Proceedings of the Standing Senate Committee on
Social Affairs,
Science and Technology
Issue 15 - Evidence
OTTAWA, Wednesday, December 4, 1996
The Standing Senate Committee on Social Affairs, Science and Technology, to which was referred Bill C-41, to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act, the Garnishment, Attachment and Pension Diversion Act and the Canada Shipping Act, met this day at 3:05 p.m. to give consideration to the bill.
Senator Mabel M. DeWare (Chair) in the Chair.
[English]
The Chair: I welcome you to our discussion on Bill C-41. This is our first meeting on the bill as we have just received our mandate. We felt we had to hear from the department first. Who will be your first speaker?
Ms Murielle Brazeau, Senior Counsel and Acting Head, Child Support Team, Department of Justice: I will be the speaker.
The Chair: Would you introduce the staff with you today? With that, I welcome you and ask you to begin.
Ms Brazeau: The three other ladies with me today also work with the Department of Justice. Ms Lise Lafrenière Henrie is responsible for the policy development of the amendments to the Divorce Act; Ms Marilyn Bongard is responsible for support enforcement legislation, and she has been working on the development of support enforcement over the past few years; and Ms Wendy Bryans has been mainly responsible for developing the amendments to the Divorce Act, and she is also developing the child support guidelines which will be introduced through the regulatory process after the bill comes into effect.
I will be making a presentation on the bill and on certain issues that have been raised relating to the bill. Then, if you have any questions, any member of our team will be pleased to answer them.
[Translation]
It is a pleasure to be here today to talk to you about Bill C-41. For the last six years, we have worked on child support orders with the provinces and territories on the federal provincial-territorial committee on family law.
[English]
Earlier on, the members of this committee concluded that the most useful direction of reform was to develop child support guidelines. The bill establishes a framework for the guidelines which will be introduced through the regulatory process as soon as the bill is passed. Therefore, while the guidelines are not contained in this bill, they are so significant to this reform that we will be explaining what they are. The guidelines are basically a method for determining child support that is more directive than the current means and needs approach that is being used by the courts.
Guidelines are used in every American state, in Australia and New Zealand, in the United Kingdom, in Germany, and in other eastern European countries. Developing guidelines for child support that are appropriate for Canada has turned out to be a long, labour-intensive process. It has required six years of research, consultation and negotiations among the jurisdictions to arrive at a set of guidelines which have been adapted to Canadian realities.
Various formulae for the base award calculation were considered, including those where both parents' incomes are taken into account. However, the family law committee found that the fixed percentage model provides children with the most appropriate levels of child support which reflect the parents' capacity to pay.
The model is simple to apply because it considers only the non-custodial parent's income unless there are special expenses, in which case both parents' incomes are required. This allows the child to benefit from increases in both parents' income while recognizing that the support paying parent will not have a greater capacity to pay support if the custodial parent suffers a drop in income.
[Translation]
By working together with the provinces and territories on the development of guidelines, we were hoping to have a better chance that most provinces would adopt similar guidelines, in order to achieve some consistency at the national level. But Quebec had announced at the outset that it would be developing its own guidelines and that it wanted them to apply to all child support orders. A few other provinces could also follow Quebec's example.
[English]
The federal government has agreed to this. The bill provides that the Governor-in-Council may accept the application of provincial guidelines in divorce matters where both parents reside in that province. The Governor-in-Council's discretion is required to ensure that provincial guidelines are complete and do not leave a gap in the federal legislation. Where the two spouses do not reside in the same province, the federal guidelines will apply. One of the reasons for this is that, where a provincial or confirming order is made, courts need only interpret the federal and their province's guidelines rather than having to apply guidelines from all provinces and territories.
The family law committee also became aware, through consultation on the issue of child support, that people held much stronger views on both the tax treatment of child support and on the enforcement of support orders than they did on the particularities of the guidelines. Consequently, the committee's work resulted in recommendations that led to the announcement last spring in the budget that comprehensively addressed the calculation and enforcement of child support.
The initiative consists of four elements: the introduction of child support guidelines; improvements and new methods of support enforcement; new tax rules of child support; and an enhanced child tax benefit by doubling the working income supplement.
Bill C-41 sets out the framework for the development of child support guidelines via the regulatory process. As much of the guidelines as possible are contained in the regulations for three reasons. The first is readability. The second is to be able to respond more quickly to amendments if they are required, and the third is to enable a province to introduce its own guidelines, and to have those guidelines apply to child support orders made under provincial legislation and orders under the Divorce Act.
At the moment, it is expected that the majority of provinces will adopt the federal guidelines and incorporate them into their own legislation.
Bill C-41 eliminates the former section 15 which addressed both child and spousal support, and creates a separate section for child support and a separate section for spousal support. The two will now be determined according to different criteria, and they will also be addressed differently with regard to taxation. The heart of the matter is that the new section 15.1 will provide that both interim and final child support awards shall be determined in accordance with the guidelines.
The next important clause relates to subsection 15.3(1) which will direct a court to give priority to child support when determining an application for both child and spousal support.
The proposed subsection 15.3(2) states that where a priority has been given to child support, and insufficient funds remain for an adequate spousal support award, any subsequent reduction or termination of child support constitutes a change of circumstances for the purposes of an application for a variation order in respect of the spousal support order. That section is an attempt to give greater recognition to spousal support while at the same time giving priority to child support.
The next section that I would bring to your attention concerns variations, section 17. Interim and final variation orders shall be made in accordance with the applicable guidelines. The change in circumstances necessary to trigger a variation are set out in the guidelines, and I will get to that in a few minutes.
With respect to child support, there are two other sections that I want to highlight. The first is clause 10 of the bill which relates to section 25.1. This section will allow the federal and provincial governments to designate a provincial child support service to assist the courts in the determination of child support and periodically recalculate child support orders on the basis of updated income information. This is not mandatory but a province can choose to do so and set up these services if they so desire.
The other clause I would draw to your attention deals with the amendment to section 26.1. Should a jurisdiction decide to adopt its own guidelines, section 26.1 outlines a list of subject areas and criteria which these guidelines must address. This will ensure that the guidelines that a province decides to adopt are complete and that there is no gap in the legislation. For example, the guidelines must provide the circumstances for variation since this is no longer part of the legislation but is part of the regulations.
The guidelines themselves consist of three elements: table amounts for each province by income and by number of children, which are contained in the schedule; the rules for applying, adding or departing from the table amounts, which are basically the main body of the guidelines; and finally, an advisory test for comparing standards of living, which is part of the departure test for undue hardship which is also contained in the schedule.
These guidelines are not in the bill. They will be introduced through the regulatory process after the bill is in effect.
The starting rule of application is a presumptive one. Unless these guidelines provide otherwise, the amount of child support shall be set out in the table plus the amount, if any, of special expenses. The only way to depart from this amount is where it would cause undue hardship to either parent or to the child. However, in four situations the guidelines have an advisory status rather than a presumptive status.
These cases are: where the payer of child support earns over $150,000 a year; where the child is over the age of majority; where the physical custody is shared in a substantially equal way between the two parents; and where it is a consent order.
Where the court has applied the table amount, at the request of either party, the court may also consider the necessity and reasonableness of five types of expenses. They are special expenses. This list is intended to be exhaustive and these expenses are: child care expenses; extraordinary medical or health-related expenses; extraordinary expenses for primary or secondary school education or for any educational programs that meet the child's particular needs; expenses for post-secondary education; and extraordinary expenses for extracurricular activities.
Such special expenses are a common feature in the United States guidelines and they represent additional costs to the table amounts.
Having applied a table amount and considered the special expenses, if requested, either spouse or a spouse on behalf of the child could then apply for a departure from the guidelines amount based on the ground that they would suffer undue hardship if the child support award was made at that level.
Unlike the special expenses, the categories of what may cause undue hardship are not exhaustive. They include: an unusually high level of debt, reasonably incurred to support the family or to earn a living; unusually high access expenses; a legal duty under a court order or separation agreement to support another person; a legal duty to support any child.
There are two standards for variation contained in section 11 of the guidelines. First, where the order is made in accordance with the guidelines, any change in circumstances which would result in a different child support award would justify a variation. Second, when the order was made under the existing legislation, under a means and needs test, the coming into force of the guidelines and the change in the tax treatment will qualify as a change in circumstances.
Paragraph 11(b) provides the deemed change in circumstances which makes all existing child support orders made pursuant to the Divorce Act eligible for variation in accordance with the guidelines and the new tax treatment coming into effect on May 1, 1997.
Those with low, outdated orders now will have the right to obtain the guidelines amount and the new tax treatment if they wish. However, the government, being aware of the pressure that this would be placing on the courts, have made available to the provinces and territories a $50-million fund to help them in developing ways to handle the increase in the number of variation applications.
[Translation]
As we mentioned earlier, Quebec has developed its own guidelines which were released last summer. There have been consultations. After examining that model, it seems that it could meet all the criteria established in sectiuon 26.1
[English]
Both the Quebec and the federal models are similar in application. Each is to be applied presumptively, and it is possible to change the table amount by adding other expenses or by pleading undue hardship. However, the formulae to achieve the base amounts are very different. Quebec has an income-shares model which requires a calculation of both parents' income. The federal guidelines are based on a fixed percentage model which presumes that the custodial parent contributes to the base amount according to his or her means at a similar percentage of his or her income than would the non-custodial parent. The income, the actual income of the custodial parent, however, would be taken into account when we consider the special expenses and when there is undue hardship.
A comparison of different situations reveals that the federal guidelines are lower, but not by much -- only where the custodial parent has little or no income and the payer also has a low income. This would not consider situations where there would be the special expenses added to the base amount. Otherwise, the federal amounts are higher, and in some cases considerably higher.
Other than the framework for the guidelines, the bulk of Bill C-41 introduces new mechanisms to assist in the enforcement of support. The jurisdiction over enforcement is primarily a provincial responsibility. The federal government plays an important supporting role in this area by funding provincial enforcement programs and, through its legislation, by garnisheeing certain federal moneys and by helping to trace defaulting debtors through federal databanks. The two statutes providing for these measures are the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act. Both acts have been in effect since the 1980s.
The federal tracing mechanism used to find defaulting support payers will be made more effective with the addition of Revenue Canada databanks to the information banks that can be searched for information on a debtor's address. These databanks will contain some of the most recent and complete data.
It is important to recognize that it is only address information that is being released and that privacy safeguards are in place for the release of information to the provincial enforcement programs. This tracing mechanism will be further improved, or I should say "modernized" because they will allow the provincial enforcement services to apply, electronically, to search databanks without having to provide a copy of the family support provision. This will make for more efficient and less costly processing of requests.
Part III of the Family Orders and Agreements Enforcement Assistance Act provides for an innovative enforcement tool which is being used or considered by some provinces, which is a licence denial scheme. Many provinces have started to suspend drivers licences where there are cases of non-payment of child support.
The federal government is planning to introduce this new enforcement measure to assist the provinces and territories in their own enforcement efforts. Licence denial will be accessible not by individuals but rather on a formal application and affidavit by an officer or a provincial or territorial enforcement service. This is in recognition of the fact that every province and territory has an existing enforcement program with the mandate and expertise to make best use of this new enforcement tool.
When this measure is implemented, the federal government will suspend as well as refuse to issue or renew passports and specific licences provided for in the Aeronautics Act and the Canada Shipping Act.
At this point, the scheme is set up only to apply to these federal passports and transport licences, and those are all set out in the schedule to the bill. However, the government is continuing to examine ways to include other federally-issued licences and certificates.
Bill C-41 indicates that a support payer must be in persistent arrears before a request for a federal licence denial can be made by a provincial or territorial enforcement agency. The term "persistent arrears" is defined in the proposed legislation. It is either any amount of arrears that is due as the result of a failure to make the full payment required in respect of any three-payment period -- if the order is $300 a month, it would be for three months' payments -- or it would be for accumulated arrears of at least $3,000. For example, a non-custodial parent ordered to make monthly support payments who does not pay for three months could be subject to this scheme, or a debtor who makes only partial or intermittent payments could be subject to the scheme when his arrears add up to $3,000.
The definition is a reasonable standard that reflects the type of significant default that justifies this serious licence denial measure. The main intent of this scheme is to motivate defaulters to meet their support obligations rather than continue to ignore them. Particular emphasis is placed on providing notice to the debtor to ensure that he or she has the opportunity to avoid the licence denial action by making arrangements for payment with the enforcement agency.
The proposed legislation sets out that licence denial actions should be terminated when the debtor is no longer in arrears or is complying with a reasonable payment plan; where the continued licence denial action would not be reasonable in the circumstances; or where the enforcement service ceases to enforce the support order or provisions against that debtor.
The bill also proposes the creation of a summary conviction offence for failing to return or for using a passport after being notified that the passport has been suspended under the licence denial scheme. The need for this section was identified by the passport office of the Department of Foreign Affairs as an additional mechanism that will allow for follow-up action if the passport holder does not voluntarily surrender the passport.
By enacting this FOAEA Act offence, a peace officer would have grounds, if the passport is not returned, to begin an investigation and apply for a warrant pursuant to section 487 of the Criminal Code to seize a suspended passport.
Garnishment of salaries paid by the federal government will be simplified by removing a notice requirement to the payroll office. This process is consistent with provincial and private industry garnishments which do not have any notice requirements.
Proposed changes to Part II of the act will remove an existing requirement that the applicant be domiciled and ordinarily resident in Canada. This amendment is required because some ex-spouses, mainly women, are being denied the benefit of pension diversion provided by the act because they have moved outside the country.
Changes will also give courts authority to deal with the diversion of specific pension benefits under the Public Service Superannuation Act to allow for the earliest possible diversion of public service pensions in situations where family support obligations are in arrears. Currently, former employees entitled to a pension before age 60 may request payment immediately with a reduction or defer the pension benefit until age 60, thus effectively postponing pension diversion action from being taken to satisfy the support obligation.
