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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]
Wednesday, April 1, 1998
The Joint Chair (Senator Landon Pearson (Ontario, Lib.)): Welcome to the fourteenth session of the Special Joint Committee on Child Custody and Access.
This morning, we'd like to welcome Vernon Beck, from Family Conflict Resolution Services; Dr. Fred Matthews, from the Central Toronto Youth Services, Research and Program; Dr. Marlies Sudermann, from the London Custody and Access Project; and from the Community Coalition for Custody and Access, Rita Benson, Keith Marlowe and Sylvia Pivko.
Before we start, I would like to remind you what the terms of reference of this committee are: that a special joint committee of the Senate and House of Commons be 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.
What we would like you to do is take five minutes only, if you can possibly do that, so that there is time for questioning. We have a long list of witnesses to go through, so we will start with Vernon Beck.
Mr. Vernon Beck (Program Director, Family Conflict Resolution Services): I'd like to thank the honourable members of this committee for the opportunity to speak today. My name is Vernon Beck, and I represent a non-profit organization called Family Conflict Resolution Services. I am proud to be here to be part of what I feel is a historic event in the history of the Canadian family.
I will start off by mentioning that unresolved conflict is at the root of the problem facing Canadian children and their families during divorce. Logical solutions to solve the conflict do exist, but they are shamefully and intentionally being ignored by forces opposing the resolution of conflict. What is a disgrace to our country is that in the middle of this whole mess is our justice system, which has failed in its mandate to deliver justice and to end this conflict.
Our formal written submission to the committee will contain more detailed analysis of these factors. I will spend my remaining time describing a unique project that our group has been working on over the past several months. Our program has been developed to effectively deal with the vast majority of high-conflict situations, while at the same time ensuring that the best interests of the children are protected.
Months before this joint committee was struck, members of our community gathered to undertake an initiative to discover the causes and solutions of conflict during separation and divorce, and to prepare a comprehensive community-based program that would, by coincidence, solve the very same issues that are before this committee today. We have named our program, and it is called the family assistance and parent support program. The overall concepts and goals have been established and procedures are now being fine-tuned within our program. We feel that many of the concepts that have been developed by our group will be of great significance and interest to the members of this committee.
Our program is based on a number of concepts.
One, the community must be involved with the settlement of these issues, not the courts.
Two, both parents must enter a minimum one-year probationary parenting period upon separation.
Three, joint custody and equal access, i.e., shared parenting, must be made the rebuttable presumption of law, and must be made available to both parents on an equal basis upon separation.
Four, community-trained parent coordinators will be assigned to work in conjunction with families in conflict after separation, so that the parenting abilities of the parents can be properly assessed and the progress of the children can be monitored. These parent coordinators will address any minor conflicts with the families during this period.
Five, comprehensive parenting training and education must be readily available for family members.
Six, both parents must be treated equally and fairly in all aspects of parenting time, parenting responsibilities and child support.
Seven, effective enforcement of parenting agreements and orders must be in place.
Our program will effectively address virtually every concern presented to this committee to date. I sat here Monday and listened to many of the concerns that people had. There was not one that our program will not address. We have already developed solutions and are already working toward implementation procedures. Legal documents are already being prepared, and training manuals are already in draft stage.
In addition to our non-professional members, we have gathered an advisory group of over forty professionals, including family law lawyers, assessors, mediators, social workers, psychologists, nurses, educators, etc., and the numbers are still growing. So effective is this program that, when complete, we feel we will have amassed one of the most powerful community-based groups of citizen-professionals set to attack the issues before us. We feel our program is the cutting edge for North America and could become a model for the courts right across this country if given serious consideration and political support.
I'll take a few minutes to provide an outline of some of the benefits of the program. I just drew up this list when I was here Monday, and from amongst some of the feedback I heard from people on Tuesday.
First of all, it is very much a child-focused program. It offers speedy process of law. We've anticipated that within fourteen days of a separation, a family could be back and ready to function again within the community.
This program will contribute significantly to the reduction of domestic violence. It provides positive input to the courts when it's required. It is far more effective than mandatory mediation, because this program sets standards established by the community as a whole, ones that can be negotiable by the parents. It utilizes educational programs currently within the community, yet the programs are voluntary.
It will ensure that the children are never placed in a position of having to choose between mom and dad. It allows children to be heard in a non-intrusive and effective manner. It will encourage maximum and yet equal contact between the parents and between the children and both of their parents whenever possible. It will put an end to vindictive parents forcing non-custodial parents out of the lives of their children and will ensure that the actions of these vindictive parents do not affect the children.
It will make parents accountable to each other and to the community, in an identical and equal manner. It will eliminate the adversarial process of separation and divorce and make the process a family-friendly process. It will remove the majority of cases from the courts and put them into the community, where they belong. It offers predictability and stability to both the parents and children. It follows the basic principles and theories of case management. It will address access denial problems without further involvement of the courts.
It can also be applied to intact families prior to separation or divorce. There were some concerns raised about early intervention. This will address those concerns. It will work effectively where parents desire even a sole-custody arrangement for one reason or another. It effectively addresses the problems of abuse of children and, even more importantly, the allegations of abuse against children that are so rampant in our courts today.
This program can be custom-tuned to meet the individual requirements of families and can be modified from its original form without the involvement of the court. It means stability in a child's social relationships and sense of community.
The Joint Chair (Senator Landon Pearson): Mr. Beck, you've reached the end of your five minutes. Are you just about finished?
Mr. Vernon Beck: Just about. I can make some closing remarks.
The Joint Chair (Senator Landon Pearson): Please.
Mr. Vernon Beck: In closing, let me say that the concepts contained in our program can provide immediate and long-term solutions to the problems facing families of divorce. It will also bring about total fairness, gender equality, reduction in domestic violence and, most importantly, justice to Canadian families. And it will restore confidence with respect to our legal system.
All of this will be done in a non-adversarial, family-friendly way and administered by the community. Components of our model could be incorporated within months, even before this committee makes its final recommendations. We have the tools, we have the willingness, and we have the involvement of the community to be able to get the job done quickly.
How many more children and their families are we going to allow to be destroyed before we take action? Canadians are fed up and disgusted with what's going on right now. We want solutions based on justice, not on political correctness, gender bias and the protection of jobs within the legal industry.
As a final recommendation, we would ask that the government reach out and give the community the resources it needs to get the job done right. We ask that those on the committee and all those in government embrace the concepts of shared parenting, justice, equality and community involvement. Do we have the courage to do what is right for our children?
On behalf of all Canadians, I thank you for your time.
The Joint Chair (Senator Landon Pearson): Thank you.
Dr. Fred Matthews (Director, Research and Programs, Central Toronto Youth Services): I want to thank the committee for the opportunity make a presentation this morning. I believe the task you're undertaking is very important to the well-being of Canadian children, parents and families.
I think all of us can agree that custody and access is a complex issue full of contradictions and competing demands and interests, with few easy or simple solutions. Emotions can run high and reasoned discussion can be difficult to achieve.
But I come here today not as an expert on custody and access. I do not pretend to have all the answers, nor do I wish to win any arguments. I do not belong to any particular camp or school of thought. And as a researcher, I try to be inclusive and draw from a wide range of information sources when trying to understand complex social phenomena.
However, I personally give high priority to what young people have to say about their life experiences and their relationships with adults. So I come before you today not so much to speak on behalf of adults, whom I believe to be failing young people in our society, but as an advocate for children and youth.
What I find continually in my work is that adults are out of touch with young people's lives and needs today. While we argue over theoretical points of view, legal process, rules of order or problem definitions, we miss the most important issue to children and youth: the need to experience and feel a strong bond of love, intimacy and connection to the significant adults in their lives and their communities. Whenever our actions as helpers fail to strengthen these bonds or fail to support parents or help them understand what's at stake for their children, we simply add to young people's and families' suffering and sense of isolation.
I should state emphatically at this point that I do not like the terms “custody” and “access” and would advocate that we find more appropriate and egalitarian language to conceptualize how mothers and fathers plan to parent after separation or divorce.
In my opinion, the term “custody” is a relic of the past when we thought of children as chattel, and when I hear the term “access”, I immediately worry about how much power and control the custodial parent has over a child's emotional well-being and relationships with significant other adults.
Let's face it, emotionally distraught adults whose relationships with their partners have deteriorated or completely broken down often make serious mistakes in judgment. In their pain, they sometimes choose actions that have serious repercussions for their children's well-being. This can include withholding financial support, withholding access, or diminishing or impugning the character of the other parent. It can also include subtle withholding or withdrawal of affection when a child shows interest towards spending time with or speaks positively about the other parent. In some cases, parents will even resort to making false allegations of abuse in the belief that it will improve their chances of obtaining custody and restricting access.
I believe it is important for us as a society to give compassion and support to separating or divorcing parents. But I also feel as a society we have, as a higher order of value, a responsibility to ensure that the most vulnerable persons in these situations, the children, are protected from needless harm in every way possible.
I'll cut through this, because I know the time is going to expire very quickly.
I'm of the opinion that withholding financial support should follow an escalating scale of consequences, beginning with fines—and I believe we're already doing a lot of this—withholding wages, possible legal sanctions or revisions to custody and access orders.
But I also feel in regard to denying access, that the time that's missed with parents should be accumulated as well. I worry about that, because children, especially very small children, are developing very rapidly, and not having the time to spend with their parent in those early and formative stages is time lost forever. So I'd like to see that addressed somehow.
However, I think we should use the criminal justice system sparingly. I prefer mediation as an approach and to take these things out of the courts as much as possible. Under exceptional circumstances, such as battered or stalked spouses, or parents who are protecting children from spouses who have previously abused those children, I don't think these issues apply. But I am very much in favour of evoking the criminal justice system for repeated and flagrant acts of abuse of process.
I also believe the law, as it's currently interpreted, diminishes the importance and even the necessity of extended family in the growth and development of children. This is evidenced by the fact that the rights of grandparents to maintain and enjoy close ties with their grandchildren are often given little or no weight in decisions.
Unless it can be shown to be detrimental to the health and well-being of the child, or that it will bring remarkable distress or hardship to one of the parents involved, I believed shared or co-parenting should be the primary guiding directive in proceedings following separation and divorce.
I do not suggest we codify in law any particular definition of the terms “shared” or “co-parenting”, because the needs of families, parents and children vary widely. I also believe parents alone should not be making all the decisions in these situations. Children themselves need to be given an equal voice at the table. They have much to tell us about what is in their own best interests, and I believe they should be given an opportunity to do so.
Further, any arrangements made based on the principle of shared or co-parenting should be flexible, continually open to revision, and meet the changing developmental needs of children, parents and families as their life situations evolve.
In summary, I feel it's time to change the principles, if not some of the laws, affecting young people, parents and families with respect to parenting after separation and divorce. I would like to see us as a society abandon the idea of custody and access and put in its place an approach of favouring shared or co-parenting and parenting plans. I believe grandparents and extended family members should be included in the parenting plan.
I firmly believe it's time for us to stop debating only about adult power and privilege in these matters and begin involving children and youth more directly in the decisions affecting their lives and future. I believe we need to take a developmental perspective when preparing plans. I believe the state should ensure that children and parents have access to supports and services that can help the family during this painful transition period. I believe we need to immediately establish a method of supervising and revising parenting plans to ensure all parents or all partners are honouring the agreement.
I suggest the criminal justice system be used only after all attempts to remedy conflicts between parents have failed. But I hold the view that adults must be held accountable at all times for behaviour that brings harm to children.
The Joint Chair (Senator Landon Pearson): Thank you very much.
Dr. Marlies Sudermann (Director, London Custody and Access Project, London Family Court Clinic): I'm director of the London Custody and Access Project at the London Family Court Clinic and I wanted to start off by explaining what the London Custody and Access Project is.
The London Custody and Access Project was established in 1980 to assist separated or divorced parents, their lawyers, the court and others to develop plans for the care of the children that are in the children's best interest. Through critical assessment, mediation and arbitration, parents are helped to resolve their disputes and are encouraged to put their spousal issues behind them and focus on the children's needs. The easing of inter-parental conflict is considered essential in assisting the children to make a satisfactory adjustment to a family separation in our view.
Today, for purposes of this committee, I wanted to highlight what we consider to be some key issues in child custody and access. I would just like to mention that I do believe the terms “child custody” and “access” are terms that should be reconsidered perhaps to focus more on responsibility for parenting and so on, somewhat as others have said.
The two key issues that I'd like to highlight today are family violence and access to assessment services. Under the first heading, family violence, I wanted to say that woman abuse is a major factor in a high proportion of child custody and access cases. This is not surprising, considering the fact that according to Statistics Canada 29% of currently or formerly married women, including those who had common law relationships, have experienced some form of domestic violence, that is, physical violence or threats that meet Criminal Code definitions. While there are some instances of women who abuse men, these cases are rare, in our experience. Statistics from police departments indicate that between 95% and 99% of cases of domestic violence brought to police attention involve women or children as the victims.
Secondly, children are adversely affected in cases of woman abuse. Witnessing family violence has been shown to have extremely deleterious effects on children in terms of their emotional and social adjustment, their behaviour, as well as their school achievement. Boys who witness their mother being abused are at greatly elevated risk of becoming abusers themselves in their teen and adult relationships with women. The effects on children of witnessing woman abuse will be outlined in some attachments that I will submit with the written version of this brief.
The deleterious effects occur even when children are not themselves physically abused and when parents think that the children did not directly witness the abuse. Children in these situations are caught in a war zone in their own homes and many suffer post-traumatic stress disorder. Clearly, this is an important issue for child custody and access.
Thirdly, when there is a history of woman abuse, the usual considerations in a child custody and access dispute change considerably. And some of the issues under that include situations where the mother is at risk of continued abuse and harassment around times of access transfer and where the children are at risk of witnessing continued abuse at these times. Other issues include the potential lethality of the abuser's intentions, as separation is well known to be the most time for a woman who is in an abusive relationship.
The Law Reform Commission of Nova Scotia, in its 1995 report, From Rhetoric to Reality: Ending Domestic Violence in Nova Scotia, highlighted this issue and concluded that many men who are sentenced after woman abuse convictions reoffended at times of court-ordered child access transfer. This report also concluded that the legal system needed to more effectively take into account issues affecting women and children around family violence.
While some mothers do withhold access unfairly or without considering the children's best interests, in our experience, they are far less numerous then men who employ legal processes around child custody and access to harass, abuse, and control their former partners. In either situation, a competent child custody and access assessment can clearly bring out the children's needs and the ability of the parties to meet those needs and to refrain from engaging in harmful practices with respect to the children.
Fifth, mediation is not appropriate in cases where there are issues of abuse. Mandatory mediation is a practice that can further victimize abused women and children who have witnessed abuse.
The sixth point is joint custody. This is often ill advised and dangerous where there has been family violence. There should be no presumption of joint custody.
Supervised visitation centres can be a very useful resource for parents in abusive relationships who have separated. However, these centres must be properly funded and administered with the requisite knowledge and staff to facilitate safe practices that are beneficial to children.
Relating to the second issue, accessibility and quality of child custody and access assessments and related services, I would like to say that custody and access assessments are key tools for ensuring that the needs and best interests of children are met.
However, in my experience, quality custody and access assessments are not available to many children in families across Canada. This is due to a lack of funding, courts that do not order assessments frequently enough, and finally, poor training and standards for assessors. Assessors need a knowledge of child development, family dynamics, and the impact of conflict and violence on children, as well as such issues as child abuse, sexual abuse, and family violence.
Second, a continuum of other services, such as continuing clinical involvement, mediation where appropriate, education and counselling for separating parents, and educational and therapeutic groups for children from separating and divorced families—
The Joint Chair (Senator Landon Pearson): Excuse me, you've spoken for five minutes. Can you come to your conclusion?
Dr. Marlies Sudermann: Yes, I will.
Groups for children who have witnessed violence or who have been abused and, where necessary, high-quality child protective services are essential in our communities. When these services are cut back or simply unavailable, children suffer.
In conclusion, I would like to say that children's relationships with both parents after a family separation are very important; however, children must also be protected from witnessing family violence and being victims of child physical and sexual abuse. Quality custody and access assessments with knowledgeable and skilled assessors are an important way of ensuring that the focus in these disputes remains in the best interests of children.
The Joint Chair (Senator Landon Pearson): Thank you very much.
Now, I'm not sure which one of you, or all three of you—
Ms Rita Benson (Member, Community Coalition for Custody and Access): I just want to clarify who we are, first. With me is Keith Marlowe. He's a supervisor who runs and supervises a program of groups for abusive men. We have 150 men in groups this week in our agency in Durham region. With me also is Sylvia Pivko, executive director of the family court clinic. They do custody and access assessments.
I'm Rita Benson. I'm a marriage and family therapist, and I run groups for abused women. So I'll begin my presentation.
We are part of a provincially funded community project that's looking at custody and access issues. We have a community network of 15 to 20 agencies that meet to discuss custody and access issues. We have a research study that's looking at the experience of abused women around custody and access issues. Our funding began in February 1998, so we're just beginning this process.
We are here today to ask you to reflect with us about the very serious matter of how custody and access issues affect the safety and well-being of abused women and their children. We know this is a specific subgroup, but it is a very important one whose needs cannot be ignored as you make overall legislation.
In this day and age, children's mothers are being killed. Children are being killed. Children and their mothers are living with threats, harassment, fear, danger, and a lack of control over their own lives for years after leaving an abusive partner. While there have been changes in the criminal justice system that are increasingly addressing the criminality of abusive behaviour, what we are seeing now on the front lines is that abusive men are increasingly using the family law arena, specifically custody and access issues, as an instrument of a harassment and control.
The last frontier of control and the final way an abusive man can have impact over his partner, once financial matters are settled, is through access to the children. Some examples of what we are seeing include: threatening to sue for joint custody or sole custody; using access exchanges to harass, threaten, and at times physically assault the children's mother; refusing to return children at designated times; grilling the children for information about the mother; blaming the mother for destroying the father and breaking up the family; and so on.
We suggest to you that any children who have witnessed abuse of their mother are children at risk, are emotionally damaged by the experience, and that violence by one spouse to another is explicitly relevant in determining custody.
We have believed in this culture in the inalienable right of a parent to have access to their child. We would suggest that this is not appropriate, that there are circumstances where a parent, by virtue of their behaviour, relinquishes that right at least for a period of time.
If a man sexually abuses his child or seriously or continuously abuses a child's mother, that child has to live with the emotional pain, the impact on relationships, and difficulty functioning in life for the rest of their life.
Yes, the abusive father may be in deep pain about the loss of his relationship with his child. What we look for in clinical work is the man's ability to begin to understand and care about the impact of his behaviour on someone other than himself, specifically the impact on his victim. We also look at whether he is blaming the system or something external to himself, or whether he actually takes responsibility for the fact that it was his own choice to use abusive behaviour that created unwanted consequences for himself.
There are four specific recommendations that we would like to make.
First, abuse by one spouse against the other is specifically relevant to decisions about custody and access. In fact, there should be a presumption that custody should not be awarded to the perpetrators of domestic violence. Consideration should be given to physical, sexual and psychological forms of abuse.
We refer you to the federal report completed in 1993, the recommendations of the Canadian Panel on Violence Against Women. Section L.75 suggests that we review and amend all legislation to protect children's security interests; that we define children who witness violence as children in need of protection; and that we change the Divorce Act and all legislation dealing with custody and access, such that violence by one spouse against another is explicitly deemed to be relevant in determining custody.
We also refer you to another federal study, the Department of Justice custody and access discussion paper of 1993, which suggests that legislative clarification is required to ensure that evidence of spousal abuse is something that the court must consider in making custody and access determinations, and that children and spouses who had been victims of violence must be protected against further harm.
As our second recommendation, there should be legislation that establishes that, at least initially, an abusive spouse should be precluded from having unsupervised access to children of the relationship.
We have been interested in the information about New Zealand, where legislation has been enacted so that it is mandatory that supervised access is ordered where a spouse has physically or sexually abused his partner.
We understand this is a complicated issue. At times, even when the father is abusive, children may want to see him. This would provide the opportunity to see him in a supervised and safe setting, with the option of increased access as his behaviour changes, if it does.
In our committee, we have had some initial discussion about the abusive spouse having the ability to earn his way through participating in treatment and demonstrating actual behaviour change, that he may earn the right to have increased contact with his children.
The Joint Chair (Senator Landon Pearson): Ms. Benson, you've had five minutes. Can you summarize?
Ms. Rita Benson: Okay.
That puts the onus on the abusive spouse to prove his readiness, rather than on the victim, the abused woman, to prove her competence, when she is not the one who broke the law. Like the previous speaker, we know we need supervised access centres and trained assessors and programs to support them.
Our third recommendation also echoes another one, that mediation is not appropriate. It assumes an equal ability to negotiate, which is not true if one partner is willing to use threat or danger in response to the other partner.
Our fourth recommendation is that joint custody is not recommended for families where spousal abuse has occurred. It requires an abused spouse to be in ongoing negotiation and communication with the abuser. Women leave to end the abuse; joint custody ensures it continues.
In overview, we suggest that the safety of children who witness and experience spousal abuse and the safety of the abused spouse be the paramount concern and defining factor in any decisions made regarding custody and access. This would do a great deal to contribute to clarifying the issues and giving children the message both that society cares about them and abusive behaviour is not an appropriate option. Such steps in protecting the needs of this particularly vulnerable group of children would go a long way toward ending the intergenerational cycle of violence we are now seeing.
We will be submitting a brief to you as well.
The Joint Chair (Senator Landon Pearson): Thank you.
Senator Erminie J. Cohen (Saint John, PC): Thank you.
I have two questions. The first one I want to direct to Mr. Beck.
Your presentation was really utopian in everything it covered. Is it working yet or is it just in the process of being put together? I may have missed that.
Mr. Vernon Beck: It's in the process of being put together right now in terms of procedures. We're even in the process right now of developing training manuals for these parent coordinators. We have heard of similar programs in some of the states in the U.S., where they've talked to “parent referees”—they have different names for them—who work under the same idea.
Some of the assessors in our group will tell you the same thing. As soon as an assessor gets involved between two parents, suddenly most of the conflict disappears, and they're on their best behaviour. We need to keep parents on their best behaviour for a period of time while their emotions start to calm down and they have a chance to learn the parenting skills they need to work in a cooperative environment.
Senator Erminie Cohen: Could you comment briefly on the whole concept of the probation aspect? It sounded interesting.
Mr. Vernon Beck: The principle behind that is that when parents first separate, they have joint custody, in a sense. They are both parents. We all know that at the time prior to separation, the parties, usually the one that seeks an advantage...there are false allegations. We know this is rampant in the system. We know there are tactics that will mislead assessors, will mislead the courts, will mislead everyone. There are allegations of abuse and so on. These are being used to gain an advantage against the best interests of the children.
By putting parents on an equal footing, first of all, they'll both retain custody, in a sense, under the same conditions they had before the separation, but these parent coordinators are going to be there to help the family. Over a period of time, false allegations will disappear and the truth of the situation will evolve, something that can't be done when it goes before a court.
Senator Erminie Cohen: Thank you.
I have one more question. This one's for Dr. Matthews.
There are two areas you mentioned that I think are important. One is the withholding of the enforcement mechanisms and the escalating process. The other area was that co-parenting should be flexible and should be revisited often, as the children develop.
I think those two areas are worthwhile talking about as we consider the road we're going to take from here.
Dr. Fred Matthews: I talk about escalation because this is a very difficult time emotionally for everybody. People are going to make mistakes. I don't think we want to use the heavy guns of the artillery—oh, God, I hate using these metaphors—or too much state power when sometimes, I think, we simply need to remind parents that the bigger picture here is the well-being of children.
So I think there should be an escalating series of consequences up to and including an automatic review of the parenting plan. Also, as I was stating before, it should be developmental. Families and children change over time. There needs to be an open mechanism in this process so that the plan makes sense over time. And in the extraordinary situations where there is family violence, where spouses are just extraordinarily combative and there is violence going on, I think under those circumstances there may be more need for the criminal justice system to be involved and less mediation. I certainly would support some of the comments that are being made here today too.
I'm not sure how all those things fit into those particular contexts.
Senator Erminie Cohen: Thank you, Doctor.
The Joint Chair (Senator Landon Pearson): Thank you.
Senator Anne C. Cools (Toronto Centre, Lib.): Thank you, Madam Chair. I'd like to thank the witnesses very much.
Also, as my second question, I'd like to allow Dr. Matthews, who has done extensive research on young people, to place some of his work on the record. So if Dr. Matthews could think about that for a moment, I'll place my first question.
