Thank you for inviting me today. I'm awed, flattered, and humbled, particularly because of the other members of this panel.
I am a lawyer. I've been a lawyer in family law for 32 years. In the context of that practice, I've seen how family law impacts families in dysfunction and hurts children. As a result of that, I became involved as a mediator. I had training as a collaborative lawyer. I later became a bencher with the Law Society of Alberta. I was the chair of their access to justice committee for two terms, and I became involved with the self-represented litigants project through the University of Windsor and Dr. Julie Macfarlane.
The pain that I feel for my clients and that I see for children is real and is what motivates me to do things like being here today.
My comments, in general, are that my concern about Bill C-78 is that it doesn't fundamentally change the problem, which is that the way families matters get resolved is still seen through the spectrum of litigation. Litigation doesn't work for families in disputes. It's a terrible way for people to resolve problems.
We have a clear two-tiered system in which people with money and resources can abuse people who don't have those resources. The process itself is premised on an adversarial approach to resolution, whereby two parties who are already in dispute are actually encouraged to dispute more.
My fundamental concern is that Bill C-78, while having good intentions, laudable intentions, doesn't really make any fundamental change to the process. It's in that context that I've provided a brief to this committee.
I embrace the positives in Bill C-78. I think it's very helpful that we refer to “parenting” instead of “custody” and “access” and that we have stopped referring to children as “assets” or “property”. I think it's very positive that we have better support variation and enforcement provisions interprovincially in the new legislation. I think that expanding and focusing on what the considerations are for the best interests of children is helpful, particularly for self-represented litigants. I think having a more detailed examination of how domestic violence should impact parenting decisions is also helpful.
My concern is that they change the “what”, but they don't change the “how”. That's always been my concern as I've become more concerned with access to justice, and it's in that context that my recommendations are made. I'll just touch on them; I won't go into them in detail.
My first concern—and to some extent it mirrors Professor Bala's comments—relates to the presumptions inherent in the provisions relating to relocation of parents. I think requiring notice, if people are relocating and impacting the other parent's relationship, is good, but I think the extent to which we've created presumption in the legislation flies in the face of the case of Gordon v. Goertz, which I think was incredibly well reasoned by former Madam Justice McLachlin. She basically said that as soon as we create a presumption, we almost ask the court to start with a preference, and that avoids the necessity of looking in a nuanced way at what's truly in the best interest of the child.
Just as Professor Bala says, a presumption in favour of equal parenting will create a bias in favour of equal parenting. Creating a presumption in favour of a parent with the vast majority of time with children to be able to move creates a presumption. Likewise, a presumption against a move whereby parents would have equal access also potentially creates a bias and distracts the court from just looking at all the circumstances and asking what is really best for the child or children. I would strongly urge the committee to reconsider those presumptions in the legislation.
With respect to my second recommendation, consistent the United Nations Convention on the Rights of the Child, which the Canadian government adopted in 1991, we must and should inquire as to the wishes of the child. I think it's laudable that we've included that as a consideration, but we haven't provided any support as to how that occurs, and so we're inviting poorly trained lawyers and, with respect, poorly trained judges, and, clearly, self-represented litigants—who are a growing part of our experience—to put children in the position of picking which parent they like more.
After they've done that and a decision is made based on that information, that child then has to exist with the parent that they didn't prefer.
I think if we're going to invite children—and we have to invite children—to look at what their preferences and their feelings are, we need to provide some administration and some infrastructure to allow that to happen in a way that's consistent with the interests of the children. To not do that is to invite further abuse of the children in that regard.
With respect to encouraging non-judicial dispute resolution, again, I think the aims in the legislation are laudable, but there's no meat there. There's nothing there to compel people. There's nothing there to push people to actually do that, as opposed to engaging in a litigation process.
My experience is that most parties in divorce—maybe all parties in divorce—are in trauma, and they're not making the best decisions they can, so while it may make sense to encourage them and to require them to go through a consideration of alternate dispute resolution mechanisms, with the greatest of respect, I would make that mandatory. I would say, “You have to go through some alternate form of resolution prior to proceeding through a litigation stream”, because otherwise it's a good intention with nothing more.
Finally, related to that, it's my experience that people going through a divorce are not making the best decisions as their highest selves. I think that when we have legislation that implies that they can make reasoned decisions without providing an infrastructure for them to get the counselling necessary to make them functional, you're not likely to create any real change. You're likely to have damaged people who continue to make damaged decisions, particularly against the interests of their children.
Fundamentally, my concern is that we have legislation created by lawyers for lawyers and judges. There's an adage that goes, “When you're a hammer, every problem looks like a nail.” With the greatest of respect, we have laws that are created by lawyers, and to a lawyer, every problem looks like it needs a courtroom. My concern is that we need to do more to move people out of that.
I know that's difficult in a federal jurisdiction, because administration is provincial, but I would urge this committee to go a little bit farther towards creating infrastructure and process changes, not simply changes to the law.