Proceedings of the Standing Senate Committee on
Social Affairs,
Science and Technology
Issue 18 - Evidence - Morning meeting
OTTAWA, Tuesday, January 28, 1997
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 8:40 a.m. to give consideration to the bill.
Senator Mabel M. DeWare (Chair) in the Chair.
[English]
The Chair: Our first witnesses are from Saskatchewan. The Saskatchewan Department of Justice is way ahead of the rest of Canada with regard to child custody. We particularly wanted to hear from you because you sat on the federal-provincial task force, and we are interested in how the provinces and the judicial system have responded to it.
Ms Betty Ann Pottruff, Q.C., Co-Chair of Federal-Provincial Task Force on Implementing Guidelines, Saskatchewan Department of Justice: Thank you very much for taking the time to hear me. I look forward to your questions and to some discussion on the issues which I know have been raised with the Senate committee.
I will speak from three different perspectives, the first being a personal and professional perspective as a lawyer who has practised family law for many years as part of my public law career with the Government of Saskatchewan. As well, I have been a member of the Federal-Provincial-Territorial Family Law Committee since 1981. I am also co-chair of the task force on the implementation of the child support guidelines.
I will provide you with personal comments, some perspectives from the Government of Saskatchewan and some insight into how we are trying to work with the guideline implementation through the task force.
From the provincial perspective, Saskatchewan is very concerned about the welfare of Canada's children. I have brought with me copies of documents. I apologize for the fact that they are only in English. They comprise Saskatchewan's Action Plan for Children. This process was started in 1993. We developed a broad document about the needs and requirements of children and how we might move forward to better protect children in Saskatchewan. The documents contain a number of broad statements of goals and beliefs about what needs to happen to protect the welfare of children.
In fact, Saskatchewan is conscious of the need to have a national dialogue on a similar framework; how to have a broad discussion on the needs, welfare and protection of children in society.
This is relevant to child support guidelines in that we give an annual update of what we intend to do for children in Saskatchewan. One of the inclusions for 1996-97 is the recognition that the facilitation of child support guidelines is in the best interests of children and consistent with the child action plan in meeting the goals for valuing children as well as for ensuring their economic security.
From the task force perspective, all jurisdictions are working very hard on implementation. We are working hard to find concrete ways to assist the public in adjusting to a new regime under child support guidelines. All jurisdictions are conscious that change will require significant shift in perspective and approach for people who already have awards, as well as for future awards.
There is a need for jurisdictions to study training, public education, information, how to support individuals to lessen the need to use the adversarial process to resolve their disputes, processing cases in systems in order that we can deal with them expeditiously for the benefit of the parties and the children, and what we do about enforcement with regard to not only implementing the federal enforcement changes but also improving our own systems.
Very broad dialogue is taking place within the task force, and each jurisdiction has its own model through which it is trying to address those issues. It will be a positive exercise in terms of moving forward to develop better support services to help families and children.
In terms of the current situation on child support guidelines, the research and information provided by the federal-provincial-territorial task force, as well as the family law committee, indicates that there are problems with adequacy, consistency, predictability and equity in existing child support initiatives. I have looked at this area from the perspective of what is happening in Saskatchewan, the numbers that we get for child support under Legal Aid, the maintenance enforcement system, and what we see in our tax returns. All those areas confirm that inequity, unpredictability and inadequacy exist.
There have been pockets of improvement over the past 10 years. Because of some good counsel and a judge who takes a particular interest in the issue of child support, more adequate awards have been made. However, the average award is still around $225 to $250 per month irrespective of the number of children involved. That is simply inadequate to raise a child. In cases where there is not sufficient money, obviously the award can not be more. However, in many situations the courts and parties do not have adequate guidance in terms of what is a fair child support award and what are the actual costs of raising a child. Child support guidelines can and do provide that sort of objective information and would therefore be positive in terms of dealing with the level of awards as well as consistency and predictability.
That was the attitude that helped guide the federal-provincial-territorial family law committee in looking at this issue. We considered what we could do to better meet the economic needs of children.
Enforcement is an important issue. We have made advances on enforcement in Saskatchewan, as have other jurisdictions. However, enforcement cannot help where the order is inadequate to begin with. You have to deal with the root cause of the problem, and that is inadequate orders.
We must look more broadly than financial issues. We must recognize that inadequate child support leads to a decreased standard of living for the child which not only affects their day-to-day living, be it the opportunity to play hockey or to pursue other educational opportunities, but also their self-esteem and feeling of self-worth. Through inadequate child support, we are detrimentally affecting the opportunities of these children to contribute to Canadian society. We are also detrimentally affecting the public purse because where there is inadequate child support, too often the custodial parents are left in poverty and become public charges.
Inadequate child support leads to tensions between the parents and between the parents and the children, because if the children are not receiving adequate support, they feel that they are undervalued by the other parent. Trying to resolve child support issues can be a positive influence on relationships in the family; between the spouses and between the child and the parents, and help to promote the child's sense of self-esteem and self-worth.
Child support guidelines do provide a method for more adequately determining the actual costs of a child and how to apportion those costs between the parents.
In Saskatchewan, since the release of the report in 1995, child support guidelines have been used by the courts, the bar and the public. They are being used on an advisory basis now, as they are not currently law. I have had consultations with members of fathers' rights groups, mothers' rights groups, the bar, and the judiciary on their attitude toward the philosophy behind child support guidelines and their implementation. By and large, those consultations have been positive. People are looking for some certainty -- some standard that is objective and understandable. The majority of parents do not want to fight about the issues relating to child and child support. The majority of parents are responsible individuals. They want to do what is right for the children. However, they need some guidance and assistance, and they need an objective standard to help them.
We have found that the courts are following the guidelines. My colleagues in the profession, as well as members of the judiciary, advise me that they are settling at least 50 per cent more cases, simply on the basis of the guidelines. They seem to be acceptable to a large majority of people.
There will be those cases where there are other issues, whether they be within the Divorce Act, exceptional circumstances or undue hardship. Those will be the hard cases. However, the majority of cases in the family law system settle outside of court. The guidelines give the parties one more way to find some common ground for discussion and settlement.
Therefore, guidelines can be of real benefit in terms of reducing tension between the parties and helping to facilitate reasonable debate and resolution, mediation and the non-adversarial process. That is all positive because it eliminates one bone of contention, the economic one, and they can concentrate better on custody, access, and parenting issues. They no longer are skewed by the discussion on financial matters. On the broader basis, it is my fond hope that that will become commonplace and we will see parents concentrating more on what is in the best interests of the children and how to resolve those issues. That process has a positive benefit for the children in that they are not exposed to the tension and debate between the parents. As well, they see that there is a common acceptance between the parents of what is required to support them, that they are valued and that there is a commitment to that ongoing relationship.
I will not go over the issues mentioned in my brief at any length other than to give you a quick summary. A concern has been raised within this committee about whether, by the drafting of the legislation, the joint responsibility of parents to support their children has been somehow diminished. It was never the intention of the federal-provincial-territorial family law committee that there be any change in the common understanding that it is the responsibility of both parents to support the children. That approach is implicit within the guidelines themselves and it continues to be the case.
The preamble to the regulations, which I believe you have seen, contains a reference to the objectives of the guidelines. That preamble deals with joint parental responsibility to support the children. If there is a need to enhance that message to the public, then that is a worthwhile endeavour to bear in mind. There is no expectation that child support guidelines will in any way detract from the joint responsibility of the parents.
Joint physical custody of the children is a very tough issue in terms of the standard to set when you vary from guidelines. The family law committee report had suggested 40 per cent. In subsequent consultations, members of the bar in Saskatchewan indicated that that level was too low because it would encourage litigation when perhaps litigation was not necessary. You do not want to litigate about custody and access when it has more to do with economics. You want it to be about the best interests of the child. The federal guidelines now deal with equally shared joint physical custody. It is a difficult line. We need experience with this area to be able to see whether another solution is possible. It is a cautious and appropriate approach to try to reduce the potential of litigation.
In terms of custody and access costs in particular, there have been concerns from fathers' rights groups and others about the need for guidelines to more adequately reflect the increased costs of access. That was a very difficult discussion for the family law committee. We recognize that there are increased costs for split families. It is a natural consequence of the dissolution of the family. These costs are borne both by the access parent and by the custodial parent. Child support does not accommodate all the costs the family incurs, and there is a need to look carefully at how to balance those remaining costs.
The family law committee tried to do that. When we looked at the access costs area, we had to balance it with other side of the argument from custodial parents, that there are many non-financial costs that they were required to contribute, from loss of career opportunities to all of the hours that they spend in supervision and generally with the children. There are costs on both sides.
The approach that has been taken in terms of recognizing exceptional access costs as undue hardship is that they must be borne by both sides. It is simply the cost of the divorce. We will, however, learn from the experience of the guidelines whether that is acceptable. All jurisdictions are willing to review the experience of the guidelines and to adjust in a way which will ensure that parents facing these difficult decisions of family breakdown are able to deal with them rationally and reasonably and are accommodated. There is a willingness in all jurisdictions to look reasonably at the impact of child support guidelines and at the broader issues of custody and access.
The table approach, the guideline approach, is helpful to the general public. They want that objective standard. They want something they can use simply. For example, they can look at their income and then at the table for two children, and there it is. That is helpful to the negotiations. I have had numerous phone calls from members of the public asking, "Here is what my income is. What does the table say?" We talk a little about why it is as it is, and the general response from non-custodial and custodial parents alike is, "Okay, I can accept that." The non-custodial parent may say that it seems a little high; the custodial parent may say that it seems a little low. However, they are prepared to meet in the middle, and they find that the guidelines give them the opportunity to do so.
The age limit in the guidelines of 18 for raising a child and the discussion of ongoing support for children in post-secondary education simply confirm the existing case law and practice. It is a concern in that we do not tell families what they are supposed to spend on their children. We do not say that families must support their children in post-secondary education. We do not do that for intact families. However, we do interfere through the courts when families split because it is at the time that the family separates that the children are most vulnerable to not having an equitable arrangement made for their financial circumstances. That is not only the case with regard to their age of minority but also post-secondary education.
I am aware of a study done in California which looked at the situation of first and second families. It found that generally second family children did receive support through post-secondary education and first family children did not. That is a natural situation terms of who you are living with and who you are supporting, but it does beg the broader social policy response of what is equitable for children. Should those first family children be denied post-secondary education because of the divorce of their parents?
In conclusion, I suggest that child support guidelines do offer an adequate approach to dealing with some of the difficulties in the child support area. They are not without their difficulties and their flaws. No one on the family law committee is presumptuous enough to think that we have got it right.
I will share with you the one joke I tell the bar when I am trying to explain the guidelines. It took us from 1990 to 1995 to produce the report. That is equivalent to the gestation period of an elephant: It is long and difficult and when the final product comes out, it will have a few wrinkles. I am sure that we will find that to be the case as we experience the guidelines.
Generally, our experience with the guidelines in Saskatchewan has been positive and they have been well accepted. I suggest that the broader issues of custody and access and how we support the well-being of children in Canada requires national debate and it is one in which Saskatchewan is more than willing to participate. I would encourage you to think about it in that context.
The fact that we do not have everything right in the areas of custody and access should not stop us from moving forward to deal with one area where we do have some answers, that of child support.
The Chair: Why did the committee decide to use the term "guidelines" instead of "regulations"?
Ms Pottruff: I view them as guidelines. They are clearly regulations in terms of the format in which they have been put into legislation. However, they are recognized in common terminology as guidelines.
The Chair: Have you found that this particular term has misled the ordinary citizen in any way? Do they feel that guidelines are less able to be enforced than regulations?
Ms Pottruff: No, that has not been my experience, and perhaps it is because of how we explain them. We have always explained that they are presumptive guidelines, that they are in fact law and that is how they will be applied.
The Chair: Did your committee deliberate on what will happen once the guidelines are put in place? What happens to the other families who already have court orders? Will this cause more litigation? Will they open up these cases to correspond with the grid?
Ms Pottruff: That is one of the major concerns with the implementation process. We realize that the majority of orders out there will be impacted one way or another, either by the tax change or by the guideline amounts. We need to do the most we can to try to reduce the tension, trauma and anxiety that will result. That would have been possible had they been prospective guidelines. That would have been a difficult decision to make because it would have meant that some pre-guideline children get a lower amount of support than children post-guideline.
The Chair: You are then discriminating.
Ms Pottruff: That is right.
Senator Cohen: You mentioned that it is implicit in the guidelines that both parents are financially responsible for their children. I do not understand why it was taken out of the original bill when that is far more binding than something that is in guidelines and is implicit or inherent. Those are very loose words. I cannot understand why that area was not left as it was in the original bill. That puzzles me.
Ms Pottruff: I will try to give you an answer. Obviously, I am not privy to the federal discussions during drafting. It is probably simply a matter that appeared so self-evident to those involved in the drafting that they did not realize that the change would be perceived as negatively as the committee has indicated. It is, once again, addressed in the preamble to the regulations.
