Justice Committee on Nov. 21st, 2018

[Pamela Cross]

What we do know is that many other fields are using mandatory screening. Many health care providers, especially in emergency rooms, do a mandatory screening when any person comes into their facility for attention. Mediators in different parts of the country are regulated differently, but increasingly there is a requirement for screenings. The British Columbia Family Law Act introduces the notion of mandatory screening.

The Department of Justice has, just today, I believe, posted on their website a research report that Luke's Place prepared over the past year, looking at the value of mandatory standardized screening tools for family law practitioners. I think it's something that might be helpful for the committee to review as you're considering possible amendments.

All of the international research—we looked at screening tools from around the world in doing this research—showed that a good tool used properly, which means by a professional who has been trained in how to use and interpret it, leads to more accurate disclosures of family violence. This does not necessarily mean more disclosures—that's not the goal—but it does lead to more accurate disclosures of abuse, and also of the kind of abuse. As Mr. Pinsky has said, family violence exists on a spectrum, and it's important to understand where on that spectrum the client is situated, if at all.

[Lawrence Pinsky]

My co-presenters have a particular perspective that they share with you, a perspective of a validity, from their perspective, which is fine—some of which I agree with and some of which I don't—but, interestingly, you hear unanimity on family violence screening tools and education for it. It's very important. As I say, the CBA is actively working on it with the department. I agree with what my friend Ms. Cross said on that point.

[Ali Ehsassi, Liberal, Willowdale, ON]

Madam O'Brien, you were talking about maximum contact in parenting time and some of the concerns, particularly, if there has been violence. You said that research in the social sciences proves that.

Regrettably, we haven't had access to your brief yet, because it hasn't been translated. In your brief, do you cite the latest research that we can look into.

[Shaun O'Brien]

The research cited in our brief is more legal research of what legal experts are saying about maximum parenting time, what's working and what's not. There may be research cited as well in the NAWL and Luke's Place briefs which references that.

One of the pieces of confusion that arises with respect to maximum parenting time is that no one is saying that the research doesn't say that contact with both parents can be good and children will request that. It's just that it doesn't necessarily need to be equal. We need to look at that on a case-by-case basis. There's really important caveats to when it's good and when it's not. Those need to be looked at. For example, it can be good, unless it exposes the child to high levels of stress. When there's high conflict, that causes stress. Other factors are in favour of not having maximum parenting time, such as the fact that children are more resilient when they have a stable relationship with a non-stressful....

There are references in our brief to that kind of information. The key point is understanding that it's not that we dispute the idea that it can be good to have contact with both parents. It's understanding how it really needs to be a case-by-case analysis, which means no presumptions.

[The Chair, Liberal, Anthony Housefather]

Thank you.

[Lawrence Pinsky]

Perhaps I can say one thing about that.

For sure, individualized justice is the way to go with parenting. There's no question about that. The research you want to look at is Joan Kelly's, Dr. Lamb's, Professor Austin's and Marsha Kline Pruett's. You want to look at all of that stuff.

But beware of jargon. For example, Dr. Kelly talks about “shared parenting”. She's in California. That means 30% to 35% of the time in California. Here it means 40% of the time. You have to be aware of those nuances and differences.

I think in that particular proposed section...maximize time “consistent with the best interests” has been around a long time. I think it's the right way to go, because it does say consistent with the child's best interests. You can't read it without that. Changing the title of that proposed section makes sense because it is a little misleading. Most judges in Manitoba—I can't speak about elsewhere—certainly understand that to be the case. It's consistent with the child's best interests, which of course will evolve over time.

High conflict is challenging, because sometimes people—men or women—create high conflict on purpose and then use that as a sword. You have to be aware of that. That can be very problematic.

[The Chair, Liberal, Anthony Housefather]

Thank you very much. We have to get to the next panel.

I want to thank each and every one of you. You were fascinating and really helpful to us. It's very much appreciated.

I'd like to take a short recess and ask the next panel to come forward, please.

[The Chair, Liberal, Anthony Housefather]

We will now reconvene with our second panel of the day on Bill C-78.