The new provisions in the bill will close this loophole. They will allow a support creditor to apply to a court for an order that would direct the defaulter's pension be put into pay immediately and thus be subject to pension diversion. It is recognized that this new provision has the effect of removing a right to choose when to begin to receive retirement income and will result in a reduced pension payment. For this reason, the court, in making this order, must be satisfied that a significant arrears situation has arisen and that other avenues to enforce the support obligation have been tried without success.
The bill also permits pension administrators to divert more than the current maximum of 50 per cent of a net pension benefit where no provincial limit provides to satisfy arrears. The 50 per cent maximum rule was originally included to hold back a portion of the pension in recognition of the fact that pensions are statutory entitlements and likely the primary, if not the sole, source of income after retirement.
This is still appropriate in regular pension diversion situations. However, in keeping with the philosophy that family support should be a primary obligation, this new amendment recognizes that the holdback protection is not warranted in arrears situations where the pension beneficiary has fallen into default of his or her support obligations and allowed arrears to accumulate.
Finally, Bill C-41 contains a proposed amendment to paragraph 203(1)(a) of the Canada Shipping Act. The change would remove the current statutory barrier preventing the attachment of seamen's wages when the garnishment is for the purposes of enforcing a family support provision.
This bill basically introduces new mechanisms for determining fair and consistent child support awards through the child support guidelines and for more effective support enforcement systems.
I should now like to touch on a few issues, and one in particular, raised by the public and other witnesses in the House of Commons and, as well, at the second reading debate of the bill in the Senate.
The particular issue relates to access and custody. It has been asked why Bill C-41 does not deal with access and custody and the rights of non-custodial parents. The response has been that access is already dealt with in section 16 of the Divorce Act which provides that a court may make an order respecting the custody of or the access to any or all children of the marriage, to any one or more persons, and may impose any terms or conditions that it thinks fit and just. This section states that the sole consideration must be the best interests of the child, as determined by reference to the conditions, means, needs and other circumstances of the child.
Under section 16 of the Divorce Act, access to non-custodial parents is being fairly granted by the courts. Unfortunately, sometimes after the court order is made, conflicts arise that make the children's access visits problematic.
While the Divorce Act provides for variation applications for changed circumstances, in most cases this is not relevant, and the real issue becomes enforcing the existing order which is, primarily, a provincial matter.
One can ask: If the federal government can undertake initiatives to assist the provinces in enforcing support, why can it not also assist the provinces in enforcing access? Enforcing access is fundamentally different from enforcing a support order. Several enforcement techniques can be used to collect money. We can garnish wages, we can attach assets, but we cannot garnish a child. In most cases, it is not proper to involve the police in collecting a child. It is not in the best interests of children to involve the police.
It must be recognized that there is no simple legislative reform to the Divorce Act that will ensure that children receive what they need and deserve, which is continued love and affection from both their parents, free from conflict.
The challenge is to develop responses to these access conflicts that fairly and equitably recognize the concerns of all the parties involved but, above all, ensures the best interests of the child is the primary concern. In this respect, the federal government continues to work with the provinces and territories to develop a multi-disciplinary approach that can draw upon tools such as counselling, mediation and parenting education.
Senator Jessiman: As it now stands, the law stipulates that the courts must recognize that the former spouses have a joint financial obligation to maintain the child, and they apportion that obligation between the former spouses according to their relative abilities to contribute. Is that being repealed?
Ms Brazeau: In a sense.
Senator Jessiman: In a sense?
Ms Brazeau: The obligation continues.
Senator Jessiman: I am referring to subsection 17(8).
Ms Brazeau: The section itself is being repealed, but the parents will continue to have the same obligation.
Senator Jessiman: The guidelines state that the objective of the guidelines is to establish a fair standard of support for children which ensures that, after a divorce, they will continue to benefit from the financial means of both spouses. I do not know if you intend that to supplement or to replace what is presently provided in the act.
Ms Brazeau: The act contains a guide to the courts to determine the award that is made for the payer. When you apply the means and needs test, the result is that the court orders a payment by the non-custodial parent to the custodial parent. Apportioning the cost of the child between the two parents is only a way of determining the share of the non-custodial parent and the level of the order.
Senator Jessiman: I would question that. Let me give you two examples. In the first scenario, you have a mother and a father with three children. The mother does not work but the father earns $65,000 a year. When they are divorced, she gets custody and he has to pay under the guidelines.
In the second scenario the mother works and earns $75,000 a year, but she still gets custody. Under these guidelines, as you explained you do not take her earnings into account. The father still has to pay the same amount as he would if the wife were earning nothing. The father has to pay even if the mother is making, say, $15,000 more than he earns. It just is not fair.
Ms Brazeau: I will explain to you why it is fair. In the situation where you had a family where the father earns $75,000 a year and the mother earns zero, this whole family lived on $75,000 a year. She contributed with her time to the children, but she did not contribute financially to the children. In the family where she contributes, where she works, she also contributes financially to the children.
Senator Jessiman: We do not know that. She may be using her income exclusively for herself. I know of situations where the wife works, puts the money in the bank and uses the man's money to look after the family.
Ms Brazeau: There is a presumption, and economists agree, that the higher the income of a family, the more that family spends on their children. There is a presumption that, in a family where the two parents work, if the mother stops working, the family unit would start spending less on their children because there would be a drop in that family's income.
There is a presumption that economists make in looking at family income -- and I think this is the reality of Canadian families -- that both parents contribute to the needs of their children in proportion to their capacity to pay.
Senator Jessiman: You have explained why a parent may not have to contribute anything, and I do not agree with your explanation. You say that some jurisdictions do not have to take it into account, although Quebec does, is that right?
Ms Brazeau: Yes.
Senator Jessiman: In the United States and Great Britain, are both incomes taken into account?
Ms Brazeau: There are different kinds of guidelines throughout the United States. Australia has a percentage of income guidelines similar to the federal guidelines that we are proposing. Many of the United States do have a percentage of income guidelines.
Senator Jessiman: We could have a couple, both of whom are working, the woman making $75,000 and the man making $60,000, and he would still have to pay. She would pay nothing but she would have custody of the children. He would give her whatever he has to under these guidelines. If he marries a woman who has an income, is that then taken into account in the determination of how much he should pay to the mother of his children?
Ms Brazeau: No. We would not consider the new spouse's income unless there is undue hardship.
Senator Jessiman: It takes it into account. There is an obligation to disclose how much money comes into that household.
Ms Brazeau: The only time we consider the income of the household is if either the mother or the father pleads undue hardship. We would not consider the new spouse's income otherwise. This is not in the guidelines.
Senator Jessiman: As I read it, you can take into account the household figure. If you look at the grid, there is just the one setting of income figures, the non-custodial. You consider the income level and the number of children to determine the amount.
Ms Lise Lafrenière Henrie, Counsel, Family, Children and Youth Section, Department of Justice: Where do you see that? I do not think we are following you.
Senator Jessiman: It is in the schedule.
Ms Lafrenière Henrie: It is only relevant to undue hardship.
Senator Jessiman: They consider the established income of all persons in each household.
Ms Lafrenière Henrie: That only applies in cases of undue hardship.
Senator Jessiman: What is undue hardship?
Ms Brazeau: When developing the guidelines, we worked with economists and researchers and we established is a set of amounts that the majority of Canadians are capable of paying.
However, we realize that, because this will be used for the majority of cases, there may be exceptional cases where these table amounts would not be appropriate. Therefore, we have allowed for a balance between individual justice and average justice, average justice being the table amount. We have allowed this balance in two ways. We have considered the special expenses. People may have important day-care costs, or they may have extraordinary health expenses, so the table amount may not be sufficient and they want an increase to allow for these special expenses. If these parties are asking for day-care costs, the income of both parties will be considered.
However, over and above special expenses, there may still be cases where one party would suffer undue hardship. You may have the situation of a woman with custody of two children who has a very comfortable income, and who has married a millionaire. Her ex-husband may have had two more children, he may be poor, his wife may have lost her job, and he cannot pay that table amount. In that case he will be able to claim undue hardship. He will be able to show that his standard of living is lower than that of his first family and, therefore, he should get a reduction in the child support order.
Senator Jessiman: The guidelines take into consideration a situation where both spouses share physical custody of a child in a substantially equal way. There may be joint custody where the mother lives with the children, but the father has visitations on, say, Tuesdays, Thursdays and every second weekend which amounts to about 30 per cent of the time.
Ms Brazeau: Thirty per cent of the time is not "substantially equal".
Senator Jessiman: Assuming it is 30 per cent, I know the cost is substantial, but there is no recognition in the guidelines for that contribution. I think that is wrong.
Ms Lafrenière Henrie: It would be unfortunate if the father were to be given credit for spending time with his children.
The custodial parent's expenses relating to that child will not decrease because the child is spending 30 per cent of the time with the other parent.
Senator Jessiman: She can do with the extra money whatever she sees fit. If a certain amount of money has to be paid for the children and the husband has the children 30 per cent of the time, the wife who has the custody gets 30 per cent more than she needs and she can use it for any purpose whatsoever. I know that happens, and I think it is wrong.
Ms Lafrenière Henrie: That 30 per cent of the time spent with the father might not cost very much.
Senator Jessiman: They may sleep over every second weekend and two nights a week.
Ms Lafrenière Henrie: But the custodial parent still has to maintain a home for those children and has the primary responsibility for buying the clothing and paying all of the major expenses. That is why we cannot reduce the amount proportionally.
If we did that we would be increasing the chances of litigation on access issues, which we do not want to start doing. The idea is not to link access and support payments. They are separate issues. They cannot be linked together.
Senator Jessiman: What if the proportion of time is 40 per cent or 45 per cent? How high does it have to be before credit is given?
Ms Lafrenière Henrie: It has to be 50 per cent.
Senator Phillips: I must say that the witness really did not add a great deal to the discussion by being so evasive in her answers.
In the third scenario Senator Jessiman outlined where the second wife is earning an income and then the first wife claims that the children require, say, orthodontic treatment that will cost $8,000 or $10,000, will the second wife's income be taken into consideration then?
Ms Brazeau: No. That is special expenses and the second wife's income will not be taken into consideration, in accordance with the guidelines.
Senator Phillips: What happens when a wife comes back and claims that she needs more support? When is that second income taken into account?
Ms Brazeau: It is taken into account when they want to depart from the table amount and the special expenses. Then an application is made. The principle is that you can only depart from the table amount and the special application if the household that wishes to depart is living at a lower standard of living than the other.
Senator Phillips: What about university education?
Ms Brazeau: That could be a special expense, or likely the child is over the age of majority and the guidelines are only advisory in that situation.
The Chair: We are supplementing regulations now for judicial discretion, is that not correct? When the regulations are put in place, the judicial discretion has to follow those regulations?
Ms Brazeau: That is right.
The Chair: Those regulations can be changed at any time with an order in council, is that correct?
Ms Brazeau: Yes.
Senator Bonnell: I notice that all the people here today from the Department of Justice are of one sex. Is there some reason for that? Are all the counsel women?
Ms Brazeau: There are more women who practice family law in general. I do not know why. We also have male legal counsel.
Senator Bonnell: I know there are certainly more women taking up the practice of law.
On the subject of regulations. Will we see those regulations in this committee before they go into effect, so we know what is being proposed? Some may say that we pass a law but then all the dirty work is done through regulations.
Ms Brazeau: The regulations were made public on June 28.
Senator Bonnell: Have you got them with you?
Ms Brazeau: We have them with us, yes.
Senator Bonnell: Maybe you should table a copy of those before the bill passes.
Ms Brazeau: Since their release in June, we have held many consultations on the guidelines with judges, with lawyers, with custodial and non-custodial parents, and with various groups throughout the country.
Senator Bonnell: Have you heard from divorced men?
Ms Brazeau: Most non-custodial parents are men, and we have consulted with many non-custodial parents.
Senator Cools: Did you discover the answer as to why that is so?
Ms Brazeau: We were not in the business of looking at why they were non-custodial parents. We were considering child support.
Senator Bonnell: What percentage of child supporters are men and what percentage are women?
Ms Brazeau: Is this relevant?
Senator Bonnell: Am I correct that only 20 per cent of wives support their children and husbands if they have custody of the children?
Ms Brazeau: Over 90 per cent of men pay support to women.
Senator Bonnell: What about the other 10 per cent? Do the women pay support to men?
Ms Brazeau: There are some, but it is rare. I believe 20 per cent of men have custody of children. It is rare that their former wives pay support to them.
Senator Cools: We should have the numbers.
Ms Brazeau: We can provide those numbers.
Senator Cools: There seems to be a lot of vagueness. This is not the first dealings that members of this committee have had with this particular issue and this particular bill.
I would expect that the departmental witnesses to have some pretty precise and hard numbers in response to these questions. It seems to me that the first question that we should ask is: Who gets custody of children? I would expect you to be able to give us those numbers.
Ms Brazeau: We started this project as a result of the Divorce Act evaluation that was completed in 1990, and in the Divorce Act evaluation we had statistics as to how many men and how many women have custody as well as the levels of amounts.
Senator Cools: Perhaps you could tell us that now.
Ms Wendy Bryans, Counsel, Family, Children and Youth Section, Department of Justice: Women have custody 80 per cent of the time, and men, 20 per cent.
Senator Cools: What about grandparents and other persons? When you say "men", do you mean fathers?
Ms Bryans: Fathers.
Senator Cools: What percentage is joint?
Ms Bryans: That is 14 per cent.
Senator Cools: Do you see how capricious these numbers are? You just said 80 per cent were women and 20 per cent were men. I would have thought other people come would come into the equation as well. I would like to know how many fathers have custody, how many mothers have custody, how many have joint custody, and how many are other persons.
