Proceedings of the Standing Senate Committee on
Social Affairs,
Science and Technology
Issue 16 - Evidence
OTTAWA, Wednesday, December 10, 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 9:05 a.m. to give consideration to the bill.
Senator Mabel M. DeWare (Chair) in the Chair.
[English]
The Chair: We are considering Bill C-41, an act to amend the Divorce Act.
We have with us this morning Greg Kershaw, president of Fathers are Capable Too, and Nardina Grande, from Second Spouses Group. We also have a little one, which brings us all back to reality.
I should like to ask you to start and make your presentation, and then the committee will have time to question you.
Mr. Greg Kershaw, President, Fathers Are Capable Too: Thank you for having me. My name is Greg Kershaw. I run a group called Fathers Are Capable Too. We are based in Toronto. We represent over 100 families. We have been around for close to four years now.
We are a group of non-custodial parents. People ask us why we have the word "fathers" in the name, and it is because most non-custodial parents are in fact fathers. Our membership is open to anyone. We have many women in our group. We have grandparents in our group. This is the youngest member of our group. His name is Terran, and he will be adding a few things during the presentation, I am sure.
The Chair: Before you start, we may have to ask you to move him to the other side of Ms Grande because the microphone is picking him up. Thank you.
Mr. Kershaw: The transcribing could be rather difficult since he is not fluent in any language but his own.
I should like to start the presentation by reading three things. Ms Grande has a short speech which she would like to read, and then we will be pleased to answer any questions.
When talking about Bill C-41, people do not realize what is going on in the trenches -- in the family law courts. Long before we get to the issue of child support and who is paying what bill, there are the issues of custody and access. I have a quotation from a judge, and this is typical of what you find in the family courts. Judge Richard Huttner says:
You have never seen a bigger pain in the ass than the divorced father who wants to get involved. He wants to meet the kid after school, take the kid out to dinner, have the kid on his own birthday, talk to the kid every evening on the phone, go to every open-school night, take the kid away for a whole weekend. [He wants to live with this kid, not just visit his kid!] This type of involved father is pathological.
Senator Jessiman: What date was that?
Mr. Kershaw: This is from the late 1980s. This is out of the New York court system. There is quite a bit of information available. Unfortunately, much of it is American. For whatever reason, we do not have information such as this in Canada. Much of it is extrapolated from the United States.
It is typical of the attitude. You are there as a father asking permission of someone one who does not even know you to see your own child. If they give you what is called fair, generous and liberal access, that means four days a month. That is generous; that is liberal; that is fair. They might not give you that. You are in a position of begging.
The next thing I would like to read is once again American. It comes out of Oklahoma City out of the Christian Science Monitor. It is important because they have legislation very similar there to the guidelines in this proposed legislation here. The person who wrote this article is executive coordinator, District Attorney's Office, Oklahoma City. The article is entitled "Deadbeat Dads? Look Closer!"
Deadbeat dads are the special targets of politicians hungry for the perfect scapegoat. Child-support enforcement must be tougher and tougher until all of these deadbeat dads are made to feel the lash, and all will be well.
I have put hundreds of these deadbeat dads in jail, and I have collected child support from tens of thousands of them. I was the primary or only trial attorney in three child-support enforcement offices for eight years, and then I ran the Oklahoma child-support enforcement program for three years.
So this man knows what he is talking about. He says:
The real deadbeat dad is seldom a model citizen, but he is even more seldom the mythical monster described by politicians. Most deadbeat dads are frightened, angry, and depressed men who fall into several overlapping categories.
Remarried supporter:
A large percentage of deadbeat dads are remarried and are supporting several step-children or biological children from a second marriage. Often this family is poorer than the household of his ex-wife, who may have married a more successful breadwinner. It is also common for the ex-wife of a deadbeat dad to have remarried another deadbeat dad, who is supporting her and her children.
Men in poverty:
Many deadbeat dads are homeless, and an even greater percentage are poor. Because the calculation of a woman's income excludes many of the social welfare benefits she receives, the statistical picture of women in poverty is highly misleading. Not only are many deadbeat dads destitute, it is often their failures as providers which led their ex-wives to divorce them. I prosecuted one deadbeat dad who had been hospitalized for malnutrition and another who lived in the bed of a pick-up truck. Many times I prosecuted impoverished men on behalf of ex-wives who had remarried successful men and were living in comfortable conditions.
Fathers helping mothers:
Men who provide non-monetary support are deadbeat dads according to the child-support system. Mothers and fathers often work out agreements for child support that involve dad fixing the car, buying groceries, baby-sitting the children, or getting clothes for the children. These men may be unemployed, but they want to help their children. Sometimes they are concerned that monetary support doesn't benefit the children, but the mother's newest boyfriend -- or that it goes to buy drugs or alcohol. None of the non-monetary support counts, even if the mother and father want it to count and even if they agree in writing that it should count.
Fathers paying child support:
Child support is "paid" only when it's paid in a bureaucratically acceptable form. In a child-support program, the jargon for other means of payment is a "shoe box full of receipts" -- which means a father who was paying his support, but not through court or the program. I had thousands of these cases. In one, the mother signed an affidavit that the dad had never paid. But when confronted with receipts acknowledged that he had always paid support. Why would she do that? She was on welfare; her child support became the property of the state and federal government. If she keeps the child support, it is welfare fraud.
Why would concerned fathers pay child support directly to the mother? The bookkeeping in child support offices is atrocious. The mother could be confused with another woman or the paying father with another man.
Men with actual custody:
Yes, even men who are raising in their homes the very children for whom child support is sought are deadbeat dads. If a court order says that the mother has custody and is entitled to child support, and if the mother gives the father the children because she cannot control them or has other problems, then he is still liable for child support.
I have some people in my group who are in situations like that.
Most of the fathers I prosecuted said that they would raise their children with no help from the government and with no help from mom, if given the chance.
Men who can't find their children:
Even the inability to find children to support is no excuse. The mother may leave the state with their young children and not tell the father where she is for five years. The child-support system can, and does, go in and collect five years of delinquent child support from this deadbeat dad. In some cases, of course, the mother has a very good reason because of domestic abuse, but in other cases it is the father's allegations of child abuse by the mother which prompt her to run.
Fathers who love their kids, but won't work for them:
This is different, of course, from mothers on welfare who won't support their kids. The former are "creeps" and the latter are "victims of society". The sad fact, however, is that children have precisely one set of parents, and if the parents can provide emotional support, that is at least as valuable as economic support. Many deadbeat dads love their children just as much as the mothers on public assistance who don't support their children either. The social costs of driving dad into another state or putting him in jail are seldom considered in the calculus of child-support enforcement benefits.
Child-support resistors:
Let's take the case of the "worst deadbeat dad in the country." He fit none of the above categories. He had money; he knew where his children were; he had no excuse. And he was almost half a million dollars in arrears on child support.
But how much child support was this man ordered to pay each month? $5,000? $10,000?
It was actually $9,000.
These are middle-class men who are obligated to pay half of their take home pay as child support. Mandatory child-support guidelines remove from parties and even courts the power to determine what support is fair and reasonable.
The guidelines are based on an "income sharing" model which presumes what the needs of the children are --instead of actually examining the needs of the children. The result? A growing class of men who -- on principle -- would rather go to jail than pay support.
The article then goes into a few solutions. Many of the people in there represent people in my group. I have people who actually have physical custody of their children but the mother retains the actual legal custody so she still is eligible for mothers' allowance or any other benefits.
My final piece to read is a letter that was faxed to me, and it is pretty scary. It is by a man by the name of A. T. Renouf. It says:
To whom it may concern.
Last friday (13-October) my bank account was garnisheed, I was left with a total of $00.43 in the bank.
At this time I have rent and bill's to pay which would come to somewhere approaching $1500.00 to $1800.00.
Since my last pay was also direct deposited on friday I now have no way of supporting myself, I have no money for food or for gas for my car to enable me to work. My employer also tells me that they will only pay me by direct deposit, I therefore no longer have a job, since the money would not reach me.
I have tried talking to the Family Support people, at 1916 Dundas St. E., their answer was: -- "we have a court order." repeated several times.
I have tried talking to the welfare people in Markham, since I earned over $520.00 in the last month I am not eligible for assistance.
I have had no contact with my daughter approx. 4 year's. I do not even know if she is alive and well. I have tried to keep her informed of my current telephone number but she has never bothered to call.
I have no family and no friend's, very little food, no viable job and very poor future prospects. I have therefore decided that there is no further point in continuing my life. It is my intention to drive to a secluded area, near my home, feed the car exhaust into the car, take some sleeping pills and use the remaining gas in the car to end my life.
I would have preferred to die with more dignity.
It is my last will and testament that this letter be published for all to see and read.
These are the sorts of things that end up on my fax machine. That is the end of my written presentation. I will be available to answer a few questions in a few moments. Right now, I will take care of my son while Ms Grande comes in and reads her speech.
Ms Nardina Grande, Second Spouses Group: I often find that there is truth in the unspoken word and I think this applies effectively to Bill C-41. For instance, what is not mentioned in Bill C-41 is a group that I think includes a large number of people, and they are second-families.
I was at the Finestone hearings three summers ago. There was a lady there from a group called MAFIA, Mothers Against Fathers in Arrears. She told me and another second spouse to our faces that we did not have a right to exist. That is the prevailing attitude out there.
I met another lady about six months back at an FAD meeting. FAD is Families Against Deadbeats. Another lady there told me the same thing, that I had no right to exist. I was holding my son in my arms, and I guess my son has no right to exist. Well, I do exist and my son exists, and I will not move to the back of the bus any more.
To introduce myself, my name is Nardina Grande. I am the founder of Second Families of Canada. I am also a founding parent of FACT -- Fathers Are Capable, Too -- which was started about three and a half years ago to address the crucial issues around divorce and access and child support, the whole gamut.
If you compare the issues today with 10 years ago, they are not the same. Things have changed drastically. So do not compare the child support figures 10 years ago. I have spoken to women who were receiving child support 10 years ago, and they are nowhere near the levels that are being ordered today. We are talking about a crisis here and unreasonable awards.
My husband has been ordered to pay, for one child, $1,300 a month. He is currently on disability. They are garnishing more than half his wages.
Because right now, they can only take half his wages unless they order a family garnisheement, I am kicking in, offsetting his expenses by supporting him, feeding him, making sure that he has shelter, as well as supporting my own son. I am not asking for hand-outs. I just want the system to be fair.
Second spouses are portrayed in the media in one of two ways. The first way, ironically, is that we are portrayed by our absence. We are often not mentioned at all in the media. We do not exist. That is the current opinion out there. The second way that we are portrayed in media and magazines and popular culture and Ms. magazine is as part of a prosperous family which is taking everything away from the first family because we are living on the high horse.
Show me someone who is. If you find a family like that, you will often find that the second spouse is working like a horse. I should be running my business today. I drove here from Toronto to be with you so that you could hear our plight and the plight of other second families.
I want to give you what I think is a true portrayal of second spouses, the ones who are actually married to divorced men who have children from the first marriage. I refer not just to men who are divorced but to men who are divorced with children and who are paying child support. In most cases, we prevent divorced men from committing suicide. We provide emotional support. When I met my husband, he was on the verge of committing suicide and I was there to pick up the pieces.
You might want to call me a martyr. You might want to say that I knew what was coming. No, I did not know what was coming. I did not know that Bill C-41 was coming. Who was to predict that an Attorney General of Canada would propose to undermine the fundamental rights of a democratic nation and make us into some socialist state? That is what this is saying: Let us take all this money and extort it from one group of people and hand it to other people. Let us take it from the doers and the entrepreneurs and give to the people who are takers.
That is a socialist state, and I am not afraid of talking about it any more because, frankly, I am not going to go to the back of the bus any more.
I was born in this country. I am first-generation Canadian. My parents were immigrants. They came from Italy to find a better country to live in. Instead, the country where I was raised has changed. I am really disappointed with what has happened to Canada. I am really embarrassed and, frankly, I am scared about these kinds of laws, laws that can put my husband in jail.
I met one second spouse who had to go to all her friends and family to find enough money to bail her husband out of jail. Another second spouse is offsetting her husband's expenses to pay spousal support. The judge actually said that, because he has a new spouse with a good job, that he will continue paying spousal support. It had nothing to do with the fact that his spouse was able to support herself. It had more to do with the fact that there is now a new woman who has money, so he must continue to pay spousal support to the first wife.
This does not make sense. I was brought up a feminist. I went to school at the University of Toronto. I was taught feminism. The kind of feminism I see now in the kinds of thoughts and ideas that are influencing this legislation is victim feminism. This is not the kind of feminism I learned. I learned that women are supposed to be self-sufficient and men are supposed to be self-sufficient. Yes, there are child-support obligations, but when the child support is not reaching the child and they are in amounts that the person cannot pay, to the point where you are devastating them so that they cannot even function in day-to-day life, this is getting really ridiculous.
As I was saying, second spouses also provide emotional support to the children of divorce. I have been providing emotional support to my step-daughter for three-and-a-half years. I have known her since she was eight months old. She loves me and I love her very much. On her fourth birthday in August, we had a beautiful birthday party in our back yard. We implored of the mother that she be able to stay a little longer for her birthday party, and the mother was very angry at this. She lied to a justice of the peace, got a court order, and we cannot see her any more. Like that, we are cut off. You might not have sympathy for us, but there is a child there who has been cut off from her father, her half-brother whom she loves very much, and her stepmother. We do not have any rights.
Second spouses indirectly pay child support by supporting our husbands, providing food and shelter, bailing them out of jail. I will say they are wrongly jailed. We have brought back debtors' prison. People have not been jailed for being in debt since almost the turn of the century. Now we are bringing it back. We are reviving the old tradition of debtors' prison.
Second spouses are doers; they are providers; they are entrepreneurs. If you start affecting the lives of all these productive people in the country, I am not surprised the economy is in the shape it is. I do not think we will come out of this recession. This is affecting too many people. It is affecting families. It is an adversarial system. The legal system is an adversarial system. I am sorry if I offend people who are lawyers here or who have friends who are lawyers, but family law just does not work. You cannot take a family unit, which is the basic institution of a country, which is emotionally bound together, and tear it apart over money matters. This is tearing the children apart. It is tearing the parents apart. It is tearing everybody apart.
I can safely say that the child support that has been spent to date on my step-daughter has gone to her lawyer, not to her. All the money that she got in child support has gone to her lawyer. That is a sad state of affairs because the amount of child support is astronomical and that did not go to the child.
I have a press release here which I sent out a couple of years ago. Believe it or not, it is still relevant today. I sent it to Allan Rock and it has been published in the Toronto Sun. It is called, "A Nation on the Verge of Suicide." I apologize for being so morbid today.
Financial suicide, political suicide, literal suicide... does your country feel like home anymore? Is your right to own property and enjoy your family being taken away? Welcome to Canada -- the country governed with compassion.
Your Federal Government is in the process of instigating minimum child support guidelines that even intact families cannot afford. Their hope is to end child poverty and pay off the deficit sooner. They could never be more dead wrong. The proposed minimum guidelines would mean that the child support, and federal and provincial taxes can take up to 75% of a support payor's income. Remember, these are minimum guidelines. That would mean that a support payor with a total gross income of $50,000 would be forced to pay $38,000 in child support and taxes, leaving him/her with $12,000 to clothe, feed, house himself/herself and God forbid should that person have a second family, and want to do the responsible thing and save for their retirement so as not be a strain on the government in their old age.
The Federal Government, under the leadership of Justice Minister Allan Rock, will not solve its goals of resolving child poverty and reduce the deficit. In fact, this initiative on the part of the Federal Government would achieve exactly the opposite effect it intended to achieve. Child support payors will be unable to live up to this payment schedule. They will lose their businesses, have so many stress related illnesses because they can't afford the interest on the arrears that will build up with the provincial child support enforcement agencies, and some will even be jailed, or worse, commit suicide. So what in effect the Government now has created is a downturn in the economy, a drain on our health care and prison system costs, and has attributed to children growing up without one of their parents, not to mention the heightened increase in teenage and non-custodial parent suicides.
Did you know that Canada now has the third highest rate of teenage suicide in the world?
Dr. Hazel McBride, a reputable North American child psychologist doing research in the field of family law and its effects on children and non-custodial parents found the following statistics: An examination of 1018 pairs of adult female twins found that females who were separated from a parent prior to 17 years of age were at increased risk for major depression and generalized anxiety disorders. (Kendler, Neale, Kessler et al., 1992, Archives of General Psychiatry).
A German study from 1991
...found an increased incidence of suicide attempts in patients with experiences of loss in childhood, both by separation and death of parents. The increased suicidal tendency was mainly attributed to the loss of the father. (Journal of Affective Disorders.) Research in Scandinavia found that a significantly higher number of adults who attempted suicide had lost a parent through divorce in childhood (Acta Psychiatrica Scandinavia, 1990, 1993).
