Bill C-78 (Historical)

An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act

This enactment amends the Divorce Act to, among other things,
(a) replace terminology related to custody and access with terminology related to parenting;
(b) establish a non-exhaustive list of criteria with respect to the best interests of the child;
(c) create duties for parties and legal advisers to encourage the use of family dispute resolution processes;
(d) introduce measures to assist the courts in addressing family violence;
(e) establish a framework for the relocation of a child; and
(f) simplify certain processes, including those related to family support obligations.
The enactment also amends the Family Orders and Agreements Enforcement Assistance Act to, among other things,
(a) allow the release of information to help obtain and vary a support provision;
(b) expand the release of information to other provincial family justice government entities;
(c) permit the garnishment of federal moneys to recover certain expenses related to family law; and
(d) extend the binding period of a garnishee summons.
The enactment also amends those two Acts to implement
(a) the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, concluded at The Hague on October 19, 1996; and
(b) the Convention on the International Recovery of Child Support and Other Forms of Family Maintenance, concluded at The Hague on November 23, 2007.
The enactment also amends the Garnishment, Attachment and Pension Diversion Act to, among other things,
(a) give priority to family support obligations; and
(b) simplify the processes under the Act.
Finally, this enactment also includes transitional provisions and makes consequential amendments to the Criminal Code.

[Brigitte Sansoucy, NDP, Saint-Hyacinthe—Bagot, QC]

Thank you, Mr. Chair.

A number of witnesses have told us that it would be in all our interests to include, in a clause of Bill C-78, a reference to the preamble of the Convention on the Rights of the Child, passed by the United Nations General Assembly on November 20, 1989. That is why I am asking that we add a reference to the Convention on the Rights of the Child to clause 12 of the bill.

[The Chair, Liberal, Anthony Housefather]

Good afternoon, everyone. It is a pleasure to welcome everyone to the Standing Committee on Justice and Human Rights' clause-by-clause review of Bill C-78.

We are very pleased to welcome our witnesses from the Department of Justice. We have Ms. Elissa Lieff, senior general counsel.

I totally apologize for your missing the menorah lighting.

[Kathy Vandergrift]

Thank you very much for the opportunity to contribute to this important legislation.

The Canadian Coalition for the Rights of Children is a national network of groups and individuals committed to promoting and implementing children's rights. It started in 1989 when the Convention on the Rights of the Child was adopted. Next year we celebrate 30 years.

Canada is currently undergoing a review of how it implements the convention. That implementation is weak, but Bill C-78 is an important step toward realizing children's rights, and it will benefit many children.

Before I make specific remarks, I want to speak to the high priority of passing this legislation.

Improvements to better protect the rights of children have been proposed and debated for over 20 years in the area of family law. During that time, I have witnessed and met with too many children who had barriers to their development that they shouldn't have had because the systems we created did not adequately protect their rights. Please don't let this opportunity to make those changes pass.

My first comments relate to the best interests of the child. Making this paramount is consistent with the convention. Providing guidelines is something that Canada was asked to do in each of the three previous reviews of how it implements the convention. The change in language is positive. Best interests must be done on a case-by-case basis, with no presumptions.

I would suggest that you might wish to strengthen that best interests of the child section by adding explicit reference to the convention in proposed section 16. Best interests should be framed in terms of all the rights of the child, including things like the right to education and the right to develop their potential. Some of those things become particularly important for adolescent children who are involved in family disputes. If you add the reference to the convention, it means that all the rights of children will be taken into consideration.

Several MPs spoke about the need for public education during the second reading of this bill. We agree, and we would urge the committee to make a recommendation that training in best interests be based on the convention and on general comment no. 14 by the UN Committee on the Rights of the Child, which is guidance for states on best interests of the child.

My next comments relate to consideration of the views of the child.

This is a basic principle of the convention, but this is the first time it is being required in federal legislation. That's a good move for Canada. It begins to fulfill Canada's obligations under article 12 of the convention. Members of our coalition are very active in promoting good practices for considering the views of children in all areas of decision-making. There is a growing body of evidence that outcomes are better when children are informed about their rights and have input into the decisions that affect them. There are good practices also for younger children. These should be based on capacities, not arbitrary age. The challenge we have is to scale up those good practices with all stakeholders.

There will be benefits for children in other areas as well if we do that. Yes, there is a requirement for adequate support for the child in this process, and we would suggest that in some cases, but not all, separate legal counsel is warranted.

My next comments relate to the right to be protected from violence. The committee has heard testimony about the impacts for children of exposure to violence in the home. I would like to highlight, in addition, the safety of children returned to a parent with a history of violence. In the last review under the convention in 2012, Canada was specifically asked to ensure effective follow-up for children who are returned to a family member who has had an experience of violence. Since then, we have seen tragedies in Canada. It's very important that we implement that recommendation and pay special attention to that area.

Finally, concerning child support payments, putting the focus on children's right to support is consistent with the convention and it is specifically named in article 27. Canada continues to have high rates of arrears in parental support orders.

Canada has received recommendations to improve this in every previous review, with no action, so measures to strengthen enforcement are needed. I would encourage this committee to take a close look at that matter after you complete this bill, as part of the review of implementing the convention. In keeping with giving paramount attention to the best interests of the child, perhaps child support payments should have priority over all other payments, including crown debts.

In conclusion, passing legislation to protect the rights of children in family law is urgent as well as important. A program of public legal education for all parties and legal training for lawyers and judges is also necessary, but the convention provides a useful framework that will also make our federal system work better for children in the area of family law.

Thank you.

[Dr. Linda Neilson]

Okay. Thank you very much.

I'd like to thank the committee for taking the time to really examine Bill C-78, and I also thank you for the opportunity to comment.

I'm a legal academic. I work at the intersection of law and social sciences. Much of my career has been devoted to attempting to correct problems in the legal system in family violence cases. Among many of the others you have heard from, I applaud some of the changes proposed by this bill.

I worked on the joint NAWL and Luke's Place brief, and particularly on the LEAF brief. You'll find that many of my comments are connected to those briefs. I commend, as have many others, the absence of parenting presumptions in this bill, and particularly the direction to courts to take into account only the best interest of the child.

Many children are blessed with two parents who do not engage in abuse and are supportive, caring and co-operative. This bill doesn't discourage parenting of children by more than one parent. Other children face enormous stress and adversity: violence in the home directed at mothers, stress from parental conflict, child abuse, mental illness, substance abuse, and poverty. These children require a range of responses from the legal system in accordance with their particular individual needs.