It gives me great pleasure to introduce, from the Canadian Centre for Men and Families, Mr. Robert Samery, chair of the board, and Ms. Jess Haines, associate professor at the University of Guelph. From the National Shared Parenting Association, we have Ms. Heidi Nabert, president, and Ms. Lynda Baracetti, director, LGBTQ Issues. From The Redwood, we have Ms. Abi Ajibolade. Abi is so nice. She said that if anybody has trouble with her last name, they can call her Abi. She is the executive director.

From West Coast LEAF, we have Ms. Elba Bendo, director of law reform, and Ms. Kim Hawkins, executive director, Rise Women's Legal Centre.

Welcome to all of you.

We'll go in the order on the agenda and start with the Canadian Centre for Men and Families.

[Robert Samery, Chair of The Board, Canadian Centre for Men and Families]

Thank you very much, Mr. Chair and committee members, for having us here today.

I represent the Canadian Centre for Men and Families, which is associated with the Canadian Association for Equality. With me today is Professor Jess Haines from the University of Guelph.

The Canadian Centre for Men and Families was established in 2014. The centre has grown quickly, with physical hubs now in Toronto, Ottawa, London and Calgary. We offer services focused on the health and well-being of boys, men, fathers and families. The centres are open, inclusive and safe spaces providing therapy and counselling, peer support, a legal clinic, fathering programs, mentorship and support services for male victims of trauma and violence. We provide services, research, advocacy, outreach and public education on all aspects of men's issues. We also focus on children and families, not just on the one demographic we centre on.

It may be a surprise, but we have a lot of agreement with people who sometimes don't agree with us entirely. In this context, let me just say that we agree that removing an individual from a child destroys a relationship. I heard that comment today, and I couldn't agree with it more. Full parenting, equal parenting or maximal parenting is the best outcome for any child.

We also agree that, in cases of intimate partner violence, the definition should include coercive control and much else that our prior witnesses identified. We decidedly disagree that it should include anything to do with gender. Violence is not a gendered issue, and we would strongly advocate against that. We also agree that there is a distinction, which some of the prior witnesses have raised, between violence and high conflict. They shouldn't be conflated and shouldn't be dealt with in the same way. There are other points of agreement that we can find quite easily as well.

A very large percentage of our work deals with clients who have been embroiled in proceedings under the Divorce Act. Almost all of our separating or divorcing clients have children involved. They are, for the most part, traumatized by their children's experience of being confronted with a court process that is unfriendly towards children's needs to maintain a good relationship with both their loved parents. In short, the system needs repair. That's not news.

The announcement of Bill C-78 was widely praised by a large cross-section of individuals, organizations and stakeholders. We agree with a vast number of those stakeholders that the family law system is in desperate need of deep reform. With the announcement of the bill, the government has indicated a readiness to, at the very least, hear from the above interested parties about how each would suggest that this committee make positive advancements in the legislation governing couples' attempts to reconcile their own breakup while looking after the delicate needs of their children.

Legislation is pivotal in these parent-child relationships. It can grease the improvement of those relationships or help tear them apart. ln either case, the health and well-being of the child can be significantly affected.

We're advocating for an equal shared parenting presumption. Equal shared parenting, from our perspective, means that children have as close to an equal amount of both parents' time as well as being subject to both parents' judgment on long-term and important issues relating to the child.

I'd like to turn it over now to my colleague to talk about why equal shared parenting is most helpful to children.

[Jess Haines, Associate Professor, University of Guelph, Canadian Centre for Men and Families]

Thank you so much for the opportunity to be here today.

I'm an associate professor in the department of family relations and applied nutrition. The focus of my research is really exploring how family-level factors influence children's health and well-being.

Historically, research that focused on understanding parental influence on children's health has focused almost exclusively on the influence of mothers. In his seminal work on infant attachment published in 1958, psychiatrist John Bowlby made no mention of fathers. In fact, the title of his work was “The nature of the child's tie to his mother.”

This early research demonstrated the importance of the relationship between the child and their mother. Bowlby showed that children experience distress when separated from their mother, and he hypothesized that these early separations could lead to later maladjustment in the child. Research also showed that children who were well bonded to their mother and whose mother was responsive and engaged with their child had better psychosocial and cognitive outcomes.

