Justice Committee on Nov. 19th, 2018

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

Thank you.

How do you think this bill would impact, going forward, those children who are coming from family violence, in terms of really looking out for their best interests? Will this bill really fulfill that need?

[Lisa Wolff]

I think it stands a good chance of doing so in a stronger way, because it is much more explicit that this is a factor to be delved into.

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

Dr. Irvine, go ahead.

[Valerie Irvine]

I think it's making great movements in its current form, but it still needs more revision to address family violence appropriately. There are a few briefs out there that are very strong, from NAWL and UNICEF, and the Canadian Coalition for the Rights of Children. I have also put one together that goes through what I believe could have prevented harm to children.

We're getting close, but please pay attention—take one of those cases and apply it to see if it fits. See if it supports those cases of violence and see how it supports those children.

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

Can you speak a little bit about the revisions you're proposing, and how they would impact children like those coming out of family violence?

[Valerie Irvine]

Yes. Well, I have 12 pages of a brief. I didn't want to go through all of those things.

We need to bring in integrated services and, as I mentioned, data analytics. We need to have information about judgments and the errors they're making. We need to collect data about the gender and the various characteristics of litigants and of judges. We need to bring in education about family violence as well, and track those over time.

I was actually shocked to find out that a lot of our law programs don't have statistics heavily brought in, or those types of high-level analyses of programs. I think we need to have some of that brought in, the larger data analytics, so we can minimize type 2 errors.

We need to minimize maximum parenting time, maximize child voice, and restructure some of the layout of the sub-pieces where children's views are a “factor”. I would have to bring up the clause exactly, but I think it needs to be moved out as a priority, not a factor.

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

Do I have a bit more time?

[The Chair, Liberal, Anthony Housefather]

You're at six minutes, sorry.

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

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

I want to tell the witnesses on this panel that we really appreciate their testimony.

Thank you very much. It was a great pleasure to have you here.

We're going to move to the next panel.

I would ask everyone on the next panel to move forward as quickly as possible.

We will have a short recess.

[The Chair, Liberal, Anthony Housefather]

It's a great pleasure to have our third panel of the day with us, on Bill C-78.

I would like to introduce, as an individual, Mr. Rollie Thompson, who is a professor at Dalhousie University. Welcome.

From the Canadian Association of Social Workers, we have Ms. Janice Christianson-Wood, who is the president, and Ms. Sally Guy, who is the director of policy and strategy. Welcome.

From the Canadian Equal Parenting Council, we have Mr. Glenn Cheriton, who is the president. Welcome.

From Harmony House—which the committee had the privilege of visiting in Toronto—we have Ms. Leighann Burns, who is the executive director. Welcome.

From Germany today, we have Mr. Edward Kruk, president of the International Council on Shared Parenting. Welcome, Mr. Kruk.

Because you are on teleconference and it's so late there, we have agreed to put you first on this panel. You have eight minutes. I will turn the floor over to you right now.

[Edward Kruk, President, International Council on Shared Parenting]

Thanks to the standing committee for the opportunity for me to discuss with you today a child-focused, evidence-based approach to the best interests of children of separation and divorce. I should say I'm a professor at UBC in Vancouver. I would have preferred to address you in person, but I am on my way to Strasbourg for a conference on shared parenting, children's rights and social justice sponsored by the Council of Europe. I will be making a similar presentation over the next few days.

My jumping-off point is what I expect will be the jumping-off point for many presentations, and that is the UN Convention on the Rights of the Child, article 3, which states, “In all actions concerning children...the best interests of the child shall be a primary consideration.” The concept of the best interests of the child is referenced in seven other articles of the convention.

If I make only one point, it will be this. In Canada, the best interests of the child are really nothing but what Hillary Clinton many years ago referred to as an empty vessel into which adult prejudices are poured: the idiosyncratic prejudices, biases and ideologies of individual judges who have little or no training in the complexities of child development and family dynamics.

Today, the extremely damaging impacts of adversarial resolution of parenting after divorce disputes occur within the context of a divorce law that proclaims that the best interests of the child are its guiding principle. At the same time, in the arena of child custody, the best interests principle is used to justify any number of harmful policies and practices.

Parents justify their own interests by using the language of “best interests”. Judges justify their subjective biases by using the language of “best interests”. An ever-growing industry of professionals impose their views on the best interests of the child. Children are basically at the mercy of whoever has the most power and influence to impose their will regarding the best interests of the child.

We pay lip service to the best interests idea. We claim it's the guiding principle in our laws, policies and practices with respect to children, yet we seem to have no clear definition of what these best interests are, and rarely do we assess the impacts of our laws and policies on children. Rarely do we consider the best interests from the perspective of children themselves. It's almost always from the perspective of adults, and when adult rights clash with children's needs, the interest of adults almost always win out.