The witness to the far right has suggested essentially that domestic violence and violence in general be issues in the awards of custody and access. My understanding is that all of these matters are considered. But if I could go to the conceptual framework of the witness' presumption in her suggestion, I'd like to find out from her what is the intellectual and conceptual framework behind it.
I'll tell you why. It's because the Divorce Act is not an instrument of the penal codes, and what you're basically suggesting is that the Divorce Act, which would come under that body of law that we would probably, in the vernacular, describe as enabling as opposed to punitive or penal codes, be made into an instrument of the penal code, which I find very extraordinary because it would overturn the systems and the concepts of making law for a hundred years or so.
I wonder if you could respond.
Ms. Sylvia Pivko (Executive Director, Family Court Clinic, Community Coalition for Custody and Access): I don't think the conceptual framework is the one that we're suggesting necessarily. I think it's important to understand—and I appreciate that overall we're looking at a small percentage—that there needs to be some thought given to how we might address those issues.
Certainly, I agree that using enabling legislation and enforcing it in that way is not the way to go. But there needs to be an alternative.
Ms. Rita Benson: If I could also answer, my interest in this is not to additionally penalize an abusive man. That's not the energy I have about this. The energy I have about this is that women and children are, by the decisions we make about custody and access, being placed in very dangerous and untenable situations. So somehow in the legislation we enact and the way we handle these things we can't ignore that this is going on in this culture and this society, and when we make legislation it has to.... If we just mandate, across the board, mediation in all cases, we are doing severe danger to a significant percentage of this population.
So my intention is to ask you to think about those people when you're drafting legislation and to allow for this issue.
Senator Anne Cools: No, I think I can assure you that every single person on this committee cares about the welfare of children in this country. Basically what I was trying to get at is that the Divorce Act is largely about civil proceedings. Penal codes are largely about criminal proceedings. The standards of proof are so very remarkably different, and the Divorce Act, after all, is a statute that allows people to get divorced.
Anyway, having said that, I would like to move to Dr. Matthews.
Dr. Matthews, because you have done extensive research on what I would consider to be the social consequences on children in divorce and family breakdown, particularly on the issues of aggressive behaviours in children, behavioural problems in children, I wonder if you could—I know there's not a lot of time—share some of that research with the committee so that the committee could have before it some of your excellent research on the subject matter.
Dr. Fred Matthews: A lot of the research I've gathered does not deal specifically with custody and access but it does deal with the consequences of what I would call ineffective, or failed or stressed, parenting. I could leave a copy of this on deposit with the committee afterwards and save time for questions.
There is no question that children suffer whenever they experience violence in their families, whether that be in the form of witnessing violence between parents, whether that be corporal punishment or overt forms of child abuse and neglect.
One of the things I find I can say is that there's an absolute bottom line that distils out of everything I do in this area, which is that we, as a culture, have decided at some point not to give the kinds of supports, resources and assistance to families that they need to raise fully functioning, well, healthy children, up to and including teaching parents better ways to discipline and correct behaviour that doesn't involve violence. I think our institutions, a lot of our professional practices, some of our social policies, some of our legislation, still reflect historically dated views of family relationships and relationships between adults and children, and in many respects replicate very dysfunctional patterns of relationship and communication.
So I'm very much an advocate of us, as a society, allocating our resources differently so that for families in divorce, and separation and custody and access struggles, in parenting, in schools and institutions, we allocate those resources back to the people who need them to do a good job raising our children.
Senator Anne Cools: Thank you.
The Joint Chair (Senator Landon Pearson): Thank you very much.
Mr. Paul Forseth (New Westminster—Coquitlam—Burnaby, Ref.): Thank you.
One of the themes we've heard this morning is that mediation is not appropriate in a variety of circumstances. When you've addressed your comments to that specific point, I would like to know, then, in difficult, conflicted cases what are you expecting it to be replaced with? If mediation is not appropriate, then what should be done? What is the system?
Mr. Keith Marlowe (Member, Community Coalition for Custody and Access): I think that's a very good question, because I think if we take away something, we need to put something in place that does give hope to both the kids and the parents. In the experience that our agency and our community has had, initially you keep the two people separate and you work with them individually, because at some point, with some assistance, many men are able to take responsibility for their behaviour. They're able to learn how their behaviour impacts on children, and after a period of time with support they're able to make a better choice of how they parent the children and the conflict can be reduced.
In the last 15 years of providing men's groups, I've seen considerable change in the effectiveness of these groups in the sense that men are much more accountable now, generally speaking, than they were 10 years ago. And so I think that with the appropriate supports in place we can more effectively help both parents work together for the best interests of the children.
Mr. Paul Forseth: What you've mentioned, then, is keeping extreme, conflicting partners apart, but then you've again mentioned some other individuals working with those people. One of the mediation services we talked about was shuttle diplomacy; even though you're keeping them apart, there is still somebody working with that couple concerning their issues.
One of the supports you just now talked about is men's groups, and a lot of your presentation has been predicated on men being the problem individuals, and the abusers and the perpetrators. Of course, I'm certainly sure you recognize that women and mothers are perpetrators and abusers as well, and we need a complicated set of social responses to help children and to ameliorate and militate against whatever those dynamics are, whether they are male or female or both.
Mr. Keith Marlowe: I agree, and in terms of the response of our agency, because the numbers aren't as high, we see women individually, certainly as.... I think, to use the phrase, “as the net gets larger” and we begin to provide support to more and more conflictual families, at some point there may be a need for similar women's groups. It's just that our experience is such now that the numbers aren't high enough. But it doesn't mean we don't recognize that it still takes place.
Ms. Rita Benson: I think also, rather than mediation, in the cases of woman abuse or where woman abuse is alleged, you may need very trained assessors to make a recommendation to the court who really can spend time with those families and really assess and take into account, from an informed perspective, what is going on.
We've tried shuttle mediation in woman abuse cases, and we've still found it doesn't work, in our experience. The difficulty is that there is a power imbalance. You may go from room to room or you may have one person come in one day and another come in another day, but this woman is still terrified or frightened that if she doesn't agree to his wanting this or that, when he's outside the session he's going to come after her and he's going to assault her or he's going to get back at her through some other avenue that he will use. So there's still not an equal playing field. There's not an even field from which to negotiate.
Mr. Paul Forseth: So in that kind of circumstance, then, what are you suggesting as the alternative?
Ms. Rita Benson: What I'm suggesting here is that an assessment would be completed that really looks at the information. Certainly if there are already criminal convictions, that's part of the evidence that goes into an assessment. An assessment would include past abusive behaviour, current abusive behaviour, and an assessment of the potential for abusive behaviour—
Mr. Paul Forseth: As a result of that sophisticated assessment that really does find out that this man is a controlling, very subtle manipulator who will go to all kinds of devious means and this lady truly is in fear, then what?
Ms. Rita Benson: Then I suggest that custody be awarded to the woman and that the man, through participating in groups or whatever means he can find so that it can be reviewed, have the opportunity, through changing his behaviour, to be given mandated supervised access. He has a way to see his children.
There's one exception to that, and that's where there has been an especially...like an attempted murder where the children have witnessed it. You may not even do supervised access.
But in general, I'm saying you'd mandate supervised access with the opportunity for the man to earn his way back through changing his own behaviour, if he's going to do it, and that can be reassessed again at a point down the road when he's had time to work on it.
Mr. Paul Forseth: So what you're saying is it would only be in the very rare, extreme cases that you would suggest, say, for a man who's in personal difficulty, that his access be completely cut off. You talked about attempted murder and that kind of thing.
Ms. Rita Benson: Yes, so far that's my sense of it. But I would recommend supervised access in cases where a man has assaulted or raped his partner, with the chance for him to earn increasing access if his behaviour is appropriate with his partner and with the children.
Mr. Paul Forseth: And that would—
The Joint Chairman (Senator Landon Pearson): Mr. Forseth, you've finished your five minutes.
Mr. Paul Forseth: Okay.
The Joint Chairman (Senator Landon Pearson): Mr. Mancini.
Mr. Peter Mancini (Sydney—Victoria, NDP): Thank you. I may actually pick up on some of that, because I think we're into a crux of an issue here and it's something we have to come to grips with.
Dr. Sudermann, I think, indicated that joint custody ought not take place where there is a history of violence, and we certainly heard from the three of you in the other group about when there are allegations of violence and how that has to be taken into account in determining custody and access. When determining the history of violence, do you mean we should look at whether there is a criminal record of violence, which to me is proof that there is in fact a history of violence, or are you saying when there are allegations of violence?
We've heard on this committee that what happens in those situations, in these highly charged environments, is that the allegations of violence then become a weapon to use in the custody fight. This then leads to counter-allegations. She says he's violent. He says she's an alcoholic. She says not only is he violent, he's a sexual predator. He says not only is she an alcoholic, she's a drug abuser. It escalates, and escalates, and escalates in the power fight.
So I think it's important for us to know whether we make determinations on allegations of violence or on criminal records of violence in determining custody and access?
The Joint Chair (Mr. Roger Gallaway (Sarnia—Lambton, Lib.)): Dr. Sudermann.
Dr. Marlies Sudermann: If I might address that, I think that in those situations, certainly when there's a criminal conviction.... But as we all know, the criminal courts grind slowly and have a different purpose. There are situations in which there are other kinds of evidence that need to be taken into account.
For example, say there are other witnesses who can be interviewed in the context of a custody and access assessment who have seen the violence. Or, for example, sometimes the children have seen the violence. So we do interview the children in the context of custody and access assessments.
Also, we get information from collateral sources, which I think is really important. For example, there might be a police report, an incident report, a series of incident reports, or a record of things that police are aware of prior to criminal convictions.
There are issues, too, for example, where there has been documented abuse in the past, so then the current situation has to be reassessed from time to time. I think that would be really important. I also wanted to state flatly that it's a myth that there are a lot of false allegations of abuse by women.
Mr. Peter Mancini: Okay.
Ms. Rita Benson: I would say some similar things.
I think definitely where there is a criminal conviction, we of course would take that into consideration. The problem is that a lot of abused women do not go through the court system. It's a very challenging and demanding system.
So like the other speaker, I would say that there are other kinds of evidence that the assessor would be looking at. There are maybe medical records from a doctor. There may be photographs. There may be adult children who have witnessed the abuse, or it may be the children who are part of the assessment. There may be social service records or shelter records. So there are other kinds of evidence that we need to marshal as part of that.
Mr. Peter Mancini: Okay. Perhaps I can pursue that a little further, then.
First of all, let me ask you if you agree with this. Would you agree with me that there are some situations where a parent or spouse can be in fact abusive to the partner, which makes them not a very good spouse, but in fact they may be a good parent? I guess the question I ask is should we deny access, or whatever we want to call it, to that parent?
I'm not being critical here. I think we need to have this dialogue.
I think you used the words “until that man can earn some credibility by going to sessions”, and what have you. I mean, with this concept of earning time for an individual who may be an abusive spouse but not a bad parent by denying access or visitation to that parent right at the beginning, are we not then using the child or visitation as some kind of point system? If they are a good parent, we need the process in place. For the woman who is terrified, maybe the answer is to ensure that there is greater police protection when he comes to pick up the child or that there is a mediator. One of the grandparents could take the child from one to the other.
But I have two questions on that: should we deny access and then make it a reward system? Second, why would it have to be supervised access if there's no history of abuse toward the children?
Dr. Marlies Sudermann: If I might address that, I think the research material, which I will be submitting with our written brief, will address the very issue of the integral connection between being a good parent and being a non-abusive parent toward the mother of the children.
For example, a father who is abusive to his wife is frequently also abusive to the children. There is quite a large overlap in research studies between spousal abuse and child physical and sexual abuse. Also, the children, in and of themselves, just by witnessing the abuse toward their mother, are very traumatized. I think that we have to realize that a man who is abusive to his spouse has a lot of problems with his parenting as well.
The Joint Chair (Senator Landon Pearson): Thank you.
Mr. Mancini, are you finished?
Mr. Peter Mancini: Put me on the next go-round.
The Joint Chair (Senator Landon Pearson): My problem is that we still have five people on the list for questioning. In fact, we already have just about arrived at the end of our time. I'm in the hands of the committee. Perhaps they want to go over this a bit and ask some more questions of these witnesses.
Senator Anne Cools: Yes, I would like to make a suggestion to the chair. Could I make a suggestion to the chair?
As I said before, perhaps we could give Dr. Matthews a minute or so to read some of his research, at least some of his findings, into—
The Joint Chair (Senator Landon Pearson): I'm sorry.
Senator Anne Cools: He doesn't have it with him? You don't have a list? Okay, thanks.
The Joint Chair (Senator Landon Pearson): Mr. Mancini quickly, and then we'll move to Senator Jessiman.
Mr. Peter Mancini: This is particularly for the group at the end. I wonder about the concept of this. I just want your feedback on it.
We have three individuals here, and one works with abusive men and other people involved in that kind of situation. In the community I come from, we have all kinds of organizations spread out. We have the Elizabeth Fry Society, which works with women in conflict with the law, Transition House, and a group for men. Do you folks work out of the same geographical unit? By that I mean, is there a community-based centre where everyone can go? If not, do you think that's a good idea?
Ms. Sylvia Pivko: Part of this relates to Senator Cools' original comment about the role of the Divorce Act. What struck me is that it's really not useful to us in our communities to act in silo behaviour and to have limited mandates.
That has been the problem with social services that we're trying to alleviate now in looking at ways to see it more broadly. Yes, there is a specific focus that needs to be taken by a particular organization or a piece of legislation, but it can't be seen in isolation of other problems.
So to answer your question, I think it's really important to build supportive communities and places that are made easier for families to come to, so that there isn't that diversification or divisiveness between services.
Mr. Peter Mancini: Thank you.
The Joint Chair (Senator Landon Pearson): Senator Jessiman.
Senator Duncan J. Jessiman (Manitoba, PC): Thank you, Madam Chair.
Mr. Beck, could you tell us a little bit more about the services for family conflict resolution? You're the program director. What is that organization, and where is it located?
Mr. Vernon Beck: Basically we're a group of people in the GTA. We have people from Durham right out to Hamilton. We're basically parents. Some of us have been directly affected by divorce and separation, so we have personal experiences. A number of people don't have this experience. They're just people from the community who are sincerely concerned about what they see happening to families in courts today.
From the original group of people who started to develop the idea, we have gone out to solicit the support of a fair number of professionals. I'm talking about doctors, psychologists, and psychiatrists. A lot of the names that we have on our advisory board are known by people in this room, or they have heard of them.
Senator Duncan Jessiman: How many people are involved? What would you think your membership is? How many members would you have? Would you have 50, 100?
Mr. Vernon Beck: Right now, we have approximately 40 professionals who are going to be on an advisory board. These are professional people, such as doctors and psychologists. We expect to have, when we're finished, a board of about 15 members, who will be people from the community, local business people, doctors and that, who will actually be sitting on a separate board.
The whole concept of our program is to allow it to be extended to various communities so that each community could have its own centre independent of other communities, so that the groups could work based on the input from people within that community. So the idea is for each community to have its own group of individuals who could basically take the concepts and the procedures we're working on and apply it in their very own community.
Senator Duncan Jessiman: How is it funded?
Mr. Vernon Beck: Right now, like everyone else, we're funding on a volunteer basis in that the money is received from donations. This is the power the community can have if it can get a little bit of government help in this area. There are people who are getting fed up enough that they are coming forth. We have lawyers contributing time because they realize that families are literally being devastated in this country right now.
So people sincerely want something done. They're coming forth and doing something at no cost, without charging.
Senator Duncan Jessiman: Have you made any approaches to the federal or provincial governments?
Mr. Vernon Beck: We have made contact with some of the courts. In fact, I believe at least two people from some of the courts have joined our advisory group. I don't know their names right now. I believe one of them is a family court coordinator and the other is a court mediator from one of the other courts in the GTA. We have been in contact with some retired judges. We have been in contact with some bar associations. We are getting interest that even we could not imagine.
The real problem, we find, is that there seems to be a few political barriers. We've been working on a process of building community support right now. We have church groups, and we actually have about four or five denominations now that are going to have representatives from their churches—
Senator Duncan Jessiman: When did this start?
Mr. Vernon Beck: The concept evolved probably eight or nine months ago, and it's been snowballing since then. We're actually to a point where it's getting difficult, because there is no funding available to us, to do the management and work necessary to control such a thing.
To give you a bit of background in terms of one of the barriers we seem to run into in Ontario here, I spoke to the attorney general's office, to someone who is fairly high up and close to the attorney general. I was flatly told that they weren't interested in listening because they could make things within their own organization.
I find this appalling. Here we have a community group that has pulled together its own resources, not using one cent of government money, and people in these government departments seem to want to protect their jobs and to ensure that their own line of thinking keeps on going.
Senator Duncan Jessiman: What about your local MPs?
The Joint Chair (Senator Landon Pearson): Senator Jessiman, you've used up your five minutes.
Senator Duncan Jessiman: One more question.
What about your local MPs, or the federal government? There seem to be a lot of good ideas here.
Mr. Vernon Beck: It's like everything else; there seem to be political ramifications. We have had several MPs indicate that, yes, there is very serious interest there. Again, they've cautioned that certain steps have to be taken before you really let everyone know what's going on and let the cat out of the bag, because there will be people who are going to oppose any form of community involvement. Anything that's going to affect the jobs of people in the legal profession will meet with some resistance.
Senator Duncan Jessiman: Last question. Do you have anything further in writing that you're going to give this committee?
Mr. Vernon Beck: I understand the committee has until the end of June to accept formal submissions. I hope by then we'll have a fairly formal draft document. The document I brought here is a very draft document. It even has some handwritten notes in it.
Senator Duncan Jessiman: When it's in its final form, I think we'd be interested in seeing it.
The Joint Chair (Senator Landon Pearson): Senator DeWare, you're next.
Senator Mabel M. DeWare (Moncton, PC): I have two questions. First, why is access allowed when abuse has been recognized in a divorce procedure? Some of you almost answered that.
Second, why don't we suggest mandatory treatment centres for abuse? Companies can send people, if they're alcoholics, to Alcoholics Anonymous. They can even tell them that if they don't go, their job's at stake. The same goes with drug treatment. Is that available in terms of abuse centres?
Mr. Keith Marlowe: That is becoming more available. As I said, this week 140 men will be in our programs. In some cases, they're paying for half the cost of that program. So it is becoming more and more available. It's a pilot project right now in Ontario, but with the success of these groups, I think it will become more mandatory.
Ms. Rita Benson: I would like to add to that, though, that there's a danger in assuming we can do a 20-week treatment program and change abusive behaviour. In our experience, we can get some behaviour change, but abusive behaviour—and this goes back to your question about if a man isn't abusive to children—is about more than physically assaulting someone.
Senator Mabel DeWare: Yes.
Ms. Rita Benson: There's a real underpinning of power and control, in many ways. So for a man to truly address those issues, one of my concerns is that we put in place these little band-aid treatment programs that do have some effect, but we need longer. Men need to work in therapy for several years, seriously, at their own issues. A lot of these men may have been abused as kids, too. There's a whole cycle of violence going on here—
Senator Mabel DeWare: Yes, I understand that.
Ms. Rita Benson: —so treatment programs need to be in depth, as well.
Senator Mabel DeWare: I wasn't suggesting one week.
Ms. Rita Benson: I know you weren't. People tend to think...so I wanted to make that point, that we may need to be looking at longer treatment programs, actually, as well as short ones. I'm in agreement with you.
The Joint Chair (Senator Landon Pearson): Thank you.
I'd like to move on. Dr. Bennett, quickly, and then Senator Cools.
Ms. Carolyn Bennett (St. Paul's, Lib.): I'd like to learn a little more about the men's group piece, as well. I understand there's some research that shows that some of the groups don't work very well, and I understand there's some serious debate about whether actually just dealing with the little slice of anger management and behaviour....
Even in your presentation, your language was “his own choice to use abusive behaviour”. I think in some situations it's not a choice; it's a reflex, and it is because of their victimization as children. There are long-term issues that need to be dealt with. I would like to know if there is research on what works and what doesn't work.
I'm very upset that there be a labelling that happens to anyone. I think parenting is the hardest job I've ever done. I think you only get a report card if you happen to break up. To actually have to pretend you're perfect at it when I'm sure there are situations where, after too much to drink one night, somebody throws a glass of juice or actually makes contact, then that labels somebody, because that's the event that is brought back time and time again.
I'm worried about the assessment. We keep hearing that there are all different levels of assessment, and certainly from my job as a family doctor.... In insurance law you see all kinds of assessments. Before we made anything mandatory, before we made anything, I would like to know what the research is, how much confidence you have in the programs that are out there, how much confidence you have in the kinds of assessments that are there.
If I had two seconds to ask Dr. Matthews, as well, the issue of parent alienation syndrome seems to be serious, because once somebody is labelled, I think there's not a lot of support for the kids to actually want to see this person. Yet what is the research 20 years down the road or when that kid now feels maybe differently about having not seen that other parent? Is that sort of a stupid question?
Dr. Fred Matthews: I have a quick response to the latter question, and then I'll hand it over to you for the former.
As far as parent alienation is concerned and research, I think one of the things we really need to put on the table and be honest about is that it's an imperfect science. The social sciences are imperfect sciences. The clinical research even has its imperfections and it's not flawless.
We're so early in our understanding, too. I think we have to try to make, and in all cases we're going to have to have, a higher order of value around it—if we're going to make errors, what we make it in favour of at this point. For a social scientist, that's a horrendous thing to say.
In anything that keeps safe the people who are being brutalized or victimized, whether they be the spouses or the children, I'm going to err on the side of people's lives and people's well-being until we get that research in 20 years. But in many cases, we either don't have it or it's so early that we don't have anything very conclusive. So I'm prepared to make those sacrifices on that higher order of value.
Ms. Sylvia Pivko: If I can just do the introduction here, we're all looking at the end of relationships. Our society doesn't accord enough support into the beginning of these relationships, and you can't—none of us can—expect you or us to find these solutions here at the end of this process. So if there is a way for you, in your deliberations and recommendations, to look at what needs to be in place in communities to support parents at the beginning of their relationships...and there already is a move, certainly in Ontario, to put more funding into prenatal and postnatal support, etc.
This issue is not in isolation from all the other ones we live under and so—you look like you know that—we all need to be cognizant. We're not going to find the solutions to any of your questions at this point. Thank you.
The Joint Chair (Senator Landon Pearson): Can I move on, Carolyn, because we're very short on time.
Ms. Carolyn Bennett: Perhaps we could have the research around fathers' groups on the table or submitted or something.
Mr. Keith Marlowe: Very quickly, all I would say is that the most important thing I've learned about doing men's groups in 15 years is that the men's groups can only be one part of the solution and it has to be a community approach. You've heard that echoed through most of the panels, from Mr. Beck to this end, that the good projects are community projects, and they make the different services cooperate with one another to meet the needs of families.
The Joint Chair (Senator Landon Pearson): Senator Cools.
Senator Anne Cools: I will give it to Paul.
Mr. Paul Forseth: I would just like you to go down the line very quickly. We're at the end here. Can you give me some one-liners about what you would like to see put into the Divorce Act and also the one-liners about what you don't want to see go into the Divorce Act.
Mr. Vernon Beck: One of our first recommendations is that the rebuttable presumption of joint custody and equal access is at least a start, but unless there is true equality put in everything in the Divorce Act and it's maintained, there will be always be the source of conflict. That's the bottom line.
Mr. Paul Forseth: Okay.
Dr. Fred Matthews: I think for me it's a question of principle, since I am not a lawyer. One of the things is that we have to bring the laws pertaining to parenting in separation or divorce proceedings to reflect more power of people who are not currently present, such as children and young people, in making the decisions over their own lives. Except under extraordinary circumstances such as spousal violence or when kids are being abused or harmed by a parent, I think we should work on the presumption of a parenting plan that brings other family members and both parents into the mix. As much as possible, keep it developmental so these plans meet real-life families, real children, real relationships, and remove as much as possible any element of abuse of process that continues to abuse the children and/or spouses involved.
Dr. Marlies Sudermann: I've already stated that I would not like to see mediation, and particularly mandatory mediation, in. Also, joint custody or the presumption thereof should not be emphasized. I would also like to see an increased focus in the legislation on determining the needs and, depending on the ages, the wishes of the children. I think that should be emphasized more strongly in the legislation. Again, I'm not a lawyer to know how to draft that—
Mr. Paul Forseth: I understand.
