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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]
Friday, April 3, 1998
The Joint Chair (Senator Landon Pearson): Good morning, everybody.
Good morning, everyone. This is the sixteenth meeting of the Special Joint Committee of the Senate and the House of Commons on Child Custody and Access, which has been asked to examine and analyze the issues of agreements for the custody of, access to and upbringing of children following the separation or divorce of the parents. More particularly, the Joint Committee will be charged with assessing the need for a more child-centred approach to the development of government family law policies and practices, that is to say an approach that emphasizes the responsibilities of each parent and the needs and best interests of the children at the time agreements are reached concerning their upbringing.
That's our charge as a committee.
This morning we welcome Dr. Cerise Morris and Madam Claudette Guilmaine.
Dr. Morris, would you like to begin? We would like you to keep your presentation as brief as possible, within five minutes, more or less, so there is time for questions.
Dr. Cerise Morris (Individual Presentation): Certainly.
I'm here to address the special joint committee this morning as an individual with an interest in social policy concerning child custody and access.
I've conducted my own sociological research on shared custody. I've taught courses on contemporary families. And also, as a pyschotherapist, I've helped individuals and couples deal with these matters.
Although the principle of the best interests of the child seems to be imbedded in Canadian jurisprudence, its application, I think, has not sufficiently taken into account the rights of children. My own research and my clinical experience have led me to the following conclusions.
A child whose parents are divorced normally requires and wants ongoing parenting from both a mother and a father. A child whose parents are divorced wants and needs to maintain ongoing relationships with both sets of grandparents and with other proximate members of each parent's extended family. A child whose access to one parent is restricted, denied or made the subject of conflict experiences loss and pain and impaired psychological well-being. Serious emotional and behavioural consequences sometimes ensue.
We need to move towards an approach that allows a broader, more fluid interpretation of acting in the best interests of the child. Some divorced parents can work cooperatively to arrange the best possible post-divorce environment for their children, but not all. And there is evident need for the promotion of mediated child custody and access agreements as well.
When the need of a child to have reasonable and unimpeded access to both parents is accorded prime importance in law and ideology, the effect is to encourage parents to place the interests of the child above their desire to maintain conflict or extreme distance after their marital relationship ends.
The data show that at least some divorced parents can learn to separate their marital issues from their parental roles.
The ideologies of women's and men's rights are currently being expressed in powerful and rather conflicting voices in the current discourse on custody and access.
Some women's advocacy groups have argued that fathers' rights systematically take precedence in custody and access disputes in the Canadian justice system, thereby perpetuating women's inequality and even placing some women and children at risk of violence from abusive ex-partners. Some women's advocates defend the practice of withholding access to children in order to protest late or unpaid child support from the children's fathers.
Advocacy groups popularly known as “men's rights groups” charge that women are unfairly favoured in custody decisions and are allowed by the justice system to arbitrarily and unfairly deprive fathers of sufficient or any access to their children, even when they're meeting their parental and financial obligations.
Of course, sometimes truth can be found in both sets of claims. But the danger, as I see it, lies in allowing this area of family law to become the battle ground for gender politics.
Children's rights, based on an enlightened understanding of children's psychological need for identification and connection with both parents, ought not to be held hostage to gender politics. Adults of both sexes make choices and have a large measure of control over their lives. Children do not.
In summary, I'd like to make the following recommendations to the committee.
An a priori principle should be established that children have the right to full and unimpeded access to both of their parents.
The issue of child custody and access should be treated separately and distinctly from that of child support obligations.
Parents' gender, per se, should not be a criterion or key factor in rendering a decision about custody and access.
Arbitrary or unreasonable denial of children's access by one parent to the other parent should result in swift and significant legal sanction in order to discourage this practice.
Family mediation should be made fully accessible to all separating parents through family court and should be made mandatory where there is sustained parental conflict over custody and access.
Finally, where there is substantial reason to be concerned about abusive behaviour towards the children or their parent by the other parent, contacts with the children should be supervised and therapeutically monitored if necessary, but not denied, except as a very last resort, because of evidence of detrimental effects to the child.
The Joint Chair (Senator Landon Pearson): Thank you very much indeed.
Senator Duncan J. Jessiman (Manitoba, PC): Could you repeat the point about denial of access, please?
Dr. Cerise Morris: Yes. Arbitrary or unreasonable denial of children's access by one parent to the other parent should result in swift and significant—
Senator Duncan Jessiman: I got that.
Dr. Cerise Morris: You got that? That's it.
Senator Duncan Jessiman: Were there were only four points?
Dr. Cerise Morris: No, there were six.
You have a copy of my brief, or you will have it. It just didn't get translated in time, but it is available to you.
The Joint Chair (Senator Landon Pearson): Thank you very much.
Ms. Claudette Guilmaine (Social Worker and Family Mediator, Ordre professionnel des travailleurs sociaux du Québec): Good morning, ladies and gentlemen. Thank you very much for permitting me to speak this morning on a subject that is close to my heart. I am pleased to hear that your basic principles are those that my practice has been based on for more than 20 years. I particularly appreciated the remarks by my colleague here, who is also a social worker.
I have also done some research on shared custody. I have tabled my book. It's one of the issues I would like to address today.
The recommendations that I humbly wish to submit to you concern first the terminology that we use with parents and children who are going through one of the most difficult periods in their lives, that is the break-up of their family. Since one of my basic beliefs is that the family should continue after the break-up, I'm going to tell you why I think it is also important to change the terminology.
My second recommendation concerns the tools which, in my view, are necessary and that we should more generally offer and make accessible to all parents and children for educational and preventive purposes.
I was very pleased by one thought expressed by Madam Justice Richer of Montreal, who believes very strongly in mediation and who drew an original comparison by saying that the decisions of the Court, with all due respect to that institution, are somewhat like army uniforms: for a soldier, they are always too big or too small. On the other hand, mediation offers an approach based on the specific needs and situation of each family. Having been a family mediator since 1989, I believe this is a path that should be favoured. Decision-making power should increasingly be given back to parents and families.
My proposal regarding changes to the terminology used is based, among other things, on a paper I have submitted entitled, Parenting Plans: A Concept Whose Time Has Come. This paper explains the principles that should guide us and how they contradict the legal terminology still in current use, despite the message of collaboration and cooperation we are increasingly trying to transmit to parents and families.
To put it more clearly, I will ask you to consider that you are a parent—those who already are parents will have no trouble doing that—a loving parent who, together with your spouse, has been involved with your children throughout your life and who suddenly makes an adult decision or feels the consequences of that decision, since marital life is no longer possible and must be terminated. This is a sad decision full of consequences both for the parents and for the children.
In these circumstances... I'm sorry. I was distracted and I lost my train of thought.
The Joint Chair (Senator Landon Pearson): Don't worry. That happens to us often.
Senator Duncan Jessiman: What I was saying is that this committee is gender-biased.
Some hon. members: Oh, oh.
Ms. Claudette Guilmaine: It's gender....
Senator Duncan Jessiman: Biased. I'm the only male.
Voices: Oh, oh.
Ms. Claudette Guilmaine: Oh, poor you. I know you will understand very well. You will get a lot of support.
Senator Duncan Jessiman: Thank you. Dear, oh dear!
Ms. Claudette Guilmaine: A moment ago, I was talking to other people who are here. You're going to hear other opinions that, somewhat as my colleague just said, will reflect the fact that there are concerns among both groups of men and groups of women, but also common interests and concerns focused on the interests of children.
I believe my idea is an original one. I'm going to tell you a brief story which I think clearly explains why words are also important. When we talk about custody and access, in our minds, we readily make associations in terms of power, control and property.
These are entirely adequate terms when we're talking about property, personal and real property, but how can we use them when we talk about children, children whom we love, with whom we have a meaningful relationship, a relationship that we sometimes want to improve after a break-up? For some parents, the break-up is an opportunity for personal questioning and reflection.
I've seen fathers and mothers who were honestly and genuinely motivated by a desire to get closer to their children at this time of crisis, when they felt that everything was crumbling under their feet.
So I believe in this motivation, which may be real and which must be supported, not only by our institutions, but also by our words and deeds.
In mediation, I always use the term "parental plan" to depolarize things. From the moment we talk about the person who is going to have custody, we're ultimately talking about the person who is going to win, who is going to have control, who is going to be able to decide whether or not it's in the child's interests to go and spend a weekend with Mum or Dad, or replace the planned visit because there's another activity that would be better for the child. So we're talking about the person who is going to decide.
My impression is that, with this terminology, we're undermining our own desire to give power and responsibility back to parents. That's why I think it's a trap. Even now, as a mediator, all the documents I have, all the forms I have to complete... My colleague suggested separating financial issues from the parental plan. I think that's wise, but all this is very much interrelated. You can't be completely pure. We know that a parent's responsibility also includes the responsibility to meet the child's needs. So financial issues are attached to that. The great challenge is precisely to be mature enough to be able to separate marital issues from parental issues. As mediators and caseworkers, we have to support the parents in this so difficult, but so important task.
Research has proven that what is harmful for the child is not the break-up as such, but rather the continued parental conflict. We can even go so far as to say the parental alienation. At that point, the damage is really catastrophic and long term. We know that children are very vulnerable because the parents are often the two people they love most in the world. When you compromise this relationship through marital conflict, you are using your children as weapons of war.
We say we want to depolarize, dejudicialize and remove the conflict aspect. For this to happen, the terms we use have to further our ends. We have to set aside conflictual language which merely pours oil on the fire and strengthens the winner's desire for control.
I have written a book on shared custody. The term "shared custody" was chosen by the publisher because it's currently a popular term, one that people use. When you look at the issues of shared custody, unfortunately you see that there can be all kinds of motivations, including financial motivations and a desire to shirk responsibilities.
It's been said that, when it comes to words, we should separate what is important from what is not. And what is important is parental continuity. Our role as caseworkers and decision-makers is to see to the implementation of structures that will make it easier for parents to fulfil their responsibilities, but we must avoid falling into the trap by using a terminology that is now outmoded and still reflects attitudes we object to.
I'll tell you the story of the orange to illustrate my remarks. Three children are fighting over the last orange in a basket of fruit. The father, hoping to see justice done, tells the three children, "Let's divide it in three." Suddenly, the children stop fighting. After a brief pause, they start up again and the father steps in again and says, "What do you want me to do? There's only one orange left. The only thing I can do is divide it into equal parts." The eldest explains that they are doing a project at school and she needs orange peels to make embroidered potpourri bags to put in drawers and give as gifts. The little boy says, "We're doing an experiment with seeds; we're making things grow. It's a botanical experiment and I've only got one seed in my piece of orange." And the youngest is still crying because she's hungry and wants the entire orange. The father finally realizes that he didn't really take the children's needs into account. In his desire for justice, which was based solely on mathematical principles, he did his best: he divided the orange into three parts. Now that he understands his children's needs better, he could find solutions much more suited to the needs of the three children and they would be much more satisfied. The eldest could have all the peel and make all the sachets she wants, the boy could have all the seeds, plant them in the ground and do his experiment, and the youngest could enjoy the pulp of the orange.
That's our approach in mediation, and I believe this is also what has to be done with the legal terminology. The words have to be adjusted to avoid falling into mathematical calculations, particularly scales for setting support payments, the very laudable and positive purpose of which was to prevent the impoverishment of women and inequalities. As soon as we fall into knee-jerk solutions, we fall into a trap. We have to be careful. If we want to give responsibility back to parents, we have to give them the necessary flexibility and adopt the necessary terms and adequate structures.
The Joint Chair (Senator Landon Pearson): Excuse me Madam, have you almost finished?
Ms. Claudette Guilmaine: Yes, I've almost finished.
My second recommendation is that courses be given to parents who are separating. These would be well-organized sessions to explain reactions to break-ups between adults, between parents. This could be integrated into our family mediation structures through the courts. In my view, this would be a component to provide support and encouragement and to prevent the escalation of conflicts in break-up situations.
All the books that have been written on the subject... I tell you humbly that my book hasn't been translated into English and that I get the impression there's not a great deal of documentation to support parents who want to implement this kind of joint parental plan, which gives them both the time for leisure and the time for responsibility and the everyday upbringing of children. That is the humble wish I submit to you.
The Joint Chair (Senator Landon Pearson): Thank you very much. Now we'll go on to questions.
Senator Duncan Jessiman: To both of you, because you both dealt with this and it was part of what Dr. Morris said.... And actually, Dr. Bennett, across the way, has been trying to convince me that access and custody should be separate and apart from the responsibility of who pays what to whom. You have to explain that to me, because the act itself provides that both parents are responsible financially.
And then the guidelines, our guidelines—and I want to ask you both about your guidelines in Quebec—themselves provide for split custody and for shared custody. I'm sure you both know what split custody is: one parent takes one child and the other parent will maybe take two children. That's split custody.
You say you shouldn't discuss finance, but if you look at the guidelines.... In split custody, what they do is they ask this parent who has the one child what he earns, assuming it's a man who has one, and then he has to pay for two. So they decide that for two children he has to pay so much. So he's looking after one. You look at hers and she has to pay for one child. It's the difference of the two children and she's probably making less money. It automatically comes into being with split custody.
It's the same with shared custody. If the shared custody in Quebec, as I understand it—and you correct me if I'm wrong, because someone just told me this yesterday—amounts to more than 20%...if one of the parents has shared custody 20% of the time, there's an adjustment as to what is paid, and adjustment in your tables.
First, is that correct? Is that what those guidelines provide for? This comes from a lawyer from Quebec who said that yesterday. Do you understand that to be correct?
Ms. Claudette Guilmaine: I think so. Perhaps I should have been more careful and listened more closely to the interpretation.
If I understand correctly, I believe that it's said that shared custody is considered 80 percent of the time. The remaining 20 percent...
Senator Duncan Jessiman: You're saying that if it's 80% and 20%, it's shared?
Ms. Claudette Guilmaine: No. It's 40% and 60%, 40% and more.
Senator Duncan Jessiman: That's the federal guideline.
Ms. Claudette Guilmaine: That's shared custody.
Senator Duncan Jessiman: I know what the federal guidelines are.
Ms. Claudette Guilmaine: Oh, okay.
Senator Duncan Jessiman: But I was told yesterday.... Because the guidelines in Quebec are different from the guidelines of the federal government. The guidelines in Quebec take into account and look at both incomes—
Ms. Claudette Guilmaine: Yes.
Senator Duncan Jessiman: —the income of the custodial parent and the income of the non-custodial parent. But the federal guidelines do not look at the income of the custodial parent. The custodial parent, as far as the guidelines of Canada are concerned at the moment, could be earning $1 million a year and if the non-custodial parent was making $100,000, he would pay exactly the same amount to this custodial parent as if she were making nothing. They're different. And there have been a lot of complaints by non-custodial parents in the rest of Canada with respect to payments.
It has been explained to me that these guidelines are worked out on the basis that they assume that if the custodial parent is that well off, the children are going to benefit from it. That's been built in.
Ms. Claudette Guilmaine: Yes.
Senator Duncan Jessiman: And therefore the non-custodial parent shouldn't benefit. He still has a responsibility.
But my question to both of you.... Dr. Bennett and I have been having problems. I've had problems with her complaining about my wanting someone to explain to me why you have to ignore it. Because once you work out your parenting plan.... It would involve whose residence? Is the primary residence going to be one person's? Obviously it has to be one. Or if it's fifty-fifty, then each of them have primary residences.
But then you're going to say.... Let's say, as it usually is, when 85% to 90% of the time it's the woman, it will be her residence. Then we say all right, and how much of the time is she going to stay in the other residence? It's going to work out, you're going to say, “you come on Mondays or on Tuesdays and Thursdays every week or every second week”, or something like that. But when you work that out in your parenting plan, that is going to affect the amount of money that's paid, right?
Ms. Claudette Guilmaine: Yes.
Senator Duncan Jessiman: And all I'm saying to you is that we have to live in reality. It's nice to say “forget about the dollars”—
Ms. Claudette Guilmaine: No, no—
Senator Duncan Jessiman: Because that's what everybody looks at.
Dr. Cerise Morris: Could I respond just briefly? I think the points you've made are very important, serious, complex ones, and they're probably the whole focus of another committee structure or something.
My only point in relation to this is that children ought not to be used as pawns in that process, that the legal procedures dealing with support enforcement or child support should work as effectively and fairly and justly as possible. But in the meantime, it's not the children's fault if there's a dispute about payment or arrears.
Senator Duncan Jessiman: I agree with you.
Dr. Cerise Morris: Children ought not to be punished. In trying to punish or discipline the other parent, it's really the child in the middle of it who gets punished. That's my only point on this.
Senator Duncan Jessiman: I see.
Ms. Claudette Guilmaine: I'm as concerned as you are and I hope no one understood that I meant mediators should disregard the financial aspects. I believe that's part of the situation, as you say, and that it cannot be dissociated from the situation. However, there may be a special problem of which I was not aware, and that is that the ability of the two parents to pay is not considered.
In Quebec, when the parental plan is established, we take a look of the incomes of each parent, each parent's ability to pay, and then we consider the needs of the children. What were their standard of living, courses, activities and recreations? We always try to focus on the interests of the children. What was their standard of living? What activities do you now want to provide for them? What is each parent's ability to contribute to the welfare of the children?
That's why I say that the scales become traps, knee-jerk solutions, and that we lose the presence of mind to say: you are two parents, you have been responsible parents and you want to continue to be responsible parents. So let's start with a calculation like the one we did for the orange. Instead of dividing things up into thirds, let's look at the needs of the children. Do they need peel or pulp?
Senator Duncan Jessiman: Right. Oh no, I agree with that.
Ms. Claudette Guilmaine: Okay.
Senator Duncan Jessiman: I have one other question to both of you.
The Joint Chair (Senator Landon Pearson): Mr. Jessiman, you've gone long over your time.
Senator Duncan Jessiman: This is a small, tiny question.
The Joint Chair (Senator Landon Pearson): Very quickly, then.
Senator Duncan Jessiman: Okay.
You brought this up. You're suggesting that before they grant an order—and I assume you mean an order for separation or an order for divorce—then courses for the separating parents should be mandatory. Is that right?
Ms. Claudette Guilmaine: Yes, I would like that.
Senator Duncan Jessiman: Do you agree with that?
Dr. Cerise Morris: Yes, I would support that as well. I think it's essential.
Senator Duncan Jessiman: I think it's a good idea. You have my support there.
The Joint Chair (Senator Landon Pearson): Dr. Bennett.
Ms. Carolyn Bennett (St. Paul's, Lib.): We're glad you've come for the mediation between me and Senator Jessiman.
Voices: Oh, oh.
Ms. Carolyn Bennett: I enjoyed both presentations. As we come further down the process, I think the clarity picks up. I think here in Quebec obviously you have some good models.
In the mediation, or in trying to evolve a parenting plan that presumes that the child has a right to see both parents as much as they're able to...and I loved the orange analogy. It presumes that there's a customization that goes on.
Senator Jessiman and I do fight about the mathematics and the fairness. My feeling is that if you sort out on money alone, people can stop their full-time jobs, or you could work all of this out, if these things are linked, in terms of, “If I do this, then I get more of that”.
Yesterday, Mr. Solloway's presentation gave us the message that parenting plans must be sorted out in terms of residence, money, decision-making, and dispute resolution before you sign a parenting plan. We have to make sure all those four things are dealt with.
But we still need some direction. In my experience, having kids on the weekend costs way more than having them five days during the week. I think if judges or people who don't actually have kids don't get it, that the weekend is when you're at the bank machine every second hour.... If you do it on pure arithmetic in terms of hours and stopwatches, this isn't actually the way things work. There are expensive activities and less expensive activities.
I think with mediation, where there's somebody who actually understands what's going on, you will come to a customized solution that actually makes sense to the kid, not the math of stopwatched hours, or dollars assigned not based on reality.
I guess I was hoping for some direction as to whether the amount of time spent could be separately linked. Can we ditch all these charts and let it go to the mediator to sort out these things in a customized way? In other words, who has the time to spend, including grandparents and so on? Who has the money to spend? Sending support payments to a millionaire seems to be a bad thing for the kid, because it means when the kid's in the other household, there's less money to spend in that household.
I guess I would like some help here. Do you think with mediation and with very expert judges we could get rid of all this other stuff?
Ms. Claudette Guilmaine: I think so. I don't know whether I'm being optimistic or naive, but experiments are currently being conducted in that direction. You say that the weekend parent can quickly be identified at the automatic bank teller and that that's very frustrating. When you address the situation with respect to the division of time, responsibilities and decisions, you tend less to fall into these traps, and the weekend parent can play a fuller role. During the week, that parent can assume certain responsibility for care, school and so on. Yes, it's possible to prepare a parental plan that takes account of the two issues, but that, as you say, prevents the calculation of time from becoming the main motivation when all the rest is becoming meaningless.
The scale can help, but I get the impression we should set it aside somewhat at the outset and consult it only later if we need it as a reference point. Using it from the outset is like falling into a trap by considering established criteria that are separate from the parents.
The intention was positive, but we don't necessarily achieve the purpose if it's used first off in mediation. I would even recommend that all these tools be put on the back burner: use them if you need them. We should proceed much more on the basis of needs and of the particular situation of each family that we meet in mediation.
I don't know whether I correctly understood your question. Is there anything else?
Ms. Carolyn Bennett: Absolutely. So often what we've been hearing in these hearings is that sometimes a judge is making decisions in 45 minutes. They don't actually understand the reality of a mother insisting on being able to take the child to the hockey game when the kid actually wants the dad there, because only the dad knows whether it was a good ref or a bad ref. The conversation is a different one after a hockey game if the dad took them rather than the mom. So we're fighting about time slots instead of what the kid would actually prefer.
To both of you, I feel it was a pleasure to have you here. I wish all of the couples in trouble had the benefit of both your services.
The Joint Chair (Senator Landon Pearson): Thank you.
Ms. Caroline St-Hilaire (Longueuil, BQ): We were given some figures. We were told that 80 to 90 percent of couples settled out of court and that 10 to 20 percent of cases went before the courts. In those cases, I imagine that mediation is more difficult. What would your recommendations be for those specific cases? Shared custody was put to us as an initial measure. I don't know what your recommendations are in that regard.
Ms. Claudette Guilmaine: If I understand you correctly, you are concerned about the 15 to 20 percent of couples who still have contested divorces and about the way we could help them focus on the interests of the children. I believe that's why the act provided that at least one mandatory information session could be requested. In Quebec, that's how things work. It's not mediation itself that is mandatory, but there is an obligation for parents to be informed about the nature of mediation to see whether it might be applicable to their case.
Unfortunately, to date, in the case of parents I have met in information sessions whose cases were being reviewed or who were in highly contested situations, an entire dynamic had been established and positions were often well formed and difficult to undo. However, I believe it is nevertheless worth a try. Among other things, if there were more regular courses after every break-up, we would be on the road to prevention. We would be seeing parents before things got to this point.
I worked for the Superior Court in an expert capacity for 12 and a half years. When we had recommendations to make to the Court in these highly conflictual situations, time and legal proceedings played against the children's interests. The proceedings were very long, and we went from one expert witness to another. All kinds of legal tricks and manoeuvres were used to delay, to seek continuances and so on. During those months, the children were deprived of the contact of one of their parents. Subsequently, it was very difficult to restore that contact, even through supervised visits, deprogramming or therapeutic help for the children. It is very difficult to help parents who don't recognize this difficulty and who are so caught up in their conflict that the only chance for survival is to terminate the child's contact with the other parent. At that point, you're straying very far from the actual problem and are engaging in personal injury, unfinished business, lasting conflict in which the children are unfortunately being used.
Having said that, however, I believe that mediation must be attempted, but that we have to take action a little more upstream, for example, through awareness courses, through support for these parents by offering them individual assistance at an earlier stage so that they can understand how it hurts to be left, to be betrayed, to be abandoned, to be angry against one's former spouse, but continue to see that person as the father or mother of their children.
The Joint Chair (Senator Landon Pearson): Thank you. Senator Pépin.
Senator Lucie Pépin (Shawinigan, Lib.): What concerns me is not so much the monetary side as the emotional side. Since this committee started up, we've been talking about physical and legal shared custody, saying that it was probably the best solution.
I won't conceal from you the fact that I have certain reservations on this point. Considerable research has been conducted on money and so on, but has any been done on children from the ages of two to 12 who are shuttled back and forth: two weeks with Mum, two weeks with Dad? It's not because I want to deny fathers' rights. I'm very happy to see that there is a new generation of men who want to get involved in the custody of their children. In my generation, there were a number of single-parent women who did not even receive support payments.
I want to be completely fair with both, but I'm putting myself in the child's shoes. When very young children are living out of a suitcase for I don't know how many years, doesn't that have an emotional impact? There are the distances that have to be travelled and, in many cases, Mom doesn't live the same way as Dad.
Of course, I would like to make both parents accessible. When the children become adolescents or a little younger, they can express their preferences, but when this is imposed on very young children, isn't there an emotional impact? Has research been done on this? This concerns me very much. I put the question to both witnesses.
Dr. Cerise Morris: Excellent question. This has been very much an area of interest for me in terms of my reading of the literature and a relatively small study I conducted in the eighties.
In the seventies and eighties, there was much more optimism about shared custody as the solution. It sounds, in principle, so reasonable and so equitable and so forth. Later research has put that into question—not fundamentally, but it has become very clear that it's not an option for everyone. It's probably a minority model in terms of full 50-50, or even 60-40, joint custody. You have to have a certain kind of personality, maturity level, emotional make-up, if you will, and living situation to sustain it. I've seen it work very well—in fact, I lived it myself for a ten-year period—but I don't think it should be imposed. I don't think one solution fits all.
With regard to factoring in age, I think the more or less equal sharing is most problematic for very young children and for adolescents. When my son became an adolescent that's exactly the time he got tired of schlepping back and forth. He wanted to make his own decisions. He wanted to be where his friends were, with the hockey team—stuff like that.
