Proceedings of the Standing Senate Committee on
Social Affairs,
Science and Technology
Issue 17 - Evidence - December 12 meeting
OTTAWA, Thursday, December 12, 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 9:00 a.m. to give consideration to the bill.
Senator Mabel M. DeWare (Chair) in the Chair.
[English]
The Chair: Honourable senators, I want to welcome this morning the Honourable Allan Rock, Minister of Justice and Attorney General of Canada. We are dealing with his bill, or the government's bill, Bill C-41, an act to amend the Divorce Act.
We are looking forward to hearing from you, Mr. Minister. Every once in a while during the testimony of the witnesses that have been before this committee,questions would arise that would have to be deferred until the appearance of the minister, so I imagine there will be some questions for you this morning. Do you have an opening statement, sir?
Hon. Allan Rock, P.C., M.P., Minister of Justice and Attorney General of Canada: If I may, I will make a brief statement. I have looked at some of the transcripts of your meetings, and, among other things, I will try to touch upon some of the principal concerns expressed during the hearings.
I want to say that the government regards this legislation as important. It is intended to modernize a system which we do not think is working at present. You have heard from other witnesses -- if you did not, you should have -- that the system for the establishment of child support amounts today in Canada is unpredictable, uneven, uncertain, and too often the payments are unmade. The strategy we have produced, of which Bill C-41 is an integral part, is intended to overcome those flaws and improve the plight of children in this country.
As you know, there are four elements to the strategy: The creation of guidelines; the change in the tax system; the doubling of the WIS, the working income supplement; and, lastly, increased efforts to ensure that payments are made by strengthening enforcement.
Rather than developing the general themes of which you have heard so much, I should like to turn directly to some of the concerns that have been raised at this committee.
First, let me speak to the question of timing, and why we are so interested in having this bill available to be proclaimed on January 1, 1997. The reality is that last March, when we announced this strategy for child support, we also said that it would come into effect on May 1 of 1997, which at that time seemed a long way away. In fact, we were criticized for leaving so much time between the date of the announcement and the date it would become effective. We chose May 1, 1997, because we thought that would leave enough time to go through the legislative process, to allow the provinces to prepare for the administration of the new system, to educate and train judges, lawyers and employees of the various levels of the government, and to allow parties to make orderly changes in their own arrangements when it came to support for their children.
The strategy involves amendments to various statutes, including some under the authority of the Department of Justice and some under the authority of the Department of Finance, and officials from both departments have worked together to make those changes happen simultaneously. For example, the guidelines are net of taxes, since the new tax treatment for child support is expected to come into force the same day as the guidelines. We want all this to happen at the same time.
Our objective has been to get the act adopted by January 1 of 1997 so that everything that is incidental to its implementation can occur. If the bill does not receive Royal Assent before that time, the regulatory process to introduce the child support guidelines will not commence as expected in early February. Once the guidelines are finalized through the regulatory process, federal officials must work with the provinces and territories on communication and implementation strategies and provide professional training for lawyers and judges. While some of this work has already started, it cannot be completed until the act is adopted.
Similarly, the provinces need time to enact their own guidelines. The provinces have the intention of enacting their own guidelines for proceedings within their own jurisdictions and they need our final version before they can do that.
I do not know that there is a great deal of difference between the number of days available to the House committee in relation to this legislation and the time available to this committee. Certainly before the House, a large number of witnesses were heard. They examined the bill in great detail. I have heard it suggested that honourable senators are being rushed or that the government is not being fair. I hope you do not think that. We have made every effort in the house to get this bill through and present it to you for your consideration in a timely fashion, and I hope you have found that the days available, and the hours in those days, have provided you with an opportunity to hear the full range of evidence in relation to these matters.
There is something else I should say about urgency. The package is intended to come into effect on May 1. Family law lawyers across Canada have been told that, and so have parents. Some people have made agreements, already executed, that are based on that date, that provide for a change, for example, when that date occurs. It would be regrettable if delay in the process forced us to put that date back and to cause added uncertainty in the lives of those individuals.
Furthermore, if we were to postpone the implementation of the tax change, we would be putting off the date on which Ottawa begins to collect additional revenue. The tax change results in Ottawa receiving additional revenue. It is our intention, as you know, to devote that revenue toward a doubling of the working income supplement. It is going to go from $500 per family to $1,000 per family in the period to July 1, 1998. That change is very significant. We are talking here about tax-free dollars. Over the next five years, we estimate it will put over $1 billion of additional revenue into the hands of 700,000 lower-income working families in this country, one-third of which are single-parent families.
The Chair: Mr. Minister, when did you say that $1,000 will start?
Mr. Rock: It is at $500 now. It will go to $750 on July 1, 1997, and to $1,000 by July 1, 1998.
I was saying -- and I want Senator Jessiman to hear this -- that this will put over $1 billion of additional revenue into the hands of 700,000 lower-income working families in this country over the next five years, one-third of which are single-parent families. Yesterday's news announced a further disheartening development on the front of child poverty. They say another 110,000 Canadian children have now slipped below the poverty line. We all know that children are poor because their parents are poor, and we know that the children of single-parent families are most vulnerable of all. If we postpone this tax change, we put off the date by which we begin collecting revenue to fund these changes, and it may indeed affect the timetable for the increase of the working income supplement.
Therefore, when you ask why this is urgent, I say we are pursuing a settled course, determined in the spring of this year, intended toward the introduction, in an integrated fashion, of a number of changes that will work together in order to achieve important policy goals, and our obtaining them will be undermined rather quickly unless we can have the bill receive Royal Assent by January 1, 1997.
Let me deal with two other matters that I know are on your minds before I come to the end and welcome your questions. First, I understand that here, as elsewhere, the question has been asked why it is that the guidelines establish amounts that are to be paid in accordance with the paying parent's income.
The Chair: Like the grid, for instance.
Mr. Rock: Yes, and why they do not make any reference to the income of the receiving parent or the custodial parent. I am sure you have heard this before but I understand you are not all persuaded, so I will try my version and see if it is any more effective.
At the moment, the system in family law, if you are acting for a custodial or non-custodial parent, is that you gather all the receipts for clothing and food and heat and light and you take the income tax returns of both parties and you go before the court and, with all the bits of paper, you persuade the judge what it costs for this child every month, including the soccer lessons and the food for school, and then the court looks at the income of both parents and the court does the best it can to comply with section 15(8) of the Divorce Act. That is the process that has led to what I described at the beginning: a system that is uncertain, unpredictable, uneven, often unfair, with amounts that are too often unpaid. That is what we want to change.
The approach that is before you now departs from that. It starts from the proposition that there is no fixed cost of raising a child. It is not going to do us any good to go all through the receipts and the bits of paper for every child in the country. It is costly, time-consuming, and it does not work. We have established that. You heard from Mr. Epstein yesterday, who for 25 years has been acting for parents in divorce and separation. You heard from Carol Curtis the day before that. Instead of the present system, we propose a new approach.
We have spent six years with the provinces and territories and other interested groups in developing this approach. We started in 1990, and finished in March of 1996. In the course of that time, we looked at economic studies about the cost of raising children. The conclusion to which those economists came, based on research, is that there is no fixed cost but that, regardless of the person's income, there is an average proportion of income that parents spend on raising their kids. Whether they make $30,000 or $80,000 or $160,000, there is an average proportion of income that parents typically spend on children. These guidelines apply that proportion to the income of the non-custodial parent.
What about the custodial parent? Why should he or she not have to contribute? That person does contribute, because the standard of living of the child and the parent who has custody are inseparable. It is impossible to look differently at my standard of living and at the standard of living of my children. They are the same, because I live with them.
We have started from the presumption that the custodial parent also spends the same average proportion of his or her income on the children. When you put those two together, you end up with what we are trying to achieve, at least in theory, which is that the child, both after separation and before, should have a standard of living that reflects the income of both parents.
Let me give you a example. Suppose you had two parents making $50,000 a year each, and you had a child living in that household. That child would have a standard of living that reflected parents with a total income of $100,000 before taxes. Suppose they separate. The child stays with one. The grid applies the average proportion to the other and the result should be that the child, both after separation and before, has a standard of living that reflects the income of both parties, because the same average proportion will be required of the non-custodial parent.
Suppose the non-custodial parent gets a raise to $80,000. The grid would have it that that person pays the average proportion of $80,000. That is the way it should be because if those parents were living together and the total income was not $100,000 but $130,000, the child's standard of living would reflect that total.
Suppose the custodial parent's income goes to $80,000, and the non-custodial parent's income remains at $50,000. The child lives with the custodial parent. Their standard of living is inseparable. The child will gain from that parent's income increase because the custodial parent is deemed to spend the average proportion of his or her income on the child. Again, just as before separation, the child enjoys a standard of living that reflects the total income of both parties.
That does not mean that the non-custodial parent's support payments should decrease, just because the custodial parent's income has gone up to $80,000. It should not decrease, because they want that child to have the standard of living reflecting $130,000, and it would not if we decreased the support being paid by the parent making $50,000. That is the theory. To me, it is compelling. It gets us away from the bits of paper, trying to determine what so and so spent for soccer last week for the child or what the dry cleaning cost is for this child. It gets to us the economic average, which is scientifically determined. It proceeds on assumptions that are based in common sense, and it is intended to buffer the child's standard of living from the effects of separation. That is the theory.
The last thing I want to talk about is section 15(8). We are asked: Why would you repeal 15(8)?
The Chair: It is the "motherhood" section.
Mr. Rock: People say it is absolutely the source of all wisdom and fairness in family law. However, section 15(8) is the cornerstone of the present system. That is the source of the present problem. When I began, I described the present system for child support as unpredictable, uneven, often unfair, and too often unpaid. That is the reality at the moment because section 15(8) gives jurisdiction to the court in every particular case to look at the income of each party and poke through the bits of paper and all the receipts and do the best it can in exercise of discretion in determining what is fair in that particular case.
We have decided to go in another direction. We have decided to codify through the grids what is fair in these cases, based on income. The grids provide amounts. To that extent, they take discretion away from the individual judge in the specific case. We want to get away from the costly, time-consuming, argument-based approach of the present system, where you pay the likes of me as a family lawyer to walk into court for two days and argue about what the amount should be. We want to take it out of that forum and put it in the regulations to the Divorce Act.
Section 15(8) says, in effect, that the court shall exercise its discretion in each case. We want to get rid of that and establish the grid. As Mr. Epstein told you, it is virtually unanimous among common law jurisdictions in this world that the guidelines are a better way to go, because they are more uniform and predictable, they are less costly, they take an issue off the table, and make it more likely that the parties will resolve their differences, and they are better for the kids.
How can we have the two coexist: a section in the statute that tells the judge in every case to exercise his or her discretion to do what is fair, and, in the regulations, a grid that establishes guidelines based on income, adjusted only if there is undue hardship or additional expenses. You cannot have them live together, so we have taken out section 15(8) and are proposing the guidelines and the grids by regulation, and we say that those amounts in the grid do reflect the principle in section 15(8): namely, an equitable allocation between parents based on their financial ability. It is reflected in the grid.
We are not losing anything. We are strengthening the very principle for which some are arguing.
I will conclude by saying the following: First, I do not think anyone is going to argue that the present system does not need improvement; second, everywhere in the common law world, governments are turning to guidelines to make the system fairer, simpler, less expensive and more uniform; third, there are witnesses both you and the house committee have heard, who know what they are talking about, who strongly support these proposals. I do not know if you heard from the Canadian Bar Association or from the Advocates Society.
Senator Cools: We have not had time.
Mr. Rock: Madam Chair, those witnesses appeared before the house committee. You heard Mr. Epstein say yesterday, with all his experience, that this strategy will work.
Senator Cools: Let us hear them.
Mr. Rock: When it comes to child support and matters affecting family law, we are going to find that everyone has his own approach, and sometimes people believe very strongly in their own approach. Later today you are going to hear from Mr. Finnie, who has his own theory about how things should be done. He worked with the Department of Justice in the early days of the guidelines. Mr. Finnie has his own theory, and it is a fine theory, but in the final analysis the preponderant view was not in its favour. They took a slightly different direction. You will hear him describe his theory. Everyone has a theory.
However, in the final analysis, the government has to decide, and the government has to act in what it thinks is the best interests of children. I believe this package reflects the broad consensus in the family bar. I have been across the country speaking with family law lawyers. They are not unanimous, senator, but I believe this bill reflects a consensus.
I also do not think the committee should be distracted by the issues of access or custody. We are not talking about access and custody in this bill; we are talking about child support. In my view, it would be a grave error in judgment and bad public policy to mix the two. Just because two adults quarrel about matters between them does not mean you will cut off payments to a child. That child has to eat whether or not the adults are mature, or whether or not they can resolve their differences. I do not think we should mix access and child support. Courts do not and we should not.
That is not to say that access and custody do not need improvement. I am not persuaded that they can be resolved through changes to statute law. Many strategies have to be employed. This bill does not deal with access and custody, it deals with child support, which is where the focus should be.
Built into this bill are measures that will ensure that it is continuously monitored. There will be an advisory committee with broad representation to look at the way it is being implemented, to examine the amounts and to find out whether changes are required. We will make mid-course corrections as we proceed. The great advantage is that the bulk of this is through regulations so those changes can be made in a flexible way, quickly. That, too, is for the benefit of the children.
That is all I want to say in opening. I welcome the committee's questions. I regard this legislation as extremely important. I hope you will be able to deal with it in the time available.
Senator Jessiman: Thank you, Mr. Rock, for coming this morning. This legislation has been before this committee for less than two weeks. It has been studied by yourself and others in the bureaucracy for six years. I have read a lot about it. I understand a little more now compared with when I started. However, there is so much more I want to know.
Is it not true that you have chosen a set of guidelines and that in the world today there are about 20 different sets of guidelines from which you could have selected? Is that your understanding? That is what we were told yesterday by Mr. Epstein.
Mr. Rock: If Mr. Epstein said it, I am sure it is true. The fact is there are all kinds of approaches. As I said earlier, everyone has his own view as to which approach is best.
Senator Jessiman: My problem is that we have been given only the one set. In examining the lawyers from your department, all of which, very interestingly, were female --
Mr. Rock: How is that relevant, senator? I saw that in the transcript.
Senator Jessiman: It was noted by a senator on the other side.
Mr. Rock: How is it relevant?
Senator Jessiman: Only to the extent that 85 per cent of the people who are custodial parents, we are told, are female.
Mr. Rock: How does that relate to the gender of the lawyers working on the brief?
Senator Cools: Don't let him trap you.
Madam Chair, this is improper.
Senator Jessiman: We think you have been influenced by some of the women's groups. That is what we are saying.
Senator Cools: Feminist groups.
Mr. Rock: There is some noise in the background, Madam Chair.
Senator Cools: I will be happy to repeat it for you.
Mr. Rock: Senator, you are suggesting --
Senator Jessiman: I was not suggesting.
Mr. Rock: You are. You are suggesting that because lawyers working on the brief are of a certain gender they will bring a certain approach. Is that what you are saying?
Senator Jessiman: That may well be.
Mr. Rock: That is remarkable. That is just remarkable.
Senator Jessiman: The bureaucrats have had six years and I understand that the bill has been in the House since last June. We have had it for eight days.
Mr. Rock: Just a second now; before we leave that point, Madam Chair, this got to the House committee on October 3 and left the House committee on October 29.
Senator Cools: When did it gets to the Commons?
