Justice Committee on Nov. 26th, 2018

[Martha McCarthy]

Yes, I agree completely. There's another thing that builds on that, which is fully connected to the feminization of poverty and to disclosure difficulties and the two governments speaking, and that is, when the child support guidelines were introduced, a concept that went hand in glove was an idea of annual adjustments to child support. Annually we pick the scab. Annually people fight.

The concept of it was that they were going to go to a recalculation centre, in capital letters, in the regs, that we were going to put in every courthouse across the country that would help people have auto.... They would get CRA information to a bureaucrat who would possess the stuff, help them with all this and it would all be run in a subsidized way. It never happened. Not a single one of those ever happened, and it's a major failing of the legislation. We have annual reviews with no assistance to people. Those recalculations centres, that would be a great thing we could roll out in the UFCs.

Also, to the same point about the UFCs, it's just like a sweep of the pen, no? We already have the building, we have the people there, so let's put a recalculation centre in somewhere, along with the law help, along with the pro bono students, etc.

[The Chair, Liberal, Anthony Housefather]

Thank you so much. I really want to thank the members of this panel. It was really appreciated. On our next panel we have two people by video conference so I would like to get them set up. We'll do a brief recess. I would ask whoever is here for the next panel to come forward.

Thank you again so much.

[The Chair, Liberal, Anthony Housefather]

It is a pleasure to resume our meeting with our third panel of the day.

I'd like to thank all the witnesses.

We are joined by video conference by Professor William Fabricius, who is an associate professor of psychology at Arizona State University, and he's joined us from New York. We're joined by Leading Women for Shared Parenting and Ms. Paulette MacDonald, who is coming from Lindsay, Ontario. In the room with us we have from the Elizabeth Fry Society of Greater Vancouver, Ms. Shawn Bayes, who is the executive director.

Welcome.

We want to make sure that we don't lose the people on video conference so we will start with them.

Everybody, it's eight minutes. I will probably cut you off if you reach nine because we have to get to questions.

Professor Fabricius, you're first.

[Professor William Fabricius, Associate Professor of Psychology, Department of Psychology, Arizona State University, As an Individual]

Thank you very much for inviting me.

I'll say a couple of words about my background. I have a Ph.D. in developmental psychology from the University of Michigan, obtained in 1984. I'm an associate professor of psychology at Arizona State University, as you mentioned, and I've taught child development for over 30 years at the university level. Before that, I was a preschool teacher.

My research includes basic child development research. I'm principal investigator on a 10-year longitudinal study of the role of fathers in adolescent development funded by the National Institutes of Health, and I also do applied divorce research on parenting time, parent relocation and overnight parenting time for infants.

My experience with the practice of family law includes service as a board member of the Arizona Association of Family and Conciliation Courts, a governor's appointment to the Domestic Relations Committee at the Arizona State Legislature for 10 years, and expert witness testimony in parenting time cases.

I have also spent a considerable amount of time working with others on translating research into child custody policy. I chaired the committee at the Arizona State Legislature that wrote the major reforms to the Arizona child custody statutes in 2010 and 2013. I was an invited participant in two international working groups: Senator Cools' round table and symposium on family dynamics there in Ottawa in 2011, and the Association of Family and Conciliation Courts think tank on shared parenting in Chicago, Illinois in 2013. I've given over 30 presentations of research to family law associations.

By way of personal disclosure, I am a divorced father of two. Their mother retained legal custody, but we had shared parenting time and we always lived in the same school district.

In my brief, I review four sources of evidence that equal parenting time is in the best interests of children. First, the evidence now strongly suggests that equal parenting time causes benefits to children. Second, there is widespread public endorsement of equal parenting time. Third, the 2013 equal parenting law in Arizona has been evaluated positively by the state's family law professionals. Finally, examples from Canadian case law show that the courts are responding to the new cultural norms by crafting individualized equal parenting time orders, often over one parent's objections and even in cases of high-parent conflict, accompanied by well-reasoned judicial opinions about how that is in children's best interests.

In my brief, I conclude that the overall pattern of evidence indicates that legal presumptions of equal parenting time would help protect children's emotional security with each of their divorced parents, and consequently, would have a positive effect on public health in the form of reduced long-term, stress-related mental and physical health problems among the children of divorce.

As others have pointed out, the current child custody statutes were written in the absence of evidence of how well they promoted children's well-being. The evidence that is now available is, in my opinion, compellingly in favour of legal presumptions of equal parenting time.

In the remainder of my remarks, I will touch on four additional points.

