Justice Committee on Nov. 19th, 2018

[Grant Wilson, President, Canadian Children's Rights Council]

Thank you for having me.

The Canadian Children's Rights Council is a leading Canadian group advocating for the rights of Canadian children. There are other groups that do some Canadian rights but mostly international child rights advocacy. Our website, canadiancrc.com, is the most visited website in Canada pertaining to the rights of Canadian children, and it contains an archive of news articles, videos, resources, and all sorts of other items. It is one of the top 10 children's rights websites in the world. We have visitors from over 160 countries every month. In fact, on our busiest day so far, in 2016, we had 397,000 people on the website.

On that website, you're going to see videos that go back quite a way on family law. One of them you might find interesting. I appeared on probably the best CBC TV show on paternity fraud, which is a form of family violence. I was up against one of the best family law lawyers in Canada on that show with Carole MacNeil and Evan Solomon. That show should be watched, so you can understand the gender issues, and how they affect children negatively.

In 1998, over 20 years ago, I appeared before the Special Joint Committee on Child Custody and Access, and our recommendations on the enforcement by government of court-ordered parenting time were endorsed by many groups shortly thereafter. The special joint committee itself recommended that parents be jailed for repeated criminal acts, offences of contempt of court-ordered parenting time. Playing around with parenting time is just causing parental alienation. There are all sorts of issues there.

As a victim of domestic violence, my ex-wife broke into my home to assault me and threaten my life. I was left bleeding and badly bruised, when the Peel Regional Police came in and took her away. They didn't even put her in handcuffs, and at no time did they even talk to me after that. The prosecutors never talked to me at all. Victims' services never contacted me, so I have some interest in domestic violence and know something about it.

When we look at all the StatsCan studies, they show, from self-reporting studies, that men and women are equally victims of domestic violence. Yet, the reporting on this, using police statistics, is that the guy gets arrested 90% of the time. This is the number one weapon we heard. We're back 20 years ago when the special joint committee heard from over 500 witnesses, an equal number of men and women, from across this country, as they toured all the major cities and heard all this. The number one weapon was to claim domestic violence, get the kids, establish the status quo, and then you win.

The UN Convention on the Rights of the Child dictates that children be raised by both their biological parents without interference from the state, unless the child is being neglected or abused to such an extent that the state has to step in to protect them. It doesn't mean there's a big debate over the child's future where everybody goes bankrupt in family courts. Now we have more than half the litigants self-represented, and a court system that's dysfunctional. It doesn't work. It causes this kind of distress to people. The answers we talk about in family law here, you can't even read the 133 pages of this, let alone understand it for the 50%-plus who are self-represented in court.

Finally, we see some movement on these issues from certain provinces. I am delighted to see an order from Alberta, where if a parent doesn't turn over the children on time, he or she will be taken into custody by police to appear before the judge on contempt. Twenty years ago, when you got an order in Ontario to locate, apprehend and deliver the children, the police wouldn't act on it. The Hamilton police were taken to court. Why didn't they do it? That was what Judge Mazza said. It was a lawful order made under the Children's Law Reform Act, and the police wouldn't act on it. Incredible.

Some of the bias that we see even with MPs, in talking to some of them, is incredible. I want to bring your attention to MP Larry Miller, who.... You can read his letter to a Superior Court judge on our website. This is an international child abduction case, where the mother thought she could win a case if she went to Canada from Australia. She's a Canadian, and we have an MP lobbying a Superior Court judge. You can read the letter. It's on there. Just put “Larry Miller, MP, letter to judge” and it will come up on our website.

He's repeating all of these false allegations of domestic violence and everything else that never occurred. The father's side was never heard. The papers are saying that people are raising money to deposit in their bank account, and all this kind of stuff. This woman had so much money from the fundraising that she could hire one of the best lawyers in Canada to represent her and appeal on this. I watched at the court of appeal, and she lost on that, so the child was going to go back to the habitual residence in Australia. The child is entitled to Australian and Canadian citizenship. The child is doing very well, by the way. The power of these people who come up with false allegations of domestic violence is just incredible.