I think if you're going that route, first of all, people should really want it, and indicate that they've thought it through in a sensible way. There are so many issues you don't anticipate until you really confront them.
Then there's the principle of flexibility. That has to be there. What worked when the child was ten won't be very useful when they're fifteen. They'll just say no, they don't like it.
With very young children of two or three it can be imposed on them—they have no say, of course—but I think it's questionable sometimes in terms of the disorientation. Time seems much longer to very young children, and it can be confusing.
Senator Lucie Pépin: Madam, do you have anything to add to that?
Ms. Claudette Guilmaine: Yes, please. I'm also concerned by the issue you've raised. In fact, I believe research must continue, particularly on very young children. Furthermore, there is literature somewhat supporting this argument, including the paper by Joan Kelly, who talks about the resistance by professionals, including legal and psychosocial professionals, to shared custody and that warns us against comparisons which are sometimes somewhat faulty. Wouldn't we be demanding more of parents who have shared custody than of parents who had the traditional sole custody? No one has ever questioned the abilities necessary to have sole custody, I would say. Nevertheless, that parent had more responsibilities since there was very little sharing with the other parent and very little rebalancing, as Judge Mayrand would say.
So I think that's the case. When we say that this is the arrangement that is perhaps most like the one the child knew when the parents were together, that's definitely another argument. Furthermore, since nothing is certain, we should remain prudent and open.
We know that the State of California had a presumption in favour of shared custody a few years ago. Today, it has turned that decision around and adjusted things. There can be abuses. As we said earlier, as soon as things become automatic... It should be kept in mind that we are addressing a human problem, in which the answers can be as firm and final as in other fields.
As for me, I believe that parental relations—perhaps this answers Ms. Bennett's question as well—must be seen as a living reality, in movement, to which we always have to adapt.
Senator Lucie Pépin: Which is flexible.
Ms. Claudette Guilmaine: Which is flexible. This reality must not be seen in terms of a decision that is made and remains unchanged until the child is 18 years old, until his majority, without being reviewed.
It goes against nature. We know that a so-called intact family constantly has to negotiate because children's needs change. This doesn't change simply because there are two family units, the father's and the mother's. This takes all the more concentration.
At that point, mediation can be considered not only at the time of the break-up, but at all stages where there is a transition, a change or the situation is questioned.
Senator Lucie Pépin: When there are new spouses, too.
Ms. Claudette Guilmaine: Oh yes! When the family is reconstituted it can completely destabilize these agreements. Then it is important to put the interests of the child back at the centre of the debate and to standardize certain reactions, to have realistic expectations, which are a little lower, but which are nevertheless livable for the child and feasible.
We know that the previous arrangement produced exhausted mothers and absent fathers. So, as you say, perhaps it wasn't ideal.
There's also the difference between the values and conception of discipline of the two parents. One father that I interviewed in the course of my research told me it was important that parents not jump 10 stages from one week to the next or every two weeks. There should be a certain amount of cooperation, but you also have to be aware that these differences exist even in a family where the two parents live together. Children learn that it isn't true that their mothers and fathers want the same thing. They also know perfectly well how to go about getting what they want.
Senator Lucie Pépin: You've also opened another door. We are talking about the new way...
The Joint Chair (Senator Landon Pearson): It's a question of how to share all the questions.
Senator Duncan Jessiman: When you talk about California and “joint”, it's not joint physical custody; it's joint custody, as opposed to shared physical custody. They've gone back only to say that the courts and the family should work it out and there shouldn't be any presumption at all. There shouldn't be joint anything; let the facts come out in the courts and the families work it out.
Ms. Claudette Guilmaine: Yes. However, that gives me the opportunity to say that the states of Washington, Florida and Maine intend to change the terminology. They're not just talking about it. Since 1982, there has been talk about using "parental plan" instead of "custody", "access" and "visiting rights", all terms that are reductionist and conflictual.
The Joint Chair (Senator Landon Pearson): Senator Cools.
Do you want to come back at the end, Senator Jessiman?
Ms. Claudette Guilmaine: I'm sorry, I didn't want to hurt your feelings.
The Joint Chair (Senator Landon Pearson): But we have five minutes per questioner, and you had already—
Senator Anne C. Cools (Toronto Centre, Lib.): I want to thank the witnesses. I do not know the second witness, but I would like to inform colleagues here that Dr. Morris has been working on these issues for many years in the city of Montreal.
Having said that, I had one or two questions, but I will be quite happy to defer my time so that Senator Pépin can continue.
The Joint Chair (Senator Landon Pearson): Okay.
Senator Lucie Pépin: There is another point. We're talking about a new approach, and yet there's one problem that has not been solved. Currently, single-parent families are headed by women who live in poverty, and more than 60 percent of fathers don't make their support payments. So what do we do? It's all very well to say that we should make a change, but we aren't going to abandon all these people in the condition they're in. What's the right approach?
Dr. Cerise Morris: I can only say, get tough.
In terms of parental responsibility, I think it's appalling, though when you deconstruct the statistics such as you referred to, there are many elements and stories and emotional truths and a lot of baggage that adds up to a statistic that's as shocking as that one is. And I don't want to seem to demonize parents who are not meeting their responsibilities. I think it's shocking and serious and needs to be dealt with in an extremely firm way by the levels of government—and I presume it's more on the provincial level that it's actually enforced—and that's apart from the question of access. I know, in real terms, they get entangled—how could they not—but conceptually that's something else.
Of course people who have fathered or given birth to children ought to, under all normal circumstances, support them to the best of their ability, and to let people off the hook by kind of erratic or soft application of the law is not the solution. So on that one, I really support very strong measures. But if you go behind the statistics, you still have to think about all of the failures, misconceptions, inadequate preparation for parenting—
Senator Lucie Pépin: Oh yes, I agree.
Dr. Cerise Morris: —how people handle their disappointment, their grief, their sense of betrayal.
Senator Lucie Pépin: Mediation?
Dr. Cerise Morris: The law is a clumsy instrument when we're dealing with the complexity of human emotions, but—
Senator Lucie Pépin: We send them to mediation.
Dr. Cerise Morris: Well, do that for sure.
Senator Lucie Pépin: Thank you.
The Joint Chair (Senator Landon Pearson): Ms. St-Jacques.
Ms. Diane St-Jacques (Shefford, PC): I liked your comparison with the orange. I think it is important to determine the best interests of the children and to learn to understand them. However, we know that, when it comes to divorce, it's hard to know how to determine what is in the best interests of the children. Children are often influenced by the parent who has been hurt or abandoned. They may take sides with the father or the mother. How do you find a way to determine what is really in their best interests?
That's what I wonder. When they're young, it's hard to know what their best interests are. When there are three children, the best interest is not necessarily the same for all three. How do you manage to find what corresponds most closely with their best interests?
Ms. Claudette Guilmaine: There's no magic formula. This is a big challenge and there are varying degrees of success, as we said. Depending whether the family is going through a more or less difficult situation, many factors come into play. It also depends on the existing support network, forces already existing in the family or that were absent. Often the break-up can result in disorganization that is all the greater depending on the difficulties experienced in the family.
The mediator's work is really to act as the parent. In my orange story, the ultimate idea was that things should be reviewed, but with parents, while being aware that, in these moments of crisis, they are not performing at their best in their parental role. In that sense, we can support them and acknowledge the fact that a period of crisis is not the best time to show off one's abilities as a parent.
However, parents must also be completely aware and have the humility to say to themselves that, if they appeal to professionals to help and encourage them in their efforts, it's to have someone switch on the red light when they head off on the wrong track. When you experience emotions very intensely, you can easily become confused and, at one point, forget the children or even use them. That's what I've seen it in the Quebec Direction de la protection de l'enfant, where I also work on reporting.
Even the expression "in the interests of the child" can be used in completely opposite ways. On this pretext, parents will report negligence, physical abuse or sexual abuse. We have witnessed the entire range of charges, even up to parental alienation, as was mentioned earlier. In this sense, the mediator's role is really to support each of these people who are in difficulty.
You talked about parents who feel more vulnerable, who feel they are losing or have been abandoned. There's always one parent who takes the decision a little harder than the other. But ultimately, what I tell them is that there are two losers. It's not true that, with mediation, you wind up with two winners. You are in a situation of crisis and of loss. People are mourning the ideal family. People who are just starting out in life rarely consider that one day they might no longer be together. There is mourning, unavoidable circumstances, financial loss and emotional loss. The situation must be accepted and parents must feel that it's not because this situation prevails for the moment that you have to let everything become muddled and that the children have to be caught up in it all. This exercise, which starts in mediation, must continue over the coming years. I don't believe in mediation as just a short-term affair, which you resort to once to settle the matter. Instead it should be like a reflex or a form of assistance that is accessible at various times, when parents feel they need it, among other things, to readjust the parental plan.
Ms. Diane St-Jacques: Needs can change.
Ms. Claudette Guilmaine: Yes, that's life; both adults and children evolve.
Ms. Diane St-Jacques: Thank you.
The Joint Chair (Senator Landon Pearson): Thank you very much.
I'd like to thank you both very much for having come. It was a very good start to our morning. We've all appreciated what you had to say. Thank you.
The Joint Chair (Mr. Roger Gallaway): Welcome, witnesses. I should also say that we're moving a little slowly this morning. As you've noticed, people are not moving as quickly. It's the end of the week and it's been a very long week, after a week of this.
Ms. Denyse Côté (Department of Social Work, University of Quebec at Hull): So I'll wake you up.
The Joint Chair (Mr. Roger Gallaway): Good.
We have as witnesses before us, from the University of Quebec in Hull, the Department of Social Work, Denyse Côté; and from the law firm of Goldwater Dubé, Anne France Goldwater.
We don't have any formal order of going. I'm assuming you were here earlier to see how we operate. You have about five minutes and then there will be a round of questions to round out the hour. I'll invite Ms. Goldwater to go first.
Ms. Anne France Goldwater (Barrister, Family Law, Goldwater Dubé): I have been practising family law in this province and this is my seventeenth year of practice. I will certainly try to steer away from the anecdotal, because I don't think it helps the hearings when we get bogged down in individual stories as opposed to what we should understand globally about the situation of children in this country.
I'm going to provide you with two texts that I've written. One is on parental alienation syndrome; it's a text I published a number of years ago that speaks to a concept we see too often in divorce where children become polarized between their parents and live a schism where they deny contact with one parent's family completely, and what happens in those cases.
Another article I'm going to provide you with deals with the result of the Supreme Court decision in Gordon v. Goertz on relocation cases and what's happening in Canada in situations where a custodial parent wants to move. I think you should know as a premise that no matter what the Supreme Court thinks it has told us in Gordon and Goertz, the reality being lived across this country is that the person who has custody of children rules, determines where they live and what will happen to them, and the non-custodial parent has not much to say.
The reality in this country is that the parent to whom custody is attributed, generally the mother, finds herself vested with the cloak of power that does not exist in marriage and that indeed is anathema to what marriage and the family is, which is the cohesion of decision-making between a man and a woman who come together presumably to bear a family and to share the responsibilities of child-rearing.
Statistics and non-anecdotal evidence show that the single greatest determinant of the outcome for a child in terms of career and education is the marital status of a mother. So even where we lose fathers to deaths, never mind divorce, that determines what happens to children.
The Joint Chair (Mr. Roger Gallaway): Sorry to interrupt, but I wonder if you could just talk a little more slowly. The translators are having a problem.
Ms. Anne France Goldwater: Maybe I should simultaneously translate into French. I could probably do it as quickly.
I'm sorry, I'll slow down.
What's important is that we recognize as a society, or we take as a given, that we produce mothers and fathers and it is a role we all aspire to when we attain adulthood. When we marry, we become husbands and wives. We believe there is a sharing of authority and participation in a marriage, and when we become parents we assume roles as fathers and mothers that can be different and complementary, but again with an equality of input in our children's lives.
There is something artificial and morally reprehensible that the structure of our judicial system creates a new status, the custody parent and the access parent, after divorce. This speaks to the concept, which the Supreme Court says, that there can only be one psychological parent. It is nonsense and contrary to the psychological reality of children.
We create the status of the custodial parent, the one with the power, and the access parent, who like a prisoner in a penitentiary has calculated minutes to be able to parent his child. Unfortunately, it's a reality that happens to have a division by sex, because generally custodial parents are mothers.
If we believe it's appropriate in this society to continue to marginalize fathers in the upbringing of children, we may see our society take the kind of wicked turn we see in the United States in the inner cities. We see what happens to populations of children where fathers are absent.
I will close my five minutes by saying that if the populace knew what Claire L'Heureux-Dubé had to say in the case of Gordon and Goertz.... I will quote one sentence where she justifies why custodial parents, mothers, should have all the power. She says:
Important as contact with the non-custodial parent may
be, it should be noted that not all experts agree on
the weight to be given to such contact in assessing the
best interests of children. Several studies suggest
that, after parental separation, “the visits by the
non-custodial parent will [likely] gradually diminish or
She makes that statement to justify why we should continue to marginalize fathers.
When this committee was first struck for the issue of child support, we were looking at the reality that after divorce too many fathers stopped paying child support, and we as Canadians said that was not acceptable. If the statistics are indeed showing us that after divorce, fathers—by reason of the limits of the judicial system, through loss of interest, through entrenchment by mothers and whatever the causes may be—are diminishing their involvement in the lives of Canadian children, we do a grave disservice accepting this as a reality and saying that fathers aren't interested and we're going to disregard them. We didn't do that with child support. We shouldn't do it here with custody and access orders.
The Joint Chair (Mr. Roger Gallaway): Thank you very much.
Ms. Denyse Côté: Thank you for inviting me to make this presentation.
I have completed a thesis in sociology on the shared physical custody of children. In that thesis, I address this question at greater length than I had ever expected. I have been reviewing the literature and conducting various studies on the subject for at least 15 years.
In the five minutes allotted to me, I would like to present the gist of the study I've conducted on the parents who practise shared physical custody, which I define as being separate physical custody, half and half from a time standpoint, and thus 50-50. The period may be one week and one week, two weeks and two weeks, etc. To the best of my knowledge, this is the only research that has been conducted on this subject and from this perspective in Quebec and in Canada. I have done this from the standpoint of the care of children, that is to say from standpoint of care giving, which encompasses the day-to-day care and upbringing of children.
First it must be understood that there is a very great confusion in the literature between shared physical custody and shared legal custody, although the issue arises differently from a legal standpoint in Quebec. However, I won't dwell on this distinction since I'm not a lawyer. This confusion reigns in most studies since there's a tendency to include in the definition of shared custody situations in which access is fairly broad; for example, where a non-custodial father has access to the child three or four weekends a month.
The sample I gathered included parents who had divided time in a symmetrical way and focused on the life these people live. Broad, regular access was not confused with shared physical access. I assumed that these people exercised what was ultimately our ideal of a fairness toward which our society should tend, that is a complete sharing of the upbringing of children.
The study focused on children from birth to 12 years of age who were subject to shared physical custody. I stopped at the age when they entered high school and I interviewed children from ages six to 12. I also interviewed the parents of what I called "the custody unit", that is a mother and father who have custody together, to try to determine their views on the arrangement they themselves had negotiated.
Since we do not have enough time, I will tell you that it appeared from this study that this is a very complex arrangement that can work well only if it is entered into voluntarily. It requires the coordination of a very large number of logistical factors, good will and the shared upbringing of the children.
As was said during the previous presentations, when situations arise where there are conflicts, violence and factors that make an agreement on the upbringing of the child impossible, shared physical custody becomes impossible.
However, what parents focus on is really the interests of the child. Shared physical custody coincides with the ideal sought when we talk about the best interests of the child, that is the presence of the father and the mother.
I carefully studied the literature, but I found no statistics. After making many telephone calls and other approaches to government employees and correspondence, I observed that we cannot rely on the statistics that Statistics Canada provides us on joint custody. The statistics we are given are those concerning agreements reached in Court and they do not reflect what is happening in real life.
You mentioned California, which reversed its presumption of shared legal custody. We observed, among other things, that the number of single-parent families actually headed by women were appreciably the same; that is to say that the care and upbringing of children was done by women, even if their legal status had changed.
However, I can say that there is currently shared physical custody in approximately five to seven percent of cases. These are very limited figures, which vary across the different studies. They never exceed 10 percent. These are cases in which the parents have negotiated these arrangements themselves. Rarely has an outside authority imposed these arrangements on them, since they completely change people's lives.
The people I interviewed were confident of their mutual parental abilities and of what each could do. For example, if during their life together, the mother had been more involved, she was confident that the father could develop his parental skills relatively quickly. The father and the mother shared the conviction that the father's presence was necessary.
Since time is running out, I will tell you that we found a new configuration, a new way of life. Whereas in the early 1980s, it was feared that children would be affected, we now observe, on the contrary, that they benefit from the presence of two very active parents, which is not necessarily consistent with what is seen in the population as a whole. In these cases, there are two very active parents who agree to lead a new way of life in which the children very often divide their time between two homes. Both parents must live in the same place and agree not to be mobile as long as they share custody. Otherwise this would be impossible. They must establish arrangements and terms and conditions. This situation thus affects their entry into the job market. Shared physical custody can only work if both parents agree to it. If there are conflicts or if a mother does not agree not to live with her child full time, it will be very difficult. In such cases, shared physical custody does not work.
In the cases I studied, parents appeared to comply with the agreements as regards the division of time, although, as they traditionally did, women continued to put more effort into their children, for example, in terms of extra time and vacation. Although the division was much more equal than elsewhere, it was nevertheless the women who invested more in the children financially. However, the fathers were extremely active fathers in all respects. The mothers remained the managers of the arrangement and conducted the mediation with the school. You can't change society overnight. Women have traditionally been the primary care givers. That's changing, but it won't change from one day to the next.
The situation I studied is a new situation which responds to the new models we have of fatherhood. Fathers are no longer authoritarian figures or sole providers, but can develop a very personal and direct relationship, unmediated by the mother, with their children.
In closing, there is no literature stating that shared physical custody is better than other types of custody. We have to be very careful: every other form of custody also has its disadvantages. What is important is the parents' ability to reach an agreement and live with their arrangement on a day-to-day basis.
There is no reason to suggest that this method is necessarily better for men—but I don't really want to speak for men—or for women. Everything depends on their situation and their ability to enter the labour market, since shared physical custody implies that women, who generally earn lower incomes, are able to bear this arrangement. It's not women with very high incomes who have shared physical custody of their children, but rather women who regularly work in the job market.
I'll close with those remarks. I apologize for perhaps going beyond the time that was allotted to me.
The Joint Chair (Mr. Roger Gallaway): We're going to start our round of questions with Mr. Forseth.
Mr. Paul Forseth (New Westminster—Coquitlam—Burnaby, Ref.): Thank you.
I'd like to just ask Anne Goldwater a question. I'll follow up on your thought that a new legal context is created. I think the words you used were “cloak of power”.
When you get to the situation where orders are relied upon because parents are in high conflict, low flexibility, low trust, low cooperation with each other, they then need to rely on the terms of a piece of paper because they are unable to be real with each other. Then when this paper is relied upon and is being ignored, how does the parent have an enforcement of access, such as when a parent is not cooperating with even the minimal standards of the order itself or the filed agreement? What are the grades or levels of enforcement and the mechanism that should be used? We heard evidence of how orders have been given even after an expensive trial, but in effect they're not worth the paper they're written on. I would like you to address that specific question.
Ms. Anne France Goldwater: It's interesting you ask me that, because indeed Nathalie Morissette of this committee invited me to submit the case law decided in the province of Quebec exactly on the subject of the execution of custody and access orders. So I did that research. I just submitted it a few days ago. I imagine you'll be receiving it.
You'll see indeed that the judicial system is uniquely not designed to enforce its own custody and access orders in the current system, in the structure we've created.
As long as you change the status and as long as you say that mothers and fathers don't exist any more.... Remember that we're erasing the words “mother” and “father” from the language of children's lives. We now say that there are two animals. There's the custodial one: this is the person with the authority, the one running the business. Then there's the minority shareholder. I shouldn't say that, because minority shareholders nowadays have more recourse in corporate law, the recourse of oppression, than a non-custodial or access father has.
The access parent is reduced to a state of impotence. I'm sure it's quite particularly galling, and forgive my semantics for fathers, but the reality is that when you create the two statuses, the courts don't do anything. Their only course, because they require a mother to do something, is a contempt citation. You saw what just happened. I believe there was just a case in the ROC, which is the rest of Canada—forgive me—in which a mother was jailed for the failure to respect an access order. Women's groups came out. There was an outcry. They asked that she be released.
In this province, a woman right now is about to be sentenced for having defrauded her husband of tens of thousands of dollars and having hidden their child in a women's shelter for five days. The crown is asking for this woman to be sentenced to two years less a day in jail specifically for the fraud. After all, it's easier to punish a woman for fraud than for the fact that she hid this child from the father. For five days, he didn't know if his child was alive or dead.
You're more likely to put the woman in jail for the two years for what she did with the money than what she did with the child. And yet women's groups were sitting in that criminal courtroom defending this mother because they believe that she was somehow hard done by.
In a contempt citation, if you take a mother who is otherwise taking care of her child who's not otherwise manifestly abusive and you put her in front of a superior court judge and he wants to cite her for contempt because she shows no respect for the father, then what are you doing? The judge's point of view is that he can't put the woman in jail because who's going to take care of the child?
It's such an ineffective concept. What you must do—this is the thesis I would present to you—is once and for all you must eliminate from our language the words “custody” and “access rights”. The meaning of those words is much more pernicious in the ROC than in Quebec, because here we don't have the words “access rights”.
I challenge you to take our Civil Code and find the word droit d'accès, or visiting rights. It doesn't exist. Our judges aren't intellectual enough to notice it, but it doesn't exist. I shake that code at them every time. We only have garde, which is a smaller word than “custody”, and autorité parentale, which is “parental authority”.
I think that the better words, the more evolved words that we should use across Canada are “mothers stay mothers, fathers stay fathers” as Madame Côté said. There will always be differences in what interests mothers and fathers with their kids. We should talk about residential time and decision-making. Have a parenting plan.
At that point, it doesn't become an issue of mother not respecting the access order, because there is no access order.
Mr. Paul Forseth: Okay, so let's say that the main day-to-day care and control residence happens to be with the mother, but the father is not following the parenting plan. The parenting plan they agreed to—they might have even written it on a piece of paper and filed it at the Supreme Court—is being disobeyed. Then where is that other parent? What do they do?
Ms. Anne France Goldwater: We are going to have to find a system of enforcement for the transition of children that's outside the police, which is the coercive form, because there are too many fathers who are in a position where they have to come literally with their judgments and court orders. Or we could decide that we would devolve to provincial youth protection authorities the specific task of intervening in cases where you have a day of transition from the mother's home to the father's home and someone's not respecting it. Or you have to return to court.
What we can't have is a coercive system where we rely on contempt citations and the police, because it doesn't work. In any event, look at the police's point of view. Here's the prejudice all the time. Say a guy comes up to the police station and presents his joint custody order. It's time for his seven days. Believe me, the police will intervene. They can lay charges of kidnapping if you have to go that far.
Mr. Paul Forseth: The experience is that it's not the case because the police say they can't know that this is the latest order in any event. They just say you have to go see a lawyer; they can't help you. There's no specific direction in that order that says an officer shall go apprehend.
Ms. Anne France Goldwater: In alienation cases—I have my article here—I have asked specifically for police officers to have the authority to intervene.
I merely point out that I've never had a police officer complain to me that he's worried the judgment's not current. A police officer will complain that when they view a father as an access parent, they're less likely to intervene. If it's a custodial order, they have as a reflex the Criminal Code.
Here's the joke of it. Say you're a dad and you have no access at all. You're just a father, and it's a custody access situation because your wife absconds with the kids. The Criminal Code authorizes you to lay a charge of kidnapping because there's no custody order. Once there is a custody order, that's it. But once you're just an access parent, you don't have that protection of the article in the Criminal Code pertaining to kidnapping. It protects custody orders; it doesn't protect anything else.
Mr. Paul Forseth: Now, I'm somewhat familiar with all these kinds of intricate permutations, but I still want to get to the kind of position the committee has to wrap itself around in terms of what we're going to recommend as some kind of a pragmatic solution out of this. Even if we go to the parenting plans and so on at some point, what do we do with someone who wants to get involved in this PAS, parental alienation syndrome? How does the parent who is being left out legally respond rather than just walking away?
Ms. Anne France Goldwater: You have to recognize that the parental alienation syndrome is a process. You have to recognize that elements of alienation can exist in many families. What you're asking me to draw my attention to may be some of the extreme cases I dealt with because I pleaded those cases and I wrote about those cases, but we're trying to address the needs of the majority of Canadians.
When you get to extreme cases of parental alienation—I've been involved with them—it's nothing less than a change of custody that will help. That change of custody can only help is if it's done soon enough, before the child is too entrenched. But that's such a small minority of cases. Heavens, there are even more joint custody cases than there are extreme alienation cases. What we want to do is create an atmosphere societally that is less propitious for the development of parental alienation, a society that doesn't sanction fathers walking away.
You have to understand what you live. I represent a father and he asks for custody and he gets custody. He can only ask for it if he shows how he's totally access-friendly. He has to offer the wife unlimited access. If the judge goes so far as to give access to a father outside a case of abuse by a mother, the woman has access to her heart's content. When a woman has custody, you send up cookie-cutter solutions.
The judges are fantastic on the restricted cases, the cases when the mother is being obnoxious, or where a father doesn't have much custody and he's trying to do more and he's not such a great dad but we're trying to encourage him. Judges there will be totally cool about giving the dad every second weekend and giving him the Wednesday night and the off-week, because they're coming from the position of the not-so-great dads, and they'll be very protective and they'll come down hard on obnoxious mothers.
When you come to the other end, the involved fathers, the fathers who want to be real parents, all the woman has to do is stand and say “I don't get along with the man. He diminished me as a woman. He fought with me. We didn't get along well enough to maintain our marriage. Joint custody is out of the question.”
