must say that I, in part, have some thinking around whether or not there's an alternative process that is mediation oriented but that we can use with cases of violence. If I put that aside and speak to cases in which there is not violence or has not been an indication of it, though, then I personally believe mandatory mediation—or an attempt at mediation at the very least—would be a useful thing.
I personally have worked in a mandatory jurisdiction in the state of Florida. There, prior to being heard in court, parties have to attempt mediation before they are able to go before the judge. They have to come in with a form that says they have attempted mediation. I believe this would be extremely useful and we would avoid many cases going that next step.
Senator Duncan Jessiman: I'm certainly not against what you're suggesting. I just want to make it clear so we know. I would like to think...but you have to tell me; I'm not a witness, I'm just here asking questions. What I got was that you thought it would be in the interest of everybody—the parents who are separating and the children who are involved—that we do have in the legislation something that says they must have some form of conciliation. I understood then that we'd go to the next step if the conciliation hadn't worked, because the conciliator is just that; he doesn't decide anything, he just hopes he can get both sides to agree.
The next step is arbitration. Then you said as a last resort you go back to court. In arbitration, as you know, there are arbitrations and arbitrations. Some are binding on the parties and some are not. Would you think that under some circumstances the court itself could determine that arbitration be mandatory, or should arbitration always be just arbitration and let the courts decide at the next level?
Ms. Deborah Merklinger: No, I think that in certain cases arbitration should be binding.
The Joint Chair (Senator Landon Pearson): Senator Jessiman, we're trying to work on the five minutes per question.
Senator Duncan Jessiman: Why, is my time up?
The Joint Chair (Senator Landon Pearson): Your time is up. Can we put you down on the list at the bottom again?
Senator Duncan Jessiman: I can sit here all day. I'm not ignoring you. I have lots of questions for everybody.
Thank you very much, Deborah.
Ms. Deborah Merklinger: You're welcome.
The Joint Chair (Senator Landon Pearson): Mr. Szabo.
Mr. Paul Szabo (Mississauga South, Lib.): Thank you.
Dr. McKay, I was very interested in your comments. When you have 20 years of right-on-the-ground experience with couples, I think it's important that we hear a little bit more about your experience.
You may be aware that in Edmonton, about four or five years ago, they started a program called the Parenting after Divorce program. And their survey shows that among people who've gone through the program, 90% rated it as very helpful to them. It's by court order and it's on a pilot basis. I understand now the attorney general there is contemplating province-wide implementation. And just on March 7 there was an article in the Toronto Star, where the Attorney General of B.C. has announced pilot programs in Burnaby and New Westminister along the same model.
We've heard a lot about mediation, courses, counselling, or whatever, and I think it's important for the committee to hear from you about what you feel, in terms of parents or couples who are coming before the system, is their vital need, the first-effort need. Is it mediation on issues they've identified? Is it talking to them and making sure they're educated about what they're into?
Could you also comment on whether, in your experience over 20 years, you have some indication or some feeling that when parents come before you in this situation they're more preoccupied with their conflict with their partner or are they more preoccupied with the well-being of their children?
Dr. Marty McKay: They would all, of course, say they're concerned about the well-being of their children, but when people are going through a divorce they often become very self-centred, and unfortunately their respective lawyers promote that by doing a good job for them. They're there to represent them and their interests. But in the course of that they become more and more oppositional to each other.
My focus is to tell them they're still a family. They may be a family that's split and separated, but they are still a family, and until their children reach age of majority they are a family and it's in their interest to get along so that their children don't suffer.
I feel that mediation can be successful if it's taken.... The family law has to be taken out of the adversarial system. As long as it's there, it's going to encourage each party to present themselves as the most wonderful person on earth and the other person as the dirtiest dog in creation. And in the process, a lot of lying goes on and there are a lot of false allegations.
I feel that mediation needs to be done even when there are allegations of violence. There's a joke that's going around that's really not very funny: all men are suspects until accused, at which point they become guilty. When we're talking about allegations of violence, I think the pictures in people's minds are of men battering women. If we reverse it and say that a man alleges that his wife hit him over the head with a frying pan, do we then scuttle the mediation process too, or are we thinking that men are the abusers? In my experience, it's about 50-50.
Allegations are things that come up in the course of assessments, and I think they come up because people want to get an edge, they want to come out on top. As long as it is a contest, people are going to be motivated. And there aren't that many negative ramifications to someone launching a trial balloon of abuse.
So to answer your question, I think that mediation is helpful and should be carried out in almost every case.
Mr. Paul Szabo: I have one last quick question. Some have suggested that the courts have been inconsistent in their rulings. Would you comment on the following fact? Since over 80% of custody awards are to the mother, would you be surprised if we came to the conclusion that maybe the courts have erred in judgment in a lot of cases?
Dr. Marty McKay: Yes, I think they have. My finding is that there are a lot of very nurturing fathers out there. I've had some women tell me that they don't care how the assessment turns out because they're going to get custody of the children anyway, “because they always give custody to women”.
The Joint Chair (Senator Landon Pearson): Thank you.
Senator Erminie J. Cohen (Saint John, PC): I want to thank all the witnesses this morning because I feel very comfortable with all of your presentations. You've hit all the right buttons as far as I'm concerned. I hope we will get a copy of Dr. Chisholm's recommendations.
My question is for all of you. In the past few years studies have come forth, many of them—and we've heard from many witnesses—that show us the importance of a father in the child's life. Given this information and these studies, why have fathers not been granted better and more generous access arrangements in the courts?
The Joint Chair (Senator Landon Pearson): Does somebody want to answer?
Senator Erminie Cohen: I want a comment on that for the record, about education—
Ms. Barbara Chisholm: I think the reason is historic. In medieval times fathers were the sole owners of their children. Mothers had absolutely no rights at all. If they wished to leave their husbands they sometimes had to do that at the penalty of losing any contact with their children. Over the centuries that position modified, and we have come in our current time to the recognition of the entitlements of mothers as being equal to those of fathers, combined with the other influences of understanding something more about human nature and about the importance of relationships to very small children and the importance of women as people in their own right.
As a result of that, there has been an important and, on the whole, valuable emphasis on the need of “mothering” and that was translated into mothers as such. In point of fact, the research and the early important writing that was done spoke about “parenting”, and the parenting issue became translated into a mothering issue. So the deciders in our society were educated to assume that the only reliable parent for the young child was its mother.
Senator Erminie Cohen: You mean the pendulum started here, and went all the way over here, and now we're hoping it's going to come back and be fairer.
Ms. Barbara Chisholm: That's right. There are many cases in which I've been involved in my private practice of the last 20 years, in which I have recommended that the primary caretaker be the father, because this person was by far the more reliable parent.
Senator Erminie Cohen: Do you think that has to do also with the education of judges?
Ms. Barbara Chisholm: Absolutely. Absolutely.
Senator Erminie Cohen: Yes. I wanted to hear that.
The second part of that question is, how do you think we should handle the custodial parent who violates the access agreement? What type of...I hate to use the word “punishment”, but there's too much of it happening. I'm like Dr. McKay; I was a very strong feminist, and all of a sudden another door has opened in my head and I realize there's really an imbalance there.
I was wondering, anybody at the table, how you handle situations of denied access, violation of the custody, the access by the custodial parent.
Ms. Barbara Chisholm: May I speak to that?
The Joint Chair (Senator Landon Pearson): Dr. McKay.
Sorry, then you can...sure.
Dr. Marty McKay: That's a very important issue, and I think that's another reason why, if post-divorce mediation is required, one parent can call the mediator and say, “Look, I haven't seen my kid in three months. I go to the door and there's always some excuse that she can't come.” The mediator acts as a go-between and says, “Look, we have a problem. What's going on here? Do you want me to come out and see? Bring your daughter in if she doesn't want to see her father. Let her tell me about it.” We should take those steps first.
I've had success with using that, but the professional has to stay involved over a course of time. I've found that if couples mediate and agree to post-divorce mediation, the calls start to become fewer, and there are fewer and fewer problems—usually. Within two years you don't hear from them any more, and that's really nice. But there has to be some post-divorce follow-up by a professional who has a working relationship with each of them, who's not biased or on the side of either one, and is working in the best interests of the child.
Senator Erminie Cohen: Thank you.
Ms. Barbara Chisholm: I tried to make some reference to that in my comment about parental alienation—that it does exist and we must accept the fact that it exists. The assumption that all separating and divorcing parents can sit down as reasonable people and use language to negotiate agreements is naive and wishful thinking. We have a spectrum, from people who don't need us at all, who settle themselves and don't need us to intervene—and we shouldn't be messing around in their lives; they can do it; their children will be fine because they are fine—all the way to the people who, as I suggest, need special attention.
The special master concept is an attempt to address those people who are what's called “entrenched” in their quarrel, where it's become a way of life. Those people don't rely well on conventional mediation. They need the imposition of an authority decision, with some very strong potential consequences that I allude to in my recommendation.
Ms. Deborah Merklinger: I think what you're speaking to in part is enforcement, and I think that's one of our biggest problems—what do we do to enforce these agreements once parties have reached them? As we all know, most agreements are only as good as the two people who are a part of them.
I agree with Dr. McKay. My position is starting with the least intrusive mechanism, that if parties can mediate out this issue, that's the best place to start. But ultimately, as Dr. Chisholm has said, we have people out there who go from one end of the continuum—those who don't need any of us—to those who need more than most of us can offer.
I think there does need to be some kind of enforcement mechanism that an obstructing party is well aware of in case of obstruction of access. There is a piece in the legislation that speaks to it, and the basic gist of it is that if one person is sabotaging the access of parent and child, there is the possibility of a reversal of custody.
The likelihood, though, in the past, of that ever happening, has been slim to none, in that the custodial parent has basically been given carte blanche to do what he or she will. That needs to change. There needs to be a common knowledge that this is not acceptable, and that in the event that happens, and if we are truly talking about parental alienation, there are penalties in place, and we can sit and think about what the appropriate thing is. I guess really at the end of the day what we are possibly talking about is a reversal of custody or a shift in custody.
The Joint Chair (Senator Landon Pearson): We'll go to Dr. Bennett.
Ms. Barbara Chisholm: May I add one comment, just to clarify? There is a very significant judgment from the family law division in Quebec, the citation of which I will be happy to send you—I don't have it with me—in which the parental alienation syndrome was reliably described, very clearly described, by the judge. The custody of all but one of the five children was transferred from a father back to a mother on the basis of the father's behaviour. This was a very, very critical Canadian judgment and has been the basis of precedent decisions in other jurisdictions.
The Joint Chair (Senator Landon Pearson): Ms. Bennett.
Ms. Carolyn Bennett (St. Paul's, Lib.): Thank you.
That actually was my question. Does parental alienation in its barest definition include the situation where the child thinks they don't want to see the other parent any more? I think that's certainly a situation that in family medicine we see a great deal. Are we doing enough in terms of educating parents to fast-forward to 10 years from now to see how the child will see the situation then?
I just wondered if you had any advice as to.... I mean, it's pretty fancy words for us to actually then be able to do something about it, unless people actually understand the psychological impact on that child to later be able to parent, later be able to trust this mother who said, “It's bad for you to see your dad”, or these kinds of situations. Why aren't we seeing this out there as a public education issue?
Ms. Barbara Chisholm: For one thing, I think there has been a perceivable backlash in the courts—certainly I and my colleagues are aware of it in Ontario—against women. There has been a perceivable shift of attitudes. When a mother complains or raises an allegation that she believes something inappropriate is happening to her children when they're with their other parent, there has been a shift away from believing, and a belief and almost an attitude now that she's simply making trouble, she's simply being difficult, she's “only” doing this or that. When these behaviours on the part of the children develop, as you're referring to, it is essential that responsible, reliable and competent professional help look into finding out what's behind it.
Children by themselves need permission to go on loving people who don't love each other any more. This is a very, very, very important differential—that children can still love people who don't love each other any more. Therefore, they're very vulnerable to the influence and the atmosphere in which they live. If very angry people are name-calling—and they do; believe me, they do—the children are going to pick that up right through their skin, never mind their ears.
Ms. Carolyn Bennett: My question sort of came up a bit yesterday. The minute a child says they don't want to see the other parent, you're saying that then there should be significant professional intervention.
Ms. Barbara Chisholm: There needs to be some understanding of what that's all about. I am uneasy about the assumption that we're going to have, first of all, enough professionals to do all this intervention of the hundreds and thousands of separations in this country every year, or secondly, that there will be the money available for such activities. But I think a parent who becomes concerned about their child's resistance does need to consult somewhere. That's why I've raised the question that if we do anything in terms of something mandatory, it should be around parenting education courses that will help to alert parents, both genders, about the signs and signals of concern.
It may simply be that the child is angry at the other parent, who was a better disciplinarian and has said, “I'm not going to be a sugar daddy; I'm going to be your daddy, and the answer is you go to bed now”, whereas at home the more comfortable, relaxed discipline appeals more. So you want to understand that it isn't always pathology that's behind it, but if it is, then we need to know that.
Ms. Carolyn Bennett: I guess I also feel that we can't afford not to be doing this in terms of the physical nature of this problem.
Ms. Barbara Chisholm: Yes.
Ms. Carolyn Bennett: In turn, what keeps coming back to the committee is the availability of resources, whether that's to the courts, or to counselling, or whatever.
We keep coming back to these high-conflict relationships not being suitable for mediation. This panel was interesting in saying that there's this continuum from conciliation to mediation, but then to some sort of alternative dispute resolution, where these people may not be able to sit in the same room but you could mediate something or you could determine something less adversarial or less court-laden—at least having a go with that before we go full bore into lawyers and—
Ms. Barbara Chisholm: I call that—and I do that—my Kissinger technique. These are a couple who cannot sit in the same room with each other. The eruptions are far too intense and angry, and you lose sight of what you're trying to do, because everybody's so upset. With their agreement, what I undertake to do is see them separately and carry the messages back and forth, which is why I call it the Kissinger technique.
I have had some reliable success with that technique, with people who have a chance to sound off without getting the other person inflamed by hearing all the accusations, and who are a little more prepared to finally focus on the children. The comment that was made earlier is so true, that very upset, very angry people in the middle of this experience find it very hard to really focus on their children, in spite of saying so.
Dr. Marty McKay: Yes, I think even high-conflict couples can mediate successfully if you take the time with them, to meet with them individually and act as a go-between, and finally bring them together. I've had a couple of cases where the couples actually got back together and reconciled and are living happily as a married couple and intact family again, from saying “I don't want to ever see that person; I'm afraid of him; he's going to kill me.”
One thing that hasn't been mentioned is the money factor. Money is a wonderful motivator. Sometimes people can say “I could have put all four kids through the U of T for the money I've paid on lawyers.” I respectfully submit that the money that would fund the professionals for mediation would be a drop in the bucket compared to the legal fees that are now expended by persons.
And there needs to be reform to the legal aid system. I have seen cases where the woman is funded by legal aid, and she can go on fighting ad infinitum, ad nauseam. The husband, on the other hand, has a job and he is bankrupt. But if you can get the people and say, “Look, do you want to go back to court over this issue and pay $2,000 or do you want to pay for a couple of hours of our time together and sort this out? Which is it?” usually people will say, “Oh, I hadn't thought of that; that's a good idea.”
The Joint Chair (Senator Landon Pearson): Senator DeWare.
Senator Mabel M. DeWare (Moncton, PC): Thank you.
I just wanted to say to you, Deborah Merklinger, that we totally agree that we should change the definition of custody and access. Even when we were dealing with Bill C-41 last year, we discussed it at that time. Because this bill came through the Attorney General's office and they're dealing with the Criminal Code, they wanted to keep all the words the same, but we feel very strongly that they have to be changed.
I also liked your point that the parenting plan to establish the responsibilities of the two parents has to be done before any decision is made in the courts or through litigation. We have to remind them that there is a responsibility here, even though it could be highly volatile at that point. The parenting plan could, as you say, be almost a mandatory thing: you have to sit down and decide who's going to be responsible for what and look at the child's future. When you have to sit down and make plans, it's like setting up a budget; you do have to stop and think. You have a very good suggestion there.
Ms. Deborah Merklinger: Thank you.
Senator Mabel DeWare: You are saying some sort of draft plan could be made available.
Ms. Deborah Merklinger: I am suggesting....
You know, I must say that when the invitation came last week to attend here, I was overwhelmed by the invitation. Then I thought, well, I'd better think through now what I'm going to say. So my thoughts aren't completely played out yet, but in their infancy last night, as my nerves were beginning to set in, I started to think it through. As I said, it's still in its infancy.
My idea is, yes, we could have some kind of standard form to cover all the different areas. There are certain things that are unpredictable and idiosyncratic to each family, and certainly the parenting agreement could differ from case to case. We all know the Smith family is different from the Jones family. But we also know that where children are involved, there are many standard issues that families do face and need to think about. They could be enunciated in an agreement.
My idea is that we get people talking, thinking, and communicating about children's needs, and we shift the focus from that me-centred approach and the all-encompassing power struggle and potential conflict that distract parents at a time when really they need to be attending to what's in the best interests of the kids.
If there were something out there that said, “This is what you have to be thinking about; this is what you have to be talking about”, we would be doing a lot to get people on the right track from very early on.
Senator Mabel DeWare: Usually, I suppose, in your experience, the break-up had nothing to do with the child at the time. The break-up was for other reasons.
Ms. Deborah Merklinger: I don't think I've ever heard a couple come in and say, “We broke up because of Johnny”.
Senator Mabel DeWare: Right.
Also, I would be interested to know from Dr. Chisholm, maybe I'm naive in this question, but what is a special master? I haven't heard that phrase before.
Ms. Barbara Chisholm: This is a program that has begun in the States and in Australia. It's the appointment of a judge—a qualified, experienced judge—to a special status. It would be a new status of judicial appointment for someone who would receive special training and be available to deal specifically with the high-conflict cases, the ones that come back and back, where people fire their lawyers because they don't like the advice they get and shop for another lawyer and fire that one.
I have recently been involved in a situation where the mother had five and she's now on her sixth lawyer. She doesn't like the advice she gets, so she lawyer-shops. Her position is very much, “My answer is no. What did you say the question was?” She's intractable and extremely difficult to work with. She's one of the people with whom I've been doing Kissinger work, because she can't sit in the same room with her former husband without an incredible outburst. We were successful in getting a completely designed spring break arrangement for where the children were going to be and how they did it. We have now begun to work on the summer break. We are beginning to get special plans for special occasion things.
It happens that you can work with some of these people sometimes, but there are cases that really I do believe need the imposition of authority. These are people who are in need of, for want of a better word, a parental kind of “you shall”. This approach would be where we would say that this would be the end of it, we don't want to hear any more from you, and go do your homework.
For those people, we should have someone with special training whose skill and authority to make an order allows him to receive the cases that are clogging our courts, taking up hours of time, and not getting resolved. They're just getting worse and going around in circles. So the title for this person is special master.
Senator Mabel DeWare: Thank you.
The Joint Chair (Senator Landon Pearson): Thank you very much from this panel. You've been really helpful. I liked the precision of your recommendations, and we appreciate your being here.
Could the next panel now move up? It's a heavily charged day, but we need to hear everything people have to say.
Welcome to our hearings. We're pleased to have you here.
We have representatives from the Assaulted Women's Helpline, Beth Bennet and Pauline Delahaye. We also have representatives from the Ontario Association of Interval and Transition Houses, Eileen Morrow, and Ruth Hislop, vice-president. From Families against Deadbeats, we have Renate Diorio and Ilene McGillis.
Would you start, please?
Ms. Beth Bennet (Program Director, Assaulted Women's Helpline): My name is Beth Bennet, and I'm the program director at the Assaulted Women's Helpline.
The Assaulted Women's Helpline is a non-profit, charitable agency that serves women in the city of Toronto. The agency's inception more than 12 years ago was formed from a need that grew out of Toronto women's shelters and the local distress centre to have a telephone crisis line dedicated to serving abused and assaulted women.
The Joint Chair (Senator Landon Pearson): Excuse me, before you start, I think you all have been informed previously that we try to keep your presentations as short as possible so that there's time for questions.
Ms. Beth Bennet: Right.
The Joint Chair (Senator Landon Pearson): So if I make signals at around five minutes' time, that's because you're going over your time.
Ms. Beth Bennet: Okay.
We offer crisis counselling and emotional support. We advocate on behalf of assaulted women. We have the ability to serve women in 140 languages through the use an AT&T interpreter service. In 1997, the agency received over 26,000 calls.
In preparing this presentation and brief that will follow it, many women representing various agencies participated in this process: Pauline Delahaye and Ruth Bockner from Nellie's Shelter; Valerie Packota from the York Shelter for Women; Vivien Green from the Metro Woman Abuse Council; Marsha Sfeir from Education Wife Assault; Rosalinda Tijam and Lee Gold, from the Assaulted Women's Helpline; Kathryn Penwill from Oasis Centre des Femmes; and Karen Engel, from the City of York Child and Family Centre.
All of us who currently work in the field of women abuse recognize that problems related to custody and access present one of the biggest hurdles for women who are trying to escape from violent partners. Some observations are as follows.
It is custody and access, as currently enshrined in law and interpreted by the courts, that keep women trapped in abusive relationships, since the two most common threats an abused woman hears from her partner are that she'll never get the children if she leaves him and that he'll kill her if she leaves him.
It is access ordered by the courts that allows men to find their ex-partners and kill them after they leave. This also includes the murder of children.
It is custody and access that make it impossible for abused women to make a fresh start free of abuse.
It is custody and access that judges do not understand in the context of violence.
It is custody and access that allow abusive men to continue to abuse, creating the intergenerational effects of family violence. Peter Jaffe's research demonstrated clearly that witnessing violence has the same effect on children as being abused directly.
Past conduct has not been considered relevant by the courts unless it is deemed relevant to the ability of that person to act as a parent. The onus needs to be shifted so that abusive fathers will have to prove that access is in the best interests of the child. A man who abuses his wife has committed child abuse, and any new custody and access legislation needs to be framed in such a way that this reality is acknowledged.
Both witnessing wife abuse and/or being abused have long-term and devastating effects on children. Therefore, men who abuse their partners should have no right to continue to abuse their children.
Any new legislation should be drafted in a manner that reflects an understanding of the pervasiveness of wife abuse in our society and an understanding of the effect on children of witnessing wife assault.
The assumption that as much access as possible to both parents is good for children must be challenged. Such a right should only be earned by a history of involved parenting and a past free of spousal abuse.
The tone of this committee's mandate implies that separating parents are articulate, reasonable, and able to work out their disagreements amicably. It also appears to have been framed in the context of a white, middle-class, anglophone couple.
The most recent Statistics Canada study revealed that one-quarter of all women have experienced violence at the hands of a current or past marital partner, and one-half of women with previous marriages reported violence by a previous spouse. These women deserve protection in law and by the courts. Failure to protect their children by granting access to abusive fathers also subjects women to further abuse.
We find the committee's mandate to be narrow. This is extremely problematic, especially in the lack of definition of the terms used. The term “child-centred approach” needs to be clearly defined, as does “best interests of the child”.
Further, it is our position that the push toward law policies and practices that would emphasize joint parental responsibilities becomes a non-issue when abuse is present. Joint parental responsibilities in matters where abuse is not present are still not necessarily conducive to a child-focused parenting model, and hence not in the best interests of the child.
Separate the issue of access and support. Support does not equal access.
“Primary caregiver” should be defined as the individual overseeing and/or performing the tasks related to the day-to-day life of the child. Promising to do these things is not the same as actually doing them.
Implement training and monitoring of judges, lawyers and Children's Aid workers on the impact of woman abuse and its impact on children. This should be done through community-based agencies within the violence against woman sector.
Find and make accessible supervised access centres operated from a women's centre perspective.
Make legal aid accessible to women on the same basis as it is currently accessible to men.
We would also like to comment on the process of the Special Joint Committee on Child Custody and Access. If the federal government is serious about the consultative process, it will have to fund a thorough process of community consultation. It is unconscionable to reform custody and access legislation of such far-reaching importance without appropriate and widespread community consultation. We therefore ask that there be an inclusive and broadly based consultation to draft legislation that takes into account the reality of abuse in the lives of women and children. Such a consultation must be made of paramount importance.
Men who abuse their partners are not fit parents. The abuse continues after separation, and more women are killed after separation than before.
A new law needs to be drafted in such a way that men, who usually have superior financial resources, cannot subvert it by hiring lawyers to delay settlements that exhaust and bankrupt women.
We expect that you will give these responses the careful consideration that the Assaulted Women's Helpline believes they deserve, so that children are no longer treated as property, and so that parenting is viewed as a responsibility that fathers earn by treating women and children non-violently.
I would also like to say that the Assaulted Women's Helpline and all of the agencies represented at our community consultation would like to endorse the brief submitted by the National Association of Women and the Law. The recommendations outlined in its brief are critical and should be implemented in their entirety.
The Joint Chair (Senator Landon Pearson): Thank you very much.
We'll go to our next witness.
Ms. Eileen Morrow (Lobby Coordinator, Ontario Association of Interval and Transition Houses): Thank you very much. My name is Eileen Morrow, and I work for the Ontario Association of Interval and Transition Houses. OAITH is a sixty-member organization primarily of first-stage shelters for abused women and their children in Ontario, and it is the largest shelter association in Canada.
As representatives of first-stage emergency shelters for abused women and their children, we're very well placed to hear from the front line on a daily, 24-hour basis, about the concerns of abused women and their children with regard to custody and access and other family law issues that will not be addressed during these hearings, but which we also think are vital to the freedom of women and children in abusive situations.
When we work at the front line in shelter organizations, we're very aware on a daily basis of the high percentage of cases of custody and access disputes where violence against women and their children, both through direct violence against the children and through the witnessing of violence by the children, are present. We know that statistical research has also shown that there is a high degree of violence against women and children when custody and access is in dispute within the court system. We also know that most custody and access and marriage dissolution situations are resolved without court intervention, and we know that in those cases that go to court there is a high degree of violence against women present.
It is our position that violence against women is a women's equality rights issue and a human rights issue. The safety of women and children and their right to personal security under the Constitution of Canada and the Charter of Rights and Freedoms is at risk when family courts refuse to take an equality rights analysis for all women and children when making decisions on custody and access and the best interests of the child in these matters. We would like to see these hearings take note of that analysis.
These hearings should also take note of the fact that the federal government has committed itself to an equality rights analysis of all its legislation under the charter. It is enshrined within our laws and within our Constitution that it is the duty of the Government of Canada to ensure that security rights of women and children are protected. This is not a matter of choice. It is not a matter of discretion. It is the duty of the court.
Ms. Ruth Hislop (Vice-President, Ontario Association of Interval and Transition Houses): Thanks for the opportunity. I'm a front-line worker in one of the metro shelters and have been a children's advocate worker for the last ten and a half years, so I think I can bring some insight to this in terms of some of the concerns that children have.
One of the biggest dilemmas is that children are very often at a very confused stage in terms of the roles of the parents, and when we look at what the best interests of the child is, I think we really need to take into consideration the fact that the mothers are often reinforcing what the best interests of the child is.
With regard to the issue of access to the father, oftentimes there's a lot of confusion in terms of what the children want. At times children do want to have access to the father, and that's reinforced by the legal system. The drawback is that oftentimes when that access is desired there are no supervised access centres that are able to provide the space for the volumes of children needing to have a safe environment to visit with their father and/or reinforcing that the mother also needs to be safe during the access visits. And certainly, as Eileen has alluded to, there is the issue that access to the father during visits often increases the violence.
Our position is very clear. In an ideal sort of situation we'd like to suggest that there's no access. We recognize that when violence is witnessed by the children it has an intent, and men's rights to degrade and dehumanize their partners in front of the children and the implicit threat against the children themselves serve a purpose and have clear effects on both the mother and the child.
If the purpose is to have the children have access to their father, then we need to ensure that we have supervised access centres available where safety is of paramount concern. There is a very strong emotional toll for children in terms of the dilemma around the parent. One of the big concerns is in terms of not having centres where there is a safe place for the children to visit with their father without ramifications in terms of the violence continuing beyond the visits.
Ms. Eileen Morrow: I just would like to say in closing that we support the submissions made by the Assaulted Women's Helpline here today. We also support the submissions of the National Association of Women and the Law, which does give a more fuller context to family law for all women in Canada.
There isn't an opportunity for us to make a full presentation to you, and that's unfortunate. We do have a brief for you today.
The Joint Chair (Senator Landon Pearson): Thank you.
I'd like to reassure you that even though your time here in front of us may seem too short, your written briefs are part of the record and are read by all of us. The way we've organized this now is really to enable the interchange with the members of the committee.
Ms. Renate Diorio (Founder, Families Against Deadbeats): Good morning. My name is Renate Diorio. I am founder of Families Against Deadbeats. I would like to take this opportunity to define our terminology for “deadbeats”.
We do not consider an individual, non-custodial parent who is paying for his child or who has access to his child a deadbeat. We deal with the individual who has clearly misused his title as parent and who takes no part whatsoever in his children's. That is our terminology for “deadbeat”.
To give you a little bit of history, in March 1993 FAD was created after sheer frustration with my own struggle in not obtaining child support after my husband walked away, leaving me to pay all his debts, which I'm still paying to this day.
My father, the late Heinz Paul, and I co-founded FAD and lobbied the provincial government for tougher enforcement measures to assist families who could not obtain child support. We started out with our MPP, Joe Spina, who has been very supportive and has backed FAD's membership since the very beginning. Through his assistance we were able to meet with the attorney general and his staff to present our proposal to change legislation. As a group, we have achieved great success in our input on Bill 82, or the Family Responsibility and Support Arrears Enforcement Act, 1996, but now we feel that our work must carry on to another level.
The family law policies in Canada require more effective measures to ensure that the children's best interests are taken into account. These policies have fallen short of focusing on the children. Instead, only parents' concerns have taken precedence. The family unit that the children were used to changes drastically during separation and divorce. If we can minimize the negative effects of family break-up, those children will have a brighter future.
Parenting has to provide a positive environment for children. The decisions regarding custody, access and support must be decided on the ability of the parents to commit to the lifelong responsibility of raising their child. The forum chosen to decide custody matters should be decided by the parents. The choices currently available are not feasible. They are limited, prohibitively expense, and excessively stretched out over many months or years, not to mention stressful and confusing for the children.
The simplest solution is mediation. The majority of support and custody orders now before a family court judge could have been decided in mediation in a few hours for a few dollars, compared to lawyers' fees. Ladies and gentlemen, we all know that this is a win-lose situation. We all know who the winners are: the lawyers.
In comparison, in family court, custody and access will be decided a few years from now by a number of judges' notes, tens of thousands of dollars recklessly wasted, ending up in an adversarial situation. Through mediation, the agreements arrived at will eliminate the possibility of falsifying information on affidavits when presented to the family court. Choosing mediation will also afford parents some control over the decisions regarding custody, access and support for their children.
We realize that mediation will not be effective in settling divorce and separation issues in all families, but it could ease the burden of cases in the family court. In situations involving abuse of any kind, abandonment, hostility and blatant disregard of the mediated agreement, a separation/divorce case will have to be resolved in family court.
Custody, access and support for the children must be the focus of the parents, separate from the issues of separation and divorce of two adults. The parents' responsibility to their children is lifelong, and an agreement for their upbringing must be enforced.
FAD fully supports the issues brought forward today. Although FAD's membership is comprised of over 250 single parents not receiving child support, we are also concerned with the importance of custody, and consistent access and support, comprised of not only financial support but emotional and spiritual support as well.
The Joint Chair (Senator Landon Pearson): Thank you very much.
Senator Duncan Jessiman: Thanks, Madam Chair.