As mothers, we received both the credit and the blame for the outcomes of our children, while fathers were largely ignored. This proved to be a mistake, as ignoring fathers failed to acknowledge the important role they play in their children's lives. As recent Canadian statistics suggest, fathers play a key role in the lives of their children.

Since the mid-1970s, the number of dual-earner families with children in Canada has almost doubled, from about 36% in 1976 to nearly 70% in 2014. The number of stay-at-home dads has increased from 2% in 1976 to 11% in 2014. In 2011, over 15% of children in single-parent families lived with their father. In 2010, 81% of fathers reported participating in home-based tasks such as meal preparation and typical housework. Given these significant demographic household shifts, a father's role is a big missing part of the family picture, and researchers are working to address this knowledge gap.

As attachment research evolved, it started to look at how infants connect and engage with their fathers and found that infants bond and connect with both their mothers and their fathers. Moms and dads are both important attachment figures in children's lives, and similar to the results for mothers, there are many positive outcomes associated with children having a secure attachment with their father.

For example, compared to children without a father in their life, children who have a father or a father figure do better in school, and have better social skills and higher self-confidence. These children also have lower levels of depression and anxiety.

The presence of a father may also be associated with a longer life expectancy. A study among nine-year-olds found that children who lost their father due to divorce, incarceration or death had telomeres that were 14% shorter than children who did not lose contact with their fathers. Telomeres are the protective caps of chromosomes, and telomere length in early life is a key predictor of life expectancy. The impact of father presence may be greater for boys. This study also found that compared with girls, the telomere damage from the loss of a father was 40% greater for boys.

Fathers also play a key role in the development of children's health behaviours. Studies in Australia and the U.S. have found strong associations between fathers' eating habits and those of their children. Our own research with Canadian families found that fathers', but not mothers', modelling of healthy food intake was associated with healthier dietary intake among their children.

Fathers also play a key role in children's physical activity. Fathers also seem to play a unique role in children's risk of developing obesity. A Canadian study conducted at the Quebec longitudinal study found that the odds of having obesity at age seven doubled among male children who had fathers with obesity, while there was no association between the mothers' weight and the weight of their male children. For girls, having an obese mother or father was associated with an increased risk of obesity.

A key question arises from these studies. What is the cause of these differences in mothers' and fathers' influence on their children's health and health behaviours? How much of this influence of fathers on their children's health is genetic, and what is related to environmental or behavioural factors?

While additional research is needed to understand these mechanisms of fathers' influence, one potential reason for fathers' unique role with regard to children's health outcomes may be the fact that fathers engage with their children differently than mothers. Compared to mothers, fathers are more likely to use physical play to bond with their children, even in infancy. On average, fathers use more vigorous, stimulating, risky and competitive play with their children. This type of play is thought to help children develop physical skills, learn limits and boundaries, as well as develop social skills and emotion regulation.

Fathers may also differ from mothers in the way that they feed their children. Research suggests that fathers are more likely to focus on children's overall diet, as compared to the specific nutrient quality of foods, which may provide a more holistic or balanced approach to eating.

In summary, the results of this research are clear. Fathers are important to children's health and well-being. They play a distinct role in psychosocial development and long-term health outcomes of their children. Given this evidence, we recommend a family law that promotes equal shared parenting in families. An equal shared parenting approach recognizes the importance of both mothers and fathers and will support the best interests of the children.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

We'll next go to the National Shared Parenting Association.

[Robert Samery]

Is there any time left?

[The Chair, Liberal, Anthony Housefather]

No, there is not. You exceeded your time.

[Heidi Nabert, President, National Shared Parenting Association]

Thank you, Mr. Chair and committee members. We appreciate this opportunity.

First I'd like to address the areas of agreement. The National Shared Parenting Association applauds the adoption of new terminology to describe child custody, access and support relating to children and families post-separation and post-divorce. Although the terminology does not address some of the key issues that continue to face children of divorced families, the new terms “parenting order”, “contact order”, “parenting time” and “decision-making responsibility” better reflect that the Divorce Act and its enforcement are for families, and the new family-friendly language is more appropriate to describe Canadian families that are facing separation and divorce.

