Justice Committee on Nov. 26th, 2018

[Brian Ludmer]

There still is an individual assessment, but it's put in proper context.

The state doesn't get involved with families, absent child protection concerns, when the family is intact. When a family separates, you don't have to micromanage it and do a whole university thesis on the family for the purposes of studying everything. The evidence, the public's views and the social science world tell us that if you have a normal parent who loves their children and is prepared to devote the time, that's basically all you need. You don't have to micromanage it and, as I say, get down to that detail. If there's anything material, if there's a child who has special needs, that's why it's a rebuttable presumption. A particular parent may have to go and get some training, maybe it's a health need....

Those cases, where there's something of individual focus, present themselves quite easily and are dealt with quite easily.

[Michael Cooper]

Could you address the concern that was raised—and I think you did touch on it a bit—about weeding out instances where domestic violence is at play? The suggestion was made that the rebuttable presumption would somehow result in overlooking domestic violence. Can you comment on that?

You did rightfully point out that under the current bill and the current Divorce Act, in fact, there is maximum parenting time that the court is required to consider. But surely you're not ordering maximum parenting time to parents who are unfit.

[Brian Ludmer]

You're correct, Mr. Cooper.

You've effectively answered the question. One has nothing to do with the other. That's why the presumption is rebuttable. If there's some meat, if there's some proven allegation that has concerns for the future, that family won't have equal parenting. It's no different from today, where, instead of a presumption of equal parenting, it's a maximum contact presumption.

[Michael Cooper]

Dr. Landau made reference to social science data that she said was incomplete, had small samples, is biased and isn't reliable.

You made general reference to some of the social science evidence, but I would invite you to put on the record some of the social science evidence that you suggest supports the rebuttable presumption.

[Brian Ludmer]

Sure.

Professor Linda Nielsen at Wake Forest University has done a series of meta-analyses for many years—studies of studies—and those are now up to about 60 that she tracks from peer-reviewed journals around the world. The overwhelming majority, and I mean something like 55-plus of the 60 peer-reviewed studies, support equal parenting scientifically.

Richard Warshak of Texas, a well-known psychologist, has a study that he did in 2014, updated in 2018, that 110 leading psychologists from around the world have concurred in.

Professor William Fabricius of Arizona State University, who I mentioned, has written 30 peer-reviewed papers, speaks around the world, and is involved with the International Council on Shared Parenting. He has drafted Arizona's legislation, and then was hired to do the follow-up study.

These are people of international reputation and it's all high-level, peer-reviewed journals. I don't accept any assertion that there is not robust science about equal parenting.

[Michael Cooper]

Thank you.

[The Chair, Liberal, Anthony Housefather]

Mr. McKinnon.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Thank you, Chair.

I guess I'll stick with Mr. Ludmer for the moment.

You mentioned peer-reviewed studies that cite that if the child can have two parents the better off the child will be, and that many studies speak of the virtue of shared parenting. I wouldn't disagree with that, but it's a far cry from that to presume in any given case that there is a circumstance of equal parenting.

This bill is founded on the principle of the best interests of the child. What's wrong with starting from that point and evaluating the circumstances as they play out?

[Brian Ludmer]

Because you'll have a continuation of the current system of non-stop litigation bankrupting families, continuing to drain tens of billions of dollars of taxpayer money to fund a system for people to litigate over children.

The point of a rebuttable presumption is the flip. You start with the scientific view and the view of the public. Remember what the public wants. You start with that view and say, unless it's disproved, we can be pretty comfortable that it will be okay. It'll be in the children's best interests. That's what the science tells us.

We don't need to worry and do these huge expensive studies. The average family can't afford a two-week trial. The public can't afford all these conflictual families to have two-week trials, so we say we know they're going to be fine. We can't do any damage with equal shared parenting for a normal family.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

I guess that's the problem with that hypothesis. We don't know that it's a normal family. If it's not, it seems to be a harmful presumption.

If you could answer that quickly, then I'd like to pass it over to Dr. Landau and—

[Brian Ludmer]

I'll rephrase the question. How do we know it's a normal family? How can we be comfortable?

The types of abnormalities that would impact on parenting time are starkly obvious. A very broad range of parenting produces healthy children. Your average person, if they love their children, if they try hard, if they're there for their children, do a little reading, they're normal. Any abnormalities will stick out like a sore thumb. It is that group of people—the vast majority of our population—that we say the exercise, the cost, the conflict, the stress on the children, is not worth the upside, because the end result might be that you don't get 50% but you get 37.2%. However, if you're not normal, you'll still damage the children.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Thank you.

We'll let Dr. Landau, Ms. Rauch and Ms. Del Rizzo respond, if they would.

[Dr. Barbara Landau]

My understanding is that in Australia and in all the states that tried the presumption of shared parenting, they withdrew it. Only Kentucky continues to have that presumption.

Since the last time we reformed the Divorce Act, we've had a lot more encouragement of alternative dispute resolution and of professionals to screen for domestic violence. The result has been a tremendous increase in shared parenting, co-operatively among parents. There is nothing to prevent parents from working out an arrangement of equal parenting if that makes sense to them in their circumstances. Parents have gone from almost a minimal involvement of fathers to a far greater increase in fathers' involvement in the last 30 years. That's been a good thing, and it's largely been the result of consensual dispute resolution in cases that warrant it.