Mr. Rock: The committee before the House had the opportunity to call a large number of witnesses. I think they worked sometimes six or seven hearing hours a day. They were able to hear the witnesses and satisfy themselves about all these complex matters.
I do not think committees have to repeat the six years of work on the policy. I do not think that is what the Senate committee is here for. I think there is ample opportunity to hear witnesses who can explain these things to you.
Senator Cools: This committee is the master of its own proceedings and its own faith. Thank you very much, minister.
Mr. Rock: I am answering questions, Madam Chair, notwithstanding the noise in the background.
Senator Cools: I am not noise in the background.
The Chair: Senators, we only have the minister until 10:00. We know we have a lot of questions. I would like you to get to the questioning, please.
Senator Jessiman: I have asked a question.
Senator Cools: He is trying to ask questions.
Senator Jessiman: In any case, you do not know that there are other sets of guidelines. You just say that, because Mr. Epstein said there are 20 and you would believe him.
Mr. Rock: There are other systems of child support guidelines.
Senator Jessiman: Did the department look at them?
Mr. Rock: Yes.
Senator Jessiman: How many would the department have looked at?
Mr. Rock: I do not know. Did you ask the lawyers when they were before the committee?
Senator Jessiman: No, I did not.
Mr. Rock: I will ask them for you.
Senator Cools: We are asking you, minister.
Senator Jessiman: Your lawyers did not tell us. They only told us that you have one set of guidelines and Quebec has another set. I want to ask you about Quebec, if you know. Have you made an agreement with Quebec yet?
Mr. Rock: No. It is under discussion.
Senator Jessiman: You expect to make an agreement, do you not?
Mr. Rock: Yes.
Senator Jessiman: Is it also true that in its guidelines Quebec takes into account the income of both parents?
Mr. Rock: Yes, they do. Was this not gone into?
Senator Phillips: Madam Chair, the noise from the witness is distracting.
Mr. Rock: I beg your pardon.
Senator Phillips: I said the noise from the witness is distracting the committee.
Senator Jessiman: This is serious business.
Mr. Rock: Is it?
Senator Jessiman: Yes, and I am very serious.
Mr. Rock: Senator, I think that the Quebec proposal is to have regard to the incomes of both parents, yes.
Senator Jessiman: We have not had a chance, although perhaps the other committee did, to look into what Quebec is doing, because one of the main problems we are finding is that people are complaining about the fact that you are not considering both incomes when determining what the child support should be. I understand your argument now, something which I did not before. Obviously, Quebec thinks it should be taken into account. We would like the opportunity to learn something about that. I do not think that is unreasonable. Do you?
Mr. Rock: I think you should do what you think you have to do. I have told you what our constraints and objectives are. I have also told you why there are practical reasons for us wanting to get this bill adopted by January 1. I hope that you have time to do whatever it is you think you have to do in order to do your job.
Senator Jessiman: You have said that under the present system the awards that are made are unfair and uncertain. That is because there are different judges across the country who are hearing different situations, et cetera. I agree that that is the case today. However, you are saying this new system will correct all that.
Mr. Rock: No system will be perfect, senator. What we are proposing is to move from a system in which lawyers are paid case by case to go to judges one by one for children individually, arguing to come up with specific amounts that vary from family to family, from courtroom to courtroom and from province to province. We will move from that system to one in which everybody in the country will know what the standard amounts are, which are presumed to be paid depending upon income levels. I think that will add far more predictability, uniformity and fairness than exists at present. I believe it will result in an average across-the-board increase in the amounts being paid for children. Coupled with the tax changes and the other measures, that will result in a system that is much fairer for kids overall.
Will it be perfect? No. Indeed, we have built in an advisory committee that will monitor them day by day and month by month. If changes have to be made, we will make them. It is a lot better than what we have at the moment.
Senator Jessiman: There is nothing in this measure to give any parent who has partial custody -- for example, 40 per cent of the time -- any credit for the amount that he spends on the child.
Mr. Rock: Of course there is.
Senator Jessiman: There is?
Mr. Rock: There is the undue hardship provision.
Senator Jessiman: That does not necessarily make an undue hardship. The person may well be financially able to afford that, but it is just costing him that much more.
Mr. Rock: If there are undue --
Senator Jessiman: A hardship is a difference in what is fair.
Mr. Rock: Hang on a second, senator. Undue hardship includes, for example, extraordinary access costs, or costs associated with the exercise of access. In any event, if the court determines that the custody is enjoyed by one parent but the access enjoyed by the other is such that it would result in undue hardship if the amounts in the grid were to be paid, then the court can make that determination.
Senator Jessiman: I know that. I am not suggesting it is a hardship. I am suggesting it is unfair.
Mr. Rock: Why is it unfair, senator?
Senator Jessiman: It is unfair to both sides, or it could be. In one case, we have a family that is separated and the man never sees his children, and in the other the man has his children perhaps forty per cent of the time, but the men contribute the same amount in both cases. The man in one case never sees his children; he never chooses to see his children. Therefore, that family gets "X" dollars. The other man spends four days a week with his children and pays the same kind of money. The family benefits from that. The two families are getting quite different amounts. It is unfair to both. It is unfair to the one that is paying. It is unfair to the other family that is receiving, because they are not receiving the same amount.
Mr. Rock: First, if they have substantially equal custody of the children --
Senator Jessiman: And we were told that was 50 per cent by your people.
Mr. Rock: If it is substantially equal, then the court, as you know, can regard that as joint custody and depart from the guidelines. If in any particular case there is hardship made out, the court can be asked to depart from the guidelines as well.
I do not think we can build a system around the kind of unusual situation you have described. Let us go for the average. Let us go for the typical case. Let us do what we can for kids working from a common sense basis.
Senator Jessiman: You could by just --
Mr. Rock: Let me add one other thing, senator. People talk about access. They should also point out, as was evidenced before the house committee, that one of the problems with access is the undue costs for the custodial parent when the access is not exercised. In many, many cases the non-custodial parent with access rights does not exercise them. The custodial parent has the expense involved in having the child for the period when access would otherwise be exercised by the other spouse.
Senator Jessiman: You are saying, if it is undue hardship, she could apply as well.
Mr. Rock: It works both ways, does it not, senator?
Senator Jessiman: If you would take out the words "in a substantially equal way" from number seven in the guidelines, you would go a long way in correcting this bill.
Mr. Rock: You would also go a long way in stuffing courtrooms with lawyers on behalf of parties arguing about whether two days a week or three days a week or three and a half days a week is substantial or not. We would have lawyers being paid, cases being prolonged and children waiting for payments.
The Chair: Can we move on, Senator Jessiman?
Senator Jessiman: I have one more question.
Will the guidelines remain as they are so that if a person earns one more dollar then the income is increased substantially per month? Or will it be notched?
I will give you an example concerning Manitoba, because that is where I am from. Assume the non-custodial parent earns $145,000; there are three children and he will pay $2,195 per month. If he earns $145,001, he will pay $2,209 a month.
Mr. Rock: Where should we draw the line, senator?
Senator Jessiman: I think you should notch it between the two, just like anyone else does. It should be pro rata. That is a suggestion. It should not be that difficult to do.
The Chair: I will move on. If we have time, we will come back. Senator Bosa, please.
Senator Bosa: Madam Chair, the minister made reference to the guidelines and the flexibility that is built into those guidelines so that changes can be made quickly.
Clause 12 of the bill states:
The Minister of Justice shall undertake a comprehensive review of the provisions and operation of the Federal Child Support Guidelines and the determination of child support under this Act shall cause a report on the review to be laid before each House of Parliament within five years after the coming into force of this section.
We have had witnesses who have said that while it is fine and dandy to phrase a clause like that in the bill, experience dictates that these revisions will not be made as frequently as we would like to think they will be made. Can the minister say whether the guidelines that are being provided here are just a base from which the government will work as it gains experience and that these changes to the guidelines can be effected quickly and periodically, without waiting to the end of the five-year period?
Mr. Rock: Yes, senator. The five-year review is one thing. Apart from the five-year review, we have also provided for an advisory committee that will be monitoring the implementation of these changes continuously. If it is found that there are problems, then changes can be made quickly. That is the advantage of having them by regulation.
I should tell you that, in 1992, guidelines were published for the first time by this federal-provincial-territorial task force. They were roundly criticized. There was national discussion and a lot of commentary. The family law committee went back to work after that, chastened by the experience. They worked again until January of 1995, when they produced another report with different amounts that reflected the comments that had been received. Those were received somewhat more warmly. However, there were still concerns expressed, particularly in the lower income levels. As a result, for income levels below $40,000, the guideline amounts were increased by 15 per cent across the board.
I went across the country last March after we announced these changes. I talked to family law lawyers in seven Canadian cities about these amounts. In addition to that, of course, we have had enormous and continuous consultation with all interested parties about these amounts. Again, there is no unanimity, senator. I think we are at the point now where we have amounts. If Canada is ever to have guidelines for children like other common law jurisdictions, I think we are at the point now where we can proceed with some degree of confidence that we have it about right. It will not be unanimous. You will hear from people sitting in this chair who will be angry. However, that happens.
A month or two, or six after implementation, if there is increasing evidence that there is a problem in a particular income level, or with a certain phrase used in the guidelines, or with a procedure that we thought in theory was good, we can make those changes quickly through changes in regulations.
Senator Bosa: There is one word that causes a great deal of discomfort with many people who have appeared before our committee as witnesses. That word is "custodial." Some witnesses seem to object that one of two parents should be described as the custodial parent and the other parent as the non-custodial parent. They seem to make a connection to the most pejorative sense of the word. For instance, they relate it to someone who is in custody and would be in prison. They made a connection with that by saying that the word "custody" seems to alienate the "non-custodial" parent. Is there a substitute for that word? Could the act be changed at some future date to remove that anomaly, which creates such a discomfort in the people that have come as witnesses to our committee?.
Mr. Rock: I do not have any simple answer to suggest. The legislation before you does not talk about custodial or non-custodial parents; it talks about spouses. It is not a word that is relevant to Bill C-41. It comes up in the Divorce Act, as it comes up in all matters in relation to family law throughout Canada, because it is a traditional word.
I was reading the transcript of your proceedings, and I saw that someone was referring to "secondary parent" instead of the "non-custodial parent." I would consider that offensive too. What parent will admit that he or she is in a secondary position? That is very offensive.
We are dealing here with people who are in a situation which is often highly emotionally charged. We are talking about some of the strongest emotions humans can muster, when it comes to their children and their attitudes toward their children. The use of language is a very strong source of provocation and offence, because people are very tender on these subjects.
I do not have anything to suggest to overcome the problem you have described. Maybe we could spend another few years consulting to see if there is a consensus for other words. For the moment, we are better to focus on what we are doing for kids -- not the parent so much, but the kids. We are trying to improve the system and get money into the hands of people for the care of children.
Senator Phillips: Mr. Minister, I am afraid you were rather unsuccessful in convincing me with your explanation of the division of family income. I find you to be in error on your assumption that, if the custodial parent's salary increases, that child will benefit. I do not accept that, because there will be many custodial parents on the beaches in Mexico, and the children get no benefit from that.
Mr. Rock: Is there research to support that? Where does that come from?
Senator Phillips: It comes from the same place as your argument.
Mr. Rock: Mine was based on six years of economic study, senator.
Senator Cools: Senator Phillips' was based on 30 years of experience.
Senator Phillips: If you do not mind, I listened to you, so I would appreciate being allowed to ask a question.
I am concerned here with two things. You also put into this bill that the non-custodial parent will be responsible for so-called reasonable education, which is being interpreted by many as being university education, after the age of majority. Is there any law which says parents living together must meet the same standard that the non-custodial parent is required to meet under this section?
Mr. Rock: I do not understand the question, but let me say this in relation to university education: Statistics demonstrate that children of separated parents are less likely to go to university. Children living with one parent are less likely to go to university than other children. I do not think that is right. I would like to work towards a country in which children have an equal opportunity to advance themselves regardless of whether they live with one parent or two.
This guideline, in its ensemble, is intended to say to the court that the grid amounts are not compulsory after the child reaches majority. They are advisory only. It also says that education costs can be taken into account. We are trying to set up a system in which there is an encouragement to continue support at levels that will allow a child of a single parent to go to university and give that child an equal opportunity with others. That is what we are trying to achieve.
The Chair: I think both spouses' salaries come into play.
Mr. Rock: Case law already gives them that right. We are codifying the case law which is already there in the courts.
Senator Phillips: You have made several references to your witness yesterday, Mr. Epstein. I noticed that Mr. Epstein avoided the section dealing with undue hardships. He emphasized that this act could result in fewer court appearances, and I would be happy with that. However, undue hardship will require a court application and will require the non-custodial parent to get legal assistance. That will be an added burden and expense for them. As well, I am willing to make a bet with you that, this time next year, it will take six months for an applicant to get an undue hardship claim before the courts.
Mr. Rock: Senator, I cannot imagine Mr. Epstein avoiding a subject like undue hardship. He certainly has spoken about it in the past. It may be that his written brief speaks to it. If he had been asked about it, I am sure he would have responded.
As to whether it will involve the court, of course it will, because the structure of these guidelines is that the basic grid amounts apply, and they are presumed to apply, and the court will only award additional amounts if the court can be persuaded that there is undue hardship.
We hope that that will not be the great majority of cases. We also believe it is important, as a matter of fairness in any system of guidelines, to provide that kind of flexibility. The difficult challenge throughout has been to balance, on the one hand, our desire to achieve fixed, predictable, standard amounts and, on the other, to provide enough flexibility that we can deal with the unusual circumstances in any particular case where justice requires that a judge intervene. We think we struck that balance in this set of guidelines, and we think the wording we have used to establish the undue hardship category does that.
I practised family law for many years, senator, acting for both husbands and wives, in custody cases, support cases, and even alimony back in the days when we had alimony. I can tell you that there will be many fewer cases in court than there are at the moment if this system is adopted. That is what Mr. Epstein said yesterday, that is what his brief says, and he ought to know.
Senator Forest: Mr. Minister, some concern has been expressed that for a person to be in persistent arrears, the amount is only $3,000 and the time is three months in arrears. With the present levels of support being charged, the concern is that by the time a person is able to get into court to give a reason, the arrears are significant. It is strictly a question of the numbers. On what basis was that determination made? Some support can be as high as $1,500 a month. If they miss two payments, they would then be, as I understand it, in persistent arrears.
Mr. Rock: Senator, our focus throughout the preparation of these guidelines has been on the children, and it was the best we could do with all the consultation carried out. The average income in this country is not all that high, relatively speaking, if you look at this chart. It is certainly not in the upper ranges. The average income is around $55,000. When it gets to $3,000 in arrears, we were worried about the effect on the child, so we decided that measures should be provided that will be effective and will provide for the payment of that money.
It is true that it may take some time to get all those measures geared up. The province informs the federal government, and the federal government goes through its own process. However, we are focusing on the child. We say that if the child is $3,000 short of child support, then that, for the average family, is a significant amount. Do not forget that while $55,000 is the national average, the average for a single-parent family, which many of these support-receiving families are, is lower than that, and $3,000 in that context is a heck of a lot of money.