I don't there's anyone on this committee who isn't sympathetic to those who find themselves in the position where the court has ordered custody payments or maintenance payments to be made and they're not made. Bill C-41, brought in just about a year ago, really strengthened that situation. So if a non-custodial parent does not pay, we now have not only the court that can put him in jail...which really is not the answer, because if you put a person in jail, either party, you're depriving that person from earning a living so he can pay the support. So they've come along and they've strengthened it to the extent that they can take away their driver's licence, their passports, other licences. That's fair, and we all agree with that.
But would you not agree—and I know from where you're coming, but I want you to try to be as honest with us as you can, because you've heard others before you just today—there is another side to this?
Let's assume we have these people who are not deadbeats, as you say, because they're paying their support, but for whatever reason the custodial parent—and usually it's the woman—decides in her wisdom she's not going to give access to that child. We also know that there is the law and if a person is in contempt of court that custodial parent could be put in jail. And that's actually happened in Ontario, but it took 22 times of contempt of court.
My question is, would it not be reasonable on the same basis it's reasonable for non-payment, that if they don't give access when the non-custodial parent is paying—not a deadbeat—the custodial parent also lose her driver's licence or her passport or get similar treatment, so that she would know in advance that, if she didn't do this, it was a possibility? I ask any one of the three groups.
Ms. Renate Diorio: I agree with you. I think there should be harsh punishment on that side as well. However, we experience that—within our membership we don't get child support from our ex-spouses—access is in place and these parents do not exercise their right to see their children, some of them going back for ten years. And we just admire anybody who wants to see their children. Our hearts expand when we hear about a parent or a father who cannot see his child, when here we have fathers who have all the rights and can see their child any time they want to and just can't be bothered.
I agree with you that there should be a punishment on denial of access, absolutely.
Senator Duncan Jessiman: Thank you. Does anyone else want to answer that?
Ms. Beth Bennet: I think there are things we need to look at, and one of those things is that abuse is often very hard to prove in court. If the court has ordered access to a father who has been abusive...abuse is not only a physical punch or a slap; abuse is mental, emotional or psychological torment, with the goal to control a woman's behaviour. So while I can agree that with a proven case where abuse is not present there be some kind of...I don't want to call it punishment, but the same sort of thing that is going on with Bill-41. I think, again, that because of the lack of awareness and understanding of abuse we have to factor it in.
A lot of women are in that situation, and it might be why they are denying access or attempting to obstruct it in some way—for the safety of their child or for their own personal physical safety. I think that needs to be taken into consideration.
Senator Duncan Jessiman: I think you'd also agree, and I'm sure if you were here earlier.... And this was a surprise to me. I knew there was some of this out there, but not to the extent that the professional people—who weren't representing mothers or fathers or the children, but they're professional people who have statistics—we're telling us, that in 50% of the cases these accusations are not true.
So my question to any of you, because you're telling us you're dealing with these kind of people, is do you find in your work that some of these people are not only exaggerating but not telling the truth?
Ms. Beth Bennet: I think that number is so minuscule that it's not worth discussing at this point. On our helpline alone—
Senator Duncan Jessiman: Excuse me, let's just get it clear on the record. Are you saying, then, that the professionals who came before us just a few minutes ago and gave us—
Ms. Beth Bennet: I would have had to hear them, sir. I didn't hear them. I didn't hear what their stats were. I'm only speaking from the perspective of the work we do at the helpline, and that would reflect.... Alone, our line receives 26,000-plus calls a year, and we're operating at a third of the capacity we should be operating at.
Senator Duncan Jessiman: Yes, but you're talking about wife abuse as opposed to child abuse.
Ms. Beth Bennet: Assaulting a woman who is—
Senator Duncan Jessiman: No, but just answer. That's not a.... I'm here to try to get information. I don't want to argue with you.
Ms. Beth Bennet: I'm not arguing with you.
Senator Duncan Jessiman: I'm asking you, are you dealing only with wife abuse or are you dealing with child abuse?
Ms. Beth Bennet: I'm having an issue with you attempting to separate that, okay? If a mother is in a home, her child is there, and she's being assaulted or put down on a continual basis, that is child abuse, sir. There are many studies that will show the impact of that kind of violence on children is very severe. So to separate it.... It's not dissociable, from my perspective. I think Eileen Morrow and Ruth can speak to that as well.
I heard a comment in the background, “What about abuse of men?” I'm sorry; I'm not here to speak about the abuse of men. I'm here to speak for women who have been assaulted and the effects of that on their children. You need to get an expert who will speak to that. That's not what I'm here to do.
The Joint Chair (Senator Landon Pearson): Thank you. I think we'll move on to the next question.
Mr. Paul Szabo: Thank you very much for your interventions.
I did spend five years on the board of my shelter for women, Interim Place in Peel, and spent a lot of time helping them organize and arrange the construction of a second facility, so I'm aware and sensitive. But as legislators, we have to also make sure the laws can work in all cases.
I heard some very powerful statements. It started off with, “Abusive partners have no right to see their children”, but then it got a little more specific and said, “Men who abuse their partners are not fit parents and should not get access”.
I would ask OAITH and the Assaulted Women's Helpline representatives if they believe in the principle that a spouse who abuses another spouse is not a fit parent and should have no access. Do you support that principle, whether it be the man or the woman?
Ms. Beth Bennet: I would support that principle. If a child is being victimized, whether it be by a man or a woman, the child is being victimized. They are the priority. Again, I'm speaking from my realm, which is assaulted women. So, yes.
Ms. Eileen Morrow: It's interesting that when we start to talk about woman abuse, the subject is always changed to abuse of men. I don't think anybody here has actually made the statement that there's no such thing as a man who's been abused.
It's really interesting that every time we start to talk about women who are abused in their relationships and the impact of that abuse on their children, which is our expertise, we end up being shifted into this other subject. I'm not sure why that's happening or what that's all about, but this started with a question about access.
I would actually like to see definitive studies that show that access denial is a huge problem. For women we work with, exactly the opposite is the problem: either women are assaulted on access visits or else access visits are not utilized and children are left waiting for fathers who never show up or are subjected to violence when fathers do show up—violence against the woman, messages given to the children to take back to the woman, such as, “Tell Mommy I've got a gun” and so on. We know that sometimes children are in fact murdered on access visits, and sometimes women and children are murdered on access visits.
I am hoping that during this hour we have before us, in terms of our presentation, this committee will be wanting to hear about the women we work with and the children and women we are trying to protect, and that we won't be shifting to the subject of abuse against men. If in fact it is occurring to the same level as is being implied, I hope that those people who are working in that area will give you that expertise and you will be able to act on that, and that they will also give you the definitive facts and studies that prove it is in fact occurring.
Mr. Paul Szabo: Okay. Here's my last question. You're aware that we have had some testimony from people who have credentials that the numbers...and there's some disagreement. I think you're absolutely right when you say there should be more information about it. I've done a little research and I think the 50-50 number actually has come up more often in the American states research than in the Canadian research I've seen. But notwithstanding that...I know you want to talk about men's abuse as a separate issue, but I think maybe it's time we started understanding that it's not just a woman's issue; it's a societal issue and it requires attention.
The question I have is with regard to access. The courts have awarded custody to the mother in over 80% of the cases. In fact, a number of fathers will not even seek custody because the cost, etc., is prohibitive, so I must suspect—
Ms. Eileen Morrow: Women don't have as much money as men and they seek custody, and the cost is very prohibitive for them, I will tell you that for sure.
Mr. Paul Szabo: —that there seems to be a very significant skew in terms of the mother—
Ms. Eileen Morrow: Because men don't seek custody.
Mr. Paul Szabo: I understand that, but we're here to deal with problems, perceived and real problems—
Ms. Eileen Morrow: But you also have to look at the fact that when men do seek custody, they receive custody in 50% of the cases.
The Joint Chair (Senator Landon Pearson): Please wait until the question is completed.
Mr. Paul Szabo: And access is really a very important issue here. The question I want to ask you is whether or not...you tend to think that access should just be cut off, and I'm wondering whether or not you have any room in your heart for some sort of mediation or counselling or assistance to couples with children who are going through this situation where their family life is being broken down.
Ms. Eileen Morrow: I think you need to take a look at what we're dealing with here. We are not talking about a family situation that's broken down. We are talking about a systematic pattern of escalating violence against women and children, which takes place over the period of a relationship, done by that person who has made a choice to dominate and who will dominate to maintain power and control.
And that is what breaks down the marriage. The marriage does not cause violence; violence causes marriage breakdown.
I am asking you to look at those situations from our position, with our expertise. I am asking you whether it's in the best interests of the child to be learning that violence and to be learning that value system. We are asking you to keep those children safe. I'm asking you to stop abusers who want to kill their children so their wives will not get access.
I'm asking you as a matter of human rights. It's not a question of what's in my heart here; it's a question of what's in your heart today in terms of whether or not you, with the power you have to make these decisions, are going to protect the lives of those women and children.
The Joint Chair (Senator Landon Pearson): Thank you.
Ms. Caroline St-Hilaire (Longueuil, BQ): I'm really pleased to hear the women's point of view. It differs from what we've heard before.
I think the problem is that there has been a tendency to generalize, up until now, when in fact each case is different.
It has often been said that women are making false accusations, that they can be as violent as men and that they're using the legal aid system to push men to bankruptcy.
I would like to know how you manage to prove violence when you go to court. Isn't mediation, mandatory or not, better than court litigation since violence against women and children is so hard to prove anyways?
Ms. Eileen Morrow: No, I don't believe mediation is appropriate for women in abusive situations, because de facto in abusive situations the entire relationship is a power imbalance, and any good mediator will tell you that you cannot mediate in a situation where there isn't equal bargaining power. In an abusive situation, the very nature of the relationship is that there is no equal bargaining power.
Abusers do not negotiate fairly, and they cannot negotiate fairly, in mediation. No mediator, no matter how well trained, has the skills to militate against five or ten years of that power imbalance and the impact it has on the victim of it.
Ms. Ilene McGillis (Families Against Deadbeats): I suggest to everyone in this room, I don't think anyone would allow his or her own child or a grandchild to get into a car with someone who's been drinking, to go near a person with a gun or a knife or to be around a bully in a school yard, be it a parent, grandparent or anyone who will or has caused them any harm. This is happening to children, morning, noon and night, at home, during access visits and during weekends away with the parent they don't live with. This has to stop and it has to stop now.
It nearly destroyed my son, who tried suicide three times after access. He's alive at 17. He has no intention of ever seeing his other parent again. He was nearly killed on the 401. His father was drunk, driving at 140 kilometres per hour and his blood alcohol level was 2.1. He was driving him home after visiting. So I suggest to you all, don't go near that person, he might hit you. Don't go near that person; he might kill you. It has to be told to them in very blunt, honest terms.
There are children who don't need that kind of access. They should be protected at all costs. I don't care about the other parent. If he's going to hurt my children, I don't want them around him. If any of you came near my children and were going to hurt them mentally, physically, spiritually, sexually, financially—any way—you wouldn't be allowed access to my children.
The official guardian of Ontario did an assessment and said a child should have access to the non-custodial parent; even if it's a bad relationship, a bad situation, he or she should have some contact. Supervised access would be fine. He came with the girlfriend. He and the girl abused my daughter during supervised access. She came home hurt. Supervised access ended that day. The last time he beat up his son was the last time I lived with him.
This is very real—really real. You all have to know this. Children should not be around people, kids, relatives, or a parent who's going to hurt them in any way. The focus has to be children, children, children. It shouldn't be whether I like him or not. I might be madly in love with him, but if he's going to hurt children, sorry, no access to children at all, ever.
The Joint Chair (Senator Landon Pearson): Senator DeWare.
Senator Mabel DeWare: I'm a little concerned about starting because I may get into some confrontation here.
First, I would just like to speak to Renate. What happened after Bill C-41 was put into place and the grid was put into place that says your non-custodial spouse is required to pay so much to your support according to his salary? On the basis of fighting that, can't you get that legalized?
Ms. Renate Diorio: No. In my situation, after he left me $210,000 in debt, he went on welfare for three years. I called the snitch line. Fortunately I got him off after three tries. Good for me. But I still didn't get any money. He worked under the table while he was on welfare, and I have facts to verify that. The whole point is he knew every avenue to take to not pay me.
My parents and I co-signed a loan to help him with the debts, but we didn't think he was just going to walk off and leave me with two kids and all this money to pay off, while he was living a happy life with all his new girlfriends.
Bill C-41 cannot help me. That's why I have a legal aid lawyer, and he can't help me. I think my certificate has run out, and of course I can't afford a good lawyer right now. I'm one of the thousand that are hanging in the air with nowhere to go. I just keep plodding around and hoping one day maybe he'll want to see his kids, who are in their teens right now, and maybe pay a little bit.
Senator Mabel DeWare: You say you represent about 300 members. Those are actually members of your organization?
Ms. Renate Diorio: Yes.
Senator Mabel DeWare: The deadbeat dad came up quite a bit during the course of our hearings on Bill C-41.
Ms. Renate Diorio: Yes, I know. As I said, in our group, the deadbeat is the lowlife. He's the individual who refuses to take accountability and responsibility for the children he created. He walks away, doesn't want to see them, doesn't want to help support them, doesn't want any part of their lives. To us, that is a deadbeat. It's not someone who's a few dollars in arrears. That's not the case at all.
Senator Mabel DeWare: It's unfortunate, because it was put in place to help people like you.
You may be wondering why, or you may feel this committee is dwelling a little bit on the access that men have to their children. If you are, I want to just tell you that it's because during the hearings on Bill C-41, over and over again the people who came before our committee were not talking about payments for child support, even though that's what the bill was all about: support for wives and children. They kept talking about custody and access, and we would have to apologize and tell them that wasn't what we were dealing with on that particular day, that we were dealing with child support.
Over and over again, though, unfortunately for you two groups sitting here, this message was coming from fathers or parents in every organization in this country that you could think of that is father-related. They were the ones who were very, very concerned. And let's just be fair here: a lot of them were paying dads who were being denied access for whatever reason. You people have reasons, but there are other reasons as well.
We have stacks of e-mail and regular mail with documented information, and I'm sorry to say that the majority—I would say 90% of the information—that we got during the hearings on that bill was from male spouses, from dads. We therefore said to the minister that we had to deal with this. If you feel we're a little bit biased, then, it's because this committee was set up due to the pressure that was put on us by dads in this country.
Because we've all worked with transition houses—we all know that Senator Cohen is the sponsor of one—we also know and understand where you come from. I'd like to know if we can have some statistics from you about the numbers of people we're talking about. I hate to use the words “numbers of murders”, but can we also have some stats on those? I'd really appreciate it.
Ms. Renate Diorio: Our brief will be coming in the next week, and I can provide you with the stats that I can get hold of in terms of intimate femicide. I'm not clear on thing, though. Did you want statistics on how many women are abused, or did you want statistics on how many women with children are abused?
An hon. member: What definition?
Ms. Renate Diorio: Yes, because if you tell me, I can make sure that—
Senator Mabel DeWare: We'd really appreciate those papers, because I think those figures are very important. We said yesterday that we have to hear from the other side, and we're doing that today.
Ms. Eileen Morrow: If I could, I would just direct your attention to the Statistics Canada surveys, both the juristats on spousal homicide and the national survey on violence against women, which was a telephone survey of over 12,000 households. That was a situation in which women cannot be accused of falsely making allegations, because there was no benefit to be gained by making up stories while talking anonymously to a surveyor.
Twenty-nine percent of those phone callers disclosed violence by their male marital partner. The marital partner was defined as one in either a marriage or a common-law relationship, so it didn't even include dating violence. In 40% of those situations, the children had witnessed the violence, and some of it was extremely severe. And if you check with Peter Jaffe at the London Family Court Clinic—he is an acknowledged expert on the impact of violence against women on children—you'll find that his studies show that 80% of children are aware of the violence, whereas 40% of the parents may think they are aware. So in fact, the children are actually exposed to much more violence than the parents believe they are.
I would direct your attention to the federal government's own studies on that, and also to the women-killing studies, volumes 1 and 2, in which coroners' reports and reports of homicides were done in Ontario on killings of women by men.
That study discovered that in Ontario an average of 40 women are killed by their male partners every year. That the number has risen from the first study to the second study, but the murders of men by women has dropped. In fact, the homicide studies show that women are nine times more likely to be killed by their male partner as they are by a stranger.
I believe those studies actually are present at the clearinghouse on family violence in Ottawa, and they're easily accessible.
The Joint Chair (Senator Landon Pearson): Thank you, Senator DeWare.
Senator Anne C. Cools (Toronto Centre, Lib.): Thank you very much, Chairman.
I noticed that in your remarks you urge honourable members to look at the people with whom you work. Yet I noticed just now, when Senator DeWare asked for hard data, you provided no data on the people with whom you work.
Ms. Eileen Morrow: Oh.
Senator Anne Cools: Perhaps you could address exactly the people you serve. In your client bodies—and I'm speaking not so much to Renate's group, because it's down here, but particularly the witnesses in the middle—of the people you served, I would like to know exactly how many women stayed at your shelters in Ontario last year. I'd like a number.
Ms. Eileen Morrow: We didn't do a survey last year because we lost our provincial funding. Our provincial funding for that work was completely cut, and we lost over one-third of our budget.
Senator Anne Cools: Okay, the previous year, the last year.
Ms. Eileen Morrow: Yes, since 1995.
Senator Anne Cools: Okay, during the last year on which you have data, how many women stayed at your shelter?
Ms. Eileen Morrow: I don't have it with me, but I could certainly give it to you when I get back to the office.
Senator Anne Cools: But do you have an idea?
Ms. Ruth Hislop: I can answer that on an individual shelter. Is that helpful for you? Do you want it from an individual shelter, in terms of the number of women and children who stayed at...?
Senator Anne Cools: I want the number of women, with children.
Ms. Ruth Hislop: Okay.
Senator Anne Cools: You cannot tell us for the past years the number of women who—
Ms. Ruth Hislop: I can tell you specifically in terms of the people who stayed at my shelter.
Senator Anne Cools: Which is your shelter?
Ms. Ruth Hislop: North York Women's Shelter.
Senator Anne Cools: Well, if this the best information you have, it's the best. How many women then stayed at your shelter?
Ms. Ruth Hislop: There were 256 in 1997; 122 were women and the rest were children.
Senator Anne Cools: So 122 women stayed, in total.
Ms. Ruth Hislop: Yes.
Senator Anne Cools: Of that 122, how many were battered women?
Ms. Ruth Hislop: Women who come to the shelter are coming through the mandate of women who have sought refuge from an abusive partner.
Senator Anne Cools: No, my understanding is that those shelters have two streams.
Ms. Ruth Hislop: That's not my experience. My shelter is specifically a safe refuge for abused women and their children.
Senator Anne Cools: Very well. Of those 122 women, all 122 were battered. So you didn't have any refugees seeking temporary residence anywhere.
Ms. Ruth Hislop: No.
Senator Anne Cools: You didn't have any women with children—
Ms. Ruth Hislop: No, I didn't. I've answered the question.
Senator Anne Cools: You didn't have any of those. Very well, they're all battered.
Since we are talking about divorce here, how many of those 122 women went through divorces? The issue here before us is custody and access, plus divorce.
Ms. Ruth Hislop: It could be you're dealing with two different situations.
Senator Anne Cools: No, we're not. I can put the question to you another way—
Ms. Ruth Hislop: Okay.
Senator Anne Cools: —but we are dealing here with women in your shelters who went through divorces, because the issue before this committee is custody and access in divorce.
Does anybody here have any data on the number of women who stayed in your shelters who have gone through divorces?
Ms. Beth Bennet: I don't have specific numbers, but I would be more than prepared to bring that back to you.
Senator Anne Cools: I would submit to you that usually the best time to present information is the best opportunity one has. But can anybody here tell me, in those shelters...? I want you to know this is subject matter I know a lot about.
Ms. Beth Bennet: Absolutely.
Senator Anne Cools: Of those women, the battered women who stay at your shelters, how many actually go through divorces?
Ms. Beth Bennet: We're not a shelter; we're a crisis telephone service, so we can't answer that question for you. But I can tell you that 42% of the abused women who call the Assaulted Women's Helpline—and this is a 1996 statistic—either had children or were pregnant at the time they placed a call.
Senator Anne Cools: I have not questioned that. I am talking about women who you say are abused in divorces.
Okay, I'm going to give you a larger question then, outside of the people who you have—
The Joint Chair (Senator Landon Pearson): Senator Cools, you have gone over your five minutes, but a quick question.
Senator Anne Cools: Paul has just given me leave to use his time.
The Joint Chair (Senator Landon Pearson): But he's not on the list.
Senator Anne Cools: In terms of divorce in general in this country, of divorces, how many cases actually do involve wife abuse?
Ms. Eileen Morrow: I don't think we have that statistic, but I think we can tell you that in the last study that was done by the London Family Court Clinic of custody disputes that came to the clinic, 78% involved family violence. Over two-thirds of it was women abuse and child abuse, and those were divorce cases.
Senator Anne Cools: I'm not asking you that. My question to you is abuse within divorce circumstances. You make some extremely large and, I would submit to you, insupportable statements. I'm going to continue.
Of the 122 women you serve, since this is the only data we can get—it's the hardest thing in the world to get hard data here; broad statements have been made here about women and children threatened with knives and guns—of the 122 battered women, how many were threatened, or their children were threatened, with knives and guns? I want an answer.
Ms. Ruth Hislop: I believe, Senator Cools, you're asking questions for which the answers, in fairness to myself, I'm not able to submit to you at this particular time. But the concern we're addressing is the issue of custody and access—
Senator Anne Cools: That is what we're working on.
Ms. Ruth Hislop: —and I can speak to you in terms of the number of children in terms of wanting access visits and in terms of the issues of safety that come forward. Certainly, from your experience within transition homes, you're aware of some of the struggle that women and children address.
Senator Anne Cools: I know the issues. I'll tell you why I'm asking—
The Joint Chair (Senator Landon Pearson): Senator Cools, Mr. Forseth was not on the list and Senator Cohen was the next one. So please finish off.
Senator Anne Cools: Can I borrow some of your time, Senator Cohen?
Senator Erminie Cohen: No. I'm embarrassed. I feel we're creating a divisive unit in this room when we're supposed to be talking about the best interests of the child. I feel we're pitting women against women.
I have become very sensitive to the situation that men have in this room, those who have been here day after day, who are really sincere about having access to their children. I'm very emotional about this. But you have to work with women and violence. These women should not be attacked. They're doing their job and we have no right to make this division.
Everybody here cares about children. Everybody here cares that their relationship should work. And I believe there are some men who abuse their children who still love them. It's a sickness that has to be handled. There are some cases. And I believe that you don't come to concrete conclusions if you create a war zone here, which we're trying to avoid in families.
The Joint Chair (Senator Landon Pearson): We have three minutes left.
Ms. Carolyn Bennett: I'm also worried about the people who go home from your shelters because...I guess I think that in a holistic way we should be able to do a better job on the male batterers, because women are going to end up with them, and we should be able to do a better job for the sake of the kids, so that they see that healing and transformation take place. Because I think that we are now starting to understand a little more about the perpetrators as victims of family violence themselves; we are starting to understand the cyclical nature of it.
My real question, however, is that we are hearing all sorts of different views, as you know: the idea that mediation will never work for these women because of the power differential.... I guess Dr. Chisholm, who was on the previous panel, thought she could do a Kissinger kind of thing, where she goes to this and goes to that and is able to maybe get some sort of resolution that takes away that truly adversarial and potentially deadly court battle. If you could turn down the volume on this and have somebody extremely skilled deal with these people to find a resolution, do you think that in the continuum from conciliator to mediator to alternative dispute resolution you would ever feel that something along the lines of alternative dispute resolution would work for those women in those power differential situations?
A voice: Or at least for some of them.
Ms. Carolyn Bennett: Or for some of them?
The Joint Chair (Senator Landon Pearson): We have practically no time left.
Ms. Eileen Morrow: I'm not sure what you mean by some of them. In terms of mediation it's a very tricky issue. The question is how you balance that power. And how does the mediator know that the power has been balanced and that the mediation is not simply being used as another tool of manipulation and control? That takes a very skilled mediator and it takes a lot of work.
I think that if I were to make a decision in mediation in cases of abuse at this point in time, I don't think we have enough information or enough guarantees for the safety of that woman and those children so that we could actually go forward suggesting mediation in abuse cases. In fact, most trained mediators will screen out cases of domestic violence because they themselves feel it's not appropriate to be mediating in that situation.
Ms. Carolyn Bennett: I guess my point is that in times of diminished resources these women aren't doing very well in court either, and in a 45-minute summary run by a judge—
Ms. Eileen Morrow: I don't think it's actually appropriate to replace a public and scrutinized system, with a history of case law in a public forum, with a private mediation situation when we are not able to guarantee the safety of those people. I think resources should be a secondary issue. We have a duty to protect. That is our first duty. And then we can talk about—
Ms. Carolyn Bennett: But if we had unlimited resources—
Ms. Eileen Morrow: —mediation in certain situations. But I wouldn't replace it. I don't think it's well enough formed. I don't think it has enough guarantees in it to be an alternative to a system. I think we need to improve the family law, obviously; I'm not necessarily saying that's working either, but it is public, it is accountable, and it has a history of case law that we can use to build on a future that will be fairer to all families.
The Joint Chair (Senator Landon Pearson): Thank you very much. I hate to keep rushing, but it's just that we have so many people coming in front of us and we have to stay on time. Thank you for your very powerful presentation.
We invite the next witnesses to come to the table, please.
The Joint Chair (Senator Landon Pearson: I'd like to welcome our next panel. Representing the Girl Guides of Canada, we have Elaine Paterson, who's the chief commissioner; and Margaret Treloar, president elect. Also, representing the York Region Board of Education, we have John Vander Kooij.
Between the two of you, you have 40 minutes, because after that we have another witness separately before lunch.
Would you please start?
Ms. Elaine Paterson (Chief Commissioner, Girl Guides of Canada): Thank you. I would like to thank the Special Joint Committee on Child Custody and Access for the invitation to appear as part of this important consultation process.
I'll just give a little background information about Girl Guides of Canada. Girl Guides of Canada/Guides du Canada is the largest organization for girls and women in Canada, with 200,000 girl members and over 40,000 women volunteers. As a member of the World Association of Girl Guides and Girl Scouts, we are one of 136 countries in this worldwide movement, with 10 million members around the globe. Within Canada, we have programs for girls from five to 18 years of age, with units in every single province and territory.
We have a history of providing educational and recreational programs for Canadian girls since 1910. Our mission reads:
Girl Guides of Canada-Guides du Canada is a Movement
for girls, led by women. It challenges girls to reach
their potential and empowers them to give leadership
and service as responsible citizens of the world.
Shifts in demographics involving girls and women are trends that we follow very carefully. In planning our programs, we have taken into account this trend to more single-parent families and children living with a family break-up.
Ms. Margaret Treloar (President Elect, Girl Guides of Canada): Girl Guides of Canada/Guides du Canada strongly supports your initiative. We believe, as stated in your language, there is a 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.
Along these lines, we believe children need to feel loved, secure, and safe. They need to know the divorce is not their fault. They need to know both their parents and their extended family will continue to be a part of their lives. They need to know their viewpoints and their wishes have been considered when developing a family plan for how to move forward in their family life. They need to feel empowered to ask for changes to the plan without being made to feel disloyal to either of their parents or other members of the family.
Children should have a say in their custody and access. This does not necessarily mean they have the determining say, but their wishes should be considered. In all cases, confidentiality should be absolutely guaranteed to protect the child emotionally and physically. Children should have access on a continuing basis to a neutral third party to negotiate changes in schedules, discuss problems that arise, and talk about pressures they may be under from a parent.
We feel consideration should be given to the rights of the extended family and the role they play in the child's life. As well, there are many cultural norms regarding the place and value of children within a particular society. These may have impact on the way decisions are made, and they need to be taken into consideration. We must acknowledge that this is a difficult time for all parties, parents and children, and it will be challenging to make good decisions that are fair to all. It is most important that this be a winning situation for the children.
Ms. Elaine Paterson: This is one of the few times that we, as an organization, have seized the opportunity to advocate on behalf of any group. It is our belief that this issue involves the health, safety, and emotional well-being of large numbers of Canadian children, and as such is a cause worthy of our intervention.
Girl Guides of Canada/Guides du Canada has a breadth of experiences with issues involving girls and women because of our large numbers and our long organizational history. Our program is always centred on the needs of the girl child. From the age of five, guiding programs trains our girls to make reasoned decisions and choices. We have a great deal of faith in their ability to have input into these difficult family decisions as well.
We would be happy to give you further examples of how custody and access issues impact on guiding, if you choose to ask questions about those. Thank you very much.
The Joint Chair (Senator Langdon Pearson): Thank you.
Mr. Vander Kooij.
Mr. John Vander Kooij (Coordinator for Co-op Education, York Region Board of Education): Honourable members, thank you very much for providing me this opportunity. What I'm presenting to you is probably more along the lines of what's happened to me personally, and other people I know, and how some of the changes I would recommend could make it better for the children.
One of the points I've made here is that there should be mandatory mediation by paralegal people who are experts in family law, and which could be initiated by either parent, forcing the reluctant parent to be involved. The reason for this is that I feel the legal system is primarily an adversarial system. The only winners are usually the lawyers, financially. When the case is over, most people are not able to communicate rationally with each other, and the fight does not end there.
Mediators who are assigned must remain with the case at all times. People will lie if they think they can get away with it. In many cases it will eventually catch up to them, but often too late for the children. When the same people are involved with an entire case at any required time, they will be able to see a trend, and will easily be able to catch them sometimes not telling the truth.
When people feel they have been done wrong to they will often try to get even. This is when children can become easy victims. They may hear terrible stories about their non-custodial parent and start to believe they are true. In my career I often hear a student say negative things about one of their parents. When I question them about this in private, the usual trend is that this is what they hear.
When the children are young, they are very vulnerable and easily influenced. When one parent leaves, it causes a lot of trauma in their lives. This will result in their trying to please the other so they will not lose that one also.
The last summer I spent with my oldest son Karl, this seemed to be the case. Our first two weeks was a fantastic vacation. We planned the next two weeks together, even picked out a campsite together. When I came to pick him up, his mom said I had to have him home in one week, even though we had agreed on two. I told my ex-wife that I would not keep him against his will. Before Karl left, she called him out of the car, and whispered to him. He nodded his head and walked back sullenly to the car. She gave him a big hug and off we went.
That week, before the last day was over, he asked me what day it was. I told what the day was going to be, and he said “Daddy, I want to go home tomorrow”. I asked him why, but he never told me. He did not know, he said. During the ride home he was very quiet. It was our last holiday together.
There's an article in Chatelaine of April 1998, on page 30, called “Helping Kids Cope”. The seven- to 11-year-olds, some studies have shown, are the most vulnerable to long-term effects of divorce. They are also more likely to put themselves in the middle of the conflict. “Reassure them that they can love both mom and dad”, the author says. My sons were seven and nine when they were effectively turned against me.
Government guidelines must be simplistic regarding income and assets—I'm covering a lot of territory here, I'm afraid. Simple formulas that are easy to understand will likely be deemed fairer by all people involved.
Assets should be frozen and evaluated by a group of experts, and the ability and need to pay support by whom and how much should also be evaluated. Forcing one parent to maintain the same standard of living for the other after divorce is not humanly possible with limited money and only causes more difficulty. Is one person entitled to have the same standard of living and not the other? Is this fair to the children? Again, this only shows a total disregard for one of the parents.
Changes due to circumstances should be considered. If a non-custodial parent loses their job through no fault of their own, or gets a reduction in income due to company restructuring, they should have their support payments reduced. Also, if the custodial parent is capable and/or starts working, and has rental or other income, that all should make an effect on the payments. Are both parents not responsible for raising of the children financially, emotionally and academically?
On custodial arrangements assisted by professional groups, such as the official guardian's office, even though what they did in my case did not help me very much, I felt it was better than nothing.