One problem with not having a legal presumption of equal parenting time is that many parents are likely to make parenting time decisions under the impression that the family courts are biased toward primary parenting time for mothers. We have found that this impression of maternal bias was universally held in Arizona before the law was passed. The mere impression of bias encourages parents to settle out of court for less parenting time with fathers, and it becomes a self-fulfilling prophecy. A legal presumption of equal parenting time is needed in most places to overcome this perception of bias among parents who bargain in the shadow of the law.

Two, some researchers repeat the line that the quantity of parenting time is less important than the quality of the father's parenting, but they count things like helping more often with homework, working on more projects together and putting the child to bed more often as higher-quality parenting. However, clearly divorced fathers who do more of those things necessarily have more parenting time in which to do them. Higher-quality parenting requires more parenting time. That's what the data in figure 1 in my brief shows. I do not have a good explanation for why some researchers continue to argue about which one is more important—the quality of parenting or the amount of parenting time.

Three, oddly, most researchers have not focused on what parenting time means to the child. Spending time together in and of itself communicates to the child that he or she is important. We were struck by this in interviews with about 400 adolescents about their relationships with their parents. They spontaneously talked about whether their parents spent enough time with them. We then used state-of-the-art longitudinal analyses and confirmed that the more time each parent spent with the adolescent child in daily activities, the more secure the child felt one or two years later that he or she mattered to that parent. For divorced fathers, this requires having enough parenting time to be able to spend enough time doing the things together to protect children from doubts about how much they matter.

Four, oddly, researchers have traditionally not realized that father-child relationships are just as important as the more traditional child outcomes of depression, aggression and school performance. The potential public health benefits of improving divorced father-child relationships could be substantial. An estimated 35% of children of divorce have poorer relationships with their fathers as a consequence of the divorce. Children who are less close to their divorced fathers have worse behavioural adjustment, worse emotional adjustment and lower school achievement. Evidence from the general health literature going back 50 years shows that poor relationships with either parent contribute in later life to accumulating risk for mental health disorders, major chronic diseases and even early mortality.

Our latest study in this line of work found that adolescents' perceptions of how much they matter to their father were actually more important than their perceptions of how much they matter to their mothers for predicting their later mental health. I'll stop there.

[The Chair, Liberal, Anthony Housefather]

That was much appreciated.

We will now go to Ms. MacDonald.

[Paulette MacDonald, Member, Canadian Branch, Leading Women for Shared Parenting]

On behalf of Leading Women for Shared Parenting Canada, I thank you, Mr. Chair and members of the committee, for this opportunity to address proposed changes in Bill C-78.

I am a family law reform advocate—

[The Chair, Liberal, Anthony Housefather]

Ms. MacDonald, your voice is trailing away now. You were coming in very clearly before and then you stopped. Can you see if you can move closer to the mike?

[Paulette MacDonald]

I am a family law reform advocate. That came to be in 2005 after meeting a “non-custodial” father and his two young children struggling in a custody battle. Becoming a second wife and stepmother, I witnessed first-hand the destruction of an entire family simply because mom and dad got a divorce. I was dumbfounded. I couldn't get my head around what was happening to this family and how our family law system seemed to facilitate the worst kind of parenting behaviour, with its bias and winner-take-all approach.

I previously had no idea that the custodial parent, typically the mother, could run rampant within our family law system and child protection agencies. I saw breaches of court orders, false statements of arrears to the family responsibility office, false allegations of physical child abuse, and verbal and emotional child abuse. I also saw that the non-custodial parent, usually the father, is automatically guilty until he has proven his innocence, and by then, the damage is done.

This all took place because the children wanted more time with their father and he was seeking equal parenting time. Mom wanted no part of that, and the family court process allowed her to just about destroy him and her children.

I can confirm to you first-hand that the family justice system is indeed broken. That's why I became an advocate, and that's why I am here speaking to you.

Regrettably, Bill C-78 is not intended as a much-needed and overdue overhaul. Instead, it's targeted as more of a legal housekeeping exercise. Still, through the action of this committee I believe that Bill C-78 represents the best opportunity in more than 20 years to make select changes in the Divorce Act, demonstrably supported by Canadians and backed by authoritative social science research.

My remarks address a presumption of equal shared parenting as being in the best interests of the child. Equal shared parenting should be the starting point for judicial consideration. If both parents are deemed fit while the marriage or relationship is intact, then both parents should be deemed fit when the marriage or relationship ends.