Dr. Marlies Sudermann: —but I'll leave it at that.
Ms. Sylvia Pivko: I would like to see a shift away from the concept of parental rights and ownership of children and an integration in terms of principles around children's needs and rights. I do think you have to look at this not in a unilateral fashion but in a broad spectrum. You're not going to find one solution for all and there has to be some ability for flexibility within it.
Ms. Rita Benson: I'm going to sound repetitious. I'd like to see custody not awarded to people who have been convicted of domestic violence, and I'd like to see supervised access used as an option when a man has been convicted, with a back-up of treatment programs and other options. I might like to see the possibility of parenting groups for abusive men who at this point don't have access to their children. I'd like to see strong assessments with formalized standards and trained assessors, and I'd still stay with no mediation and no joint custody in woman abuse cases.
Mr. Keith Marlowe: I'd like us to look at creating a healthy family act, with supports in all developmental stages for parents, to assist them to become the best they can be. Our children deserve no less.
The Joint Chair (Senator Landon Pearson): Thank you very much.
On that note, this has been an extremely useful panel. We've gone over time, but thank you for participating, and I would ask that we do the exchange for the next group as quickly as possible.
The Joint Chair (Mr. Roger Gallaway): We want to welcome to hour two of Wednesday morning: from the Non-Custodial Parents of Durham, Mr. Stephen Hyde; from the Children's Voice, Bill Flores; and not in the room, as I understand, but very close by—he's trying to find a parking spot—is Reverend Dorian Baxter, from Canadians for Organizational and Personal Accountability. We know Reverend Baxter will be joining the table very shortly.
Perhaps, Mr. Hyde, you can begin. I'm going to have to tell you that we're running late already, and it's going to have to be five minutes.
Mr. Ted Greenfield (Non-Custodial Parents of Durham): Good morning, Mr. Chairman. Stephen Hyde is out of the country on personal business.
My name is Ted Greenfield, and I'm the communications chairperson for Non-Custodial Parents of Durham. I'd like to lead off this morning by saying that I've heard some numbers bandied about that are unsubstantiated. A number of people seem to think 80% of divorces are good divorces. Has anyone on the committee heard that number bandied about? Well, let's take a look at the 20%; for rounding purposes, let's say 25% aren't good divorces.
There are approximately 400,000 divorces that have already occurred in Canada. That means that 100,000 non-custodial parents are unhappy. With an average of two children per family, that's 200,000 children who are suffering because of tensions and disputes in the break-up of a marriage. That's a tremendous number. Even at the low end of 20% or 25%, we're talking about a tremendous number of children.
We've come here today with sixteen recommendations. I'll focus on the highlights. There are four that we feel are the key, although all sixteen are key. First, our recommendation is shared parenting, in which both parents are ordered by the courts to be equally responsible for the physical, financial, and emotional support of the children.
The current process allows 95% of one gender to be prejudged or prejudiced when they enter that courtroom. It may be down to 94% now, but we're talking prejudice in the court system. We want to eliminate that when we go to the courts, so that for situations involving children of separation and divorce, there is a shared parenting rule that comes into effect. Both parents are equally responsible. It won't just be one of the spouses being ordered to make support payments and then enjoying the opportunity of being denied access or custody. I have joint custody, but for a ten-month stretch I did not see my children. Joint custody is a facade. It does not work. You have to start at the beginning and go with shared parenting so that there aren't all those subtle games that get played as we go along.
Those parents waiving their rights to custody and access or being deemed unfit by the courts must still fulfil their equal financial obligations. Again, if a parent is deemed unfit, he or she doesn't become 100% provider.
Next is grandparent inclusion. Three months after Non-Custodial Parents of Durham got going, we ended up aligning ourselves with a grandparents' group. Their rights are equally important for the children. We encourage counselling, with all three parties of separation and divorce required to attend counselling sessions. We'll leave it to the professionals to determine the minimum number, but the cost of these sessions will be shared by the parents.
I'll step back a little bit and tell you about a week after I had attended my first meeting of Non-Custodial Parents of Durham. We came down to a meeting in the Toronto area and there were three gentlemen in that vehicle: myself—Ted Greenfield—Tim Eye and Stephen Hyde. We started chatting about our experiences in the court system. The three of us, with the same quality lawyer, had spent about $100,000 on legal fees alone in a very brief period. We've calculated the financial loss—which is going to leave our children with nothing—to be around $500,000 for the three of us. I have no money to give my daughter to go to university—and I'll be getting to another little issue of child support.
The tremendous adversarial approach in the current system just feeds on itself. Somebody wants an issue? Well, we're going to court. It costs the courts, whether we're paying the money or it's legal aid. It's just money wasted in family law courts, money that cannot feed, clothe or educate our children.
We get to the issue of violation of access orders. I've heard of a number of people wanting to have the other spouse sent to jail. We've had a couple of minor issues in which that has occurred. I'm not so punitive as to want to put a parent in jail. I would support that they lose their right to access. If someone is denying access to the other parent or violating the process, then they will lose it.
There's the issue of second wives. For ladies, I know we've heard a number of dissertations already that were championing women's rights and specific violence, domestic violence, only against one gender.
I've remarried. I have a second wife. She was violated in the family law court. I could hold up a pre-marital agreement drawn up by a lawyer that says her affairs would never have anything to do with mine. The family law judge said this legal document doesn't have a piece of paper.... As part of one of my judgments, he ordered that one-third of my my second wife's salary be included to increase my support payments, because I had made a bad decision during the first year of my separation. I changed jobs, so instead of making $80,000 a year, I dropped to $40,000. In effect, my second wife is supporting my first wife through the guise of child support payments.
The Joint Chair (Mr. Roger Gallaway): Briefly, please. Your time is up. I'll allow one more minute, but we're going to have to end it.
Mr. Ted Greenfield: Thank you. I'd like to go for the conclusions.
Reducing tensions in disputes will benefit everyone. If you look at the reduction in costs, the money wasted in the courts or the drain on the legal aid system, those costs will be reduced if you start out with a positive situation.
My daughter is attending Trent University. She's out of town, not domiciled with the wife, as the original agreement said. She had to apply for a 100% OSAP loan, the government-assisted loan in Ontario. She approached her mother and asked her why she couldn't have her child support payments while she was at university and out of town. I'm advised, and led to believe, that her mother said that if she wanted any of the money, she could get out of the house immediately. She has enough pressures in going off to university. We need to have a mechanism to allow our children the right to their child support payments when they're attending university or college.
The Joint Chair (Mr. Roger Gallaway): I'm sorry, but I'll have to interject, Mr. Greenfield. I know your brief has been handed in, so people will have read it.
Mr. Ted Greenfield: Thank you.
The Joint Chair (Mr. Roger Gallaway): Mr. Flores.
Mr. G. Bill Flores (Children's Voice): Good morning, ladies and gentlemen. Bonjour, mesdames et messieurs.
My name is Bill Flores. I'm president of Children's Voice, an organization that has been advocating for children's rights for the last five years. We have participated in the United Nations review of Canada's implementation of the Convention on the Rights of the Child. We have entered written and verbal submissions on all the provincial and federal matters involving children's rights. Today, we have brought a thirty-page brief. I'd like to emphasize that I would like to make every single word written in this document a part of my record. I have given an extra copy to Senator Anne Cools for safe keeping.
This document has a review of different areas of conflict in the process of separation and divorce, and it has over 24 references to sociological studies favouring equal parenting over sole parenting. It also documents scientific research pointing to the higher risks of child abuse in the sole-parenting model, especially while children are under the care of their mothers. We make 32 recommendations and offer some ideas to implement them.
As thankful as we are for the chance to be here, we would like to mention that we consider this process to be completely undemocratic. It is so because professional lobbyists from the status of women ministry have spent millions of dollars, time, and human resources in the form of legal advisers and researchers to organize a concerted response by women's groups.
We are here today as we were back in 1993, when similar consultations took place involving three MPs who went around the country consulting the public. At that time, they developed a 25-page questionnaire, of which 24 pages were dedicated to issues of child support. Only one page had two questions dedicated to access and custody. That could be taken as an example of government bias.
The stories I've been hearing here are not much different from the ones we heard back in 1993. For instance, the case that was brought by D.A.D.S. Canada last Monday, Edgar Ross v. Ella Ross, file ND 1846 29-91Q of the Ontario general division. It's a case that contains many examples of corruption by the petitioner, by officials—different faces, same stories.
I hear again and again from lawyers and from the public about bias. It's not surprising that we hear this word. It seems that there's difficulty with this word, and it's no surprise when we have a government that supports preferred-gender policies, illegally, contrary to section 28 of the Charter of Rights and Freedoms. What is so surprising about the moral corruption in institutions like the family court and the Children's Aid Society and in social workers and psychologists when this bias comes from the top?
Let me tell you what is new since then. Under oath I attest to the following.
Since 1993, I have seen tens if not hundreds of non-custodial parents, mostly fathers, disappear from the lives of their children. Some have gone underground in the community and some others have gone abroad.
I agree with Professor Bala, who testified in front of this committee on February 25. One of the problems is the absence of fathers. They are gone. You chased them away.
I have seen many of these fathers trying to keep a relationship going with their children. They had to give up after months of frustration. They were good, loving fathers. All they wanted was to be part of the lives of the children. However, some sick minds who are advocating the destruction of the family unit and who wish to impose their sick gender supremacy ideology are guilty of these crimes. Being sorry is not enough.
Being sorry would not have been enough back in 1993 either, because this is a story without forgiveness. As a government you had a chance to mend it, but you as a government chose not to. The childhood of my children, like the childhoods of many other children, is taken away and is being wasted, but so is Canada's reputation as a country caring for them.
The outlined approach of our submission calls for a global solution to all problems involving family law, not only the problems of custody and access. Individualized solutions have been shown not to work.
The underlying principle behind our approach is that divorcing families need help at this crucial moment; they don't need to be robbed of everything that they worked in their lives or put under stress or harassed, as it is the case in the present system.
Among some of our recommendations we are calling for specific and easily viable changes to the Divorce Act, changes that will help ease the pain that children are going through, changes like parenting time compensation, child-parent reunification programs, and so on. We are also recommending that you enter into direct consultation and negotiations with recognized children's and fathers' rights advocates. We are willing to facilitate communication.
We are making these recommendations because you are not getting the whole picture of this situation. You are hearing a lot of repetition and missing many details.
For instance, this coming Easter, a very special holiday for many of us, not all children in Ontario—and possibly all across the country—will be able to spend time with their non-custodial parent, and that is because all access centres that operate with the help of volunteers will be closed, as they'll be close for all the statutory days of rest and holidays throughout the year, including Christmas.
The Joint Chair (Mr. Roger Gallaway): Mr. Flores, your time is up. I know we have your report, or we will, but I think we're going to have to call it here. You're a little over your time limit.
Mr. Bill Flores: I would like to ask you to convey this message to the people in the government: stop playing politics with the souls and the welfare of our children.
The Joint Chair (Mr. Roger Gallaway): Thank you.
Now we have Reverend Baxter with us, who was out looking for a parking spot earlier, I understand.
Reverend Dorian Baxter (National Association for Public and Private Accountability): Yes. I must apologize to the honourable members of the committee. I had a lot of trouble getting down here because of the traffic, and then the parking...so thank you for being so patient.
The Joint Chair (Mr. Roger Gallaway): Welcome to the committee. We're running a little late and we will ask you to limit your remarks to five minutes, if you can.
Rev. Dorian Baxter: I'll do my best.
The Joint Chair (Mr. Roger Gallaway): Thank you.
Rev. Dorian Baxter: Honourable members of the Special Joint Committee on Child Custody and Access, I wish to first of all express my gratitude on behalf of the National Association for Public and Private Accountability for the privilege of appearing before you here this morning.
Let me be swift to point out that although I'm here as an educator currently in the Ontario school system, as an ordained priest with the Anglican Church of Canada, and as chairman of the National Association for Public and Private Accountability, my primary purpose is to speak out today on behalf of those who are not able to speak for themselves. I refer to the children of our great land.
I want you to know at the outset that I, along with literally—and this is not an exaggeration—hundreds of thousands of Canadians, am no longer willing to sit idly by and watch the emotional and mental torment inflicted upon the innocent children of our great land by the present child custody and access laws. Enough is enough.
While I am personally grateful that this Special Joint Committee on Child Custody and Access has been formed, to my mind it is absolutely essential beyond anything I could express here today that this committee somehow be empowered to effect the changes that are so desperately needed, or it will be an exercise in futility meeting here today.
Let me also be swift to point out that my comments and concerns regarding custody and child access arise out of devastating personal bitter experience. I'm sure my successful custody battle is well known across the country, and I shall not go into details. But my successful lawsuit against Marion vanden Boomen and the Durham Children's Aid Society has indeed set a precedent and made legal history.
The price, ladies and gentlemen, beyond any manner of human comprehension is too much for any Canadian to have to pay—any man, woman or child in this great land of ours. I would say to you that Judge Somers and subsequently the Ontario Court of Appeal found Marion vanden Boomen of the Durham Children's Aid Society to be guilty of the grossest negligence, the grossest incompetence and malicious prosecution, including blackmail of myself. Yet this woman wasn't even given a reprimand and continues to work for the Ontario Children's Aid Society with complete impunity and not even a consequence.
We need accountability, hence the uprising of the National Association for Public and Private Accountability under my leadership. There must be clear consequences that will clearly put an end to this destructive and costly behaviour. I would share with you that my devastating circumstances cost me nearly $400,000. I presently stagger under a debt load well in excess of $250,000, which our legal system allowed to happen because I had to declare bankruptcy. I am paying those debts back if it takes me the rest of my life, but the price emotionally to my daughters, myself, my friends, and family is unbelievable.
This is all due to the fact that the present adversarial system in child custody and access disputes lends itself perfectly to what I view to be the weapon of choice in such matters: false allegations of sexual or other types of abuse. I am led to believe that the actions of Marion vanden Boomen and the Durham Children's Aid proceeding against me, purely it turns out to cover their mistakes, has actually cost the Ontario government and hence the taxpayers an unbelievable $1.5 million to $2 million.
My first recommendation to this honourable committee is to cease paying lip service to mediation in resolving marital and child custody disputes. The present adversarial approach is archaic, inflammatory, and utterly counter-productive. It lends itself to one of the greatest crimes of all in our courts today and one of the most rampant, which is perjury. Far from being in the best interests of the child and the family, it is designed to be destructive in its win-lose approach.
We must see an end to this insanity. I strongly urge and beseech the committee to establish mandatory mediation in child custody access disputes, following such fair and equitable guidelines as those put out by Mr. Vernon Beck. These guidelines clearly put forth the best interests of the child within the family.
Third, we need to establish across this land, which NAPPA is in the process of doing, a civilian child protection welfare review board. These boards can occupy every major city and town across Canada and can be called upon to provide valuable checks and balances in scrutinizing the actions, or inactions, of those responsible for providing public social services. This can save the government millions of dollars.
The fourth recommendation would be to implement what I have called the “GNPSA”, or the gender-neutral problem-solving approach, to each and every child custody and access dispute that raises its ugly head across our fair land.
The fifth recommendation is for a return to the democratic process. No more French law with regard to these heinous allegations. Why in every other allegation is it innocent until proven guilty, but with child sexual abuse or any form of abuse it's automatic guilt? I have struggled; I still have people who won't talk to me today.
Some bishops—many of them have now straightened around their act—even came to court against me. Bishop Taylor Pryce, on behalf of the Children's Aid Society.... What an insult to a priest in the Church of God. I have struggled with vigilante groups who have wanted to castrate me, to kill me, because they thought I was guilty: no smoke without fire. This has to stop, ladies and gentlemen.
Six, let's license these social workers who have so much power.
Seven, perjury must have consequences that are clearly carried out.
Finally, at all times—please—and in all circumstances we must remember the watchwords in every child and custody access dispute: children first.
Thank you very much.
Voices: Hear, hear.
The Joint Chair (Mr. Roger Gallaway): Thank you very much.
No applause, please.
As you probably are aware—some of you may have observed these proceedings—we will now proceed to questions from members.
We will begin with Mr. Mancini.
Mr. Peter Mancini: Thank you.
I have a couple of questions coming out of this, Reverend. You ended by saying we have to put children first.
I'm going to address my question to Mr. Flores, who said we have to stop playing politics with the souls of children. Let me ask you this...and this is the difficult question.
You referred to the Easter holiday coming up. You talked about the need for the child to see both parents. When the parents themselves cannot cooperate—for example, the father wants the child with him for Easter morning but the mother wants the child with her—the very struggle makes that holiday a disaster for the child.
Even if we say, “You're going to be with Dad from 9 a.m. to noon and then with Mom from noon until 5 p.m., at which time you're going back to Dad”, in terms of the very inability of those parents to resolve the situation in favour of their child, don't we at some point say that the rights of the mother or the father have to be subordinated to the right of the child to enjoy that time? Because of their inability to resolve the situation or to put it together, do we not have to say that access is going to be denied on that holiday to one parent? Do we not at that point have to say to them, “Sorry, there's a failure here, as the two parents, to come together and put the rights of the child first, so the state has to do it”?
That's what we've heard, that our job is to look after these children and put them first. Doesn't that mean that sometimes we have to subordinate the parents' rights to those of the child?
Mr. Bill Flores: My answer to this is how much of this animosity we share over and over again would disappear if we did not have to contend with this adversarial system of justice.
Now, there will be extreme cases where some parents will want to “butt it out” no matter what. For that, yes, we believe there has to be a law, and for that, we are suggesting changes to the Divorce Act. Even though we have a case for a presumption of no courts, we have not completely discarded the judicial system.
Mr. Peter Mancini: If I can pursue that, we have heard from a tremendous amount of people who have said that we have to do away with this adversarial system. I agree with mediation and the fact that there has to be a more sensible alternative. But part of the problem is that it's the parents themselves who create the adversary in some situations, isn't it? If they can't come together, that's when the state gets hauled in. I guess I go back to my question: in that situation, where the parents themselves create the adversary, do we not have to subordinate the rights of one of those parents for the child's benefit?
Mr. Bill Flores: Yes, that would be the ultimate situation. However, this help only comes at the end, when one arrives at a trial. It's not available right at the beginning. If all sorts of services were available for them to cope with whatever difficulties they have, then we wouldn't be arriving at such extreme situations.
Mr. Peter Mancini: Okay, thank you. That's my question.
The Joint Chair (Mr. Roger Gallaway): Who would like to go next? Dr. Bennett.
Ms. Carolyn Bennett: To come back to the issues around false allegations and innocent until proven guilty, I guess I would like some direction as to how you would organize a system. Whose onus is it to prove the guilt or innocence? It seems to me that these things are raised in a totally inflammatory climate.
I agree. If we got rid of the adversarial thing, I think we might see a lot less of this. There would be the win-win situation, and none of this would be necessary. I just wonder about the definition of “abusive”. What has been your experience? Obviously, your experience with the justice system has been expensive and unnecessary. Even though you were vindicated at the end, the toll has been.... I guess my question is how that could have been prevented.
Rev. Dorian Baxter: Well, it's a very good question, and I thank you very much. Is it Mrs. Bennett or Dr. Bennett, or both?
Ms. Carolyn Bennett: Carolyn.
Rev. Dorian Baxter: Okay. Actually, we could even go further and say Bishop Bennett. That sounds really good, doesn't it?
Well, I sure thank you for your question. In a nutshell, to relate it to my case, as you have so kindly suggested, it turns out that my case could have been prevented immediately had there been even an iota of integrity within the Children's Aid Society of Durham. They basically picked up on these allegations, and Marion vanden Boomen, who refused to even meet with me to hear my side of the story, went rushing in and got a court order the day before I was even notified. That was a violate of the Charter of Rights, but the die was basically cast. I suddenly got a phone call from her basically saying she had this protection order against me, and unless I confessed to the crimes I had committed against my children, I wouldn't be able to see them again for the rest of my life except for one hour. Well, I couldn't believe what had happened.
In a nutshell, I discovered that they had gone to court. When the judge asked them where this Reverend Baxter was, the answer given by Marion vanden Boomen and her counsel for Durham at the time, Joanne Ferguson, was that they didn't know where I was. That was a lie. Perjury had occurred right there. If the judge had known that I cared enough to be there, there would have been an entirely different die cast, but the long and short of it is that I then had to battle this situation.
Now during it, matters got worse. When they had refused to even hear my side of the story after eleven months, the truth was romping home. They finally called me in. I'll never forget the day—May 24, 1986. They said, Reverend Baxter, we made a big mistake, what will it take for you to back off. I said, good heavens, for me to back off? These people had absolutely been the aggressors all along.
I'm not proud of this, but I'm grateful I did it in the end: I did take a high-powered James Bond Spy-13 tape recorder with me. Thank goodness I did, because they denied everything. In that discussion, Carolyn, they said to me that they wanted to know how to protect the good name of the Durham Children's Aid Society. I said, what about my name?
In a nutshell, I gave them three things: return my children, pay my $75,000 legal fees, and write a letter to the bishop. They said they would give me the letter, the kids would stay with my ex-wife, and I would pay my own legal fees. That was the whole issue from there. They continued to tell me if I didn't do what they said, they would proceed as if I were guilty. That was the blackmail.
To answer your question, however, that could have been prevented simply by a little bit of fair play. If they had called me and Marion vanden Boomen had said, “Reverend Baxter, we've had these terrible allegations by your ex-wife”...and of course they didn't take into consideration she'd run off with a notorious child molester who'd been in and out of the penitentiary for 17 years. When I tried to tell them that they said I was just a jealous husband.
But the long and short of it is, if they'd said “We are going to ask that you suspend your access time with the children for a weekend or two, until we've had a chance to investigate”, that would have saved the taxpayers of Ontario $1.5 million to $2 million and would have saved my precious daughters such suffering. That's why, as I said earlier, if we can establish these civilian protection welfare review boards, someone could check and look into this.
Ms. Carolyn Bennett: But eventually the truth came out and justice was served. Was that because of assessments and professional witnesses? How could that have been telescoped down so it took a much shorter amount of time? Ultimately the best interests of the children were served, so if it hadn't taken that long and only took this long and you had a very expert group of people who could have assessed this within x amount of time, do you think that would have helped?
Rev. Dorian Baxter: I think so. If I had known then what I know now, I think a motion could have been brought to quash their particular protection application immediately, because it was illegal. I had not been served the papers. It was a violation of the charter. I didn't know that at the time. I'm not saying my lawyer knew that, but the fact of the matter is, who benefits from all of this action? The lawyers tend to benefit.
In a nutshell, there should be a procedure in place the moment false allegations are activated against somebody. There needs to be a professional committee.
Ms. Carolyn Bennett: Wait a second. Allegations are allegations, so—
Rev. Dorian Baxter: Yes. I'm just saying the moment they're acted upon—
Ms. Carolyn Bennett: So the minute there are any allegations—
Rev. Dorian Baxter: Let's say allegations then, and in my case, of course, they were false. But let's say allegations are levelled from a father to a wife or a wife to a father or a husband to a wife and so on. I think there needs to be some way of checking and balancing what the present social services have to offer. I see that as being a civilian child protection or welfare review board made up of well-to-do people, professional people, who are well respected and are prepared to give of their time to determine whether this has any merit.
Obviously, if somebody is guilty of molesting a child, in my view they need to be not only apprehended but punished according to the laws of this land. This is a terrible crime. But it is an equally heinous crime to accuse somebody frivolously, as was done in my case and many others, leave them to bear the scars for the rest of their lives, and there be absolutely no consequences to the people who make the allegations. We need these checks and balances. I propose such an organization, and in fact NAPPA is looking into this.
Every town and city that has a children's aid society or social services where this can happen should have a safety net or safety valve in a civilian child protection welfare review board that would take a look at this and determine whether it has merit. If it did then it would look at it very seriously.
I can't think of one father or mother who really loves their children who would not be prepared to suspend access for three weeks or a month until this was checked into.
Ms. Carolyn Bennett: You've mentioned perjury, and I would imagine most of these cases have perjury. Once perjury has been proven—I guess I just don't know enough—is that always pursued by the courts?
Rev. Dorian Baxter: No. Never.
Senator Anne Cools: That is the problem. Most of these cases don't.
Ms. Carolyn Bennett: There's a small amount of case law around this, but perjury just sort of hangs out there.
Rev. Dorian Baxter: The worst that can happen, Carolyn, in perjury right now with the rather toothless circumstances in our legal system is you can possibly get charged with public mischief. After what happened to me, I'll be candid with you, I'm glad to be alive. It would have been a lot kinder to have put a bullet through my head. I contemplated suicide. The only thing that kept me alive was the need my daughters had for me.
