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—