In the biggest case we have in the province of Quebec, the case of Victor and Echenberg, it took 150 days of trial on the subject of joint custody for the court to conclude that the woman doesn't want it, so we're not going to impose it. The father was given large access rights, and he put down maybe $2 million between his fees and his wife's legal fees to get to no result.
The one thing I would call into question were Madame Côté's views that I think are important with respect to joint custody. I think we have a real lack of statistics. If we had more statistics, we would know more. What are the successful fathers doing? How are the fathers who face obstruction by mothers succeeding outside the judicial system, the guys who are débrouillard enough, like little Gavroche in Victor Hugo, the guys who are débrouillard enough to find ways themselves to navigate more time with their kids?
I had a dad who was excluded from the life of his kid. The kid had developed an eating disorder and was being seen at the Montreal Children's Hospital. Do you know what he did? He went and involved himself with the care of the children. They were delighted to have an active father involved. That, the intervention of the staff at the children's hospital, started to create that sense of mutual trust that husbands and wives lose in each other but that mothers and fathers have to have.
I think if we look more closely at the successful parenting arrangements outside the judicial system, we're going to find probably, yes, as Madame Côté said, there's very little co-parenting going on, because you have to have very motivated parents to have co-parenting. People who are that mature and motivated tend to stay married. Think about it. They know what compromise is about.
Ms. Denyse Côté: Not really.
Ms. Anne France Goldwater: Not really? Am I being too idealistic?
Ms. Denyse Côté: Yes.
Ms. Anne France Goldwater: But I think what you may find a lot of, but I don't know if Madame Côté is seeing it, is some parallel parenting, where the parents are not communicating enough to come up with consistent parenting schemes like what time the child should go to bed and what time he should eat supper. In their caregiving they may be doing it differently in their separate homes and dad may think it's fine to show Rambo to the seven-year-old and mum may prefer Bambi, but in the scheme of things there is still enough cohesion, even if there's not enough communication.
Mr. Paul Forseth: Okay, but can you just summarize the original question I asked? Can I get to that point?
The Joint Chair (Mr. Roger Gallaway): I'm going to pass on to Ms. Bakopanos. Go ahead.
Ms. Eleni Bakopanos (Ahuntsic, Lib.): Thank you.
I'm going to preface my remarks, because I found your presentation very interesting, actually, and totally different from what we've heard so far, at least during the time I've been with the committee.
In a wonderfully ideal world, as you said, we would all have very happy, loving children, where both parents would be present, the father and the mother, and where they would both play an important and nurturing role. That is my hope, that is my wish, and I think that is the wish of everyone in this room. But that isn't the rule in general in our society these days.
The other thing I would say is we would all love to have judges who make perfect decisions in the court system, but there are still judges who let rapists off on conditional sentencing. They are the exceptions, not the rule.
Anyway, we won't argue. If you want to listen, you can argue with me after when you have time.
Your idea of empowerment upon women is not a new concept. It has happened in the workplace; it has happened even in the House of Commons. There are more women now in the House of Commons. Are you suggesting, though, that now that women have acquired power they abuse it? In some ways your remarks can be taken that way. That presumption would mean, then, that those who had power in the past, mostly men, also abused it to a certain extent. We can debate this for a long time.
I refuse to accept it as a theory, because then it feeds back to the actual thing you want to fight in society, that no one has power over children. Neither the fathers nor the mothers should have power or abuse it in any fashion or way. That's also my hope in an ideal world.
Power is used, as you said earlier, to deny access, to deny custody, or to deny alimony on either side. I refuse to have a world like that also. So if we're talking along the same terms, I'll agree with you, but I'm not quite sure.
You said that we shouldn't use the word “access” at all then, that we should reject that word as a word.
Ms. Anne France Goldwater: Yes.
Ms. Eleni Bakopanos: I'll agree with you on that point, except I say what do you do then in the situation of family violence and physical abuse? What do you do then? That's my question to you.
Ms. Anne France Goldwater: It can be broken down, and I know Madame Côté is going to want to add something to this.
Ms. Eleni Bakopanos: Yes.
Ms. Anne France Goldwater: We'll divide up the time, I think.
You came to a good word with “power”. Are you saying that I implied that men and women have abused the power? Absolutely. Where there is power, there's abuse. You have to take that as a given. You can look south of the border and laugh at things that happen when power is abused, but of course it happens and it happens in families. When two parents are under the same roof there is a certain give and take. When people separate, what should be authority over children becomes power over each other.
What we want to reaffirm is the notion that parents have authority to make decisions. Like the Alberta Court of Appeal said when it was talking about child support, it's not up to the judges to decide if a kid should have broadcast TV, cable TV, pay TV or satellite TV. Those are choices parents make by their means and their lifestyle and it also reflects authority. Should a kid watch television at all?
The idea for me of getting away from custody and access is to eliminate power and to go back to the notion of authority, which is different and which is easier to share. It would eliminate the abuse.
When you have situations of family violence, we're talking about something that is completely different. First, you have to recognize the extent to which violence becomes a very handy weapon for women to bandy around. In my experience, there are two types of violence perpetrated in the family. The violence that men express—forgive the sexism, but it's testosterone modulated—the violence at the end of a fist, the violence that is more externalized. But I have seen so much violence within a family expressed by women and it's in a different way.
Men are physically bigger, more powerful, and their aggression is more acted out. You don't have to look further than the statistics on the serial killings by young men in the United States. It's always men; it's never young teenaged girls. That's how men act out their aggressions, and they act out on the weaker members of the family: first the wife and secondarily the children.
Women don't modulate their aggression in the same way. A woman's aggression does not come out at the end of a fist, but it does come out in other ways that are far more heinous and reflect the role that women have as primary caretakers of children. In a family, the weaker member is in fact the child vis-à-vis the women.
The violence I see in families perpetrated by women is not physical. It's psychological. It's less on the husband; it's generally on the children. To create a schism because it's easier to point to men's violence is to disregard the amount of violence by women perpetrated on children.
Madame Côté will talk to you about the concept of the insecure model of attachment. They say as many as 30% of children are insecurely attached to the primary caretaker. That means they have rejecting mothers. That's a hellish statistic and compares unfavourably to the statistics of violence we—
Ms. Eleni Bakopanos: But you're not answering my question. I asked you a question. What do you do in those situations when if you don't use the term “access”, yet there is proof on either side...? I'm not going to argue that it's men or women. That's not what I said earlier in my preface. But I'm telling you, if there is physical abuse, if there is family violence, what do you do with the children? What are you going to call it?
Ms. Anne France Goldwater: It doesn't change the issue of custody or access.
Ms. Eleni Bakopanos: Yes, it does.
Ms. Anne France Goldwater: No, it doesn't.
Ms. Eleni Bakopanos: You agreed.
Ms. Anne France Goldwater: Because you're setting up a question with a prefixed answer. If a man or a woman has committed an act of violence in the family, he should therefore not have contact with the children. You are setting it up as a straw man in the argument.
Ms. Eleni Bakopanos: No.
Ms. Anne France Goldwater: You still have a residential plan.
Ms. Eleni Bakopanos: Ms. Côté.
Ms. Denyse Côté: As I told you, I am a sociologist, not a psychologist. However, I would like to tell you that there is one socially recognized phenomenon and that is called sexual violence.
Violence isn't gender-neutral. Violence against women is a fact. Although most divorce petitions aren't filed because of problems with violence, we do see that women who turn up in shelters very often go on to file for divorce. Unlike my colleague, I believe we have to look at the problems of violence, which can continue after separation or divorce.
We have a very good description of the cases that turn up in Court. One of the problems with the literature on shared custody is that the cases disputed in Court ultimately represent only five percent of the total arrangements made.
Nor should it be forgotten that many parents make custody arrangements on an amicable basis, without even divorcing, and in all kinds of ways. The cases we have heard about in the last-half- hour are disputed cases. I don't at all deny that these cases occur, but I believe they are not representative of the majority of cases.
None of the women I interviewed, none of the groups of women I heard and none of the documents I read denied the fact that the father's presence is necessary. The literature is very clear: everything is increasingly turning around the father's necessary presence. The difficulty is in knowing how to secure that presence. I have read all the literature on child are, and everyone agrees that this transition is very important. It is not limited to a question of access to the children, but we must consider how to go about this transition, about taking responsibility for and assuming the care and upbringing of children. Although the case I'm about to describe does not reflect what is going on in the majority of cases, children may go to the home of the custodial parent every weekend and that parent may not make sure they do their homework or see to day-to-day matters pertaining to their upbringing, which results in an additional burden for the other custodial parent. In my view, there is a problem in the transfer of all this care- giving. I don't think it's a question of determining whether there are one or two primary care givers. For me, that much is clear. I can rely on my own experience, since I have a 19-year-old child who was raised under shared physical custody. He has two parents who are primary care givers. It's obvious that this can be done, and I'm convinced of the fact. This won't be the solution in all cases, but it may be in more and more cases. This is a social phenomenon. I don't yet have the answer, but I wonder how we can ensure that men increasingly take charge of the care and upbringing of children in a family context, which is very difficult, including when there may be conflicts. I don't think we can do this just through statutory measures and we definitely can't do it through coercive measures. However, statutory measures will influence what is being done in practice. We must resort to all types of methods to encourage this transfer of knowledge and responsibility. We are in the midst of an historic moment, and men will increasingly play a more direct role in the upbringing of children.
Ms. Eleni Bakopanos: Thank you.
Ms. Anne France Goldwater: I would just add that if you have an incompetent parent by reason of violence, the bottom line is your residential plan must necessarily restrict contact. That's the short answer to what you want.
Ms. Eleni Bakopanos: Thank you.
The Joint Chair (Mr. Roger Gallaway): Senator Jessiman.
Senator Duncan Jessiman: I'm going to ask both of you the same question.
We all know that when access is refused and payments are being made, there's contempt of court, and in one case you referred to, I think there was contempt of court 22 times before they actually put the person in jail.
They've changed the law as far as non-payment is concerned, so if you don't pay, they can now come take your driver's licence away; they can take your passport away. Would you think that might have some effect? Is it fair that if you refuse to give access, that is in the law, as it is for non-payment?
Ms. Anne France Goldwater: I'm not sure how effective it would be. I'll tell you that judges have always been more comfortable to cite a man for contempt and non-payment of support, to put him in jail because he's not perceived as being a caretaker, than to do the same to a woman.
When I was interviewed on radio on the issue of taking driving licences away, I laughed, and I'm happy to say it was on CBC, no less. So many guys are so close to their cars, I thought that might be a good enough threat to make them understand they should pay their child support orders.
But when you look at the cases, such as custodial cases of parental alienation, where women are entrenched, where women do not want their children to see the father, there is really not much you can do. In those cases, the women are so entrenched—for example, the woman with 22 citations for contempt—putting them in jail is also not going to change anything.
I've never understood the judicial hesitation to change custody. As long as a dad is a good enough dad.... You know, let's be realistic. None of us have been licensed to have children. I willy-nilly got married and had children. Nobody knows if I'm doing a good job, and I'm not a case you'll ever see in court. But we go and have children, and we tend to be good enough parents because there's nobody we love more on this earth than our kids.
Why would a judge not have confidence in an aggrieved dad who comes and says, look, I've maintained my involvement in my children's lives all this time, and my ex-wife doesn't understand the quality of my involvement?
Please understand, in these cases we're talking about horrifying things. The mother doesn't want the children to see the cousins, the aunts, the uncles, the grandparents. Anything the father does, anything he brings to the child's life, is bad. If the dad sends a present, it's thrown out.
Why is that not a grounds for change of custody? Why is that not perceived as violence to a child as great as the violence we talked about that's easier to point to—at the end of the fist?
Senator Duncan Jessiman: Do you then think we should have legislation that says, in effect, if there is access and it's ignored or refused by the parent, after maybe once, twice, or three times, or whatever number, it should automatically be changed? Do you think the laws could be changed there?
Ms. Anne France Goldwater: I think the laws could be changed. A judge would have a lighter heart to change the law on that if we had a change along that direction, if the law talked about a residential plan. Because what happens now is that if you're lucky and you have a good enough judge, and a good enough psychologist, the judge will increase access in the view that the more the child is with the other parent, sooner or later the mother will get the message.
If you got rid of the words “custody” and “access” to begin with, and you said that each time there is any disavailing of the parenting plan...and we're not calling it custody and access any more. The woman doesn't have power. She is not given power to abuse. She just has this time with her kids, this authority, and the dad has that authority and that time with the kids. If you change it gradually, which is what happens in the good cases.... When I plead the cases that work, what happens is that the dad gets, say, two weekends out of three, or they start getting five days out of nine. You start moving it around.
Senator Duncan Jessiman: So she might have the primary residence and he the secondary residence to start with, but if she doesn't play according to the rules, you might change those residences.
Ms. Anne France Goldwater: But you don't use the words “primary” and “secondary”. That's a hierarchy of power that, for you and me, in our private lives, doesn't exist. Do you think I could go home and say to my husband, “I'm the primary caretaker, so I fix our primary residence, and I'm wearing the pants in this family”? We got rid of those rules a long time ago to empower us.
When my mom was interviewd in 1962 on this issue she was quite happy with the notion that husbands had the authority, because they had to earn the money and support their wives. She was an attorney. The money she earned, she could keep in her pocket. That was the rule under Quebec law in 1962. She was an attorney as much as my dad was. In fact, never mind, she was the brighter one.
So that doesn't exist. If we don't accept, in our bedrooms, that men or women have more power over each other, why are we accepting it after divorce, in the school yard? I don't understand.
Ms. Denyse Côté: I would like to say something about the notion of power. Unlike my colleague, I believe that power is not necessarily something that someone exercises over another person or that is invoked to resolve conflict. I believe there is also the power to do things with someone, the power to change the situation. That's the meaning I favour. In my mind, bringing up children means doing things with them, and I believe that many women have this notion of power rather than a notion of conflict.
I don't deny there are abuses, but I wonder whether, when we legislate, we should really see the notion of conflict as being inherent in custody decisions. There is conflict in separation and divorce cases, but is this really what we should be focusing on? Is this really the only factor that induces parents to decide on their custody arrangements? This isn't what I've seen. On the contrary, I've seen parents struggling with latent conflicts who try hard not to pass them onto their children.
If I were a family law practitioner, I would definitely see other things because the cases would be different. But I have seen parents who have not gone through the courts and I haven't seen really major conflicts. Instead we're trying to build something around the notion that partners have disputes, feel pain, mourning, have conflicts and so on. And we try to protect the children.
Most women and men that I interviewed not only told me about their dissatisfaction, but also about their pride and the way they have come to their own arrangements. And I find this is central. If I had one recommendation to make, that would be it.
With respect to power, we also talk about what is visible and invisible. In our society, as you know, money increasingly gives us power. Taking charge of a child and the time and energy we put into the care of children are not things that confer power, but which, on the contrary, are increasingly devalued. This is an increasingly complex thing to do, both for women and for men who are in the same situation and who have to reconcile child care demands with job demands. I would remind you that men head single-parent families in 20 percent of cases in Quebec. The mothers are also required to provide income to support their children, and we know that the job market is tight.
You have to look at what the fathers are trying to build by way of a new commitment toward their children, that is a commitment that is direct, responsible and very different from the power authority that my colleague was describing. These fathers have no model to rely on. They are trying, looking, etc. I believe they should be fully encouraged.
Women don't have any models either. In most cases, they take on greater responsibility than their ex-husbands or men in general in this regard. The free and constant work they do should be recognized. We know what that is; I won't describe it to you because you are as familiar with it as I am. Thank you.
The Joint Chair (Mr. Roger Gallaway): Thank you. I'm sorry, but your time's up, Senator.
Senator Duncan Jessiman: That must be Florida law...yes, Senator Cools, it's your turn.
The Joint Chair (Mr. Roger Gallaway): Go ahead, Senator Cools.
Senator Anne Cools: Thank you very much for what I thought were, from both of you, very exciting and extremely witty presentations.
One of the problems that we've had in our modern community is what I would call certain sorts of “social pressures” to make the Divorce Act an instrument of the Criminal Code or an instrument of social welfare or an instrument of redressing historical grievances or whatever. The Divorce Act is not such a piece of legislation and I sincerely believe that is one of the reasons we have come to the current state of affairs.
I didn't get the opportunity with the previous set of witnesses, but they were talking about the Divorce Act reducing the poverty of women, by which we say, then, that marriage enhances the wealth of women. That's an aside. It has, but now it's been extended out that divorce should. That is the current trend.
But if I come back to the issues about violence, which you spoke to, one of the reasons that this whole discussion on violence makes me a little anxious is that to follow through on the policy of zero tolerance of violence and the blocking of access and so on and so forth by violence, women, in the long run, are and would be the greater losers, because all these studies on child abuse show that women match and surpass men on the ground of child abuse.
Mrs. Goldwater, you did not seem to be aware of those studies of child abuse and violence. All the national surveys on domestic violence show reciprocity, but that's one set of violence, just one. But on the issue of child abuse—and I've put this on the record countless times—all these studies show that in terms of physical child abuse women match men. The technical term is “child maltreatment”, which is, for example, neglect and so on. In this women soar and overtake men, 85%.
I wonder if you have any comments about the pressure on the Divorce Act for it to be a punitive instrument, which it is not.
Ms. Anne-France Goldwater: With respect to the Criminal Code, I don't need to have it in my pocket to walk down the street because I don't have to look at it to think about what I'm allowed to do to you or the next guy. Do you understand? We have our own inner rules of conduct. And I hope I don't need the Civil Code and the Divorce Act to know how to raise my children or how to deal with my husband either—I hope, except when.... Oh, no, I can't make a joke about hitting him over the head.
However, the purpose of the structure of our laws always, for better or for worse, does have a punitive and coercive component.
Senator Anne Cools: Always.
Ms. Anne-France Goldwater: You can't get away from that, and you do a disservice to both men and women, the aggrieved fathers who are here and the aggrieved mothers who are beaten or who don't get their child support, because, as you know, the complaints are different. You do a disservice to all these people in saying that a law should not be viewed as coercive and punitive. It's just that when you look at the particular subsection of custody and access, you can create a structure that is so much more positive—
Senator Anne Cools: Right.
Ms. Anne-France Goldwater: —by becoming more Cartesian about how we look at, assess, organize and re-evaluate custody and access, like the lady who was here before us saying that mediation shouldn't stop at divorce; it should come back again, maybe six months later, to see how the custody is going. There are so many things you can do before you get to the punishment. But the punishment...you can't get away from it, and sometimes semantics help.
Did you notice what you said about men and women? You said that men are violent but women “maltreat” their children. Why is there a difference? The only reason I addressed a difference before is that—
Senator Anne Cools: It's fantastic that she's brought this up. Nobody's raised it.
Ms. Anne-France Goldwater: Yes. The only reason I brought up the difference before is that I'm talking about conventional divorce. I'm old enough that I'm past my years of doing youth court work, where the combat is much more heinous. I'm talking more about conventional divorce. The conventional, the guy qui a bousculé sa femme, who shook his wife, and the woman who brainwashes her child, the stuff we see in claims in plain vanilla divorces, where there can be.... There's quite a fair degree of violence in very ordinary families that we don't talk about much, because we tend to view domestic violence by men or maltreatment by women as being in that other social stratum, and it's not true. It doesn't exist like that.
The idea of coming up with the notion of residential times, not primary residence, not secondary residence, but residential times.... It's a parenting plan, where you sit down and give judges a law, like the child support law, where there are guidelines. We would have a list of tasks about how we're going to deal with education, tutoring, sports, extra-curricular activities, medical decisions, social activities and the haircuts.
It's the seventeenth year that I'm practising law, and I know this part is anecdotal, but please.... I would put my hand in the fire, but I've had more fights between parents about who gives the haircuts than fights about religion. Why? If a Jew marries a Christian they tend to decide beforehand how they're going to modulate the bar mitzvah and the first communions. They think about it. But people don't think about what happens when they split and the husband has a new wife who doesn't like the haircut of the six-year-old girl and takes her for a haircut. As the custodial mother, you lose your mind, because it's like this other women is interfering with the body of your little girl.
Voices: Oh, oh.
Ms. Anne-France Goldwater: And please don't laugh, because those are so poignant...it is to cry. And you can't talk to a judge about them, because a judge would look at you, the lawyer, as if you're a complete fool, and start throwing legal maxims at you like de minimis non curat lex—the law does not concern itself with small things. But this is part of the anguish of being a parent.
One of the good psychological tests says that we indeed tend to put too much focus on decision-making, as if all child-rearing work is about the choice of education and religion and major medical decisions. Decisions like that happen maybe ten times in a lifetime, but deciding what time a kid goes to bed and whether he does his homework first or watches TV before doing his homework...those daily decisions require a structured law.
It's terrible to say this, but you need a structured law wherein you look to those parenting concepts and you explore whether parents can be cohesive in their parenting plan, so that you don't have marginalized fathers who only have weekends. When you reduce a father to weekends, he's not a father any more; he's a visitor.
I have joked in some divorce files that I probably see the children more often than their fathers, because I have that visitor status. On a home visit as an attorney I'd take a kid out, and I'm probably doing as much as the dad is doing. Being a father is not taking the child to the movies. As Madame Côté says, and I'm sure it's true, there are a lot of fathers who won't do the prise en charge activities because they don't know what to do in the marriage. But man, are they motivated to learn when the marriage breaks down and they have that wicked kick in the critical portion of the anatomy that makes them realize that if they want to have an intimate relationship, the sweetest relationship you have in your life is the love you have from your children. So they're going to have to learn what's involved in making the kids sit down and do homework, not just taking them to McDonald's.
Where's their support in the system? Madame Côté was wonderful with this when she said men and women today have no models. The country that we are, the pride we have in this country and the pride we have as Canadians is not because we're people who go to war. We're not people who riot in the streets; it's not in our nature. But it is in our nature to find a cohesion and a consensus of how we want to see Canadian children raised. In my view, we can deliver that social vision from coast to coast and inspire parents to find the better models. I'm telling you, judges would be delighted if they had a structured law to apply to come up with parenting plans.
The Joint Chair (Mr. Roger Gallaway): Ms. Côté, you have the last word.
Ms. Denyse Côté: I have the last word. Thank you.
I would like to come back to my colleague's remarks. It is true that we are changing models and that legislation will have considerable influence on our models, but it is false to think that a coercive statute will really change the model. That's absolutely false.
Parental practices are evolving socially and are influenced by legislation. I believe that legislation must reflect them—of course, we have always said that—but it is unthinkable that the legal system should have any say in how a child's hair should be cut. This is absolutely impossible to do.
Having said that, I very much appreciated the haircut example because it's a very concrete example, one that we have cited in the cases I have worked on. People have managed this, even though it has caused conflict. Conflict will not be resolved in everyday life by legislation that takes into account only the five percent of cases that go to Court. Do we really have to impose the model we have chosen for this five percent on the remaining 95 percent of cases?
Furthermore, there is a movement among fathers, whom I support and encourage—and I have done so in my personal life—to take charge. This does not always necessarily occur after divorce because some fathers decide to start a new family and go on to something else. You also see that often. Unfortunately, I can't give you any statistics.
There is definitely an alienation syndrome, but it's not necessarily always the case because access is not granted. We have to find ways to encourage social change in this area. Since I am a social worker and a sociologist, I don't have the same vision. I don't have the same point of view.
We really have to be careful that parenting plans do not become coercive because there is a risk of causing the opposite effect, particularly in a context where, in at least 80 percent of cases, with all due respect to men, women are mostly in charge of their children's upbringing.
In a context where, in our international agreements and even in our national policies, we want to use an analysis differentiated by gender as a model to study the various effects on men and women, I ask you please to consider the effect of any proposal or reform on mothers and fathers since we must take into account the current and historical position of women, and of men, and of the changes we want to bring about in this context.
The Joint Chair (Mr. Roger Gallaway): That will end our hour. I want to thank the two of you. I felt actually like I was in a classroom learning something. It was very, very interesting. I know that the others feel that way.
We have had two people who have requested to appear and who were not on our list. They have been here for a while and have requested five minutes each with the committee. We will limit it to five minutes. We have Mr. Gurvitz, I believe, and we would ask that he have his five minutes after this next hour. And we have a Mrs. Outcalt, who would like five minutes; we could add her at the end, at three o'clock. They would appear as individuals, for five minutes each.
We'll adjourn for three minutes.
The Joint Chair (Senator Landon Pearson): Order.
Mr. Di Done, could you start your presentation now?
Mr. Riccardo Di Done (Founding President, Organization for the Protection of Children's Rights): Certainly.
The Joint Chair (Senator Landon Pearson): As you know, it's five minutes for each of you and then questions.
Mr. Riccardo Di Done: Mrs. Chairman, honourable senators
and members, as a charitable non-profit organization concerned with the welfare of children and the family, the Organization for the Protection of Children's Rights vigorously supports the establishment of free mandatory family mediation.
Statistics in Quebec show that one out of every two couples experiences a break-up and 45 percent of families will do so before the child reaches six years of age, 25 percent when the child is in adolescence. It is clear that something must be done to come to the aid of couples and families in difficulty.
Our principal recommendations are as follows:
- first, create courses at the elementary and secondary level in order to educate and sensitize students about parental responsibilities. The goal is to ensure that the next generation may adequately understand and assume its role as parents;
- second, create a system of family reconciliation which is available at all times for couples and families in crisis;
- third, put into place family mediation services that are free, mandatory, and non-judicial for all couples experiencing marital difficulties or going through divorce proceedings. Such services should also be available for grandparents and other family members in crisis;
- fourth, eliminate terms which create friction between the parties. For instance, replace the expressions "legal custody" by "parental responsibilities" and "support orders" by "financial responsibilities of parents";
- fifth, create a court specializing in family matters where judges have an extensive background in family law as well as in psychological matters;
- sixth, create an office of formal complaints where one spouse can file an official complaint in the event that the other spouse does not respect his/her financial or other responsibilities.