Senator Cohen: Personally, I find that to be a weakness.
You talked about inadequacies in the bill. We know it is not a perfect bill. We know it has taken five years to come to this point. That is why we wanted to extend our hearings beyond just four weeks. I like the idea of a national debate because it is far from perfect.
You said that an allotment of $250 per child is inadequate and that, down the road, it does impact on the public purse. I do not think you need to worry about the public purse because the changes in income tax will make that purse bulge at the expense of the children and the benefit of the children in divorced families. Next to the gun bill, I have had more letters about this bill than anything else since I have been in the Senate. The big reason for the resounding cry is the perceived tax grab and that the money will be spread across the board to look after all poor children. That is another question mark. Those two areas really concern to me.
Ms Pottruff: Which part of those issues did you want me to address?
Senator Cohen: I would like you to talk about the income tax. On the one hand, we are decrying the inadequacies for the children. It should be revenue neutral and it should be left for the children because everyone is so concerned about the best interests of the child.
Ms Pottruff: There are two different issues here. The first is the inadequacy of support. Child support guidelines, according to the evidence and research and my own analysis, will lead to an increase in awards and the transfer of resources from the non-custodial to the custodial parent. That is positive.
What happens with the government portion of what was previously the tax subsidy? The federal government has indicated what it intends to do with its perceived portion. The provincial government in Saskatchewan has not yet clearly identified how that matter will be addressed, partly because it is an uncertainty. Tax recovery only happens when all the awards are changed. We have at least two years of dealing with the current awards and the variations to see whether that tax subsidy reduction happens.
There is an opportunity for individuals who currently have an award to stay under the existing tax regime if they feel it is beneficial to the family unit. Many lawyers are now dealing with their clients in terms of their future situations. It is far from certain what that tax subsidy recovery will be. We need to experience the actual implementation of the guidelines to figure it out.
At the provincial level, clearly there is more money through initiatives like the child action plan. One of the inadequacies of the existing tax regime is that it only provides these benefits to non-intact families. It is not targeted to children most in need. In fact, the subsidy increases with the income level of the families. That does not seem to be a wise social policy response.
There are two issues. There needs to be a greater transfer of private resources to support children. We need to ensure that the resources recovered are directed to children. That is an uncertainty. We need to experience the legislation to determine the level of recovery.
Senator Bosa: Senator Cohen referred to a tax grab because the contribution made by the non-custodial parent is not tax exempt or, as you say, it is not a deductible expense. If we look at the other side of the coin, can families who are not divorced and who have small children deduct their expenses for child support?
Ms Pottruff: No.
Senator Bosa: Then it is not discrimination against the non-custodial parent if the contribution of the non-custodial parent is not subject to income tax deduction.
You were talking about education and you said that families where the parents are together are not compelled to send their children to post-graduate education. You also mentioned case law. Where does case law come into this equation? Do you mean that the bill is not enforceable or can be challenged?
Ms Pottruff: When I refer to case law, I am referring to how the courts have dealt with the provisions of the Divorce Act in terms of the children of the marriage. They have now generally recognized under that definition, which includes children who cannot remove themselves from dependency that, in fact, support continues on into post-secondary education for children 18 and older. The existing case law recognizes that there can be a parental responsibility to support children beyond age 18.
Senator Cohen: With regard to adult education, should there be a cut-off time? Do you have to pay when in you are in your 30s and 40s? One witness made the point that if they wanted to adopt a child they would not be able to because they are past the age of majority. Yet cost of education to the non-custodial parent could be ongoing.
Ms Pottruff: That is a very reasonable question. It is one that the courts face as well. Clearly, there has to be a time when a child is no longer dependent upon the parents, when they become fully responsible for themselves. A rule of thumb in the courts it that a child becomes a non-dependent somewhere in their early 20s, maybe after their first degree. The courts would be reluctant to look at anything beyond that.
There comes a time for bridging young adults into the workforce, a time when they have the capability to contribute. The courts are prepared to recognize that there is some responsibility there.
Senator Cohen: Do you think that view with regard to post-secondary education should be reflected in a regulation or guideline? Not all judges use the same discretion.
Ms Pottruff: It is a variable situation. That is why the guidelines are suggesting that, in fact, it be one of the areas of judicial discretion. The case law helps, but it is individual in terms of the capacities of that child? Are they able to get bursaries and awards or are they the sort of individual who needs more help? Is there an economy in that area where the child who is now a young adult can get a job, or are there no jobs for people 18 to 24 in that area? It has to be left open so the courts can assess the practical thing to do in those situations.
Senator Bosa: Does it mean, then, that in a given case the custodial parent or non-custodial parent can challenge the decision in the courts? In other words, this discussion is not mandatory?
Ms Pottruff: No, it is very much an individual debate and decision in terms of what is reasonable in the situation.
Senator Cools: Two quick issues that I would like you to qualify. I do not think there is anyone who disagrees that parents have a moral responsibility to assist children with post-secondary education. The question is: Why do you think that responsibility should be statutory, which is the case with Bill C-41?
What was that, Senator Maheu?
Senator Maheu: That is another subject.
Senator Cools: We were talking about education post-16 years of age. Is that not what your question was about?
Do we have a new chairman, Madam Chair?
The Chair: Go ahead.
Senator Cools: No one would disagree with that. The real issue is whether the responsibility should be a statutory one or a moral one. Why do you propose it should be a statutory one?
Ms Pottruff: I would suggest that it is already treated as such by the courts.
Senator Cools: It is not.
Ms Pottruff: Under the current definition in the Divorce Act, the courts deal with it as an ongoing obligation. The change here clarifies the case law. I do not think it is a change at all.
Senator Cools: From my reading of the current Divorce Act and this proposed amendment, it is a profound change.
The second question is: What are your views in the instance where such subsidy is provided? Should that be a question of child support or should that be an issue of a direct agreement between the adult child and the parents? Perhaps it should not be child support at all.
Ms Pottruff: It is certainly possible if they decide that they do not want to deal with the issue as child support.
Senator Cools: Would you agree or do you support a law reflecting that fact?
Ms Pottruff: I think it already does. I do not think there is any need for there to be a change.
Senator Cools: Bill C-41 proposes to change the Act. I am speaking to the proposed change. So we should not change it, is that what you are saying?
Ms Pottruff: Leave it as it is. Those arrangements can be accommodated under the proposed wording of Bill C-41. You do not have to have an order that says it is paid to the custodial parent. It can be paid directly.
Senator Cools: That is not my point. The current Divorce Act, as separate from Bill C-41 which would amend it, allows parent to contract with the child to send that child into post-secondary education, clearly. What I am trying to get at is why does Bill C-41 propose to change that, to more or less ensure that such payments will be paid by the non-custodial parent? That is what I am driving at.
Ms Pottruff: My argument is it does not change that situation at all, that it simply clarifies what the case law currently sets out. However, it is still a discretionary decision between the parties as to how they want to arrange those decisions, or if the matter is before the court, what the court feels is reasonable.
Bill C-41 does not change in any way the existing practice of whether the court will order support for post-secondary education for children who are post-18 years of age or the individual parties will arrange to make payments directly to the child.
Senator Cools: You are suggesting that it is not a change. Unless I am reading the bill incorrectly, paragraph 1(2)(b) refers to the age of majority and then to education which it describes basically as a disability. Are you telling me that is not a change?
Ms Pottruff: It is a legislative change; it is not a change in practice. The courts are already making these awards. This clarifies the law to recognize that practice.
Senator Cools: So it is a legislative change. I am getting confused as to whether or not it is a change. The mere fact that the bill refers to it as an amendment to the act suggests that it has to be a change.
Senator Losier-Cool: Ms Pottruff, on time limits, time lines and guidelines, how important is it for the other provinces to put into effect those guidelines by May 1?
Ms Pottruff: It is important that we have some certainty for the public as soon as possible. We are in the midst of trying to implement a national plan, as I indicated. We are doing our planning provincially. We are moving ahead, recognizing that the tax changes will come into effect May 1. The changes will stimulate at least half of the activity in variations.
It has always been the concern of the jurisdictions that if we do not bring in the child support guidelines and the tax changes at the same time, we will cause massive confusion and anxiety for the public. In fact, there may be people who will be forced to return to court for variations rather than having them dealt with at one time.
While I appreciate the Senate's concern and the questions on this area and this review, the delay in having the legislative package confirmed is a real concern for the jurisdictions. I know it is a concern for the public who, while they appreciate the legislative process, do not always understand why it takes so long to get things done to establish the certainty they need to move ahead with their arrangements.
Senator Forest: I have one other question, but first I want to go back to what you are saying on the previous matter of post-secondary education. I have had quite a few letters from non-custodial parents who already are in a situation where they are having to pay for a first and second degree through an order of the courts. They are very much concerned about that.
My other question is regarding the amounts payable in the guidelines. They have been based on the income of only the non-custodial parent. I believe you say in your brief that there is a downside to using both incomes when setting these amounts. Can you expand on that? Why is only the one income considered rather than both?
Ms Pottruff: The guidelines are set within the context of both incomes. They are based on what the average family spends at certain income levels on the children. That establishes the cost of children. You then look at the payer's income and assume that the custodial parent has similar income, so your pot of money is not just what the non-custodial parent makes. It is actually the larger pot, the assumed pot of how much is in that family unit. Therefore, you are looking at both incomes. However, the tables are based on the payer's income. By doing that, you cushion the award to the child because, in general, the payer has a higher income than the recipient. It is still a pool of family resources that is considered. You are only using the payer's income to find the level in the table at which you will actually tie the assessment. You only have to look at one party's income to make the determination, and that makes it much simpler for people to use the tables.
Senator Forest: In the mountain of material I have received are some cases where the payers are concerned and unhappy about what judges are presently awarding in terms of post-secondary education.
Ms Pottruff: The implication from your question would seem to be that we continue with the present approach where the courts consider both incomes. Certainly, that approach has the attraction that people can understand it. They can see the figures in front of them. It has the disadvantage of fostering additional paper and further dispute between the parties. Nor does it result in awards that, on average, are much different from those that would arise from the simpler process we are proposing.
Senator Forest: My reading of the material showed a considerable variation in awards in what would seem to be quite similar situations.
The Chair: Do you have any questions, Senator Maheu?
Senator Maheu: What I wanted to ask has already been covered.
Senator Cools: My questions have to do with the use of the term "guidelines" rather than "regulations.".My personal view is that it is quite manipulative, and even a bit deceptive, to be using the term "guidelines" when it really means "regulations." We were told that many jurisdictions have adopted such guidelines. I wonder if you could share with us which other jurisdictions are using the regulatory methodology to deliver guidelines.
Ms Pottruff: I am not sure whether I can address your question exactly as you have put it, because I am not familiar with the U.S. legislation, although I have looked at it. The U.S. legislation requires that states incorporate guidelines in order to qualify for welfare payment sharing, and so on. My expectation and belief, then, is that the U.S. measures are in regulatory form. Whether they are in regulation or statute form, I am not entirely clear.
The British approach is legislation. Once again, it is my belief, from what I have seen in the material, that while the actual amounts may be determined by regulation, the scheme is supported in legislation. I have not done the type of in-depth comparison that allows me to answer your question fully on these points.
Senator Cools: Madam Chair, could we get some sort of an answer on that? We have asked that question of several people, including the Minister of Justice, and the answer seems to be very muddy. We are told that these guidelines are really quite commonplace, but could we find out for sure how many other jurisdictions are in fact using instruments of this type, which is basically delegated legislation?
The Chair: Do you think the Department of Justice would have that information?
Senator Cools: I have asked them for it.
The Chair: They will be before the committee tomorrow.
Senator Cools: Hopefully we can get it.
The Chair: Perhaps we could call them and ask them to make that information available to us when they come.
Senator Cools: They keep asserting that this process has been accepted in most jurisdictions.
The minister has told us repeatedly that judicial independence is a sacred cow, and on another occasion he upheld the ability of the judicial councils to declare on many of these issues. The question I am asking is: Why have we taken this extraordinary route of using these guidelines, these instruments, to remove judicial discretion and to instruct judges on what decisions to make? From what I understand, this is really quite extraordinary. I am told that judges in some jurisdictions are ignoring the guidelines anyway, especially in those jurisdictions where they do not have the force of law. Why have the Department of Justice, the people who work in these fields, and the judges themselves through their instruments and associations, such as the judicial councils, not come together to speak to the issues and perhaps develop their own guidelines? Why is it that the executive is dictating to the judges the kinds of decisions they can make?
Ms Pottruff: I think research and experience indicates that these decisions have tended to be made on a case-by-case basis, and that leads to significant inconsistency and unpredictability of awards. Judges obviously bring their knowledge and their views to the job but a broader review and a common approach to determining the cost of what is required to support children serves a very strong educational function for the judiciary, for the parties and for the public in terms of what is reasonable child support. That commonality, that objective standard, that broad approach were lacking, which made consistency and predictability difficult to achieve.