Social science informs us that children do much better with both parents. Conversely, children raised without both parents generally underachieve, are prone to more medical and social problems, and have significantly higher rates of incarceration, all at taxpayers' expense. Continuity of parental and family relationships to the maximum workable extent is what is in the best interests of the child. Hence, fit parents should not have to spend their life savings in family court simply to maintain a pre-existing relationship with their children, as is all too often the case.

Equal shared parenting is fully endorsed by social science research as the preferred child arrangement post-dissolution, barring issues of abuse, neglect or violence. In fact, 110 eminent researchers publicly endorsed this scientific conclusion in 2014.

Moreover, in a 2018 special edition of the prestigious Journal of Divorce & Remarriage, a panel of social science experts, went further by stating that the scientific body of research was sufficiently powerful to now justify a rebuttable presumption of shared parenting. I submit that this evidence-based consensus should be reflected in Bill C-78.

Not only is equal shared parenting supported by science, but it is overwhelmingly supported in many countries and jurisdictions, according to polls, as is the case in Canada. In polls commissioned in 2007, 2009 and 2017, Canadians supported a presumption of equal parenting by a ratio of more than 6:1. Notably, the strong support was generally the same, regardless of gender, age, geographical region or political affiliation. This is a non-partisan issue for Canadians.

In 1998, all parties endorsed the shared parenting recommendations of the “For the Sake of the Children” report by the Special Joint Committee on Child Custody and Access. Likewise, the Liberal government of the day commissioned a poll in 2002, which found that Canadians supported shared parenting even then.

The Conservative Party and the Green Party currently have shared parenting as part of their policies. Now is the time for the others to reaffirm their commitment to shared parenting as a non-partisan issue.

Moving towards my conclusion, I’d like to share with the committee the public perception of shared parenting after its adoption in other jurisdictions. A recent example is Kentucky, which became the first U.S. state to adopt an explicit rebuttable presumption of shared parenting in April, 2018. Subsequent poll results of July 2018 indicate favourable support of shared parenting by a ratio of 6:1, about the same as in Canada. The poll also provides valuable insight on children’s rights versus parental rights.

As you know, detractors of shared parenting paint it as a parental rights issue on the erroneous assumption that parental rights and children’s rights are somehow mutually exclusive rather than overlapping. Here’s what the poll reported. Two questions were asked on children’s rights, and two on parental rights.

For the children’s rights, it is in the best interests of the child to have as much time as possible with their parents following divorce—a ratio of 12:1 agree. Children have the right to spend equal time or near equal time with both parents following divorce or separation—a ratio of 16:1 agree.

For parental rights, both parents, whether living together or living apart, should have equal access to their children and should share responsibility for raising their children—a ratio of 12:1 agree. Separating parents should have equal rights versus either father or mother having more—a ratio of 11:1 agree.

The results strongly indicate that children’s rights and parental rights are not mutually exclusive but complementary—oftentimes flip sides of the same coin—while recognizing the primacy of the child.

In that respect, the Minister of Justice was badly advised by her staff for her testimony before this committee on November 5 when she framed shared parenting as a parental issue rather than a children’s rights issue. Social science research and the public at large are telling you they are indivisible. To treat them as disjoint is not only scientifically incorrect. It is openly disingenuous.

Children’s best interests are served by having both parents actively involved, while parental rights are satisfied by allowing fit parents to raise their children. Canada has no better example of the benefits of shared parenting than Prime Minister Justin Trudeau, who was raised by Pierre Trudeau and Margaret Trudeau.

I conclude by urging the committee to amend Bill C-78 to incorporate presumptive shared parenting to reflect social science consensus and the long-standing wish of Canadians of all persuasions.

[The Chair, Liberal, Anthony Housefather]

Thank you very much. Now we will go to Ms. Bayes.

Ms. Bayes, the floor is yours.

[Shawn Bayes, Executive Director, Elizabeth Fry Society of Greater Vancouver]

Thank you.

I work for the Elizabeth Fry Society of Greater Vancouver. E Fry is our registered trademark. We provide support services and programs for women, girls and children affected by the justice system. We are the oldest, most diversified and largest of the Elizabeth Fry societies in the country. We are also a member of Child Rights Connect. Child Rights Connect is the United Nations NGO working group on the rights of the child, and we're one of 80 organizations in the world who belong to that organization. Our programs address the intersection of justice involvement and women's daily lives. We understand that rights compete, and that the rights of the child come before all else. It is from that perspective we speak today.

Our programs support not only women exiting the prison, but also offer shelters, outreach for women who are homeless and a full spectrum of addictions treatment from detox to intensive intervention for women, including those pregnant with children. We offer counselling programs inclusive of traditional one-on-one programs; income support programs for people banned from accessing government offices so they have difficulty receiving their statutory and regulatory entitlements like every other British Columbian; and therapeutic access programs for families involved in child protection investigations or family custody disputes.

