Justice Committee on Nov. 19th, 2018

[Rob Nicholson]

Do you support the comments that were made earlier? When you were in the audience, you probably heard Professor Irvine saying that, in fact, when you have representation for the child, one way or the other, this in and of itself helps collapse this and bring about an agreement on this, because the child is now represented and gets to have his or her voice heard.

[Glenn Cheriton]

I would agree with that, if both parents are on a reasonably equal basis going in. If, because of procedural manipulation, the child has spent a large amount of time with one particular parent prior to the case being considered, and that parent is able to poison the child against the other parent, then, because the child has already been poisoned, the legal representation of the child may be biased against the parent, and subsequently you don't get a fair decision. We're looking at.... When the decision is made, we want both parents to be on a reasonably equal basis, and then—

[Rob Nicholson]

The responsibility of any lawyer is to represent the interests of his or her client, which in this case would be a child.

That being said, I know my time is running out.

Ms. Christianson-Wood, I agree with you about changing the wording to “parenting orders” and “parenting time”, as opposed to “custody” and “access”, but then you tossed in a line saying that it might take a generation to sink in. Would you elaborate on that?

[Janice Christianson-Wood]

This isn't something that has happened overnight, to become an adversarial system. Courts do generally have winners and losers, so I think it's going to take a bit of time for that to change, and for people to understand that when they approach the court, they'll be approaching it in a different way.

Very few people are at their best during divorce. They may be acting quite differently than they normally do. It takes a lot of co-operation to have a mutually agreed-upon divorce. We need to do more within the system, as others have said, about supporting parents, listening to children and helping people possibly find a less conflicting solution to their parenting issues.

For those the court needs to see, it's important that the court understand the nature of family violence and the central role of a child's growing up in a protected and loving situation, whatever the family constellation will be.

I would just like to offer one comment made a number of years ago by an author named Margrit Eichler. She favoured a nesting agreement whereby the parents would move out and the child would stay in the home. Most adults would say, “You can't do that to me. All of my stuff is there.” When children live in two homes, all of their stuff is moving back and forth as well, so we are definitely proponents of a child-centred arrangement.

[Rob Nicholson]

Very good. Thank you very much.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Mr. Boissonnault, go ahead.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Thank you, Mr. Chair.

I have a comment for Professor Burns. It was hard to hear the names. I'm a proud uncle. My nieces and nephews are aged 17, 15 and 10, and if David and I ever decide to make kids a part of our life.... I can't imagine the psychology and the vindictiveness that would lead a parent to kill their child, especially in a domestic violence situation.

In your research, if you could rank the order for me, who faces more family violence: women, gender-nonconforming people or men?

[Leighann Burns]

I think the evidence is overwhelming that it's women. There is more recent talk about gender-nonconforming people experiencing high levels of violence. I'm not familiar with where that comes from, so I can't speak to that.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

What is the ratio of women to men?

[Leighann Burns]

It's overwhelmingly women.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Is it eighty-twenty, or sixty-forty?

[Leighann Burns]

It depends on what you're looking at. Statistics Canada stats that say there are approximately equal numbers of men and women, 4% or 7%, are one thing, but when you look at the nature of the violence, you see that women experience much more lethal, severe, and persistent violence.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

I'm interested not just in the anecdotal but in the statistics that your organizations are able to generate, because we learned in the human trafficking study that as much as StatsCan tries, unless something gets to trial and is reported, they can't track it.

Let me ask you this question, because I want to know what you think as a researcher. Why would the family violence history be removed from the trial documents? Is it male lawyers removing the family violence?

[Leighann Burns]

No.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Is it female lawyers? Is it consistent across the board?

[Leighann Burns]

It's across the board.

There are a couple of things. One is that lawyers aren't trained about it, so it's an uncomfortable topic. Unless you're comfortable talking about it, you tend to avoid it. I think that's one of the reasons why it gets removed.

The other thing I've heard frequently is that lawyers advise people that they're not going to do well on this issue so it's best not to raise it. That has not been my experience. My practice is entirely with survivors of violence. I always raise it. It's my view that you have to put it before the court in order for the court to determine it. You have to marshal your evidence well. You have to understand the issue and bring it forward in an effective way. In my view, that's the only way to deal with it.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

I'm going to ask you first, and then I'm going to ask Ms. Christianson-Wood the same question. Why is the preamble so important, from a symbolic perspective but also a material perspective? I've seen an example of the preamble, and I like the richness of the language and the various “whereases”. Why is that important to the people you help?

[Leighann Burns]

It's clear to me, after all these years of observing family court and now actually looking at the outcomes of these cases, that courts need guidance on how to interpret this issue. A gender-neutral notion of violence is why we are where we are, not making better progress. The courts need assistance to understand the nuanced nature of the kind of abuse that's happening.

I don't know what people imagine that men who perpetrate violence look like, or what women who survive violence look like, but I think they need assistance to understand that it's people from all walks of life. Some of the scariest men I've ever dealt with present really well in family court. Courts need assistance to understand.

The system is already inaccessible. We cannot ask all litigants to come with experts to educate the court over and over again about this issue. We need courts to be equipped to understand that they have to take into account women's rights to life, liberty, and security of the person, and equality.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Thank you.

If I get more time in round two, maybe I'll come back to you.

Ms. Christianson-Wood, thank you for your service and decades of work in the field—you said decades, so I can say decades.

[Janice Christianson-Wood]

That's fine.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Why are “parenting orders” and “parenting time” so much better than “custody” and “access”? I'm not a lawyer; I don't come from this world. It's sad when marriages break down.

According to you, why is a preamble so important?

Then I'm splitting time with my colleague Mr. Fraser.

[Janice Christianson-Wood]

As far as the change in language is concerned, with a change in language you can also implement a change in conditions so that it's not access, where I give you access. It's something that we both share for the benefit of our child.

Why should it be in the preamble? Well, my experience with child welfare legislation says that when you start out by saying what way things are going to go on, who's going to be the centre of it, and what the conditions are going to be, and that people's heritage and language and gender identity are going to be honoured, people know what they have going in. Whether it's courts or social workers, we know the structure of what we're going into in terms of legislation and system and expected outcome.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Thank you.

[The Chair, Liberal, Anthony Housefather]

Mr. Fraser, you have one minute left.

[Colin Fraser, Liberal, West Nova, NS]

Thank you very much to my colleague.

Professor Thompson, I thought it was very interesting that you raised the issue of the double-bind question. I'm sorry; I haven't read your brief yet, but I look forward to reading it.

In Nova Scotia, the legislation doesn't comment on that, but you're saying that it would be better for us to remove the bar to actually considering it because in some cases it might be appropriate.

What happens in those cases where it wouldn't be appropriate? Is that something for the judge to determine, or does it just go to weight, and they don't place any weight on that consideration? How does that work?