Ms Bongard: Joint custody is a difficult concept because there is different terminology. Sometimes it is considered joint physical custody as opposed to joint legal custody. In joint legal custody situations you often have an arrangement that, to many people, looks like sole custody with generous access, but it is called "joint custody". It is my understanding, with respect to the collection of these statistics, that it is done through the CDR form and it is as a result, basically, of a clerk ticking off a box.
Senator Cools: What is a CDR form?
Ms Bongard: The Central Divorce Registry form.
Ms Bryans: When I gave the 80-20 figure, I excluded joint custody on the CDR form.
Senator Cools: We are discovering that we do not know what custody means.
The Chair: Senator Cools, we could ask for that information.
Senator Cools: I just did.
Senator Bonnell: Do children have legal representation in the court as well as the parents? Are children losing rights?
Ms Bongard: Children are not parties under the Divorce Act. The only two parties are the spouses who are requesting the divorce.
Senator Bonnell: They should be; should they not?
Ms Bongard: There are some difficulties with that. We are talking here about the corollary relief provisions of the Divorce Act, not whether or not the parties should be allowed to be divorced. When considering the grounds of divorce and whether a divorce should be granted, the children are not relevant. However, when considering the corollary relief sections, the children become more important.
Traditionally, legislation is geared towards consideration of the best interests of the child rather than children's rights. That is the test within the Divorce Act. It is the international test. It is the test in the UN convention on the rights of the children. Section 16 of the Divorce Act, the best interest provision, must be taken into consideration in decisions relating to custody.
Hearing a young child's view, especially, may cause some problems. It is difficult to know how they will advise their lawyer if they are a party and do have counsel, and whether or not it is really in their best interest to force them, in a court, to make a decision as to which parent they want to live with.
Senator Bonnell: I think, at least, they should be able to express their preference.
I may have a conflict of interest here because, when my son and his wife were divorced the judge decided the children should go with the mother because, apparently, children always go with the mother. However, the children did not want to go with the mother. She is never home. The children reported child abuse involving beatings to the authorities, but they would not accept their story on the basis of a phone call. They came in and saw them covered in bruises. It seems to me that you require that kind of evidence before a judge will change his mind.
Children should be represented in the courts and have a say in where they are to spend their future. Often judges do not know the facts.
Senator Forest: What statistics do you have on default?
Ms Brazeau: There is no national data on support enforcement in Canada. Every province has its own enforcement service and every province gathers data according to the way its system is organized. For example, in British Columbia people apply to have their order enforced by the province. In Ontario and in Quebec, all orders are automatically enforced as soon as they are made. Therefore, each province has a different base for establishing its statistics. They do not have the same information base.
As well, every province does not measure default in the same way. In one province a person could be in default if he has not paid support for three months. In another province default could be measured differently.
Recently we have been trying to get specific criteria to measure default nationally. One of the elements of the research we are doing in this child support initiative is trying to develop a national data base to measure enforcement and default in Canada.
Senator Forest: The reason I ask is because incredibly high statistics have been bandied about as far as default is concerned. I am wondering where those statistics came from.
Ms Brazeau: I have heard recent statistics in Ontario. I could provide you with some numbers. The number was high but it related to the situation where only partial payments were being made. However, every province has its own statistics. The number of payments that are fully complied with is very low.
We have to consider what effect the guidelines will have on the payment of support. Right now you could have two families living side by side, with the two men working at the same factory earning the same income, yet, depending on their lawyers and on the judge they appear before, you could have two very different child support orders.
That would affect their intentions in respect of paying the amount. These two men would feel they had not been treated fairly. The guidelines will set a standard that most people will be measured against. It will be similar to taxation. You know that everybody at your income level pays the same percentage of taxes. Under the guidelines, child support would have the same effect.
When we first discussed guidelines, the issue was not whether the introduction of guidelines was a good idea, but what should be the level.
Senator Jessiman: Did you consider whether to take into account the other's income?
Ms Brazeau: That is another issue.
Senator Jessiman: According to The Globe and Mail in August of 1995, in Ontario, 66,000 women were owed more than $700 million in back payments.
Senator Cools: Bills are frequently referred to committee and it is only then that we are told, for example, in this case, that you do not know how many people are defaulting, and we realize that we do not know what custody is and so on.
Let us begin at the beginning. Would the witnesses give me the department's conceptual framework, at this particular point in time of greater feminine financial independence than ever before, as it relates to repealing from the Divorce Act a section which says that a child has the right to financial support? We are not talking about the emotional support. We are not talking about the other duties and entitlements to which every child has a right. We are talking just about financial support.
I went through this round when Mark McGuigan thought he would revolutionize divorce in 1984. He then quit, and John Crosbie continued in 1985.
At that time we would all have been shocked if any government had come to Parliament with a bill containing a clause like this. It is a massive step backwards, and I think we should tell the minister that, back to the 9th century.
Ms Bryans: The concept was that we would have support in accordance with the guidelines, and that the objectives would be contained in the guidelines as opposed to the legislation.
Senator Cools: You are saying that whatever happens in the courts respecting the financial support of children no longer needs the force of law.
Ms Bryans: The underlying assumption of the guidelines is that both parents shall support their children.
Senator Cools: I am not talking about assumptions in guidelines, I am talking about the law. Our business in Parliament is the law of the land. Perhaps someone could share with me the contemporary thinking of the government in asking Parliament to approve this clause.
Ms Bryans: The objectives are in the guidelines.
Senator Cools: There was a major advancement which Mr. Trudeau introduced in 1968.
I am talking about amendments to the Divorce Act that the Parliament of Canada can see and can vote on, not guidelines.
Ms Brazeau: This legislation brings more strength to the rights of children to have support from their parent.
Senator Cools: It is not in the legislation. You can only weaken a piece of legislation by repealing its strongest provisions. I have been working on this for 30 years.
Ms Lafrenière Henrie: Are you talking about the custodial parent's obligation to pay?
Senator Cools: No. I am talking about the provisions of the Divorce Act. The law of this land is that parents owe financial duties to children. For some generations now the government has stood behind the principle that both parents owe a financial duty to children.
The Chair: Now that we have that on the record, can we move on?
Senator Cools: I want to hear their response.
The Chair: That would be difficult for them to answer.
Senator Cools: The department has been working on this for a while. Why would it be difficult?
Ms Bryans: The objective in 1(a) is to establish a fair standard of support for children should they continue to benefit from the financial means of both spouses. We are certainly trying to say that.
Senator Jessiman: The regulation could be changed tomorrow.
Senator Cools: Committees of the Senate spend a lot of time doing nothing but studying regulations. We know something about regulations here.
Senator Losier-Cool: Perhaps we do not need witnesses for those who know everything. You are asking questions and, when the witnesses answer you say that you do not agree.
Senator Bosa: You might be able to enlighten me, because I do not have children who are divorced and, when I hear these figures bandied about, I lose my appetite for divorce myself.
Am I right that the federal government enacts this legislation, but the administration of this legislation is in the hands of the provinces? Does the federal government monitor what happens?
Ms Brazeau: There is a provision that we must monitor and evaluate the legislation. We have a complete research program to monitor the effect of these guidelines over the next five years. We will report back to Parliament at the end of five years on the intended and unintended impact of this.
Senator Bosa: Do you get your statistical the information from the provinces or do you gather that yourselves?
Ms Brazeau: We will be working with the provinces, but it is going to be a federal research project.
Senator Bosa: Will you consider each individual case?
Ms Brazeau: We will not consider each individual case, but we will be looking at certain courts.
Senator Bosa: If you do not have the accurate statistics at hand, is it because you are being misinformed, or because you did not get the latest information from the provinces?
Ms Bryans: The basic information about a divorce, not the economic consequences, is sent on a form to the federal Central Divorce Registry. When we need detailed information about economic consequences, then we have do a sampling by looking at court records. We have to contact the parties and interview them, and we do that. We evaluated the 1986 Divorce Act. We have a substantial provision of funds to evaluate this legislation also, because it is a very labour-intensive thing to do.
Senator Losier-Cool: I was pleased to sponsor this bill because I think that it is overdue.
The problem is that there are billions of dollars in default in child support across Canada. Ninety-five per cent of those recipients are women and, when they do not receive this support, some of their children end up on welfare. I think this bill is child-oriented.
Many Canadians work abroad. Are there any international provisions in the guidelines to cover defaulters?
Ms Brazeau: The problem arises if the province in which the person resides does not have an agreement with the country where the other parent resides. Different provinces have different agreements with different countries. It is reciprocal enforcement legislation. However, there are some countries where it is very difficult to enforce.
Senator Losier-Cool: Is that done through the United Nations?
Ms Bryans: Yes. We continue to work in that area. We have a person who seeks out other countries with which to enter into these agreements, so that we can have reciprocal enforcement.
Ms Brazeau: Often, if someone goes to the provincial government and asks if they have reciprocity with a country where they do not, then they will initiate the procedures to obtain reciprocity. They do not try to have reciprocity agreements until a specific case comes to their attention.
The Chair: When you talk about the non-excessive types of guidelines that cabinet could establish for making child support orders, you gave us the impression that you could add to that if needed. It is a sort of open-ended power of the federal government. It concerns me somewhat that you can always add to those support orders. I am referring to section 26.1, clause 11.
Ms Bryans: Clause 11, section 26.1, outlines the area that allows us to make regulations respecting guidelines, the areas we cover, and those are the same areas that the provinces cover in their guidelines.
The Chair: Do they all have to be listed, or could you add to those at any time?
Ms Bryans: In those areas. We cannot add to the list in the bill.
Senator Jessiman: Of course you can. It states:
The Governor in Council may establish guidelines respecting the making of orders for child support, including, but without limiting the generality of the foregoing, guidelines...
It then sets them out. However, you are not limited to that.
Ms Bryans: No.
Senator Jessiman: You could take these guidelines and throw them out the window and introduce other ones and we could do nothing about it.
The Chair: That is how I interpret it.
Senator Phillips: Referring to the working draft paper, page 6 paragraph (3). Would you consider using the word "parent" or "spouse" instead of "household" in that section? It says that standards of living must be considered. I am suggesting that the word "household" be deleted and the word "parent" be inserted.
Ms Bryans: You wish to replace "parent" with "household" or "spouse"?
Senator Phillips: Take "household" out of there completely and leave just the word "spouse."
Ms Bryans: For the undue hardship test we thought it was important to consider the whole household and not simply the two parents. That would be the effect of removing "household" and substituting "parent."
Senator Phillips: You have a proposed monthly allowance. How does that compare with the monthly allowances now being offered by the courts?
Ms Brazeau: It depends on the court, and it depends on the lawyer. However, we have been consulting with the Canadian Bar Association, with lawyers, and with legal groups across the country and some lawyers think they are quite low, and others think they are high, especially at the high end. Those who say that the guidelines are high, say they are high at the higher end. They are not.
I think the majority feel they would be too low rather than too high.
Senator Jessiman: Even though you do not take into account the other income?
Ms Brazeau: Yes. Because these guidelines can also be used to determine the contribution of the custodial parent. The custodial parent is expected to pay a similar share at her income level.
Senator Jessiman: What section is that?
Ms Brazeau: It is not in the section.
Senator Jessiman: It is not in the guidelines?
Ms Brazeau: No. The assumption is that a parent contributes in relation to his or her income according to the needs of the child, because the standard of living of the child and the standard of living of the parent are inseparable. They live together, they eat the same food and they live in the same household. The custodial parent does contribute to the needs of the child. Even if the legislation involves a consideration of her income, she will never be forced to pay. She will never pay an amount. The assumption is that she pays. Perhaps you are assuming that she does not.
Senator Phillips: I think we may be creating a very dangerous situation. I think that should be dealt with in the legislation. As Senator Cools has said, we know the difference between the regulations and the statute.
Was any consideration given to the access of grandparents to children when you were drafting this legislation? Do feminists give consideration to grandparents?
Ms Bongard: This bill is about child support and it is about section 17 of the Divorce Act. The custody and access sections of the Divorce Act, as was mentioned in the opening remarks, are contained in section 16 and that is not the subject of this bill. Just because it is not in the bill does not mean that it is being ignored, but it is not part of this bill. There is a danger in linking access and support. There is still a way to go, I think, before we come up with reforms to deal with access provisions.
There is a commitment to continue the discussion. It is on the agenda of our federal-provincial family law committee meetings and it is the subject of further work. Once this bill is passed, many people, including myself, who have been working on this bill can turn their attention to these other issues.
As you may be aware, access by grandparents has been the subject of private members' bills in the House, and there is ongoing consideration of how we can address that issue in the Divorce Act. A separate issue is how to include grandparents as more of a statutory requirement in assessing the best interests of the child, so that there will be ongoing contact. Various options are being considered.
However, it is clearly not part of this bill, and it is not intended to be in this bill. It will be the subject of future reform.
Senator Robertson: Will the minister be appearing before our committee?
The Chair: He was unavailable today.
Senator Bonnell: If he wants us to pass the bill, he should be available.
Senator Phillips: I think we will be treading on a lot of civil liberties when we start interfering with passports. As I understand it, presently the only reason for seizing a passport is that some criminal offence has been committed.
Ms Bongard: No, it is in the bill.
Senator Phillips: If we are equating this with a criminal offence, that rather bothers me.
Ms Bongard: It is part of the licence denial scheme. Passports and other specific licences set out in the schedule to the bill can be revoked, or not issued in the first place for persistent default and only upon application by a provincial enforcement agency.
It is not a Criminal Code offence; it is an offence under the Family Orders and Agreements Enforcement Assistance Act. It does not have a criminal aspect to it. The easy way to respond to that is, if somebody does not want their passport to be revoked, they should make an arrangement with the provincial enforcement agency to pay off the arrears owing. Then that whole application would be stopped.
The need for some kind of offence section is simply because it was pointed out to us that, once a passport is revoked, there is no means to actually do anything about it, and people can continue to travel and use a passport. To try to put some teeth into this, we have indicated that it is an offence not to return the passport forthwith and, if they do not do that, then this offence will allow a police investigation and they can ask for a warrant. Presently, a passport that is revoked is not clearly and obviously revoked, and a person can, in some cases, use it.