The Chair: That looks like quite a long document. Perhaps you could submit it to be put into the record because we would like to ask you some questions.
Ms Grande: It is quite short, just a couple of paragraphs. I will wrap it up.
Dr. McBride found that the stressors on Non-Custodial Parents include legal fees, unrealistic support awards, harassment by Government Support and Custody Enforcement Programs, loss of children due to access denial and false allegations of abuse, lack of control of how support payments are spent, loss of all parental right to make decisions about children, etc.
Her recommendations include joint custody, mandatory mediation, a court ordered course on divorce and separation (which has fared extremely well in the U.S.), divorce counselling for children, shared parenting et al.
Rock's guidelines redefine child support, contrary to the Family Law Act and are actually an underhanded form of income redistribution to the detriment of all family members involved.
That is first and second families.
Mr. Rock... has rocked the boat and as a result, our children are drowning in the waters of narrowly focused political agendas and lack of foresight.
The Chair: Mr. Kershaw, could I ask you where the phrase "deputy dad" came from?
Mr. Kershaw: I have never been asked that. It seems to be a popular term in the media. Whenever you speak about divorced fathers, you always seem to hear about "deadbeat dads".
The Chair: I thought you were talking about "deputy dads".
Mr. Kershaw: No, "deadbeat".
The Chair: Thank you.
Senator Forrest: Mr. Kershaw, in your presentation, we heard anecdotes and stories which certainly touched us.
I worked in the field of human rights and realized many years ago that there were custodial problems with respect to fathers. In those days they were not given children at all. I appreciate that.
I have some concerns that in this particular bill we are only looking at the money matters rather than the custodial aspects. I know the two are tied together. However, it is very difficult for us, because we hear one side one day and the other side the next with respect to the money aspect. We hear one set of statistics from one side and another set of statistics from another side.
You have mentioned that some people refuse to pay support on principle. I have difficulty with that position because there is also a principle of the children receiving the support they need.
Mr. Kershaw: That is true. I will give you an example of a person in my group who is not paying any support.
This man's ex-wife has kept him from seeing his child for four years. The child is now six years old, the ex-wife has had the child in therapy since the child was two and-a-half. The ex-wife is remarried. The name of the child was changed to the new husband's last name so the new husband could have all the benefits of being the father with the same last name but without having to adopt, in order to keep the former spouse on the hook for child support.
In this particular case, the woman does not need the money; her family is well off, her new husband is well off. However, they like having the support there, they like the fact that the father is in arrears, because every time he goes to court to say he would like to see his daughter, even though child support and access are not supposed to be related, the first issue on the table is: Sir, are you paying child support? He must answer: Well, no, I am not. It then goes off on to a discussion of child support.
He has now spent $80,000 to get the right to see his child and, in every case, his ex-wife has denied him, with no penalty to her. There is a court order which says that she has to let him see the child. However, even for periods of supervised access, she would not bring the child to the access centre.
I see many of these situations and I can see good reasons for not paying, especially if the mother's home has a higher income level. The mother has taken the children and completely cut the father out of the picture.
These fathers get very depressed because the only time anyone refers to them as "dads" is when they are being asked for money. However, for the rest of their lives they are nothing to their children. Their children's names may have been changed. They may have been moved to a different province or country.
These men do not feel like fathers. They feel that sending money is akin to paying ransom. It is as though someone had kidnapped your child and said, "If you do not send me $1,000, something is going to happen to your child. We would hate to have to do it, but it would be your fault. Keep sending us the money and we will tell you the child is all right."
Senator Forrest: Would it be your recommendation that payment of support be associated with custody?
Mr. Kershaw: Custody is tied to access. In areas of the United States where child custody is relative to child support, there is a 92 per cent compliance. In cases of protected access orders, where fathers actually get to see the children, there is 79 per cent compliance. However, when there is no access and there is no custody for the father involved, it drops off to 45 per cent compliance.
Senator Forrest: Is that above the statistics we have in Canada?
Mr. Kershaw: The statistics are hard to interpret. I have contact with the Family Support Plan office in Ontario. Their accounting is abysmal.
Is everyone familiar with what the Family Support Plan is?
Senator Cools: Explain to people what it is.
Mr. Kershaw: In Ontario, if you go through a divorce and there is a support determination made, a copy of the order goes to the Family Support Plan, which then sends a letter to your employer and that amount of money is deducted from your pay at source. Once you are in the plan, you can never get out, even if both parties agree. There is a problem there.
The Family Support Plan tracks all this. When they first started, essentially they were a collection agency; they would be assigned debtors and then try to collect.
Many companies have approached the Family Support Plan with software for debt collection. Family Support Plan decided to write their own software. Their software is so bad that if you are in arrears by a penny or by $1 million, you are still in arrears. If you are paid twice a month, you will be in arrears four times a year, just through accounting errors. They have no "reasonableness" test in their software, as is found in standard collections software, where debts are put in ascending order, 0 to $30,000, and so on. They do not do that.
Also, when Family Support Plan started, they took on court orders which had not had payments made for a long time and where the original order could not be found. They took this debt on and have never written it off.
The numbers coming from them are highly suspect. When they want to go in a certain direction, they will say, "Do you realize that only 24 per cent of court orders are in full compliance?" Then 76 per cent are not, so they will describe the 76 per cent as "deadbeats". That is when they are trying to show you how serious the problem is.
When they want to show you what a good job they are doing, they say that over 75 per cent of the files have funds flowing. Inasmuch as they have the ability to take 50 per cent of your income at source, and the majority of people who have obligations are working, there is no way that these men, even if they chose not to pay, could get out of paying. However, their numbers go up or down depending on what they want to prove. They have had limited success with about 25 per cent of their orders.
However, even they admit there are problems. Some of these men might be dead. The United States Health and Human Services found that 14 per cent of "deadbeat dads" were dead. No one got around to telling the office that, though.
The Chair: We have to remember we are speaking about provincial jurisdiction in some of these cases.
Mr. Kershaw: Once Bill C-41 goes through, that is true, it will be enforced provincially.
Senator Bosa: You gave us several instances of the hardship fathers experience through these child support payments. However, these have happened before this bill came into force. You have not addressed the particulars of Bill C-41. Some of the things to which you were referring just a moment ago are under provincial jurisdiction, as Madam Chair has pointed out, and have nothing to do with Bill C-41.
Mr. Kershaw: Well, Bill C-41 will establish minimum guidelines. I have gone through the bill. One of the problems I have with Bill C-41 is its inflexibility. Some people who have come through our office are not having much of a problem; the man and the woman have sat down and worked it out; they are doing various things. One of the concerns with this bill is with cases which might be described as "the divorce from hell", where the parties have been fighting for the last four years but where things are finally settling down. This bill will force judges to say: This is the mandatory amount which must be paid. This could reopen old wounds and change many things. A mother may decide she should be getting $1, 000 instead of the amount she had agreed to earlier.
I will give you an example. A lady called me. We were chatting about her ex-husband. She said, "I let him see the child, but he has not paid child support for four years." We chat a while longer and I find out that he is paying for the son's hockey, the son's hockey equipment, the skiing, the son's clothes, the son's bicycle and all these other things. I said, "That sounds to me like he is supporting his child."
Under Bill C-41 the father will get no credit for doing these things. It is all nice and well that he does it; however, who cares? He has to send her the $1,000, and if he still has any money left, he can actually do these things on top of that.
The Chair: I think we should question the $1,000. The grid shows that you would not pay that unless you were earning $137,000 a year.
Mr. Kershaw: I have been told what will happen by various legal people who are getting ready for court. Although what the judge does is look at the number of children, then look across the grid and find the number there, I can guarantee that is not the number the father will pay, it will be higher. That number is a minimum and if there is any money left over, there might be some spousal support.
Senator Bosa: Ms Grande, you make reference to your parents coming to Canada and that you feel that this is not any longer the promised land they thought it would be. I would not ask you this question had you not mentioned it. However, I was born in Italy, too, and I presume your parents came to Canada in the late 1940s or early 1950s.
Ms Grande: It was in the 1950s.
Senator Bosa: From a rural area?
Ms Grande: Yes.
Senator Bosa: Divorce was unheard of in rural areas at that time. However, I go back to Italy quite frequently, and I can assure you that the divorce rate is just as high in Italy as it is in Canada or the United States. You would have the same problems in Italy today.
Ms Grande: I know there is divorce in Italy. That was not my point. My point is: My parents came here for a better life.
Senator Bosa: Obviously they got a better life because they were able to send you to university.
Ms Grande: That is true. However, now I am seeing legislation which scares me because it is undermining fundamental rights which we think we should have in a democratic nation. When passports and licences can be refused, we are restricting freedom to earn a living. What is going to be next: electronic anklets?
Senator Bosa: I will ask you one final question: Why do you think Bill C-41 would allow people to be put in jail?
Ms Grande: It is already happening.
Senator Bosa: That has been happening without this bill being in force.
Mr. Kershaw: One of the reasons we believe that is that you can go to jail today for arrears in child support. It is called contempt of court. If you are increasing the amounts which have to be paid in areas where current amounts are not able to be paid, then more people are likely to be jailed.
Senator Bosa: Is there not a process by which these orders from family court can be appealed?
Ms Grande: If you have money. However, if you are already in debt, it is counterproductive.
Mr. Kershaw: You are speaking about a variance, based on material change in circumstance. You are going to go in and get your child support payments reduced, right? Wrong. First off, Legal Aid will not cover a man, even one who is destitute, attempting to have his child support payments reduced. Even if you qualify for legal aid, they will not do this for you.
So you have two choices: You can borrow some money and perhaps hire a lawyer or you can go in and defend yourself. If you go with a lawyer, you are looking at $2,000 per appearance, and you should not expect a decision to be made on the first appearance. It looks bad: Here is a man with his lawyer; he would rather spend money on his lawyer than on his children. Judges do not go for that. If you decide to defend yourself, you can be cut to ribbons because you are dealing with highly technical issues and the opposing lawyer is going to be merciless on you. So there is a situation where you are destitute and the only way to change it is to hire a lawyer. You cannot afford to prove you do not have money.
In Bill C-41, there is the undue hardship clause. After consulting with some lawyers on this, I was told the only way you can actually put forward a case under that clause is to use modelling software because the calculations are so difficult. The estimation is if you want to prove undue hardship, you will have to spend between $5,000 and $10,000 with a lawyer preparing your case, knowing that even if judge acknowledges that you may be facing undue hardship, he or she is not bound to do anything about it under this bill. You have to have $5,000 or $10,000 to spend to prove you do not have any money, so good luck. It is a self-defeating feature. There may be a lot of people with undue hardship. There is no way you can even do the calculations on your kitchen table.
Senator Cohen: Thank you for your presentation and for the initiative of creating Second Families of Canada. I never thought I would say "thank you" for that because most of my adult life I have worked on behalf of women trying to get custody and support payments. What you describe is a situation a member of my own family is going through now: a husband on disability and a second family with children, where she is supporting the household and all the money is going to fighting in court. The attention is on the money involved instead of being given to the children. I want to thank you for pushing that button for me.
What would you suggest or what you like to see in this bill that might open the door for recognition of second families and the hardships that they go through?
Ms Grande: First, I would like to be mentioned in the bill. Put us in there. Second, if I may just address Senator Bosa's question, divorce is a relatively new phenomenon when you consider how many centuries we have been around, and it has taken different forms. People did not call it divorce before, but in terms of legal divorce, it has been around for about the last 50 years.
Whatever legislation you are putting through now will set a precedent that is going to last for another century, or maybe longer. I do not know what is going to happen to the family structure. Second spouses have to be included in the legislation because there are a lot of remarriages. Family structure has changed. You should also keep in mind that the divorce legislation that was in existence 10 years ago is not completely relevant to what is happening now. The situation has radically changed. I have to say that shift has really been to the benefit of family law lawyers, the family law industry, and also somewhat to the benefit of the first families. However, I really think the first family does end up getting eaten alive by her lawyer. I feel sorry for my husband's first spouse. She has done terrible things to me, things that I do not want to talk about, atrocities, and she has put us through a lot of pain. However, she has suffered because all the child support money has gone to her lawyer. She did not think she had to pay it but she did. It was a wake-up call when her lawyer knocked on her door and said, "You have to pay me that $80,000." That money did not go to the benefit of the child.
I would also like to talk about morality in general. That seems to be lacking today. What bothers me is that you are putting in place legislation which is not encouraging people to marry for love, for stability, for companionship. It is encouraging people to marry for profit, for opportunity. What is to stop someone from getting married and divorced six months later and taking the spouse to the cleaners?
Senator Bosa: That is an exaggeration, really. That is highly speculative.
Ms Grande: That happened to my husband. It is encouraging opportunists, and opening the door to abuse.
The worst thing you can do is attach a monetary figure to a child. A child is priceless. A child needs emotional support, compassion and financial support. However, if you start attaching a monetary figure to a child, and saying that because this person makes this much money, this child is worth this much, that child is no longer a child for the joy of having a child; that child becomes a meal ticket. I am going to say it because the feminists will not, but a lot of people hang on to their kids as a meal ticket. They encourage alienating the other parent so they can prove they need all the money because they have the child most of the time.It is a form of kidnapping and legal extortion. That parent might love that child but that is what this bill is encouraging.
Senator Jessiman: Did either or both of you appear before the committee in the House of Commons when this bill was there?
Mr. Kershaw: No.
Senator Jessiman: Do either or both of you agree that what we have to consider is the child, and the child before the parents? The act presently states that both spouses have a joint financial obligation to maintain the child.
Mr. Kershaw: That is correct.
Senator Jessiman: Do you not agree with that principle?
Mr. Kershaw: I believe both parents should support the child. That is what is lacking in the new bill.
Senator Jessiman: It is being taken out.
Mr. Kershaw: The custodial parent's financial support of the child is presumed. The other problem I have with the bill in that regard is that there is no absolutely no enforcement to ensure that that money, which is supposedly going to the child, goes to the child.
Senator Jessiman: I agree with that. Where I part company with you, though, is that, whether deadbeat or not, at some point you have to pay. You talked of someone who owed $80,000. At $1,000 a month that would take over five years. Rather than paying his lawyer, he should have been paying his support.
Mr. Kershaw: His point is this: He wanted to see and bond with his child. He had a very close relationship before the break-up. He did not start out on his legal course to spend $80,000 but his lawyer told him, "Victory is just around the corner. I just need another $5,000, another $2,000. It will be over when the assessment is in, or at the next court date." All of a sudden he has gone through his entire equity, part of his parents' equity, friends' money. He did not set out to spend $80,000. He feels he has done nothing wrong. He has never been charged criminally with anything. He wonders why he cannot see his child. He even has a court order saying he can see his child. He is out of money. He is desperate and depressed. On top of the $80,000 he had to spend, his ex-wife spent $120,000. This is a $200,000 deal. The lawyers are happy because their children can go to college on that money.
Senator Jessiman: I am a lawyer and we do have family lawyers within our firm, and I am told that certainly in Manitoba the guidelines as set out are, in fact, lower than recent maintenance awards. You have this other section where you have special extraordinary expenses, and in that case they do take into account both sets of income, but they also take into account second marriages because they are looking at the household income.
Mr. Kershaw: That is if you use the undue hardship clause, where you go through the entire calculation. That is really tough. Let us suppose you have actually proven your case, you have gone through all this with the software. What happens in six months, or six years? Circumstances change. It takes a long time to put that together and then someone wins a lottery or loses a job or gains a job. Hardship is going to go back and forth. Things change.
The Chair: I am sorry, we are out of time. I thank you very much. Your statements are on record for us. We appreciate your coming here this morning to give us your views.
Ms Grande: I have a closing comment. Children should be supported whether they are from the first marriage, the second, or the third. Children should be supported, with reasonable child support and with access. Bill C-41 should not go through unless you have an equivalent bill for the enforcement of visitation rights.
The Chair: This bill is not dealing with visitation rights.
The next witnesses this morning are from the National Alliance for the Advancement of Non-Custodial Parents. We have with us Mr. Jason Bouchard and Mr. Glenn Cheriton. We have a brief from them, but apparently there is a problem with photocopying and there are a few pages missing. I hope you have a summary for us.
Mr. W. Glenn Cheriton, Chief Researcher, National Alliance for the Advancement of Non-Custodial Parents: Yes, I do.
The Chair: Thank you. Please proceed.