Over the last 20 years, there's been a huge problem with boys. Ten years of research is in The Boy Crisis book, which you should read. Every MP ought to read this. Eighty per cent of suicides are males. If you want to look at depression and all of these things, look at the facts. A lot of this stuff isn't even studied. If 80% of suicides were women, we'd have a day of silence every week. Who cares? They're men. This is incredible.

Boys now are so afraid of getting into relationships with females that we have MGTOW—men going their own way—because they don't want to get into the same scenario that we've seen here in family law for the last 20 years. They're victims of the family law system, where there was just chaos in the parents' life. Because we're so popular on the Internet, we've had a lot of phone calls over the last 20 years from parents. I have taken thousands of them, including from parents whose children have committed suicide. I had one last week. The child committed suicide because of all the conflict between the parents.

You people promote that. You make them go to court and fight over this stuff. You have a right to both parents, and to be raised by them. Yet, you people want to have all these rules, and under certain circumstances you can move away from the other parent and eliminate them. If you read this book, it will tell you how important fathers are, as well as mothers, to children's well-being, what they learn from their fathers and their important role.

You read in the news about mass shootings by boys in the U.S., and one in Canada, and another situation with a truck. If you want to read that, it will explain that nearly every one of them was a fatherless child. They didn't have a good role model, their father. It's incredible what's happening out there.

[The Chair, Liberal, Anthony Housefather]

Mr. Wilson, you've exceeded your time.

I'd ask you to wrap up, please.

[Grant Wilson]

On the issue of child identity rights, which is something we coined about 15 years ago, 10% of the Canadian population is misidentified on birth records. There are all sorts of falsifications on those. This is a provincial matter, but you ought to have concern about that because it's a charter rights issue as well.

If you look up “Mommy's Little Secret”, from The Globe and Mail, 2002, which you can read on our website, you'll see that over 10% of Canadians are victims of paternity fraud. This is what the Hospital for Sick Children published in The Globe and Mail. This is violence against children. You have a right to your identity and your heritage, no matter what it is. We want governments to do their job and enforce birth registrations properly. They want all these people who don't even exist to begin with, which.... There's an opportunity to falsify people.

[The Chair, Liberal, Anthony Housefather]

Mr. Wilson, you're at 10 minutes now, so I have to wrap you up.

I move on to Mr. Sleiman and Mr. Hamaliuk.

The floor is yours.

[Alan Hamaliuk, Vice-President, Men's Educational Support Association]

Thank you, honourable Chairman.

Thank you, honourable members of the committee.

We started out as a men's educational support association. It's a charitable organization established in 1994 to help fathers and men in domestic crisis. Our organization has evolved to provide service, support and information to parents—both mothers and fathers—about divorce and family violence issues. Our organization, MESA, is especially proud of the program and the purchase of a house for supervised access in the city of Calgary, which helps fathers and mothers alike. Because the cost of supervised access was so high, we had to have a low-cost alternative.

MESA believes it is in the best interests of all children to have both parents able to participate fully in their lives, even after divorce or separation. This is the concept of equal parenting. The proposed amendments to the Divorce Act do not include the fundamental principles of equal, shared parenting, which leaves this act without a heart to solve current divorce issues.

If the Divorce Act is not amended to include equal, shared parenting, it will continue to be an extension of the current dysfunctional system and may well increase litigation. Canadians deserve a lasting and fair solution that incorporates equal parenting.

I'll pass it on to our president, Gus.

[Gus Sleiman, President, Men's Educational Support Association]

Thank you, Alan.

About 25 years ago, one good person began the process of changing and raising awareness about the issues of divorce. Senator Anne Cools helped put together the Special Joint Committee on Child Custody and Access. During those times, discrimination against fathers and men was extreme, at the highest levels. That committee's main objective was to discover all the issues and come up with solutions.

We see in the current Divorce Act most of the elements already included in the proposed amendments, with the exception of one very important element, which is the presumption of equal-share parenting. That gives the parents an equal level, starting equally, and the courts can decide after that if there's an issue of violence or any other matter to depart from this particular principle.

From that time on, we have had a large number of government officials changing their minds about the issues of divorce, and they began to support the concept of equal-share parenting. We know already from several bills that went through Parliament that the numbers are almost over 50%. We know which bodies are doing the support and others who cannot speak directly to these issues, so we're asking the government to open the floor for every MP to speak their minds about those issues. It's very important. This issue affects every parent, every mother, every father, and every child in the country. We have serious issues involved, including emotional and financial.

