Proceedings of the Standing Senate Committee on
Science and Technology
Issue 18 - Evidence - Afternoon meeting
OTTAWA, Tuesday, January 28, 1997
Upon resuming at 1:30 p.m.
The Chair: Our first witnesses are from the Canadian Bar Association. Please proceed.
Ms Joan Bercovitch, Senior Director, Legal and Governmental Affairs, Canadian Bar Association: On behalf of the Canadian Bar Association, I should like to thank you for this opportunity to present this brief on Bill C-41.
The Canadian Bar Association is a national association representing over 34,000 jurists across Canada.
The brief before you today has been approved by the Canadian Bar Association, prepared by our national family law section which has over 5,000 members across the country, and includes family law practitioners who represent both custodial and non-custodial parents and their children. The brief will be presented by Miriam Grassby, a lawyer who practices family law in Montreal; and by Stephen Andrew, a family law practitioner in Edmonton.
The submissions before you today fall within the CBA's mandate to improve the administration of justice and to improve the law. We would be happy to present it to you in its principle and then respond to questions as you may have them.
Mr. Steven Andrew, Past-Chair, National Family Law Section, Canadian Bar Association: The National Family Law Section of the Canadian Bar Association has been involved in the development of child support guidelines for several years.
Since 1991, we have prepared four submissions to the government on the subject of child support guidelines and another separate submission on the taxation of child support.
In our most recent submission on Bill C-41, the draft regulations that are before you today, we have expressed some concerns with the model being proposed for calculating awards.
Our primary concern is that the method of calculation would permit a situation where a child has needs which are not met by the guidelines, although a parent of that child could afford to meet those needs.
In spite of the concerns expressed since we prepared our first brief in 1991 -- and, my colleague will address them further in a moment -- the National Family Law Section is strongly supported and still supports the use of guidelines.
Properly calculated guidelines have significant promise and potential. Our support for the guidelines has always been conditional on awards being fixed at levels that will improve the standard of living for children receiving the awards. In this way, the guidelines can alleviate the problem of child property.
One factor which brought about the call for guidelines initially was that judges and lawyers across the country were often unrealistic when it came to determining the real costs of raising children. Rather than itemizing all the reasonable expenses related to a child's upbringing on a case-by-case basis, the guidelines can assess an average amount that parents at a certain income level can be expected to spend on their children.
Inadequate consideration of the tax consequences of child support awards was another problem that brought about the call for guidelines, which can take the impact of the taxation into account.
Guidelines can ensure that people in similar financial circumstances and with the same number of children are treated similarly. In turn, that fairness should increase respect for the child support system as a whole. Hopefully, a system which elicits greater respect will ultimately also have fewer problems in enforcement of child support awards.
The guidelines can also have an educational role, letting parents know what is expected and the normal contribution for a person in their income bracket. This is likely the promise of guidelines that we, as lawyers, appreciate most.
Unnecessary and protracted litigation occurs too often because one or both parties are uncertain about what amount will be awarded by the courts in their case. At times when awards were even more varied than they are now, this was an understandable response to the fact that such variation existed.
Litigation over child support continues to use up money that could be spent on supporting children, and the guidelines would reduce that unnecessary litigation. Parties would be able to more accurately predict what they are likely to pay or receive after going to a lawyer or to court and may be encouraged to settle their differences without resort to either.
Some of the advantages that we see with respect to the child support guidelines include its consistency, higher awards, fairness, predictability, reduced litigation and increased settlement.
Ms Grassby will now describe our views with respect to specific parts of the bill.
Ms Miriam Grassby, Chair, Committee on Child Support Guidelines, Canadian Bar Association: As Mr. Andrew said, we have spent several years working on the issues of guidelines.
The CBA has lawyers that represent custodial parents, non-custodial parents and children. Over the last five to six years that we have been looking at these issues, we have received feedback from people who have had different cases in the court and may have felt that there were injustices on either side. They have brought their points of view to bear. We have worked with them and produced them in our brief.
The CBA has been favourable to the idea of guidelines because we hoped that guidelines would alleviate poverty and make it easier for people to settle between themselves, without having to have recourse to lawyers, and certainly not in the way that we have had to do it in the past, where it has been lengthy and expensive.
We feel that a number of points in the legislation are excellent. One is the definition of the "child of the marriage." The amendment provides that children in pursuit of reasonable education will now be included as children of the marriage.
That has always been the case under case law. As this was not written specifically in the law, people who perhaps had enough money to pay for a lawyer could go to court and have a child who was attending school recognized as being a "child of the marriage" and have support for that child.
People with more limited access to the courts had more difficulty as the law was not specifically written down. These people would not have access to lawyers and would not have the benefit of having their children helped when children of divorced families often need help the most.