As an organization that comes to the aid of individuals who experience the break-up of the family, we guide family members to the tools that will allow them to adequately deal with their problems. The OPCR recommends the implementation of family mediation services before legal proceedings are undertaken. Family mediation allows the couple to resolve their problems by using an alternative dispute resolution method that is less adversarial. This method reduces the heartbreaks caused by the break-up of the family.
We recommend that the Special Joint Committee on Child Custody and Access, which is presently studying the possibility of modifying the provision of the Divorce Act dealing with custody and access, help couples develop a parenting plan following a separation or a divorce. This plan would emphasize the responsibilities and duties of each parent instead of focusing on the battle for custody. Parents could share the responsibility of all the child activities. This includes recreational activities, sports, leisure, as well as health care and parent and teacher meetings. A schedule could be established for the whole year.
This parenting plan will counter the consequences of a divorce battle. The parent who is granted custody of the children is perceived as the winner, whereas the parent with visiting rights is considered the loser. The term “custody” does not elicit a spirit of cooperation between the parents. We consider that parents need to cooperate in order to ensure that their child continues to feel loved by both parents.
Another recommendation of the OPCR is that the use of a term that polarizes individuals and creates winners and losers should be avoided. The question to be asked is not who is the better parent, but what parenting arrangement will ensure that children grow up in a healthy and balanced environment that will help them flourish. When the latter approach is used, both parents come out as winners, since each can contribute in his own way to the development of the children.
This implies a change in the behaviour and attitude of each parent. Although it could be difficult to make a break with the past, parents must look to the future and concentrate on the well-being of their child.
It is absolutely necessary to sensitize parents and provide them with the tools that will help them fulfil their responsibilities toward their children. Family mediation offers this opportunity to families.
It is important to mention that the role of the mediator is to sensitize parents to consider the needs and best interests of the child. The OPCR believes that mediators should be psychologists or social workers. Their understanding of human nature on family dynamics as well as their observations of an individual's reactions allows them to deal with difficult family issues.
In its recommendations, the OPCR requests that a specialized court be established where judges have exclusive jurisdiction to hear all cases dealing with family law. Furthermore, these judges should have an in-depth knowledge of family law and have an extensive background in psychosocial matters since the resolution of family conflicts is extremely important and very difficult.
The adoption of these recommendations by the government would reduce the suffering and emotional turmoil of children, parents and grandparents. The government would save a considerable amount of money since 86 percent of the total court time at the Superior Court is dedicated to cases dealing with separations and divorce.
For the good of our children and the family and for a better society, let us provide our children with the necessary tools that they need to grow up and flourish.
Thank you, Madam Chair.
The Joint Chair (Senator Landon Pearson): Madam Ficca, did you want to say something?
Ms. Angela Ficca (Organization for the Protection of Children's Rights): Senator Pearson, I want to say that Mr. Di Done has presented the bulk of our recommendations. Therefore, if there are any questions from the committee, we'd be glad to answer them.
I would caution the committee to avoid polarizing the debate. I'm sure many groups that have presented before you have had certain vested interests. It's important, therefore, to keep the middle ground, to make sure that both parents participate actively in their children's lives after the break-up of a family.
The Joint Chair (Senator Landon Pearson): Thank you.
Ms. Eleni Bakopanos: Thank you, Madam Chair.
Your comments are very apropos, because the middle ground is exactly what this committee is looking for in all of this. We're not here to take sides, either the father's side or the mother's side.
On the subject of mediation, in Quebec, as we all know, one session is free. After that, you get into a situation, in my opinion—and you can correct me here, because I'm not an expert—where he who has the money gets the better service. In other words, do you feel it should be free for everyone, and it should be obligatory or mandatory?
Second, I 100% agree with you, 100%, that judges have to be educated. But how do we do that? Should it be the responsibility of the legislators to legislate that into place? Should it be a responsibility of the law societies?
Right now, under the Constitution, no government can in fact legislate information sessions or other sessions to the judges, because the judiciary is independent. We would have to come to an agreement in some way. We strive, as the federal government, to come to an agreement with the law societies in order to have information sessions that are not obligatory or mandatory—and I would like to see them mandatory—on other issues, such as, for instance, women's rights and homosexuals' rights. We can go into a whole series of human rights—and I like to call them “human” rights—where there is a necessity for education of the judiciary. But the minute you start talking in those terms, the judiciary says, “We are independent of the state”.
So how do you do it?
Ms. Angela Ficca: I'd like to address the first question. As you know, the first session is obligatory in Quebec. The next five or six sessions are free. There are expert mediators at the courthouse. We are in touch with several of them, and they are on our scientific committee. For instance, Aldo Morrone teaches courses all over the world.
These people are very specialized in their fields. They know what they are talking about. Therefore, it is not necessarily a question that he who has the most money wins out. People who have—
Ms. Eleni Bakopanos: No, I'm sorry, I didn't mean it that way. I didn't mean either the father or the mother; I meant that divorced parents who have more money can go to a better system of mediation. That's what I'm saying. I believe it should be free for everybody, and it shouldn't be for only five sessions, because in some cases it can take five but in others it can take 100 sessions.
Ms. Angela Ficca: Yes.
Ms. Eleni Bakopanos: So if you offer only five...that was my point. I'm sorry if it was misinterpreted as that the father has more money. No, it just meant that the divorced couples who have more money would have access to a better system of mediation. There are private clinics in Montreal and Quebec, and people do go to those private clinics, but there is a cost involved, and I'm saying there shouldn't be. The same type of service should be offered to all couples, whether they are in the process of divorce or thinking about divorce, in fact.
Ms. Angela Ficca: Actually, our recommendations before the National Assembly last February were just that—
Ms. Eleni Bakopanos: Oh, good.
Ms. Angela Ficca: —that mediation be free for everyone, and that everyone have access to the sessions, and that sessions not be limited to five or six. As you say, it's obvious that it may take longer.
Also, sometimes as conditions change—obviously children grow up and therefore there are different priorities that come into play—you will probably need to go back to a mediator—
Ms. Eleni Bakopanos: Yes, good point.
Ms. Angela Ficca: —and that's important, too. You have to have that reflex, not to say, well, we'll go to court and we'll solve it there, but to say we'll use the tools the mediator has given us to deal with our problems—the communications tools—and go ahead with that. Children grow up. They change schools. They get married. If the father remarries, who's going to walk the daughter down the aisle? These are all questions that come up.
No, as for limiting the number of sessions, as I said, our recommendations were that the sessions not be limited and that they be free for everyone.
Ms. Eleni Bakopanos: But if they're free, there's a cost. Do you agree that the taxpayer has to cover the cost?
Ms. Angela Ficca: Yes, but the economic costs are minimized in terms of suffering. In our brief you'll see that we outline the economic costs. Statistics Canada has shown that children and parents who divorce have six times more health problems, and school drop-outs are higher. All this, when you compile it, is nothing compared to the costs of mediation.
Mr. Riccardo Di Done: Actually, you would have two large savings. One,
in psychological terms, for the children and the family, you would spare people incredible amounts of suffering and thus if we really focused our energies on prevention, we could save even millions and millions, if not billions of dollars more.
When you look at all the studies that compare the children of intact families to those of broken families, we seek the risks that the latter are exposed to. So I believe that all Canadian citizens and legislators have a duty to put this kind of system in place.
Ms. Eleni Bakopanos: What about the judges?
Mr. Riccardo Di Done: The judges? They should absolutely receive training. We think this should be included in the act.
Ms. Eleni Bakopanos: We can't do it.
Mr. Riccardo Di Done: There isn't just the legal aspect, but also the related psychosocial aspect. Consequently, we would have to see how this could be done.
Ms. Eleni Bakopanos: Yes, but it's better to start with the law societies, the societies that govern the conduct of their members.
This is the same problem that we have with regard to doctors and dentists. We can't impose... We could, yes, but, according to the cultures of these professional associations, they have the right to decide on the rules their members have to comply with.
I'm laying down a challenge for you because we previously tried this at the federal and provincial levels when I was a member of the provincial government. It's in the professional associations where there's a barrier. It would be better to lobby these people and tell them that they have a duty to the public to make all law students take mandatory courses before they get to the Appeal Court level, Superior Court or another court. This has to be compulsory, in my view, in a law curriculum. That's my opinion.
Mr. Riccardo Di Done: If I may, I know that in Manitoba, while the Associate Chief Justice Alvin Hamilton was in place, before you could be nominated as a judge regarding family matters you had to be trained. There was no other alternative.
Ms. Eleni Bakopanos: Okay. Thank you.
The Joint Chair (Senator Landon Pearson): Thank you. Mr. Forseth is next.
Mr. Paul Forseth: Thank you.
You've made a great case for mediation and to have it as wide and pervasive as possible and as freely given. I just want to ask a little bit more deeply about your experience, about your background, guiding philosophies or assumptions inherent within that mediation.
You even have some diverging philosophies arising from the Supreme Court that somehow, first of all, centre on either a children first ideology, arising out of Woodhouse v. Woodhouse, or more of a mothers first philosophy, arising from the Ligate v. Richardson case.
In the underlying assumption, the philosophy, the philosophical paradigm of the mediation, there's a great tradition of labour law/corporate law, where the emphasis is mutual cooperation and compromise to bring a deal that both parents will support in order to bring peace; or a somewhat psychological approach from pediatrics, you might say a more child-centred approach, that works towards parental responsibility to meet child needs, the kind of results—the general shape and character—of which would be quite distinct and different from the model that parents might generally agree to because they are happy.
I just want to get at the philosophical background and assumptions of this mediation that you are recommending.
Ms. Angela Ficca: We feel that a child-centred approach is better in terms of philosophy because it is the child who suffers the most. It's the child who is in the middle of the battle. Therefore, if we take into consideration the child's feelings and what the child needs, that will allow the parents to remove themselves from their own personal legal battles and concentrate on what the child needs. In terms of philosophy, we feel that you focus on the child.
Mr. Paul Forseth: All right. Would you cite any major works or books that you refer to? When you say “child-centred”, whose philosophy are you following?
Mr. Riccardo Di Done: The people who have been specializing in mediation for a number of years and teaching people in North America, such as Aldo Morrone, Justin Lévesque, Philip Shaposnick, have years of experience, and it's coming out. We know, by fact of the people who went through mediation, the benefit that you get, not only for the children but within an enlarged family context. Obviously you're minimizing the confrontation, the friction, and the only thing that can happen out of that is that, by making sure, first of all, that the child is a winner and that everybody else is, in the long run you've minimized the suffering of everyone involved.
These people who have been working in that field....including in our brief; there are a lot of names mentioned at the back. The objectives of most research that has been done have demonstrated it very clearly.
Mr. Paul Forseth: Thank you.
The Joint Chair (Senator Landon Pearson): Thank you. Dr. Bennett is next.
Ms. Carolyn Bennett: One of the concerns that keep coming back to the committee when we look at child-centred approaches is the vulnerability of children to be siding with one parent or another. Then it looks like the child's choice, but I think we have some concern that the long-term result may not be in the best interests of the child. How do you judge what is actually in the long-term best interests of the child and what the child thinks they want at any given time?
Second to that would be something pretty straightforward. If a child says they don't want to see a parent, in your experience, do you think it means that child needs psychological help right away? Whether that's true or not, this kid is going to be handicapped in one way or another later on and may actually regret that decision.
Ms. Angela Ficca: When the mediator is involved, that person determines what the best interests of the children are. Obviously, as I said at the beginning, you want to stay away from polarizing the debate and having one parent on one side and the other parent on the other side.
You don't necessarily ask the child. Some mediators will involve children in the mediation, but it's not necessary to ask direct questions to the child. Obviously the mediator will try to maximize as much as possible the contact that the child has with both parents. If the child, as you say, says he doesn't want to see one parent, I think it's important to go beyond the simple statement and ask, well, are there any reasons? You could do that with a psychologist, or it could also just be the mediator, who could be a social worker or a psychologist.
Also, when there is a separation or a divorce, the child is put in the middle and he or she does feel that he or she has to choose between both parents if there is that custody battle. However, if you explain to them, well, you'll live with one parent most of the time, but you'll see the other parent a lot of the time also, and you'll have contact with the haircuts or the Hallowe'en.... Who will take the child to the Hallowe'en, or who will make sure the child gets extra lessons if the child needs extra math lessons or science lessons? Well, both parents could share that responsibility.
Ms. Carolyn Bennett: It seems that the longer there is insecurity or dispute or indecisiveness, the harder it is on the child. We've heard here that sometimes people are waiting two and three years for a court date. I guess it puts even more pressure on the mediator to actually come up with a solution. But this mandatory first visit is really at the first inclination of marital breakdown. How do you get people the help they need when they need it? Are there waiting lists for mediation? Are you able to give it to them right away?
Mr. Riccardo Di Done: We were talking just before about when the child doesn't want to see a parent. Usually that will come out a lot more often when you have confrontation.
With mediation, the mediator's duty should be to sensitize the parents about maintaining their involvement, and they do it in a very positive way. Once you have both parents wanting to maintain the responsibility and minimize parental alienation and you make sure both parents are involved—not that you just see them once in a while—it's very seldom that a child would not want to see his parent unless there were something really serious going on. We're talking of extreme cases such as incest or physical violence.
Mediation should be very quick. You shouldn't have to wait. Also, you should have laws supporting mediation, and you should make sure that if, for whatever reason, one parent is not respecting it, you can go back and have somebody involved very quickly, so that it's not taking months.
The problem we live with in the present judicial system is that it's long, it's costly both financially and psychologically, and it never seems to end. You make a winner and you make a loser, and often the loser...well, you push them to want to kidnap their kids, or they will totally abandon their kids, or there will be very little involvement on their part, or they won't want to maintain their financial responsibility. That is what the present confrontation system is doing, whereas in most cases mediation will minimize all of that.
But that's why we talk about this specialized court. If, for whatever reason, one parent wants to manipulate the system for their own personal need, we must have these judges who do have this in-depth training, who can step in and make them understand that if one parent wants to be manipulative of a situation, perhaps that parent could end up losing everything, and that you don't want to do that because you want to make sure both of them will be involved. By the same token, you will minimize the second effect that happens also with grandparents, the amputation of a child from the rest of the family.
Ms. Carolyn Bennett: So the judge would work together with the mediator, knowing that the mediator has worked with this—
Mr. Riccardo Di Done: In brief, what we're proposing should happen is that once you arrive in front of the judge, before the confrontation starts, the judge orders you to mediation. I know a lot of people don't like that word “ordering”, but we're talking about the best interests of the child and including the parents. They go to mediation, they have training in what mediation is all about, and then they go through mediation.
They put that project in place in 1984 in Manitoba, and at first instance—and by the way, their mediators are social workers—they had 65% of cases resolved, where you get better financial responsibility, better involvement of both parents, and so on and so forth.
Secondly, for the parent who doesn't want to agree, when he comes back in front of that judge, the judge himself brings him into his chamber and acts as a moderator. I don't know if it's because he's a judge or not, but it seems to impress the parents. He will talk to them. He will be nice and fair, saying perhaps you would be a lot better off trying to come to an understanding between yourselves than if you went to confrontation, where one of you, if not both of you, could end up very unhappy once something is imposed on you.
Ms. Carolyn Bennett: We understood, when the Shaposnicks presented, that in Quebec there are five different professions that are allowed to be mediators, and that is probably because they then can have their accountability sorted out.
If we were going to design a new system, what would you think the training of mediators should be and what kind of accountability would you put there? People are at a very vulnerable time, and there's bonding and transference and all of those things that have in the past got physicians into trouble. How would you set up a system, and with what kind of training, what kind of board, what kind of college? How do we know it's not just somebody with a shingle up after a one-day course who says they're a mediator?
Mr. Riccardo Di Done: First of all, if you want to really be objective to a situation...because I know Shaposnick very well and he's an attorney with in-depth training in child psychology. It's a little bit due to his wife too, but he's done a lot of research over the years.
Normally speaking, if you want to have the most objective mediators, they should be social workers. They already have training in depth in how to deal with people in distress who are having problems. So as far as we're concerned, that's what we're promoting, that mainly social workers or psychologists should be the mediators.
Somebody who may have a different profession, where, for instance, for numerous years you were taught to litigate.... It takes so many courses to become a mediator, and you don't have that same type of knowledge and background. The efficiency could never be as positive as if it were a social worker.
So as far as we're concerned, it should be dealt with by the social workers or psychologists, but by the same token, if you had a national mediation association, maybe they should have guidelines and they should be the ones responsible for these mediators, and let each profession be in charge of their own members per se.
Ms. Carolyn Bennett: Thank you.
The Joint Chair (Senator Landon Pearson): Is there anyone else among my colleagues? Madame Pépin.
Senator Lucie Pépin: You were talking about grandparents. But we heard a presentation on this last night. You mentioned how important it is that they be part of the family. I would like you to elaborate a little on the participation of grandparents.
Ms. Angela Ficca: I get a number of calls from grandparents who can no longer see their grandchildren because of the conflict between the two parents. Every time I talk to them and they describe the situation, I explain what the law states, which is that they have a legal right to see their grandchildren, except where there are serious reasons preventing them from doing so. In Quebec, there is a Civil Code provision enabling grandparents to see their grandchildren. The parents can't prevent them from seeing their grandchildren.
However, because of the conflict, they can't do this. Every time I talk to them, they describe the affectionate relationship they have with their grandchildren, the activities they do with them, the names Granny and Grandpa that their grandchildren give them, the words they use, etc. In other words, the expanded family is very important. Grandparents are important, as are cousins, aunts and uncles.
These people call us. I even get uncles calling me and telling me that they can't see their nieces or nephews any more. It always comes back to the same problem: the conflict between the parents has repercussions for the other members of the family.
Grandparents are very important because they have more time to devote to their grandchildren. They are often retired and have more time for recreational activities, more free time to spend with them, etc. Grandparents are very important in the life of a child.
Mr. Riccardo Di Done: I would add that, in certain provinces, the law currently recognizes grandparents' rights. However, to exercise those rights in certain cases, they have to take their own children to Court, oppose them and thus further inflame the situation.
Mediation would be such a beautiful tool to try to make it so that everybody is involved. You know, sometimes a grandparent takes a lot of space; they bring the goodies, the candies, and they don't have to discipline the kid, and maybe some parents might feel bad about that. Sometimes it's due to separation or divorce.
First of all, again, litigation is long and it's costly and it's negative. If you were going through mediation and if we made it so that you didn't have to wait two or three months, it should be very, very efficient. We shouldn't have to wait too long. The objective again is to sensitize everybody involved. The richness and value of intergenerational involvement...we would be creating a beautiful society.
The Joint Chair (Senator Landon Pearson): Second round, Madam Bakopanos.
Senator Duncan Jessiman: I missed—
Ms. Eleni Bakopanos: Oh, I'm sorry, Senator, go ahead.
The Joint Chair (Senator Landon Pearson): Senator Jessiman.
Senator Duncan Jessiman: —the first part, and maybe you've answered this. Have you told us and is it on the record what your organization is, who its members are, how you're funded and how long you've been in existence? Have you done all that already?
Mr. Riccardo Di Done: We were founded in 1983. We're a multi-disciplinary group. What makes us different from everybody else is that we focus our energy on the child, but within an enlarged family context.
Senator Duncan Jessiman: Right.
Mr. Riccardo Di Done: Let's say the Bar Association does research; it would be very legal, even though we may say
that it's multidisciplinary. If social workers or psychologists conducted a research project, it would be done from a very psychological standpoint.
The objective, really, is to have a philosophy of all the disciplines putting their energy into the children. The people involved with us are people who specialize in their fields.
Senator Duncan Jessiman: But what I want to know is whether the organization is just the two of you.
Mr. Riccardo Di Done: No.
Senator Duncan Jessiman: Well, what is it? That's what I want to know.
Mr. Riccardo Di Done: For instance, in the organization, just in our scientific committee, it was stated before, there are Philip Shaposnick, Aldo Morrone, Justin Lévesque...they're all psychologists, psychiatrists or social workers. They're all professionals involved in these problematic—
Senator Duncan Jessiman: How many people are involved? What membership do you have? Is it 100 or 50?
Mr. Riccardo Di Done: There are different levels of membership. If I include all the different levels of membership, there are 38,000 of them.
Senator Duncan Jessiman: Thirty-eight thousand?
Mr. Riccardo Di Done: Yes, if we include members at large, but in the scientific committee directly involved, we're about 20.
Senator Duncan Jessiman: I see. And the 38,000...do you have more than one office?
Mr. Riccardo Di Done: At this stage, we have offices in four provinces across Canada and the objective is to be involved in every province. One of our main objectives, too, as we were saying, is why not try to get the best of every province and make it the same all over the country, from coast to coast?
Senator Duncan Jessiman: And the four provinces...there is Quebec, and what are the other three provinces?
Mr. Riccardo Di Done: Alberta, British Columbia and Ontario.
Senator Duncan Jessiman: Thank you.
Mr. Riccardo Di Done: And they're all directed by professionals. For instance, in Alberta it's a psychologist and in B.C. it's a lawyer.
Senator Duncan Jessiman: Thank you.
The Joint Chair (Senator Landon Pearson): Thank you.
Ms. Eleni Bakopanos: I have a brief question. In your opinion, in what situation might mediation not work or should it not be used?
That's maybe not an easy question.
Mr. Riccardo Di Done: Once we get to very extreme cases the only thing we know is that mediation works, even when there is violence. It's obvious that you're not going to put the two parents together.
Ms. Eleni Bakopanos: Sexual abuse or family violence?
Mr. Riccardo Di Done: Family violence. When there's family violence, even there mediation could only ease up the friction that's happening, contrary to confrontation. But there are ways of dealing with that too. Once it becomes an incest problem we have to make sure that it's through...and that's why you want to have people who are specialists, so that they can try to detect as easily as possible if it is true or if it is a manipulation of an individual.
Ms. Eleni Bakopanos: Can you answer the question? Do you feel there are situations wherein mediation will never work?
Mr. Riccardo Di Done: You will always have the extreme cases. That's when you need what I call the Draconian laws. For instance, if somebody really doesn't want to maintain their financial responsibility after they went through all of that, then you could have laws seizing the salary or doing something about the driver's licence, but not before. Before that, let us be really human and objective.
Ms. Eleni Bakopanos: Thank you.
Mr. Riccardo Di Done: To go back to the question from Senator Jessiman, I'd like to say that over the years so far we've organized three international conferences, the first one on divorce and children and how to intervene. It was a conference centred on the means of action to take before, during and after. Over 1,200 specialists came to these conferences. And out of the three conferences, we've made recommendations, and we've done a lot of literature projects, trying to find out if there were
too many dissimilarities between the children of broken families and those of intact families, etc.
We've done a lot of our own research projects. For instance, one writer in Montreal at the
Youth Court, which is now called the Family Division...
Senator Duncan Jessiman: What other countries were attending?
Mr. Riccardo Di Done: Just about every country was involved. At the last conference I think there were 17 countries. We are dealing especially with industrialized countries, like Europe, Australia, South America, and especially Canada and the United States.
Senator Duncan Jessiman: Thank you.
The Joint Chair (Senator Landon Pearson): Thank you.
Mr. Paul Forseth: Thank you very much.
As a supplemental to the question I posed to you before, a child-centred approach is based on some assumptions about what ideals we work towards as we attempt to respond to children's needs. I would like to ask you, what is the latest word on what children actually need?
I'm not asking you to get into what the philosophy is, but perhaps you could cite a textbook or a work that is the latest word, you might say, in terms of literature on, truly, what children need. I'm not asking you to explain it all but just to cite a work, perhaps a university textbook on child care or something.
Mr. Riccardo Di Done: There are some listed at the back of the brief that was presented. Unfortunately, off the cuff I can't tell you exactly which ones.
The one thing we do know, though, is that a child
very much needs to feel he or she belongs in order to grow up and flourish. Even the studies on street gangs reveal that what induces these children, these adolescents, to join these gangs is, in the vast majority of cases, a need to belong. That means that parents are not very present at home or that they have given up.
Perhaps today or tomorrow we could send you a list of exactly where you can pull it out from.
Mr. Paul Forseth: Thank you.
The Joint Chair (Senator Landon Pearson): Dr. Bennett.
Ms. Carolyn Bennett: It's not new to you, but as you know, some people, particularly those from women's groups, are very worried about mediation in a relationship where there is a demonstrable power imbalance. Obviously, violence is one of the outliers there.
Are you able to reassure the committee that, with experienced mediators who understand these things, whether it's the very hurt woman who's making maybe unreasonable requests such that the man gives in, or more likely, these groups would tell us, the woman who's been in a relationship with a dominating partner, this transfers into the ability to articulate what's best for the children, or best in reality? Is this exactly what mediators are trained to do? Now, that's probably a rhetorical question, but are you able to say that's the reason there needs to be good training?
There seems to be, from conciliation to mediation to alternative dispute resolution, a continuum that maybe sorts out that when people can pretty well work it out themselves, they just need somebody to help them write it down. There's another group where maybe the power...and then there's another group that probably needs extremely skilled people to sort out this power imbalance.
Are you saying that the new profession, or the new group of mediators, would be able to handle this in virtually all situations?
Ms. Angela Ficca: The expert mediators would be able to detect...because we know sometimes just a gesture or a look from another person can instil fear. That's where you need expert mediators who can detect these subtleties. If there is this subtle power imbalance, it also goes back to self-esteem. Perhaps you can wait awhile until the party that feels this power imbalance develops self-esteem so that when they are before the mediator they can say, well, now I can make my own decisions.
So there could be a time lull, for instance. You could have a couple of months go by after the separation, after the initial shock. Because obviously, sur le coup, as we say; it's a shock. It's a death. It's the death of a relationship. You're ending a marriage. You need some time to readjust. Perhaps after a couple of months you'll have the self-esteem and the character to go into mediation and resolve it.
