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.
Liberal
The Chair Liberal Anthony Housefather
It's a great pleasure to reconvene our study on Bill C-78. We are joined by a very distinguished panel here today. Via video conference from Beersheba, we have Gene Colman, who is representing Lawyers for Shared Parenting.
Mr. Colman, can you hear us?
Liberal
The Chair Liberal Anthony Housefather
Perfect. In case we lose any video conference technology, we always put the witness on video first. I know you're seven hours ahead, so you probably appreciate that. We'll put you first.
From the Family Dispute Resolution Institute of Ontario we have Ms. Barbara Landau, mediator, arbitrator, psychologist and lawyer. From the Canadian Bar Association we have Melanie Del Rizzo, the chair of the family law group, and Sarah Rauch, the chair of child and youth law. From the Canadian Association for Equality we have Mr. Brian Ludmer, advisory counsel. Welcome.
We're going to start.
Mr. Colman, you have approximately eight minutes. The floor is yours, sir.
Lawyer, Lawyers for Shared Parenting
Thank you very much, Mr. Chairman.
My experience, first of all, is as a family law lawyer since 1979. As a law student, I founded the Canadian Journal of Family Law. I've published many family law articles, including one that was cited favourably by the Supreme Court of Canada. My practice is dedicated to finding the optimum solutions for kids. I appear before you as a founder of Lawyers for Shared Parenting and co-author, along with five others, of the brief that our organization submitted.
As a little bit of my personal history, I have one 47-year marriage. I have seven kids, with no divorces amongst the married ones, and 13 grandkids. I hope that demonstrates that I have no personal axe to grind here.
If my views with respect to rebuttable presumption of equal shared parenting are adopted, I will likely ultimately have less family law legal work to do, and I hope that happens.
There are two reasons that this committee should adopt rebuttable presumption for equal shared parenting. The social science literature is crystal clear, and the public overwhelmingly wants it, but many lawyers do not.
The social science literature overwhelmingly establishes the utility of ESP, which is short for equal shared parenting. You can find the footnoted sources at footnote 44 of our brief. If you need help to access them, just send me or my co-authors an email. At my website, complexfamilylaw.com, I have a number of quotations from the social science literature under the title “Equal Shared Parenting Thought of the Day”.
It really comes down to three simple points when we're dealing with the literature. One, the closer we get to 50% residential time, the better the outcomes are for children. Two, ESP gives better outcomes on many axes of measured child behaviour and child adjustment. Three, ESP outcomes are better, even independent of other factors.
Let me make three points there. One is on the quality of the parent-child relationship, and we've learned that even marginally fit parents are beneficial for kids. The second factor is parental incomes. Benefits of ESP are not tied to standards of living, as some have claimed. Third, whether it's a low-conflict or high-conflict level, they do not yield appreciably different results in terms of benefits to children, but I will concede that extremely high-conflict situations could negate equal shared parenting.
The arguments against ESP are responded to much better than I could do by Professors Nielsen and Kruk, and they are cited in our brief.
I want to talk about public opinion polls. Our brief, on pages 13-15, presents the public opinion polls. Public support for rebuttable presumption is very consistent and high. Opposition within the bar is very strong, and for that, please see Professor Nick Bala's brief and see the Canadian Bar Association brief.
Bill C-78 did not even mention anything approaching a rebuttable presumption for ESP, so I ask, why doth they so vehemently protest? If we adopt the L4SP position—that's Lawyers for Shared Parenting—you will make a lot of lawyers very unhappy, but you will make many Canadians very pleased indeed.
Do you choose the lawyers, or do you choose the public? I say, choose neither. Choose the children. Give the children of divorce the best chance to maintain and strengthen relationships with all of their parents and grandparents. Even with your much-applauded change in terminology, unless you take the very bold step that I am urging on you here today, the system will continue to pit parents against each other, each trying to prove that he or she was the primary parent, and each trying to prove that he or she is a better parent. It's time to implement a sea change. It's time to really make a difference in the lives of Canadian children.
I want to mention two briefs, the B'nai Brith Canada brief, authored by John Syrtash, who I see is in the room today, and my very good friend Professor Nick Bala's brief. With reference to Mr. Syrtash's brief, B'nai Brith Canada has expressed support in its brief for a rebuttable presumption for ESP.
