Justice Committee on Nov. 19th, 2018

[Valérie Laberge]

The plan has been in place since 1998.

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

Okay.

However, could it help us to find solutions so that this bill can achieve one of its four stated objectives?

[Nicolas Le Grand Alary]

That problem was also raised in connection with the Quebec program. We have no particular suggestions in that regard.

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

Okay. Thank you.

Do I have any time left, Mr. Chair?

[The Chair, Liberal, Anthony Housefather]

You have 30 seconds.

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

Okay.

Mr. Boivin, I won’t have a lot of time to ask you a question in 30 seconds. So I will make it quick.

You told us about an amendment to recognize language rights and you referred to a section of the Criminal Code. In addition to that, are there any other provisions that we would have to pass in order to respect language rights?

[Daniel Boivin]

The FAJEF will be submitting a brief that will contain the exact wording we suggest.

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

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

We now move to Mr. Virani and Mr. Ehsassi, who are going to share the next six minutes.

Mr. Virani, the floor is yours.

[Arif Virani, Parkdale—High Park, Lib.]

Thank you, Mr. Chair.

I'm going to direct my questions to SALCO. It's with some pride and a paternal feeling that I was one of the.... When I was a just-graduated law student, we gathered together and thought of this great idea of creating this legal clinic and that one day maybe they'd make parliamentary submissions. Here they are, making parliamentary submissions, so yay, Shalini and Ms. Abdullah. Thank you for being here.

I take your points. We very much feel this is a much-overdue reform to family law. I think it is very much on the right track in a lot of the things you mentioned. Thank you for those comments.

We wanted to outline a couple of things. I think we're on the same page, but it's a question of whether we can perfect it. I'll ask questions of you both at once because I'm sharing my time with Mr. Ehsassi.

One is in respect of the definition of family violence, which you mentioned. I took your points, Ms. Abdullah, about cyber-attacks and spiritual threats. With the family law violence definition, we're always trying to balance being broad enough but not overly broad where we fear having too long a list that becomes somehow under-inclusive—if you see what I mean. Do you feel that patterns of coercion, psychological and other threats, the types of cyber-attacks you mentioned, are already covered in the definition we have right now? If not, why not?

Two, the brief we have is the one you jointly signed with the large group, and that brief mentioned that we have the spiritual, cultural and linguistic upbringing of the child as part of the parental decision. It's particularly looking at indigenous, but not exclusively. You said that we should also incorporate that under the “best interests of the child” component. Can you tell me why it's needed under the “best interests of the child” component? Is it unique to indigenous? That's the way the brief read. I appreciate that SALCO is looking at things like South Asian background and people who speak Punjabi, Urdu, etc.

Can you touch on both of those, please?

[Shalini Konanur]

Do you want to take the first question?

[Silmy Abdullah]

Sure.

Just to clarify, was your question whether the current proposed definition already covers cyber-violence?

[Arif Virani]

Yes.

[Silmy Abdullah]

Cyber-violence is a very specific type of violence. It's worth adding it.

I don't know if it would be covered under the types of violence that are already listed. My suggestion would be to add it just because it's a different type of violence.

[Arif Virani]

Have you seen the definition you're proposing in any other legislation, anywhere else?

[Silmy Abdullah]

I don't know.

Have you, Shalini?

[Shalini Konanur]

We haven't seen it in any of the other legislation, but we had this conversation around the definition of family violence when they were creating the conditional permanent residence.

The reality is that we're at a time and place in the world where cyber-violence is actually one of the main forms of family violence, and we have seen in the past five years, in our cases, that trend coming up over and over: threats of posting things on Facebook, threats of texting and sending intimate photos. You have a golden opportunity here to specifically name it and not say that it is just included in that larger idea of psychological violence.

People like me, who are not as Internet-savvy as my kids are, say it's new, but it's not a new form of violence. However, we are lagging in terms of legislation recognizing it. This would be a great opportunity to actually have that reflection there, because if you speak to clients, the threat of this happening is an actual, on-the-ground, real fear for many clients in the family courts, and it actually impacts their pulling back of their family law claim. Naming it would go a long way.

You don't have our specific brief in front of you. We had submitted it, but it's getting translated. You will see a bit more detail in our brief, which does address the second question around the best interests of the child.

[Arif Virani]

Thank you.

