Evidence of meeting #121 for Justice and Human Rights in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was children.
A recording is available from Parliament.
5 p.m.
Torkin Manes LLP, As an Individual
Right. Thank you.
Ms. McCarthy just asked what is my safety plan, and that's the safety plan for her but also for me. What's my responsibility to these two individuals who have chosen mediation? No one compelled them.
What happened was that they all came to my office—I luckily have four floors in my office—and I put the husband on one floor and I put the wife on another. The wife was behind what we call our security barrier, because that's just our office. Not all mediators have that in their office and I'm fortunate to be able to do it. I had to shove a corporate closing into another part of the building.
Anyway, at the end of the day it was fine and everyone was able to do it. I ran up and down the stairs. I solved the case about a week and a half later, because it took some extra time to do it. Both parties were quite well represented, so it wasn't a problem of a power imbalance in respect of counsel's knowledge. They were on the eve of trial and they had about a couple of million dollars in the bank to fight about, and it was literally in the bank and all held, so there wasn't this power problem of either of them not having money to fight with their lawyer.
There was an opportunity, and it was a case where, despite the awful beginning, it was an appropriate case to mediate because the parties had proper power in the process. However, as the mediator, it was quite galling to receive these materials without any background thought to “Danny, you should know there's going to be domestic violence.” You should plan for it.
We are ready to do it. We screened these people.
There's a process of screening that I've been trained in and anyone who's a mediator and arbitrator in the province of Ontario must be trained with. The advisers, in my view, if they're recommending or considering mediation, should either be required to be trained in screening or, equally so, be required to send them out for screening by professional services. The legislation lacks that. By just saying advisers should consider it and use it.... I think the legislation says, “Unless the circumstances of the case are of such a nature that it would clearly not be appropriate to do so”.
While we can describe extreme situations.... The one I gave you was an extreme situation, but it was successful because the conditions had been met personally in my office, given they were physically apart, but also because counsel had done their work beforehand. I would urge you to very seriously consider that in my process.
I have two quick things to finish up, because I know Ms. McCarthy tells me I'm at seven minutes—
5:05 p.m.
Torkin Manes LLP, As an Individual
It was a minute ago that she put down seven, if I could just have your indulgence.
5:05 p.m.
Torkin Manes LLP, As an Individual
The two quick things are about disclosure.
You don't talk at all about disclosure. I know that I'm not a constitutional lawyer, but I'm married to one and she tells me there's something called the Constitution Act, which has federal and provincial jurisdiction. Anyway, I know that the federal government has jurisdiction over divorce and the provinces do property, so a lot of the disclosure component tends to go into the rules—I remember the rules committee of the Province of Ontario—so you don't see that. But we need something that talks about it, because I can't do a mediation or dispute resolution properly without proper disclosure.
I can't tell you the number of mediations where I start the mediation and the other side says, “I don't have proper disclosure.” I say, “What are you doing here? How can I solve the case if you don't know that the wife has hidden assets in the Bahamas. How am I supposed to settle it?”
My main points, to repeat, are as follows. One, when it comes to family violence, we need a process in the legislation to consider how I'm going to get the information if I am a mediator in that process.
Two, when you're doing the adviser responsibility, it's very important for us to do it not just once, because by the way, we often do our adviser responsibilities so that we fought, we settled and at the very end if someone wants to bother getting a divorce, then we give them the adviser information of the alternative.
The third point, which is a very minor point, is what I just listed to you.
Thank you very much for your time.
5:05 p.m.
Liberal
The Chair Liberal Anthony Housefather
Thank you very much.
Now we'll go to B'nai Brith, Mr. Syrtash and Ms. Katz.
5:05 p.m.
Orly Katz Assistant to Counsel, B'nai Brith Canada
Good afternoon, and thank you for the opportunity.
I want to say that I'm not a lawyer, but I'm here on behalf of B'nai Brith to assist Mr. Syrtash and to represent people who have been part of high-conflict divorces, as I have. Mine recently ended, having lasted 13 years in the courts. It caused great suffering to my family, partly because of the law and its needless procedures, at an expense that was extraordinary.