Consideration should be given to one's ability to parent. A parent who is a drug or alcohol abuser should not be given custody if the other parent is a better role model. The case of the mom and son who died in a fire a few years ago in Mississauga is a point there. It seems customary for the wife to keep the matrimonial home and therefore have an unfair advantage in getting custody of the children, providing there is a matrimonial home.
On access arrangements, supervised access should be allowed in difficult situations. It is important that the entire picture be looked at in order to see what is happening. If children's behaviour begins to gradually change and they begin to draw away from one of their parents, it is important to find out why. This is especially important if the children had a very positive relationship before the divorce and then, for some reason or other, no longer want to have anything to do with the non-custodial parent. In my case, they were told many terrible things about me.
During the first summer, my youngest son Michael would cry when I had to drop him off at his mom's boyfriend's house. When I was able to get the official guardian involved, everything seemed normal until the last visit at my apartment. When the case worker went to leave, Michael ran to the door and asked her to not make him stay with his dad. “I want to live with my mom” he said.
I was stunned at this. That night Michael cried at bedtime and asked to go home. I was able to get hold of his mom that night and she picked him up shortly after midnight. It was the last night he attempted to stay over. Michael was seven years old at that time.
That fall he came over twice with his older brother Karl. He told me he wanted to stay over but was scared. He asked me to move the beds around, which I did. He said he was still scared and very sad because he wanted to stay but didn't dare stay overnight. He asked if I would I take him home and I did.
Karl stayed until the next evening. We had a good time playing with the road race set we had set up the day before. They both asked me not to take it down because they wanted to play with it again. They have never come back.
That was November 12, 1994. I went to their home every two weeks for a year and a half before I wrote them a letter saying I could no longer do it. I found out in May 1997 from a student at my school, who babysat the boys, that she quit looking after them because of all the bad things their mom was saying about me. She did not know how to tell me that earlier.
The Joint Chair (Senator Landon Pearson): Sorry, but we're really interested in your recommendations.
Mr. John Vander Kooij: Okay.
Access and support payments should be closely connected. A parent who turns the children against the other parent should lose custody and the right to see the children, other than by supervised access. I tried to get supervised access but was denied because a court order said I did have access, although I could not enforce it because my wife had effectively turned the children against me. I offered to pay for supervised access, but I still could not get it.
I don't believe any children should be denied the right to love and be loved by either of their parents and their extended families. My sons have lost 25 cousins and 16 uncles and aunts through this.
The Joint Chair (Senator Landon Pearson): Thank you very much. I think we thought this was going to be primarily a session on how children could have their own voice in some way, and that some of your recommendations would be on that. That was how I hoped the questions would come.
Senator Mabel DeWare: First I would like to mention to the group from the Girl Guides that I'm a former leader of guides in New Brunswick and I have a daughter and a daughter-in-law who are now taking over leadership there on the provincial level, so I'm quite aware of the work the volunteers put in. It is a lot of time and it's very dedicated toward the girls.
You mention here that you could give us some information about how custody and access have affected some of the girls you've dealt with. I would like to hear your comments on that, please.
Ms. Eileen Paterson: Thank you. We don't have anything except anecdotal data because we, to be honest, didn't hear about this until a week ago. We certainly took the opportunity at a training last weekend to speak to some parents about their girls and certainly about the girls they lead. Some of the issues we run into are visitation issues with the non-custodial parent and how that affects the girls and their continuing with their Girl Guides affiliation.
We have heard stories of little girls who have to attend two Brownie packs because mom wants them to go to one and dad wants them to go to the other, and this type of thing. They're very hard on the children.
We run into specific legal issues with regard to the non-custodial parent picking up children from camps, meetings and outings, such as whether they have permission to access the child at that point, visitation at parents' days and things like that.
With regard to our international events, one of the examples I will give you is that the country of Mexico will not allow an under-age person into the country unless you have the form signed by both parents. They don't really care whether it's the custodial parent or not: if both parents are living, then they have to sign. This is an issue we've dealt with on some of our international trips as well—
Senator Mabel DeWare: Really?
Ms. Eileen Paterson: —to prevent parents from taking children out of the jurisdiction.
Senator Mabel DeWare: Some of the things we don't think about sometimes!
Ms. Eileen Paterson: Exactly. The children are so challenged. If it's a parent-child night, who does the child invite and then how does the other parent feel? Then it becomes stressful, and really, you get behavioural problems with the children because of this type of thing. It really does affect the girls.
Senator Mabel DeWare: It's interesting you should say that, because some of our documentation shows that. I had a letter from a non-custodial dad who said that the school would not even inform him, even though he asked, when there were events going on that he could attend or even to get access to his daughter's marks.
I would also like to mention to our...I'll let it go and I'll come back to you.
The Joint Chair (Senator Landon Pearson): Thank you, Senator DeWare. Mr. Mancini.
Mr. Peter Mancini (Sydney—Victoria, NDP): Thank you, Madam Chair.
Thank you for being here today. I have some quick questions, first to the Girl Guide leaders.
You indicated in your presentation that there was a need for the children to have a neutral third party to talk to about changes in access. Is that a role that you can see organizations such as your own playing? We've heard a tremendous amount about mediation. Is there a role for volunteer organizations that work with children to provide that mediation? Is that something the Girl Guides are looking at? Is any other organization you know about looking at it?
Ms. Margaret Treloar: I think it has come to our attention that we do provide that role, whether we've actually made a conscious decision to do so or not. At the national level, where we're involved in development of programs for the girls and leadership training for the adults involved in the program, our women leaders are increasingly faced with this type of mediation.
In fact, it's part of our training now to advise leaders on how to handle these situations, and in particular how to get professional help, because we are certainly not qualified to provide an official mediation role. But as we've heard, many of the situations, like this example, aren't official situations. These are day-to-day decisions in situations that each of these children finds themselves in, that the parents find themselves in.
So I think there's a role that is being played as well as one that perhaps could be played.
We certainly have run into occasions where children have been sent to camp for two weeks, which is a wonderful, positive experience if you're a member of Girl Guides, and when the time comes for the parents to pick them up, a single parent will come to pick them up and tell the child that “Daddy has moved out in your absence”. It's a horrendous thing to do to a child. So then we as leaders are faced with dealing with aftermath of that type of situation. As I've already said, our women certainly do the best job they can. Some of them are trained social workers, but many of them are not.
Mr. Peter Mancini: I just have two quick questions. The first one is about training. Having been a family lawyer for some time, one of the hard things you have to do in those cases is sometimes bring in the very people like the Girl Guide leaders as witnesses in a custody dispute, which is never pleasant, especially for the witness who comes in.
I have two questions here. First, are there programs offered for the women who work with those children? I guess I'm asking if there is witness training. Is there some kind of preparation for them? You may have answered a little of that already.
Secondly, I'm going outside your area of expertise here, but do you know if the Boy Scouts or any of the organizations that deal with young men have similar programs and similar experiences that you've talked over with them?
Ms. Eileen Paterson: I'm sure their experiences are very similar to ours. Scouting, like guiding, makes great efforts to train the leaders. One of the training areas that we're focusing on now we have entitled “Contemporary Issues”. These are issues that affect the girls of the nineties, who are looking to the new millennium. They include things such as body image issues for girls, dealing with HIV/AIDS, and obviously dealing with these family changes and that type of situation.
Our leaders are trained in these issues. Our leaders are all volunteers and give their time freely, and we do an excellent job of training them with the resources that we have. We certainly don't have any specific training for leaders who have been called as witnesses. But I do know of a case—actually, it's current in B.C. at the moment—where two of our Guide leaders are being called as witnesses in a child custody case.
Mr. Peter Mancini: I have one quick question for the other witness, if I might.
I appreciate what you're saying. There was an indication that the courts ought not to force—I think I've written your comments down correctly—one parent to maintain the same standard of living at the expense of the other, since this is not fair. Would you agree with me that there's a certain practical reality upon divorce such that in a family unit where there was either one income supporting a family unit or two incomes going into the same pot, realistically, upon separation and divorce, there are now two homes to maintain, two power bills to pay, two sets of groceries, and more transportation? So in reality, usually both parties become impoverished. There's simply not as much money in the same pie to divide, and that money's got to be divided more ways.
Mr. John Vander Kooij: I don't feel that the monetary issue is a large issue in my case. It's just one of the points that I felt should possibly be addressed.
It has a great effect on both people. I certainly wouldn't want my children to do without what they had before.
Mr. Peter Mancini: That's where I was going to leave it. At the end of the day, those resources have to be focused on the children.
Mr. John Vander Kooij: That's correct. If you find parents, non-custodial parents, who are not denied access and have a good relationship with their children, I think you would have a hard time finding a parent who would not want the best for their children and have everything they had before.
Mr. Peter Mancini: Thank you, Madam Chair.
The Acting Joint Chair (Senator Mabel DeWare): Senator Jessiman.
Senator Duncan Jessiman: You say you haven't had access for going on four years now?
Mr. John Vander Kooij: That's correct.
Senator Duncan Jessiman: Have you continued to pay custody?
Mr. John Vander Kooij: Yes, I have.
Senator Duncan Jessiman: Has the court been involved at all to give you access prior to the four years?
Mr. John Vander Kooij: The official guardian recommended that the children receive counselling after what Michael did the day that she made her last visit to my apartment. At that time, I was into boxes and moving into a home.
The recommendation was that I get Karl as much as I had before, plus one evening during the week, and Michael would take counselling so that he wouldn't be afraid to stay overnight for whatever reason that might be. That was never initiated. Fortunately, a relative of mine offered to pay the legal fees for me to take that issue to court, which was part of our divorce agreement.
Unfortunately, the psychologist who was involved, Dr. Telegdi in Bradford, indicated after about nine months that it wasn't going to work. That was because the children's mother continuously had to change appointments on a regular basis, so she was never seeing them more than.... I think she saw them three or four times, and it was at about three-month intervals.
She said it was a waste of time. The kids were very much already changed, manipulated against me, and to try to pull them out of the home legally and force them into a foster home would do more damage than if I left the issue alone.
After that point, I continued to visit, or at least attempted to pick the kids up for about a year and a half after that last visit I had with the children. It went until it got to the point where I had to literally watch their mom and them laugh at me when I came to the door. The door locked through a screen door.
I just felt it was very foolish of me to continue to do that, but I stay in contact through their birthdays and special events, when I still send them cards, letters, and gift certificates.
Senator Duncan Jessiman: Do you get any replies?
Mr. John Vander Kooij: No, I don't.
Senator Duncan Jessiman: There's no question that you could go back. If what you're telling us is true, you probably could get an order from the court to allow you access, could you not?
Mr. John Vander Kooij: I have spoken to a lawyer about that. The lawyer indicated to me that I would be fighting a losing battle. He said that he would be happy to take my money, but he said the odds of getting anything out of it would be between slim and none. He suggested I leave it be. He said the kids will grow out of it, realize that I am not a bad person, and eventually will come back to me.
Senator Duncan Jessiman: A sad situation. Thank you.
Now, to either of you ladies, you had said that both parents and extended families should be involved with the children before, as well as after, divorce.
Are you giving us that information from what you've read or from your experience? Tell us how that came about. I agree with the statement, but how did the Girl Guides get to that? Give us that information.
Ms. Margaret Treloar: Generally speaking, I think it's an opinion that has arisen through consultations with some adults in the organization, particularly with some of the adults who are social workers who work in this area and who have advised us about this. It seems to fit with the experience of leaders in the field.
Senator Duncan Jessiman: Would the answer be the same? You've brought up something that I, at least, thought was quite novel: that children should have some say. I'm assuming that would be before an order for custody is made. Is that what you're suggesting?
Ms. Margaret Treloar: Definitely.
Senator Duncan Jessiman: You were also saying that it should be in camera, separate and apart from the parents. Are you suggesting that it should be with the judge or mediator or whoever it is making the determination?
Ms. Margaret Treloar: I would suggest that it be with a mediator rather than with a judge, in order that it would be a less formal situation.
We certainly find that our girls as young as five are capable of making some pretty good decisions. If the fear of appearing like they don't love one parent is taken away, I think most children could probably have a great deal of wise input into their own lives. This is a huge thing in their lives.
Senator Duncan Jessiman: Because you're a worldwide organization, do you know whether that is in effect in other jurisdictions, and how it's working in them?
Ms Margaret Treloar: I don't know the answer to that.
Senator Duncan Jessiman: Thank you very much.
The Joint Chair (Senator Landon Pearson): Thank you.
As chair, I don't often get the chance to ask a question myself, but I'd like to since there's no one else on the list.
I'm particularly interested in the role of voluntary organizations and youth-serving organizations—not just yours but the Y, or any other one. Have you had materials provided for you, such as the one of some years ago called Put the Child First, on the sexual abuse of children? Would something like that be useful to you? Have you had materials related to children in divorce situations in terms of custody and access?
Ms. Margaret Treloar: I don't believe we have. To my knowledge, we've never had that. The Girl Guides were instrumental in part of the development of the Put the Child First program, and it certainly has been a program that we have used widely. To answer Mr. Mancini, we have used it in the training of our Guide leaders to help them to identify and deal with situations of child abuse in any way. I think any materials that could be provided to an organization such as ours would be an addendum to our training, though, and we would make sure they were widely spread.
What we can offer to you as a committee is a tremendous delivery system, because we reach all corners of Canada. If materials such as this came up, I think they would be very helpful.
The other very helpful piece that we've used—I know Mr. Gray was instrumental in it—was the piece on the screening of volunteers, on the education on that, and we certainly have spread that widely across the country. So we do carry out this kind of thing.
The Joint Chair (Senator Landon Pearson): It has certainly given me an idea. If our recommendations come forward and do result in a change particularly in the language within the Divorce Act, I think it would be helpful for the children you touch in a kind of neutral way to have access to understanding what parenting means, access to the fact that there's going to be some prevention, which I feel strongly about. Some of the young people you're dealing with are not only themselves perhaps suffering the consequences of what has happened, but need to be prepared for their role in relationships as they get older. Would that kind of material be useful to you?
Ms. Margaret Treloar: It would be extremely useful. Certainly at the various levels of the program, we do discuss social issues with our Pathfinders and the girls of our senior branches—these are girls who are from 12 to 18 years of age—as part of the program. I agree with you that we should offer them materials that would be somewhat neutral as part of our education program but that could be useful to them in their later lives. That's part of what we're doing: training them to be responsible citizens of the world.
The Joint Chair (Senator Landon Pearson): Thank you very much.
Ms Margaret Treloar: You're welcome.
The Joint Chair (Senator Landon Pearson): Unless someone else has another question, I'll thank you for your appearance, but we still have a few minutes.
Mr. Paul Forseth (New Westminster—Coquitlam—Burnaby, Ref.): I want to zero in on something, if I could have some very quick, short answers.
I take it that in retrospect, when you first realized that you were going to have a separation or a divorce, you got involved in the superior court rather than the provincial family court system.
Mr. John Vander Kooij: Actually, I was not the one who initiated litigation. When we did separate, I moved in with a family member and was served papers probably three months after. Even at that time we still had joint bank accounts and my paycheques still were deposited into a joint account.
Mr. Paul Forseth: And during that period of time did you have some informal arrangement for access?
Mr. John Vander Kooij: Initially the kids were afraid of me because she told them that daddy was sick and I had to go somewhere and get better. When I tried to pick them up they wanted nothing to do with me. I asked for counselling for the children, which she agreed to take them to. After about 20 minutes with the counsellor they were both sitting in my lap wanting to come home with me.
Mr. Paul Forseth: So your analysis at this point in time may be quite correct. The court system is a very blunt instrument at this point to deal with those deep psychological issues of alienation. I wanted to perhaps use your case as an example of way back in the beginning, about access to mediation services and alternate dispute-settling mechanisms rather than, as a surprise, being served with Supreme Court documents, and all of a sudden then you're into the game of the affidavits and having to get a lawyer and you're stuck at the Supreme Court level.... Starting at the front end of your story, I thought we might be able to learn and apply that to some general recommendation.
Mr. John Vander Kooij: I thought the whole issue became extremely adversarial, where it felt as if we were in a very serious fight that I wanted no part of. I didn't feel there was any point, that anyone could win in that situation. The ultimate losers were my children. Fortunately, because I'm in the educational business, I am in contact with their teachers. As a matter of fact, I'm visiting there on Thursday after the kids leave the school again. I do get report cards, I do get results on how they do. Both of them have become, especially my younger son, extremely violent in school. My younger son has been involved in altercations with older kids—much older than he is—where he's beating them up for his big brother because his big brother isn't as big.
Mr. Paul Forseth: So in retrospect, looking at the historical situation, do you have any advice to us about how it could have been different at the very front end if there had been other services or other mechanisms available?
Mr. John Vander Kooij: If immediately upon seeing that the kids were being turned against me, there was a mechanism for me to go to where I could say, listen, there a problem here. I did call the official guardian's office and talked to the person who did the counselling, who actually did the evaluation of my ex-wife and myself with the children. She simply apologized and told me who I could contact at the Clarke Institute for help. I did follow that up. I followed up with other areas and got nowhere. There was nowhere I could go to try to get anything. Then, after things really went bad, I tried to get supervised access. Again I was denied. I offered to pay for it and I was still denied.
Mr. Paul Forseth: Denied by whom?
Mr. John Vander Kooij: The system. I called the people who were involved with the supervised access through Simcoe and through York Region to see whether I could get their program to have the kids taken there by their mother. I would meet them there, I would visit with them while I was there under supervision—
Mr. Paul Forseth: So this is a community organization, and they weren't able to help you at that point.
Mr. John Vander Kooij: Actually, if I remember right, I was talking to some people in Vaughn. I never did visit the office personally. I did this all by phone.
Mr. Paul Forseth: This wasn't a court order.
Mr. John Vander Kooij: No. The court order says I do have access.
Mr. Paul Forseth: Those are all the questions I have.
The Joint Chair (Senator Landon Pearson): Thank you very much for appearing. We were glad to hear from both of you, although they were slightly different perspectives.
Mrs. Elaine Paterson: I would like to leave you copies of the Girl Guides of Canada vision mission and principles. They're in English and French, and if it will help to forward the committee's work, we would be happy to help with any other questions.
The Joint Chair (Senator Landon Pearson): Thank you very much.
I'd now like to ask Saro Kumar-McKenna to come forward, with her mother, to make a presentation in front of us.
I admire your courage for doing so, and I hope you won't find this...it looks kind of formal but in fact most of us are not all that formal, and we welcome what you have to say. Could you speak for a few minutes, and then, if you wouldn't mind, we'll ask you some questions.
Ms. Saro Kumar-McKenna (Individual Presentation): Sure. If you wouldn't mind, I would like it if my mom began, and then I will make my statement.
The Joint Chair (Senator Landon Pearson): Okay, fine. Your mother is Sheila Kumar-McKenna?
Ms. Sheila Kumar-McKenna (Individual Presentation): Right. Good morning. This is my only child, Saro.
As a little bit of background, I happen to be an immigrant. Canada is the seventh country I've lived in, and thank God, I finally got it right.
I'm sorry I can't speak French with you this morning, but I have been living in Toronto for almost 16 years and I have almost forgotten how.
I thought I'd just do that to be a real Canadian, which, by the grace of God, I believe I am.
We're not terribly well prepared to speak to you, but we're grateful to be here. Saro remembers Senator Pearson addressing her school, and that made it much more comfortable, much easier to come here today.
We are currently, and have been for some years, the victims of legal abuse. We are struggling in a dreadful situation of poverty. It's so difficult that I can't even tell you instantly what our situation is. It's kind of like walking across a tightrope, and if you look down you get really scared.
If I look at our situation on paper, I just see it doesn't work. Two people cannot live in downtown Toronto on less than $10,000 a year. Our lives are not viable, but we live them a day at a time. We keep putting one foot in front of the other. We've been doing it for a long time, and by the grace of God, with amazingly good results.
In terms of my own life, I can't quote to you achievements that are publicly recognized by which you would be able to tell that I'm doing well as a human being, but I think if I tell you that I feel I am, that will have some value for you. But the more publicly recognizable achievements of our family are provided by my daughter, who is a two-time national science award winner and private school debating champion in Toronto. She beat out the boys of Upper Canada College. She has attended various conferences. She is doing remarkably well. She is giving the lie to the statistics about children of divorce living in poverty.
I want to ask you from the bottom of my heart this morning that when you are examining legislation around issues of custody and access, you take great care not to add to the burdens of those who are already doing more than they are humanly able to do. I'm here to ask you not to be theoretical, not to apply a theoretical notion of balance. I'm asking you to institute a law that finds the means to take account of the situations that exist, and that empowers and supports those who are forthcoming and eager in meeting their child's needs.
I've been separated for a great many years, since Saro was all of three years old, and she's fifteen. Speaking from my own experience, I realize that my husband is very accomplished at sitting in the offices of professional people, of lawyers, of whoever he comes in contact with, and persuading them that he is very eager to play a role in his daughter's life. This is not what Saro and I experience when we try to deal with him.
The Joint Chair (Senator Landon Pearson): May I just ask—we have a very short time, and there will be some questions. Maybe Saro has something to say before we move to questions.
Ms. Saro Kumar-McKenna: Thank you. My name is Saro Kumar-McKenna, and I'm fifteen years old. I'm here today because my mom and I have endured, just about for the length of my lifetime, difficulties with my dad. And now the legal system is clearly being used to abuse us.
The Dionne sisters, in their statement, said:
If we have a final message to pass along, it is one
directed at all children.
Never be afraid to speak out
against injustice. Never be afraid to fight for
what is right.
I think that sums up what we are trying to do, and what we have been doing for as long as I can remember.
I and other Canadian children badly need you lawmakers here to act wisely. Please, please do not institute laws that make life harder for the parents to somehow manage to meet the needs of their children, parents who can translate crumminess into love and laughter and a happy life.
We need you not to institute laws that assume that if a person is a biological parent and perhaps professes far and wide that they should have this or that role in their child's life, that necessarily means they are actually willing to be loving parents and play a positive role in their child's life.
I can speak from the heart, from my own experience. As a the child of a parent who has professed indignantly that he is a good father, who if he were to come here today to speak to you would paint a picture of my life with him that would be absolutely unrecognizable to me, who has always been in denial and who was always interactive with me in a way that completely denies my own experience and what I lived through—it's hard to imagine if you haven't been in the situation what it's like to try to be dealing with a person, and to try to be solving problems with a person who completely refuses to acknowledge the validity of what you're saying from the outset, who denies and denies and denies what you're saying and what you've lived through.
When you've been doing that for so long.... After coming back from a weekend at my father's house, I would be so depleted in every way. I would be physically exhausted because any sleeping schedule I had had been completely disrupted. I would be hungry; my eating schedule was also completely disrupted. Emotionally I would be extremely depleted. I would need my mom to sit with me and talk with me and hug me, and let me know that I was a good person and a good daughter.
I went through this for many years, having Mondays after a weekend be just terrible, where I wouldn't be able to learn to the best of my potential and where I wouldn't be able to interact to the best of my potential. After years of this and trying to explain to my father what it was like and yet have him completely say there was nothing wrong, I decided I couldn't do it any more. It was depleting my life too much to have to go through it.
You come to a point where you decide not to continue with that any longer, and then societal messages start. People say to you, “Well, what's wrong with you for not wanting to go to see your father?” They assume there must be something innately unloving or unforgiving about me because I decided it was time to stop putting up with what was going on. The legal system time and time again called on me to explain my feelings and the justification for my feelings to professionals or lawyers, and yet seemingly never called upon my father to account for his behaviour toward me which would have made it perfectly understandable that I would feel that way.
Children know very well that when a teacher asks the same question repeatedly, it means the answer wasn't right and they want a new one. My experience of being asked time and time again why I didn't want to see my father was that there was something wrong with that; somehow they thought it was bad.
I would ask that, from the outset, any discussion of this and any action that is taken on these issues should take into account how children receive these messages, and recognize how very important it is to ensure that children not get messages that they are somehow bad. Some people don't know about the situation and have a very superficial, if any, knowledge of the situation.
I wanted to share with you my own personal experience and how I think that ties in with what you've been talking about.
The Joint Chair (Senator Landon Pearson): Thank you very much. Do you mind answering a couple of questions now?
Mr. Paul Szabo: Thank you very much to the two of you.
Just to clarify your testimony here today concerning your own personal cases, you're not offering any other information with regard to generalizations about situations.
I'd like to know your views—either of you—on some of the discussions we've had here about getting away from custody and access and starting to talk about child-centred approaches and the best interests of the child. I sense one direction here, but maybe you could tell me, in your words, whether you have a recommendation for the committee about what the process should be when two parents stop loving each other but the child still loves them, or each of the parents still loves that child. What are you recommending to the committee about how we in Canada should approach this very difficult question?
Ms. Sheila Kumar-McKenna: I was put under a lot of pressure to agree to joint custody. I now look back on that as something preposterous. I was slow to recognize how unworkable the situation was. I was too eager to try to extend myself further to accommodate her dad.
The system has failed to adequately enable our needs to be met. It has asked us to deal with financial issues separately from custody and access, but we're human beings; we don't have two departments. I can't react to somebody who is like a mugger, in my mind, like a thief...I cannot view them as an ordinary good person in my life.
Mr. Paul Szabo: Okay, could you help me a little bit here? I'm sorry, but I don't quite understand what the problem is with your ex-husband, what exactly he is doing or not doing that is really the reason you're here.
Is it that he's not paying you money? Is it that he maybe has a different philosophy or attitude towards your child when he's with her, if he's with her? What is wrong? What wrong are we trying to deal with here?
Ms. Sheila Kumar-McKenna: I spent a lot of years of my life trying to figure out what's wrong with my husband, and I cannot put it easily in words to you.
He was recalcitrant, immature, obstructive. He interpreted everything we asked him to do to make life work as my trying to tell him what to do. It was like having a teenager in your life—not like this teenager—a difficult teenager who wants to be difficult over everything, who would make me run after his retreating back when I was trying to give him the cough medicine my daughter was taking and explain to him the regime under which she had been taking it.
He could not deal with me, and yet he sat in professional people's offices and said that he wanted to have joint custody. He wanted control, and he wanted me to do all the parenting.
Mr. Paul Szabo: Thank you, Madam Chair.
The Joint Chair (Senator Landon Pearson): Yes, Saro, you had a comment.
Ms. Saro Kumar-McKenna: Yes. I'll just say that I know I got to a point in my visits with him when I realized that my mom and I were making it work, that we were the ones holding up the situation. We were the ones who would have to undo the damage that had been caused by the visit, so that afterwards, as I explained, I would have these terrible days where I would have to sort of be filled up again with love and with sleep and with food.
It came to a point where we realized that this was a destructive and disruptive force in our lives, and yet we were completely having to make it go on, that in the interest of having access and in the interest of thinking that it was always the very best thing to have a relationship with both parents, what we were doing was enabling a situation that wasn't working, and it was harmful to me.
We came to the point where we realized that we couldn't keep doing that, and what a relief it was afterwards when the visits stopped, when I could lead a continuous life, free of this emotional distraction and disruption. It was a vastly different life that I led afterwards and that I'm leading now.
The Joint Chair (Senator Landon Pearson): Thank you.
Senator Jessiman and Mr. Mancini, and I'm afraid that will be about all we have time for. Also, Mr. Forseth wants to ask a quick question.
Senator Duncan Jessiman: I have a couple of questions for the mother.
As I understand it, you've been separated for 12 years.
Ms. Sheila Kumar-McKenna: Yes.
Senator Duncan Jessiman: Are you divorced?
Ms. Sheila Kumar-McKenna: No.
Senator Duncan Jessiman: You're not divorced. Does your husband pay you money to maintain yourself?
Ms. Sheila Kumar-McKenna: That is very hard to answer.
Senator Duncan Jessiman: Is there a separation agreement or a separation order?
Ms. Sheila Kumar-McKenna: There is an order for him to make payments, which are seriously in arrears.
Senator Duncan Jessiman: Are there payments to you? I'm talking about you, first. Are there maintenance payments for your welfare, separate and apart from your daughter?
Ms. Sheila Kumar-McKenna: He was ordered to pay some spousal support. He hasn't paid any money to my hand since 1989.
Senator Duncan Jessiman: So what you're saying is that there's an order outstanding now that says he was to pay you x dollars a month—
Ms. Sheila Kumar-McKenna: Yes.
Senator Duncan Jessiman: —and he's in arrears for nine years?
Ms. Sheila Kumar-McKenna: No, he's not completely in arrears. He paid the mortgage on the house because he wanted to preserve his investment in it.
Senator Duncan Jessiman: Well, is he in arrears or is he not?
Ms. Sheila Kumar-McKenna: Yes, because the mortgage on the house is less than the amount he was ordered to pay.
Senator Duncan Jessiman: All right. Now, he also has to pay amounts for your daughter—
Ms. Sheila Kumar-McKenna: I also want to say that he has since come under the Ontario guardian and trustee, which is the office the Dionnes were under. He had a serious illness; he's now under the Ontario guardian and trustee. They make some payments on his behalf, but they are not what was ordered under the original order, and they have not paid the arrears.
Senator Duncan Jessiman: Because he's had a serious illness, is that right?
Ms. Sheila Kumar-McKenna: Yes.
Senator Duncan Jessiman: So it's not his fault that he has a serious illness. No, okay.
What about the payments for the child?
Ms. Sheila Kumar-McKenna: What I just said covers both categories of payment.
Senator Duncan Jessiman: I see. Has he been physically abusive to your child?
Ms. Sheila Kumar-McKenna: No, not to the extent that is ordinarily portrayed as physical abuse, but there are instances in which he crossed the line.
Senator Duncan Jessiman: How long is it since these visits have stopped?
Ms. Sheila Kumar-McKenna: Access visits have not taken place for three years. They have seen one another, but not in what you would call access.
Senator Duncan Jessiman: Is that governed in any way by anything the court has done by way of order, or has it just happened?
Ms. Sheila Kumar-McKenna: That was absolutely spontaneous. The thought had never occurred to either of us that we might just drop that bird. One day, it was a completely spontaneous thing. We are incapable of fighting that battle any more. We had lost it. We were unable to deal with things. One day, it was just like it was no more.
Senator Duncan Jessiman: One last question: are you employed?
Ms. Sheila Kumar-McKenna: No, I'm not.
Senator Duncan Jessiman: Have you ever been employed?
Ms. Sheila Kumar-McKenna: Not since I've been married. I've done a little work as a calligrapher. I did very little work. It went to an insignificant extent.
Senator Duncan Jessiman: Have you tried to work?
Ms. Sheila Kumar-McKenna: My life has been pretty much taken over by the difficulties that came shortly after we came to Canada. There was parenthood, sudden poverty, separation, ill health, my daughter's ill health—she had serious asthma during her childhood—not having family support, and not having roots to turn to. I've done my utmost to explore what I could do by way of being employed, but I had married a nuclear physicist and moved to Switzerland when I was 24, so—
Senator Duncan Jessiman: Is this the same gentleman?
Ms. Sheila Kumar-McKenna: Yes. So my financial contribution to the family didn't seem to be vital. My contribution in other ways was what was appropriate at that time.
Senator Duncan Jessiman: Thanks very much.
The Joint Chair (Senator Landon Pearson): Thanks, Senator Jessiman.
Mr. Peter Mancini: Thank you. I have some questions coming out of this.
Saro, you've come before us, and I thank you for doing that and giving us your thoughts.
In custody and access cases in this country, there are different rules as to when children can testify before the courts. You indicated in your testimony that you got tired of being asked repeatedly the same questions.
I have some questions coming out of that. Did you in fact testify in the courts?
Ms. Saro Kumar-McKenna: Not in a courtroom in front of a judge—
Mr. Peter Mancini: Okay.
Ms. Saro Kumar-McKenna: —but to a dispute resolution officer and a children's lawyer. This was sort of within the system, but not directly.