In so-called contested child custody cases, although it's generally understood that judges make residence awards such as primary residence to one or the other parent, in fact what they are doing is removing a fit and loving parent from the lives of children under the guise of the best interests of the child, which is in effect a type of parental alienation that is increasingly becoming recognized as a form of legal violence against children and families. It's exactly the same as the removal of first nation children into residential schools or the removal of young children at the border from the embrace of their migrant parents. That's what the best interests of the child standard in Canada in the arena of family law is all about.

My remarks focus on the majority of divorcing parents, where family violence and abuse is not a factor. I'm not talking about situations of family violence and child abuse on the one extreme, and I'm not talking about, on the other extreme, co-operative parents who are able to jointly agree on the parenting of their children after a divorce. Parental autonomy should be the cornerstone of family law in those cases. I'm talking about non-violent, non-abusive but high-conflict parents who are unable to agree on the post-divorce living arrangements of their kids.

The type of best interests approach being upheld by the Minister of Justice and the drafters of this bill is a discretionary standard that empowers those who really don't have the expertise in these delicate areas of child development and family dynamics to make life-and-death decisions.

There is a viable alternative to the discretionary approach, and that is an evidence-based and child-focused approach based on a strong foundation of research studies examining the best interests of children from the perspective of children and parents themselves, who identify shared parenting, in fact, as being in the children's best interests.

There are now over 60 studies that have compared child and family outcomes in single-parent and shared-parenting families, which have found that there are two main factors associated with child well-being and the best interests of children of divorce. The first factor is the maintenance of ongoing parent-child relationships with both parents, and shared parenting produces the best outcomes in this regard. The second factor is children being shielded from family violence and ongoing high conflict, and again shared parenting produces the best outcomes in that regard.

You will hear over the next days and weeks from countless experts in the field who will have very strong opinions concerning the best interests of children, but primarily they are going to be guided by their own ideologies about what is in the children's best interests, and these will be asserted with little or no research evidence to back up their positions. If you are influenced by their impressive rhetoric, then divorce law in Canada will remain exactly as it is now, which has been in many ways quite disastrous with regard to the harm it has produced for children and families.

I am suggesting that you think about adopting a new approach to the best interests of the child, one that is child-focused and evidence-based.

You'll also hear from opponents of shared parenting that a legal presumption of shared parenting is essentially a fathers' rights position, which is a complete mischaracterization and, I believe, an attempt to marginalize proponents of shared parenting, who are in fact mainly parents and children themselves. Equating shared parenting with fathers' rights is a last, desperate attempt to deflect your attention away from child-focused research on children and parent outcomes in primary residence versus shared-care arrangements.

I have a few other points. I realize my time is drawing to a close.

Parental alienation is becoming recognized as a much more serious and debilitating form of both child abuse and family violence. It affects far more families than most of us assume. It is far more commonplace than most of us assume, and it flourishes within the present system. There are now over 1,000 articles on the topic of parental alienation.

Shared parenting is a bulwark against that. It is a preventative measure with regard to parental alienation, which is now recognized by the World Health Organization in the international classification of diseases. The American Psychological Association has just struck a committee to examine the impact and prevalence of parental alienation. That's another key factor.

In non-divorced families, shared parenting is now the norm. Family life today is characterized by the shared responsibility of both parents in both family work and work outside the home. We promote the idea of shared parental responsibility in two-parent families, yet we seem to turn a blind eye to that idea post-divorce.

I would also say that a rebuttable presumption of shared parenting is compatible with a rebuttable presumption against shared parenting in cases of family violence, where children's safety and the victim's safety should always be the priority, and this is very much the position of the International Council on Shared Parenting.

A final point I would make is that there is really no moral, legal or scientific basis for the removal of a fit and loving parent from the daily life of a child. There is no justification for removing a parent from the life of a child in a situation where there is no neglect or abuse present. I would suggest that it is the responsibility of the committee to reform the Divorce Act in a way that will support parents in the fulfillment of their parenting responsibilities for their children's needs.

Shifting away from a rights-based focus to a responsibility-based focus is the measure by which Canadians will be able to ascertain the degree to which you are truly committed to the best interests of children.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

We'll move to Professor Thompson.

[Rollie Thompson, Professor, Schulich School of Law, Dalhousie University, As an Individual]

Thanks for the chance to speak to the committee.

I'm appearing as someone who has practised and taught family law for—I hesitate to say it—almost 40 years. I teach family law at Dalhousie University in Halifax, Nova Scotia.