I ask you to please listen to Mr. Syrtash's comments this afternoon. They are designed to reduce the costs and lead to more certainty and predictability. Thank you for that.
I'm going to introduce Mr. Syrtash.
Mr. Syrtash has 37 years as a family law lawyer and mediator in Toronto, having been called to the bar in 1981. He is currently a senior associate with the Toronto firm Garfin Zeidenberg LLP. His several publications include hundreds of family law articles in the Syrtash family law net-letter for LexisNexis Quicklaw, the Canadian Jewish News and the National Post, and he regularly appears in the media for interviews on family law issues.
He was instrumental in B'nai Brith's lobby for remedial legislation to help obtain religious divorce in 1985, and in 1992 called to get legislation.
Thank you.
November 26th, 2018 / 5:05 p.m.
John Syrtash Counsel, B'nai Brith Canada
Thank you very much, Orly.
Mr. Chairman and members of the committee, thank you very much for the invitation.
First I want to say that B'nai Brith, which I represent, has a long and wonderful history of addressing human rights. This includes helping average income-earning people who struggle with their lives to make them better. They've been doing it since 1875.
As its representative, I've carefully read the proposed amendments, and I've given you an extensive brief, recently amended.
I have a few main points. I'm sure the legislation is very well intentioned, but there are certain aspects of it that we have some reservations about, which I'd like to review with you briefly.
First, I accept and adopt everything that has been said here by Ms. McCarthy and Mr. Melamed. The only thing that perhaps I don't agree with is the issue of the rebuttable presumption issue, which has been already debated here. I'll get to that, but I completely adopt everything both of them have said and urge you to consider what they've said.
First, I want to mention that changing the words, as Ms. McCarthy said, to enact true reform may be not only irrelevant and wasteful of time, but be harmful. I'll get to why in a minute. I can tell you, as an experienced lawyer with 37 years behind me, nothing could be further from the truth. I don't think that changing the language from “custody” and “access” to “parenting orders” achieves anything.
Anybody in a high-conflict divorce situation—it's not necessarily violent; it can be about money; it can be about all sorts of things—really won't care less what you call it. What they want is custody and access. They want those words. They mean something. Those words do matter. They do not want something different, because that's what governs this kind of dispute. Changing the language will do nothing. Spouses intent on fighting over decision-making for a child or primary care control will continue their battles. Irrespective of whether they are fighting over how much time to spend with the child or how much money they have to pay, they will be doing that, so I don't agree with some of the solutions you heard earlier or the fact that this enacts true reform. I think it achieves absolutely nothing.
Secondly, I totally agree with Ms. McCarthy—it's in our brief—that it's very critical that you reform section 9 of the child support rules, which deals with the 40% rule. I can tell you of the number of times I've had payers of child support come to me who are seeking a change in custody or a change in time with their children only to save money. Many times I oppose such people, because I act for men and women equally. Quite often, people will apply for that change in parenting merely to get beyond the 40% threshold so that they can maybe pay less child support. If they somehow get that parenting provision, they don't exercise it. They just wanted to do it for the money. I'm not saying this happens all the time, but it happens sufficiently in my practice and my experience, on both sides of the fence, that I'm suggesting we do away with it.
The reform that B'nai Brith suggests is very simple. Make it simple. The child support payable should apply in all cases where parents' comparative standards of living are radically different based on the incomes earned by each parent. If there is no significant difference in income, no child support should be payable. This principle is summarized in the famous Contino decision, which the lawyers here will remember, that says that the court will generally be called upon to examine the budgets and actual expenditures of both parties, so there's no need to put in this 40% business. I would definitely take it away.
The third thing is something the legislation doesn't address at all. One of the greatest paradoxes we have is that judges will tell you in court all the time that they have no power to compel a parent to see their child. This is a really major problem. At least one judge has come up with a solution, which I'd like to suggest we codify. If there's been one year of non-compliance with an access agreement or order or there's someone who just doesn't see their kids when they're supposed to, the primary caregiver should be permitted to ask for a retroactive 25% increase in child support.