While Lawyers for Shared Parenting welcomes that support, we do caution that the test its legal counsel, Mr. Syrtash, applies is overly stringent—namely, that the presumption is rebutted only in “unconscionable circumstances”. We maintain that there must be greater flexibility.
L4SP also commends John for his analysis of the family violence sections of the bill. We agree that the current wording will likely create [Technical difficulty—Editor].
Liberal
The Chair Liberal Anthony Housefather
We'll see if we can recover Mr. Colman. This is why we go with the witness on video conference first.
In the meantime, just so that we don't lose any time here, I suggest we go to Ms. Landau. She had wanted to go next.
Please begin your testimony. We'll come back to Mr. Colman afterwards, if we've recovered him. I'm sorry for the quick change.
Dr. Barbara Landau Mediator, Arbitrator, Psychologist and Lawyer, Family Dispute Resolution Institute of Ontario
That's okay. Thank you, Mr. Chairman.
It's a pleasure to welcome Bill C-78 with its many positive reforms. I represent the Family Dispute Resolution Institute of Ontario. I've submitted my bio. I will briefly note the items that we strongly support and then discuss issues that we think can be improved. I will refer to a few sections of the B.C. Family Law Act, which I've provided, that we think should be incorporated. I've also attached a sample parenting plan. I can answer questions about that.
We are strongly supportive of the following: the encouragement for co-operative out-of-court dispute resolution options, where appropriate; the requirement to screen for domestic violence, broadly defined, including physical, psychological and emotional abuse; the importance of looking at the impact of domestic violence on children when assessing parenting capacity; the replacement of outdated “custody and access” language with “parenting orders” and the encouragement to create parenting plans; the inclusion of an extensive list of criteria for determining the child's best interests; a clarification of how relocation cases will be approached, although with some changes that we will be recommending; and the implementation of an administrative process to update child and spousal support.
Those are the things we're strongly in favour of. We also have recommendations for clarification or additions. Our focus is how to improve the process of divorce and assist families, especially children, to make this difficult transition in a supportive, timely, less conflicted and less costly manner. This will require greater co-operation between the federal government and provincial partners.
The first thing we're recommending is that the definition of family dispute resolution process should be stated as follows: “means a consensual process outside of court agreed upon by the parties”. That would be the language we'd use. The list of consensual out-of-court processes is incomplete. It should include med-arb, arbitration and parenting coordination. I would ask you to look at appendix A for the B.C. definition. We recommend that family justice services be subsumed under family dispute resolution processes. Having two different categories is confusing.
Second is the duty to screen for domestic violence. We recommend that the duty apply to all professionals assisting separating families. That duty has been in our child welfare legislation for several decades. Separations raise the risk level for family violence—up to lethality—even when this has not previously been a concern. This is an important safeguard. Again, look at the B.C. Family Law Act in appendix B.
The third recommendation is around the duties of lawyers and legal advisers. The definition of “legal adviser” versus “lawyer” should be clarified. Lawyers are required under the new legislation to inform clients about family dispute resolution options. There should be no exemption for lawyers or other professionals on the basis that they're unaware of such services. That may have been the case 40 years ago. Today it's not the case.
If lawyers are unsure about safety, they should refer clients to a trained domestic violence professional to assess the risk and report on what might be appropriate. The lawyer's duty should arise from the time they're retained, not delayed until an action is commenced. There should be specific consequences for lawyers or other professionals who fail to fulfill this duty. In the past, this has been a duty under the Divorce Act. It has not been followed.
The next point concerns unified family courts. Unified family courts should be created in any province that wishes them. The advantages are that they reduce confusion, they're more efficient, they're less costly, and they can address all of the issues in one court. They ensure, where possible, that there's one judge, a family law specialist—I'll underline that—for each family. Ideally, that's for marriage breakdown, domestic violence and child welfare. This ensures that decisions can be monitored for compliance.
In many jurisdictions, assignments are based on the judge's availability, not their expertise. Imagine if one of you had a heart attack and the doctor assigned had expertise as an obstetrician. Each court appearance currently may have a different judge, and with no family expertise. Judges do not have sufficient time to read all of their new files, so adjournments and inconsistent decisions are frequent. However, UFCs cannot improve access to justice without adequate services. These are the services that we think should be there.