Our overview and analysis of Bill C-78 are based on the justice department's press release of May 22, 2018. The National Shared Parenting Association is going to address the four key objectives of the bill, namely, the best interests of the child, addressing family violence, helping to reduce child poverty, and making Canada's family justice system more accessible and efficient.

We begin with best interests of the child. Currently, the Divorce Act bases the best interests of the child on a series of questions that are open to interpretation by a family court judge. Although most often the family court judge will review the past and present parenting arrangements when a family separation occurs, it can often become a wake-up call or a signal for some parents to the importance of exercising the maximum contact rule with their child. Even though the parenting time history of that parent is not consistent with the rule, it should not penalize the child from benefiting from the maximum contact rule with that parent.

Under these circumstances, the court should not infer a negative view of the parent seeking to expand the parenting time with his or her child based solely on the history of the parent-child relationship prior to the family breakup. A child's needs are paramount under all circumstances, and if one parent who has not been involved prior to separation shows a genuine interest in expanding their parenting time post-separation, ultimately this is of great benefit to the child and should be considered to be such.

Children of divorced and separated families face difficulties stemming from the loss of consistent and predictable parenting time with both parents. Often, after a family separates, the child spends the majority of parenting time with one parent—usually the mother—and very limited parenting time with their father. Parents are the foundation of a child's well-being. Their feelings of security and safety stem from the consistent time they spend with each parent and the benefits of the parenting they receive from each parent.

Although the maximum contact rule is cited, it is most often not incorporated into final court orders for parenting time with the non-custodial or non-primary parent—usually the father. With flextime, many more professionals are able to work from home, allowing for working parents to care for their children with a shared parenting schedule. Assuming that family violence is not present or has not been an issue in the past, a shared parenting court order is what is best for our children.

According to the Public Health Agency of Canada, of all reported violent crime in 2016, approximately 26% resulted from family violence in which 67% of the victims were women and girls, and 33% were men and boys. While family violence can be very detrimental to children, thankfully it remains a relatively small percentage, but nonetheless needs to be taken seriously within the family court proceeding.

Of equal importance is when a false allegation of abuse has been made in order to gain the upper hand in family court proceedings. Criminal proceedings can take up to 18 months to resolve for the accused—usually the father—all while a status quo has been established with the children and the accuser—usually the mother. The children are the biggest losers in this scenario. The family courts have an obligation to help re-establish the parenting relationship between the children and their father, assuming he has been exonerated of all charges.

While the percentages imply that the violence is most often perpetrated by men, interestingly the statistics for those in same-sex partnerships, in particular women who self-identify as lesbian or bisexual, show significantly higher rates of violence by partners than did those for heterosexual women.

Next we will focus on reducing child poverty.

While child poverty is an ongoing concern, according to the Department of Justice, studies have identified that child support is a key factor in lifting families out of poverty following a separation or a divorce. There are no easy answers. However, the child support enforcement process appears to be working to help with that issue.

In regard to the objective of making Canada's family justice system more accessible and efficient, the current family court process is complex, slow and costly, which accounts for the increase in self-represented litigants in family court. According to Justice Canada, the number of self-represented litigants has increased over the last five years to between 50% to 85%, primarily because they are unable to afford legal counsel for family court proceedings.

Self-represented litigants are often identified as being the main source of clogging the family courts, as judges are faced with having to explain the process rather than preside and make decisions. It is of paramount importance for the justice department to simplify the family court process, allowing for the large number of self-represented litigants to better understand what is required and how to prepare.

For example, when it comes to a child support obligation, when a payer's income increases, it is a relatively simple process to amend the amount being paid. However, when a child support payer loses his or her job, the process to vary child support in a court order can take several months and up to a year to amend the court order. While the legal proceedings are going forward at a snail's pace, the child support collection agency begins the process of implementing punitive measures such as confiscating a driver's licence or passport, which ultimately makes it much more difficult for that payer to find a job.

From a logical standpoint, when a person does not have a regular income due to job loss, they are unable to afford a lawyer to help amend their child support obligation, all while they're struggling to pay the court-ordered support, which no longer reflects their current income level.