We can't anticipate the diverse experiences of all families. Presumptions—any presumptions, such as maximum contact—are beneficial only to the extent that families are the same. When contact increases child adversity, that kind of presumption can cause harm. Removing presumptions frees courts to respond to the needs of children in accordance with individual circumstances.

Also welcome is the direction to give priority to the child's physical, emotional and psychological safety, security and well-being. That provision is long overdue. The hope is that the term “priority” will counter a failure to investigate domestic violence and child abuse that we see in the case law, forceful removal of children from preferred parents, and the ordering of children against their will to comply with punitive orders that may not be beneficial or safe. That “child safety first” provision has been recommended by family academics for decades. That's a very positive change.

As others have said before me, many problems are the result of limited understanding of family violence. The less one knows, the simpler it looks. Family violence is a gender equality issue. It is a child human rights issue too. Every child is directly harmed when coercive control, abuse and violence are directed against the child's caregiver.

Some children will experience long-term fear responses and emotional and even developmental harm. Participating in abuse against mothers is often combined with abuse directed against children. The patterns of behaviour associated with family violence are: demeaning domination; monitoring and surveillance; excessive physical discipline; risky or sexualized parenting; undermining; and coercive control. Those patterns that we associate with family violence commonly continue in the parenting practices against children after separation. Failure to protect impairs children's recovery from fear and reduces child resilience. The new focus on safety, security and well-being will help, particularly if false assumptions are disallowed.

I share with others an enthusiasm for proposed paragraph 16(3)(e), the duty to consider the child's views and preferences. Children have the right to insist that family courts and experts listen more respectfully to their experiences and views, particularly when it comes to parenting and their own safety. I would also, however, confirm what some of your other witnesses have said: that it's really important to hear from children in a way that doesn't put them in the middle of conflict.

I have some concerns about the definition of “family violence”. Inclusion of coercive and controlling terminology is welcome, as is harm to animals and property, but the definition misses an important opportunity to identify family violence as child abuse and to articulate clearly the distinction between dominant aggressor abuse or violence and targeted person resistance violence. That kind of clarity could have helped with what will probably become problems with interpretation in connection with self-protection.

Proposed paragraph 16(3)(j) is framed incorrectly. The central concern is what engaging in family violence tells us about a person's capacity to co-parent effectively and supportively. Please refer to the list of considerations to be included in proposed paragraph 16(3)(j) and in proposed subsection 16(4), as recommended in the LEAF brief.

I have very serious concerns about the new “best interests of the child” consideration in proposed paragraph 16(3)(c)—the duty to consider “each spouse's willingness to support the development and maintenance of the child's relationship”—if, from the child's point of view, the relationship is non-existent or harmful. The provision places the responsibility on the wrong parent. In my view, it's potentially harmful to children. Removal of that provision would be best. At the very least, it requires a “best interests of the child” qualification.

I share the concerns that others have mentioned that proposed subsection 16.2(3) imposes parallel parenting. This can be a serious issue in a family violence context, given that we know that perpetrators often engage in frightening, lax or coercive parenting in order to harass or frighten. The suggested modifications in the three briefs would help to correct that problem.

Others have noted the need for additional clarity in the relocation provisions. There's also a need to ensure that proposed section 16.9(3) clearly allows ex parte applications in family violence cases. Proposed relocation has—

[Robert Harvie, Lawyer, Advisory Board Member, Huckvale LLP, National Self-Represented Litigants Project, As an Individual]

Thank you for inviting me today. I'm awed, flattered, and humbled, particularly because of the other members of this panel.

I am a lawyer. I've been a lawyer in family law for 32 years. In the context of that practice, I've seen how family law impacts families in dysfunction and hurts children. As a result of that, I became involved as a mediator. I had training as a collaborative lawyer. I later became a bencher with the Law Society of Alberta. I was the chair of their access to justice committee for two terms, and I became involved with the self-represented litigants project through the University of Windsor and Dr. Julie Macfarlane.

The pain that I feel for my clients and that I see for children is real and is what motivates me to do things like being here today.

My comments, in general, are that my concern about Bill C-78 is that it doesn't fundamentally change the problem, which is that the way families matters get resolved is still seen through the spectrum of litigation. Litigation doesn't work for families in disputes. It's a terrible way for people to resolve problems.

We have a clear two-tiered system in which people with money and resources can abuse people who don't have those resources. The process itself is premised on an adversarial approach to resolution, whereby two parties who are already in dispute are actually encouraged to dispute more.

My fundamental concern is that Bill C-78, while having good intentions, laudable intentions, doesn't really make any fundamental change to the process. It's in that context that I've provided a brief to this committee.

I embrace the positives in Bill C-78. I think it's very helpful that we refer to “parenting” instead of “custody” and “access” and that we have stopped referring to children as “assets” or “property”. I think it's very positive that we have better support variation and enforcement provisions interprovincially in the new legislation. I think that expanding and focusing on what the considerations are for the best interests of children is helpful, particularly for self-represented litigants. I think having a more detailed examination of how domestic violence should impact parenting decisions is also helpful.

My concern is that they change the “what”, but they don't change the “how”. That's always been my concern as I've become more concerned with access to justice, and it's in that context that my recommendations are made. I'll just touch on them; I won't go into them in detail.

My first concern—and to some extent it mirrors Professor Bala's comments—relates to the presumptions inherent in the provisions relating to relocation of parents. I think requiring notice, if people are relocating and impacting the other parent's relationship, is good, but I think the extent to which we've created presumption in the legislation flies in the face of the case of Gordon v. Goertz, which I think was incredibly well reasoned by former Madam Justice McLachlin. She basically said that as soon as we create a presumption, we almost ask the court to start with a preference, and that avoids the necessity of looking in a nuanced way at what's truly in the best interest of the child.

Just as Professor Bala says, a presumption in favour of equal parenting will create a bias in favour of equal parenting. Creating a presumption in favour of a parent with the vast majority of time with children to be able to move creates a presumption. Likewise, a presumption against a move whereby parents would have equal access also potentially creates a bias and distracts the court from just looking at all the circumstances and asking what is really best for the child or children. I would strongly urge the committee to reconsider those presumptions in the legislation.

With respect to my second recommendation, consistent the United Nations Convention on the Rights of the Child, which the Canadian government adopted in 1991, we must and should inquire as to the wishes of the child. I think it's laudable that we've included that as a consideration, but we haven't provided any support as to how that occurs, and so we're inviting poorly trained lawyers and, with respect, poorly trained judges, and, clearly, self-represented litigants—who are a growing part of our experience—to put children in the position of picking which parent they like more.