[Translation]
Senator Lavoie-Roux: Thank you for coming, Mr. Minister. I would like to speak for myself, but I think that my colleagues share my impression when I say that people are in favour of an updated legislation that will provide better protection for children and make people more responsible. We know that some problems become virtually insurmountable, because people do not take on their responsibilities consistently. The provision originally contained in the Act, which stipulated that both parties should be held financially accountable, has been removed. The burden is now placed on the non-custodial parent, as it is assumed that this parent takes on financial responsibilities directly or indirectly. I am not sure that it would be wise to assume that the custodial parent always accepts his or her share of the responsibility, and that the burden should be borne by the non-custodial parent. Do you think that is wise, because the basis on which support payments are divided up has been changed?
[English]
Mr. Rock: I do not know what people think custodial parents do with their money. Some suggest they go and sit on beaches in warm countries. I do not think that is the average Canadian experience.
Senator Cools: It is not appropriate for a witness to speak this way about a member.
Mr. Rock: Custodial parents are doing the best they can to look after their children with the money that is available. I do not think it is a leap of logic or a very difficult assumption that people who have children in their custody are spending the Canadian average proportion of their income on those children. I do not believe that there is evidence or research to show that people who have the custody of their children are squirreling away their money for some other purpose and not spending it on themselves and their kids to achieve a standard of living which reflects their income level.
Senator, if you are prepared to assume, and I think it is a safe assumption, that, if the custodial parent makes an income, he or she devotes the average proportion to their child or children; if we then turn to the non-custodial parent and require the same of him or her, then we are working towards what the child is entitled to expect, which is the same standard of living.
At the moment, I say this is done obliquely by the courts. Although they do not require the custodial parent to pay, the cases do refer to the fact that the custodial parent will be making a contribution toward the upkeep and the support of the child and, indeed, is required to do so. The reality is that while they are not ordered to pay at the moment, and we are not suggesting they be ordered to pay either, courts recognize that custodial parents do pay a proportion of their income.
I think it is not a fair view of this legislation to say that we are focusing only on the non-custodial parent. We are focusing on both. The reality is that we are using the income of the non-custodial parent as the touch-stone for the guideline amounts because it is simpler and easier, but we are dealing with a system in which both, of necessity, are paying toward the benefit of the child.
As well, amounts in the guidelines reflect the presumption that the custodial parent does spend. They would be higher if we were to include them.
The Chair: Honourable senators, some of you were late arriving this morning. The minister was here on time. He made a very important statement when he first started about the custodial/non-custodial balance of the money. If you were not here to hear that part of his statement, I think it would be worth your while to read it.
[Translation]
Senator Lavoie-Roux: You said that it was urgent that this bill be adopted and come into force by January. Through a tax, the government hopes to recover money that will be reallocated -- whether it be $500 per family or $1,000 per family -- and I apologize for my ignorance, but I cannot see how you are going to make money this way.
[English]
Mr. Rock: At the moment, under the tax system, the person who pays support is entitled to deduct the amounts paid from his or her income. The Revenue department receives less tax than it would have if the deduction was not permitted. If I make $100,000 and pay $30,000 a year in child support, I pay tax on $70,000 instead of 100.
Under the new system which we hope will come into effect on May 1 of next year, I will no longer be able to deduct that amount, so I will pay taxes on the $100,000, and Ottawa will receive more income. It is that revenue that we will devote toward the doubling of the working income.
The reason we are doing that, by the way, although we are not here to debate tax matters, but just so it is clear --
Senator Cools: We are here to debate whatever we want to debate.
Mr. Rock: I am sorry. I am not here to debate the tax matters. The tax matters are not in the bill is what I mean to say. I do not mean any disrespect to the committee.
That deduction for support-paying parents was put into the act in 1942, when very different social circumstances prevailed. It operates only to the benefit of those who have a payer in a high income level and a payee in a low income level. It operates at a demonstrable disadvantage to about 37 per cent of custodial parents right now in Canada. In any event, it only works when the court takes the trouble to go through the elaborate calculation of the gross-up, which often does not happen, so the custodial parent ends up eating into the child support to pay taxes, which of course is not in the interests of the child. We are proposing to change the tax system.
We are devoting every nickel of that revenue, and then some, to doubling the working income supplement. The government is not keeping any of it, senator. We are putting it into the hands of low income families, over $1 billion -- this is the part I wanted Senator Jessiman to hear earlier -- into the hands of 700,000 lower-income families in the work force.
[Translation]
Senator Lavoie-Roux: Why have you not introduced the issue of family mediation somewhere? In Quebec, it is being seriously discussed, as the entire support payment plan is being reviewed. It seems to me that in trying to make the best possible arrangements to support the children, regardless of which parent supports them, I think that it would be even better to try to prevent parents from separating if possible. Experience has shown that in many cases, recourse to family mediation services has prevented families from breaking down. I am sure that that is one of your concerns, but it is not mentioned in the bill.
Mr. Rock: That is true, and I talked to the Quebec attorney general about his intention to add mandatory mediation to the Quebec act, but it is true that we did not refer to this approach in our bill.
[English]
The reality is that, in divorce proceedings, there is already an obligation on the legal advisor to inform the parents of mediation services. If you look, for example, at section 9 of the Divorce Act, it is the duty of every barrister, solicitor, lawyer or advocate who undertakes to act on behalf of a spouse in a divorce proceeding to discuss reconciliation, to inform them of counselling and guidance facilities and, in subsection (2), to discuss with the spouse the advisability of negotiating the matters that could be the subject of a support or custody order, to inform them of mediation facilities known to them which might be available to assist them in negotiating.
Certainly there is an obligation on lawyers to bring that to the attention of clients. There is a real concern about mediation. Some say that it perpetuates imbalances in the relationships between the parents and it cuts off an avenue to resolve them more fairly. Finally, my answer is as suggested by Madam Brazeau.
[Translation]
She always has the best answers. She has suggested that responsibility for administering justice is a provincial jurisdiction, and that the provinces have the authority, at present, to change the law in order to add the point that you have proposed.
Senator Lavoie-Roux: Okay. Thank you, Mr. Minister.
[English]
The Chair: Mr. Minister, it is 10 o'clock. We have one more questioner. Can you give us five minutes?
Mr. Rock: Of course.
The Chair: Senator Cools, the minister has to catch a plane.
Senator Cools: Thank you, Chairman.
Thank you, minister. Welcome, as usual.
The concerns and the questions that I have cannot be satisfied in five minutes. It would be my expectation that when a minister comes before a Senate committee, he would allocate the proper time that the committee needs. I appreciate that the minister has to catch a plane. I had many planes to catch last Monday which I rescheduled to be here for a meeting that was then cancelled.
The Chair: Senator Cools, we allocated the minister's time.
Senator Cools: Then perhaps the minister could come back.
The Chair: Perhaps we could hear from his officials.
Senator Cools: No, I wish to hear from him. The officials frequently seem not to have the experience they should have on the issues.
The Chair: Senator Cools, are you going to ask any questions?
Senator Bosa: Let Senator Cools start the questions and if she cannot finish, we can consider the situation at that time. Maybe she could take advantage of the fact that the minister is here now and is prepared to answer some questions.
The Chair: Senator Cools, will you put any questions to the minister?
Senator Cools: Yes, I have many questions to put to the minister. The first question I would like to ask the minister is a political one.
In his view of life, what is the role of the Senate in reviewing legislation, particularly his legislation?
The Chair: The minister is not here to answer that question. He is here to answer questions about Bill C-41.
Senator Cools: This concerns Bill C-41.
Mr. Rock: It is odd that the senator would complain that I am not available for sufficient time to respond to questions about the bill and then ask a question that is not related to Bill C-41. I can go on, if she wants, and talk about political science, but I would have thought it better to discuss the needs of children in Canada.
The role of the Senate is well established. It is a body of sober, second thought. It is there to ensure that matters are constitutional. I do not think that the Senate ever suggests that it is there to supplant the policy-making function of the elected House of Commons, but certainly the Senate has an important and enduring role to ensure that the constitutional validity of legislation is put forward and, as I say, to put forward that sober, second thought of which political authors have spoken so often in the past.
Senator Cools: What does the minister think should be a reasonable amount of time for the Senate committee to consider this bill?
Mr. Rock: The senator has always made the point so well that committees are the masters of their own procedure. I would not presume to suggest the time the Senate committee might need.
All I can do, in my humble capacity as a person from the other place, Madam Chair, is to inform the honourable senators of the policy objectives we are trying to achieve.
In the case of this bill, I have outlined the reasons why we would like to have the bill adopted by January 1, so we can proceed with an orderly implementation.
All I can do is tell you our objectives and hope it works out.
Senator Cools: Very well. On the issue of policy objective, you seem to be quite reliant on the testimony of Mr. Philip Epstein. He is a very capable man whom I have known for a long time. Mr. Epstein told us in clear terms yesterday that he was not wedded to this set of guidelines. Perhaps, Mr. Minister, you can tell us why you are.
Mr. Rock: I am delighted to know that you are aware of Mr. Epstein's experience and ability. He has practised family law for some 25 years and is known throughout the country as a leader of the matrimonial bar. His support for this proposal is very significant.
Senator Cools: He did not support the guidelines.
Mr. Rock: It is a signal that those who know what they are talking about, who work with these cases in field, recognize the value of these efforts. As to the guidelines --
Senator Cools: Mr. Epstein did not support the guidelines.
Mr. Rock: -- I told the Senate that in 1992, the amounts --
Senator Cools: Excuse me, I am speaking to my chairman, if you do not mind.
Excuse me, there is a mistake. Yesterday, Mr. Epstein did not support the changing of the tax system; neither did he support these guidelines.
The Chair: He did not withdraw support for them; he said "any guidelines," as long as there is a set of guidelines.
Senator Cools: He supported the idea of guidelines. Do not hurry me up any more, Madam Chair, please. I am clarifying that the minister here was making a mistake in interpreting Mr. Epstein's testimony. Mr. Epstein said clearly that his support was not especially for these guidelines, that he supported the concept of guidelines, which is quite different.
Mr. Rock: I will not quibble about what Mr. Epstein said, but I do know that he supports Bill C-41 and wants to see it passed. If you lined up 30 million Canadians, you would get 30 million points of view about what the amounts should be and how they should be calculated.
Senator Cools: But my question --
Mr. Rock: I will answer the senator's question, if I may. She asked me why I was wedded to these guidelines. I have already said that the amounts that you see before you emanated from a six-year process. That does not mean to say that the Senate committee or the House committee needs to spend six years looking at it. I am saying that, in order to describe the process and consultation which took place and the breadth of the work.
In 1992, certain figures were published and they were criticized.
Senator Cools: I want to know why --
Mr. Rock: In 1995, different figures were published and they were criticized.
Senator Cools: I want to know why you support these guidelines.
Mr. Rock: We made adjustments. In answer to the senator's question, if we are to have guidelines, if we are to move our civilization a step forward and keep up with other civilized jurisdictions which have dealt with these same problems, if we are to have guidelines, then this is surely the place to start. We have had a long and arduous process of consultation.
We will never satisfy everyone. You will hear from witnesses, even today, who will be critical. At least we have consensus on the general direction. We can monitor these amounts month by month. If we must change them by regulation to overcome unfairness, we can do that by regulation. Let us at least get started in this good direction.
Senator Cools: Perhaps the minister misunderstood my question. I am interested in knowing the policy conceptual framework for these guidelines. I shall put my question again.
Why is this particular model of guidelines, why is this particular set of guidelines before us? This is sort of like the GST all over again. My question is why these guidelines? They are many.
The Chair: It took six years to develop them, and they figure --
Senator Cools: I want to know why these ones. We are being asked to support these. I would like to know why these. I have other questions.
Mr. Rock: It is the first time I have heard these compared to the GST. I do not see the connection.
Senator Cools: Your testimony is a lot like Michael Wilson's at the time.
Mr. Rock: I can say, Madam Chair, that, during the six years, approaches were examined from Australia, Europe, the United States of America, and the United Kingdom. All of those approaches were considered. Forty-seven of the fifty states have guidelines. Sometimes their models vary one to the other.
We tried to select the best of the experience elsewhere. We tried to combine predictability with flexibility. We have added features such as undue hardship and extraordinary expenses so that there will be recourse in those cases where there are exceptional circumstances which must be addressed.
In short, in responding to Senator Cools' question, Madam Chair, we have chosen these guidelines because we believe they allow us to achieve our policy objectives.
Senator Cools: What are those?
Mr. Rock: Our policy objectives are to provide for the interests of children. That is our first and foremost fundamental policy objective -- not for the mother or the father, not for men or women, but for children.
When it is suggested that it is significant that we have women counsel at this table from the Department of Justice, that is quite profoundly beside the point. If the real interests of the government were to be reflected in who is at the table, you would see children in these chairs, Madam Chair.
Senator Cools: Let us bring them.
Mr. Rock: You would see children. That is who this is all about. Let me say that we believe this set of guidelines allows us to achieve our objectives for children while, at the same time, drawing upon the best of the experience in other jurisdictions. That is why we chose them.
The Chair: Thank you, Mr. Minister.
Senator Cools: I am not finished, Madam Chair.
The Chair: I am sorry but the minister is.
Senator Cools: I have one last question. These common-law jurisdictions and all these 40 or 50 states that you say use some form or other of guidelines -- I am thinking particularly of England and certain other countries -- do all of those countries which utilize guidelines utilize this methodology of instruments by regulations?
Mr. Rock: Some of them do; some of them do not. As I mentioned, we have to learn from experience elsewhere but do what is best for our circumstances. I can tell you that, where a statutory change is required, those jurisdictions have found that to be difficult in terms of children because the changes cannot be achieved quickly. For example, Parliament does not sit during the summer time. If there is need for change over the months between June and September, that cannot be done without going through the full legislative process.
Senator Cools: That is not true. We sit during summer all the time.
Mr. Rock: The regulations reflect policy. They can be changed by subordinate legislation and they provide for a certain nimbleness to meet the needs of children that would not otherwise be available.
Senator Cools: I understand why you are using the regulations. My question to you is, which of those jurisdictions that employ the same methodology use statutory instruments?
The Chair: Mr. Minister, you are free to go.
Mr. Rock: I do not want to be rude. I want to say to Senator Cools that --
Senator Cools: Well, you are.
Mr. Rock: -- some do and some do not use regulations. We are proposing to use them.
Senator Cools: I want to know which ones do. You should know. You are the minister. You should know this bill. You should know it by now.
Mr. Rock: I am sure we can get that information for the senator.
The Chair: Thank you for your time, Mr. Minister.
I would like to let the committee know that we invited the minister and we set the time schedule and he agreed to stay for the hour.
Senator Cools: Thank you. I would like to say: Bring him back again. He can come back. We have questions.
The Chair: Our next witness on this bill is Ross Finnie.
The senators have your brief, Mr. Finnie. Please proceed.
Mr. Ross Finnie, School of Public Administration, Carleton University: This brief is my constructive criticism of these guidelines. I might say that I have been involved with guidelines for quite some time as well. Let me stake out that territory.
The Chair: Then maybe you can answer some of our questions.
Mr. Finnie: I hope I can. I came to guidelines because I did my doctoral work in Wisconsin which is the birthplace, basically, of child support guidelines in North America. One of the professors with whom I had the pleasure to be associated was Irwin Garfinkle who is, in some sense, the godfather of guidelines. Well before I became involved with them professionally in a direct manner, the issue of guidelines was in the air where I was studying. I chatted many times with Professor Garfinkle as the guidelines were being developed and being brought into place in Wisconsin.
When I came back to Canada, I took a job at Université Laval in the faculty of economic science. My research took me to looking at the changes in income and well-being that occurred at divorce, and, in particular, the differences between men and women and the consequences for children.