Mr. L. Jason Bouchard, Coordinator, National Alliance for the Advancement of Non-Custodial Parents: If I may explain the purpose of our organization in Ottawa, we try to assist non-custodial parents' organizations to link together because, of course, there is no funding or support. Contrary to what I read in The Globe and Mail, there is no well-funded father's lobby group out there. A lot of non-custodial parents are women, and they are even more marginalized in this effort.
Mr. Cheriton will summarize our main points and then I will discuss some specific areas.
Mr. Cheriton: Our organization is the National Alliance for the Advancement of Non-Custodial Parents. I have been working with single custodial fathers for a number of years. They told me a lot of things that frankly I did not believe so I started to do my own research to find out what information exists on child support.
I am probably going to shock a lot of you in the sense that what I discovered is that virtually all of what government has been telling Canadians is contradicted by their very own figures on child support. This has application to whether Bill C-41 will actually do what it sets out to do, in actually tackling child poverty or enforcement of child support, and whether these amounts are actually going to improve child support.
Essentially my brief details the data I have been able to gather from government data banks, from the Department of Justice, from Revenue Canada, from the provincial collection agencies of Ontario and Alberta, and information from the Vanier Institute of the Family.
I would like to comment on this presumption that there are large numbers of fathers not paying child support. I did some calculations which show that the numbers are probably in the order of about 9 per cent. I have seen figures quoted up to 75 per cent. You also hear figures that up to 75 per cent of child support is not paid. However, the data I have for 1991 shows that the average court judgment was $4,411. The average amount that fathers paid in the same year was $4,883, which is 11 per cent higher than the average court judgment.
Another assumption is that there are a relatively small number of single fathers. The number of single fathers is about 22 per cent.
Senator Jessiman: Is that with custody?
Mr. Cheriton: Yes, 22 per cent with custody. In fact, they get about 1 per cent of child support. This is important when it comes to Bill C-41 and whether the bill is in the best interests of children. If you look at the system and where the child support is going and what is working, you come to the astonishing conclusion that the areas in the best interests of children are not the areas where most of the child support is going. In fact, data from the United States show that states with the highest levels of child support and child welfare actually rank among the lowest in the interests of child health and child welfare.
On the other side of the coin, if you look at what is in the best interests of children, overwhelmingly the data show that children will perform much better in families after divorce where both parents are involved. Those are families where child support levels are the lowest.
The problem with Bill C-41 is that it is based on research that discarded every single case of shared parenting in order to produce this child support formula. They discarded all the cases where fathers and mothers were working together to raise the children.
The second thing they did in producing this child support -- I will not call it a formula because it is a guideline, which is another problem -- is that they discarded 70 per cent of single-custodial fathers to produce a database which represented almost exclusively the lone-parent, single-mother-headed family.
The data in my brief show that this type of family after divorce has the most problems. According to a recent report of Statistics Canada, these problems are not solved by money. Even the high-income, lone-parent family has many of the same problems that poor families have if they are separated. The problem is the absence of the other parent; the problem is not the absence of money.
One of the astonishing pieces of data from this report, which Bill C-41 is based on, shows that for a given level of income of the non-custodial father, the higher the income of the mother, the higher the amount of child support she receives, and thus the wider the discrepancy between the standard of living that the child experiences with the one parent versus the other parent. This is exactly the opposite from my experience with single fathers. The higher the income of the custodial father, the lower the child support he receives from the mother.
The problem with the existing system and Bill C-41 is that it essentially provides another tool to a system which results in enormous disadvantages to children after divorce. This tool will exacerbate all of the existing gender differences. It tilts the entire playing field.
These problems are not caused by women; these problems are caused by the fact that there is only one parent. If you tilt all the resources so that the one parent, in order to get those resources, has to do virtually all of the parenting, it is not surprising that that parent will have all of the problems without any of the help.
Bill C-41 raises several questions. One is whether the bill is based on a model which will work. I suggest it is not. The co-parenting model is the most successful model. Bill C-41 is based on the lone-parent model. It is also based on the assumption that you can replace a parent in the family with money.
The government tried this with native residential schools. They took away the parents and replaced them with an organization with vast amounts of monetary resources. This was a dismal failure. The reality is that kids in this country do not need Bill C-41 money. What they need are parents. Overwhelmingly, what the child experiences on divorce is the loss of the father. That is the problem with Bill C-41 -- it makes that problem worse.
In the justice system, if it comes down to custody, judges often decide on the basis of gender bias rather than on the best interests of the children. When it comes down to child support, the justice system decides on the basis of money rather than the best interests of the children.
Let us look at the enforcement of child support. This is shocking. There are wild claims about what is not paid. However, the Province of Ontario is collecting about 25 per cent more per year. Actually, it is 33 per cent, 34 per cent, and 23 per cent in the four years for which I was able to receive data. They are claiming over the four years that the arrears have doubled. This is a 50 per cent or 40 per cent increase in the amount of money the provincial government of Ontario is expecting to get out of child support. Men's incomes are increasing at about 3 per cent per year, which is lower than the rate of inflation. I do not know how we can expect an increase of this magnitude. In fact, the money women are receiving from Revenue Canada is increasing by about 7 per cent a year. That is about twice the rate of increase of men's incomes. If you look at the last year of the data I was able to get, what single fathers receive has dropped by a staggering 17.2 per cent. The two systems are moving in exactly opposite directions. There is one system for single fathers and co-parenting, and one system for mothers, but the systems that are working are not the systems where the money is going. In that sense, Bill C-41 simply does not make sense.
We must challenge whether this bill will actually reduce child poverty. In looking at the data from Human Resources Development, child poverty has actually decreased in single-father families, in spite of decreasing child support, decreasing government programs and an implacable hostility in the legal system to single fathers and co-parenting. On the other side, in spite of massive increases in government programs, child support and government attention, the rate of child poverty in single-mother families has actually increased. To me, this was an astonishing revelation. This data is from the agencies I have cited in my brief.
Mr. Bouchard: Perhaps you could talk for a minute about the amount spent on single-mother families at all levels of government.
Mr. Cheriton: Yes. This is an estimate by the Caledon Institute of Social Policy. Apparently the three levels of government spend $6.1 billion per year on single-mother families. This represents approximately 10 per cent of families. If you double the rate of divorce, you will double the number of lone-parent, mother-headed families and double that amount to $12 billion. That is the problem that governments will face. The more you make this into a problem, the more government will have a problem. Government simply cannot replace two parents with money. They do not have the money, but they also do not have the skills. Governments do not raise children. Governments raise taxes; parents raise children. That is a simple fact of life.
The Chair: That $6.1 billion, is that Canada-wide?
Mr. Cheriton: That is federal, provincial and municipal.
The Chair: That is total, per year, with respect to single-mother families?
Mr. Cheriton: Yes.
Mr. Bouchard: We keep hearing the phrase "best interests of the child" over and over again. It seems to be the catch phrase in this decade for "give me what I want because it is in the best interests of the child." Bill C-41 talks about money, but it does not talk about anything else.
A commission was in place for five years to look at three aspects of this problem. Support and access were two of them. The point is that dollars are not the whole issue.
Mr. Cheriton spoke about single custodial mothers. One of the reasons we have to look at it as two separate groups is because the circumstances around single custodial fathers and mothers are somewhat different. In the system, they are dealt with differently. One of our concerns is that in comparison to what is being paid now by non-custodial mothers in hard dollars as opposed all the other things that people provide for their children that are not in a cheque -- such as taking care of kids when they are not with them, access costs, all of those things -- the difference between those hard dollars now and the guidelines could mean increases in some cases of about 2,000 per cent. We are talking about a 20-fold increase, and the government has not done any research as to why there is that difference.
Regardless of which numbers you use, whether it is one-fourth or one-fifth of single-custodial parents being men, obviously there is an equivalent number of non-custodial mothers who will be ploughed under by these guidelines with no study as to why there is that disparity. One of the assumptions is that in a lot of cases they do not have the income. Well, if you have guidelines starting at $7,000, they will not have much more. The government has intentionally ignored much of what is out there in the world to get these numbers. Given that they do not know what is out there, we can only surmise that the impact on those big areas will be disastrous. I do not know about you, but I assume that most poor non-custodial parents who were given a 20-fold increase in child support payments would find that a problem. That is a safe assumption. That is the situation most non-custodial mothers will find themselves in.
Again, this makes custody a dollar issue. I have not yet seen a definition of "shared parenting", but shared parenting seems to be considered a very tight, 50 per cent split. The assumption is that if you have a 60-40 split -- and it was based on real world situations of what people can do, what their jobs allow and what schooling requires -- all of a sudden you are paying child support at these rates. However, if you are in a 50-50 split, then we do what we think makes more sense, which is to look at both incomes. Going from a 45 per cent to a 50 per cent breakdown in the time could mean a doubling of child support. You have effectively made that thin area of negotiation in the middle between, say, 45 and 50 per cent in terms of the access to the kid -- all of those things which involve cooperative negotiation -- almost impossible. If the custodial parent allows too much of that to happen, they can see their child support disappear. It could also go the other way. They could actually end up paying child support. If you have a custodial parent whose income is higher and they are receiving child support from someone and the split is 60-40 in terms of time, if they shift to 50-50, then you would be talking about using both parents' income to calculate the cost of raising a child. What a novel idea! But these guidelines do not reflect that. However, if you actually get sensible and use both parents' income, all of a sudden the custodial parent is now paying child support to the other person as equalization. That makes sense. The idea is to equalize the income that supports the child. This is not supposed to be a money-making proposition. This is supposed to be for the best interests of the child.
Shared parenting, which is the increasing style of parenting in divorced families, will now be squashed flat. If you allow shared parenting, you lose a lot of money. In real terms, what will you do? You are the parent with the child, and the bottom line is for you. This is not meant to say that someone is doing this to make money. The bottom line is that if you have the children with you, you want the best deal possible so that you will have the best resources to take care of them. You will do whatever is required to get more money. If it means going from 20 to 50 per cent access to do so, you will. In your terms of reference, that is in the best interests of the children. However, the "best interest" of a child is not just money, it is having both parents -- that is, the closest thing to having the intact family model continue after divorce.
Non-custodial mothers make access a money issue, which is not good for the children. The rates under these guidelines are interesting because they are the reverse of tax rates on income. The more you earn, the higher your percentage of taxable income. That is graduated taxation. It has been around for a long time. Here, we have the reverse. People making under $20,000 are paying the highest rates. People keep throwing around numbers about child poverty, but $7,000 is certainly nowhere near what is generally considered to be the poverty line. In some cases, the rate of payment of support for any income above that figure will be 40 or 50 per cent.
For example, take someone who is off welfare. That person is working, but is considered working poor -- as is a large portion of the population in this country. He makes $8,000 a year. Suppose he is paying child support for one child to an ex-spouse on welfare. That mother, at the bare minimum with one child, is making $14,000 tax fee. In Ontario, family benefits starts at about $14,000 for one child. Tell me where that makes sense. People say, "There is always a basic minimum requirement," but that does not really apply because that money will not go to the person making $14,000. Where will it go? To the province, because they will reduce the family benefit.
You have taken someone who is poor and made him poorer. When he does have the children for access, he will be able to afford to feed them nothing but macaroni and cheese. You have taken the money from their pockets and given it to the government. It never gets to the person who is on family benefits and is making $14,000. Tell me any case that you can think of where that is not undue hardship.
I would hope that lawyers out there do their jobs.
Senator Bosa: Did you say $40,000 or $14,000?
Mr. Bouchard: I said $14,000. We are talking about tax-free dollars. If that person does not pay taxes on it, then that is equivalent to more.
Senator Cools: Perhaps you could define "family benefits" for Senator Bosa.
Mr. Bouchard: If you are a single person, you get welfare; if you are a person with a child, you receive family benefits. Basically, it doubles with one child.
If lawyers are doing their jobs correctly, then someone who is making $8,000 a year would apply to the court to request that he be excused from paying child support because it would cause undue hardship. This bill provides for that because the drafters of it saw the flaw contained in their own numbers. Before you are done, everyone under $20,000 will be exempted from child support under the undue hardship provision, rendering the guidelines worthless.
Senator Bosa: Did you have an opportunity to appear before the House of Commons committee?
Mr. Bouchard: Yes, we did.
Mr. Cheriton: Yes.
Senator Bosa: What kind of response did you receive?
Mr. Cheriton: This is a problem. We have had continual problems with employees of the Department of Justice. In fact, while we were there, some of the employees of the Department of Justice were smirking and rolling their eyes. The reaction was extremely hostile and distracting. I was shocked because these people are lawyers. If they did this in court, they would be found in contempt of court.
I had been told by employees of the Department of Justice that fathers do not care about their children because they do not pay child support.
Senator Cools: They say that all the time. That is a commonly held point of view.
Mr. Cheriton: If you have a system which is based upon a belief that fathers do not care about their children because they do not pay child support, but the figures show the reverse, that is a problem. If you look at single fathers, they are far better at supporting their children. If you look at single, non-custodial fathers, they are far better at paying support. If you look at single intact families, fathers are the reason why children are not in poverty.
If you have a justice system -- that is, lawyers and judges -- who firmly believe that getting the fathers out of the family will improve things for children, then providing Bill C-41 as an additional weapon will just create additional problems.
The reaction we received in the Commons committee was, with a few interesting exceptions, pretty hostile.
Senator Bosa: The equivalence table used in the guidelines was developed by Statistics Canada and recommended by various economists. Do you have any problems with this measure of average expenditures on children?
Mr. Cheriton: I do not have any problems with the average expenditures on children. In fact, they use four different ones in here.
There is one standard for the cash expenditures of children, which is $683 per year for actual cash, out-of-pocket expenditures. The average amount that a custodial father gets is approximately $100 per child. That is one-sixth of his cash expenditures. The average amount that a custodial mother gets is $4,883, which is eight times what the out-of-pocket cash expenditures are. If you compare that with what the government gives people for foster parenting or for welfare, then you can see that there are a number of different standards.
Overall, the Bill C-41 formula is an increase. There have been four separate approaches to the formula by different economists. Every single one has increased the amount.
Senator Bosa: But what are the problems specifically in this bill?
Mr. Cheriton: First, they will not even measure whether this will be enforced fairly in relation to both types of families.
Second, the bill deals with child support in isolation rather than dealing with custody, access, support and enforcement all at once.
Senator Bosa: But it took five years to get this to stage. They consulted every Tom, Dick and Harry.
Mr. Bouchard: That is the problem. They did not.
Senator Cools: They did not consult Toms, Dicks and Harrys. It was probably Marys, Janes and Suzies.
Mr. Bouchard: If you look at the list of people who submitted to the committee, there were only two organizations that did not represent custodial mothers. Almost all those organizations were government-funded. So, no, they did not speak to every Tom, Dick and Harry.
The guidelines that were proposed by economists were considerably lower than and different from these. They were discarded because they were not politically correct.
Senator Bosa: You cited a case of the spouse earning $8,000 and the custodial spouse receiving $14,000 by drawing family benefits.
This money comes from the province. The province does not have to support this. It is the parents' obligation to support their children.
Mr. Bouchard: You are telling me that someone who makes $8,000 a year is not allowed to have any spare money to feed the children when they are with him?
Remember that these children are not with the custodial parent 100 per cent of the time. In an intact family model, you are talking about one-third to two-thirds parenting. With these guidelines, anything less than 50 per cent is considered a non-custodial parent. This person could have the children 40 per cent of the time and you are saying he is not allowed to have any money to feed them.
Senator Bosa: Are you saying that the scale contained in these guidelines concerning this matter is completely out of kilter?
Mr. Bouchard: At the low end, it is ridiculous -- especially when you look at the fact that the rates are higher for poor people. Do we tax people that way? I do not think so. There is a reason for that. These people must be able to feed their children themselves.
Senator Bosa: The guidelines have not been tabled yet. They are what we call guidelines, but they have not been approved.
Mr. Bouchard: But every time we have seen them, they have gotten higher.
Senator Bosa: I am told by the experts that these are the minimum standards.
Senator Cools: But they can change them if they want.
Mr. Bouchard: Yes, at will.
Senator Losier-Cool: I looked over your brief. Most of your brief relates to divorce and child support. You realize that that is a provincial jurisdiction, do you not?
Senator Cools: That is not correct.
Senator Losier-Cool: I am talking about child support.
Senator Cools: No, child support falls under this act.
Senator Losier-Cool: A few times you mentioned that it is a model that would not work. You also said that the bill is taking fathers out of the family.
I am looking at clause 15 where the bill talks about spouses and the child. Could you point out to me where the bill exclude fathers as part of the family or where it says, "Mothers get this, fathers do not get that," or, "Fathers get this and mothers do not"? Spousal issues and issues relating to both parents are addressed throughout the bill.