Ms. Carolyn Bennett: Do mediators sometimes recommend psychotherapy? My experience is that when we're dealing with self-esteem issues, sometimes psychotherapy will help regain the self-esteem faster. Do mediators sometimes recommend therapy for either one of the partners and bring them back when they seem to be a little more objective?
Ms. Angela Ficca: It is something that they can recommend. And actually, sometimes, even if a mediator sees that they're not really ready to end their marriage, he or she can even send them to a family counsellor. These are the various options a mediator could have.
In the extreme cases, where it's obvious that there is an extreme power imbalance, sometimes if you wait it is better, obviously. You cannot mediate unless you feel you have the power to decide.
Mr. Riccardo Di Done: Mediation, in most cases, though, will ease these types of problems that you can have when you go through confrontation, and that's why we say you shouldn't be limited to six sessions. Sometimes it could take eight or ten or twelve.
The other thing we should emphasize—and that's why we talk about it—is, again, education on parental responsibility. Also, it is most important for a parent who decides to go to that extreme, which is separation or divorce, to decide how to announce the news to the other party and the children. Most people don't know how to do that, and there are ways of doing it so that the shock wouldn't be quite so drastic. So these are other avenues—they're in the brief—that should be taken into consideration.
The Joint Chair (Senator Landon Pearson): Thank you very much.
If there are no more questions, thank you much for making your presentation. We were very pleased to hear from you today. Merci.
Mr. Riccardo Di Done: We wish you good luck with the hard task you have.
The Joint Chair (Senator Landon Pearson): Thank you.
We agreed, Mr. Gurvitz, that you would have five minutes to make your presentation.
Mr. Jacques Gurvitz (Individual Presentation): Thank you very much for your attention. I have a few remarks to make.
We are facing a serious social illness. To fight this illness, people have to be sent a message from society and government to "calm down", just as they are sent messages like "pay your taxes" and "buckle you seat belt". Who has to transmit this message? Professionals working in this field before, during and after separation or divorce; in other words, lawyers, psychologists, judges, social workers, notaries, police officers, the staff at shelters and mediators.
To do this, they have to be encouraged financially, as is the case with preventive medicine: doctors get big bonuses, not based on the number of patients, but based on the number of people in good health. We have to try to introduce a system of preventive family justice here in Canada. This is entirely feasible if we want to do it.
As I said, financial incentives are necessary. Everyone knows that the more lawsuits and conflicts arise, the better off family professionals are financially. So we have to compensate them for lost revenue because everyone has to live and earn a living.
We must also try to put parental alienation syndrome on the list of psychological syndromes, on the list of accepted psychological diseases. According to many psychologists, there is no such syndrome, it is not clear it exists. It must be clearly recognized that it does exist, that it must be fought and that legal aid must be available to pay for the services of psychologists to reduce the psychological tensions in children who have been alienated for a certain length of time.
The climate in this field depends entirely on professionals and there is a chance we can change the situation substantially. But there must be a will to do so.
With your permission, I will cite a brief example. Two years ago, I think, authorities wanted to persuade pharmacists that they had to monitor excessive medication. Some nice words were spoken and the whole thing failed to work. But when they said that every pharmacist would be given financial incentives, things started to move. We could do the same thing in this field. At this moment, we are raising young adults who will be future welfare clients. At that time, who will be able to pay for our retirement?
The Joint Chair (Senator Landon Pearson): Thank you very much. You've made your statement. If there are no questions, we will break until 1 o'clock.
Mr. Jacques Gurvitz: I would like to add a brief word. There is the book that was written by Dr. Hubert Van Gijseghem, entitled L'Enfant mis à nu, which contains a chapter in which access is viewed as the cause of false accusations.
The Joint Chair (Senator Landon Pearson): Thank you.
The Joint Chair (Mr. Roger Gallaway): Order, please.
You're a very quiet group this afternoon—although this is only the beginning of the session, and not the end. There's a certain dynamic that usually occurs, and it becomes more animated towards the end of each hour.
I want to welcome you all here, this being the last afternoon of the last day of the week. We're very pleased to see such a full table.
For the record, I will introduce, in no particular order, from F.E.D. - U.P.—I hope you will in due course tell us what that means—William Levy, Tony Drufovka, and Harry Braunschweiler.
Next, from the Parental Alienation Information group, Pamela Stuart-Mills.
From McGill University's educational counselling department we have Professor Glenn Cartwright and Despina Vassiliou.
From the Groupe d'entraide aux pères et de soutien à l'enfant, we have Mr. Claude Lachaine and Mr. Ghislain Prud'homme.
We are going to start by giving the floor to the Groupe d'entraide aux pères et de soutien à l'enfant. As you know, you will have five minutes to make your presentation and we will then move on to the next group.
Mr. Claude Lachaine (Director, Groupe d'entraide aux pères et de soutien à l'enfant): I would like to thank the committee for giving us this opportunity to describe all the problems experienced by divorced fathers, even though the time allotted to us for this purpose is very limited.
Our organization has been in existence for 14 years and has 1,600 members. It's purpose is to defend the right of children to love both their parents and the right of fathers to love their children. It provides various services to divorced fathers and offers innovative solutions to marital break-ups.
There are two schools of thought concerning the broken family. In recent years, government and many social groups have spoken out and defined the ways in which the interests of the children of broken families should be defended. Two main schools of thought have developed: a single-parent approach, that is to say an approach in which the mother is the single parent and the father an automatic bank machine, and the two-parent approach according to which the children of divorced parents are entitled to see both their mother and their father.
Let's talk about the approach of the political/legal system. The various stakeholders in the current system clearly favour the single-parent approach. These stakeholders are the legal system, taxes, the political system, social institutions, such as union organizations, the CLSCs and a number of official women's organizations.
What are the consequences for children? According to Statistics Canada, the children of families headed by a single mother are at greater risk of experiencing emotional or behavioural problems or school or social problems, whether or not the family is poor.
Child custody: The custody of children is clearly awarded on a sexually discriminatory basis. You need only look at some of the statistics in the appendix to see that this is true.
Access: In a 1993 paper by the federal Department of Justice, we see that the rules of law were already completely ineffective at that time with regard to execution and that 69 percent of non- custodial parents were already experiencing problems in exercising their access and visiting rights.
False accusations of violence: False accusations of violence made by mothers against fathers in the context of a break-up are increasingly becoming the standard divorce method used by women to deprive men of shared custody or access.
For example, in cases of incest charges brought in the course of guerilla warfare between ex-spouses, more than 70 percent of these charges have proven to be false. A man accused by a woman today is presumed guilty and the burden is on him to prove his innocence. And his ties with his children are then limited, if not broken.
Our recommendations: Mandatory shared custody failing an agreement to the contrary between the parents; mechanisms to enforce access; and mechanisms to counter false accusations of violence.
The schools of thought: Children are the first victims when parents break up. There is a social consensus that we should try to minimize the suffering of children who are experiencing their parents' break-up. In recent years, government and many social groups have spoken out and defined the methods that should be used to defend the interests of the children of these broken families. Two main schools of thought have developed, as I said a moment ago: the single-parent approach and the two-parent approach.
The single-parent mother/automatic bank teller father approach: As a result of pressure by feminist groups, government fears of alienating the female vote, certain abuses by a small percentage of fathers and an ideological tendency to always see women as victims and men as aggressors, bad guys, this ideological simplification has developed in recent years in government legislation and the enforcement of that legislation by the courts and in case law.
Under this approach, it is considered that, following a-break- up, children no longer need their fathers, but only the financial support they provide; mothers' rights are consolidated and over- protected; there is a presumption of good faith on the mothers' part and of bad faith on the fathers' part; mothers are considered as having a natural family role and fathers as having only an optional role in the day-to-day emotional support of family.
The practical effects of this school of thought are as follows. The term "single-parent family" is used to designate the family unit consisting of the custodial parent and the children. The term "single-parent" means that the child has only one parent. Custody of the children is granted on the basis of the parent's gender. The mother need only refuse to accept shared custody in order to immediately obtain sole custody.
Costly automatic support payment collection mechanisms are put in place, even for non-defaulting fathers. It is assumed that, apart from support payments, fathers will not contribute on their own to their children's financial welfare. Consequently, support payments are calculated on the basis of the transfer of all the resources intended for the children from the non-custodial parent to the custodial parent, both for essential needs and for luxuries.
The Joint Chair (Mr. Roger Gallaway): Mr. Lachaine, you have already spoken for five minutes.
Mr. Claude Lachaine: We would have needed five days, counting on the basis of five minutes per presentation for each case, to describe all the cases there are. It's unfortunate, not particularly for the fathers, but for the children of these families.
The Joint Chair (Mr. Roger Gallaway): Have you almost finished?
Mr. Claude Lachaine: No, sir, I could go on for another five days.
Senator Anne Cools: I would surrender my five minutes to give them each another minute.
The Joint Chair (Mr. Roger Gallaway): Another minute or another five minutes?
Senator Anne Cools: I'm prepared to let them have my time.
The Joint Chair (Mr. Roger Gallaway): Does the committee agree to that?
Some hon. members: Agreed.
The Joint Chair (Mr. Roger Gallaway): Okay.
Senator Anne Cools: That means, of course, I can't ask you any questions, but that's fine. Carry on.
Mr. Claude Lachaine: I'll let Mr. Prud'homme continue and make part of the presentation. Thank you, Ms. Cools.
Mr. Ghislain Prud'homme (Director, Groupe d'entraide aux pères et de soutien à l'enfant): I'm going to continue by talking about the two-parent approach, according to which the children of divorce need their parents as much as other children need theirs and are just as entitled to have them. This school of thought was recently publicized following an abuse suffered by many divorced fathers who refuse to have their parental role reduced to providing a monthly payment and a few days' access per month.
At the turn of the century, women began to want to share the economic power that men held. Since the 1970s, women have entered the labour market en masse and fathers are much more involved with their children than previously.
At the time of a break-up, however, society no longer acknowledges that fathers have this right. Consequently, when they now request a sharing of parental rights, they find themselves in the same situation as the women who sought a division of economic power at the turn of the century.
The two-parent approach is the better approach to ensuring emotional and financial continuity for children. Under this approach, children are entitled to love both their parents and both parents are entitled to love their children, and all three players in the divorce, children, mothers and fathers, are respected.
The practical effects of the two-parent school of thought are as follows: the term "broken family" is not used to presume that one of the two parents has disappeared; shared custody becomes a way for the children to maintain high-quality emotional ties with both parents; the parents, while remaining emotionally committed to their children, contribute willingly to their children's expenses; both parents continue to play their parental roles and are treated in a way that assumes they are in good faith, and thus responsible parents; children thus benefit from the emotional and financial contributions of both parents.
In short, under the two-parent approach, the father remains a responsible decision-maker who willingly contributes services to his children and who fully exercises his parental responsibilities, while the mother is no longer overprotected and yet retains an essential role with respect to her children.
We are in favour of good understanding between former spouses and, consequently, more flexible access based on the expanded family, grandparents, cousins, etc., on the father's side.
The two-parent approach is effective in the majority of cases since the father and mother are not hurt by the system and continue to be committed as parents to their children. This is the path that should be favoured.
The political/legal system approach: The various stakeholders in the present system clearly favour the single-parent approach. We are now going to show you how the various social stakeholders have established mechanisms designed to distance the father from his children.
The legal system: In the process in which a couple with children break up, the legal system must very quickly determine custody of the children when ruling on corollary relief. These custody arrangements are finalized at the time of divorce. In most cases, since the mother benefits from a favourable prejudice by the judge, she obtains custody of the children.
What are the consequences of this situation for the father's legal status? The case law is very clear on this subject. In the Supreme Court's 1993 decision in Young v. Young, it is clearly stated that the award of custody withdraws the non-custodial parent's right to exercise parental authority.
Another recent Supreme Court decision states that the custodial parent has sole power to make all decisions concerning the children, particularly with regard to their place of residence. In practice, this means that, legally speaking, the father is no longer really a parent, but a weekend buffoon who can see his children only if the mother decides not to move hundreds of kilometers away from the father's home.
In the performance of their duties, judges do not scruple to retail their prejudices against fathers. A few examples were recently reported by the press. In March 1997, Judge Pierre Journet admitted the following as he handed down his judgment on custody: "I tell you this is a prejudice I have. I believe I am one of those who feel that young children are better off with their mother than with their father."
In another custody case, a Montreal judge told the father: "You have never carried or breastfed a child. So what do you know about children?"
Lastly, Judge Pierre Viau expressed his prejudices in the following sentence while handing down a custody ruling: "In view of the objective necessity for young children to be with their mother often...".
And yet, in this last case, one expert had recommended joint custody, while the other had recommended that sole custody be awarded to the father. These are not isolated cases. Every week, similar cases are reported to our organization.
The Joint Chair (Mr. Roger Gallaway): You have had the benefit that Senator Cools granted you and we must now...
Senator Anne Cools: Sorry. I can't hear anything. What did you say, sir?
Voices: Oh, oh.
The Joint Chair (Mr. Roger Gallaway): I wasn't talking to you. I was talking to the witness.
Senator Anne Cools: Oh.
The Joint Chair (Mr. Roger Gallaway): We must now move on. I believe we have received a written report...
Ms. Eleni Bakopanos: Yes, that's correct.
The Joint Chair (Mr. Roger Gallaway): ... which you are now reading. We have received the report and the committee members will be able to read it.
We'll move on now to McGill University, the Department of Educational Counselling.
Go ahead, please.
Ms. Despina Vassiliou (PhD candidate, Department of Educational and Counselling Psychology, McGill University): I'm here today to summarize my recently completed study on parental alienation syndrome.
I'll just quickly define it. The term was first coined by Dr. Richard A. Gardner, an American forensic and child psychiatrist, who noticed some common characteristics among the divorce cases in his practice, which he labelled PAS.
PAS is defined as a syndrome whereby one parent, usually the custodial parent, alienates the child or children from the other parent. Usually the alienating parent engages the child in a series of conscious and subconscious techniques, such as brainwashing, in an attempt to denigrate the other parent. The child also contributes to the denigration of the allegedly hated parent.
In my study, we examined the lost parents' perceptions of the alienating circumstances they and their families experienced. The goal of the study was to gain a better understanding of the nature of parental alienation syndrome and its consequences.
A small sample of the lost parents from across the continent, in both Canada and the U.S., were interviewed from a qualitative perspective. The four issues addressed concerned: number one, the characteristics common to alienated families, such as the number of children and the number of marriages; number two, common themes or issues among the conflicts within couples that contributed to the dissolution of the marriage; number three, the common themes in the participants' experience of the alienation process; and finally, what the lost parents perceived they might do differently, given the opportunity.
The results suggested that in regard to the issue of the common family characteristics, there were no family characteristics that were found to be strong indicators of the occurrence of PAS.
The second issue was whether there were common themes or issues among the conflicts within couples that contributed to the marriage dissolution. It was postulated in a study that an elevated level of conflict contributed to the occurrence of PAS.
However, the results suggest that dissolution of the PAS marriages occurred with varying degrees of conflict, from high levels of conflict that included physical aggression, such as objects being thrown, to situations with absolutely no conflict, where a third party would be informed by the spouse's mother-in-law of a divorce. The study also found that with time the majority of the participants reported strained relationships with their ex-spouses, where most had little or no contact with them.
The third issue was whether there were common themes in the participants' experience of the alienation process. Several themes among the cases were found.
First, there was a general decrease in the frequency of visitation for the lost parents. The participants reported that primary custody was given to the mother at the onset of divorce, regardless of who later became the alienator and who became the lost parent.
Further, the fathers all had a consistent visitation schedule at the beginning of the custody arrangements. For instance, they would visit on one weekend, every two weeks. The final custody arrangements resulted in the alienators receiving custody and the lost parents receiving a significant reduction in their visitation schedules, from half the original plan to absolutely no contact at all. For instance, a father who received visitation once every two weeks would be down to once a month, or to absolutely no contact with their children.
Moreover, as expected, with the reduction of visitation, the lost parents described limited relationships with their children, to whom they often wrote without receiving replies. They would send letters or gifts and there would be no acknowledgement of receiving the letters, no thank yous.
The third finding was that all of the participants perceived a general sabotage of their relationships with their children by the alienators. The findings confirmed that the alienators used denigrating techniques, such as implying that the lost parents were not good people.
Four, the children acted as secondary alienators by the alienator parents to contribute to the alienation. Others, such as grandparents, also participated in and contributed to the alienation. Why extended family members participate in that alienation remains unclear, although there's some indication that it depends on the closeness of these other alienators to the alienating parents. For instance, a mother of the alienator will be more likely to alienate as well.
Six, the participants perceived the underlying cause of the alienation to be hatred towards them, anger, revenge, or a combination of these factors.
Seven, the lost parents perceived a loss of both parental role and power, whether or not they had visitation with their children. Others, especially the children, could determine when, if at all, they would see their lost parent, under what circumstances, and particularly what the lost parent would do with the child. The lost parent had to be careful not to anger the child lest they not see their child again.
Another study, by Lund in 1995, also found that the parental skills of non-custodial parents deteriorated, which contributed to the occurrence of PAS. Such deterioration of the parental skills may be the result of a lost parent's sense of powerlessness over the situation. As indicated in the study, they did not exercise their usual parenting styles because they felt disciplining their child may have resulted in the child becoming angry and then retaliating by denying visits with the lost parent.
Eight, lost parents were generally dissatisfied with legal and mental health assistance. Both the legal and mental health professionals were usually uninformed about PAS. The participants perceived a lack of knowledge about PAS on the part of the professionals as well as a failure at the professional level to gather important information prior to drawing conclusions. Participants perceived the psychological service they received as not helping the situation of alienation, and perceived the legal professionals as supporting, and even contributing to, the alienation.
Finally, what are some of the things lost parents perceived they might do differently, given the opportunity?
First of all, the lost parents would go to great lengths to avoid experiencing alienation again. Knowing what they know now, the participants would have behaved differently towards their ex-spouses, such as never even being married, taking different legal routes, or receiving psychological services at an earlier date.
Second, they continue to hope to be reunited with their children in the future. Specifically, the participants believe that maintaining contact with their children, such as by sending letters and cards, increases the possibility of a reconciliation with their children by letting their children know that the doors are always open for them.
The Joint Chair (Mr. Roger Gallaway): Ms. Vassiliou, are you almost finished?
Ms. Despina Vassiliou: Yes, in just a minute.
Third, the participants perceived the alienating circumstances as exerting serious negative, emotional, and financial consequences on their lives.
Though tentative, these findings demonstrate both the complexity and seriousness of PAS. It's the courts that dictate when the children will be able to see their mother or father.
Other studies, such as that by Dunne and Hedrick in 1994, have indicated that compared with various forms of therapy, the only effective intervention to counter PAS was court-implemented custody change that resulted in children being removed from the alienating home. The key is in recognizing the signs of PAS promptly and concluding the custody proceedings early, when deciding on a change of custody, to avoid perpetuating this syndrome.
The Joint Chair (Mr. Roger Gallaway): Thank you.
Ms. Stuart-Mills. Five minutes, please.
Ms. Pamela Stuart-Mills (Founder, Parental Alienation Information Network; and President, Women's Foundation of the Eastern Townships): I'm sure I won't have a problem. I think Despina has—
Senator Anne Cools: Mr. Chairman, please, these are fabulous people. Let's take an official few minutes and give them a bit of extra time. This young lady obviously is a candidate for some sort of degree and is doing research. Mrs. Mills represents an organization, represents 500 families. Let us take a few extra minutes, please.
The Joint Chair (Mr. Roger Gallaway): I am, actually, Senator. They are going well over the five minutes before I stop them.
Senator Anne Cools: Oh, I see. You're still—
The Joint Chair (Mr. Roger Gallaway): I am exercising that discretion. However—
Ms. Eleni Bakopanos: Plus we can also read through—
The Joint Chair (Mr. Roger Gallaway): Exactly. A number of these are being read—
Senator Anne Cools: It's the parliamentary secretary speaking.
The Joint Chair (Mr. Roger Gallaway): It doesn't matter. She's a member of the committee.
Ms. Stuart-Mills, please.
Senator Anne Cools: For that matter, they didn't have to come here at all, then, because—
The Joint Chair (Mr. Roger Gallaway): Okay, let's let our witness proceed, please.
Ms. Pamela Stuart-Mills: Perhaps if there are questions, I think that a lot of what Ms. Vassiliou has said I can corroborate. I'm a lost parent.
I don't have a brief to present to you, because I don't like repeating things that have already been said. I know it's Friday afternoon, and I think it's a miracle that you are all still here and you haven't all fallen asleep.
I come to you today not only as founder of an organization called PAIN, Parental Alienation Information Network, nor—which is a kind of paradox—as president of the Women's Foundation of the Eastern Townships, but I shall try to speak to you very simply as a mother and a parent.
I have watched a little bit of the hearings on television, and at one point I was reminded of a play I saw recently called The Crucible, by Arthur Miller, about the Salem witch trials. I think it's really important for you, our legislators; you are our last resort. I speak to you without hatred, without malice, without anger, with a great deal of sadness. I believe legislation needs to be totally free of any taint of hysteria, and you're going to have a very difficult job legislating human beings, because every single case that comes before my organization or anybody else's is totally different. It is impossible to have a grid approach. It is impossible to have a formula.
That is why I'm so upset about Bill C-141, because the whole idea of legislating financial arrangements for families, to me, is an aberration and a disgrace, when there has been absolutely no discussion on the child's soul, the child's mind, the child's physical and psychological well-being. The idea that this bill could even go through Parliament without these discussions coming first is a blot on Canadian parliamentary procedure.
That having been said, very briefly, I think what you're seeing here today is the culmination of a great mix-up in our society between the matriarchal and patriarchal roles. Matriarchal roles started to evolve in the early part of this century and have been greatly increased because of the two world wars and the empowerment of the women's movement. But I do not believe, with my experience in working with families, that our system is yet necessarily ready for the androgynous model of joint custody. I know I'm not popular when I say this, but our system is not able to cope and our human beings, on a human level, are not necessarily able to cope with a non-patriarchal or non-matriarchal family role.
Incidentally, there is a point that was brought to my attention only yesterday by Dr. Richard Gardner, to whom Ms Vassiliou refers. I spoke with him yesterday and he asked me to inform the committee that parental alienation syndrome has been accepted in the United States for inclusion in TSM 1, Treatment Systems Manual 1. This means that as of 1999, parental alienation syndrome is recognized in the field of psychiatry by the insurance companies as a treatment-eligible syndrome, and this is an enormous breakthrough in terms of recognition.
As I say, I found out about it at four o'clock yesterday afternoon, and I'm delighted to be able to bring this to you, because one of the questions I was asked at a previous hearing was whether or not PAS was included in the DSM 4, the diagnostic systems manual, and the answer was no. It is an evolving thing that we see more and more of.
Personally I would just like you to know that I was alienated from my four children in 1989. They were taken away from me and brainwashed. The courts gave me custody of my two youngest children after a two-year court battle in which I did not see my children at all.
I can tell you that it is absolutely true what Ms. Vassiliou said about your parental skills being.... Every moment that you spend away from your children diminishes your parental skills. Every moment that you spend away from your child diminishes your loss of parental authority. How devastating it is when you don't even know what your child's shoe size is!
I got my two youngest children back; in fact, my youngest daughter is sitting here right now listening to us. My two oldest children were considered too old by the courts to be put again in contact with me, and they were also considered too dangerous for me. They were physically violent to the point of being dangerous.
People try to say parental alienation doesn't exist and it's not permanent. Well, the last time I held my son and my daughter in my arms was in 1989, and I'm still waiting, and it's nine years later.
Alienation is the most horrific thing that can be done to a child's psyche. Thomas Martin defined alienation, and I think it's the best definition I've ever heard. He said that alienation in the psychological sense is when the centre of identity is experienced not in one's self but in someone else.
I see the chairman looking at me.
The Joint Chair (Mr. Roger Gallaway): You're over time, but you can take a few minutes.
Ms. Pamela Stuart-Mills: Okay.
An alienated child's reason for existence is for someone else's personal profit, and ultimately what happens to these children of alienation is that their life lacks meaning because they are not raised in a situation where they can develop their own authentic personality. I have christened these children the “children of the lie”.
We are looking at an epidemic situation in Canada today, and I ask you, as legislators, to bear this in mind. As the non-custodial mother of my two oldest children, I would also remind you that everything you hear from the men's groups applies to women too, except that the women are so ashamed of the rejection and the separation from their children that many of them are afraid to come forward because of the social stigma attached. We have such an apple pie picture of motherhood that many women have failed to come forward and have failed to contest their rights before the courts simply because of the social stigma.
In closing, I would urge you to put the concept of money aside and look at the issues of personal integrity, inner peace, authenticity, identity, inner depth, spiritual joy and the capacity to love, to put your emotions aside and to put all the hysteria and all the anger that has reverberated in these hearings aside when you do make your recommendations. I pray that your recommendations for change here in Canada will be guided by wisdom and serenity.
The Joint Chair (Mr. Roger Gallaway): Thank you.
Now we'll hear from the group F.E.D. - U.P. Perhaps you're all going to share the time. Please proceed.
Mr. William Levy (President, F.E.D. - U.P.): Thank you very much for allowing us this time. I will talk more quickly than I expected to talk.
The Joint Chair (Mr. Roger Gallaway): Let me ask, before you start, have you presented us with a written brief?
Mr. William Levy: Yes, I have.
The Joint Chair (Mr. Roger Gallaway): Will you be reading from that only?
Mr. William Levy: Yes, but it's a very brief brief.
The Joint Chair (Mr. Roger Gallaway): Okay. Please proceed.
Mr. William Levy: I'll try my best.
A divorce happens for one or many reasons, but commonly it marks the end of love for one's spouse. When there are children in the dissolved marriage, why does the court involve itself in making decisions that lead to ending the ability of a parent to be one?