I understand you don't have my written brief yet, but I want to emphasize, following what Professor Kruk said, that in the brief you will actually see the research. I've given you some citations in my eight-page brief on that.

In general, I'm supportive of Bill C-78. I think it's fair to say that, if anything, it's overdue.

With the time I have, I want to focus on three points about relocation. It's one of my areas of research over many years.

I come from the province of Nova Scotia, which has in fact passed legislation on relocation that looks very much like the proposals in Bill C-78. We've had it in place since 2017. It's early days, but I think it has been fairly successful so far. B.C. also passed provincial family legislation involving relocation, which came into effect in 2013—less successfully, I think it's fair to say.

Here are my three points, and without the brief, I'm going to try to be as pointed as I can.

First, the relocation burdens in proposed section 16.93, which have been talked about already, would provide important guidance to parents, lawyers, mediators and courts that is desperately needed. I think there is general, broad support for bringing some order in this area of law. It's a critical part of the bill. I'll explain the underlying rationale.

Second, there is a minor tweak I'm going to suggest in the section on mandatory notice of relocation and also the other two kinds of mandatory notices in the exception. I'll be brief on that.

Third, generally speaking, the added best interest factors on relocation, including the reasons for the move, I think are helpful and clear. It's similar to what we did in Nova Scotia. There is a proposed subsection 16.92(2), and I'm going to tell you why I think it should be deleted.

At the heart of the relocation part are the burdens that are set out in proposed section 16.93.

As little bit of backdrop, back in 1996, the Supreme Court of Canada decided a case called Gordon v. Goertz, which has already been referred to today. It's fair to say that the decision gave very little guidance on how to deal with relocation cases. It has led to case-by-case decision-making. I think it has actually encouraged litigation. It's been heavily criticized. It's important at this point in time to bring some structure and guidance to the difficult decisions on relocation where the court did not.

The court has had 21 opportunities since 1996 to give leave to a case involving relocation to reconsider Gordon v. Goertz, and they've turned them down every time. My point is that it's a matter for legislation. The courts aren't going to change that.

The starting point is burdens of proof about what's in a child's best interest at the relocation stage. I think the three-way split that is set out in that section is consistent with what social science and empirical studies can tell us. I think it's important to say what we know and what we don't know about how relocation affects children, hence the three different categories.

There are three categories in that section on burdens that are built around the care arrangements already established under agreement or court order. It's a fairly sophisticated attempt to give some guidance and to reduce litigation.

The first says that when the child spends “substantially equal time in the care of each party”, the burden of proving that a move is in the child's best interest is upon the parent proposing to move. That's the first one.

You might ask why. The answer is that when you have both parents actively involved in that substantially equal way, the child can stay with the remaining parent and gain the advantages of continuity of care, community, schools, day care, friends and family. That burden can be met by someone proving, to the contrary, that in fact the move is in the child's best interests. It's important not to treat this like a rule. It's just a starting point.

By the way, in practice, right now, in cases where there is substantially equal parenting, it's relatively rare that moves are permitted. It's fair to say that 70-75% of the moves are refused in these cases. I think it's fair to say that the ones where moves are allowed are the unusual cases. In typical cases, the answer is no; the children don't get to move.

Second, at the other end of the spectrum under that section, where one parent has the care of the child for the vast majority of the time, it would be up to the parent opposing the move to prove that a move would not be in the child's best interest. We assume as a starting point, and I'd say rightly, again, that continuity of care with a predominant primary caregiving parent the vast majority of the time is going to be critical to the child's well-being in the future.

By the way, in existing case law in Canada, in cases such as this, where someone has the vast majority of the time, courts allow moves in about 90% of the cases already, so this is reflecting also what's happening before the courts.

I'll give you some examples in this category. We have cases where a remaining parent, for example, cannot offer a viable alternative as the primary care parent if the other parent moves. We also have a fair number of cases—I want to mention this—of young mothers, because that's what they are, coming to Canada with a Canadian father. They'd met overseas, and then they split up. She has no family here. She can't speak the language and is often unable to find employment. She has a young child and applies to move back home. That's someone who has the bulk of the time, “the vast majority” as the language says. Those are a couple of examples.

In between those two, what the legislation proposes to do is add a third category that says that both parents have the burden of proof when they don't fall in either end, in one or the other, because quite frankly, we don't know enough about that category of cases to say that we have a sensible starting point. We just don't know, so we have to accept the limits of our knowledge at the present time.

That's quite a mix of cases. The ones in the middle are cases where people have been shifting their care arrangements, cases where people have lessened “the vast majority” or fall slightly short of “substantially equal”. It's a mixed bag, and it's very hard to tell what's in the best interests of the child in those cases, hence no assumption either way.