In my research, I was able to track, for the first time, what happened through divorce, what happened before compared to directly afterwards for fixed individuals. My results confirmed what we believed from other data, but in a much more precise, analytical fashion.
I was able to identify that there was a large difference in the standard of living which occurred at divorce, on average. That is very important here because, with guidelines, we are talking about averages, a regulatory tool that works with averages. On average, for men, their standard of living maintained itself or declined ever so slightly. For women, it declined precipitously and ever the more so with the greater number of children.
I then became involved with the development of the guidelines of which Minister Rock was speaking earlier. I was asked by the Department of Justice to become involved in this research. At the time, I did not have the specific experience with guidelines, but, as I said, it had been in the air in Wisconsin and the issue interested me very much.
I then devoted a good part of the next few years of my professional life to thinking about guidelines and participating in the guidelines here. In passing, I have written a book on the subject, which is published by the institute on public policy in Montreal called Child Support: The Guideline Options. I have articles in many academic publications. I had a long paper on divorce in the C.D. Howe series on social policy last year.
I do not want to be immodest, but following all this talk about all these experts with all these experiences, I do not think there are too many people in this country who know much more about guidelines than I do across the whole spectrum -- what is involved with the development, how you estimate the cost of children and what is spent on a child, the ethical values, and the principles of sharing that can be brought to bear.
I have spent a lot of time thinking about those things. I have expressed it as well as I can in my various writings. I lay that out as at least some certain credibility for what I have to say.
I was no longer involved with the Department of Justice upon the release of provincial-federal-territorial committee recommendations. I had participated up to that point as co-author with individuals, including one who is currently in this room, from the Department of Justice on a background paper that was supposed to be the basis of these guidelines. In fact that paper is the basis of these guidelines, but when I saw what had been released, my initial reaction, in an interview with CBC, was to be critical.
I can say that since that time I have not been involved with further development of the guidelines because -- well , since that point, I have not been formally involved with the guidelines. However, I have continued to write various articles presenting my opinions.
The guidelines that are before us today are pretty much those that were presented a couple of years ago with the federal-provincial-territorial committee. A few new twists have been added, some improvements, some deterioration, I would say. The main criticisms I had at that time still prevail.
Everything is here in my document. It is not a particularly long document -- 15 pages of text. It is meant to be accessible, so I would encourage you at any point to feel free to shop through the document. If you would like to speak to me at any time, I am located here in Ottawa, and I would be pleased to do so.
Perhaps I could touch on a couple of the major criticisms. The bottom line is that I am in favour of guidelines. Most people are. You start to talk about children. I do not want to be disrespectful, but if I had counted how many times Mr. Rock had mentioned the word "children," I would have run out of fingers and toes very quickly.
A guideline is of course directed towards maintaining the well-being of children. There is to question about that. However, you want to do that in a manner fair to both parents because there are two parents involved, as well as the children. Wrapping oneself in the flag of the well-being of children is doing a disservice to the political process of looking for a fair guideline and, in turn, a guideline that will work effectively in practice, part of which depends on its fairness.
My next point is that 47 out of 50 U.S. states have adopted guidelines. However, guidelines are used in a great minority of cases. Why? Because the guidelines have not been well received. The judges have the option.
You can launch a great political movement to adopt guidelines. In this country, what we have may be enforced and put into place, but just to say they have been adopted in all of these other jurisdictions is misleading. This brings me back to the point that guidelines, yes, are good, but not any guideline is necessarily a good guideline.
With respect to these particular guidelines, I think the basic formula is good. The basic principle of basing awards only on a non-custodial parent's income is good. My own guidelines are similar in structure.
Why is that good? The guidelines I recommend relate to fixed percentages of income of the non-custodial parent, but those percentages reflect what the parent would pay were the parent still living with the child. The principle in that sense is very clear. Most people find that reasonably fair. It is not patently unfair. That is to say, what the parent was spending on the child within the marriage is maintained after the marriage, which is fair. The basic guideline is fine. I have no problems with that.
What bothers me with this guideline, though, are the things added on or taken away that either make it overly rigid or even impose or preclude the adjustments that ought to be there. There are errors both of commission and omission.
[Translation]
Mr. Finnie: I do speak French, but I will make my comments in English. If there are any questions, I will answer in French.
Senator Lavoie-Roux: That would be appreciated.
Mr. Finnie: I had the opportunity to learn French at Laval university, but that is another story.
[English]
To continue with my focus on the guidelines, there are not many criticisms, but they are very important. I think what would happen is that the minister himself would, in six months or a year's time, regret not having made the changes I am proposing here today. I think they will cut into the success of the guidelines. Although these things are not well understood now, once they come into practice and people live these guidelines, it will create many problems. We could even face a situation that happened in England where we had mass revolt against the guidelines because they were perceived as being patently unfair.
The first problem is that there is no adjustment for direct spending on the child by the non-custodial parent. Here are two scenarios. One parent never sees his or her child, and the whole child support is a written cheque, hopefully, once a month. Let us say another person has a child a third of the time, rents an apartment with extra space and has the toys there and everything in place. There are the day-to-day expenses of caring for that child. Those two individuals will pay the same child support under this bill. That strikes most people as unfair in a number of ways. It is unfair for non-custodial parents because one is paying out a substantial sum of money directly and yet is also paying the child support. It is unfair from the side of the non-custodial parent. It is also unfair on the part of custodial parent because you have one woman who has a child all of the time, and she receives the same child support as someone else who has their child in the spouse's care a third of the time. Finally, it is unfair for the children because this unfairness will work through different situations in different ways. That is the bad news.
The good news is that it would be easy to resolve that problem. I sketch out various ways of doing that in my book. It would not be hard to develop ways, because the basic guideline is not very complicated. You could adjust the basic guidelines.
It is true that you do not want to get back into opening things up so that it becomes a case-by-case, back-to-court scenario. That would defeat the purposes of the guidelines. However, as the guidelines themselves are a set of benchmarks, you could institute a similar set of benchmarks that would provide for this appropriate adjustment. The result would be that the two parents would continue to contribute the appropriate, fair amounts, taking into account the time the child spent with each parent and the expenses involved.
The Chair: You would set up a separate grid that dealt with two days, three days and four days.
Mr. Finnie: It is important to understand that the guidelines, as written, were developed on the presumption that the child spends all of the time with the custodial parent. To turn around and ignore the direct spending is illogical within the context of the construction of the guidelines themselves.
Suppose there are a certain number of days. You want to allow a little bit of flexibility. What cases does it fit into? Let us say someone has a child for a month in the summer and every second weekend. That is a certain number of days a year. You could work it into a percentage.
With my guideline, it would work smoothly, because the percentages are clear, fixed amounts, such as 17 per cent, 33 per cent, et cetera. You could adjust those appropriately, but you could do much the same thing with the guidelines that are here. It would not be hard to do.
I could come up with a good judgment in an afternoon and one that withstood the test. You could put it into the legislation in a fairly short period of time. However, we are now dealing with the resources of the Department of Justice.
My next point is that the words have been boosted up at the bottom end for low income payers. I do not want to exaggerate this. There are specific categories. However, those individuals around the welfare lines -- which is problematic for welfare authorities -- will pay disproportionately higher proportions of their income towards child support.
Why is that? You could say that children cost more in that range, but that is not fair. We do not know that. The best evidence is that we do not know.
The reason as expressed in the government's own documents was that with respect to the research base upon which the guidelines were partly constructed, the guidelines actually generated lower awards at those low income levels. The feeling was something along the lines that the guidelines are supposed to increase awards, not decrease them, so we cannot do this. In itself, that is illogical -- well, perhaps it is not illogical, but, again, let us look to the U.S.
The stated purpose for instituting awards in most jurisdictions in the United States is that, at high income levels, non-custodial parents should be paying more, but for one reason or another judges do not award enough at the medium and certainly higher income levels. However, at the same time, one of the expressed purposes of guidelines was to reduce awards amongst low income payers because they were paying too much. They were paying disproportionately higher percentages, as they were in Canada. In the United States, the approach was that the people at the top were not paying enough, and the people at the bottom were paying too much, so they drafted a guideline to fix that.
The approach in Canada has been that the people at the top have been paying enough, so we should fix that. The people at the bottom have been paying too much, so let us not fix that. The result of trying to contort the guideline into a shape that covers those cases is that you then have extremely high percentages of payments at the bottom.
I want to be clear that I am giving you extreme cases. However, for those of you who have my document, on page 6 there is an example of individuals over the range of $9,000 to $10,000. It is a specific range, but people are living down there, especially in the welfare trap. Along the margin, they are paying 36, 66, 76 and 86 per cent of their incomes towards child support. Those people stuck in the welfare trap at the bottom have the option of going to work or working harder and taking home another $1,000. In the case of say three children, $768 will go towards child support. That creates the ironic result that if the awards are so punitively high at that end, individuals will not work and no child support will be paid.
This boosting of awards at low income levels perhaps looks good politically, but it will come at the cost of low-income, non-custodial parents as well as low-income, custodial parents and, let me say, low-income children, because their parents will not be working because they face these punitively high tax rates. They will wind up not getting the child support that they otherwise would.
Many people complain, particularly politicians, about the high marginal tax rates in Ontario. They are as exorbitantly high as 55 per cent. However, here we have the lowest income levels where people are trying to get by and are facing marginal tax rates as high as 86 per cent.
The next point I wish to make is the hardship condition to which Minister Rock made some reference.
In some sense, basing child support awards on the standard of living of the two households makes some sense. Why not? They were sharing a standard of living when they were married. Why should they not be in some sense sharing the standard of living after the split, especially for the child? This approach has, however, never been used in any jurisdiction. The reason is that child support principally becomes spousal support as well. If one individual is supporting the other household, which is what happens when you enter into any model that depends on standards of living, you are then talking implicitly about spousal support. In principle, I think it is even out of the balance of how the legislation is meant to apply.
In a practical sense, awards can become exorbitantly high, punitively so, because one individual can become the payer and then becomes fully responsible for the standard of living at the other household. Awards can be massively high.
Finally, although once you entwine the two families' standards of living in this way, you are not letting them be divorced. You are not letting them get on with their lives. You are complicating the calculations in a manner which would be extremely difficult to figure out.
Let us say that the day after divorce you can justify the standard of living approach fairly well. However, think about three or four or 10 years later. Perhaps one of the individuals has remarried. Perhaps they have more children. Perhaps an elderly parent has moved in. These calculations are based on calculating the income of all the individuals in the relevant household, whatever that might be, and then using the standard adjustments to come up with the standard of living.
Let us say that someone has been divorced for 10 years and perhaps divorces for a second time or has another child. All of those events and all of that information must be collected. All of those calculations must be remade, and all of those events will wind up affecting the child support.
Most people would agree that child support is a matter between the child and the two parents who had the child. In the matter of both principles and practicalities, anything which relies on this comparison of standards of living is perfectly unworkable.
Various comparisons are supposed to be made, which means that, in general, these calculations must be made on an ongoing basis. They will enter into the guidelines, and they will not let people be divorced.
There is the particular case of split custody -- 50/50 per cent custody. There are many weasel words in the legislation. That is why I quoted it, because I did not want to take the responsibility of actually explaining what this is meant to say. At page 8 of my document, I give the following quotation: "When parents share equal time with the children, the standards of living in the two households should be similar." I find that word to be a weasel word. I am not sure what it means. The quotation continues:
So, under the Guidelines, the courts will be instructed to adjust the child support to minimize the differences in the standards of living in the two households.
To me, if someone said, "Okay, what does that mean?," I would say it sounds like they are trying to equalize the standard of living. They are going to go back to this whole packet of problems I just talked about. In particular, it relates to the specific case of joint custody.
As I said, sometimes comparisons of standards of living result in very large awards because an individual becomes responsible. Each individual basically becomes responsible for the entire household. Just as we had the strange scenario of a person having the child a third of the time and having no adjustment in the amount of child support, here you might have another scenario where the non-custodial parent has the child a third of the time and then decides that the child will be with each of them half the time. Having the child more of the time would bring about a different way of setting awards which would massively increase the child support paid.
I want to repeat that because it does not make sense, but it is what the legislation implies. By having the child more of the time, child support payments could increase massively. Whenever I explain this to people, they ask, "Why would they do that? It makes no sense."
Senator Bosa: Perhaps you could give an example in dollar figures.
Mr. Finnie: Let us say the non-custodial parent has $60,000 and the custodial parent has $30,000. Let us say there are two children.
Senator Jessiman: Is this gross or net after tax?
Mr. Finnie: I do not have an example all worked out, so I cannot really tell you, but I will say gross. These are rough numbers just to give you an idea. Suppose it is $60,000. Let us say the child support winds up being $12,000 net. Under these guidelines, it will not matter if you have the child half the time or a third of the time. Once they move to shared or joint custody, they will then take the full $90,000 of the two households, and they will apportion that income so that it brings the two households to the same standard of living.
We are talking about two children here. I made the presumption of two children. The one household will have three members; the other will have one. I would hazard a guess that they will then equate it so there will be approximately the equivalent of $90,000. I would say about $25,000 or 30,000 will be kept by the non-custodial parent, and the rest would go to child support. The award would go from, say, $12,000 net to some equivalent of at least double, maybe more. It could be much higher than that, if you take the extreme case.
The Chair: I should like you to move on as quickly as possible so that we can question you. You have been approximately 25 minutes.
Mr. Finnie: All right. Perhaps we can come back to that later.
The final point on the guidelines themselves is that, as Minister Rock mentioned, there are these adjustments for special expenses, and so on. Some of those special expenses are for certain child care expenses such as medical and health expenses, educational expenses and extracurricular activities. The problem is that, on an average basis, those expenses are already built into the child support guidelines. That means that there will be a double counting. Also, it raises the question of what "extracurricular activities" means. Who knows what that means? I do not know what that means, but to the degree that it means anything, it is a bad thing.
The Chair: Do you feel the amount in the guideline is sufficient and that these things have been calculated into that at this point?
Mr. Finnie: Yes.
Senator Jessiman: How do you know that?
Mr. Finnie: Because these guidelines are based, as are on my own guidelines, on what is spent on a child on an average basis across all families. That "average basis" is based on calculations that take these expenses into account.
Senator Forest: If they are taken into account originally, they will not be taken into account additionally. Surely that would not make sense.
Mr. Finnie: I agree. That is the point I am making.
Senator Forest: I am also saying that in practical terms, if they can show that those costs have been built into the expenses in the first place, then they would not have the right to collect in the second case.
Mr. Finnie: That would require each individual to come before the courts and say, "Yes, but these expenses have already been entered into the guideline in general; therefore, they should not be taken into account." However, the legislation itself indicates that they should be taken into account. I have no idea where that leaves the award to be set.
Do I think the basic amounts are reasonable? Yes. That is easy to say.
In summary, child support should not be related to other issues such as access and other problems. The minister said that, essentially, we should presume that the money is spent on the part of custodial parents. I agree that that presumption should be the starting point of any legislation. We should make that presumption, because in the majority of cases that is true. However, in trying to put together what they called a child support package, why did the government not put together a balanced, fair package that is focused on raising awards -- and I agree that the award levels had to be raised -- and putting a guideline into place, standardizing awards, reducing court costs, helping the custodial parent, and so on?