Mr. Cheriton: That is the case with the existing law. If you set up a system where those who work full time in the federal government will get $100,000 a year, whereas anyone who works part time, which is defined as less than 37.5 hours a week, will earn $5,000, and if you were to hand that to managers who really do not believe that visible minorities or natives can do a full-time job, it would not be surprising that those who are from a visible minority or natives would be earning $5,000 from working 37 hours a week, whereas those in the "approved" group would be making $100,000 simply because they would be working a half hour more.
That is what is happening within the child-support system. You are having fathers who are doing 22 per cent of the custodial parenting and receiving 1 per cent of the support. That is a 20 to 1 difference. Essentially, you do not have to have discriminatory language built into a law in order to have it applied in a discriminatory fashion.
Senator Losier-Cool: When you say "the model does not work", you seem to say that we should have 50 per cent shared parenting.
Senator Jessiman: Joint income?
Senator Losier-Cool: Yes; 50/50. What is the percentage of single-parent families? Who has the custody of the child? Are you aware of that?
Mr. Cheriton: Generally, two things happen. If you look at the court judgments, approximately 11 or 12 per cent result in sole custody for a single father. Approximately 75 per cent result in sole-mother custody. The rest result in shared parenting.
The interesting thing about shared parenting is that the amount is growing. Lone-mother and lone-father custody is decreasing. This is happening as mothers and fathers realize that children need both parents. The way Bill C-41 is set up, it will almost inevitably reverse that trend against the will of both mothers and fathers and their children.
Your question is, if men get custody only 11 per cent of the time, why are 22 per cent single fathers? As the children get older, they need their fathers more. Gradually, particularly as they get into their teens, the women say, "You take them." If your child support is so high that financially you cannot afford it, that trend will be stopped in its tracks.
Families recognize children's needs for their fathers. You do not get a doubling of this. This is done by free choice. Bill C-41 will stop the very thing that children need at the time they most need it.
Senator Losier-Cool: We all favour shared parenting.
What would you suggest as an amendment if you were to vote on Bill C-41? What would you do with the bill?
Mr. Cheriton: First, I would make these things subject to the ability to pay. If you do not have it subject to the ability to pay, it does not make sense.
Second, I would hold the House of Commons to their commitment to end child poverty and ask them to show you where there is any evidence whatsoever that these levels of child support will actually reduce the amount of time children spend in poverty. I do not think they have the evidence. It is not there.
Senator Bosa: Could you repeat that?
Mr. Cheriton: The House of Commons made a commitment to end child poverty by the year 2000. Ask the House of Commons to show you any evidence they have that in fact Bill C-41 or these levels of child support will in any way reduce child poverty. I do not think they have the evidence.
The third thing they could do would be to model Bill C-41 not on a lone-parent model but have it start from co-parenting, rather than, as Mr. Bouchard has pointed out, have this enormous, massive change as soon as it approaches the 50 per cent level. According to Allan Rock's chief of family law research, if it is anything below 50 per cent, it falls under these guidelines, which is extreme.
Another thing you could consider is moving the whole question of divorce and custody and access and enforcement out of the court system into something which is essentially mediative. The family is a unique institution. The family is the only institution we have which does not have a single head. Ultimately, the family starts out with two people on an equal basis. There is no other organization that runs on that basis of a central partnership. This is where kids learn balance, negotiation, and working things out. In fact, the court is exactly the wrong model for that. What you need is the model that reflects the family.
The closest thing that I have seen to that is the native healing circles. I work a lot with men in different cultures, and all those cultures seem to have a similar model. If a family has a problem and they are about to go through a divorce, the elders in the village, including the two grandparents, get together and try to work something out. The village puts pressure on them to get together for the interests of the children. The court is precisely the wrong model. Take it out of the courts and put it into something that works, like the native healing circles.
Mr. Bouchard: Some of the work that is being done in Quebec, in terms of leaning quite strongly towards mediation and in terms of their guidelines, which take both peoples' income into question, is quite progressive in this regard. Perhaps we want to look in that direction for some guidance.
Senator Forest: I would certainly agree that co-parenting is a much better route to go. We have experienced that within our own family. I would also agree with mediation as opposed to an adversarial situation.
You mentioned the ability to pay. I believe there is a clause in here which has to do with ability to pay. That will be taken into consideration in the guidelines.
While fathers pay more, I think statistics would also show that most of the time the fathers have the higher income. Statistics show that, and perhaps that takes that into account.
Mr. Cheriton: From the information I have, the difference in the order of magnitude between what fathers pay, and what mothers pay when the genders are reversed, is so huge, in the order of 20 to 1, that it overwhelms any differences in income. In fact, the interesting point is that, in effect, a non-custodial parent is put in the same position as a single person. Single people earn virtually the same amount, regardless of gender. The difference, according to Statistics Canada, is something in the order of less than 5 per cent between men and women who are single, never married. These differences should not make a difference of the order of 20 to 1 between the amount of child support.
Senator Forest: We are hearing so many statistics on one side and so many on the other. It is a very difficult task to try to reconcile them?
Senator Bosa: You stated that the House of Commons advocated the elimination of poverty by the year 2000. Who specifically in the House of Commons stated that?
Mr. Cheriton: This was a vote of the House of Commons, a unanimous commitment, to eliminate child poverty by the year 2000. Put that into the context of the Bill C-41, and I think the bill is a retrograde step. The federal government and the provincial governments have also made a commitment to the United Nations on keeping both children in contact --
Senator Bosa: This bill is not a welfare bill. This bill is not about reducing child poverty. This bill is about child support.
Mr. Bouchard: The purpose of child support is to reduce child poverty, is it not?
Senator Bosa: Not in the context that Mr. Cheriton put it. He said that the elimination of child poverty was to be accomplished by the year 2000.
Mr. Cheriton: It was simply a suggestion as to how to improve Bill C-41.
Senator Jessiman: You say that Quebec does in fact in their guidelines take into account the two incomes. Therefore, each province could do the same thing if they wanted.
Mr. Bouchard: If they had the money to spare to do all the development costs, yes. How long has it taken the federal government to get to these? How much has it cost? What kind of money do the provinces have to spare? What do you think the natural evolution will be?
Senator Jessiman: I assume from what you have said that you think Quebec is fairer, and I would agree that both incomes should be taken into account. That can be done just by the guidelines themselves. The federal government is passing a guideline for Quebec, but it is not the guideline that Quebec has, is it?
Mr. Bouchard: Exactly. If provinces develop their own guidelines, they effectively supersede these. However, in most cases, if you have the choice between an existing guideline that has, in theory, been researched, and spending all the money to develop your own, most provinces would suggest they do not have the money and would rely on the federal government's guidance.
Senator Jessiman: Could they not also do likewise with Quebec's guidelines?
Mr. Bouchard: They can all develop their own.
Senator Jessiman: You are saying it is fairer, and I agree with you, in that it take both incomes into account, both custodial and non-custodial. That is what I think is one of the very basic wrongs with these guidelines. If Quebec can do it -- and they have done it -- could the other provinces not use those guidelines and simply adjust them for of differences in the cost of living between provinces?
Mr. Bouchard: They certainly could. It is pretty strange situation when you have the federal government passing legislation that every province will have to fix. It seems like an odd way of doing business. You would not survive in the private industry if you were running things that way.
Senator Jessiman: Section 17(8), which is the one recognizing that former spouses have a joint financial obligation to maintain the child and apportions that obligation between the former spouses according to the relative abilities to contribute to the performance of that obligation, is being deleted from the act. Would you not think that that should be left in?
Mr. Bouchard: It seems to be the one area that provides a bit more balance. Unfortunately, balance is not what this is about. This is why they want to remove it. That should tell you more about this piece of legislation than anything else.
Mr. Cheriton: That is the core of co-parenting, the core of an intact family, the core of shared responsibility.
The Chair: Thank you, Mr. Bouchard and Mr. Cheriton, for your presentation this morning. We appreciate your coming before the committee.
We welcome now Mr. Patrick Mullin.
Mr. Patrick Mullin, Director, Canadian Council for Co-Parenting Thank you, Madam Chair. I plan to speak first to one issue relating to Bill C-41 and to develop the argument or the discussion I want to present through that.
You all should have a five-page document entitled, Presentation to Standing Senate Committee...Divorce vs Justice: C-41 -- A Missed Opportunity.
Attached to that is a photocopy of a page from the U.S. Bureau of Statistics, and a copy of a page from a document entitled Dissolution of Marriage; Support; Custody, which are statutes from the state of Florida. That is all there should be to your package. We will focus on that.
I understand this is being simultaneously translated. I apologize that we did not have the capacity to translate this.The Council for Co-Parenting has no funding. We are all volunteers. Our budget approximately shows minus $52 to Bell Canada.
Senator Lavoie-Roux: Parliament has the responsibility to translate this. Do not apologize.
Mr. Mullin: When I was called to make this presentation, a number of things came to mind. I have been involved in political activity for a number of years. I want to ask the question: Is it possible? Do you really feel that we can tack a car on to the train, so to speak, or am I at the platform waving my ticket and looking at the caboose?
Then I thought of a quote by Winston Churchill that goes something like, democracy is the worst system but show me a better one.
Under the guise of those types of feelings, and also since it is Christmas, I will tell you that Bill C-41, to me, deals with real feelings. I would bet that most people in here have grandchildren or children. I will say no more on that.
Briefly, I have personally experienced separation and divorce. I have been a non-custodial support payer. I am presently a custodial parent who receives support. I live in a blended-family situation. I have with me my new wife Carol and my daughter Lucy. My daughter will observe and will later sanitize what I will tell you.
The passage of Bill C-41, amendments to the Divorce Act, passed by the House of Commons on December 18, 1996, called for closer scrutiny in the name of fairness and balance. While positive in its intention of dealing with child poverty, it is apparent that the damage and devastation caused by the adversarial nature of the family law process in Canada will continue and perhaps increase for parents, grandparents, and relatives -- and do not forget employers in this whole scenario -- but, most of all, for children.
Bill C-41 will set up guidelines, amounts and enforcement regulations ensuring that child support responsibilities will be honoured. Not many would argue that any parent should wilfully abandon that responsibility. That is not part of the presentation. That is not even a consideration. No one is considering that. Conscientious defaulters make enforcement measures necessary. The consistency aspect of standardized guidelines are long overdue; no question.
However, as many Canadians know, many caring, loving, fit parents are ostracized from their children by the process itself and left devastated. I will tell you about one of the best recent examples, and there are many out there. As chairman of the Canadian Council for Co-Parenting, I see fathers crying at our meetings; I see mothers crying at our meetings.Why?
"The Divorce from Hell," Toronto Life, February 1996, is a good example of what is terribly wrong with the family law system.
The new measures fail in ensuring that fit parents, in a time of great turmoil and anger, will be treated fairly. Bill C-41 enhances the "winner takes all" stakes -- the children, the financial support, and the opportunity to continue to be an active parent. On top of that, you have the full weight of the government on one side here.
There is simply no support for any type of shared parenting after divorce, from Justice Minister Rock and his department. Sadly, Bill C-41, in my opinion, is an opportunity missed.
As far back as 1970, the Law Reform Commission of Canada did a major study of family law in Canada.
On procedure, the commission concluded that the bitter proceedings in divorce actions should be reformed particularly because of the detrimental effect on the children. It concluded that no purpose was served by acrimonious courtroom battles.
The actions of the government and the courts since then have done little to improve this cause for concern. Family court decisions have consistently aggravated the problem. If you do a quick review of custody decisions through Statistics Canada, those figures clearly show an unbalanced picture when it comes to the issue of parenting after divorce.
One could conclude that the large number of single-parent families is systemic in large part due to family court decisions and practices. For the children, there is ample evidence that adjustments and negative impacts as a result of those decisions can be life-long. It is not news to many that developmental and relationship theory should have alerted the mental health field to the potential immediate and long-term consequences for the child of seeing a parent four days each month. Under the guise of "in the best interests of the children," Justice has ignored that critical part of the support picture. It also expects the parent who has been removed from their children's lives to comply complacently until all available resources have been depleted.
The gaps in the research done leading to the formation of Bill C-41 are striking. The Department of Justice itself admits that there has been no research done, no data collected, about the problems of the non-custodial side of the post-divorce family in Canada.
Bill C-41 will affect these parents intensely. I know that personally. What is surprising is that, in its announcement of the new legislation, the government stated that the concerns of all have been taken into consideration.
I have gone to the Institute for Research on Public Policy in Montreal on this, to the Carleton Association locally, to the Law Foundation of Ontario, to the Attorney General, to the Family Support Plan, to the Justice Department, to Professor Finnie, to Professor Payne, challenging them to provide this kind of information. I challenge the Senate to provide me with some and I will gladly say that this is incorrect.
One of the major goals of the entire exercise is to ensure that children get the benefit of support from the absentee parent. This new legislation will enforce compliance through punishment by the denial of licences, passports, et cetera. You know that.
As far back as March 1993, the Department of Justice released a discussion paper dealing with the issue of access and custody. I have it here. During the debate on Bill C-41, many groups tried to convince Mr. Rock of the importance and fairness of this in connection with the child support initiatives.
The U.S. Bureau of Statistics released a study in August 1995. One page of it is in the brief. The statistics deal with 1991 figures, but it was released in August 1995. They found that where there was joint custody and/or secure visitation on the part of fathers, child support was paid between 85 and 79 per cent of the time. Where there was neither joint custody nor visitation privileges, compliance was 56 per cent.
On the other hand, the payment rate for mothers with visitation privileges only and those with joint custody provisions was 65 per cent. There were no figures available for mothers with neither access nor joint custody provisions.
I want you to understand the gap between 85 to 79 per cent and the low 50s. By arguing that establishing a link between access and custody issues and support payments would be problematic, Justice Minister Rock and his department have chosen to ignore this type of evidence in proposing Bill C-41, even though it may have moved the government closer to their stated goal by approximately one-third. Please consider that. We do not have any research in Canada which mirrors this, but this is the most recent study that I have found. If you can move on access and custody, you can solve the problem by one-third.
There are also effective U.S. statutes from some states which do not establish a link but which do deal with the two issues at the very same time -- no link, just dealing with them at the same time -- thereby ensuring a greater measure of fairness for the absentee parent.
Parents who might find themselves in a non-custodial situation should take note of the win-lose aspects of Bill C-41. By reviewing a few examples, one can see that the non-custodial parent will now have more than Revenue Canada to fear. On the whim of an ex-spouse, they must provide tax return statements to the ex-spouse for the three past previous years, even if they are religiously complying with support obligations.
I can tell my daughter now that, once Bill C-41 gets passed, I can go into my ex-spouse's private affairs and ask her for her financial statements, even though she is living up to her support payments. Think of that. It is incredible that an opportunity to continually harass a former partner will soon be included in the divorce statutes in Canada.
There is no provision for direct spending expenses for the children on the part of the non-custodial parent. This means that a parent who totally ignores a child, spends no time, has no expenses for visitation, will be treated the same way as a caring parent who has the child, say, 30 per cent of the time. Bill C-41 discourages any attempt at co-parenting or shared parenting. If it does not, please explain that to me.
Bill C-41's standard-of-living-awards approach to joint custody would make a new partner responsible for the support of the children of the previous marriage of the other partner. By basing variations from the guideline schedule -- undue hardship -- on this concept, Justice has rejected the notion that child support should be a matter of equity strictly between the child's parents. The intrusive and damaging implications for couples moving on in healthy new relationships are staggering.
We have professionals who talk to us at co-parenting meetings. They tell us to deal with it as a business relationship and move on. Tell me, does Bill C-41 allow that?
An expert in the field, Professor Ross Finnie of the School of Administration at Carleton University, a contributor to the original guideline proposals, calls for Bill C-41 to be revisited by the Department of Justice. In his review, "Good Idea, Bad Execution," Professor Finnie comments:
In short, the basic unfairness incorporated in the current guideline proposals might undermine the basic goal of the whole guideline exercise.
He argues that, overall, the package is likely to worsen, not improve, the child support situation in Canada.
Along with other criticisms of the legislation, Professor Finnie also maintains that Bill C-41 is a tax grab from both parents by the government.
Moving on a bit, other jurisdictions in the U.S. have taken a more humane and proactive role in assuring fairness and balance in an otherwise complex and very emotional situation. We all recognize that. If you told me, hypothetically, to choose between the death of my mother or my separation and divorce, I would choose the death of my mother. I can sincerely tell you that.
The state of Washington has taken a progressive approach to parenting after divorce. By statutory principle in family law, the state recognizes the fundamental importance of the parent-child relationship to the welfare of the child and that the relationship between the child and each parent should be fostered unless inconsistent with the child's best interests. Both parents, by statute, must file a parenting plan.
The best interests of the children are clearly defined in family law in the state of Florida. Recognizing that children must be protected from undue hurt and turmoil, parents are cautioned that just because dissolution proceedings have begun and they are ending their marriage, neither is ending their respective relationships with their children.