Senator Lavoie-Roux: What about a driver's licence?
Ms Bongard: The driver's licence is provincial.
Senator Lavoie-Roux: What about aviation licences?
Ms Bongard: They are the licences, or primarily certificates, mentioned in the schedule which is found at the last two pages of the bill.
Senator Lavoie-Roux: What recourse does someone have in the event of his passport or licence being revoked?
Ms Bongard: The intent of this whole scheme is to motivate people to pay the significant arrears. Before the application to us can be made, there is a requirement on the provincial enforcement service to notify, in advance, the debtor and inform him or her of the obligation to pay the amount in arrears, the fact that an application for this licence denial scheme is going to be made, and that it can be stopped if they make arrangements to pay down the arrears or make payment in full.
The hope is that this will inspire people who have been ignoring their support obligation to at least make arrangements to start paying it.
Senator Lavoie-Roux: I know Quebec has talking about doing this but I do not know if it is in effect or not.
Ms Bongard: Many provinces are doing something similar with respect to driver's licences.
Senator Lavoie-Roux: If a person born overseas has his passport revoked and he has to go to his home country because of, say, family illness, what can he do to get his passport back? You said that he would still have it in his possession, but if he uses it, he could be in trouble.
Ms Bongard: It has been revoked.
Senator Lavoie-Roux: So he has not got it at all?
Ms Bongard: No.
Ms Brazeau: He has had a lot of warnings. By the time he gets to that point, he knows that they are after him.
Senator Lavoie-Roux: But he could not possible foresee a family crisis and he would urgently require his passport. How quickly could he get it back?
Ms Lafrenière Henrie: This measure is the last resort that is used after every other possibility to enforce a support order is made. This is what the provincial agencies can ask the federal government to do to motivate people who do not pay support to finally do so.
Strict criteria have to be met. There has to be persistent default, and all other avenues have been explored, and that includes if the payer does not have a job and cannot pay. If it is not voluntary, if he just cannot pay, it will not apply to him.
This is applies to somebody who is voluntarily not paying and, essentially, would have the money somewhere. If the person's passport is revoked, there is no offence unless he uses it or does not return it. He, of course, no longer has a passport and cannot travel abroad. However, if there is urgency, he can pay it and it will be reissued in no time.
Senator Lavoie-Roux: As long as he finds the $20,000 to pay his arrears.
Ms Bongard: That is right. But that is his obligation. He can make arrangements to pay. We do not expect a $20,000 payment.
Ms Lafrenière Henrie: He has to show his intention to pay, then the whole scheme will be suspended and his passport will be returned.
Senator Lavoie-Roux: Is there is no particular consideration for an emergency situation?
Ms Lafrenière Henrie: This can be done virtually overnight. It does not take very long.
Senator Lavoie-Roux: The public service will move fast than it usually does.
Senator Jessiman: The United States has an act called the Child Support Recovery Act, and persons who are in default can be put in jail. Is there some discussion now as to whether or not default of these payments should be a criminal offence?
Ms Bryans: Your next witness will speak to this, I believe.
Senator Cools: Is there any other class of debtors in the country who have licences and passports confiscated? If Senator Robertson owed me $20,000 and she did not pay me, could I have her passport and driver's licence confiscated?
Ms Bryans: No.
Senator Cools: That is how mean this is. This is a special class of debtors?
Ms Bryans: Yes.
Ms Lafrenière Henrie: This is what the child has to live on. Other cases may involve commercial agreements.
Senator Cools: Daily, people default on debts, some involving huge amounts of money.
If a person in this country is convicted of a heinous offence, is his or her passport or licence confiscated? For example, when Karla Homolka is released in January will she have the right to hold a licence or passport, or is this exclusively applicable to men? It is very discriminatory, you know.
Ms Lafrenière Henrie: I do not think she will be travelling abroad if she is in prison.
Senator Cools: She will be coming out in January. What is being proposed in this instance does not happen to the worst criminal in this country.
Ms Bongard: There is a provision to revoke a passport issued to a person convicted of an indictable offence.
Senator Cools: When last was it used?
Ms Bongard: I do not know.
Senator Cools: In the practice of family law -- and this has caused enormous problems among immigrants, especially non-white immigrants in Toronto -- it became the habit of many lawyers to take people's passports from them. This is a problematic area which we should look at very carefully.
The Chair: We want to thank you very much for appearing before us today. This may now, however, be your only appearance.
Senator Phillips: I think we should recall these witnesses at some later date or, alternatively, hear from the minister, particularly after we have read the blues and had an opportunity to interpret some of the evasive answers at the beginning of the meeting.
Senator Bonnell: We should hear from the minister since he is responsible to Parliament for the bill, We should also ask our witnesses if they can be available to come back again, because there are many more questions to be answered about this legislation. I think it would be sufficient to have only one or two legal counsel appearing again from the department. To demonstrate equality, next time they might consider bringing a man with them.
The Chair: You are suggesting that we have the minister appear before the committee.
Senator Bosa: Perhaps we can make the decision later as to whether it is necessary to call additional witnesses, the minister or officials.
Senator Jessiman: I have a list of 20 names of potential witnesses. We should at least ask them to assist us. They are knowledgeable in the field.
The Chair: Leave that with us, and as we go along, the committee can make that decision.
We thank you once again.
We will now hear from Elizabeth Beattie. I believe some of you have heard from Elizabeth before now and that you have her brief. She has appeared before the House of Commons committee.
Elizabeth, we look forward to hearing from you. Please proceed.
Ms Elisabeth Beattie: My presentation will be a little bit less technical than what you have just heard. However, I think it will give you the flavour of one of these cases.
At the outset, Madam Chair, honourable senators, I am really pleased to be able to come here and have one last go at this. I have been a thorn in Mr. Rock's side for some years now. I think you will find that most of what I say is about what is not in the bill, rather than what is in the bill, so I will continue to be a thorn in his side.
Recently, I appeared before the Commons justice committee. On a personal level, these appearances are really the end of a very long, very difficult and mostly very lonely struggle to do everything we could possibly do to enforce child support orders, and then to use that experience to make the case for leadership and action on enforcement at the federal level.
If I use the word "we", you can imagine one daughter and two sons sitting here with me, because in effect I am speaking for them because this is their issue. For 15 years my children and I have been involved in a worst case scenario. This is the kind of case where everybody would agree something has to be done. It was described by one of the many presiding judges as a continuing saga of an ex-wife desperately attempting to seek remedies against an unwilling, recalcitrant ex-husband, who had absconded and callously avoided his obligations.
In pursuing justice for my three children, I became an advocate for other children who find themselves in the same position. As a result, we have a personal interest in the enforcement aspects of this bill. That is my sphere of expertise. Although I have opinions on other matters, enforcement is our main issue.
First, we have nothing to gain financially from anything that I am about to recommend. We are at the bitter end of a struggle where there is no recourse left. It is not about money for us; it is about a principle. You would not fight this hard for money, believe me. I could have saved myself a lot of trouble if that is what it was all about. We want a balanced major policy change so that other children can be spared what my own children have suffered.
I have attached here at tab 1a letter written by a lady to The Ottawa Citizen as recently as September 1996. She is where I was 15 years ago. If you read the response from one of the lawyers in town, you will understand how we get into the messes we do, because his response is not very enlightened. After talking to her, it makes what I am doing all the more important because I can see her where I am 15 years down the road, and I do not want that to happen to somebody else.
Second, we are not here looking for publicity in respect of our own trials and tribulations. We are living proof of what can happen when things go wrong. The personalities and petty details are not important, whereas the broader policy issues are. That is what I find the government is not addressing in this bill, so I will continue to be a thorn in Allan Rock's side.
Third, my recommendations reflect our experience. I am dealing with the worst cases. If some of my recommendations seem Draconian, bear in mind that we are dealing with the absolutely last resort scenarios.
In some instances I found my recommendations were dismissed because people would say that our situation was unique. It is not unique. The weaknesses are there in the system to actually encourage, almost guarantee, worst cases, because in my own situation we have found that the more defiant the behaviour became, the less the system dealt with it. The system breaks down easier the further you get from a normal situation.
I will give you some statistics which will give you a flavour of my personal story. We have been at this for 15 years. I have spent, or my parents have spent, $350,000 in legal fees. We have paid that all up front, of course. We have 40 court orders relating to child support enforcement. We have 14 citations for contempt outstanding, and 10 of those involve serious non-financial matters such as failures to appear before the court. Three have involved that particular offence.
There is an arrest warrant outstanding, and I have laid private criminal charges because I was unable to persuade our dear crown attorney that this was a serious matter. We caused the revocation of a passport. I am afraid my case is the impetus for this particular provision in the bill, although I do not agree with the way it was done. Apparently, we were the first incidence of a passport being revoked and our situation provoked the passport office to discover that, if a passport was not returned, it did not constitute offence, even though they had a provision in the passport order that said, if a person is asked to return a passport, they must do so immediately.
This fellow still has his passport. For two years now it has been revoked, and "revoked" means "cancelled". One of the members of the previous panel kept using the word "revoked." She should have used the word "suspended" because suspended means it is still valid, in a sense. "Cancelled" means they put a certain mark through it.
He still comes back to Canada on the passport. We are still pushing the edges on this. The passport was revoked in response to criminal charges. It was not in the context of what Mr. Rock is advocating. To answer Senator Cools' question, I am afraid I am the last person who had a passport revoked because of criminal charges.
The arrears are now over $410,000. That's a lot of money. About half of it is child support. Half of it has to do with cost assessments, legal fees assessments. We are talking here about a senior federal public servant who has had employment opportunities with the UN agencies by virtue of an executive interchange program that he started when he was working for Privy Council office. He no longer works for the government, nor for the UN.
At this point we have no realistic chance of ever recovering any of these arrears, notwithstanding all the order we have.
We are simply making a point to show the government that you cannot simply ask someone to return their passport and expect them to do it.
As to the limitations of this bill, in the area of child support, enforcement is the single most important issue facing single parents. When the finance minister presented his budget last March, it appeared to us that the government had finally woken up, recognized the need for decisive action. My kids heard the words: "Our view is that children should be first in line. Child support is the first obligation of parents. Children will benefit, only benefit if they are paid in full and on time." My children rolled their eyes. The statements did give us hope that Minister Rock had taken seriously a judgment that had been rendered in my own case. That can be found at tab 2. I am afraid that is the judgment that has triggered the pension change.
The Attorney General of Canada intervened in that case against us, and we lost. My children watched as four attorneys for the government sat on the other side of the room. Dear old mom was the only person on their side of the room.
In any case, the bureaucrats tried to explain to us that they were really on our side. However, my kids know what is what. They have heard a lot of talk; what they have been waiting for is some action. They are not terribly happy with this bill.
In the last paragraph of his Reasons for Judgment, Mr. Justice Rutherford described the situation as follows:
Her former husband, the respondent, has through his contemptuous, defiant and irresponsible behaviour, deprived himself of the right to any consideration whatsoever that our government might otherwise have for his financial well being and to the safeguarding of monies that may, in the future, be payable to him. While Parliament has gone some considerable distance in recent years, in attempting to balance the rights of persons entitled to payment of monies by the Crown with the rights of the legal creditors of those persons, it is clear from this case, that further amendments are required. The Canadian dependants of a fugitive from financial responsibility ought to have more immediate and complete access to any monies the government may have to which the fugitive is or may become entitled. This, however, in view of the extensive statutory framework presently in place, is a matter that Parliament must remedy.
We felt this judge was saying something pretty straightforward to Mr. Rock. We were trying to access the pension at this point. I would really like to say that this legislation does the job, but it does not. It does not do the job for people in my situation who have suffered a worst case scenario.
Single parents need a revolution in enforcement strategy. Unfortunately, the Department of Justice has put the focus on the controversial and, to my mind, questionable guidelines and tax issues. I am not a big fan of either of those, and I will be appearing before the Finance Committee on the tax issue.
In any case, I feel that the government has the cart before the horse because, unless and until you can enforce an order, all the guidelines in the world will not put money in your pocket, and tax issues are academic. Unless and until the government can say that 90 per cent or 95 per cent of these orders are enforced and there is money flowing, I do not think they should start monkeying with these ivory tower concepts.
When I appeared before the justice committee of the Commons, I sat there all week listening to all the legal experts that came after me. A couple of the committee members asked them what they thought about enforcement. I was the only one speaking on enforcement, and I am probably in the same situation today. All of these learned lawyers expressed the opinion that these guidelines are so fair that enforcement will not be a problem. A number of them said that they had not really given enforcement any thought at all. That rang true to me. We have the difficulties we do because the enforcement problem is not seen as being the real issue. It is the real issue.
The enforcement measures contained in Bill C-41 are bureaucratic and we do not need more bureaucracy. There are two important active measures because they relate to our battles with the bureaucracy. Those are the amendments which allow a diversion of a federal pension in a wider range of cases, and the amendments which provide for the suspension of passports.
I do not agree with those provisions and I will support this bill only if those are amended. Mr. Rock will not be happy with me. What they propose to put in place here is a provision that appears to do something which it does not actually do. It will do nothing in terms of being widely applicable, immediate, and no-nonsense stuff. We will have a lot more lawyers, and many more bureaucrats between us and justice.
I will talk a bit about the pension later. I did not discuss it with the justice committee because my raison d'être is what I am about to say and it relates to the greatest deficiency of this legislation. It is the failure of the national government to recognize this issue for what it really is and to show leadership, have the courage to take the initiative to give practical application to their rhetoric to the full extent of their powers. Half measures will no do. Do not say kids are first and then leave them at the back of the line.