What does divorce have to do with being a parent? Why are children being separated from the love and caring of one of their two parents just because there is no more husband and wife? What possible supporting argument could be made to suggest that when you get divorced you have also chosen to lose your child?
Husbands and wives divorce because they do not get along or they do not communicate. This is not a criterion for good or bad parenting. Courts continue to hand out judgments restricting the parental rights of one of the divorced parents while at the same time giving absolute power over the children to the other. Judges who are untrained and grossly unqualified for these matters are making those decisions.
Has not civil divorce today with children become confused with criminal law? The marriage is over and the husband or wife is, in a sense, found guilty for the failure of that marriage and must pay a price that is higher than that proverbial pound of flesh.
Up to 18-year sentences, or more, of exclusive custody are handed out to one parent, and that's usually the mom, and up to 18-year sentences, or more, of near exclusion are handed out to the other, usually the dad.
Dump the kids on mom. Stick dad with the bill.
This arrangement, the court claims, is good for the children, but in reality it is expeditious and antiquated and is a formula for abuse and revenge. Drunken murderers get lighter sentences. What more Draconian, vindictive, heart-breaking punishment to hand any loving parent and child than the court deciding to remove one parent while giving full custodial control to the other? Trauma and alienation are the result of such arrangements for both the children and the non-custodial parents.
At best, the non-custodial parent is reduced from parenting 24 hours a day, 365 days a year to alternate weekends, four days a month, Wednesday suppers for maybe two hours, his own birthday with the children, and some holidays, on an alternating basis. Out of 8,760 hours in a year, they get under 1,000 hours of exposure to the children.
As time passes—and this is the most important thing—the non-custodial parent becomes nothing more to the now older child or children than an intrusion on the routine. The children and the alienated parents suffer so outrageously that common sense is long overdue to prevail. To humiliate a parent in front of the children for the death of a marriage is unconscionable. It's out of date with the times and just plain stupid.
To remove a child from a parent is heartless, irresponsible and thoughtless. The big lie we live with is what morally bankrupt lessons on values we are giving our children with divorces.
The experts claim it is important for a child to have stability and continuity in their lives—the same bed, the same table, every single day.
The lesson? That materialism supersedes a child's need for love and care from the other parent; that removing a parent and getting money instead is okay.
A parent is a parent. It took both to bring the children into the world and both must remain committed, accessible and responsible to them. Home is where love is, and a divorce creates two loving homes from one: mom's home and dad's home, both equally the child's home. This allows the child to fully blossom under the influence of both mom and dad.
Children must stop being the hostages used in the divorce war. “Husband and wife” has no relationship to “mother and father”. Let's leave visitation rights where they belong—in prisons. Revenge has no place in our civil system in setting examples for our children. The finger-pointers have no place in a meaningful dialogue to make real progress in saving our children. Those agendas to wreak punitive revenge on men are as self-serving as our current laws for child custody and access. We live in 1998, not 1898. The times have changed and so must we. Only then will the best interests of the children be safe.
Do I have time for the last page?
The Joint Chair (Mr. Roger Gallaway): Go ahead.
Mr. William Levy: Thank you.
No dialogue is good without giving some recommendations. I have seven points I will go through as quickly as I can.
First, only specially trained and qualified judges should preside over a divorce, not the unqualified generalists we have today.
Second, there must be no divorce granted without automatic joint custody, with denied or restricted access only to accommodate special circumstances, like child abuse, mental and physical constraints and so on. No parent is a 51% parent.
Third, just as there are funded shelters for women across Canada, so must there be shelters for the other 48% of the population, men, and for all the same good reasons women have them. Men are victims of violence and abuse too. It is not exclusive to women, as some would have you believe.
Fourth, we are in a crisis that requires the involvement of our schools in educating our children in the matter of sexes respecting each other. We need to get over gender prejudices that stereotype men as emotionalists, philanderers, vagrants and women-beaters.
Fifth, for your consideration—and no booing—bad husbands and wives do not necessarily make bad moms and dads. Spouses beating each other in front of their children, verbally or otherwise, is horrific, absolutely horrific. But if the children are our only witnesses, who is to judge whether, when these parents separate, each has the capacity to be a model parent?
Sixth, child support and child access must be balanced. Just as we enforce support payments through harsh litigation, we must create similar legislation to ensure that, as much as possible, child access is never denied.
My seventh point is about communication. We need to get both genders working together. What better opportunity to show our maturity as a society than to create or fund an independent national standing council for men, women and children, made up, perhaps, of committed laypeople, whose priorities are the elimination of gender bias and the distribution of information in that regard. Finger-pointing and accusations by special interest groups looking to win their agendas have accomplished nothing to help our kids and have served only to increase tensions between the two genders.
The Joint Chair (Mr. Roger Gallaway): Thank you very much, Mr. Levy. We'll now proceed to questions.
The Joint Chair (Senator Landon Pearson): We have yet to hear from Professor Cartwright.
The Joint Chair (Mr. Roger Gallaway): Oh. Professor Cartwright was listed as being with a group.
Professor Glenn F. Cartwright (Individual Presentation): No.
The Joint Chair (Mr. Roger Gallaway): That's what this list shows. I'm sorry. Please proceed.
Prof. Glenn Cartwright: Thank you very much.
In order to understand parental alienation syndrome, I think one has to look deeply at human nature. Most parents want their children to grow up to be like them. That's just a fundamental aspect of what it is to be human. We like our children to like things that we like and we like our children to not like those people we don't like. And of course, when divorce enters the picture, it's natural that we don't want the children to like the other parent.
Parents who have gone through nasty divorces have very often discovered that it's very difficult sometimes to get their children away from that other parent, so this whole technique of parental alienation syndrome—so-called—has come to the forefront. And parents engaging in this have learned that they don't get punished for doing it. There is basically no sanction.
I don't want to repeat a lot of the things that other witnesses have said, but let me just say that the whole notion of parental alienation syndrome as a syndrome is getting worse in our society. And I'd like to make the point, and stress it very clearly, that an already broken family can break down even further. And we mustn't allow that to happen. We can't afford that in our society.
Parental alienation syndrome is extremely serious, and I'm using very strong language here. It is nothing less than the symbolic killing of the non-custodial parent in the life of the child. It not only kills the non-custodial parent, it kills the grandparents and the aunts, the uncles, the friends and so on. One half of the child's family disappears from view and the child is not allowed to grieve that loss. It's been estimated by Dr. Gardner, whom you've heard mentioned today, that PAS, to some degree, affects 90% of all children involved in custody disputes. Not to put too fine a point on it, parental alienation syndrome is a serious form of child abuse.
I also wanted to bring to your attention one other fact. I've made some recommendations in my brief and one of them is that corrective legislation is necessary and will have a trickle-down effect not only on the participants but on a number of other institutions in our society. And I'm thinking particularly of schools.
In addition to my work at McGill, for example, I also sit on the board of governors of a junior college, and I happen to know that this particular junior college, until recently, blotted out the addresses of students when sending the transcript home to the non-custodial parent. When asked why, they didn't really have any reason. They said maybe the phone number was unlisted. I don't know when the law prescribed that junior colleges have to act as the custodians of Bell's unlisted telephone numbers. That's not what they're there for.
There is a school on the south shore of Montreal where the principal says, “I don't care what the law is. I'm not sending the report card home to the non-custodial parent. Tough!” It's just as simple as that. And they know that is contrary to the spirit of the law and to the actual laws that are in place here in Quebec.
My second recommendation is that the playing field be made gender level. I say it must be gender level because some action is required to make that happen, and then, I think, we will find a lot more agreement among the parties and this benefit will trickle down to the children.
Third, there must be a wider range of assistance options available to divorcing parents. You have heard from other witnesses that this should include mediation, parent education, co-parenting schemes and support groups and so on.
I've heard some of the televised proceedings of this committee. You've heard basically from psychologists, who want more therapy; mediators, who recommend more mediation; social workers, who recommend more supervised visits; and lawyers, who want more litigation in order to “win”.
It doesn't work. It's too costly, and our experience is that it's been a failure. The process must be simplified and reliance on these professionals reduced if we are to achieve balanced solutions that are respected by all parties.
Now, in all of this, I think the courts do have a role, particularly in the area of parental alienation syndrome. When that syndrome has been established, the courts must take swift, decisive action to prevent or stop the alienation process.
Finally, there has to be a wider range of sanctions available to discourage parents from alienating their children. They must get the message that it is a bad thing to do.
For custodial parents—and I know we don't like those words; to me, it's actually the child who has custody of the parents, and not the other way around, which is maybe the way it should be—there should be a loss of privileges; fines; penalties for perjury and/or contempt of court; change of custody; and even incarceration, if necessary, so that custodial parents understand they have a duty to encourage their children's relationship with the non-custodial parent.
The Joint Chair (Mr. Roger Gallaway): Thank you very much.
Mr. Forseth, we'll try again.
Mr. Paul Forseth: Thank you very much.
We've heard a number of themes in the last few days—needed equality and equal responsibility post-separation—and you've used the term “gender levelling”. To preserve continuity, sameness, and predictability for children, often the general arrangement of which parent has been the main, day-to-day care- and control-giver is often made in an interim order, where often the die is cast for future situations, especially if it's going to trial in a contested case. This is what happens.
It's often said in response, though, that if mothers, the way society is, now do nearly all in day-to-day care before the break-up, why is it we have all these fathers who want to be involved in significant parenting after divorce? Why shouldn't courts just affirm what the parents had already adopted in their lifestyle before the break-up?
This is the reasoning that is said to explain some of the apparent bias in court decisions. I'd like some answers from you folks on how this explanation I've given squares with the testimony of wanting presumptive joint authority post-separation.
Mr. Claude Lachaine: The problem is that this is one of the social prejudices that fathers have to face after a separation. I have to say I was brought up during the media explosion in television, radio and in communications in general. In the past 30 years, since they were children, fathers have heard that they have to get involved in the family. So many fathers, not to say the vast majority of them, are involved in the family.
The problem is this. With all the prejudices that are conveyed all day long, and we're talking as much about regular detergent ads on television as about more serious conferences, the father's role is still being viciously—if you'll pardon the term—and systematically demeaned. Consequently, how can we win proper judgments? Judges react to all these prejudices, and we don't even have the change to prove our worth.
In asking your question, you were talking about fathers who are or are not involved in the family prior to the divorce. One of the problems we're facing is that, before a judge, before the bench, we absolutely have to prove that we are good fathers or that we were good fathers, whereas the mother doesn't have to prove anything at all. The mother's mere allegations are sufficient for a judge to take custody away from the father or limit his access. Even when we submit all the necessary evidence in Court, in the legal system, we have an enormous amount of trouble having our views heard, whereas the mother's mere allegations are accepted at face value.
Mr. Paul Forseth: Go ahead.
Mr. Tony Drufovka (Member, F.E.D. - U.P.): Hello. I'm a social worker, and I also have a degree in public administration.
I've been separated for two years. I first went to initiated mediation and asked for joint custody. My ex-wife did not want to give it to me based on language and culture. She's francophone and I'm anglophone.
I never understood what she meant, because in my family, my father spoke six languages, and my mother four. So that was a foreign concept to me.
At any rate, I found this response a little odd, so I decided to get the information from court. What I didn't realize when I went to court was that, basically, I had only a 7% chance of getting joint custody. I didn't do the research.
I consulted a dozen lawyers, and they told me the best I could get out of the whole deal would be maybe eight days of access, with so much for child support. As well, no judge would impose joint custody unless the mother agreed to it.
I said to myself, you know, I stayed home from work for six months for my child. I think I am a model dad. She even says I am a good dad. She sends me cards, and my kid sends me cards, saying I'm a number one dad. I said to myself, what's going on here?
I went through some fact-finding research to try to find out exactly what was going on. I started to understand, even in my own practice, all kinds of prejudices, and how much, even in public institutions, dads are not that important. I contacted research professors at McGill, who claimed that all our public institutions are geared to female-oriented services. When a man is in distress and goes for these services, he's not always listened to. When he goes to court he's not always listened to, as the gentleman here said.
When I went to school and asked for a copy of the report card, I was told to go and see the custodial parental. What happens if the custodial parent doesn't want to cooperate?
These are the things that did not make sense to me. From what I understand, it's hard to detect prejudice, but when you go through and examine other people's cases, you then realize that what's happening to you is not because you're a bad person; it's because people don't believe fathers should get involved.
I think the state has to have a rule. Other states in the world, other countries, have taken a different route. Canada is a very conservative country, and that has to change. You have to set an example.
Mr. Paul Forseth: Any other comments on that?
The Joint Chair (Mr. Roger Gallaway): Go ahead.
Mr. Harry Braunschweiler (Member, F.E.D. - U.P.): If I can answer your question, I might also be able to shed some light here.
I've been divorced for 10 years, and the battle still rages. At first I took the position that I was not going to get into a fight. If my ex-wife wanted me to take my son, she would call me, or I would call her to ask if it was okay for that weekend. It was only after an accident with my son, when I saw him and his mother interacting in the hospital, that it became apparent to me how much of a cold relationship it was.
This is when I finally decided to forget about my ex-wife; I was going to find out what was going on in his schooling. I did find out.
I'm an anglophone Quebecker. I've been an anglophone for one reason only: I'm Protestant. When I was born in 1955, and ended up going to school in 1960, you didn't have any French Protestant schools in the province of Quebec, even though my father is from Switzerland, where French was his second language. My relatives in Switzerland speak French and Swiss-German.
When I found out that my ex-wife, without my knowledge, without my okay, shifted my son's education from French to English, I requested that the court at least impose.... I thought that under the Constitution of this country the child of an English father and French mother should have a 50-50 education. The judge ruled, “I'm sorry, two-thirds English and one-third French education is sufficient”, and he awarded custody of my son to my ex.
In my case, I felt that I tried even when I was the father.... I was there when he was born. I was there every time that he was there, when he was sick. When he had to have tubes in his ear, I was there. But it was very difficult afterwards to try to keep up in that same area.
Now I have a son who is going to be educated predominantly in English. It will be very difficult for him to find a job in this province, and I hope he doesn't move out of the province because of this.
I'm so discouraged with the legal system. I hope at least this council comes up with changes that say it should not be a winner-take-all situation. I loved my son when he was born or else I wouldn't have had him, and I still love him even though I'm divorced. But unfortunately....
The Joint Chair (Mr. Roger Gallaway): Thank you.
Senator Lucie Pépin: I'm very pleased to hear that a parent is a parent and to see all these fathers or these parents who want the custody and especially the upbringing of children to be shared.
However, I would like to put things into perspective somewhat because I believe I am older than most of you. I'd like to set the record straight and tell you that, when the Divorce Act went into effect in the 1960s, women were abandoned by their husbands, were most often held responsible for the divorce and often had to raise the children alone. That's the way things were at the time. Now women are still responsible for all the bad things that happen to the children. So it seems to me, as some of you have said, that perhaps the system is responsible and we have to change it. I quite agree on that.
I believe it is very important to say so. This takes nothing away from all the presentations you have made here today, but I find it important to say that.
I also completely agree that there should be shelters for men or fathers who are in difficulty. It's true that women have shelters for battered women and that there are many women's groups and systems, but we started from scratch. Prior to that, there was nothing. Today, we are listening to you and we believe you, but at first, when women got together to say what they had to say, people laughed at them and didn't believe them. I can assure you that, when we announced that one out of 10 women was beaten in Canada, people laughed at us for a long time. It even became necessary for MPs to make public apologies because they had cracked jokes on the subject. So times have changed in that now we believe you and we're ready to do something, but we also have to put things into perspective and tell you where we're coming from. Thank you.
Mr. Claude Lachaine: May I?
The Joint Chair (Mr. Roger Gallaway): Go ahead.
Mr. Claude Lachaine: I can't answer you, Ms. Pépin, concerning what happened in 1960 because I was five years old at the time. I'm living in 1998. My son is three years old and he is living in 1998 too. We could wage a statistical war on that period. I could cite the studies conducted by Wolfgang from 1948 to 1952, which discuss equally high rates of violence by women and by men, but we're not here to debate these issues directly. We're here to debate the future of our children.
Senator Lucie Pépin: I agree, but I'm trying to put things into perspective.
Mr. Claude Lachaine: We know there are a lot of shelters, but we don't have funding for fathers' groups.
Senator Lucie Pépin: We're going to tell you know you can get organized to find some.
Mr. Claude Lachaine: We've been told to go get money from the funds available for women's groups or groups of victims of violence. That's why we don't remember certain things. It's because our structures are out of date.
I'd like to make a comment because we're still talking about the past. I repeat: we're living in 1998.
Senator Lucie Pépin: I agree.
[Editor's Note: Inaudible]
Mr. Claude Lachaine: In my opinion, going back into the past, to 1960 or 1955, is not a way to find solutions.
Senator Lucie Pépin: I don't want to take you back into the past. I simply mean that we have to put things in perspective. Where are we coming from? Women have had to bear a great deal from the very start. I agree that some are currently going overboard. I entirely agree on that and I believe that major changes have to be made. So I simply want to tell you where we're coming from.
Mr. Claude Lachaine: Perhaps you've had to bear a lot, but I should tell you one thing. A few weeks ago, we had a press conference, where we called for a public inquiry into false charges brought in criminal court or through the DPJ. For your information, ladies and gentlemen, within six days of that press conference, which was reported for only five minutes in the media, on the evening news, we received 700 calls from men, women and children of divorced parents, who confirmed this and told us to continue our efforts because public inquiries into this subject were needed.
The arrest of one father on a false charge, brought in criminal court or through the DPJ, for sexual abuse or incest has as many consequences for the children as if they were actually the victims of the act with which the father is charged. Think of a child who sees his father leave handcuffed in a patrol car. I ask you to think a bit about the consequences of this for the child's psychological development and the way he will subsequently look at his father.
Senator Lucie Pépin: I agree with what you say.
Mr. Claude Lachaine: And the calls keep coming. I've been getting about 50 a day since then.
The Joint Chair (Mr. Roger Gallaway): Go ahead.
Mr. William Levy: You're forcing me to do this. It's not my choice. I think there has to be an understanding of why so many fathers are speaking out. I mean, this is not just an aberration or something that just came out of nowhere and maybe the fathers will go away.
I'm a father sitting here and I'm a criminal. In this province you have criminalized every father by passing a law that says if you don't pay a three-month deposit it's the same as missing a child support payment. I'm not a constitutional lawyer, but I'll tell you something. I told them no, I have a divorce agreement, I give her the cheque on Monday—which I always do; I'm a loving father—and so on.
What fathers are doing—and I told you I didn't want to do this—are hours and hours of tape recordings of death threats: death threats, alienation of my child, “I'm going to get my friends and kill you.” That's what I get.
I have an excellent lawyer, who spoke this morning. She's a wonderful lawyer. I think we know who we're talking about. Even her advice was “You can't get your children. It doesn't matter that she sleeps with earplugs in her ears until 1 p.m. every day and doesn't hear the children scream at night. It doesn't matter that you were the father taking care of everything. Keep yourself a diary from last year. Keep yourself a diary.” Does anybody want to know what happened at 6 a.m. this morning?
This is why we're here. There is an aberration in our system. Fathers are being criminalized for just wanting to be parents. It has to stop.
The Joint Chairman (Mr. Roger Gallaway): Thank you.
Ms. Eleni Bakopanos: Thank you. I want to say thank you very much.
I have two comments. As for what I said earlier about the reading, I just meant that we wish we had five days.
We really would like to have more time to listen to all this testimony.
I also want to tell the fathers that I consider myself very lucky to have a husband when I'm in the House of Commons. He attends to all my children's needs. I am very satisfied with the role that parents are currently playing, particularly men.
My comments will focus on the syndrome we spoke about,
the PAS. How far back does this syndrome go? I'll say why I'm asking that question.
In the past perhaps it had another name, I would say. There are CEOs who travel all the time. There are members of Parliament like me who are not at home during the week. The influence we have on our children is limited, in my case, to the Friday afternoon, the Saturday afternoon and morning, and the Sunday all day because I've chosen Sunday as my day. I won't take any other activities to do.
Maybe it was called by a different name, but a certain form of alienation always existed. The reason I'm saying this is that I'm wondering if we're not victimizing children even further by choosing another syndrome to attach to the phenomenon of what is happening in the world, with working mothers and working fathers.
I'm not sure where I want to go with this, but I want to say that although we can't legislate attitudes in society, we can choose to use the educational system and teach another generation not to be victims, be it father, mother or child.
In other words, we can teach the children to empower themselves. We can teach them that they are not victims in the divorce situation. We can teach them that the two parents are their parents for life and that they should have a healthy relationship with both parents. That's my comment.
The Joint Chair (Mr. Roger Gallaway): Go ahead.
Prof. Glenn Cartwright: Just let me say that the whole notion of a syndrome means that it's really just a collection of symptoms, and you're quite right when you say that those symptoms have existed. We know that children can be brainwashed. The question is, to what degree can they be brainwashed and can they stand up to this?
In parental alienation syndrome, we are talking about the deliberate poisoning of a child's mind. We know what happened in concentration camps. We know that people can be brainwashed. We know that adults can be brainwashed. You just have to go back to the Patti Hearst story. Why do we assume that children can't? Or why do we assume that they can somehow be empowered and stand up to this? It's very difficult.
I do a lot of open-line radio shows right across Canada, and just to give you an idea of the seriousness of this, one man in Calgary phoned and said his wife wouldn't let him see his two daughters because, she's told them, he has AIDS. And he says he doesn't have AIDS. And even if he did have AIDS, he'd be entitled to see his daughters. That's a pretty vicious attack. How are the daughters supposed to be empowered? I don't follow. They don't have the resources. They don't have the strength to resist it. That's why it's so serious. I think we've lost a whole generation of children.
The Joint Chair (Mr. Roger Gallaway): Go ahead.
Mr. Tony Drufovka: I would like to submit a few things to the committee. I was selected for part of a three-part series on fathers by CBC Newswatch, where a camera crew was interested in finding out what a part-time father does with his children from the time he picks up his children for the weekend, in terms of activities and so on. I would like to submit this video—which is about 15 minutes long—to you so you can observe it. They did research. They also contacted people in the community 24 hours later to ask for their opinions about the program and for their comments about the whole issue.
I was really touched—because I didn't know what kind of an impact it would have—by strangers coming up to me, especially women. I'll leave you to form your own opinions.
Secondly, I've done some personal research via articles I collected from the States and across Canada that deal with various issues. These are the issues that fathers have to address and have to cope with. I would like to sensitize you to these issues.
Third, I attended a conference this morning right here in Montreal about the impact of marital conflict on children's functioning and how families cope. I was listening particularly to what Dr. Mark Cummings was saying. He's a Ph.D., a professor of psychology at University of Notre Dame, and the author of more than 100 articles and books. He was saying that apparently there's now a consensus in the United States where they will only discourage joint custody in 5% of the cases because they have found that is where marital conflict is at its most extreme. What we have in the present system here in Canada is that the majority of the cases should warrant joint custody.
The Joint Chair (Mr. Roger Gallaway): Thank you. Senator Jessiman.
Senator Duncan Jessiman: I just have one question for Ms. Stuart-Mills. You said that the grid system is wrong. Am I quoting you correctly?
Ms. Pamela Stuart-Mills: Yes, you certainly are.
Senator Duncan Jessiman: Good. When they introduced the bill in 1997—it actually became effective in May 1997—and it was before us, the Senate, I didn't think there were any witnesses who were against the introduction of the guidelines, which have attached to them what you call grids. There were a number who thought the manner in which they were interpreted, in that they only looked at the non-custodial parent's income in determining what's to be paid to the custodial parents.... There were lots of arguments about that, but I don't think anyone said they thought it was wrong.
We were told that this was going to make it more consistent across the country. It was going to make it more consistent even within the same jurisdiction where you had different judges, or maybe even with the same judge on a different day. The awards being made previously varied from time to time with a particular judge.
They also said—selling me on the idea, at least; it was a good idea—these guideline are in various states of the United States. They have the same thing. They have them here in Quebec. They are different from the ones we have in Canada, and some of the other provinces are adopting the Canadian ones.
What would you have in its place? Would you go back to the old system?
Ms. Pamela Stuart-Mills: First, the basic premise of the grid system was to maintain the child's standard of living—and I remember being in front of the committee when it was said by Allan Rock, if I remember from the transcripts, that the basic premise of the grid system is to maintain the child's standard of living at the same level as it was before the divorce. I'm sorry, but to me this is absolute lunacy. If a child is living in a family and father loses his job, this child can go from having a comfortable income of $80,000 a year to social welfare or workers' compensation overnight. We see this all the time and we don't complain about it. But when you're in a divorce situation, the premise that the economic situation of the children won't change is just a non-starter.
It's very early for me to comment on the grid system, but I am disturbed by the calls I am getting from parents who are not able to afford a divorce right now under the grid system because judges are implementing it with total inflexibility.
I have a case where—
Senator Duncan Jessiman: They don't have any right. The law says...it was put there for that purpose. I'm not saying you're wrong.
Ms. Pamela Stuart-Mills: For instance, I have a case right now in Thompson, Manitoba, where the father is employed in the mine—I forget the name of the mine. He is separated from his children, and because of the grid system and because of the drop in income and because of the time it takes to get through the courts, he will end up having $32 a week. He literally cannot afford to divorce.
What's happening now is his wife is blackmailing him. She said, “If you're a good boy, we won't go to divorce court. You'll pay me about $150 a week on Mondays in cash and we'll not divorce. I'll let you see the kids when I decide you can see the kids.” Just like that, you can avoid divorce and financial bankruptcy, or being very close to it.
This is going on. It's very early days yet, but I'm really concerned by the feedback. This is not my specialty, but it comes because in this situation we have a ripe set-up for alienation. That's my involvement in this case.
The way I see the grid system being implemented—I'm sure people from other groups would be better qualified to comment on it. What I'm saying is this. For example, the premise that a child's standard of living is predicated on the pre-divorce economic level....