Florida, it seems, recognizes the brutality of the adversarial system. It values and supports parenting after divorce. This is not a radical idea. It is the change in emphasis which has to be grasped by this committee. Florida has changed the emphasis in family law disputes by making shared parenting the preferred policy. Shared parental responsibility is a court-ordered relationship and is intended to protect the children's rights to an ongoing relationship with both parents.
It is also interesting to note, and I am sure you can relate to this, that Florida also deals with the grandparent access issue.
In Canada, our Supreme Court judges, together with Mr. Rock and the Department of Justice, have yet to grasp this new and more progressive interpretation of the best interests of the children.
As a kinder, gentler society, there is no doubt that the needs of the children should be our primary focus. It is a social justice issue. This is especially true when divorce occurs. The evidence is clear that the costs, emotional and financial, are high. Except for the separation and divorce industry, no one benefits -- not the children, not the parents, not the grandparents, not the community, and not the government.
Professor Julien Payne, Faculty of Law, University of Ottawa, has extensively studied the economic, emotional and parenting crises of marriage breakdown. Mr. Payne puts our adversarial system in perspective:
To the extent that our courts continue to resolve parenting disputes on the basis of competing quasi-proprietary claims, the "best interests" doctrine, which supposedly governs custody adjudications, will remain more myth than reality.
Those are not my words. This gentleman has put his life into this study.
Professionals will tell you that you cannot force two individuals to mediate, to co-parent. We have had people at the co-parenting meetings saying we cannot force people to do that. We agree with that. However, they will say: Change the emphasis. They will also say that in over 80 per cent of the cases, mediation is successful in bringing two angry, disillusioned people to an agreement, once time has passed and they understand the consequences of their actions.
Sadly, the measures introduced in Bill C-41 maintain and enhance the status quo. There is not a mention of mediation. With the stakes in losing custody even greater, bitter battles over custody have the potential to become even more acrimonious and devastating.
Changing attitudes, changing the emphasis in the Divorce Act is now up to the Senate. Canadians who have been involved in divorce, who have known relatives, parents and children who have experienced the devastation caused by the adversarial process of family law in Canada, sincerely hope for sober second thought on Bill C-41.
To claim that the parenting initiatives in family law are problematic is to ignore the large wealth of information which solidly refutes that position. Time will tell if honourable senators are up to the challenge of amending Bill C-41.
Most Canadians realize that guidelines and enforcement measures are sometimes necessary for wilful defaulters. Again, that is not even the argument here.
Child support is clearly more than simply a financial concern. Most Canadians probably know of examples where current family law decisions have led to incredible imbalances, cruelty, hopelessness, and sometimes violence and suicide.
Now that the Divorce Act is being amended, the opportunity exists to direct courts to provide every encouragement for loving and fit parents to share parenting after divorce. It would be a strong and timely signal to send out. This can be done without weakening Bill C-41. I would argue that in the child's best interests, it is time to do that.
I would now ask honourable senators to turn to the attachment to my brief headed, "U.S. Bureau of Statistics, August 1995".
Senator Bonnell: Do you have copies of what you are going to say?
Mr. Mullin: I do not have copies.However, it is attached to the brief.
Senator Bonnell: That is not what you are going to recommend we should do. Do you have a copy of an amendment?
Mr. Mullin: I do not. However, I could provide it, if you would like.
This document stands to reinforce that I did not invent these numbers.
There is no mention of access and custody in Bill C-41. What is the logic of that? There is no research in Canada done similar to this study from Washington. If there is, I stand corrected.
To reinforce that fact, when you get a separation or divorce document, there is one clause in there which says: You will pay so much support. Further down the page, there is also a clause which says: You will get access for so many hours. Is it not unfair for the government to enforce one of them but not the other? Linkage is a terrible thing, and Mr. Rock has said: I do not want a link established. Do not tell me there is not a link to this in the courtroom.
Do you have grandchildren?
Senator Cohen: Yes.
Mr. Mullin: What if I told you that in this season you see them for four hours on one Saturday for the next month? Please consider that.
There may be good reasons to the contrary and we can all think of them. However, are anger or the desire to get back at the other partner justifiable reasons?
I would like to read a portion of a discussion paper on custody and access, dated March 1993, from the Department of Justice.
The continuing use of children as pawns in one parent's struggle to control must be minimized.
What happened to that?
I do want to appeal to you as grandparents, too, because I am in association with Lillian George, who is a member of GRAND.
Everyone wants a dispassionate argument here. I do not know how one could do that. If you return Bill C-41 without amendment, what you are saying to non-custodial parents is: Pay up, see your children, but do not bother us if you are not seeing your children.
If you would move on to the second item I provided, it should read, "Dissolution of Marriage; Support; Custody". I apologize for making scribbled notes on this when I was researching.
I highlighted section b(1). It says "note" on it.
Family decisions in court contribute to the fact that we have single parent families in Canada.
Senator Jessiman: Is this part of a statute?
Mr. Mullin: These are statutes from the state of Florida dealing with dissolution of marriage, support and custody. These are from the Attorney-General's office in Tallahassee.
The Chair: It has Florida written on the bottom, Senator Jessiman.
Mr. Mullin: I want to read that part, because once you get into the gender issue, we lose the core of the issue.
I suggest you look at this concept in terms of your own grandchildren and someone saying to you, "I am sorry, you cannot see those children." Imagine as a parent you pull up to the laneway, you are paying your support, and you are told, "I am sorry, we cannot provide the children to you today."
The message of Bill C-41 is: Pay up, but do not bother us if you are not seeing your children.
We had a social justice heart in Canada. Has it stopped beating? I am not sure.
These are Florida statutes. I challenge you to send something like these back to the House of Commons:
It is the public policy of this state to assure that each minor child has frequent and continuing contact with both parents after the parents separate or the marriage of the parties is dissolved and to encourage parents to share the rights and responsibilities of childrearing. After considering all relevant facts, the father of the child shall be given the same consideration as the mother in determining the primary residence of a child irrespective of the age or sex of the child.
There are two points I want to make about that statute. First, you should say, "Let us send that back."
In 1977 the Law Reform Commission recommended that Parliament endorse through legislation the principle that one parent is not to be preferred as the custodial parent on the basis of sex. Custody of a child is entrusted to a particular individual and not to a representative of popular conceptions about what a man or woman is supposed to be capable of doing or ought to do. Sexual stereotypes are irrelevant in determining the individual capacity of a parent to love, care for and raise a child.
Second, and again in relation to what I just read to you about the Florida statutes, I would like to paraphrase from a household flier from the Status of Women on gender-based analysis, a guide for policy making, in which they said that the guide will facilitate the development and assessment of policies and legislation from a gender perspective so they will have intended and equitable results for men, women, boys and girls.
My question: Does Bill C-41 measure up to the government's own policy?
Finally, I will draw to your attention the issue of grandparents; you may be affected by it. If you do not deal with this in Bill C-41, you will not deal with many grandparents who cannot see their grandchildren. Think of that yourselves, especially around Christmas.
With regard to sections (4)(a) and (4)(b) on page 515, Minister Rock has said that the government does not want to establish a link. I will read those two statutes into the record:
(4)(a) When a noncustodial parent who is ordered to pay child support or alimony and who is awarded visitation rights fails to pay child support or alimony, the custodial parent shall not refuse to honor the noncustodial parent's visitation rights.
That is one side of the argument. Here is the other side:
(b) When a custodial parent refuses to honor a noncustodial parent's visitation rights, the noncustodial parent shall not fail to pay any ordered child support or alimony.
Very simply, they are dealing with both of these at the same time. They are not linking them, but, in fairness, they are dealing with them.
I know that this is on the table for discussion. I appeal to you to take the initiative. These are workable statutes. They could be worked into Bill C-41. How would these statutes weaken Bill C-41? Let there be enforcement; let there be guidelines; but let there be fairness.
Senator Lavoie-Roux: Thank you for your brief and your testimony. It was very interesting. On page 2 of your brief you say:
One of the major goals of the entire exercise has been to ensure that children get the benefit of support from the absentee parent. This new legislation will enforce compliance through punishment -- the denial of licences, passports, et cetera.
What do you suggest should replace what you call punishment for the non-fulfilment of support orders for children?
Mr. Mullin: If we are talking about wilful defaulters, individuals who go to Florida, for instance, not wanting any further involvement, I have no argument with enforcement. However, taking into consideration what I said in my presentation, before all the other things are dealt with, in fairness, how can you say, "Pay up, but don't bother us if you are not seeing your children?"
I know that is an emotional appeal, but for parents and grandparents, the issue of children is emotional.
When children are killed in a car accident, the whole community grieves. When the courts ostracize a parent from his or her children, it is no big deal.
The answer to your question is no, but the key is to ensure that every opportunity has been given to the parent to be a parent. That is the change in emphasis. We do not want the adversarial boxing ring. Would it not be better to consider shared parenting for the good of society -- to reduce delinquency, for the psychological good of the parents, to reduce court costs? We should start on that even playing field with an opportunity for the parents to say why that should not be the case.
Enforcement guidelines may be necessary for wilful defaulters.
Senator Bosa: The denial of licences and passports is only triggered as a last resort when the non-custodial parent has not met his or her obligations; is that not so?
Mr. Mullin: It is my understanding that, after three months, the hammer will fall. I understand that, in some situations a parent will fake unemployment. However, these days, people are becoming unemployed all the time. The very nature of unemployment means that, after three months, you could no longer meet your financial obligations and therefore must get a variation.
The minimum cost for a lawyer to start a variation procedure is $2,500. When unemployed, you cannot afford that. You get on the slippery slope. You are paying child support and are out of work. It builds up. That can only be brought to the attention of the court through a variation proceeding which you cannot afford. It is a slippery slope of unfairness.
Senator Lavoie-Roux: At the top of page 3 you say:
There is no provision for direct spending, expenses for the children on the part of the noncustodial parent.
As a result, whether or not you are a caring parent makes no difference. Any attempt at co-parenting is discouraged.
How could that be included in the law? On one hand, this seems to be contradictory. You do not want things to be too specific because we are dealing with often complex human behaviour; I agree with that. But here you seem to deplore the fact that there is no provision for direct spending by the non-custodial parent, and that discourages any attempt to co-parenting.
How could we deal with that in the law?
Mr. Mullin: If the emphasis is changed and it starts from the premise of co-parenting, you would be surprised at the number of fathers who would make more effort in this regard. My daughter used to live in Owen Sound, Ontario, which is 540 kilometres away. The working guidelines say "shared custody", where both spouses share physical custody of a child in a substantial equal way; meaning 50 per cent. The custody may have to be shared 80-20 for logistical reasons. However, the working guidelines should take into account the expense of transporting the children, sometimes great distances, as in my case, to spend time with the other parent.
When my wife and I were together, we were each earning $35,000. A combined income of $70,000 is not a problem. However, once we separated, there were two households to maintain. My wife had access to $43,000, while I was living on $17,000, before expenses. Is that fair?
In response to your question, we do not need specifics, but with a new emphasis on co-parenting, which Canada wants, a judge would take into consideration the amount of time the non-custodial parent would keep the children and make a fairer support order.
Senator Lavoie-Roux: The guideline is deaf and mute on this issue?
Mr. Mullin: Yes, it is. It is a golden apple for whoever takes the children. They get the right to parent as well as the financial support.
Senator Lavoie-Roux: You refer to Professor Finnie from Carleton University. You say that he maintains that Bill C-41 is, in essence, a tax grab from both parents by the government.
Is it a tax grab to ask parents to fulfil their responsibility for their children's support? Where is the tax grab? I do not understand.
Mr. Mullin: As I said, my expertise is not in the financial area. I recommend that you read Professor Finnie's study and perhaps you should talk to him. He says that the government will get more money under Bill C-41 than it would receive without it.
Senator Lavoie-Roux: We must look at this carefully.
The Chair: Senators, Professor Finnie is to appear before this committee on Thursday morning.
Senator Bosa: You used your own case as an example of the unfairness of the system. You said that you were making $35,000, as was your spouse, but that after the separation, you were living on $17,000 and she was living on $43,000 after you contributed to the maintenance of the child.
Mr. Mullin: I earned the same income, but after taxes and child support that is what I had left.
Senator Bosa: Now that the situation is reversed and you are the custodial parent, is it the same?
Mr. Mullin: Yes.
Senator Bosa: So you have $43,000?
Mr. Mullin: Theoretically, it should work that way. However, I will not get into it.
Senator Bosa: I do not want to be personal. You introduced it, therefore I ask the question.
Mr. Mullin: Theoretically, it should work that way, but since February it has not. I am constantly working with the Family Support Plan, which is a total disaster, to try to correct the situation.
Senator Losier-Cool: On the question of the penalty, it is only after $3,000 in arrears, or three months of non-payment, or multiple notices, that there would be a sanction.
There are billions of dollars in non-payment of child support. This is perhaps a way to get at the defaulters -- not ordinary people and certainly not you. We have in our documents an article from The Globe and Mail that gives out statistics on that.
You mentioned gender analysis. The advisory councils across Canada agree with Bill C-41. The researchers, the consultants, have come to the Commons committee and they have agreed. They made a gender analysis of this bill. You were reading from some document. Could we get a copy of it for our records?
Mr. Mullin: Certainly.
The Chair: I have a question about the grid. The figures seem to double for two children as opposed to one, and they almost triple for three. Do you feel that is fair? Does it cost three times as much to raise three children?
Mr. Mullin: I will defer on that. I have not got into the financial aspects of it. I would suggest you talk to Professor Finnie on that.
Senator Jessiman: Are you familiar with sections 15(8) and 17(8) of the present Divorce Act that provide that the court should recognize that spouses have a joint financial obligation to maintain the child?
Mr. Mullin: I have a copy of the act at home. I am familiar inasmuch as I have read it.
Senator Jessiman: They are now deleting that provision. Would I be correct in saying that you would be in support of leaving those sections in the Divorce Act?
Mr. Mullin: I would need to read it. Again, I will defer because I have not done any thinking on that.
Senator Jessiman: The guidelines, as you know, do not take into account the incomes of both parents. You have said that if the other parent helps in the custody, he or she should get some credit. You also think the courts should take into account the income of the non-custodial as well as the custodial parent when you are separated?
Mr. Mullin: Of course.
Senator Jessiman: In your last paragraph on page 2, you say:
The non-custodial parent will now have more than Revenue Canada to fear. On a whim of the ex-spouse, they will have to provide tax returns to the ex-spouse for the three past previous years...
Would not you agree, though, that even if it was on a whim, if the custodial parent thought the non-custodial parent's income situation has changed -- he or she may still be making payments but may have become extremely successful and therefore have a larger income -- the custodial parent should be able to look at what they actually are making? The information would help them decide whether to ask for a variation. There does not seem to be anything wrong with that. Your problem is just with the "whim" aspect?
Mr. Mullin: Yes.
Senator Jessiman: It seems to me it would be fair to see how well they are doing even though they were making the payments under the previous orders.
Mr. Mullin: I referee soccer, and I would raise a yellow card on that one. I would ask you to listen to Professor Finnie because his idea has merit. He is suggesting deductions at source. In other words, it would be an automatic situation where once Revenue Canada knows that a person who is paying support gets a raise in pay, the support payment would be adjusted automatically. No ex-spouse would have to go and phone or get a lawyer.
Senator Jessiman: Would they get a percentage of the total?
Mr. Mullin: Please talk to Professor Finnie. I believe the term is "deductions at source." This helps to prevent, two years or three years down the road, the acrimony starting again: "Did you get a raise?" "No, I did not." "Well, I am going to a lawyer and you will have to give me your files."
I accept the point you are making, if you accept child support. However, please ask Professor Finnie about his idea because I think it is non-intrusive and it would satisfy that requirement.
Senator Jessiman: If it were a percentage of income or gross income.
Mr. Mullin: I know he calls it a deduction at source, and to me it is a trouble-free way of letting people live their lives. I hope you talk to him about that.
The Chair: Thank you for coming.
Mr. Mullin: If I can say one more thing just as a challenge to senators. No one is saying that people should not live up to their support, but please answer the question, using those Florida statutes or some facsimile of them: Would that weaken the bill?
The Chair: Honourable senators, the Liberal Party has a caucus at noon.
Senator Cools: Why are we rushing this? People are coming a long distance. Certainly, they should be allowed to make their presentations.
The Chair: Mr. Hall has been here since early this morning. He has listened to all the witnesses. Welcome, and please proceed.
Mr. Tony Hall, Ph.D.: Thank you for the invitation. I must say it came on very short notice, about four o'clock yesterday afternoon. I have come 2,000 miles across country for this. I heard very interesting presentations this morning. One of the witnesses brought his son and it seemed that the appropriate thing to do would be to give him the opportunity to give his testimony because the baby was teething.