About a year and a half ago when Mr. Rock first spoke of the possibility of revoking federal licences, I suspect he was putting out feelers on the passport issue because I was pushing him on that issue. The chief of the family law section of the Canadian Bar Association was on the radio in the morning and she expressed some surprise that the federal minister would wade into the issue of enforcement. There appears to be a widely held view that enforcement, as a provincial responsibility, cannot also be a national issue. I do not agree with that.
I think the people in this room will know where the phrase "fish swim" was used. I had not remembered Brian Tobin saying that in connection with the jurisdiction over fish. In any case, defaulters abscond, and some of the real difficulties that we have result from people crossing borders. When debtors cross a border, whether it is provincial or national, there is not only a practical enforcement problem, there is also the potential for competing jurisdictions and conflicting law.
I have had personal experience of this. I have fought parallel variation proceedings in the province of Ontario and the province of Quebec. There are some essential differences in their family law and, when you have two proceedings paralleling each other, what do you do if the judges make different orders because they live in different legal environments?
You run into problems when you invoke a reciprocal agreement. For example -- and this is how I got into this mess -- the family support plan in Ontario decided, in its wisdom, to pass over assets in Ontario and go after a small bank account in Quebec. Nobody lived there, there were no assets there, and there were no proceedings there. By agreeing to that, the courts in Quebec decided that they had attorned to that jurisdiction on my behalf. I was stuck. I would have been content to go ahead with the proceeding I had already started and not to embark on another one. When they invoke reciprocal agreements they do not ask those people to enforce it for them. They pass the file. If you passed a file to France, you could be subject to a variation proceeding in France and they could well decide that, by passing the file, you have accepted that all proceedings should be heard there. That is the danger with borders and people passing files. Ontario should enforce its own orders.
In June 1995, The Globe and Mail included the following statement in a progress report on the federal child support strategy:
A uniform nation-wide system of enforcement has yet to be agreed upon so that delinquent parents cannot escape to more lenient provinces.
In the same vein, Carol Curtis, who will be appearing here tomorrow, offered the following lament in an article in The Law Times:
What Canada needs is a national strategy, a standard across the country -- We need to get people's attention, we're not doing enough. It's really an accountability issue and that the lack of accountability in Canada is unacceptable. The time for education and the subtle approach has passed. It has to be socially unacceptable to breach support orders, there have to be consequences and so far that's not happening.
I believe she is referring to cases where everybody agrees there is money, and there wilful default.
The Chair: I must to interject to note that you are following your script. There are 18 pages and you are at page 4.
Ms Beattie: I will not read all 18. I am make an opening statement and then touch on the pension and the passport issues.
The Chair: We would like to hear your suggested amendments so that we may discuss those.
Ms Beattie: Yes. I will pass over some of this.
The Chair: I would appreciate it.
Ms Beattie: Bill C-41 is bureaucratic tinkering and does not do enough to satisfy our concerns.
I have felt for a long time that the single most important step this government could take in terms of sending a message, making a statement, is to include wilful default in the Criminal Code. I have given a number of reasons in the brief and you can, perhaps, review those on your own.
Perhaps the most important reason is that it will recognize that wilful default is simply not a money issue; it is child abuse, it is abandonment, it is neglect. Internationally, default is viewed in that light. Given all the rhetoric about bringing our legislation up to date, wilful default should be included in the Criminal Code. That will sent a very strong signal to kids like mine that, finally, the government is saying, "The buck stops here." Right now there is a giant loophole. The number of cases which use that loophole will escalate. If you can deal with the tough cases, it will send a message to the others. The Globe and Mail has supported that implicitly, and I have attached their editorial at tab 3.
I mentioned bringing the Criminal Code into the modern world. The reason it is not included, relates to the contempt provision in the Criminal Code which an exception for orders for the payment of money. That was amended in the last century because of debtors' prisons. Of course, we are not talking about defaulting on bank loans and mortgages, we are talking about providing for kids.
It is very convenient for the Crown Attorney to say that all we are talking about here is money. That is not so. My kids would not have suffered if all we were talking about was money, because my parents assisted us. We were not financially destitute. My children have suffered, nonetheless, on an emotional level. They had to deal with feelings of abandonment, lack of self-esteem and wondering what they or their mom had done to deserve this.
My proposal for the criminal amendment was first put to the deputy minister back in April, 1994, and I put it personally to Mr. Rock in February of 1996. I found it very curious that they saw fit to put in a defence for not returning a passport when, in fact, they are still not prepared to say that not providing for your kids is a serious matter. It seems almost like a slap in the face to say that not returning a passport makes it serious enough for them to take it seriously.
I suggest that they use the Criminal Code to enforce passport revocation because the passport order does provide for revoking a passport in the case of an indictable offence. Passport revocation is really only useful in cases where there is the possibility of somebody fleeing. The passport revocation is targeted at the worse cases but, as I said, that provision is already in place in the passport order.
However, revocation of a driver's licences will affect most people because that is a far more important document to most people.
My suggestion is to include wilful default in the Criminal Code. In that way you can use it. By including it in the Criminal Code, you then have a means to get at people who aid and abet, in terms of alienating assets. We have a cottage across the river. The kids' paternal grandfather bought it for a dollar. We cannot get at that, and we cannot make demands of him. It is worth $50,000. If this were included in the Criminal Code, girlfriends and so on, would be less inclined to hide assets.
The other thing it does, of course, is give you international recognition. One of the problems I faced in dealing with a man who lives on the border between Switzerland and France is that nobody would take a civil proceeding seriously.
I am pushing for extradition clarification. I attempted to persuade the federal government to ask for extradition, but the Crown would not do it. He told me he asks for extraditions which involve fraud over $100,000. Child support over $400,000 did not make the mark. You must send a message to the Crown and various others that, if people know they can chock up arrears and still travel on their passports with no threat, then they will do it.
The other inhibiting factor is that the provinces and the federal government do not work together. There are a lot of turf wars. Somebody has to show some leadership, and until there is a comprehensive, committed and coordinated strategy, we will always be dealing with individuals who push the limits.
I have asked the minister to have the courage to take the bull by the horns. Somebody has to tackle this problem. If the provinces do not follow the lead taken by the federal government, nobody can blame the federal government. They can, however, follow what is done in the United States where the FBI enforces the law. At a certain point, maybe $50,000 in arrears, you could send in the RCMP.
The Chair: Could you move to your recommendations and explain those to us?
Ms Beattie: The first recommendation is the Criminal Code amendment to include an offence of wilful default of child support. The reason I have distinguished people who live outside the province from those who live inside is because when they cross the border they should automatically come under federal jurisdiction. I suggest that the moment somebody who has defaulted crosses the border he should come under federal jurisdiction.
When they remain in a province, they are easier to get at before the arrears become too high.
If the civil courts cannot deal with cases within a year, surely to goodness something tougher has to be done. Criminal cases have to be heard within nine months or an Askov motion can be brought. I see no reason why somebody should be able to default for fifteen years.
Because I have no expertise in drafting criminal legislation the remainder of my suggestion are, basically, copied from the U.S. Child Support Recovery Act which I thought I would put forward as a framework. It seems to me that the U.S. Act is working quite well, at least with the worst cases. The last case I heard about involved somebody who owed $580,000. The moment they arrested him, he said, "I am really anxious to reach a settlement." The fear factor does work. If they have the money, they don't want to go to jail.
Such an amendment will give you the means to apply remedies. Jail is not the goal. What you want is restitution. This will give you the means to get there because the threat of incarceration gets their attention fast. You get a commitment to a payment schedule out or you get the money. You can also revoke their passport. They cannot flee.
You can appoint a trustee in the same manner as they do for bankruptcy proceedings. In the States they actually ask them to report to the court every month, which is kind of like parole. You have them without them being incarcerated. It is not a pleasant experience. I think it would work.
What is also important to us is federal superannuation, and that is a very small part of this bill. It responds to an order that I got which is at tab 6. It was a very innovative order which was made in February of 1994. We had a trustee appointed who was empowered to apply for the pension. However, the Attorney General of Canada decided that this would set a precedent. He hauled us into court and thrashed us.
However, as a response to that, this is covered in the bill. The problem is that it is fine to address what we try to do within the statute, but when you are contemplating a major overhaul of policy, surely you should go for broke.
In Saskatchewan and Manitoba they have, in fact, gone for broke on pensions. Where there is wilful default and it is a last resort, in that it is the only asset left, then the protection that is given to registered pension is taken away, whether the person is retired or not. In fact, the capital or some commuted lump sum that represents the credits can be paid out because, in federal terms there is no "money". There is simply an accounting entry.
We will not be able to access that remedy because we cannot get an order that allows us to do that. In most instances that remedy is a little late for most children because, if the father is 50 and retired, they will be too old to benefit from that.
This is a minimalist approach. I would like to see them go as far as Manitoba and Saskatchewan have gone. There are any number of precedents in federal statutes where lump sums are paid out of pensions.
The president of the Treasury Board has, in fact, said that payment of big "buy-outs" to federal public servants is the price of social stability. I think they should look at it from that point of view.
The only comment I would make respecting passport revocation is that I do not like the way they intend to enforce this. An amendment to the Criminal Code would cover this. The international initiatives are targeted at my situation.
Senator Phillips: In many cases I think the incarceration of a debtor would lead to the loss of the debtor's employment, and I am afraid I cannot agree with you on that for that reason. Without employment I see no hope of any recovery.
Ms Beattie: I have to remind you we are dealing with the worse cases. I think Carol Curtis will tell you of her experience in Toronto. Prisoners have a phone in the jail cell from which they can phone their bank. The money comes by Fedex, and out they go. These are the kind of guys that I am trying to deal with in this proposal. However, hopefully, you would not have to use the Criminal Code if there are other means of enforcement. That would be the the last resort. However, you must have an ultimate sanction.
The Chair: This defaulting would have been going on for a long time and they would certainly have been warned many times before they reached this point.
Ms Beattie: Certainly in our case, it is clear that the civil courts cannot deal with fellows like mine who can move across borders.
Senator Phillips: I think you are making the wrong assumption that everyone who is behind in his payment has the ability to pay. Probably in your case your ex-spouse did, but I think you will find, in a large percentage of these cases, the former spouse or ex-spouse does not have the ability to pay. However, you do not address that in your recommendations.
Ms Beattie: I think it is veiled, but what wilful default really means is somebody who is in default deliberately. You can prove they have assets, they simply do not want to pay. The only people who fall into this category are those who have the money, and you can prove they have the money, and they are simply not paying because they have hidden it or the girlfriend has it. It certainly would not target people who are unemployed or anybody who has a lawful or a reasonable excuse.
I certainly would not assume that a lot of these people who do not pay child support have the money. My experience is with somebody who has Swiss francs in Luxembourg, and I am would suggest an amendment to the Criminal Code to deal with people like that.
Senator Bonnell: Is it not the case that, in certain provinces in Canada, you cannot incarcerate people for unpaid debts?
Ms Beattie: Yes, that is right.
Senator Bonnell: Do you want the federal government to overrule the provinces in that regard?
Ms Beattie: The Criminal Code amendment would do that.
Senator Bonnell: The bill before us is Bill C-41, not an amendment to the criminal code.
Ms Beattie: I am addressing what is not in the bill.
Senator Bonnell: You want to address another bill?
Ms Beattie: No, I was attempting to encourage Mr. Rock to include this in the bill. I am still working on it. This is a forum where I can discuss measures other than those contained in the bill. The passport issue would be a good deal less messy if it were dealt with by an amendment to the Criminal Code. If you are charged with an indictable offence, they can revoke your passport, presumably because they do not want you leaving the country until you have had your trial.
Senator Bonnell: I can tell you now that I would not want to see any law where people can be incarcerated for debt. It will only cost me, the taxpayer, to keep him in that jail. Having done nothing wrong, I would have to pay his costs. As an alternative I would suggest that he continue to work and that we confiscate his wages.
Ms Beattie: We are not talking about here about long-term jail sentences. It is an attention getter. In my own case, we actually had this fellow arrested. He coughed up $50,000. This was a man who had just told the judge that he had no money. He did not like being in jail, and he was not going to stay there if he had the money to get himself out. Carol Curtis again has more experience of this.
Senator Losier-Cool: The Criminal Code and the Divorce Act are two different things.
Ms Beattie: It is something I am promoting, and is something I want Mr. Rock to do. I was hoping it would be here and I am very disappointed it is not. I am still working on it.
Senator Losier-Cool: You are not suggesting including the Criminal Code in the Divorce Act.
Ms Beattie: No.
Senator Losier-Cool: I did not understand your position as to what would be more punitive or less punitive. You do not seem to agree with the passport revocation. Would you rather have someone put in jail? Would you see that as more of a deterrent?
Ms Beattie: For the worst offenders, definitely. Obviously taking this fellow's passport has not stopped him. He has still got it. In fact he has been back in Canada with his revoked passport. For some reason nobody has caught him.
Senator Losier-Cool: If he were in jail, he would be incapable of earning money and he would be in no position to pay the debt.
Ms Beattie: We must remember that we are dealing with people who have the big bucks in their accounts. They do not like being put in prison. These are typical bullies, who, if they know that can get away with it, they will try it.
Senator Losier-Cool: Is this fellow we are talking about drawing a pension?
Ms Beattie: He has a federal pension, but it is not active.
Senator Losier-Cool: Under Bill C-41 could he keep his pension?
Ms Beattie: The provision contained in this bill was a direct response to the order that we attempted to get. It was quashed. What it would give me, if I could get an order that says I am entitled to activate this section of the bill, would be a small monthly pay-out. It would not give me anything amount that would erode the arrears of $400,000. It would be a very small pay-out.
The Chair: On his savings?
Ms Beattie: Yes. What I would get is a pay-out in the normal amount, and the problem with that is, it stops when he dies, for one thing, and secondly, I am trying to deal with a situation where there is a massive amount of arrears. If we were paid in a lump sum, for example --
Senator Losier-Cool: Does this bill not answer some of your concerns? It may not be perfect or complete. Perhaps it would be more punitive if the person in default had to go to jail, but is this not a beginning?