We feel that is a good addition to the law. It is the same as it has always been, however it is now clear for everyone.
The law permits -- and the guidelines are clear -- that if the child is earning money in the summer or has income, the parents will not have to pay everything; it will be shared between the parents and the child. The fact is, it makes it clearer and we support that.
We also support the fact that there have been add-ons for childcare expenses. There was some concern when the figures first came out that the amounts were low and the childcare add-ons have made it possible to go with these guidelines.
It is also beneficial that the idea has been put into the legislation and the regulations so that when you are looking at certain add-ons, the family spending pattern prior to the breakdown can be examined. It allows the judge to have discretion as to whether something is appropriate. The judge can say either no, the family did not live this way and it is too much for the child; or, yes, the child would have had that and the parents can still afford to give it, so they can divide it between the parents according to their incomes.
The regulations also address the issue of undue hardship, so that when you apply the guidelines, if someone is in a situation of undue hardship, he or she can ask that the guidelines not apply. There is a possibility to deviate in those situations.
At first glance, it may look to some people that only one income is being taken into consideration under these guidelines, but the truth is that it is like the old system. There used to be an order only against a non-custodial parent but the custodial parent was essentially being ordered to pick up the difference. If two children cost $1,000, and the non-custodial parent was ordered to pay $600, then the other parent was being ordered to pay the other $400. We have a similar situation here, where the figures do not include all the costs of the child, because it is presumed that custodial parents will be picking up the costs according to their income level on the guidelines. However, it makes it simpler to apply the guidelines when you have a chart where you only need to know one income level.
You can see that by looking at the chart. In Ontario, a non-custodial parent making $45,000 per year and who has one child will be only paying $382 if there is no childcare. If the mother is making $25,000 and the father is making $45,000 -- that is, where you have a gross family income of $70,000 -- there is probably more than $382 being spent on that one child. It is clear that that $382 does not include all the child's expenses and that the custodial parent is paying the difference, which, according to the guidelines, would be at least $235 per month.
The Canadian Bar Association has a problem with regard to the issue of undue hardship because we feel that when there is a significant disparity of income, that should be a reason of its own to say there is undue hardship. When the custodial parent and the children are living at a much lower standard of living than the non-custodial parent, the law should allow the custodial parent the possibility of deviating from the guidelines and receiving a higher amount. We have been asking for this, and we continue to do so, but we are still of the opinion that we must go for guidelines, and that the guidelines as they stand now at least allow us the possibility of continuing with monitoring so that if our concerns prove to be correct, some changes can be made.
While we feel that the concept of undue hardship is not sufficiently developed in cases where the custodial parent is the poorer parent, we point out that undue hardship for a non-custodial parent should also open the door to a deviation. If, for example, you have a situation where the non-custodial parent earns $45,000 and the custodial parent earns more, and where that non-custodial parent ends up being at a lower standard of living and there is an issue of undue hardship, there should be a possibility for them to say, "This is not working out and I would like a deviation."
Another area we would like to deal with is the issue of joint custody and whether access should affect the basic amounts of the guidelines.
Essentially, the amounts in the guidelines consider that access is being exercised. Most parents visit their children, take them out and have them for overnights. Those figures are worked into the guidelines. If you look, for example, at the non-custodial parent earning $45,000 per year and paying $382 for one child, there is money left over to go out every second weekend and to provide a room for that child.
To change the application of the guidelines based on days of access would be a nightmare. I can tell you that as a practising lawyer. Some of my least favourite cases are where I have had to argue whether 40 per cent of time includes sleeping, or school time, because some people do not count time in the same way.
There is a lot of litigation over access, and yet sometimes access is not used. If the guidelines are tied into access, it would be difficult to come back and to say that the money was decided based on some visits or so much access but, in fact, it is not being exercised.
Again, the law permits a parent, through the concept of undue hardship -- that is, if there is hardship caused by there being a lot of access, or a lower income, or a high cost of access -- to come in and say that the guidelines should not be applied. However, to say in every case that access should be counted would not be appropriate. We feel that the government has made the right choice by not tying the two together. Lawyers across the country are definite on that.
Finally, I should like to say something about the issue of cost. I do not know if this is true in the rest of Canada but in Quebec, we will have a provisional decision and then we will have a merit decision, so we often have child support decided twice. I recently had a case where we fought over just about everything because the non-custodial and custodial parents had different views of what things should cost. The judge decided the issue provisionally and ordered that the amount to be paid was $900 net. When the divorce rolled around one and one-half years later, we still did not agree. I represented the custodial parent of the two children and we were ready to take $900, but there was no agreement. We went back before the judge and the judge miraculously said that it will be $900 net. In fact, the guidelines for the same figures say it will be $900 net. The difference between the guidelines and the court process was the cost. It cost a tremendous amount of money to go to court. Each time you go in and argue over these different issues, you can spend anywhere up to $6,000. If you can point to a chart and say that this is what it will be, with the possibility to deviate in exceptional circumstances, children will be far ahead.
