Justice Committee on Nov. 28th, 2018

[The Chair, Liberal, Anthony Housefather]

Each of you has eight minutes to testify. We're going to start with Professor Neilson, and then we'll go to questions from the panel.

Professor Neilson, the floor is yours.

[Dr. Linda Neilson]

Okay. Thank you very much.

I'd like to thank the committee for taking the time to really examine Bill C-78, and I also thank you for the opportunity to comment.

I'm a legal academic. I work at the intersection of law and social sciences. Much of my career has been devoted to attempting to correct problems in the legal system in family violence cases. Among many of the others you have heard from, I applaud some of the changes proposed by this bill.

I worked on the joint NAWL and Luke's Place brief, and particularly on the LEAF brief. You'll find that many of my comments are connected to those briefs. I commend, as have many others, the absence of parenting presumptions in this bill, and particularly the direction to courts to take into account only the best interest of the child.

Many children are blessed with two parents who do not engage in abuse and are supportive, caring and co-operative. This bill doesn't discourage parenting of children by more than one parent. Other children face enormous stress and adversity: violence in the home directed at mothers, stress from parental conflict, child abuse, mental illness, substance abuse, and poverty. These children require a range of responses from the legal system in accordance with their particular individual needs.

We can't anticipate the diverse experiences of all families. Presumptions—any presumptions, such as maximum contact—are beneficial only to the extent that families are the same. When contact increases child adversity, that kind of presumption can cause harm. Removing presumptions frees courts to respond to the needs of children in accordance with individual circumstances.

Also welcome is the direction to give priority to the child's physical, emotional and psychological safety, security and well-being. That provision is long overdue. The hope is that the term “priority” will counter a failure to investigate domestic violence and child abuse that we see in the case law, forceful removal of children from preferred parents, and the ordering of children against their will to comply with punitive orders that may not be beneficial or safe. That “child safety first” provision has been recommended by family academics for decades. That's a very positive change.

As others have said before me, many problems are the result of limited understanding of family violence. The less one knows, the simpler it looks. Family violence is a gender equality issue. It is a child human rights issue too. Every child is directly harmed when coercive control, abuse and violence are directed against the child's caregiver.

Some children will experience long-term fear responses and emotional and even developmental harm. Participating in abuse against mothers is often combined with abuse directed against children. The patterns of behaviour associated with family violence are: demeaning domination; monitoring and surveillance; excessive physical discipline; risky or sexualized parenting; undermining; and coercive control. Those patterns that we associate with family violence commonly continue in the parenting practices against children after separation. Failure to protect impairs children's recovery from fear and reduces child resilience. The new focus on safety, security and well-being will help, particularly if false assumptions are disallowed.

I share with others an enthusiasm for proposed paragraph 16(3)(e), the duty to consider the child's views and preferences. Children have the right to insist that family courts and experts listen more respectfully to their experiences and views, particularly when it comes to parenting and their own safety. I would also, however, confirm what some of your other witnesses have said: that it's really important to hear from children in a way that doesn't put them in the middle of conflict.

I have some concerns about the definition of “family violence”. Inclusion of coercive and controlling terminology is welcome, as is harm to animals and property, but the definition misses an important opportunity to identify family violence as child abuse and to articulate clearly the distinction between dominant aggressor abuse or violence and targeted person resistance violence. That kind of clarity could have helped with what will probably become problems with interpretation in connection with self-protection.

Proposed paragraph 16(3)(j) is framed incorrectly. The central concern is what engaging in family violence tells us about a person's capacity to co-parent effectively and supportively. Please refer to the list of considerations to be included in proposed paragraph 16(3)(j) and in proposed subsection 16(4), as recommended in the LEAF brief.

I have very serious concerns about the new “best interests of the child” consideration in proposed paragraph 16(3)(c)—the duty to consider “each spouse's willingness to support the development and maintenance of the child's relationship”—if, from the child's point of view, the relationship is non-existent or harmful. The provision places the responsibility on the wrong parent. In my view, it's potentially harmful to children. Removal of that provision would be best. At the very least, it requires a “best interests of the child” qualification.

I share the concerns that others have mentioned that proposed subsection 16.2(3) imposes parallel parenting. This can be a serious issue in a family violence context, given that we know that perpetrators often engage in frightening, lax or coercive parenting in order to harass or frighten. The suggested modifications in the three briefs would help to correct that problem.

Others have noted the need for additional clarity in the relocation provisions. There's also a need to ensure that proposed section 16.9(3) clearly allows ex parte applications in family violence cases. Proposed relocation has—

[The Chair, Liberal, Anthony Housefather]

Professor Neilson, you're at over nine minutes now. I have to ask you to try to wrap up.

[Dr. Linda Neilson]

Okay.

I was going to talk about the need to rebalance professional duties and alert you to a problem with the Family Orders and Agreements Enforcement Assistance Act.