At our parent-child access centre, which Mr. Alan Hamaliuk spoke about, we help a lot of parents. In the last several years, we have seen a tremendous change in that process. We are seeing mothers coming in under supervised access, which is something we haven't heard about before, let alone us, as a men's organization, to help fathers.... We do respect mothers, and we respect fathers. We want them to be involved. We help those parents to resolve their issues directly. We help other fathers pay custody and level the issues between the mothers and the fathers. This is the approach that we need to take.

We know the issue of domestic violence. We've heard about it a lot already. Domestic violence is not a gender issue; it is a human issue. It affects all of us. Mothers and fathers, men and women, abuse each other at almost equal levels. Eventually, the Government of Canada came up with information, available from StatsCan, to indicate that fathers and men are abused at very equal levels to mothers. The issue with fathers and men is that they do not come forward as they're supposed to, and they are not reporting the issues of violence against them. We have to depart from that process of using violence as a scare process to tell the courts and the judges that we have to give custody mostly to mothers, because men and fathers are always violent. That's not true. False allegations are filling up our system.

The Divorce Act, the way it stands right now and the new elements in it, basically implicates every father and every mother who, for some reason, would not want to say a word or anything that might upset the other parent. The courts are not going to extreme lengths to investigate those issues and to make a proven fact whether violence has taken place or not. We stand against the violence. If there's violence, whether it was against the other parent, the spouse or the child, no parent should be close to that child. That's not to be confused with the issues that other groups are coming in to tell us about and convincing the government officials that it's only violence that has to determine the issues of divorce.

Other jurisdictions all over the world, basically, have implemented the concept of equal-share parenting, beginning in Australia. We know already several states in the U.S., most notably Arizona and Kentucky, which recently passed direct presumptive equal-share parenting process in their laws. We already have enough studies from researchers in the field that indicate that parents should have equal time with their children. Dr. Fabricius has done an enormous amount of work. He studied the most recent Arizona custody laws and found out that parents should remain with their children equally all the time, departing slightly depending upon their situations and their issues, whatever they face.

We have the issue of relocation. These are the most difficult cases that the courts face. We already know about important cases in court and how they've developed. What we see in the new Divorce Act is another section to place the burden on the non-resident parent, basically. If a parent decides to move with the child, they have to prove that the move should occur, which we totally reject. The burden of proof will always remain on the parent who wants to move away with the child, because we already know from the study that it affects the children tremendously. Their psychological development, their abilities and every aspect are affected. We support the mobility of reunification; we don't support the mobility of isolation and deprivation.

Children are deprived of their parents, especially fathers, and that leads to tremendous social issues in our society. If this trend continues, we will devastate our families, and we will devastate even our governments, because a healthy government comes from healthy families. Even though the divorce takes place, there's no reason to continue with that hostility against both parents. We already know this from many experiences in our groups, from people who come to us and tell us about their agony and the issues that they face from custody, access, child support, and family violence.

Family violence is the least thing they talk about, because it's the least thing that can happen in divorce cases, contrary to what we're hearing. False allegations are widespread and are considered family violence. This cannot dictate the process of the divorce. We have to depart from those assumptions about issues of violence and determine them 100%.

[The Chair, Liberal, Anthony Housefather]

Mr. Sleiman, you've passed your time, so I'll ask you to wrap up, please.

[Gus Sleiman]

Okay. Thank you.

We would ask the committee in its final recommendations to recommend that equal-share parenting become the main issue to solve the divorce issues, because where parents don't have to fight, they understand that they are equal at both levels, and they sit down and want to mediate properly with each other. That resolves most of these issues.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Ms. Wolff, go ahead.

[Lisa Wolff, Director, Policy and Research, UNICEF Canada]

Thank you very much.

I'm Lisa Wolff. I'm the director of policy and research at UNICEF Canada. You may know UNICEF as the United Nations International Children's Emergency Fund. We have a presence in more than 190 countries. What we do in low- and middle-income countries is different from our role in high-income countries, but the one thing that unites UNICEF everywhere is that we work to promote decision-making, including legislation, consistent with children's universal human rights, which are their entitlements and our obligations.