In closing, the process to vary a child support order when a payer faces a job loss should be as simple as when a payer's income increases. It is incumbent upon the justice department to implement measures that help make that possible so that the payer can focus on getting back into the workforce rather than dealing with the related stress of proceeding to family court for up to a year as a self-represented litigant.

The end result would be that the child support is paid based on the current income and reduces the number of self-represented litigants in family court, thereby speeding up the process for all Canadians in family court.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much. At seven minutes and 55 seconds, you came really close.

[Heidi Nabert]

Oh, I'm up for that prize.

[The Chair, Liberal, Anthony Housefather]

Absolutely. Well done.

[Heidi Nabert]

Thank you, Chair.

[The Chair, Liberal, Anthony Housefather]

Ms. Ajibolade, the floor is yours.

[Abimbola Ajibolade, Executive Director, The Redwood]

Thank you, Mr. Chair and honourable members.

As an advocate for women and children survivors of domestic violence, I believe the introduction of Bill C-78 is significant and long overdue. In the proposed Divorce Act, the best interests of the child take centre stage and key considerations of family violence, child poverty, accessibility and efficiency are taken into account. This new legislation will serve as a much-needed benchmark for family law practice Canada-wide, an exemplar for amendments to provincial and territorial legislation.

Finally the voices of survivors are being heard. Failing to take into account the impact of family violence has been a grave injustice and the fallout has been profound. We are now at a turning point in family law history and I applaud the justice minister for these progressive reforms and commend her commitment to protecting the best interests of the child.

This evening, I would like to make a number of recommendations, as my colleagues in the violence against women sector have made. I believe they would further improve the proposed legislation. Firstly, for a more timely, effective and easier approach to navigating the family court system, recommendation one calls for a unified family court system that permits all aspects of family law to be dealt with in a single court. The one court could determine all the legal issues in a family dispute related to property matters, divorce, custody and child protection.

Secondly, I call for the removal of the 40% rule in the federal child support guidelines. Given that women continue to disproportionately represent primary caregivers and carry the majority of children's expenses, this 40% rule will only continue to intensify the feminization of poverty. In addition, having time as a determinant to shared custody is inconsistent with upholding the best interests of the child as it can lead to a parent demanding more time with the child in order to avoid paying child support.

A much critically needed reform that we are pleased to see is the less onerous notice requirements for mothers forced to move location with their children because of safety concerns. The period of separation is particularly dangerous for those leaving abusive relationships. The intensity of violence escalates at this time as does the risk of domestic homicide both for women and children.

However, to enhance this amendment's efficacy, I recommend that greater structure and predictability is required for these relocation cases. The act does outline notice periods, jurisdiction and paramount consideration, but it may not go far enough for lawyers to give their clients a better idea of whether they will be successful or whether they are gambling with much-needed financial resources.

Unlike many other survivor advocates, I champion the measures that encourage alternative non-litigation processes. The dominant critiques are valid and definitely must be kept in mind to inform best practices to mitigate risks and ensure fairness. However, I believe that there is great potential so long as there is intentional forethought into how best these alternative approaches can be applied. I know that many of my colleagues did mention this screening, which is very critical.

Recommendation four calls on the federal government to increase its efforts towards greater innovation in the planning and implementation of these alternative family dispute resolution processes. Adaptations to best accommodate the needs of vulnerable parties may include mediation with a support person, and shuttle or caucus mediation where parties remain in separate rooms and the mediator acts as an information conduit. In high-risk cases, parties can be asked to visit the facility on different days or possibly there would be telephone or online mediation in some circumstances.

These considerations essential to safeguard survivors' needs lead me to my next recommendation, which calls for specialized training in family violence and cultural competence for mediators, family courts, judges, lawyers, custody evaluators and other court workers. Furthermore, there needs to be greater commitment and assurance for the betterment of education on these issues in Canadian law schools.

As you can all imagine, the impact of family violence further compounds the adversity and stress inherent to a family breakdown. Exacerbating these challenging times is trying to navigate the family court system, especially for those litigants having to self-represent. With that said, recommendation six calls for improved access to services and resources that could help and assist families throughout the separation process. This may include the provision of a free advocate, who would provide guidance and support, easy to access information and tools, and improved access to legal aid.