What I would like to emphasize, most importantly, is the critical importance of specifying in this bill professional obligations to engage in family violence education and professional obligations to use screening tools endorsed by experts, and to ensure in family violence cases that risk and danger assessments for women and children are conducted prior to referrals and decisions.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you.

We'll now go to Ms. Vandergrift.

[Kathy Vandergrift]

Thank you very much for the opportunity to contribute to this important legislation.

The Canadian Coalition for the Rights of Children is a national network of groups and individuals committed to promoting and implementing children's rights. It started in 1989 when the Convention on the Rights of the Child was adopted. Next year we celebrate 30 years.

Canada is currently undergoing a review of how it implements the convention. That implementation is weak, but Bill C-78 is an important step toward realizing children's rights, and it will benefit many children.

Before I make specific remarks, I want to speak to the high priority of passing this legislation.

Improvements to better protect the rights of children have been proposed and debated for over 20 years in the area of family law. During that time, I have witnessed and met with too many children who had barriers to their development that they shouldn't have had because the systems we created did not adequately protect their rights. Please don't let this opportunity to make those changes pass.

My first comments relate to the best interests of the child. Making this paramount is consistent with the convention. Providing guidelines is something that Canada was asked to do in each of the three previous reviews of how it implements the convention. The change in language is positive. Best interests must be done on a case-by-case basis, with no presumptions.

I would suggest that you might wish to strengthen that best interests of the child section by adding explicit reference to the convention in proposed section 16. Best interests should be framed in terms of all the rights of the child, including things like the right to education and the right to develop their potential. Some of those things become particularly important for adolescent children who are involved in family disputes. If you add the reference to the convention, it means that all the rights of children will be taken into consideration.

Several MPs spoke about the need for public education during the second reading of this bill. We agree, and we would urge the committee to make a recommendation that training in best interests be based on the convention and on general comment no. 14 by the UN Committee on the Rights of the Child, which is guidance for states on best interests of the child.

My next comments relate to consideration of the views of the child.

This is a basic principle of the convention, but this is the first time it is being required in federal legislation. That's a good move for Canada. It begins to fulfill Canada's obligations under article 12 of the convention. Members of our coalition are very active in promoting good practices for considering the views of children in all areas of decision-making. There is a growing body of evidence that outcomes are better when children are informed about their rights and have input into the decisions that affect them. There are good practices also for younger children. These should be based on capacities, not arbitrary age. The challenge we have is to scale up those good practices with all stakeholders.

There will be benefits for children in other areas as well if we do that. Yes, there is a requirement for adequate support for the child in this process, and we would suggest that in some cases, but not all, separate legal counsel is warranted.

My next comments relate to the right to be protected from violence. The committee has heard testimony about the impacts for children of exposure to violence in the home. I would like to highlight, in addition, the safety of children returned to a parent with a history of violence. In the last review under the convention in 2012, Canada was specifically asked to ensure effective follow-up for children who are returned to a family member who has had an experience of violence. Since then, we have seen tragedies in Canada. It's very important that we implement that recommendation and pay special attention to that area.

Finally, concerning child support payments, putting the focus on children's right to support is consistent with the convention and it is specifically named in article 27. Canada continues to have high rates of arrears in parental support orders.

Canada has received recommendations to improve this in every previous review, with no action, so measures to strengthen enforcement are needed. I would encourage this committee to take a close look at that matter after you complete this bill, as part of the review of implementing the convention. In keeping with giving paramount attention to the best interests of the child, perhaps child support payments should have priority over all other payments, including crown debts.

In conclusion, passing legislation to protect the rights of children in family law is urgent as well as important. A program of public legal education for all parties and legal training for lawyers and judges is also necessary, but the convention provides a useful framework that will also make our federal system work better for children in the area of family law.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

We will now go to questions.

Go ahead, Mr. MacKenzie.

[Dave MacKenzie, Conservative, Oxford, ON]

Thank you, Chair. Thank you to both of the witnesses for being here.

I think that this legislation, by and large, has good cross-party support. It's something that we all want to see to make things better for people going through difficult times in their lives. Certainly all of us have that huge soft spot with children because they seem to be the bartering tool for many of these people.

I guess what I'm concerned about or wonder about is that many of these breakdowns occur when the children are very young.

Ms. Vandergrift, I think you mentioned that it is capacity, not age, that is important. How do we make those determinations for children who are of a very young and tender age? How should they be represented? What should be there for them?

Part of what I worry about are the support monies. Obviously, they are typically paid by one spouse to another. How do we know that those children get the benefit of those support payments?

[Kathy Vandergrift]

Thank you. Those are good questions.

I think we have a growing body of good practice about how you can engage even young children to determine their views of the situation. Obviously with infants it's a different matter.

In 2009, we held a conference on the best interests of the child. We spent a considerable amount of time looking at good practices to get the views of children in family law, so I think that can be done.