I have had over 1,000 phone calls since 1994 from beleaguered men and woman. Now, they were mostly men, but don't think men haven't resorted to this evil as well. It has become the weapon of choice. I've talked to women who have been framed and are ready to end their lives. How many men and women have already died? People say, oh well, they must have been guilty.
I bet you that in my case, if I had jumped off the cliff I was contemplating jumping off and slashing my wrists over on the north shore of Lake Superior, let me tell you, they would have said I was so guilty. Here I was. I was driven here. If it hadn't been for my faith in the Lord Jesus Christ—I don't mean to start an evangelical rally here—the fact of the matter is that I would not be alive today.
The Joint Chair (Mr. Roger Gallaway): Mr. Greenfield, please.
Mr. Ted Greenfield: I'd like to comment on the false allegations. We're looking for a solution, because allegations are allegations until they are proven false or valid. I encountered a similar situation whereby there were false allegations of my being mean-spirited and not seeing my children over the Christmas period. Well, I saw them four times, and I had photographs. My counsel deemed that unimportant.
Some of the people are alluding to collusion in the courts and the divorce industry feeding on itself, but let's get to a situation whereby if you make false allegations, there has to be full accountability not only for the person making them, but if they have legal counsel coaching them to make false allegations, they will lose their licence.
We've been devastated. When I got this first documentation, I cried. Men aren't supposed to cry, but I saw my children four times in an eight-day span. Part of the mean-spirited documentation I received on a sworn affidavit was devastating.
So for those people making those false allegations, there should be full accountability and they should be vigorously pursued in the courts. If you're in the legal profession, you lose your licence to practice. If you're the parent making those false allegations, you lose your access. It's game over. Make it serious.
They do it with impunity. The Children's Aid Society can do anything without any accountability. It's time to make people accountable and put our children first.
The Joint Chair (Mr. Roger Gallaway): I just have a point of information.
Reverend Baxter, I have no idea how many legal proceedings there were in your case, but was the final judgment reported in, for example, Ontario Reports, or—
Rev. Dorian Baxter: Yes, in fact, there were three levels of justice that dealt with my case. One was the clearing of my name and the custody battle, which took 51 days spread over a year and a half. The second was my immediate action to sue them, which took nine and a half years because Marion vanden Boomen would not come to the different discoveries.
Finally, I won in the first action, which was in the equivalent of the old Supreme Court of Ontario. Justice Somers found them guilty of grossest negligence, grossest incompetence, malicious prosecution, and blackmail. Now at that point, one would have hoped that justice would have taken its course. But I found out later that it was up to me to chase them down on those issues.
What really upset me was that he awarded me $250,000; it had cost me more than $387,000. I thought, good heavens, this is wrong.
Then I discovered that the insurance company for Children's Aid Society at Durham pushed for an appeal. Now, can you imagine this? In this free country, I still am not allowed to identify who the insurance company was. I want their names, because they then forced a two and a half year delay, which caused me to almost go into another bankrupt state.
My children, by the grace of God, are doing fine, but only by the grace of God.
In 1996, three judges unanimously, in the Ontario Court of Appeal, supported all of Justice Somers' findings. However, because of legal semantics, they reduced my settlement to a measly $75,000. Here I struggle today to make ends meet just because of that. But those are reported in—
The Joint Chair (Mr. Roger Gallaway): Those are reported, so we can have the staff.... If you have the legal citation, perhaps you could leave it.
Rev. Dorian Baxter: Yes.
The Joint Chair (Mr. Roger Gallaway): Second, just as a point of clarification, Dr. Bennett referred to this time period. Was it this big, or could it have been this big? How long did all of this take, if there is an end to it?
Rev. Dorian Baxter: I came home on May 1, 1985 to find my home ransacked and my children gone. By the time I tracked down my ex-wife with her paramour, it was about two or three weeks,
Then, of course, three months later, she had a bright idea. A court order had been issued to give me access to my children every second weekend. So because of the court order giving—
The Joint Chair (Mr. Roger Gallaway): Excuse me, what I'm really asking you is: did this begin in 1985, and in what year did it end?
Rev. Dorian Baxter: It began on May 1, 1985. The custody battle and the battle to clear my name ended January 13, 1987. My children have come home to be with me since then.
The Joint Chair (Mr. Roger Gallaway): But I'm talking about all the subsequent—
Rev. Dorian Baxter: All the other stuff lasted right until 1996. So we're looking at just over 11 years of legal battle.
The Joint Chair (Mr. Roger Gallaway): Okay.
Mr. Mancini, a final question.
Mr. Peter Mancini: I have a supplementary question in regard to some of the comments. I have to ask this because it's come up time and time again about lawyers. I am one and I'm trying to put that aside and be objective here, but at the end of the day, because we've talked about perjury, surely—and I need to be clear on this—when a person comes in and tells a lawyer the story, the lawyer questions his or her client extensively and explains to them the implications of swearing a document. He says, “You're signing this document, swearing it's true”, and they sign the document.
At this point, let's suppose it's determined it is not true. There are allegations in it that are false. The person signing has committed perjury. Of course one of the easy ways out is to say “I signed it, but my lawyer told me to”.
I have two questions. First, at what point do we ask what happened in the lawyer's office? Are we then going to get into a contest because the lawyer will say, “I didn't tell them to; I presented it to them”? Are we going to put cameras in the lawyer's office to then determine what advice is given?
Let's suppose the lawyer does say the best way for you to get custody is to swear your husband or wife did this or this or this. Surely the person who swears the document, who signs their name to it.... I think of the play The Crucible. At the end of the day all I have is my name. Surely the person who swears it is ultimately responsible, not the lawyer, even if the lawyer coaches them to swear it. Isn't that where the responsibility lies and not with the lawyer?
Rev. Dorian Baxter: If I could just make a comment, because I think it was a general question, I would say with the greatest of respect, absolutely not, Mr. Mancini. I think one has to understand that these are very serious responsibilities. That is why I would advocate, first of all, mandatory mediation.
Any lawyer today that hears of a mother or a father coming with these allegations should immediately have a red light flashing. I think we should have a safety net right there. There should be no swearing of those allegations in an affidavit until the lawyer, who I believe has a moral and ethical obligation to Canadian society under the democratic process, has ascertained for himself the veracity of those statements. Then he can allow the signature. With the greatest of respect, if he allows the signature, in my view he is equally responsible for the ramifications of that signature.
Mr. Ted Greenfield: Then the lawyer says, “We'd better be a little more careful about what you're putting there”. Let's focus on what's good for the children. False allegations.... This is part of the process. There are a tremendous number of cases where people are coached. You have a 50-page dissertation on the whole issue, but it doesn't focus in on the children. The allegations are just one more thing.
When the judge looks at your issue right now, it's how much do you earn and how much do you pay. A lot of that is just to circumvent. You waste time and energy and you get drawn away from what's good for the children.
I was the worst one. I was a lawyer's dream. I have attention for detail. I went through all the allegations and I made them rich. We responded until they were.... I got a nice new Mercedes.
Mr. Peter Mancini: In those cases, to say that the obligation is on the lawyer—and I'm not being critical, I need to hear this—to ascertain how true those statements are, in the crisis moment, which is when these interim applications happen.... You come in and say, “My wife is at the airport with the kids. I just found out the flight goes in an hour. She's done this and this and this. I'm never going to see them again. Get the application into court.” How much time does that lawyer have to ascertain the veracity of the statement at that moment? If you wait, they're gone.
Rev. Dorian Baxter: That's a very good point, Mr. Mancini, and that is the best argument I've heard today for doing away with the adversarial system. What I would say to you, with the greatest of respect, is that we need to nip the problem in the bud.
I heard something alluded to earlier here. We need legislation in this great land of ours that says if one wife or one husband dares to make false allegations, or dares interprovincial kidnapping or out-of-the-country kidnapping, they will automatically lose custody; or sole custody will go to the injured party if it can be proven that these allegations are false or if these people are just taking the children. Nobody has the right to do that with their children.
A voice: Hear, hear!
Mr. Peter Mancini: Thank you for the supplementary, Mr. Chairman.
The Joint Chair (Mr. Roger Gallaway): Thank you very much. I want to thank you for coming this morning to add your comments and to help us with our work.
Rev. Dorian Baxter: I'll tell you one thing, Mr. Gallaway, and that is simply that this committee needs to be commended. For us, the injured and the wounded and the bleeding, what you are doing is restoring a very damaged faith in our system, in our politics, in our country. I thank each and every one of you for your time and your effort, and I pray that it will be more than just a fact-finding mission.
The Joint Chair (Mr. Roger Gallaway): I'm sorry. Before we end, Senator Jessiman wanted to make a comment.
Senator Duncan Jessiman: Were you advised that you should not apply for leave to try to go to the Supreme Court of Canada?
Rev. Dorian Baxter: By whom?
Senator Duncan Jessiman: I don't know. I'm asking you. Were you advised not to?
Rev. Dorian Baxter: No, I think my only recourse in those days obviously was the Supreme Court. My only recourse....
Senator Duncan Jessiman: Now, was this the Supreme Court of Canada or the Supreme Court of Ontario?
Rev. Dorian Baxter: Oh, I see. No, it was the Supreme Court of Ontario. Nobody mentioned anything to me about the Supreme Court of Canada.
Senator Duncan Jessiman: And you didn't know that you had that right?
Rev. Dorian Baxter: No, I was told nothing of that at all. Are you telling me that I had a right to go to the...?
Senator Duncan Jessiman: I don't know if you had the right, but you had a right to apply for leave.
Rev. Dorian Baxter: Maybe I should go to the Supreme Court of Canada now and rectify the whole picture.
The Joint Chair (Mr. Roger Gallaway): I think you're up to the work.
Rev. Dorian Baxter: Thank you.
The Joint Chair (Mr. Roger Gallaway): Thank you all very much. We'll adjourn for about three minutes.
The Joint Chair (Senator Landon Pearson): Order, please, and please take your seats for the next session.
I thought we had four people coming and you're only three. I see Tracy London. Is Sheryl not here?
Ms. Tracy London (Individual Presentation): I haven't seen her yet.
The Joint Chair (Senator Landon Pearson): Sheryl Milne from Justice for Children and Youth is expected to be here. Maybe she too had trouble finding a parking place. Who knows?
Anyway, Tracy, I hope you're prepared to tackle it on your own.
We also have Jane King and Amy Beck.
Tracy, would you start, please?
Ms. Tracy London: Madam Chair and members of the committee, thank you for the opportunity to speak before you.
I'm a student at the University of Toronto, studying law and social work. I am here because I'd like to talk to you on behalf of my stepsister, who is 15 years old. I would like to try to say what she would say if she had the opportunity to talk to you this morning.
My own experience of my family's breakdown is radically different from my stepsister's experience. When I was 14 years old my parents split up. I was fortunate that my mother and father were able to discuss, in a cooperative manner, who I should live with. They took my point of view very seriously. I was very lucky that when I told them I wished to live with my mother, there was no further dispute. I had full access to my father whenever I wished to see him, and I saw my father often, even though my father and my mother no longer spoke to each other.
In contrast, my stepsister's experience has been terrible. My father and my former stepmother split up when my stepsister was 14 years old, that is, about a year and a half ago. She is now 15 and she's a much different child from the child I knew when my father and my stepmother were together.
Unfortunately my father and my former stepmother do not have a cooperative relationship. In fact, I would almost say there is hatred between my father and my former stepmother.
My stepmother has a new boyfriend who my stepsister considers abusive. She is afraid of her own mother's boyfriend and it is for this reason that she no longer wishes to see her mother. She is afraid to live with her for fear that this boyfriend might molest her.
My father has no rights over Janet—he is not her biological father—and has no legal status as a guardian, yet my stepsister wishes to live with my father.
My father has sought help for this situation and has tried to come to an agreement with his former partner as to how they can both be parents for Janet. He has encouraged Janet to spend more time with her mother and that has caused further pain to Janet, my stepsister. He has gone to legal aid because he cannot afford a lawyer in order to make a formal application for some kind of legal status as guardian. He was found to be ineligible for legal aid. He does not have money, though, to engage a lawyer.
He has gone to the child protection people for assistance to see if there is some role they could play in providing some kind of support to my stepsister or some kind of counselling to bring her and her mother together, but they said it was a private matter because it was a custody and access issue.
I cannot stress enough how important guardianship would be to my stepsister. Although she is able to live with my father, no guardianship has meant that family members do not recognize my father as Janet's real father. Family members have not provided help to Janet because they believe the mother would be the rightful parent, and until Janet goes to live with her mother they will not provide any assistance. They have not recognized the fact that it has been Janet's own choice to stay with my father.
Guardianship would be important to her because she would feel that public authorities would see my father as her parent. At school, she doesn't feel that my father is considered the parent, and at times the mother has gone to the school to see Janet and has put pressure on Janet to see her even though Janet doesn't wish to.
And this has financial implications for Janet as well, because any kind of financial assistance—
The Joint Chair (Senator Landon Pearson): We've been trying to allot about five minutes to each person. So if you could come to a conclusion with some more recommendations for us...thank you.
Ms. Tracy London: Okay.
So Janet has suffered because my father hasn't had the financial assistance that has been going to the stepmother.
I would like to make three recommendations, based on my stepsister's experience and my own: first, that there be greater parental access to legal aid in matters of child custody and access when there is any possible risk to the child; second, that public authorities do not automatically consider child custody matters to be of a private nature when the child could be considered at risk; third, that children be given independent access to some kind of assistance, be it legal aid or another form of public authority, that will permit the child's views to be heard even though the parents themselves might not have engaged legal or public authorities in regard to the custody and access matter—the child should be given his or her own avenue and representative in order to be heard.
The Joint Chair (Senator Landon Pearson): Thank you very much.
Ms. Jane King (Individual Presentation): Good morning. Thank you for the opportunity to ask the committee to consider the longitudinal results of divorce and the impact on the child.
Although I am here as an adult before you this morning, I ask that you consider the adult child of divorce and the long-term impact of a marital breakdown on the child and the subsequent additional requirements made of such a child following what is probably, even in the most reasonable of partings, a traumatic experience.
I ask the committee to consider the long-term prospects for young children now facing the separation and divorce of their parents. I sit here as a survivor who may represent their long-term future interests.
Additional pressures may be visited on the child through the factor of the remarriage of one or both parents, and if no transitions are provided and cooperative parenting is not a practice, there may be long-term consequences. The consequences can lead to lack of contact with the parent, which contains emotional costs for the child.
The issue of denial of access can be mirrored in adult life through the activities of the step-parent. The issue of withholding support for punishment can be replayed through the vehicle of wills and estates. There are many anecdotes where natural children, through the death of one parent and remarriage of the other, were denied support through parental assets.
Although research needs to be done, I would suggest to you that in most cases it is the male parent who has the greater potential to gain a younger female partner, who very often transfers the parental assets to his wife, even when the parental assets are derived in part from the maternal parental input, meaning the natural mother.
I understand that the issue of the right of women to be entitled to transfer of assets through wills and estates is recent, and I would argue that now it is time that children had rights in regard of parental assets. Certainly in the case of children of divorce, even though the law will treat these adult children of divorce on an equal playing field with the children of married parents, there's a great discrepancy between the two, and the possibility of loss of parental assets is far greater for children of divorced parents.
Furthermore, protocols extended to the children of married parents may be traumatically abrogated. A further problem of the diminishment in adherence to religious codes of ethics and society can deny the child what used to be basic religious conduct with respect to the death of a parent.
The impact of divorce on the child is lifelong. As you will have seen from my submission, I have asked the committee to recommend and pass legislation that will protect the rights of all natural children to parental assets. I have also asked the committee to protect the right of the child to access to a natural parent.
I have recommended and list to you seven points: one, legislation in place that protects the disbursal of parental assets to natural children; two, legislation that protects the right of access of natural children to a parent; three, legislation that protects the right of the natural child to direct access to medical records of their blood parent and access to related family documents, including step-parental documents, that is, marriage certificates or birth certificates; four, legislation that provides a model for wills and estates that respects human rights in the document terminology, legislation that protects the rights of family and kin in the area of protocol and powers traditionally spelled out in Christian principle: the right to disclosure of an impending death, the right to see a parent's body, the right to access to a parent's body after death, in terms of grave, ashes, a location; five, legislation that requires the will-writer and executor to serve overarching democratic rights and values, which include the rights of the child and the responsibility of the parent, and so on, in wills and estates; six, legislation that limits the archaic overarching individual powers of will-writers and executors, within democratic values and rights, with legal processes in place that provide recourse and accountability through the law; and seven, legislation that allows protection to parental assets in divorce agreements if no other protections are extended.
The Joint Chair (Senator Landon Pearson): Thank you very much. That's a very interesting and novel perspective, and we would be interested in following it up in questioning.
Finally, Amy Beck.
Ms. Amy Beck (Individual Presentation): Good morning, honourable members of the committee.
My name is Amy Beck and I am 25 years old. I have extensive experience working with children and families, as I am a pediatric nurse at the Hospital for Sick Children and I have been a child dance instructor for many years.
I am also a child of the courts. My parents divorced when I was eight years old, and at that time my sister Jennifer and I continued to live with our father, who maintained custody. There was no formal agreement between my parents, and my sister and I were both free to visit and be with both parents as we wished. This arrangement, in light of the circumstances, worked to our advantage, as we were able to see both parents and to spend quality time with them, with no restrictions. I believe this parenting agreement helped to foster our development, as we were able to maintain a meaningful relationship with both parents.
Six years after my parents divorced, my father remarried. Almost immediately after the wedding, his new wife revealed a side of her that she had cleverly hidden so well. Throughout the time I have known my father's second wife, she has physically and emotionally abused my father, my sister and I, and even her two young children from her first marriage. This woman went so far as to threaten her daughter with a butcher knife, forcing her daughter to call 911. The Children's Aid Society even removed her two children from her care for physically and emotionally abusing them during a time when she and my father were separated.
From this marriage, my sister Amber was born. Not long after she was born, my father's wife realized that the marriage was rapidly deteriorating. As her instances of physical and emotional abuse continued, even against my sister Amber now, she proceeded to a women's shelter, where she made false allegations that she was the victim of physical and emotional abuse. Using these false allegations, she obtained an ex parte order for interim full custody of my sister Amber and her son. While she was in the shelter, her son revealed to my father that he was still being abused but was terrified to say anything. As he put it, they hate dads.
During her stay at the shelter, she left her teenage daughter to live with us, in spite of the fact that she claimed to be terrified of my father. Last September 4, in Yim v. Beck, at the Milton courthouse, she even went to the extreme of insinuating in one of her motions to the court that my father had sexually abused her son....
The Joint Chair (Senator Landon Pearson): If you want to skip over that, your presentation will be available to us.
Senator Anne Cools: Take your time.
Ms. Amy Beck: Thank you. I'm sorry.
She proceeded to drop the accusation when her son ran away from her and came to live with us.
In light of this woman's past history of abuse against her children, and my father's excellent history as a custodial parent of two daughters, Justice Smith of the Milton courthouse condemned my sister to continued abuse at the hands of her mother when he awarded her sole custody last September 4. Somehow, he managed to overlook two psychologists' reports stating that Amber was at risk in the care of her mother. Because of Justice Smith's decision, my family's life is a living hell as Amber's mother tries to destroy the relationship that we have with Amber by denying access, alienating Amber, and acting in a clearly vindictive manner that is destructive to Amber's emotional well-being.
Personally, I have seen divorce when shared parenting was in effect, and I've seen divorce when sole custody was in effect. I can tell you that joint custody and shared parenting is clearly in the best interests of children. During my current university studies, I have done research on the effects of the parent-child relationship after divorce. From my research and my analysis of the literature, I have revealed that no study has found that joint custody is severely detrimental to children in their development, but I can tell you that there is a wealth of information about the negative effects of sole custody arrangements and the effects they have on children, especially when their mother has full custody.
Children are born with two parents, and they deserve to be loved and supported by two parents. When parents are married, they share the responsibilities of nurturing and caring for their children. Divorce doesn't suddenly make one a bad parent who is unable to care for the child in the same way as when the parents were married. Children are not meant to be the possessions of one parent, used as pawns in games of control and revenge. Who are you really hurting when a child is controlled by one parent and is denied the right to be with and develop a meaningful relationship with the other parent?
Based on the personal experience I have had as a young Canadian, I'm appalled at what we call the “justice system”. Where is the justice in a system that clearly violates the rights of children to be cared for by and meaningfully involved with both parents? Where is the justice in a system that sees fathers only as a source of income and continues to deny them the right to spend meaningful time with their children, allowing them to be positive role models and nurturing parents, as they were when they were married? Where is the justice in a system that is clearly gender-biased?
Somehow, society has been manipulated into thinking that women are better parents, but I ask you this: what exactly makes a woman a better parent? We have come to a time where we know that women can do all that a man can do, but at the same time, we need to realize that men can do everything a woman can do.
Have we forgotten the statistics that show that women are actually the ones who are more likely to abuse their children, and that actually now it's more likely to occur when mothers have sole custody?
There's clearly a need for change in this so-called system. I believe there needs to be joint custody, with equal parenting time. This way, in the eyes of a child, Mom and Dad continue to be Mom and Dad. Equal decision-making rights and equal time equals nothing to fight over when both parents are assured that they will be able to continue their meaningful roles of raising their children after divorce.
I also believe there need to be community resources to support parents, and people who can act as facilitators when conflict may arise. As Mr. Beck mentioned this morning, programs like Family Conflict Resolution Services could be instrumental in the lives of families who are affected by divorce.
I also believe there need to be mandatory courses for couples obtaining a divorce that show the effects of divorce and parental alienation syndrome on children. It is clear that the children are the ones who suffer the most in divorce, but in the current system of win or lose, the children get forgotten.
I also believe there should be courses, even at the high school or post-secondary level, that can expose future parents to the realities of marriage, parenting, and divorce.
I will also be making a written submission with a reference list as to the research I have done.
If these recommendations were in place today, I am confident the tragedy my family has experienced would have been avoided.
The Joint Chair (Senator Landon Pearson): Thank you very much indeed.
Mr. Peter Mancini: First of all, Amy, and Ms. London, thanks for bringing us some fresh air on this. You're both children whose parents have gone through divorces and have cooperated. We see the results today—two very good Canadians who've come here to present to us. It's a breath of fresh air to see that this can really happen. I thank you for that.
Amy, a question for you first. Normally I don't ask questions about personal stories, but yours is compelling. In terms of the picture you painted for us, you've commented, and I accept, that we need community resources and family conflict resolution, but would that have helped in your case? In terms of the picture you've painted of the stepmother who now has custody of your sister—and I don't know if you can answer this—would she have been amenable to mediation? Would mediation have worked in that case?
Ms. Amy Beck: In my personal circumstances?
Mr. Peter Mancini: Yes.
Ms. Amy Beck: First, there would have to have been joint custody, because right now her only issue is control and revenge. If they wanted an equal playing field, I think mediation and community services would work very effectively.
Mr. Peter Mancini: So in those highly charged cases—and I thank you for that, because that's almost where we have to look—what you're suggesting to us is that if the presumption is there that there's joint custody or shared parenting, then after that there's a better chance of a negotiated settlement than if there's no decision and we walk in with a “winner take all”.
Ms. Amy Beck: Exactly.
Mr. Peter Mancini: Okay.
The Joint Chair (Senator Landon Pearson): Mr. Forseth.
Mr. Paul Forseth: Thank you.
You were talking about your sister. How old is she?
Ms. Amy Beck: She's four.
Mr. Paul Forseth: In terms of the decision you were talking about at court, which level of court was this? Was this provincial court?
Ms. Amy Beck: This was a family court in Milton.
Mr. Paul Forseth: A family court in Moncton.
Ms. Amy Beck: No, Milton, Ontario.
Mr. Paul Forseth: So as you're aware, that court decision could be appealed to a higher court.
Ms. Amy Beck: It actually is to go to trial.
Mr. Paul Forseth: So there is an appeal process.
Ms. Amy Beck: Yes. The judge threw his hands up, said he couldn't handle the case, and said it should go to trial.
Mr. Paul Forseth: So the order you were talking about was an interim order, then, rather than a final order?
Ms. Amy Beck: It's interim full custody, but that has been since September.
Mr. Paul Forseth: So it's an interim order since September, and a full trial is—
Ms. Amy Beck: But that's going to be at least a month away.
Mr. Paul Forseth: Okay.
