Justice Committee on Nov. 21st, 2018

[The Chair, Liberal, Anthony Housefather]

Welcome to the Standing Committee on Justice and Human Rights as we resume our study of Bill C-78.

It is a pleasure to be joined by this distinguished panel of witnesses.

We have with us today, Lawrence Pinsky from Taylor McCaffrey LLP, past chair of the family law section of the Canadian Bar Association. From Luke's Place, a support and resource centre for women and children, we have Pamela Cross, who is the legal director. From the National Association of Women and the Law, we have Suki Beavers who's a project director. From the Women's Legal Education and Action Fund, we have Shaun O'Brien, the executive director and general counsel.

Welcome to all.

We're going to start with Mr. Pinsky.

[Lawrence Pinsky, Taylor McCaffrey LLP and Past Chair, Family Law Section, Canadian Bar Association, As an Individual]

Thank you for inviting me to speak to you this evening.

I want to thank you, as well, for making me feel so comfortable by bringing January weather from my city of Winnipeg, here to Ottawa this evening.

I should acknowledge, as well, the Algonquin nation whose traditional territory we, as I understand it, are gathered upon.

Bill C-78 is clearly an advance in family law in Canada, and the government should be commended for bringing it forward. This should be a non-partisan issue. I worked closely with the then NDP government of Manitoba that brought in a bill that had very much the same underlying philosophies. I worked closely with the former minister from the Conservatives at the federal government. The same principles were agreed upon—best interests, relocation amendments and these types of things—and, of course, we see what's in Bill C-78.

When we look around the world and see the things going on elsewhere, we should thank all of you for the level of discourse and the civility we have in bringing forth these common ideas.

I want to spend the little time that I have talking about some amendments that, I would submit to you, would further the purposes of the bill. They would avoid unexpected consequences from, what I would suggest, are problems with the bill. I'd encourage you, most of all, as you consider the bill, to follow the social science in the area. Family law, as all law, has to change as society evolves, of course. You can't get too far ahead, but you can't lag behind, and I would submit to you that following the social science is key.

Let's look at what we can do with that in the limited time I have. I begin with the definition section. I'd suggest to you that when you look at decision-making responsibility, in terms of the words “significant” extracurricular activities, “significant” is included under decision-making responsibility.

Families fight about extracurricular decision-making. Who has the right when one parent puts the child in activities without consulting the other parent, especially on their time? You already have “significant” decisions in the preamble. I'd encourage you to take out “significant” extracurricular activities. We don't want to have battles on what is a significant versus an insignificant extracurricular activity. Just take it out. It's not necessary.

Family dispute resolution process is another area that's important. We haven't included mediation and arbitration. These are very common in B.C., Alberta and Ontario. It's coming to Manitoba. I'm working on that very hard, and so are some of my colleagues, to make it a reality in Manitoba. It's popular elsewhere. I realize it's an open set in there. It's not a closed set, but add that in. It's there.

Family violence needs some attention too, but some of my co-presenters are going to speak to that, so I'm not going to spend time on that. There are some issues there as well. It's also in my submissions.

I'm going to invite you to turn to duties. It's a great idea to add the duties of parties, of lawyers, which are expanded, and also of courts. I'd invite you to look at proposed section 7.6, in particular, where there's a certification required, and that certification is only when you commence proceedings. I want to see parties say they're committed to those principles every step of the way. Every motion, every application, every variation, they should be reminded of that.

When you turn to the duties of the court, they're supposed to know about information for other orders and proceedings elsewhere. Unless the government's going to fund a registry or some sort of database, there's no way to know that. Manitoba courts aren't going to know what's happening in Prince Edward Island if there's a child and family proceeding out there or a criminal proceeding out there. They don't even know what's happening between superior courts and provincial courts.

The fix is one of two things I would suggest. One is to also make that a duty on parents to disclose. They should have to disclose, and the courts will impose a consequence if they don't, if there was a child protection proceeding some place, a criminal proceeding or what have you. That's very important. Keep it in for the courts, but add it in there, and if you have a couple of extra bucks as you go through budgets, maybe you could create a database because that would be even more helpful.