Ms Beattie: It definitely is a start but it does not go far enough. It does not help me. I cannot access it. I am not worried because I will never be able to get an order that enables me to do anything. I do not know where this man is. I cannot serve him.
The Chair: In your opening statement today you said that you knew this bill would not help you, but you were concerned about those who would come after you.
Ms Beattie: What I constantly hear from the government is "Kids are first." Under the pension provision of this bill, if there are arrears you cannot access this provision until the man, first of all is 50 years old, he has to have retired, and the pension, of course, still has to be there. He cannot have rolled it out to some other pension fund. By the time the man is 50 years old, the kids have gone through their suffering. I would like them to translate into action the constant statements we hear about kids being first. If this man, my ex-husband, had remarried while he was still employed and then divorced again, his wife would have been able to get a lump sum payment out of that pension account.
During my court battle I referenced an agreement where, in fact, a few years ago the government could have sent this money offshore to New York. We had go to court to prevent the government from doing that. The entire pension could have been commuted to a lump sum and transferred into a UN plan in New York.
If you can do that for plan-holders, why, if the arrears are $410,000, am I not provided with a provision where, as a last resort, I would be paid, in Swiss francs, $50,000, $75,000? The arrears are $400,000. This is the last asset. They would be willing to pay a second wife some of it. They were willing to pay the whole shooting match out to him without withholding tax on it.
In Manitoba, since the beginning of the year, there have been 29 cases where -- and the person need not be retired -- as a last resort, they have paid out the pension capital.
Senator Losier-Cool: If this bill had been in place when you were divorced, would it have helped you?
Ms Beattie: No, because he was not 50 years old, and he had not retired. He probably would not have retired until he was 65.
The Chair: The bill does not only deal with pensions.
Senator Forest:What about the whole bill? If that had been in place would that have been better than the present legislation?
Ms Beattie: It is hard to say because he lived abroad. There is nothing in here that I could have used in the UN.
Senator Lavoie-Roux: Your comments add another dimension to the problem. On page 18 your sixth recommendation is that the federal government undertake to renegotiate extradition treaties to make wilful child support default an extraditable offence. It is very difficult right now to have even known criminals extradited. I can understand your point, but do you think it is a very practical or feasible proposal?
Ms Beattie: It is very difficult because you have to deal with the Crown attorneys, and they pick and choose. I would not hold out hope for that. Having talked to people at the French Embassy, I know that they regard this as a very serious subject, and that their magistrates are very busy dealing with these issues. They do put people in jail. This would be the only way that I could get this fellow back to Canada. Obviously revoking his passport has not worked.
Senator Lavoie-Roux: What are the working relationships between the provinces in terms of collecting the money for, say, the mother in Quebec from the father in Ontario?
Senator Jessiman: I think every province probably has an agreement.
Senator Losier-Roux: I am not sure of that.
Ms Beattie: I think most of them do. Again if you have difficult people, they will automatically react to seizures with variation proceedings where you must deal with the jurisdiction where that seizure was made. That is the danger.
Senator Lavoie-Roux: We should try to do it the best we can, and not be stopped by all kinds of bureaucratic or political reasons.
Thank you very much. I will read your brief in its entirety. I know you put a lot of work into it.
Senator Bosa: Mrs. Beattie, you mentioned Mr. Rock on more than one occasion, and you described yourself as a thorn in his side. I sympathize with your case and I followed your description of it very attentively. I also know Mr. Rock quite well. I know he is a man of compassion and that he is a fair man. Why do you think that he has not taken up your cause? What, in your estimation, is the reason he has not enacted the various recommendations you are suggesting?
Ms Beattie: I think he has a very busy portfolio, and I think kids are not at the top of the pole, so to speak. It is very difficult for kids to promote their issue. This is really my children's issue. It is not my issue. It is support for them that is at stake here. There are a lot of other people with louder voices, and I, in a sense, am a marching band of one on this issue.
Senator Bosa: Do you think there is a counter-current to what you are proposing? Is Mr. Rock more sympathetic to the counter-current rather than to yours?
Ms Beattie: I think so, because he gets his advice from his department. My experience of bureaucrats is they do not like to set precedents, whether they are good, bad or indifferent. They do not like people who push the edges. It took me three years to be successful on the passport issue, even though I had fulfilled all the requirements. I think it is a question of re-orienting people's attitudes in the sense that you have to convince that this is a serious issue and not "just" divorce.
Senator Haidasz: Madam Chair, will this witness be invited to return?
The Chair: She has given us a substantial brief, and we are prepared to look at it. I do not think she will be back.
Senator Haidasz: You mentioned the problem of preventing the person guilty of default from using his passport. Have you ever thought of asking the Minister of Foreign Affairs to amend our extradition treaties in order to extradite that person to Canada to face the law?
Ms Beattie: That is actually one of my recommendations. In fact you have just touched on my situation, and my fellow actually used the argument that he could not work for the federal-provincial relations office if his passport was revoked. He has also used the argument that his parents are dying and would not leave the country for that reason. The judge gave him back his passport, and he was gone. You must be very wary of people who say they need their passports for their employment. We were put in a position of having to revoke the passport while he was out of the country. There is a problem with immigration. Extradition would certainly help, but we must have the Crown on our side.
Senator Haidasz: What does the Minister of External Affairs say?
Ms Beattie: Extradition is, again, Allan Rocks' bailiwick. I think it is just not up there on the agenda. An amendment to the Criminal Code would get us one step closer, because of course, you cannot extradite for civil proceedings.
Senator Haidasz: You would like us to amend this bill by asking to provide for extradition?
Ms Beattie: I am not sure you can amend this bill. It may be something you can work on.
Senator Jessiman: I assume we do not have reciprocal enforcement as between France and/or Switzerland with some of the provinces of Canada.
Ms Beattie: I am not sure. We do not have such an agreement with Switzerland, although I think we have one with France. Again the danger is, if we try that, of course he will move to Switzerland, and we will have to start all over again. You would not want a variation proceeding in Europe. They can avoid it by simply crossing the border into another country, and then you are off again, and anybody working for the UN is basically untouchable. The UN is not interested.
The Chair: Mrs. Beattie, I want to thank you very much for your presentation. We understand what you have been going through for a long, long time.
Ms Beattie: I hope I have made you think about some issues that are not dealt with in the bill.
The Chair: We appreciate your efforts.
The committee adjourned.
OTTAWA, Thursday, December 5, 1996
The Standing Senate Committee on Social Affairs, Science and Technology, to which was referred Bill C-41, to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act, the Garnishment, Attachment and Pension Diversion Act and the Canada Shipping Act, met this day at 11:40 a.m. to give consideration to the bill.
Senator Mabel M. DeWare (Chair) in the Chair.
[English]
The Chairman: Ms Curtis, welcome to our committee hearing on our consideration of Bill C-41. Act. Please proceed.
Ms Carol Curtis, Member of Working Group, National Association of Women and the Law: I have practised family law for 18 years in the City of Toronto. I bring to this table not only the views of the National Association of Women and the Law on this matter but also my own experience from my practice of law.
Four or five years ago, the Federal Provincial Territorial Family Law Committee started looking at child support. In its first paper it found that the awards across Canada were inconsistent, difficult to predict, and they were too low.
I would start from that premise because, in the view of the National Association of Women and the Law, if the goal of the exercise is to ensure that child support awards are more consistent and that they are higher, then we must keep that goal in mind.
On the back page of our brief is a list of the four most significant points. The last two or three pages list our recommendations.
Our first significant point is that, if the guidelines do not accomplish the goal of increasing child support, they will be considered to be a failure. This reform is one of the most significant reforms ever in family law and certainly has some of the widest-reaching consequences for children.
The second area of concern relates to the way the guidelines have been structured. Many of my comments will deal not with the bill itself, but with the guidelines which are in the draft regulations.
The next point deals with the draft regulation's treatment of a category of expenses called "special or extraordinary expenses." In the working draft of the regulation, these are found at page 4, section 4. The bill and the regulations provide a chart and, in addition, a list of "other" expenses. The first problem with this group of expenses is that they are described inappropriately as "special or extraordinary expenses". This can be found in section 4(1) of the working draft of the regulations.
Frankly, part of the problem is that some of the most important aspects of this scheme are not contained in the bill, but in the regulations. I am sure this is intentional on the part of the government because that makes them easier to change.
Section 4(1) of the regulations will allow the court to add additional amounts for child support if those amounts fall within any one of these four or five categories. Those categories, which are child care expenses, medical- and health-related expenses, primary and secondary school expenses, post-secondary, and extracurricular activities -- are essentials in most families. In fact, it would be difficult to think of a family which does not incur at least one of those expenses. It is essential that those categories not be deleted or changed. It would have been preferable if those categories had been mandatory add-ons to the child support chart, rather than voluntary.
Senator Jessiman: Are these expenses shared?
Ms Curtis: Yes. They are shared by the custodial parent.
Senator Jessiman: They are shared by both parents. The other expenses are all paid by the non-custodial parent.
Ms Curtis: The other expenses are not all paid by the non-custodial parent. The portions shown in the grid are all that are paid by the non-custodial parent. For example, if hockey costs $2,000 per year, which it does, and the child support that is paid is only $800 a year, then the custodial parent must find the money somewhere. Some of it may come out of the $800, but it is more likely that the custodial parent must find the $2,000 from other resources.
In any event, the existence of the add-ons is essential to prevent the guidelines from becoming a ceiling for support rather than a floor for support. NAL's position is that the guidelines, the grid itself, should be a floor and not the maximum.
Senator Jessiman: That is the way it is.
Ms Curtis: Yes, but those categories are not mandatory. Courts have discretion with respect to whether those are awarded.
The other problem is that, if those categories are not included in the grid, all those who sit down at their kitchen table and attempt to negotiate a settlement without the involvement of lawyers -- and that is completely acceptable and appropriate -- will look at the grid and negotiate their amount based on the grid. They will not negotiate based on what is in the regulation because, frankly, that kind of material is inaccessible to the average citizen.
The third area of great concern for us is the definition of "income". It is too narrow and inappropriate for the calculation of child support. The definition used is found in the proposed draft regulations at page 9, sections 13 and 14. The definition used is that found in the Income Tax Act. A very different policy consideration goes into what deductions are permitted from income for the purposes of calculating tax, and what deductions ought to be permitted when considering child support. The most important aspect is that this is a significant change in the way child support is calculated.
The fourth point deals with implementation of the child support guidelines. The introduction of the child support guidelines and the changes to the Income Tax Act are deemed to be a material change in circumstances for existing agreements and orders. Anyone out there who has a number which is different from the number on the grid has the right to renegotiate those amounts. That person can either go back to court or enter into negotiations.
This is a rather hollow right for most women since it is difficult, in this era of cutbacks to civil legal aid, to go back to court. Many provinces, including Ontario, have either very poor or non-existent civil legal aid. Presently, in Ontario, these kinds of variation applications are not covered by the legal aid plan.
That is a summary of the major points.
Senator Jessiman: As to the last point, are you saying that it is not properly defined?
Ms Curtis: When the guidelines are introduced and the Income Tax Act changes are passed, anyone who wishes to do so has the right to go back to court and request a change. Access to the courts is difficult without a lawyer, particularly to deal with something which is new and complicated.
At the moment, most women do not have that access to a court because of cutbacks to the legal aid plans across the country. Family law has been cut either completely or limited dramatically. Even Ontario, which used to boast that it had the Cadillac of legal aid plans, does not, currently, cover this kind of court application. A woman in Ontario would not get legal aid to go to court for this kind of variation.
Senator Jessiman: Where does it say that you must go to court?
Ms Curtis: It does not say you must go to court. However, anyone who cannot directly and successfully negotiate with his or her spouse must either seek the assistance of a lawyer or go to court. Some percentage of people will be able to sit down and work it out. If people could work out their family law cases, I would not have a day job.
Senator Jessiman: I would like some clarification of what the witness is saying.
The Chairman: Perhaps she should conclude her presentation first.
Senator Jessiman: If I do not understand what she means, then it makes it difficult. Are you saying that section 14 should be part of the grid? Are you saying, with regard to the determination of annual income, the words are wrong?
Ms Curtis: The definition of "income" is wrong. It is a dramatic change from the way child support is currently calculated. Currently, child support is calculated based on means and needs: the means of the parents and the needs of the child. For determining a self-employed person's income, income from all sources would be considered. If a self-employed doctor or lawyer attended a convention in Hawaii and wanted to deduct $6,000 from his income for that purpose, that might be acceptable to Revenue Canada, but presently it is not acceptable for the purposes of calculating child support. A court might include that as money available to support the children. There is a risk with this section 14 definition that the $6,000 would not be included. Different policy considerations should go into what is permissible as a business expense or allowable expense for income tax purposes from those considerations which should apply to how much money should be available in a family for supporting their children.
Senator Jessiman: Have you some suggestion as to how this should be worded so as to satisfy your concerns?
Ms Curtis: This definition should be deleted. We should not be using the Income Tax Act definition for child support at all.
Senator Cools: What definition should we use?
Ms Curtis: The current structure for determining the income of a spouse for support purposes should continue. This is a very dramatic change in family law.
Senator Cools: Are you saying we should abandon the grid and the guidelines and give leave the determination to a judge?
Ms Curtis: No.
Senator Jessiman: She wants to see a higher amount in the grid.
Ms Curtis: That is right. I will talk about the problems with the grid.
The Chairman: I understand why you want to question the witness at this point, but if we keep doing this, we will never get through. I would like you to write down the points that you want to question the witness on, and then I will let each one of you have time to do so. Would you please continue?
Ms Curtis: Thank you. I will leave the four main points and highlight some of the items in our paper.