The family law committee looked at whether or not we could achieve consistency and predictability by education of the judiciary, by advisory guidelines that would be more educative or by presumptive guidelines. The feeling was that the situation really could not be addressed adequately without presumptive guidelines, that the information for the costing approach was adequate. It was felt that to provide that level of predictability, you needed presumptive guidelines. The advisory or educational approach could be used but the results of that approach would probably take 10 years to see. We would have to wait 10 years to see whether people had accepted the guidelines and were using them properly, versus something clear and certain at this point in time that would guide decisions from here on. It was a discretionary call.
Senator Cools: Since this instrument has been so employed, what has stopped cabinet from using this same instrument in other circumstances, such as in the criminal law?
Ms Pottruff: I am not qualified to say what the federal cabinet might do at any given point.
In criminal law, jurisdictions in the U.S. have sentencing grids. There have been other processes where governments have seen fit to be more direct on how they want discretion applied.
Senator Cools: The whole area of family law appears to be under constant pressure with all of these experiments. I am told that the family law act of Ontario has been amended more times in the last 15 years than any other piece of legislation. There appears to be a presumption that with family law we have more freedom, especially when we discuss what is in the best interests of children. You must admit that this is pretty fertile ground.
Ms Pottruff: Family law is very fertile ground for change for a number of reasons. One of them is that demographics and constituencies of families have changed dramatically over the last 50 years. We are trying to catch up family law to where families are actually at today.
Senator Cools: Since you say that we, they and you have consulted widely on these guidelines with the bar, the interest groups and the public, what consultations have taken place with judges?
Ms Pottruff: I cannot speak for all jurisdictions, but I met with the judiciary in Saskatchewan on a number of occasions to talk about the guidelines. Generally, there has been a certain level of welcome acceptance for an approach that will bring some objectivity to their job. Contested cases and litigation in family law are very difficult because you are trying to make Solomon-like decisions much of the time. The more consistency and support the judiciary has, the more they welcome it.
Senator Cools: When you consulted with the judiciary in Saskatchewan, with whom did you consult?
Ms Pottruff: It would depend on the occasion, but I met with all members of the Superior Court on at least two occasions.
Senator Cools: Did you meet with them individually?
Ms Pottruff: We met as a group. I also had individual sessions.
Senator Cools: Have they supported this?
Ms Pottruff: They have acknowledged that there are benefits to this approach.
Senator Cools: Do you have anything in writing or any record of the expression of this support to share with us?
Ms Pottruff: I do not think the normal relationship between the government and the judiciary is to ask them for anything in writing.
Senator Cools: It is quite normal. We see it here all the time, do we not?
Madam Chair, perhaps we could canvass to what extent the judicial councils or the organs of the judiciary in this country have been consulted as to their opinions on orders from the executive.
Senator Forest: We received a paper from a retired judge, Kenneth Halvorson. His commentary speaks to the use of guidelines in Saskatchewan. He says there is an increasing acceptance of the principle of fixing support as a percentage of gross income. There was evidence, as well, of endorsement of the principle by litigants. The thrust of his presentation was that the child support guidelines had been used indirectly by the Court of Queen's Bench for Saskatchewan since the summer of 1995, with favourable commentary.
Judge Halvorson is retired from the Saskatchewan Court of Queen's Bench, is he not?
Ms Pottruff: Yes. I think he may be making a presentation to you later.
Senator Cohen: My question to you is on the area of persistent arrears. It does not deal with the reality of the situation. There are no reasons. Why are there arrears? Maybe it is illness or the lack of a job in the present economy. It is an unfair situation when there is a lack of right to appeal. That is not addressed here at all.
I am in an interesting position. All my life I have worked for equality for women. With this bill, I am seeing a new side of the coin, and I am in constant conflict with myself. However, I feel that there is an unfairness in this bill to the non-custodial parent. I do not think there is equality. When he has to reveal his financial report, upon request, to the custodial parent, the playing field should be equal. They should both have to reveal that information. If the custodial parent marries again and their joint income is far greater than the non-custodial parent after marriage, that is a problem. The non-custodial parent must use combined income once he marries again. I know that in New Brunswick -- because my daughter is going through this experience right now -- combined income is considered, and the custodial parent can tap into it. There is an inequality here.
Tell me about persistent arrears and the reason for that provision, as well as the lack of right to appeal of the non-custodial parent.
Ms Pottruff: With respect to persistent arrears and the right of appeal, we must recognize that we are dealing with a court order. Based on the circumstances that the court understood at the time, the order is set and fixed. There is an obligation to respond and deal with that order as it is set.
If the circumstances of parties change and they cannot meet the obligations of their order, it is their responsibility to go back to the court and make it clear why that original order is no longer appropriate. If they do not do so, then the order is valid on face value. The custodial parent and the maintenance enforcement services have every right to believe that that order is still a reality.
From the point of view of the maintenance enforcement operations, there is a need to deal with that order in terms of its face value, saying, "This is what the courts found to be fair at that time." If the other party has not come back to obtain a variation, then maintenance enforcement must enforce the order as is. In doing so, they use a fair amount of discretion. For example, if they recognize, based on what the individual has told them, that there is need for a variation, that is what they will encourage the individual to do.
I think the persistent arrears situation will be used where there is no evidence that any other solution will occur. For example, let us assume that we have someone who, on the face of it, appears to be able to pay but is unwilling to pay. At that point, they are clearly flouting the law and there is a need for a firm response. Given that fact, persistent arrears are related to a period of time and a significant amount of money before these more forceful methods will be used. I do not think you need an appeal approach because the requirement is for a variation, not an appeal.
Senator Cohen: Saskatchewan is not perfect in this regard, but it is almost ideal compared to many of the other provinces. How easy has it been for non-custodial parents to appeal to the courts for a variation?
Ms Pottruff: I think there is a need to look at that issue. I am concerned about it when I appear in court and I see someone who I think should have sought a variation. By and large, we have broader access to legal aid in those situations. We are developing a self-help variation kit to ensure that there is access to the courts for those who need it and feel that they cannot afford counsel. We are working with the Law Society in Saskatchewan so that the lawyer referral service, which deals with family law lawyers, will provide, for $25 per half hour, advice to any individual on what they should be doing. We are attempting to fill the gaps to ensure that in those situations where someone should seek a variation, they do so. It is for the benefit of everyone because the non-custodial person receives a benefit if they feel that they no longer can pay the amount ordered. The enforcement service does not chase around after someone who, in the final analysis, cannot pay, and the custodial parent and child do not suffer.
Senator Cohen: Since there is this gap, would it be wrong to have it included somewhere? I have received 120 letters and every other letter raises this issue, loud and clear. Would it be reasonable for this committee to ask that it be included somewhere in the regulations or the guidelines?
Ms Pottruff: My perspective would be that it is not an existing gap; that what is lacking may well be the appreciation by the non-custodial parent of the need to move forward with a variation. They need to solve the problem before we address the persistent arrears. We need to ensure that the services to solve it are in place.
Senator Cohen: I am not happy, but thank you.
The Chair: Your information has been helpful to us and we appreciate it. If we require further information, we can get in touch with you. I am glad to hear that your work involves young offenders. That is one of my favourite areas.
Our next witness is from Revenue Canada, the Assistant Deputy Minister, Policy and Legislation Branch.
[Translation]
Mr. Denis Lefebvre, Assistant Deputy Minister, Policy and Legislation Branch, Revenue Canada: I am pleased to be here this morning with Aileen Conway to explain the role of Revenue Canada in Bill C-41. After a brief presentation, I will be happy to answer your questions. Let me start by informing the committee of some of our activities and this will lead hopefully to a discussion of the proposals put forward in Bill C-41.
First of all, let me begin by telling the committee about some of the measures that Revenue Canada already takes to enforce family orders and agreements.
Since the passage in 1988 of the Family Orders and Agreements Enforcement Assistance Act, the tax refunds of individuals who are in default of their child support payments have been seized.
When a garnishment order is issued under the Family Orders and Agreements Enforcement Assistance Act, an application is made to Revenue Canada to withhold from tax refunds any amounts that, in the opinion of the Justice Department, are equivalent to unpaid support.
A garnishment order is issued. If the order is not complied with, the provincial agency asks the Justice Department to ask Revenue Canada to withhold tax refunds up to the amount owing.
We advise the taxpayer who receives a smaller refund why some funds have been withheld. In the notice that we send out to the taxpayer, we provide the telephone number of a resource person at the Justice Department who can be contacted.
The Justice Department advises Revenue Canada of the exact amount required to comply with the court order. Any funds remaining are remitted to the taxpayer.
When it receives the funds, the Justice Department forwards the amount to the provincial enforcement agency.
The Justice Department acts as the lead department in the case of this program. The tax refund, which includes the GST credits, is only one source of funds that the federal government can garnishee. There are approximately ten other sources. Revenue Canada is the major source of program funding.
Over the course of 1995, we redirected to the Justice Department some $31 million for payment of support arrears. Over 81,000 taxpayers were the focus of this type of court order. The amounts and numbers are expected to be even higher in 1996.
I would now like to comment on the proposals set out in Bill C-41 that involve Revenue Canada.
As you know, pursuant to clause 19 of this bill, the Department of National Revenue will now be added to the list of federal departments whose information banks may be searched. A provincial enforcement agency may request permission to search these data banks to locate persons in default of their support obligations.
We realize that defaulting on support obligations is a serious problem which justifies concerted action on the part of the federal and provincial governments and we are pleased to support this initiative.
Revenue Canada will relay to the Justice Department information such as the address of the person in default of support obligations as well as the name and address of his or her employer.
We will take every precaution to protect the confidentiality of this information so that it is used solely to locate persons in default and obtain payment of support obligations.
[English]
We expect that some taxpayers will react negatively to the department providing this information. They may view it as a violation of our obligation to treat the information provided on their income tax returns as confidential. This is a matter the department must manage carefully. We will have to ensure that people are properly informed of the reasons why we do it. We will try to give them full information to satisfy them that we are not making arbitrary decisions. This is only being done as a result of serious social concerns.
While not directly related to the issue of child support reform, I should like to point out that Revenue Canada is responsible for administering a number of programs that play a key role in income redistribution that may be of particular interest to custodial parents, including the Child Tax Benefit Program, the Children's Special Allowances Program, and the Goods and Services Tax Credit.
In 1993, we commenced the administration of the Child Tax Benefit Program, which consolidated funding from three previous federal programs into a single tax-free monthly payment. The payments are directed on the basis of need to low- and moderate-income families to help with the cost of raising children under the age of 18. Benefits are calculated using information from the income tax returns filed by both parents and are based on family income and the number and ages of children. Currently, the benefit is paid to over 3 million families. In addition, a working income supplement is provided to address the needs of working families with children. The current maximum benefit is $500.
It is anticipated that a change to the tax rules for support payments will produce revenue gains for the federal government, which will be used to increase the maximum level of the working income supplement to $1,000 by July, 1998.
The GST credit was introduced in December 1990, to assist Canadian families with low to moderate incomes to pay the new tax. The credit is a tax-free benefit and is issued quarterly to over 8 million individuals. The amount of the credit is calculated using information from applicants' income tax returns and, where applicable, the income tax return of their spouse. Credits are based on family income and the number of qualified dependants.
In addition to administering these programs, Revenue Canada, in its capacity as agent for various other federal and provincial departments, plays a major role in a number of other income redistribution programs. For example, we provide the province of Quebec with the necessary information to calculate their provincial family benefits.
In conclusion, I should like to reiterate Revenue Canada's ongoing commitment to assisting the federal and provincial governments in addressing the difficult problem of enforcing child support awards and tracing defaulters. Through our current programs and our increased role proposed in Bill C-41, we will continue to play a significant role in the government's commitment to ending child poverty.
I would be happy to answer any questions members of the committee have with regard to Revenue Canada's role in the enforcement of child support awards.
The Chair: In your presentation, you said that you expect an increase in the number of divorces for 1996. I do not know how long it takes to compile the information regarding how many divorce cases there were, but our statistics show us that in 1992, in Canada, they went from 3,247 divorces down to 920; and in 1994, they went down to 103. Maybe this information is not proper, but it shows that divorces are decreasing instead of increasing.
Senator Lavoie-Roux: Fewer people are getting married.
Mr. Lefebvre: I will not challenge your statistics, but the number of refunds since 1988 has been increasing. Last year, we transferred or diverted $31 million in refunds to the Department of Justice to satisfy unsatisfied judgments. I do not have the trend here, but there has been a trend toward increases and we expect that this trend will continue. It is no more profound than that.
[Translation]
Senator Lavoie-Roux: Could you tell me how many departments now have access to Revenue Canada's data banks for the specific purpose of finding out what a particular person's income is? Is this the only department?