[Ali Ehsassi, Liberal, Willowdale, ON]

First of all, I also have a question for SALCO. I know that Arif is very proud of it, and rightfully so, but I also take much pride in the fact that you do amazing work in my riding. I'm very grateful that you appeared before us, and your testimony was very helpful.

The one issue I have is that you brought up that you're concerned about the fact that this legislation actually attempts to encourage families to use alternative dispute resolution. However, reading the language, both in proposed section 7.3 and in proposed paragraph 7.7(2)(a), it's pretty obvious that it's not mandatory and it's only meant to occur when it's appropriate.

How concerned should we be that if it's not explicit here that there has been violence, perhaps mistakes will be made and there will be a referral to alternative dispute resolution?

[Shalini Konanur]

The crux of the problem is that when we encounter stakeholders in the family court system, their level of understanding of family violence is vastly different, depending on their own training. When you have broad terms such as “where it's appropriate”, to me, because of my background, that is understood to include family violence. To many of the people we encounter in the family courts, that is not necessarily understood.

What you're going to see is a common theme in our submission that if you want to address family violence, which I believe is one of the four pillars of these changes, there has to be some specificity. The language matters. We've been talking all along about how the language matters.

If you have a recognition that not everybody is coming to that space at the same level of understanding, our strong recommendation is that it should be reflected. It should be made clear in the legislation and there should be a caveat put in, that in cases of family violence this may not be appropriate. What we see time and time again with different parts of the family court system, which in Ontario includes court support workers, mediators, paralegals, consultants and legal clinic clerks, is that people come to it with a different level of understanding.

We have the strong recommendation that the family violence wording be put into play in proposed section 7.3, but also in the best interest of the child in proposed subsection 16(3), that where appropriate, family violence should be considered by decision-makers when they're deciding the best interests of the children.

[Ali Ehsassi, Liberal, Willowdale, ON]

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, and I want to thank all the witnesses.

We are really very grateful to you for participating in this committee

We're going to take a brief pause while we change witness panels, and I'll ask the witnesses from the next panel to come forward.

[The Chair, Liberal, Anthony Housefather]

I would like to welcome our second panel of the day testifying on Bill C-78. Again, I apologize for the rush. We just have a lot of witnesses we're trying to hear from.

We have Ms. Valerie Irvine, assistant professor in the faculty of education at the University of Victoria.

From the Canadian Children's Rights Council, we have Mr. Grant Wilson, president.

From the Men's Educational Support Association, we have Mr. Gus Sleiman, president, and Mr. Alan Hamaliuk, vice-president.

From UNICEF Canada, we have Ms. Lisa Wolff, director of policy and research.

Welcome to all.

Each group has eight minutes. We're going in the order of the agenda, so we'll start with Ms. Irvine.

[Valerie Irvine, Assistant Professor, Faculty of Education, University of Victoria, As an Individual]

My name is Dr. Valerie Irvine. I want to thank you very much for inviting me to speak with you today.

I am a professor in the faculty of education at the University of Victoria. I have a Ph.D. in educational psychology from the University of Alberta and bachelor's degrees in both education and English from UBC. I have held Government of Canada Social Sciences and Humanities Research Council funding. I have been an affiliate and received funding from the Human Early Learning Partnership and was previously a research coordinator with the Research and Action for Child Health group at the University of Victoria, focusing on early childhood development.

Although family law is not my area of research as part of my academic position, I am familiar with theories of child development. Some of the family law content overlaps with education, as we also strive to meet the best interests of the child. I hope to bring a fresh perspective to what I see as a stuck system that entrenches families oppositionally in legal structures, creating more risk and harm, especially to those most vulnerable who have experienced family violence.

To give some context, I live within walking distance of two homes—one in which two girls were killed by their father on Christmas Day last year and, before that, one where children, a mother, and her parents were killed by the children's father.

The legal system fails to protect the victims of family violence. There is a lack of support, and the supports, where available, face design flaws. I personally have been engaged in the family law system as a parent for almost 10 years, and my family has been exposed to traumatic experiences before, during, and after divorce. My children have recently accessed the new Child and Youth Legal Centre in B.C. to obtain direct representation for their voice. It was only the involvement of a lawyer for the child that brought a halt to legal proceedings. It reframed the dynamics and ended the continuation of repeated legal proceedings.