I'm not going to talk about best interests factors. I suspect other people will. I will, though, tell you—and it's important to focus on best interests—not to have presumptions. I can talk at length about it. If you ask me questions, I'll talk about that, but it's very important. What the government did here is correct. It's supported, as I said, by the NDP in Manitoba in what it did when it was in government. It's supported by the previous minister of justice who was a Conservative, and of course, here. It is the correct approach.

Let me look, in the limited time that I have left, at relocation, because that's really so important. I'm just going to say that in a few areas there are some new, vague terms that aren't defined.

What do children need? I want to invite you to consider the legislation through the eyes of a child. What does a child need? We all agree—the men's groups, the women's groups, the lobbyists—everybody agrees that best interests is what you have to focus on. The problem is that people have different ideas of what that means or of how you get there, but the reality is that we all focus on that.

View it at every step of the legislation and think, does this work for a child? That's what I would suggest you ought to do. Where you have vagaries, that's a problem. Children need stability, consistency, predictability and close attachments to be fostered with as many people who love them as possible. That's what they need. To the extent that the bill doesn't do it, it's a problem.

I don't know how much time I have left. I'm speaking as fast as I can.

[The Chair, Liberal, Anthony Housefather]

You have two and a half more minutes.

[Lawrence Pinsky]

Okay.

I'll be quick on relocation. The person who's relocating has thought about the relocation for ages. This says they have to give 60 days' notice and the responding party has 30 days. It's entirely unfair, because in rural Canada or northern Canada, they can't even get a lawyer in 30 days. It can't happen. It's not going to happen. Even in urban centres, it's not going to happen. You can't give them 30 days.

My suggestion to you is to make the notice period five months and have another process with 90 or 60 days for a response. Give them a chance to consider what we're supposed to consider as an alternative, sort of an ADR method. Even in relocation, there should be a family dispute resolution process. If you tell somebody to just run to court within 30 days, they're already at the ramparts and they're ready for battle. That's the opposite of the philosophy of the legislation. You should give further time, in my submission.

Also, this notion that someone can just allegedly send a letter with what they have to send isn't sufficient, in my submission. Why? People will do mischief. They'll say they sent notice and they didn't send notice. Then what happens? Not only that, but you have an order in place that gives the non-moving party time with the child. They have a valid order doing that. The other person leaves just with notice that may or may not have been given, and you have chaos. Can you enforce the order? Can you not enforce the order? Is the person who left in contempt or not? What about if the child needs a psychologist in their new location? The psychologist, if they're good, says, “Where's the consent of the other party and let me see your court order?” Some private schools and other schools do that too. They can't show an order.

The better system, I would suggest to you, is to make the relocating party have a standard pro forma form of notice. Let them prove in court, in an easy way, that “I've sent it and here's my proposal for relocation”, all the things that are in the bill, and let there be a check box at the bottom where the responding party can say, “Yes, I agree to the move” or “No, I don't agree.” If there's no response, that person can simply file it and get a desk order. Then we don't have the administration of justice brought into chaos by having a legislative scheme allowing a move and an order disallowing a move. Yes, it'll cost a couple of bucks, but it's relatively inexpensive compared to everything else.

In the onus section of my submission, I attached a paper we did. My preference is to have the Manitoba model, if you'd look at it. I don't think that's something that the government's prepared to do, and I'll explain why in a moment. Second would be what they did in Nova Scotia. The idea of having terms like substantially equal time or vast majority of their time, which are undefined terms, is a big problem because, again, children need predictability among other things. This will lead lawyers to have arguments.

I'll make one final point on that, if I may, which is just about the double-bind question. The way it's drafted is nice but, I say with respect, incorrect, because all it says is that the court can't consider whether the person who intends to relocate would relocate without the child. When I'm the lawyer, I'm going to ask a different question: Will you stay? It doesn't say I can't ask that question.

What about sauce for the goose and sauce for the gander? This doesn't say I can't ask the non-relocating parent whether they are prepared to move. That's a problem. It should be the same. There's a good philosophical argument to say don't allow the double-bind question. I'm in the minority. I think you should allow the double-bind question. I think we should have confidence in judges. They weigh all sorts of things. They ignore things. They weigh things. This isn't going to put them over the edge. Let them consider it. Let them consider the full picture, but I'm, you should know, in the minority. My colleagues who practice in this area generally don't share that view. I think it's important.