Mr. Lefebvre: Statistics Canada enjoys the widest access to our data banks, strictly for statistical purposes. They are not authorized to use the information for purposes other than compiling data, deleting information of a personal nature and using information for statistical purposes.
Section 241 of the Income Tax Act also lists specific exceptions where data banks can be accessed. Some exceptions are associated with unemployment insurance. We collect amounts owing to unemployment insurance. We exchange certain information for very specific purposes, for example, for the Canada Pension Plan and so forth.
Senator Lavoie-Roux: Could we have the list of all national or federal departments or agencies that have access to these data banks? We often hear people complain about this. Here we find that another department has access to this information. That is the point I am trying to make. We have to qualify what information is strictly confidential, because not all information is. Far from it.
Mr. Lefebvre: I can give the committee a complete list. The most recent legislation adopted which authorizes the sharing of information is the new Elections Act. It provides for the establishment of a permanent voters' list. Pursuant to this legislation, the Chief Electoral Officer will be given people's addresses so that he can contact them at election time.
However, beginning in 1998, for the 1997 tax return, taxpayers will be asked prior to signing whether they want their address to be forwarded to the Chief Electoral Officer. This is the only time that this information will be widely shared. Again, the taxpayers' consent will be required.
In all other cases, information is shared with a very small group of officials within other departments for very specific purposes.
Senator Lavoie-Roux: We all agree that people must fulfil their family obligations in the event of a separation and so forth. What happens to persons who have been living common law for more than two years? In Quebec, after two or three years of living together, they are looked upon as spouses. Can the same information be shared in this case? How does it work? Is it not more difficult to have access to the tax return of a common law spouse?
Mr. Lefebvre: Similarly, if these persons have lived together for a continuous period of time pursuant to the provincial support legislation and have obligations toward children that are a product of this union, even if they are not married, if they fail to comply with a support order issued under provincial laws, we will intervene in the same way to help locate the person in default.
Senator Lavoie-Roux: You stated unequivocally that this issue will stir up some controversy and upset people who may think that information about them will be disclosed. Are the complaints that we often hear about this issue founded? Is this information shared only under the very special circumstances provided for in the act? As a rule, when it comes to the Income Tax Act, no one has access to that information, with the exception of a small number of government employees.
Mr. Lefebvre: We do not disclose information about a taxpayer unless this is specifically provided for in the act. I will send you the list of exceptions. There are approximately 15 of them which give officials access to information for very specific administrative purposes. However, this information can only be used to help them administer another act. The two exceptions are the legislation establishing a permanent voters' list, as I mentioned, again with the consent of the individual and the second, family support. The address is supplied only to the provincial agency through the Department of Justice. It is not disclosed to the spouse.
[English]
Senator Jessiman: Mr. Lefebvre, you make mention of the working income supplement and the fact that the changes will provide more money so that the government will be able to increase that supplement by double. Instead of it being $500, it could be as much as $1,000. Can you tell us the rationale for divorced couples in respect of moneys the non-custodial parent pays to the custodial parent and which the non-custodial parent cannot deduct from income tax? If the spouses are separated and there is spousal support given, the rules are different in that they remain the same. The one who contributes to the spousal support can deduct it, and the receiving spouse must declare it as income.
I should like to know the rationale for the government taking money, millions and millions of dollars, away from couples who are trying to support children. I assume everyone is sympathetic to the idea of increasing the working income supplement. What is the rationale for taking it from these particular people, both of whom are trying to support their families or children?
Mr. Lefebvre: The current taxation regime is deduction inclusive, and it will be changed to no deduction, no inclusion.
Senator Jessiman: The government can decide that, as long as people know that in advance.
Mr. Lefebvre: I am not able to comment on the change in regime. It is a decision made by government. However, this change from deduction inclusion to no deduction, no inclusion gives the government a windfall. The change in regime is not to put that money into the income supplement. Since those who pay, on average, have a larger income and are therefore in higher brackets, changing the regime gave a windfall to the government of some $300 million.
The government did not want to pocket the money; they wanted it to be neutral. Therefore, they reinvested it immediately in the low income supplement.
It was not a desire to put more money in the low income supplement that has driven the change in tax regime. There was a decision, because of political consideration, to change the tax regime. Rather than using the windfall to help fight the deficit or for some other cause, it was reinvested in kids, although, I agree, not necessarily in the same kids.
Senator Jessiman: It is taking away from the children who are being supported by separated couples and giving it to children, period, whether or not their parents are separated.
Mr. Lefebvre: Yes.
Senator Jessiman: I think that is most unfair. If the rationale is that the government will no longer allow deductions by separated couples, whether they be custody payments or spousal payments, I think that is fair if you know before you divorce or separate that payments will be made and you will not get any tax relief. People living together do not get any tax relief so I do not think there is anything wrong with that measure.
However, that kind of taxation goes back to 1942. We are talking 55 years. Many people have been separated and are now making their payments. I am not sympathetic at all to those who do not, and I am all for you being able to go after those non-payers.
For those who have been paying and deducting, this proposal amounts to less money for their children, and that is unfair. I would like you to agree with me.
Mr. Lefebvre: This is a kind of transitional issue. We are changing from one regime to another. In the government's calculation of tax receipts, there was a surplus in the one regime, which you believe is possibly a better one. The government did not want to put this money into other programs, such as defence or the deficit, during the transition. The effort has been to put it back as closely as possible. There is no way, unless we subsidize all people who are paying alimony, to hit exactly the same children who were benefiting from that tax assistance and expenditure before.
Senator Jessiman: Would you not agree that they could, as is done in many other instances, grandfather those who are already separated and who have been paying? That seems only fair.
Before this legislation comes into effect -- or you could even make it earlier by giving notice of it -- you could grandfather those who have been living under the regime which allows support payments to be deducted. As long as the payments are fair, you should not change the system mid-way through. I cannot believe you do not agree that to change the regime would be unfair.
Mr. Lefebvre: My understanding of the measures which brought this change of regime is that "no deduction, no inclusion" will apply as of April 1, 1997, only to new agreements.
Senator Jessiman: No, no. Custodial parents will look at the guidelines, compare what they are getting under the old regime, which must be taken as income and see they can get that kind of money tax free. That is not grandfathering at all.
The Chair: The custodial parent does have the option to go back to the courts and ask to be taken into the new guidelines; do they not?
Mr. Lefebvre: Yes.
Senator Bosa: Senator Jessiman indicated that the contributing, non-custodial parent is taxed on the financial transaction. At one point, I believe, it was intimated that that was unfair because now the custodial parent receives the benefit and is not subject to taxation. However, couples who have not split and who have children cannot deduct any moneys for raising their children, so it is equitable.
Senator Jessiman: There is nothing wrong with that part. We have had this regime since 1942. People have been living under it. The courts have determined what they should pay, taking into account income tax, and now they bring along something new. I have no objection to taking away the income tax benefit.
Senator Bosa: I understand that there is a process, a way in which the non-custodial parent can trigger a revision without going through a costly court action.
Senator Cools: We keep referring to the term "enforcement of child support awards." Many years ago, when this door of going into Revenue Canada's records was opened, the then Privacy Commissioner appealed to us not to go through it. I believe his premise was that, once the door is opened, it will just keep opening further.
Where is the constitutional authority for Revenue Canada to act as a policing agency?
Mr. Lefebvre: We are not a policing authority. We collect taxes. We have broad powers of access to information to exercise those responsibilities. What we are doing here is sharing a minuscule part of that information.
Senator Cools: Right, that is in the business of enforcement.
Mr. Lefebvre: It is not policing perhaps because this is civil enforcement, but, yes, it is in the business of enforcement.
Senator Cools: That is my whole question. I know you are getting this authority from statutes here and there, but, constitutionally, in a broader sense, from where does Revenue Canada derive that moral authority to act as a policing and enforcement agency? I have been asking this question for a few years, so I understand you do not have an answer.
Mr. Lefebvre: I do not have a thesis on that.
Senator Cools: Precisely.
Chair, a fair amount of work was done on this issue some years ago, and when Revenue Canada began to open its doors in this way, a lot of concern was expressed at the time. Revenue Canada is an instrument for collecting dollars from the taxpayer. As far as I know, our constitutional apparatus never intended that it should be an instrument of enforcement or policing. The whole phenomenon of constantly bestowing on Revenue Canada the authority to do these deeds is something that, sooner or later, we must study seriously, whether it be the National Finance Committee or whomever.
When we put together our report, it should be noted that some members of the Senate committee are concerned about the increasing policing role that Revenue Canada is being asked to take on by statutes of Parliament. Every time I ask this question, I get a similar answer -- silence.
Senator Forest: Mr. Lefebvre, questions have been raised about safeguarding the privacy of individuals. Would you care to elaborate on what your department is doing to safeguard the privacy of the files?
Mr. Lefebvre: First and foremost, we are conscious of the privacy of the information we handle and receive. From a practical point of view, the key reason for our heightened consciousness is that we live in a self-assessment regime. We view the confidentiality of information as being most important in order for the self-assessment regime to work properly. The only exceptions are those which are provided by statute. If you look at the list of exceptions, I would say that they are for the higher good. They are for public interest issues. The information is quite contained when it is used for other purposes by other departments.
Senator Forest: You are quite confident, then, that there are sufficient safeguards to protect the files of the individuals to which other departments have access.
Mr. Lefebvre: First, the penalties contained in both the Criminal Code and the Income Tax Act are serious. There is one which provides for five years in jail if it is breached. With each department that we share information, we have a specific agreement. It is explicit in that it obliges the department to use the information only for the purposes provided in the statute.
Senator Forest: Has your experience over the years been positive?
Mr. Lefebvre: It has been excellent in terms of other departments and the provinces.
[Translation]
Senator Lavoie-Roux: When we decided that we wanted to hear from more witnesses, we were told that this would present a major problem for the government if it wanted to enforce this measure for the 1997-1998 fiscal year. The measures set out in the legislation would not take effect. Does this present any problems for you from a fiscal standpoint? We are not delaying for the fun of it. There are other bills to which we could turn our attention. We felt that we did not have all the information we needed. Does this create a practical problem for you?
Mr. Lefebvre: The practical problem is this: the budgetary measures which would allow the switch from one tax deduction system to another have already been adopted. We have drawn up a form for April 1. Both spouses can apply to switch over to the new system. When you are dealing with 300,000 potential clients, you can understand that communication problems do arise. It is important to give out sound, clear information and it can take quite some time to contact 300,000 people, explain the situation clearly to them, answer their questions, train our staff and so forth.
We have put off contacting our 300,000 potential clients who require this information to make an enlightened decision on April 1. We have put off contacting them until legislation is in place, because this is a package.
Senator Lavoie-Roux: This does not stop you from taking action. Whether the legislation passes with or without amendments, this will not create any problems for you in 1997-1998.
Mr. Lefebvre: The earlier the legislation passes, the better. I have not looked at the number of days we would need. We would like to contact people before April 1, 1997 and give them an opportunity to ask all the necessary questions in order to make an enlightened decision. We have to supply a form, send it back to the department and so forth.
Senator Lavoie-Roux: This gives you until mid March 1997.
Mr. Lefebvre: Earlier than that, if possible.
Senator Lavoie-Roux: Tomorrow would be better still. This will not impede enforcement, if the bill is adopted.
Mr. Lefebvre: We will make due with what we have. People are going to feel rushed. They will not have a great deal of time to make their decisions. We will have to contact the 300,000 clients immediately.
[English]
The Chair: I wish to thank you for coming before the committee this morning. It was important for us to hear your side of this issue.
We now have with us from the Ottawa Association of Family Mediators Ms Connie Renshaw who is a family mediator.
Ms Connie Renshaw, Ottawa Association of Family Mediators: Madam Chair, I sent to you a concise brief in the hope that it would put forward my thoughts succinctly and elicit questions from you and members of the committee. Much of what I have to say is based on my own experience, my own way of seeing things and the result of having worked with at least 500 families over 15 years.
Unfortunately, I do not have a great deal of research material to present to you. There is some available throughout North America and in some other countries, such as England and Australia. However, it would take quite a bit of time to put it all together. I am a practitioner earning money and, as such, my time to do that kind of research is limited. Hopefully, my remarks will kindle in your committee some desire to do that research because it is the kind of research that is not available here in Canada. We are lagging behind in this field.
I should like to give an example of what happens when a separation occurs. For instance, for whatever reasons, a couple decides that they will separate. Almost the first thing they do is say, "I am going to my lawyer." They are angry and upset. They have not resolved at all why they are separating. They are simply upset and have decided that they will now separate and go to their respective lawyers.
The language their lawyers use with them comes directly from the Divorce Act. It is demeaning and puts them immediately into an atmosphere of conflict. They are told that they can have custody or that they will have to push for access. They are not told that they are parents and that they have rights and responsibilities to their children. Instead, immediately, they are faced with one getting custody -- the winner -- and the other not getting custody -- the loser. The losing prize is access, whatever that may be. Immediately, the hackles go up.