Why is that?
I hope it's obvious, but if somebody's planned vacation is cancelled because somebody didn't show up for access or they don't show up regularly for access visits and the primary caregiver is compelled to pay for meals or for entertainment, then this increases the whole cost of parenting. It may also encourage some parents to actually see their kids and to show up for access. That's something that hopefully this panel will seriously consider as a good proposal that I've made.
The third point I want to make is that another reason not to change the terminology of parenting is that the courts have now developed important jurisprudence as to what words like “custody” and “access” mean. Therefore, they currently provide guidance to parents and their lawyers, without their having to relitigate every dispute.
This is what Ms. Katz was talking about. There are hurdles in family law already, like all these case conferences and all sorts of procedures. Now, we're possibly going to have a situation where someone, like Ms. Katz, will be compelled to go and relitigate an issue like relocation, for instance. I mention that in my paper. In relocation, there's already a trend in the law—and I showed that in my brief, I'm not going to bore you with the details—in which primary caregivers are permitted to move, subject to access provisions that mean something and that will assist children, and if they have a good reason to leave.
I'm giving you a very broad summary of the law, but there are many exceptions. The point I'm making is to ask, why are we dispensing with decades full of jurisprudence, just for the sake of changing some words because they may be politically correct? It doesn't make sense.
The fifth point I'd like to make.... I would like to say something in general, before I get to my next point. As you may recall and all of you know, we have a rebuttable presumption of shared parenting that we've suggested, but what nobody's talked about here is what I've added to that, which is that it should be a rebuttable presumption of shared parenting that is subject to unconscionable circumstances. What that effectively means is that every time there is a case where there's the kind of violence that Ms. McCarthy talked about, then someone has the ability to ensure that it's rebutted. There are lots of studies, including the one by the social policy research centre of the University of New South Wales that made it clear through their exhaustive study that they are doing well and such children are doing well in shared care.
The last thing I'm going to say because I'm running out of time—but I want you to read the paper—is that there are two problems. The definition of family violence cheapens the language and cheapens the term “family violence”, by including words like financial abuse. B'nai Brith is particularly concerned about this because, while financial abuse is a very serious problem, what happens is that you cheapen the actual physical abuse of spouses, in particular, through a mistaken attempt to broaden the definition. It trivializes the suffering of such victimized spouses, who are often hospitalized by such conduct. We don't wish to do that.
Also, regarding grandparent rights, for some reason, you have a proposed section 6.1(3) that reads, “For greater certainty, if no parenting order has been made in respect of a child, no application for a contact order may be brought under this Act”. That means that a grandparent has no rights. If there's been no parenting order, a grandparent can't make an application. I have a real problem with that.
As far as family dispute resolution is concerned, I'm all in favour of everything that was said by everyone today, as long as it's optional. Once again, if you make this mandatory—and there's language in the act that says it's mandatory—it means that it's another hurdle in those cases where there shouldn't be hurdles, especially for abused women, to get into court quickly.
I just want to finish by saying that there are a lot of undue delays and costs that we have in this legislation and currently in law, which I'm asking you to avoid. Please read my paper. It has a lot of hopefully constructive suggestions, as to what you might consider.
The whole purpose of our proposals are to create certainty in the law, predictability in the law and fairness. Some of those things are inadvertently missed in some of these provisions that I've mentioned here.
5:15 p.m.
St. Albert—Edmonton, CPC
Mr. Syrtash, on that point, could you comment on how a rebuttable presumption would increase certainty, predictability and fairness?
5:15 p.m.
Counsel, B'nai Brith Canada
Section 19.1 of the Ontario family law says as follows, and you may be shocked to hear it, because I mention it in my provision....
Pardon me, this is subsections 20(1) and 20(7) of the Children's Law Reform Act of Ontario. It says, “Except as otherwise provided in this Part, a child's parents are equally entitled to custody of the child.”
Right away, we have an Ontario law that speaks to former spouses and to parents that already has this principle in it. Now are we going to have a different principle at the federal level than at the provincial level? It doesn't make sense, because the children of former spouses may be in a different legal context, because there is presumption already in Ontario legislation, than at the federal level. That's one reason.
