Justice Committee on Nov. 26th, 2018

[Dr. Barbara Landau]

I would absolutely concur if there are the services required. Changing the building—building new bricks and mortar—will not do it. You need mandatory education. You need triage. You need domestic violence screening, and you need the services of consensual dispute resolution processes. If you do that, you get a hug.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Okay. Good.

Let's pause there. However, I will ask you this question because for the non-lawyers at the table—and there are a couple of us—it sounds like we're debating the ingredients and the contents of an apple pie. We agree that apple pie is good, but what ingredients go into it? It's a little mystifying here, so let me ask this question.

The presumption of equal shared parenting, let's flip that on its head. In the system that we have now, what are the types of families for whom equal shared parenting isn't the best solution and isn't in the best interests of the children? Help me see what those families look like. What are some examples?

This is for the CBA or Dr. Landau.

[Dr. Barbara Landau]

I'll kick it off.

The ones that come to mind immediately, of course, are domestic violence, mental health, people who are feeling so angry at the time of the separation, so hurt and whatever. It doesn't mean that they won't gradually move toward a more co-operative type of thing, but at the time of separation, they are demoralized. Children with very high special needs, parents who travel extensively, people who don't live in the same community, people who have already started another relationship.... Automatically, that's a red file for me. If they've already started a relationship or within the first year, they're not going to get along well and they're not going to accept that other person. Maybe by the second, third or fourth year they will be in a better state to do that, but usually there's so much animosity.

I think that special needs kids, kids who don't have an experience of a really close relationship with a parent—the parent lacks parenting skills or they're just not particularly interested in being a parent.... There are all of those types of people. When people do show an interest and are involved with their children, they end up with—if not an equal shared—a parenting arrangement that reflects their availability and their ability to meet their children's needs.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Thank you.

Now I'll go to the CBA for a minute or less.

[Melanie Del Rizzo]

I guess the issue here is our definition of shared parenting and equality.

We say that a focus on equality is misguided. We need to look at what's best for the children in each situation, and we don't want there to be a focus on parental rights. Again, these types of presumptions don't really advance equality.

There are all sorts of reasons why an equal shared parenting arrangement would work, and there are all sorts of reasons why it would not work. It depends on the child. It depends on the family structure. It depends on who parented the children prior to a separation. It depends on levels of attachment. It also depends on the children and what the children's views would be, if it's appropriate to canvass them.

There are all those things. We want to put the children first. That's the focus of this bill and we'd like it to remain that way.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Thank you.

[Dr. Barbara Landau]

I just want to mention the age of the child because you can have infants, who really are not portable, going back and forth. You just disrupt them totally. However, they might be far more able to handle it at a later age.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

You have all forgotten more than I have known about this area of the law and the law in general, so thank you all very much.

[The Chair, Liberal, Anthony Housefather]

I'm indulging my colleague.

I just have one question for Ms. Del Rizzo.

You practice family law in Newfoundland and Labrador. Can you obtain a divorce in French in Newfoundland?

[Melanie Del Rizzo]

No.

[The Chair, Liberal, Anthony Housefather]

Does the CBA have any suggestion with respect to whether we should be looking to the language of the Criminal Code that affords people the right to a trial in the minority language across the country to allow for minority language divorces? What is your suggestion?

[Melanie Del Rizzo]

I'm here to represent the CBA's position, and the CBA's position is expressed in my submission and in the comments. Language rights should be strengthened across the country, and with respect to divorce, French-speaking parents should be able to obtain a divorce in their language all across the country.

[The Chair, Liberal, Anthony Housefather]

And English speaking parents in Quebec....

[Melanie Del Rizzo]

This is inconsistent, and we are encouraging the government to look at that with respect to this bill.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Mr. Colman, I see you're still with us. I know that you're on the screen and people may have forgotten that you were there, but thank you for joining us—and so late at night for where you are.

Thank you, all. You were all really helpful.

I'd like to take a brief recess and ask the next panel to please come forward so that we can start quickly.

[The Chair, Liberal, Anthony Housefather]

Thank you so much. We are reconvening with our second panel of the day. We have three more illustrious witnesses, or groups, joining us.