If you are going to ban it though, be consistent. Ban it for both and be clear that it's not only to relocate with the child; it's stay or go for both. There's an amendment.

Do I have much time left?

[The Chair, Liberal, Anthony Housefather]

No, you've exhausted your time.

[Lawrence Pinsky]

Have I exhausted all of you?

[The Chair, Liberal, Anthony Housefather]

You were so fascinating I didn't stop you.

[Lawrence Pinsky]

I could keep going.

[The Chair, Liberal, Anthony Housefather]

Thank you, Mr. Pinsky.

Now, we will go to Ms. Beavers.

I'm sure you'll be just as fascinating.

[Suki Beavers, Project Director, National Association of Women and the Law]

I'm going to hazard a guess that I may be more fascinating. Let's see. The gauntlet has been thrown down.

Good evening and thank you very much for this opportunity to speak on Bill C-78, on behalf of the National Association of Women and the Law. As I think most of you know, NAWL is an incorporated, not-for-profit, feminist organization that promotes women's equality in Canada through legal education, research and law reform advocacy. Advocating for the much-needed changes to family laws, including the Divorce Act, has been a focus of NAWL's work since the early 1980s, so it brings me great pleasure to begin this evening by congratulating the government for introducing C-78. There are many aspects of this bill that we fully support.

However, before I get into talking about the specifics, I want to reflect that NAWL worked jointly with Luke's Place in developing both a discussion paper and a brief on C-78, which I think you all now have. Our joint brief has been endorsed by 31 organizations from British Columbia, Saskatchewan, Manitoba, Ontario, Quebec and New Brunswick, as well as more than a dozen national feminist and equality-seeking groups, and is the fruit of consultations that we convened with feminist lawyers, academics, service providers and advocates. I mention this, not just because we're proud of our network and of our collaborative work—because we are—but also because it's important to emphasize the depth and the breadth of our shared feminist intersectional analysis of Bill C-78, particularly in relation to the issue of family violence in the context of divorce.

Now, let me turn to some specifics, beginning with the aspects of the bill that we fully support. We congratulate the government for putting the best interests of the child at the centre of this bill and for developing a much-needed set of criteria to help guide the determination of what will be in the best interests of each child, based on the recognition that every family and every child's needs are unique. NAWL fully supports the exclusion from this bill of any presumptions of shared parenting. Determining what's in the best interests of the child must be done on a case-by-case basis.

We also fully support the inclusion of family violence in this bill and a comprehensive definition of it that recognizes that family violence exists on a spectrum.

I now want to turn to some aspects of the bill that we think do not yet go far enough because, as we know, the impacts of family violence can continue long after a marriage ends.

Our first recommendation is that a preamble be added to this bill that acknowledges the gendered nature of family violence and confirms that addressing family violence is one of its aims. The evidence here is clear and unequivocal. As with other forms of gender-based violence, the majority of victim survivors of violence within marriage, and when it ends, are women. Men are overwhelmingly the perpetrators of this violence. A preamble is important because it can guide the interpretation of an act and is good practice. Just a few weeks ago, when it was used in Bill C-86 to frame the establishment of the new department of women and gender equality, which will replace Status of Women Canada, that bill included a preamble that recognized the government's obligations to advance women's rights and gender equality. A similar preamble should be added to C-78 that recognizes that women experience family violence, as a form of violence against women, and that women have diverse lived experiences of it. We've drafted a preamble that we hope this committee will recommend to be included in the act.

In addition, we also recommend that a definition of violence against women be added, which acknowledges that it is a form of gender-based discrimination that's experienced by women in multiple ways and shaped by other forms of discrimination and disadvantage. This intersects with race, indigenous identity, ethnicity, religion, gender identity or gender expression, sexual orientation, citizenship, immigration or refugee status, geographic location, social condition, age and disability. This would be consistent with the government's commitment to GBA+.

The appalling and ongoing situation of violence against indigenous women must be redressed immediately. We urge the federal government to consult with indigenous women's groups on the potential impacts of C-78 on indigenous women, their children, their communities and their families to ensure the cultural heritage, safety, security, autonomy and rights of indigenous women and their children are respected, protected and fulfilled, and not further endangered or violated by any direct or indirect impacts of any of the provisions of C-78.