The CBA has been pro guidelines, but we are not pro just any guidelines. We do feel there should be improvements with regard to the issues I mentioned, where there is a significant disparity of income, but if those changes were to give any less money to children, or if they were to be more restrictive of the definition of children of the marriage, the guidelines, per se, would not then be necessarily acceptable.
We must be very careful that we do not legislate poverty and that we legislate a better situation for children in the country.
Senator Jessiman: The first witness said that the Canadian Bar Association had given four sets of guidelines to the government. Is that correct?
Mr. Andrew: We had given four resolutions to the government, or input on four different occasions.
Senator Jessiman: They were not four different sets of guidelines? All the guidelines were the same?
Mr. Andrew: Yes.
Senator Jessiman: Quebec's guidelines are different from the Canadian guidelines.
Ms Grassby: Yes. I can speak to that.
Senator Jessiman: They take into account the income of the custodial parent.
Ms Grassby: We have been given draft guidelines in Quebec. They are not in final form yet. They do take into consideration both incomes. I can tell you the following. Up to $70,000 or $80,000 of income, there is hardly any difference. It is amazing. When you apply the federal and Quebec guidelines and do the calculations, there is hardly any difference.
Senator Jessiman: I accept that. For the next question, I am assuming that the custodial parent is a woman, because we were told that that is so in 85 per cent of the cases. I think that will change, but we are accepting that as the evidence before us.
In the case where they have applied the guidelines under Quebec, you say it is the same as federal guidelines. However, if the custodial parent increases her income, she pays more of what must be paid for the child. Under the federal guidelines, if the custodial parent got more money, she would not pay anything at all because only the custodial parent must be taken into account.
Ms Grassby: You are asking me a question?
Senator Jessiman: I am telling you that as a fact, as I understand it. Do you disagree?
Ms Grassby: Under the federal system, if a custodial parent's income increases, one can presume that the children are benefiting from it because she is paying the amount of the guidelines.
Senator Jessiman: I agree with that.
Ms Grassby: If you look under Quebec, if the income were to go up by $3,000 or $5,000, the difference would be minute. When you do both those income levels, all of a sudden you have tremendous arguments about how things will apply.
Recently, I settled a case where the lawyer said spontaneously said to me, "Let us use the federal guidelines because they are so much more simple."
Senator Jessiman: They may be more simple, but they may be inequitable.
Ms Grassby: She was representing the non-custodial parent.
Senator Jessiman: The present Divorce Act says that both parents have a responsibility to pay for the maintenance of their children. The government is now taking that out. They say that income should be considered, but they are not both responsible to pay.
Ms Grassby: I do not believe that is actually the case because when you look at the guidelines, it is clear that the custodial parent is also contributing.
Senator Jessiman: They are paying. That is in the guidelines but not in the act.
Senator Cools: It is coming out of the act.
Senator Jessiman: Sections 15.(8) and 17.(8) of the present Divorce Act are being taken out of the act.
Ms Grassby: When they say that the guidelines are being applied, when the non-custodial parent pays, it is not the full cost of the child. The income of the other parent is being taken into consideration. It is clear from the guidelines that when you apply how decisions are made with respect to child care, added expenses and schools, everything is done on the basis of a comparison of income on a pro rata basis.
Senator Jessiman: You are saying that these guidelines are set out on a pro rata basis.
Ms Grassby: I said that the add-ons are all on a pro rata basis.
Senator Jessiman: I want to talk about add-ons. Do you know Professor Ross Finnie?
Ms Grassby: Yes, I know him.
Senator Jessiman: He was working on the guidelines with the government until he disagreed with someone in the government, and then he no longer worked with them any more. He says that those extra expenses you refer to as add-ons are already included in the guidelines so that the non-custodial parent is paying twice for whatever part he may have to pay towards those add-ons.
Ms Grassby: Senator Jessiman, if you have a non-custodial parent making $45,000 per year and he is paying $352 for a child, do you think that also includes childcare when childcare can cost $400 or $500 per month? I do not think that is correct.
Senator Jessiman: I am only telling you what he told us, and he worked on the guidelines.
Ms Grassby: There may be other opinions.
Senator Jessiman: There may well be.