These would include funding for mandatory education programs, which are really important. They would include a description of dispute resolution options, safety advice, explanations of what parenting plans are, telling people about financial disclosure and so on, before couples make an application to court. This is already available in several provinces.
The other thing is funding for the screening of domestic violence for all family professionals, including judges. Triage should be available to help people get to the most appropriate dispute resolution process, either within or outside the court's mandate, or to a community service that would address issues such as mental health, addiction and so on, and determine which people should be fast-tracked to court.
This would require co-operation between the federal government and the provinces on funding, appointment of judges and service delivery. Currently, our family law system gets a failing grade from the 50% to 80% of family law litigants who are self-representatives.
Fifth is parenting plans. These are very important tools to help parents achieve what are the key objectives of Bill C-78. To help parents focus on caretaking responsibilities, reducing conflict and creating a practical child-centred road map, before they engage in an adversarial process.
I've attached an example of a short and a longer parenting plan. The longer one just explains the short one. We do not support a presumption of equal parenting, with all due respect to my friend, Gene, because this negates the assessment of parenting capacity. It overlooks issues of domestic violence, mental health, addiction and the encouragement for parents to work out a parenting plan that fits their unique circumstances and addresses their availability, the special needs of their children, the ages of the children and all of those things.
Also, equal time often results in pressure to reduce or eliminate child support and prevent relocation. The literature that he refers to is often quite biased. Much of the literature that supports equal parenting is based on people who have co-operatively decided to do that. I won't go into detail on it, but it also has small sample sizes and other things like that.
Parenting plans need to include the parents' responsibilities for the caretaking of their children and how significant decisions are made—not just what decisions but what process they're going to use and how they're going to handle disputes when they arise. There also needs to be a parenting schedule, which is not just the regular schedule but also includes school breaks, PD days, religious or other special days, and the process for changing a schedule when there are changes such as children getting older, changes in mobility or the presence of disputes.
Regarding views of the child, when trained professionals meet with children to hear their views, answer their questions and address their fears, parenting disputes are often resolved and children are more likely to accept the outcome. However, this is the one dispute I have with Nick Bala. I don't believe that judges are the best people to be interviewing children. Child specialists are more qualified and less costly, and they can meet with children in a supportive setting.
The next thing we are recommending is reinstating family court clinics. We recommend a co-operative funding arrangement between the federal Department of Justice and the provincial ministries of the attorneys general and ministries of health. These agencies should be located outside of the UFCs, as clients benefit from a less formal clinical environment. These clinics can offer triage, mediation, assessments and brief treatment for separating families, as well as child welfare issues. I was the chief psychologist at the family court clinic in Toronto. These are wonderful training grounds for mental health professionals, and they're publicly funded so they're affordable.
Relocation rules have been addressed, but they are too complex. There are too many parties. I think the criteria shouldn't be geographic distance. When a contemplated move will make the existing parenting schedule no longer feasible, there should be a graduated list of dispute resolution processes from informal to more formal. That would encourage people to indicate that they're going to move at the earliest possible time rather than waiting until the last minute.
Mediator, Arbitrator, Psychologist and Lawyer, Family Dispute Resolution Institute of Ontario
I want to donate a copy of my Family Dispute Resolution text to the Library of Parliament.
Liberal
The Chair Liberal Anthony Housefather
We'll keep it with the clerk, until such time as we've finished our study, so that anybody can consult it.
Mediator, Arbitrator, Psychologist and Lawyer, Family Dispute Resolution Institute of Ontario
This has all the different dispute resolution options, in each chapter, written by wonderful, leading professionals, so not just by me. You have all kinds of good stuff in here. It's the 6th edition.
Mediator, Arbitrator, Psychologist and Lawyer, Family Dispute Resolution Institute of Ontario
There you go.
Liberal
The Chair Liberal Anthony Housefather
That's very generous.
Mr. Colman, we have recovered you. You had disappeared about five minutes into your submission, so you have about three minutes left. I'm going to turn it back to you because I don't want to lose you again.