Mr. Peter Mancini: In this country, when I say we have different rules in different provinces, I mean that in some provinces there are not advocates for the child or there are not dispute resolution mediators. Do you have any thoughts on whether a child should be allowed to testify in a courtroom setting? In many cases one of the parents will say to bring the child in, to let her or him tell the judge. It's a murky area, because we never know at what age that should happen or if it should happen at all. What are your thoughts on that?
Ms. Saro Kumar-McKenna: I know that I have asked repeatedly to be able to speak with the judge who has been listening to our case, to tell him my thoughts and feelings on access, partly in the hope of it being resolved once and for all, and also so that my truth can be heard in this process. The children's lawyer has been appointed to me, just to represent me, but I have found her involvement in this to be more silencing to my voice than empowering of it.
She is only allowed to address issues of access, but that is not the whole picture in my life. The other actions of my father towards me certainly make up my response to him. My response to him is in reaction to his response to me. I have asked that I be able to speak to the judge so that I can explain to him the justification for my feeling the way I do, because I have found in the past some assumptions to be made about my feeling this way that are completely incorrect. So I want to be able to speak with my voice and to really tell the judge.
Mr. Peter Mancini: Perhaps I can pursue that a little bit. That's what you're saying to me now. You're 15 years old and a very bright, articulate young woman. Do you think that would have been true at 10, 11, or 12 years of age? You've given some thought to this, but I have concerns about children, and perhaps I'm biased. I am interested to hear your thoughts on that, on children as young as 10, 11, or 12 years of age testifying in court. I don't know. You've been through this experience. Could you have been as articulate then as you are now?
Ms. Saro Kumar-McKenna: I know that my understanding of the situation and my journey through the situation has certainly changed in those years. It has solidified; it has never changed course. Since the time you're talking about, when I was 10 or 11, I have always felt the way that I do, but it has just strengthened over the years as I find out more and more about my father's actions.
I think that children should be empowered in this process to the maximum degree possible.
Mr. Peter Mancini: Perhaps I'll address this to your mother. One of the things that you said—
The Joint Chair (Senator Landon Pearson): Mr. Mancini, you're just about going over your five minutes. You can have one quick question.
Mr. Peter Mancini: You indicated that you've asked us to find ways where the courts or someone can determine those who best care for the children and not put them through a strong questioning. Would you agree with me that what you're saying is that we have to give tremendous discretion to the decision maker, and that the laws to some extent have to be very general to allow that discretion?
Ms. Sheila Kumar-McKenna: Yes, I think so. Also, we have to devise tools that do establish what is going on.
I would like to give you one example that was tremendously frustrating to me. My husband constantly claimed that effectively there was a joint custody situation and that he was spending a great deal of time...he was just as much a parent as I was. I was feeling like I was passing her over to a 16-year-old babysitter. I was feeling like I had to have everything pre-planned, everything prepared and given and explained to an unwilling partner. When I tried to convey this in the courts, it was very difficult to get across.
One example is that Saro is asthmatic. She had numerous emergency room visits; she had a lot of care for her asthma. She reached the age of 12—
Mr. Peter Mancini: Okay, I—
Ms. Sheila Kumar-McKenna: Can I just say this? She'd reached the age of 12 and her father had to call me once and ask me for her OHIP number.
Mr. Peter Mancini: But—
Ms. Sheila Kumar-McKenna: You cannot have the care of an asthmatic child up to the age of 12 and not know her OHIP number.
Mr. Peter Mancini: My only point on that is to say that there is no law that's going...we can't set up a regime of laws that say we must look at the parent to see if he knows this or if she knows that. What we have to do, I think, is provide that discretion to the judge, or the mediator, and then hopefully your evidence is then weighed accordingly.
Ms. Sheila Kumar-McKenna: And maybe—
Mr. Peter Mancini: But I'm out of time.
The Joint Chair (Senator Landon Pearson): Thank you very much.
I think we've come to the end of our time. I very much appreciate your being here, Saro, to appear in this room full of faces and I don't know what else. It was helpful to hear those words, that phrase that you said about empowering young people to the greatest extent possible. That is one phrase that I'll retain.
Ms. Sheila Kumar-McKenna: Thank you.
The Joint Chair (Senator Landon Pearson): The committee will resume at one o'clock.
The Joint Chair (Mr. Roger Gallaway): I wonder if the people in the room could take a seat, please, so we can get under way.
Welcome to our afternoon session.
We have with us this afternoon, from the Coalition of Canadian Men's Organizations, Mr. J. Kirby Inwood. From Equal Parents of Canada, Mr. Eric D. Tarkington is here. From In Search of Justice, we have Mr. Ross Virgin. And from Stepfamilies of Canada, we have Ms. Nardina Grande.
I'll start with Mr. Inwood. Mr. Inwood, five minutes, please.
Mr. J. Kirby Inwood (Coalition of Canadian Men's Organizations): Thank you, Mr. Chair.
I am representing and authorized to speak for approximately 200 fathers across Canada in seven men's groups under the umbrella of the Canadian Coalition of Men's Organizations. It is really an umbrella group to provide assistance to men and fathers in their struggle with the courts and justice and fairness.
I would like to take a second and note for the committee's benefit not so much a criticism but a constructive comment on the matter of notice given to me regarding my presentation today. It was totally inadequate. In fact, I received no notice whatsoever that I'd been invited to speak. I discovered it on the Internet at 2.45 a.m. on Monday. As yet, I still have not received notice.
Given that, I don't have the presentation prepared that I would have liked to give you. I will highlight some of the matters and ask that perhaps your administration department look into proper notice to other people.
Ladies and gentlemen, I would also like to point out to you that as a society we are dealing with an inherent, almost genetic bias against men in our culture today. I don't want you to quiver in fear as if I'm waving garlic at a vampire.
You may recognize this book. It's the red book that the government put out in the last election. I went through this before the election. I wanted to find out what the government's stand was on men—or in this case, properly speaking, the Liberal Party, now the government.
This book refers 101 times to children and children's rights, 60 times to families. It contains 25 references to women and women's rights; it contains 10 references to breast cancer. It contains zero references to men. That suggests to me—not malevolent at all—a lack of awareness that men and fathers in our culture are being destroyed.
Further, just for the record in case it isn't anywhere, I'm going to refer you to Senator Cools' speech of October 28, 1997, which raises an issue of concern to this committee, which must make a recommendation to a government that already displays a fairly substantial anti-male bias.
Senator Cools, who I would urge you to listen to, is an expert in the field and she has a very good grasp of all of the issues. She points out that the justice minister of this country, Anne McLellan, is on the record as being against men having custody of their children and she has written many articles that are strongly anti-father, anti-male in the past. When you submit your recommendations you are going to be fighting, ladies and gentlemen, an uphill battle. I only bring that to your attention so that you will know what we are facing.
I also do a great deal of work with lawyers and lawyer referrals across the country. I deal with lawyers constantly. I have personally been in court. I've spent more than 200 days in court on my own matters, and I have observed at least a thousand cases while I've been sitting in court throughout the system over the years.
I am convinced that a fundamental problem is the court system itself. We all agree here that we have a major problem in this country. The family is broken, the court system is broken, and we have to find a way to fix it. And that's what we are here for, to try to develop that.
The starting point in dealing with things like mediation, which I totally endorse but which frightens me for practical reasons, is the issue that was raised by Senator Cools yesterday. The question was how does a parent lose custody? Actually, both parents have custody of their children until somebody goes to court and brings a motion. That's the law, but the law is ignored. The law is ignored consistently in family court. Judges ignore it; lawyers ignore it; lawyers lie, cheat and steal; clients lie, cheat and steal; and nothing, I'm afraid, seems to make sense down there.
What in reality happens is that custody is like possession. It has happened to me and it has happened to hundreds of fathers. I speak directly to fathers every single day counselling them, helping them and hopefully trying to advise them.
Possession is nine-tenths of the law; custody is ten-tenths of the law. If a woman calls the police, raises an issue, kicks the husband out of the home, moves out, takes the kids to a shelter, that's when custody changes, not three months down the road in court. Custody changes the minute the women walks away with the kids or evicts the man, whatever.
We have legally then the issue of interim custody, but that in itself is a judicial farce. Judges will not disturb the status quo; judges will not award custody to men who have a legitimate case, because they don't want to take the chance.
The Joint Chair (Mr. Roger Gallaway (Sarnia—Lambton, Lib.)): Mr. Inwood, you're a little past five minutes. Five minutes goes very quickly. Can we have your recommendations, please?
Mr. Kirby Inwood: I'm sorry. I really wanted to get to that much faster.
The issue is that if we're going to deal with the courts, we need to deal with massive court reform. We need to look at passing something like Senator Cools' bill from the last session, Bill S-3, which was aimed at jailing lawyers and people who present material to the courts that is false. We need to take judges and make them accountable to the system, accountable to the law and accountable to Parliament.
[Editor's Note: Applause from the audience]
The Joint Chair (Mr. Roger Gallaway): There seems to be some agreement.
Mr. Kirby Inwood: Right now judges are like royalty. They're untrained. They have no backing. The Chief Justice of Ontario is a man with no experience as a judge whatsoever. We have just appointed justices to the Supreme Court who have never been judges.
In France, judges start off as baby judges, in the smallest of courts, dealing with the smallest of matters, and they are trained and apprentice and work their way up through the system. Maybe it's time we looked at doing something like that.
We need to bring in mandatory transcription of all court proceedings. Most family law matters are held in motions court today, and there is no record and judges simply ignore, with impunity, everything that is in the book. Judges will sit there and tell you straight to your face, do what you like, appeal if you want to, because the judges know that most of us can't afford to appeal. We can't take the two years or three years.
I haven't seen my son in 10 years, ladies and gentlemen. He's 11 years old. I've had court orders coming out my ears. It's a farce. My case is typical.
So all I am saying to you is that it's a huge area. We have to clean house in court.
The Joint Chair (Mr. Roger Gallaway): I would just say to those attending—and this is no disrespect at all—in committees we have certain rules, and one of them is that there not be any clapping.
I understand that you are signalling your approval of what it is being said, but at the same time you're also subtracting from the time of the committee. But more importantly, a committee is a court of Parliament, and we would ask that you not clap.
The second witness is from Equal Parents of Canada, Mr. Tarkington. You have five minutes, please.
Mr. Eric D. Tarkington (Equal Parents of Canada): Good afternoon. I want to start by thanking the committee for this opportunity. I assume that others have thanked you before, but I would like to add my thanks.
Although men's and father-friendly groups in Canada have some doubts about the beneficial outcomes of this process, given the past history, the fact remains that this is a unique opportunity for men's and fathers' voices to be heard, and it indicates the maturity on the part of the government that we have long been hoping for. We continue to hope for further improvements in that maturity.
My name is Eric Tarkington. I'm a software engineer. I'm not any kind of special advocate, but I do serve as a communicator for EPOC.
EPOC is Equal Parents of Canada. It is an organization in the process of formation, and its goal is to have a thoroughgoing national representation with representatives in every province of Canada. To this point, we do have directors from four of the provinces and we are continuing to pursue additional representation.
Thanks to the fact that I'm sure you've heard a great deal from previous speakers about the problems with the existing system, I find that there's no necessity for me to rehash those problems. Men have a great insight, fathers have a great insight, and I'm sure that you have already heard enough so that you begin to understand the direction that we would take in assessing the problems before us.
What I would like to do is focus on solutions, and in focusing on those solutions, I want to talk about initiatives to replace the adversary system.
The first initiative that you're going to hear virtually every men's group in Canada advocating is shared parenting. We advocate shared parenting in the belief that fathers and mothers are both equally valuable to children and that it is incorrect at a very fundamental level, when the matter of custody and divorce arises, to split the child down the middle in order to make a winner or a loser where, from the child's perspective, the family unit continues to go on. A child continues to have a father, continues to have a mother, continues to have reasonable expectation for financial and psychological and developmental support from both parents.
In order to achieve shared parenting, we believe the primary modality is going to be mediation. But we witness a mediation milieu presently that is based on mediators who have gone through a process of training that I would characterize as excessively gender feminist as opposed to egalitarian feminist. This creates a situation in which men, although they are calling for mediation, are calling for it with great fear and trepidation, and much will have to be done in order in improve the discipline of mediation itself before mediation can become an effective tool to establish good circumstances of shared parenting for children in Canada.
We should also have a presumption that there will be long-term support and flexibility for families using shared parenting to achieve the maximum benefit for their children. There may be times when families will have to go back to mediators. This should not be a traumatic experience. It should be normal, it should be expected.
Within the courts as they currently stand, we do urgently need changes. We have to stop the presumption of mother custody that currently operates in the courts. Mothers have no reason to cooperate in good faith with mediation if they know that at the end of the mediation process, should they refuse to accept the results, they can go to a court system that has a strong favourable bias for them. We cannot leave this situation in place.
You will hear people who say you must not build presumptions into the law. I must point out that the law currently acts with a presumption that clearly indicates mothers are ten times as good as fathers as parents for children. And there is not a shred of evidence to justify that position.
We therefore say that there must be a presumption of shared parenting and it is the duty of the courts and it is the duty of legislators to find the ways that are necessary to implement shared parenting in practical ways. We have to call for the elimination of bias.
I know the judges, assessors and lawyers want to preserve their independence, but that independence is not the only valuable aspect to the system. We have to have openness. We have to have processes that review, that will permit us to ensure that judges, assessors and lawyers bring an understanding of the value of fatherhood to the process of establishing reasonable family arrangements after separation and divorce.
We have to restore the primacy of the child's best interest. Often laws seem to state that the child is the primary consideration, the most important party in all of these matters. In practice that isn't so. In practice, the child's interests are subsumed into the interests of the mother. The child is treated as an appendage of the mother with no separable individual rights. This must stop.
There are some voices in the courts that clearly recognize this. The Gordon v. Goertz decision was a good one, but in fact the courts in practice continue to exercise the bias against fathers that undermines this fundamental principle. I am going to also suggest something that is radical in terms of the people in the court system.
The Joint Chair (Mr. Roger Gallaway): Your time's almost up.
Mr. Eric Tarkington: I will finish soon. We need cameras in court and we need corresponding measures to ensure the openness of the courts so that they can be reviewed in terms of their processes and in terms of their freedom from bias. There are many other things we need to discuss, even headings that I haven't been able to get to in these five minutes, but I am very encouraged by the existence of this committee and I am very encouraged by the opportunity I see before me to continue to submit our ideas in forums after this one.
The Joint Chair (Mr. Roger Gallaway): Thank you, Mr. Tarkington.
Ms. Nardina Grande (President, Stepfamilies of Canada): Hi, I'd like to start by showing everybody something that I think is very important so we don't forget why we're here.
I've been called stepmonster, home wrecker, tramp, whore, garbage, it, thing, wicked stepmother, adulteress, the other woman, the younger woman. These are just some of the stereotypical names applied to me and members of my group, which is a non-federally funded, non-profit, completely volunteer, hard-working women's group called Stepfamilies of Canada. We get hundreds of calls every month.
The irony of these names and this name-calling is that it's being done by people who never have met us and, ironically enough, probably never will.
I want to thank the Special Joint Committee on Child Custody and Access for allowing us to make a presentation today and for letting all women's voices be heard, not just a selected few women's voices who do not represent the majority of women in Canada.
Non-custodial stepmoms—I will define this for you in both official languages later on in this presentation—their children and stepchildren are represented in this group. They bear the tremendous strain of judicial, legal and political decisions made almost always in favour of custodial mothers. I started this group in the fall of 1993. I'm its president and founder, Nardina Grande.
A non-custodial stepmother is a woman who is married to or is in a common-law relationship with a separated or divorced father, who, in 98% of matrimonial cases, does not have his children residing with him.
A non custodial stepmother is a woman who doesn't have custody of her stepsons and stepdaughters and who is married or living with a father separated or divorced from his first wife. In 98% of cases, the children are not staying with their father.
I want to make sure everyone's clear on this definition, because non-custodial stepmothers outnumber custodial stepmothers by a factor of 17. That's a U.S. statistic, but since divorce statistics in the U.S. and Canada are similar, I believe this extends to Canada as well. So there are 17 times as many non-custodial stepmothers as custodial stepmothers.
Since women initiate approximately 80% of all divorces, and win custody with residency in approximately 98% of all cases, and that divorces are occurring sooner these days so that it's very likely the children of the marriage are just infants or toddlers, the disenfranchised father is often young enough to remarry and have more children of his own.
Remarriage of divorced fathers is considered taboo in today's society in the eyes of the media, the government, and custodial mothers. But I explain how hard these fathers fight for their children to see them, and when that fails, they want to have children they can see. That's just a normal human response. I would maintain that when we go into the next millennium, non-custodial stepfamilies will be the extended families of the next century.
Recommendations: First of all, I'm going to make a comment. Legislated access does not work. I didn't say access does not work; I said “legislated”—legislated anything doesn't work. People don't respond when it comes to emotional...especially custodial mothers. There's an emotional response; the children are there. Let me explain why custodial mothers will not follow legislated access.
First, the biological father has applied for custody of the children. This is absolutely absurd. We all know that mothers get the children. I just told you that in 98% of cases, the children reside with the mother. Wonderful lawyers, for the female, feed this unjustified paranoia in saying “You know, there might be a possibility you're going to lose your child”. That causes their client to spend money—the child's money.
Even if the mother is assured that the biological father will not achieve custody of the children, she may perceive the children's access to the father as disloyalty to her. I call this the fixed love pie mentality—that there's only so much love to go around. Children can only benefit from more and more love. But there's this fixed pie mentality that “Oh, if the child sees Daddy, there'll be less love for me”. That's pretty immature, but it happens. It's an emotional response to divorce. It's also the “kids parent mom” or “mom using kids as shields” mentality. They hide behind the child when they decide to not follow court orders.
The Joint Chair (Mr. Roger Gallaway): Your time is up.
Ms. Nardina Grande: The other reason why a mother holds onto the children is that she's afraid of losing child support or that it will be reduced. I want to go into ten common strategies that non-custodial stepmoms face.
The Joint Chair (Mr. Roger Gallaway): Can you do it in about two minutes?
Ms. Nardina Grande: Yes. There are common strategies a non-custodial mother will use—and the lawyers encourage this—to completely cut off access or make it miserable.
There's the ex parte motion, which is a motion made in absence of the father where they can get complete custody and everything. That's where the mother has the advantage, because she initiates divorce in 80% of matrimonial cases.
There is constructive abandonment, where we have unsubstantiated allegations of spousal abuse to have the father driven out of the home. Fathers don't just walk out on their children, they're driven out.
Third is perjured statements and affidavits.
Fourth is outright contempt of the court order for visitation.
Five is attempts to sabotage the visitation while in progress.
Sixth is the supposed visitation depression fall-out period.
Seventh is unsubstantiated allegations of abuse, namely sexual abuse. Because the stepmothers act as witnesses, they're implicated as well.
There's the parental alienation syndrome. I'm sorry, I have to stop on this point because I know there are a lot of frustrated children of divorce and I want to explain something. If you read Richard A. Gardener's book, Parental Alienation Syndrome, don't misinterpret what it means. It's not just brainwashing of the children. This disorder refers to a situation in which the parental programming is combined with the child's own scenarios of denigration of the allegedly hated parent. The children are at a point where they have to remain loyal to the custodial parent because they're survivors. They have to be. They'll go to the point of inventing stories to please the custodial mother.
Ninth is delay tactics. This is where the court helps out in assessments, costs, deliberate postponement and attrition of dollars.
Tenth, when all else is done, there's mobility. Just take off with the child. Change the child's name. Let the child die and not tell the father.
On the long-term effects on the child, in the long term this bankrupts the fathers and bankrupts the custodial mothers. The lawyer's children will go on to post-secondary education, but not their own children. This also attributes to millions of dollars in mental health and social welfare systems.
StatsCan did a study in 1997 of growing up in Canada. It was an analysis of 22,000 children. They noted that the drop-out rate at school and behaviour problems increased with the children of single mothers, as opposed to children in intact families. I can go on.
The teenage pregnancy rate skyrockets for children of single mothers. There is a 75% delinquency rate in children of single mothers in the United States. I want to apply that to Canada because we're very similar countries.
The Joint Chair (Mr. Roger Gallaway): I'll have to stop you there and thank you. We have to move on.
I wonder if the group standing here would like to stay behind the members' table, please.
Mr. Ross Virgin (In Search of Justice): Can I just interject? They're part of my presentation. They're just getting ready for the presentation.
The Joint Chair (Mr. Roger Gallaway): I wasn't aware of that. Mr. Virgin, please proceed for five minutes.
Mr. Ross Virgin: Thank you very much. I appreciate the opportunity to be here. We will be looking at, in trying to solve all of those problems in five minutes or less, the three items of custody, access and mediation, which are the three items in your mandate.
The first item we will look at specifically is custody. I'm not going to try to reinvent the whole wheel, reinvent eternity. I really enjoyed one of the comments from Paul Forseth in his newsletter in which he said: “We've been hearing lots of problems, but we'd like some concrete recommendations.” That's your job, to change the Divorce Act. I hope I can help you with that.
Our first item, joint physical custody, is definitely what we're recommending. Maybe your committee can wrap up and go on vacation, but I am going to suggest to you that the work has already been done for you.
If you can read it from that distance, what you see is that it says Jay Hill. He's one of your colleagues. He introduced a private member's bill, and it was superb.
For all of you, and for Mr. Forseth—I loved your comments in your newsletter—the problem with the Divorce Act is that it says the court “may” order joint custody or sole custody. Jay Hill's bill, which unfortunately was defeated—it did not pass because it was a private member's bill—says the complete opposite. It says that where a court makes an order with respect to the custody of a child, the order will grant custody of the child to both spouses jointly.
That's why I say that from my perspective your work is done. Jay Hill did a super job in his legislation, and I think you've heard plenty of presentations here on the value of joint custody. I suggest to you that Jay Hill has really helped you a great deal.
You see, we're not here to help, as much as to look at the legal implications. As so many of the presentations have indicated today, we're here because there are children out there who aren't seeing both parents; they're losing one of their parents.
I just want you to look at these four photographs. These are four children belonging to my colleague Gus here. Up to two years ago they saw both mother and father every day of the year. Two years ago that came to an end.
Ladies and gentlemen, I suggest to you that you can change that. During that two-year period these four children have seen very little of one of their parents, the non-custodial parent. This is to the extent that the three-year-old young girl cries and even yells, “Daddy, Daddy, Daddy, don't leave me”, on the few occasions when she does see him. We have to stop that. That's tormenting the kids.
Ladies and gentlemen, may I suggest to you that you can stop that. That's your mandate. And Jay Hill has done a great deal to help you. It's already written for you.
The next item under joint custody has to do with Jim Henderson. Jim Henderson was an MPP in the province of Ontario several years ago. He tried to do the same thing, unfortunately again through a private member's bill. But he was dynamite. He saw the problem. He wrote the solution for you. Just copy the wording. Yes, I agree that you have to change a few comments here and there, because it was for the Children's Law Reform Act. The principles are the same.
Let me read just a couple of his comments to you:
The purpose of the Bill is to create a legal presumption
that custody of a child should be granted jointly
to both the child's parents, when both parents are
seeking custody. The presumption is rebutted if the
court determines that joint custody is not in the best
interests of the child.
He goes on to say:
A parenting agreement to guide the
parents in the decision-making process shall be a part
of this joint custody process.
Where a parent does not
act in accordance with the requirements of the parenting
agreement, the court may rescind the order for joint
custody and may grant sole custody to the other parent.
Let me suggest to you that this is a very powerful deterrent to any parent who wants to sabotage joint physical custody. It works.
Dr. Henderson did humongous amounts of research before he drafted that bill. And, ladies and gentlemen, let me suggest to you again, as Paul Forseth has asked.... He wants recommendations to change the Divorce Act. It's right there. You don't even have to draft or redraft it. Just copy it: joint physical custody.
The last point related to joint physical custody is the United States of America. I'm sure you people already know that there are states all over the United States that have already implemented joint custody. Why reinvent the wheel?
The Joint Chair (Mr. Roger Gallaway): Your five minutes is up. If you could wrap up, please, I'd appreciate it.
Mr. Ross Virgin: I will wrap up.
My colleague Eugene is with his one three-year-old daughter in these pictures. That daughter is 15 now. She does not even know where her father lives. She has not seen her father in 12 years. It's disgusting and unacceptable. This man has spent $30,000 in legal fees trying to find and see his daughter.
So my suggestion to you is that...while at the outset I wanted to touch base, of course, on joint custody, I want to touch base on access enforcement. I also want to touch base on mandatory mediation, but obviously our time will not permit that.
I hope that for you people this picture may show some light at the end of tunnel. I've given you two disasters, and several more gentleman in the background are in disastrous situations.
This young lady, Crystal, has yet to go through this. This separation is just starting. You people have the authority, you have the mandate, to change the Divorce Act, and that's what you're here for. I trust that you will not put this young lady, Crystal, through what so many other children have been through in losing one of their parents.
In summary, as a few more of our fellows come forward with the pictures of their children, whom they are having problems seeing, the only recommendations I would leave with you people....
My summary is this, and obviously I'm only going to be touching on joint physical custody. Please take seriously Jay Hill's legislation. It's already there for you.
Take seriously Dr. Jim Henderson's legislation. He's done the research, two years of research. He did what you people are doing right now. It's all done for you. And please take seriously what the many states in the United States have already learned, and can teach you.
Ladies and gentlemen, thank you for your time. I trust you will care very much about the children of this country.
The Joint Chair (Mr. Roger Gallaway): Thank you, Mr. Virgin.
[Editor's Note: Applause from the audience]
The Joint Chair (Mr. Roger Gallaway): Please, no applause.
I wonder if you could leave a copy of the Henderson work with us.
Mr. Ross Virgin: That's not a problem at all. Yes, I will get it. Whom should I leave it with?
The Joint Chair (Mr. Roger Gallaway): The clerk.
Mr. Ross Virgin: The clerk, that's fine. That's not a problem.
The Joint Chair (Mr. Roger Gallaway): Thank you.
We'll now proceed to questions. We're going to begin with Ms. Bennett.
Ms. Carolyn Bennett: Thank you very much. I guess maybe I should start with the last presentation.
A lot of what the committee has been saying is that even the word “custody” sets up a climate in such a way that custody access means a winner and a loser. There is then a climate in which people have to maintain this power, and maintain the status of winner and loser.
So I guess I would be concerned with bills that maintain that, because even Mr. Inwood's word about shared parenting.... Even the word “shared” presumes that special...to people who aren't really in the mood to be sharing very much.
So I guess, to step right back to what we're hearing, the only person who really has rights is the kid, and that's to see both parents.
Mr. Ross Virgin: Absolutely, I agree with your concern about the word “custody.”
Ms. Carolyn Bennett: And the parents have responsibilities that start at birth and continue forever.
Mr. Ross Virgin: Right.
Ms. Carolyn Bennett: I would like some feedback from the panel. If the words “custody” and “access” were removed, and we immediately went to some....whether it's mediation, or what Dr. Chisholm talked about this morning, about a special master judge with serious expertise and interest in this area. You just talked about a parenting plan that presumed all of what you're talking about, but actually this was a change in the atmosphere and the climate that would presume that both parents keep having responsibility. How are we going to work that out logistically and with time?
Mr. Ross Virgin: I don't care what the word—
The Joint Chair (Mr. Roger Gallaway): She's asking for a response from all the panel. So you go ahead.
Mr. Ross Virgin: I think she actually said that we'll start with the last presenter first—
Ms. Carolyn Bennett: Yes.
Mr. Ross Virgin: —so that's the only reason I was responding.
I don't care about the word “custody,” I don't care about the words “shared parenting;” all I care about is that the kids have both parents. So whatever words you ladies and gentlemen would like to put in there, I and, I guarantee you, all these people here are behind you.
As for the ones who haven't seen their children for 12 years or 10 years, they don't care whether you use the word “custody” or whatever. Please, let's get children to see both parents, that's all.
The Joint Chair (Mr. Roger Gallaway): Ms. Grande.
Ms. Nardina Grande: After my five years of hell, trying to see my stepdaughter, I'm more pessimistic that mothers will cooperate with shared custody. So my recommendations are a little different. It doesn't matter what word you give it—there is already wonderful wording in the Divorce Act—but there is a presumption that the child should have maximum contact with both parents. It's not being followed; it's a joke. It's being overtaken by federally funded women's groups, and policy and social programs. Until that changes, until we stop federal funding to women's groups that represent a minority of Canadian women, not the majority of Canadian women....
A lot of women are afraid to come out and say it. I'm not afraid any more, because I lost my stepdaughter. You're not going to get her back for me, so I'm going to tell you like it is. You get rid of the federally funded women's special interest groups, and you give us charitable status.
Voices: Hear, hear!
Ms. Nardina Grande: If they represent the majority of women in Canada, they can survive with private donations. Give them a charitable number, give me a charitable number, and let's see who raises more money.
I'll guarantee you, I'll have a panel of 5,000 people here next year telling you what stepmothers think of the whole situation, and grandmothers, aunts, sisters, and a lot of women who support the fathers' rights movement. We do so, not because we think father is better, or mother is better, but because if you play one parent against the other the children suffer. We need a level playing field.
So getting back to semantics, custody—we always give custody to the mother. If you're going to do that, give custody to the mother. But it should be true custody. That means a complete financial obligation for the child, as well as taking care of the child's daily needs.
And I'll tell you why. It's better—
Ms. Carolyn Bennett: Well, I think my question was do we get rid of the word “custody”, not where do we give it.
Ms. Nardina Grande: No, keep the word “custody”, and I'm going to explain why. It's better to get something with sugar than with vinegar. If women want the kids, give them kids. They'll have to be truly feminist and accept both financial.... That's what custody means in a traditional definition. It means financial and emotional responsibility for the children. If that's what they want, give it to them. I assure you that within a couple of months the father will be seeing those children all the time to help financially and emotionally support the child with her, along with the extended families.
That's my proposal, because I'm very pessimistic that shared parenting, just like the words “maximum contact with both parents”, which is already in the Divorce Act, is going to work. You're just changing words, so if you're going to keep to the same way, give custody to the mother, so that she's fully responsible financially to the child, and you'll see how quickly she will be willing to share.
It's true that money is the root of all evil. It's true, and I hate to say it, that there are a lot of greedy mothers out there. So if you want the kids to see the father, the mother is solely responsible for the child, and if she wants help, she lets the father see the child. She'll do that willingly, because the father financially supports the child when they see the children.
I also maintain that if you want to enforce access, which I don't—
Ms. Carolyn Bennett: So I guess—
Ms. Nardina Grande: Under the current system—
Ms. Carolyn Bennett: —the issue is—
The Joint Chair (Mr. Roger Gallaway): Excuse me, our time is really up, and Mr. Tarkington wishes to respond.
Mr. Eric Tarkington: What I would say is, yes, the words do matter. Taking the word “custody” out of our legal instrument and out of our policy instruments would tend to improve the atmosphere.
But it is important to recognize that we have already seen similar changes go to no good purpose. Joint custody is an outstanding example of this. Thousands of joint custody orders have been issued, and when you read the details of the joint custody order, it turns out to be an order for sole custody to the mother.
This kind of shell game with the wording is not going to solve the problem. I do believe that what has to solve the problem in the long term is the entire removal of 90% or more of the cases from the adversary system.
Although I strongly approve of the word changes, because they would indicate a change of mindset favourable to the eventual shrinkage of the adversary system, I think too much focus on simply changing the words would not really persuade anyone out in the heartland.
Ms. Nardina Grande: Can I make a comment to respond to the gentleman?
The Joint Chair (Mr. Roger Gallaway): No, Mr. Inwood wants an opportunity.
Mr. Kirby Inwood: Thank you. Let me say just briefly that I also am not concerned with the terminology or the vernacular; I'm concerned with enforcement. I am concerned that no matter what you call it, historically, daily in this country, the orders aren't enforced anyway. That is my focus, and that is my concern.
