Justice Committee on Nov. 19th, 2018

[Gus Sleiman]

Equal shared parenting takes into consideration, at its utmost, the best interests of the child. The best interests of the child include that both parents remain fully involved in the life of the child all along. Divorce and separation do not mean a reduction in the best interests of the child or the elimination of that—

[Colin Fraser, Liberal, West Nova, NS]

Irrespective of the fact that Bill C-78 puts in place the principle of maximum parenting time....

Ms. Wolff, can I ask you for your thoughts on this?

[Lisa Wolff]

Again, we use the convention—what the government has agreed to support and what children's entitlements are—to think about how best to understand what their best interests are. Children have rights to maintain relationships with both parents, unless it's against their best interests. There's nothing in the convention about equal time—shared parenting, yes. For some children, equal time might be in their best interests, but we would say that a case-by-case basis means not in every instance.

[Colin Fraser, Liberal, West Nova, NS]

The principle of maximum parenting time makes sense in most cases, but that can be different from shared equal parenting. Is that correct?

[Lisa Wolff]

It is distinct, yes.

[Colin Fraser, Liberal, West Nova, NS]

Dr. Irvine, do you have thoughts on this?

[Valerie Irvine]

I don't know what the issue is. We had shared parenting at 13% in 1995. It's gone up to 70%, so I don't see the crisis that's being carved out at the moment. In fact, the crisis I see being carved out is that the stats on child anxiety are going extremely high—one in five with disorder labels in schools—but that's more of a misdiagnosis, since it's more of a response to trauma than just generalized anxiety.

I believe in the support of case-by-case and looking at strong relationships and nurturing them. That kind of thing is the most important piece. I think the maximum parenting time is ill-advised in cases of family violence. I think that needs to be carved out really clearly. In my brief, I actually said that I believe in striking that clause from the bill, but you can refer to the brief when it's posted.

[Colin Fraser, Liberal, West Nova, NS]

Obviously, all of the other factors have to go into making the decision of what is actually in the best interests of a child.

[Valerie Irvine]

I support the Convention on the Rights of the Child as primacy in this, too.

[Colin Fraser, Liberal, West Nova, NS]

You mentioned that children should actually be represented in order to have their views and their best interests defended. I don't know if you mean in all cases or just in some cases. We're talking about already complex cases, with already opposing sides oftentimes, which makes it very difficult, in some cases, to come to an agreement where both parties buy in. Wouldn't adding another litigant add to the complexity and the difficulty of coming to a conclusion that everybody can buy into?

[Valerie Irvine]

It provides fidelity in child voice and child interests. Currently, we don't have that.

We often have a litigious he-said-she-said back and forth. You can have people motivated over other interests than actually recognizing the child's best interests. Getting fidelity for that is really important. The health professionals should become involved and provide their input, and then you have the option for children to actually express their voices clearly, even through the use of the child reports. They never get to see what's published.

A children's lawyer—from the Child and Youth Legal Centre in B.C., for example—will go over a views of the child report with the child to confirm its accuracy. That's another piece that's putting forward the best interests and meeting their needs.

[Colin Fraser, Liberal, West Nova, NS]

Do I have more time?

[The Chair, Liberal, Anthony Housefather]

No, I'm sorry.

[Colin Fraser, Liberal, West Nova, NS]

Thank you, all.

[The Chair, Liberal, Anthony Housefather]

Go ahead, Madame Sansoucy.

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

Thank you, Mr. Chair.

I am going to follow up on my colleague’s comments. For me, if the child is represented, it will not complicate the situation, it will help it.

Ms. Wolff, in your last sentence, you said that there could be a third party whose role would be to make sure that the rights of children are respected and that their point of view is considered.

For me, that establishes a link with Ms. Irvine’s presentation. In the current system, it is particularly difficult, if not impossible, for children to make themselves understood in a legal environment that is completely foreign to them.

Bill C-78 puts the interest of the child at the centre of everything, but Ms. Irvine and other criminal lawyers and counsel have pointed out the importance of considering the interests of children and listening to their point of view. They also believe that they should be represented by a third party, just as the two parents are.

Ms. Wolff, you raised the legal issue by saying that children should be represented by their own counsel in order to get away from the two-party nature of divorce. You also raised another important point, that we should ensure that children living through the divorce of their parents have access to medical and psychological care, especially in cases of spousal violence.

Could you tell me about those two aspects, that is, children having their own lawyers, and access to medical and psychological care in order to face up to the consequences of the divorce?

[Lisa Wolff]

When we're asking rights holders to claim their rights and express their voices, one basic principle is that it not be harmful to them and that any risks be mitigated. I think children can have some risk in expressing their voice, especially in very high-conflict situations, again depending on the individual child and their needs, whether there is trauma and so on.

Having more support workers trained in working with children is critical, even in situations where children are more readily able to express their views. That will be important for informed expression of views, not just protection.