Lawyer, Lawyers for Shared Parenting
I hope we don't lose me again.
Thank you.
I was talking about the areas where L4SP agrees with Nick Bala's submissions. I talked about new terminology, the use of parenting coordinator and counselling services, and the best interests lists. I'm going to go forward. I want to make sure I finish this within the next three minutes.
I'm very proud to be a member of FDRIO and when I hear Barbara Landau giving such wonderful submissions—aside from the one, which you all will probably know that I didn't like—I am proud to be a member of the organization with Barbara.
To return to Nick Bala, we applaud Nick for bringing to the forefront the need to specifically address alienation and children resisting contact with a parent. We agree that children's views need to be considered, but his recommendation to encourage judicial interviews we cannot condone. As you'll see, I'm on the same page with Barbara Landau on that point. Interviewing children is an art and not all judges are sufficiently trained in that area. It places judges and children in a pressure cooker.
We agree with Nick's analysis of family violence and heartily welcome his call to the federal government to provide resources to support educational efforts and supports for victims of family violence.
With respect to relocation, we disagree with Professor Bala that there should be a 40% threshold, which he lifted from the child support guidelines. The L4SP brief points out that the onus or burden of proof should always be on the parent who proposes to relocate and thus deprive the child of significant contact with the other parent.
The other recommendations that Nick puts forward, we disagree with. In particular, of course, we disagree with his protestations against the rebuttable presumption. His discussion on pages three and four of his brief tends to largely cite his own work and gives propositions that are simply contrary to the social science literature.
In conclusion, for kids' benefit, we need to thwart the custody access wars from the get-go. We need to remove incentives to strife. No longer should parents need to prove the other unfit in order to win. To reduce conflict, the legal system employs presumptions, onuses and burdens of proof. Even C-78 proposes relocation presumptions. In 1997, we implemented some strong presumptions in the federal child support guidelines and succeeded in removing a huge source of conflict in our system.
Implementing a presumption for equal, shared parenting—that is shared decision-making and residential time that is approximately equal—is a progressive and totally child-focused reform. It's not about parents' rights and it's certainly not about fathers' rights. It's all about adopting legal and social policy that is bound to substantially improve the lives of children of divorce.
Mr. Chairman and members of the committee, thank you very much.
Liberal
The Chair Liberal Anthony Housefather
Thank you very much. It's much appreciated.
Now we will move to the Canadian Bar Association.
Ms. Del Rizzo and Ms. Rauch, the floor is yours.
Melanie Del Rizzo Chair, Family Law, Canadian Bar Association
Thank you very much for the invitation to present the Canadian Bar Association's views on Bill C-78 today.
Our submission represents the joint position of the CBA's family law section and the child and youth law section.
My name is Melanie Del Rizzo. I'm a family lawyer practising in St. John's, Newfoundland and Labrador. I'm the current chair of the national family law section of the CBA. The family section represents specialists in family law from across Canada. With me is Sarah Rauch, who's chair of the child and youth law section.
The CBA is a national association of over 36,000 lawyers, students, notaries and academics. An important aspect of our mandate is seeking improvements in the law and the administration of justice. It's that aspect of our mandate that brings us here to you.
Our brief also includes input from other CBA sections, which I'll highlight. The French-speaking members and the constitutional and human rights law section highlight that Bill C-78 omits any provisions to address current linguistic inequalities in family courts. The bill provides an important opportunity to offer explicit recognition of French language rights in any proceeding.
The alternative dispute resolution section contributed to our comments on the bill concerning greater use of dispute resolution processes. Some aspects of the bill may seem contradictory, and we suggest some changes to strengthen the importance of ADR processes in resolving family disputes.
While our submission contains 45 recommendations, which we hope that you'll review, I should stress that we strongly support the passage of Bill C-78. Much of it would address long-standing CBA concerns. All recommendations that we have made are made with a view to make the bill better from the perspective of lawyers who practise in this area.