In Ontario right now the family support plan has 135,800 support-paying fathers, who have either joint custody or access, shared custody, whatever it is that they have. They don't have their kids; their kids don't have them.
So call it what you will. Just put the kids and the parents together, please.
The Joint Chair (Mr. Roger Gallaway): Thank you. Mr. Mancini.
Mr. Peter Mancini: Thank you. I have so many questions and so little time, I don't know where to start. Perhaps I'll start with Stepfamilies of Canada. I'll start there, and hope I get further.
You said that there seems to be a misconception that there's only so much love to go around, and in fact that's wrong. But in reality there is only so much time to go around. I mean, there's a finite amount of time. As I look at these pictures of these children...they need to be fed, they need to have naps, they need to.... They have their lives.
The question I ask you is, if we accept your premise, where do we stop? For the stepmother who has parents who may be able to make a contribution to their stepgrandchildren....
Let's just take a quick scenario. There's the mother and the father who split up; they each have a new partner. Each of those partners has their parents, so the children now have four sets of grandparents. At what point do we say the child's time is finite? And we have to make sure that finite time is spent in the best interests of the child. At some point don't we have to start excluding?
Ms. Nardina Grande: I don't know what you mean by that. We have no problems sticking kids in day care, changing day care a million times. We have no problems, as long as it suits the convenience of the custodial mother.
All I'm saying is make it the kind of system that will influence cooperation between the biological mother and the biological father.
Mr. Peter Mancini: Okay.
Ms. Nardina Grande: Children are interested in the biological mother and the biological father.
Mr. Peter Mancini: Okay, I may have misconstrued. I was under the impression—
Ms. Nardina Grande: I think my way will work, because if you get rid of the money element, the root of evil, you get rid of it, and that will enforce.... Sorry, it is not the word “enforce.” That will encourage cooperation between the parents without government intervention. But the government has to see that legislated child support, just like legislated access, is a detriment to the children's welfare.
Mr. Peter Mancini: Okay. Just for my clarification, when you talk about shared custody or joint custody, could I have a definition of that? Do you mean the child spending half the year with one parent, half with the other, or a week with one and a week with the other? What is the definition of that?
Mr. Ross Virgin: Yes, that's exactly what I am referring to. As a matter of fact, in Dr. Jim Henderson's bill he makes reference to shared equal time.
And, of course, this requires that both parents live in close proximity. I love to draw on an example right near my office where the kids.... Let me suggest to you that if the alternative for a parent who wants to move to Australia is to lose their child, you would be amazed at how quickly a parent will say, I don't want to go to Australia. One of our members is a high-ranking executive officer with IBM who was given that opportunity.
Mr. Peter Mancini: Okay, that's fine. I only have a little time. What's the answer to the question?
Mr. Ross Virgin: Sure, absolutely equal time.
Mr. Peter Mancini: I'm trying to keep everybody straight here. The next question is to Mr. Tarkington from Equal Parents of Canada.
When you talk about cameras in the courtroom, I have a concern with that. Do you mean that cameras are there to be viewed upon application by someone who's interested, or do you mean the way they have it in the United States? This is where, in some criminal trials, anybody can tune into a family court or divorce court hearing. Say you'd like to see cameras in the court. Can you clarify that for me?
Mr. Eric Tarkington: Yes, I guess I would like to say that this is really too big an issue for me to answer the question within the limited time you have allocated to you.
Mr. Peter Mancini: Okay.
Mr. Eric Tarkington: But I will begin by saying that the intention of cameras in the courtroom is not litigation. It is not to hammer the court system. In fact, I would suggest cameras in the mediation rooms as well.
The reason for a suggestion of this kind is that this measure, and numerous other kinds of openness in the approach to creating these family arrangements, would be beneficial to our learning how to do them better. They would also be beneficial in the individual cases, in a wide variety of ways that I really don't have time to explain.
Mr. Peter Mancini: Okay, but they're not for public consumption. I wouldn't be able to turn on my local community channel and see what's happening in family court.
Mr. Eric Tarkington: I would suggest that those records should be as available as court transcripts currently are.
Mr. Peter Mancini: To anybody?
Mr. Eric Tarkington: Court transcripts are currently matters of public record.
Mr. Peter Mancini: Okay.
Mr. Eric Tarkington: Aside from the difficulties and expense of tracking them down, any records of your experiences in court or my experiences in court are matters of public record, and accessible to the public.
Senator Anne Cools: Could I have a supplementary to that, please, sir? I'm just making sure—
The Joint Chair (Mr. Roger Gallaway): Go ahead for a supplementary.
Senator Anne Cools: I'm not concerned with whether you meant cameras or not, but what I heard you just say is that the proceedings should be recorded.
We've had witnesses who have told us that there are numerous instances—motions and whatever else—in court where there is no record, no transcript, of what has transpired. I understood you to mean that all proceedings should be recorded. Was that what you meant, or maybe...? He's hearing something slightly different. Could you clarify that?
Mr. Eric Tarkington: Yes, that is what I am suggesting.
Senator Anne Cools: Okay, that's what I heard.
The Joint Chair (Mr. Roger Gallaway): Senator Jessiman.
Senator Duncan Jessiman: Ms. Grande, when you said take the money part out of it—I think those were your words—are you saying that the custodial parent should have full custody, but also full responsibility to pay for looking after the child totally? Is that what you...?
Ms. Nardina Grande: That's lip service. The reality is that—
Senator Duncan Jessiman: But that—
Ms. Nardina Grande: —there will be increased cooperation between mother and father, so that the father will share in the financial and emotional support of the child.
All I'm saying is, don't legislate it. If you legislate it, then the mother is going to hang on to those kids like they're possessions: I'm not going to let go, I'm going to lose my money. They're not meal tickets; they're human beings.
Senator Duncan Jessiman: Yes, but the law before the present law came into effect provided that both parents had their responsibility to look after the welfare of the child. They still had that responsibility when they were separated. The old law also said that they would contribute proportionately to that.
Unfortunately, under the new law they were going to take that completely out of the act. We have a great deal of difficulty retaining part of what was there before.
Subsection 26.1(2) of the Divorce Act, which was the only part we were able to retain, says—and I can tell you this for a fact—that they're both still responsible for paying, but not proportionately to what they have. The new guidelines were supposed to be, and are, built around both parents having responsibility to contribute to the welfare of the child, but not on a proportionate basis. That part has been taken out.
So the law in Canada, the guidelines, are built so that you only look at the income of the non-custodial parent. It doesn't matter if the custodial parent wins the lottery, or inherits $1 billion—
Ms. Nardina Grande: Or marries a millionaire.
Senator Duncan Jessiman: —or marries a millionaire, except in special circumstances.
But the custodial parent does have the responsibility for...according to the guidelines. They're built on the basis that the custodial parent is paying something. You were suggesting that they pay everything, and—
Ms. Nardina Grande: That's what I'm suggesting; that's not what is going to happen. What will happen is that naturally the custodial parent will voluntarily facilitate visitation for the non-custodial parent so that they can financially and emotionally support the child as well. It's just a means to an end. It really means nothing, but it will encourage the custodial mother to facilitate visitation.
Senator Duncan Jessiman: All right. Senator Cools, I and others worked on this. We go into the guidelines, which were not there when the government presented it to us.
What the government really wanted was that before a non-custodial parent would be given credit for anything he did, the child would have to have spent more than 50% overnight—183 days a year—with the non-custodial parent. That would happen before they recognized any money that he paid on behalf of the children.
Ms. Nardina Grande: Well, that's just encouraging the custodial mother to make sure that the father does not see the child for that percentage of time. It's ridiculous.
Senator Duncan Jessiman: Yes, well—
Ms. Nardina Grande: It is an impetus for the custodial mother to withhold the child—
Senator Duncan Jessiman: I'm on your side. Wait—
Ms. Nardina Grande: —so that he doesn't have that certain percentage of time.
The Joint Chair (Mr. Roger Gallaway): Ms. Grande, please allow Senator Jessiman to put his query to you.
Ms. Nardina Grande: Sorry.
Senator Duncan Jessiman: I'm on your side. I'm just trying to tell you what the situation is. Okay?
Ms. Nardina Grande: I'm sorry. It's a bit emotional for me.
Senator Duncan Jessiman: All right.
We got that reduced. The government finally agreed that a non-custodial parent did not have to have the child for 183 days overnight.
So they reduced that and said they would agree that the non-custodial parent could get credit financially—that means looking at both incomes, because you're not looking at both incomes now—if he had 40% of the right of access, or had physical custody of a child for not less than 40% of the time over the term of a year.
Now, we were trying to get that down to 30%. If you actually had 30% of the child's time, and spent 30% of the money to pay for his shoes and take him to the movies—whatever he does 30% of the time—that costs money.
We've had the Canadian Bar come before us, and they think that 40% is causing more problems than it's worth. Others have said otherwise, but the Canadian Bar thinks that before a non-custodial parent should be given any credit, the non-custodial parent should spend substantially equal time with the child. It's almost as bad as what the government wants.
In North Carolina they have 35%. That's quite a bit different from substantially equal. It's 35% overnight, and they're considered shared parenting.
This shared parenting is a real problem for this committee. I want all of you, or any one or more of you, to tell us what you think is fair.
In one of the states—I think it's North Carolina, and maybe Maryland—they say that when it comes to the obligations, at least, you go 1.5 times the amount because you now have two households. Then, when you go 1.5 times the amount, they share it in proportion to what they each have. If one has $100,000 and the other has $50,000, this one pays two-thirds, the other pays one-third, but the cost would be 1.5 times the amount.
My question to all of you is to ask you to tell us what you think is fair from the point of view.... You get the dollars, because it does cost dollars to look after children. It costs dollars when they're together; now they're apart. I think we can all assume it's going to cost more, because you now have two households, and the children are going to be there, at both places.
What's fair? What is fair to the non-custodial parent and what's fair to the custodial parent when they're sharing? Should it be 50-50 before he gives any contributions? Should it be less? What should it be? What's your idea?
The Joint Chair (Mr. Roger Gallaway): It's a little after 2 p.m., so please be very brief.
Mr. Ross Virgin: I'm very much in support of the example you gave from the United States. It was looking at income, but I think the proportion of the time spent with the children should be the major factor.
However, I didn't think this committee was dealing with child support. It is dealing with custody and access.
A voice: Right.
Mr. Ross Virgin: Therefore, we must make sure that if we're going to change child support on the basis of access time, as my colleague beside me said, that just encourages access violations. So we must enforce access, and then follow your suggestion.
The Joint Chair (Mr. Roger Gallaway): Thank you, Mr. Virgin.
Very quickly, please, Ms. Grande.
Ms. Nardina Grande: Shared parenting will not work without the full cooperation of those biological parents. My suggestion is mandatory, non-gender-biased counselling for the children and then the entire family, and a mandatory divorce court for the parents, as in the law in the state of Georgia, before any division or liquidation of family assets, which would make the mediation process a little speedier. If you freeze the assets until they come to an agreement and come up with a proper parenting plan that a judge can endorse, it'll be very fast, I assure you.
The Joint Chair (Mr. Roger Gallaway): Thank you.
Mr. Eric Tarkington: I shall try to be brief.
The conclusion on which I think most fathers' groups would finally align with is that if you create fairness in custody and access you will automatically lead to a social discussion that will tend to produce equitable rules about support. This, I think, reveals the defect of the government's strategy of separating these issues in legislation, and it is going to complicate the process. But I think ultimately fair custody and access, targeted toward shared parenting, will result in fair support.
The Joint Chair (Mr. Roger Gallaway): Mr. Inwood, the last word to you.
Mr. Kirby Inwood: I'm going to pass. I am not qualified to comment.
The Joint Chair (Mr. Roger Gallaway): Okay. I want to thank you for coming today. This has been a most productive session.
We will adjourn for three minutes.
The Joint Chair (Mr. Roger Gallaway): We will begin our second session of the afternoon. With us we have Balance Beam, represented by Tony Vorsteveld; Second Spouses of Canada, represented by Dory Gospodaric; Wayne Allen, for Kids Need Both Parents; and Rick Morrison, for Fathers for Justice.
I think the last shall be first. So being the last, Mr. Morrison, you begin. Five minutes, please, and I'm going to have to really enforce this.
Mr. Rick Morrison (President, Fathers for Justice): Good afternoon. I appreciate the opportunity to be here. I have worked with a voluntary organization for a number of years now. Fathers for Justice has been around for about ten years. When I took this on, I had no idea I would be in a spot like this. So bear with me. I'll just run through my thoughts.
It's unfortunate that child custody and access has been put into the present legal system. This system creates a winner-loser concept. Two parents who are divorcing or separating, already stressed with many emotions like sorrow, depression and fear, are rushed into a courtroom battlefield, a place where the rules are unknown and the language is foreign. What does filing a motion or interim motion really mean to these people?
With all this, these two people are expected to make healthy decisions about their children. The problem with deciding custody in the present system is that it takes too long. By the time it's over, the children have already lived in one home for months so no one wants to move them. Usually this means they stay with the mother.
The other problem is that under the present system all is not equal. Court orders dealing with access are basically worthless. Knowing that custody is a lost issue, a father hopes for some access time. He's told that every other weekend and a day through the week is the norm. But somehow six or eight days a month to hug your child is not right.
But even if he gets this, he soon realizes that the battle may not be over if the custodial parent decides not to agree. This means back to the lawyer, back to court, more money and more lost time from your child. It may get worse. The child may be moved away, making access more difficult. Imagine, how would you feel learning that your child's name has been changed or that you, as a parent, have been accused of abuse?
Maybe custody and access could be decided outside the courtroom. The child's home and relationship with the parents should not be held in limbo while waiting for the outcome of a divorce. Possibly counsellors or mediators could work with both parents and children to decide these issues immediately.
A mediation-type of environment could defuse the emotions and keep the focus on the children. Options can be brought out, such as the non-custodial parent or other family member acting as a caregiver instead of a neighbour or a child care centre.
Allow both parents to take pride in attending school plays. A child who knows that both mom and dad will see them on their birthday or other special occasions is going to be a lot happier. As new problems arise, a mediator could offer more immediate solutions.
But what is agreed to has to be enforced. A child must be able to continue his relationship with both parents and not have it put on hold for weeks and months until all disputes and accusations are dealt with. The onus has to change so that children are automatically allowed to see both parents. Access is not something that should be argued and fought for. Access should be a child's right.
It is in the immediate aftermath of divorce that parents need some help and guidance. As time passes, the bad emotions do fade, and parents will be better able to decide what's best for their children.
The Joint Chair (Mr. Roger Gallaway): Thank you, Mr. Morrison.
Mr. Wayne Allen (Kids Need Both Parents): Thank you for having me come to speak. I'm with an organization called Kids Need Both Parents and I deal directly with non-custodial parents on a daily basis. Unfortunately, I have a very good insight into what has been going on in the courts in this country. Suffice it to say that it has very little to do with law and even less to do with justice.
In the last year, because of my own situation, I studied social policy and a lot of case files and who's been doing what, and some of the stuff I found is very disturbing.
Judge Norris Weisman, who sits on co-custody and access disputes here in Toronto, says:
...it is not unusual to find that the custodial parent
is using the child as a weapon in the matrimonial
warfare and is sabotaging the access visits.
Justice Steinberg, the head judge of Ontario Unified Family Court—he sits in Hamilton, the court that I'm in—says:
In the case of continued or major access
violations, some sanction must be imposed if the legal
system is to retain its integrity. ... It may be that only
by repeatedly bringing the offending spouse before the
court can the access parent `wear down' the custodial
parent and obtain access.”
That's the senior family law judge in this province. When I go in front of this man to seek access and he already has the attitude that the only way I'm going to get the access is to repeatedly bring the offending spouse back to court, there is a problem. There's also a legal term for that, and it's called breach of public trust. It's called fraud. When the courts know that I have to keep coming back to court to enforce an order that they made, that is fraud.
James McLeod, a senior law professor in London, I believe, states:
If the custodial parent is in favour,
access occurs. If the custodial parent is opposed, it
does not. That may be the reality of access rights in
any event. But should the court promote this
We have courts that are saying they don't have the ability to do anything. They do have the ability but they lack the will. The court has extreme powers. They can incarcerate people. They can fine them. They can do any number of remedies. They choose not to because it's easier. The parents should work it out. Access will happen when these two parents figure it out. But if one parent doesn't want you in their life, forget it. You're not getting it. I know that first-hand. My ex, the mother of my daughter, was on the front page of the Toronto Sun for being the first woman in years to be put in jail for access denial.
Recently there was another one in Mississauga. I may be wrong, but the man who did that represented himself. I represented myself. Why is that? Why is there no lawyer around capable of taking an access denial into a court in this land and seeking justice? Because they know what is going on. They know that what is going on has nothing to do with justice and nothing to do with law.
My daughter is about three years old right now, and she's coming into some real problems. I don't know exactly what I can do to help her. I work full-time at this now because there is nothing else I can do. I used to pay $15,000 a year in income tax but now I pay zero, and I'm not proud of that. I used to pay $650 a month in child support but now I pay zero. I'm not proud of that either. But you give me a choice. When I go to work in this country again, I will go to work when I know that if I get married again and have children, those children won't be taken away from me because mom wants something bigger, better, faster, stronger or richer. I want to know what I can do as a parent to be actively involved in my children's lives, because the courts certainly aren't telling us.
My ex kidnapped the child from the Children's Aid Society. On April 23 the judge put my daughter...the first time I was falsely accused of sexually abusing my daughter, I was absolutely devastated. I was off work on stress leave. The amount of money I have lost fighting this battle to see my child would pay her child support for six years, so when she's eight, come and see me for child support.
You guys have known about this for a long time, because I've read your papers. I've read what has been discussed in custody and access. Are you afraid that somebody won't elect you? As a senator, I suppose not. What could possess somebody to allow this to go on? There has to be a reason. I don't necessarily know what that reason is, but I have a pretty good idea—it's easier.
The Joint Chair (Mr. Roger Gallaway): Your five minutes are up.
Mr. Wayne Allen: Okay, I have a couple of solutions.
The Joint Chair (Mr. Roger Gallaway): Make them very quickly, please.
Mr. Wayne Allen: One solution was from Judge Karen Johnston, who states “the solution is to disrupt the children's lives as little as possible”. I believe the key is in the conclusion Judge Johnston made on July 15, 1993, where she states:
The court should start with the assumption that,
absent issues regarding the child's physical, mental or
emotional safety, the continued involvement of both
parents in the child's life is the desired goal; this
involvement ideally will be of the same quality
post-separation as pre-separation. Joint custody,
post-separation, most nearly approximates the relationship
that existed while the parents resided together and
therefore is the most desirable custody arrangement,
The first thing that happens when you go into court is that you get every second weekend and three hours on Wednesday. Right away you are disrupting that child's life. The child is used to having two parents. When you go to court, the first thing the court does is destroy that child's life by ripping half of their family away from them.
Both parents need accommodation for these children when they get out of court. When you go into court and the judge says you give your paycheque to her, the house, the kids and the car.... You don't have accommodations, so how can you keep the kid? You just gave everything to her. It's ridiculous, and they're setting it up for a fall. It's been set up for exactly that to happen. That must stop.
There must be a facilitator in place when access denial is going on—not an assessor or a mediator, a facilitator. At 7 p.m. on Wednesday when you're supposed to see your kids and can't, you call somebody up and your access is going to happen, because that person is going to find out what the issues are right then and there, not six weeks down the road when you get a new judge who's going to adjourn it for another six weeks and another $3,000 bill. I don't need that; I need to see my kids at 7 p.m. on Wednesday.
Allegations must be dealt with swiftly and false allegations must be punished. If you know going into a court of law that you can lie through your teeth and walk out of there with everything you want, you're going to do it. It must be stopped.
All reports from any source—the police station, the Children's Aid Society or schools—anything to do with the children or the two parents and their dispute, must be available upon request to the parents at any time.
I've got a document that cost me $100. Three pages for a $100 document to go to court. I had to go to court to get this. The only thing it says is that mom's unreasonable in telling the cops to fuck off.
The division of property must happen immediately. When you get a lawyer sitting on a $100,000 trust fund, you're going to have a battle until there's $5,000 left there. Get that money separated immediately. Then there will be no fight over the money. If you have to sell the house, then you have to sell the house. Split the money right away.
The Joint Chair (Mr. Roger Gallaway): Mr. Allen, you're extremely over time.
Mr. Wayne Allen: Thank you very much.
The Joint Chair (Mr. Roger Gallaway): I'm assuming that if you've given us a written brief, these suggestions are in there.
Ms. Dory Gospodaric (Co-President, Second Spouses of Canada): Thank you.
My name is Dory Gospodaric and I'm co-president of a focus group called Second Spouses of Canada. I'm here to represent the thousands of women who are in fact second spouses in Canada.
Second Spouses of Canada is not a federally funded group. It's made up of women who have found themselves in a situation that has horrified them. These women have been shocked and disgusted at what they have come to see as an epidemic—an epidemic of abuse.
I personally have seen the divorce issue from two sides. I've been a single parent and I am a second spouse. Let me correct that. Along with these second spouses, I am not billed as a single mother. We may be remarried, we may love our husbands dearly, but I can assure you that our husbands do not bring any money to the table. We are hardworking women and we support our husbands. We support them emotionally and financially while we witness their pain and devastation as we watch them being denied their very own children.
We hear constantly about power and balance and abuse and control. I am here to tell you that these are alive and well, and I'll tell you why. It's an interesting conundrum. Remember, as second spouses we are not only women but mothers too. But look at what we have. We have mothers fighting mothers, women against women, and the cancer is spreading rapidly.
At second spouses, we enter into a process called guilt by association. Now enter false allegations made by one woman against another woman. Did you know that second spouses, women, are regularly falsely accused of being bad parents, of being drug addicts or alcoholics, of having a major character flaw, of not treating children properly, and of hiding money that the other mother wants? Second spouses are subjected to threats and harassment.
Remember, we as second spouses are also the same mothers the courts have sanctified and sanctioned and considered sacrosanct. Do you know how many of us are hauled into court by other women? They want disclosure of financial statements. They want proof of character. They want proof of anything they feel they want proof of. What's occurring with my members is common but never discussed, yet we have three national, federally funded female organizations that claim to represent women. Do they? I've never heard them address the issue of women being abused by other women. I'm deeply disappointed with these federally funded women's groups.
If it were men who were the abusers, you would know exactly what to do, but how do we deal with this? We have no model in the law to take care of this. We have women's shelters, we have laws to protect women against men, yet women and mothers have been silenced.
Did the three federally funded women's groups come here to talk about this? Did the National Action Committee on the Status of Women or the Women's Legal Education and Action Fund or the National Association of Women and the Law bring this to the table? Did they tell you about the abuses perpetrated by women? Are some women more equal than others? Yet these are federally funded organizations, and you're supporting the abusers.
These three federally funded women's organizations claim to represent women. Which women? I guess only certain women. I'm a woman and a mother and I don't care what the gender is of my abuser. I want it to stop, and I want to know what you're going to do about this. Again, you're funding these women who abuse me.
Why are we not hearing about this? The system doesn't protect mothers. The system protects only certain mothers. Why is it that these three women's groups, federally funded, are silent when there is a crisis? This information, I find, has been suspiciously absent by these three federally funded women's groups.
I wouldn't be here if they didn't represented women like me, but there are tens of thousands of women like me being abused. I am here to demand that our voices be heard so that we can protect ourselves against other women.
Just last week the Toronto Star carried an article in the Ann Landers section called “Kids Pawns After Divorce”. It was subtitled “Ex-Wife Limits Girl's Contact with Her Father”. It was written by a second spouse who herself had experienced the pain of divorcing parents, and she was deeply worried. It was another typical story where the children hear from the mother just how awful their father and the second spouse are. Of course, she just brought the father back to court for more support money or to cut his visitation privileges. But what I found really frightening is that the children did not “think that their beloved mother was doing anything wrong.” This ultimately led to everyone being in counselling.
The ex-spouses actually took parenting classes. The second wife and her husband are seeing a marriage counsellor, and the children are in family counselling. Now two families are involved in this insanity. And do you know what happened? The writer states that co-parenting classes were a colossal waste of time for the parents. Nothing changed. In fact, things got worse.
So many mothers really don't care. Their ire is more important. And Ann Landers' response was that it is clear that the mother's refusal to cooperate is rooted in her anger at the new wife for being happy with her ex-husband. What a crime. She also hoped that the father owned some oil wells to pay for all of this, which is true.
As I said, I'm Dory Gospodaric. I represent the unofficial second wives club. We're mad, we want to be heard, and we want some funding, too. Thank you.
The Joint Chair (Mr. Roger Gallaway): Next, from Balance Beam, is Mr. Vorsteveld.
Mr. Tony Vorsteveld (Facilitator, Balance Beam): Thank you for requesting me to appear. My name is Tony Vorsteveld. I'm a custodial father, founder and spokesperson for Balance Beam, a support group for families experiencing divorce, and a member of Equal Parenting of Canada.
My two sons are with me, and a member of Balance Beam, Walter McCarthy. I've asked my sons to come along because part of what I have to present they have had to live through.
Last winter my sons' grandfather, Grandpa Sam, died of cancer. I had met the man once. They had never met him. When we learned of his death, he was already cremated. The alienation happened over 40 years ago during a custody dispute over my children's mother. It was extremely successful. What we're beginning to understand of parental alienation syndrome is only the tip of the iceberg. Not only was the death of Grandpa Sam a destruction of a relationship, so was the relationship between my children and their grandmother.
My children are angry and want accountability from the grandmother. I, and we of Balance Beam, are angry and want accountability from a system that allows this sort of thing to go on. We must have rigorous accountability of false allegations. This could be legislated through Senator Anne Cools' Bill S-3. The beauty of this bill is that I believe lawyers will hold their clients accountable for what they bring to the table. It's perfect. Please pass the bill.
Children are entitled to four things in life: food, clothing, shelter, and the love of both parents. Because of these four human entitlements, we must have a presumption of joint guardianship, or shared parenting, if you will. It takes a mother and a father to properly raise a child. The feminist notion that you don't need a man does not apply here.
Traditional psychology of late is beginning to learn that emotional abuse is far more damaging than physical abuse, and therefore deprivation of either is child abuse. We must have identical enforcement of access and child financial support.
My second issue is that of family violence. By that I mean a child's physical abuse and spousal physical abuse.
First, I'd like to quote from a book entitled Child Abuse and Neglect: The Family and the Community by Drs. Ray Helfer and Henry Kempe. Chapter 1 is authored by Dr. Brandt Steele. Some of you many know him.
On page 8, Dr. Steele says:
Our own studies have indicated that both abusive men
and women have very similar attitudes towards children,
sharing the same patterns of child rearing and the same
concepts of how parents should behave. There is thus a
kind of collaboration between the parents, regardless
of which may be doing the actual abusing.
On page 14:
Those who have been maltreated in childhood have an
uncanny ability to find and to marry someone with a
similar background and similar ideas about child
rearing. Thus the abuse or neglect of offspring can be
an unconscious collusion or cooperation between the
parents, even though only one of them is the active agent.
Many fathers are alienated from their children because they are alleged child abusers. Our custody dispute cases verify that. What we don't see here, and I think we've all heard it, is wait until your father gets home.
I know a gentlemen who, upon returning home from work, was instructed by his wife to beat one of his children, the reason being that she couldn't do it hard enough. During a custody dispute, this man was charged and convicted of being a child abuser. If our laws are to remain gender neutral, the fairer thing to do would be to charge this mother with an indictable offence. She did use her husband as a weapon.
There's a twist in this story. That particular time the father didn't discipline the child, and he was in turn abused by his wife.
Because research has determined that both mothers and fathers abuse their children in relatively similar amounts, what's in the best interests of the children is for the abuse to stop, and not to be alienated with one of the abusers, whether it's by the active agent or not.
If legislation is going to intervene in the lives of Canadian women when they're separating, then we need to legislate counselling and mediation for those experiencing violence. It has been said earlier here that some will not go, and I say that is okay. Resistance to counselling and mediation are cause to have parental responsibilities restricted on a sliding scale.
It is also the duality of child abuse that produces spousal abusers in relatively similar amounts, which is not to say that all those who abuse their children go on to be spousal abusers. However, it is fair to conclude that where there is spousal abuse or child abuse, there is a history.
It has been brought to this committee's attention that anger management programs for male spousal abusers is not very successful. This is true, and some focus needs to be brought to the issue. A program widely used in Canada originated in Duluth, Minnesota. It is called the domestic assault intervention program. For every five men that enrol, only one successfully completes the program without any lasting effects.
On the west coast we have similar programs, one of which is spearheaded by Dr. Donald G. Dutton, a renowned psychologist. He's worked with men in a clinical setting for at least 15 years.
In his book The Batterer, he concludes that, if anything, he has found a decrease in the number of assaults, not in the number of assaulters. Dutton made two discoveries, both of which are significant for me and as keys to the solution.
On page 74, he says:
The clue to an earlier origin was that cyclical
assaultive men experienced the symptoms of post-traumatic
stress disorder (PTSD), the normal reaction anyone would have
to a highly disturbing situation such as an attack or a
On page 75, he said:
The batterers whom I researched scored
high on tests used to measure trauma symptoms such as
those Mike described. In fact, their psychological
profiles were surprisingly similar to other groups of
men, such as
Vietnam veterans, who had been diagnosed as PTSD.
At first, this was confusing to me. Common sense
dictates only victims suffer trauma symptoms—not
perpetrators. Were batterers also victims?
I say yes. It's documented that we have identical roots by Steele. Dutton has diagnosed PTSD in men. And all academic two-sex research shows no statistical difference when focusing on spousal abuse. The limited data we have on self-defence does not support the implementation of police policy either.
Dutton gives us one more clue on page 179:
Despite the male trappings of power, they experience
Everything in Dutton—
The Joint Chair (Mr. Roger Gallaway): Mr. Vorsteveld, your time is up. I wonder if you have very specific recommendations.
Mr. Tony Vorsteveld: I'm just about finished.
The Joint Chair (Mr. Roger Gallaway): Proceed, please.
Mr. Tony Vorsteveld: We believe that if custody and access are tied to abuse in the family, then the family must be helped collectively, and for one more reason other than those mentioned above at this point.
Dr. Don Keillor, past director of the Perth Huron Centre for Youth and Children in Huron County, attended a conference here in Toronto. The subject was why some children in abusive households grow up to not act out abusively.
The key was that a close family member such as a grandmother, grandfather, aunt, or uncle intervened in this person's life. This intervention is absolute. They looked at these children who were not abusive. They weren't looking to try to fix anything. That's what they found.
Because of strong positive involvement, family-mediated counselling must be family-oriented to preserve the extended family. They seem to have the greatest impact.
Continued physical violence, a lack of cooperation, and a disregard for shared parenting would either mean a total loss of parenting time or a decrease in parenting time. The priority must always be the family, as the family is the fabric of society.
If this committee will recommend child-centred or family-oriented legislation, I can promise you that when I go home I will do my part to decrease the divorce rate.
The Joint Chair (Mr. Roger Gallaway): Thank you very much.
We'll start with Senator Jessiman.
Senator Duncan Jessiman: Was I correct in hearing you that you are a custodial parent?
Mr. Tony Vorsteveld: Although I dislike the term, yes.
Senator Duncan Jessiman: Although you dislike the term, you're the one who has the custody or has access. You look after the children.
Mr. Tony Vorsteveld: I happened to win the battle.
Senator Duncan Jessiman: Okay. Does the non-custodial parent work?
Mr. Tony Vorsteveld: Yes.
Senator Duncan Jessiman: Does she contribute in accordance with the guidelines?
Mr. Tony Vorsteveld: Financially?
Senator Duncan Jessiman: Yes.
Mr. Tony Vorsteveld: No.
Senator Duncan Jessiman: Have you asked her to?
Mr. Tony Vorsteveld: No.
Senator Duncan Jessiman: Okay. But you know that you have the right to.