We propose the addition of provisions to help ensure decision-makers do not rely on harmful myths or stereotypes about family violence, even inadvertently, when they're making decisions in the context of divorce. While I don't have time to read through the entire section that we have drafted—I hope you will, though—I will highlight some of them, including for example, that a court should not infer that because a relationship has ended or divorce proceedings have begun the family violence has ended.

A court should not infer that if claims of family violence are made late in the proceedings or were not made in previous proceedings they're false or exaggerated. A court should not infer that if a spouse continued to reside or maintain a financial, sexual or business relationship—or a relationship for immigration purposes—with a spouse, or has in the past left and returned to a spouse, family violence did not happen or the claims are exaggerated.

The court should not infer that leaving a violent household to reside in a shelter or other temporary housing is contrary to the best interests of the child. The court should not infer that fleeing a jurisdiction with children in order to escape family violence is contrary to the best interests of the child. Also, the court should not infer that the absence of observable physical injuries or the absence of external expressions of fear mean that the abuse did not happen.

I don't have time to adequately address this issue, but I also want to reflect some thoughts on changes to language included in Bill C-78.

We understand and commend the objective of reducing tensions and conflict in divorce proceedings. However, there is no evidence that removing the familiar language of custody and access will actually reduce conflict and benefit children. Further, there's a real risk that this change in terminology will create uncertainty that will be available to abusers to exploit and to perpetuate ongoing abuse through court proceedings and otherwise.

Indeed, we heard from feminists in other jurisdictions, including British Columbia, where similar language changes have been made, that they have not seen a reduction in conflict in family law proceedings after the terminology of custody and access was removed from the provincial Family Law Act. Therefore, we recommend that the language of custody and access be retained and inserted in Bill C-78.

In addition, we believe the proposed definitions of parenting orders and parenting responsibilities are too vague and ambiguous and also provide opportunities for abuse. We recommend, therefore, that a clearer set of responsibilities be set out for the parent with decision-making responsibility.

Because of time constraints, I'm going to end my comments here, but I'm of course eager to answer any questions that the committee might have. I want to simply confirm that NAWL supports the positions that Luke's Place will now present, which, like ours, are the product of our joint work together.

I thank the committee again for providing NAWL with the opportunity to appear this evening.

[The Chair, Liberal, Anthony Housefather]

Thank you very much. It's really appreciated.

Now we'll throw down the gauntlet to you, Ms. Cross, to see if you can be as fascinating as the first two witnesses.

[Pamela Cross, Legal Director, Luke's Place Support and Resource Centre for Women and Children]

I will do my best, but you know eight minutes is a bit tough.

Good evening. Thank you for this opportunity to appear before you and share some of my thoughts about Bill C-78. I'm the legal director of Luke's Place Support and Resource Centre in Durham Region, Ontario. We're named after Luke Schillings, a three-and-a-half-year-old boy who was murdered by his father on his first unsupervised access visit, after his mother sought an order for supervised access but was unable to obtain one.

We deliver direct family court support to women who are leaving abusive relationships. We also work on the provincial and national levels doing research, training and law reform advocacy on the issue of violence against women and the law.

Naturally, family laws at both the provincial and federal levels have a huge impact on the women we serve, as well as on their children, so we've been involved in advocacy in this area for many years.

We're delighted to see Bill C-78. As you all know, the Divorce Act has not been amended for more than 20 years. During that 20 years, the realities and needs of families in Canada have changed considerably. As Suki has already noted, this brief, prepared jointly by Luke's Place and NAWL, is the product of many wise minds. My comments will focus on some of the key issues that she has not already noted.

The brief reflects the expertise, among other expertises, that comes from our work at Luke's Place with women fleeing abuse who are engaged with legal systems, as well as from my own experience as a family law practitioner. These are perspectives that we think are critical for the government to consider when amending the divorce act.

First, like NAWL, I'd like to congratulate the minister and the government on presenting a bill that has many positive elements. We especially comment on these. Placing the well-being of children at the centre of the bill is really important. Developing clear criteria for the best interests of the child test will assist unrepresented litigants, lawyers and the judiciary to understand what needs to be taken into account when determining arrangements for children. The clear identification of family violence as an issue to be taken into account in divorce proceedings will be very helpful, and in particular in that category, we note the inclusion of coercive control, psychological, financial and animal abuse in the definition, and the recognition that family violence exists whether or not the conduct constitutes a criminal offence.