We enable children to see their parents for those reasons related to family violence and parenting deficits. In addition to that, we have programs for children impacted by homelessness, parental neonatal exposure to substances, and parental incarceration. In short, we see ourselves as a living laboratory provided with the opportunity to see where gaps exist within the current system.

As it would apply to domestic violence and family breakdown, those are the predecessors leading to homelessness for women. Because inevitably when we talk to homeless women in our shelters and we explore what led to that road of homelessness, we are talking about domestic violence, which is the most common pathway women eventually enter. This is inclusive of when we work with street women who are homeless, again through our housing first outreach program.

We see failures in child and spousal support payments that lead women in utter frustration to be labelled as difficult and uncooperative, and therefore, banned from receiving services in government offices or speaking to workers to access things like social assistance entitlements or to discuss problems. We see women struggle with those same frustrations when faced with representing themselves in court against a spouse of higher income represented by a lawyer, and the impact that has on both their ability to explain what they think is important for the court to consider and to orchestrate a response to a well-ordered opposing argument in court.

Lastly, we see the failure of government programs both provincially and federally, such as child support enforcement programs and the child benefit to enable children to receive benefits to which they are entitled.

My comments to the bill are directed to the lives of children. We believe that the Convention on the Rights of the Child would offer the viewpoint that all children in Canada, no matter where they live or who they live with, should enjoy the equal benefit and protection of the state. They do not in fact now do so because of the patchwork of differing provincial and federal laws addressing marriage, common-law marriage and provincial child support enforcement programs, and even income assistance programs and the treatment of child support payments that are paid for women on welfare.

Secondly, divorce disproportionately impacts women and their ability to participate in the process. According to the 2016 census, over a half of Canadian taxpayers who are women have an income of less than $30,000. For women with an income of less than $20,000, that's 40% of Canadian women, and that directly impacts their access to justice.

The federal government, under article 2 in the Convention on the Rights of the Child, should respect and ensure that the rights set forth and presented in the convention are there for every child within the jurisdiction, without discrimination. It says that state parties should take “appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status”.

While recognizing the limitations the federal government operates within, one of the ways it can at least influence and level the playing field over time for children, as provincial legislation is rewritten, is to ensure there is a higher benchmark than what currently exists within provinces. Therefore, we encourage it to identify from witnesses particularly those points where provincial legislation is higher—and we do so on a few.

As it applies to the definition of family violence, the bill sets out a limited definition when it says that “family violence means any conduct” and then goes on to list measures. Many of the women and children we serve can describe the forms of violence they have endured as inclusive of isolating a woman from her family and/or her religious community, and the erosion of her sense of self, connection to others and, therefore, her ability to seek help, which this has created. We would encourage the committee to include and consider a definition that is broader and not finite.

When it comes to understanding family violence and the best interests of the child, this change would not be inconsequential. The ability of women to participate in a process is linked to their experience of family violence.

Proposed paragraph 16(3)(c) states that, in determining the best interests of the child, the court shall take into consideration “each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse”. Although Bill C-78 proposes extensive considerations with regard to family violence, this factor may be problematic for women who are in abusive relationships or are afraid of what the court will say if they are unwilling to co-operate and accommodate their abuser. The provision may silence women because of fear of the impact on custody and access, and consequently, it may impact the full consideration of the best interests of the child.

Second, the provision is often used against women who have experienced family violence, when they are labelled as uncooperative. The mental health of women is affected by their experience of abuse, and it is demonstrated in their lives by their ability to manage stress and their emotions. These women are commonly labelled as personality disordered in the Diagnostic and Statistical Manual of Mental Disorders, the DSM, by mental health professionals. The importance of this is that those symptoms—anxiety, depression, intensive mood swings and paranoia—can cause a woman to be labelled as uncooperative, but they are also an expression of the situation in which she has been living, and they are used against her for the benefit of the person who has abused her.

In B.C., the Family Law Act is the act most often used by the women we serve because they are unmarried or unable to afford the legal fees involved in using the Divorce Act, which can only be heard in the Supreme Court. The Family Law Act sets provisions for mandatory family violence screening and education for all professionals involved in dispute resolution. Those same safeguards are not included in Bill C-78. Such training is imperative to understand and contextualize why one party may appear to be reasoned, rational and well resourced, while the other appears unable to order their thoughts, appears angry or hostile, and is unemployed. It is this understanding that can inform the dispute process and the requirements asked of the parties.