Bill C-41 really deals in tremendous abstractions, and it was interesting to see the reaction of the reality of an actual child coming into the Senate area and crying. Someone pushed the panic button and security guards came up. I bring this up because, when I read Bill C-41, it seems far removed from the kind of realities that we have heard about this morning.
When I read Bill C-41, I find a very peculiar vocabulary. I will first give the three most important terms that I picked out of the bill, and then I will base my presentation on the terms that I did not see.
The word "spouse" is mentioned, as is the phrase "child of the marriage" and the word "debtor". Those are the three concepts which the bill advances. I do not see at any place in the entire bill the word "parent". Nowhere has this law confronted the reality that children are of parents.
For our children who no longer have a marriage from which they come, to describe them in law as "children of the marriage" describes them as of something that no longer exists, that only exists in history. They continue to be children of their parents. Honourable senators, I submit to you that this law not only does not show respect for but does not even acknowledge the concept of parenthood. It does not even use the word.
I suggest that you begin to grapple with the concept of parenthood, the concept that children are of parents. They are of two parents. The basic idea is being lost here -- that it is a fundamental, inherent right of children to have two parents, a mother and a father. There may be reasons to deny children in some very rare instances that fundamental right but this law essentially entrenches an approach which denies the right of children to one of their two parents. It advances a situation where the government imposes its authority, its power, and comes between one of the parents and the children.
I submit to you that this law is fundamentally abhorrent in the way that it attacks the fundamental rights of children to two parents, rights acknowledged by the UN convention to which Canada claims it adheres. Of course, when this comes into your life, it is not an abstraction -- it is real.
Overwhelmingly, children are being denied the right to their fathers. By this approach, my own children, I believe, are being put into a condition of poverty. That need not be the case.
I am not really sure where the origin of the term "non-custodial parent" lies. Was it something said in some court ruling? I suspect it comes from a court ruling. I challenge you to explain to me what a non-custodial parent is. Explain to me how to do this. Explain to me how one goes about being a responsible, non-custodial parent.
Another phrase that I do not see in this legislation is the term "relatives." Children have cousins and grandparents. They are nieces and nephews of their uncles and aunts. This legislation does not begin to deal with that reality.
In Lethbridge, there is a high-powered group of grandparents who might be called -- in the perverse approach that this law advances -- non-custodial grandparents.
In exploring this concept of "non-custodialness", let me introduce another concept or another term into the vocabulary of this issue. Once the state intervenes to designate one of the parents a non-custodial parent, the child's right to the parenthood of that person is extinguished. I should like to advance this concept of the legal extinguishment of a relationship.
This phrase is central to my work in native American studies at the University of Lethbridge. It is a concept which the Royal Commission on Aboriginal Peoples has tried to address in advance. There is a deafening silence from this government on that concept and on the Royal Commission on Aboriginal Peoples.
Let me try to put this concept of extinguishment into an historical context and look at some comparisons to describe a condition or a legal circumstance in terms of a negation.
There used to be and still are people in Canada who are called by the government "non-status Indians". What a thing to call a person, to describe them as something but then a negation of that thing.
The Balfour Declaration in 1917 described the Palestinians as something called the "non-Jewish population." They did not want to legitimize the concept of "Palestinian-ness," which strikes at the pride of the Palestinian people to this day.
The Royal Commission dealt with Indian residential boarding schools. The mother of my kids went through that experience. That was an episode in Canadian history where the government thought it was a better judge of what was in the best interests of children and essentially extinguished the parental relationship of registered Indian men and women -- parents with their children. I submit to you that this extinguishment of parental status is a very serious matter. I suggest it is, ultimately, illegal.
Underneath the reality which we are entrenching and advancing through this legislation is the reality that all parents are men or women. The Charter of Rights and Freedoms guarantees the equal treatment of men and women. The Charter implicitly states that men and women as parents should be treated as equals.
Only men can be fathers; only women can be mothers. I cannot change my status to a mother. I can only be a father. The statistics are 90 per cent or 80 per cent; in such a vast plurality of the cases, the non-custodial parent turns out to be the father. It strikes me that there is a profound, systematic discrimination and a breaking of the supreme law of Canada being advanced here by the Ministry of Justice. It speaks to a carelessness that I have noticed from this ministry and this Minister of Justice with the rule of law.
I refer to a document called "Abuse Is Wrong In Any Language", which is clearly gender discrimination of the first order.
I do not want to get into the personal dimensions of this issue, but, after all, we are coming from the hinterland, and this is an opportunity to draw on actual experiences.
My kids have witnessed my assault. My ex-partner was charged and convicted with assaulting me on several occasions. This summer she assaulted my current wife. I have witnessed my kids going off with their mom to the police station. I tried to get counselling for my kids. I believe that what they have witnessed is tough for them.
I have here a letter from my lawyer, Brad Smith in Thunder Bay, dated November 25, 1996. I have been turned down from my request to the courts to get counselling. Justice Maloney was of the opinion that a general order requiring counselling was unenforcible, and he refused to grant the order.
Mr. Smith wrote:
Another reason Mr. Justice Maloney hesitated to make an Order for counselling was because the request was coming from you as the access parent and access parents generally do not have a legal entitlement to consent or obtain counselling or medical treatment for children.
If my child is sick, does that say I do not have a right to take my own child to the hospital? If my child does not take counselling at this point and later assaults my current wife because he has not dealt with some of these issues, who is accountable? What about this decision specifically denying my wish that my child should have counselling? This extinguishment of parenthood is extremely serious.
I want to throw another term into the vocabulary of this discussion. I want to speak of something called the "family law industry." The family law industry, in my view, must be one of the most lucrative businesses in the country. It is an industry with its own lobbyists and its own representatives to government. It seems that the Ministry of Justice listens very carefully to these lobbyists. I could even, in some way, see Minister Allan Rock as the chief lobbyist for this industry. I suggest that this industry is totally unaccountable. This industry is making the most profound and fundamental decisions about the kind of country we will have in the future. What could be more profoundly essential to the future of the country than the way we are socializing and raising our children?
This industry essentially polices itself. I find it lamentable that the Law Society of Upper Canada or the Canadian Judicial Council seems unable to police itself in any decent way. I do not see any real sign of the principle of peer review in this unaccountable industry.
I charge this industry with exploiting our children. I am the father of my children, and I am here before you to stand up for the rights of my kids. Minister Rock and different associations are saying that they speak for the best interests of my children. As a father, it is very liberating to put aside this term "non-custodial parent" and say that it is my inherent right and indeed my responsibility to defend my children from exploitation by the family law industry. This law advances an approach which essentially makes our children the battleground of an industry based on adversarial approaches, which tends to exploit and emphasize the tension and ill-feeling which exists between parents at the time of divorce. The system actually exploits that feeling.
If there were a situation where the Government of Canada in one moment extinguished the relationship between hundreds of thousands of mothers and their children, what would be the response? I think Canada would be seen instantaneously around the world as committing a great human rights violation. Yet, in a quiet way, Canada and all the agencies of the state and the courts have been extinguishing the relationship between hundreds of thousands of fathers. It is getting on to millions of children.
This situation of family breakup is very sadly and lamentably no longer an aberration. The hard reality is that it is becoming a fairly ubiquitous aspect of life in Canada. I suggest to you that this is a human rights violation of a huge order.
When I think of the family law industry, I think of trying to bring some accountability to that industry and trying to get the Government of Canada not to act like an irresponsible government, but to respect the fundamental principles of responsible government. These concepts go back to the 1840s. They are important to the way our Constitution is supposed to work. However, what we have is a government acting in an irresponsible fashion, essentially taking its responsibilities and putting them over to lawyers and judges in the family law industry.
At one time, slavery was constitutionally supported. We saw boarding schools and the extinguishment of relationships between Indian children and their parents for which the federal government has not accepted the fiduciary responsibility. The Ministry of Justice is hiding and playing games and trying to deny and deny until all the people who have experienced this are dead. I suggest that we should look at what is going on in that context.
Nardina Grande, to my way of thinking, made an extremely important and powerful presentation. It rings so true in relation to what I hear back in Lethbridge. I hear story after story.
She said that she used to think Canada was a good country. I have heard this so many times from the men I see at these meetings and their wives and their grandparents. I think of the man in Lethbridge who says, "I am able to see my children only in the morning when I stand on top of the grain elevator. I can see them get on the bus to go to school. I can also watch them when they play hockey." He can go to the arena and watch his children. I cannot describe to you how fundamentally this has affected my view of this country and this federal government.
I have heard the phrase that we are being brought in to watch the caboose go off. Allan Rock came out west. I tried to see him; our groups tied to see him. It should be very clear that the groups you are seeing this morning have no relationship with the Ministry of Justice and have been insulted by that ministry.
When they were talking this morning about debtors' prison being brought back, I heard a joke. Someone said "Jail bait! Ha, ha! Let's make a play on words here." That was most inappropriate.
Thank you for giving me this opportunity to speak here today. If my emotions are strong, please try to understand that, although I know you make a better case as a scholar and an academic by seeming to be relatively dispassionate, this is an extremely profound issue. It is extremely hard to talk about this. Even for the so-called non-custodial parents, it is difficult to find the ability to speak about this and to face all the gender stereotypes that seem to cloak this issue and make it impossible to act in a rational fashion.
Senator Bosa: I am sorry, Dr. Hall, but I disagree with you fundamentally on your definition of a non-custodial parent. English is my third language, so perhaps I am losing out in the translation.
Senator Cools: That is an interesting exchange, Senator Bosa. You are losing out on the translation; he is losing out on his children.
Senator Bosa: The way I read it, and the way other members with whom I have had conversations have read it, the non-custodial parent is just that -- namely, the parent who is not living with the child. That does not deny the rights to parenthood. It does not deny visitation or all the rights that a parent should have. It is merely a description of who cohabits with a child and who does not.
When you try to relate the Indian Act to the Palestine situation, that is an entirely different concept. I beg to differ with you. That is not the case.
Mr. Hall: It is fairly clear that you have not experienced the human reality of this issue.
For instance, I have six weeks' access in the summer. My only relationship with my children occurs during that six weeks. I try to pick them up but even with three police officers, I cannot. This was my experience last summer. I am then told that, though, I have a court order and it took many thousands of dollars to get that six weeks, the police will not enforce that court order. I must obtain another court order to enforce the original court order. I must pay $200 an hour to get a court order. I am at the other side of the country and I do not have anywhere to stay.
The practical reality is that once you have this stigma of non-custodial parent, it is entirely within the discretion of the so-called custodial parent whether or not the other parent gets to see the children. What you are saying to me is a fantasy which demonstrates that you have no personal experience with this.
You say that I am not entitled to make a comparison between the Indian Act and Palestine. I am a professor in the Department of Indian Affairs. My children are registered Indians; their mother went to boarding school. These are not distractions to me. The mother of my children may well have been abused in boarding school. I am dealing with the legacy that the federal government created in this area. I am dealing with violence and the possibility that my children will experience some kind of extension of that violence represented in the boarding school situation.
Please do not try to trivialize or treat as tangential these comparisons that I am making.
Senator Bosa: I am sorry if you take it that way. I also feel sorry for the situation in which you find yourself. You have personalized this matter. You gave us your own particular situation. I feel sorry that you are denied visitation with your two children and that you must have two court orders.
Mr. Hall: Tens of thousands of other non-custodial parents are in my position. I am not an aberration; I am the rule.
Senator Bosa: But you must admit that this is not the rule or the general situation.
Senator Cools: It is the general situation.
Senator Bosa: There have been many cases --
Mr. Hall: How do you know? What research have you done?
Senator Bosa: From the testimony we have heard here --
Mr. Hall: What research has the Ministry of Justice done?
Senator Bosa: You bring me to another point.
The Chair: Order, please! We cannot hear.
Senator Bosa: It is not my intention to engage in an argument.
Mr. Hall: What research have you done into suicides?
Senator Bosa: We heard about that this morning. It is also unfair that you should bring the person of Minister Rock into the equation as being on the other side of the fence. I know Mr. Rock personally. He is a very caring and sensitive individual. For you to say that is most unfair.
Senator Cools: I would suggest we move from this point.
Senator Bosa: If you have facts to state, please do so, but do not bring personalities into the equation because it is not fair to do so.
The Chair: Do you have a suggestion that we could use which would replace the word "non-custodial"?
Senator Lavoie-Roux: I should like to know how to translate "non-custodial parent" in French. I have never heard of such a beast.
Senator Cools: It is a term that should have been taken out of the act years ago.
Senator Lavoie-Roux: It does not translate well.
The Chair: It is a strange term.
Senator Cools: First, we are proceeding with these hearings at too much speed for my liking. This man has come all the way from Lethbridge. I am overdue in my Senate caucus. I do not understand why we cannot give this matter the time it deserves. I have not been able to ask a single question this morning. What is the rush?
The Chair: I did not notice you requesting the floor.
Senator Cools: Every time I put up my hand this morning and indicated that I wanted to put questions forward, there was no time to put questions to these individuals.
The Chair: I am sorry. I did not realize that you had your hand up this morning.
I should like to hear from Dr. Hall if he has another term that we could use instead of "non-custodial."
Mr. Hall: First, I wish to respond to the comment about Allan Rock.
The question of suicide was brought up. In fact, an actual suicide letter was read this morning. If that individual does commit suicide, is there blood on someone's hands here? That is a strong term. We have heard this word thrown around but we have no data.
My primary recommendation to you would be that the terms "spouse," "child of the marriage" and "debtor" leave out too much of the human substance of what we are dealing with here. If you simply try to include in this act the word "parent," that process of trying to confront that word and the meanings of that word would force this process to deal not in these vague abstracts but with the real human situations which are being allowed to fester and get worse.
Here we are at a Senate hearing. Where are the elected people? If Allan Rock is so sensitive to this matter, why is this kind of testimony being left for the Senate to deal with? Why was it not looked at by the Minister of Justice who has dubious things going on with the Judges Act, putting a veto in the Constitution and changing the Constitution without touching the Constitution.
In my view, this Ministry of Justice is playing fast and loose with the rule of law. I should like the opportunity to give more background and to justify that in an academic way that is as scholarly and dispassionate as possible for me.
Senator Cools: I wish to address this issue of the appropriate amount of time being given to witnesses to discuss these issues. I was due in my own caucus at 11:45. We know the schedule. We have heard from four witnesses this morning. What is the problem?
We are using taxpayer's money to bring people from Lethbridge or wherever. What is the problem? I have many questions. These witnesses have raised interesting and, with all due respect, extremely intricate matters.
Approximately 10 years ago, we thought that terms like "custody" would disappear. We were to move such language out of the legislation because terms like "custody" reflect earlier eras of history when children or even women were chattels.
Very important questions are being raised. I am sorry if I am getting a little impatient, but I, too, am feeling the constraints of time. I was supposed to be in my office to receive some phone calls. If we could, I should like to look at this matter and bring him back. He can come back tomorrow, maybe. Are you available tomorrow?
Mr. Hall: Yes.
Senator Cohen: I wish to support the senator in this matter. It is the government who is pushing us. That is why we are crowding the witnesses under a time line. We must take a good look at the situations being given to us in which to address a bill which is far from perfect.
Senator Bosa: This is nothing to prevent Senator Cools from asking any questions now.
Senator Cools: I have other commitments.
Senator Bosa: I have other commitments, too, but this takes priority.
Senator Cools: Says who? We have allocated times for committee meetings. We have time. Let us use it.
Senator Bosa: But we have a witness who came all the way from Lethbridge.
Senator Cools: Let us put him on our agenda for tomorrow, then.
I am sorry to be so impatient, but all morning long we have been rushing the witnesses along. We sit here. It is our duty to listen to these people.
Senator Bosa: That is not true at all. Every witness had 45 minutes to present their case. That rule has always prevailed in this committee.
Senator Cools: What rule?
Senator Bosa: We always allow 45 minutes for a witness to speak. Every witness here today had 45 minutes.
Senator Cools: Are you the chairman?
Senator Bosa: No, I am not the chairman.
The Chair: Senator Cools, we allowed a little leverage this morning. I tried to be as fair as I could.
Senator Cools: I was not allowed to ask questions at all.
The Chair: Who was the justice that dealt with your case, Dr. Hall?
Mr. Hall: Mr. Justice Maloney.
The Chair: I have had dealings with him before on legal and constitutional affairs matters. We always found that his judgments were fair in Canada. Why was your request unenforceable?
Mr. Hall: Because I am something called an access parent. He is probably going by precedents. He is not in a position to make law; he can only interpret law. His interpretation is that the non-custodial parent has no right to take their children to counselling or to the hospital.