Another reason is that the presumption really does address the issue of certainty in the law. If you have one principle, some overriding principle that can be rebutted if there's something unconscionable, then that gives more certainty and predictability for people who are approaching this and thinking, perhaps from the wrong point of view, that maybe they'll apply for some frivolous reason such as not having to pay as much child support or some such thing. They'll think twice before they try to rebut the presumption.
You have more certainty in the law with that.
5:20 p.m.
St. Albert—Edmonton, CPC
Okay. Thank you for that.
In his testimony, Mr. Ludmer talked about the fact that there's a lot of inconsistency from judge to judge, from jurisdiction to jurisdiction, as a result of uncertainty surrounding what is in the best interests of the child. Has that been your experience, and would you agree that rebuttable presumption would help address that?
5:20 p.m.
Counsel, B'nai Brith Canada
I think it does help judges a great deal. I completely commend the comments of the Canadian Association for Equality for that same reason. Once again, the word “rebuttable” is very important here. If you have a rebuttable presumption, it sets a standard. It means that people know what to do when they break up with their spouses. They know that there's a challenge ahead of them if they really want to go against it.
Those who can rebut the presumption will be easily able to do it, notwithstanding that I've suggested the word “unconscionability” be put down as the test. Why? It's because if a woman is truly abused, they're going to be able to rebut the presumption.
In other situations, right now—I'll tell you the law—there's something called the “tender” infants principle, that a nursing mother should have a child a lot more than the father, maybe almost exclusively.
I can tell you that in the past few years there has been an embrace of more generous schedules, even whether they're nursing mothers, because the social scientific studies have proven that, in fact, equal connection between both parents is critical to a child's future development.
5:20 p.m.
St. Albert—Edmonton, CPC
Are you aware of any social scientific studies that are Canadian?
5:20 p.m.
Counsel, B'nai Brith Canada
They are from Australia and from the States.
I mentioned one of them.
5:20 p.m.
St. Albert—Edmonton, CPC
Right. Thank you.
The suggestion was made, when I asked a question about maximum parenting time to Mr. Ludmer, that it's something the courts already consider. Obviously issues around family violence and other reasons one parent might not be suitable are already considered. It was suggested, I think by the Canadian Bar Association, that the language is consistent with the best interests of the child, but isn't that the purpose of a rebuttable presumption?
5:20 p.m.
Counsel, B'nai Brith Canada
The problem with the word “maximum” is that it's a malleable concept. As I said, my biggest job here is to try to urge everyone to consider the need for more specificity and more certainty in the law. The concept of “maximum” is a wonderful one and nobody would disagree with it. That's not the issue. It's what if you get to narrow situations? There are no presumptions, really. When you come to the issue of best interests, everybody agrees with all of these concepts that are written down, but the problem is how you apply them. What's the practical tool to apply them?
The presumption does give a judge at least a hook where he can say that there's some certainty in the law now as to where the normal family falls into it.
5:20 p.m.
St. Albert—Edmonton, CPC
Right. Perhaps I didn't phrase my question clearly. Just to clarify, what I was suggesting is that there's no inconsistency between having a rebuttable presumption and the best interests of the child.
5:20 p.m.
Counsel, B'nai Brith Canada
No, there's none whatsoever. It makes perfect sense.
5:20 p.m.
Liberal
Ali Ehsassi Liberal Willowdale, ON
Thank you, Mr. Chair.
Thank you very much to all our witnesses. I'm very grateful that you appeared before us. It's been very helpful listening to you.
I should say, Ms. McCarthy, just so you know, we did not receive your brief, so we haven't had the benefit of reading that yet. It's currently in translation. I understand that in the next few days we'll have an opportunity to review it.
The first question I have is for Ms. McCarthy.
As you know, there's a very high incidence of family violence. As you testified, you work with some of the most complicated ones. I was wondering if, in your practice, there is a screening process that you have in place to deal with the possibility of violence having occurred.