Justice Committee on Nov. 26th, 2018

[Martha McCarthy]

Yes. In terms of a formal screening process, the way any lawyer runs an intake meeting, for the lawyers who have been trained by me in our office, that kind of thing is just a part of what happens at the beginning.

In terms of what Mr. Melamed was talking about a bit, we have in Ontario a screening tool, a screening education system. We have a bunch of rules for people who are in mediation and arbitration that are already contained in legislation. It actually requires two full days of training with a domestic violence trainer. If anything, I personally think it's a little long.

If we're going to go to mandatory, it's really quite onerous but that's a good thing. There is a significant amount of screening training that all lawyers have if they are going to participate in mediation and arbitration. That's a model that you could look at in terms of the statutory form.

[Ali Ehsassi, Liberal, Willowdale, ON]

You would say the Ontario model is working fine.

[Martha McCarthy]

Yes, I think the Ontario system is working fine. I think that as long as we stay away from any suggestion that we have “mandatory”.... There's a negative connotation. “Mandatory mediation” is a sort of dirty word, but “encouraging”.... I don't think that any of us here would have any difficulty if we had a positive obligation in every case, because that's already what we do.

[Ali Ehsassi, Liberal, Willowdale, ON]

Okay.

[Martha McCarthy]

I think all good lawyers.... The mediation arbitration practice across Canada, the concept of mediation in family law has totally taken hold. You don't need to take steps to talk anybody working in family justice into the concept that mediation is good. We had that Kool-Aid a long time ago.

[Ali Ehsassi, Liberal, Willowdale, ON]

Excellent.

Mr. Melamed, since you brought up screening, is there anything you would like to add to that in terms of the type of screening that should be considered preferable, or any improvements we could make to the Ontario system, for example?

[Daniel Melamed]

I have just one thing to add to what Ms. McCarthy said.

We have to do two days of family violence—I'll use your language—in the legislation training. That's the initial one. Then every two years we have to go back for a full day. Actually, I think it's about 10 hours, which anyone who is in the practice of mediation or arbitration tends to do in one full day. That's an additional thing you should consider.

As Ms. McCarthy says, in the screening process of intake, if you don't talk about what's going on in the home.... That's usually how you introduce it. People are embarrassed. They don't want to talk about family violence, whether it be a push or a shove. Not to minimize it, but sometimes it's a heated moment that both parties, if you really reflected on it, would never have imagined themselves in. Then there are the extremes—murders, terrible things that can happen.

We all just do it if we're good at it and trained well at what we do. Should we be trained more deeply? Possibly, but I think that's more in the provincial realm of the training of lawyers and understanding our responsibilities. I'm not sure it needs more in the formal legislative function, other than when you talk about mediation, or alternative dispute resolution, which is how you refer to it in the legislation. That's when the screening certainly has to happen, so the recipient and the person who is going to be doing it have the information to either create a safety plan, as Ms. McCarthy said, or to maybe ask, “Is this really right? Should we do it?”

[Martha McCarthy]

The DVDRC has a really good screening tool in the DVDRC reports as a schedule to the annual report.

It's a screening tool that was developed for police, for people in emergency rooms, to screen out DV. It's a super useful tool.

[Ali Ehsassi, Liberal, Willowdale, ON]

That's excellent. Thank you.

[The Chair, Liberal, Anthony Housefather]

You have 50 seconds left.

[Ali Ehsassi, Liberal, Willowdale, ON]

That's fine.

[The Chair, Liberal, Anthony Housefather]

Ms. Sansoucy, you have the floor.

[Brigitte Sansoucy, NDP, Saint-Hyacinthe—Bagot, QC]

Thank you very much, Mr. Chair.

I just wanted to thank the witnesses for their contributions to the work of our committee. Their presentations were very clear, and I have no further questions after the questions my colleagues have asked.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Perfect.

Mr. Virani, the floor is yours.

[Arif Virani, Parkdale—High Park, Lib.]

Thank you, Ms. Sansoucy.

First of all, I wanted to thank all the witnesses for being here and for your very helpful testimony.

I wanted to direct some questions to Ms. McCarthy and to Mr. Melamed.