As individuals, we have Ms. Martha McCarthy, with Martha McCarthy and Company LLP; and Mr. Daniel Melamed, with Torkin Manes LLP. We have B'nai Brith Canada, which is represented by counsel John Syrtash and Ms. Orly Katz, assistant to counsel.

We'll go in the order of the agenda. We will start with Ms. McCarthy.

Ms. McCarthy, the floor is yours.

[Martha McCarthy, Martha McCarthy & Company LLP, As an Individual]

Thank you.

My name is Martha McCarthy. I've been a full-time family lawyer, since I was called to the bar. I'm not embarrassed to tell you, at least in this setting, that is 27 years of practice.

I am a full-time family lawyer. I act for men and women in equal proportion. I act for straight and all manner of not-straight former couples. I act in a pro bono way regularly with lawyers in my office for children, children whose parents are getting divorced, children who are in other challenging circumstances and children and youth who have problems in school.

I also have a practice now that has developed into something that I'm not sure anybody envies me for. I do a serious amount of very high-conflict custody and access work. I act for people whose husbands have tried to kill them, and who are asking for custody of their children after that. I act for grandmothers where there's been a murder-suicide and there are no parents left.

I act in situations that we would easily call 10% or less of the constituency. These are stories that, if you didn't spend every day doing the kind of work that the lawyers sitting here now—these are all my colleagues and professional friends.... If you didn't spend time with us, you wouldn't quite believe it.

That's what we do, and that is one of the perspectives I'm going to ask you to consider as you look at this bill—the question of who the constituency is. Who are the people who need to access this legislation? Who is it actually aimed at?

Before I say that, you'll have to forgive me for all parts of my paper, to the extent that it contains comments that you didn't ask me for. That's the cost of inviting me to attend. I did spend the first five pages of my paper talking about the current legal context. I wanted to talk about it because I think there is a perception in the public that family law is in crisis. It's all over papers. It's this old saw that people say.

What I want to say is this. Due to maybe a magic confluence of every star lining up or something, we are at the biggest sea change in the history of family law since I was called to the bar, and that is the unified family court.

The unified family court—and I go on about it, again you'll forgive me, in the first five pages of my paper—is without a doubt the greatest law reform effort we will see, once we get it off the ground. It's not an “if” anymore. We now have the budget. We have the commitment at four provincial levels on the first rollout. Ontario is going to be one of those four provinces. It's going to get four centres.

What does a unified family court get us? Why does it matter? It's a very difficult subject to discuss in public and for people to understand because there's this one thing of, “We shouldn't have families in two different courthouses,” but actually that's just the little thing. A unified family court gets us a whole bunch of really huge things that we have not had and that will make a huge difference in access to justice for the average family and the average user of the system.

The specialized bench is huge. I have a part in my paper about it, so I won't repeat it. It's a massive change. It is a system where you can have all kinds of adjunct services. At a unified family court, the only place where family law is done, we can have mediation centres, a triage judge and some things that we don't have already, although we have many of them.

That's the second point in my context in this paper. We have rolled out across Ontario, and I think in many provinces—I can't really speak to specifics about other provinces—on-site services for mediation in every courthouse. Five years ago, that wasn't a thing.

What happens in the courthouses in Ontario right now? With or without the language.... I agree that it is totally appropriate that we should all have a duty to encourage and discuss mediation in the appropriate cases. What happens on the ground every day? You're in motions courts where judges are saying, “Hey, self-rep versus self-rep, or self-rep versus lawyer here fighting about a travel consent, did you know we have on-site mediation? Did you go down there? You can put your name in a line, and you can be heard in five minutes. Why don't you go down there? We'll hold your matter down.” They are triaging all kinds of stuff right off their list into that system.

You can judge my analogy however you like, but here's my analogy that I'm going to give you today. With the unified family court, which we have a commitment for, which is happening, with on-site services and mediation centres available, for those of us who have worked so hard—and I include both levels of government, people who have lobbied for it and all of you—we are standing over a body in a surgery, an open body, we are fully engaged in that surgery, and it is going to change the life of the patient.