The guidelines, in part, establish a fair standard of support for children to ensure that after divorce they continue to benefit from the financial means of both spouses. However, the act specifically says that when you make an order under the act that provides for the support of a child of the marriage, they should recognize that the spouses have a joint financial obligation to maintain the child and apportion that obligation between the spouses according to the relative abilities to contribute to the performance of that obligation. The obligation of both parents is a far cry from what is contained in the guidelines. It is a completely different philosophy.
Ms Grassby: I disagree with you in a sense. Although it may be that way on face value, since the guidelines take into consideration both incomes in the way that they do --
Senator Jessiman: But how could they possibly? Some women do not make any money, and they will get spousal support. The guidelines are the same. It does not matter what the custodial parent makes. She could be a millionaire or she could have nothing and those guidelines are exactly the same. It is the non-custodial parents' gross income that is being taken into account, without any consideration of what the custodial parent has. How do you say that they are built in? How could it be built in?
Ms Grassby: Children in an intact family benefit from the lifestyle of both parents. In a divorced family, the guidelines do not reflect all the costs of the children.
Let us assume a person earns a certain income and makes what is considered an average contribution. If that person experiences undue hardship because of what they are paying, they can ask to pay less. The custodial parent who does not have income and is married can ask for spousal support. We are suggesting that if the custodial parent differs significantly in terms of lifestyle with the child, they, too, should be able to ask to deviate from the guidelines.
Senator Jessiman: You mean the other way around, do you not?
Ms Grassby: No.
Senator Jessiman: You are saying that if the custodial parent has a lot of money, then she should apply, but it is the non-custodial parent who should be applying.
Ms Grassby: If the custodial parent does not have a lot of money, she also should be able to say -- as should the non-custodial parent -- "I would like the guidelines to be deviated from because I require more."
Senator Jessiman: Because there is a hardship?
Ms Grassby: Yes.
Senator Jessiman: I understand that.
Senator Cools: How does one assume a financial contribution from someone else? For example, let us assume a particular female has no income at all, and the non-custodial parent is contributing $2,000 a month. How do you assume her financial contribution? This is a miraculous thing. I wish someone would explain it to me. How does one assume dollars? How is that done? If we can find a way to do it, I would like someone to assume that I have paid all my bills.
Ms Grassby: No one is suggesting that when there is no income for the custodial parent, she should be contributing something. She would probably be asking for spousal support.
Senator Cools: We have been told that the financial contribution of the custodial parent is assumed. We are discussing the essential question that we are repealing from the current Divorce Act, as passed in 1968 and amended in 1985, namely, two sections that impose a financial obligation on both parents to pay support. We are repealing that. This is what the senator has been asking you about for the last 20 minutes. We are repealing sections 15.(8) and 17.(8) from the Divorce Act. We are replacing that with a statement in the guidelines which say "we assume..." That is the assumption everyone is talking about. How does one assume a financial contribution? That is in the first instance.
The second instance is the following. If the non-custodial parent is earning $25,000 or even $50,000 and the custodial parent has a salary of $125,000 and, in addition, is married to a millionaire, where is the assumption there and how does that work? This is what we are attempting to get at.
Ms Grassby: That last example is a perfect example of where undue hardship would be argued by the non-custodial parent. Regretfully, if you look at the statistics in the cases, the reality is that frequently the custodial parent has a lower income than the non-custodial parent today.
Senator Jessiman: It is working in a different direction, though.
Are you familiar with the 1995 report and recommendations on child support from the Federal/Provincial/Territorial Family Law committee?
Ms Grassby: I do not believe I have read them recently.
Senator Jessiman: But you were familiar with them?
Ms Grassby: I cannot recall whether I went through them.
Senator Jessiman: I am now talking about a percentage custody with one parent and another percentage for the other parent, maybe 60/40. In these recommendations, they said that where custody arrangements provide that each parent has fiscal custody of or access to the child for at least 40 per cent of the time, the court should have the discretion to depart from the formula amount while considering the increased costs of such arrangements and the actual distribution of expenses between the parents.
Does not that seem to be reasonable? This recommendation was from a joint committee in 1995.
Ms Grassby: I am aware of that recommendation. We talked about it. We waited, we discussed it, and we thought about it. We then went back to lawyers across the country.
As I tried to tell you before, one would think that 40 per cent is an easy figure to calculate, but once you get into talking about percentages, they are hard to establish. The government has decided to say that in issues of joint custody where there is basically a 50-per-cent sharing of time, one then applies the guidelines across the board and then looks to see how to take into consideration the extra costs.
We must deal with this issue specifically in Quebec, namely, that because you have children for an additional period of time in terms of access does not necessarily mean that you are picking up all the extra expenses.
Senator Jessiman: But you might be.