Picture that part of the reason for separating is that one of the parties has had an affair, or perhaps even has a child with another person and is ready to enter into another relationship. If that is the situation, then those words about custody can only bring out the pain of the unresolved things that exist between them. How much more likely is it then for someone to say, "I will fight for every penny I get because there is no damn way that person, who will have the other child, will have money for that." Or, "There is no damn way my ex-wife will bring up a child with someone else who has more money than I do and who will also have money to go to the opera and do all kinds of things when I will not, and I am being left behind."
I am speaking from the level of feelings because that is where people are at. However, the language they get from their lawyers -- and I am not putting down lawyers -- is that they will or will not get custody or access. Access is not one of those things that comes easily. You have to fight for it. You may even have to go to court to get as much as you really want.
Because of our statutes there is no talk in lawyers' offices about the needs of children, except at the level of money. "How much can you afford to give?" It is all in terms of money. There is no talk about the needs of the children. Instead, these questions are asked: How much time do they need from each parent? What kinds of activities should they be involved in? What kinds of activities were they involved in before the separation and which they will have to drop because everyone has less money? How much money will be spent for clothes? Who will have the responsibility of buying the clothes? How much money does it take to feed children? Who will have the responsibility for buying and preparing the food or for cleaning up? What about books, going to the movies, learning to swim? Who does it? Who pays for it? How does it get handled?
In intact families, they discuss those things. They make decisions and sacrifices in order to allow children those things, to help bring them up. Separated families do not talk about such things very much, unless they happen to go to a family mediator, most of whom consider them the primary issues. If a family mediator is not consulted, these issues are usually discussed in terms of who can prepare the best budget and who has the most money to pay.
While I respect what you are doing in terms of the financial issues, because that is very much needed -- I am not idealistic enough to believe there are not those who need that kind of enforcement -- we are doing a disservice to parents who are separating or divorcing by giving them language to fight, rather than encouraging them to talk, discuss and make decisions. Separated or divorced parents must know that they can change their decisions as time goes on, involve their children, and that the decisions they make regarding their children are decisions that may may be appropriate, correct and meet all their needs at the moment, but also that they are decisions that may have to be reviewed and changed over time, as in intact families. I think that the language of the bill could be changed to reflect that situation. It has been done so in a number of jurisdictions.
Many states in the U.S., as well as the countries of England and Australia, for instance, have gone in this direction, and I think it is time Canada started to do address this issue. This is an opportunity. I speak from my heart. Ask any questions you would like.
The Chair: How do you think we could instil in these couples the fact that they should talk to a family mediator before they talk to a lawyer?
Ms Renshaw: Under the Divorce Act, the first thing that a lawyer is supposed to recommend to people after they have given them some consultations about their rights under the law is that they go to mediation. It is time that something more was done to make that happen, because it is not happening nearly enough, and the lawyers will tell you that themselves.
Senator Cohen: First, when I read your presentation, you really captured me. I am neither a sociologist nor a lawyer; I am an average Canadian. You are talking about the real world. I think you make some valid suggestions. I have asked before about mediation. I believe in mediation tremendously because not only are adversarial situations lessened, but the whole conflict or war is somehow dissipated when you are lucky enough to enter into the process.
I see that you recommend that promotional material be prepared clarifying the role of parents after separation and made available and that an advertising campaign be initiated to promote a positive view of parenting. Those two recommendations, if this imperfect bill is adopted, should go hand in hand with what you are suggesting with regard tochange in language. It is something we should have looked at 20 years ago. Changing the language will not affect the intent of the government. It should not be controversial, because the present language does create an atmosphere of conflict. I just wanted to let you know.
Ms Renshaw: The recommendations are intended to support what I have said. Just so you know, in the Ottawa area the family mediators, comprising both those with a law background and those with a family dynamics background, have for the past eight, nine years, developed a six-week course that is delivered twice a year called "The Separation and Divorce Experience." This course is precisely to help separating families understand what the process is like, what the implications are and what might happen if they decide one thing or another. However, it is not enough. It is all done voluntarily. We are all tired. There is a very small group of us who do this regularly.
Senator Cohen: It is scary, too.
Ms Renshaw: It is and it needs to be done more frequently. It needs to be advertised, and we do not have the money to advertise at such a level that the general public will come out.
The family mediators with the family dynamics background are developing right now, in partnership with three family service agencies here in the Ottawa-Carleton area, a program for separating parents that, I hope, will be able to be presented every three to four months. Again, this will help parents understand the import of their decisions. These are all useful and helpful measures. It would be really great if there were language to support what we are doing to help parents and also if there were some campaign that educated them to the need to get that kind of information before making decisions.
I do not know if I answered your question, because you were asking about how and what kinds of things to do.
Senator Forest: I would certainly second what Senator Cohen has said with respect to your brief and with respect to mediation. I speak from the background of having two divorced children who, through counselling and mediation, were able to come to amicable and fair settlements. The family has become enriched with a large, extended and blended family.
I would certainly agree on your third and fourth recommendations.
With respect to changes in language, especially with regard to custodial and non-custodial parents, we have heard a number of negative reactions, and many of us have reacted negatively as well.
Do you have any concrete or usable recommendations for changing those two terms that might seem less pejorative and more in keeping with lending a more positive image to both parents?
Ms Renshaw: Language with phrases like "parent," "parenting," "parenting plans" and "residential parent" needs to be used instead of "custody," "access" or "custodial" and "non-custodial."
The custodial aspect, as we have been talking about, tends to make parents believe they own a bag of potatoes. I have dealt with adults whose parents separated when they were children. When they had read all the information and packages of paper on the divorce, they reacted so negatively, even as adults, to the realization that they had been almost sold to one parent and that the other parent was off to the side.
The language of "custody," "access," "custodial" and "non-custodial" is not useful for parents who are facing separation.
Senator Forest: You would suggest the term "residential parents" for the one who is now considered custodial. What term would you suggest for the one who is non-custodial? There does need to be some kind of differentiation so people know who we are talking about.
Ms Renshaw: There does need to be some kind of differentiation for some families, particularly those who have one parent who is not interested in parenting, you are absolutely correct. I do not believe there needs to be that kind of differentiation between parents. They are parents for life. They are parents.
Senator Forest: I quite appreciate that, but we are dealing with access and custody.
Ms Renshaw: When I am writing up a memorandum of parenting agreement, which is part of my job, I have to deal with all those issues, including who has the children most of the time. Rather than dealing strictly with custody, we deal with the issue of who has the children most of the time due to reasons of education, health, employment and so on. We simply talk about how the parents will cooperate and share responsibility for the children. The one who has the children most of the time gets the title of "residential parent" or sometimes "primary parent." The other parent is called the parent in residence, and that is whichever parent the children are in residence with at the time. Generally, we say that one parent is the residential parent and has this amount of time and the responsibilities that go with that title, and the other parent is the parent in residence for the rest of the time, and usually that is very carefully laid out.
In England they use the terms "residential parent" and "non-residential parent." I do not like to use that last term because I do not think anyone is ever a non-person, and we should stay away from that language.
It is difficult, and perhaps if we sat around and discussed it a bit more we could come up with something better, but the term "custody" is not useful at all. It would be better to use a phrase that, while descriptive, may need to be changed again than a phrase that is really not descriptive of the family situation.
The Chair: That is interesting.
Senator Jessiman: The proposed guidelines do not take into account the custodial parent's income. They are based on the non-custodial parent's income, and the reason, we are told, is that if the custodial parent's income increases, the child will automatically benefit. The government also tells us, in attempting to explain why only the non-custodial parent's income should be taken into account, that the standards of living of the child and the custodial parent are inseparable because the child is residing in his or her household.
Now, that is true. If they are inseparable, and if the non-custodial parent makes more money, he or she -- it is usually he -- has to pay more to the custodial parent. That does benefit the child, but it also benefits the spouse. By handing that increased income over to the custodial parent, and not taking into account her income, she is getting a spousal benefit, and that is just not fair.
I practised law and while I did not do this kind of work, I had some involvement with others who did. We always took into account both parents' incomes when they separated. Has that not been the case in your 15 years of experience?
Ms Renshaw: Yes.
Senator Jessiman: Do you not think that they should continue to take both into account?
Ms Renshaw: My impetus for being here is not to discuss the small percentage of parents who need a lot of control and enforcement.
Senator Jessiman: You are talking about the ones who do not pay.
Ms Renshaw: Yes, the ones who do not pay, who have no intention of paying, who could not care less about kids. These are people who feel they were badly treated, and they are not interested in paying. I am not judging them in any way whatsoever. I am simply saying they are a minute number, and let us put them aside for a moment please. Let us look at the majority of people who separate. Out of that group, a majority never go to lawyers, never go to court. A majority of them decide to separate, and they set things up for themselves. Somewhere down the road, when they decide that they want to get remarried, they apply for and get their divorce. I know a great number of people who have done that. Their numbers are much greater than those who go to their lawyers and begin some kind of court proceeding.
There is a third group, those who are in need of assistance, for whatever reasons. Perhaps they do not have extended family support. They are not able to access the kind of support they need to discuss what to do and to make decisions on their own. They need assistance. They need legal assistance, and I think they need family mediation assistance. Within that group of people, the great majority require mediation assistance not because they do not want to pay child support for their children. They may be angry that their spouses may benefit from the support because they have all kinds of unresolved feelings, and they cannot get beyond that because of the language. They become stuck on the fact that their money will affect the other spouse. Sure it affects the other spouse, but that cannot be avoided.
Senator Jessiman: It should work both ways.
Ms Renshaw: It does work both ways.
Senator Jessiman: If the custodial parent gets an increase in salary, should that not also be taken into account? There are many more women working and the income gap is closing.
Ms Renshaw: That is right.
Senator Jessiman: Surely, if it costs X number of dollars to maintain those children and if one gets an increase, that parent should pay a little more and the other one should pay a little less regardless of the percentage when they started out.
Ms Renshaw: That happens all the time.
Senator Jessiman: Under these guidelines, an increase for the custodial parent will not be taken into account, and that is the problem.
Ms Renshaw: I have looked at those guidelines but I have not asked the opinions of lawyers about it, so I cannot speak to that aspect. The only thing I have been told by lawyers is that they are concerned that judges may take the suggested maximum as the absolute maximum, that it will be the limit. Perhaps that addresses your concern.
However, if we are working with that group of people who are upset and angry but who want to do something for their children and are looking for direction, I think they should be able to go somewhere where they could talk about what is bothering them, why they are so upset about money, and what they want that money to do for their children. In that way, I believe they would be able to come up with an agreement that will not only suit them now but will have in it the seeds for further change, such as the kind of change that you are describing.
I see that happening in family mediation. People come to us and talk about their problems and work out an agreement, and then years later, when circumstances change, they come and say, "We received so much help three years ago that we think we can work this out on our own, but we want to be safe so we want to discuss it with you." They talk precisely about those changes of circumstances.
Senator Jessiman: When you are talking to people in the course of your mediation efforts, you do take into account the financial position of both parties.
Ms Renshaw: I do not take it into account as a family mediator. I am a neutral third person.
Senator Jessiman: However, you have to know the facts.
Ms Renshaw: They know the facts. The people who are coming in to discuss this with us know the facts.
Senator Jessiman: They take into account both incomes.
Ms Renshaw: Yes, they do.
Senator Jessiman: What I am telling you now is if we change this law and they come to you -- and you are bound by the law as they are bound by the law -- they will only take into account the income of the non-custodial parent. I say that is wrong. It takes away from the whole philosophy of the initial concept.
Ms Renshaw: If it goes to court, that is true. It also does not say that the law matters little to people who are deciding what to do for themselves. That is the reality. The law cannot tell people how to parent. It cannot do that. People who decide that they want things differently will not look at the law; rather, they will look realistically at their own situation and use it. A large number of people never look at that law, and they make decisions without that information.
Senator Jessiman: I am surprised you are saying that.
Senator Losier-Cool: I have been trying to follow your thought process. As an element of an answer to these concerns, what is parenting? Is parenting only child support, or is parenting, as you say in your brief, the fostering of abilities with respect to education, spiritual upbringing, and fiscal and emotional health? One could add that parenting is watching and looking after children. To me, that is taking into consideration the needs of children. That is parenting.
I agree that we should have parenting, but I also agree with the guidelines. Would you agree that we have before us an improvement to the current system of child support?
Ms Renshaw: Everyone I talk to sees it as an improvement. The guidelines that were published were in support of this bill. Given what I have heard, people are, by and large, responding quite favourably to them.
Senator Bosa: Senator Jessiman asked a question by saying that if the income of the non-custodial parent increased, that parent would have to increase the contribution towards the custodial parent commensurate to the increase. If it were the other way around, that could not be done. However, we are being told here today that if that were the case, the non-custodial parent can ask for a revision of the contribution. The witness agrees with me. They can ask for a revision, at which time the custodial parent is also subject to a revision of her income or his income. Is that not a fact?