At the same time as those issues are being resolved, why not resolve these other issues? We assume that the problem does not exist. I could tell you some jokes about economists based on assumptions. For example, how do you open a can? Presume you have a can opener. What is said here is not very different. The problem is that in the rare cases where the support money is not being spent as it should be, the response is: Presume it is. Well, if you need to open a can, it is better to have a can opener than the presumption of a can opener.
The government could have addressed the issues relating to access to the child. Here we will have a case where all the child support is being paid but nothing is being done on either the access side or the side of guaranteeing that the money is being spent on the child.
In closing -- and, to wrap myself in the flag of the child -- that would be in the child's best interests as well.
Senator Jessiman: Under the present system before this bill comes into effect, the payments are deducted for income tax.
Mr. Finnie: Yes.
Senator Jessiman: Is that the case in the United States or elsewhere, or does it vary from state to state?
Mr. Finnie: I did not talk about the tax aspects here.
In the United States in general, child support is of the system that we are moving towards and not the old system. That is to say, child support is not deductible. However, the minister seemed to pin most of his defence of that on the problems of the courts not making adjustments, and so on; but he did not seem to remember at that point that he was introducing guidelines whereby those sorts of adjustments would no longer be required and the advantages that exist in the current system would be built into the guidelines. The first report published was based on the fact that, for all the reasons that allow more money to go towards the children, that would be built into the guidelines.
In going ahead with the tax change, the government is taking money away from divorced couples. With the introduction of guidelines, the government could have guaranteed, instead, that it went towards children in divorced families.
I do not know how big that tax grab is.
Senator Jessiman: It is $700 million.
Mr. Finnie: It is certainly in excess of the $300 million the government describes, for a number of reasons that I state in my document. It is probably closer to $1 billion than to $300 million. The government is saying that it is then putting it back into the working income supplement. That is a terrific program, but they will only be putting approximately $200 million into that, and most of that money will go to non-divorced couples.
First, the guidelines could have resolved the problems under the old system of tax gross-ups not being made and those advantages not going towards the children as they should. The old system is a red herring, because now they have guidelines and we might quibble over the amounts.
That being said, in the end I have been convinced that the tax change is appropriate, specifically because it takes a preferable treatment towards divorced couples. Why should we not treat poor children equally, in general, regardless of whether or not their parents must be divorced. That is not what one hears supporters talk about.
Senator Jessiman: We are told that there are at least 20 different kinds of guidelines. You say you are an expert on guidelines. Have you experienced 20 different guidelines?
Mr. Finnie: No. It is almost infinite. Essentially, a guideline is based on a calculation of how much children cost, which is really how much gets spent on children, and how that spending should be divided between the two parents. There are two broad principles and it can take all sorts of specific forms.
Senator Jessiman: There two principles, and one case is what the government has done, namely, looked at a non-custodial parent's income. I am not sure I agree with that, but at least I understand it. However, Quebec is using a different guideline and taking into account both parents' income. In Quebec, the policy -- and, our present statute says this -- is to affirm the joint responsibility of parents towards their children and to guarantee children that their needs will be met on the basis of both parents' ability to pay.
In the number of guidelines you know, is it equally divided between those that look at the custodial parent's income and those that look at both, or is it slanted in favour one way or the other?
Mr. Finnie: A good number depend on both. Basically, in terms of the size of the awards -- and this is a remarkable result -- they wind up being about the same. For example, let us say you have a scenario in which the non-custodial parent has $50,000 in income; the other parent has no money. Let us say the award is one-third of that $50,000; that would be about $15,000 from the non-custodial parent and zero for the other parent. We are basing it only on that one parent's income. Now let us base it on the family income. The family income is also $50,000, because all the income, just as in the first case, is based on the non-custodial parent's income. The family income is $50,000 and the costs for the children are still assessed at one-third. That is to say, in this simple case, when the one person, the non-custodial parent, has all the income, basing it on the non-custodial parent's income and basing it on the family income generates the same amount.
That is the first case. Let us consider the second case, where the custodial parent has $50,000. Instead of 50/0 you have 50/50 and you think, "We had better take that into account; otherwise, the award will not be fair." Let us say that spending on the child is one-third. We have a family income total of $100,000. One-third of that is $30,000. But we now want to split it 50/50 because they have the same amounts. That gives you $15,000 each. Lo and behold, we have gone through all those calculations and have arrived at the same amount of money.
A friend of mine suggested, and I have come to believe it is a good idea, "Why not forget the calculations and have a guideline that is easier to implement?" That is what I have come down to believe. That is one of the strengths of the government's recommendation, that it would be easier to implement. In other words, you simplify the reporting, the calculating and all the rest of it to a large degree.
What is happening in Quebec appeals to people's sense of fairness, which is appropriate, but it is more appropriate to work through a calculation like this and say, "Let us save everyone a lot of time and bother. We will still have fair child awards, but let us keep it simple."
Senator Jessiman: Shared custody is another area I wish to address. Are you familiar with not only the guideline numbers but also the guidelines themselves?
Mr. Finnie: Yes.
Senator Jessiman: Do you have them in front of you?
Mr. Finnie: No, but I have certainly pored over them.
Senator Jessiman: You find this expression there: "...where both spouses share physical custody of a child in a substantially equal way..." We were told by the departmental representatives that they interpret that to mean 50 per cent, although others have said that it could be less than that.
Mr. Finnie: Yes, that is what I have heard.
Senator Jessiman: I would think that those words should be removed. It could then apply and there would be some kind of adjustment. It would be better if they could have guidelines to take care of it, as you suggest.
Mr. Finnie: I agree that they should be more explicit in the wording, but in that case they should simply extend the principle that most people agree upon, that direct spending by either parent, including the non-custodial parent, should be taken into account, once you establish that as your basic principle.
You will recall that I began with the point that, if someone has a child one-third of the time, that should be taken into account. A simple extension of the same logic would be to apply that to, say, 50 per cent of the time. That would be a nice, smooth, uniform, single system that would apply to all cases, whereas here they have no adjustment from 0 to 50 per cent and then there is this radical adjustment which could be in either direction. It could be either a large increase or a decrease or no change at all.
Senator Jessiman: And the court could do nothing about that unless there was a hardship?
Mr. Finnie: The hardship would even be built into it, because they are equating the standards of living, which is what the "hardship" condition is based upon.
Senator Bosa: Madam Chair, I have a great deal of admiration for the way you have handled the meetings. You are effective, but may I make a suggestion? Because there is limited time and there are a number of senators around this table, could we ask each senator to ask two questions so that we can go around the table? On the second round, those who have additional questions can put them then, and in that way everyone will have a fair chance to ask question.
Senator Cools: Yes, I agree.
Mr. Finnie: These have been good questions which get at the heart of the issues.
Senator Cools: I should like to thank you for an excellent presentation and for a learned and studied analysis based on reason and science.
One of the problems we have frequently, as senators, is to find out from ministers and departments the rationale and the scientific basis for initiatives. It makes it especially difficult for us, and for me in particular, when those officials, or even the ministers themselves, resort to what I consider rather odious PR tactics -- wrapping themselves, as you have put it, "in the flag of children." I see it as wrapping oneself in the flag of rhetorical affirmations for public relations purposes.
I sincerely believe that each and everyone of us around this table is truly concerned about the best interests of the child. I do not believe that anyone has a monopoly on that. It is very difficult when persons who are responsible for these issues, rather than going to the heart of the issues, keep on repeating these rhetorical affirmations.
We have meeting for only a few days, but this is the first time that anyone has gone to the heart of the issues, which is the substance and content of these guidelines, where they come from and how they are proposed to work.
Having said that, and having read your paper carefully, I have a couple of questions for you. On page 2 of the bill, at the top of the page, Bill C-41 is proposing to scrap the old definition of "a child of the marriage" in favour of a new one. Basically, they are raising the age from 16, as it is in the current Divorce Act, to "the age of majority or over." My concern with that clause, which was originally to look after children who were severely ill, disabled or crippled, is that they have now inserted the words "pursuit of reasonable education or other cause."
To my mind, that sort of scripting in legislation is extremely dubious, but that is another issue of mine. We senators see a lot of that sort of thing these days. My question to you comes from page 17 of your submission. It is regarding something buried in footnote number 21.
Mr. Finnie: Perhaps not all honourable senators have made it to footnote 21.
Senators Cools: I will read it out so it is on the record:
On a more specific point, by the time spending on postsecondary education becomes relevant, child support is, in general, no longer appropriate and other arrangements should apply.
I wonder if you could expand on that for me or explain what you meant.
Mr. Finnie: That is more my opinion as a citizen. My expertise here is in the structure of guidelines and that sort of thing. I guess I was allowing myself to step a bit outside my professional role and say that, once someone is beyond secondary school, then that person is an adult. We are not calling it "adult support"; we are calling it "child support," and it should not be included.
I think most people agree that one should continue to support one's child in order for the child to pursue post-secondary education, but to then oblige the non-custodial parent to continue to make child support payments to the custodial parent is not, I do not think, what child support is about.
[Translation]
Senator Losier-Cool: You said in your presentation that 47 states had adopted guidelines, but that they did not use them. Did you do any research to determine why they did not use them or whether it was simply the parents' choice?
Mr. Finnie: My answer is based on conversations I've had with professor Garfinkle; I'm in touch with him from time to time. He explained that Wisconsin is the state where they are used the most often, and I believe that they are only used in 60 to 70 per cent of all cases. The problem is that they are not accepted as being fair or applicable, and in most cases, the judges or the courts are given the option to use grids or not. In most cases the guidelines are perceived as something that does not work, and so they are not used. There are some states where they are not used at all. In fact, it is a bit odd; they adopted grids in their legislatures because they had to continue to receive funds from the federal government, but it was not necessary to use them. So if a state is being paid to adopt grids, it is almost certain that the state will do so, especially if it isn't forced to use them.
Senator Losier-Cool: On page 13 of your document, you say that the government appears to have missed one of the best opportunities to implement deduction at source. You talk about automatic deduction of child support at source, and I remember clearly that Australia tried to do the same thing and that it costs the taxpayer too much. Do you have any idea what that would have cost Canadian taxpayers if it had been put in the bill?
Mr. Finnie: No.
Senator Losier-Cool: What is your position on the working income supplement?
Mr. Finnie: I'd like to go back to your last question. I could perhaps answer both at once; please repeat the second one.
Senator Losier-Cool: The second one dealt with the working income supplement. What is your position? Do you think it's fair?
Mr. Finnie: Yes, I like the program a lot, because it encourages the people who are on the fringe of the labour market. I'm in favour of the government putting as much money as possible in this program. But this money, which is considered another way of helping divorced families, will only help a few of them. Most of the families who will benefit from the money are couples who are still married or who have never been married. I do not have a problem with that, but the government should be honest in that respect. But regarding the system for deductions at source, I would say that the simpler the formula is, the better it will work. The formula I suggested would work very well. What I could not estimate was deductions under the Canada Pension Plan or the Quebec Pension Plan, and deductions for unemployment insurance, etc. It is not complicated, and it is not much of a burden for employers.
Senator Losier-Cool: If you follow your line of thought, you would also agree with implementing the clause on taking legal action against deadbeat parents, those who do not contribute or who do not live up to their family obligations as indicated in the bill?
Mr. Finnie: In detail, I'm not sure that it would work all that well. In principle, yes, I fully agree with measures that will ensure that those who should pay do pay. The point I wanted to make was that the guidelines would have to be simple and well accepted by everyone. That is important, because those who are opposed to this grid, and it is not just the system, will not be willing to pay. The first defence for ensuring that payments are made is to have a grid that is fair, perceived as fair, and accepted by everyone.
[English]
Senator Forest: You mentioned that the award or the payment would probably be higher with the guidelines than is currently the case. Would you agree that there will probably be less cost to parents for litigation?
I am referring to what the minister said about every couple having to go before a judge and get things straightened out, whereas with the guidelines in place that would not be necessary. Would you anticipate less litigation being required?
Mr. Finnie: In the long run, yes, one would hope so. There is no guarantee of that but one would expect so, which is one of the reasons to adopt guidelines. However, that said, with these guidelines themselves, because of the room they leave and the room that they do not leave that they ought to, I have no idea what is going to come out in the courts. For example, is the issue of low-income parents paying higher proportions of their income than high-income parents a Charter issue? I do not know.
Senator Forest: Would they, though, not be compensated by the amounts that would be given out for the working poor and so on under this program, where the government would be taking some of the revenue and reallocating it to low-income groups? Would they not receive that?
Mr. Finnie: Let us be clear. The money that is taken away from divorced couples will then be distributed amongst the general population of poor. Therefore, divorced couples as a group are clearly left worse off by this tax change. There is no question about that.
Senator Forest: They will not receive a supplement?
Mr. Finnie: No. You have to understand that the government has said, for the tax savings, yes, they will save. After the Thibaudeau case, the politics became very strange. Women's groups were arguing in favour of a tax change that made sense under the old system, where you did not have guidelines, because, in fact, in many cases the old tax system did not work the way it was supposed to. However, under guidelines, the system could have been made to work to ensure that the tax advantages for divorced couples did, in fact, go towards the children.
There is less money around. As Allan Rock explained, the government will collect more tax revenues. They will collect more tax revenues from divorced couples and they will be then taking a proportion of that, nowhere near the full amount, and redistributing it among all poor families, so it will be a much wider pool. Here is the loss to divorced couples: they are taking a portion of that and distributing it across a much wider pool of families. Again, I want to say I have no problem with that. The government should just be clear about what it is doing. Unfortunately, the lowest-income divorced families will be hit the hardest by these tax changes, because they are the ones who benefit the most from the current tax system.
[Translation]
Senator Lavoie-Roux: In line of the answer you have just given, the money that is collected by the government, taking into account taxation changes, will be distributed according to what the minister told us, but unless the divorced families are low-income families, they may never receive this money, and that it could go to the general population. Am I mistaken?
Mr. Finnie: No, that is right, that is precisely the case.
Senator Lavoie-Roux: So divorced people will have to have a rather low income to end up in the category of people who will need an income supplement?
Mr. Finnie: Yes. Even in these cases, the maximum will increase, and even if it is a significant amount of money, like the $200 million that was mentioned, given the number of people affected by these advantages, the maximum will go up by $100 or $200 per year. I forget the details. So even in the best case scenario, the advantages will not be very high.
Senator Lavoie-Roux: I would like to go back to the issue of joint custody. I do not know the situation in other provinces; I am more familiar with the situation in Quebec, and I imagine that it is probably quite similar, but in Quebec, it is quite common for the parents to have joint custody and for the father to have the children one week and the mother the other week, et cetera. At present, when a judge determines the amount of support that must be paid by a parent, does the judge take into account that the father looks after the children one week and that the mother also looks after them, and that in the end, they both look after them almost 50 per cent of the time?
Mr. Finnie: Yes, absolutely.
Senator Lavoie-Roux: They currently take that into account?
Mr. Finnie: I am not an expert in how courts operate as such, but I am under the impression that that is exactly how it works. They take specific situations into account. If parents have more or less the same income, there are no support payments at all. If parents have the same income, it does not change much. The payment would not be particularly high. That is more so the case when one parent earns more than the other. At present, there is no doubt that the courts take the couple's circumstances into account. In each case, the child's needs are calculated, that is how much both parents can contribute to meet the child's needs. It all depends on the needs and the couple's expenses, as well as the details of the situation. At present, that is all part of the calculation.
Senator Lavoie-Roux: In the future, once the guidelines are adopted, will it be easier or more difficult than before to take into account joint custody, or the financial impact of joint custody? The guidelines don't mention joint custody.