We are very pleased that the government has not introduced a presumption in favour of shared parenting. Because of the unique circumstances of every family, any such presumption would not be in the best interests of children.

Of course, we also have some concerns. There are some elements of the best interests test that are problematic in situations of family violence. Mothers, in Canada, remain the primary parent in most separated families. Keeping mothers safe enhances the well-being and best interests of their children. We would like to see proposed new section 16 amended to clarify this. Mothers need to be able to keep themselves and their children safe without having their behaviour labelled “parental alienation”.

Proposed new paragraph 16(3)(c) requires each spouse to support a relationship between children and the other spouse, and new paragraph 16(3)(i) requires spouses to communicate and co-operate with one another on matters related to the children. Our work with women has shown us repeatedly that these are not appropriate in cases of family violence. Indeed, communication and co-operation may be impossible where the abusive spouse engages in coercive and controlling behaviours. Such a requirement places women at risk of ongoing abuse, both physical and emotional, including lethal violence, and leaves children living in an environment of fear.

Furthermore, it's our experience that parents who are able to co-operate and communicate effectively are not turning to the courts to work out post-separation arrangements for their children. Court orders for joint or shared parenting are something of an oxymoron. It's for these reasons that we have recommended removal of these two paragraphs, or in the alternative, rewording of them to identify situations of family violence as exceptions.

Proposed new subsection 16.2(1) sets out the principle that a child should have as much time with each parent as is consistent with his or her best interests. This is highly problematic for mothers who have left an abusive spouse and who often have serious and legitimate concerns for the safety of their children when in the care of their father. This provision is neither appropriate nor necessary and should be removed.

The bill would be strengthened by the addition of clauses that set out specifically that the court should not presume that any particular arrangement is in the child's best interests.

Like NAWL, we're not convinced that changing the language of custody and access to parenting time and decision-making responsibility will have the results that the minister is hoping for. The definition of decision-making responsibility at the beginning of the bill is general and lacks detail. Coupled with proposed subsection 16.2(3), which says that a person with parenting time has “exclusive authority” to make day-to-day decisions about the child when the child is with that parent, the bill creates a broad opening for an abusive spouse to intentionally interfere with the other spouse's ability to make decisions about the kids.

Children's lives do not divide neatly into big decisions and day-to-day decisions. This reality can be easily manipulated by a spouse who is seeking to maintain control over the other spouse rather than to ensure the children's best interests. We have seen this time and time again in our work with women. We'd like to see a detailed but non-exhaustive list of the kinds of decisions a parent with decision-making responsibility would have. We've provided that in our brief.

We would also recommend changing the provisions with respect to day-to-day decision-making, and adding a provision that any day-to-day decision shall not conflict with decisions made by the parent who has decision-making responsibility.

This may come as a surprise to some members of the committee, but we do not oppose the use of family dispute resolution, even in cases involving family violence. We've worked with women who have found the process empowering and who have emerged with satisfactory outcomes. However, we do not support prioritizing family dispute resolution over litigation, and we have concerns that the present wording in the bill does this. Families have different needs, concerns and abilities, and should be made aware of all options for the resolution of their dispute.

We would like to see the duty on parties to resolve matters by a family dispute resolution rephrased to include a specific reference to family violence. We would also like to see the rewording of the duty of legal advisers to require them to screen all clients for family violence.

We appreciate the inclusion of a provision to speak to non-parental time with children. This is an arrangement that is a reality for an increasing number of families in Canada where grandparents in particular play significant roles in the lives of their grandchildren. However, we do not want to see this provision used by an abusive spouse who has limited or no time with his children because of safety concerns, who then manipulates his parents into seeking contact as a backdoor way to allow him to see his children.

As you heard from witnesses on Monday, the clarity that the relocation provisions will provide is badly needed and much appreciated. However, the family violence exemption from the notice requirement needs to be made more clear. We have offered some wording in our brief that could assist with this.

The burden of proof sections are ambiguous and confusing, particularly for unrepresented litigants who make up more than 50% of the people in family court in Canada. We think the language of “substantially comply” should be removed.