With the greatest of respect, the legislative reforms are not really about that. The legislative reforms are about a very modest medical change, like how somebody wants to talk about putting a cast on the finger. We are on the precipice of the biggest, most amazing thing that has happened. We're not sure about whether the temperature comes down or how much we cure the patient once we roll out the UFC.

My friend Mr. Melamed tells me that I've already covered five minutes in my intro, which is how lawyers roll—

[The Chair, Liberal, Anthony Housefather]

It's six minutes 50 seconds.

[Martha McCarthy]

It's six minutes and 50 seconds into my introduction.

My paper is divided into three parts. The most important thing I would like to say to you is that I have spent my life talking about what labels matter. I did a lot of gay and lesbian equality work that was all about putting the right labels on things, moving toward a functional vision of family. Despite that very significant bias that I have, labels matter in custody and access cases. The constituency is the 10%. Who are the ones we're worried about? They're the victims of domestic violence who phone my office while they are on the floor being kicked in the head by their spouse, with a child watching.

I'm not trying to be provocative. Those are the people who need access to the system, who do not, when we talk about mandatory mediation, need us to make them feel that they're doing something wrong if they need the court system, because those people do.

The other things I suggest that you look at, which aren't contained in my paper and I find incredibly compelling and important, are the DVDRC reports. The DVDRC is a committee, the domestic violence death review committee, that looks at what happens with fatal deaths in the domestic violence area on an annual basis. Those DVDRC reports tell us about the constituency. They tell us that those people are at the highest risk of actually fatal interactions. The number one time that you may get killed is at the time of separation. The number one time of murder-suicide is at the time of separation.

That's the constituency. Those are the people. Labels matter. Labels matter to third parties, to immigration.

All right, I'll wrap it up. You have my paper on why labels matter. We also have a paper that The Advocates' Society produced. I heard you talking about judicial interviews with children. We did a significant amount of work on a joint committee basis with the AFCC, which is an international, multi-disciplinary organization in family law. That paper is available. It's not in my materials, but it's available on The Advocates' Society's website. It talks about best practices for judicial interviews of children and provides a whole basis for training and discussion around it.

At the end of my paper, I did say some things that you didn't ask me about. If I were going to change the Divorce Act, what would I do? I would repeal section 9 of the federal child support guidelines, which is the single most disgusting amendment in any family law area anybody ever did, since at least Mr. Melamed and I were called to the bar, which is inserting economic interests into custody and access cases. Now, if you have 40% of the time or more—and that's since 1999—you automatically don't have to pay as much child support. This creates messed up incentives in the same way, with respect, that your draft mobility provision threatens to do. That mobility language about who's going to have substantially equal time, or whatever, that's all just the same thing.

That's why changing the labels, with respect, is a bit like lipstick on the pig. Changing the labels doesn't change the conditions under which humans fight. Humans are the users of this system. There are people who need it. I agree that if we had always started, way back, with words that didn't denote ownership, it would be better, because that's one of the things that people are offended by. The word “custody” sounds like I own the kid, that the kid's a piece of my property.

I agree that if we'd started with different language, way back, it would be nicer. That would be great. Don't change it now, unless you want to just create uncertainty. Look at what happened in the other provinces. It's all set out in my paper. It's not a fix. If you polled people...it's not a fix, I think.

Finally, on presumption of joint custody, that whole discussion, I didn't know you were going to do that. I would have written another 10 pages in my paper about all the ills of the presumption of joint custody. I will say, in response to somebody's question, that there's excellent academic literature by a woman named Jennifer McIntosh, out of Australia, and by Alastair Nicholson, former chief family law justice in Australia, and the woman who followed him, who's also the current family law chief judge in Australia. All of that is very interesting.

Jennifer McIntosh is a psychologist. I once saw Jennifer McIntosh do a slide show with all the drawings of all the children put into a presumption of equal time. The slide show had these children's drawings of their suitcases—

[The Chair, Liberal, Anthony Housefather]

Ms. McCarthy, you're at 11 minutes and 40 seconds.