Ms Renshaw: I believe the "change of circumstances" clause would apply no matter what changes the bill brings. I believe that is true, but I am not a lawyer. You would have to ask someone with that background.
Senator Bosa: Correct me if I am wrong in my thinking, but it is not a one-way street.
Ms Renshaw: No.
Senator Bosa: While the bill appears to give the non-custodial parent the onus to reveal his or her sources of income, that test does not apply to the custodial parent. I would say it applies to both. If the non-custodial parent asks for a revision, the custodial parent must reveal whatever income he or she receives.
Senator Jessiman: That is hardship. That is not the case at all.
I have one other topic to raise. In your 15 years of experience, I am sure you have not only dealt with separated couples or divorced couples but also couples with children.
Ms Renshaw: Absolutely.
Senator Jessiman: I some cases, I am sure you would settle on the basis whereby they would have 50-50 custody. Would that be so?
Ms Renshaw: It is true. It is the language I am having difficulty responding to.
Senator Jessiman: There would be a shared custody.
Ms Renshaw: I have not seen a mathematical 50-50 split in my entire experience. It is not possible.
Senator Jessiman: I know of some cases where shared custody is much more than just one week at Christmas. They actually take two days a week, plus weekends. It is close to 50-50, but it could be 60-40. In those cases, they take into account the custodial parent who has the 40 per cent custody.
In 1995, a number of lawyers and family law people got together and recommended that if there were to be a 60-40 sharing, the 40 per cent for the one parent should be taken into account. I do not know if you know this, but under this law, the split must be 50-50 before they take into account any money spent by the non-custodial parent. He keeps the child 40 per cent of the time. He pays for the meals of the child and keeps the child at home 40 per cent of the time, notwithstanding the fact that he must pay as if the same parent did not look after the child at all. Is that wrong? Would you agree with that?
Ms Renshaw: I agree with what you are saying. It would appear from what you are saying that it would be wrong. Again, I want to make the point that parents who talk about those issues have a way of resolving them. When they make decisions, they are encouraged to behave as parents, forget what the law says, and only use the law when they cannot come to an agreement.
You are in a very difficult position in that you must provide for people who cannot come to decisions on their own. I am saying that within the law, however much you are having to think about what can happen to people who do not come to terms, please also include a change in the way you address parents by taking away the language that demeans them. By so doing, you are helping them decide what is best for all of them as a family.
The kind of issue that Senator Jessiman was just discussing may happen more infrequently. That is really what I am saying.
In my practice, many times I have seen parents give a lot more than they can afford because they have decided to sacrifice themselves for the needs of their children. That is what we need to encourage, and the law is not doing that. That is what I am attempting to address.
In schools, we often address the needs of the few versus the general. That is what is happening in families that are separating right now.
Senator Bonnell: I see that you call yourself a family mediator. You say you have 15 years of experience in this field.
Ms Renshaw: That is correct.
Senator Bonnell: Where did you get your training as a family mediator?
Ms Renshaw: I have a psychology degree and a master's degree in social work, which is family dynamics. I received those degrees at Carleton University. After that, I completed two courses at the University of Toronto with Professor Howard Irving in the very early days of family mediation. I went to just about every conference I could dream of in North America to be sure that I was developing myself professionally as a family mediator. Since then, I have continued, first, because I am on the board of Ontario's social education family mediation group; second, because I have organized a number of conferences, including the last national conference which took place in Ottawa; and, third, for the past eight years, I have been teaching and training in family mediation through Carleton University with three other people. The three others are family mediators with legal backgrounds.
Where I come from, there is an interdisciplinary belief in family. I am also practising it in terms of how I teach and train. In the mediation work that I do, if couples are really conflictual and have a large number of problems, I do a co-mediation with a family law lawyer as a partner.
I have a MSW and training in family mediation, but I have much more than that in terms of what I have done professionally to develop myself.
Senator Bonnell: Are you married and do you have children?
Ms Renshaw: I am married. I have children and I hope to be a grandmother in the very near future.
Senator Bonnell: With that type of training and that type of experience, I think the cart is before the horse. Before people get married, they should have training on parenting.
Ms Renshaw: I am all for that.
Senator Bonnell: I do not know if you have had the experience or the expertise to read my book called Child at Risk.
Ms Renshaw: I have not. I am very sorry.
Senator Bonnell: I suggested in that book that in order to have children, one should complete a course in parenting. That is where the problem begins if you do not know anything about parenting. Ministers or priests -- and, a priest could never even take a wife let alone have a child -- are teaching couples about marriage. Before couples go to church to get married by a priest, or by a chief justice, or by whomever, they should be able to show that they took a course in parenting. Perhaps you should recommend that.
Ms Renshaw: I completely agree on that. The Catholic and Anglican churches now both require those courses if you are to be married in the church. Pentecostals are also beginning to do that. The schools also have a program to help teenagers know what it is like to have children. They have an excellent program. That is all helping.
Senator Lavoie-Roux: How much is family mediation available to various couples who want to avail themselves of the service?
Ms Renshaw: In Ottawa, we are lucky. I came here in 1981. In 1982, lawyers and family practitioners started the family mediation association. We have worked very hard ever since. We have a good number of family mediators who would like to be busier. Their services range in prices so that it is affordable for everyone. All three family mediation service agencies are supported by the United Way, so that people who truly cannot afford to pay even $1 can have family mediation free of charge. It is affordable and it is available from a number of practitioners.
Senator Lavoie-Roux: You said that it is affordable. Let us take an average family with an income of somewhere between $40,000 and $50,000 a year. How much would the mediators charge per hour?
Ms Renshaw: If they have $50,000 -- and that is my breaking point -- at $50,000 and above they pay $140 per hour.
Senator Lavoie-Roux: That is a lot of money.
Ms Renshaw: It is a lot less than it would cost them to spend one day in court. It is quite a bit of money, yes.
Senator Lavoie-Roux: Legal Aid is provided in Ontario and Quebec, but I am not sure about the other provinces. This is not provided by the government in Ontario.
Ms Renshaw: Legal Aid will allow some family mediation to occur, generally between five and 10 hours. We get $67.50 per hour to do that.
Senator Cools: By court order?
Ms Renshaw: No, not necessarily; voluntarily.
Senator Lavoie-Roux: Legal Aid has no cost. In the case of mediators, there is some cost.It may vary according to income, but with Legal Aid, there is no cost.
Ms Renshaw: There is no cost to the parents who seek family mediation. Presently, Legal Aid will pay for them for up to 10 hours, which is not sufficient in many cases but it certainly is an assistance and it is better than none. So, yes, there is no cost.
Senator Lavoie-Roux: I am thinking of a case of a couple in family mediation in Montreal. One is a lawyer; the other is a social worker. It is costing them a lot of money.
Ms Renshaw: Yes it is.
Senator Lavoie-Roux: I am all for family mediation. I have no problem with it. Actually, in Quebec, in the Montreal area, it was free for everything at one point. I do not know if that is still the case.
Ms Renshaw: No, it has changed.
Senator Lavoie-Roux: I think most people around the table here would be in favour of family mediation if it could solve some problems. However, it cannot be a general solution for the majority of people because of the costs involved.
Ms Renshaw: I differ with that opinion. I believe it is a solution for the majority of people precisely because the cost involved is less than any costs they can imagine if they continue to litigate. If they do nothing, of course mediation is more expensive. We are not talking about that. We are talking about the people who go to litigation. Litigation is extremely expensive. I have personally seen people, after they have spent $30,000 or $40,000 and have sold their homes in order to pay for it, end up with absolutely nothing and return to mediation to do the very thing they should have done six months earlier.
Senator Lavoie-Roux: If we are to make some recommendations to the government in terms of more generalized family mediation, we would have to think in terms of quite a bit of money, would we not?
Ms Renshaw: What do you mean?
Senator Lavoie-Roux: The government would have to think about the large sum of money required to provide this type of service to people.
Ms Renshaw: People who are on family assistance or family benefits would automatically be able to access money for family mediation, first, through the legal aid plan -- and, however limited it is, it still exists -- second, through the three family service agencies; and, third, through the fact most family mediators regularly take on one or two cases pro bono.
Senator Lavoie-Roux: That is the case for your region, but not for most provinces or most regions of Canada. How many people could avail themselves of that service, say, in Chalk River?
Ms Renshaw: We are trying to get mediators out there. We have them in Sudbury. I was at a recent meeting in Toronto. It is spreading to Northern Ontario. In Northern Ontario, they are considering the fact that many people do not have much money and mediators are being established under the auspices of family agencies for the moment. If the United Way decides that they do not have any money to spend, that source of money will be gone. You are right. That is an issue to think about.
Senator Lavoie-Roux: In Quebec, at one point, I wanted to institute family mediation for everyone who wanted it, but there was much quarrelling between accountants, lawyers, social workers, psychologists. Generally the social workers were more involved in that area. Have you solved that problem in Ontario?
Ms Renshaw: Have we solved the problem of people?
Senator Lavoie-Roux: The Minister of Justice could never come to a final decision because we were quarrelling between the Ministry of Social Affairs and the Ministry of Justice. They thought they should have control over it and so did we. How is it working here in Ontario?
Senator Cools: Do lawyers like you any more than they used to?
Ms Renshaw: They do. They are still not sure of us. They are still a little worried as to what we are doing. There is still a fight for control. That is human nature. I do not know when that will go away.
There is a beauty of a struggle in family mediation, particularly with regard to endorsing family mediation and the endorsing of language. Whatever cost it may have up front, in the end it must be less than what we are currently spending. It is inevitable because people are going somewhere to talk through their problems and to resolve them for themselves in a way they can afford. In the end, it will cost less.
It is a leap of faith to believe in the ability of separating parents to do that, but we believe them when they get married. It is just another little leap.
Senator Lavoie-Roux: Is there any country or province where this is a fait accompli, that people who want to divorce are being offered family mediation first?
Ms Renshaw: In Canada, they are supposed to be offered that service. The Divorce Act directs counsel to do that. It is just not happening as frequently as it should.
Senator Lavoie-Roux: Is it not happening because there is a lack of mediators?
Ms Renshaw: The issue of control that you were talking about earlier is part of it.
The Chair: The lawyers are supposed to recommend it.
Senator Cools: I used to be very involved with family mediation in Canada. When Mark MacGuigan was Minister of Justice, he basically set in motion family mediation in Canada. Dr. Irving, whom the witness has mentioned, was one of the front runners in the field.
I have real respect for some of these people. Some of them are extremely talented and skilled in the business of bringing couples out of very low moments in a relationship. I take off my hat to any human being who can sit between a quarrelling couple and bring them to some kind of confrontation of their own limitations and their own disappointments.
Divorce influence low points on both sides. I have read a great deal of correspondence from people who moved out at the first stage of separation and took their problems to a lawyer. The language used by some lawyers in letters back and forth -- the threats, the coercions -- can be absolutely horrendous. The situation is, by its nature, bad.
You mentioned that the first thing some people do is go to a lawyer, and the lawyer argues for them. Granted, many lawyers have said that, as some lawyers mature, they retreat from some of their harsh language. At some point in the last ten years in Ontario, ideology invaded the arena and added insult to injury. Do you have any observations you can share about the penetration of feminist ideology into the field of family law and the practise therein? The damage is so enormous that we are all reeling as we try to heal some of the wounds. Have you any insight into that area?
Ms Renshaw: That is like asking me to walk on hot coals.
Senator Cools: It is a dangerous business, talking about families.
Ms Renshaw: Yes, it is. Some of the new lawyers coming out have so much training in family mediation that, in the future, mediation will be supported even more than it has been in the past. That is wonderful.
I also want to take the onus off the lawyers. It is not the lawyers. It is the nature of the law and the nature of the education of law that is creating the problem, not the lawyers themselves. They are doing their jobs. They are being asked to do their jobs to the best of their abilities. That means giving the best advice to their clients. The best advice means that one person will lose and another one will win. The law forces that situation. The statutes create that situation. It is not the lawyer.
We need to understand that they are hampered as well. If they do not perform according to that standard, they are in trouble with their profession. That is why I keep coming back to the fact that the changes need to be in thestatutes. That is one aspect.
Regarding the feminist response to family mediation, that is a very difficult issue. We devote a whole day, during training, to that issue and involve a number of speakers. A whole day is never enough. Trying to respond to that question here will be difficult.
Change requires people whose ideologies are stronger than those that an average person can handle. The feminists have brought an awareness about humankind, that is women, men, children, which must not be lost. Somehow the area of family mediation must not get involved in the abuse issue. That issue gets treated differently in family mediation, and the training around it is different. There has been an intransigence in that area of abuse which does not allow people to see the right. Perhaps in the fervour of wanting to help people, we sometimes forget that people must make their own decisions, even wrong decisions. They have a right to do that. That sometimes is forgotten. That is the only way I can address the feminist movement.