One of the most important parts of Bill C-78 is the confirmation that the best interests of the child remain the pivotal test in any parenting determination. The CBA has long opposed any presumptions in this area, which can only muddy the primary focus on the children's best interests. Given this primary focus, any presumption with respect to parenting of children and any concept of parental rights is misguided. Equal time with both parents is an option. It's already an option and is an increasingly popular option, but it is only appropriate if that arrangement is in the child's best interests. With respect to the social science, I would refer you to the tool kit the CBA has produced on parenting after separation and the “Child Rights Toolkit”, which provide good summaries of the social science in this area.
We support the list of factors relevant to determining best interests under proposed subsection 16(3). We offer suggestions to further improve and clarify those factors, including adding more direct language to protect a child who's been exposed to family violence.
We also support the bill's focus on the use of parenting plans, but we believe it could be clearer that they're not intended to be mandatory.
We also find that the bill could provide added clarity about how courts should assess parenting plans to ensure they are in the child's best interests, particularly when a parenting plan is on consent of both parties. We suggest that the parties at least be given an opportunity to respond to any of the court's concerns before a plan is varied.
Family violence is very relevant to determining a child's best interests. We commend the bill for including it in the best interests factors. We offer some suggestions in our submission to strengthen the family violence proposals. In proposed section 7.8, courts would have a duty to consider existing protection orders to facilitate a coordination of proceedings. Different rules and processes are in place across Canada and we note that some efforts are going to be required to ensure appropriate cross-referencing.
We appreciate and have also called for a list of factors in considering relocation applications. We recommended a few additions to the list in Bill C-78.
We also propose that a simple notice form be provided for relocation applications, perhaps with a place for a responding party to also note any objection or their consent. An even-handed approach to the process is only fair. The requirements for a party wishing to move should be similar to those for a party objecting to the move. We also support a longer notice period than that proposed in the bill to increase time for a mediated or negotiated solution and also to provide more time for people living in remote or rural locations to be able to access services. The ability to apply for a default order in cases where there is no objection should also be considered. Otherwise, we see a situation where a person could have a statutory right to move that could then be inconsistent with an existing order or agreement.
We also support the shifting burden of proof as proposed in the bill and the idea that a move is presumed to be in the best interests of children who have little to no relationship with the non-relocating parent. However, we note that children can have significant attachments to both parents even without equal parenting time. As such, the CBA sections recommend that the bill provide that relocation be presumed not to be in the child's best interests when it would likely damage the attachment to the left-behind parent.
We note that adequate funding must be available to ensure that federal, provincial and territorial governments can provide the services required by the bill, such as mediation, supervised access services and the communication between various levels and jurisdictions of courts with respect to civil protection orders.
My colleague will now highlight some other suggestions we have for improving the bill.
Sarah Rauch Chair, Child and Youth Law, Canadian Bar Association
Thank you.
Good afternoon. I am currently the chair of the child and youth law section of the Canadian Bar Association. We are the newest—or maybe I'll say the youngest—section of the Canadian Bar Association. We consist of experts from across Canada: legal practitioners, advocates, and others who are experts in seeing things from a child's perspective. We have a section of professionals who are expert in children's rights as seen through the United Nations Convention on the Rights of the Child.
It's from that perspective that we say this bill is a great and positive step and we support it fully. There's a diversity among the profession, and that diversity includes, in our section, those who practise regularly in family law and child protection.
The United Nations Convention on the Rights of the Child was ratified by Canada 25 years ago and provides a foundation for a perspective that is shifting slowly and surely in Canadian family law. That foundation focuses on the rights and interests of the child.
This submission especially welcomes an explicit reference to the UNCRC in the Divorce Act provisions. That was done in the Youth Criminal Justice Act in 2002, so there's precedent for it. It works on a number of levels in terms of applying the UNCRC to family law, especially given that on this issue of the rights of the child and the UNCRC there's a limited awareness among legal professionals and the judiciary and so on.
There is also the CBA's “Child Rights Toolkit”, which our section as a committee was instrumental in forming. My colleague just referred to it. There are references to social science and other expertise that has been drawn upon to illustrate and enhance the understanding of the application of the UNCRC.
The UNCRC in its preamble recognizes that for children and youth there are special safeguards and special considerations that all children are entitled to without discrimination. These special considerations are founded in the knowledge that each child who is affected by decisions concerning them made under the law is unique, and that without exception each child is entitled to have that unique circumstance be fully assessed and considered in keeping with their rights and their best interests. It's a shift in perspective.