Ms Grassby: You must understand that there are many custodial parents who pick up far more than their share of expenses, for example, more than their pro rata income. It just happens that way. Sometimes they pick up more. Sometimes the non-custodial parent, as a result of having a little extra access, may pick up a few more expenses also. As long as the income permits it, there is no problem. If it is a question of undue hardship, then he or she can apply to the court and say, "Because I am seeing my child 40 per cent of the time and I only make $35,000 a year, I do not have enough money. I need a deviation from the guidelines." It is open to that.
It is the same where the custodial parent is making $25,000. You will have a different situation if the non-custodial parent is making $45,000 and seeing the child 40 per cent of the time or making $95,000 and seeing the child 40 per cent of the time. We can agree that the mother, who is the non-custodial parent who is seeing the child 40 per cent of the time and is making $95,000, can afford the costs of that access.
Senator Jessiman: He is paying that already under the guidelines. If he makes $95,000 gross income, the guidelines indicate what you pay.
Ms Grassby: That is right. He can afford to pick up the costs of his access if he has more access than the ordinary person.
Senator Jessiman: He can pay exactly the same, in your example, if he does not see the child at all. That is terribly unfair.
Ms Grassby: Do you then want to say that the custodial parent can do more or less with the children? We need a system that can work in most situations. If you want to talk about access and percentage of times, in every case you will have an argument about how much time. It becomes a vicious circle, believe me, as a practising lawyer. You cannot decide support until you decide access. Every case will be contested and you will be spending money on lawyers.
Senator Jessiman: Professor Finnie suggested that he could have guidelines such as the guidelines that we have now, where the non-custodial parent pays those dollars. That is assuming that the non-custodial parent is contributing nothing other than the amount the guidelines says he should pay. But if he actually has not only access but also custody for 40 per cent of the time, for example, for four weeks and then the mother has them for six weeks <#0107> and, there are cases like that where the non-custodial parent has rooms for the children, feeds them and does everything the other parent does -- it is costing him money and it is saving what you call the custodial parent because she has the child 60 per cent of the time.
Professor Finnie is suggesting -- and, it seems reasonable to me -- that if we had guidelines for that as well, yes, you may have trouble determining whether it is 40 per cent. I do not see how that would be any more difficult than trying to prove 50 per cent. You are just pulling out a number. If the court says that you have custody 40 per cent of the time and specifies which weeks and which days, then there should be some adjustment.
Senator Losier-Cools: You would say, Senator Jessiman, that we should put down child support for extended child access?
Senator Jessiman: I am not saying that it should be put down. I am saying that it depends on who pays it. If the child support is $20,000 -- and let us assume that it is the mother who gets the $20,000 -- then the husband, who is the non-custodial parent does, not see them at all. But if the parent has them for 40 per cent of the time, then he should get credit for 40 per cent of the $20,000. If that creates a hardship for the mother, then let her bring an action.
Senator Cools: Yes, or let her give the child to him.
Ms Grassby: When you look at those situations, you must balance off whether you end up having essentially no guidelines, because every time is unique.
Senator Jessiman: I think guidelines are a good thing, but you should have other guidelines, too, just as Professor Finnie suggested.
Ms Grassby: I am sorry, I lost track of my answer. It slipped away.
Senator Forest: There have been some indications that the add-ons which we are talking about have already been included in the guidelines. Is that correct?
Ms Grassby: No. You are talking about costs, which vary. I gave Senator Jessiman an example regarding childcare. I do not know the cost for it in Ontario, but in Quebec it can be $400 a month. When you look at these guidelines, for someone making $45,352, childcare is not in there. If it was in there, the guidelines would be terrible. What you have as add-ons are things like childcare, which, in a regular family, costs a lot of money for a period of time and then goes away. You also have add-ons for certain types of schooling and certain extraordinary expenses. No, they are not included.
Senator Forest: You talked about assuming that the custodial parent is making a financial contribution. When that parent has practically full-time care of the child, surely that is unpaid work that has a financial value to it.
I cannot understand why some people have the idea that the custodial parent is not making a financial contribution in that respect, regardless of the dollars. There is a financial value to what the custodial parent is paying. Surely that is a contribution.
Ms Grassby: I do not think one can disagree that it is a contribution. However, I am not sure that child support and the guidelines are the way of addressing it.
One of the ways of addressing it is through spousal support, which is a different issue and is one where the court has discretion after establishing the amount of child support. The other way of addressing it is that, if there is not a marriage and there is no right to spousal support, and if there is a large discrepancy because she is working in the home, there may be a question of undue hardship. That is one of the things we have asked for if there is a disparity of income. We were not thinking of it in terms of a non-working spouse but in terms of a low-income spouse.