I want to go back to the notion of why we are doing this. The federal-provincial-territorial task force recognized that there was a problem in child support and acknowledged the need to fix it. The question is whether this is the right solution to a problem that everyone agrees exists. The numbers in the schedule are a problem in and of themselves. They are a problem for families where the income is $40,000 or less, which is modest- to low-income families. Those are precisely the families that this entire exercise was supposed to help. Those figures are, frankly, too low. They are lower than the amounts now being awarded in courts, not just courts in Toronto where I practise, but courts all across Canada.
Also, the numbers in the schedule need to be revised on a regular basis. The bill provides for a re-examination after five years. Five years is too long for the children of Canada to wait to find out whether these numbers are suitable and whether they are meeting the basic needs of children. The numbers should be revised annually or, at worst, every two years.
The schedule amounts do not reflect the fact that children of different ages cost different amounts. For example, if you have two fathers who earn $40,000, both of those fathers will pay the same amount of child support even though one of them has a 14 year old and the other one has a three year old. That is part of the down side with the grid approach to child support.
The treatment of spousal support in the bill is also cause for concern. Spousal support is relegated to an inferior position. Spousal support is much more contentious generally than child support, notwithstanding Supreme Court of Canada decisions in the early 1990s that clearly set out what role of spousal support and how the courts ought to award spousal support. Any changes that the bill makes with respect to the ability of women who deserve spousal support to get spousal support will be detrimental and result in additional litigation.
We are concerned that the bill's articulating that priority be given to child support not result in a lower status being given to spousal support.
I briefly want to discuss variations and the consequences for those who have settled their deals or who have a court order which was made several years ago. There will be an increased demand on the courts to adjust earlier orders. Many support orders which were made 10 years ago are for $25, $30 or $40 a week. They may have been made when the woman was on welfare or receiving family benefits. Requests may be made that those orders be changed. The money that has been put aside by the federal government for implementation of the child support guidelines is wholly inadequate. The amount available is $50 million for 10 provinces and two territories over five years. Ontario alone expects the cost in the first year to be $30 million to $40 million. This is a completely inadequate solution to a very difficult problem.
Separate from the issue of demand on the courts is the issue of access to the courts which I raised earlier in the context of legal aid being unavailable to many women who will need this opportunity.
I want to deal briefly with the objectives set out in the working draft of the child support guidelines. That is at page 1 of the regulations. The missing objective is the one that ought to be given priority, which is to ensure a level of support that meets the basic needs of children. Why are we doing this if the exercise will not produce a level of support that meets children's needs?
Objectives are far more important than you might think at this point. This is new legislation which will dramatically change the way those of us who are front-line workers deal with child support, our clients, and with judges. Properly articulated objectives will assist us in convincing judges how the legislation and the regulations should be interpreted. The absence of that objective is critical.
The system should also be child-focused as opposed to spouse-focused or parent-focused. It was quite disappointing to see that the objective set out at 1(d) is that the government is concerned to ensure consistent treatment of support-paying spouses in similar circumstances. That should be amended to say that the objective is to ensure consistent treatment of children who are in similar circumstances. Surely the goal is to be even-handed in the way we treat children.
I want to go back to the special expense category which is in section 4. I started by saying those are not "special or extraordinary" expenses and that that language should be eliminated from section 4. It is misleading and not helpful, and it will be used to limit the money available to children for categories of expenses that are routinely part of most families. I am not just talking about middle-class or wealthy families. There are many working-poor families whose children participate in extracurricular activities, whether it be hockey, piano lessons, or swimming lessons and, because the word "extraordinary" is used, those will be excluded. The working mom who earns $15,000 or $20,000, whose kids are in a $20 swimming program at the local school or at the Y, may not be able to get that extra $20 because of the use of the words "extraordinary expense". There is something fundamentally wrong with that.
I should like to deal briefly with how this scale originated, because I think there is a lot of confusion about what I am calling the "grid". The grid is not, in fact, a precise estimate of the cost of raising children or of raising a child, rather, it is a limited tool that was originally intended to provide rough comparisons of the relative well-being of different households with different incomes, and it is based on FAMEX consumption data and a 40/30 equivalence scale. I will briefly outline how the 40-30 equivalence scale operates. You look at the expenses for a single person. To figure out what a couple would spend, you add 40 per cent to the expenditures of the single person. To calculate what that couple would spend on their child, you add another 30 per cent. That is one of the bases upon which the chart was structured.
The consumption data upon which it was based does not consider significant non-monetary costs or lost opportunities costs. There are also some expenses that many of you in this room would consider standard that are not included in that data. I am referring, for example, to mortgage principle payments, pension accumulations, insurance and that kind of thing.
The grid is a fairly significant compromise. It is a working base, I suggest to you, which must be adjusted to meet the specific needs of specific children. I am given to understand that the add-on categories came into existence because the Canadian Bar Association would not support the guidelines because they were too low. The Canadian Bar Association, among other groups, NAWL included, said that if this chart is to be used, with the numbers being this low, then you have to provide for additional categories and additional amounts.
I am suggesting to you that this complicates the situation. Many couples will sit down at the kitchen table and try to come to an agreement based on the chart. They will miss the add-ons. Women are not in a position to negotiate with their spouses on the add-ons. Many women will consider themselves lucky to be able to get what is in the chart without having to hire a lawyer or go to court. It is not appropriate for the government to suggest that everyone is protected because there is a grid, plus the add-ons, and that anyone can get the add-ons. My clients will be able to get the add-ons because they have consulted me. I will negotiate for them. However, those add-ons will not be available to many women.
One of the add-ons is child care. To suggest that child care is an extraordinary expense or a special expense is misleading and inappropriate and will result in this critical cost for the custodial parent being borne probably by her alone.
The FAMEX data on which the grid was based surveyed all kinds of families, not just families with child care expenses. Part of the problem with that is that many families have free child care. In fact, 46 per cent of two-parent families do not have to pay for child care because a family member provides this service. Either the mom herself provides the service, or the dad provides it, or it may be provided by an aunt, a grandmother or some other family member.
In contrast, only 26 per cent of single-parent mothers have access to free child care.
Senator Cools: Why is that? Based on what you are saying, why would anyone want to get a divorce?
Ms Curtis: That is not at all what I am here to say today. As I said earlier, if that were the case, I would not have a day job.
Senator Cools: Many of us would like to put family law lawyers out of work, but that is another matter. Why do single-parent mothers not have access to free child care?
Ms Curtis: Because single parent mothers earn significantly less than two-parent families, even if it is a one-income family. Therefore, they cannot purchase day care.
Senator Cools: You are saying that most people who are married get more day care for free.
Ms Curtis: That is either because the mother stays at home to provide it or, in some cases, the father stays at home. Alternatively, it may be provided free of charge by a relative.
Senator Cools: Once a couple is separated do aunts and grandmothers disappear out of the picture?
Ms Curtis: Once separation occurs, the mother, as the primary care giver, is less available if she has to go to work to support her family.
Senator Cools: What I was looking for was information on the whole phenomenon of the network of support.
Ms Curtis: I do not have that data for you.
Senator Cools: I know you do not. However, there is lot of information available on that.
Ms Curtis: The FAMEX data does not conclude that child care is a significant expense for younger children. I know this sounds like it is common sense; but it is a significant expense for younger children and it becomes less of an expense as children grow older. Of course, when you have a grid which only provides one number for a child, irrespective of the age of the child, that declining expense is not taken into account.
Other categories in the add-ons are health, medical, education and extracurricular activities. Even if you only consider what this would involve for a teenager, you will see the inadequacies of the current structure. Many special expenses a teen-ager would require are not included. They would include school activities, uniforms for sports or for school, locker rentals, choir or band costs and driver education fees. These would come under section 4, the category of extraordinary school expenses which would have to be negotiated or asked for as an add-on in court.
When families live together, they cover those expenses out of their income or out of capital, if they consider those expenses to be a priority. I am not talking about trips to Paris for the child. I am talking about things that many families consider significant for their children.
I want to speak briefly about the undue hardship analysis. In section 5 of the regulation, courts are allowed to award amounts that are different from the grid if undue hardship would result. We suggest there are two problems with the way this is structured. One is that there is a standard of living test available to determine whether or not there is undue hardship; but the standard of living test is not mandatory but optional. It is set out in Schedule II of the regulations, at page 55.
A few weeks ago in Toronto as well as all across Ontario, a continuing education program for lawyers and for judges was held to teach them how to operate under these child support guidelines. Not only was a computer program designed to help us advise our clients about the changes in the tax consequences, a computer program was designed to help us figure out whether or not our clients met this standard of living test. It was very complicated. The average citizen will not be able to do this, not even if we put a computer in every courthouse in Ontario along with an explanation of how to access the program. This is not an easy calculation.
The other problem is that the undue hardship test allows the courts to give priority to debts, ahead of responsibility for children. NAWL's position is that child support should not be lowered below an amount necessary to meet the basic needs of children because of the existence of family debts. In severe cases where it is allowed, there should be a very specific structure for the repayment of the debt within a fixed time period while there is reduction of support and, if that is to be extended, there must be special reasons.
The undue hardship test does not give priority to a payor's first family. This is set out at page 5 of our brief. Priority should be given to the first family for a lot of policy reasons. It is not justifiable to allow parents to abandon their responsibilities to their first family and move on to create subsequent families. A provincial judge in Ontario wrote a paper about this problem about 10 years ago. He started by saying that, while on the bench, he had noticed that men were willing to support the children they were living with, whether those children were their children or not, and that this was part of the problem.
All too often, payors are abandoning their responsibilities toward their children. This is obvious, given the level of child poverty in Canada, and particularly given the huge numbers of arrears of support owing across the country.
Having dealt briefly with the problem of the definition of income, I want to turn to the obligation to provide financial information which is set out in sections 19 to 24 of the working draft of the regulation. Financial disclosure is absolutely essential to reach a settlement for child support, or if you go to court. Mandatory financial disclosure provisions are essential.
One of the mechanisms in the regulations to ensure that the orders continue to keep up with children's needs is a proviso allowing the recipient to request annual mandatory disclosure of the payor's income. That should be accompanies by a simple administrative mechanism for requesting and providing that information.
One of the cardinal tenets, if you like, of family law in Canada in the last 15 years, has been the clean-break theory which is articulated in every court at every level. This will dramatically change the clean-break theory in a way which I think, frankly, is not inappropriate.
However, we must ensure that we are not putting women who were assaulted at risk. For example, they should not find themselves in a situation where they must have continuing contact with spouses who assaulted them, threatened them or harassed them merely for the purpose of up-to-date information in order to recalculate child support.
The National Association of Women and the Law suggests that courts in each province could do this or the support enforcement program -- where that kind of program is available in each province -- could be the conduit for requesting and providing that information so that a new number can be derived.
Senator Jessiman: Can you explain the clean-break theory to me?
Ms Curtis: Yes. Our courts have repeatedly said that, after their marriage has ended, spouses should be allowed to get on with their lives, that they should be able to make a clean break and move on. That does not mean there should be no support obligation; it means we should structure our support obligations in a way which minimizes or reduces contact between the spouses or areas of conflict.
Over the years, we have learned that the adverse effect of divorce on children is not so much the divorce itself or the separation itself , it is the continuing the conflict. We must look at ways to minimize conflict or reduce conflict. I am concerned that, without an administrative mechanism to provide this information, we will be opening the door to annual contact between the spouses and perhaps to conflict in those situations where there is a high conflict separation.
Finally, I will deal with the notion of re-examining this in five years. Perhaps a five-year review is appropriate for a big picture re-examination. However, we cannot wait five years to find out if the numbers on the grid are working or if the add-ons are being used. What is happening in private negotiations? What is happening in the courts? Do the judges understand this? Is anyone able to access the standard of living test? In five years, all kinds of Canadian children will be subject to agreements or orders made under this system. This must be constantly re-examined. In fact, it should be re-examined at the expiration of one year, two years or three years. We must compare the awards being made under the proposed system to those which would have been made under the other system.
I have zipped through the topics in the paper. I would be happy to answer your questions.
The Chairman: How do you negotiate hockey schedules and post-secondary education at age 2?
Ms Curtis: You do not. We do not do that now. We try to incorporate into a separation agreement a provision that, when those expenses arise, they shall be shared in proportion to the parent's income. Part of the problem with that system is that it demands a level of cooperation and contact that some families are incapable of achieving, although many are. We would hope that 10 or 15 years after separation they would be capable of such cooperation and contact.However, some families are truly incapable of that. In those cases the custodial parent usually ensures that the child has available to her whatever she wants. The custodial parent pays for it out of her own resources.
The Chairman: When you talk about post-secondary education, you may be talking about something that will happen 15 years down the line.
Ms Curtis: That is right.
The Chairman: Custodial spousal circumstances can change dramatically in those 15 years.
Ms Curtis: Absolutely.
The Chairman: Are you saying that when that time comes, they sit down and negotiate that particular expense?
Ms Curtis: If the parties sign a separation agreement, that is frequently included. However, it is not always included in a court order. The court order might merely stipulate $300 a month starting on a specific date, with a cost of living increase. That is clearly not enough to pay the non-custodial parent's share of university fees and costs.
University fees and costs are a problem. Not all paying spouses, who are usually fathers, are willing to pay half of those expenses or a proportionate share. Some parents take the view, "You are 18 and on your own".
The Chairman: We all know families who get along fairly well, with two parents both working, and yet they cannot afford a college education for their children. The children have to get student loans and work as well.
Senator Bosa: Ms Curtis, you made reference to the anomalies of Bill C-41 and that some of the proposed provisions of the bill do not contemplate or embrace all possible situations. Would the regulations that the minister is proposing to enact from time to time cover those anomalies?
Ms Curtis: Some are covered in the current regulations and the working draft of the regulations that we have, and some are not. A perfect example is calling these expenses "special or extraordinary". That is a real problem. Including reference to them is good, but calling them "special" is a problem. I suppose the minister chose to include them in the regulation as opposed to the bill because they could be changed more easily.