I have one last note on the bill. While we did not comment on these provisions in our brief, largely due to time and space constraints, we fully support those sections of the bill that will make income disclosure and enforcement of support orders both easier and more efficient. Many women and children live in poverty post-divorce because the present systems are cumbersome and slow.

Finally, subject to any questions you may have for me, let me say that while I certainly hope the committee will be persuaded by our recommendations, I also hope this bill is able to move quickly through the remaining stages so that the Divorce Act can become a law that protects the best interest of children, understands family violence, reduces child poverty and increases access to justice for families in Canada.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

We'll move on to Ms. O'Brien.

[Shaun O'Brien, Executive Director and General Counsel, Women's Legal Education and Action Fund]

Thank you very much.

Thank you for the opportunity to provide submissions on behalf of LEAF. As you may know, LEAF has been advocating for equality rights for women and girls since 1985, coinciding with the advent of section 15 of the charter. In addition to our regular interventions before the Supreme Court of Canada, we have extensive experience in law reform, including in appearing before parliamentary and Senate committees. We've been involved in numerous family law issues for over 30 years, and my comments today are informed by a committee of family law experts from across the country.

I also want to note that LEAF participated in the broad consultations conducted by NAWL and Luke's Place. We endorse their brief, and our brief should be read together with theirs. I also want to underscore the positive parts of the bill that my colleagues have emphasized today.

I'm going to launch into my two main points for today, which are related to maximum parenting time and family dispute resolution.

With respect to maximum parenting time, under the bill, proposed section 16.2 would require a court, in allocating parenting time, to give effect to the maximum parenting time principle, which is generally understood as being that maximum contact and care by parents is a good thing for children. Even though maximum parenting time may seem like a good idea, the reality is that research in Canada and elsewhere documents the devastating impact to women and children of the assumption that maximum contact with both parents is good. It's important to carefully review the research and expert evidence on this issue. The bottom line is that if one parent has not been an attentive parent to date, the time of separation, a time of high conflict and serious danger, is not the time to try to encourage this.

What is needed is the amount of contact that's appropriate to the facts of a given case for the best interests of a child. Maximum contact isn't necessarily the best in many cases. It needs to be an individualized assessment of the specific context, the best interests of the child in each individual case. The key point for the purpose of the wording of the legislation is that the assumption about maximum contact is so pervasive that unless it's specifically debunked...and even then, it has a vastly undue influence to the detriment of women and children. The problem is that assumptions in legislation about maximum contact are known to result in reduced scrutiny of issues associated with safety and other best interests of the child factors. That's the case—and here's the important point—even when the best interests of the child are built into the maximum time provision, as they have been here.

In other words, I realize that proposed section 16.2 is worded to include reference to the best interests of the child, but I don't think that's enough. The heading is “Maximum parenting time”, and any suggestion that this principle should be complied with is very concerning.

I want to give you the example of the Family Law Act in B.C. That legislation makes explicit efforts to take account of family violence and to focus on the best interests of the child only when it comes to parenting or contact orders. The best interest is the only thing that can be taken into account. There's no maximum contact provision, and the act explicitly says there's no presumption of equal parenting time. In spite of that, the evidence is that judges in B.C. still make orders in favour of maximum contact and shared parenting, even in cases where family violence has been established. They tend to underestimate the consequences of being abused or exposed to abuse and treat shared parenting as a presumption, even when there's no presumption at all in the act.

Given this evidence, and this is just one example—it's consistent with the research elsewhere—an explicit presumption is dangerous to the safety and security concerns of children. Our strong recommendation is to eliminate this provision altogether. If that doesn't happen, our alternative position is that the heading in the legislation needs to change, because the wording of the provision, as I said, doesn't actually say “maximum parenting time”, but the heading does. I submit that this will signal the wrong thing. It should say something like “Best interests and parenting time”, which would give better emphasis to what the provision seems to actually say and would emphasize the important point that the overall governing principle is the best interests of the child.

We also endorse a further provision that clarifies that there should be no presumption that things be shared equally or for maximum parenting time. That's set out in our brief and in the recommendations from NAWL and Luke's Place. It's similar to the language in the B.C. legislation.