You talked about the difficulty of legal services, so I take it your father is applying for custody?
Ms. Amy Beck: He has from the very beginning. That's been the entire issue.
Mr. Paul Forseth: Okay. Will he be representing himself?
Ms. Amy Beck: He is representing himself because he cannot afford a lawyer.
Mr. Paul Forseth: This trial is going to be at the family court level.
Ms. Amy Beck: Yes.
Mr. Paul Forseth: Thank you.
The Joint Chair (Senator Landon Pearson): Dr. Bennett.
Ms. Carolyn Bennett: I too thank you for coming and sharing these very personal stories, because I think we all know that good public policy is only developed when you can see in your mind's eye the people affected. I think it is these personal stories that help us understand that words on paper actually have a serious implication in people's lives.
There are three issues that keep coming back. We're hearing today from a lot of you that resources involved in actually having appropriate legal support for children or for the person responding to an allegation is obviously very important. In Mike Harris' Ontario that seems to have been a low priority, in terms of how legal aid is being assigned. I think this is something we need to make sure is there.
I understand there were two psychological reports in your situation that seem to have been ignored. How were they paid for, because that also seems to be something we're hearing? Where a good assessment might have helped the children, no one can afford to give the assessment or pay for an assessment. How did those ones happen?
Ms. Amy Beck: Actually the assessments were paid for before my....
Ms. Carolyn Bennett: I guess also, in the high conflict situations...I'm still wondering whether or not the children should always have a lawyer or always have a voice. Do you have any answer to that? Should Amber have a lawyer?
Ms. Amy Beck: She's only 4, so she's a bit young.
Ms. Carolyn Bennett: But if it's somebody who's actually pleading....
Ms. Amy Beck: Absolutely.
Ms. Carolyn Bennett: When there's a situation where it seems not to be in the best interest of the child, it might indeed help your father if Amber's interests were articulated by somebody independent.
Ms. Tracy London: In my point of view, in looking at my stepsister's situation, the parents and adults have not taken the initiatives and have not had the financial resources to engage the legal system to resolve their dispute. I fear that the legal system would further aggravate the conflict and cause further harm to my stepsister.
What I think needs to be available is a mechanism or a public authority that my stepsister could go to. She's 15 years old and she has the developmental capacity to take initiatives to determine for herself, in a non-adversarial manner, which parent she would like to live with.
Unfortunately, she doesn't have access to legal aid, being a minor. She doesn't have access to child protection authorities who have that kind of matter outside of their jurisdiction.
If there were some kind of child welfare authority my sister could approach and explain her family situation to and the reasons why she wants to stay with my father, who's the non-custodial caretaker, and have an authority listen to her concerns and be able to take concrete actions to either provide counselling services to her or to come up with some kind of legal arrangement between her parents, I think Janet would be well served.
Ms. Carolyn Bennett: I think we were concerned when we heard from the Office of the Children's Lawyer here in Ontario that they are actually only able to assign counsel to 60% of the cases referred to that office.
I guess our concern is that there are probably a lot of other cases that never get referred. Or whether there should be an opportunity for self-referral, in the best possible world...the adversarial system clearly seems to be the culprit in a lot of this, so do you think some of these things could be better resolved in a multidisciplinary sort of family clinic thing associated with a court? Everybody would be there, including the accountant, the psychologist, and the social worker, and whatever resources were required in a certain situation could be tapped in order to come up with an ultimate resolution. Is that better than a whole bunch of people hiring lawyers?
Ms. Amy Beck: I think anything is better than that. But that's not an easy question to answer, because—
Ms. Carolyn Bennett: We don't really know the model.
Ms. Amy Beck: Yes. It's very difficult.
Ms. Tracy London: From my point of view, I believe Janet has a right to legal representation, because I think she does have a legal right to be in the environment where she believes her well-being would be best served.
My concern with a multidisciplinary system or a mediation system is that very often the interests of the parent supersede the point of view of the child, and although there are concerns about the adversarial system...I think one of the problems with the adversarial system is that very often the child is lost. I'm not saying that the child should be given a lawyer so that we would then have three parties fighting against each other, but I am saying that there should be a system of self-referral for children who are effectively without any kind of legal rights in a custody and access dispute.
Ms. Carolyn Bennett: Thank you.
The Joint Chair (Senator Landon Pearson): I have a question that I would like to ask Jane.
You raised some interesting issues that we've not actually heard addressed, which are the issues related to the children of divorce and their long-term relationship with the biological parents, particularly in the area of wills and the disposal of assets and so on. I don't think I had really thought of that before. Your recommendations were very interesting.
I wonder if you could just sort of reinforce what you said, in terms of...one sort of felt one heard the story behind it, but the need for the child of a divorce to have continuing knowledge of the biological parent, who became ill, or died, or whatever—
Ms. Jane King: Right. I didn't prepare my five-minute introduction with my story. It's a complicated story. My parents separated when their three daughters were 14, 11, and 8. They divorced two years later. One daughter was in the custody of my father, and two, myself and my youngest sister, were with my mother, and...may I ask again, do you want a short synopsis of my story or do you just want me to elaborate on—
The Joint Chair (Senator Landon Pearson): I was just elaborating...because it seems to me that I have heard other cases of the same sort, where, as the divorced parents move on into different worlds, the children get left out of the connection. They also get left out with respect to this question of parental assets, and your point about the fact that part of parental assets in fact have been earned by both sides or contributed to by both sides...and yet they sort of got separated out and taken away from you.
Ms. Jane King: That's right. When my mother...there was a lot of bitterness...no cooperative parenting ever occurred in our family, and cooperative parenting really does benefit the children. The bitterness remained for 25 years, really until my father died. He died at the age of 62. My sisters and I were not expecting that he would die and it was a total shock to us. We didn't have any preparation time, no transition. But that really mirrors the lack of transitions we endured from the time our parents separated. We had no transitions into second marriages, and there was one on each side.
My mother's second marriage only lasted five years. At the same time my stepmother moved into our story, my mother was getting a divorce and returning home, but she had actually left us out of the province. In short, we have really endured many traumatic experiences through lack of transitions, which children really need when separation and divorce and remarriages are going on. What happens is you tend to internalize those as you grow older, and you may not be able to locate what a lawyer would say was your distance from one parent or the other to the source of pain.
If I go to a lawyer, a lawyer will ask me what the nature of the estrangement was and blame it on me essentially, because I'm sitting there as an adult in his or her presence so I must explain the estrangement as some fault of mine and I must also defend myself as an adult.
The current situation has no tie-backs to all the ensuing events that have led up to this issue of the will. Presumably, my father wrote the will with all his faculties in place, but I hear these other stories and I feel very much that my father was in fact emotionally abused by his wife. We didn't understand that because to us he had actually been a very tyrannizing parent. The underside of tyranny of a parent is that when they get into relationships, they can often be the one who is tyrannized.
As a child you get very confused, especially when you have been through so many traumatic changes. Really, the estrangement and the lack of knowledge and the space that occurs that denies us the right to the knowledge is rooted in the divorce. Furthermore, the stepmother, in this case my stepmother, denies us this knowledge. We do not receive it in writing. We do not receive it through a power elder like my godfather or the first woman I refer to as our first stepmother who was not married to our father but was involved in the emotional life of our family for about 13 years. None of this information gets conveyed because she does not finally want it conveyed, because that would alter her powers to this end of assuring the assets to herself.
The Joint Chair (Senator Landon Pearson): Just to tie this up, do you then think that in the parenting plan, which I think a lot of people have been recommending on divorce, it should have a much longer scale than just until the age of 18, that there should be an agreement of continued contact throughout life?
Ms. Jane King: First of all, access to your parent can be denied through emotional means where you don't feel comfortable visiting your parent because of the step-parent. You feel uncomfortable because you haven't been there for such a long time, which is really a product of the divorce.
The other thing is that there's too much incentive for the step-parent to abuse those powers. If natural children were protected through legislation for parental assets, I think there would be many changes in the dynamics of the family.
First of all, I think it would already emerge as more democratic, because a step-parent would not marry with a long-term plan in mind of assuming those assets. The other thing is that they would probably have a different orientation to the children, which would facilitate this extended family, which should have been formed but was not.
The Joint Chair (Senator Landon Pearson): You've given us, along with your earlier recommendations, a lot to think about. Thank you.
Senator Mabel DeWare: I just want to ask Jane if her father is prepared to adopt Janet. Is he prepared to adopt her?
Ms. Tracy London: If he had the resources to engage the legal system, he would want to.
I think if Janet had an authority to go to who would advocate on her behalf and for her legal right to be heard in this matter and also for her right to choose the parent she believes will best take care of her own interests, she would say that she would like to be adopted by my dad.
Senator Mabel DeWare: Good. Thank you.
The Joint Chair (Senator Landon Pearson): Thank you.
Are there any other questions? Senator Cools.
Senator Anne Cools: Thank you very much.
I would like to thank the witnesses for articulating what I think has to be the most delicate and sensitive side of this particular set of problems. I would just hasten to add that many, including myself, worked hard for years to liberalize divorce, which was the thrust of the Divorce Act of 1968, and then later on in 1985, 1986. But in the 30 years since we've had widespread divorce within the administration of law generally—it used to be an act of Parliament at one point in time—we had to discover and admit sadly that we had not stopped to properly study the consequences of divorce on children.
From the ages that you tell me you are—you're 25 years old; I think your name is Amy—it becomes crystal clear that it is time for us to look at the consequences of divorce on the offspring. We now have 30 years, which means two generations have grown up.
Having said that, I notice that the three of you consistently raised a couple of issues. To those on the left over here, you consistently talked about the lack of financial resources to engage—I think this is the word—your legal system. Many of us can sit here and get a lawyer and appeal and do this and so on and so forth. The truth of the matter is that people simply don't have those financial resources. To the end, Amy, I believe you said your father is having to defend himself because of a lack of resources.
My question to you is very interesting. You all keep referring to the need in our community for someone somewhere who the children can appeal to. I've heard the witness here, I think. My question to you is the following. Think about this very carefully. In this country of ours, Canada, who is the ultimate protector of children? That question may seem very difficult to answer, but take a shot at it. Let's see who knows. Let's see which members of this committee know.
The Joint Chair (Senator Landon Pearson): Who wants to take a run at that?
Senator Anne Cools: I would suggest to you that therein is the crux of the problem.
Ms. Tracy London: I would say it's a shared responsibility. Children at a certain age are able to determine for themselves who their protector is: the parent. Also, naturally, parents are unable to fulfil their responsibilities without the assistance of the community or the government.
With regard to children being able to advocate for themselves or to engage a protector when they're old enough to say they need help but they're unable to get the help they need from the parent, I believe that government, be it at the provincial or federal level, has an obligation to come up with a similar system—for example, this could be a child protection system—that has workers available to children who are in the midst of a custody and access dispute. They could go there and say they need help as they're at risk. There could be a kind of system where the worker is empowered to take real action in that situation.
Ms. Jane King: That's a wonderful question.
I think it falls within the family. But I think the state, the nation, would define what it is that makes up a democratic family. I think that's the issue. I think the issue is democracy within a family.
I think my case really shows that when you get to the end product, if you look at wills and estates, which is very much a systematic issue, you find that there is not democracy in the family as it is defined by the state, and I think there can be definitions put into place by the state.
I am sitting here actually as a child, a 40-year-old child, who doesn't have access to any mediation with respect to wills and estates. I don't have any rights at all under this particular system, where my father, who I loved very much—and I know he loved me, and the will is a product of that—is able to sign away my rights with his pen in a moment of anger, frustration, and pain.
Ms. Amy Beck: I think it's the family who has the obligation to protect the children, but in light of the fact that the family fails, then it's up to people like us.
The Joint Chair (Senator Landon Pearson): Thank you very much indeed.
Senator Anne Cools: On the basis of what the witness has said, I think Jane has raised very large issues that transcend her personal situation. I would ask that the committee make sure that we bring some professional witnesses who can address some of those issues and respond to them, because the situation she has described, where offspring are boxed out of bereavement and wills and all that, is a set of very large issues that the committee must direct its mind to.
I thank you for bringing it forward, and I thank all three of you.
The Joint Chair (Senator Landon Pearson): Thank you very much indeed.
The committee will resume at 1 p.m.
The Joint Chair (Mr. Roger Gallaway): Welcome to our Wednesday afternoon session. We feel like we've become residents of Toronto this week.
For the record, I will say that you are representatives, I'm told, of the London Coordinating Committee to End Women Abuse. With us are Jan Richardson, who is the executive director of the Women's Community House; Bina Ostoff, counsellor advocate at the London Battered Women Advisory Centre; and Margaret Buist, who is a lawyer—can I say, specializing in family law?—in London.
Ms. Margaret Buist (Lawyer, Family Law, London Coordinating Committee to End Women Abuse): Yes.
The Joint Chair (Mr. Roger Gallaway): Welcome. I should point out to you the procedure. I know you're each speaking for a different group, so you each have five minutes. We would ask you to try to adhere to that. That will be followed by questions from members of the committee.
Ms. Richardson, if you want to start, please proceed.
Ms. Jan Richardson (Executive Director, Women's Community House, London Coordinating Committee to End Women Abuse): Thank you for the opportunity to be here today.
As Mr. Gallaway indicated, we are here today representing the London Coordinating Committee to End Women Abuse. This committee was formed in 1980 with a mandate to work towards ending violence against women in our community.
We have attained national and international attention for our efforts in developing a collaborative model of partnership with a variety of services, including health, justice, education, and social services.
The membership of the coordinating committee we are representing today includes the police, crown attorney, provincial court judge, funders, anti-violence agencies, and child-focus services such as the Children's Aid Society, Madame Vanier, and the family court clinic.
The coordinating committee supports the mandate of this special joint committee on child custody and access, in particular to examine and analyse the issues relating to custody and access arrangements after separation and divorce.
The coordinating committee also supports a child-centred approach to family law policies and practices that specifically acknowledge the significance of woman abuse to custody and access issues.
The coordinating committee believes strongly that it is in the best interest and needs of children that any changes in legislation or policy include an analysis on the impact of violence against women and children. We believe women and children have the right to live free from abuse and that violence against women and children in custody and access cases is not an exception and must not be ignored.
We contend that legislation should be drafted to better protect battered women and their children. Further, we believe subsequent legislation and policy-making should specifically acknowledge the significance of woman abuse to custody and access issues so that legislation and policy will not expose women and children to continued abuse.
Today we are very fortunate to know much more about violence against women and the impact it has on our society, in part due to the multitude of evidence through police and service reporting, and research such as the Statistics Canada survey released in November 1993. The Stats Canada survey on violence against women is the most comprehensive research that has been conducted in the world. This report only looked at behaviours considered an offence under the Criminal Code.
The survey results state that 25%, or one out of every four Canadian women, have experienced physical or sexual violence at the hands of a marital partner. The marital partner includes common-law relationships. Additionally, one in five violent incidences reported to this survey were serious enough to result in physical injury. Children of abused women are also negatively impacted as a result of the atrocity of woman abuse. There is a growing body of clinical evidence and research that suggests that children who witness woman abuse suffer emotional trauma from the experience. Studies find that children who witness domestic violence exhibit more aggressive and anti-social as well as fearful and inhibited behaviours. Children are also at risk of physical harm in families with domestic violence.
A survey of over 6,000 American families completed in 1990 by Straus and Gelles indicated that 50% of the men who frequently assaulted their wives also frequently abused their children. In addition, studies show that there is a greater likelihood of becoming involved in abusive situations.
To provide more information to you about the relevance of woman abuse and child custody and access, I turn the floor over to Bina.
Ms. Bina Ostoff (Counsellor Advocate, London Battered Women Advisory Centre, London Coordinating Committee to End Women Abuse): Thank you.
The London Coordinating Committee believes that the context of woman abuse is crucial and should be of particular interest to the Special Joint Committee on Child Custody and Access. For many abused women and their children, there are dangers specific to this time of separation and divorce and dangers specific to custody and access issues that family law policies and practices should address.
In woman abuse situations, the time of separation is particularly dangerous. As part of the abuser's pattern of control and domination, their victims have usually been told for years that if they ever dare to leave, they, their children, or their families will be seriously hurt or killed. The resulting fear for women is well-founded.
Browne and William report that when a battering victim takes the first step towards freedom, the abuse frequently escalates to deadly intensity, and Hart confirms that abused women may be most at risk of femicide, when she leaves or when it becomes clear to her spouse that she will be leaving for good. Batterers also murder or attempt to murder their children when victims try to get away.
Also in terms of the prevalence of woman abuse and custody and access disputes, violence does not end with separation. Many people working with women who are abused feel that if they leave the abusive situation the violence will be over. In fact many women report that when they leave, when they take the courageous step to leave, the abuser continues his tactics of power and control in terms of harassing, stalking, and physical and emotional abuse.
It is also clear to us from examples at the battered women's advocacy centre that the abuse continues through the custody and access process. Many women fear losing their children, and many batterers have threatened to take away their children. These fears are also well-founded. In a gender bias study in the United States—many Americans have conducted studies and they find that the courts treat women's custody claims far less favourably than men's.
The general literature on the impact of divorce stresses the negative impact of conflict on children. This was a large study done by Wallerstein and Kelly. However, eight years later, it was important to note that the same author opposed court-ordered joint custody against the wishes of one parent, and particularly in abusive relationships.
Liss and Stahly found that abusive fathers are far more likely to fight for custody. Geffner and Pagelow report that recent trends in the courts, especially those regarding joint custody and mediation, may benefit abusive spouses who want to maintain domination and control of their partners seeking escape.
At the present time, Canadian family law does not adequately deal with custody and access disputes where woman abuse is prevalent. We feel that the federal government must take a leadership role in ending violence against women and children in family law systems. It is imperative, in addressing changes in the family law, that the significance of woman abuse to the custody and access issues is addressed.
The Joint Chair (Mr. Roger Gallaway): Thank you.
Finally, Ms. Buist.
Ms. Margaret Buist: Thank you, sir.
The point we're trying to make to you today is that abuse of women and children is not an exception in custody and access cases. It is quite common. Our recommendations to this committee are based on that fact.
We recommend to you that in the custody and access laws of this country we need specific reference to the existence of abuse as a consideration for the courts in custody and access. The only province in this country that currently has such legislation is Newfoundland. However, most of the Commonwealth countries, including the United Kingdom, Australia, and New Zealand, and many American states, make specific reference to violence as an issue for consideration in custody and access cases.
We need a nationwide common definition of abuse for both our criminal and family courts so that we all understand what we're talking about.
We also recommend to you that if a parent—and I wish to use the generic term, but I also wish to stress that given the statistics we know in this country, it is predominantly the father—is abusive to their spouse or to their child, that should be an important factor in denying that parent custody. It is not appropriate in this country for an abusive parent to be a primary caregiver. This is not the example we want our children to learn from or to follow.
There should also be no presumption of joint custody in cases where abuse is present. Not only should there not be joint custody but there should also not be custody to an abusive parent.
If parents—and again, I state “parents” but mean predominantly fathers—are abusive to their wife or to their child, it should also affect their access on the same principles.
Again, why would we set that example for children? Why would we award an abusive parent the right to maintain contact with their children when they are such a bad example to them?
There are numerous studies that deal with the detrimental effect on children of witnessing violence. We would go so far as to say that if a parent is abusive to the child, and it's a serious case of abuse, access should be denied until and if that parent can demonstrate that they have learned from their past mistakes and will no longer be abusive.
In perhaps less serious cases—if we can quantify violence—access should be supervised. In this country we should have proper supervised access settings.
We would also urge that mediation, if it is to occur...and we support mediation. Please understand that what we present to you is where cases of abuse exist. Where cases of abuse exist, mediation is not appropriate. The fundamental principles of mediation are based on equality of bargaining power. There is no equality where there is abuse.
We also recommend to the committee—and we have a report, which we will be filing with you, based on our experiences in London—that custody and access assessments are important in custody cases if custody and access assessors are properly trained and have basic, minimum criteria for professional qualifications, which would include understanding of abuse. Shelters and advocacy counselling organizations are a vital part of our system.
Educational and counselling programs for abusive men are an important key in stopping the cycle of violence, and there must be comprehensive training for service providers on the issue of abuse.
As an example, here in this province—I know first-hand because I teach the bar admissions course in this province in family law—lawyers get a maximum of two hours in their final level of training on issues of abuse of women and children. There have been two courses offered on issues of abuse in this province in the last 10 years, with a total of about 500 lawyers attending—and 1,000 lawyers are admitted to the bar each year in Ontario. Just in that one small snapshot you can understand how little training there is for professionals dealing with family law issues.
In conclusion, we would urge this committee to ensure that the specific issues involved in abuse of women and children are addressed in your legislative and policy recommendations on the custody and access issues. Thank you very much.
The Joint Chair (Mr. Roger Gallaway): Thank you. We'll move to questions and start with Dr. Bennett.
Ms. Carolyn Bennett: I'd just like some help with what your definition of abuse would be.
Ms. Jan Richardson: The definition we use as the coordinating committee would be any act that serves to intimidate or threaten a woman or child. I'd also like to indicate that the Stats Canada survey used a much narrower definition, which looked at the Criminal Code of Canada where there was a criminal act of conduct. There are two ranges of definition of what we use in a community to guide our activities to look at the broad scope, as well as what Statistics Canada uses as its definition using the Criminal Code.
Ms. Carolyn Bennett: So one act could be considered an abusive relationship, and a whole new set of rules apply to custody and access proceedings if there had ever been one act.
Ms. Margaret Buist: Imagine a situation where the one act is the husband just saying “If you leave me I'll slit our child's throat”. So yes, one act could constitute intimidation or abuse.
Ms. Carolyn Bennett: I guess the concern is that in the continuum of power differentials and in many things we talked about with disability, if it's severe and prolonged—do you think if the Divorce Act were to be written with a special provision for abuse, a definition of abuse would be in the act?
Ms. Margaret Buist: I think that's crucial. We need a definition to work from. From my own experience in family courts, assistance to the judiciary would be important because many judges only perceive abuse as physical abuse, not emotional. So I think it's essential that we provide a definition.
Ms. Carolyn Bennett: In terms of intimidation and ongoing.... I guess my upset is I'm the mother of two teenage sons and there's a place in our house where the drywall hasn't been repaired where one of them had a small altercation and punched the wall. You just worry that if we applied it too broadly—there are very few of us who have never been so angry that we haven't said something we wished we hadn't—it could throw the set of rules differently. Can you just help me with that? How broad and how narrow would be comfortable for you?
Ms. Jan Richardson: I think it raises an interesting point, and there are several—
Ms. Carolyn Bennett: I guess the other thing, from the woman's point of view, is that there's another set of situations.
Before I forget, the StatsCan survey was only about abuse of women, because I think the committee is also hearing that what is not yet measured is the converse in terms of some of the intimidation in the other order—
Ms. Jan Richardson: Doctor, let me first respond to the assessment that I believe you're speaking about, that our system may engage in to determine the type of abuse that was experienced and its relevance to the proceedings. In fact, there are a number of very good assessment tools in place that would help to establish the power imbalance that is at the root of the violence we want to look at.
There are definitions we are certainly recommending, and what comes with the definition is some capacity by our system to then conduct a fair assessment of the situation. It takes a look at the various forms of abuse and the imbalance that exists. I think that would be a natural outcome of having such an addition to the act.
In response to your second point regarding the StatsCan survey and what you indicate is the flip side of that, the survey interviewed 12,300 women across the country and out of that came up with their one-in-four statistic.
There have been numerous research attempts and studies throughout the world to look at the incidence of women abusing men. As a committee working to end woman abuse we certainly recognize that there are circumstances where that is the case. The evidence strongly indicates that in the vast majority of cases, often reported as high as 98%, we're talking about women who are abused, and in only 2% to 5% of those cases would there be a woman who is abusing a man. So while we recognize that is part of this, we need to look at what the predominant wave is, which is that it's women who are being assaulted.
Ms. Carolyn Bennett: And child abuse, the statistics—
Ms. Jan Richardson: Statistically there is also evidence that draws the link between abuse against women and abuse against children. The report we'll be submitting to you cites many examples of that correlation. Where there's violence against women there is a direct correlation to violence against children as well—by the male partner.
The Joint Chair (Mr. Roger Gallaway): Senator Jessiman.
Senator Duncan Jessiman: Thank you, Mr. Chair.
I think I heard you correctly when you said that in the United States there was a bias towards men. Is that in cases where men are trying to get access and the custodial parent, the woman, is trying to deny access because of abuse? Is that where you say there's bias towards men? I just want to make sure I got it correctly.