After they've done that and a decision is made based on that information, that child then has to exist with the parent that they didn't prefer.

I think if we're going to invite children—and we have to invite children—to look at what their preferences and their feelings are, we need to provide some administration and some infrastructure to allow that to happen in a way that's consistent with the interests of the children. To not do that is to invite further abuse of the children in that regard.

With respect to encouraging non-judicial dispute resolution, again, I think the aims in the legislation are laudable, but there's no meat there. There's nothing there to compel people. There's nothing there to push people to actually do that, as opposed to engaging in a litigation process.

My experience is that most parties in divorce—maybe all parties in divorce—are in trauma, and they're not making the best decisions they can, so while it may make sense to encourage them and to require them to go through a consideration of alternate dispute resolution mechanisms, with the greatest of respect, I would make that mandatory. I would say, “You have to go through some alternate form of resolution prior to proceeding through a litigation stream”, because otherwise it's a good intention with nothing more.

Finally, related to that, it's my experience that people going through a divorce are not making the best decisions as their highest selves. I think that when we have legislation that implies that they can make reasoned decisions without providing an infrastructure for them to get the counselling necessary to make them functional, you're not likely to create any real change. You're likely to have damaged people who continue to make damaged decisions, particularly against the interests of their children.

Fundamentally, my concern is that we have legislation created by lawyers for lawyers and judges. There's an adage that goes, “When you're a hammer, every problem looks like a nail.” With the greatest of respect, we have laws that are created by lawyers, and to a lawyer, every problem looks like it needs a courtroom. My concern is that we need to do more to move people out of that.

I know that's difficult in a federal jurisdiction, because administration is provincial, but I would urge this committee to go a little bit farther towards creating infrastructure and process changes, not simply changes to the law.

[The Chair, Liberal, Anthony Housefather]

I call the meeting to order.

Welcome, everyone. It is a pleasure to resume our study of Bill C-78 with a very distinguished panel of witnesses.

Joining us today we have Professor Nicholas Bala from the faculty of law at Queen's University. Welcome.

We have Julie I. Guindon, a Lawyer, Mediator and Parenting Coordinator at Société professionnelle Julie I. Guindon.

Welcome

We have Mr. Robert Harvie, attorney, advisory board member at Huckvale LLP, National Self-Represented Litigants Project. Welcome.

We have Ms. Laurie Pawlitza, who is a Partner at Torkin Manes LLP. Welcome.

We will go in that order in terms of testimony, so we will start with Professor Bala.

[Shawn Bayes, Executive Director, Elizabeth Fry Society of Greater Vancouver]

Thank you.

I work for the Elizabeth Fry Society of Greater Vancouver. E Fry is our registered trademark. We provide support services and programs for women, girls and children affected by the justice system. We are the oldest, most diversified and largest of the Elizabeth Fry societies in the country. We are also a member of Child Rights Connect. Child Rights Connect is the United Nations NGO working group on the rights of the child, and we're one of 80 organizations in the world who belong to that organization. Our programs address the intersection of justice involvement and women's daily lives. We understand that rights compete, and that the rights of the child come before all else. It is from that perspective we speak today.

Our programs support not only women exiting the prison, but also offer shelters, outreach for women who are homeless and a full spectrum of addictions treatment from detox to intensive intervention for women, including those pregnant with children. We offer counselling programs inclusive of traditional one-on-one programs; income support programs for people banned from accessing government offices so they have difficulty receiving their statutory and regulatory entitlements like every other British Columbian; and therapeutic access programs for families involved in child protection investigations or family custody disputes.

We enable children to see their parents for those reasons related to family violence and parenting deficits. In addition to that, we have programs for children impacted by homelessness, parental neonatal exposure to substances, and parental incarceration. In short, we see ourselves as a living laboratory provided with the opportunity to see where gaps exist within the current system.

As it would apply to domestic violence and family breakdown, those are the predecessors leading to homelessness for women. Because inevitably when we talk to homeless women in our shelters and we explore what led to that road of homelessness, we are talking about domestic violence, which is the most common pathway women eventually enter. This is inclusive of when we work with street women who are homeless, again through our housing first outreach program.

We see failures in child and spousal support payments that lead women in utter frustration to be labelled as difficult and uncooperative, and therefore, banned from receiving services in government offices or speaking to workers to access things like social assistance entitlements or to discuss problems. We see women struggle with those same frustrations when faced with representing themselves in court against a spouse of higher income represented by a lawyer, and the impact that has on both their ability to explain what they think is important for the court to consider and to orchestrate a response to a well-ordered opposing argument in court.

Lastly, we see the failure of government programs both provincially and federally, such as child support enforcement programs and the child benefit to enable children to receive benefits to which they are entitled.

My comments to the bill are directed to the lives of children. We believe that the Convention on the Rights of the Child would offer the viewpoint that all children in Canada, no matter where they live or who they live with, should enjoy the equal benefit and protection of the state. They do not in fact now do so because of the patchwork of differing provincial and federal laws addressing marriage, common-law marriage and provincial child support enforcement programs, and even income assistance programs and the treatment of child support payments that are paid for women on welfare.

Secondly, divorce disproportionately impacts women and their ability to participate in the process. According to the 2016 census, over a half of Canadian taxpayers who are women have an income of less than $30,000. For women with an income of less than $20,000, that's 40% of Canadian women, and that directly impacts their access to justice.

The federal government, under article 2 in the Convention on the Rights of the Child, should respect and ensure that the rights set forth and presented in the convention are there for every child within the jurisdiction, without discrimination. It says that state parties should take “appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status”.

While recognizing the limitations the federal government operates within, one of the ways it can at least influence and level the playing field over time for children, as provincial legislation is rewritten, is to ensure there is a higher benchmark than what currently exists within provinces. Therefore, we encourage it to identify from witnesses particularly those points where provincial legislation is higher—and we do so on a few.

As it applies to the definition of family violence, the bill sets out a limited definition when it says that “family violence means any conduct” and then goes on to list measures. Many of the women and children we serve can describe the forms of violence they have endured as inclusive of isolating a woman from her family and/or her religious community, and the erosion of her sense of self, connection to others and, therefore, her ability to seek help, which this has created. We would encourage the committee to include and consider a definition that is broader and not finite.

When it comes to understanding family violence and the best interests of the child, this change would not be inconsequential. The ability of women to participate in a process is linked to their experience of family violence.