Second, Bill C-78 sets out that at least 60 days' notice must be given to the other parent prior to a relocation, and the notice must include the new address of the parent as well as a proposal for parenting time. Although there is an exception for family violence included in the legislation, the exception must be court-ordered prior to the relocation. Under proposed paragraph 16.92(1)(d), when deciding whether to authorize a contested relocation application, the court will take into consideration whether the person who intends to relocate complied with the notice requirement. That requirement may lead to abused women reconsidering fleeing a violent situation. It also places women in a difficult situation if there is child protection legislation in their province, such as in B.C., where, if you leave a child in that circumstance, you can be held responsible and it can impact your ability to keep your child with you.

Therefore, I would suggest that in considering this issue, consideration be given to whether or not you are ensuring that all children in Canada receive equal protection under the law. I suggest that you cannot do so, and therefore, I suggest this rule of looking to be a high water mark. Second, I suggest that you contextualize that information by ensuring training for staff on family violence and its impact. Third, I suggest that you consider the safety of children and women to be important, and ensure that their safety is not compromised by decisions related to custody and access.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

We will now move to questions. We'll start with Mr. Cooper.

[Michael Cooper]

Thank you, Mr. Chair. Thank you to the witnesses.

I'll start with Professor Fabricius.

One of the arguments that is often put forward about why Canada should not move towards a rebuttable presumption of shared parenting is that it didn't work particularly well in Australia. I was wondering if you might be able to speak to the Australian experience, as well as maybe, while you're at it, talk a bit about other states. You did make reference I believe—and if not, certainly others did—to Kentucky and Arizona.

Are you aware of any states that did pass equal shared parenting legislation that abandoned ESP?

[Prof. William Fabricius]

First of all, Australia did not institute anything like an equal parenting time legal presumption, their reforms basically said that courts should consider it, but it was not anything like an equal parenting time presumption.

In Arizona, we passed a law that directed the courts to maximize the parenting time between the mother and the father. Four years later, we did a statewide evaluation that showed that the courts were implementing that as a legal presumption for equal parenting time, and that the entire family law community statewide evaluated the law positively. After four years of experience with it, we asked about whether people thought it was in children's best interests, whether it affected allegations of domestic violence, or whether it affected frequency of parent conflict and legal conflict. Overall, the findings were positive.

As Ms. MacDonald just mentioned, Kentucky just this past spring passed a very explicit equal parenting time law and the public opinion polls about it are strongly supportive.

Finally to your last point, I know of no state or country that has passed an equal parenting time presumption that then rescinded it. In fact, in Arizona our law was passed unanimously at the state legislature and enjoys the full support of almost the entire family law community.

[Michael Cooper]

How many states have equal shared parenting legislation on the books?

[Prof. William Fabricius]

That's hard to answer. Every legislative session...quite a number of them, but I can't tell you an exact number. It's probably one or two dozen.

[Michael Cooper]

To shift gears, can you speak to any Canadian peer-reviewed experts on equal shared parenting?

[Prof. William Fabricius]

Yes, I think Professor Kruk, Professor Paul Millar and Professor Nicholas Bala have all done research on that.

[Michael Cooper]

Thank you.

In terms of the Australian experience, you said, Professor, that they didn't pass legislation for equal shared parenting. You said it was something the judge might consider. Could you maybe explain that a little more. A number of witnesses have appeared before the committee and have specifically said Australia passed equal shared parenting legislation and have used that as the basis to reject it.

What you're saying is inconsistent with what some of the other witnesses are saying, so could you elaborate a bit on what that legislation looked like?

[Prof. William Fabricius]

I don't know exactly what it looked like. As I said, it was a number of years ago, but my best understanding is that it was a law that directed the courts to consider shared parenting time, but it fell short of a legal presumption of shared parenting time. There may be other people who are more expert on the Australian law than I am.

[Michael Cooper]

Thank you.

[The Chair, Liberal, Anthony Housefather]

The good news is that the analysts have just sent a brief on the Australian law and what happened. We should all read it.

Ms. Khalid.

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

Thank you, Chair.

Thank you to the witnesses.

Ms. Bayes, you spoke at length about family violence and gender-based violence within the home. Can you tell us the rates of women who report domestic abuse as part of their divorce proceedings?

[Shawn Bayes]

I don't know the Canadian one.

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

In general, do or don't most women report domestic violence, and if so, how ?

[Shawn Bayes]

Most women report domestic violence in a divorce situation. Of the women we work with domestic violence is not uncommon.