Take my children, for example. Before I divorced we lived in a very comfortable home in Dollard-des-Ormeaux. I was one of those unfortunate mothers who lost absolutely everything. I didn't walk away. Everything was taken from me and I ended up living with my two children on welfare, which was $994 a month. But I can tell you I had a much healthier family life. I had a much more beneficial family life. My children were spiritually, physically, economically.... It was difficult, but do you know something? That financial difficulty bonded my children and made them stronger human beings. It didn't shield them from the unrealities.
When I heard Allan Rock say that—and I'm sure it was Allan Rock—I said where is this man coming from; he has no idea what normal human beings are. It is no big deal if you have to eat Kraft dinner five days a week now and then. But you must give the men or the non-custodial parent the opportunity to remake their lives, and you have to take into consideration the second family unit that always flows out of a divorce.
I'm sorry to say that I believe that the grid system, because of its inflexibility, deserves further monitoring. I hope sincerely that when your committee has gone home, you have done your recommendations and reported in November 1998, that won't be the end of it, because the grid system is a whole other ball game and you're going to be faced with a whole new range of problems. I urge you to bear that in mind.
I'm dying to reply to Senator Bakopanos'—
The Joint Chair (Mr. Roger Gallaway): She's not a senator.
Ms. Pamela Stuart-Mills: I'm sorry.
You raised an issue about making our children victims.
Ms. Eleni Bakopanos: It was a theory.
Ms. Pamela Stuart-Mills: It was a theory. Well, just let me address it in one minute.
I'm the battered wife. I was a battered wife, and I didn't realize that I was a battered wife. I've certainly never felt like a victim. When I went into women's shelters, and I spent four months of my life in women's shelters, what happened was that you're told you're a victim. So I went in there not feeling like a victim at all and had to internalize the idea that I'm a victim. I'm a teacher in the Eastern Townships, where I've taught children with special needs. I have come across children who have been told that they've been sexually abused by a grandfather. These children are trying to internalize the concept that they're victims. They're growing up at 15 and 16 years of age and they are unable to internalize being a victim.
The other thing that bothers me about the bill is that under our moral system, under our Judeo-Christian upbringing, under our Roman law—which is what we've based our laws on, even the Napoleonic Code—every time you give a right to somebody you must have a concomitant responsibility. Now, under the law, non-custodial parents have all the responsibility to pay for the children they never get to see, and the custodial parent has all the rights and basically no responsibility and no accountability.
The next thing I'm going to say is very unpopular: children have responsibilities too, and by bringing our children up as victims and by bringing our children up in a situation where they lose their authentic personalities and where they are told that they are victims of the system, we are not doing our children any favours in bringing them up as responsible, authentic human beings. Our children must be taught responsibility.
I was delighted to hear your point about being a victim. Victim is a dead-end street. The victim mentality is a dead-end street, and I hope you don't buy into it in your recommendations.
The Joint Chair (Mr. Roger Gallaway): Thank you.
Senator Anne Cools: I can assure you that your family supports you when you're in Ottawa—
The Joint Chair (Mr. Roger Gallaway): No, Senator—
Senator Anne Cools: They don't turn your children against you. They support you.
The Joint Chair (Mr. Roger Gallaway): It must be Friday afternoon.
Ms. Caroline St-Hilaire: Perhaps I won't be very popular, but I have to say I agree with Senator Pépin's efforts to put things into perspective. I wasn't around in 1960 either, far from it. However, I saw my mother fight. Perhaps I'm privileged because I also have a good man at home.
I'm going to play the devil's advocate. Is what you said new, sir? In any case, I believe that the men of my generation are much more involved in the family and that everyone is happy as a result. If that's new, you must understand why everything that has happened has happened and why you are undergoing what you are undergoing now, which is deplorable.
You talked a lot about false charges. Many men have talked about that. However, there are no figures, no statistics, and I would like to see some. I don't doubt that there are very aggressive women and I don't doubt anything you said, but it would be good for us to have some figures, some statistics. I don't have any studies or figures and it might be good for us to have some for our information.
The Joint Chair (Mr. Roger Gallaway): Why don't we start in the middle with Professor Cartwright and then Mrs. Vassiliou.
Ms. Despina Vassiliou: I have some studies from 1992 from the U.S. They found that as many as 50% of fathers, who are usually the non-custodial parents, reported that their visitations with their children had been interfered with by their ex-wives in some way. Furthermore, as many as 40% of the custodial mothers admitted that they denied their ex-husbands the right to visitation as a means of punishing them.
Ms. Caroline St-Hilaire: But that doesn't mean they brought charges against their spouses or were violent. At first, the gentleman was talking about false charges, aggressive women and abused men. I would like someone to give us some figures on that. I don't doubt what you're saying, but...
Mr. Claude Lachaine: Let's not talk about violence against women or violence against men, but violence, period. Let's stop associating violence with one sex. I won't use the term I usually use when I'm with the members of our organization. So I'll say politely that we should stop associating one gender with the word "violence". In the dictionary, the word "violence" is gender- neutral. The figures are still being manipulated in all the studies. What has to be said is that women's groups that publish figures on spousal abuse and the victimization of women are currently being funded in what I would call a shameless way.
Ms. Caroline St-Hilaire: Do you know who these women's groups are funded by?
Mr. Claude Lachaine: By governments, by...
Ms. Caroline St-Hilaire: No, by the United Way. They get next to nothing from government. Excuse me, but you have to be careful.
Mr. Claude Lachaine: Well, Madam, I don't think that the Council on the Status of Women is funded by the United Way.
Ms. Caroline St-Hilaire: It doesn't exist to fund women's groups. You have to be careful of what you say.
Mr. Claude Lachaine: I don't think the Council on the Status of Women is there for men. Otherwise it would be called the Council on the Status of Women and Men. As for family violence in general, virtually all the studies I have seen, and God knows I've seen a lot in the past year... I didn't study this subject at university. I studied the issue because I had to defend my own case. All the studies, whether it's those by Straus, Gelles, Steinmetz or Curtis, which are all different studies, clearly show in their figures that family violence is a 50-50 proposition. The last study I saw was conducted at the University of Manitoba and gave figures showing that husbands and wives are equally responsible, on a 50-50 basis, for violence in the family. In cases where only one parent is the instigator, the figures are 25 percent for women and 25 percent for men.
The problem in all this, and this is where the children come in, is that, where family violence is caused by a woman, the children are the direct victims, but the legal system comforts women their behaviour because there is no reaction in the men or the children who are the victims.
Ms. Caroline St-Hilaire: I have a final question for Ms. Mills. As you said, this is a very emotional subject that often causes hysterical reactions. I don't know whether I understood you correctly, but I thought you said that society was not ready for shared custody. Did I understand you correctly?
Ms. Pamela Stuart-Mills: Society isn't ready for shared custody?
Ms. Caroline St-Hilaire: Yes.
Ms. Pamela Stuart-Mills: In the testimony before your committee and before the previous committee that studied Bill C-141, I observed that there was a very great cleavage in our society and that a great deal of education and training had to be done. In my opinion, that's a 20-year project because you unfortunately can't change social attitudes with one piece of legislation. You can put the cornerstone in place, but that's all you can do. Society will take quite a lot of time to adjust to the androgenous role I spoke about.
Of course, I am in favour of shared custody, but, from what I've seen and experienced, training... As Professor Cartwright said so well, there is no education for children at school. The current family education programs in the schools are ridiculous. Divorce isn't even a subject that is addressed in depth. Family life, family structure, marriage and pregnancy are subjects dealt with in five minutes in a small text book.
I think our children have to be trained and educated, as do our judges and our entire system, as the gentleman said. We have to train them first. But, as a teacher, I may be biased.
The Joint Chair (Mr. Roger Gallaway): Thank you.
Mr. Levy, a quick response, please. We're way over our time.
Mr. William Levy: I just want to say that when I went to court my lawyer told me I would win my case based on whether the judge is a traditional judge or whether the judge is an open-minded judge. I think the same thing applies in a general society. I think people have joint custody because the two parties are open-minded. That's when joint custody works. The problem is when one parent is open-minded and the other one isn't.
I'm going to submit to you an article I got from a national clearing house on family violence. It's very difficult to get statistics on this. What I found interesting about this study is how statistics are interpreted, how studies are interpreted. I think we still need to do a lot of research in this area. I went to a conference this morning that actually addressed this very fact, which they criticized. This was coming from the University of Manitoba. In here they reviewed dozens of published studies. This is an article from the Winnipeg Free Press; it's called “Who's Beating on Whom?”:
A review of dozens of published studies that include
the responses of approximately 20,000 participants
reveals that contrary to the common wisdom, women hit
men as often as men hit women. This is true of couples
who are dating, cohabiting, and marital relationships.
It is important to note that these studies are unbiased
samples of people, which means that every person in the
targeted population has an equal chance of being
included in the study, in the same way that political
polls are conducted.
This scientific sampling strategy is very different
from studies that include only reports to hospitals,
the police, and shelters. Because they face humiliation
and shame, abused men rarely report to these agencies.
As a result, those reports dramatically underestimate
the abuse of males.
I think this is getting back a little to your question. How can I answer this question when you deal with the whole aspect of conjugal violence and how it's treated? In this morning's presentation at the Westin Hotel by experts, they cited the very statistics coming from the police shelters and hospitals, which these people criticize. This is coming from another source.
They did a controlled study where they asked female students about a case study where there was equal violence between men and women, and they declared that the men should receive more punishment than the women. In the studies I got in terms of criminal statistics, it shows there's a double standard in our society of how we treat women and how we treat men.
The Joint Chair (Mr. Roger Gallaway): Thank you very much. As promised, it did get a little livelier as time went on.
Do you need the witnesses here to make the proposal?
Senator Anne Cools: Yes. I was very interested in the fact that Mrs. Stuart-Mills is, it seems to me, usually touch with Dr. Gardner, and Dr. Gardner has done a lot of work and is a very eminently well-trained psychiatrist. I wanted to propose to the committee and to the joint chairmen that perhaps we should bring Dr. Gardner from New York to be a witness before this committee.
The Joint Chair (Mr. Roger Gallaway): Certainly.
Senator Anne Cools: And to this particular set of witnesses, because I know the work they do—and to you, Pamela Stuart-Mills, especially—thank you greatly.
The Joint Chair (Mr. Roger Gallaway): With the committee's indulgence, I have one quick question.
Professor Cartwright, I think you said that PAS affects 90% of all marital breakdowns or divorce cases—of all children.
Prof. Glenn Cartwright: All children in custody litigation. This is according to Gardner.
The Joint Chair (Mr. Roger Gallaway): Oh, this is according to Gardner. Thank you.
Well, thank you very much.
Mr. Drufovka, we do appreciate polls—at least some of us on this committee.
Thank you, and have a good weekend.
The Joint Chair (Senator Landon Pearson): We will resume. Some of our witnesses have cars that will get towed away if we don't get on with it.
We have Elizabeth Cook, Martin Dufresne and Nicolas Doyon. He was here but hasn't come back? Okay. We also have Naïma Bendris.
Mr. Dufresne, you are the one with a problem with your car?
Mr. Martin Dufresne (Men's Collective Against Sexism): Yes.
The Joint Chair (Senator Landon Pearson): Are you ready to begin?
Mr. Martin Dufresne: Yes, absolutely. My name is Martin Dufresne and I am a professional translator. I'm accompanied by Nicolas Doyon, who takes care of his daughter. Our son will be joining us in a moment. Nicolas is the head of a community theatre company. We are members of Montreal Men Against Sexism.
We are here to talk to you about the fact that we talk to men about fatherhood and parental responsibilities prior to divorce. We have observed that there's currently a movement to grant men parental privileges after divorce, regardless of their merits, which troubles us very much with regard to the rights of children.
Joint parental responsibilities, the study of which is part of your committee's mandate, are very important. However, we believe that it is too late to impose them on women in cases where men have not acquired those responsibilities and attitudes within the couple and within the family. At this point, it becomes part of a relationship of power, a relationship often linked to financial interests that will result in problems for the family.
We are also here to present a paper by our group, Montreal Men Against Sexism, the Collectif masculin contre le sexisme, which has been in existence since 1979. This is a paper in which we analyze reactions to demands by women and people seeking more social justice in our society. Through this analysis, we have carefully studied the movement for male prerogatives and against the identification of what must be called a certain sexist violence in our society.
You have heard and will unfortunately hear many claims that men are as often the victims of violence as women. The facts show the contrary. We keep an updated list of the women and children who have been killed by men in Quebec since 1989, since the murders at the École polytechnique. The list of men killed by women is much shorter.
In this sense, we can show that violence is used every day by men as a means of control and power and that most women seeking divorce do so because they are experiencing physical and psychological violence. It is very difficult to find figures on this, although one study conducted in Quebec in 1986 by Carmen Gill and Lynn Saint-Pierre shows that 54.85 percent of women filing for divorce did so to escape situations of physical cruelty, psychological cruelty or both.
This indicates to us that women seeking divorce do so in circumstances not conducive to joint custody. They may be conducive to joint custody in certain cases, and this is negotiated in most cases with the other parent, but the idea of systematically imposing the non-custodial parent's authority on women by suggesting that violence is an exception is an idea your committee must resist because these murders usually occur at the time of divorce or shortly thereafter.
These murders show quite clearly that men in our society have a policy of control over women and children. Unfortunately, this policy results in legal warfare, harassment and a focus on the-non- payment of support. We don't think it is a coincidence that demands for joint custody go hand in hand with demands for the reduction or even elimination of support payments.
It's as though women were being offered a deal in which they would lose in both areas. They are being offered a deal in which they would lose what Judge L'Heureux-Dubé recognized in Young v. Young in 1993 as a fundamental right of the custodial parent, that is the right to decision-making authority. Where both parents have custody, there is often a clash of wills that can obviously not be resolved before the courts each time it occurs. We don't want a system where parents have to call in the police and go to Court each time there is a decision or a disagreement, particularly between parties who are known to have disagreed so often that they divorced.
The divorced men's lobby wants fathers to retain authority over the mother's decisions after divorce, but it is also demanding that this privilege be offset by the elimination or significant reduction of support payments. This would be a twofold loss for the family that survives divorce. The custodial parent may be the father or the mother.
We believe that the children are the losers when they lose both the authority of the parent that has taken care of them and the financial support that is essential to maintaining a certain standard of living.
The work of Montreal Men Against Sexism consists in analyzing the strategies of the divorced men's lobby and seeing what is good in those strategies and what is dangerous. We subscribe to their newsletters and we attend their meetings, sometimes at some risk to our lives, because these groups unfortunately include aggressive men who attack women and children. We have observed that they very commonly include men who join these groups to rebuild their reputation.
We also study their draft legislation. These are bills that are structured in a U.S. state or imposed in another state. These men then apply these bills to Canada as being the solution for the future, something that works very well in the United States. And they obviously present to groups such as yours a relatively biased vision of the prevailing dynamics in these cases. However, you will be told that California, for example, tried statutory joint custody and ultimately rejected this arrangement because it did not promote the interests of the children. You will not be told that other U.S. states adopted a presumption in favour of the primary caretaker, that is to say the parent who has taken the greatest care of the children and given them most of their primary care.
Certain U.S. legislatures have recognized that this parent is the one who, at least with respect to a presumption, deserves not to be sued for child custody for purely dilatory reasons, for reasons of harassment or for reasons involving the downward negotiation of support payments.
This also involves the issue of mediation. We very soon saw that mediation was one of the divorced men's lobby's no. 1 strategies. The idea was not only to save legal fees, but also to deprive women of the support of the legal system and of the support of a lawyer in order to induce them to enter into agreements. We know that the parent who has taken the most care of the children is usually the one who will accept compromises and look for ways to avoid endless conflict. Non-custodial divorced men therefore feel that it is in the interests of the non-custodial parent to have the state adopt mediation arrangements that would gradually replace legal aid—this is what we have observed in Canada—and also the recognition by the legal system and by the legislative system of the prerogatives of the parent who is not only prepared to take care of the children, but who is also the one who has taken the most care of the children.
The Joint Chair (Senator Landon Pearson): You are over the time.
Mr. Martin Dufresne: I am already? Well, I'll take questions. That's fine.
The Joint Chair (Senator Landon Pearson): No, no. You have some recommendations, you said, at the end.
Mr. Martin Dufresne: I do have some recommendations. It is a good idea for you to switch me to this.
The Joint Chair (Senator Landon Pearson): Okay.
Mr. Martin Dufresne: First, high-quality parenting cannot be legislated. I heard this earlier, and I think it is very true. However, parents and children can be protected by legislation from those who seek further rights in order to harass them. The creation of a presumption that custody should be awarded to the parent who has done most of the parenting would greatly reduce inequality and injustice in this area.
Second, I would like to talk about a presumption of refusal of custody and access to parents convicted of marital or parental violence. Since we know to what extent law suits are used to obtain custody in order to continue intimidating the other parent, we think it is extremely important that it be acknowledged that a man who is beating his wife or his children should not be able to seek custody. There would be a presumption against this kind of claim.
Third, physical or legal joint custody should never be imposed on either parent, as is done in a number of provinces in Canada.
Fourth, knowing that many small groups will be contacting your committee—we have observed that, in some instances, one or two individuals can constitute two or even three groups of separated fathers—we recommend that you attach greater credence to testimony by primary caseworkers, those who work with women in the midst of divorce, than to any man who claims to represent a group. Our impression is that these women do not represent divorced men in general, they do not represent fathers in general and definitely not men in general. We ask you to take arguments about reverse discrimination with a grain of salt. Based on our experience, the work being done by divorced men's lobby groups scandalizes other men.
Lastly, I would like to talk about the fact that, in 1993, Madam Justice L'Heureux-Dubé recognized the right of the parent who takes care of the children to move, form new, and in some instances non-traditional families and to dispute the privileges of parents where the custodial parent feels that the non-custodial parent represents a danger for the child.
We find it extremely disturbing that divorced men's groups are making it increasingly difficult for society to listen to what mothers or custodial parents have to say. If a custodial parent sees that a child returns injured from a visit at the home of the non-custodial parent, it is extremely important that that man or woman be able to intervene quickly.
Divorced men's lobby groups go before the courts, talk about false allegations and offer statistics that have nothing to do with serious research done in the field. As a result, we appear to be headed toward a society that will be increasingly hostile toward mothers and toward any genuine protection for children, all in the name of fathers who are victims of discrimination. We are very much disturbed by this.
We must no longer allow negotiations in which everything is put on the table. When the first studies on mediation were conducted, among others, by Mr. Richardson, if I remember correctly, some 10 years ago, a distinction was drawn between financial issues and custody and access issues in the provinces where mediation was done. This was thought to be a good thing because, at the time, the parent who qualified as the custodial parent was not forced to negotiate cuts to any support payments that could be obtained from the other parent simply to buy peace.
Today, we are increasingly adopting mediation methods in which everything is on the table. We are seeing this kind of negotiation in which, to protect their children, women have to sacrifice their material well-being. When I say material well-being, I'm talking about that of the children and of the women involved.
The Joint Chair (Senator Landon Pearson): I don't want to interrupt you, but could you get on?
Mr. Martin Dufresne: Okay.
I will close by saying that it is not a shameful thing to pay support for your children. When fathers are described as automatic bank machines, this bothers me a great deal. I have a 20-year-old daughter and I've paid support every month. I'm proud of that and I feel I have discharged my parental responsibility in doing so. This has not prevented me from having a relationship with her and from getting involved in other forms of parenting. When defaulters are defended with cunning arguments that virtually encourage men not to pay support, I am very concerned about the other proposals that these groups might make.
The Joint Chair (Senator Landon Pearson): Thank you very much.
Elizabeth Cook from Nemesis Network.
Ms. Elizabeth Cook (Nemesis Network): Good afternoon.
This committee has a wondrous responsibility and a magnificent possibility to relieve the silent agony of millions of Canadians. I wish you tremendous success.
I was savagely attacked and viciously beaten by my husband. He sodomized my baby girls. He cruelly and severely abused my son. He blew up pets with rifles in front of my tiny children. He shot at my son and pets and farm animals with an air pellet gun. He attacked men, got into fights, took drugs, smoked marijuana, and entered and stole from cottages.
The Joint Chair (Senator Landon Pearson): Is all that material in a case report? It's in the context under which we meet. Can you give us that reference?
Ms. Elizabeth Cook: Yes. I have to finish the paragraph.
The Joint Chair (Senator Landon Pearson): It's better to give the reference and then you can finish the paragraph.
Ms. Elizabeth Cook: This is my case.
The Joint Chair (Senator Landon Pearson): Have you the name of the case and the jurisdiction in which it took place?
Ms. Elizabeth Cook: The judicial jurisdiction is Terrebonne. I don't have the number of the case with me.
Senator Anne Cools: It's just for the record.
Ms. Elizabeth Cook: The divorce judgment?
Senator Anne Cools: No, your case. So-and-so versus whom?
Ms. Elizabeth Cook: Cook v. McRonald. Sorry about that.
The Joint Chair (Senator Landon Pearson): That's fine. When you make this kind of statement, we need to know that it's on the record.
Ms. Elizabeth Cook: I understand.
Mr. Paul Forseth: Is what you have just stated on the court record?
Ms. Elizabeth Cook: Some of it.
Mr. Paul Forseth: Please limit your comments to what was on the court record.
Ms. Elizabeth Cook: Okay. I will eliminate anything that is not on the court record.
I made my first call to the police in early 1979. We subsisted with a cruel terrorist. I don't know why we didn't all die. But here I am, and what I need you to understand is that my story is the story of millions of muted mothers and silent children. Because I didn't die, I have an awesome responsibility to make audible our souls' silent screams.
The majority of even minimally decent and responsible parents recognize the crucial importance of nurturing the young. It is the child abusers and wife beaters who most frequently sue for and often receive custody of or generous access to their small victims.
The most brutal abusers live in families scared to death of their terrorists. No one tells. It would be worth their lives or that of their protective parents. Often the most severe abusers become known only after the death of the protective parent and/or the children. The rest and those who report are silenced and live a noxious existence, for the destruction pervades every aspect and detail of a lifetime. This is the legacy of sanctioned abuse under our present laws.
Of course, I lost custody. My two tiny hurt girls were wrenched from their protective parent and sent to live with their abuser. He subsequently disappeared with them. They are registered in the Canadian registry of disappeared children.
I cannot imagine a surer way to destroy children and their mothers. I cannot imagine a greater cruelty or a more unnatural behaviour than to destroy the young of a species and the mothers who bear them. This is a tactic of war.
Protective parents who stay alive exist in society-imposed exile and poverty, trying to comprehend the incomprehensible and attempting to survive the horrendous agony of knowing what their children are enduring. It is hard for decent people—and most of us are—to imagine that a human could so choose to destroy and dehumanize their own children and their mothers. Many if not most of us naturally recoil and choose to believe more comfortable and frequently dangerous theories. The mind cannot accept what the soul cannot imagine. In our inability to confront ugly realities, we actually promote and sanction reprehensible child exploitation and abuse.
I have used an example to explain a point I want to make. Do I need to refer also...?
The Joint Chair (Senator Landon Pearson): What point do you want to...?
Ms. Elizabeth Cook: At one point, having once again managed to get an appointment with the head of the local youth protection team, the man accusingly and acidly spat at me, “You are obsessed”. At the time, I did not take it as a compliment but rather as evidence of his madness and hatred for children. Now I also see his comment as a compliment, for his statement placed me firmly in the camp of the civilized and he solidly with the savages.
Abused children and their protective parents in custody and access wars are forced to deal with the savagery of ignorance as well as the continued and escalated terrorism of the abuser. Although one cannot ensure an acceptable level of evolution in all who are in contact with children, one can mandate careful selection and appropriate ongoing training for all those who are and will be involved in deciding the fate of children in custody and access cases. Solutions are there, but one cannot begin to implement solutions unless a problem is perceived.
Inform the public with media presentations, for example, as they are doing now in the United States. There must be an immediate way to exclude those who are suffering from criminal ignorance and vested interests that have to do with exploitation and not nurture. They must be removed so as not to continue their contribution to the carnage.
Government must accelerate this evolutionary process by immediately instigating leadership in law-making and mandatory policy regulation that responds to the reality of desperate need and provides redress for those victims who never lost all hope.
Without retroactivity and accountability, the revictimization is lifelong and the perpetrators escalate and continue their reign of terror with the unwitting sanction of much of society.
Ratify the UN Convention on the Rights of the Child, signed by Canada in 1989. Mandate the selection of those who can learn with their soul's mind. Provide mandatory ongoing training and education for those who have been chosen. Create ethics codes and protocols and write them into nationwide laws. Make all laws and policies subject to scrutiny and accountability. Do all this and more retroactively and swiftly. Then Canada may begin to slow the heinous destruction and redress some incomprehensible wrongs.
Facilitate and accelerate the process by adapting programs already used in other countries. Inform the public of all changes and services available. Change existing laws and change the words. “Custody” and “access” are property law terms. The terms “best interests of children” and “friendly parent” are problematic. A protective parent, usually a mother, is most reasonably unwilling to send her traumatized children to spend weekends and more with their rapist/terrorist/abuser. Judges, lawyers, psychologists, social workers and others frequently interpret this sane reticence as unwillingness to cooperate and a desire to hurt the man, and so judges give children in custody cases to the perpetrators of terrible crimes.
Examine related laws. Privacy acts maintain the secret of abuse. Streamline and coordinate the fragmented and often fractious systems, courts and agencies. Increase and implement sanctions. Perpetrators abuse and continue because they can.
Expedite all changes. Speed is essential. Traumatized babies become lost children, tormented teens and agonized adults in the wink of an eye. Why not create a parallel system using existing resources, and the second there is even a hint of abuse this system swings into action?
Without laws there can be no justice—
The Joint Chair (Senator Landon Pearson): Are you just about at the end?
Ms. Elizabeth Cook: Yes.
Without laws there can be no justice, but if there is no justice, can we say we have laws? When the laws of society do not allow justice and even promote injustice, the law of the jungle fills the void.