Proposed paragraph 16(3)(c) states that, in determining the best interests of the child, the court shall take into consideration “each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse”. Although Bill C-78 proposes extensive considerations with regard to family violence, this factor may be problematic for women who are in abusive relationships or are afraid of what the court will say if they are unwilling to co-operate and accommodate their abuser. The provision may silence women because of fear of the impact on custody and access, and consequently, it may impact the full consideration of the best interests of the child.

Second, the provision is often used against women who have experienced family violence, when they are labelled as uncooperative. The mental health of women is affected by their experience of abuse, and it is demonstrated in their lives by their ability to manage stress and their emotions. These women are commonly labelled as personality disordered in the Diagnostic and Statistical Manual of Mental Disorders, the DSM, by mental health professionals. The importance of this is that those symptoms—anxiety, depression, intensive mood swings and paranoia—can cause a woman to be labelled as uncooperative, but they are also an expression of the situation in which she has been living, and they are used against her for the benefit of the person who has abused her.

In B.C., the Family Law Act is the act most often used by the women we serve because they are unmarried or unable to afford the legal fees involved in using the Divorce Act, which can only be heard in the Supreme Court. The Family Law Act sets provisions for mandatory family violence screening and education for all professionals involved in dispute resolution. Those same safeguards are not included in Bill C-78. Such training is imperative to understand and contextualize why one party may appear to be reasoned, rational and well resourced, while the other appears unable to order their thoughts, appears angry or hostile, and is unemployed. It is this understanding that can inform the dispute process and the requirements asked of the parties.

Second, Bill C-78 sets out that at least 60 days' notice must be given to the other parent prior to a relocation, and the notice must include the new address of the parent as well as a proposal for parenting time. Although there is an exception for family violence included in the legislation, the exception must be court-ordered prior to the relocation. Under proposed paragraph 16.92(1)(d), when deciding whether to authorize a contested relocation application, the court will take into consideration whether the person who intends to relocate complied with the notice requirement. That requirement may lead to abused women reconsidering fleeing a violent situation. It also places women in a difficult situation if there is child protection legislation in their province, such as in B.C., where, if you leave a child in that circumstance, you can be held responsible and it can impact your ability to keep your child with you.

Therefore, I would suggest that in considering this issue, consideration be given to whether or not you are ensuring that all children in Canada receive equal protection under the law. I suggest that you cannot do so, and therefore, I suggest this rule of looking to be a high water mark. Second, I suggest that you contextualize that information by ensuring training for staff on family violence and its impact. Third, I suggest that you consider the safety of children and women to be important, and ensure that their safety is not compromised by decisions related to custody and access.

[Paulette MacDonald]

I am a family law reform advocate. That came to be in 2005 after meeting a “non-custodial” father and his two young children struggling in a custody battle. Becoming a second wife and stepmother, I witnessed first-hand the destruction of an entire family simply because mom and dad got a divorce. I was dumbfounded. I couldn't get my head around what was happening to this family and how our family law system seemed to facilitate the worst kind of parenting behaviour, with its bias and winner-take-all approach.

I previously had no idea that the custodial parent, typically the mother, could run rampant within our family law system and child protection agencies. I saw breaches of court orders, false statements of arrears to the family responsibility office, false allegations of physical child abuse, and verbal and emotional child abuse. I also saw that the non-custodial parent, usually the father, is automatically guilty until he has proven his innocence, and by then, the damage is done.

This all took place because the children wanted more time with their father and he was seeking equal parenting time. Mom wanted no part of that, and the family court process allowed her to just about destroy him and her children.

I can confirm to you first-hand that the family justice system is indeed broken. That's why I became an advocate, and that's why I am here speaking to you.

Regrettably, Bill C-78 is not intended as a much-needed and overdue overhaul. Instead, it's targeted as more of a legal housekeeping exercise. Still, through the action of this committee I believe that Bill C-78 represents the best opportunity in more than 20 years to make select changes in the Divorce Act, demonstrably supported by Canadians and backed by authoritative social science research.

My remarks address a presumption of equal shared parenting as being in the best interests of the child. Equal shared parenting should be the starting point for judicial consideration. If both parents are deemed fit while the marriage or relationship is intact, then both parents should be deemed fit when the marriage or relationship ends.

Social science informs us that children do much better with both parents. Conversely, children raised without both parents generally underachieve, are prone to more medical and social problems, and have significantly higher rates of incarceration, all at taxpayers' expense. Continuity of parental and family relationships to the maximum workable extent is what is in the best interests of the child. Hence, fit parents should not have to spend their life savings in family court simply to maintain a pre-existing relationship with their children, as is all too often the case.

Equal shared parenting is fully endorsed by social science research as the preferred child arrangement post-dissolution, barring issues of abuse, neglect or violence. In fact, 110 eminent researchers publicly endorsed this scientific conclusion in 2014.

Moreover, in a 2018 special edition of the prestigious Journal of Divorce & Remarriage, a panel of social science experts, went further by stating that the scientific body of research was sufficiently powerful to now justify a rebuttable presumption of shared parenting. I submit that this evidence-based consensus should be reflected in Bill C-78.

Not only is equal shared parenting supported by science, but it is overwhelmingly supported in many countries and jurisdictions, according to polls, as is the case in Canada. In polls commissioned in 2007, 2009 and 2017, Canadians supported a presumption of equal parenting by a ratio of more than 6:1. Notably, the strong support was generally the same, regardless of gender, age, geographical region or political affiliation. This is a non-partisan issue for Canadians.

In 1998, all parties endorsed the shared parenting recommendations of the “For the Sake of the Children” report by the Special Joint Committee on Child Custody and Access. Likewise, the Liberal government of the day commissioned a poll in 2002, which found that Canadians supported shared parenting even then.

The Conservative Party and the Green Party currently have shared parenting as part of their policies. Now is the time for the others to reaffirm their commitment to shared parenting as a non-partisan issue.

Moving towards my conclusion, I’d like to share with the committee the public perception of shared parenting after its adoption in other jurisdictions. A recent example is Kentucky, which became the first U.S. state to adopt an explicit rebuttable presumption of shared parenting in April, 2018. Subsequent poll results of July 2018 indicate favourable support of shared parenting by a ratio of 6:1, about the same as in Canada. The poll also provides valuable insight on children’s rights versus parental rights.

As you know, detractors of shared parenting paint it as a parental rights issue on the erroneous assumption that parental rights and children’s rights are somehow mutually exclusive rather than overlapping. Here’s what the poll reported. Two questions were asked on children’s rights, and two on parental rights.

For the children’s rights, it is in the best interests of the child to have as much time as possible with their parents following divorce—a ratio of 12:1 agree. Children have the right to spend equal time or near equal time with both parents following divorce or separation—a ratio of 16:1 agree.