Another thing I would mention is to change it over time. That's the benefit of parenting plans, so that it isn't a once-and-for-all decision. As the child ages, things can change. I would just caution making it an arbitrary age, saying, for example, that we only consider views after age 12 and not before. We should avoid that.

It says age and capacity. We would lean on the capacity and reduce the focus on age for considering best interests.

In terms of the child support payments, we need much stronger enforcement. I think that's the biggest problem. There are very high rates of arrears.

[Dave MacKenzie, Conservative, Oxford, ON]

Professor Neilson, I see you nodding. Would you have some comments on those same issues?

[Dr. Linda Neilson]

I agree with Kathy's comments.

I think ensuring that we have good mechanisms to ensure that children actually receive the support they need is very important. I think there's a great deal of very good literature on how to interview children and how to obtain accurate information about their views. I think that many of those concerns should be addressed through education and training.

How do you support children? How do you put them at ease? How do you make sure that you have full information, without putting them on the spot? We don't want children being placed in situations where they have to choose between parents or anything like that.

[Dave MacKenzie, Conservative, Oxford, ON]

How do we train the people who are going to make some of those decisions, inside or outside of the court?

[Kathy Vandergrift]

I think it requires a program of training. For some years we wondered whether there was enough good practice; I think there is good practice, and there is research showing that it's a benefit to the families. It's also a benefit to the parents if they can really hear and understand their children's wishes.

We need to invest some resources into that, but I think it can be done.

[Dave MacKenzie, Conservative, Oxford, ON]

Would you agree that it's probably at a provincial level that we need to that? I'm not trying to dump on the provinces, but this would seem to be the appropriate level.

[Kathy Vandergrift]

It falls in the area of the administration of justice, but Canada also has a responsibility for implementing children's rights. That requires that we make substantive progress in hearing the views of children.

[Dave MacKenzie, Conservative, Oxford, ON]

Professor Neilson, would you comment?

[Dr. Linda Neilson]

There's some really interesting research, particularly out of Australia, looking at children's experiences with experts and the courts. The children said, for example, “Please listen to our experiences as we experience them. Present our views. Don't make assumptions that you impose on us. We really need to be heard, particularly about our lives and what will happen to us in terms of parenting.”

[Dave MacKenzie, Conservative, Oxford, ON]

Thank you very much.

Thank you, Chair.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

We will now go Mr. Ehsassi.

[Ali Ehsassi, Liberal, Willowdale, ON]

Thank you, Mr. Chair.

To the witnesses, allow me to thank you. It's been very helpful to listen to you.

I'll start off with you, Professor Neilson. I understand you're one of the leading authorities on system responses to family violence, so I'd be remiss if I didn't ask a question that has come up on a few occasions today.

As you know, some people think it's a good idea to have mandatory family dispute resolution. Others argue that it's not a very good idea, because if there is a pattern of family violence, it's definitely not a very fitting approach.

Would you share the benefit of your views with us?

[Dr. Linda Neilson]

In the past, I have been involved in designing professional standards for mediators around this issue. I've also written articles on how to make mediation safe, particularly in connection with judicial dispute resolution.

I'll go back to the first step that has to occur there, and that's adequate screening. Before one can make a referral to dispute resolution, and before one can design a dispute resolution process that's safe, one really needs to know what the dynamics are in terms of power imbalance, in terms of level of fear, and in terms of capacity to negotiate on an equal basis. You really need to know a fair amount about that before you can design a process that's safe.

[Ali Ehsassi, Liberal, Willowdale, ON]

Thank you for that.

Second, in your brief and in your presentation, you said that in the bill the definition of family violence could very much be improved. Would you be willing to draft improvements and perhaps submit them to the committee just so that we'd have the benefit of reviewing what those revisions would be in terms of the wording?

[Dr. Linda Neilson]

Yes. I would be very happy to do that.

[Ali Ehsassi, Liberal, Willowdale, ON]

Excellent. Thank you.

Ms. Vandergrift, thank you very much for your brief. It's very obvious that you have a keen interest in focusing on the interests of the child. In your brief and in your presentation, you said that it was imperative that we essentially cross-reference with the definitions provided in the convention.

From a legal standpoint, what significance would that have?

[Kathy Vandergrift]

My suggestion was that if you added to, say, proposed section 16.1 that it was as articulated in the convention, then the best interests of the child would be determined by taking into account all the rights of the child in the convention. The list is good, but there other rights in the convention. That's my suggestion about making explicit reference to the convention. The Youth Criminal Justice Act makes reference to the convention. I think it would be appropriate for a family law act to do the same.

You know, particularly as children get older, more of the rights need to be considered when you're doing a best interests determination. It would make it solidly rights-based. We have a mixed history of best interests, if you recall. It was actually best interests that started residential schools. We need to do best interests well.