Mr. Tony Vorsteveld: Yes. I'm not concerned with my rights.
Senator Duncan Jessiman: I'm sorry?
Mr. Tony Vorsteveld: I'm not concerned with my rights to monetary funding.
Senator Duncan Jessiman: I see. That's the difficulty, I guess, with men. When they take custody, they assume the responsibility in every way, which was the—
Mr. Tony Vorsteveld: It seems to be more difficult for a custodial father to gain financial support as compared to a mother, so it just wasn't an issue for me.
Senator Duncan Jessiman: Does the non-custodial parent get access to the children?
Mr. Tony Vorsteveld: As much as either the children or the mom want. There are no restrictions there.
Senator Duncan Jessiman: I see. Is there an order at all from the court?
Mr. Tony Vorsteveld: You're testing my memory here. I have an order for my oldest son; for my youngest son, no.
Senator Duncan Jessiman: I see. That's all. Thank you.
Mr. Tony Vorsteveld: Thank you.
The Joint Chair (Mr. Roger Gallaway): Thank you.
Ms. Carolyn Bennett: Forgive me, I probably should know the answer to this question, but at the moment, if there's a false allegation of abuse, either child or domestic, if that is disproven in terms of the litigation or whatever, what happens now?
Ms. Dory Gospodaric: The problem is that it's never disproven. It's very difficult. That's the catch-22. It's not provable, but it really stays on the record as something that happened. It's like where there's smoke, there's fire, so something must be happening.
That's the really bad part of that defamation of character. It's really hard for it to ever go away. It kind of stays there forever. There's just something a little bit funny. I think that's what we're talking about in terms of abuse.
I could just as easily sit here today and say that I really just kind of don't like one of you, and you kind of looked at me wrong. I'm going to put it down in an affidavit because I have a right to, right? I figure that if the court is going to let me get away with it, you try to justify and explain that you really did not mean me any harm or that nothing bad happened. That's what we're left with.
I'd really like to say that there have to be some criteria. There have to be some very firm guidelines for what enters the courtroom. I think that has to be encoded. I don't understand that, even in this democracy, anything you ever want can go. We're wasting valuable court time. They're overloaded as it is.
Before anything comes to court, there has to be an analysis of absolute proof that there's something worth while. It should not just be like saying here it is, we'll all spit it out. I can't believe courts have not done that.
Ms. Carolyn Bennett: We're trying to figure out if there is a way we can stay out of the court.
Ms. Dory Gospodaric: That's right. Don't let the stuff enter without absolute proof.
Ms. Carolyn Bennett: But if we went to alternative dispute resolution, maybe these sorts of allegations would be less likely.
Ms. Dory Gospodaric: That's not so. We've been through that, and I can speak on the part of myself.
Ms. Carolyn Bennett: So once it's out there, it's sort of a bad smell. There's nothing anybody can do to get it back.
Ms. Dory Gospodaric: No.
Ms. Carolyn Bennett: I used to do a little bit of work as a family doctor for the official guardian's office in these sorts of allegations. Sometimes it would just be that they would try to tell me there was a rash. It was actually that they didn't like the new wife's perfume, I think, or that the child smells differently on return. You realize that it's a very honest emotion, but it wasn't actually based on fact.
I guess it's obvious that they used to try to use family doctors like me to try to sort out these things, but now, with decreased resources, there just isn't a way of sorting these allegations through.
Is that what you're saying?
Ms. Dory Gospodaric: You're right. So don't let them come up.
We shouldn't be able to write anything we want on a piece of paper at any time because we feel like it today or because I don't like my neighbour or I don't like the colour of your suit, or you may really have not been nice to my child by saying hello. I can't put this down just because I feel like it. There has to be more to it.
We've gone way overboard with what we think is right. It's to the point that we've actually created incentives, almost, condoning this. So incentives have actually become part of the norm for this kind of fraud.
You can put it down, and what a great high that is. It's the ultimate high. If you can get away with it, absolutely. But it does do irreparable damage. You know that even in a workplace, as soon as someone thinks you may have done something wrong, it kind of stays there with you. You never get away from it.
Ms. Carolyn Bennett: Obviously the children are very involved in hearing these things.
Ms. Dory Gospodaric: Yes.
Ms. Carolyn Bennett: If the children actually know it's not true, do they deny it? Is there a place for the children to have a voice in this and is it an effective voice in this situation?
Ms. Dory Gospodaric: No.
Ms. Carolyn Bennett: Could it be?
Ms. Dory Gospodaric: No, they don't have a voice and I don't believe there is an effective place for that voice. It's the very thing I heard the other lady talk about—the parental alienation syndrome. I have actually been witness to it in my home where these things have come forward in my stepchildren, and they do create their own scenarios. They actually have come up with scenarios that absolutely never in their lifetimes happened but they began to believe them.
Their mother in fact wanted over and over, through the dispute process, to hire lawyers for these children and has dragged them to court as well to speak. We have declined to do that because we know they will just say whatever they feel they have to say to survive with their mother. So I don't think you will get the truth from children. I think it's almost impossible.
[Editor's Note: Applause from the audience]
The Joint Chair (Mr. Roger Gallaway): Please, no applause. Mr. Mancini.
Mr. Peter Mancini: I have just a few questions for Second Spouses of Canada. This may be a very stupid question, but when I taught I used to say to my students “If you don't ask something stupid, I can.”
We've heard from you today and we've heard from Stepfamilies of Canada, Ms. Grande. You made an interesting statement. You said we're at the point now where there are women fighting with women. You represent a number of women and so does she.
Has there been any type of communication between your groups and the groups you've been critical of today? Is there no room for any kind of dialogue there? I find it curious that I see two groups representing women—and I'm not going to say who speaks for the majority of women and who doesn't—at such loggerheads, talking about children. I'm not excluding men from this in saying we should all look at the child as the centre of this, in the best interests of that child. Is there no room for dialogue?
Ms. Dory Gospodaric: I'm going to be very blunt because I think there are two types of women and maybe more, but I'll talk about the two I know about.
Senator Anne Cools: There are more than two, I think.
Ms. Dory Gospodaric: There are many more than two. There are greedy women and there are women who are not greedy. I'll just leave it at that as a very simple statement and you can have offshoots from that. I'm not really sure it's care from the one group as much as the women seeing how much they can get. That's what really divides us.
Mr. Peter Mancini: Okay. But I guess in terms of these formal organizations there's no dialogue.
Ms. Dory Gospodaric: No, because, you see, it's very difficult. When we come to them we look very strange. I have had them actually say to me, “Are you an idiot? You could get so much more, Dory, if you went after your ex-husband so we could continue to perpetuate the insanity in this abuse.” Lawyers have also said to me “You're not getting enough girl. Go for it.” I hear this all the time.
I wondered if I was the only one who was absolutely not greedy, but this is what's happening. There's an awful lot of power out there and it has become self-centred. It's become selfish. It's like opening a bank, and if you're given any service for free or money, there will never be enough. I'm talking about self-responsibility here.
Mr. Peter Mancini: Okay. Let me just ask this one other question, if I have time. If there is in fact a possibility of dialogue between your organizations and the National Action Committee on the Status of Women and what have you, what's the answer here? How do you deal with the problematic situation you've presented us with?
Ms. Dory Gospodaric: I wanted to point out that situation, because we keep talking about men who are abusive to women. I just want to point out to you that in fact it's become so ridiculous that we have women against women and mothers against mothers. That's what happens when you give a group that much control. The abuse of control starts to happen. We've seen that historically, we've seen that politically, we've seen that everywhere. That's what's happening and it's really getting crazy.
So we are being charged with the very same stuff you're hearing, that men are being.... So you have to start imagining that something is very strange here; something is smelling very badly.
Again, I don't understand. I want to make it simple. I don't understand at the very first instance why we have such an issue about these children. When people are married they have children and they both are in charge of the children. Our Divorce Act deals with the two adults who are separating and ultimately divorcing. I have not seen anywhere in there where there is a statute to the fact that either parent has to divorce the child, and that the child therefore becomes the property of one person. I just don't get it. If we go right back to the very beginning and ask ourselves why indeed we are doing this, then perhaps we can easily arrive at it any way you talk about it.
Mr. Peter Mancini: I would agree with you that at the time of divorce there is no divorce from the children; that's a good way to put it. In some cases parents can work that out. Surely the only time that the state should intervene is when the parents themselves cannot come to that agreement.
Ms. Dory Gospodaric: That's right. And when you don't have an even playing field, when you have one party who's going to get all of this and you have the other party who is likely not to get very much, if any, of that, why is anybody going to mediate it? You only mediate when both have something to gain and something to lose. If somebody's going to get everything, why the heck would I mediate something away that I know I can have? Am I going to be an idiot?
Mr. Peter Mancini: Okay, thank you.
The Joint Chair (Mr. Roger Gallaway): Senator Cohen.
Senator Erminie Cohen: My colleague Mr. Mancini has covered most of it.
I just wanted to say to Dory that in view of all the divorces that are taking place epidemically across the country, I do feel that you have a very strong case for government and its surplus dollars. We've neglected the second spouse, and they're growing in numbers. In order to be fair to the child, this committee should take a very hard look at that whole aspect of the second spouse and the support vis-à-vis when they are starting to grant other women's groups.... So I thank you for that.
The Joint Chair (Mr. Roger Gallaway): Senator DeWare.
Senator Mabel DeWare: Thank you very much. I just want to summarize a little bit of what we've heard today and then see where a few people can fill in the spaces that perhaps we're missing.
First, it looks as if they would like the government to provide legal aid fairly for everybody who needs it. I hear there's some discrepancies there. Also, custody would be very nice if we decided to use the word “parenting” instead of “custody”, and that would go a long way in all of our thinking, I'm sure.
There should be mandatory information sessions, to begin with. Now, this is if you have children and you're on your way to a divorce. If you're going to divorce you should have a parenting plan. What that parenting plan will do is force couples to think seriously about their responsibilities as parents even though it may be a volatile situation. It will make them think about what they have to do to facilitate this divorce.
Then they have been telling us that judges need to have special training. That point was very well received in this room today. After divorce there should probably be some ongoing mediation and a facilitator who is available at all times.
Can I ask you to fill in the blanks for me? What am I missing here? It's not that simple, I realize that, but would it make life easier if these things fell into place properly.
The Joint Chair (Mr. Roger Gallaway): Mr. Morrison, you go first.
Mr. Rick Morrison: I think you summed it up very well. The hatred that fills the room when you hear people talk tells you that the system certainly isn't working.
In my case, I'll just briefly say that my ex-wife and I did not end up in the courtroom battlefield. We talked it over on the phone, and although it was heated at times we never did hire lawyers to get into the courtroom. We separated on our own, we had it written up, and it actually has worked out rather well. It doesn't have to be the way it is, but you need some help to get it started on the right foot. Once you get those emotions of hatred and greed and everything else going, it's fairly hard to diffuse them. I was very fortunate; my ex-wife was a good person. We're on the right track, and you summed it up very well.
Senator Mabel DeWare: Thank you.
Mr. Wayne Allen: One of the things you have to do is get on it immediately. Six months down the road or a year down the road the damage has already been done. It has to happen right away.
I've found that people are being alienated in six months. If they don't see their kids right away, the alienation process has already started. As soon as there is a denial of access it has to be curtailed right away. As soon as you have the two parents knowing that this access has to happen, it's going to take away a lot of the problems.
Senator Mabel DeWare: How do we do that? How do you enforce that quick meeting?
Mr. Wayne Allen: You have to be able to get back in front of a judge right away. And the judge can make the determination of whether somebody is being silly or not, or if they are being vindictive. They can find out. If your access starts at 7 p.m. Wednesday and you're not getting it, you can phone somebody. If mom phones up and says that dad's drunk, okay, it's not a problem.
Senator Mabel DeWare: So early intervention....
Mr. Wayne Allen: If there is an unreasonable denial of access, you should be in court the next day, because that next access is going to be denied and denied. By the time you get to court six or eight weeks later, the problem has just snowballed.
Senator Mabel DeWare: Does anyone else want to speak to this?
Ms. Dory Gospodaric: I had a question. What are judges going to be sensitively trained to do?
Senator Mabel DeWare: It was suggested that they be able to deal with family situations, with family divorce, with custody and access and all the things that go with it, and that they be very sensitive about the issues. Some of them are not trained in that field or they are not interested in that field, but they should be specially trained in just exactly what to say. If we don't come before the judges in time to have early intervention, what's going to happen? They have to be sensitive to those issues and not say “Sorry, my court is filled; I can't see you for four months.”
Ms. Dory Gospodaric: I'm not really interested in hearing a judge say sensitively or kindly, “I'm sorry, we know there is contempt, but you still can't see your child. I'll apologize for it now because I understand that's hard on you.” We have to have actual enforcement. Why is that not happening? Why are we protecting this custodial mother and letting her get away with it? I don't understand that.
[Editor's Note: Applause from the audience]
The Joint Chair (Mr. Roger Gallaway): Before we go on, I have something to ask. This not a town hall meeting; it's not a popularity contest; we cannot have applause in here.
Senator Mabel DeWare: I feel the suggestion also was that the judge would have the responsibility to definitely make a decision and a court order at that time, quickly and efficiently.
Ms. Dory Gospodaric: Because it is the law. Contempt of court is contempt of court. A court order is the law. Is that correct?
Senator Mabel DeWare: That's right.
Ms. Dory Gospodaric: And why is it not enforced?
Senator Mabel DeWare: We don't know.
Ms. Dory Gospodaric: You see, that's the problem.
A voice: I could probably answer that.
Senator Mabel DeWare: That's what he's testifying. It's the same as the grid we put together last year on child support. Child support is supposed to be there.
I said yesterday, and received quite an alarming response, that if the father's or mother's situation, whoever the non-custodial parent, is changed, therefore the amount of support they pay should be changed as well. If he loses his job, there's a situation. I said, “You go before the judge and he's going to make those...”, but they just laughed at me.
Ms. Dory Gospodaric: It doesn't happen like that.
Senator Mabel DeWare: It's supposed to happen, as I say, according to the law.
Ms. Dory Gospodaric: It happens for the money, but when it comes to what really matters, the children...I've never seen a child on a psychiatrist's couch because he didn't have an extra rollerblade when he was young. There will be a problem with being denied...it's the death of a parent, and it's a slow, long, lingering, cruel death. It's an atrocity, and I don't understand.
So why do we have this in the law? Why don't we get on it?
I'm telling my son this. He's really confused, as are all other male children. He says. “Mom, what's going to happen?” I say I'd like to get the answer, because I'd like to know for sure. If we have decided as a society and the law that men absolutely don't count—you're the sperm donor, you have to have that to make the baby, but you don't count any more—then let's know this, let's stop pussyfooting around. If we are coming back to believe that we would like that father back because it's important, and I believe that it is, then either we're going to do something about it or we're not.
The Joint Chair (Mr. Roger Gallaway): I know that others want to respond, but Senator Cools has a question.
Senator Anne Cools: The witnesses have raised, I think, very, very important philosophical and moral questions. I would especially like to thank Mrs. Gospodaric for that.
The issues that especially you have raised have been bedevilling a lot of us for quite some time now, which is the silence or the fear of being silenced around raising any issue that has to do with the possibility that women may be just as violent as men, or that women may be just as deceitful or evil any man.
What is this fear, this grip, this reluctance that seems to hold so many people from coming to terms with the fact that a woman can be just as treacherous, just as evil, just as greedy, just as whatever as any? As human beings, we are afflicted with human imperfection and human altruism, just as human vices are roughly shared between the genders. I know it is a massive philosophical debate that is making its way felt, and it has enormous moral overtones and underpinnings.
I wonder, Mrs. Gospodaric, if you have wrapped your mind around what this fear is that grips, because I tell you, it is a dangerous business. I raise it because the attempt to silence people is very profound. Donna Laframboise, who writes about these very issues, said a few weeks ago in my very presence that raising these issues or talking about these issues is a dangerous business. I wonder if you've wrapped your mind around it.
Ms. Dory Gospodaric: I have, a great deal. There is a fear. I guess it goes back to what women considered—and this is the process going on—equality. Briefly, I think that feminism was wrapped around equality. Yet there's a real irony here, because in order to have equality, you also have to take responsibility.
So in order to take responsibility...and I've been through this process. For instance, when I had my child, when I was married, I never thought it would be up to my husband to have to be responsible financially or otherwise. It was great. We had the child together. If, at the end of the day, something were to happen, assuming that there's a 50% divorce rate, I knew I was going to have to be self-sufficient and raise this child, however—with or without. That was my responsibility.
But women today want this equality. They want to whine and they want to complain and they want someone still to take care of them. Ironically, at the same time, they state that they want equality and freedom from men. That's a complete contradiction of terms.
I think that politically it's been very incorrect to slam women because they've been out there parading, and it's not a nice thing to say, because we want everybody to be happy. They've had a very, very loud voice, and I think there's a tremendous fear of upsetting women. I can't speak for every politician. I'm not sure that all the votes should be wrapped around women, but that seems to have become the case.
I have never felt for a moment that because I, as a woman, have biologically been born with a uterus, that somehow makes me superior. Unfortunately, it's the only way we can reproduce children, but that doesn't make me in any way better or superior. I don't understand why it is that we are so frightened of women and their voices, while at the same time they're still looking to that man—be it the boss, be it the neighbour, be it somebody else that they have to blame—and we're buying it hook, line and sinker.
We're promoting it and condoning it and emphasizing it by saying, “But okay, poor woman, you have those children.” If it's not enough, she will say, “My husband was terrible. He did nothing. He's providing nothing”, and then we, as the government and society, will say, “If you don't have enough, come to me, and we'll give you more.”
Well, as long as you can keep getting away with it, I'd holler and scream pretty darn loud too, because I'd want it. It's a freebie. It will never stop, and you will never satisfy them. I can promise you.
The Joint Chair (Mr. Roger Gallaway): Thank you.
Thank you all for coming. It's been most interesting and I think very productive.
We'll adjourn for three minutes for our next group to join us at the table. Thank you.
The Joint Chair (Mr. Roger Gallaway): We will now come to order, please.
We'll begin our third hour of this afternoon. We have a panel of individuals; I see six. With us this afternoon are Wendy Dennis, Cynthia Marchildon, Mr. Lynch, and Mr. Ellis.
It's getting late in the day. I don't want to limit what you say, but please be very brief. We'll allow up to five minutes. I'll have to cut you at five.
Mr. Patrick Ellis (Individual Presentation): Thank you very much for having me here.
I'd like to start by saying that when you're dealing with law, there's no better approach to your legal problem than to deal within the structure of supreme law of Canada, which is the Charter of Rights and Freedoms.
It is not uncommon to systematically go through the yellow pages, call up 100 lawyers, and have 101 of them tell you they don't know anything about the Charter of Rights and Freedoms. In the back of “Martin's Criminal Code you have the Charter of Rights and Freedoms. Minus the annotations, there are 256 lines and one line would be “citation”. There is absolutely nothing in the Charter of Rights and Freedoms that allow us, the province or the state, to have a women's directorate, to have wife assault courts, to have battered women's shelters.
How do I come about this? The 1960 Canadian Bill of Rights had a reference to the family that isn't in the Charter of Rights and Freedoms. Other parts of the Canadian Bill of Rights were taken apart and put into sections 2 and 7 through 15 of the Charter of Rights and Freedoms, 1982.
Under subsection 15(1) of the charter everybody's equal before and under the law and has equal benefit of the law. Subsection 15(2) allows the state to implement programs aimed at the amelioration of conditions of disadvantaged members of society. They included sex in there. You can't have sex in there by virtue of the English language, because the notwithstanding clause, section 28, says “Notwithstanding anything in this Charter”. The rights referred to in it are guaranteed equally to male and female persons, notwithstanding subsection 15(2), equal rights. This is notwithstanding section 96 of the British North America Act, 1867, that says when you appoint a judge to the bench, for every male person appointed a female person has to be. We don't have that, do we?
I would assume it's somewhere around 80-20. The test for it would be section 1, the reasonable limitation clause. That's not a reasonable limitation—55-45 maybe, either way.
You have $60 million from the Ontario taxpayers to fund women's groups. Forget about men, they're not important.
Mr. Chrétien and Mr. Trudeau took out the family in 1982; however, there is a saving under the international law. Fact sheet 15, International Covenant on Civil and Political Rights, article 23, section 1, says:
1. The family is the natural and fundamental group unit
of society and is entitled to protection by society and
Section 4 states:
States Parties to the
present Covenant shall take appropriate steps to ensure
equality of rights and responsibility of spouses as to
marriage, during marriage and at its dissolution. In the
case of dissolution, provision shall be made for the
necessary protection of any children.
We don't have family here any more. We've got division of the sexes and we have polarization. It doesn't look good.
In domestic violence situations the Police Services Act of Ontario supersedes the Canadian Charter of Rights and Freedoms. That's in writing, it's in this document before divisional court, file 123/96. There's a written statement from internal affairs, which is part of the Attorney General's office, saying that, and I have a wire tap. The second investigator on my case has done the same thing.
I serve the Attorney General and the federal Minister of Justice with my notice of constitutional questions, form 4F. The justice minister can't be bothered to respond.
The Attorney General is opposing my constitutional rights, and in domestic situations it's always the man's fault. In this document, the police have to charge the man; otherwise, the police officer will be charged under the Police Services Act. When you're dealing with domestic violence, maybe somebody should be looking at section 233 of the Criminal Code, infanticide, whereas a woman can be—don't get me wrong here. It's a miracle, the miracle of birth, absolutely.
I don't think anybody in this room would turn around and say it's an easy feat, blasé, whatever. There's got to be cause and effect. You see a woman who can bear a child and be absolutely normal...to a woman who bears a child and commits murder. That's not right. Let's take it out of criminal courts. Let's put it into the psychiatric and the psychological field.
We have 27,500 lawyers in the province of Ontario at this time. We have more lawyers than police officers. This is a system built by and for the lawyers; it's been plunked there.
Wayne Allen he goes to court. If he wants something done, he has to do it himself. He goes to the lawyers, and he's asked, “What's the bottom line on your financial statement?” This is how it's going to go.
I lost $42,000. My wife tried to murder me. She ran me down with her truck. I reported it to the police. Not only did they throw me in jail, when I had injuries...and aside from the Zurich Insurance investigation, the report I got back was wrought with fabricated evidence and obstruction in justice. Can I get anywhere in Canada? No way.
The Statutory Instruments Act—the duties imposed on the Senate—
The Joint Chair (Mr. Roger Gallaway): Mr. Ellis, your time is up. Could you summarize any recommendations you might have?
Mr. Patrick Ellis: Yes. We have a Charter of Rights and Freedoms. Use it or lose it.
Section 26: the question becomes, does a biological parent have a constitutional right to the biological child? Yes or no? If it's yes, okay. If it's no, you're raising children for the state. If a biological parent has a constitutional right to the biological child under section 26, the blanket clause, under section 28 you have equal rights. You take care of the welfare moms, you take care of the gold diggers. Then you get into the true meaning of the family—commitment.
Things happen, I get married. Things happen, we split up. Okay, fine. She can't stand me, I can't stand her, but there are two little people. Thank you.
The Joint Chair (Mr. Roger Gallaway): Thank you.
Mr. Trevor Lynch (Individual Presentation): I really don't know what to say.
Let me start with an article I read, which was written by Barbara Amiel. She talks about status law back in feudal times: if you were born a prince, you did well; if you were born a peasant, you didn't do well. Law was based on status, and from there we moved toward contract law.
She talks about how now we're back in status law. In today's model one is either a member of the preferred gender of group A, the females, or group B, the males. One is either a member of a formerly dispossessed group benefiting from affirmative action and pay equity or a group penalized by both.
One should look at the paradigm we're operating under. I met a woman who had a baby, and I found out under the law that men are fathers of conception and women are mothers if they decide to have a baby. If a mother decides she wants to abort the baby because she doesn't want to support it, that's done, and it's paid for by the government of Canada.
I had a child and I had no rights. My daughter is five years old. I still have no rights. I never went the legal route. I've been arrested twice for harassment and domestic abuse, and the most embarrassing and humiliating experience I've had was reading the disclosure. Actually, I didn't know harassment existed. We were arguing on the phone, by the way.
I was treated like I was living in a third world country. When I read the disclosure and saw the ridiculous lies that were written, it really hurt that I would be arrested for something like this. Then I found out I would have to go to court and defend myself and that I was guilty until proven innocent. I was told by men's groups, who hardly exist because they get no support in this country.... That is the most bizarre imbalance, and that people would ignore such a bizarre imbalance is quite irrational.
I was arrested, and I went through the rubber stamp process of signing a peace bond. I resisted it the first time. The second time I signed. I asked for a copy. The lawyers don't care. You might as well have bureaucrats doing it. It would save me a lot of money.
I signed a peace bond. At the last minute, in what was a criminal harassment charge, a matrimonial issue was thrown in without my consent. While I was standing in front of the court, the peace bond was changed at the last minute to include that it was against the law for me to talk to my daughter.
A voice: That's typical. It happens all the time.
Mr. Trevor Lynch: I'll tell you something. I spent four years doing nothing but working and going to this woman's place. I was never allowed to go anywhere with my daughter unless I was with the woman or I went to the woman's place. All I did for four years was work and go there. My daughter knew she had a father.
We started arguing because I was never allowed to do anything with my daughter. I watched the woman become socialized by the Canadian legal system and your institution to believe that sole custody was what life's all about. I can't blame any woman or man for becoming irrational and selfish and greedy if they're taught that sole custody is the way the rules are, because sole custody is a zero-sum game.
I can understand how any woman would be threatened. It's a shock to be told the Government of Canada owns your children and they can be allocated according to some arbitrary decision by a Indeed, if you're a man, that's a system not on your side.
I've seen this woman become more and more criminal in her behaviour. I can understand her motivation. I've never gone to the lawyers. The lawyers have always told me...I go to lawyers. I know women's rights right away. I've gone to lots of lawyers. I don't know men's rights. They don't have any.
I've gone to lawyers who tell me I have to take the power away from her. What is the power? The power is sole custody. The woman becomes socialized to think that power is everything, and if you threaten that power, they become defensive. After a while the children are not important. The sole custody issue is all that counts.
I've been cut off from my child's day care by a day care worker, when there is no agreement saying anyone has custody, because we've never gone to court. I haven't been there for a year and half. I was arrested and signed a peace bond.
I have a friend who was called every day by his daughter, who was asking him to come over, and this friend has gone over there every day when it's against the law for him to talk to his daughter or be around that woman. Now, that's risk.
This woman has learned that she can say anything and I'll be arrested, and I've learned that too. I know she can say anything at any time and I'll be arrested.
My friend goes there under those circumstances. My friend goes there and talks to his daughter any time she snaps her finger. My friend talks to his daughter about her day care, but he can't tell his daughter why he can't go there when he used to go there all the time.
The one child who used to run and hug her father or mother all the time was mine.
This woman is being taught this by your institutions. I didn't want to pursue the legal route. I didn't want her to be socialized more in your institutions, because they're really corrupt.
The Joint Chair (Mr. Roger Gallaway): Sir, your time—
Mr. Trevor Lynch: How much time do I have left?
The Joint Chair (Mr. Roger Gallaway): None.
Mr. Fox, please.
Mr. Walter Fox (Individual Presentation): Hi. I'm a criminal lawyer. I've been in practice in criminal law just over 30 years. I want to share with you some observation from a criminal lawyer on the family law process.
Family law, as I guess you all know, has a serious and profound impact on the people who become involved in it. The family law process decides who will own the house, who will pay, who will receive money, and how the children will be raised, including how they will be educated and what religious training, if any, they will receive.
The family law process also has a profound effect on Canadians as a whole. There is no family in Canada that is untouched by the family law process and the attendant divorce industry.
As a criminal lawyer I deal with accused people who, when they come before the court, have the protection of the Charter of Rights and Freedoms and the whole common law. It is stunning to me that in the family law process, the future relationship between parents and children and grandparents is decided without even minimal attention being paid to due process and propriety.
In Toronto, which is what I know about, family law matters had for years been decided on interim motions, very often in a back room. The parties are not even present. There is no transcript to record the various positions taken by the parties and the judicial officer or officers. We learn in history, from the Star Chamber, that this kind of process inevitably leads to abuses.
I speak as a lawyer, and given the way the family law process functions today, our courts are the last place to decide issues of custody and access.
Civil courts generally have an internal regulation called costs. If you come to court and lose an adjournment, you lose a motion, or you lose a trial, in Canada you have to pay costs. In a custody matter, where the issue is supposed to be how much the custodial parent will get in order to properly raise the offspring, how can we make that parent, usually the mother, pay costs? In the absence of costs, the anticipated custodial parent faces no sanctions with respect to their conduct toward the court or toward anybody.
Perjury is common, but how can we put the custodial parent in jail for lying? As a result, the family law process ricochets behind closed doors or even in open court without a transcript and without any of the basic sanctions our courts have traditionally used to control the process.
A single court order ordinarily deals with both maintenance and access, but maintenance is enforced with jail and access is not enforced. Doesn't this send different messages to both boys and girls about equality and the law?
If I am correct in my view that the defective family law process combines with a societal view that favours mothers over fathers, our courts are not serving us well in these matters. I understand that the committee is looking for assistance in helping to solve the custody and access problems that appear to exist.
I'm not able to recommend any legislative changes to the Divorce Act as that act already deals with: (1) the duty of lawyers to consider reconciliation and to recommend mediation; (2) the duty of the court to consider any possibility of reconciliation; (3) the duty of the court on custody to consider the best interests of the child; and (4) the duty of the court on access to consider maximum contact with the non-custodial spouse. It's in there, it's in the Divorce Act. The court has to consider those things.
The Divorce Act as it stands is fine. However, it's a little bit like the constitution of the former Soviet Union: there's a vast difference in how it reads and how it's applied. I urge the committee to consider ways of enforcing mothers and fathers and the family law process to obey the ordinary rules of court as they apply in all courts: not to lie and not to waste the time of the court.
It must be apparent to this committee that the family law process is seriously flawed. I urge the committee to write a report that will not be ignored. You have to say loud and clear what is really going on. We need to have some hope of changing the family law process so it helps our kids more than it helps the divorce industry.
The Joint Chair (Mr. Roger Gallaway): Thank you, Mr. Morrison.
Ms. Cynthia Marchildon (Individual Presentation): Let me begin by thanking the committee for allowing me a chance to present my concerns in person. Although I am not a public speaker, I requested this opportunity to speak because of my first-hand experiences with the existing laws of child custody and child support.
I would like you to keep in mind that I am a mother of two minor-age children and a stepmother of two adult children, and because of these two roles I have seen both sides of the issues I am addressing.
I would like to take this chance to expand a little on the points I made in the written brief I submitted to this committee several weeks ago.
First in the area of child support for adult children, and more specifically in the special extensive section that applies to post-secondary education, I would like to point out the double standards that exist and are regularly enforced in the courts.
Divorced parents are not entitled to the same choices in their parenting that non-divorced parents take for granted. Divorced parents can be forced to pay the post-secondary education costs of their adult children. Unlike their non-divorced counterparts, the financial obligations of the divorced parents to their children do not end when their children reach the age of majority.
The obligation that exists for a non-divorced parent is a moral obligation, just as it is with a divorced parent. However, I feel the assumption made in the law is that divorced parents will not honour their moral obligation unless forced to do so. This double standard is clearly an unequal application of treatment toward divorced and non-custodial parents in the existing child support laws.
Second, adult children and custodial parents are being encouraged to obtain a court order for support and custody because of the unreasonable and extreme amounts that are being awarded by judges. The existing laws are accompanied by many suggested guidelines, and there is a great deal of direction given to each judge hearing these cases. These judges are free to make whatever decisions they choose to. In theory they may be accountable for their rulings, but in practice they rarely answer for their actions.