Ms. Bina Ostoff: Many American states have conducted studies and have found that the courts treat women's custody claims far less favourably than men's.
Senator Duncan Jessiman: Custody?
Ms. Bina Ostoff: Yes.
Senator Duncan Jessiman: Oh, not just for access. The information we've been getting is that there's a definite bias in favour of the woman with respect to custody. Now you're telling me there are cases in the United States that reverse that.
Ms. Bina Ostoff: Yes.
Senator Duncan Jessiman: Will you be supplying us with that information?
I could understand that maybe under circumstances where it was access only, but you're giving us...and we'll read it, of course, but it's surprising to me that you're saying that the courts in the United States are biased towards men. But that's your evidence and we're going to accept it—
Ms. Bina Ostoff: In abusive situations.
Senator Duncan Jessiman: Oh, okay. That I understand.
Ms. Bina Ostoff: Right. Thank you.
Senator Duncan Jessiman: Also, I don't—
Ms. Margaret Buist: Senator, I would like to add something to that, if I may. In fact, an older study—it isn't referenced in our material because we've only focused on abuse—deals with the situation. Most men don't apply for custody. In 85% of cases, they do not apply for custody. In the 15% where men apply for custody, they are awarded custody more than 50% of the time.
Senator Duncan Jessiman: That's what your—
Ms. Margaret Buist: That's custody.
Senator Duncan Jessiman: Yes, thank you. And you're going to give us some statistics or studies on that.
Ms. Margaret Buist: Yes, we have some in our report.
Senator Duncan Jessiman: Fine.
You've also said that access should be denied if it can be shown that the non-custodial parent has been abusive to the child. What do you say if the custodial parent has been abusive to the child? Should we change custody then?
Ms. Margaret Buist: There is no excuse for abuse to the child. It doesn't matter who does it.
Senator Duncan Jessiman: Right, and would you agree, then, if that were the case, that the court should consider changing custody from one to the other?
Ms. Margaret Buist: Absolutely. I think if you're abusive to a child, you lose the right to parent that child.
Senator Duncan Jessiman: Terrific.
This is my last question, to any one of the three of you. What about no abuse, no default in maintenance payments, yet refusal of access to the non-custodial parent? What's your view under those circumstances? You're here, and here we have this situation I'm giving you, no abuse, no default payment, and for whatever reason, the mother is using the child—and I'm using mother because she's usually the custodial parent—is refusing to give access. You tell us, under those circumstances, acting for the people you do, what would you do? What would you recommend we should do under those circumstances?
Ms. Margaret Buist: First of all, if there's no abuse—and remember, I'm just speaking now as a family lawyer, because our report is on the abuse issue—
Senator Duncan Jessiman: I understand, but you're acting for a particular group. We've had other people telling us all this, and you're the people to whom we are saying, okay, if you were going to make the law, tell us what you would do, if you were in our position.
Ms. Margaret Buist: As a family lawyer, I can tell you that if there's no abuse and there's no valid reason for the denial, other than punishment of the former spouse, there's no excuse for that. That's disgusting behaviour. It should be stopped.
Senator Duncan Jessiman: Right, but what do you suggest we do?
If they don't pay, we take away their driver's licence; we can take away their passport. We can do a number of things. We can put them in jail, and we know the courts have that power. But you also know, and we've been told, there have been cases where I think one woman has been put in jail, but she was in contempt of court 22 times. So the court is not enforcing its own laws.
As for you people, what do we do? What do we put in our law so we can get this corrected? I know you're agreeing that it's bad and it's wrong, but what do we do?
Ms. Margaret Buist: I understand that one of the issues this committee is looking at is access enforcement legislation.
Senator Duncan Jessiman: We're asking you, what would you do?
Ms. Margaret Buist: I think there are some pros and cons to access enforcement legislation. Obviously we have contempt of court, and we've have always had that, where the remedies are a fine or jail. We also have always had the ultimate weapon against the custodial parent who does that, which is removal of custody for the destruction of the bond between the other parent and the child.
So those three are our most serious penalties.
Senator Duncan Jessiman: Yes, terrible.
Ms. Margaret Buist: There isn't any other serious penalty we can impose.
Senator Duncan Jessiman: But what about driving—
Ms. Margaret Buist: I think the issue is education, how we educate parents not to use their children as weapons, how we educate judges to take these issues seriously, how we educate lawyers to advocate properly on behalf of their clients to get their clients into mediation, if there's no abuse. I think that's an important piece of the puzzle. It's expensive, obviously. It's not as easy as passing a piece of legislation to point to, but we know that legislation is already there. The remedies are already in existence.
Senator Duncan Jessiman: All right. I can't get you to give us a suggestion, but may I give you some?
Would it not be fair under those circumstances—no abuse, no default in maintenance—that the same happens? They lose their driver's licence, their passport. If they knew that, maybe they would comply and then we wouldn't have to put them in jail or do all these other draconian things. Wouldn't you agree with that?
Ms. Margaret Buist: I think losing your child is a lot more important than losing your driver's licence.
Senator Duncan Jessiman: Don't do it. That's the point.
If they knew they were going to lose their driver's licence and they were going to enforce that—they know they can lose the child, but it's never enforced. They know they can go to jail, but it's never enforced. If they know that, of course they don't abide by it.
Ms. Margaret Buist: But do you know what scares me about access enforcement legislation, Senator? It is that women and children who go forward and talk about abuse are not believed. They are not believed for the most part in our courts.
A lot of women deny access because their children are being neglected or abused on access visits or they are suffering abuse on the access exchanges. If we bring new laws in with respect to access enforcement, I would urge you to also make sure there is protection in any of those laws for women and children who are alleging abuse on access visits.
Senator Duncan Jessiman: Well, I think it has to be more than alleged. That's the whole point. We've heard a lot of evidence about alleged. There was a case today where a man spent over $500,000. It was alleged that he had sexually abused his child and it was found to be untrue. Don't talk about alleged; you have to prove it.
Ms. Margaret Buist: Proving a child has been abused is virtually impossible. I've had women clients spend $50,000 on me to try to do it too, and it's really hard.
Senator Duncan Jessiman: Thank you very much.
The Joint Chair (Mr. Roger Gallaway): Thank you.
Mr. Peter Mancini: Thank you.
I could follow that up, but first I'm going ask, in terms of the definition of abuse—Carolyn asked this question, and I think it's one we have to come to terms with. Abuse was defined as any act that intimidates women and children. I have to ask, could you amend that definition to any act that intimidates the parent and the child? Is that an acceptable definition of abuse?
Ms. Jan Richardson: Any act that serves to intimidate or threaten....
Mr. Peter Mancini: The parent or the child, whether that act.... You've indicated women, but I think there has been some reference that there can be violence.... You quoted Stats Canada. But that definition of abuse has to be all-inclusive, doesn't it? It has to include either parent. Sometimes either parent can be—
Ms. Jan Richardson: There's no disagreement on our part about that in a definition.
Mr. Peter Mancini: Okay. I'll try to follow up a little bit here on the senator's questions.
It is so difficult. We've heard about people who have said, look, there are false allegations. I know you've told us that many women are not believed when they make those allegations. But when we say we're going to deny either access, unless it's supervised, or custody to the accused parent, to the parent who is alleged to be the abuser, don't we up the ante in the custody and access case and almost invite both parents, in the heat of the moment, to make allegations?
You asked, why would we reward a parent who is an abuser, and I agree with you, but if that's going to be how severe it is, if that's the measure, isn't there a better way? Don't we invite the allegations to come forward in the adversarial process where winner takes all?
Ms. Jan Richardson: The first point you're talking about is an allegation of abuse. Be that as it may, I think it is important to look at how that allegation would be assessed and verified. As I indicated earlier, there are a number of assessment tools that the court could exercise in order to assist in looking at that issue. That assessment may include, in part, history of police involvement. What we do know is that not all abusive situations result in contact with the police. In fact there is evidence that suggests that it may be as low as 20%. However, that's going to be one very good indicator: whether there has been a 911 call, whether the police have attended and investigated the matter, whether or not there are prior charges. I think that is very important.
Second to that is the fact that there are risk and safety assessments are in place. The domestic courts that are being introduced in the province of Ontario are looking at issues of assessment at the time of an investigation, including witnesses such as family members and friends. I believe the issue is not the allegation, but what efforts are going to be made to conduct a safe assessment with some integrity.
Mr. Peter Mancini: Okay, and I agree with you that the ultimate test is not working now. I would concur that the ultimate test of that allegation is in the criminal courts, where there's a burden of proof beyond a reasonable doubt. In our present system, that's the ultimate determiner as to whether or not there has been not necessarily emotional, but certainly physical abuse.
Ms. Jan Richardson: A criminal charge, yes.
Mr. Peter Mancini: Who is the ultimate arbitrator if we don't do it? If we talk about this, if we say we're going to do assessments and take it out of the criminal realm, at some point we have someone who has to make that determination. I'm caught because I have legal training and it's hard for me to get out of it, but do we do that on the balance of probabilities, beyond a reasonable doubt? What's the ultimate test that the arbitrator has to meet or that the assessor has to meet to determine whether or not those allegations are true?
Ms. Jan Richardson: One of the recommendations that we're looking at is the provision of services available to specifically deal with this issue. One solution may be to look at ensuring that the custody and access assessments include properly trained individuals conducting that assessment. It is intended to be a neutral, third party who is skilled in the art of assessment and who is able to make a recommendation to the court based on interviews and what other evidence they would suggest. In that custody and access assessment, it would be incumbent upon them to draw on any other evidence, such as witnesses.
Mr. Peter Mancini: But we wouldn't test that. We test it in a criminal court through the very difficult process of cross-examination. Here, we're talking about someone who would be able to make that assumption based on an inquisitive kind of justice—I think a presenter used that expression—someone who would go out, ask questions, make the determination, and then present it to the court. But that person would then be the determiner or the judge, if you want, of whether or not that abuse has occurred.
Ms. Margaret Buist: No, a custody and access assessor is never the determiner of whether abuse occurred. That assessor is one piece of the puzzle with respect to presenting evidence before a court in a custody and access dispute. Because it's civilized, as you know, sir, that test is always on the balance of probabilities. It should remain that way in the civil arena.
Let me tell you how hard it is, on the balance of probabilities, to prove that sexual abuse has occurred on an act of—
Mr. Peter Mancini: I know how hard that is, yes.
Accepting that then, I just want to be clear about this in my own mind. When we talk about the allegations of abuse, what you're suggesting is that the judge who has to determine whether that abuse has occurred does so on the balance of probabilities.
Ms. Margaret Buist: In the family court system, yes.
Mr. Peter Mancini: In the family court system, and out of the criminal court system.
The Joint Chair (Mr. Roger Gallaway): Senator Cohen.
Senator Erminie Cohen: Thank you.
My question is going to take a different tack. Do you know what scared me? Doctor, I heard you say lawyers only get two hours of training in family law. Now we're hearing that judges need educational training. We're having over 77,000 divorces a year and here are lawyers who get only two hours' training, and judges who need training are in demand. Maybe that's why custodial parents have to pay thousands and thousands of dollars. It's because there's a lack of knowledge and sensitivity out there when it comes to handling these cases fairly and equitably.
I'm really quite taken aback by that statement. I'm just wondering if there has been any type of protest given to the law society, saying that we have to have more training because there are so many cases out there. It's a crisis situation, yet we don't have the right people in place to be able to handle it.
Ms. Margaret Buist: You're absolutely right, it is a crisis situation. I've been practising family law for over a decade now and have had to teach myself...and also by being involved in the community and learning from the coordinating committee and all the types of social services that deal with issues of violence. The rare lawyer does that in order to be able to assist their client. I don't want to put all the focus on lawyers and judges either. Mediators are not trained. Custody and access assessors are not trained. Marriage counsellors are not properly trained. All of the people involved in the justice system, who are dealing with custody and access, have very little training on issues of women and child abuse. It is a serious problem. How can we change things? How can we effect change and assist these clients if we don't have the proper training? No, the law society isn't that interested in it in Ontario, or in any province for that matter.
Ms. Carolyn Bennett: Thank you.
The Joint Chair (Mr. Roger Gallaway): Thank you.
Mr. Paul Forseth: We're running out of time, but I would like you to summarize. You did make some references to legislative change, and the final recommendations of this committee would perhaps be focused on the Divorce Act. We really don't have other than perhaps moral suasion to urge provinces to change their equivalent family relations act.
I would like you to summarize specifically the same question I asked the previous group. What legislation would you like to see changed or put into the Divorce Act, and what changes would you not want to see? Could you give me some top one-liners in that regard.
Ms. Margaret Buist: I can talk about the Divorce Act. The changes we've recommended for legislation, which would be the Divorce Act, would be that there be criteria for the determination of custody and access. That doesn't exist in the Divorce Act, for example, in the same way it does in Ontario's Children's Law Reform Act, which has a very good list of criteria to be considered. The Divorce Act says nothing in those criteria about violence. In fact violence isn't mentioned anywhere in the Divorce Act.
Mr. Paul Forseth: So could that provincial statute be copied from one to the other?
Ms. Margaret Buist: I think the Children's Law Reform Act is good in Ontario, but it is also silent on the issue of violence as a criterion in custody. Newfoundland is the only province that mentions this. We're advocating that the Divorce Act have custody and access criteria put in it like the Children's Law Reform Act, only with the addition of the issue of violence put in there, and that violence be defined in the act.
Mr. Paul Forseth: Do you have any warning signs to tell us not to recommend legislation on the negative side, not to go down a particular road?
Ms. Margaret Buist: Any forms of legislation that would punish, discredit or minimize abuse against women and children.
Mr. Paul Forseth: Okay.
The Joint Chair (Mr. Roger Gallaway): Senator Cools.
Senator Anne Cools: Thank you, Chairman. I'd like to thank the witnesses for coming before us.
Before I proceed to what I think will be more profound questions perhaps you could just answer me two relatively simple technical questions. One, at the Women's Community House are all your clients abused women or do you have different categories of housing?
Ms. Jan Richardson: No, we serve abused women and their children only.
Senator Anne Cools: How many women would you have served in the past year?
Ms. Jan Richardson: We have served 1,500 women and children and 5,000 through our abused women helpline.
Senator Anne Cools: Is that 1,500 families?
Ms. Jan Richardson: We have served 1,500 women and children.
Senator Anne Cools: How many women?
Ms. Jan Richardson: A little over 700 families, I think is your question, and we turn that many away.
Senator Anne Cools: Of that 700, how many went on to divorces?
Ms. Jan Richardson: We don't have that information. I'm sorry, I don't have it right now. Our service is an emergency and short-term service. We don't have the capacity through our funding limitation to track women beyond their length of stay. There is some evidence that looks at this, but I'm very sorry I don't have the information. I think it's a very good question, and we are not sophisticated enough nor do we have access to enough funding to address that good question.
Senator Anne Cools: Okay, but perhaps we can get some more on it. You keep referring—
Ms. Jan Richardson: I could guess, but I think it's best to have some research to back that up.
Senator Anne Cools: It would be good to have some research to back it up, but my experience is that it was only a very small minority of those women who went on to actually go through divorces.
Ms. Jan Richardson: All right. What I can tell you is that, at the time of departure, the majority of women do not return to their partners. It's their intention not to continue on in that relationship, and they wish to seek a life free from violence.
We also know there is a high percentage of women who will return to the shelter.
Senator Anne Cools: From four to six months later.
Ms. Jan Richardson: That's because, in that period, they'll leave an abusive relationship and have some reconciliation in the hope that the violence will end. The violence generally does not end, and we will see women returning to the shelter a second time to look at further choices for themselves. So I think we can make some comparisons there.
Senator Anne Cools: Okay. Absolutely, but it's a very interesting phenomenon.
My question is about the Statistics Canada study you cited fairly exhaustively. Do you know anything about the methodology behind that sort of a survey?
Ms. Jan Richardson: I understand that the methodology of the Stats Canada survey has been critiqued. Stats Canada has responded by looking at their methodology. The methodology has also been reviewed internationally by such groups as the IMF, the International Monetary Fund, and the United Nations. In both cases, the Stats Canada survey has used very rigorous methodological techniques.
Senator Anne Cools: Could I speak to the rigorous methodological techniques. Do you know the name of the techniques they used?
Ms. Jan Richardson: I could certainly have that information.
Senator Anne Cools: I have it right here. I'll share it with you.
It is called the conflict tactics scale. It was developed by the godfather of domestic violence study, a man named Dr. Murray Straus of the Family Violence Research Laboratory at the University of New Hampshire.
I'd like to share with the committee what Dr. Straus has had to say about this study to which you refer. The conflict tactics scale is basically a very elaborate methodology developed by Dr. Straus and perfected over some 20 or 30 years in the U.S., where he originally administered it. It is administered to men and to women, and it draws on the self-reports of both parties, both sides.
I'd like to read to the committee what Dr. Straus has said about this particular study. He's asking questions. It's a wider paper. I'll just go in directly. He says:
That is what the “Canadian National Survey of Violence
against Women” did. They used the techniques which I
developed, the Conflict Tactics Scale. But they left out
the half of it which asks about violence by women, so
they wouldn't be left with politically embarrassing
This is Dr. Murray Straus speaking, the creator of the conflict tactics scale.
But sometimes they have the data but don't report it.
At this point, Dr. Straus puts the slide on the board. He says:
Here's two versions of the same data. Here's the
pre-publication version, the top row is
husband to wife violence, the middle row is
wife to husband violence and then couple [violence
in the bottom row]. Here's the “cleaned-up” version which
actually got published. There are only two rows. There
is no row for wife to husband violence. It got
Honourable memebers of the committee, I think it is very important that this committee seriously consider bringing witnesses before us, perhaps even Dr. Straus himself, who could perhaps tell the committee what happened in the application of his methodology in this very same study. That is a matter for the committee to study.
I assure the witnesses that every single person at this table condemns violence, and abhors violence, and wants to see violence ended. I know of no one who would possibly support any kind of violence. But I do think we really have to consider this.
I would like ask the witnesses in particular if they know of the research on the same subject matter by Dr. Reena Summers of Manitoba, by Dr. Merlin Brinkerhoff, and by Dr. Eugene Luprie, all of the University of Calgary, all on this same subject matter, family violence.
Ms. Jan Richardson: I have a couple of responses. The easiest answer I can give you today is that in our brief those three pieces were not included. I would also like to indicate that in addition to the conflict tactics scale used in the StatsCan survey, they also referenced the Criminal Code of Canada by using the definition, as we defined it, through the Criminal Code of Canada.
In surveying the 12,300 women, in addition to using the tactics scale they also referenced that to the Criminal Code of Canada. That's where it was demonstrated about the high incidence, where currently one in six women in the past year have been assaulted such that a criminal charge was warranted.
So there is a balance to those two pieces about the scale as well as what we're using, as our own body, through the Canada courts.
Senator Anne Cools: Absolutely. I do understand and appreciate the concerns. They're well placed.
The Joint Chair (Mr. Roger Gallaway): Thank you.
Dr. Bennett has one quick supplementary question.
Ms. Carolyn Bennett: The cloud of false allegations continues to come over us. I guess I want to know whether you would have any suggestions as to how we could pursue however many those are, such that it ultimately would make your job easier. What we're hearing is that when any allegations are made in the context of custody and access, quite often it's not believed.
If we could actually deal with how you would sort out this false allegation problem, with some suggestions in terms of a solution for that, would we not then clean up the rest of what you have to do in terms of this really important work?
Ms. Margaret Buist: My experience in court tells me that judges are very circumspect when it comes to making findings of abuse. They are very cautious. It is very difficult to present enough evidence to a court to convince a judge, on the balance of probabilities, that sexual, physical, or emotional abuse has occurred.
Given that we know that, given that we know that women always have credibility issues in court—historically, that is true—and given that the courts have a lot of checks and balances already in place that seem to be working to a certain extent, then in my respectful submission, the false allegation spectre that continues to be raised when women allege abuse is just that: it occurs in a minority of cases.
I believe our recommendations refer to a study of a 2% figure for false allegations. That was an American study.
There are always allegations in custody and access disputes, and always one party's experience, or one parent's experience, is different from that of another. But when we're dealing with the issue of abuse, it's very important to recognize that false allegations of abuse make up a small minority. The courts already have in place checks and balances to test the evidence of one party over another, and we're dealing constantly with the fact that women and children are not believed in court.
Ms. Carolyn Bennett: My question is, if those 2% were vigorously pursued, would it not make it easier for the 98%, or whatever the statistics are? There seem now to be perjury and all kinds of things that lay out there, never really followed up, in this group that are falsely accused people. I want to know, do you think the legislation or our government should have a responsibility to deal with those properly so that it makes everybody else's job, in terms of dealing with appropriate allegations, easier?
Ms. Margaret Buist: Sure, if someone comes to court and lies, then there are all kinds of penalties, including criminal court charges, and if it's in a custody and access case, many of the cases will show that the party who lies suffers by either losing custody or access or getting costs awarded against them and having findings of credibility against them, which will affect them in future litigation.
Ms. Carolyn Bennett: And it's not good for the kids.
Ms. Margaret Buist: Obviously not.
The Joint Chair (Mr. Roger Gallaway): Thank you very much. Our hour has flown by. We appreciate the fact that you've come here from London today.
The committee will now adjourn for about three minutes for our next group of witnesses to assemble.
The Joint Chair (Senator Landon Pearson): I'd like to resume the hearings, please. I hope my colleagues will resume their seats.
We'd like to welcome this afternoon, from REAL Women: Gwendolyn Landolt, the national vice-president; and Lorraine McNamara.
Would you like to start your presentation, please. You have half an hour for your presentation—not half an hour to speak, but half an hour for interchange. Thank you.
Ms. Gwendolyn Landolt (National Vice-President, REAL Women of Canada): My name is Gwen Landolt, and I'm the national vice-president of REAL Women of Canada. With me is Lorraine McNamara, who is the second national secretary.
We're a women's group, and as women across Canada, we too have had the unfortunate experience, some of us, of marriage breakdown. So we have considerable empathy and concern for what's happening.
But even though we're a women's group, we do not want to span the gender war in saying this is male-female, but rather to argue that difficulties over access and custody have stemmed from personal characteristics of the parties involved, not because of their gender.
Our concern is the children. As mothers and grandmothers, we have enormous concern about the children and we don't want to see the children caught up in the gender wars. The whole point should be what's best for the children. In that regard, we have looked at studies about children's development and the effects of the breakdown of the family on the children. Although both partners in the marriage suffer terribly, it's really the children who suffer most deeply from the separation.
One of the great tragedies is that the separation frequently means two things. One is that the parents' skills as parents are diminished because they are so grief-stricken over the breakdown of the marriage, so the children are often lost in that struggle. The second thing is that the children sometimes lose contact or have little contact with one of their parents, and one thing we do know is that children need both parents to grow into well-integrated, stable individuals. It's not just the custodial or primary caretaker who has a vital role, but the father who also has an infinitely vital role in this issue.
We do know from the statistics that in most cases in Canada, in the majority of cases, the mother is the primary caretaker and does have the children. The father has access, but it is often limited access. Unfortunately, even if there is access in the divorce settlement, access is denied him in many circumstances. That is detrimental to the father, but more importantly, it's detrimental to the child.
Section 16 of the Divorce Act does say that the court must look to the best interests of the child. Clearly, there are very few studies that would come out against the principle that the child needs both parents. But when you look at the definition of best interests of the child, the difficulty is that the Supreme Court has really been no guide on it. It goes one way in one case and another way in another case.
For example, I think there were two Supreme Court of Canada decisions given during 1993. One was Young v. Young, and the other one was P. (D.) v. S. (C.). Both dealt with the best interests of the child, and both cases had detrimental and certainly totally opposite conclusions. One case said the father should have access so as to provide religious instruction to the child. In the other case, the court said it would be detrimental for the father to provide religious instruction to the child. Those were both diametrically opposed, both in the same law report, and both in the same year, but they didn't give us any guidance.
The position of our organization is that there has to be a definition of best interest in the legislation. It seems that “best interest” has to be defined as looking to the needs of the children, which means both parents should be involved.
We would recommend two things. One is a starting principle: that there be shared or joint custody of the children. The mother may be the primary caretaker, but the father should have equal involvement with regard to medical concerns, education, health. The father should play a vital role in that child's life.
As women, some of whom have suffered this breakdown of marriage, we understand that it can be a difficulty to try to work that out. Unless the father's in jail, as an extreme example, there's no question as to how the mother is going to handle joint custody or shared custody. As a starting principle, though, we would recommend that there be joint custody or shared parenting. From there, it's up to people to propose why that would not apply in a particular case.