The Chair: On the other hand, in Bill C-41, they are talking about extraordinary expenses for which the non-custodial spouse will be responsible.
Mr. Hall: What is a non-custodial spouse?
The Chair: That is you, sir.
Mr. Hall: There is no such concept.
The Chair: For example, medical expenses are listed. That will be part of the new guidelines.
Would that not mean that you would have the right to look after your children if you felt they needed extra medical attention?
Mr. Hall: These are serious questions. The proposition has been put that some time be created to deal with this matter. I see people getting up and wanting to leave. I could make some changes in Lethbridge and be available tomorrow.
The Chair: If I could get permission in the house today to sit at 3 p.m. during the Senate session, we could hear further from Dr. Hall today.
Is there agreement on that?
Senator Cools: I am supposed to be speaking this afternoon on Bill C-45 which is to get third reading. There are other bills proceeding as well. Some of us want to do a few things.
Senator Bosa: I am supposed to do that, too.
The Chair: We will make it 4 o'clock, then. We will get in touch with you to advise which room is available.
Is it agreed?
Hon. Senators: Agreed.
Senator Lavoie-Roux: Our witness spoke about "access parent." Is there such a thing in the bill as an access parent?
Mr. Hall: "Parent" is not in the bill.
The Chair: Access is not discussed in this bill, but the witnesses are saying that it should be.
The committee recessed.
Upon resuming at 4:00 p.m.
The Chair: Honourable senators, I see a quorum.
I would like to welcome back Dr. Tony Hall.
Mr. Hall: Thank you for extending the process here. I look forward to a kinder, gentler atmosphere where we can take the care that these points deserve.
In looking at Bill C-41, I have been struck by the extent to which it reproduces antiquated language and concepts. I was trying to bring into the discussion a few phrases which might sharpen our minds and bring our thinking and legislative assessment of the wording of this act into closer conformity with the actual experiences of those of us who are living through these problems and issues.
I do believe that the concept of extinguishing the legal relationship between the child and what is called the non-custodial parent is appropriate.
Let us consider another term which runs throughout this act, the term "custody." In my view, we are seeing language from an era when there was a much wider view of "chattel." It is not that long ago that human beings were chattel that could be bought and sold. It is not that long ago that women were first recognized as citizens with the right to vote.
In my view, we still have not got to the point of dealing with the human rights of children. Children are perhaps where women were 100 years ago. This term "custody" really speaks of a property law concept. It is a kind of title of property to a person.
When I read Black's Law Dictionary, the word "custody" includes the detaining of a man's person by virtue of lawful process or authority. The term is very elastic and may mean actual imprisonment or physical detention or the mere power, legal or physical, of imprisoning or of taking actual possession.
We are using a term, "custody," which we often apply to incarceration in the criminal justice system. We are speaking of children and the care of children in the same language we use to speak about the government's care of criminals.
When we begin with this concept of custody, it gets more and more burdensome and onerous as we expand from that into something called non-custodial parent. This really becomes an impossible enigma when you are presented with this by the courts and you are told you are something called a non-custodial parent.
I read a recent letter from a lawyer describing a legal proceeding where I tried to see that my children had the opportunity to have counselling. They had witnessed domestic violence, had seen their mother go through the criminal justice system for assaulting me and my present wife. There were two different charges of assault and two convictions on different occasions.
There are gender stereotypes that tend to permeate and cloak this whole issue and make it difficult for us to see the human realities. Imagine if the assault had been the other way. Would that not be an issue which the courts would take seriously in determining custody? I am deviating somewhat here.
Access parents generally do not have a legal entitlement or consent to obtain counselling or medical treatment for their children. When I see this term "medical treatment," I cannot help imagining a situation where my son is injured and needs to go to hospital. Would I now be breaking the law by taking my child to hospital? Are we burdening this whole issue with such strange language and antiquated terms that we are making it impossible for parents to fulfil their responsibility?
By being here today and dropping everything at a moment's notice and hurtling across the country to take advantage of this opportunity, I believe I am acting as a responsible father should. I have to look beyond the immediate circumstances of my relationship with my children. I have discovered that my hands have been so impossibly tied behind my back that I feel unable to act as a meaningful parent to my children. I do pay $1,000 a month in child support.
My ex-wife does not work, so my children and their mother are living on $12,000 per year which I believe is well below the poverty line. I am a professor. I make $60,000 a year but, by the time I pay tax and child support, I really make $24,000 a year.
My children have lived through domestic violence. There is no need for my children to be living in poverty. When I see these bold announcements about taking child poverty seriously, it hurts me because my children are in that situation. I believe they have been put in that situation by a whole regime of law and jurisprudence which, I now see, has not been examined in a detailed, careful way. Instead, a few ideas have been seized upon -- deadbeat dads; the man as the assaulter, as the irresponsible one, as the one that needs to be subjected to the full force of the state because these fathers by and large must be treated this way.
It does strike me that there is in all of this a sense of criminalizing fatherhood. By the very act of trying to be a father, one is suspected of being a criminal.
When Senator Bosa said to me earlier that, surely, my circumstances are extreme, are an aberration, I can only reply that, in my experience, that is not so. I live in Lethbridge. I go every month to a group called the Equitable Child Maintenance and Access Society. Lethbridge is not a huge place. I have met dozens and dozens of people there, mostly men. Frankly, when I hear their stories, I feel lucky not to be in some of their extreme situations.
Senator Bosa: But this bill does not affect you because you meet your commitments. You are not delinquent in your payments.
Mr. Hall: The reality does affect me because it legitimizes and entrenches and gives modern articulation to the whole principle that there is something called a custodial parent and something called a non-custodial parent. The heart of my presentation is that, in my view, this is a gross violation of the rights of children.
The basic right of children is to have two parents. The phrase "the children of the marriage," to my way of thinking, does a disservice to those children whose parents are no longer married. These children no longer have a marriage from which they come, but they do have two parents. In many cases, they have two loving parents. This is just one dimension of the whole issue of the declining birth rate and negative population growth. Every two people in Canada are producing, on average, 1.7 children.
When I go to these meetings and or to the court and hear the stories, I notice that the joy of having children is lost. It is one of the central experiences of life. It gives you a sense of having continuity with the past and projecting into the future. I believe it is being recognized in society that there is a lack of children. It affects not only mothers and fathers, but grandparents and uncles and cousins and sisters. The designation of one of the parents as a non-custodial parent has a ripple effect which will essentially stigmatize and break the connection and make it virtually impossible for the families of the non-custodial parents, who are overwhelmingly men and fathers, to continue that relationship.
We heard Ms Grande this morning speak from the point of view of a woman who is experiencing this. Her children are experiencing this. There are men and women who are hurting as a result of this.
To say, senator, that this does not really affect anything is wrong because, yes, it does. When you use terms such as "custody" or "child of the marriage," you are taking something from the past and giving it contemporary expression. If you are suggesting to me that we should simply wait because our issues are somehow secondary and that we should just have confidence in the system until it eventually gets around to us, then excuse me, senator, if I am somewhat cynical about that view. I do not have a great sense that after this bill is rushed through, the Ministry of Justice will have the political will to open up this issue.
As I start to face the complexity and the enormous vested interests at stake here, and as I become aware of the extent of the family law industry, I sense that these issues should become the subject of something like a royal commission. This type of hearing does not begin to have the capacity to get at what is going on. I reiterate the view that this is profoundly important to the future of the country.
I have intervened on several occasions in constitutional matters before different committees of the Senate, the House of Commons, and joint committees. I have intervened on aboriginal matters. I have taken the Constitution very seriously. However, as I have delved into this and seen the extent of the injustices, the travesty, the exploitation of our children and the heartless disregard for their rights in the battleground of this adversarial family law industry, it strikes me that this is an issue that is bigger than the Constitution.
It goes to the heart of what we are as a society, that is, how we conceptualize ourselves culturally and socially. It goes to the most basic of fundamental relationships. It goes to our relationships to the provinces, the courts, to federal-provincial relations and distinct societies and aboriginal and treaty rights. This is all founded on these deeper relationships.
I will leave it at that. I should like to make a couple of specific recommendations for amendments, however.
The Chair: What would you suggest we do with this document?
Mr. Hall: After our session this morning, I heard two women from the Ministry of Justice saying that they did not hear specific amendments.
We should leave clauses 15.8 and 17.8 to realize that the financial circumstances of both parents should be taken into account. That is an obvious point in terms of something which is way out of line. That gives the idea that a woman who wins the 6/49 and becomes a millionaire is not affected in the subsequent consideration of her status.
The Chair: Instead of repealing those two sections, you are suggesting that we leave them intact?
Mr. Hall: Yes. That is a specific proposal.
I also propose that we leave the age of majority at 16. The addition of the term "pursuit of reasonable education" is a big issue in the minds of many people. This opens the idea that if a child pursues post-secondary or post-graduate education, child support continues. The child support could conceivably continue for a child into his 30s or 40s.
Senator Bosa: Into his 40s?
Mr. Hall: Graduate school can go on and on.
Senator Cools: Perhaps I could have some input into that particular clause. There are so many clauses of the bill that we have not yet looked at. I am very pleased that Mr. Hall has focused attention on the definition of "child of the marriage." I thank you for that because we have not looked at it at all.
If you go to the original Divorce Act, section 2(a) gives the definition of "child of the marriage". It says:
(a) is under the age of sixteen years, or
(b) is sixteen years of age or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge to obtain the necessities of life;
When we come to page 2 of Bill C-41, at the top of the page it says:
1.(2) Paragraphs (a) and (b) of the definition "child of the marriage"$are replaced by the following$
There are lots of marvellous clauses in the bill that we have not looked at yet. It then says:
(a) is under the age of majority...
We have moved from the provincial standard, which was age 16, to this mysterious "age of majority." In subclause (b) in Bill C-41, the writing is almost the same, but, instead of 16 years of age, it says "age of majority." Into the list of reasons for being unable to withdraw support, reasons such as disability and illness, someone who thinks he or she is very clever has slid a clause which they call "reasonable education." I am trying to show you how someone slid that in, probably thinking that most of us would not see it.
When one moves past a certain age of life, one is moving beyond child support. Ross Finnie tackles this issue. He has appeared before us as a witness and I would refer to footnotes contained in the Caledon Institute of Social Policy paper entitled, Good Idea, Bad Execution.
He discusses the government's child support package. On a more specific point, he says that by the time that spending on post-secondary education becomes relevant, child support is, in general, no longer appropriate, and other arrangements should apply.
It is interesting that this phrase is slid in here because, in 1985-86, there was a lot of discussion at the committee about that. Conventional wisdom has always believed that child support is really for children up to the age of 16. When you go into the older years, there must be new negotiations beyond the issue of child support.
I am grateful to you, Mr. Hall, for bringing the attention of the committee to this point.
Mr. Hall: It seems to me this would raise basic constitutional issues. By all means, parents should try to support their children to go as high as they can in education, but children of normal, married parents -- if I can use that phrase -- have no legal obligation to pay their children's education after age 18 or maybe after age 16. Why is it that, once parents are separated and divorced, different rules should apply to them?
This is a perfect instance where this would eventually have to come before the Supreme Court on an accusation of being discriminatory.
Senator Cools: I wanted to show senators how these things are being handled. Basically, that clause concerns illness. This is for the child with spinal bifida. This is for children who, for serious physical reasons, cannot support themselves. This is not intended for the able-bodied youngster who will go on to post-secondary education; yet they have added that term.
The bill is filled with all sorts of these "slip-ins." I would support returning to the current Divorce Act, which is explicit on the definitions of a "child of the marriage." They are just as valid today as they were when they were put in the act a few years ago.
The Chair: We will have to flag that one with the minister on Thursday and ask the officials what they mean by "reasonable."
Mr. Hall: In this document entitled, "Working Draft on the Federal Child Support Guidelines," you drew attention to the fact that the non-custodial parent is responsible for extraordinary medical or health-related expenses. You were seeing a connection between that phrase on clause 4(b) and the finding by Justice Maloney that a legal entitlement to consent or obtain counselling or medical treatment for children does not adhere to the access of parent or parents.
This is a case where the non-custodial parent has no say in the medical treatment of the child and yet is expected to pay for those expenses. This is the essence all through the act, namely, that the non-custodial parent has no say in making decisions yet is responsible financially.
The Chair: If you read the preamble, section 4(1) refers to those expenses or any portion of those expenses that the court considers appropriate. If it gets out of line, then you are back in court again fighting it.
Mr. Hall: But if you are expected to pay all or some of those expenses, should you not have some say in deciding what the nature of those medical services would be?
The Chair: You would think so.
Senator Cools: This "non-custodial" term bothers me. The term "custody" bothers me a lot. I speak to large numbers of parents who are non-custodial parents and they cannot get proper records, reports for school-aged children, information about different activities or about what is happening with the child in school. They do not have proper entitlements to those kinds of things. In the instances of granting permission to perform surgery or different medical emergencies, they have enormous problems. Perhaps our committee should put these particular questions to the minister or to someone else. In these instances, what are the rights of the other parent?
Mr. Hall: Of course, the other side question of importance involves the rights of the children.
Senator Cools: That is the bottom line. I think we are convinced on the issue of the rights of the children.
Senator Forest: I agree with the premise that children are much better off with both parents. We have had two divorces in our family and when I see how things were worked out there and I hear the horror stories around this table, I think how very lucky we are because custody was not a problem. Nor were there problems with access and child support. In one case, it was a daughter and in the other case it was a son. I want that said.
In working with human rights for many years I have recognized the importance of the language we use. We fought for inclusive language and many kinds of language that state what people can resonate with. You talked about the pejorative meaning of the terms "custody," "custodial" and "non-custodial." Do you have recommendations in that respect?
Mr. Hall: Let me propose that a term such as "domicile parent" might be used to replace the term "custodial parent."
There is a lot of logic in the view of sociologists and others that it is better for children to have a relative degree of domicile continuity in their lives, such as having their own rooms. It seems to me, however, that we go from that point to saying that the parent in that domicile with that child will make all the decisions and will be the single parent, essentially. The other parent becomes a non-parent in a sense, because the relationship is legally extinguished. Could we start to think about terms such as "domicile parent?" The assumption is that, in most cases, after divorce, the ideal situation is co-parents, joint parents.
There may be some few serious situations where it is appropriate for the state to make some kind of judgment on that issue. However, why do this as a matter of course? Why take the approach, in every instance, that one must decide which is the better parent? There is an assumption in most judges' minds that it will be the mother.
Of course, it also strikes me that when, in the workplace, we have done so much work, still more work has yet to be done. The idea is that we must be respectful of one another in the workplace. We must share the benefits of good wages and decision making. However, we have not gone as far in the workplace as we should along those lines, but people have been working at it.
Then you get into this situation and suddenly we are back into the days of "Leave it to Beaver." The assumption is that the mother is the nurturer and the father is the provider. This seems to be the underlying assumption which guides most judges. If you read the bill, of course, you will see that it is not gender-specific. Let us look at the outcome.
The Chair: Are you suggesting that we call the custodial parent the domicile parent?
Mr. Hall: I am suggesting not only that the name be changed but that the concept be changed.
The Chair: If you have a domicile parent looking after your children, what do we call you?
Mr. Hall: "Parent" would be nice. "Father" would be nice.
Senator Forest: But you would not call him "non-domicile". As a Catholic, I am conscious of all the non-Catholics here -- what a terrible way to describe a person.
Senator Cools: That comes from an earlier period of non-Jew, non-Catholics and non-status people. It is a term which is inherently discriminatory, but it means the non-owner of the child.
Mr. Hall: You have lost the title. Your title has been extinguished.
Senator Cools: I am hearing you say you do not particularly have a term to suggest but that the issue of domicile is not necessarily the issue of custody. I am hearing you say that custody and domicile are treated as inseparable.
To reinforce your point, two days ago when we had the department's lawyers before us, we asked them about joint custody. They said that one cannot really define joint custody anyway. It would seem that "custody" is pretty clear for definition purposes when it is one or the other. It would appear that the definition of "joint custody" changes with each individual situation in accordance with the particular agreement for joint custody.
In any case, your point is well taken because some of the dads this morning talked about cases where so-and-so has custody, but the child spends 40 per cent or 50 per cent of the time with the other parent.
I do not exactly know how to go at it, Madam Chairman, but perhaps we can probe more deeply as to where the terms are used. I have been trying to find the term "non-custodial parent" in the bill, but I am not finding it. I only find the term "custody" but not the term "non-custodial." I do find it in the guidelines. You may have a point there.
Mr. Hall: Imagine children dealing with this term "non-custodial." What are they being told when they are receiving the explanation about the judge deciding that Daddy is the non-custodial parent but Mommy is the parent?
