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.