For parental rights, both parents, whether living together or living apart, should have equal access to their children and should share responsibility for raising their children—a ratio of 12:1 agree. Separating parents should have equal rights versus either father or mother having more—a ratio of 11:1 agree.

The results strongly indicate that children’s rights and parental rights are not mutually exclusive but complementary—oftentimes flip sides of the same coin—while recognizing the primacy of the child.

In that respect, the Minister of Justice was badly advised by her staff for her testimony before this committee on November 5 when she framed shared parenting as a parental issue rather than a children’s rights issue. Social science research and the public at large are telling you they are indivisible. To treat them as disjoint is not only scientifically incorrect. It is openly disingenuous.

Children’s best interests are served by having both parents actively involved, while parental rights are satisfied by allowing fit parents to raise their children. Canada has no better example of the benefits of shared parenting than Prime Minister Justin Trudeau, who was raised by Pierre Trudeau and Margaret Trudeau.

I conclude by urging the committee to amend Bill C-78 to incorporate presumptive shared parenting to reflect social science consensus and the long-standing wish of Canadians of all persuasions.

[Paulette MacDonald, Member, Canadian Branch, Leading Women for Shared Parenting]

On behalf of Leading Women for Shared Parenting Canada, I thank you, Mr. Chair and members of the committee, for this opportunity to address proposed changes in Bill C-78.

I am a family law reform advocate—

[Daniel Melamed, Torkin Manes LLP, As an Individual]

You can imagine what it's like to practise against Ms. McCarthy. She's a challenge.

To follow up, I'm going to talk about mediation.

I've been practising for 30 years, and like Ms. McCarthy, I have done high-conflict custody cases. I've focused on my mediation practice for the last number of years. I didn't write a long paper. I tried to focus on a couple of things that I thought I could bring to this table to consider when talking and thinking about the mandatory requirement of the adviser to raise alternative dispute resolution with individuals, which leads to mediation as one of the options.

My practice now is about a third to a half mediations only, where I'm the mediator. After you hear the witnesses, when considering changes to the legislation, I'd like you to think about a couple of things that I've learned that relate to two things. One is the family violence content and the second is to timing. I'm referring specifically to what I see in Bill C-78, proposed subsection 7.7(2). Let me just describe a bit about how practice actually works, so that you can appreciate why those two things interplay as a recipient of dispute resolution mechanisms that are outside of the court process that Ms. McCarthy has spoken about. I actually agree with her comments.

When a client comes into my office, the first thing we talk about is their problems, what they're thinking about and their worries. If it's an extreme situation—perhaps an assault or perhaps the possibility that money will be taken out of the country or will disappear—as an adviser, I immediately start a proceeding. Under the legislation now, we're required, as advisers, to address alternative dispute resolution. I'll do that, because I have a signed certificate that requires me to do it. Then we're in the throes of litigation that sometimes goes on for years.

This is the thing I want you to think about: There's no secondary requirement to revisit that provision as the process is undertaken. That should be something you should consider. I could imagine the legislation saying that at various stages in the proceedings the adviser is required to do the same thing again. The initiation is the starting point, and perhaps after every step in a court proceeding—that seems a little extreme—or at various times, or at what we call the settlement conference.... It's different things across the country. Things get very hot at the beginning of lots of files, and the advice isn't really thought of at the time. An important function of our adviser responsibility is to talk about how now that we've had all this fighting, should we stop? Should we talk to each other? Should we go to someone who could help us sort these things out?

I'd like the committee to consider whether there should be some ongoing obligation of the adviser to consider that option for discussion, maybe in some general way. Again, not all cases are appropriate for mediation. Some of them should be just settlement. Ms. McCarthy and I can talk across the table. We don't need a third person to understand the issues and the problems. Can we problem-solve together to create a solution maybe as effectively as a mediation? That's not always the case, so sometimes you need that third party.

Regarding family violence, as you describe it in the legislation.... Let me tell you a story of what happened to me last week to highlight why you should very seriously consider what FDRIO has put forward in their brief, as well as what we call a screening of domestic violence before mediation occurs. I'm sure Dr. Landau spoke about it. Two weeks ago, a mediation came into my office.

How it works in my office is that lawyers—very rarely individuals—call me and say, “Hey, Danny, do you have time to do a mediation in the next couple of weeks?” They call me up, they talk to my assistant, and we do a conflict check to make sure no one else in my office has met with them. If we are conflict free, they talk about dates. Sometimes I'll have a phone call to do what we call a pre-mediation conference with counsel to explain what the fight is about, although sometimes I don't. Then, all of a sudden, I get briefs on my desk.

Two weeks ago Wednesday, the briefs land on my desk. The husband's brief talks about the issues in the case. They're the usual things. The kids are older, so there's no custody. It's just money, money, money—all good things. In the other brief, the first two paragraphs are about the vicious assault on the wife and the criminal conviction of the husband. I'm looking at these briefs and I'm wondering how I am going to mediate this. Everyone talks about power imbalance—

[Brian Ludmer, Advisory Counsel, Canadian Association for Equality]

Thank you very much, and thanks for having me.

I'm a co-founder with Mr. Colman of Lawyers for Shared Parenting, and I'm here today on behalf of the Canadian Association for Equality.

In 2014, I participated in the drafting of Bill C-560. I was the one who came up with the operative language of a presumption, unless it could be established on evidence that the needs of the children would be substantially enhanced by a different parenting plan. That remains, in my view and the view of many you're hearing from, how to advance the best interests of children.

The fact of the matter is that adding a list of other criteria and continuing to hear about a unique and individualized approach in each case will subject the children of this country to a continuation of the litigious environment that results in the conflict that all the studies say is the principle damage to the children. They won't be damaged by equal parenting. They're damaged by the conflict over two parents, one of whom wishes to be the primary parent, hence the litigation, and the other one who is willing to share the child and co-parent.

In a sense, while you've heard from an organization representing 36,000 lawyers, you should hear from your constituents.

For over 20 years, public opinion poll after public opinion poll has reiterated that the Canadian public has a terrible experience with the current system, and that is on par with public opinion polls across North America. The current system does not work to advance the best interests of children. It says that's the goal, but in practice, if you're a family lawyer seeing what happens out there, the current system damages children. It forces parents to triangulate the children. It causes conflict. It is maintained at immense cost, billions and billions of dollars.