By the way, those two extremes, “the vast majority” and “substantially equal”, would account for about 65% to 75% of the relocation cases, where you can give helpful guidance to people who are out there trying to sort out their lives.

In Nova Scotia, we've had this three-way split in effect only since May 2017. It's interesting. Our courts have had no great difficulty sorting out who falls in which of those three categories. If anything, I'd say Bill C-78 is probably easier to administer than what we have in Nova Scotia.

These burdens would make a big difference. It would help resolve cases and remove some, but not all, of the uncertainty.

That's the first point, and I'm keeping an eye on my time.

My second point is on mandatory notice of relocation. One thing I want to mention is the 60 days' written notice to the other parent of the intended move. There's an exception that you can be exempted or have that modified, and there's a specific identification of a risk of family violence as a case. One thing that should be made clear, and it isn't—and on page 4 of my brief I actually suggest the wording—is that when you're applying to exempt yourself from the requirement to give notice, it should be possible to make that application without giving notice. I think that's the intention of the section, but it should be made clear that the application can be made without notice to the other party—for example, in a family violence setting. This is just to leave no doubt.

I hope I have enough time here. The last point I want to make is about the so-called double-bind question. There's a list of relocation factors that it says you can look at for the reasons for the move, and you can look at some others, but there's a provision in there that says:

the court shall not consider whether the person who intends to relocate...would relocate without the child if the child's relocation was prohibited.

It's what we call the double-bind question. That provision comes from the B.C. act, and it has caused a lot of difficulty in that province. We in Nova Scotia said we didn't want to get into this; we didn't include it.

Here's the double-bind question. You ask the parent seeking to move, “Will you move without your child?” What do you think the answer is going to be in most cases? It would be “No.” Some people have said the question is unfair and doesn't give us any probative information. That's the thing about the double bind. If you say, “Yes, I am going”, what's the implication of that? “I'm more important.”

The important thing to remember here is that courts can't tell parents where to live. Courts can only tell whether the children can move or not. Courts can't order parents to move or not to move, so the parent's intentions are important.

The other thing worth remembering is that 90% to 95% of the parents proposing to relocate are women, so the question falls upon them.

Think about the difficulty here. The fear that's underlying that question, or the answer to that question, is that if the parent says, “No, I'm not going to move without my kids”, that obviously means the move isn't so important, and there's a tendency for the courts to default to the status quo—that is, not to allow the move.

The difficulty here is that, if you think about it, that's a question for the parent proposing the move. Can you ask the parent who is not moving if they would move to the new location to be with their kids? Is that a fair question? This legislation doesn't stop that. Many parents will volunteer that they won't move without their kids. Does that mean you have to ignore that answer? It says, “shall not consider”.

I'll give one last example and then I'll stop. If you have a situation where, let's say, mom proposes to move from Ottawa to Calgary where her new partner is located, under our approach right now in Canada we say to the new partner, why can't you move from Calgary to Ottawa? That's a question we allow to be asked. It's an important question, because sometimes it can avoid the conflict. Can we ask that question? The answer is yes. We can even ask grandparents whether or not they intend to move with the grandchild. As a grandparent, how would you answer that question?

The reason I'm emphasizing this is that the provision says.... I know it's awkward to give that answer, but sometimes it may give the court important information about what the realistic options are. Leaving that provision in means that the court can't consider the answer to that question, when the answer to that question may be really important in knowing what the best option for the child is.

I'll stop there. I have other stuff, but it's in my brief.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Professor Thompson. I'm sure you're a very good family law professor because you've educated us very well.

We'll move on to the Canadian Association of Social Workers, please.

[Janice Christianson-Wood, President, Canadian Association of Social Workers]

Thank you very much, and good evening.

My name is Janice Christianson-Wood. I am the president of the Canadian Association of Social Workers. I'm very pleased to be testifying today on behalf of our federation and the 50,000 social workers in Canada. I'd like to thank the committee for inviting the perspective of our profession to this important consultation on Bill C-78.

On a personal note, I have had the privilege of spending my social work career in the service of a better world for children, including as a front-line caseworker with Winnipeg Child and Family Services, as a special investigator with the office of Manitoba's chief medical examiner, and as a program specialist at the General Child and Family Services Authority, in addition to research and writing on child deaths and the need for effective and equitable risk assessment.

I've seen first-hand the ways that children are deeply impacted by family relationships. Coincidentally, my last placement as a student, before my first degree, was at the Family Conciliation Services of Manitoba, back in the late eighties. It's nice to know that federal legislation is catching up with practice in a number of the provinces.

Having reviewed the submissions already received, we were pleased to see the excellent brief submitted by the Canadian Coalition for the Rights of Children, of which our organization is a proud member. We join the coalition and many other staunch advocates of children in celebrating these changes in Bill C-78, as they will bring, most notably, the centring of children in the legislation.