I thank you for this opportunity to share my thoughts on this incredibly valuable reform to family law in Canada.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

We'll now go to West Coast LEAF.

[Elba Bendo, Director of Law Reform, West Coast LEAF]

Good evening and thank you for inviting us to make submissions on Bill C-78.

My name is Elba Bendo and I'm the director of law reform at West Coast LEAF. West Coast LEAF is a B.C.-based feminist legal advocacy organization. Our mandate is to use the law to create an equal and just society for all women and people that experience gender-based discrimination.

Right now, I'd also like to introduce Kim Hawkins, who's the executive director of Rise Women's Legal Clinic. Rise is a student clinic that provides legal services to low-income women on family law and related issues and we've asked to share our time with Ms. Hawkins.

Like many before me, I would like to say that West Coast LEAF welcomes the important amendments proposed by Bill C-78. We are very glad that the intended purpose of the legislation—to promote faster, better and more cost-effective solutions to family law disputes—recognizes the difficult reality that many people across this country are alone in navigating the legal system during what is often one of the most difficult times in their lives.

Earlier today, you heard from NAWL, who brought to your attention the fact that 31 organizations representing women in all their diversity share in the view that a robust framework around family violence is needed to collectively advance the four goals of this legislation, including that of promoting the best interests of the child.

The reason that I believe you are seeing such a strong and uniform showing on the issue of family violence is that, for decades now, there's been clear and well-documented evidence of the links between family violence, marriage, parenting and divorce. What this evidence has been clearly telling us is that, in some circumstances, increased communication and co-operation among spouses is not in the best interests of the child, and in fact can have dire consequences for women and children.

In our brief, we set out the provisions regarding communication and co-operation that are at the greatest risk of producing harmful outcomes in the context of family violence. In an effort not to duplicate our brief, I will focus my submissions on only two. First, the maximum parenting time provision and also what is commonly referred to as the “friendly spouse” provision, set out in proposed paragraphs 16(3)(c) and (i).

These provisions prioritize paternal rights over the best interests of the child. While these two interests often coincide, this is rarely the case in the context of family violence. In fact, research shows that contact with a violent parent is often not what is in the best interests of the child and can have dire and, at times, lethal implications for children. In practice, these provisions perpetuate problematic myths that suggest that women have malicious intentions to alienate fathers in divorce proceedings. Despite having been firmly debunked, these myths have been relied on to discredit women's legitimate claims of violence over the years, and are, sadly, alive and well in family law proceedings today.

Contrary to these myths, studies show that mothers overwhelmingly want fathers to spend time with their children. Studies also show that there are an increasing number of joint custody and shared parenting arrangements in Canada and that statistics that, at first glance, appear to indicate a bias in the system are really more reflective of the number of fathers that seek custody. In fact, fathers are awarded primary or joint physical custody a majority of the time, when they actively seek it. This is often the case, even when there are allegations of family violence.

These concerns were recognized in B.C., where the new Family Law Act not only excludes these presumptions about what is in the best interests of the child, but specifically directs the courts to not presume that shared parenting time is in the child's best interests. In turn, the act emphasizes that some of the circumstances that are relevant to what is in the best interests of the child include the nature and strength of the child's relationship with significant persons in the child's life, the history of the child's care and the impact of family violence on the child's safety.

We strongly believe that the objectives of the act will be better served with the incorporation of similar language and recommend the removal of the maximum parenting time and friendly parent provisions from this bill.

Due to time constraints, I will end it here and pass it over to Ms. Hawkins.

[Kim Hawkins, Executive Director, Rise Women's Legal Centre, West Coast LEAF]

Thank you. I will try to be brief.

As everyone here I'm sure is aware, in 2013 British Columbia updated its family law legislation and adopted the new Family Law Act, or FLA. The Family Law Act changed the law in B.C. by providing a consistent approach to the identification and assessment of family violence and created new duties for family dispute resolution professionals to assess for the presence of family violence. The reason I expect you're aware of this is that many of the ideas and the provisions in the FLA have influenced the amendments being proposed in Bill C-78, so that places those of us who work in B.C. in a unique position to comment on how these provisions are being interpreted and developed.