Because of the problems involved, we know there are other circumstances, and not just parental disagreement. There can be a horrible breakdown in relationship between the mother and father. As proposed by the health committee of the House of Commons in February 1997, we would request that, as part of the dissolution of marriage under the Divorce Act, there be mandatory counselling required to deal with the issue of the effect of the divorce on the children. That has proven extremely successful in the province of Alberta, for example. In fact, 90% of the couples who have had a broken marriage and who have gone into mandatory counselling have said it was invaluable. Very few couples do resist this, according to the studies.
Now, the basic program began in Georgia. The State of Georgia was successful. Some areas have it in British Columbia. We would like to see this mandatory across Canada so that parents will be alerted and sensitive to the needs of their children. Again, the primary focus is the children. What's best for them? If you get mandatory counselling, the parents can both sit there and pretend they don't hear.
Our understanding is that most parents deeply love their children—the mother and the father—and when they see, through this mandatory counselling, the difficulty to the children.... In fact the breakdown of marriage is the most traumatizing experience in a child's life, according to all of these studies. We have to do everything humanly possible to relieve the children from as much of the trauma as possible.
So there are two recommendations: one is shared joint custody; the second is mandatory counselling.
Lorraine McNamara would like to make a comment too.
Ms. Lorraine McNamara (National Secretary, REAL Women of Canada): Thank you.
I'm not only a mother and a grandmother, but I'm also a legal secretary, and I do have input from all those sources on this particular issue. There are just two points I would like to add to what Gwen has said.
First of all, as a grandmother, I'm very aware of the relationship between grandparents and grandchildren. We did not put this in the brief. It's a difficult situation. You're bringing in four more people, and we felt that at this time it wasn't appropriate. But we did want to make note of the fact that the relationship between grandparents and their grandchildren is extremely important. It certainly stabilizes those children.
I can say that from experience. When my son lost his job and they had difficulties, they had to stay with us for quite a period of time before he was back on his feet with the little grandson. The relationship between that grandson and his grandfather was amazing, and it lasts to this day. It was a very important part of bringing a sense of security to that little guy.
The other point I would like to make is that not all lawyers are out just for the money in these cases. A lot of them are compassionate and they do try to do the best for the children. From what I've seen, very often their client is so deeply hurt, so suspicious—usually it's a she—that they really can't see or understand that perhaps the partner who is no longer with her.... It's not all black. As far as the relationship with the children go, there is something there that is terribly important. For this reason, lawyers can give advice, but they can only go so far. They're doing their best very often. At least in my firm I know they are.
I think the lawyers would be delighted to have a mandatory counselling program that would assist them with their advice and certainly help them not to prolong some of these cases. From what you've been hearing, some of them have dragged on for a long, long time. I think the counselling would certainly help, and I think even the lawyers would really appreciate that.
Mrs. Gwendolyn Landolt: I'd like to add to that. I am a lawyer and I've spent a great deal of time in this particular field of law. I'm glad I'm not doing it right now, because it's the most horrendous bit of law you can ever get involved in.
Because my duty as a lawyer is to my client, I have a professional obligation, but I was always deeply troubled that I was not an expert in counselling, in psychology. I was there to get the facts and do the best for my client. I could see there was a need for a bridge.
Often I'd find there was still something between the couples. The one thing would be their mutual love for the children, but I was never trained to counsel them and help them. Secondly, I didn't really feel it was my job, because I had to help my client and give the client the best possible. Often in my heart of hearts I would say to myself “Am I really doing the best for the children? Who am I and what do I know?” I can say as a lawyer that that troubled me, even as a very young woman when I started out. I'm even more troubled now as I get older.
There is one other point I'd like to make. I referred to studies with regard to the need for the father, and I would like to say that the references to the studies are in our brief, which I gather has not been distributed because it's not translated into French. I'd like the researchers, or anybody who is interested, to see the references to the studies indicating the importance of both the mother and the father. They've all been documented. If you read the brief when it's translated into French, you will find all the references there.
The Joint Chair (Senator Landon Pearson): Thank you very much.
Mr. Paul Forseth: We heard on previous days and even today about the need for mediation, but then the caveat is always given that it certainly isn't appropriate where there is a power imbalance or where there are allegations of abuse—just allegations.
I thought part of the credentials of skilled, certified mediators was to take into account and deal with power imbalances, and that's how they are effectively able to deal with bringing situations where there is much conflict to solutions. They are the ones who can get around the issues of power imbalance and deal with them appropriately. Yet some of the testimony and advice we have been given is that mediation is fine, but as soon as there's an allegation of abuse and the power imbalance involved in that, it discounts mediation and mediation is not appropriate for that.
You talk about mandatory counselling, which I would assume would have more of an educative role up front to advise parents of the consequences of various choices they make and the consequences of their own behaviour, but would also outline choices of action. That overlaps with what perhaps a mediator does in advising on choices and guiding people through, where there is an educative component up front.
Do you see this mandatory counselling educative component leading perhaps to a more sophisticated alternative dispute mechanism that does not involve a court trial, even for couples where there is much conflict? Could you maybe describe that a little more completely?
Ms. Gwendolyn Landolt: First, the issue of allegations of abuse is a tricky one, because when you have a couple that desperately loves their children and wants them, I used to find invariably allegations of abuse were floating around, and it didn't matter if I was dealing with the mother or the father. They would want that because they wanted the children.
I also had unfortunate experiences with the so-called repressed memory syndrome, which I understand now, through psychological research, is not really accepted any more. It was thrown out that there was repressed memory that a father had abused the child. It really doesn't stand up under psychological analysis.
My reaction is, because people are so grief-stricken about the broken marriage and desperately need the children, I don't think an allegation of abuse really has much value until it has been proven in court. I would dismiss it until it's proven. It's a weapon of choice for both men and women. I've heard it from both partners.
Even if there is allegation of abuse, there must and should be counselling. I see counselling as educational. I've found it very interesting that in those cases and jurisdictions that have mandatory counselling, in most circumstances the couples ended up with out-of-court settlements. They seemed to work it out behind the scene without having to go through the machinery of the court.
It means you're reaching them, even though there is pain between the two. They have a love for the child, and when they are educated on the ramifications and when the father understands how vital the primary caregiver is, and the primary caregiver, the mother, understands how vital the father is to that child's development, something seems to click and it works out. Again, looking to the jurisdictions, it has proven successful because it has eliminated a lot of the court testimony and a lot of the allegations in the court. That's how we see it.
Certainly the options are something parents should be aware of, but often they are working them out on their own. The counsellor could give them directions and ideas. In fact, I saw in one jurisdiction that 92% of the custody disputes were settled out of court simply because they worked it out when they understood the ramifications to the children.
Mr. Paul Forseth: Would you not agree with me that there are counsellors and mediators, and then there are counsellors and mediators, depending on their skills, what is their training, what is their certification and its length?
For instance, we have a mediation program that's delivered in the Justice Institute of British Columbia. I believe it is basically two years of study and certification. Or a lawyer can go to a certain jurisdiction and go to a day's classes and then get a certificate at the end that they are a certified lawyers who's now a mediator who can talk to both parties. And there is everything in between.
So when you're talking about mandatory counselling and alternative dispute mechanisms, there is the qualifier there about standards in training and qualifications.
Ms. Gwendolyn Landolt: I'm glad you mentioned that. Probably it is one of the most significant points that can be made. You have to have well qualified, unbiased counselling. It's important that there be proper training.
A whole industry, unfortunately, has grown up over this custody dispute and access. The industry of family law, both in terms of the lawyers and in terms of the counsellors and the child assessors, is a huge industry and qualifications are critical. I absolutely agree with Mr. Forseth on that point, and I'm glad he mentioned it because it can be extremely destructive to get people with a bias, with an ideology, people without adequate training.
I can speak as a lawyer, and certainly we are not qualified, and a day's training is absolutely absurd. Our whole background is to deal with facts, not emotion, not with people. It is really a gratuitous insult to the couple to put untrained people in front of them to try to work out this enormously complex problem.
Ms. Carolyn Bennett: One of the things the committee is struggling with is that a lot of people feel that just the language of the word “custody” and the word “access” means winner/loser and sets an atmosphere of power and trying to maintain power, which is again adversarial and probably not in the best interests of the child.
Does your organization have any opinion about that and about what the future will look like, presuming that only the children have rights and the parents have responsibilities from the day the child is born and that we will get rid of custody and access as the language and move to just an endorsement of a parenting plan? Would your organization have an opinion on that?
Ms. Gwendolyn Landolt: Yes, they would very much support that. That's why we prefer the words “joint parenting” rather than joint custody. Children are not possessions; they are enormously important human beings, and we would like to get rid of that kind of language.
You are very right on that. We would like to see a parenting plan. That's simply the best way to handle it.
That's one of the difficulties again. I'm saying as a lawyer I've always found that the family relations or domestic relations almost don't belong in court because of the fact we are not trained to deal with it. It's the most intractable part of our whole justice system. You are not dealing with objects, you are not dealing with property. You are dealing with sensitive children and human beings and hurting parents. It would be much better if we could have shared parenting plans right out of the judicial system.
I understand that marriage is a social contract. It has to be dissolved through legal means, but maybe the custody and parenting part should be removed right from the court. A judge is a human being too, and he has to make this enormous decision as to the best interests of the child. It would be so much better if it could be handled without this good guys/bad guys adversarial system of our justice system.
Ms. Carolyn Bennett: What is the membership of your organization?
Ms. Gwendolyn Landolt: We have about 55,000 members across the country.
Ms. Carolyn Bennett: And what is the policy process in your organization?
Ms. Gwendolyn Landolt: We were federally incorporated in 1983. We have a national board, which administers nationally, and provincial boards. A member of the provincial board is automatically a member of the national board. We also have local chapter groups in Charlottetown or Vancouver or Ottawa or Toronto. Every year we do call for resolutions at the national level. Official notice is given and these are debated at the national annual meeting. We have an annual general meeting, as required under the Corporations Act.
We are a very grassroots organization, dealing at the local, provincial and national levels. And, I might add, we don't get government funding, so we exist only because of grassroots support.
Ms. Carolyn Bennett: How would the development of policy or the preparation of this brief happen in your membership?
Ms. Gwendolyn Landolt: It happens from the membership. We ask our members to bring forward resolutions dealing with parenting or any issue. That goes up to the national meeting and then it's voted on. Resolutions are a very important part of our annual meeting. We get a resolution on this sort of thing and then we can act on it nationally and put forward a position, but it's all from the grassroots up. And our annual meeting must always approve an issue before we can proceed with it.
Ms. Carolyn Bennett: Were there resolutions on custody and access?
Ms. Gwendolyn Landolt: Yes, there have been resolutions over the years. We've been around for a long time. This is not new to us. In fact, it has been an issue for some of our members. Many of them are women who have broken families, and although they do know the trauma of this...many of our national executive have gone through this issue, so it's been very much a serious issue with our organization.
Ms. Carolyn Bennett: I guess your organization has the family as the basic unit of society. I guess it's at the centre point.
How do you define family? I guess what I worry about is that sometimes there are some value judgments around what a broken family is or what a gay or lesbian family is or the various...the extended family. How would you make the children feel supported in a perhaps more modern family unit?
Ms. Gwendolyn Landolt: We define family according to the majority religions around the world: a mother and a father and children. And sometimes it happens that a family can be broken by separation or divorce, but it is still a family. There's no problem that way. That is still a family, but a broken one, and we regard this as the foundation of society. We take our policies from all the cultures and all the religions, as a reflection of the multiculturalism of Canada, and that definition of family—the traditional mother, father and children—does seem to transcend all the religions and cultures that are part of Canada's make-up.
The Joint Chair (Senator Landon Pearson): Thank you.
Senator Jessiman, for the last question.
Senator Duncan Jessiman: Thank you, Madam Chair.
What do the letters “R-E-A-L” stand for? I think I knew once. Is there some meaning?
Ms. Gwendolyn Landolt: Yes. The letter “R” is for realistic. “E” is for equal. We believe in the equality of women. It's part of our objects of incorporation. “A” is for active. And believe me, we're far too active. We're all exhausted. “L” is for life. We promote respect for life. So REAL is an acronym.
Senator Duncan Jessiman: Right.
You may have heard this before. I've asked this a number of times. If access is refused to the non-custodial parent by the custodial parent, where there's been no abuse, no default of maintenance payments, we know that the court has the power to put that custodial parent in jail, but it's never exercised. We also know that the law, which we changed last May, provided that if the non-custodial parent refused to make payments or was not making his payments, his passport and his driver's licence could be taken away. Would you think that it would be reasonable if access were refused under the circumstances I just outlined?
Ms. Gwendolyn Landolt: We did appear before the committee on Bill C-41 at the time. We did express the concern you have raised, that it dealt only with payments from the father. He became a wallet. It didn't refer to any obligation of responsibility in the other parent.
We did mention how troubled we were by the fact that all the punitive aspects of access were in that as opposed to the custodial parent...we did want to see some balance, and we're very happy that this joint committee did come out of it.
The question I guess you're really asking, getting to the nitty-gritty, is what we think of the punitive aspects applying to the mother as well. Is that really what you're asking?
Senator Duncan Jessiman: Yes, those particular things that we've applied now, passport and driver's licence.
Ms. Gwendolyn Landolt: It would appear that if some of those were applied to the mother...and again I can speak, with some pain, to say that I think there would be more of an inclination to uphold the access orders. Certainly in my own practice I found again and again that access orders were not obeyed. They were not followed through with. And I'm not being judgmental. I understand why women don't want “that man” in the children's lives. I'm not suggesting that I don't understand it. But on the other hand, the law should be impartial. The benefits and the responsibilities of the law should be equal to each other.
I do not for a moment like the thought of a woman being punished by being put in jail, but hopefully...and one or two examples of it have occurred here in Toronto. It may be worth while. But the point is that women have duties and responsibilities once the court has ordered access. It's not for the woman to say she doesn't like it—because in most cases, of course, she is the custodial parent—and again, I think it is extremely important to the children. The bottom line is not mother and father. The bottom line is that the children need both parents.
As a women's organization...and I can say personally as a lawyer that I do feel great concern about the law not being upheld in many cases. And I don't for a moment suggest that I'm comfortable with mothers of children being thrown in jail. And I'm not comfortable with passports being removed. But then again, I'm not comfortable with regard to men either. I just wish we could get out of this whole adversarial system and work things out in a fair, more balanced way, away from this rigid iron hand of the law.
Senator Duncan Jessiman: Thank you.
The Joint Chair (Senator Landon Pearson): Thank you very much indeed, Mrs. Landolt and Mrs. McNamara. It was a very helpful presentation.
Could the next witnesses come to the table, please?
The Joint Chair (Mr. Roger Gallaway): This is our last hour in the city of Toronto and we have before us a panel of four individuals: Mrs. Demeter and Barry Demeter—both of whom, by the way, are from the city of Sarnia—Ms. Raphael, and Ms. Ahlawat.
We'll start with Ms. Ahlawat and work our way back across, if that's okay. I know some of you have been observing. We would ask that you keep your comments to five minutes. I know sometimes that's difficult, but we do have to operate under time constraints.
Ms. Usha Ahlawat (Individual Presentation): My concerns are a bit more complicated. I am a mother, and my two boys were kidnapped in the late seventies and taken to the Middle East. That's where I was faced with the custody and access problem.
I had no problem getting custody. I had interim custody in no time. The problem was what to do with that piece of paper, because my children were with my husband in Jordan in the Middle East.
For nine years I battled this thing alone, with different departments. My biggest frustration was that there was a lack of coordination between the departments.
First of all, I didn't even know where to start the whole thing. After three years of fighting, I had to go to the media. That was the first time External Affairs ever called me or even heard what I had to say.
The custody I was awarded was nothing but a piece of paper, as far as I'm concerned. The lawyers then fought for the house, and that was the end of my custody. Finally, my boys, when they were grown up, came back to me on their own in 1991 and 1993. I now am reunited with my boys, but this has nothing to do with the law or anything.
In the meantime, of course, I've beggared myself. I'll be working for the rest of my life just paying for my lawyers' mortgages.
The Joint Chair (Mr. Roger Gallaway): Thank you.
Ms. Alexandra Raphael (Individual Presentation): Mr. Chair, I do have some copies of what I'm going to say. Should I leave them here afterward?
The Joint Chair (Mr. Roger Gallaway): Yes.
Ms. Alexandra Raphael: Okay.
First of all, I want to thank the committee for inviting me to speak to you on this issue. As I have five minutes, I'm going to outline some of my ideas.
I am a lawyer, but I practise with the Ontario government in the area of corporate finance, so my interest in this matter was developed through personal experience, not professional.
I have expressed my views publicly before. I was on CBC Newsworld in January and November. A brief article of mine appeared in the Globe and Mail. So this is something I have a very deep concern about.
Many of my proposals for reforming divorce laws are rooted in my experience of family law as wholly inadequate to protect the rights of those most in need of protection. From my vantage point as a commercial lawyer and as a lawyer involved from time to time in the development of legislation, Canada's divorce and family law statutes seem to me to be pretty rudimentary as policy instruments.
The Divorce Act deals primarily with ways in which separation can be given legal status. The Divorce Act and the provincial family law legislation also deal with the social fallout of divorce, parental responsibility for children in the event of divorce, and support for children and dependent spouses. However, neither federal nor provincial statutes deal in a comprehensive way with divorcing families. Issues of custody, access, and support are corollary to the events of separation and divorce.
In other words, the focus of the legislation is on the dissolution of the marriage and the physical separation of the adults, not on the new family arrangements that must be put into place as a result of separation.
To the extent that this backward- rather than forward-looking legislation reflects any policy, these policies would appear to have their ideological roots in the 1950s or 1960s. Divorce is seen from an individual's as opposed to societal perspective. The Divorce Act gives legal status to an individual's decision to terminate his or her marriage, thus recognizing, for legal purposes, an individual's right to marry and to end a marriage. The fact that this individual right, if realized, may impact on the rights of others is not recognized in our laws. Accordingly, the balancing of rights, which characterizes most social legislation, is absent from divorce and family law legislation.
Although divorce may negatively affect the rights of children to be raised and supported by both parents, the legislation does not in any way limit an individual's right to divorce by making that right conditional on the individual taking appropriate steps to ensure that his or her children will be adequately provided for following divorce.
Likewise, the legislation does not recognize that society as a whole has a right to be protected from its irresponsible members by ensuring that the burden of raising children from divorcing families does not fall to the state.
A second policy perspective in the legislation can be identified loosely as the promotion of gender equality. Both the federal and provincial statutes in this area recognize an obligation on both spouses to become independent and self-supporting following divorce. In part, these provisions reflect a rejection of earlier legal precedent relating to alimony as an allowance owing by a husband to his former wife following divorce. Increasingly, however, these provisions are also viewed more as statements of legal principle than as guidelines for support awards.
In the past decade or more, the courts have come to recognize that in divorces involving families with young children the economic dependence of one spouse on another results not so much from the existence of the marriage as from the existence of the children. Accordingly, the dependence remains so long as the children are young.
I would hope that as a result of the deliberations of this committee the Divorce Act can be revisited to update its policy underpinnings. The rights of children must be better protected by our divorce legislation.
Until now, our legislation has recognized that the interests of divorcing spouses must be balanced. In my view, the legislation needs to be overhauled to ensure that the balancing takes into account the interests of children as well as the interests of society.
The following is a brief summary of my proposals to revisit the divorce legislation.
There should be two types of divorce procedures—the first for adults without minor children, and the second for adults with children. When no children are involved, the process for obtaining a divorce would be much as it is now. But where children are involved, the granting of a divorce would be conditional on presentation to a court of a suitable plan providing for the care and support of the children. The plan would involve what is currently called a parenting plan, since the idea would be to move away from former classifications between custodial and visiting parents.
Secondly, although divorce would remain no-fault, courts would have an obligation to ensure that no divorce was granted if the divorce settlement did not, in the opinion of the court, contain adequate safeguards for the interests of children.
Thirdly, divorce should not follow physical separation at such a distance in time that it cannot be used as a means of ensuring that the separation takes place in an organized manner with due regard for the needs of children to feel safe and loved. The legislation should be amended to provide that upon separation, and until divorce has been granted, neither parent can assume new financial obligations or divert income to non-family purposes if the result would be to impair the ability of the other parent to remain in the family home and to support the children in the same manner as prior to separation.
Fourthly, the federal child support guidelines should apply to all separations and divorces, including those where no support order has been made. The guidelines should apply to separations or divorces preceding May 1, 1997, as well as after.
Finally, child support should be collected and distributed through the income tax system. This would ensure that support was paid. It would also eliminate the need for provincial governments to run child support distribution systems such as the Family Responsibility Office in Ontario. It would provide a means for automatic adjustment to the amount of child support paid as a function of income earned, as required under the federal guidelines.
That's it. Thank you very much for inviting me again.
The Joint Chair (Mr. Roger Gallaway): Thank you very much.
Mr. Barry Demeter (Individual Presentation): I beg your indulgence, but I would like to give you this reference section.
If you want further explanations of what's in the report, you can look at what I wrote. I will simply take you through the reference section. You see it. It's section R, and there's a picture of my young seven-year-old son on the front. The picture is fairly graphic. It speaks for itself. He was violently beaten by his mother. I was also hospitalized for five days after an assault by my wife. She left the marriage in order to resume a relationship with her high-school sweetheart.
If you turn to page R-1b, the next page, you'll note that at the same time as the picture on the front was taken in October 1987, on the 16th of that month I went to the Children's Aid Society and complained that my son was showing up with signs of abuse. At that particular time, they said the mother admitted the incident in which she went after the child and beat him with a ruler, but they concluded that it was only an isolated incident and was not likely to be repeated.
Turning to reference sheet R-2a, the oldest son lived with me. He was an Ontario scholar when he attended Northern Collegiate. I was a single-parent father raising him all by myself. Reference R-2b shows that the second-oldest son was supposed to be in attendance at Northern Collegiate. He was living with his mother. You'll notice the name of vice-principal T. Hummel at the top. He is the husband of my ex-wife's lawyer. This is the document that they produced in court and gave to a judge to say that he attended school. In fact, Ryan attended school on only fourteen days during that whole year. That's what was permitted.
What happens when you go to a custody and access procedure? If you look at reference R-3a, again you will see halfway down the page that London Custody and Access Project, under the psychologists Gary Austin and Marlies Sudermann, stated that the mother did admit to using a yardstick on the young boy's bottom as a punishment. However, they immediately countered that in this report by stating that I, Mr. Demeter, admitted to Dr. Pasternak, a Sarnia psychologist, that I was physically abusive to her and the children during the marriage and that I had tried to cover it up by refusing to sign a release of information. They also went on to say that I was involved in a common law affair.
On the very next page, reference R-3b, you will see the real letter that Dr. Pasternak in fact sent to this custody and access group in London to help them with their determination. Dr. Pasternak wrote to them after seeing me for nine sessions. It was her understanding that I “spent a great deal of time with his children and was concerned about their welfare. He encouraged the older boys in their sports interests and was well involved in the activities of all four children.”
On the next page, she continues that I “presented as a caring, devoted father.” Not a single word of Dr. Pasternak's report appeared in the report that was given to the judge. That's how they work.
On the next page, in a follow-up letter to me from Dr. Pasternak in response to my comment on it, you can see that she said, “I do not support the statement that you admitted to me that you were physically abusive to Mrs. Demeter and the children during the marriage.” By this time, however, the report had already been given to the judge. He had a report that said I admitted to a prominent psychologist that I beat up my wife and children and that I was living common-law. What chance in the world did I ever have of even getting reasonable access to my children when that type of stuff was put in?
I went to the Ontario Board of Examiners in Psychology to try to get some understanding of it. You'll see in reference R-3e that Austin and Sudermann admitted to the Ontario board that they in fact did make these allegations. They were reminded by the psychologists' board that they should not do this again, and that they must avoid similar mistakes in the future, end of discussion. That's the only thing that happened to them for that report they put in.
The next couple of reference pages, R-4a to R-4c, deal with the period immediately following the divorce. I was taken away from my job and taken into court eighteen times in two years, each time to raise the support amounts. It was a game that was being played. When I asked her why she was doing this, the reply was that she didn't have to pay, that SCOE paid for her lawyer, but I had to pay.
