Justice Committee on Oct. 26th, 2026

[The Chair, Liberal, Iqra Khalid]

I'm going to suspend for a second to make sure that you have it.

[The Chair, Liberal, Iqra Khalid]

We have success.

Monsieur Fortin, you will get an extra 30 seconds and no less, after you spent five minutes trying to figure this out.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Thank you, Madam Chair.

Ms. Birnbaum, I won't repeat my entire question. I hope you heard and understood the testimony of your colleague Professor Bala.

[Prof. Rachel Birnbaum]

Yes, I did.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

My question was this: Do you agree with his answer about the lawyer's role in detecting the risk of violence and implementing an action plan? In my opinion, that goes beyond a lawyer's expertise.

Do you agree with your colleague Professor Bala or not?

[Prof. Rachel Birnbaum]

I agree, and I agree that it's extremely problematic, as they have no training or education, and it requires another set of skills they do not have.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Thank you, Ms. Birnbaum.

[The Chair, Liberal, Iqra Khalid]

Thank you very much, Monsieur Fortin.

Thank you to our witness for having patience with our translation.

We're moving to our second round of questions, and we're going to Ms. Cody for five minutes.

Please go ahead.

[Connie Cody, Conservative, Cambridge, ON]

Thank you.

I want to thank all the witnesses for being here today.

I think everyone here shares the same objective: ensuring that children's voices are heard, that children are protected from harm and that courts have the information they need to make decisions that are truly in a child's best interests.

I want to start off with questions for Nicholas Bala, if I might.

A child should never feel responsible for deciding which parent they will have a relationship with. When a child begins rejecting one parent after a separation, how can a court determine whether that rejection stems from the child's own experiences or from influences in the other parent's household? What evidence should guide that assessment to ensure that children are heard without making them feel any guilt about the final outcome?

[Prof. Nicholas Bala]

There is significant literature about how professionals—psychologists and social workers—should be interviewing children, both to allow them to be heard and also to not place the burden of the situation on them. It obviously requires training and a thoughtful, nuanced approach to interviewing children to come to that point.

I think children understand the difference between being asked their views and being asked to decide. For example, in provinces like Quebec, where there are a lot of judicial interviews, one of the key things judges do is say, “I want to hear from you, but I'm making the decision. I don't want you to feel burdened to make this decision.”

It's a question of training and education, clearly, and of resources. Dr. Birnbaum mentioned voice of the child reports, which are an extremely valuable and relatively inexpensive way of hearing the child's views. In many provinces, there is not access to those kinds of reports, which is largely a matter of provincial responsibility. We need more resources for the family justice system in general and certainly for hearing the voice of the child.

One of the things a study Dr. Birnbaum and I are still working on found was that when children either are being interviewed by the judge or have a lawyer, there's a lot more likelihood the court will give effect to their views and give weight to understanding their views.

[Connie Cody, Conservative, Cambridge, ON]

Family court decisions can shape a child's relationship with a parent for years to come. If a court reaches the wrong conclusion about why a child is refusing contact with a parent, what safeguards exist to identify and correct that mistake before lasting harm is done to the child's relationship with that parent?

[Prof. Nicholas Bala]

There are risks on both sides, and we see this in some of the literature and some of the public statements that have been made.

If the judge fails to identify family violence, it is certainly conceivable, and has happened in a very small number of cases, that the child may be left to an abusive parent and killed by that parent. Some of those parents are fathers, and some of them are mothers. It's a huge burden, being a family court judge.

On the other side, if a judge inappropriately terminates a relationship because of unfounded allegations and parental alienation, the child will also suffer.

We have to recognize that being a family court judge is a very challenging job. Certainly, to the extent that the legislation takes away tools from family court judges, in terms of evidence and the kinds of remedies that can be imposed, it is highly problematic.

[Connie Cody, Conservative, Cambridge, ON]

Bill C-223 proposes changes to how courts hear children's views, assess family violence and evaluate family dynamics. Looking specifically at the measures contained in this bill, what evidence exists that they will reduce serious harm to children?

[Prof. Nicholas Bala]

In my view, there is no evidence that this will reduce harm to children.

As I said, there is a literature that is critical of the concept of parental alienation. Many others consider that literature to be highly problematic.

One of the problems or one of the realities is that people who are unsuccessful in their family court case usually say that the system was biased, the judge was poorly educated or whatever. They wonder what they can do. They have the right to appeal, but if they're not happy, they may phone an MP and start telling their story. Then, the MP doesn't go beyond that and says that this sounds like a terrible injustice that is very bad for children and that we need to change the law, without doing appropriate, balanced research into what caused the problem.