We feel that the bill makes a historic step forward for the rights, safety and well-being of children in Canada. The spirit of the changes and the shift in perspective and dialogue that it will bring are deeply aligned with our social work values.

As a profession that privileges consensus-building, non-violent communication, and conflict resolution techniques, we are very pleased at the change in language from adversarial terms like “custody” and “access” to terms like “parenting orders” and “parenting time”. Although these changes may take a while to have their impact, this will likely be a generational change and shift in attitudes. These phrases better support the development of healthy, safe dispute resolution, a key factor in preserving the best interests of the child.

Further, we support changes that will compel lawyers and paralegals to encourage clients to use family dispute resolution services such as mediation instead of proceeding directly to court. Not only will this help to reduce family conflict, but it will also help reduce legal costs, a significant consideration for many single parents, especially women. This would mean that the ability to pay for legal fees will not govern a certain parent's ability to establish a mutually agreeable resolution. As other speakers have said, when you have parents who are committed to this, they can significantly reduce the disruption and expense of a divorce.

We are also very supportive of the changes that would provide courts with measures to address family violence in a comprehensive way. This is such an important and often overlooked area. We are pleased to see children's safety being centred through this measure.

We also agree with the recommendations made in the joint brief by Luke's Place Support and Resource Centre and the National Association of Women and the Law on the importance of stressing the gendered nature of family violence and providing a further definition of the ways that family violence is manifested.

In the same vein, we agree with the joint brief by Luke's Place and the National Association of Women and the Law and support their recommendation for a preamble to the bill acknowledging, one, that women are more likely to be victims of gender-based violence; two, that indigenous women are disproportionately impacted by gender-based violence; and three, that family violence is experienced by women in many different ways, which are shaped by other types of discrimination relating to their race, religion, identity, age, or ability, to name only a few.

CASW also believes that each child, and each family, is unique. Again, the change in language to “parenting orders” and “parenting time” would much better reflect that a child's holistic well-being, including culture, extended family, language, and other considerations, must be paramount.

On this note, we know that there are some individuals and organizations that would have liked to see an equal parenting presumption in this legislation. It's our position that the choice to exclude a presumption in favour of any kind of parenting arrangement is a wise one and would best uphold the best interests of the child in each individual circumstance.

When it comes to a child's safety, happiness and general well-being, there is no one-size model that fits all. With that said, however, we would like to see the spirit of these changes made to centre the child cemented through an explicit reference to the Convention on the Rights of the Child. We echo the Canadian Coalition for the Rights of Children in recommending that section 16 of Bill C-78 “include reference to the Convention on the Rights of the Child, either as a separate article or adding to article 16.1 [the phrase] 'as in the Convention on the Rights of the Child.'”

In terms of next steps, we would also caution that this historic change will need to be accompanied by appropriate education. There will need to be a comprehensive and widespread campaign assisting all those involved in the legal system in making these shifts in understanding and in practice. Social workers who are already practising mediation in government or in private practice look forward to being part of the solution.

Overall, Bill C-78 aligns with our profession's values and with the values of the Canadian Association of Social Workers and our perspectives.

Thank you very much.

[The Chair, Liberal, Anthony Housefather]

Thank you, Ms. Christianson-Wood. It's much appreciated.

We will now go to Mr. Cheriton.

[Glenn Cheriton, President, Canadian Equal Parenting Council]

Good evening, everyone.

I'm the president of a national parents organization, and before that I was involved in a number of parent support groups, going back almost three decades. During that time, we've done a lot of public opinion surveys, as well as having parents approach us. I'm passing on a lot of the opinions of parents who have come to us in desperation.

The public opinion surveys show that about 83% of the Canadian public supports the position that I'm about to present to you—that the current family law system is a major problem for parents. I'm speaking very bluntly here. The problem is that it's too costly, too inaccessible, too slow and too adversarial. Parents have lost confidence in the family court system in Canada. It doesn't resolve conflict. It doesn't work in children's interests. It's not fair. It's not efficient. It's not coherent and it's not responsible for its actions. It's arbitrary. Parents say the system is like a feudal system. Parents don't feel respected. They don't feel listened to in family court.

That said, I do support the aims of Bill C-78: the best interests of the child, accessibility of the courts, less poverty, reduced violence, improved child support. We also support the bill's movement from the terms “custody” and “access” to “parenting time” and “parenting orders”. This is perhaps just a symbolic change, but it's an important initiative in the right direction.