There is no science that substantiates that anybody, including a judge, can say that a particular parent should see the children 37.2% of the time. The only science...and I'll differ from Ms. Landau on this. Peer-reviewed journal research, very robust, almost indisputable, and ratified by experts from around the world, substantiates that the closer you get to two primary parents after separation, the better the outcome for children. That research is thorough and cannot be minimized on sample sizes. You have to see it yourself.

The committee is getting submissions from Professor Fabricius, who drafted Arizona's legislation, from Professor Kruk and from Professor Nielsen. The joint submission of which CAFE is a part also highlights some of the leading research.

The current system is built on a series of assumptions that don't play out in real life. It produces arbitrary results depending on what judge you get, what their background is, and the day. Are they young? Are they from an urban centre? Is your case being litigated in the countryside? Which province is your case being litigated in? Those produce arbitrary results that are contrary to the goals of the legislation.

The legislation is premised, and you can tell that from the presentations you've heard today, on all the facts getting before the court and a judge somehow having the ability, in a three-day trial or a four-day trial, to figure it out.

In practice, it's not what happens. Budgets are limited. Over half of family law litigants are self-represented. When people represent themselves against a lawyer, the true family saga will never make it to the judge. Judges themselves, when they are polled and when commissions and studies are done, say they also doubt about whether they're getting it right. There are no retrospective studies of families coming through the system to determine whether today's system is working or not. Look at child outcomes three years out or five years out. The only science that's there supports equal shared parenting.

In terms of public opinion, over half or close to half of families today will get separated, so you're talking over 10 million people who will be affected, and millions and millions of children. Their actual experience with today's system trumps the experience of 36,000 lawyers.

For 20 years the public has been telling us it's not working. You're either going through a separation yourself, or a sibling or a cousin or a best friend is. No one is satisfied with the current system.

The proposed changes in Bill C-78—the technical ones—are pretty good. You can't argue with a lot of the stuff that's there, but it was put forward as a means of advancing the best interests of children, and it fails to make any fundamental change. If you start with a system that's broken, because it's built on a series of failed assumptions, you can't rescue it with technical language. You have to try to understand the better way to do it.

If you have a rebuttable presumption of equal shared parenting.... Domestic violence issues live harmoniously today with the maximum contact principle. It doesn't stand in the way and doesn't impact on that. Same with equal shared parenting—it can live harmoniously with provisions designed to capture and separate situations where that's a concern, like alcoholism or absenteeism or a parent who is an investment banker travelling all the time.

Equal shared parenting is not for everyone, but it is for about 90% to 95% of the families who litigate. When you look at what they're asking for, they're close, but one wants to be the primary parent. We taxpayers of Canada are all paying for that. It's a very expensive system with no science to determine that it produces optimum results or even results that can justify the cost. The only science and the views of the public who live with the system.... The true experts are the public. They really don't like it and they don't like it right across North America.

There are currently proposals for equal shared parenting in at least half the States. Kentucky has introduced the first true rebuttable presumption of equal parenting. The public opinion polls and the experiences are great. Arizona had something similar about four or five years ago, and from all their polling and the results since, everybody's happy with it. Australia has been put forward as an example but maybe that's not the case. That's not what happened there. There was no problem with the equal parenting. There was a political dynamic.

No matter how you look at it, there's no meat, no evidence behind the objections to equal parenting, and there's so much for it. It will save our children from conflict, it will accord with the will of the public—that's why we're here—and it will fit the science.

I will have a printed presentation. It will be filed within the next day or two, and then I know it has to be translated, but I'll respect the time allotment today and any questions you have.

[Sarah Rauch, Chair, Child and Youth Law, Canadian Bar Association]

Thank you.

Good afternoon. I am currently the chair of the child and youth law section of the Canadian Bar Association. We are the newest—or maybe I'll say the youngest—section of the Canadian Bar Association. We consist of experts from across Canada: legal practitioners, advocates, and others who are experts in seeing things from a child's perspective. We have a section of professionals who are expert in children's rights as seen through the United Nations Convention on the Rights of the Child.

It's from that perspective that we say this bill is a great and positive step and we support it fully. There's a diversity among the profession, and that diversity includes, in our section, those who practise regularly in family law and child protection.

The United Nations Convention on the Rights of the Child was ratified by Canada 25 years ago and provides a foundation for a perspective that is shifting slowly and surely in Canadian family law. That foundation focuses on the rights and interests of the child.

This submission especially welcomes an explicit reference to the UNCRC in the Divorce Act provisions. That was done in the Youth Criminal Justice Act in 2002, so there's precedent for it. It works on a number of levels in terms of applying the UNCRC to family law, especially given that on this issue of the rights of the child and the UNCRC there's a limited awareness among legal professionals and the judiciary and so on.

There is also the CBA's “Child Rights Toolkit”, which our section as a committee was instrumental in forming. My colleague just referred to it. There are references to social science and other expertise that has been drawn upon to illustrate and enhance the understanding of the application of the UNCRC.

The UNCRC in its preamble recognizes that for children and youth there are special safeguards and special considerations that all children are entitled to without discrimination. These special considerations are founded in the knowledge that each child who is affected by decisions concerning them made under the law is unique, and that without exception each child is entitled to have that unique circumstance be fully assessed and considered in keeping with their rights and their best interests. It's a shift in perspective.

Our CBA sections strongly support the focus on the child's best interests in Bill C-78. We support the submission that there be no presumptions regarding what is best for children. The example is the allocation of parenting time. The CBA section stresses the importance of assessing each child in all of the provisions—that one by way of example—regarding the point of view of the child, the interests of the child and how to apply all of the provisions from that perspective.

In the section related to parenting time, decision-making and contact, any suggestion of a presumption has been eliminated, which we support. We are pleased especially in light of the reference to family violence that there will no longer be a presumption that fails to fulfill an individual assessment of the child's best interests.

Our submissions seek to avoid confusing or misleading language. For example, the proposed heading “Maximum parenting time” could suggest that a maximum amount of parenting time is always a desirable outcome. We submit that this undermines.... It's not always the case that maximum parenting time will be in the child's best interests. That current heading risks being inconsistent with a strong and clear approach that mandates the primary consideration of the child's best interests in each case. We recommend changing that heading to “Allocation of parenting time”.

There is an inextricable link between the best interests of the child and keeping their individual circumstances the central focus of every decision being made about them. We support including proposed changes to the Divorce Act that will clarify all considerations made in resolving disputes regarding the day-to-day lives of children and youth and their futures, decisions that are important to them in a different way than they are to their parents or to adults.