First of all, Ms. McCarthy, thank you for your contribution to family law jurisprudence, and I'm referring to the M. v H. case, which is a seminal piece of jurisprudence. You spoke to my law class probably in 1996, but you probably don't remember that or didn't want me to—

[Martha McCarthy]

Let's not all date ourselves here.

[Arif Virani]

Exactly.

Mr. Melamed, thank you for being here. Your expertise is well known in the family law bar in Toronto. I also salute your astuteness in recognizing the expertise of your better half, Ms. Kraicer, who is indeed quite a constitutional force .

I had a few questions. We have about six minutes, so I'd ask you to keep your responses somewhat brief.

We've had a bit of a discussion about equal parenting over the last several days and the equal parenting provision. You've heard some of the submissions that were made just now.

There was a committee called the Special Joint Committee on Child Custody and Access in 1998. It specifically said that a presumption in favour of a particular parenting arrangement would not likely be in the best interests of children. I want to have your comments on that 1998 finding and your reflections on the direction of the statute as it sits before you now. It does not contain an equal parenting presumption, and that was quite deliberate.

[Daniel Melamed]

Should I go first?

[The Chair, Liberal, Anthony Housefather]

Whoever wants to go first.

[Daniel Melamed]

I think it's a mistake to consider equal parenting as a principle because human beings are, by our nature, very messy. At the beginning of a divorce—I'll be quick—people don't like each other, and then some people can get around to liking each other and they might formulate a better outcome over time, as Dr. Landau says.

My experience in high-conflict cases—and I've done enough of them to know—is that what Mr. Ludmer said, I think his evidence was that when parents love their children, then shared parenting or equal parenting can work, is not the problem. The parents hate each other at times. The idea that you have a presumption of equality, using that language instead, is a mistake because it undermines what's really going on. The adults are fighting about the children, so sometimes judges have to make hard decisions and that's okay, because they usually try to do what's best for the kids.

That's my view.

[Arif Virani]

Ms. McCarthy.

[Martha McCarthy]

I think it's very interesting that you reference that old report. It feeds into what I thought when I got here today, which is that issue is not in the proposed legislation. I thought we'd debated that and we'd all moved on to an acceptance that a presumption of equal time didn't work in Australia, was incredibly problematic and promoted conflict. I joked about it earlier, but had I known there was going to be a major amount of this discussion on a presumption of equal time, I would have spoken to it. It's not possible for me to be more strongly opposed to it. I think it's nothing but trouble.

If what we're working on is giving fathers a sense of equality in our justice system or propping them up to a place where judges or mediators now look at them as full and equal parents, that has happened. If anything, they are the strongest, most powerful interest group in Canada. They have affected, depending on your perspective, the mindset of judges at the Court of Appeal for Ontario, at the highest court in the land. I think they're a massively successful interest group, and we don't need to worry about that. We have 50% of people who don't go to court, who settle their cases without separation agreements, without anything. Then we have people who argue, and for those people, if you put a presumption on that, you'll just increase the amount of litigation and arguments.

[Arif Virani]

Thank you.

Can I just ask you another question that relates to something that wasn't discussed directly, but it's certainly a key part of the statute, which is about addressing the inability of people to access assets and understand where the assets may be located on the part of separating spouses, or divorcing spouses?

What I mean by that is the pursuit of actual enforcement of income support, child support and spousal support. What this legislation is doing is empowering different parts of government to talk to one another so that the CRA can talk to the adjudicators so that you can find where assets may be erstwhile hidden. Could you comment on that and what it does to alleviate some of the poverty that we've seen amongst spouses? I'm particularly thinking about the feminization of poverty in that context because the statistics we've seen are that among all the people who are in enforcement arrears situations 96% of those people are women who are owed money by men.

[Daniel Melamed]

It's about time. Given the fact that CRA doesn't speak to other groups or whatever the various groups are that need to exchange that information, the ability to gather that information by us, as private lawyers, is a real challenge unless we've got well-healed clients. If the government at all levels is prepared to step up and say, “We're going to act responsibly and despite privacy considerations have that communication”, it's about time.

[Arif Virani]

Ms. McCarthy.