I think it can take different forms. In some cases, it might be a judicial interview. A lawyer might be a recourse; it wouldn't always be necessary. I think it becomes an alternative probably in more high-conflict situations.

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

Ms. Irvine, I would like to know what you think of my colleague’s comments. He said that the situation is already complicated by the fact that there are two parties and two lawyers, and that adding a third party would make it more complex. Could you tell me what led you to make your recommendation?

[Valerie Irvine]

I'll speak to the point raised earlier about children maybe having a risk to voice and needing health professionals to become involved. That is a type of voice that can be elevated to also represent the view of the child.

In terms of conflict, let's say that the best interests—the health, medical, psychological interests—are clear. They are known by a child's direct health team. If that is not being heard, or there are attempts to suppress it in legal proceedings, that is going to be problematic in supporting the child or having that voice come to fruition.

Again, by bringing in that role.... It doesn't necessarily have to be a lawyer directly with a child; it could be a lawyer supported by the health team, but we need to have those pieces in place. After 10 years of being involved in legal proceedings, to be at the end of 10 years and then to have that wonderful support program pop up and stop everything.... I wish it had been here 10 years ago.

In terms of talking about the impact and whether it is going to create more issues, I would say that it's going to stop litigation that's unnecessary or repetitive or not listening to the best interests of the child for their medical and psychological needs.

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

Ms. Irvine, you said that, if a program like this had existed 10 years ago, the situation would not be the same. Could you be more specific about the program?

[Valerie Irvine]

It just started as a pilot in December in British Columbia under the Society for Children and Youth. It's called the Child and Youth Legal Centre. Again, law, politics and family violence are not my area of research.

Any child in British Columbia can access a lawyer confidentially, out of view of any parent, via Skype throughout the province, for anything from questions about mediation to requests for language rights or gender rights. It's any type of support for children. That's prioritized right now.

My children accessed that program. They were able to get their rights. They were able to have the views report reviewed with them, and they offered to attend in-court via video. After three court dates in the past year alone, it stopped. The only difference in the last one.... Medical and health team members were always there, and letters were always there, but it was the introduction of the child lawyer that stopped everything.

I cannot overstate the importance of bringing in someone to defend the child to change the dynamics. That person is not there for either parent, for anyone's bias, other than to meet the needs of the child. It is so fundamentally critical. It can unclog your courts, and these programs need to be supported.

There is a clause that they could retain monies from the parents. They could petition for reimbursement, but it's free as a default. I honestly believe it needs to be.... It's not going far enough. It also needs to bring in the views of health practitioners. If a family has a family doctor, that doctor knows all of the medical and health issues of everyone in that family. When you have a divorce, if there is something going on, it forces a parent to disclose private medical information about the competency of a parent, for example. How is that going to help? It would be the opinions of medical professionals coming in who could say—

[The Chair, Liberal, Anthony Housefather]

I'm sorry. We have to get to the next question.

Ms. Khalid, go ahead.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Thank you, Chair.

Thank you to the witnesses for their testimonies today.

Over the past three years, I've had a lot of women come forward in my constituency office to describe their marital lives. This past week I had a woman sit across the table from me and describe in quite explicit detail 23 years of physical abuse and mental abuse, with three children under the age of 13.

Can you tell us, Dr. Irvine and Ms. Wolff, what the statistics are when it comes to family violence, when it comes to the difference between males and females? Also, how do you think this bill would impact those three children who have watched for 13 years abuse happen to one of their parents?

Dr. Irvine, you can go first.

[Valerie Irvine]

Again, given that I'm not a researcher in family violence, I can't produce statistics for you, but the impact on children is severe. Post-traumatic stress disorder can present itself as anxiety issues in the schools, for example. Again, I'll point to the increase in shared parenting and the increase in diagnoses and IEPs in schools now. That's a severe impact, and it will carry forward throughout the rest of their lives.

The more we can protect them from that, protect them from violence.... Children know, even at a young age, whether they feel safe or not safe. They may not know their rights, and that is a huge thing that needs to be done, because they know the culture they're born in, and that's the world they know. Being insulted or being harmed, that could be normal to them.

We need to have conventions that communicate and give them those rights, but the damage is severe. As I said, in my community, within walking distance of my home, I get reminded all the time when I walk by those homes that children died there. That's just the tip of the iceberg. There's a huge submerged part, different levels of trauma that are being experienced.

[Lisa Wolff]

Yes, I think Canadian society has a fairly high level of family violence, which about one in five children witnesses. What the best interests criteria do is make sure that decision-makers are looking at those criteria.

You have illustrated perfectly what I was trying to express earlier, that young people need support when they are expressing their views. If they are speaking about traumatic situations or experiences of violence, maybe a lawyer is there to represent their interests as a party—and they are a party in the proceedings—but having child-specific workers to support them through a process of giving voice can be really important as well.