I draw from these personal and community experiences, and my background in educational psychology and schools, in making recommendations for amendments to Bill C-78. There are many families who are in situations similar to ours. Most impacted are the children.

Canadian families require more integrated services, such as data analytics, the elevation of the role of a child's direct health professional team, and legal representation for the child. While we criticize the American health system for its cruel design of cost recovery for health access, we have the same approach in family law, and family violence is also life-threatening.

For child survivors, when their voice is channelled through a parent, it can be perceived as muddied by the opposing parent, and fidelity is further weakened since child voice is only one factor and not "the" factor being considered. I am deeply concerned about how a single parent with low income, minimal education, challenges with language or articulation, and no supports for self-care might get through this experience. How can this entire process serve the best interests of the children? How can this be Canadian?

Integrated services are needed to support the child in cases of family violence. What is best for the child is access to and involvement by their own personal, trusted, ongoing health professionals, such as their family doctor, child psychiatrist and counselling psychologist, and their own legal representative. Where there is triangulation from this team, any legal action should be prohibited.

It is interesting to note that the shifts that actually materialized in our parenting time, despite all the legal costs, were made not by lawyers but by the children acting out after buildup and refusal to go for their custody transition time, which created times of crisis. If only their voice had been listened to earlier on, as supported by their health professionals, adaptations could have been made without distress. I need to ask the government why legal engagement is necessary. If the voice of the child was elevated, prioritized and determined to be sound by their own health professionals and lawyer, little of this legal escalation would happen.

When $20,000, $50,000, or $100,000 has been invested into the creation of a court order, often at the financial ruination of families, the threat of legal engagement becomes so ominous that children's rights to change parenting configurations are impinged upon. The involvement of family health professionals can defuse these risks.

It is important to note that prioritizing preferences for parenting time does not need to be forever decision, unlike the presentation of court orders. This fluidity would dissolve the high stakes of seemingly permanent and financially invested court orders. It should motivate parents to be more focused on gaining child trust and building relationships, as opposed to building a case.

I hypothesize that the sharp increase in child anxiety disorders in schools, now at 20%, or one in five, which creates significant disruptions for the education sector, is linked to family violence in shared-parenting households. Shared-parenting households have increased from approximately 13% in 1995 to 70% in 2016, as per the Government of Canada's Department of Justice and Statistics Canada.

Legislation must occur that requires judges to lean toward making type 1 errors, which is the incorrect assumption that family violence, or risk that it will occur, is present when it actually has not occurred or will not occur, as opposed to type 2 errors, which is the incorrect assumption that family violence has not occurred or is not likely to occur, when it did occur and will occur subsequent to judgment.

The judge in the Berry case in B.C., a.k.a. the “Christmas case”, where two girls were murdered, is a type 2 error. The consequences of type 2 errors are serious to deadly. The consequences of type 1 errors are not as serious and are more likely to result in peace and safety for the child. If we want to seek a system that values the best interests of the child systematically, then evidence-based, system-wide decisions should seek to reduce type 2 errors and increase type 1 errors in risk assessment and judgments. This requires collection and analysis of data from courts involving family law with periodic follow-up, proper education for lawyers and judges with regard to family violence, and direct child legal representation.

Of concern is also the encroachment of privately funded psychologists and privately funded lawyers into the world of the child, which represents a conflict of interest, as they are paid by engagement and not by outcome. Existing government-appointed medical and mental health practitioners who directly care for the child, and government-funded lawyers who directly represent the child, would remove this conflict of interest and should be prioritized over the corporatization of child welfare in divorce.

We have private third party psychologists now forming expensive corporate programs, espousing predetermined outcomes and promoting questionable psychological frameworks criticized for their gender bias and narrow conceptualization that do not apply to the bulk of the population. These are becoming popular in courts and cost almost as much as court. These programs are even striving to override the voice of the child—whom they've never met—and their health professional team, when they have zero understanding of the situation they're entering, which may include children at risk. A child's voice and the opinion of their health professional team should take precedence over these private psychologist companies.

My brief includes a number of detailed and further amendments that could make dramatic shifts to support children's best interests. Note that it is empowering for children to know that they have voice. Children of abuse especially have had their power taken from them. In many cases, they act out when someone asserts power over them again. To re-establish their voice after abuse is a huge step toward child honouring.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

We'll go to Mr. Wilson.