The real issue is whether a child will retain parenting time with both parents, not whether the adversarial legal system will profit from arbitrarily creating winners and losers. Parents want changes. Social science shows better outcomes in other jurisdictions around the world from a variety of somewhat similar approaches that I'm going to call equal shared parenting.

In these different jurisdictions, the terminology, the laws, the regulations and procedures vary, but all these approaches aim to keep both mother and father as full parents in the lives of their children. There are exceptions to equal shared parenting, but jurisdictions that get 30% to 90% of joint physical custody or equal shared parenting, or however you want to call it, show substantial improvement in the outcomes that were listed as the four objectives of Bill C-78.

In Europe, for example, equal shared parenting is made up of shared parenting plus recognition by governments of two homes for the children. A lot of other problems are recognized and solved. No longer can one parent deny the educational records of the child, or the health records, and it goes on.

In the United States, equal shared parenting is made up of joint physical custody. A number of states have moved essentially to joint physical custody and their laws vary, for example, between a law in Arizona and a law in Kentucky. There hasn't been movement away from shared parenting, as has been claimed, but the states are increasingly moving toward it against some pretty substantial opposition from the vested interests.

In Canada, there's a problem in that what we call joint custody is essentially sole custody with a coat of imaginary legal paint. The problem is that they call it “joint custody” but they say it's sole physical custody to one parent, which means that you cannot enforce one parent's side of the agreement. One parent's parenting time is not enforced; therefore, it's not a good agreement from the standpoint of that particular parent.

There is overwhelming scientific, peer-reviewed, accepted evidence that equal shared parenting is in the best interests of the child. I have some of it here from around the world. The problem is that, as far as I know, there is no evidence that Canada's primarily sole custody system acts or is in the best interests of the child. Parents don't believe it is, and by extension these parents blame the legal profession. They blame the judges, the laws and the parliamentarians who enabled, funded, regulated the system and appointed the judges.

I would like to cite a report by Supreme Court Justice Thomas Cromwell, “Beyond Wise Words”, which says that Canada's family law system is largely inaccessible.

You have a choice. You can either put substantially more funding from legal aid or social services, and a whole bunch of others, into the system, or you can try a system that is working in other jurisdictions, such as equal shared parenting in Australia, Iceland, Denmark, Sweden and many other jurisdictions, where over 90% of parents retain their parenting time and decision-making, which essentially is the “equal” part of the equal shared parenting. They do that without going to court and without hiring lawyers.

I wanted to deal with the question of poverty. If you're dealing with child poverty, you're dealing with parental poverty. Family poverty is parental poverty, and the current adversarial system produces parental poverty. Equal shared parenting reduces costs to parents, so the parents can have more investment with their children, and that's the experience of these other jurisdictions.

Dealing with the question of family violence, this is part of a continuation from conflict, abuse, violence and criminal behaviour. However, equal shared parenting in the various jurisdictions is shown to reduce conflict. It reduces violence. Furthermore, the problem with the sole custody system is that violence and conflict increase over time because the problems are not resolved, whereas in the situation of equal shared parenting, conflict is reduced over time and there is research to support this.

The question of child support is also brought up as an objective of the bill. It is clear from the research that more child support is collected if the parents are under a joint custody regime, equal shared parenting, whereas the child support problems are largely in the sole custody situation.

Even though a number of legal scholars are increasingly accepting shared parenting—I would note Professor Nick Bala as an example—they don't accept the equality part of equal shared parenting. The question is, why do parents need equality? The inequality of parents means that one parent is relegated simply as a bystander. He is no longer a parent—he or she, as it's also happening increasingly to mothers. Half of our board members are women.

The problem is that once you are unequal, the court rulings are only enforced on one side. Therefore, the other parent can decide whether your parenting time is going to be respected or not. What we're looking for.... You can call it equal shared parenting; you can call it a starting point; you can call it rebuttable presumption; you can call it an onus. Whatever you call it, the outcome should be the same: keeping both fit parents in the lives of their children.

Professor Kruk mentioned first nations. We have shared the land with them, but we have 95% of that land. They're not equal in the land. With the native residential schools, the government claimed best interests, but it caused harm. There was no consultation with the parents.

To fix this problem, we want the Department of Justice and this committee to recognize parents as stakeholders. We want to collaborate with the government. We want to collaborate with Justice Canada, and we want to fix this problem, so that parents can go back to parenting and not spend their money and time in court.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Mrs. Burns, go ahead.

[Leighann Burns, Executive Director, Family Law Lawyer, Harmony House]

Thank you very much. I appreciate the opportunity to appear today.

I've been sitting here throughout the afternoon, noticing the improved tenor over the last time I was here before this committee 20 years ago, and I appreciate it very much.