Our CBA sections strongly support the focus on the child's best interests in Bill C-78. We support the submission that there be no presumptions regarding what is best for children. The example is the allocation of parenting time. The CBA section stresses the importance of assessing each child in all of the provisions—that one by way of example—regarding the point of view of the child, the interests of the child and how to apply all of the provisions from that perspective.
In the section related to parenting time, decision-making and contact, any suggestion of a presumption has been eliminated, which we support. We are pleased especially in light of the reference to family violence that there will no longer be a presumption that fails to fulfill an individual assessment of the child's best interests.
Our submissions seek to avoid confusing or misleading language. For example, the proposed heading “Maximum parenting time” could suggest that a maximum amount of parenting time is always a desirable outcome. We submit that this undermines.... It's not always the case that maximum parenting time will be in the child's best interests. That current heading risks being inconsistent with a strong and clear approach that mandates the primary consideration of the child's best interests in each case. We recommend changing that heading to “Allocation of parenting time”.
There is an inextricable link between the best interests of the child and keeping their individual circumstances the central focus of every decision being made about them. We support including proposed changes to the Divorce Act that will clarify all considerations made in resolving disputes regarding the day-to-day lives of children and youth and their futures, decisions that are important to them in a different way than they are to their parents or to adults.
A child-rights approach provides a consistent manner of making decisions that affect children from all backgrounds across Canada. Bill C-78 provides an opportunity for the kind of careful consideration and safeguards that are noted in the UNCRC, both broadly and specifically, in the articles and in the comments.
Thank you for the opportunity to present our perspective, and we welcome any questions.
Liberal
Brian Ludmer Advisory Counsel, Canadian Association for Equality
Thank you very much, and thanks for having me.
I'm a co-founder with Mr. Colman of Lawyers for Shared Parenting, and I'm here today on behalf of the Canadian Association for Equality.
In 2014, I participated in the drafting of Bill C-560. I was the one who came up with the operative language of a presumption, unless it could be established on evidence that the needs of the children would be substantially enhanced by a different parenting plan. That remains, in my view and the view of many you're hearing from, how to advance the best interests of children.
The fact of the matter is that adding a list of other criteria and continuing to hear about a unique and individualized approach in each case will subject the children of this country to a continuation of the litigious environment that results in the conflict that all the studies say is the principle damage to the children. They won't be damaged by equal parenting. They're damaged by the conflict over two parents, one of whom wishes to be the primary parent, hence the litigation, and the other one who is willing to share the child and co-parent.
In a sense, while you've heard from an organization representing 36,000 lawyers, you should hear from your constituents.
For over 20 years, public opinion poll after public opinion poll has reiterated that the Canadian public has a terrible experience with the current system, and that is on par with public opinion polls across North America. The current system does not work to advance the best interests of children. It says that's the goal, but in practice, if you're a family lawyer seeing what happens out there, the current system damages children. It forces parents to triangulate the children. It causes conflict. It is maintained at immense cost, billions and billions of dollars.
There is no science that substantiates that anybody, including a judge, can say that a particular parent should see the children 37.2% of the time. The only science...and I'll differ from Ms. Landau on this. Peer-reviewed journal research, very robust, almost indisputable, and ratified by experts from around the world, substantiates that the closer you get to two primary parents after separation, the better the outcome for children. That research is thorough and cannot be minimized on sample sizes. You have to see it yourself.
The committee is getting submissions from Professor Fabricius, who drafted Arizona's legislation, from Professor Kruk and from Professor Nielsen. The joint submission of which CAFE is a part also highlights some of the leading research.
The current system is built on a series of assumptions that don't play out in real life. It produces arbitrary results depending on what judge you get, what their background is, and the day. Are they young? Are they from an urban centre? Is your case being litigated in the countryside? Which province is your case being litigated in? Those produce arbitrary results that are contrary to the goals of the legislation.
The legislation is premised, and you can tell that from the presentations you've heard today, on all the facts getting before the court and a judge somehow having the ability, in a three-day trial or a four-day trial, to figure it out.