Mr. Finnie: No. That is the problem; they will balance out the standard of living, and that is where I feel it's going to be dreadful. Dreadful in the sense that it will never allow parents to get a divorce, and the calculations are extreme, even with respect to the concepts. How do you define a family nowadays?
According to the guidelines, a family is defined as having two parents, the total income of the two parents is calculated, and the family income is made equal on both sides. So if, three years after a divorce, someone starts living with someone else who has two children, for example, that should be taken into account in the calculations. Or maybe not. It is not clear, but in my view, I think it should be. And perhaps a year later, the new spouse's mother may move in with the couple. That should also be part of the calculation. That has nothing to do with the divorce as such. In this case, it would perhaps be difficult in the present circumstances, and much more complicated, I think, and unfair, according to the guidelines.
Senator Losier-Cool: What you're saying now is not in the guidelines. What was your answer to senator Lavoie-Roux's question based on?
Mr. Finnie: No, it is in the government documents that have been distributed. That is what I read earlier.
Senator Losier-Cool: When you say fifty-fifty?
Mr. Finnie: Yes.
Senator Lavoie-Roux: Basically, what the guidelines allow for -- and it must be recognized -- is the establishing of a minimum level of income where the non-custodial parent will have to pay, but it does not go any further than that in defining the other circumstances or the other factors that must be taken into account. I do not have the exact numbers, but if you have an income of $20,000, you pay $2,000.
Mr. Finnie: Yes.
The Chairman: Mr. Finnie is way over his time and we are getting noisy.
Mr. Finnie: I am more than happy to stay and answer questions. If I could just add a comment: generally speaking, I fully agree with Mr. Rock when he says that the guidelines will help strike a balance between the structures and flexibility. I would say that there is not enough flexibility in the bill, or that there should be more, and vice-versa; mistakes are made on both sides.
[English]
Senator Lavoie-Roux: My main preoccupation, and I feel that it is also the other senators' preoccupation, is that this law will be fair for everyone. Do you think we have the ingredients to make sure that this is a fair law?
Mr. Finnie: The basic guidelines, yes; as it is written, absolutely not.
Senator Cohen: When the minister was here, he said the emphasis of this bill is on children, and I think the intentions are honourable in that respect.
Mr. Finnie: Yes.
Senator Cohen: However, I have a concern about access, because he said that access and child support should not be considered together or that we should not talk about them together.
My concern is for the non-custodial parent who has visiting rights, who pays child support and who has been faithful with his obligation. In these times of hardship, it may be that he loses his job, or something adverse happens in his life. His visitation rights should not be affected as a result of that. This concerns me if we are talking of having fairness in a bill. I certainly feel that this bill wants to be fair. However, there is no access or avenue of appeal for the non-custodial parent. I would like to hear what you have to say about that.
Mr. Finnie: I agree with the premise of the minister that child support payments and access should not be linked. Of course, we would agree that neither should be a problem. However, in the real world the two are sometimes a problem, which is why we have this law, and the two are often linked. As I say in my document, it is hard to tell where the problem begins. Someone somewhere reduces or stops making payments because there is an access problem. Access is refused because payments are not paid. The two are, in fact, often linked.
As we are taking measures to ensure that full and fair payments of child support are being made, it would have made sense to resolve this other side of the problem. I say that, because to some degree they are linked. Also, it would then be simple to present the government with a full package and say, "Look, as much as we can, we have addressed the full package of child support problems."
It was disingenuous of the minister to say that this measure does not favour one side or the other, because, while most of what is here is meant to increase child support awards, which I think is fair, and to make a fairer structure, which can be fair for both sides, in general, it misses these other key elements that apply mostly to the non-custodial parent.
The Chair: Mr. Finnie, I want to thank you very much for appearing today. We appreciate your interest in this bill and the amount of work that you have put in to the guidelines.
Mr. Finnie: It has been a pleasure. Your questions were excellent. I can be reached through the School of Public Administration if anyone has any further questions for me.
The Chair: I would like to thank Mr. Fox as well, because he relinquished some of his time so that we could continue our questioning of Mr. Finnie.
Senator Lavoie-Roux: Can you tell me why we have blocked in so many witnesses, Madam Chair?
The Chair: The pressure is on us to hear witnesses. We had 41 phone calls yesterday morning to hear witnesses. We are trying to be as kind as we can to the people who want to come before the committee.
Senator Lavoie-Roux: It is difficult.
The Chair: I am doing the best I can.
Senator Lavoie-Roux: I am not blaming you in any way, Madam Chair.
The Chair: We have Mr. Walter Fox with us this morning. He very kindly gave up some of his time. We will let him make his statement and see if we can catch up a little bit.
We are prepared to give you the time you need, Mr. Fox. If you would like to start, we are prepared to hear what you have to say.
Mr. Walter Fox, criminal lawyer: Madam Chair, I come before this committee as a continuing survivor of the child maintenance-divorce system in Toronto. I happen to be a criminal lawyer of some 30 years standing. I am in a courtroom every working day of my life one way or another, 98 per cent of the time in a criminal courtroom.
What I believe I can bring to this committee is some of the realities of how things really function, as opposed to what I have heard this morning. It has sounded like academics with a political attitude in this room. No one seems to deal with the realities.
The first thing you have is this: You have a bill before you to amend the Divorce Act. Perhaps the people who have come before you have talked about how the Divorce Act plays itself out in real courtrooms with real people and real children at stake, although not one person I have heard today has said anything about that.
I have heard that people such as Carol Curtis, Mr. Epstein and the minister have addressed you. All of them are family lawyers. All of them have a vested interest in keeping things the way they are. Let us tinker a little bit. Let us change things a little bit. None of them have a real interest and a real commitment to dealing with the practical realities of how those courts function.
I do not have an academic standing or background. Nor do I have a staff to back me up. However, I believe that there is not one person in this room whose family has not been touched by divorce.
In divorce, all the fundamental things that relate to people's civil rights are decided. Based on my experience in the criminal courts, I suggest that the civil liberties and civil rights issues in those courts are now pretty much under control, in the sense that we have a direction and we know what we are doing. That comes from the Charter.
In terms of family law, which will decide who will have what money, who will live where, what religion a child will be brought up in, what education a child will receive and who will have what kind of work to do, we have no direction.
The first thing you have to know about the family law courts is that they function without a transcript. Children's futures are decided by lawyers and judges meeting in a room; sometimes the parties are not even there; nothing is recorded, nothing is written down, and yet decisions are made. One or the other side then has to implement those decisions. That is the first consideration that you have to know about.
The core issue that affects a child is custody. There is a hypocritical overlay with respect to custody. Every one says, and I am sure Carol Curtis, Mr. Epstein and the minister would say, that the overriding concern is the best interests of the child. In Canada, and in Toronto for sure, the "best interests of the child" seems to mean that custody goes to the mother. That is the plain reality. That is the fact. Perhaps that is the best thing for children. It may well be. However, I think we lose something. I think we start to poison the process when we tell fathers, children and grandparents that the courts will decide on the basis of who is the better parent, and let us have a discussion and have a trial to decide who is the better parent. The reality is that that is not the issue at all. It is almost as if we could replace that whole part of the system with a chromosome test. If you are the mother, you get custody. That could well be the right way to do things. However, it is definitely wrong not to admit it and not to put the clarity in the law.
Regarding the minister's comments about how profoundly unimportant it was that the people representing the ministry happened to be women, the fact is that it is obvious about me: I am a male with a Euro-ethnic background. I have done nothing all my life but work, look after my family and do the appropriate thing. Everything I have to say will be discounted in the minister's thinking for that reason alone. He will say, "We are dealing with a father who was upset at the courts. This is a white male. We cannot rely on anything he has to say."
This morning, someone touched on children of the marriage. I do not want to get into my own personal matters, but -- and I am getting close to the end of my remarks -- I have a son who is 25 and a daughter who will be 24. I think that it will be another one or two years before someone decides that my daughter ought not to be the subject-matter of child support. To put that comment into perspective, there is currently a matter before the court in relation to child support in connection with my daughter, and I do not want to get into the details of that situation. What if I were to go to court to ask for custody of my daughter at age 24? The absurdity would become apparent. The Carol Curtises, the Phil Epsteins and the Allan Rocks will not discuss that. They will not talk about what really happens in the courts.
There is this intractable problem in the connection between access, custody and maintenance. Everyone agrees that they should be separate, in an academic environment and in this environment. However, in the real world, access has a direct relation to custody, and the enforcement of access -- not only access but how it will be treated -- is significant. You take a father and tell him, first, the court will decide custody on the basis of who is the better parent; and then they give custody to the mother automatically. The father, his parents and his brothers and sisters are profoundly shocked and disappointed. The terrible thing is that they think it is only happening to them. It is happening to everyone who goes through the process.
Now we come to support. The maintenance, no matter how it is arrived at, will be enforced. It will be enforced now in a more draconian way than ever -- not because it helps children. Don't buy that for one minute. It is because, as Mr. Finnie pointed out, it raises taxes for government. There is a deficit. The provincial government in Ontario is fighting a deficit, as is the federal government. The government in its wisdom -- and it will get around to this in the drug trade soon enough -- has found that in the child maintenance area there is a lot of money changing hands, so let's organize it, regulate it, tax it and use it to fight the deficit.
If you are interested, I have with me a tape recording of a radio program in which the Honourable Charles Harnick, the Attorney General of Ontario, phoned and spoke to a Mr. Ross Virgin who is head of a men's group called "In Search of Justice." You will hear the minister say, "There are a lot of court orders out there awarding access, and they are in contempt and we cannot get them enforced." This is a minister of the Crown saying, "We cannot get them enforced."
If you will bear with me, it will take a couple of minutes. Would it be appropriate to play it, Madam Chair?
Senator Cools: I would like to hear it.
(Editor's Note: Tape played by witness.)
Mr. Fox: I think it is fair to turn the tape off at that point. I do not think there is much more I can say beyond that, when you have the chief law officer of the Crown in the right of the Province of Ontario saying that there are court orders in contempt and "we," that is his word, "cannot get them enforced."
I would like to move back to the point I started with about how the family law courts function. As a lawyer dedicated to the law, and as a lawyer who is in a courtroom every working day of his life, I wonder what damage we are doing to our system where a court makes an order and it says, "Maintenance shall be 'x' dollars a month; and if you don't pay that, we will put you in jail. On the other hand, access shall be every second weekend, and, if you get it, good luck to you; but if you don't get it, don't come here; don't bother us."
What message are we sending to children -- because we are really interested in children here -- when the law says to them, "What mother is entitled to, mother gets, but what father is entitled to -- hit the road; it is of no relevance to us."? I am not the only one concerned about this, despite the fact that I happen to be a survivor of the divorce wars, because there has been such concern about how the family law courts function in Ontario that in the Civil Justice Review undertaken by Mr. Justice Blair of the Ontario Court, General Division, which was reported in March of this year, at page 271 in the "Focus on Family Law" section, he states as follows:
As indicated previously, motions in family law have increased dramatically.
Now I am moving away from the text. One of the most important things you have to know about family law as it functions is that the custodial parent, usually the mother, never pays costs. Therefore, one of the most important components in ensuring the proper functioning of the court system is deficient and missing in family law: Mothers never pay costs. That means they can drag proceedings on for as long as they like, they can take spurious proceedings, and the lawyers just rake in the money, knowing that mothers do not pay costs.
At page 271 Mr. Justice Blair said:
As indicated previously, motions in family law have increased dramatically. Some contents of affidavits attached to motion material were reported by members of the public to be damaging forever.
Does this bill address any of those issues?
We were told on more than one occasion that perjury in these affidavits is rampant. Where there is little control imposed over the process, lawyers feel compelled to draft lengthy and all encompassing affidavits to ensure procedural advantages for the client and to avoid future liability. Concern and frustration were expressed about the number of allegations made in affidavits that were not capable of being substantiated in any way. Whether that is true or not, it is clearly a perception that exists, as does the perception that such perjury goes unpunished.
This is a judge of the General Division of the province of Ontario saying that there is a perception here that there is perjury and that that perjury goes unpunished. How quickly could a court straighten that out? It would take no time at all. How quickly could the legislation straighten that out? It would take no time at all. All that is required is a simple provision: If a parent files an affidavit which is proved to be substantially dishonest, they do not get custody. We cannot do that because custody always goes to the mother. We cannot get very complicated on this issue. We cannot punish mothers or fathers who file false affidavits. Remember, mothers do not pay costs and mothers always get custody.
Finally, this system is so tainted and so poisonous that it is affecting the judiciary, according to the report of the Civil Justice Review -- Focus on Family Law. At the bottom of page 272, the report goes on to say:
There was also concern expressed that some judges in the General Division do not like hearing family law cases and that this dislike for the subject was communicated to litigants along with inappropriate and personal comments. Judges in family law cases need training in alternate dispute resolution techniques and in pre-trial management. In some cases, people felt that judges wanted to avoid making tough decisions so they adjourned the case and advised the parties to settle it themselves. Many judges were seen as reluctant and/or without the resources to enforce timeliness in the process and children's issues are not seen as a priority over property and money.
Remember, the Carol Curtises, the Phil Epsteins, and the Allan Rocks are the family law lawyers who run that system and have come before you and said, "Everything is fine. Just let us introduce guidelines. Then we won't have to deal with little pieces of paper." It is a red herring. The real problems are in the courts and how they operate.
Let me continue reading from the report:
The isolation and the constant stress of dealing with family issues was seen as a contributing factor to inconsistency and burnout amongst judges specializing in the family law area.
The entire process in dealing with family law cases before the court was criticized for its delays and adversarial focus. There is a tremendous need for case management with local and case by case flexibility. In particular, parties want to be involved in the process and not excluded from meetings between lawyers and judges. All too frequently options other than court are not considered.
That is as much as I want to say about the reality of what ought to be before this committee and ought to be before the legislature as opposed to this very complicated analysis of whether guidelines will solve the problem and get money to children. Unless the poison is taken out of the system by forcing everything to be done on a transcript, in open court, and by changing the way the court itself approaches these things, you can sit here till Doomsday, but children will not get money, fathers will be embittered, mothers will be embittered, grandparents will not have access to their grandchildren, and every family in the country will continue to have to deal in one way or another with the divorce court and the divorce lawyers who are profiting far more than the children are out of the process.
I have one last point, and then I will take whatever questions there may be.
It is my view that, given the existing situation, there are almost no fathers who are wilfully in arrears. I said "wilfully in arrears." Someone will come here with statistics, and the feminist groups have nothing better to do all day on government money than develop statistics and to take the position that fathers are not required and that we ought to continue the devaluation of fathers. I do not want to get into that argument. That is my view.
However, if that is correct, then it should be a matter of indifference to me how draconian the measures are to enforce support. It is not a problem. If there are only a few fathers, you may as well take them and put them in jail for life if they are in arrears. That is really my position. You can make these measures as difficult or as tough as you want. The problem is, who will decide what constitutes arrears? If a father is supposed to pay $2,000 a month and he gets paid on the first of the month and half of his paycheque is garnisheed and he gets paid on the 15th of the month and half of his paycheque is garnisheed, is he in arrears in those 15 days, or is he doing everything he reasonably can? Who will make those decisions?
In Ontario, it is the Family Support Plan. The Family Support Plan has been discredited by everyone. They seem to have a need to find arrears in every nook and cranny. The Civil Review of Justice deals with that in one sentence:
Throughout the consultation process, many complaints were made regarding the inaccessibility and inaccuracy of the Family Support Plan.