A child-rights approach provides a consistent manner of making decisions that affect children from all backgrounds across Canada. Bill C-78 provides an opportunity for the kind of careful consideration and safeguards that are noted in the UNCRC, both broadly and specifically, in the articles and in the comments.

Thank you for the opportunity to present our perspective, and we welcome any questions.

[Melanie Del Rizzo, Chair, Family Law, Canadian Bar Association]

Thank you very much for the invitation to present the Canadian Bar Association's views on Bill C-78 today.

Our submission represents the joint position of the CBA's family law section and the child and youth law section.

My name is Melanie Del Rizzo. I'm a family lawyer practising in St. John's, Newfoundland and Labrador. I'm the current chair of the national family law section of the CBA. The family section represents specialists in family law from across Canada. With me is Sarah Rauch, who's chair of the child and youth law section.

The CBA is a national association of over 36,000 lawyers, students, notaries and academics. An important aspect of our mandate is seeking improvements in the law and the administration of justice. It's that aspect of our mandate that brings us here to you.

Our brief also includes input from other CBA sections, which I'll highlight. The French-speaking members and the constitutional and human rights law section highlight that Bill C-78 omits any provisions to address current linguistic inequalities in family courts. The bill provides an important opportunity to offer explicit recognition of French language rights in any proceeding.

The alternative dispute resolution section contributed to our comments on the bill concerning greater use of dispute resolution processes. Some aspects of the bill may seem contradictory, and we suggest some changes to strengthen the importance of ADR processes in resolving family disputes.

While our submission contains 45 recommendations, which we hope that you'll review, I should stress that we strongly support the passage of Bill C-78. Much of it would address long-standing CBA concerns. All recommendations that we have made are made with a view to make the bill better from the perspective of lawyers who practise in this area.

One of the most important parts of Bill C-78 is the confirmation that the best interests of the child remain the pivotal test in any parenting determination. The CBA has long opposed any presumptions in this area, which can only muddy the primary focus on the children's best interests. Given this primary focus, any presumption with respect to parenting of children and any concept of parental rights is misguided. Equal time with both parents is an option. It's already an option and is an increasingly popular option, but it is only appropriate if that arrangement is in the child's best interests. With respect to the social science, I would refer you to the tool kit the CBA has produced on parenting after separation and the “Child Rights Toolkit”, which provide good summaries of the social science in this area.

We support the list of factors relevant to determining best interests under proposed subsection 16(3). We offer suggestions to further improve and clarify those factors, including adding more direct language to protect a child who's been exposed to family violence.

We also support the bill's focus on the use of parenting plans, but we believe it could be clearer that they're not intended to be mandatory.

We also find that the bill could provide added clarity about how courts should assess parenting plans to ensure they are in the child's best interests, particularly when a parenting plan is on consent of both parties. We suggest that the parties at least be given an opportunity to respond to any of the court's concerns before a plan is varied.

Family violence is very relevant to determining a child's best interests. We commend the bill for including it in the best interests factors. We offer some suggestions in our submission to strengthen the family violence proposals. In proposed section 7.8, courts would have a duty to consider existing protection orders to facilitate a coordination of proceedings. Different rules and processes are in place across Canada and we note that some efforts are going to be required to ensure appropriate cross-referencing.

We appreciate and have also called for a list of factors in considering relocation applications. We recommended a few additions to the list in Bill C-78.

We also propose that a simple notice form be provided for relocation applications, perhaps with a place for a responding party to also note any objection or their consent. An even-handed approach to the process is only fair. The requirements for a party wishing to move should be similar to those for a party objecting to the move. We also support a longer notice period than that proposed in the bill to increase time for a mediated or negotiated solution and also to provide more time for people living in remote or rural locations to be able to access services. The ability to apply for a default order in cases where there is no objection should also be considered. Otherwise, we see a situation where a person could have a statutory right to move that could then be inconsistent with an existing order or agreement.

We also support the shifting burden of proof as proposed in the bill and the idea that a move is presumed to be in the best interests of children who have little to no relationship with the non-relocating parent. However, we note that children can have significant attachments to both parents even without equal parenting time. As such, the CBA sections recommend that the bill provide that relocation be presumed not to be in the child's best interests when it would likely damage the attachment to the left-behind parent.

We note that adequate funding must be available to ensure that federal, provincial and territorial governments can provide the services required by the bill, such as mediation, supervised access services and the communication between various levels and jurisdictions of courts with respect to civil protection orders.

My colleague will now highlight some other suggestions we have for improving the bill.

[Gene Colman]

I hope we don't lose me again.

Thank you.

I was talking about the areas where L4SP agrees with Nick Bala's submissions. I talked about new terminology, the use of parenting coordinator and counselling services, and the best interests lists. I'm going to go forward. I want to make sure I finish this within the next three minutes.

I'm very proud to be a member of FDRIO and when I hear Barbara Landau giving such wonderful submissions—aside from the one, which you all will probably know that I didn't like—I am proud to be a member of the organization with Barbara.

To return to Nick Bala, we applaud Nick for bringing to the forefront the need to specifically address alienation and children resisting contact with a parent. We agree that children's views need to be considered, but his recommendation to encourage judicial interviews we cannot condone. As you'll see, I'm on the same page with Barbara Landau on that point. Interviewing children is an art and not all judges are sufficiently trained in that area. It places judges and children in a pressure cooker.

We agree with Nick's analysis of family violence and heartily welcome his call to the federal government to provide resources to support educational efforts and supports for victims of family violence.

With respect to relocation, we disagree with Professor Bala that there should be a 40% threshold, which he lifted from the child support guidelines. The L4SP brief points out that the onus or burden of proof should always be on the parent who proposes to relocate and thus deprive the child of significant contact with the other parent.

The other recommendations that Nick puts forward, we disagree with. In particular, of course, we disagree with his protestations against the rebuttable presumption. His discussion on pages three and four of his brief tends to largely cite his own work and gives propositions that are simply contrary to the social science literature.

In conclusion, for kids' benefit, we need to thwart the custody access wars from the get-go. We need to remove incentives to strife. No longer should parents need to prove the other unfit in order to win. To reduce conflict, the legal system employs presumptions, onuses and burdens of proof. Even C-78 proposes relocation presumptions. In 1997, we implemented some strong presumptions in the federal child support guidelines and succeeded in removing a huge source of conflict in our system.

Implementing a presumption for equal, shared parenting—that is shared decision-making and residential time that is approximately equal—is a progressive and totally child-focused reform. It's not about parents' rights and it's certainly not about fathers' rights. It's all about adopting legal and social policy that is bound to substantially improve the lives of children of divorce.

Mr. Chairman and members of the committee, thank you very much.