I stated in my brief that we support the briefs of the National Association of Women and the Law and Luke's Place, as well as Believe, End Violence Against Women. The latter, in particular, was written by survivors of violence, and I think that it's an important perspective. There are members of Believe here in the room as well. It's a perspective that we didn't hear a lot from 20 years ago, and I think it's a critical one.

My interest in the subject matter is as the executive director of Harmony House, a second-stage shelter for women and children fleeing violence. I began in that role 25 years ago. Prior to that, I was a rural outreach worker. Most of my time was spent accompanying women to meetings with family lawyers, to family court, and to criminal court. For the past 11 years, I've also been working as a family lawyer, assisting women and children in escaping abusive situations. So, I have spent a long time observing family courts and how they function.

Recently, thanks to a grant from Status of Women Canada, I have had the opportunity to really dig into what happens to claims of violence against women in family courts. Today, I would like to share some of those observations with you, as I think they are really relevant to what's before you in terms of considerations of changes to the Divorce Act.

Women escaping violence continue to struggle to have courts understand the nature and consequences of the violence they experience, and this occurs for a number of reasons.

Linda Neilson looked into this for the Canadian Bar Association in 2000. What she found was that women's claims of violence were erased from the file, from the original lawyer-client interview to the drafting of the pleadings and all the way through to the final disposition of the file.

The other thing is that, in my own research, in 2015 a group of us looked at what training lawyers get on violence against women, and it's remarkably little. The high-water mark we found was four hours of training in one law school, and it wasn't mandatory.

Ontario's Domestic Violence Death Review Committee has been recommending mandatory education for lawyers in law schools and ongoing education through the law societies since 2011, and that has yet to come into play. Lawyers, of course, aren't trained and then become judges, so we have an education deficit that needs to be addressed.

What do we know about what happens to these cases in family court? In 2014, Statistics Canada had a hopeful statistic available, which said that fewer women and men reported having been physically and/or sexually abused by their partner in the preceding five years. It was down to 4% from 7% a decade earlier. However, the same study found that spousal violence was reported more frequently in relationships that had ended than in marriage or common-law relationships. The difference was 13% versus 2%, so that's quite a difference. Half of them reported that the violence had increased in severity after the relationship ended, which is important.

In terms of figuring out how many of these cases are actually coming in to family court, Bala et al. reported that roughly one quarter of all separations and divorces in Canada involve spousal violence issues. That's a significant portion.

Canada's Department of Justice has studied what happens to these cases as well. It did a court file review of final custody issue determinations between 2000 and 2005, and found that family violence was mentioned in 8% of divorce cases.

The Department of Justice also found, using 2009 data with respect to post-separation arrangements for children from violent relationships, that in 29% of the cases the children lived primarily with the respondent who had experienced the violence; in 25%, the kids lived principally with the person who had perpetrated the violence; and in 20%, the kids spent approximately equal time in both households. So, these kids are still potentially in these situations post-separation.

As the committee knows, and as I outlined in my brief, Ontario's Children's Law Reform Act was amended in 2006 to make consideration of abuse mandatory in custody and access determinations. In 2010, Ontario implemented inclusion of a mandatory affidavit disclosing any abuse in every custody and access case.

In my brief, I shared the preliminary results of the research of the project that I am working on, made possible through Status of Women. It won't be a surprise to the committee that the vast majority of family law cases are resolved without trial, which means that their outcomes are not reported anywhere. We took two random, representative samples of family law files in Ottawa in 2010 and 2016, and looked to see what occurred in them. It's interesting that between 2010 and 2016, the total number of family law cases started went down by 12%, which I think is probably a reflection of the cost and accessibility of family court for many families. It's too early to say that, but that's a likely theory.

The other thing that is striking about our findings is that the violence against women does not appear in these court files at the prevalence rates it ought to. We found that in the first sample it showed up 15.5% of the time, and in the second set it showed up 16.2% of the time. The difference between those two sets is that the students who were looking at the files in the second set were bilingual, so the difference might be that they were able to read the French files.

The other interesting thing we found was the contrast in custody claims by gender. Most women claim full custody, whereas the most common type of custody claim made by men was no claim at all, followed by joint custody. Sole custody was the third most common claim they made.

The other interesting and disappointing—but not surprising—finding was how little impact the disclosure of violence had on the pleadings, on the outcomes of the cases. Where women sought full custody and disclosed the abuse in their pleadings, they were granted full custody 45% of the time. Where they sought full custody and disclosed no violence, they were granted full custody 44% of the time.

The other thing we're doing in the project is reviewing case law and comparing custody outcomes where violence was claimed under the Divorce Act, compared to Ontario's Children's Law Reform Act. Under the latter, it's a mandatory consideration. I referenced in my brief what we found.