Senator Phillips: You indicated support for the "child of the marriage" clause. As I understand the minister's testimony before this committee, that would include university education. In other words, there is a legal obligation placed on the non-custodial parent for university education.
Is the judge sitting on the case required to provide a university education for the child?
Ms Grassby: I think there is a distinction here.
Senator Phillips: I just asked for an answer.
Ms Grassby: At the present time, for a child who is in university and who is living with a custodial parent, the judge will give --
Senator Phillips: My question is, is the judge required?
Ms Grassby: Is he personally required?
Senator Jessiman: Is he required by law now?
Senator Phillips: Not by case law.
Ms Grassby: Are you asking me, if someone is not divorced, must they pay for their children to go to university?
Senator Phillips: Is the lawyer or the judge, or anyone else involved in the case, required to provide --
Ms Grassby: This change does not provide that someone must pay for university education per se or fees. If a child is at university, it provides that that child still has rights to some support in living with the custodial parent. There is right to support. It does not mean that the father or the mother must pay for university. It means that they have a right to have some support, and there is a right for the judge to look at the guidelines to see if they will or will not apply. For example, if a 21-year-old is working and is earning money, then the guidelines will not apply per se. The judge has the discretion to order less. It is not automatic because of the way it is in the law. You must be careful. It is not that every child will have the right to have university fees paid for them. It is not that at all. It is just that they have a right to support. If the judge has children living with him, he may be choosing not to pay their university fees, but he is still providing a roof and food.
Senator Phillips: One well-known lawyer from Toronto appeared before this committee and asked when this responsibility ended. The child was now 24 years of age and he was beginning to wonder when that responsibility would end.
Ms Grassby: I was talking to my daughter just last night on this issue. She is in a Ph.D. program.
Senator Jessiman: You are the custodial parent.
Senator Phillips: This is a section that is causing me difficulty.
Ms Grassby: It is not easy for children between the ages of 17 and 21 to navigate through a divorce situation. As a practising lawyer, some of the saddest things I have seen are these terrible discussions about whether or not your father will support you. Generally speaking, non-custodial parents want to help their children. You do not have that much debate over it. They want to help with their child's university, just like most parents in intact families. This article will be there to make it clear that, for those who do not want to do it, there will be some guidance.
Senator Phillips: As the cost of university education increases, do you think that truck drivers, or members of our Senate staff, will be able to meet that section? I do not think they will.
Ms Grassby: It does not say that they must pay university fees. It says that a child attending university is still considered a child of the marriage and has a right to have the judge look at his needs. The judge will take into consideration his income and the income of the child. It is a good thing that is being added to the law.
Senator Phillips: I should like to reread the minister's statement and yours, because I do not think they are in agreement.
Senator Losier-Cool: We have been talking about custodial and non-custodial parents and the way that effects the guidelines. Are you aware of guidelines with which both groups agree, or is it possible to have guidelines that would be agreed to by both custodial and non-custodial parents? Does such a thing exist somewhere?
Ms Grassby: You have hit on one of the problems. When you are making a system and trying to have guidelines, you will never have everyone agree that it is perfect for everyone. That is why the government has a committee which will monitor it and, if there are things which do not work or if there are surprises, they will able to temper them. The attempt is to make it better for most people.
Senator Losier-Cool: The law is for most people. Would the CBA or you say that what we have here in front of us is a good compromise?
Ms Grassby: I think it is. We still have things that we would like to change. We would like to put more money into children and custodial parents in the few places where there is a discrepancy.
Senator Losier-Cool: We cannot make a law for an isolated case. That is the problem.
Ms Grassby: We can work with them, and they are acceptable as they are.
Senator Cohen: The bill states that, in five years' time, the government will revisit the guidelines and the legislation to see how it is working and if changes need be made. Many of the witnesses say that five years is too long and that it should be two to three years. One woman said that six months would tell the whole story.
Could I have a legal opinion from you as to what you feel about that situation? We are struggling with many areas which are not clear.
Mr. Andrew: I think that five years might be too long, but I cannot see it being less than three. You will have a start-up period of time before you have enough people going through the system. In order to know what you will study, based on my experience, you need three years. That will go by in no time.
Ms Grassby: I understand that a group is being formed at the present time to monitor what is happening. I am not sure that they are waiting for the five-year period to do that. This group will have the role of a watching group.
Senator Forest: The limit is five years. There is nothing to say that it cannot be done within that five years.
Ms Grassby: Five years may have been hopeful; now there is a recognition that there must be an earlier review.
Senator Jessiman: Would you not think that guidelines should be just that, namely, that they should be guidelines? Judges would have the guidelines. They would look at each individual case and adjust each case compared to the guidelines.