The Convention on the Rights of the Child is really a fundamental instrument that is a practical tool to help make decisions and make legislation that is truly in the best interests of children. It's 29 years old tomorrow on National Child Day in Canada. I've been working with the convention in policy for about 20 years. As I reflect on one of the greatest challenges around supporting the realization of children's rights, it's in the recognition that children have the ability to participate in decisions that affect them, that they have capacity even from a very young age. And when they do that, it's a really strong, protective factor and it makes decisions better.

I'm really pleased to be here because I think this bill, Bill C-78, proposes some improvements that really help Canada bring its obligations into alignment with legislation around divorce. Close to a quarter of Canada's children and youth are affected by divorce, as you know, so the efforts that you have under way to make this process better for them and make the outcomes better for them, at least in terms of the proposed changes, are significant.

UNICEF Canada very much welcomes, in particular, the measures that affirm that children's best interests are the priority, and that help define to some extent—at least better define—what those best interests entail. These measures expand protections for children, support parents to fulfill their roles and responsibilities, and reduce delays, costs and adversity for families, but more specifically go towards better outcomes.

Enacting the changes that are proposed in Bill C-78, by and large, we think, would bring Canada into greater alignment with children's human rights obligations and entitlements and with the intention of the Divorce Act, as stated in its preamble.

Essentially, I'm speaking to two things: the call on us to give priority as the decision-makers to children's best interests in all decisions that affect them, and to recognize that when young people have the opportunity to participate in decisions, the process and outcomes are, again, generally better for all of them.

I think that affirming, as the bill does, the best interests of the child as a common north star for all parties, for everyone involved in the process of divorce, is laudable. Few object, of course, to giving priority to the best interests of the child. I think you will not hear witnesses say we shouldn't do that, but the challenge has always been that there are very divergent views about what “best interests” is. It was used to justify residential schools in Canada.

What the convention does is give a definition of what “best interests” is. It actually offers three approaches that are really helpful in deciding best interests and establishing what those are.

One is that we can think about best interests as the option for the child or children that best supports all of their interconnected rights, their human rights that are in the convention. These are things like access to education or supports for disabilities or language and culture.

Second, the views of the child really indicate what is in their best interests. They are one of the strongest clues we have to what will actually be in their best interests.

The third approach is that a case-by-case assessment of best interests, wherever possible, tends to make the most sense in legislation. Sometimes, for administrative reasons, we have to set arbitrary minimum ages, such as for driving or marriage, but when it comes to children in cases of divorce we can make case-by-case decisions and those will look different for every child in terms of the balance of the rights that can best be realized to support them.

Fundamentally, we applaud the way that Bill C-78 creates new criteria for shared understanding to apply the best interests. We think it's a good move to offer some clear criteria. It supports an overall assessment and balancing of many different factors that are consistent with children's rights, as opposed to a hierarchy, which we often think of in terms of certain needs that have to be met first and other things that are less important. Taking the convention's approach, we look at many different interacting factors, and the balance will be different for different children. It's not a checklist of requirements in which we have to meet every single element of consideration for every single child.

I think that flexibility and a case-by-case situational approach are really key, and the criteria just help us to remember to think of certain things, and help decision-makers, the courts and the adjudicators remember what to think about when they're thinking about best interests.

The other aspect of best interests that I mentioned, the importance of children's views, is also really welcome in how the BIC criteria, and particularly proposed paragraph 16(3)(e), recognize that children's views and preferences are a factor to be considered. Importantly, the bill doesn't set an arbitrary minimum age for doing that. It also recognizes that some children may not wish to participate in expressing their views.

We have just a few changes in the bill, ways to better protect the rights of children to have their best interests considered and their views considered. I think there is a bit of a paradox in setting out best interest criteria, because then “best interest” does take on a certain meaning and weight based on what is included, and therefore what is not included also becomes important. We would recommend that explicit consideration be given to children's convention rights as other factors that can be brought in.

The best interest criteria mention stability, and they pay a lot of attention to violence and protection, which are critical, but rights to access education or, as I mentioned, special supports for disabilities and to continue language and culture could be brought into consideration if it were mentioned that the convention rights are important considerations in determining the best interests.