I myself have personal experience with the inaccuracy in their accounting. They could, under the most draconian of measures, have put me in gaol because they made a clerical error and determined that I was $15 in arrears, which is in fact what happened. There was a big hoopla over the $15. They claimed it was $149, and it turned out to be $15.
I do not know what this legislation provides. Make the measures as draconian as you like, but let it be a judicial determination before a judge where whoever is going to feel the sanction can come with his lawyer and, on a transcript, explain his position. Let a judge decide. After that, if truly there is someone who is wilfully not paying his child support, do what you like with him, or possibly her.
Senator Cools: I thank Mr. Fox very much. I am aware that you were waiting to be heard, and I thank you for waiting.
I appreciate a few of the statements that you have made. You have raised something that I have been wanting to raise here for quite some time. You have given me an opportunity to do it, so I should like to put this on the record.
You have mentioned the instance of Carol Curtis. She came before our committee.
Mr. Fox: I do not mean to speak about her individually. I am talking generally about the category of family law lawyers. Taking their advice on this issue is like asking the inmates to run the asylum. It makes no sense. They got us in this mess.
Senator Cools: I should like to put on the record today that I am holding in my hand a document from the Discipline Committee of the Law Society of Upper Canada. This is a case involving Carol Curtis, who gave us her evidence a few days ago representing the organization of the National Association of Women and the Law.
Carol Curtis was brought before the Law Society for having advised a client of hers, a mother, not to hand over the child to the father, especially in the face of one of these court orders.
The Chair: Senator Cools, we need a question too.
Mr. Fox: May I make a comment?
Senator Cools: Certainly.
Mr. Fox: As a criminal lawyer, I deal every day with people who are going to gaol for long periods of time. Their families are destroyed by the impact of their conduct and the criminal law. In the case that the senator is referring to, at the end of the day, the benchers of the Law Society determined that there was no positive duty on a lawyer to advise a client to obey a court order. It is astounding. That is what the Law Society of Upper Canada has decided. As a lawyer, I have no obligation to tell my client, "There is a court order; you obey it." It is okay for me to tell my client, "There is a court order; you do not have to obey it, and I will help you disobey it."
This keeps coming back to these three people, and I do not mean to pick on them, but Carol Curtis is a bencher of the Law Society of Upper Canada, Phil Epstein is a bencher of the Law Society of Upper Canada, and Allan Rock was treasurer of the Law Society of Upper Canada. This thing gets interrelated, and it is astounding.
I come at this from the point of view of a criminal lawyer. They found she had no duty to tell her client to obey a court order. If you can accept that and understand it, you are obviously not a lawyer.
The Chair: We also heard from many other groups.
Senator Cools: That is not the issue. The issue that has just been raised is the obligation of lawyers to ensure that their own clients, mostly mothers, obey the court orders of access. But this was more than just access. The judge had actually ordered, I believe, the mother to surrender custody of the child to the father. This is more than just a little bit of access. This particular lawyer, from whom the department is taking advice and from whom this committee has been taking advice, expressly advised her client, the mother, not to surrender custody to the father.
Let us just be aware of the operation of the law in Toronto on the ground.
The Chair: We should get back to Bill C-41.
Senator Cools: This is Bill C-41.
The Chair: Could we have specific questions?
Senator Cools: Mr. Fox, you began by making a statement about the abridging of civil liberties within the divorce and family court proceedings. Much of what you have been saying this morning is premised on what I perceive from you to be a difference of standards between criminal courts and civil courts. Perhaps you could shed some light on why the standards are so different in criminal proceedings and in civil proceedings. Why are these abuses and violations so tolerated within the civil system, and, in particular, in divorce and family court and family law proceedings?
Perhaps Mr. Fox has not made it clear and should hold up the entire document from Mr. Justice Blair. Very recently, following on this particular Civil Justice Review, the province of Manitoba undertook such a review of its civil justice system, and they arrived at many of the same conclusions.
Perhaps you, as a practitioner on the ground in criminal law and as a person who has had a lot of experience in the civil law, could explain to us what happens when you move the same judge from one courtroom to the other. What is the difference?
Mr. Fox: I believe that, by quoting you those passages, I have described what happens. How do I explain it? I can only offer the following theory.
The law will not acknowledge publicly that custody almost always goes to the mother. We could save ourselves all a lot of time, energy and money and anguish if the law said, "It is presumed that custody goes to the mother, and the father must provide evidence to dislodge that." I would say a third of the cases in the family law courts would disappear.
We would be a better off if we had a law which stated clearly, either in the jurisprudence or in legislation such as the one before you, "Access is not enforceable and exists only on the basis of the goodwill of the custodial parent." Another 30 or 40 per cent of the litigation in that court would disappear and would not be required.
All you would have to do to cut the paperwork and the misery and the anger and the anguish almost completely out of those courts would be to charge one mother with a false affidavit, one father with a false affidavit, one lawyer acting for a mother who has suborned a false affidavit, and one lawyer who is acting for a father who has suborned a false affidavit. The poison would settle right out, and we would have clear issues before the court at all times. People would not be here in the Senate debating about whether, using this guideline or the other guideline, we can restore some sanity. The guidelines are the least important component in this issue.
Senator Cools: Mr. Fox, on the issue of the overwhelming granting by courts of custody to mothers, some years ago there was a judgment of involving Mr. Justice Willard Estey, who, as you know, is one of the finest judicial minds of this country. I believe the case was Talsky v. Talsky. Perhaps you could share with us what Justices Estey and Jessop had to say in that judgment about the phenomenon of automatically awarding custody of children to mothers.
Mr. Fox: I do not recall that aspect of the judgment, but certainly Talsky v. Talsky was an important case in my life. Mr. Talsky was a dentist. It was his position that he could care for the children because he could run his dental office from his home. He could be there in the morning when they went to school, there in the afternoon when they came home, and there in the evening when they came home from school. By contrast, should custody go to his estranged spouse, the children would be raised by nannies and by other people who were not in the family.
In the course of deciding that case in the Court of Appeal in Ontario, the court took into account the mother's denial of access during the interim period. The court said that when a mother denies access to children to a warm and loving father, that is a factor to take into account in determining custody.
That is not the law. That was the law in the Court of Appeal, and it was the law in Ontario for about 18 months in the mid 1970s, but the Supreme Court of Canada seemed to say you cannot take that into account. How the mother treats the children by how she treats the accessing father is not a relevant consideration.
Senator Bosa: Mr. Fox referred during his presentation to the fact that Philip Epstein, Allan Rock and Carol Curtis --
Mr. Fox: Those were the names mentioned to me.
Senator Bosa: You said they were all former family lawyers.
Mr. Fox: No, they are all current. It sounds like Allan Rock still is too.
Senator Bosa: What is implied in that? That they have an interest in putting through this legislation the way it is?
Mr. Fox: They have an interest in detracting from the real issues that go on in those courts. Carol Curtis seems to have a political interest. Phil Epstein has a status and his position in those courts. They cannot admit that there is something awfully wrong with the way those courts function because they are the leading practitioners in those courts. If there is something wrong with those courts, they will not tell you. They will tell you that any problems can be solved by changing the guidelines.
Senator Bosa: Mr. Fox, if you imply that there is a hidden interest in the positions taken by these lawyers, then the guidelines, as I understand them, are designed to expedite the legal process in a dispute. There is no pecuniary advantage for them to propose that the guidelines be adopted as they are, because they just diminish the lawyers' work in the courts.
Mr. Fox: Tell me, please, are these guidelines mandatory? Are they ceilings? Are they floors? Can they be moved in exceptional circumstances? What constitutes undue hardship? If those are not weasel words upon which any lawyer can build a chalet and a mansion, then I do not know what does constitute weasel words.
By the way, I do not want to forget this: The legislation says that the support payer can come before the court and say, "This is a hardship for me." Do you know what the court must say, based on this legislation? "We don't care if it is a hardship." He must prove it is an undue hardship. If you can tell me that lawyers cannot find a way to make money out of that expression and that kind of court hearing, I don't know if you have ever been in a court.
Senator Bosa: I am not a lawyer. Perhaps I am naive in assuming that most people are decent people and honest people. For someone to take a different view, it would have to be an exceptional case. When you go to court, there is a judge. We presume that person has been appointed to the bench because he has a track record of having done something good in the past.
Mr. Fox: Or having lost an election.
The Chair: On that we will close. Thank you for coming.
We have one more witness.
Senator Cools: Bring the next witness on, but, just to refresh our minds, Mr. Fox read to us a report of Mr. Justice Blair of the Civil Justice Review in which he said that these are the problems that are there.
Senator Bosa, you say you are surprised. These are the reports. They are there.
[Translation]
Ms Pamela Stuart-Mill, President, Parental Alienation Information Network (P.A.I.N.): Madam Chair, I am very happy to be here today, all the more so because I'm from Quebec, and I must say that as an anglophone, a lot of what I am hearing today is like a foreign language. I am here in my capacity as President of the Parental Alienation Information Network, an organization that is based in Sherbrooke, in the Eastern Townships, but which serves all of Canada. I represent roughly 450 families that represent a group of about 2,000 people.
[English]
I am here today because I am concerned that this bill may be passed without full consideration of the wider psychological and social effects that this bill may have on divided families, particularly on the children, but also on the parents who have rights under our Charter.
I am concerned, as are my members, that this bill seems to be based on a reactionary process. I am not a lawyer; I am a teacher. However, I have studied the principles upon which our judicial system is based. From that training, I understand that anything which is based on a reaction, anything that is reactionary, is fundamentally suspect.
Perhaps I go into looking at this bill from a negative point of view, but I have tried to decipher everything I have read and everything I have heard today. I considered myself very fortunate to be able to hear Minister Rock speak earlier, because it certainly compounded some of our concerns.
We are concerned that this bill is based on financial and fiscal considerations that are simply cloaked by the use of the well-worn euphemism "in the best interests of the child."
I have been working in the domain of very hotly contested family disputes since 1990. The words "the best interests of the child" are to be viewed with the greatest of circumspection. I am concerned that the physical and psychological well-being of our children is not considered in this bill, and I will briefly tell you why. I am also concerned that this bill does not fully take into account the issues of joint custody, partial custody and access.
[Translation]
This brings me back to the point that Senator Lavoie-Roux raised earlier today regarding the foundation of our legislation:
[English]
With respect to the foundation of our judicial system, I am concerned that we are trying to regulate something that belongs firmly in the judicial arena and does not belong in the political arena. It does not belong in the area of political regulations, not by any means. What I have heard today from Minister Rock has only served to confirm that in my mind.
I would like to briefly outline that we are working in Canada in most provinces in the traditional judicial process. The traditional judicial process is based on the adversarial system. Unfortunately, the adversarial system encourages what has been spoken about before as alienation. This can lead to severe psycho-pathology in our children. The organization which I run is made up of parents of children whose minds have been seriously affected by adversarial legislation. I believe this bill will further exacerbate the situations which lead to the alienation of our children.
This bill, to me, is far removed from the reality in our streets. I heard the Honourable Senator Bosa say that surely court cases in which perjury and vengeance take place are the exception; I must tell him that this is not so and that in every custody dispute, in every divorce in which I have come in contact, there has been an element of vengeance.
My own organization represents parents whose children have been the victims of extreme vengeance. When I read this bill, I see a sledgehammer in the hands of vengeful people. I do not see the protection that we need as normal citizens, as parents, as mothers, as fathers; I do not see the protection that we need. Our experience has shown time and time again that the system does not work. I do not feel comfortable when I hear Mr. Rock say that he will introduce regulations that can change the bill, which, in itself, calls for a review within five years of its coming into effect. In other words, they are setting out to sea in a ship, but they have no idea which direction it is going in or with what means they will drive it.
Senator Bosa: I would like to add --
Senator Cools: Let her finish. All day long the chairman has been saying, "Let the witness finish."
Senator Bosa: I think you misread the clause, and you know it.
Ms Stuart-Mill: I am sure I misread the clause. I hope I did.
Senator Bosa: If they are to review it within five years, that does not mean that they must go to the end of the fifth year.
Ms Stuart-Mill: I understand that, but the point is that I feel disturbed when I hear a minister of my government say that we can introduce a flexible system which will adapt to the needs as we go along. We work with a judicial system which is certainly not perfect, but it has proven principles. These proven principles are being thrown out the window for something which will be done on an ad hoc basis, without prior planning, without knowing in advance how these guidelines will affect our children. I feel very uneasy.
Our judicial system is based on the adversarial system, which is based on the concept of tort, a minor wrong or a minor crime. Because a tort was involved in every adversarial process, divorce conflicts have always been considered adversarial. They are predicated on the concepts of guilt and innocence, punishment, restitution, a wronged or injured party versus an innocent victim.
I am also president of the Eastern Townships Women's Foundation. It is an organization of women, but I must say, as a woman before you today, that the innocent victim concept has been effectively used by the feminist movement to formulate a great deal of reactionary legislation. I consider this bill to be one of those reactionary pieces of legislation. It is cloaked in the disguise of "the best interests of the children" but it does not necessarily represent them.
I must also agree with Mr. Fox who spoke before me. I, too, have spoken with many attorneys before coming here today, including the attorney on our board of directors. She said that it is actually quite rare to find fathers who are wilfully in arrears; they are the minority. But here we have a majority bill, a sledgehammer with which to hit a mouse, it seems to me.
This bill is based on the concepts of an adversarial system. In Manitoba, and in Quebec particularly, and in the family courts in British Columbia, we are making giant steps to move away from the adversarial concept in family law. The progress that is being made in the judicial system gives us hope that the legislation, which this bill is ill-designed to protect, is being evaluated by the courts. I believe that this is only a supposed solution to a problem which already exists in the courts and is being addressed successfully by the courts, and it should be addressed by our courts and not by our Parliament.
The adversarial system in family law professes to help parents resolve their difficulties, but it has been proven, over and over again, that the more you go into adversarial legislation, the more you alienate the children and the more you create friction.
I can tell you, from my heart, that children who are involved in conflict situations are at risk of being destroyed. When you have a situation in which a mother or a father can lose their livelihood for not paying arrears which are determined by a regulation, if you give me the choice between a regulation and a judge, I will choose the judge every day and say to hell with the regulations.
This bill seems to be based on several naive assumptions. The first naive assumption is that this bill protects the innocent party. I honestly do not see how a bill of such draconian nature can protect the children involved. There is also a great lack of protection to the non-custodial parent here. Just to cite one thing, this bill removes the requirement to submit a notice of intention to garnishee before serving a garnishee summons.
I personally have been a victim of a seizure before judgment. That was in 1991. Despite three judgments of the Superior Court and one judgment of the Court of Appeal, I still do not have a stick of furniture back. There is no reason for me believe in a government regulation that is done without proper notice.
The idea of garnisheeing someone's salary, and even worse, as it is found later on in the bill, garnisheeing their pension, without any limit to the amount that can be garnisheed, to my mind, goes against everything that I came to Canada for as an immigrant. To me it goes against the Charter of Rights, and protection from unreasonable seizure.
I go back to Mr. Fox's comments on the presumption that everyone speaks the truth. That is another naive presumption. I can tell you that people do not speak the truth. Some people who get support cheques tear them up and burn them and then go to court and swear blue bloody murder that they never received them, simply in order to penalize the ex-partner. That happens every day.