Ms Grassby: If you have that excuse, you have the worst of both worlds. In a couple, one will say that the guidelines should not apply, and they will take it into court. The more vulnerable person financially who does not have the benefit of the assuredness of it may have to pay more court fees because of the other.
If guidelines are presumptive, you pretty much know what will happen except in exceptional cases, and you can come to agreement. If you have "maybe so" guidelines, they are not perfect and, in addition, you do not know whether they will apply. You end up paying for lawyers and the result is something which is not tailored perfectly. The tailoring is for those people who can afford to go before the courts. Some have said that the guidelines will be good for the CBA. The fact is that many people will not need to have contested cases with affidavits talking about what they spend on each expense of the child. It will make a difference to them.
Senator Jessiman: How have judges been reacting to the fact that there is no flexibility?
Ms Grassby: Different judges react in different ways.
Senator Cools: No kidding.
Ms Grassby: We agree on something.
Senator Maheu: Many of those around this table seem to have the feeling in the back of their minds, "What if?" The question refers to specific cases or possible scenarios which, for governments, is not the best way to go.
Am I right in saying that the CBA supports a law which would work in most situations? In listening to my colleagues around the table, they seem to have some objection that applies to a specific case or to a specific set of circumstances. Does the Canadian Bar Association agree that this particular set of guidelines, which will become regulations, is the best way to go in most situations? I think the term "guidelines" is misleading.
Ms Grassby: We see how they could be better in certain situations. However, we accept that the principle of guidelines is important. These guidelines do as well as we can do at the present time. We accept them as they are. Anything less would not be acceptable. What we are doing here is making it much better for many people.
Senator Cools: You seem to be extremely supportive of Bill C-41. Is there anything in the bill that needs improvement? Do you have any recommendations as to how we can improve it?
Ms Grassby: We have prepared a brief in which we have some recommendations.
Senator Cools: Many witnesses go to a lot of work in preparing their briefs, which do not get on the record. I am trying to allow witnesses an opportunity to get their hard work onto the record.
The Chair: There are 14 recommendations at the back of the brief.
Senator Cools: It will not be on the record unless they read them into the record. Many witnesses do not realize that unless they speak to their brief, it remains just a piece of paper that we circulate.
Ms Grassby: I have brought out the highlights of our position and I am satisfied.
The Chair: In your fourteenth recommendation, you seek an amendment to establish a reasonable time for the repayment of debt. Is this for the non-custodial parent who is reneging on payment?
Ms Grassby: There can be a situation in which guidelines do not apply because there is a substantial amount of debt on the part of the non-custodial parent. It states that the judge can see a period of repayment of debt so that one cannot carry that debt for 20 years and say, "I cannot pay." We are suggesting that the judge give a time frame in that regard.
The Chair: Thank you for your contribution to our discussion today.
We will now hear witnesses from the Department of Foreign Affairs and International Trade.
Mr. Jocelyn Francoeur, Director, Security, Policy and Entitlement, Passport Office: First of all, I would like to thank the members of the committee for this opportunity to discuss the implications, for the delivery of Canadian passports, of the legislation proposed by the Minister of Justice.
Before going into the specifics of the proposed legislation, I should like to explain the role of the Passport Office and the legal framework in which it operates. The Passport Office is a special operating agency of the Department of Foreign Affairs which delivers passport services to Canadians. While doing so, we strive to safeguard the government and, hence, the interests of its citizens, by contributing as one of the lead players in the international forum where specifications for travel documents are formulated and agreed upon.
The policy surrounding the process of passport applications is derived from the Royal Prerogative. The procedure to apply for a passport and the grounds to refuse or revoke a passport are found in an order made by the Governor in Council in 1981, entitled the Canadian Passport Order, as well as in other documents such as the Passport Policy Manual and the Consular Instructions Manual.
I will now turn to the specifics of Bill C-41. There are two aspects which I would like to address.
First of all, I will focus on the Passport Office's view of the general policies behind the proposed legislation and secondly, I will discuss the scope of the legislation and its impact on Passport Office operations and financial resources. Let us start by considering the Passport Office's position on the Justice minister's initiative.
Throughout the years, the policy of the Passport Office, as reflected in the legal framework I just mentioned, has been tailored to meet a specific objective, namely, to enhance and protect the reliability and integrity of the Canadian passport as an internationally respected travel document. This is achieved by observance of high standards both in terms of entitlement determination and on the research and development front, or what I have labeled the "passport recipe."
The initiative you are considering today relates to the first aspect of the integrity of the document; that is, the entitlement criteria. The Passport Office has always relied upon Parliament and the Royal Prerogative to determine the rules of entitlement. With Bill C-41, the legislator wishes to bring the Passport Office into contribution to help resolving a societal problem which it identifies as of prime importance to Canadians: the enforcement of support orders.