Second, in terms of the views of the child, currently those are just one of many considerations in the BIC criteria, and we have some challenges around consideration of due weight for maturity. That's language you often hear in legislation around children's voice: give due weight based on the age and maturity of the child. We would say that due weight has always been a problem, because children can offer views, which is one half of the equation, but they're not always given import. They're not always persuasive, and they can easily be ignored. I think we would want to emphasize that even the views of young children, who may not have maturity, should be considered and taken into account.

One way to correct for some of the challenges of actually taking kids' views into account is to consider elevating the views of the child as a primary consideration. I am careful in recommending that, because I feel that once you start elevating certain priorities, you again get into this hierarchy rather than a careful balancing, but if we were to elevate any consideration that is not currently there, it would be that the views of the child need to be given due weight and considered in decision-making.

I also think there's an onus that could be clearer around reducing barriers. We acknowledge that not all children may wish to express their views, and for good reason, but I think the onus is to reduce barriers, whether by helping to ensure that they are informed or through third parties that could help them, or through views of the child reports, to make it safe and to make it a good experience for them.

Thank you very much.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Thanks to all the witnesses.

We'll move to Mr. Cooper for the first question.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Thank you, Mr. Chair.

I want to drill down a little bit on the issue of the presumption of shared equal parenting.

Mr. Hamaliuk or Mr. Sleiman, perhaps you could answer some of the questions I want to ask.

I think it was Mr. Hamaliuk who made reference to the special joint committee in 1998. In that report, the presumption of shared equal parenting was not endorsed by the special joint committee, but one of the things that the committee did recommend was that under section 16 of the Divorce Act there be a number of principles enumerated respecting the best interests of the child. That is something that Bill C-78 does do.

One of the factors recommended by the special joint committee was the importance and benefit to the child of shared parenting. Would you see that as something that would be an improvement to the legislation?

[Gus Sleiman]

Yes, of course.

I mean, we presented to the joint committee at the time. The recommendation, the central focal point, was to have equality in parenting. Now, the Divorce Act, with the current proposed amendments, if it's not in there, what's going to happen is a continuation of the present system as it is. With the exception of increasing certain elements, that means the conflict is going to escalate if that shared parenting concept is not introduced into the Divorce Act.

That was the hard work of the committee, except from that time until now a large number of MPs changed their mind about it. We educated the public. We educated the MPs and the government about the issues facing parents and what's happening in our court system. This will reduce the conflict of the parents. When they understand that when entering the court system or going through a divorce they are equal, at the same level, they could sit down and resolve their issues. That will help them not to fight about these issues.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Thank you for that.

What would you say in response to those who might say, well, this presumption really isn't required or it need not be incorporated into the list of factors that the court may consider in determining the best interests of the child with regard to proposed new section 16.2 in Bill C-78, which is in respect of the maximum parenting time, which recognizes to a degree that it is in the best interests of the child that it be considered by the court?

What's wrong with that?

[Gus Sleiman]

We already have in the current Divorce Act a section that talks about the maximum contact with the parents. What we're seeing is that, when a parent obtains custody of the child, basically they start excommunicating the other parent, removing the other parent completely from the life of that child. Our courts are basically giving.... When it comes to enforcing the act, as you already know, what happens in all cases is that it takes a lot of fight in the court. We have several cases where.... In Ontario, one of the cases went to court 40 times. Eventually the judge said that was enough.

This will always escalate the fights about these issues. That means we don't have access enforcement. We have child support enforcement. When fathers come to court to ask about the issue of access to their children, it's not given the same weight as for child support. By the way, the mechanism that we're introducing into the Divorce Act to enforce child support is completely separate and different from when we want to maximize contact. With the equal parenting concept, parents are always going to be equal. This is the main starting point of this whole process.

We can assure everybody else about the issues of domestic violence and the issues of child abuse and matters like that. We want the court to protect children from that. We want the court to protect fathers. We want the court to protect mothers, as well, from those particular issues, so there's no fear about what they are going to face. Their concentration should always be on their children's interests, and equal shared parenting will provide that principle for them.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Right.

How much time do I have, Chair?