[Martha McCarthy]

Great.

[The Chair, Liberal, Anthony Housefather]

I have to get you to wrap this up.

[Martha McCarthy]

That's a child whose life is defined by living out of a suitcase. Don't do this to those kids. There's great academic material about why you shouldn't.

Thank you for the opportunity to come. I hope you read my paper, most of which I didn't cover.

[The Chair, Liberal, Anthony Housefather]

As long as your brief gets to us translated, we're going to read it.

Mr. Melamed.

[Daniel Melamed, Torkin Manes LLP, As an Individual]

You can imagine what it's like to practise against Ms. McCarthy. She's a challenge.

To follow up, I'm going to talk about mediation.

I've been practising for 30 years, and like Ms. McCarthy, I have done high-conflict custody cases. I've focused on my mediation practice for the last number of years. I didn't write a long paper. I tried to focus on a couple of things that I thought I could bring to this table to consider when talking and thinking about the mandatory requirement of the adviser to raise alternative dispute resolution with individuals, which leads to mediation as one of the options.

My practice now is about a third to a half mediations only, where I'm the mediator. After you hear the witnesses, when considering changes to the legislation, I'd like you to think about a couple of things that I've learned that relate to two things. One is the family violence content and the second is to timing. I'm referring specifically to what I see in Bill C-78, proposed subsection 7.7(2). Let me just describe a bit about how practice actually works, so that you can appreciate why those two things interplay as a recipient of dispute resolution mechanisms that are outside of the court process that Ms. McCarthy has spoken about. I actually agree with her comments.

When a client comes into my office, the first thing we talk about is their problems, what they're thinking about and their worries. If it's an extreme situation—perhaps an assault or perhaps the possibility that money will be taken out of the country or will disappear—as an adviser, I immediately start a proceeding. Under the legislation now, we're required, as advisers, to address alternative dispute resolution. I'll do that, because I have a signed certificate that requires me to do it. Then we're in the throes of litigation that sometimes goes on for years.

This is the thing I want you to think about: There's no secondary requirement to revisit that provision as the process is undertaken. That should be something you should consider. I could imagine the legislation saying that at various stages in the proceedings the adviser is required to do the same thing again. The initiation is the starting point, and perhaps after every step in a court proceeding—that seems a little extreme—or at various times, or at what we call the settlement conference.... It's different things across the country. Things get very hot at the beginning of lots of files, and the advice isn't really thought of at the time. An important function of our adviser responsibility is to talk about how now that we've had all this fighting, should we stop? Should we talk to each other? Should we go to someone who could help us sort these things out?

I'd like the committee to consider whether there should be some ongoing obligation of the adviser to consider that option for discussion, maybe in some general way. Again, not all cases are appropriate for mediation. Some of them should be just settlement. Ms. McCarthy and I can talk across the table. We don't need a third person to understand the issues and the problems. Can we problem-solve together to create a solution maybe as effectively as a mediation? That's not always the case, so sometimes you need that third party.

Regarding family violence, as you describe it in the legislation.... Let me tell you a story of what happened to me last week to highlight why you should very seriously consider what FDRIO has put forward in their brief, as well as what we call a screening of domestic violence before mediation occurs. I'm sure Dr. Landau spoke about it. Two weeks ago, a mediation came into my office.

How it works in my office is that lawyers—very rarely individuals—call me and say, “Hey, Danny, do you have time to do a mediation in the next couple of weeks?” They call me up, they talk to my assistant, and we do a conflict check to make sure no one else in my office has met with them. If we are conflict free, they talk about dates. Sometimes I'll have a phone call to do what we call a pre-mediation conference with counsel to explain what the fight is about, although sometimes I don't. Then, all of a sudden, I get briefs on my desk.

Two weeks ago Wednesday, the briefs land on my desk. The husband's brief talks about the issues in the case. They're the usual things. The kids are older, so there's no custody. It's just money, money, money—all good things. In the other brief, the first two paragraphs are about the vicious assault on the wife and the criminal conviction of the husband. I'm looking at these briefs and I'm wondering how I am going to mediate this. Everyone talks about power imbalance—