There is nothing in this bill, that I see as an unschooled mother and teacher, that protects us from this. As imperfect as our judicial system can be, I still believe that we are better protected in front of our judges than with a bill of this nature.
The other concept which is very worrisome to me is the idea that, by fixing guidelines and regulations to monitor how much money you pay to your child, you are putting the individual parent into a terrible position. I am sure this has been pointed out ad nauseum. What happens, for example, if your child wants a computer monitor for a Christmas present, and you have already paid out your 40 per cent or 60 per cent in child support and you do not have the money. I can tell that you that that is a ripe breeding ground for the ex-spouse to say, "You see, your father will not buy you a monitor for Christmas," while omitting to tell the kid that the father has already deposited a cheque for $1,500 in her bank account.
Speaking from a grassroots position, I see no sense to this. It also puts the children into a position of control with the parent who has custody. I would like to mention in passing that, in Quebec, we are moving farther away from the concept of custodial and non-custodial parents. This bill is a giant step backwards. We have been struggling for 30 years to move the judicial system forward, and away from that concept in our legal system. This bill puts us back into what I call a societal paranoia, where everybody is either good or bad. In a divorce situation, nobody is necessarily good or bad. Even the most unbalanced and vengeful parent can be forgiven. You cannot talk in our society in terms of black and white.
I feel a great sense of deceit as a Canadian citizen to see legislation like this in our community, in our society. I feel it does not serve our needs as Canadian citizens. It does not meet our expectations of our civil rights.
To give you a couple of examples from my own files, apart from the various parents who tear up the support cheques, I recently dealt with a case where a woman had turned on her washer and dryer 24 hours a day to put the hydro bill up so she could claim more support. In some cases, parents feed their children Kraft Dinner for supper while blaming their other "nasty" parent for not paying his or her support cheque, and the child suffers.
The children will inevitably suffer as a subject of divorce, if you have a situation of vengeance and perjury. I am hear today to tell you that vengeance, perjury, untruth and total disregard for the child are rampant. There are ways to solve this problem, but this bill is not necessarily the right tool.
I was deeply concerned to hear our minister say that bits and pieces of paper get in the way. I can tell you that in every single case of family divorce with which I have had to deal -- and I deal only with cases that have the most conflict in our organization -- the court has been able to deal quite effectively with those bits and pieces of paper. It takes time, yes. However, every case is different. You cannot legislate guidelines that will suit everybody.
Minister Rock says you can institute a flexible system that can adapt. No sooner will the flexible system be adapted to one set of problems than another set of problems will pop up. You will have a constant popping up of different sets of guidelines. It will be totally ineffective. Our justice system is a bit of a dinosaur, but it works reasonably well and it is open to being modified.
Another minor issue that some of my parents have asked me to bring to your attention is the item on page 2, where it talks about 18 years of age as being the age of majority. I am sure I am not the only person before you to bring this to your attention. According to Minister Rock, this is an advisory clause where it says that this can be extended according to illness. However, I would draw your attention to the phrase "in pursuit of a reasonable education." Again, Minister Rock says that this is advisory and it can be taken into account. However, this is a rich weapon in the hands of a vengeful parent when a child is being egged on to go to university and egged on to pursue career goals that are beyond that parent's or the other parent's financial limitations. It gives a permanent feeding ground for malice and vengence. The custodial parent can say, "See, your nasty mother -- or your nasty father -- will not pay for your education, and you cannot go to college and be a lawyer because of my ex-spouse." This is totally woolly. It is not clear, and I do not feel comfortable with it.
I object strongly when I hear Minister Rock say that this is the best bill they can bring forward given all the consultation they carried out. I was informed by a member of the Quebec Bar Association two days ago that the le procureur général has been consulted, but there are many lawyers out there who do not agree with this bill and do not feel comfortable with it. I would like to feel that the bar associations have been fully involved and consulted. I would like to know also that the Order of Psychologists and Mediators, the excellent professionals in this field, have also been consulted. I would like to know that our youth protection agencies have been consulted. I would like to hear what our youth protection agencies have to say when Minister Rock says that there is a presumption that the custodial parent will always put the best interests of the child first, and a certain proportion of that person's income will always go to the child. That is just pure baloney. It does not happen, as any youth protection worker will tell you. You must believe me.
I am asking you respectfully to consider the process of consultation, and whether it has been sufficient, whether this bill is well founded and there is protection for the average human being in this bill. As president of P.A.I.N, as president of the Eastern Townships Women's Foundation, as a mother who has lost two of her children through adversarial proceedings, and as a mother who has never yet received one penny in child support, I simply ask you, please, to think twice about this bill. I believe it is a retrograde step, and I do not believe it serves our interests.
The Chair: According to the list of witnesses who appeared before the House of Commons, the Quebec Bar was represented.
[Translation]
Senator Lavoie-Roux: I am pleased to welcome a townshipper.
Ms Stuart-Hill: Senator Lavoie-Roux is well known at home.
Senator Lavoie-Roux: There is a real problem -- whether it be the father or the mother -- where many parents fail to accept their responsibility to pay child support. Even if we try to determine -- and I wonder about this -- whether the bill is truly a bill that will remedy this injustice, and since you have been dealing with this problem for a long time, you know very well that there are people who do not live up to their responsibilities. We could perhaps argue whether the bill is good or not, but it is nevertheless an effort to force people to pay their dues. Do you think that there are any aspects of the bill that should be kept? What would you suggest to resolve the existing problem?
Ms Stuart-Hill: I have three answers for you on that topic. Yes, there is a real problem, but I maintain that the problem is not perhaps as totally widespread as we might be led to believe.
[English]
I do believe that the problem is not perhaps as totally widespread as we might be led to believe.
[Translation]
Secondly, in economic terms, as a women's group, we have done our own analysis, and we find that it does not make sense to pay taxes. Take the example of a parent who earns $100,000 per year and who must pay child support, and who is always the one who is taxed. It is always more advantageous, and there is always more money in circulation in our society if the money is taxed at the lower level, and not at the higher level.
[English]
It does not make sense that the money is taxed at a higher level rather than at the lower level. If some women have been having problems paying their taxes, it simply means they have not been administering their budget properly. They have been paying out money that should have been going to the taxes. They have been paying it out on other expenses. It does not make sense that there will be ultimately less money circulating at the level of realistic revenue in our society because a larger amount of that money will go to the government in taxes. It will be bad for both women and men; we are not too sure of our legal position here, but that is the way it looks to us when we read this bill. It certainly sounded like that from Mr. Rock.
[Translation]
There are also some very simple ways to help solve the problem of deadbeat parents.
[English]
With the computerization of Revenue Canada and Revenue Quebec records, there exists the possibility of modifying the existing system without having to go with along the draconian measure of introducing this bill. You can quite easily ensure that there is a mechanism whereby federal income tax returns are subpoenaed. You can find a person through federal means. There is a need to enhance these mechanisms, but I do not believe the need is to go as far as this bill goes. We must work within the legal system as it already exists.
[Translation]
Even if there are some weak points in the current system, there are ways of being more efficient without being hit over the head with this.
Senator Lavoie-Roux: I have a question that I have not yet raised, and perhaps I should have raised it earlier. It deals with the concern I have about telling people that everything is okay, that measures are being reinforced to ensure that deadbeat parents pay, et cetera. Since it is becoming quite demanding, could this not increase violence against women?
Ms Stuart-Hill: Absolutely. This is a bill that is violent in itself, in that there is not enough recourse for the person who is blamed for the situation. I see it as promoting violence in our system. In Quebec especially, we have gone to great lengths to move beyond this adversarial system. I feel this bill is conceptually violent.
Senator Lavoie-Roux: People have to pay their dues, but we have seen such an increase in violence between men and women -- and particularly violence by men against women -- that when they feel trapped, will this not lead to more violence?
Ms Stuart-Hill: Yes, I agree with you entirely, Senator Lavoie-Roux. I am very happy you raised the issue. I did not want to raise it myself, because it is perhaps not my place to do so, but we have to be very much aware of the potential for violence. Violence is born of poverty and despair. Violence results from the despair people experience when their salaries, or perhaps their pensions, are garnisheed, when their lives are destroyed. And as a society, we in Canada must take steps to move towards a -violent society.
Especially in Quebec, there is a major difference in the ideas held by Quebec and the rest of Canada in this respect. I find that our work in Quebec involves a lot of values.
[English]
Senator Lavioe-Roux: Madam chairman, have the youth protection agencies been heard in the House of Commons? What do the psychologists and mediators think about this bill? You probably do not have the answers, but perhaps someone can find that information for us, because their people are involved with this issue all the time.
The Chair: Senator Cools, do you have a question? No preamble, now; just questions.
Senator Cools: Why don't I pass on saying anything at all! I am tired of this.
Ms Stuart-Mill, could you give the committee some insight into the behaviour of children who are trapped in these vengeful and nasty situations, including children who begin to lose senses such as hearing and sight because they simply cannot cope with what is going on around them?
Ms Stuart-Mill: I will be brief. However, when I address McGill University, for example, this is something that I do in a day, not in five minutes.
The biggest problem with our adversarial system is the concept of black and white, right and wrong, good and bad, and blame and innocence. When you have legislation or a situation entrenched in our laws that creates the concept of one person being full of blame and the other person being innocent, the child is brought into what we call an alienation situation. I have lived this. I work with parents who live it all the time. The child becomes alienated from one parent by the other parent. In this situation, it is generally the custodial parent. It is very often the mother, but it also can be the father, such as in my case, who takes the child and embarks them on this confrontational legislation route to the point that these children turn totally against a parent. If the youth protection agencies have been consulted, they will surely have mentioned the psycho-social aspect of this legislation and the effect this legislation could have on those children. It turns them totally against a parent.
When you have a child turn totally against a parent, you have a child who becomes, in essence, paranoid. When the child becomes paranoid, he or she loves everything associated with one parent and hates everything associated with the other parent. The world becomes black and white. The world becomes one parent and everything that is good, and the other parent and everything that is bad.
With this bill, we are not only bringing this situation to the surface, but we are entrenching it in regulations. These regulations will be revised within five years, and we do not know whether we will revise them next week or next month. It is absolutely horrendous.
These children are psychologically damaged so badly that they lose every sense of reality. The real consequences are depression, alcoholism, drug abuse, total disorganization, a total lack of ability to cope and a total lack of ability to cope with the grey world we live in. We do not live in a world where everyone is right and wrong and everything is black and white; we live in a world where everyone has weaknesses, but they do learn to live in a world of tolerance.
Senator Lavoie-Roux asked me about violence. We are talking about the violence that takes our children and destroys their minds. It not only destroys their minds but does it legally. I beg you to reconsider this legislation.
[Translation]
Senator Losier-Cool: Are you aware of the Quebec's Bar position on the guidelines?
Ms Stuart-Hill: No, because I spoke with the representative in the Sherbrooke region, and she was completely unaware that the bill had reached the Senate.
Senator Losier-Cool: Madam Chair, you said that the Quebec Bar appeared before the committee, so we could perhaps be informed of their position.
Ms Stuart-Hill: But remember that we had a major problem, in that we did not have much time to prepare for our presentation here today and that I only had time to talk to a few lawyers, but those with whom I did speak were all opposed to the legislation as it stands. But I could not say more than that.
Senator Losier-Cool: I think that the Quebec Bar preferred the federal guidelines over the Quebec guidelines, and that is the position they adopted in committee.
Ms Stuart-Hill: Then I do not dare say yes or no.
[English]
The Chair: Do you know Miriam Grassby?
Ms Stuart-Mill: Yes, I do.
The Chair: She represents the Quebec Bar Association and appeared before the House of Commons committee. Do you know Dominique Goubault?
Ms Stuart-Mill: No.
The Chair: Do you know Suzanne Vadeboncoeur? She is director of research and legislative services.
Ms Stuart-Mill: We have not had the time to adequately prepare all of our different information.
The Chair: Are there further questions, honourable senators? If not, I would thank the witness very much for giving us her time today.
We thank you for your presentation. You have enlightened us with respect to the other side of the aspects of this bill.
Honourable senators, we must now decide if we will hear more witness and what we will do with this bill. We must make a decision before we leave this room.
Senator Cohen: Madam Chair, this is a very difficult bill. We all realize that. One of our witnesses said that parts of this bill are as hard to read as a tax bill. Many of us around this table are not legal minds. We have heard emotional and thought-provoking testimony. We heard valid and intense arguments which left many question marks in the minds of some senators. I felt as though I were on a roller-coaster. I was attracted to one argument, and then I moved to another position.
We all want to deliver a bill that is in the best interests of the child, as the minister mentioned this morning.
We have had eight days of hearings, which I personally feel is not enough. We have 50 witnesses waiting to be heard. Yesterday morning, I know that 41 calls came through the office of our chairman alone. There are other jurisdictions that we have not heard from.
In view of all of this, and in order to satisfy many of us sitting around this table, I move:
That Bill C-41 be not now reported and that hearings resume after the Christmas recess.
Senator Jessiman: That is a good idea.
Senator Phillips: Yes, a good idea.
The Chair: Honourable senators, you have heard the motion. Are there any questions?
Senator Jessiman: May we speak to the motion?
The Chair: Certainly.
Senator Jessiman: I am learning more about this issue each day. I have read a lot of the testimony. I see some merit in this bill, but there are other important issues within the bill to be dealt with as well. If we cannot delay this bill, I have some amendments to put forward. However, given the proper time, I think we can work these things out. I believe these guidelines must be changed somewhat. I think probably one or two sections of the act should be repealed, but we might even work that out later.
Senators, we have a responsibility. According to my information, we have been sitting for only six days. The bill came to us in committee on December 4, and here it is December 12. That is eight days, but I think we have only held six hearings.
Senator Cools: We have only had four hearings.
Senator Jessiman: At any rate, I know that many of you on the other side think that I just want to throw this bill out completely. I do not. I believe this is a very important bill.
I know a number of people who will be affected by this bill. I am not saying that the guidelines are wrong; I think guidelines are a good thing. I think the amounts are not that bad. I even understand the tax part of it. It is still a tax grab -- we all must understand that. The separated couples of Canada will have what the Canadian minister told us. The money he gets from the poor is being taken from the families of those children. They will have less money, but that is the will of the Commons. We must accept that.
However, I think we should study the bill more. We should spend another week or two weeks to get the right people in here. I should like to hear from representatives of the Canadian bar. I know they went before the House of Commons committee. I read their material. I should also like to talk to representatives of the Quebec bar. I should like to understand. We would be better off following the lead of Quebec. We may end up with the same guidelines.
In short, I am in favour of the motion.
The Chair: Does anyone else wish to speak to the motion? Are there any questions? If not, I will put the question.
Senator Bonnell: Are we all prepared to return between Christmas and New Years?
Senator Jessiman: I am prepared to come back in January.
The Chair: Order, please!
The motion is that the bill be not now reported, but that more witnesses be heard after the Christmas break.
Is it agreed, honourable senators?
Some Hon. Senators: Agreed.
Some Hon. Senators: No.
Senator Bosa: Senator Haidasz, I think that you probably misunderstood the question.
Senator Haidasz: No, I am ready to come back between Christmas and New Years. I will come back then.
Senator Bosa: That is not the question.
Senator Cools: Yes, he said after Christmas.
The Chair: After the Christmas break.
Senator Haidasz: I agree with Senator Jessiman's request.
Senator Bosa: Senator Haidasz --
Senator Cools: This is improper!
The Chair: It is seven to four. The motion is carried.
The committee adjourned.