Finally, after the two years a very reasonable judge, who was a math major, Judge Mary Marshman in Chatham, settled the whole issue. She said that in fact I was to be awarded money back from SCOE, which they had taken, and she handled the issue, on 4e, of the fact that Robert had missed 172 of 190 calendar days. But that's a long time to go through this procedure with the courts. There has to be a better way.
SCOE got even on page 5a. Automatically by garnishment I was supposed to pay $8,000 a year. In 1993 they took $10,000, in 1994 $9,000, and in 1995 $9,000. They over-took $3,600. I'll never get it back. You can't get the money back from them. There are the year-end statements in reference 5b, 5c and 5d, where you see the actual amounts that they took by garnishment, illegally.
My ex-wife's lawyer's uncle, Al Brakevelt, is the superintendent for the Catholic school board that employed me. All of a sudden I got a letter from them that said I couldn't have any more time off work to go to court—and I'm being regularly taken in there, over 32 times, for the divorce procedures. I had to pay for it out of my own pocket.
A key one is reference 7a. I applied to get away to get a fresh start in a new town. I had some wonderful interviews, but I didn't get the jobs. I took a very skilful lawyer, Kimberley Munro from Lerner of London, with me to my employer to look at my employee file, and what she wrote in reference 7a was:
I attended at the office of the Lambton County Roman
Catholic Separate School Board to review your
personnel file. Contained within that file was an
envelope marked “documents received from Debbie
Austin ” the lawyer. These documents were in fact
copies of correspondence and Affidavits in relation to
your matrimonial proceedings.
It's highly illegal, according to the Education Act, but my wife's lawyer gave all the nasty stuff that goes on in a divorce to my boss and they stuck it in my personnel file. And here you have the word, not of me, but of Kim Munro that she found it in there.
In addition, my employer placed 12 letters from fellow colleagues in my file, for which I had to take them to court. Reference 7c states the following, and this is Judge MacKenzie:
That alone at this stage of the trial appears to
be a slanderous statement.... I find it most unusual
that Mr. Ross would invite other principals of the
Roman Catholic School Board to write what appear to me
at this stage to be little more than gossip about the
plaintiff. There is a suggestion in the evidence that
Mr. Ross is in fact the kind of person who encourages
gossip and I am somewhat alarmed at this stage of the
proceedings by the introduction of all these letters
which appear at this stage of the trial to be
I won that one. I then went to the Law Society and complained about Mrs. Austin putting the material in my file. The Law Society said there may be concerns about a breach of confidentiality as between her.... However, as you know, she was recently made a judge and they can't touch her.
Last, my conclusion is I would recommend that in all standard cases of separation and divorce an automatic presumption of joint custody, with the children of the marriage spending equal time with each parent, will be the initial ruling by the courts. In the best interests of the child, it will maintain their social environment, school friends and activities to act as a buffer.
My children were moved 142 miles away from me so that my ex-wife could be closer to her boyfriend. That's not a good reason to deny me access to my children and make it virtually impossible. I didn't see the three oldest children for seven years because of the manipulation that went on.
Recommendation C is that each parent will maintain their share of the child's expenses during the time the child resides with them. My ex-wife is a Catholic school principal. She makes over $70,000 a year. I'm on a disability pension and make $30,000. But I have never missed a single support payment since 1987, not one, nor have I ever asked to have them lowered.
In fact, now I pay personally by cheque in my children's name because of the fact that the family—whatever they call it now—the changing group down in Toronto, was withholding the money and it wasn't even coming to the kids. So I give them cheques myself. They like it better and I like it better. You feel like a real father.
As for the rationale, the overwhelming statistical evidence clearly shows—this is the latest research—that the children with the fewest psychological abnormalities, highest success in school, and least conflict with juvenile authorities most often come from homes with two parents, a mother and father.
Contrary to that, at the very bottom of the scale, the children with the poorest achievement records in school and the most problems with the law and authorities are from the homes with mothers as single parents where they are denied access to the father. Particularly scary is the number of teenage girls who are showing up with depression when they are denied access to their fathers.
Before any divorce is granted, attendance at counselling sessions must be mandatory for any parent.
The Joint Chair (Mr. Roger Gallaway): Thank you, Mr. Demeter. I must say that was a well-organized presentation.
Mr. Barry Demeter: Thank you.
The Joint Chair (Mr. Roger Gallaway): Mrs. Demeter, did you want to speak?
Ms. Anne Ross Demeter (Individual Presentation): Thank you. Mr. Chairman, honourable members of the committee, and witnesses, it was a splendid choice when my spirit chose my natural parents: a Scots Presbyterian conservative for a father and an Irish Catholic liberal for a mother. From the start, I learned there's a bit of bad in the best of us and a bit of good in the worst of us.
It was also a time when a person could follow his conscience and, in judgment, was free to contrast our differences, not just compare them, as is the case today, when one can't tell the difference between liberal and conservative, Catholic and Protestant, right or wrong.
And so it is with divorce and the havoc it has brought to our most vulnerable: little children. Whether we are fixated on the notion that all males are bullyraggers and all females are erotic vagabonds, the time has long passed when we tolerate the hate and invective by either parent, which causes such psychological disorders in the young. We see the wreckage of these dysfunctional families all around us: children becoming parents before they're into their teens, street kids who are killers when they're too young to be tried in court.
I have audited family courts from Osgoode to Windsor, and what I have witnessed demanded that I take a course in family law. It dealt mainly with juvenile offenders, but I managed to intervene on behalf of joint custody.
On February 14, 1991, I appeared before the subcommittee on justice at Queen's Park. Being one of the first witnesses to argue against injustice to non-custodial parents, I was phoned four times by committee members. A request was made by Gary Carr, a Conservative from Oakville, to allow Justice to provide then attorney general, the Honourable Marion Boyd, of the NDP and from London, to use material on children who were not attending school. Because custody had been granted automatically to the mother, they would not report the child's absence because their support could be cut off. The schools turned a blind eye so they could collect their per diem payments.
If a conservative MPP could intervene on behalf of the NDP for the good of the province, divorced parents must be made to put their children first, last, and always. The non-custodial parent is forced to go to court to access school records or medical data on their child. Now, think about that.
The present attorney general, the Honourable Charles Harnick, restructured the nightmarish support and custody orders, SCOE, and renamed it the family responsibility plan.
It would seem that only the name has changed. Money is still being held up, in some cases for months. And do you know that if the non-custodial parent has the resources to give extra funds to his children during this period of drought, he receives no credit for it? It must be funnelled through government hands, where the right hand obviously doesn't know what the left hand is doing.
The crabby parents of either sex must be made to obey the law. Also, an end must be brought to the games custodial parents are playing by using the children as pawns. The law must be changed to treat infractions of both support and access with equal severity.
Because of the time constraints of five minutes per witness, what I have presented here is only a drop in the ocean. I am attaching an addendum that could prove helpful to you. I hope you'll have an opportunity to read those four pages and that you are shocked by them.
I will close with a question to the committee. How would you like to hear yourself referred to in small claims court by a wannabe judge, as I was last year in front of my sons, as a probable garbage picker who had $100,000 hidden away? I would also like you to think about that. You're looking at the person who was named a garbage picker in a court in Burlington.
The Joint Chair (Mr. Roger Gallaway): Thank you, Mrs. Demeter.
We'll start with Mr. Forseth.
Mr. Paul Forseth: Mr. Demeter, I'd just like to ask you a couple of clarifying questions on what you said in reference to maintenance payments.
Could you guestimate as best you can what the mother's total household income is from all sources and contrast that with your total household income from all sources? That would include people you're living with, or free benefits like low rent or something like that.
Mr. Barry Demeter: Including the board she gets from my eldest son, who's a full-time teacher and lives there, the support payments she gets and her own salary, she makes about $82,000 a year.
Mr. Paul Forseth: Is she living with somebody?
Mr. Barry Demeter: That's the interesting thing. The boyfriend spends two or three nights a week with her and three or four nights a week in his family home with his third wife and daughter, so he doesn't contribute anything. He just eats free at the trough. But my income is approximately $30,000 a year from a disability income.
Mr. Paul Forseth: Do you receive any benefits such as reduced rent?
Mr. Barry Demeter: No.
Mr. Paul Forseth: How much child maintenance are you paying?
Mr. Barry Demeter: I'm paying $8,400 per year.
Mr. Paul Forseth: For how many children?
Mr. Barry Demeter: That's for two now. It maxed out at $15,300 when I was supporting all four of them, and has gone down progressively as they have graduated with four-year university degrees. Now I'm paying $8,400 a year, but last year, for example, I paid $3,500 in cars repairs for my daughter's car because nobody else would fix it. I refused to let her go on the highway back and forth to school in Waterloo. They come to me for a lot of things, like school jackets or whatever.
Mr. Paul Forseth: Has there been any consequence now with the change in law where the maintenance payments are now taxed in your hands, rather than seen as flow-through income?
Mr. Barry Demeter: Yes. They went after that, and I pay the tax on it.
Mr. Paul Forseth: Has that affected your ability to pay?
Mr. Barry Demeter: Sure.
Mr. Paul Forseth: Okay. Just as a comment, in British Columbia the operative rule used to be ability to pay but also demonstrated need. Maintenance payments could be varied upwards or downwards, based on changes of circumstances from either party, and they could be negotiated or litigated changes. But I take it now, based on the Divorce Act, we've completely left those parameters.
Mr. Barry Demeter: That's correct, and I'd like to say this. Having been in court over 32 times with this type of stuff, I will do anything in my power to avoid going back in front of a judge again. So I just pay. That's it. This is the amount I pay. If my income goes down, I still pay. I am proud of the fact that since 1987 I have not missed a single payment.
Mr. Paul Forseth: Are you paying according to the Divorce Act or a provincial statute?
Mr. Barry Demeter: I believe it's according to the provincial statute, because the amount of payment was set in 1989 in an Ontario provincial court when I was making $70,000 a year. It was based on that salary.
Mr. Paul Forseth: Do you know when those support payments are supposed to come to an end?
Mr. Barry Demeter: Yes. It's when the youngest child—there are two of them in school right now—has completed a full four-year university degree.
Mr. Paul Forseth: That would be perhaps under the provisions of the Divorce Act, but what does the provincial statute talk about? Do you know?
Mr. Barry Demeter: All I know is that the agreement that has our signatures on it, signed at the time of the divorce, states that I will pay for full four-year university degrees for all four children.
Mr. Paul Forseth: What you have then, really, is a filed separation agreement rather than a court order of maintenance.
Mr. Barry Demeter: I'll take your word on that.
Mr. Paul Forseth: Okay.
The Joint Chair (Mr. Roger Gallaway): Senator DeWare.
Senator Mabel DeWare: I'd like to speak to Ms. Raphael for a minute and tell her that over the last three weeks of our hearings, what we're hearing most from the majority of the people concerned about the Divorce Act on what we should do about it is that somehow we have to arrange for a mandatory counselling session, or a mandatory information session, for people when they decide they're going to separate.
The second thing is something you suggested about parenting, that there should be definitely put in place a parenting plan. We don't know how we're going to do this, but we're interested in hearing what people have to say. You have to make both parents realize that even though the reason they want to separate could be because of a very serious situation, they have to put in place a plan to make them realize there are children there, and their interests have to be thought about. If they're forced into presenting a plan to the judge or to the lawyer or to whomever, it means they do have to sit down and seriously think about the repercussions this divorce is going to have on their children and how they're going to deal with that.
Would you agree with that type of plan?
Ms. Alexandra Raphael: Yes, and what I suggested is exactly that, really. I think a divorce in a family with children is an entirely different beast from a divorce involving two adults. There should be two procedures. No divorce should be granted to adults with children unless they have put together a plan for taking care of those children. It's the absolutely fundamental issue in this divorce: what happens to these kids?
The divorce should be entirely about how you raise children in two houses. If the parents cannot stay together any more, and if their relationship has come to a point where they cannot live together, then as responsible adults what they have to do is find out how to raise their children in two homes.
Senator Mabel DeWare: Do you suggest, in the information we're going to receive from you, how the Divorce Act should be changed?
Ms. Alexandra Raphael: Yes. What I have here is pretty brief. I have something that is lengthier.
Fundamentally, the Divorce Act should provide that no divorce can be granted to the parents of minor children unless they have presented to the court a plan for the care and support of their children. It has to be a precondition.
Second, there should be a onus on the court to ensure that no divorce is granted unless the court is satisfied that the children will be adequately cared for.
Senator Mabel DeWare: Good. Thank you.
I'd like to say to our garbage picker that we're glad we have people like you in our system.
Ms. Anne Ross Demeter: Thank you.
The Joint Chair (Mr. Roger Gallaway): Is that it, Senator?
Senator Cools is next.
Senator Anne Cools: Thank you very much, Chairman.
I'd like to say to the witnesses that I missed a lot of what you had to say because I was out for a few minutes doing some very important Senate business.
I would like to say to the garbage picker here that I personally would like to thank women such as you, women who have raised children and then find yourselves re-parenting in what I would describe as your advancing years.
As I heard the tail end of your statement, Mrs. Demeter, I was reminded of a very beautiful poem. I don't know if I can remember it any more, but I used to use it in a lot in quotations. I was one of the front runners, as we know, in women's freedom in the country.
The poem was called Bread and Roses. It was a particular poem that I think came out of the union movement at the turn of the century. It goes something like this:
As we come marching, marching, we battle too for men,
For they are women's children, and we mother them again.
I just wanted to say thank you to women like you and to the mothers of the world who do the kinds of tasks that you do. You've done it for your children and now you're doing it for your grandchildren. Whether we say it is grandparents' rights or whatever, I just say thank you, Mrs. Demeter. I thank you very, very much.
The Joint Chair (Mr. Roger Gallaway): Thank you.
Senator Duncan Jessiman: I don't really have a question, but I would like to talk to this young lady here.
When you got your order nine years ago, was your husband to have paid you so much a month for support for the children?
Ms. Usha Ahlawat: He had the children.
Senator Duncan Jessiman: Yes, I understand that, but you got the order; you had an order.
Ms. Usha Ahlawat: I had interim custody, but that was just a piece of paper. The children were physically with him in Jordan.
Senator Duncan Jessiman: So they didn't declare that he had to pay so much per month for the children, even though you had the order for interim custody.
Ms. Usha Ahlawat: No. On the contrary, I was asked to pay him.
Senator Duncan Jessiman: Oh dear. How old were they when they returned?
Ms. Usha Ahlawat: My oldest son was 20 when he returned and my younger one was 18.
Senator Duncan Jessiman: Your husband didn't try to enforce the order against you, or did he?
Ms. Usha Ahlawat: No.
Senator Duncan Jessiman: All right. That's fine. I thought maybe there was an outstanding order that he owed you something, but that's not the case.
Ms. Usha Ahlawat: No, I didn't want anything from him. All I wanted was access to my children, and I was denied that for nine years.
Senator Duncan Jessiman: That's too bad. I don't know what we can do about it, though. That's the unfortunate thing in this particular—
Ms. Usha Ahlawat: There are many other people in society and this is happening all around. I'm sure things must have changed since that time, but the thing is, when something like this happens, who do you turn to? It took me three years before External Affairs even recognized that there was a problem.
Senator Duncan Jessiman: Even though they recognized it, they couldn't help you. There was nothing—
Ms. Usha Ahlawat: The American embassy in Amman was willing to help me, but not the Canadian embassy.
Senator Duncan Jessiman: Thank you.
The Joint Chair (Mr. Roger Gallaway): Thank you, Senator Jessiman.
As a matter of note, I'm told that just recently a report has been tabled with the Standing Committee on Justice, on the House side, on child abduction. We'll have to take a look at that at some point. In a sense, that's a separate but very much an integral and related part of what we're studying here.
Ms. Carolyn Bennett: While we have this witness here, as you know, there's been an ongoing initiative to try to change the language of the Divorce Act, to maybe get rid of the words “custody” and “access” and move to something that presumes joint responsibility and a parenting plan. I guess we feel that maybe the one situation where that wouldn't apply would be in the case of child abduction, where in international jurisdictions the word “custody” would be the one.... You would have to be able to demonstrate you have custody of the children.
Do you have any advice in terms of the act? Would you worry if we took “custody” and “access” out? There would have to be a special clause for situations such as the one you found yourself in.
Ms. Usha Ahlawat: Definitely. I'm sure things have changed a fair amount since my case. In my case I didn't want to be vindictive; I didn't want to hurt my ex-husband. I could have done many things. I could have laid charges for this, that, and what not, but I chose not to because I was not out there to hurt him as a person. I was only fighting for my rights as a mother. After the Geneva Convention came into being, things changed.
Ms. Carolyn Bennett: Say we change the Divorce Act. You would want a clause that says you could apply for a certificate of custody in a case of international jurisdiction or abduction...we'll let the lawyers figure it out.
Ms. Raphael, I want to thank you, because I think sometimes what happens at committee is that we keep having the problem articulated and the fact that the status quo isn't okay, and it's wonderful to have people come forward with very clear recommendations.
Ms. Alexandra Raphael: Thank you. I wasn't sure it was that clear.
Ms. Carolyn Bennett: I think I missed one, actually, in that they were sort of machine-gun fired there. I think I missed number 3, but you do have a written report on it.
Ms. Alexandra Raphael: Yes, I do.
Ms. Carolyn Bennett: I guess all of us feel that the shorter the time from the inevitability of separation to this parenting business being sorted out, during which time the children have the insecurity of not knowing what's going to happen.... The timeframe is very important.
It was interesting. I think your recommendation around not exactly freezing of assets but the idea that you couldn't undertake any huge financial obligation until this was sorted out would actually serve to hurry the process along.
Ms. Alexandra Raphael: Yes, that's right. I think we have a very unsatisfactory situation now, because the legal process—laws exist to protect people—follows the fact in divorce and separation. What happens is that someone leaves, and that means the situation of the children is fixed at that time because they stay with one parent or the other. The financial situation and economic situation are completely altered at that time, because normally it takes two people to support a family, and when one of them leaves and starts using their money for something else, that dramatically affects the financial situation of the family.
What I'm suggesting is that the Divorce Act be amended to provide that the financial resources of either parent can't be deployed to non-family activities if that would in any way affect the financial or physical circumstances of the children.
Ms. Carolyn Bennett: “Non-family” would or wouldn't include signing a lease?
Ms. Alexandra Raphael: If you could rent an apartment and it wouldn't affect your ability to continue to pay the mortgage on the home that the kids were living in, you could go rent an apartment. That would be fine.
Subsequently, once the divorce process has commenced and the plan is presented to the court for how the children will be cared for—and this would involve where they're going to live—once that plan is in place, which would include both physical things and the financial things, then both parties would be free to alter their financial arrangements, because presumably this plan would make sense and wouldn't leave one party in the lurch. But the idea is that everything would be frozen until the legal proceedings happened, which would prevent what happens now, people altering their financial commitments to the prejudice of their kids.
Ms. Carolyn Bennett: Okay, thank you.
The Joint Chair (Senator Landon Pearson): I'd like to come back to a question to Ms. Ahlawat, because you're the first person who has brought before us the international dimension and, to some extent, the cultural dimension.
Your children are Canadian citizens. They were born here. Is that so?
Ms. Usha Ahlawat: Yes.
The Joint Chair (Senator Landon Pearson): You were both married and divorced here in Canada?
Ms. Usha Ahlawat: No, we were married in India, but we were divorced here.
The Joint Chair (Senator Landon Pearson): So the custody decision was made here.
Ms. Usha Ahlawat: Yes.
The Joint Chair (Senator Landon Pearson): I think we've had several people bring to our attention—not in these particular sessions, but before—that sometimes under Islamic law, for example, there is a different attitude to custody. I wonder if you had any experience or ideas you could give to us as to whether this was a problem that we should be addressing.
Ms. Usha Ahlawat: As to my situation, I don't know about Islamic—we are by religion Hindus—but because my husband happened to be in Jordan, which is an Islamic country, he was getting all the protection in the Jordanian jurisdiction. The Canadian custody order had no meaning there, and as long as he stayed in that jurisdiction, this piece of paper was just a very expensive piece of paper, as far as I was concerned, for me.
The Joint Chair (Senator Landon Pearson): Okay, that's the kind of question that I think we need to pursue somewhat further. Thank you very much.
The Joint Chair (Mr. Roger Gallaway): Senator Cools.
Senator Anne Cools: Thank you, Mr. Chairman.
To the witness Ms. Ahlawat, because this issue is so important....
I also have a question for Ms. Raphael—I didn't forget you at all.
In terms of what I'm going to call the intercultural aspects, are there any—I don't want to say immigrant or ethnic organizations—support groups for persons such as you who are of a different race and culture and who basically have to face this kind of abduction problem?
I'll tell you why. It is a little more common than we think, and to my knowledge, today is the first time it has come forward before this committee. I am informed that there's quite a network across this country that assists in parental abductions and helps get children out of the country.
I'm just wondering, in a very personal way, are there any support groups to assist you in this or cultural groups?
Ms. Usha Ahlawat: Do you mean when it was happening?
Senator Anne Cools: Yes.
Ms. Usha Ahlawat: There weren't many at the time. There was just a small group of about five or six women. It was a self-help group. We used to meet once a week—
Senator Anne Cools: Help each other.
Ms. Usha Ahlawat: —to talk about our situations and try to support each other. But there was no funding. We didn't even have money for the telephones and things. Then we volunteered as people who had gone through the circus, so other people could phone us. We could at least guide them and tell them the first thing was to find out who had the passport, who to call in the Department of External Affairs, and things like that.
But since then, I don't know what has happened. It happened to me in the early l980s.
Senator Anne Cools: Okay. I didn't hear your testimony. I'll have to read it on the record, but we'll be talking.
To the second witness, Ms. Raphael, you said something that I thought was very remarkable—stunning, actually—and not frequently said, at least in the testimony I've heard in this go-round. I think I heard you say that no divorce should be granted unless certain conditions are met. Did you say that?
Ms. Alexandra Raphael: Yes.
Senator Anne Cools: Very good. That is stunning, because we had a lawyer sitting here yesterday who made an equally stunning statement. He said divorce is an entitlement, which it is not. It is not a right or an entitlement. It is a decision to be made in each and every circumstance. In recent years, many people have treated it as a right and as automatic.
I wonder if you could amplify on that just a little more, because I heard you say perhaps judges are granting divorces a little too hastily. That's what I thought I heard you say. It's not my position, I'm just trying to get clarification.
Ms. Alexandra Raphael: Yes, it's certainly very controversial to just make a statement that no divorce should be granted unless certain conditions are satisfied.
Senator Anne Cools: Absolutely.
Ms. Alexandra Raphael: But in fact what I'm saying is not really that radical, because I'm only suggesting that divorce, where there are two adults and no children, is not a problem. If it'll make you happy, do it.
In a divorce where there are children involved, there are the rights of the adults who wish for the divorce, or one of them who wishes for the divorce, and there are the rights of the children to be raised by their parents and loved by them. There is the right of society to be protected against irresponsible parents who don't take care of their children.
The Divorce Act currently, to the extent it embodies any kind of policy, merely embodies the policy of individual freedom to divorce. It should really be revisited with the idea that where there are children involved, divorce is an entirely different matter, and the divorce should involve a balancing process—a balancing of the rights of the kids, society and the parents.
I don't want to oversimplify this, but basically the cost of divorce should be higher if you have children because those plans have to be put into place. You have to think about what will happen to the kids when you get divorced, because that's the fundamental issue. The family will survive. So divorce with kids is a method of raising kids in two different houses. You won't get the divorce until you've done the planning, you know where they're going to live, and you know how much it's going to cost. That should all be sanctioned by the courts.
Senator Anne Cools: I find what you're saying very interesting. I encourage you to say it more, because I have to confess to you that many people have been frightened stiff—they're afraid—to say what you just said. I thank you for that.
The Joint Chair (Mr. Roger Gallaway): Thank you, Senator Cools.
As it is now 3.30 p.m., this committee is about to leave Toronto.
I want to personally thank you all of you for coming here today. This was a very interesting panel in this last hour here. I know that you've come on your own time. We really do appreciate your attendance here. You certainly have contributed to our work and study.
Second, I want to say to those in the room that we see a lot of what I would call familiar faces here now. We appreciate your presence. Many of you have participated and many of you have been here because you're vitally interested in this subject and in the work of this committee. We do appreciate that very much.
I want to say, on behalf of Senator Pearson and indeed all the members of the committee, how much we have appreciated the involvement and the attendance of everyone here. I should finally say that I think we can say this time in Toronto has been not only interesting but extremely productive. Thank you all.
This committee will now adjourn until tomorrow at 9 a.m. in Montreal. Thank you.
The meeting is adjourned.