Senator Cools: You tip-toed around it, as does everyone when they talk about feminist ideology because, as a consequence, you will find three or four demonstrating outside your door with every intention to terrorize you into accepting their point of view. I am quite experienced with that phenomenon and I understand it. However, we are now trying to rescue many tragic areas of human life from that sort of negative domination.
You talked about the law and the phenomena of negativity, coercion and tools of vengeance, tools that fuel already bad situations. Many of us were quite scandalized some years ago when Revenue Canada became a tool in this background. Now Bill C-41 is taking forward that sort of coerciveness and those tools for vengeance. I am speaking in particular to the use of those sections of the bill -- I believe in Part III -- which deal with the issues of federally granted licenses and passports. The potential there for abuse and vengeance seems to me to be so enormous that it leaves me almost speechless.
I spent many years in another incarnation looking at some of these problems on the criminal side of things. Usually, when government confiscates passports or licences, it is for offences involving the illicit use of those licences or passports. Therefore, when the state confiscates a person's passport, it is usually for a passport-related crime. When it confiscates a driver's licence, it is for smuggling or some similar offence.
What we have before us in this bill is extraordinary. It was unheard of previously. The term "deadbeat dads" is bedeviling everyone. As soon as anyone talks about parenting, all of a sudden you are defending deadbeat dads. The term is a powerful instrument. What is in this bill is a powerful tool to cause the federal government to confiscate a licence or a passport for an offence that has nothing to do with a violation of the proper use of such an instrument. Have you any comments in that regard?
Because of the Charter you can no longer restrict mobility for individuals who are in prison. Mobility is a major Charter right of inmates. Why, then, are we going down this road? We are going the opposite way in the Divorce Act to the direction we are going with regard to crime.
Ms Renshaw: It is a complex issue. I am glad you are wrestling with what to do with those parents who do not wish to parent. I do not have a simple answer. If I had my way, I would do something violent. To put too much power in the hands of those who might misuse it is quite frightening. It may go far away from how it will benefit children. The underlying question is: How does it benefit children? In my experience, those who do not wish to pay find a million ways not to pay.
Senator Bosa: Do you and your colleagues keep statistics on the cases you are involved in in the Ottawa area?
Ms Renshaw: Unfortunately, we do not. Most of us do not have the time and the finances to do that.
Senator Bosa: Do you find that those parents who need financial assistance to have their cases mediated take longer to reach agreement than those who pay $140 an hour?
Ms Renshaw: Not at all.
Senator Bosa: Do the ones who have to pay the $140 per hour rush to come to an agreement?
Ms Renshaw: No. People are hurting when they come to family mediation. The minute they get some help out of that hurt, they grab it. They do not want to stick around. They do not misuse it in general.
Senator Bosa: Do you keep statistics on the success ratio?
Ms Renshaw: We look at what is success. Less than 50 per cent of the cases which come to mediation end up writing a memorandum of agreement. If you are looking at the outcome, it is not that high. However, I have heard repeatedly from lawyers, therapists and judges who say that they know when people have been through mediation. It changes what they do next. It affects them in some way. That is success, too, but we cannot measure it.
The Chair: We thank you for appearing before us today.
Our next witness this morning is Jakki Jeffs.
Ms Jakki Jeffs, President, Ontario Catholic Women's League: Madam Chair, I should like to thank you for allowing me to be here this morning. I know I follow some expert witnesses. I cannot claim to be a professional mediator. However, I grew up in an Irish Roman Catholic family of five. I have been married 28 years. I have a husband, children, a home and a profession to balance. Therefore, I think I have some sort of experience in mediation, although I have not been paid for it.
I should like to address some of the comments of the previous witness. Although it is not in my brief, we are very concerned about the use of the term "deadbeat dads." It seems very demeaning.
The Catholic Women's League of Canada was organized nationally in 1920. It is officially recognized by the Canadian Conference of Catholic Bishops as a lay association of women. Our mission statement reads as follows:
The Catholic Women's League of Canada is a national organization rooted in gospel values calling its members to holiness through service to the People of God.
We have been affiliated with the World Union of Catholic Women's Organizations since 1921, which has consultative status with the agencies of the United Nations. Our national membership in Canada is approximately 110,000 and we are pledged and eager to serve, with all citizens of goodwill, God and Canada. We believe that as human beings and Christians we have a responsibility to witness the good news of the risen Christ.
Through service within our Catholic Women's League standing committees at parish, diocesan, provincial and national levels, we have opportunities, we believe, to give good example and leadership in the formation and expression of Christian attitudes and principles, and we do believe that our league can change the world by giving assistance in our parishes, our communities, our country and, in indeed, as citizens in the world.
One of our standing committees is called Christian Family Life, and an important subject under this committee is our service to those who have experienced divorce.
I am here today as president of the Hamilton Diocesan Council of the Catholic Women's League, which serves a total of 13,000 Roman Catholic women. Again on a lighter note, my mediation expertise is desperately needed in that arena, with 13,000 women. Tragically, many of our members have experienced breakdowns in their marriages resulting in separations and divorce. I have had many discussions with those members. Some of them have come through horrendous divorces and horrendous battles for finances to support their children. They still want fairness in any legislation. I should like to reiterate that point as a very strong position of the Catholic Women's League.
Our faith position on divorce, in part, holds that it is a grave offence against the natural law which brings disorder into the family and society, and this disorder brings grave harm to the deserted spouse and to children traumatized by the separation of their parents and often torn between them.
We would wish that as a society we might spend more time reflecting on the weakening social support for marriage, the rapid changes in our society and their effect on marriage, and the apparent neglect of the social dimension of marriage and the increasing isolation of the family, treating this important institution as though it had little or no impact on society.
For the purposes of this presentation, I wish to reflect on Bill C-41 in light of our commitment to assist those who have experienced divorce and are now dealing with the reality of this breakdown, which is highlighted in part by separation from one's husband or wife and/or one's children.
Again, our approach here is as ordinary Canadian citizens. I probably have not read everything that you have read. I have read extensively on the Divorce Act, on these amendments and on the guidelines. If you question me on issues such as new reproductive technologies and euthanasia, I could quote legislation from all over this country and the world. I am not that much of an expert on this issue. However, our reaction is from a very ordinary Canadian basis and is, therefore, worthy of presentation.
We realize that while Canada does not have the highest divorce rate in the world, marriage in general appears to be undergoing significant strains and stresses, which we realize are not appropriate to go into today. Divorce, however, is one of the results of these stresses and strains, and the manner in which we deal with this tragic situation at a governmental level is of paramount importance and must be just and fair.
We recognize that there are inadequacies in the procedures for enforcing support payments, and also that provinces have dealt with this situation in part through legislation which enables payments to be garnisheed from the defaulting spouse. We also understand that federal legislation allows provinces to use federal information banks to locate those who owe money and to use a portion of federal benefits to pay the custodial parent. It is our understanding that while the law states that either parent can obtain custody, in the majority of cases -- approximately 85 per cent -- women retain custody of the children.
I should like to quote from "The Changing Canadian Family" dealing with the implications of divorce.
Some of these problems could be settled with greater use of joint custody, but this award requires some basic agreement between divorcing spouses and has not been favoured by the legal profession. Nor has joint custody been accepted by feminists because it removes some of women's decision-making power without improving their financial status.
I should like to know why the legal profession has not favoured it and why feminists have such a strong problem with it. Those are important questions to have answered. At the moment, I do not have those answers.
We are concerned with the statement I quoted since our research has shown custody of the children is the crucial issue during a divorce, and how we currently address custody appears to be at the heart of many of the objections to Bill C-41. It would appear, from their experiences, that many of the presenters to both the Senate and the House of Commons committees would oppose both the legal profession and the feminists on the joint custody issues. Surely, joint custody would more effectively reflect the equality of both parents and their equal responsibility for the care and nurturing of their children, even after their divorce. We realize that in a minority of cases there may be compelling reasons not to consider joint custody, but we believe that this would be the exception rather than the rule.
We also understand that the intention of Bill C-41 is to establish a framework for national guidelines for child support payments which are fair, consistent and predictable, and which will endeavour to reduce the conflict and tension between the divorcing parents by making the calculations of child support more objective.
Our research has informed us that the proposed guidelines have been based on average expenditures for children taking different income levels into consideration. However, the different ages of those children appears not to have been taken into consideration. We wish to note some areas of concern which our research has brought to light and to reflect briefly on how we believe these points may actually cause more conflict and tension between divorcing parents, rather than achieve its reduction.
We have noticed Justice Minister Allan Rock's comments that best interests of the child has been the driving force behind the recommendations for the suggested amendments and the proposed guidelines. We are concerned, however, that financial support appears to be the overriding compass in the direction that the justice ministry has taken as the foundation of this best interest.
We understand that one of the provisions of Bill C-41 will eliminate subsections in the Divorce Act which recognize that both parents are financially responsible for their children. We have concerns on this particular point. The guidelines appear to have averaged out the child support without taking the individual needs of each particular family into account. There is no provision made for the differing age of the children in each situation. There seems to be a presumption of financial support from the parent who lives with the children, which may work against that parent if they are not wage earners. The financial support from the parent who has been required to leave the family home may not reflect the actual needs of that family.
Also, the non-custodial parent who must now live apart from his or her children is treated as if they must be forced to financially support their children, and this is the only form of care or love which appears to be taken into consideration by this legislation. We also question why those parents who have not been awarded custody of their children, but do have them living with them less than half of the time, are not allowed to have the financial costs of this care taken into account.
Surely it is in the best interests of the children to have the divorcing parents treated equally in this tragic situation. It honestly appears to me that children are being used as some kind of bargaining chip and that if a parent is awarded custody, all presumptions of care and love are made. It would appear that the only non-custodial care considered to be of any consequence to those who drafted the legislation is financial.
Our recommendation is that the subsections in the Divorce Act which uphold both parents' financial responsibility for their children be retained and that joint custody be considered more regularly than it is currently. We would request that the guidelines proposed for child support be used as references only, not as mandatory guidelines, thus maintaining the flexibility of the courts and the parents to tailor their financial support needs to suit their own requirements.
I bow to your superior knowledge on these guidelines, but why these guidelines? There are other guidelines from other jurisdictions. I am not 100 per cent familiar with them, but why these particular guidelines? I would like to hear an explanation.
The minimal guidelines for child support may be extremely burdensome for some non-custodial parents. We are concerned that with mandatory guidelines we may see more bitter divorce situations as the custody of the children becomes a battle between the parents, rather than an issue decided on the premise of what will maintain the most calming environment for the children or, indeed, what is really in the children's best interests.
The separation of their parents is a potentially explosive situation for the children as they see their world shattered and experience the loss of a beloved parent. We would venture to say that mandatory guidelines remove from individuals and the courts the power to determine fair and reasonable child support payments. We feel this kind of dialogue and mediation would go a long way to prevent the possibility of adversarial attitudes.
We realize that in rare cases in the interests of the children's well-being it may be appropriate to deny non-custodial parents access to their children. However, we are concerned that there appears to be a perception that all fathers are the enemy. In the overwhelming number of cases, they become the non-custodial parent, and this may or may not be in the best interests of children. However, our sense is that the system appears to treat fathers as though they are nothing more than financial institutions. Happily, we have entered an era when fathers are challenged to be more involved with the rearing and caring of their children and they have responded. Gone are the days when fathers felt they could not or should not participate in the intimate rearing of their children. However, should the marriage break down, this factor appears to have been forgotten and fatherhood devalued or even ignored.
I know we do not have the time today to go into that matter, but I think it is an extremely important issue. We cannot cut fathers out of the equation. They may have divorced the mother, but they did not divorce their children. This legislation appears to treat them as though they did.
The Minister of Justice has stated that the committee should not be distracted by issues of access and custody. This bill does not address access and custody, rather it is directed at child support. In my view, it would be a grave error in judgment and bad public policy to mix the two. It is our view that the attempt not to be distracted by these issues shows the same inflexibility which we have noted throughout this legislation. In real life, the overwhelming majority of non-custodial parents would not wilfully withdraw financial support from the children of their failed marriage.
In our research, we have noted that many non-custodial parents are denied just access to their children. In reaction to that, they may withhold child support. We do not condone that behaviour but we do understand the hurt which may have fueled the action. We have also noticed that in other jurisdictions, when access is fair and just, the percentage of consistent payments of child support by non-custodial parents increases. In real life, the issues of custody, access and child support are intimately related. It would be foolish to ignore them unless we do not wish to be fair or to increase conflict and tension. Our recommendation would be that a mechanism be built into legislation to ensure that access issues are properly dealt with if the custodial parent is denying court-ordered access.
At present, it seems that only issues of concern to the custodial parent are taken seriously. While this may be the ultimate concern, since the children reside with this parent, our laws must be fair and just. We do not feel that this legislation fits those criteria. One gets the feeling that the parent who is awarded custody of the children is deemed to be good and the other parent bad. This should not be a perception one gets from federal legislation.
