Justice Committee on Nov. 28th, 2018

[Colin Fraser, Liberal, West Nova, NS]

Thank you, Mr. Chair.

Thank you all very much for being here. I appreciated your presentations.

Professor Bala, I would like to start with you. You talked a little bit about equal shared parenting, and you know some of the witnesses who have already appeared at our committee have taken a different point of view from yours, although many have agreed with you.

You mentioned that there's really only one jurisdiction that actually has true equal shared parenting, that being Kentucky. You said that in your estimation there has been perhaps an increase in litigation because of that scheme.

We've heard from other witnesses who actually support equal shared parenting, and who have said that it would avoid further litigation or more litigation. You say that's not the case, and I would like to hear why you think there actually would be more litigation if that scheme were implemented.

[Prof. Nicholas Bala]

It's a great question, by the way, and—

[The Chair, Liberal, Anthony Housefather]

Mr. Bala, I believe you mentioned that was with respect to Arizona and the testimony regarding whether further litigation occurred in Arizona after their change. When the gentleman who wrote the article testified before us, he said the findings were that the litigation was in the same amount, not more. You said it was more. Following up on Mr. Fraser's question, I am also interested in the discrepancy between what you're saying and what he said.

[Prof. Nicholas Bala]

There are a number of issues there.

In Kentucky there's been no research. They've had that about a year. Arizona does not have a presumption of equal time, although it does have something that looks a bit like maximum parenting.

By the way, I read his brief, and to be candid, if you read the research paper published in the Journal of Divorce & Remarriage, it indicates there's been an increase in the number of filings as a result. Having said that, certainly settlements go on; different cases are affected in different ways. You can go back and look at his study.

By the way, in his research—and this goes to the issue of funding of research—he's had limited funding. By far the best research about this issue is from Australia. Again, in my paper I cite a number of people in the Australian Institute of Family Studies, which is well funded by their federal government. If you would like a model for what you should be doing, it would be that. In 2006 they changed their law, and they moved much more in the direction of presumptions about time. They talk about presumption—not equal time, but they use the word “substantial” time, and they certainly found an increase in litigation.

The reality is that once people are told what they are entitled to, they tell us that's what we should be doing, as opposed to saying they have the responsibility for their children and let's see the reality of their family and the reality of their family before they separated.

There are families in Canada in which the father is the primary caregiver. There are families in Canada in which the mother is the primary caregiver. There are families in which it's an equal time. It so happens that at this point in Canada's social history, mothers are doing significantly more child care in most intact families, almost by a ratio of two to one. That's roughly what we should be seeing after separation.

The other thing, of course, is that it should be changing over the course of a child's life. One of the things I like about the legislation is it talks about parenting plans. The idea is that this is a plan that's going to change over time; this is not a fixed court order. This is a plan as your child's needs change.

Another thing about equal parenting time is that we do have Canadian legislation. I've cited a paper by Professor Denise Whitehead. She interviewed children. By the way, Fabricius' research is all based on his talks with professionals, and I know why he did that methodologically: It's relatively easy to get lawyers and judges to talk to you. Let's find out what children think about this.

Denise Whitehead has done the only Canadian study that looks at children. Children like the idea of equality. If you ask them if they want both parents, almost all of them say yes, that they want to spend a lot of time with both their parents, but they'll say they actually don't like moving three times a week.

[Colin Fraser, Liberal, West Nova, NS]

We'll have to leave it there just because I'm limited for time, but I appreciate that answer. Thank you very much, Professor.

Mr. Harvie, you talked about the issue of relocation and about Gordon v. Goertz. You talked about the presumption there in favour of the moving parent if it's a substantial time with them.

What thoughts do you have on the previous section to that, which deals with, as Professor Thompson told our committee, the double-bind question of whether it would be appropriate to ask the relocating parent whether they would move with or without the child? Whether they would move without the child, I guess, is barred in our legislation.

Professor Thompson told us that. From what Professor Bala said, I presume he would agree with Professor Thompson that it should be permitted, but it may not necessarily carry much weight when the judge makes the decision.

Do you agree that it's an appropriate question to ask a parent who is moving?

[Robert Harvie]

I prefer the legislation as it's proposed.

[Colin Fraser, Liberal, West Nova, NS]

Okay.

[Robert Harvie]

The concern with that section, I find, is it too often creates an easy out for judges. You have a parent who's looking to move. Statistically this issue is most often going to be with the mother. I've seen this. They'll look at the mother and say, “Here's the deal. If I tell you your child is going to live with her father, are you still going to move?” In my opinion, that's an unfair question, because most mothers are going to say yes, they will stay; then the judge gets to say okay, then she doesn't get to move.

[Colin Fraser, Liberal, West Nova, NS]

Yes, of course. That's the whole philosophical bind.

[Robert Harvie]

I think that's why that section is there. It's much more important to look at the other circumstances than to put her in that type of no-win situation. I'm in agreement with the current way it's proposed.

[Colin Fraser, Liberal, West Nova, NS]

Professor Bala, if I have any more time, can I hear your thoughts on that, please?

[The Chair, Liberal, Anthony Housefather]

Please be brief.

[Colin Fraser, Liberal, West Nova, NS]

Sorry to the others. I wish I had more time.

[Prof. Nicholas Bala]

I don't think it should be determinative, but it shouldn't be prohibited. The reality is that if the judge says you can't move with the child, she's going to be in that position anyway.