It has often been suggested that if one is not able to face one's own past one will be consumed by it. This is the responsibility that Canada must immediately assume. Confront and acknowledge our reprehensible past record concerning children, for our society is already being consumed, as evidenced by the violence rumbling and erupting across our nation.
Allow Canada to join other nations and greet the next century with a modicum of morality and some hope of evolution in human rights ethics.
I welcome your questions.
The Joint Chair (Senator Landon Pearson): Thank you very much.
Mr. Dufresne, you have to leave, I believe.
Mr. Martin Dufresne: I have to leave at 3:25 p.m.
The Joint Chair (Senator Landon Pearson): Okay. That gives us time.
Madame Bendris, you can go for five minutes.
Ms. Naïma Bendris (Individual Presentation): Good afternoon and thank you. Considering our allotted time, I'm going to read my notes to try to go as fast as possible.
I am testifying as an individual. I have personally experienced separation and legal proceedings for child custody. I would like to tell you about a social phenomenon that is a concern for me and is never discussed. And that is the case of immigrant women who have been involved in mixed marriages with men of Canadian origin and who have undergone legal proceedings concerning the custody of their children.
I would like to raise certain points that mark the experience of these women, which they share in certain respects with mothers of Canadian and Quebec origin, but which, in other respects, are unique to them.
This observation is based on my own experience and that of women who have described theirs to me and whose histories are quite similar to my own. Most of these women are originally from southern countries and are thus members of ethnic minorities. I emphasize this because the dynamics in which these women find themselves in the legal system are those of a dominant/dominated, majority/minority relationship, involving an attitude and approach based on the dominant ideology.
My presentation concerns the following points: first, the concealing of spousal abuse by family law; the condescending and paternalistic attitudes of court professionals, attitudes that are tinged with ethnic and racial prejudice; psychological assessments, and, lastly, the arguments used by fathers against mothers.
The fact that family law does not take into account the spousal abuse experienced and reported by these women and does not focus on the so-called interests of the children is disturbing. Court professionals do not enable these women to describe their experience or, if they do, they diminish it.
For example, I'm going to tell you what was told to me by the psychologist who conducted my assessment when I reported to her all the psychological violence that I had experienced. I was completely denied in my function and status as a mother. The father represented himself as both father and mother of the child. He considered me as a womb for the child when I was pregnant and as his child's maid when I gave birth to the child. He denigrated my values and child-rearing practices. He prevented me from breast- feeding my son because he had been influenced by the writings of Guy Corneau, who states that breast feeding creates a special bond between child and mother and excludes the father. Consequently, he prevented me from breast feeding my baby. He prohibited me from speaking my language to my son, from singing my son lullabies in my language, from massaging my son, allegedly because it was considered as an incestuous practice in Quebec culture. And so on and so on.
So I told all this to the psychologist, who made no mention of it in her assessment. During the trial, when my lawyer asked her, "Did Ms. Bendris tell you about these things?," she completely denied that I had. She denied that I had told her those things. When I reported this to her, she told me, "All that's over now. You're not going through that now. That's part of the past."
So we get the impression that an attempt is made to anaesthetize us, to anaesthetize our memory, to make us forget. Sometimes, it is recommended that we go see a psychologist to help us get rid of our past. So no store is set by a painful experience which, in my view, should be part of the assessment of the situation. Furthermore, family law will require or encourage women to continue, again allegedly in the interests of the child, to meet and talk with the father, at the risk of having to continue suffering his violence. If women say they disagree and no longer want to have any contact with the father so they can become physically and morally whole again, they are considered as rigid and non-conciliatory and are penalized for that.
For example, when I went into mediation, which was also imposed on us, the mediator denigrated and humiliated me and told me, "You should continue dialogue with the father. You are still a family even though you are separated. You have to stay in touch with each other and talk to each other as though we were still a family." So the legal system, which should guarantee protection for women, enables violent spouses to continue controlling and abusing their ex-wives.
Family law in turn forces these women to undergo another form of violence based not only on gender, but also on ethnic origin. This experience has enabled us to see that family law is an abusive structure which itself reproduces systemic violence against women.
Considering the attitudes and prejudices, matrimonial law reproduces stereotypes and negative prejudices towards immigrant women that stem from the way they are represented in Western societies in general and in Canadian society in particular. These women are seen and judged as different based on their membership in a different group and on the stereotypical images assigned to them which certain court professionals have assimilated, in particular concerning Arab and Muslim women such as me, since I am an Arab and Muslim woman.
The Joint Chair (Senator Landon Pearson): You have taken more minutes than were given. Are you nearly at the end?
Ms. Naïma Bendris: Yes.
The Joint Chair (Senator Landon Pearson): Can you...
Ms. Naïma Bendris: I'll try.
The Joint Chair (Senator Landon Pearson): Thank you very much.
Ms. Naïma Bendris: These representations often result in differential, uneven and partial treatment.
With respect to psychological assessments, it is important that psychologists be involved in the legal process. The psychologist replaces the legal system. Judges require psychological assessments and merely assess and adopt the psychologists' recommendations.
Immigrant women are assessed in accordance with an analytical grid based on the dominant ideology, which does not reflect their psychological, sociological, cultural and anthropological background. Ignorance of these women's cultural background can result in biases and mistakes in the assessments and can harm these women. In my view, there must be a cultural adjustment to these assessments. Furthermore, the judge must not penalize women who do not want to submit to them.
With regard to the arguments used against mothers, the testimony of women, when they can give it, is perceived as less credible than that of the husband, who uses common stereotypes to lend weight to his charges. An argument that is commonly used is that the children will be kidnapped. Since the mothers come from elsewhere, it is very easy to say that we are going to kidnap our children, whereas it's generally the fathers that do the kidnapping. In my case, it was said that I was going to kidnap my son and take him back to my country. I was in Canada as a landed immigrant.
I'll tell you about the case of an Ethiopian friend of mine who could not return to her country because she was a refugee. Her psychological assessment stated that there was a risk she might disappear into the Ethiopian community here, as though it were a jungle in which she could hide with a child.
The second argument is that we beat the children. Our cultures are represented as being permissive in this regard. We are asked what means we use to punish our children and attempts are made to determine whether we beat them. The fathers argue this way and say that we're going to beat the children since that's part of our practices and child-rearing values.
Another argument is that we are not capable of raising the child. Arab and Muslim women are considered weak, incapable, submissive, irresponsible, emotional and unable to raise children in the modern values of the host society.
The Joint Chair (Senator Landon Pearson): Have you almost finished?
Ms. Naïma Bendris: Yes. The last argument is that the fathers say we are women who have been raised according to traditional values, that is to say values in which the status and roles of the spouses are fixed: mothers have a role to play and fathers have a role to play. Consequently, we couldn't get used to seeing fathers take care of children and we would prevent them from taking care of their children and would take their place. It was the contrary in my case. I was completely removed from my child's upbringing, and that fact was then turned against me. The father came and said that, being a traditional woman, I had prevented him and continued to prevent him from playing his role with his child. The fathers' testimony appears to be more credible because they are supported by the social representation of immigrant women.
I recommend that family law take into account spousal abuse, that psychological assessments reflect the cultural differences of immigrant women and view them in context; and that the religious holidays of immigrant women, Muslim holidays and Jewish holidays, for example, be taken into account and that there be no sharing based on Christmas or Easter holidays. That's all.
The Joint Chair (Senator Landon Pearson): Thank you very much. It is very difficult to sum up an entire life in a few minutes. Thank you very much for your contribution.
Ms. Diane St-Jacques: Mr. Dufresne, I understood that you were opposed to mediation and joint custody. In my book, the welfare of the child goes together with access to both parents, except where there is violence, of course. I can understand that, if there is violence, you can't go on to this level. I would like you to clarify your position.
Mr. Martin Dufresne: I'll answer in a few words because I unfortunately have to leave shortly. When chosen, mediation is a very good thing. However, when it is imposed, it becomes contrary to the principle of mediation. Unfortunately, it is increasingly imposed in Canada. It must be said that the methods for filtering out situations of violence and intimidation are currently inadequate in mediation. We constantly have mediators telling us that they have created special protocols to adjust to spousal abuse situations, which shows that violent cases are not being excluded. Unfortunately, compromises are still being imposed on women.
There's virtually no research showing that access to both parents is a good thing. That's more of a common sense value. Frank Furstenberg, Nicholas Zill and other U.S. researchers, however, showed 10 years ago that children who never saw their fathers were just as balanced as or even more balanced than children who saw theirs from time to time. Even if one might think that access is always a good thing, even in the case of a good father, research hasn't yet proven this.
However, joint custody is not a matter of access, but rather a matter of the non-custodial parent's control over the custodial parent. In such cases, we think that the privileges granted to parents should simply be based on the quantity and quality of parenting that has been done. We encourage fathers to get involved while they are living with their spouses, before a separation. We even consider that their involvement will, in many cases, prevent the couple from separating or breaking up. When the parenting isn't equal, the parent who is less involved or is more selfish—let's not mince our words—should not have the right to control the custodial parent. This is unfortunately what joint custody involves.
The Joint Chair (Senator Landon Pearson): Dr. Bennett.
Ms. Carolyn Bennett: Do you know where the research comes from that shows kids are okay if they don't see their dads?
Mr. Martin Dufresne: It's quoted in the full version of my brief, which I faxed. It's from Frank Furstenberg and Nicholas Zill, two different researchers on this issue.
Ms. Carolyn Bennett: When we talk about mediation in the context of any sort of potential abuse or power imbalance, there seems to be some debate. We keep seeing that there may be a continuum in the kinds of mediation, and that old-fashioned mediation, which you could take or leave, had to be clearly a voluntary thing.
I think what the committee keeps exploring—and certainly there was an Australian model where there's a special master judge who is not only a mediator but also has the authority to enforce it. That may be a different place on the continuum between conciliation, mediation, and alternative dispute resolution with somebody who actually can enforce a decision. With traditional mediation, if people don't like it they can still go to court. Each lawyer then tries to prove that the mediator was wrong or that the psychologist was wrong. The judge, who sometimes has a very cursory knowledge of the situation, makes a decision that obviously is unfavourable to one or the other party.
I guess I want to know if you think mediation is ever...if you think we could find a new word or a new term for some sort of almost binding arbitration that contributed—
Mr. Martin Dufresne: “Justice” would be that word. I think a judge used to do precisely what you're saying. The judge's decision was binding arbitration. I think mediation was predicated on the notion that we could bypass an adversarial situation as if it wasn't....
Ms. Carolyn Bennett: Depending on what we're hearing in committee, 80% to 90% of couples do. It's only the high conflict ones...and that's why I think we need the incubator/intensive care unit, with very special people who actually understand things and aren't being asked to do things in 45 minutes.
Mr. Martin Dufresne: But will this be mediation if you recognize that these are highly antagonistic situations?
The main thing I wanted to say to you—
Ms. Carolyn Bennett: Is there a mediation where there are a few little things that these people could agree on and then there would have to be a decision made on the things they can't agree on? There should be an attempt at mediation to see if there's any bit of it they could agree on.
Mr. Martin Dufresne: I'm well aware that lawyers do the work you're talking about: getting people to agree on almost everything and then going to court with only the elements they cannot agree on. I disagree that this has to go through an entirely different process.
Ms. Carolyn Bennett: I guess we're also hearing that some lawyers are not in the business of actually trying to find.... In the divorce industry there may be some lawyers who are trying to drag it out as long as possible. By the time we've paid for that, there's no house or money for the children's education.
Is there an alternate way we can do this by only involving the lawyers just as you're about to sign or just in these highly contentious things?
Mr. Martin Dufresne: Who will lose? I'm asking because in divorce situations I find that usually the mother is the entitled party. She has done the parenting; therefore, she is generally entitled to custody. She is much poorer than he is in most cases and therefore is entitled to child support, which is why he will go to court and drag it out as long as possible in order to get her to break. I think the people who will lose in a situation where the entitled party will give up her rights so that the whole process will be streamlined will be the mother and therefore the children.
Ms. Carolyn Bennett: I just want to ask Ms. Cook a question. What's very worrying in this pursuit of justice is when somebody with a story such as yours says, “Of course, he got custody”. The “of course” is something that's very upsetting. I'd like it if you could put on the record how that ends up as “of course”.
Ms. Elizabeth Cook: I put the words “of course” in on purpose. Over the years it grew like Topsy. I started to receive phone calls from women, and I discovered to my horror—and it still horrifies me and always will—that my case is not, as I said at the beginning, unusual.
I'm still getting phone calls from women who have gone to court, naively, as I did, and said this is not really good for the children and myself; I want out—and they lost custody. I think it's almost automatic. We have a sort of black humour in the different conversations that sustain us, and it's like this is automatic. You're accused of wanting to hurt a nice man.
I have problems with the parental alienation syndrome. I have a lot of problems with that, and it feeds into this. I don't have a problem with the fact that what our grandmothers called brainwashing exists; it does exist that people do this. Where I have a problem is when one reads Dr. Gardner's works, when one actually reads them and analyses them, they are his theories, ideas, opinions. They grew out of Dr. Ralph Underwager's theories, opinions. There's no research. It's not scientific. In the psychologists' manual there are already syndromes listed on a continuum, and what some people call parental alienation syndrome fits into that already. It's already known.
The problem with the parental alienation syndrome is that when one reads Gardner's works, and one just has to read one book of his, he refers to mothers as causing it to the children. He does not use the word “parent”. It's very highly slanted when you actually read it and analyse it. But it's a comforting theory. It's comfortable, and it fits in with Freud's theories when he reneged on the sexual abuse part and said that these women are all hysterical. It fits into all of that, and it's comfortable and it works. And the books are available; they're sent free.
The word passes, word of mouth, if you're going for a divorce and you're from an abusive situation.... I must clarify: only abusive situations. I'm not talking about the majority of decent people here. The word is don't report it; don't report it or you'll lose everything. You'll probably lose everything anyway, but if you report sexual abuse, you will surely lose everything. That's the reality.
Ms. Carolyn Bennett: Do you have any suggestions as to how we in this committee can change that and make sure that isn't the case?
Ms. Elizabeth Cook: I'm not a lawyer. Maybe because I'm an educator—no, not only because of that.... People I speak with, and I mean people who have doctorates and big degrees and fancy people, which I'm not, are all saying the same thing: educate, educate, educate.
I personally believe, and I'm not alone, that most people know that sexual abuse breeds on secrecy. I think it also breeds on ignorance, like many other things. So I think one of the keys is, as I think I mentioned, mandate training and a media blitz. The United States has short advertisements now on television and radio; it's a blitz right across the country. And it's known that there is a very high statistical correlation between men who beat women and those same men who abuse their children. The correlation is very high. The States has begun this. It's been going for a while.
I think education.... Judges are supposed to know about the law and how to apply it. They don't know about child development and child abuse. The average decent person doesn't know about this. When it happens to you....
Ms. Carolyn Bennett: I guess that's why there's been a suggestion to go to...maybe we wouldn't call them a mediator, but we'd call them early judicial intervention or somebody with the expertise you've referred to. That is the first stop before people get to the judge. Lots of them only want to judge; they don't actually want to do this other....
Ms. Elizabeth Cook: Yes, and that's okay.
Ms. Carolyn Bennett: I guess I'm worried that.... Are you seeing that even in people where the perpetrator has been in the criminal justice system, or is it only the ones where it's secret?
Ms. Elizabeth Cook: The ones where it's secret. Those are frequently the worst cases.
Ms. Carolyn Bennett: And where it's secret it's not safe to tell the truth because of the climate that everybody knows about.
Ms. Elizabeth Cook: Exactly.
Ms. Carolyn Bennett: And if this were done in a different milieu, in a clinic kind of setting rather than the judge's chambers or the courtroom, do you think maybe it would be safer for people to tell what's really going on?
Ms. Elizabeth Cook: That is my personal opinion. I think Canada does have already some judges, some lawyers, some psychologists, some everything who are already informed and who are tough enough to take it. I guess “tough” is the right word, because it's not a pleasant task. It must be excruciating for you people to listen to this, but you have to. I think if you could take those people and say okay, we're going to have a separate cadre corps, and you're all lawyers and you're psychologists and everybody that's used anyway.... We have obligatory mediation in Quebec. The minute there's a hint of abuse, conjugal violence or other, a hint, you go to this parallel—
Ms. Carolyn Bennett: Special place.
Ms. Elizabeth Cook: —using the existing facilities and the people who are already there, except they have indicated a willingness to take training and go with it at least for a while.
In Montreal they have a special sex crimes unit. They're all crown prosecutors, everybody. It's all the same courts, the same rooms, the same buildings, the same people; but they have special training, which is ongoing, and they deal with it. It just shifts kind of to the left and works.
The Joint Chair (Senator Landon Pearson): Mr. Forseth.
Mr. Paul Forseth: Ms. Bendris, you mentioned you were discouraged from speaking your language of origin to your children. What language was that?
Ms. Naïma Bendris: Arabic.
Mr. Paul Forseth: How many children do you have?
Ms. Naïma Bendris: I only have a six-year-old boy now.
Mr. Paul Forseth: That's how many children you have?
Ms. Naïma Bendris: Only one child.
Mr. Paul Forseth: Okay. Did I get it correct that that child does not live with you?
Ms. Naïma Bendris: The child lives with me. I have custody, a sort of shared custody in disguise. I mainly wanted to report the differential treatment we face under the legal system, which is characterized by considerable discrimination.
Mr. Paul Forseth: Okay. So where does the child mainly live, with you or with the father?
Ms. Naïma Bendris: As I told you, he lives with me and with his father, since he also goes to his father's home. Custody was granted as follows: he goes to his father's home two out of three weekends, from Thursday to Sunday, as well as the Friday of the weekend when he is with me, one week at Christmas, one week at Easter, two weeks in July and two weeks in August.
Mr. Paul Forseth: Okay. Is there any child maintenance paid from one parent to another, and who is that?
Ms. Naïma Bendris: Do you want to talk about support?
Mr. Paul Forseth: Child support payments.
Mme Naïma Bendris: Oui.
Mr. Paul Forseth: Is any parent paying the other?
Ms. Naïma Bendris: My ex-husband pays support.
Mr. Paul Forseth: To you.
Ms. Naïma Bendris: Yes.
Mr. Paul Forseth: Do you work?
Ms. Naïma Bendris: No, I am currently a student.
Mr. Paul Forseth: Okay. Thank you.
The Joint Chair (Senator Landon Pearson): Are there any other questions?
I think it is the end of a Friday afternoon. We appreciate that both of your stories....
The stories you have both told us were very painful, but will be very useful.
I'm sorry we rushed you a bit, but we do have your submissions and your recommendations.
I'll take note of your remark on customs. It is important that we take them into account. Thank you very much.
Thank you very much,
thank you very much, both of you, for coming here today. Thank you very much, Ms. Bendris
and Mrs. Cook. Thank you very much.
By agreement, the committee will allow Janice Outcalt a five-minute presentation.
Ms. Janice Outcalt (Individual Presentation): My name is Janice Outcalt. I was also a battered wife. Contrary to people here who seem to disallow the term, I was a victim. I didn't beat myself up; he beat me up.
I am also a very strong woman, but abuse is an insidious process. It doesn't start with the first blow. It starts with undermining your self-esteem, with over-control, and so forth.
I left him. Since you want the case, it was Outcalt v. Murray. I finally left him after approximately 32 beatings, starting most severely when my daughter was first born. I left him when she was eight months old. Unfortunately, this is average, according to StatsCan. Women do not usually leave until approximately 35 beatings. I left a little early.
When I left he tried to kill me. First, he kidnapped my daughter. I managed to get her back because his mother intervened. Because I signed a separation agreement with him, of course he knew where I lived. Had there been the possibility of keeping that information from him, I probably would have opted at least for a period of cool-down time to live privately. He showed up at my house. He attacked me. I called the police. He was arrested again.
He called me a few weeks later and begged me to discuss the issues of visitation and so forth. Because he wasn't showing up when he said he would, and already I could see there were going to be a lot of problems, I agreed to meet him in a neutral place, a restaurant. I went to the restaurant and when I showed up he was drunk. It was obvious that this wasn't going to develop into anything positive, so I said “Perhaps we'll do this another time”. He insisted upon driving me home. While driving me home, he drove on the left side of traffic, in other words into oncoming traffic, on a main highway. I'm here by the grace of God, or angels or whatever, because that stretch of highway is usually very busy and on that particular night there was no one for the three minutes he drove 110 miles an hour into oncoming traffic.
Fortunately for me he became very afraid that as a result of this—because I again contacted the police—he would be incarcerated. So he left the province, which was P.E.I., and went to Calgary where he stayed for about 10 years.
I tried to pursue the support I was supposed to get, which was minuscule. It was $85 a month. He was working as a pipefitter. He was making about $20 an hour. I was a student and trying to get by on student loans and part-time work. I think I was quite typical, going without winter boots while my daughter would have winter boots. In fact, I had my first new winter coat in 1995.
It took me 12 years, but I was finally able to get the $85 a month from him. However, he launched accusations at me that of course I was blowing this phenomenal amount of money on partying. I heard this issue raised yesterday, how you prove women are spending this money. The women I know are typically exactly like me. They do without. Their kids are well clothed. My daughter was in camp; I didn't take vacations. My daughter was doing dance classes; I didn't have dental work. I think that's very typical.
I would like to make a few comments, just from having observed this. First of all, in terms of statistics, the suicide rate for men who are separated has been thrown around. I would just like to say that I called Statistics Quebec, or whatever, an organization for men who have been violent. In 1994 the statistic was 40 men per 100,000 average for Quebec. This is all men. Monsieur Ménard is saying that for divorced men it is 41.2%, which is very minimal.
I should point out that there are approximately 100 women killed per year as a result of spousal violence in Quebec. Usually, at least a few of those are suicides and murder. In fact, in terms of male suicides, the rate between ages 20 and 24 is 46 to 47 per 100,000.
I just think it's extremely important to check out these statistics that are being thrown around, because a lot of them are irrelevant. I could say that 10% of the people in Montreal are depressed in January, and yes, they are. I could say 10% of single fathers are depressed in January, but 10% of all Montrealers are depressed in January. So I just think it's extremely important to have a look at these.
I had incredible difficulty collecting child support. I encouraged him to communicate with my daughter. I wrote to him. I actually asked him to please communicate, because I felt that no matter what, it was better for her to have some contact than none. He ignored me. The only time he finally did write was when he ended up in jail for armed robbery and he was lonely, so he started to communicate with her at that point.
I think it would be realistically very important to help.... The vast majority of cases of people on welfare are in fact single-parent women. It's tough. I will say that whoever said a Kraft dinner once in a while, they're wrong. Kraft dinner is solely without nutrition. Children who are deprived of nutrients have problems functioning in school. They don't concentrate as well. They don't do as well in life. Poverty is stressful. I know; I went through it. It's the most stressful thing you can go through as a single parent.
I would like to see more opportunities for women. And I agree with educating people. There was also a question of how do you prove abuse by women. I would say one way we do this is we educate women more. You don't have to put up with this. Don't call on the 35th time; do it the first time—the first time. Don't let him do that to you 35 times until you are practically destroyed.
The same thing with child sexual abuse: I think it's really important again to educate on that. However, I also think it's extremely important to follow up that police take these matters seriously—which they don't always do—and the courts take them seriously. I think it's changed in Quebec in the last five years, but prior to that, most men who were convicted of killing their wives actually got off with manslaughter, an average of six years, and they were out of jail in two years. That needs to be changed.
There are 300,000 women in Quebec who are touched by domestic violence every year. I'm concerned that there's not more representation of women's groups here. I don't know if they just didn't show up because they didn't have the time or they weren't contacted. I would also point out that it's traditional that men do speak up more, no matter what the situation is. They tend to speak up more. This is known in classes. That's why there are math classes only for women. And I have never seen one abuser, I have never seen the case of a rapist get up and say “Oh yes, I raped her”. I have never seen a man who murdered his wife.... That's not the first response—maybe after a court hearing, eventually. It's so rare. I have personally witnessed a friend with her broken jaw in front of my face, her face all puffed up, and her boyfriend swearing that he hadn't touched her.
So I think it's extremely important for you to be very careful about the statistics being presented here. I think it would be very nice to see a lot more representations of women.
And in terms of the comments that women hit men as often as men do, I'm a strong woman and I've taken self-defence, but I'm realistic. My husband was an ex-boxer. Most men grow up fighting. They know how to fight. Unless I use a weapon, I'm going to have a very hard time to do equal damage to him.
The other thing is I feel that there is this sort of anti-woman bias here, or anti-mother bias. I feel it hearkens back to the time when women were chattel and we can't believe women, women are liars.
Realistically, I would have loved to have a friendly relationship with my husband. It was obvious our marriage wouldn't work, but it would have been wonderful to have someone who could take her on the weekends, who I could call and say she's doing this in school, what do you think. I think most women are very pragmatic. I think if we had a friendly partner we'd love it. I would have loved it.
Frankly, I think men have a lot of work to do on themselves. I've been to a lot of workshops, a lot of therapy groups. Mostly it's 80% women in those groups. I would like to see men doing a lot more work on themselves, so there are no more women killed as a result of their spouses. When women are not living in poverty with children and when there's no more domestic violence, then I would say yes, fine, we can start talking about the fact that 2% of women actually assault their husbands. I think that relevant. But there are alarming realities that aren't being dealt with.
The Joint Chair (Senator Landon Pearson): Thank you very much.
If there are no questions, we'll adjourn.
Ms. Janice Outcalt: I just wonder why there are so few people here. I think it's unfortunate, because I think these presentations were excellent. I think it's great that you're still here, but I'm really distressed that the rest of the people are not.
The Joint Chair (Senator Landon Pearson): Just to put something on the record, most of us have been here all the time, and we've been doing it for five days.
Thank you all for coming.
The committee is now adjourned at the call of the joint chairs.