In the guidelines and also in Bill C-41, we note that the "child of the marriage" has been redefined to include the age of majority in certain circumstances. We are concerned that the definition now includes "in pursuit of reasonable education." Again, the Minister of Justice has stated that 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 should 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.
Again, we believe that the minister's remarks reflect the attitude that financial support is of paramount importance and is the only pleasure of a non-custodial parent's care. Even in two-parent families, for reasons including and other than financial, not all children attend university. Are we now making it a mandatory financial commitment that parents who divorce, particularly the non-custodial parent, must finance their children's university education because the Minister of Justice does not think it right that they do not attend?
Again, it is basing the fact on money. Maybe it is the effect of not having a father or a mother in that home situation that has made the difference between the plans of a particular child. We cannot deal with these issues only on the basis of financial obligations.
We would recommend that the phrase "in pursuit of reasonable education" be removed from the definition of "child of the marriage."
Under the heading of special extraordinary expenses, we recognize there may arise circumstances which may require unforeseen expenses for children. However, we feel that some of the required expenses which the court might order to be paid may have already been taken into account in the original grid that outlines the child support payments for each income level and may result then in the non-custodial parent paying twice. If the objective of this legislation is to establish fair standards, these add-ons ought to be better clarified. We also note in our research that many non-custodial parents are not consulted on medical, educational and extracurricular considerations for their children. Yet this legislation demands their financial obligation. I am not saying they are not willing to give it. However, if we demand their money, surely we should ask for their input.
We are concerned about the Draconian measures this bill will allow to ensure payment of child support. We realize that in a minority of cases, non-custodial parents are wilfully negligent in the provision of child support. However, Bill C-41 appears to treat all non-custodial parents as though they belong to this category of persons. For non-custodial persons who would wilfully withhold financial support from their children, we would expect the full extent of the law to apply. However, we find no provisions for compassion for those parents who become unemployed or find themselves in arrears for valid reasons. We fail to understand how suspending federal licences and passports will help, especially if these parents need those very same licences and passports to carry out work which provides them money to pay the financial support.
If is our understanding that current legislation already provides other mechanisms by which people may be located and the support obtained through the use of federal information banks.
Again, our researchers note that there is just one mechanism available to the non-custodial parent who is unable to make the child support payments, and it is termed "undue hardship." However, in our discussions with individuals, the practical means of presenting this undue hardship in court makes the claim almost impossible to make financially.
We know the Minister of Justice is committed to Bill C-41 and that there is built-in review which will be undertaken within five years. We would suggest that this time frame be reduced to two years, given the inflexible, uncompassionate and unfair structure of Bill C-41.
The Minister of Justice noted that the role of the Senate is well established as a body of sober second thought, that it exists to ensure matters are constitutional. We would respectfully submit that Bill C-41 does not treat custodial and non-custodial parents equally, nor does it treat divorced couples and non-divorced couples equally. We would hope that after sober second thought, this committee will recommend amendments which will make Bill C-41 fairer and more just. We are concerned that legislation as important as Bill C-41, which we understand eliminates large sections of the Divorce Act, should be propelled so rapidly by government.
As we stated at the opening of our presentation, we wish to serve those couples who tragically find themselves facing divorce, and we believe that legislation is there to serve them too -- not to punish, not to penalize in this sense, but to serve the individuals concerned. We find it extremely difficult to see how the family experiencing divorce can be well served by legislation which appears vindictive and unfair, for the most part, towards fathers, who remain the overwhelming majority of non-custodial parents. We stand firmly in a position of service to husbands and wives who find themselves in these difficult situations, and to their children.
Bill C-41 appears to be irritating a deep wound and making it worse rather than assisting in its healing. It is not in the best interests of children to have their parents as adversaries. We would recommend that mechanisms which encourage mediation, joint custody, fairness and justice be of paramount importance in any legislation pertaining to divorce.
We thank the honourable senators on this committee for providing us with the opportunity to share our reflections with you.
The Chair: Thank you for the presentation. As chairman of this committee, I should mention that when the Department of Justice appeared before our committee, we did ask extensively about the guidelines and the grid, and they informed us that they had looked at many jurisdictions, including the United States, England and Australia, to come up with what they felt would be a good beginning for a fair system in Canada. They know that it has to be reviewed and that it may not be the right mix, but at least it is a beginning.
Senator Jessiman: You say that you think, from your research, that these extraordinary expenses have been taken into account in the original grid. We were also told that by one of the professors who came before us, and he learned that because he was working on those particular guidelines. How did you find that out?
Ms Jeffs: We were informed by a gentleman who works with a group for fathers. They felt everything that was involved in the cost of rearing a child was probably already included in the grid. That would just be the natural thing. Therefore, to include some of these add-ons or extra expenses would be almost like doubling up.
Senator Jessiman: I thought you perhaps had some inside information.
Ms Jeffs: No, I do not. My "inside" information is just from people who have been involved at a very personal level with these types of things. As I said, I am not an expert. These are just their feelings, and what we have picked up from reading the bill and the guidelines and listening to the reflections of people on the edge.
Senator Jessiman: I think you have hit the nail right on the head. A number of the amendments we are trying to suggest are right there in your brief.
Ms Jeffs: I must say I came here this morning with fear and trepidation because I know that, with regard to access and support, there is provincial and federal legislation, and I do not profess to be an expert on either, but our heart is with those families, and I believe our legislation should have a heart. I am not sure I see one here.
Senator Lavoie-Roux: I thank you for your brief. Whether you are an expert does not make any difference. You wrote it as you felt it needed to be written.
On page 6, you recommend that the guidelines proposed for child support be used as references only, not as mandatory guidelines, thus maintaining the flexibility of the court. In the past, the courts found it very difficult to decide on what should be a fair amount for support. The process led to quite a bit of friction between the parties. The one purpose of the bill that is clear to me -- maybe it is not a good one -- is to try to decrease that conflict and make it easier and clearer for people to decide how much the support should be. I am not sure that I would agree with your recommendation as it is written, because we could again fall into this trap of subjective judgment, where the judge might think that a father that earns so much and has such a standard of living should be able to pay this or that amount. Are you sure that it would improve things if we were to take out the guidelines? Perhaps you do not agree with what the guidelines contain, and that is one thing, but is it not better to have some guidelines than no guidelines.
Ms Jeffs: I think they should be used as guidelines. They should not be mandatory. It seems to me that we are trying to tell the judges what to say and what to think. I assume the judges in family courts have experience in those things. It is very well to say there are guidelines for certain salary brackets, but I am not sure that it is helpful to make them mandatory. I do not think I know enough about this area to make that determination. That was just my heartfelt thought on that situation.
Senator Lavoie-Roux: On page 9, you recommend that the phrase "in pursuit of reasonable education" be removed from the definition of a child of the marriage. Perhaps it would be better to ask this question of a lawyer, but if we are creating an obligation for divorced parents to pay for university education, which everyone agrees with, what about parents who are not divorced? Do we create an obligation for them?
Ms Jeffs: That is what I meant when I spoke about non-constitutional problems. It pits divorced parents against non-divorced parents. My eldest daughter went to university and we helped her with that endeavour. Our son chose not to go. As a parent, you can say, "You should go to university." The child might say, "I do not like that," just as Justice Minister Rock said, "I do not like that they do not go to university." The reason these young people do not go to university is not just financial. We are not looking at the effect that divorce has on them, on their emotions and their plans for the future. Making it mandatory for parents who are divorced to finance their children's university education is just wrong. "Unconstitutional" would be one word. We should not mandate that.
Senator Lavoie-Roux: Children could even sue their parents for not paying for their university education.
Senator Cools: That is what this would open up.
Senator Jessiman: When couples are together, both parents decide what they will do for the children. If we pass this amendment, it will be up to the custodial parent to decide, and then the non-custodial parent will have to pay for it, and he will not have any choice or input as to what university or program the child will attend.
Ms Jeffs: Or when it finishes. You may find yourself with a child of 55.
Senator Lavoie-Roux: My other question is in relation to the enforcement provisions of the bill. Do you feel that some of the sanctions that are provided in the bill, such as removal of the passport or other permits, are too harsh?
Ms Jeffs: To be honest, senator, if I can put it in plain terms -- and this will not sound professional at all -- it sounds bitchy to me. I am sorry, but it does. It does not sound as though this legislation is trying to serve the families. It is vindictive and bitchy. I know "bitchy" sounds like a ridiculous word to use for legislation, but it is. It is like saying, "Well, if you do not do this, we will really get you." There must be proper ways of ensuring that parents who do not support their children support them in a proper, legislative way. I am all for parents supporting their children, but this legislation takes it to the "Nth" degree.
Senator Lavoie-Roux: One of your recommendations is to decrease to two years the time for reviewing the legislation. Would three years be better?
Ms Jeffs: If you are a family who will be affected immediately by this legislation, I would say that six months is too long. Given what we are hearing about the damage people think this legislation will do, two years will be just about enough time.
Senator Lavoie-Roux: You are looking at it case by case. However, if you look at the law generally, the whole picture, I think five years is too long, but three years would give us enough data to make it worthwhile.
Ms Jeffs: I will compromise on that, senator, but if you are the family involved, it is different.
Senator Lavoie-Roux: We cannot review a law case by case.
Ms Jeffs: I believe that legislation is supposed to serve the people.
Senator Lavoie-Roux: I agree with you.
Are there French-speaking members in the Ontario Catholic Women's league?
Ms Jeffs: We do have a Quebec Catholic Women's League, but they speak English.
Senator Forest: I thank you for your brief. I know you put a lot of work into it. I do not agree with everything in it because of other things I have heard, but I do appreciate your hard work.
With respect to the guidelines and whether they are mandatory, I do not know if you were here this morning when it was discussed that these guidelines have been used as voluntary guidelines by the judicial system in Saskatchewan for over a year. We have some indication that there has been approval from the judges. I would also like to make the point that they have been working on these guidelines for about five years. Hopefully they will be helpful. In the cases we have heard, they considered it to be an improvement and less conflicting.
With respect to enforcement, I appreciate your thinking. They measures are draconian, but you do recognize that they are for persistent defaulters only and are an absolute last resort. These individuals will have the opportunity, if they have financial problems, to ask for a variation. They will be given plenty of notice. This provision will not affect the large majority; it is for a group of parents who, I agree, are in a minority situation.
As far as drivers' licences and passports are concerned, some provinces are already using that approach because they have found that for a certain percentage of people, it has been impossible to enforce the payments, and children are suffering. Again, the measure is meant only as a last resort for that very small group of people who are wilfully and persistently in arrears.
Ms Jeffs: We heard this morning about mediation. It seems to me that we ought to be able to use that also.
Senator Forest: I agreed with that speaker on the need for mediation.
Ms Jeffs: The Saskatchewan presentation that you heard this morning, did they have reports from families who have actually been involved in this process, or did it relate simply to judicial aspects of this issue?
Senator Cohen: It related to the judicial aspects of the issue.
Senator Cools: Judicial information is not all that clear. Let us not rely on it.
Senator Jessiman: We do not know whether they used it as guidelines or they enforced it to the letter.
Senator Bosa: I should like to compliment the witness for the great deal of effort she put into drafting her brief. I wish you had been here earlier this morning to hear witnesses who clarified some of the situations you have presented in your brief. For instance, the education of adult children is not compulsory; it is discretionary. If a parent does not want to go along or cannot afford to, they can appeal. Case law comes into play then, I am told.
You seem to have the impression that this government is attempting to inflict pain on society. The legislation before us has been studied by independent people. They have looked into the situation and, after intensive consultations, have come up with a system that might alleviate the confrontational method that existed previously. What has been proposed is not official. The legislation is still under consideration by this committee. However, I understand the courts are already using the guidelines to settle cases.
Senator Cools: They are using them as guidelines, which is the point. That is her point. They should be guidelines, not regulations.
Senator Jessiman: That is what they are saying.
Senator Bosa: Senator Jessiman, if you had been here this morning, you would have heard Betty Ann Pottruff, Q.C., who was part of the team that studied the guidelines. You would have heard that the guidelines are not applied ipso facto, like an assembly line. They are considered when the case is settled. If the child is one year old or 18 years old, surely the same amount of expense in supporting that child is not applicable. There can be an agreement between the two parents, or the issue can be settled by the presiding judge.
Senator Jessiman: No, it cannot. That is the point. You do not understand the law.
Senator Bosa: We were told that this morning.
Senator Jessiman: If you have three children and make a certain amount of money, the age of the children does not matter -- you pay the same amount. The judge cannot change it. It is inflexible.
Senator Cools: His understanding is that people can still come to private agreements, but the problem arises when people do not agree. Then the judge must adhere to the guidelines proposed in the legislation. The judge has no discretion. Read the thing.
The Chair: Ms Jeffs, we appreciate your testimony this morning.
The committee recessed.