[The Chair, Liberal, Anthony Housefather]

You have a minute and a half.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Okay.

You were right when you made reference to the maximum contact section, subsection 16(10) in the Divorce Act.

You made reference, though, to the Australian experience. Maybe you could elaborate a little bit on that.

I'm just looking at a study that was conducted by the Australian Institute of Family Studies, which is a government entity. It's from 2011. It says, “Post-reform, shared care remains unusual in the broader community—about 16% of the...recently separated parents who participated in the Australian Institute of Family Studies [longitudinal study]”.

I don't know if you have any insights on the outcomes in Australia based on the reforms that were implemented in 2006 and then ultimately reversed to 2012, from the standpoint of outcomes.

[Gus Sleiman]

By the way, we participated in this particular approach for the Australian government. We submitted a brief on all these issues, and we were pleased that the Australian government introduced the concept of what they call “shared parental responsibility”.

We already know there are cases where parents are satisfied. We already know that from reports we are receiving. Maybe it's not 100%. We already know that, just as we can see in Canada, the Australian government, Australian agencies and government organizations constantly oppose fathers, and men, and raise issues of domestic violence. These are obstacles in the way of parents to achieve equality in parenting.

We already know it's working for all the cases that want it to be, because the parents still have that option, by the way. They are not completely restricted to take it equally. We can vary the time, and we vary the responsibilities. They can always share all of that. This is already included in the law. You can adjust it as much as you want. It doesn't have to be fifty-fifty. It doesn't have to be ten-ninety or forty-sixty. The way we have it right now is, well, I'm not going to pass the 40% mark because of the issue of child support.

I want to mention one more thing about the issue of poverty, by the way. The poverty that we're claiming, let's trade it for parents looking after their children, rather than having to look after their children 100% of the time so they don't have time to work. If we allow them that opportunity, the parent who is the poorest, let's say, can go and find a job and allow the other parent to share the responsibility for taking care of the child. This is one issue we need to carefully look at to resolve. That could resolve the issues of child support altogether and the complications around it.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Mr. Fraser, go ahead.

[Colin Fraser, Liberal, West Nova, NS]

Thank you, Mr. Chair.

Thank you, all, very much for being here today. We appreciate the testimony.

Mr. Sleiman, I will continue on with you. I understand what you're saying in response to some of Mr. Cooper's questions. I think Ms. Wolff alluded to the fact that family law cases, in particular, have to be done on a case-by-case basis. Each situation is different and unique. The needs of each child in these cases are unique and different things have to be balanced.

Don't you think, therefore, that it is important that Bill C-78 is enshrining the principle of the paramountcy of the best interests of the child in these decisions?

[Gus Sleiman]

The best interests of the child are still the paramount principle to guide our courts. However, it has to be connected to the equal shared parenting principle. That's what we look at, the best interests of the child, not an individual, because we know that the courts already decide cases on the best interests of the child. They have been doing so in all the cases. In the process, they eliminated fathers out of the lives of the children. We already know that society is facing a serious dilemma with children: teen suicide, violence, drug and alcohol abuse, and issues like that.

[Colin Fraser, Liberal, West Nova, NS]

What you're saying, though, is that it's correct that there should be a paramountcy of the best interests of the child so long as it lines up with shared equal parenting. Is that what you're saying?

[Gus Sleiman]

Absolutely, because we still have to determine the issues of the interests of the child in terms of the equality itself. We cannot put parents on the side and say we're going to pick and choose which interest fits that particular parent because we have already seen judges moving in that direction all along. They come up with an issue, the primary caregiver, for example. Well, most of the time we already know mothers stay at home and fathers go to work. This does not eliminate the issue of equality in parenting because you need the two elements to create that family.

[Colin Fraser, Liberal, West Nova, NS]

It would seem to me, sir, and I will suggest that you're saying that the paramountcy is the best interests of the child, but really what you're saying is that paramountcy is shared equal parenting, and therefore case-by-case doesn't really match up. You're saying that this should be the first thing, that you look at it from the point of view that it should be a shared equal parenting arrangement, and then you look at all the other factors that should go into the best interests of the child.

I put it to you, sir, that this is not necessarily taking into account the best interests of the child. You're starting from a point of shared equal parenting. Is that right?