After reading so much case law, one of the things that we see is the assumptions that appear over and over again in family law cases. One continual assumption that could be addressed in the preamble to the Divorce Act, which has been endorsed by other groups, is that violence is always in the past. We know from the evidence that this is not necessarily true. The other assumption that you see often is who abused women are or can't be: If you're a professional or you're educated or you're assertive, you can't be an abused woman. That is simply not true. That's borne out by decades of research.

In closing, I would point out that as the committee knows, the UN Special Rapporteur on Violence against Women made her first visit to Canada this fall. She heard from women about their experiences in family court and will be reporting on her visit in the coming year. I urge you to get ahead of that report and be able to say that you've addressed the issue of violence against women by adopting a preamble that provides the much-needed guidance to courts on the gendered nature of violence in intimate relationships.

I would suggest to you that one of the reasons we have not made greater progress in the 40 to 50 years that women have been disclosing violence, and in the 20 years since we last considered this issue in the Divorce Act, is that we tend to think of violence against women as inevitable, and as something that can't change. I would urge you to reframe your thinking about this, using examples we've seen in recent times.

For example, with respect to smoking or drinking and driving, we've created huge social change by using a combination of legislation and education to alter ideas and behaviours. I would urge you to take the same approach with respect to the Divorce Act. It's clear that the courts need assistance to understand the gendered nature of violence in intimate relationships, the role that violence plays in impeding the realization of women's rights to equality and to life, liberty and security of the person, and the ongoing and well-documented harms to children through exposure to abuse, which too often continues and escalates post-separation.

As I make this presentation, I am mindful of the fact that we are approaching December 6, Canada's National Day of Remembrance and Action on Violence against Women. I'm also thinking of certain people, whom I will list for you.

Margret and Wilson Kasonde were shot and killed by their father on an access visit in Ottawa on May 25, 1995. Margaret was eight, and Wilson was 10.

Since then, Alexis Currie, two, was stabbed to death on an access visit in Scarborough by her father, in March 2002.

There is Francine Mailly and her children: Jessica, 12; Brandon, nine; and Kevin, six. The children were shot to death on an access visit; their mother was killed when she came to pick them up.

Olivier and Anne-Sophie were stabbed to death by their cardiologist father in Montreal in February 2009. He was originally found not criminally responsible but on appeal was found guilty of second-degree murder.

Then there are Chloe and Aubrey, ages six and four, who were found murdered on Christmas Day in 2017 in Victoria, B.C., while on an access visit with their father.

Margret and Wilson were the only ones killed prior to the last hearings on this issue; all the rest have been murdered since those last hearings. I urge you to take that into account in whatever recommendations you adopt.

Those are my recommendations. Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

We'll go to questions now with Mr. Nicholson.

[Rob Nicholson, Niagara Falls, CPC]

Thank you very much.

Ms. Burns, let me start with you. You read off some statistics earlier that showed that most of the settlements in property cases or divorce cases don't involve violence. Don't you think that those numbers underestimate how much violence there is? I know that many times lawyers will file for divorce for a one-year separation rather than have the woman testify about how disgustingly she's been treated. Don't you think those statistics are underestimating the level of violence?

[Leighann Burns]

That's what I said: They do underestimate. It doesn't show up as often as it ought to in the pleadings, so I agree absolutely that it's underestimated in the pleadings.

What we were looking at were cases where custody and access were to be determined, so violence may be relevant to property issues but not particularly. Where violence is very relevant is in terms of custody and access determinations. The arrangements that are made for the children can make it possible for the perpetrator to continue the abuse post-separation.

[Rob Nicholson]

That leads to my next question, which is for you, Mr. Cheriton.

You said that violence gets reduced when they don't give sole custody, but isn't that why sole custody is generally given in the first place? Isn't it to protect the child against violence, usually promoted by addictions to alcohol and drugs or other issues? Isn't that why many times somebody is given sole custody, because of the danger to the child?

[Glenn Cheriton]

Looking at the levels of family violence we're talking about, with Statistics Canada saying that it's 6% against men and 6.4% against women, it seems to me that.... And yes, it does rise when you have highly conflicted separation and divorce. However, that does not relate to the very large percentage of people who end up with sole custody. If family violence is 6% and yet we're ending up with 75% to 90% sole custody, then I don't see how that high level of sole custody is in fact caused by a 6% level of domestic violence.

That's not the complaint that parents are making. I think you'll find that, increasingly, parents are leaving the system. They're working out their own agreements. In fact, we got a letter from you saying that if parents worked out their own consensual agreements, this worked out much better and the agreements were a lot more stable. In these cases, putting the parents on an equal basis does reduce the level of violence, because there is less to fight about.