In practice, it's not what happens. Budgets are limited. Over half of family law litigants are self-represented. When people represent themselves against a lawyer, the true family saga will never make it to the judge. Judges themselves, when they are polled and when commissions and studies are done, say they also doubt about whether they're getting it right. There are no retrospective studies of families coming through the system to determine whether today's system is working or not. Look at child outcomes three years out or five years out. The only science that's there supports equal shared parenting.
In terms of public opinion, over half or close to half of families today will get separated, so you're talking over 10 million people who will be affected, and millions and millions of children. Their actual experience with today's system trumps the experience of 36,000 lawyers.
For 20 years the public has been telling us it's not working. You're either going through a separation yourself, or a sibling or a cousin or a best friend is. No one is satisfied with the current system.
The proposed changes in Bill C-78—the technical ones—are pretty good. You can't argue with a lot of the stuff that's there, but it was put forward as a means of advancing the best interests of children, and it fails to make any fundamental change. If you start with a system that's broken, because it's built on a series of failed assumptions, you can't rescue it with technical language. You have to try to understand the better way to do it.
If you have a rebuttable presumption of equal shared parenting.... Domestic violence issues live harmoniously today with the maximum contact principle. It doesn't stand in the way and doesn't impact on that. Same with equal shared parenting—it can live harmoniously with provisions designed to capture and separate situations where that's a concern, like alcoholism or absenteeism or a parent who is an investment banker travelling all the time.
Equal shared parenting is not for everyone, but it is for about 90% to 95% of the families who litigate. When you look at what they're asking for, they're close, but one wants to be the primary parent. We taxpayers of Canada are all paying for that. It's a very expensive system with no science to determine that it produces optimum results or even results that can justify the cost. The only science and the views of the public who live with the system.... The true experts are the public. They really don't like it and they don't like it right across North America.
There are currently proposals for equal shared parenting in at least half the States. Kentucky has introduced the first true rebuttable presumption of equal parenting. The public opinion polls and the experiences are great. Arizona had something similar about four or five years ago, and from all their polling and the results since, everybody's happy with it. Australia has been put forward as an example but maybe that's not the case. That's not what happened there. There was no problem with the equal parenting. There was a political dynamic.
No matter how you look at it, there's no meat, no evidence behind the objections to equal parenting, and there's so much for it. It will save our children from conflict, it will accord with the will of the public—that's why we're here—and it will fit the science.
I will have a printed presentation. It will be filed within the next day or two, and then I know it has to be translated, but I'll respect the time allotment today and any questions you have.
Liberal
The Chair Liberal Anthony Housefather
Thank you very much.
It's a pleasure to hear from all the witnesses. All of you were very helpful, and I appreciate the recommendations you offered, which is what we really want to hear.
We'll now go to Mr. Cooper.
Michael Cooper St. Albert—Edmonton, CPC
Thank you, Mr. Chair.
Thank you, witnesses.
Mr. Ludmer, I'm interested in the comments you made about the arbitrary decisions that are made from judge to judge, from province to province. Are you able to elaborate on some of the differences that you see from jurisdiction to jurisdiction? In other words, perhaps in Alberta you might be more likely to have a shared parenting arrangement than in British Columbia. I don't know. Could you comment on that?
Advisory Counsel, Canadian Association for Equality
Certainly. Thank you for that.
Canada has some fairly robust jurisprudence because the provinces will look at other provinces' jurisprudence, but there is no doubt that certain provinces like Ontario have a much more well-developed body of law on equal parenting, with the application of the maximum contact principle to its ultimate end. In other provinces, it's very thin.
It shouldn't depend on where the family lives to get that benefit. Urban centres versus rural centres—in rural centres, sometimes there's only one or two judges in a centre, and you don't get diversity of views. They may be of a prior generation, prior to the latest social science research, or they haven't been trained in what we now know today.
Ultimately, the biggest arbitrariness is whether you're represented or not.
Mediator, Arbitrator, Psychologist and Lawyer, Family Dispute Resolution Institute of Ontario
It's Dr. Landau.
St. Albert—Edmonton, CPC
In any event, I'll be sure to refer to you by that.
Both of those witnesses made references to a lack of an individual assessment based upon a rebuttable presumption.
Could you comment on that? To me, it seems to not make a lot of sense.