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.