Turning to the family dispute resolution processes in the bill, our basic point here is that there's too much emphasis in the bill on dispute resolution given women's inequality in the context of family law and the dangers of family violence. The wording in the bill acknowledging these concerns, in our submission, isn't strong enough.

Broadly, proposed section 7.3 requires parties to try to resolve matters through family dispute resolution processes, and proposed section 7.7 puts the duty on legal advisers to encourage clients to resolve matters through a family dispute resolution process unless it's clearly not appropriate to do so.

These provisions raise serious concerns for us. Even though there's a reference in both provisions to whether it's appropriate to do so, the provisions make out-of-court processes the norm. This is an access to justice issue because of the inequality and power imbalances that plague women in the family law context, including the danger to women and children of family violence.

The strong emphasis on dispute resolution processes may encourage women to settle inappropriately in a manner that compromises their safety, security and well-being and that of their children. For example, women may agree to supervised access or to overnight access, because they don't know they can avoid it, and because there's so much pressure to agree to these things because of things like the maximum time principle. These types of arrangements in some cases lead to serious danger. The overall point is that there needs to be a more explicit reference in the statute to the fact that dispute resolution may not be appropriate in cases of family violence. There are recommendations on this in our brief, and in the briefs of NAWL and Luke's Place.

We're also concerned about the duty imposed on lawyers to encourage women to attempt to resolve matters through dispute resolution processes unless it's clearly not appropriate to do so, and the word “clearly” is in the legislation in proposed section 7.7. Our concern is that this isn't consistent with lawyers' professional obligations. The obligation on lawyers is to ascertain the appropriate legal principles and best course of action for their clients. That includes taking into account principles of substantive equality, and to represent the client resolutely and to endeavour to obtain the benefit of every remedy authorized by law. Our position is that to place the stringent requirement on legal advisers of encouraging their clients to settle unless it clearly is not appropriate deprives women of appropriate legal advice, and in particular it's a critical type of legal advice because it's about their substantive equality and their safety, security and well-being.

Overall, given the dangers of dispute resolution processes for women, legal advisers should be required to use accredited family violence screening tools, and the duty to inform should be to inform the person of all processes to resolve the matter, including dispute resolution. We endorse the recommendations and the briefs by Luke's Place and NAWL with respect to those issues.

I'd be happy to receive any questions, but for now those are my submissions.

Thank you very much.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

I note you hit eight minutes and one second. Congratulations, you are the absolute closest to the eight-minute mark of anybody we've had so far.

[Shaun O'Brien]

It's not by design, but thank you.

[The Chair, Liberal, Anthony Housefather]

Let's see if Mr. Cooper can hit exactly six minutes on his questions.

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

I'll try, Mr. Chair.

Mr. Pinsky, regarding relocation, toward the end of your presentation you addressed the issue of burden of proof in terms of parents who spend the vast majority of time, or substantially equal time, the three-way split that is provided for in the legislation. You touched on Manitoba and Nova Scotia, but you didn't have time to elaborate on that.

We heard yesterday from Professor Thompson from Dalhousie University, and he suggested—it was his opinion anyway—that has worked relatively well in the year that the legislation has been in place in Nova Scotia. I'd be interested in your thoughts on Nova Scotia and Manitoba. In addition to that, he said it hadn't worked so well in British Columbia. I didn't have a chance to ask him why that was and he didn't share that opinion.

[Lawrence Pinsky]

Thank you so much for your question. I'm happy to respond to that.

In Manitoba, we formed a committee that I chaired, proposing changes to relocation. Bill 33 was the result. Unfortunately, it died on the order paper. Actually, I believe the sections are attached at schedule 1 to my submission. If you read that, you'll see that it's part of the paper that we had done some time ago.

On that committee was Professor Nick Bala, who I think is addressing you next week. We consulted with Rollie—Professor Thompson—extensively. We had a judge advising us. We had practitioners and governmental people, who we just assembled and put together.

Let me tell you what Manitoba did at the time.

We wanted certainty, and we didn't want to promote any litigation at the front end. The worry is that, if you're using terms like the terms that are used in the bill, people are going to fight for the vast majority of time, or whatever the term is, at the front end. In Manitoba, we asked, “Why don't we look at what adequate parenting parents get, in fact, in terms of time-sharing?” The key, again, looking at it from the perspective of the child, is that if I have a close attachment as a child to this other parent, the left-behind parent, is it in my best interests to have that relationship severed?