Among other things, the guidelines direct these judges to consider all pertinent facts and to accept all current and applicable information. However, the guidelines do not insist that judges do this. The guidelines also suggest that if a judge varies from any of the guidelines in his or her decisions or orders, reasons should be listed as to why this was done. Again they are free to account for their actions, and they are free to say nothing. The guidelines allow for each case to be heard on its own merit.
Though it is easy to see the reasoning behind the discretion in legislation such as this, it is also just as easy to see the problems. By allowing judges to apply whatever guidelines they see fit in each individual case, it must be recognized and, therefore, addressed that these same judges can and may apply their own agendas and prejudices also.
Although financial security for children is an important goal in child support laws, it should not be the only goal. Laws that encourage even one divorced parent to take matters to court and either intentionally or unintentionally pit a child against the parent certainly do not have the best interest of any child in mind. This is true whether the child is 2, 12 or 22.
Though I am certain it was never the intention of these laws to put the needs of adult children above the needs of minor-aged children, this is exactly what can happen in the courts today. I receive child support for my two minor-aged children. The payment from their father is fair and was agreed upon without the use of the court.
Last year, two weeks before my husband was to appear in court on the issue of supporting his then-adult daughter, I lost my job. The judge hearing my husband's case refused to accept my sworn statement that reveals our change in circumstance. The judge hearing my husband's case refused to hear so many of the pertinent facts in this case that the child support I receive for my 14-year-old daughter and my 12-year-old son indirectly goes to pay the support of my 21-year-old adult stepdaughter.
The judge hearing this case also ruled that the mother of that child has no financial obligation or responsibility toward her daughter. He also ruled that no part of the cost of post-secondary education was the responsibility of the daughter. The judge did this because he could do this, and his decision was upheld in the appellate court.
There is absolutely no justification or explanation that anyone can give to me that will make such a perverted twisting of the laws right or fair.
The child support laws that exist now have the ability to protect and secure the financial lifestyle of children of divorce, and that is a wonderful thing, but it must be recognized that they also have the ability, when applied without care, to harm and destroy as many families as they help.
Indirectly my children are victims of these laws. Indirectly I'm a victim of these laws. My husband, who was the custodial parent of this daughter from the time she was 12 until she reached the age of majority, is a victim of these laws.
The Joint Chair (Mr. Roger Gallaway): Thank you.
Now, Mrs. Dennis.
Ms. Wendy Dennis (Individual Presentation): I testify before you today not as an expert or a member of a special interest group but rather as a citizen, divorced parent and second spouse, who has lived this issue from both sides of the coin, and as a journalist who was so disturbed by what I witnessed that I felt I had a duty to write about it.
There are three areas I'd like to address today: my concern with the feminist position on these issues, parental alienation syndrome and my recommendations for change.
Mr. Gallaway, you were quoted in the Globe and Mail this morning as saying we need to have some fairness put back in the system. With respect, sir, I beg to differ. Suffering Canadians are looking for life-saving cures here, not placebos.
What we desperately need is not to have some fairness put back into the system but a new system altogether, one that clearly declares a shared parenting presumption. Then we need a brave new vision for how to deal with divorce in this country. Finally, we need our legislators to retool the Divorce Act to reflect that vision.
First, I think it's vital to separate the gender politics clouding this issue from the real issue of what is truly best for our children. There have been some groups who argue that what is best for women and children is to maintain the status quo, that children should continue to be parented by the parent who has always done the most, that child support and access should not be linked, that there cannot be a presumption of joint custody because of domestic violence.
These groups profess to speak for women. I want to go on the record today and make it very clear that these groups do not in any way speak for me, nor do they, I believe, speak for the majority of women in this country.
I believe the majority of women in this country, whether they are married, whether they are divorced or whether they have acrimonious relationships with their ex-spouses, recognize in their heart of hearts how important it is for their children to maintain an ongoing relationship with their fathers.
In “The Divorce from Hell”, the article I wrote for Toronto Life magazine, I wrote about a man who in every way was the new man feminists went to the barricades for in the 1960s. He was a hands-on dad who diapered, car-pooled, consoled and inspired his children. He put them first and didn't just show up for the fun stuff. And yet I cannot tell you how many so-called feminists vilified him and called him obstructive because he would not step aside and accept the prescribed role for fathers in divorce, to send money and get lost. The same man they would have celebrated as an ideal father to his children in marriage they attacked for not walking away from them, except in a financial sense, in divorce. That in my opinion is the central bankruptcy of the feminist position on this issue.
Feminism, as I understand it, is about sexual equality, not replacing one double standard with another. That is why the feminist position offends me as a woman, as a citizen, as a mother and as a human being.
I would like to turn now to parental alienation syndrome. From my research for the book I'm writing on these issues, also called The Divorce from Hell, which is to be published this September, I can tell you this syndrome is a widespread but hugely under-reported social problem.
First you have to recognize what it is, and then you have to give it its proper name. The proper name for parental alienation syndrome is child abuse, and we have to deal with it in the same way we deal with other forms of child abuse; we have to criminalize it.
The leading authority on this subject is Richard Gardener, who explains in his book The Parental Alienation Syndrome how the alienating parent forces children to collude in demonizing the other parent. Overwhelmingly, the perpetrators of this particular form of child abuse are mothers, because overwhelmingly mothers have custody. Even when PAS can be proven, judges will almost never remove the child from the alienating parent's care, because judges on the whole still think children are better off with their mothers, no matter what.
I saw how deeply entrenched this prejudice is when I wrote The Divorce From Hell. The story was about a father who wanted joint custody and a mother who wanted full custody. The evidence showed that the father was devoted and his wife perjured herself in court, brought malicious assault allegations against him on the advice of her divorce lawyer, falsely accused him of stalking her, put call-screening on the telephone so he and his parents could not contact the children. She returned presents the children's grandmother had sent them and had them write her poison pen letters. She wantonly violated a court order and, without warning, moved to another community without leaving any forwarding address.
Despite his court order that said he had joint custody and the children were supposed to be living with him every other week, the father could not even find out where his daughters were living. He has not seen his daughters in five years and still cannot find out where they are living.
Nevertheless, many readers perceived the mother to be the victim and attacked the father. One woman wrote a letter to Toronto Life condemning the magazine for publishing this story because, “Having not seen their father for two years, they have most likely started to settle into a comfortable life. Printing this article will no doubt set them back to square one!” To me, that letter was just like saying “How dare you publish pictures of missing children on milk cartons, on posters, or on the sides of buses? After all, they've probably settled into a comfortable new life with their abductors”.
We need legislation with teeth to act as a deterrent for parents who violate court orders and commit the crimes of parental alienation and abduction. If you revoke passports and drivers' licences from those who default on their support obligations, you must also revoke them from those who violate custody orders and deny their children contact with the other parent. If you introduce zero tolerance laws for domestic assault and child abuse, you must do the same for parents guilty of the crime of parental alienation. Parents who violate court orders and move away should be apprehended and charged.
Finally, here is my recommendation. Canada is indisputably lagging behind other jurisdictions in our custody practices. You cannot simply take the Divorce Act, tweak a word here and there and call it a day. Whatever your vision, there are several elements I think it should include.
First, I think you need to remove these issues from the judicial system altogether. The adversarial system is the worst possible place to put a family in turmoil. Lawyers, by virtue of their background and training, are the worst possible people to deal with family issues. Even the lawyers who are ethical, who care passionately about their clients and their children and are sincerely dedicated to solving their problems in the most expeditious manner, are powerless to help within a system that consistently rewards the unscrupulous.
I envision some variation of the approaches used in Washington state, Florida and Maine, which are based on the presumption of shared parenting and require parents to work out a parenting plan before they divorce. You already know about these alternatives. They're outlined in the custody and access public discussion paper of March 1993.
I cannot stress enough how important it is that the law be rewritten to incorporate a presumption of shared parenting. If you make no other recommendation, I urge you to ensure that both parents will be expected to have an involved role in their children's lives, period, full stop. We have to get rid of this terrible idea, once and for all, that when people divorce we must pick one parent over the other.
We also have to think of the idea of child support in a much broader way. Is it only financial support, or does it involve supporting children emotionally?
The Joint Chair (Mr. Roger Gallaway): You're a little over time.
Ms. Wendy Dennis: Okay. I guess I would just say, to finish up that point, children can cope far more easily with a lower standard of living than with losing a parent, and I think we need to punish parents who deny them that kind of support as well.
In the end, you cannot legislate people to be good parents but you can protect those who want to be. You can tell those who don't want that, if they fail to live up to the standards we, as a society, wish to set for the parenting of our children, they will suffer consequences. We look to you for leadership and a new vision.
The Joint Chair (Mr. Roger Gallaway): Thank you.
We'll begin with Senator Jessiman.
Senator Duncan Jessiman: I'd like to start with you because you were last and you talked of something I know is very popular, certainly in California, which was the first state to create a legal presumption in favour of joint custody. It's kind of gotten away from that, do you know that?
Ms. Wendy Dennis: I'm not necessarily suggesting a legal presumption of joint custody. I am suggesting a presumption of shared parenting, which is the notion that both parents will have an active and involved role. It will start from that basis, and whatever parenting plan is worked out within the context of that is the way to go.
Senator Duncan Jessiman: Perhaps you could expand on that a little and apply it to the guidelines we're all bound by now. If we do have shared parenting, how do you see it working?
Ms. Wendy Dennis: Okay.
Senator Duncan Jessiman: As I said earlier, some think it should be substantially equal time. What do you say is shared parenting? At some state I said one-third of the time could be shared if you worked out overnight.
Ms. Wendy Dennis: I'm a parent who has a joint custody arrangement with my ex-husband, notwithstanding the fact that I have had an ongoing acrimonious relationship with him for about 14 years, including litigation, which is still ongoing. Nevertheless, our daughter, who is now 18—and we separated when she was 4—went back and forth between our two households on a weekly basis for a number of years quite happily. She flourished, and we changed that arrangement only when she became 13 or 14 and decided herself she wanted to alter it.
So I've heard many arguments. The court right now takes the view that you cannot have joint custody in an acrimonious situation because it can't possibly work. I don't necessarily agree with that, because I think it can.
Senator Duncan Jessiman: So you're saying acrimonious only as between yourself and your husband, but not as far as the custody of the child is concerned. The acrimony wasn't about custody?
Ms. Wendy Dennis: No, it was never about custody.
Senator Duncan Jessiman: Okay, go ahead.
Ms. Wendy Dennis: In terms of whether it should be half-time, third-time or three days a week, I think that's something that has to be worked out in the context of this process you set in place as soon as people divorce. You have both parents there and the parent coordinator, and you get them to work out a parenting plan.
I don't think you can legislate that it has to be this or it has to be that. I think parents need to have some autonomy in deciding what is best for their children, so I can't give you a perfect answer there.
Senator Duncan Jessiman: But under the law now, if you worked out a parenting arrangement and the man—80% or 90% of the time the man is the non-custodial parent—has 39% of the parenting, and the custodial mother has the 61%, they would not take into account both incomes under those circumstances. But if it went to 40%, they would. Some say it should go to 50%. What's fair? We thought 30% and we were arguing—
Ms. Wendy Dennis: What's fair is 50%.
Senator Duncan Jessiman: At 50% pay and 50% custody—50% or what, though?
Ms. Wendy Dennis: If children are living an equal amount of time in each household their household expenses will be the same, and then you only have to deal with their extraordinary expenses—their activities and so forth—which again can be paid on a proportionate basis according to their respective incomes.
Senator Duncan Jessiman: But you don't take into account respective incomes.
Ms. Wendy Dennis: I know that we have the guidelines and that they only look at the payer—
Senator Duncan Jessiman: Yes, it makes it very complicated and difficult.
One other thing about access, and it nothing to do with dollars—
Ms. Wendy Dennis: I hope, by the way, that you will get rid of that word. It's an ugly word. All those words are ugly.
Senator Duncan Jessiman: All right.
You know that for non-payment of maintenance, the non-custodial parent's passport and driver's licence can be taken away. We had a witness here this morning who said there was a contempt of court, I don't know how many times, before his wife was actually put in contempt of court and put in jail. Before you did that, wouldn't it be reasonable that the same penalty be applied to a custodial parent who refuses to give access? Take her driver's licence and passport away before they put her in jail. Would you agree with that?
Ms. Wendy Dennis: As I mentioned, if you're going to do it on one side, you absolutely have to do it on the other. I don't think anyone thinks jail is a good alternative.
Senator Duncan Jessiman: I'm not suggesting that, but at the moment there's no penalty for not giving up access.
Ms. Wendy Dennis: Right, there's no penalty.
Senator Duncan Jessiman: So you'd agree that it should be equal.
Ms. Wendy Dennis: I would. And I would add that what we know from the social science research is that when you allow fathers—it's almost overwhelmingly fathers who have no contact with their kids, or who are the non-custodial parents—to have contact with their children, you don't have the same kinds of problems with non-payment of support.
That only stands to reason, when they're allowed to be actively involved in their children's lives. We do not have a problem in this country of fathers refusing to support their children within marriage. What happens? Do they suddenly become swinish deadbeats? I don't think so. I think there's another reason for this, and we have to get to the crux of that reason.
The social science research is telling us that fathers are longing for that contact with their children. When you turn them into uncle dads who only gets to see their kids on alternate weekends, and they come back into their lives—they sort of parachute back in very occasionally—the pain of losing that daily involvement with them is so great, and their children suddenly start to become strangers to them, and they cannot bear it, so they start to drift away and move into second families and try to make a new beginning for themselves. So it's understandable in that context.
Senator Duncan Jessiman: Thank you.
The Joint Chair (Mr. Roger Gallaway): Thank you, Senator.
Mr. Peter Mancini: I have a couple of questions. I'll address this to Mr. Fox, but I would invite comment otherwise.
I think we're kind of narrowing this discussion to the enforcement issue. There are some other good ideas here about joint custody or shared parenting, but the complicating factor in this is the child. I appreciate what you're saying as a criminal lawyer—I've practised criminal law and civil law—and there are costs. You used that as a good illustration to say that if one party consistently comes to court or refuses to be cooperative or to abide by the rules, in civil situations we have costs. We have contempt of court, where somebody can be fined or put in jail.
But at the end of the day the complicating factor is the third party, who is the child. If we order costs against the mother, for example, or we put the mother in jail.... I don't think anybody is going to deny that children bond. Even with the worst parents, there are bonds there. So even a mother who practised parental alienation, for example—if we put the mother in jail or the father in jail, if we apply costs to the father or mother, at the end of the day we're taking money out of the mouth of the child, we're depriving the child of access to a parent that they care for.
So on the issue of enforcement, isn't that the complicating factor? I don't have the answer, and that's why I'm asking. Is there anything that you can think of? Maybe we could put the money in a trust fund for the child. I don't know, but—
Mr. Walter Fox: One thing we can do is bring this out of the back room and put everything on a transcript.
Senator Anne Cools: That's right.
Mr. Walter Fox: You can imagine what these committee hearings or the House of Commons would turn into if there weren't Hansard. So we have these problems and they're difficult and intractable. You know what happens then. The judge brings everybody, including the lawyers, into the back room. The judge starts to make outrageous and bizarre threats to one side or the other—usually to the father. Then the lawyer says that if you don't agree with what the mother is offering, the judge says you'll be beheaded.
We can't figure out what is really going on as long as this happens in a back room, or even in open court, when the positions aren't transcribed. I don't know if that is going to solve the problem—there are all kinds of layers to this that must be apparent to this committee—but that's certainly a beginning.
As criminal lawyers, we do plea bargaining, right? We go into the judge's chambers, we meet and some determination is made. But then we come back into court and the defence says, “This is my position, which I put to Your Honour in the back room”, and the prosecutor says, “This is my position.” Then the judge says, “I heard both of you back there and this is what I'm deciding.” Sometimes it is what both have offered, sometimes what the prosecution asked for. and sometimes what the defence asked for, but it's on the record, open and clear.
The clearest example is the Karla Homolka case in Ontario, where she got what some people are calling a sweetheart deal or a deal with the devil. I don't want to go into that issue, but whatever was determined was determined in open court. Even though it was sealed, sometime later we could see the whole story.
We don't get that in family law, and personally, after going through the process, as a criminal lawyer I was astounded. My lawyer comes out and says, “The judge says you're going to have to support that child until she's 30. You have it, so you'd better settle.” You can imagine what I told my lawyer to tell the judge.
Mr. Peter Mancini: I can imagine.
Some hon. members: Oh, oh.
Mr. Peter Mancini: My second question is really an observation. It kind of came to me when another witness, Mrs. Grande, was here, but I'm going to ask you to comment on it. You've talked a little bit about the issue of money, and we keep getting into that at some point.
Sadly, there is no less acrimony in situations where there is no money. I've practised poverty law as well, and in situations where the father has no income except for minimal, and the mother has no income except for minimal, there is still acrimony. It's not tied to tables or to support, because there's just no money to go around. I don't know if that offers us an illustration.
I've heard some people say that part of this is tied to the fact that the mother may be looking for money and so is seeking custody or denying access, or the father is not paying or what have you. But even in situations where there isn't money—and I wonder if the panellists have any observations on this—is there a difference between people who find themselves in poverty and those who do not? Are there different problems? Am I clear on that?
Ms. Wendy Dennis: I think you're clear on that. There are two separate things in what you're saying. The acrimony surrounding a divorce can take many forms and can be there for many reasons, but in the judicial system that we have now, it's very easy to use the children to trade for dollars—
Mr. Peter Mancini: My point is that happens even when there's not money. We're not trading the children for dollars. We're putting the children in a power situation.
Ms. Wendy Dennis: Yes.
Mr. Peter Mancini: Access in and of itself becomes almost a power.
Ms. Wendy Dennis: That gets back to something I was saying about the way in which we have to look at support. If we look at support not just in a financial sense but as emotional support as well as financial support—you were asking earlier whether we really want to take money out of the mouths of babes and put moms in jail or whatever. But do we also want to give children the message that you can get away with murder, there's no accountability and the system is rigged? So I definitely see it as a two-sided issue.
Mr. Peter Mancini: Thank you.
The Joint Chair (Mr. Roger Gallaway): Thank you.
Senator Anne Cools: Thank you, Chairman.
Once again, I'd like to thank the witnesses for being thoughtful.
I have a technical question and then I want to put a question to Ms. Dennis and Mr. Fox. The first witness made a reference to section 233 of the Criminal Code. I believe the section covers infanticide. Perhaps the witness could tell the committee what that section of the Criminal Code says.
Mr. Patrick Ellis: It says:
A female person commits “infanticide” when by a wilful
act or omission she causes
Senator Anne Cools: Only “she”?
Mr. Patrick Ellis: That's right.
Senator Anne Cools: It cannot be a “he”?
Mr. Patrick Ellis: Section 28 applies. That's for a newly born child. It reads:
if at the time of the act or omission she is not
fully recovered from the effects of giving birth to the
child and by reason thereof or of the effect of
lactation consequent to the birth of the child her
mind is then disturbed.
The corollary of that is the defence.
Senator Anne Cools: Of course. And we know about the role that plays, so we have diminishing responsibility. Thank you for that.
My second question is to you, Ms. Dennis, and I thank you for what I thought was very eloquent statement about so-called radical feminism, biological pre-eminence. I would like to thank you for describing the moral and intellectual bankruptcy of so-called radical feminist ideology.
I also thank you for bringing forward what I understood you to say, which is that any ideological assertion that women can do no wrong is an invitation to certain women doing wrong. I was very struck. Obviously you've given this a lot of thought and you've been doing a lot of research. I was struck by the attentive way that some of you writers have of articulating these issues. So I thank you for that. The whole phenomenon of the reward of unscrupulous behaviour....
My question to you is that somewhere and at some point in time this ideology found a resting place and a breathing place in family law, in family court and in the related judicial proceedings. I know that you're writing and researching this extensively, but do you have any idea or thoughts around how and why this ideology was able to take such firm hold on this particular area of the law?
Whoever wants to, go ahead.
Mr. Walter Fox: I have something to say about that.
Senator Anne Cools: I'm interested in what I would have to call the corruption of legal concepts.
Mr. Walter Fox: My concern is that feminism, as it has been presented to us and the way it's playing itself out—I'm not so concerned with the content of the feminism as I am with the structure.
The first thing that happens is that thought and free speech go out the window. The second thing is that it gets into the court in the area of law that is most significant to it, which is family law, as we now know. That's feminism.
What if it were fascism? What if it were communism? What if it were any “ism” that would ultimately dehumanize and demonize any portion of our population?
To me, feminism unfortunately has come to take on the same kind of structure and shape that McCarthyism took. The print media has an influence in the courts, and it will seek some area in the courts to establish itself. The current form of feminism is really a replay or a repetition of the side that lost the Second World War. We're sort of refighting that ideology in a different form.
I don't want to equate feminism with Nazism—obviously it's more palatable—but when feminism goes, that structure, that way of approaching things, those ideas, that kind of ideological construct, God knows what it will be filled with. It's that approach to things that we have to attack, not the content itself.
The Joint Chair (Mr. Roger Gallaway): Ms. Dennis, did you want to say something?
Ms. Wendy Dennis: I'm old enough to remember when I was a volunteer for a rape crisis centre in Toronto. I went out on Sunday mornings and gave talks to the police, and they would poke each other in the ribs and make rape jokes. So I know how far we've had to travel in terms of changing attitudes, and I'm astounded at the distance we have travelled. In fact, I think we've travelled way too far. In part that's what I'm here to talk about today—that the pendulum has swung so far the other way.
I think it's pervasive in the media. In terms of my own personal experience, my spouse was falsely charged with domestic assault. At this moment in our culture, when a woman says “That man hit me”, that notion is sold. You don't need evidence. That's just wrong, and that poor attitude is what's permeating our family law system at the moment.
In principle, we're supposed to have equality. I went into that system thinking that our family laws had been reformed to reflect notions of equity and fairness, but when I got in there I said, what is going on here? This isn't about equity or fairness, it is about tactics and establishing a status quo and lionizing the mother in terms of custody.
It's not about equity, it's about what the mother needs to mother the children. That's the thrust of the process, not what do these two parents or what do these children need? It's what does the mother need? Does she need money? Let's throw some money at her.
When you get into that system, the assumption isn't to look at the evidence and decide; it's that the guy is probably lying, so we'll freeze the status quo and we won't disturb the mother and children's standard of living until we know how much more money the father has to pay. That's basically they way it operates.
The Joint Chair (Mr. Roger Gallaway): Thank you.
Senator Mabel DeWare: I just want to make an observation.
I think the time has come to be very cautious of not recommending or putting laws in place that create undue hardships in this country, because that's what I'm hearing today from Cynthia and all of you and from many other witnesses this week. We have to find some fairness in the system. The other thing is we have to definitely build a level playing field so that the law is fair somehow to everyone. When people are going bankrupt, that's not a level playing field. If you're bankrupt and you have no money and you're on welfare, what can you do for your children or yourself under those conditions?
The Joint Chair (Mr. Roger Gallaway): Dr. Bennett, you can have the final question, and I must say we're running late.
Ms. Carolyn Bennett: I'm just hoping that after these proceedings feminism isn't seen as a swear word. In Wendy's excellent description of an intolerable situation, we have to make sure that it is the radical feminists who are being described. The feminists I know want equity, they want an equal playing field, inclusivity, and they don't like hierarchical structures. They are much happier in horizontal structures where power is balanced.
I would hope that all the feminists whom I see...and I would say that most of us in this room wouldn't tolerate the past. We would want what's best for the kids, and what's best for the kids is getting to see those two parents who have the responsibility and love for them.
Again, what we keep hearing at the committee is that the only person with rights is the kid, who has rights to see both parents. Everybody else has the responsibility in this argument. I would hate to leave the afternoon thinking that all feminists have horns and a tail.
The Joint Chair (Mr. Roger Gallaway): Thank you for dispelling that myth.
I'm sorry, but we're really out of time. It seems that this committee becomes more invigorated as the day goes on, and that's because of you. I want to thank you for coming. We'll adjourn for about three minutes. Thank you.
The Joint Chair (Mr. Roger Gallaway): We have with us, at our final panel of the day, Michael Cochrane. Welcome, Mr. Cochrane. We also have Greg Kershaw, Mr. Gal, and Mr. Meier. You see I'm going to the official list here now.
A voice: A napkin.
The Joint Chair (Mr. Roger Gallaway): I'm missing two names.
Mr. Frank Heutehaus (Individual Presentation): I'm Mr. Heutehaus.
The Joint Chair (Mr. Roger Gallaway): We'll start with Mr. Cochrane.
Mr. Michael Cochrane (Individual Presentation): Thank you very much. It was quite an honour to be invited to make a presentation, although I have to admit my blood started to boil listening to the last few presenters. If you want a different view of things, you're going to get it in my five minutes.
My background has been handed out on a biographical sheet. I just want to underscore for you that in my 18 years as a lawyer a lot of it was spent representing people in divorce cases. I acted as policy adviser to Ian Scott when Ontario passed its Family Law Act, when we did the Support and Custody Orders Enforcement Act, when we did the amendments to the Children's Law Reform Act on access enforcement.
I was the chair of the Attorney General's Advisory Committee on Mediation in Family Law. I was Ontario's representative to the Uniform Law Conference on family law. I'm a member of the Federal-Provincial-Territorial Family Law Comittee.
I've seen and heard everything there is to say about family law in the last 18 years. It seems to get worse every time there's a committee hearing like this, because some of these presentations really bring out the worst in people. Having to listen to that frankly lunatic discussion about feminism is tough, because really what we should be sitting here talking about, and what I would urge you to zero in on, is the fact that there are problems in our family law system.
The good news is that they can be fixed. It does not involve any kind of political revolution. It's not about ideology. It's about a family law system that is tired, that was designed several decades ago to deal with a certain kind of family problem. It needs to be updated and pulled into the 21st century to quote, I think, the senator from her appearance on Jane Hawtin Live. What we're really trying to do is modernize the family law system.
The rhetoric that gets thrown around is always a bit of a jolt for me, because particular passions seem to be disturbed. Great passion is thrown in supposedly for the defence of the children who are caught up in this divorce exercise in Canada. For some reason, once the discussion begins, the children's emphasis tends to fall off the table and we go into these political discussions such as we had to suffer a few minutes ago around feminism.
The focus should be left on the kids and on the adults who get their hearts broken. They get pulled through a wringer unnecessarily because of the system we have designed.
As a lawyer representing clients, I've had virtually every kind of client you can name. I've acted for husbands, wives, and grandparents getting custody of their grandchildren. I've acted against Children's Aid Societies; I've acted for them. I was an official guardian lawyer in Ontario representing children in divorce processes. I've fought everybody in the family law system, and the last fight I feel I want to engage in is fighting the design of the system that we're stuck with right now.
So my comments don't come carrying any brief for the women's movement, the fathers' movement, the grandparents' movement, the feminists' movement. I'm just going to tell you what I know, based on 18 years of having seen this from virtually every possible angle, including teaching it at law school.
That focus brings you to only one place, really, and that is to people who are dragged into this system, often unwillingly. These are the men and the women and the kids. These people are probably the worst possible consumers of legal services in the country. These are people who, if you ask them if they want their house painted, get five quotes, challenge the painter on the quality of the paint, ask them to come back, and then they think about it for a week.
They go into a lawyer's office, though, when they're in a custody access dispute or a divorce situation, they hand over a blank cheque to someone they've never met before, and off they go on this merry ride through a justice system that drains their bank account. That moment for Canadians, as consumers in our justice system, is a real disgrace. We send people into that justice system ill-equipped to deal with what they're going to face.
I have great respect for the work you as committee members are trying to do here. You've certainly bitten off a big challenge, because I've sat on that side as an adviser to the Attorney General when we did the Family Law Act, and we were vilified for years after, personally and as professionals, for even opening this discussion. It's a Pandora's box. You've listened to it. That's what you're inviting yourselves to be subjected to when you go into this particular field.
What I did for my clients and the people I gave advice to was I sat down a few years ago and I wrote the inside story—the secrets, everything you need to know about family law—so they would not be “hosed”, taken advantage of, exploited in the system.
There's a pile of books over there for committee members. I understand I can't simply hand them to you because I don't have French versions of them available. There's an English version of a book called Surviving Your Divorce. There are over 15,000 copies in circulation in Canada. It's a best-seller.
I'm not here to plug the book, but afterwards I did one for kids entitled, Surviving Your Parents' Divorce, so that kids would know what they were in for and what their parents were going through.
The reason I did that was to tell people who were in the system, and I would now like to tell you, to smarten up as consumers. Family law is not rocket science; it is very common sense. We all live it. We don't all live securities transactions and commercial law deals. We all live this stuff. We all bring our inherent common sense to the problems.
Unfortunately, in a family law situation when many people come into the system their common sense departs them because they're so heartbroken, they're so embarrassed, humiliated, in shock. It's a phenomenon in family law cases that usually one spouse is way ahead of the other one. One of them is ready to move out and the other one doesn't even recognize that there's a problem in the marriage. So you're dealing with people who are wounded when they are confronted with this decision, and it's akin to asking them to go out and plan a funeral.
They are weakened consumers. The best thing we can do is to put in their hands a lot of information, and you can do this by way of legal amendments and you can do it by way of some other things. It would say to them that when they sit down in the lawyer's office, and they inevitably will have to, they would make sure they understand the big six. These include their entitlement to the divorce, the custody issues, the access issues, the support issues, and the property division issues.
The sixth one is what I always tell people is the other issue, because every family has some other issue that they have to deal with. It might be the grandparents. It might be a special aspect of their break-up; perhaps a move is involved. Perhaps it's domestic violence, which is certainly a huge factor in a lot of cases.
Those are the big six things. As they sit down in front of a lawyer there isn't any reason why they wouldn't know what the choices are that they face in the legal system. They direct that lawyer to do what is best for them and their children, rather than sitting and listening to a lawyer tell them what is best for them.
The point of the book and the point of my presentation today is that we have to give people, the consumers of these legal services, a lot more credit. These people are a lot smarter than we give them credit for. If we put the information in their hands and give them the right set of choices, they will perform and exceed our expectations.
I know I'm probably going to run out of time, so thank you.
The Joint Chair (Mr. Roger Gallaway): You're out of time. Thank you.
Mr. Greg Kershaw (Individual Presentation): I'd like to thank the committee for having me here today. I'm a former feminist. I am a former leader in the fathers' rights movement. I'm a non-custodial father and I'm a stay-at-home dad. So I'm seen the issues from custody and access on all sides.
I'm here to tell you that the current system of custody and access is unfair to women. I'm going to read a quote here. I might get the committee members to think where this quote may have come from. It says:
WE REJECT the current assumptions that a man must carry
the sole burden of supporting himself, his wife, and
family, and that a woman is automatically entitled to
lifelong support by a man upon her marriage, or that
marriage, home and family are primarily woman's world
and responsibility—hers, to dominate—his to support.
We believe a true partnership between the sexes demands a
different concept of marriage, an equitable sharing of
the responsibilities of home and children and of the
economic burdens of their support. We believe that
proper recognition should be given to the economic and social
value of homemaking and child-care. To these ends, we
will seek to open a reexamination of laws and mores
governing marriage and divorce, for we believe that the
current state of “half-equity” between the sexes
discriminates against both men and women, and is the
cause of much unnecessary hostility between the sexes.
Any idea where this statement came from? This statement was written 32 years ago by a newly formed group called the National Organization for Women. This document they put together talks about all these issues, and I can leave a copy for the committee for translation. What's interesting about the document is that none of the issues has changed in 32 years. The women's position, the radical feminist groups position has changed.
When there was a discussion with the Federal-Provincial-Territorial Family Law Committee on child custody, access and support, they put together some documentation for Status of Women Canada. This is the only document currently on file from that committee. Here's the new position. It says:
Divorce laws modelled on an idealized notion of shared
parenting, based on an atypical, socio-economic,
ethnocentric vision of the family, will only exacerbate
biases against women, to their detriment and their
Things have changed a little bit.