[Connie Cody, Conservative, Cambridge, ON]

Okay.

I was hoping I could ask a question of Rachel Birnbaum about—

[The Chair, Liberal, Iqra Khalid]

You have 10 seconds or less.

[Connie Cody, Conservative, Cambridge, ON]

What training or expertise should be required for the person speaking with a child, so they can make that assessment reliably?

[Prof. Rachel Birnbaum]

I would highly recommend that it be a professional who has academic qualifications and, more importantly, that they be a member of a regulatory college in Ontario, such as the College of Psychologists and Behaviour Analysts of Ontario or the Ontario College of Social Workers and Social Service Workers.

[The Chair, Liberal, Iqra Khalid]

That concludes your time, Ms. Cody.

We're moving on to Mr. Housefather for five minutes.

Please, go ahead.

[Anthony Housefather, Liberal, Mount Royal, QC]

Thank you so much, Madam Chair.

Thank you very much to the witnesses for being here today. I appreciate it.

I'm going to start by saying that it's clear that all the members of the panel come to this bill from one side. I generally prefer panels where you have people from both sides mixing it up rather than members of the committee having to do that job of prodding at the witnesses. This seems to me to be one of those panels where everybody is on one side. We'll probably have other panels where everybody's on the other side. I think the goal is to try to find where we can we look at the bill and find improvements versus just panning the bill.

Professor Birnbaum and Professor Bala, you guys published a study that I just read. It's from May 2024. It's entitled “Children Resisting Contact & Parental Alienation”. It shows that there is indeed a problem. There are claims of domestic violence in the majority of cases where parental alienation is alleged. The allegation of parental alienation is successful in over a third of the cases. There's custody reversal in about 14% of the cases where parental alienation is found, including children being forbidden from having any contact with their primary parent for a period of time. Only in 12% of the cases did they include a voice of the child report, meaning the children are not heard in a lot of the cases. The parent found to be alienating was the mother in 68% of the cases. When it's the father, it generally relates to domestic violence.

I don't want to look at this from the perspective that this is just bad and we should reject it. I'm wondering what your opinion is of the Canadian Bar Association proposal that where a parent has abused the child, and it's proven that the parent has abused the child or the other parent, there should be a precluding finding of a court finding parental alienation when it's claimed by the person who's been shown to have abused the other parent or the child.

I'll direct that to either of you, Ms. Birnbaum or Mr. Bala.

[Prof. Nicholas Bala]

I should say, just by way of your introductory comment, that there is a kind of dynamic here, because this is a private member's bill. The kind of balanced inquiry that you are advocating, which I think is clearly necessary, is absent because it's a private member's bill. That may speak to the process. In fairness to the sponsor, she's raised some very important issues, you're right, that require careful, balanced study and consultation with, for example, the provincial and territorial governments.

To speak to the issue, one of the challenges, and I think this has come up in all our testimony, is that family violence is a very nuanced and complex issue. One says, “Exactly where or what is abuse, and how far do we have to go?” I would not like to see a strong presumption saying...of course if there is serious family violence, yes, that should be a factor, or indeed could be the determinative factor. The Supreme Court of Canada, citing my own work and that of many others, has said that. The question is, how serious is the family violence?

When you start having very blanket and unnuanced legislative rules, such as saying, “If this happens, then automatically we're into a different situation,” I think that's highly problematic. I have a lot more confidence, frankly, in the judges who deal with these cases, starting at the Supreme Court and working down to the family courts, than I do in a group of politicians in Ottawa drafting clumsy legislation that purports to limit or direct how judges should deal with individual cases.

[Anthony Housefather, Liberal, Mount Royal, QC]

Okay. Well, I mean, a bunch of politicians in Ottawa are the people who are elected to actually draft that legislation, so I find that a bit weird as a comment, Professor. Do you believe professors should be drafting the legislation, as opposed to politicians?

[Prof. Nicholas Bala]

I'm very comfortable....

I'm sorry if that sounded arrogant or offensive.

[Anthony Housefather, Liberal, Mount Royal, QC]

It did.

[Prof. Nicholas Bala]

I very much respect democracy, and I respect the process that's going on now. What I would suggest is that whoever is drafting legislation—clearly, it is politicians assisted by legislative draftspersons—should not have clumsy rules that purport to make absolute decisions, but rather allow judges to make the kind of nuanced decisions based on all the evidence that largely we have now.