It's a relevant fact. For that matter, it's relevant to ask the non-moving parent whether they can move. One of the things we do know is that in a non-trivial number of cases, one parent gets to move and the other parent can actually follow. Obviously it depends very much on their personal circumstances.

I support the view of Professor Thompson, and that's in my brief as well.

[Colin Fraser, Liberal, West Nova, NS]

Thank you, folks. Sorry I don't have more time.

[The Chair, Liberal, Anthony Housefather]

Thank you.

It is now over to Ms. Sansoucy.

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

Thank you, Mr. Chair.

Mr. Bala, you made quite clear the importance of making sure that the child has a voice in the divorce process and that it is heard. In your brief, in fact, you make that point saying, and I quote:

…the importance of taking account of the perspectives and preferences of children who are the subject of parental disputes, as this promotes better outcomes for children, respects their rights, and often facilitates settlement.

I agree with you, and I wonder whether we shouldn't take it further by providing for a third party to represent the child, in the same way that parents are represented by legal counsel. The third party would listen to and understand the child's views and be responsible for conveying those views and always ensuring they were at the heart of the discussion. The idea would be to really make sure the child's interests came first and foremost in the divorce process, which is the primary goal of this legislation.

A number of witnesses have called it a good idea, which has the support of numerous specialists, psychologists and legal experts. Some even said that judges were not the best people to interview the child.

I'd like to hear your thoughts on that. I see people nodding their heads, so I'd like to give the other witnesses a chance to comment afterwards.

[Prof. Nicholas Bala]

Thank you.

Concerning the issue of the child's views, it's extremely important that this legislation recognize that, although the practice in Canada already is to take account of the views of children. The real issue is not whether in theory we do take account of the views of the child; the issue is how it is done. In fact, the biggest issue is the resources. It is largely a matter of provincial responsibility; the federal government could well support that, but it's primarily a provincial responsibility.

That said, it is going to vary by the nature of the case. One thing I did talk about in my brief that could well be here is to allow judges to meet with children—which, by the way, happens a great deal in Quebec. Judges meet with children. It can be very effective.

Is it the only way? Absolutely not, but it's something I'd like to see more of. It requires some education and training of judges, but Quebec judges are actually very good at it. In fact, we bring judges from Quebec who might have been real estate lawyers and they say, “Gee, I wasn't sure how to do this. I had a bit of training from some psychologists. Now I do it. I feel comfortable doing it.”

Children really appreciate meeting the judge. It's very important for children that they feel they've been heard, although it's not a complete solution.

A second thing is what we call “views of the child” reports. You have a social worker or a lawyer meet with the child and report what the child is thinking. They actually usually do it twice: once the mother brings the child, and once the father does so. It gives you a picture of what the child is thinking. This is something we're starting to do. A number of provinces have already done it, such as Nova Scotia. It's starting in Ontario and British Columbia. It can be very effective, because one of the problems is that children might be telling the parents slightly different things, and the parents are hearing different things. Each parent is getting a different message. A “views of the child” report is relatively inexpensive and relatively quick, and it really helps. We also have full psychological assessments that can be useful.

Is there a role for lawyers for children? Yes, although in my view it's much more so in child protection cases in which the child has been removed from both parents and the state is involved.

Is there a role for lawyers for children? Yes, but it would be somewhat limited in that when it happens, the primary thing that good children's lawyers do is negotiate with the parents. It goes back to the issue of dispute resolution. A lawyer for the child can be the most effective person to mediate the dispute, but if they're actually going to have a trial, bringing the child in as a party or a litigant can be problematic. It doesn't mean it should never occur, but it should be limited in the family context—

[The Chair, Liberal, Anthony Housefather]

She wants to ask another question; sorry.

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

Indeed, having a limited amount of time to talk to legal experts can definitely be a challenge.

My next question has to do with dispute resolution, Ms. Guindon, but did you want to comment on the notion of giving the child representation throughout the process to ensure their voice is heard?

[Julie Guindon]

I would simply like to add that the child's age and maturity level should always be taken into account

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

Very good.

[Julie Guindon]

When someone works with a child, they have to adhere to the principles that apply to the lawyer-child relationship, in other words, ensure that the child's wishes and preferences are consistently heard and accorded due weight. The most important thing, however, is independence, because we sometimes see that children are influenced.

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

I'd like to use the remainder of my time to talk about access to justice as it relates to dispute resolution.

Ms. Pawlitza was very clear on that point, in both her brief and her remarks. Not every family has access to dispute resolution because it's a costly process.

In her brief, Ms. Pawlitza also pointed out that family dispute resolution was even harder to access in many small communities, forcing people to travel or subjecting them to long wait times. Many of you mentioned that people represent themselves, as a result.

Ms. Pawlitza, do I understand your brief correctly in that you're calling on the committee to make sure subsidized mediation programs are put in place and that program funding keeps pace with demand?

I'd also like to hear what the other witnesses have to say. What can the federal government do to support those who are least well off as they cope with lengthy proceedings? The minister was here, and she told us that one of the goals of the bill was to reduce poverty.

[The Chair, Liberal, Anthony Housefather]

You are out of time.

I'm going to let Ms. Pawlitza answer, but there won't be enough time for the other witnesses to comment.

Is that all right?