[Dr. Barbara Landau, Mediator, Arbitrator, Psychologist and Lawyer, Family Dispute Resolution Institute of Ontario]

That's okay. Thank you, Mr. Chairman.

It's a pleasure to welcome Bill C-78 with its many positive reforms. I represent the Family Dispute Resolution Institute of Ontario. I've submitted my bio. I will briefly note the items that we strongly support and then discuss issues that we think can be improved. I will refer to a few sections of the B.C. Family Law Act, which I've provided, that we think should be incorporated. I've also attached a sample parenting plan. I can answer questions about that.

We are strongly supportive of the following: the encouragement for co-operative out-of-court dispute resolution options, where appropriate; the requirement to screen for domestic violence, broadly defined, including physical, psychological and emotional abuse; the importance of looking at the impact of domestic violence on children when assessing parenting capacity; the replacement of outdated “custody and access” language with “parenting orders” and the encouragement to create parenting plans; the inclusion of an extensive list of criteria for determining the child's best interests; a clarification of how relocation cases will be approached, although with some changes that we will be recommending; and the implementation of an administrative process to update child and spousal support.

Those are the things we're strongly in favour of. We also have recommendations for clarification or additions. Our focus is how to improve the process of divorce and assist families, especially children, to make this difficult transition in a supportive, timely, less conflicted and less costly manner. This will require greater co-operation between the federal government and provincial partners.

The first thing we're recommending is that the definition of family dispute resolution process should be stated as follows: “means a consensual process outside of court agreed upon by the parties”. That would be the language we'd use. The list of consensual out-of-court processes is incomplete. It should include med-arb, arbitration and parenting coordination. I would ask you to look at appendix A for the B.C. definition. We recommend that family justice services be subsumed under family dispute resolution processes. Having two different categories is confusing.

Second is the duty to screen for domestic violence. We recommend that the duty apply to all professionals assisting separating families. That duty has been in our child welfare legislation for several decades. Separations raise the risk level for family violence—up to lethality—even when this has not previously been a concern. This is an important safeguard. Again, look at the B.C. Family Law Act in appendix B.

The third recommendation is around the duties of lawyers and legal advisers. The definition of “legal adviser” versus “lawyer” should be clarified. Lawyers are required under the new legislation to inform clients about family dispute resolution options. There should be no exemption for lawyers or other professionals on the basis that they're unaware of such services. That may have been the case 40 years ago. Today it's not the case.

If lawyers are unsure about safety, they should refer clients to a trained domestic violence professional to assess the risk and report on what might be appropriate. The lawyer's duty should arise from the time they're retained, not delayed until an action is commenced. There should be specific consequences for lawyers or other professionals who fail to fulfill this duty. In the past, this has been a duty under the Divorce Act. It has not been followed.

The next point concerns unified family courts. Unified family courts should be created in any province that wishes them. The advantages are that they reduce confusion, they're more efficient, they're less costly, and they can address all of the issues in one court. They ensure, where possible, that there's one judge, a family law specialist—I'll underline that—for each family. Ideally, that's for marriage breakdown, domestic violence and child welfare. This ensures that decisions can be monitored for compliance.

In many jurisdictions, assignments are based on the judge's availability, not their expertise. Imagine if one of you had a heart attack and the doctor assigned had expertise as an obstetrician. Each court appearance currently may have a different judge, and with no family expertise. Judges do not have sufficient time to read all of their new files, so adjournments and inconsistent decisions are frequent. However, UFCs cannot improve access to justice without adequate services. These are the services that we think should be there.

These would include funding for mandatory education programs, which are really important. They would include a description of dispute resolution options, safety advice, explanations of what parenting plans are, telling people about financial disclosure and so on, before couples make an application to court. This is already available in several provinces.

The other thing is funding for the screening of domestic violence for all family professionals, including judges. Triage should be available to help people get to the most appropriate dispute resolution process, either within or outside the court's mandate, or to a community service that would address issues such as mental health, addiction and so on, and determine which people should be fast-tracked to court.

This would require co-operation between the federal government and the provinces on funding, appointment of judges and service delivery. Currently, our family law system gets a failing grade from the 50% to 80% of family law litigants who are self-representatives.

Fifth is parenting plans. These are very important tools to help parents achieve what are the key objectives of Bill C-78. To help parents focus on caretaking responsibilities, reducing conflict and creating a practical child-centred road map, before they engage in an adversarial process.

I've attached an example of a short and a longer parenting plan. The longer one just explains the short one. We do not support a presumption of equal parenting, with all due respect to my friend, Gene, because this negates the assessment of parenting capacity. It overlooks issues of domestic violence, mental health, addiction and the encouragement for parents to work out a parenting plan that fits their unique circumstances and addresses their availability, the special needs of their children, the ages of the children and all of those things.

Also, equal time often results in pressure to reduce or eliminate child support and prevent relocation. The literature that he refers to is often quite biased. Much of the literature that supports equal parenting is based on people who have co-operatively decided to do that. I won't go into detail on it, but it also has small sample sizes and other things like that.

Parenting plans need to include the parents' responsibilities for the caretaking of their children and how significant decisions are made—not just what decisions but what process they're going to use and how they're going to handle disputes when they arise. There also needs to be a parenting schedule, which is not just the regular schedule but also includes school breaks, PD days, religious or other special days, and the process for changing a schedule when there are changes such as children getting older, changes in mobility or the presence of disputes.

Regarding views of the child, when trained professionals meet with children to hear their views, answer their questions and address their fears, parenting disputes are often resolved and children are more likely to accept the outcome. However, this is the one dispute I have with Nick Bala. I don't believe that judges are the best people to be interviewing children. Child specialists are more qualified and less costly, and they can meet with children in a supportive setting.

The next thing we are recommending is reinstating family court clinics. We recommend a co-operative funding arrangement between the federal Department of Justice and the provincial ministries of the attorneys general and ministries of health. These agencies should be located outside of the UFCs, as clients benefit from a less formal clinical environment. These clinics can offer triage, mediation, assessments and brief treatment for separating families, as well as child welfare issues. I was the chief psychologist at the family court clinic in Toronto. These are wonderful training grounds for mental health professionals, and they're publicly funded so they're affordable.

Relocation rules have been addressed, but they are too complex. There are too many parties. I think the criteria shouldn't be geographic distance. When a contemplated move will make the existing parenting schedule no longer feasible, there should be a graduated list of dispute resolution processes from informal to more formal. That would encourage people to indicate that they're going to move at the earliest possible time rather than waiting until the last minute.