Senator Bosa: Reviewing the legislation every year as you propose may be desirable, but it may be very difficult for the government to make changes every year. The government has the prerogative of making those changes to regulations. At the end of the fifth year, once they have accumulated a lot of information, perhaps they could introduce a wholesale amendment to reflect the experience of the previous five years.
You mentioned the anomaly of two spouses who earn $40,000 each. In the grid, there is no difference as to the amount of money they have to pay for child support.
Ms Curtis: That is right.
Senator Bosa: One could be a 14 year old or a 3 year old, I believe you said.
Ms Curtis: That is right.
Senator Bosa: If the spouse complains that that is insufficient, are the provisions in the bill sufficient to make an adjustment?
Ms Curtis: The provisions of the regulations allow the spouse who thinks the grid number is not enough to ask for more. However, that will require someone hiring a lawyer. It will be very difficult for custodial mothers to sit down at the kitchen table and negotiate that. That will not happen. Women will be severely disadvantaged. Many women are not able to negotiate as equals with their partners. If they can afford to hire me, I would be happy to do it for them. However, if they cannot hire a lawyer or go to court themselves, they will rely on the grid. In respect of an income under $40,000, those grid numbers are very low.
Senator Bosa: Are there any community volunteers who assist persons in that particular situation so that they do not require to go to a lawyer?
Ms Curtis: I would hope there would be, but there are cutbacks taking place in all community services.
Senator Cools: You tend to represent women; you do not seem to represent husbands or fathers.
Ms Curtis: I could not make a living acting only for women. I act for many men. Generally, women do not have enough money at the end of marriages, so one cannot make a living acting only for women.
Senator Cools: What you have been saying reflects reality. It is unfortunate that this bill so "genderized", as is the entire debate.
I belong to the group which believes that family law and divorce proceedings are not a place for ideologues and ideologies, but as you spoke, you did not seem to say anything that represented the interests of a single father in all of the cases you referenced. Can you shed some light on fatherhood in divorce?
Ms Curtis: I am here today on behalf of the National Association of Women and the Law, so that is outside my brief, senator.
Senator Cools: Does the National Association of Women and the Law have no interest in that aspect?
Ms Curtis: That is not part of my brief today.
Senator Cools: You are, however, a lawyer and, as such, perhaps you could address a question. I refer particularly to the issue of spousal support and that clause of Bill C-41 which declines to consider spousal conduct in spousal support awards.
Could you tell me what the position of your organization would be in a case such as that respecting Mr. Toby Mutka? His wife seriously wounded him by stabbing. Yet, he continues to have to pay spousal support. How many people have to pay spousal support to their assailants?
Ms Curtis: I have never heard of that case.
Senator Cools: You do, however, know the clause in the bill which says that one cannot consider the conduct of either spouse in decisions relating to spousal support awards.
Ms Curtis: Yes. There are very specific criteria set out in the Divorce Act on how to determine spousal support which were not altered by this bill.
I am not certain I understand your question.
Senator Cools: In instances of extremely fierce and ferocious feminine aggression, what should be a man's obligation to that spouse? In other words, is aggression one-sided?
In your brief, you say that assaulted women should not to be put in a position where they must have continued contact with their husbands. What about husbands whose lives have been threatened by their wives? Are they to be in the position of having to have that contact?
Ms Curtis: No, they should not be. However, the statistical data shows that it is overwhelmingly women who are assaulted. The incidence of men being assaulted by their spouses is statistically insignificant.
Senator Cools: Cite me one study showing that.
Ms Curtis: That is outside of our brief today, senator. I bring a particular expertise and experience here, and that is not my expertise.
Senator Cools: I was wondering what the National Association of Women and the Law believes to be spousal obligations and duties in the instance of a spouses who very seriously assaults his or her partner.
Ms Curtis: Those are very complicated issues and not part of my brief today.
Senator Jessiman: You said you do act for some men, including some who are fairly wealthy.
Ms Curtis: Yes.
Senator Jessiman: Many couples who are both professionals earn $150,000 each. I understand that about one-third of that would be paid in tax, so each would net $100,000. If this couple has three children and they separate, the non-custodial parent would have to pay $36,000, which is not tax deductible. Therefore, after paying child support, the non-custodial parent would have $64,000, or 32 per cent of his earned income. The custodial parent would retain the $100,000 after tax from employment and would receive $36,000 in child support.
Ms Curtis: Where do you see $36,000 on the chart?
Senator Jessiman: I used Manitoba for this example. The custodial parent would retain $100,000 from an earned income of $150,000 and would receive $36,000 for child support.
Ms Curtis: That is for the custodial parent and three children.
Senator Jessiman: It is child support.
Ms Curtis: The total amount of money you are talking about supports an adult and three children?
Senator Jessiman: Yes, that is $3,000 a month for the three children. The custodial parent still has $100,000, which is 66 and two-thirds per cent of earned income, and is given $36,000 to look after the children. The non-custodial parent retains 32 per cent net of earned income.
Ms Curtis: I cannot do that calculation without a calculator, the income tax program on the computer in my office, and the data. In Ontario, support would not be $36,000 but $26,000.
The comparison you should make is between the number of people being supported in each house. You should consider how much money is available in the house with one adult, and how much is available in the house with one adult and three children. To focus on the percentage of the amount they earn belies the fact that the expenses in the house with one adult and three children are much higher than the expenses in the house with one adult.
Senator Jessiman: It has already determined what they should be in the grid. The non-custodial parent can also apply for extraordinary expenses. The non-custodial parent is getting 32 per cent of earned income. That is unfair.
Ms Curtis: That is actually not the case, sir, but I feel inadequate to answer your question without the availability of the tools I use. The custodial parent must support four people on the income you are describing; one adult and three children. The non-custodial parent has to support one adult. If that produces undue hardship and a different standard of living, this bill allows for a calculation based on the standard of living.
The Chairman: Many families consisting of a husband, wife and four children live on a lot less than $36,000 a year.
Ms Curtis: I rarely get as worried about the families in the senator's example as he is. I am much more concerned about those families where the payor earns $40,000 a year or less. The guidelines were meant to help those families, but the numbers are too low for those families.
Senator Bosa: Did you appear before the House of Commons committee?
Ms Curtis: Yes, I did.
Senator Bosa: Were any amendments made as a result of your intervention?
Ms Curtis: There were no changes made at the house committee as a result of my comments, but I know that officials in the ministry are quite seriously considering the definition of income. They are also looking at the use of the words "special" and "extraordinary" as they apply to the add-ons.
Senator Bosa: Were you consulted before this legislation was presented to Parliament?
Ms Curtis: The federal-provincial-territorial working group, which was formed three or four years ago, issued three or four papers and the National Association of Women and the Law responded to the papers with a brief.
Senator Bosa: Thank you.
Senator Cools: You have talked about the issue of special expenses. What does "child support" mean? What is child support supposed to cover? You spoke of the father who took a $6,000 vacation in Hawaii. I can cite you many instances of very hefty child support payments being made.
For example, in one case I know the mother has a penchant for spending the winter in the Bahamas. As well as that expense, the father must also pay university fees.
I had a father in my office just a few weeks ago who is paying $3,600 a month in child support. He lives in a little studio apartment. This bill does not touch on the issues surrounding the settlement of the property.
Ms Curtis: That comes under provincial jurisdiction.
Senator Cools: I know that, but other revenues are involved as well.
Ms Curtis: You raised two significant points. First, what do we do when the amount of child support is wrong?
Senator Cools: What are the guarantees that child support is being used to support the child? The legislation is silent on these issues, as are women's groups.
Ms Curtis: No, women's groups are not silent at all on these issues. LEAF takes the position that you can not separate the economic well-being of the child from the adult with whom the child lives. You cannot say that the adult lives at one standard of living and the children live at another.
If the amount is wrong -- and, it may very well be wrong in the cases that you are talking about -- that is why courts and lawyers are there.
Senator Cools: It is not wrong. There is nothing wrong with people supporting their children properly. What is wrong is one parent using that money to their own advantage rather than to that child's best interest. If there is a father who can afford $3,600, I say, "Bless his soul".
How does the law and the guidelines take cognizance of a child's needs, and what are the protections and assurances that the money, in point of fact, does go to the support of the child and not the $2,000 vacation in Hawaii?
Ms Curtis: The Federal Provincial Territorial Family Law Committee considered this for a number and found that, across Canada, child support is too low. That does not mean that there is no case where a high-end order is resulting in a circumstance such as you are describing. However, that is not the average, or the widespread problem. The widespread problem is that we have orders that are far too low to cover the cost of raising children and children are growing up either in poverty or in diminished circumstances compared to the parent with whom they do not live.
Senator Cools: This grid contemplates that situation.
Ms Curtis: The bill and the guidelines focused in on fixing the problem that was identified.
The courts and lawyers are available to vary awards that are too high. The situation you are describing is not a big-picture situation.
Senator Cools: The ones at the other end of the spectrum are not "big-picture" situations, either. The big picture applies to all those people in the middle. Many of the people in the middle of the curve are suffering harshly under these kinds of situations. They all want to know how the money is being spent.
Ms Curtis: That goes against the clean-break theory, does it not -- that is, accountability?
Senator Cools: No, it goes to the theory that, because the relationship between two parents is ruptured, it does not follow that each parent should not have a proper relationship with the child.
My concern with a lot of what you said and much of what is before us will feed and fuel continued enmity between the two individuals.
Ms Curtis: If the amounts are low, as I say they are, they will not fuel enmity on the part of payor spouses. Payor spouses will generally be happy with this grid, especially those who earn $40,000 and under.
You asked: What is child support? What is it meant to cover? Is the grid meant to include these items in the add-ons? Should it have tried to provide an amount to take them into account, or are these items really not part of the average family? Those are significant questions.
Senator Cools: Is the inclusion of those items in this legislation a way of reopening the issue of child support? It is a complex issue.
Ms Curtis: Only if people can afford lawyers.
Senator Jessiman: In page 7, paragraph 7 of the guidelines, it is only considered to be shared custody if it is 50 per cent. I know of a number of cases where the non-custodial parent spends three days a week with his children. The children have their own rooms in the non-custodial parent's home. However, there would be no credit for that. That person has actually saved the custodial parent a certain amount of money.
Ms Curtis: The situation you are describing would definitely qualify as shared custody. Section 7 says: "Share physical custody in a substantially equal way."
Senator Jessiman: I asked the same question of the departmental representatives and they told me it would not apply. That is to say, the additional three and four days would not apply, but if it were three and one-half days each, then it would be a different matter.
Ms Curtis: I would be happy to take a three-day-a-week case to court anytime to have it determined to be shared custody.
The Chairman: Most of the phone calls I have received concerning this bill have been from the male population. The female population has probably realized that their concerns are being addressed by this bill.
Some male callers have told me that they are not allowed visitation by spouses, even though they are responsible for paying child support. They have also told me that they pay 80 to 90 per cent of the child support. Further, they say that they have not been consulted on this bill. Our officials tell us that is not so. These men also say that women cannot hear what men have not had the opportunity to say.
Ms Curtis: I hope you let me deal with the access issue which arose in the house hearings.
Conflicted or denied access gets a disproportionate amount of attention for its size. It is a very small part of family law. It is generally resolved by the parties themselves, or through their lawyers. It is generally a by-product of a recent separation as opposed to a long-standing separation. It generally hatches during litigation and negotiations when people are, quite frankly, hot and angry, and have not moved into the acceptance phase. Once the family settles down after a few years of separation, it is a rare occurrence.
Conflicted or denied access is nowhere near the problem that child support is -- not in the courts, not in lawyers' offices, and not for mediators. One of the really unpleasant aspects of it, though, is that there are some high conflict families for whom access will never work without conflict, anger, hostility, name-calling, or unpleasant transfers. These families with intense animosity are called "hostility junkies" by lawyers. They are generally seriously dysfunctional -- that is, either one of the parents or both of them. They cannot let go. This involves a very small percentage of families, probably less than 5 per cent and maybe less than 3 per cent. In some of those families, it will never work. It is not fixable. The amount of conflict that exists is detrimental on a continuing basis to the child who suffers at every access transfer when there is a fight. In those families, there probably should not be access because it is not in the child's interest.
It is regrettable, but the legal system will not solve those situations. We cannot design a justice system to work around this minority. However, there is some interesting empirical data about access, even Canadian data. There is an assumption that, when access is diminishing, the perception is that the custodial parent has somehow interfered with or denied access. The reality is that access parents do not necessarily exercise their access.
A surprising percentage of access parents only see the children a few times a year or once a month. The data shows that the major problem with access is that it is not exercised consistently in accordance with what the children need. The children need stability and consistency in this contact.
The Chairman: There is also the issue of convenience.
Ms Curtis: The data is from a Department of Justice study by Mr. James Richardson.
Senator DeWare: Could we have a copy of that?
Ms Curtis: It was published by Department of Justice in 1988 by James Richardson. There were two studies. It is also referred to in the Federal Provincial Territorial Family Law Committee report on custody and access.
The Chairman: Thank you very much.
Senator Bosa: Are the funds that a spouse receives for child support subject to tax?
Ms Curtis: They are today, however, the amendments to the budget this February mean that they will not be subject to tax after May 1, 1997. They will not be deductible by the paying spouse; and they will not be considered income for tax purposes by the recipient. However, that will not change for all those who have existing agreements or court orders.
Senator Jessiman: They can apply for a variation order.
Ms Curtis: Yes, if they can afford a lawyer.
In some cases it will apply. In the cases where a tax component was built into the amount, it might be worthwhile. However, in many cases no recognition was given to that amount.
The Chairman: On behalf of the committee, I thank you very much for your testimony this morning.
On another topic, honourable senators, I would ask for a motion today that we approve Senators Perrault, Cools, Bonnell, Phillips, and Cohen as members of our subcommittee on Veterans Affairs.
Senator Bosa: I so move.
The Chairman: Is it agreed?
Hon. Senators: Agreed.
The committee adjourned.