What happens when you have been through this situation of violence and you are trying to keep alive in your children's minds the fact that you are not abandoning them, but, quite the contrary, that you are trying to support them? Yet you know the custodial parent has this judicial definition and then is charged to interpret this to the children. What are the children thinking about their fathers who for the most part have been designated by the government as non-custodial?
The Chair: If you were a spouse, according to this bill, we could call you the "former spouse."
Senator Bosa: Do the children have to learn the meaning of the term "non-custodial parent" to find out that the father is not living with them?
Mr. Hall: Also, he cannot come. He can only come at limited times.
Senator Bosa: Are you suggesting that the term "custodial parent" should be changed to "domicile parent?"
Mr. Hall: "Domicile" is defined in the bill as "a person's legal home." Is that not a far more descriptive term? We are not using the language of prisoners.
Senator Bosa: I understand that domicile means that. However, if you say the "domicile parent," it could be also the parent who does not live with the child. That parent is also domiciled someplace. It does not mean that the child or children in question are living with one or the other. You would have to add a footnote to give full meaning to that term.
Senator Cools: No, we do not need a footnote. What we need is for the department to find a way to express in legal terminology the real concept that is being targeted.
Senator Bosa: Senator Cools, in your opinion then, if the department finds a way to describe that, that is not a footnote, is it?
Senator Cools: Senator Bosa, I do not think any of these issues are footnotes. The witness is giving us impressions and suggestions. It is our job to find the proper legislative language --
Senator Bosa: I am not condemning him. I am just elaborating on the questions. I am taking it one step further.
Senator Cools: Many couples have arrived at very satisfactory arrangements. They use the term "custody" to mean "domicile."
The Chair: "Custody" is already in the act.
Senator Cools: "Custody" is in the act; "non-custody" is not. I will look back at the child support guidelines to see if they are there. I just ran through this quickly, and I did not see it.
In the long run, some of this is still to be determined in individual circumstances. All that the law can do is guide. I tried back in 1985 and 1986 to change the presumption of the law to joint-parenting. Some of the newer legislation in various U.S. states is moving totally away from custody and moving towards language like "parenting."
I do not think you have given a lot of thought to the proper articulation, and we are the persons who can do that. The Department of Justice has 1,200 lawyers. We can put this together to find a proper expression of the concept.
Senator Forest: Senator Bosa was making the point simply that both parents could be called domiciled parents because they both have a home.
Mr. Hall: But the question then is about the children's home.
Senator Cools: Perhaps I could put more social policy development questions to the witness. In your presentation you talked about the UN convention on children's rights.
Mr. Hall: Yes.
Senator Cools: I would refer the committee researchers to this document issued by Mark MacGuigan when he was Minister of Justice many years ago. They were defeated in 1984, so this was probably produced in 1983 or the beginning of 1984.
The then Minister of Justice thought that he was paving the way of the future on the questions of divorce. In this document, Mark MacGuigan brought forward the issue of the rights of children. There is an entire section on that. Bill C-41, in some ways, is marching in the opposite direction in terms of disentitling children.
In that time, back in 1983 or 1984, these changes came from Minister MacGuigan, then subsequently the bill was carried on by Minister John Crosbie. It was finally passed in 1986. Bill C-41 is attempting to repeal huge sections of that.
There is an entire section in this document entitled, "Divorce Law in Canada: Proposals for Change." Much of the documentation in here that was being brought forth by Mark MacGuigan was still following on the heels of the notion of making marriage an equal partnership. If you remember, every province in Canada had just gone into family law and the upholding of equal responsibility within the marriage. Many of the principles here were moved directly from the principles of quality of marriage as a partnership. It was basically moving those principles into the issue of divorce and simultaneously upholding the rights of the child.
One element recorded here is that, given the impact of divorce on the interests and welfare of a child, divorce law should ensure that the rights of the children are protected. It does not say divorce guidelines or regulations but law.
Senator Bosa: Excuse me for interrupting. Should we not continue with the questions of the witness. Then perhaps, if you have something to put on the record, we can discuss it amongst ourselves.
Senator Cools: Senator Bosa, I am in the hands of the Chair.
The Chair: We are here to hear Mr. Hall's concerns and his suggestions.
Senator Cools: I was asking him for some commentary on why the element of social policy in this country moved from where Mark MacGuigan was and where the divorce law was then to where Bill C-41 is now. I think that is an important social question. He is a social thinker, and I believe his discipline is social policy.I am getting a little tired of this, you know.
The Chair: Do not leave, senator.
Mr. Hall: Senator Cools, I would like to comment that --
The Chair: Senator Cools, he is referring his answer to you.
Senator Cools: Yes.
Mr. Hall: When you go through this experience, where do you find a hearing or expertise in this area? It is fascinating to me --
Senator Cools: I wanted to put that on the record for him to comment --
Mr. Hall: I see Senator Cools as carrying much of the corporate memory of this Parliament, of the federal authority in this field. She is a pioneer in many of these issues. I certainly was on the edge of my chair to learn as a historian, to get a sense of the history of these issues which have obviously come up in other contexts. Where are we to find out about this?
Senator Cools: This is not even history. This is the current Divorce Act which is before us, and we are being asked to repeal whole sections of it. It is not as historical as you think.
Senator Bosa keeps cutting me off, and that is tiresome. May I continue, chairman?
The Chair: Yes.
Senator Cools: This paper continues with a list:
1) Where feasible, a child should have maximum access to both parents.
2) Both parents should share the responsibility to support their children...
3) The court may grant custody, or access ... particularly the child's interest in having maximum access to both parents.
4) With the court's permission, anyone who has a sincere interest in the child, such as a grandparent, may apply for access to or custody of the child.
5) If the court decides representation is advisable or necessary, a child should be granted independent representation before the court ...
These themes are repeated again and again in that particular section entitled, "The Rights of Children." Those concerns are repeated in different parts of the issue.
As a social thinker, and obviously as a person who does some analysis on social policy and its development, what has happened in the development of social policy in this country that we have moved from the current Divorce Act to Bill C-41? Could you wrap your mind around that? It is an enormous puzzle to me.
Mr. Hall: I believe that we have allowed gender stereotypes. The 1990s have proven to be a time where slogans rather than analysis have carried the day. People like simple explanations. They like to be able to generalize about who the victim is and who the aggressor is.
In my way of thinking, "feminism" is a good word. I would like to call myself a "feminist". I do see very big inequalities in some areas of the workplace, but there has been one territory of feminism, in a very complex world, which has become inordinately authoritative in giving advice to this Minister of Justice, to his department and to judges.
Our little group meets in Lethbridge and the people you saw this morning meet together where they live. there is no federally recognized basis for our organizations. Our organizations have risen up out of the reality of injustice.
As we come to bring our little papers and to drop the fact that we are trying to pay our child support and do our jobs, we are dealing with this situation: When we get here, other organizations which have federal funding, which have staffs, which have spokespeople, which have the ear of the minister, are already here. In my view, there is an inequity there.
There is also the problem of the sociological phenomenon. Somehow men are socialized to think that they should be able to take it and that screaming "uncle" or "pain" implies something not macho or not masculine.
In society, to talk about these issues, to talk about yourself as a battered man, to declare your frustration with the title "non-custodial parent" and to scream, "I am not a non-custodial parent; I am a father," brings us face to face with the whole pervasive gender socialization and stereotyping which affects men as well as women.
It is very interesting to attend meetings where men and grandparents are coming forward with their terrible stories. However, when you take a step into the public domain to actually pick up a placard or to make known these hurts and injustices, then there is a sense that this is personal and perhaps it should not be known in your community and in your neighbourhood.
There is a phenomenon here surrounding the way men and women are socialized and the way that the media and society stereotypes these issues of child support, child care and domestic violence. I believe this act, Bill C-41, is a manifestation of those very unfortunate trends in our society which seem to be making us dumber and less able to cope with our very real problems.
The Chair: As we often say, do not try to fix it if it is all right.
Senator Cools: I have more comments, if Senator Bosa promises not to cut me off again. I am getting quite tired of it.
The bill has some very extraordinary features. You may not be the person to whom to put these questions. Do you know the expression "judicial independence?"
Mr. Hall: Yes.
Senator Cools: And so-called judicial discretion? This bill is doing some extraordinary things. This bill is engaging in what we call "delegated legislation" or "subordinate legislation" which is regulations. This bill is putting enormous powers into the hands of the Governor in Council to make regulations.
These powers are heftier than usual, but what is different about these sets of regulations is that there are these so-called guidelines. They are not regulations at all.
Do you have any thoughts on this at all? These are not regulations. Regulations are rules, procedures, regulatory and administrative matters. These guidelines are instructions to a judge's findings.
As far as I can see, this is the first time that I have encountered the Governor in Council using regulations to instruct judges on what their findings are to be, as opposed to instructing judges on how to go about reaching their findings as is done in the rules of civil procedure or any of the rules of the system.
This is an amazing intrusion by the Governor in Council into judicial independence. They are telling a judge how to decide, and they boast about it; they talk about limiting judicial discretion.
Very few people have picked up on this yet. Have you thought at all about this very novel concept of invading judges' decisions by using regulations?
It is a judicial decision, a judicial finding which they are asking the judge to make here. He must decide this or do that. It is not that he must be "guided" in these findings; these are findings he must make.
Mr. Hall: Senator, my instinct is not to comment at length. If I were to comment at length as a social analyst, the direction of my thought on all this would deal with the issue which I brought up this morning. That deals with a sense of respect for the rule of law and the relationship of the Ministry of Justice to the rule of law.
I share with you, senator, a view that there are some dismaying signals coming from the Ministry of Justice suggesting that something is seriously wrong; that there is a lack of understanding or possibly respect for this very delicate relationship between Parliament and the judiciary.
If I were to take on this issue, my sense would be to look at a range of bills and initiatives. Let us not fool ourselves. This approach is now being extended to the biggest political issue of them all, the constitutional future of Quebec. The kinds of questions and concerns which are being raised here have explosive and very dangerous implications when you take this same kind of approach and apply it to the very delicate situation in Quebec.
I will leave that, senator, but I appreciate your analysis on that score.
Senator Cools: It is certainly something that I intend to put before someone.
The Chair: The person before whom to put it is the minister. We will get his answer.
Other meetings are scheduled. We have given this witness a good portion of time compared to other witnesses, so I would suggest about 10 more minutes.
Senator Cools: I have a few other questions. There is a part of us which feels much repugnance toward anyone who does not want to support their children. There is no doubt about that. I see Senator Jessiman react.
There is something repugnant about people who bring children into the world and do not want to support them. My concern is with the use of federal powers in the instance of navigational licenses and passports. We are going into even bigger and deeper issues in accordance with the rule of law.
Several clauses of the legislation refer to the prerogative. The Minister of Justice exercises powers in two ways, by statute and also by what we call the royal prerogative.
Have you given any thought to the massive use of those kinds of powers and the potential for them to be misused? I have no problems with real, deadbeat fathers, but everyone that I know is speaking of the dangers that will be unleashed when this sort of power is brought against an individual. There is potential for great resultant damage.
Mr. Hall: I was struck by how much of this bill deals with access to information and access to databases. I need only point to the debate unfolding in Ontario right now about private information, about doctors' billings being used in a dispute between the Ontario government and the doctors.
When I read Bill C-41, I see a great deal of it has to do with these promises to open all these extraordinary means to get at all kinds of information. Then we have very flimsy protections about how that information will be used.
As a professor and one who has been involved in aboriginal activism, when I go to these meetings I meet a tremendous cross-section of people, primarily men. They are car salesmen, carpenters, truck drivers and small business people of all kinds. When I read this bill, I think about small business people who cannot pay their child support, let alone the bills in their business.
The reality is that we have a very uncertain economy. This bill contains coercive measures and punishments. I think, for instance, of the small business person who will lose some kind of license and thus not be able to make money and will fall into a growing cycle of indebtedness.
The operative phrases in this document are "spouse", "child of the marriage" and "debtor." Somehow, this spouse is transformed into a non-custodial parent and then a debtor. It conveys a mean-spiritedness.
My sense is that there is something profoundly troubling in the way that the institution of fatherhood has been so undermined and so caricatured. So many fathers have been trying to hang in as fathers. It becomes so painful dealing with all the legal and police matters that, for the best interests of their children, they simply decide that it is better to not try to see their children.
Senator Cools: That is the intended result.
Mr. Hall: The senator makes a pretty powerful statement. However, there is something in all of this which seems to me to almost sanctify the institution of single motherhood.
It is lamentable that so many children in our society have no choice but to grow up in single-parent families, largely single-mother families, but there are many children in our society who have two loving parents who are ready, willing and able to partake in the growth of their child, to contribute and to give the child the support they need from a mother and a father.
There seems to be such disregard for that spiritual aspect of life. Life comes from two forces; a man and a woman. That does not happen only at the moment of conception. That has to do with well-balanced growth and socialization throughout life.
Where is that respect? Where is the appreciation of that equilibrium, that harmony, which nature has vested in us and of which we seem to have become contemptuous?
The Chair: Maybe the people who draft bills should receive a nice lecture on humanity in order that they will do their job while keeping society at the fore.
Senator Forest: I have no doubt that this bill can be improved, but I am not ready to accept that the people who drafted it were biased and prejudiced.
The Chair: I did not mean to say that, Senator Forest.
Senator Forest: I was not referring to what you said. I do not think that was the intention. If it needs to be improved, that is our job.
I feel for you, Professor Hall, in what you have gone through. We have heard from a number of fathers. We have also heard the other side from mothers, and some fathers, who are doing their best to survive under the poverty level. Somewhere there has to be a balance. The child has to come first.
I quite agree that the two parents need to work this out. There is some responsibility on the parents, too. There are some couples who manage to work things out. I am not saying that everyone can, but some have. We have to make it easier for people to do that.
I have heard it said that the guidelines can be changed, and that is very dangerous. I have heard other people saying that this should not be in the regulations. We have to look at that. However, we must not impute the wrong intentions to people.
Senator Cools: What is our time line on this bill? I agree with Senator Forest that we must consider it seriously.
The Chair: The government would like to have the bill passed before Christmas.
Senator Cools: Before this Thursday or next Thursday?
The Chair: The government will decide when Parliament will recess. If the government decides that it wants the bill reported back, the motion will be made.
People do not draft legislation unless there is a need for it. There has been a lot of pressure on the government to get to the bottom of the problem of people not paying their child support. If the government has gone a little too far in this bill, that must be determined, but doubtless the government felt the need to have this bill drafted.
Senator Lavoie-Roux: Madam Chair, someone told us that the government had been working on this legislation for five years and now, all of a sudden, we need to deal with it in two weeks. We should no delay a bill that will improve things unless we have a solid reason; however, I do not think that any children, or parents for that matter, will suffer if this is given further consideration and is adopted in February, for example. The sky will not fall on our heads.
Studying this bill will not obstruct the government in any way. The bill applies to children and families and I think we should report back the best possible bill.
Senator Cools: Absolutely.
Senator Lavoie-Roux: That is my preoccupation.
The Chair: I agree with you, senator.
Thank you very much, Professor Hall. We appreciate your remarks and concerns.
Senator Lavoie-Roux: At the beginning, you drew our attention to the fact that we are talking of children of marriage rather than children of parents and that the simple terms we used to use are disappearing.
Is this not related to evolution, be it good or bad, of our society? Younger generations than ours do not attach importance to the terms "parents," "spouse" and "marriage."
You will remember, Madam Chair, when we were working on the euthanasia study, that people referred to "partner" in English and "conjoint" in French. I said that the terms "husband," "wife" and "spouse" still exist. They finally agreed to change the word "conjoint" to "spouse."
It seems that we are doing away with all those words because they were related to old-fashioned concepts or values. I think that is a factor in this change in vocabulary.
What do you think, Professor Hall?
Mr. Hall: I am arguing for straightforward language. We should retain the term. It is really a matter of inserting the term "parent." "Parent" is a clear, straightforward term. We do not see it in Bill C-41. There may be many issues which will arise once that word comes in. I suspect that those who have designed this bill do not want these issues discussed.
When we talk about the good intention of the drafters, I am prepared to give people the benefit of the doubt and assume the best, however, when I see that this bill lacks the word "parent," I feel as you did about the "conjoin" issue when it should still refer to "spouse." Why can we not use the word "parent?" When we do use the word "parent?" You say it does not work in French.
Senator Lavoie-Roux: It is an odd creation.
Mr. Hall: I am not coming down on the side of new-age language. I want terms such as "mother," "father" and "parent" to be used clearly for what they are, not side-stepped by using weasel words which avoid these issues.
The Chair: Thank you. I would remind the committee we meet again tomorrow at 3:15.
The committee adjourned.