Because no matter what you say, and no matter what is said by anybody, the reality is that when that kid goes, the left-behind parent becomes like an uncle and is no longer a parent. That attachment is really broken—or changed. I can say “changed”—and I think everyone would agree with that—and lessened. In Manitoba, we said that the rebuttable onus is on the relocating parent to prove that relocation is in the best interests of the child if the other parent has at least one-third of the overnights over the course of the year. We defined it by overnights.

I shouldn't say “we”. It was the government. We recommended it but they did it. We defined it as one-third of the overnights so that you'd have certainty, because mere adequate parenting, they're going to get that anyway in terms of the course of the year in Manitoba, assuming that we're not talking about a baby or a child where they're assuming adequacy. Those assumptions are built in.

Also, of course, we respected the Convention on the Rights of the Child, because we took into account and said what the child's view might be, and of course we took into account where a parent has complied with a court order.

I will note as well—I didn't have a chance to mention it—that this bill talks about substantial compliance with court orders. That is an enormous mistake, in my view. There has to be compliance with court orders, not “substantial”—whatever that means—compliance with court orders. I don't want to have to fight when someone removes a child: “Was that substantial or insubstantial or what was that?” Predictability and certainty....

Anyway, we did that. The onus would have shifted to the other parent if they had less than one-fifth of the overnights over the course of the year because, again, adequate parents are going to get that in the normal course. You're not going to be encouraging fighting. That's what the proposal was in Manitoba.

In Nova Scotia, they have guidelines, which I would say is second best. I think Manitoba's was best. Rollie and I went back and forth, and Professor Bala was in favour of our view, as he may speak to in due course.

As I say, in Nova Scotia they had a sort of shopping list of issues to consider. That's a good approach to do, too, with terms that we know, terms that are established. It gives guidance to the court. That has worked reasonably well.

B.C. is problematic, I say with respect, in a number of issues. It's been criticized quite a bit by people who write on the point. I can go through that if you want. It's attached as well to my submission, if you like. Essentially, where you look at an application under the section and the relocating parent—or guardian, I should say—doesn't have substantially equal time, the relocating guardian has to satisfy the court that the relocation is made in good faith and that there are reasonable and workable arrangements to preserve the relationship.

You can't do that in moving from B.C. to England or wherever you're going to move to—Winnipeg or whatever it might be—but that's what they had to show. If the court is satisfied, then the presumption is that it's in the best interests to move. The fundamental principle at the end of the day, and what the basic philosophy is as I've said, is that where there's a close, healthy attachment with a parent who isn't leaving, don't sever that unless there are darn good reasons to do that—and sometimes there are.

The onus should be on the person to show that is the case, in my submission.

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

The onus, so—

[The Chair, Liberal, Anthony Housefather]

Sorry, you're over six minutes.

[Lawrence Pinsky]

Okay, I'm sorry. I did that, too.

[The Chair, Liberal, Anthony Housefather]

It was actually a very helpful answer. He would have stopped you if he didn't find it helpful. It was very good.

Sorry about that, though.

Ms. Khalid.

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

Thank you, Chair, and thank you to the witnesses.

I want to start off by clarifying. Ms. Beavers, you mentioned in your remarks that you are in support of family dispute resolution or alternative dispute resolution. Could you comment on Ms. O'Brien's views on the impact of ADR or FDR with respect to Bill C-78?

[Suki Beavers]

Thank you for the question.

We actually are not in disagreement. The starting point for us is that there should not be an automatic exclusion of ADR because it does work for some women. They are able to get the kinds of outcomes they're looking for. However, there are many cases involving family violence where ADR may not be appropriate. The change we're asking for in the wording of the bill is that there be no preference given, nor indeed a requirement, for any clients to be encouraged to pursue ADR. That may be quite inappropriate for all the range of reasons that LEAF has outlined today.

The difference, the shift in language that we're looking for, is the requirement for all legal representatives to present to their clients the full range of legal options available to them, to listen to their clients and to help them determine what process will work well for them and what will not. Sometimes ADR is absolutely inappropriate for women in the context of family violence, and sometimes women will choose to pursue it for the range of reasons that apply directly to them.

That's the change we're looking for.