Unfortunately, our experience as family lawyers shows and research from B.C. confirms that, in many cases, despite the very positive legislative changes, judges are not, first of all, getting relevant information about family violence, which they're required by law to consider. Even where that information is available and judges find as a matter of fact that family violence has occurred, misinformation and stereotypes about family violence continue to influence outcomes of cases. While judges have been very receptive to applying an expanded definition of “family violence”, lawyers and judges continue to make a number of problematic assumptions about family violence.

For example, in some B.C. cases courts have continued to effectively read in a friendly parent rule and emphasize maximum contact, even though there was a deliberate decision in B.C. not to include those Divorce Act norms. This approach can and does end up privileging contact time at the expense of reviewing the best interests of the child and considering family violence, and in some cases, ends up ignoring the actual imperative in section 37 of the Family Law Act, which emphasizes that a child's safety is to be protected to the greatest extent possible.

We continue to see cases where judges assume that because a child was young when the family violence occurred, it will not affect them, despite the fact there is evidence that family violence can harm even infants and toddlers. We continue to see cases where it is assumed that abuse that is directed at one of the children's parents has little to do with overall parenting ability.

We continue to see an unwarranted optimism that violence ceases upon separation and that, in spite of a history of violence, it's appropriate to require victims of that violence to now work co-operatively with the abusive spouse, and that this can be done without risk. We continue to see myths about women's credibility, for example that credible women will disclose violence early, will report violence to the police, and will leave their relationship and not return, even though we know that it often takes women multiple attempts to leave abusive relationships.

The critical lesson to take from the B.C. experience is that to ensure the changes that are being made to the legislation have their intended effect, you must go further than simply directing courts to consider family violence.

First, we fully support the requirement that our colleague spoke about earlier, which is that family law professionals obtain mandatory training in the dynamics of family violence, including how to screen effectively for family violence.

I can promise you that understanding of and sensitivity to family violence did not crystalize in B.C. overnight when the Family Law Act came into effect. Lawyers do not, in my experience, have any special insight into the dynamics of family violence without some form of ongoing training. At our student clinic we regularly have women attend the clinic who tell us that their counsel didn't ask them about family violence and told them not to speak about family violence because it would be messy, would raise issues of credibility, and often they already have orders in place.

As you all know, to change a family law order often requires showing a material change in circumstance, so the decision not to disclose early can have very important implications on the ability to change that order later. Without mandatory education on family violence, the legal system will respond much more slowly, despite the best of intentions, including those provisions.

Second, we support the approach that was proposed by NAWL earlier tonight about including specific provisions in the family law act that would prohibit courts from making certain inferences about abused parents that are based on specific identifiable myths and stereotypes. You already have that brief. I'm not going to go through the various stereotypes and inferences they discussed. This approach does have a clear precedent in section 276 of the Criminal Code, which stipulates that evidence of prior sexual activity is not admissible to support the twin myths often found in sexual assault discourse. Those twin myths are that somebody who's had prior sexual relations is more likely to have consented and is less credible as a result. Those provisions have had a really important influence on the development of sexual assault law in Canada.

Like sexual assault, family violence is a practice of inequality and is one of the clearest expressions of discrimination against women in society. As in the Criminal Code, clear direction in family law acts and in amendments to the Divorce Act would have the effect of refocusing family law cases on evidence that is actually relevant to the material issues in the case and the outcomes, and supports equality of outcomes rather than allowing essentially misinformation and myths to distort the legal process. It would be incredibly helpful in ensuring that the provisions that everybody is working so hard to put in place are fully realized.

[The Chair, Liberal, Anthony Housefather]

Thank you so much. We will now go to questions.

Mr. Cooper.

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

Thank you. I'll direct my questions to the Canadian Centre for Men and Families and the National Shared Parenting Association, whichever group wishes to respond.

On Monday at committee Professor Irvine made a statement on the issue of shared parenting, where she said, “ I don't know what the issue is. We had shared parenting at 13% in 1995. It's gone up to 70%”. I would take it, Ms. Nabert, based on some of your testimony, that you would agree that the statement made by Professor Irvine does not really tell the full picture.

Would you agree with that?