As I was preparing for this presentation I wanted to look at things a little differently from most people. I have been reading the newspaper quite a lot recently and I found something quite interesting. They are just starting to get the data out on the latest census. Apparently, when you include women's unpaid work, women now only now 52¢ on the dollar for every dollar a man earns. Why is that? Because women get stuck with the kids. That's what we do.
I was reading another article. Apparently there's a big problem right now in the Canadian Forces; we have a shortage of women. The Canadian Forces is an old volunteer organization so they're starting a special affirmative action program. They're going to spend at least $1.5 million just on advertising to get the women to come out. It hasn't been working. Why? Because women get stuck with the children.
In Ontario, apparently, we have a shortage of female judges. We have an affirmative action program. They're trying to make it more palatable for women to become judges. The problem they're having is women are not applying. Why are women not applying7 Because women get stuck with the children.
It's a real problem. Apparently, 55% of university students are women. Why bother giving them the education, because when they're done we say, “You've come a long way, baby; here's your degree, and you go home and do the diapers.” You're going to have a lot of very angry women who graduate and get stuck with the children.
I have a story. I do a lot of counselling in the divorce area. I was counselling one lady, and she's a winner. She decided she wanted to divorce. She talked to her lawyer. Her lawyer said here's how we can do it. You're going to check yourself into a battered women's shelter and you're going to accuse your husband of abusing you and the children. She did that. She went through this. Basically, there was a restraining order to remove him from the house; he was apparently psychologically abusing her. Children's Aid parachuted in. They interviewed the father. Of course, there was no substance to the allegation so there were no charges laid.
She goes to court. The judge looks at her and says, “I can't decide if you're making this up or not. Perhaps you're making this up to hurt the father. So do you know what I'm going to do? I'm going to punish you by awarding joint custody.” Then he turns to the dad and he says, “I can't say you didn't do it, and I'm concerned that perhaps you did, so I'm going to give you one hour per child of access a week.”
That's it, that was joint custody. So both sides left feeling very angry, and there's going to be further litigation.
Now there's another problem. She was told by her lawyer that we have this wonderful new law on child support that guarantees you can stay at the same standard of living after the divorce as before. Guess what? It doesn't work. In this situation, if you look at how much child support he is paying, plus his federal and provincial tax, it's 75% of his paycheque, which is the maximum by law.
That's still not enough; she has to be topped up by social assistance. So we worked out a plan with her. Do you know what? In order for her to survive she needs 110% of his paycheque. Well, that's not going to happen, so she's faced with the real possibility now that she is going to have to go out and get a job. But she can't get the job because she's stuck with the kids.
So what she did is she went to her parents. Her parents said, “We love the grandchildren, but we're not raising them for you.” Babysitting she now finds out, with four children, is very expensive. So what she's doing now is she's giving dad the kids every second weekend. Her lawyer cautioned her against doing that, “Because if you do that”, she said, “he'll have a good claim on custody. Find someone else. If you can't, and if it's the last resort, send the kids to dad.”
Now she has decided she'd like to send the kids to dad more often, but with what he is paying in support and what he has left in his paycheque, he can't afford to feed them. She can't afford to accept reduced child support because she's barely making it. If she did reduce her child support, because she's on social assistance, they would take it away from her.
She's got a dilemma now. They have no money left, dad's been accused of sexual abuse, the kids are having some problems, she'd love to send the kids to dad—lawyer says no. This woman is a winner. She won. She got everything she asked for. She followed her lawyer's advice right down the road, and what does she do now?
What we need right now, I believe, and we've been talking about shared parenting—
The Joint Chair (Mr. Roger Gallaway): Sir, can you please make your recommendations?
Mr. Greg Kershaw: My recommendation is we're going to have to have an affirmative action program for fathers—mandatory father custody for the next five years until we get some balance. This is going to free these women up to participate in the workforce the way they should be. Okay? So they're going to able to get get jobs. And you know what? It's going to raise their self-esteem, which I keep hearing is low, and I'll tell you, this woman's self-esteem is low. The only way we're going to do this is affirmative action for fathers.
The Joint Chair (Mr. Roger Gallaway): Thank you.
[Editor's Note: Protest from the audience]
The Joint Chair (Mr. Roger Gallaway): Excuse me. Please, sir. You are not allowed to speak unless you are recognized. Would you mind leaving?
I apologize for that outburst.
Mr. Stan E. Gal (Individual Presentation): Thank you very much, Mr. Chairman.
My name is Stan Gal. I'm not here to talk to you about the decade of exposure to the legal maze of family law. I'm not here to tell you about the decade of emotional devastation and financial bankruptcy. Nor am I here to talk to you about my two sons. That is another story.
What I am here to talk to you is about a necklace—a pearl necklace. To the honourable members of this committee this is just a necklace. To me it represents a decade-old commitment I made to my daughter.
Let me tell you the story of this necklace. Ten years ago I made a commitment to my daughter that on her twenty-first birthday I would give her a pearl necklace. About a month ago I went shopping for this necklace. The sales assistant inquired who it was for, and what she liked to wear. I told it was for my daughter's twenty-first birthday, but I couldn't tell her what she generally wore or how she liked to dress.
After selecting this necklace, the sales assistant stated that it was very beautiful, and that my daughter was very lucky, and that she was sure my daughter would like it very much. I just said, “I probably will never know. I haven't had any communication with her in over seven years.” She looked at me with confusion and disbelief. I left.
In 1991 I petitioned for divorce and equalization of assets. This, as we all know, is how every case starts. What the courts don't know and I certainly didn't know about is the backroom and behind-the-scenes manoeuvring and custodial parent lobbying.
Obstacles that are introduced into the process are arguments over who gets what, children's fear of abandonment by their father, children's fear of where they are going to live, children's fear that their fathers no longer care about them. The children's emotions are used to a breaking point, and they are pulled in all direction. This results in the children's gradual but inevitable withdrawal from the father.
I used to think my situation was unique. I'm sorry to say that I am not alone. I found, much to my disgust, that my situation was typical.
As many stories go, this type of undue hardship causes great emotional strain on everyone, and has long-lasting effects on fathers and their children. I can feel the emotional collapse. I'm reminded of this every time I look at this necklace.
While this process repeats itself over and over again, regardless of the number of court orders and consent agreements, our relationship with the children has been forever lost. We cannot bring back the lost time and the lost love that results from the continuous shuffle of false claims and allegations.
It has been stated over and over again that you cannot legislate good behaviour. Nor can you legislate cooperation. The custodial mother fully controls contact and is capable of withdrawing this from the father at her whim.
The committee has been mandated to examine and analyse issues relating to custody and access arrangements after separation and divorce, to assess the needs for a more child-centred approach to family law policies and practices. These policies emphasise joint parental rights and responsibilities and child-focused parenting arrangements based on children's needs and best interests.
In order for this committee to fulfil this mandate, the family law industry must be harnessed. This industry preys on the vulnerable and emotional state of the family that has grown apart. This industry builds up expectations of stability from a situation that is in turmoil.
The committee may view my suggestion as being radical, but this is not breaking new ground. I am advising that this committee endorse the following.
Separating couples must set up and file with the court a parenting plan. Until this is completed and approved by the court, no funds will be transferred. Parents who chronically break away from this parenting plan will be held accountable, and their custody will be in jeopardy.
Parents who have custody are legal guardians. Legal guardians are in a position of trust and accountability. If the legal guardian fails to fulfil their responsibility, they are removed from their position of trust. This is the way it works in every other area.
As I have stated, fathers love their children and always will. It does appear, however, that by their father's absence, these children will be scarred for life, and that will be the recurring problem our society will have to deal with.
There is one question that is asked of many thousands of fathers every night at 11 p.m. “Do you know where your children are?” No, I don't.
My daughter's twenty-first birthday was March 20. I still have this pearl necklace. Thank you very much, Mr. Chairman.
The Joint Chair (Mr. Roger Gallaway): Thank you, Mr. Gal.
Mr. Peter Meier (Executive Member, Non-Custodial Parents of Durham): Thank you. It's Peter Meier and Phil Pocock, Non-Custodial Parents of Durham.
I'm a non-custodial parent with two daughters. I've been denied access on many occasions. My ex-wife was found in contempt of court on September 15, 1994, and fined a grand sum total of $1. I haven't seen my kids since that day.
I just want to make reference to what Ross Virgin basically said before—that the work's been done. I have before me Bill 130. All it needs is a few tweaks and a change to a few words. The bill requires the chief judge of the provincial division to establish a program of performance evaluation for provincial judges, and requires their judicial council to review and approve the program. At present the chief judge and judicial council have discretion on whether to take those measures, and we all know what's happening with that.
I'll turn it over to Phil.
Mr. Phil Pocock (Executive Member, Non-Custodial Parents of Durham): Hi, I'm Phil Pocock. I want to establish three things as I go through—first, my credentials; secondly, I want to make two points; and the third thing is, I want to offer some solutions.
My credentials: First, I have 14 years of experience as a father of four children in an intact family prior to the destruction of that family. I did everything in that family except get pregnant. I have joint custody written into the separation agreement. My children and I have court-ordered and -specified visiting rights. I've never missed a child support payment in the subsequent 14 years since family destruction. So I have 28 years of experience as I sit here.
I'm a high school teacher at an inner-city school, a career I've had for eight years. That school has a very large population of single-parent children. I know firsthand, through observation of and conversation with these children and adolescents, their attitudes and values. I've seen firsthand the damage done through lack of a value system, lack of modelling, lack of family and belonging, and lack of demonstrated values and principles. I've watched these children and adolescents try to fill those vacuums with whatever attitudes and values happen to show up in their direction.
The last point of credential: I was invited in 1994 by the Honourable Allan Rock, then Minister of Justice, to submit a critique of the proposed child support guidelines. I did submit that critique; it consisted of some 40-odd pages.
Now to my points. Social and legislated injustices: so long as we have injustices in our social system generated by inequality, be they systemic biases in society or be they established in law, we are providing opportunity for people to take advantage of others, using these inequalities.
When it comes to the powerful emotions of anger and hate, the opportunity provided by inequity will be exercised and revenge will be exacted. This revenge may have two forms. One is some sort of emotional control over targeted persons, usually children and ex-spouses, and the other is financial control over the targeted person, usually an ex-spouse.
There are two such inequities that I want to address here.
The first inequity I want to address is a bias defined by society at large. It is the stubborn reluctance of the “tender years” presumption to fade as a conclusion used by judges and lawyers to assign custody. Yes, societal attitudes have a significant effect on our courts. The result of this inequity is that children usually lose one parent due to manipulated allegiance and child-leveraged income under the guise of child support. We can look directly to Gardener again; he's been mentioned previously in these discussions today.
The solution to this problem of assigning custodial parentship, since that decision is biased in court, must be to remove it from court and assign to a facility that is empowered to determine best parent. I'm suggesting mediation. A best parenting test must be instituted as part of a complete mediation process. This process must be binding upon both parents, and if the dissolution of the family continues after mediation, the findings of mediation must be admissible in court in their entirety.
The second inequity I want to address is a bias defined by the federal government and used extensively by provincial family courts. This inequity reduces children to tools to be used to leverage financial gain. At absolutely no time should a child be put in the position where they can be used as a weapon by people opposing each other in adversarial positions.
This is exactly what happened when the federal government produced guidelines defining what children cost. The guidelines were generated without proper input and with false assumptions argued incorrectly, illogically, and assiduously into the process of decision making, and then the guidelines were foisted upon an unsuspecting Canadian public without any field testing to determine their proper impact on children. They represent an average solution. The average problem doesn't exist.
The result of this inequity is that children of broken families are very sensitive to the reality that they are being used as leverage by one parent against another. They understand that they are not being respected as children of the marriage but instead are being used as tools, as objects, as commodities with which associated leverage, financial income, or emotional impact can be made upon the other parent. Their realization is reflected in their lack of self-esteem—and this is directly from kids in high school—and their constant demands for respect through their acting out.
As I watch these children grow without guidance, without self-respect, without self-esteem, without love, and without intent, I see Canada's future diminished substantially.
The Joint Chair (Mr. Roger Gallaway): Mr. Pocock, I'm sorry, but you're a little bit over time.
Mr. Phil Pocock: Okay. Let me give you this solution and then I'll go directly to the final.
A comprehensive and fluidic formula at the mediation process level is actually the only correct method that will produce proper support assessments.
Let me go to the final sheet—and this, by the way, is going to be left for you. Again, I don't have it in two languages, so I'll leave it with your clerk.
The Joint Chair (Mr. Roger Gallaway): Thank you very much.
Mr. Phil Pocock: Can I go to the solutions very quickly?
The Joint Chair (Mr. Roger Gallaway): You're well over time; I'm sorry.
Mr. Phil Pocock: Okay. Thank you.
The Joint Chair (Mr. Roger Gallaway): Mr. Heutehaus.
Mr. Frank Heutehaus: Thank you.
Good afternoon, members of Parliament and senators. My name is Frank Heutehaus. I'm age 32. Last December I received the primary residency of my six-year-old son.
The reason I'm here today is to bring up concerns to the rights of all children to be protected from child abuse, both physically and emotionally, not only by the custodial parents but also by the non-custodial parents and immediate family.
My story began when my child was four years of age, in the fall of 1995. He was excessively complaining about being hit and hurt, padlocked in his room, and so forth. The mother stated this had happened. The child was locked in a room when they left the home. They left him unattended on the second floor.
As most individuals would, I brought these concerns forth to the Children's Aid Society, which did what they called an investigation. They concurred that the child was padlocked in the room, unattended. They concurred there was bruising on the child, yet they closed the case, saying my claim was frivolous.
As time transpired, I started to discreetly audiotape my child during pick-ups and drop-offs and take pictures of bruises. The most dramatic thing came last September, when my child had several bruises on his backside. I brought him into the emergency room department, where a doctor also felt that the bruising was excessive and that the child had been hit. He also said to get in touch with the Children's Aid Society.
Even though I was reluctant, I did so because the Children's Aid Society conducted a meeting at a police station. I thought if the police were involved, it would give me some protection as to the rights of this child.
When I went in the day before the investigation, I wanted the stepfather charged with abuse. I brought with me the examining doctor's report, which said that the child had been hit excessively with force. I brought pictures of the bruising. I also brought my own concerns. The officer that evening said he could not press charges unless this five-year-old child came in so that they could videotape him and have him make a sworn statement.
As reluctant as I was to bring my child in, I did so the next day in the hope that the videotape and seeing the child would help them to make a decision to protect this child. Unfortunately, that day the investigation didn't go anywhere. The child clammed up. They returned the child to the mother, stating she had a court order giving her sole custody.
That is when I started my fight for custody of the child. I was in court last year ten times, and I was involved in many proceedings. The most important were disclosure of the CAS reports and the police reports. Even though they tried to order the CAS to release the reports, the CAS was reluctant to do so. I had to basically threaten them with media exposure to get the reports released. The police wouldn't release their reports, so I had to bring a contempt of court motion against the police to get the reports released.
Once all the evidence was released, I looked through it. I was completely shocked and dismayed at the fact that before the investigation started, three hours before, the lawyer for the mother had called, stating that the mother's home was stable, the environment was stable, and that I was emotionally unstable. They had no facts to substantiate this.
Further, the CAS report stated that the child does not fear the stepfather. Yet in the videotape conducted, the child states clearly he is scared of this man, that this man hits him. He does that six or more times.
The police and CAS stated that the mother and stepfather said this was just a custody dispute. There was no issue of custody until my child was bruised this way and I brought the motion forth. The matter continued until December, when the issue was resolved. The mother did not contest the abuse charges, and I received primary residency.
The recommendation I'd like to make to this committee is that regardless of gender, regardless of the status—whether custodial or non-custodial—if an individual, especially the father or immediate family of the child, cannot bring concerns about the protection of the child, who was five at the time, and if the CAS is negligent in bringing out the facts and dealing with these issues in the child's best interest, who will protect these children? Who will allow the other party to come forth and say we have a situation here, let's work with this appropriately, and let's look at both sides instead of just taking one side of the story?
That's all. Thank you.
The Joint Chair (Mr. Roger Gallaway): Thank you.
We'll start with questions. Dr. Bennett, please.
Ms. Carolyn Bennett: I would like to use my time to ask for the recommendations from Durham.
Mr. Phil Pocock: Thank you.
There are eight. I'll go through them very quickly, since they are part of our submission.
The first is to toughen up the divorce laws to reflect a much higher value of family.
The second is mandatory mediation, but I caution that we need very great care in setting it up or we'll add another burden to this family dissolution process.
The third is the application of the shared differential formula. The present guidelines need not be changed. We can simply ignore them and apply this shared differential formula.
The fourth is accountability for the money used to support the children. This forms feedback for any additional moneys that are required. It would also account for greater communication between the parents. If they've got to talk about the kids on a financial basis, a lot more information is going to exchange hands about the kids specifically.
The fifth recommendation concerns violations of custody and access, and it's in two parts. Access and financial support are intrinsically linked, and this must be recognized in law with reciprocal penalties for violation of either side.
I liked something I heard earlier today. It was that support and custody be linked intrinsically; that the whole thing be given to the mother and that the visiting be tied to it. It shouldn't be visiting actually. I was an uncle for a while, and I've been a nobody for eight years.
The second part of violations is that I believe they must be moved into criminal court. We will then have the capacity of criminal court, with all the draconian measures provided to deal with it.
The sixth recommendation is that since family court is based on an adversarial system, I would like to see it changed to an inquisitional system. Turn the lawyers into gophers, and let the judge seek the information he or she needs to make good decisions.
The seventh deals with the custodial parent and mobility. The two most traumatic things you can put a kid through are divorce and moving. I think if a child is going to be moved out of his or her neighbourhood and the non-custodial parent still resides in that neighbourhood, custody or primary parentship should transfer to the other parent instantly. I think that would serve to keep the family more cohesive.
I believe the last is the most important. Curriculum must be instituted, beginning in grade 1 and extending to grade 12, which includes but is not limited to: the reintroduction of family values, morality, commitment and obligation to community, the skills of communication, conflict resolution and relationship building, reflection, personal financial management, and socialization. They all have to be included.
We've lost it, and I think we have to reinstitute it. Parents are becoming more and more incapable of doing it, because they themselves haven't had the training.
Those are my recommendations. Thank you.
The Joint Chair (Mr. Roger Gallaway): Thank you.
Senator Mabel DeWare: I would like to ask Mr. Cochrane two questions. Does he feel grandparents should have the right to file for custody in the law, providing of course they are capable? Does he feel we should definitely set up almost a mandatory parenting program in cases of divorce?
Mr. Michael Cochrane: On the grandparent question, under the existing law in every province grandparents now have the ability to ask a court for a custody or access order. In virtually every province grandparents have been successful in getting those orders.
In Ontario alone I've probably represented 15 grandparents who have obtained custody of the grandchildren, in some cases fighting against the Children's Aid Society to get them and in some cases fighting their own children.
I have less of a problem with recognizing that legal reality in legislation now than I did a few years ago. I think certainly grandparents have a huge role to play upon family breakdown, and they should be given some help to do it.
On the parenting courses, do you mean—
Senator Mabel DeWare: No, I mean a plan. They have to file a parenting plan, dealing with what kind of support they're going to give. It's a plan for their children's future.
Mr. Michael Cochrane: Yes, I believe in that, and I would also add this extra piece to the process.
A submission was made earlier about taking the adversarial nature out of family law proceedings. It's my belief now, after having been exposed to the system as it is, we should have a family arrive at something like a family law tribunal, something that will take a multi-disciplinary approach to helping the family sort out the issues of their finances, the children, and whatever other issues they're up against, perhaps the role of grandparents.
That multi-disciplinary panel should have on it a legal voice, an accounting or financial planning voice, and someone who's skilled in social work or family support work. Whatever the family needs, that expertise should be sitting in front of them. The family would be far better served by that kind of support—and I should add public education to the list as well—than by high-powered and highly paid lawyers and judges, I think.
Senator Mabel DeWare: I think we can totally agree with you there.
Before I leave, I want to thank Frank for his testimony today. I really appreciate his coming before the committee.
Thank you, Mr. Chair.
The Joint Chair (Mr. Roger Gallaway): Mr. Mancini.
Mr. Peter Mancini: I have a couple of questions, the first of which is to Mr. Cochrane. You may have answered this in the answer you just gave.
You are somebody who has also practised family law. With respect to the separation agreements that are often entered into, we've heard from many witnesses that the drawing out of the situation is harmful and they'd almost like an immediate response. The difficulty of that of course is the assessment and that everything takes time.
Sometimes parties will enter into separation agreements before they end up in divorce proceedings. There's some case law that it's very difficult to change those separation agreements once they've been entered into.
What's your thinking on that? As you've said, some people are emotionally devastated going into this. Some feel guilty, some feel they're going to give everything away, some feel responsible for the break-up, and others are angry. Should those separation agreements be temporary, or should they be binding? I guess that's the question I'm asking.
Mr. Michael Cochrane: I think you make a very good point, that people are entering into agreements when they're least equipped to make some decisions that will bind them for their lives. When it relates to children, most of those provisions can be reopened on an application to court, but it's tough and it's expensive.
What I point out in the first chapter of the book Surviving Your Divorce is there are these distinct phases people go through, of denial, of anger, of depression, of false bargaining. They arrive at the lawyer's office when they are angry, and they leave when they're in that false bargaining mode. This means they may have entered into a separation agreement that isn't in their best interest. It's only later they come out and move on to that final stage, which lawyers know of, called acceptance, where you're moving beyond it. You look back at that agreement, and it doesn't look very good.
Mr. Peter Mancini: No, and in fact it often happens that well after the decisions are made even in a court case, the parties themselves work out an arrangement that bears no resemblance to either the court order or the original agreement.
Mr. Michael Cochrane: Exactly, and there's a real onus on the legal community and on the justice officials, and I think judges too to a certain extent, to make sure they're slowing down some of those people before they do it.
That's why I put so much emphasis on public education. At the first meeting I have with clients, or during any time I spend with clients, I tell them that over the next few months they're going to go through these very distinct phases. They're in denial, they're going to get angry, they're going to get depressed, they're going to do false bargaining, and then they're going to move on. You have to position them to make sure they are agreeing at the moment of acceptance. That's a skill I think not just lawyers have to bring to this. We can't just rubber stamp agreements and orders that are placed in front of the court.
Mr. Peter Mancini: Thank you.
The Joint Chair (Mr. Roger Gallaway): Thank you.
Senator Jessiman, please.
Senator Duncan Jessiman: I'd like ask some questions of Mr. Cochrane.
Do I take it that if someone reads this book, they might not have to use a lawyer?
Some hon. members: Oh, oh!
Senator Duncan Jessiman: I'm not trying to plug your book, but I got that impression because I too am a lawyer. I don't practise, but my experience from talking to others who do practise or talking to people who are having lawyers act for them is that it's not easy. We say we just go in and make an ex parte application or an application serving the other side.
Mr. Michael Cochrane: In the book I don't urge people to do it on their own. What I urge them to do is to turn themselves into really smart consumers. They go in and handle their lawyer, rather than the other way around.
One of the best calls I ever got on that book was from a lawyer who phoned me up and said, “What the hell do you think you're doing? I just finished a meeting with a client, and every 15 minutes the client was saying that's not what Mr. Cochrane says on page 22.”
That client may have gone to an extreme, but the client was informed, knew what his choices were, and when the lawyer didn't present something to him, such as perhaps exploring mediation or talking about joint custody, the client was ready to engage in a meaningful discussion about the choices.
We need to have a lot more respect for the people who are coming into the system.
Senator Duncan Jessiman: There seems to be overwhelming evidence—and if you don't agree with it, tell me so—that the courts, for whatever reason, are gender biased. In 80%, some say 90%, of the cases custody goes to the woman.
Mr. Michael Cochrane: I think this is the biggest red herring—
Senator Duncan Jessiman: You don't agree with it.
Mr. Michael Cochrane: —in family law reform. All this gender bias talk really takes us off the main focus. I do not see it. If anything, the studies that have been done support the conclusion that when a man decides he wants to have custody, in 70% of the cases he'll get it.
Senator Duncan Jessiman: We want what you're saying, for whatever it's worth, and you've practised a long time.
Mr. Michael Cochrane: I've had just as many male clients get custody as I've had female clients get custody. In many cases that study was attacked, because they said the only reason it's true—they didn't argue with the outcome—is that men have more money than women have. I don't accept that.
I think what we really need to have, rather than presumptions of joint custody, which I do not favour, is a much more sophisticated shopping list, one that the judge is aware of and the lawyers and clients are discussing. From that more sophisticated list of choices and with informed consumers, we will get better parenting plans and we'll get people asking for things they know they're entitled to, rather than lying down at the wrong moment in a case and not taking what's really in their interest or the child's interest.
Senator Duncan Jessiman: I'm sure you know that in California at one point joint custody was almost automatic. Then they got away from that.
This is what we're told they look at today. I want to read it to you and ask you, as an expert in this, whether you think the court, or we as a committee, should consider something like this. What we're looking for is some advice from people like you.
It says that when custody has been granted to either parent, the court must consider which parent is more likely to facilitate contact with the other parent and must not prefer either parent on the basis of sex. The court is permitted to require that the parties submit plans for the implementation of the custody order.
Do you think if we had something like that in our legislation, it would help us?
Mr. Michael Cochrane: That clause mixes three things: what they call a friendly parent rule, a type of presumption of joint custody, and the parenting plan. I favour the idea of the parenting plan. I don't think legislating the friendly parent rule is going to change anything, and I don't think a presumption of joint custody is going to change anything.
The parenting plan part I agree with. The other—
Senator Duncan Jessiman: What about this other? Here's another part from the same code. Paragraph 3040(e) expressly provides that it:
establishes neither a preference nor a presumption
for or against joint legal custody, joint physical
custody, or sole custody, but allows the court and the
family the widest discretion to choose a parenting plan
that is in the best interest of the child.
Mr. Michael Cochrane: That is addressing what I think is developing a more sophisticated shopping list for the people in the system. That's the approach I think we should be pursuing.
Senator Duncan Jessiman: We should be directing our mind to something like that and encouraging Parliament to consider legislating in that direction.
Mr. Michael Cochrane: We should be looking at making sure that people know what their choices are and making sure that when they end up in a courtroom, or in a discussion with their lawyers, they are aware that all the choices are on the table, that they can pick from them all, and that something's not going to get any advantage over something else, whether it's joint custody or sole custody.
Senator Duncan Jessiman: This is the reason I would like words like that in the legislation. The judges see our present act, and it does say certain things in there. You talked about grandparents; they can apply, but they can only apply after they've applied first. They can't automatically apply. They have to apply to the court to see if they can apply. That should be eliminated.
But there are other things about lawyers specifically. They have a responsibility to tell them mediation is available. So what does that do? The courts just ask or they have the lawyers sign a certificate that they've done that. But if we had something like this right in the legislation—I'm not saying these words, but bringing it out so the court has to look at it and the judges have to—I think we'd get somewhere.
Mr. Michael Cochrane: Well, there's an expression you probably recall from practice called “bargaining in the shadow of the law”. That's where clients and lawyers live; we bargain out in the shadows. The shadow is cast most clearly if you have clear laws that set out a shape. What you're suggesting would contribute to that shape so it would create an area in which lawyers and clients bargain.
I just want to say something else that's related to that. When we did the mediation advisory committee in Ontario, it took 12 months. We had mediators, a unified family court judge, family law lawyers who were dead set against mediation, and representatives of the Ontario Women's Directorate putting forward a feminist perspective on mediation. We spent 12 months debating what we could do to improve the family law system and to bring mediation into it and take the adversarial nature out of it.
One of the conclusions we came up with was that instead of saying to people, “You must go through mediation”, what we should be saying to them is, “You must get educated as you come into the system. You must know what your choices are.” So we recommended creating a screen that you would have to pass through as you came into the divorce system, in which you would get public legal information about custody choices, about parenting plans perhaps, and about what mediation is, so you would have as much information about your choices as the lawyers and the judges did.
I was very encouraged to see that Mr. Szabo, who's not present today, sat on a federal standing committee dealing with health issues, and they concluded that divorce is a health issue. It is. It's bad for the health of Canadians. It's bad for the health of kids. One of the recommendations they came up with, which I would urge you to consider, is the requirement for public education around divorce. I think one suggestion even addressed the possibility of educating people before they get married.
I had a call before I came down here today, as I was just starting to go out the door, from somebody who was looking for legal advice. Separation is imminent, and they've been married for a month—for one month.
Senator Anne Cools: Did you say one month?
Mr. Michael Cochrane: One month.
Senator Anne Cools: That's what I thought you said.
A voice: Elizabeth Taylor.
Mr. Michael Cochrane: I think people would benefit from some exposure to information about what it means to be married, what it means to have kids, what domestic violence is about, what financial planning is about, and all those things they're going to confront in a marriage. They should get that before they get that marriage licence, which only costs them $50.
I did a calculation that if you spread the cost of divorce in Canada over the cost of marriage licences, it would cost $50,000.
A voice: Really?
The Joint Chair (Mr. Roger Gallaway): Mr. Forseth.
Mr. Paul Forseth: Thank you.
We're getting near the end of the day, so I'll just try to interject with one pointed question, and perhaps a number of you can answer.
Repeatedly we've heard the theme of the problems with the adversarial system. One comment I heard this afternoon was that we should replace it with the inquisitorial system. Another comment was that perhaps we should have a tribunal with a multi-disciplinary approach, perhaps a round table type of attempt. I have seen experiments in that regard. I think the Berger commission on family law tried some of that in British Columbia as far back as 1975.
But I would ask, is there any other jurisdiction we can look to—Hungary, France, or wherever—where we can look at a system that operates quite differently from the historical British adversarial system we've inherited? Are there any examples we can learn from?
Certainly other countries have gone down this road. Human nature being somewhat the same in the western world, in the way we think and operate and our lifestyles, there have to be other jurisdictions, completely different from the adversarial system we have, that perhaps we can learn from. Do you have any information about that?
Mr. Michael Cochrane: My recollection—and I'll look for this when I get back to my office—is that some pilot projects were tried in Australia on a round-table tribunal approach. But by the same token, I wouldn't let that discourage us, because one of the things I always took great pride in when I worked for the Ontario Ministry of the Attorney General was that we often led the world in some of our reforms. We have a much better approach to family mediation in Ontario, I would say, than many American states do. We learned from all the mistakes they made before we put ours in place. The same thing with support enforcement and some of the other programs; we could actually export a model.
Mr. Paul Forseth: Anyone else? Just go ahead, sir.
Mr. Stan Gal: In my presentation I made a comment on the family law industry, and I just want to summarize something on that. While I'm out there working, family lawyers are out there practising. My three or four lawyers have practised on me for about 10 years, okay? While they were vacationing down in Florida, I was in the bankruptcy trustee's office filing for bankruptcy.
That's all I have to say. Thank you.
A voice: Amen.
Mr. Phil Pocock: I believe the more we try to structure our legal systems to accommodate all of the things that can happen in family law, the tougher we make the implementation from the human standpoint, the human point of view. We actually seem to be trying to structure exactly how a family is going to look, act, and react in Canada in its complete function. I believe that's an entire impossibility.
So my recommendation is to go back to an inquisitional system. Asking questions, I believe, as a teacher, is the best way to learn. But I also believe that as human beings, we ebb and flow. We need a hugely dynamic and fluid system. So the fewer laws we have the better. I don't like laws; I rather like structure, meta-cognitive structure, to work within. That's why I suggest education from the very early years on up as the best way to handle this thing.
Mr. Paul Forseth: Thank you.
The Joint Chair (Mr. Roger Gallaway): Thank you, Mr. Forseth.
Thank you all for coming this afternoon. I know it's your time that you're investing in the life of this committee, and I want to thank you.
This committee is adjourned until 9 o'clock tomorrow morning. Thank you all.