When we talk about the idea of all these trials, only 1% to 2% of family cases end up in trials, but they do spend an awfully long time and a lot of wasted money working their way through the court system. What I really like about this legislation is that it does put a focus on concern about safety and if you manage to get over that hurdle, encouraging people to use consensual dispute resolution results in lots of sharing, but sharing based on the unique circumstances of the family. What's the availability of both parents, based on their work schedule? What's the age of the children? Do they have mental health or addiction issues that need to be addressed? Do they have special needs children? It works out a parenting plan that is unique for the family.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

What's wrong with the idea of presuming equal parenting, shared parenting, and having to prove otherwise?

[Dr. Barbara Landau]

I think we have sufficient.... I think the very fact that this legislation has encouraged so much of a focus on safety and well-being shows we have some serious concerns.

Some 20 to 30 years ago in the House of Commons, they laughed at the issue of domestic violence. We don't laugh anymore. We take it seriously, and we also take seriously the experience and the ability and the motivation of people to parent, and encourage them to work out their own plans. I would emphasize mandatory information sessions for parents early on where they learn what a parenting plan is, how to address the different topics that are now in this legislation and about things that will reduce their conflict. Then I think the outcome will be far more sharing of parenting, of responsibilities, not the fighting over labels, which you've gotten rid of in this bill.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Could we get a quick answer from the CBA?

[Melanie Del Rizzo]

I want to say first of all, the maximum contact principle that keeps being referred to is that the children should have maximum contact with the parents as is in their best interest. There is no such presumption now, nor should there be in future.

This crosses political lines. This has been something that the previous Conservative government supported as well, keeping the focus on best interests.

I would refer back to the federal government's Special Joint Committee on Child Custody and Access, which provided a detailed report, “For the Sake of the Children”. That concluded that children are not served by legal presumptions in favour of either parent or any particular parenting arrangement.

Again, equal parenting is open to families where it works for their children. What is wrong with the presumption is that it takes the focus off the child and puts it on the parent. We want the focus to remain on the child.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

I'd like everybody to please put their earpieces on. Madame Sansoucy is going to ask her questions in French, and I don't want to take away any of her time.

Ms. Sansoucy, you have the floor.

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

Thank you very much, Mr. Chair.

My first question is for Ms. Landau and the Canadian Bar Association representatives. My team and I found some very interesting points in your respective briefs concerning the place of children in the procedure. My question will therefore focus on representation of the child by a third party.

On the one hand, Ms. Landau, you discuss the views of the child in point 7 of your brief. You also talked about that today. You emphasize how important it is to include opportunities for children to express their views. You also add the following:

However, we do not believe that judges are the best choice for interviewing children... Child specialists are more qualified...

On the other hand, recommendation 27 in the Canadian Bar Association's brief reads as follows:

27. The CBA Sections recommend adding the following to 16(3)(h-i):

(i) protect a child from exposure to or involvement in parenting conflict.

We find these proposals entirely warranted and worthwhile. A person would thus express the views of the child rather than have those views transcribed in a report, as is proposed in certain briefs that we've received as part of this study.

Based on your recommendations, could you tell me whether it would be appropriate to provide in the act for the option of the child being represented by a third party, who would listen to the child, understand the child's view and represent him or her throughout the divorce proceeding?

I'll let you decide which of you will answer first.

[Dr. Barbara Landau]

I can take it.

I'm a lawyer as well, and I have been a children's lawyer representing children.

Very often in a mediation process or a collaborative law process, there is somebody who speaks to the child separately, depending on the age of the child, and listens to what their concerns are—any particular wishes. It isn't that the child is deciding the outcome, but it is finding out something about the child's particular personality, their needs, their fears and concerns, and about things they think would be helpful to them.

It isn't lawyers that I say shouldn't interview children; it's judges. I think bringing a kid to the courtroom and having a judge take a few minutes in chambers with the child is a pretty frightening experience. It perhaps should be reserved for older children in a parent alienation case that is really high conflict.

I think that mental health professionals are the best ones to be trained to work with children. Interviewing a child as part of the process is really helpful. Almost every case settles almost immediately once there is somebody to reflect the child's concerns and interests to the parents.

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

Thank you.

[Melanie Del Rizzo]

There is no CBA position on exactly how it is to come out, but I'll have my colleague speak on that.

[Sarah Rauch]

What we're focusing on are the best interests of the children, and they vary. They're evolving as the age of the child evolves. We're talking about them as though we already know....

I would refer back to the Convention on the Rights of the Child for some of those details. The best interests of the child include, in article 9, that when a child is separated from their parents, they shouldn't be separated from their parents against their will unless such separation is necessary for the best interest of the child. “States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests.”

With the change of perspective, if we look carefully at the question you're asking, article 12 in the convention also talks about, “States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.”

There are all kinds of different models for children to be heard. There are some of the things we've spoken about.

The important perspective that we want to advance is that it is in the child's best interests to be given that opportunity.

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

Thank you.

I'd like to ask Ms. Landau a second question.

You say in your brief how important it is to allocate the necessary funding to education, courses and non-adversarial mechanisms for couples who can afford private services, as well as funding for experienced professionals who will help direct couples and so on.

It's great to hear that. This bill has many good features but, to date, hasn't achieved all the objectives set for it, particularly that of reducing poverty.