It is not for us to comment on the merit of the proposal, but to implement it within the full meaning of the law.
I should like to assure this committee that the intervention of the Passport Office in the area of family law is not new. Our policy already provides for specific procedures where passport services are requested in respect of children under the age of 16 whose parents are divorced or separated. In such instances, we ensure that both parents are aware of the passport application, and that issuance is consistent with court orders pertaining to custody.
I would now like to touch on the impact the proposed legislation will have on the legal environment in which the Passport Office operates and on the operational and financial implications.
The Passport Office has been extensively consulted on this piece of legislation, which will require us to take certain actions, namely, refusing to issue passports and suspension of already-issued passports.
It is important to note that the Passport Office will have no say in determining the appropriateness of denying passport services to a person in arrears under a support order. All licensed denial applications will be initiated by provincial enforcement services and addressed to the Department of Justice, the federal coordinator for all federal licences considered in the scheme. Only then will that department inform us of the receipt of the application.
Upon receiving that information, the Passport Office is obliged to take one of the three following actions: refuse to issue a passport, refuse to renew a passport or suspend a passport.
It is worth mentioning that suspending passports constitutes a new mechanism for us. Currently, the Passport Office has the authority to revoke passports but not to suspend. The suspension will permit faster resumption of passport services where a request to terminate the enforcement measure is made. We will reactivate the existing passport rather than issue a new one.
There will be, however, a cost to the Passport Office in administering and processing licence denial applications. As mentioned before, the Passport Office is a special operating agency. We operate on a revolving fund. The cost of providing passport services and, if required, of taking enforcement measures, must be carefully examined. Since the beginning of the decision-making process that led to Bill C-41, the Department of Justice has been most comprehensive and supportive of our financial concerns. We are pleased that arrangements are about to be concluded under which all costs incurred by the Passport Office in meeting its obligations under Bill C-41 will be fully refunded to us.
This concludes my comments. I will be happy to answer any questions you may have, to provide any necessary clarification or to discuss related issues.
The Chair: Without discussing Bill C-41, can you tell us what groups of people in Canada today cannot apply for or receive a passport?
Mr. Francoeur: I do not want to sound too technical, but it is a technical issue. The grounds to refuse are essentially set out in section 9. We must get documentation that proves that the applicant is a Canadian citizen. Therefore, we turn down an application when we doubt that the applicant has submitted the necessary information.
There is another ground which gives the Passport Office discretionary authority to refuse to issue, namely, when someone stands charged in Canada with the commission of an indictable offence. The same would apply when someone stands charged with having committing an offence abroad, which, if committed in Canada, would constitute an indictable offence.
Of course, when people are serving a term of imprisonment or are forbidden to leave Canada, we cannot issue a passport. Someone who has been convicted of an offence under section 58 of the Criminal Code is forbidden issuance. Section 58 of the Criminal Code is in relation to forgery of passports and altered documents.
When someone is indebted to the Crown, we can refuse to issue a passport as well. However, we are not the collection agency of the federal government. In this instance, money owed to the Crown means money owed to the Department of Foreign Affairs and International Trade. That is to say, someone would have received financial support from a post abroad in order to facilitate repatriation when he or she is in trouble while abroad. Finally, a passport is not issued when someone holds a valid passport which has not been cancelled.
Those are the grounds to refuse to issue. The grounds to revoke are the same as those to refuse. Any motive to refuse to issue constitutes a motive to revoke a passport as well.
There are additional motives to revoke a passport. They are when an individual is using the passport to assist him or her in committing an indictable offence, permits another person to use his or her passport, has obtained a passport fraudulently, or has been stripped of citizenship.
Senator Bosa: Would you issue a passport on an emergency basis to someone who is in one of the categories you have mentioned, for example, where a close relative, perhaps a parent, has died, in order to allow them to attend the funeral?
Mr. Francoeur: The Passport Office has the discretionary authority to issue passports of limited validity -- that is, when a person does not meet all the criteria but there exists proof that eventually he or she may be able to, or there exists compassionate grounds, the Passport Office would have authority to issue a limited validity passport, the duration of which would be constrained.
Senator Bosa: Did you say in your opening remarks that you needed special legislation to revoke the passport of someone who was in default of custodial payments?
Mr. Francoeur: What I indicated in my opening statement is that the Passport Office has always relied on Parliament and the royal prerogative to set the grounds for revocation or withholding of passport services. Those grounds are defined in the passport order. This bill is adding to the grounds under which we will not issue a passport or suspend one. In that sense, Bill C-41 is adding another ground that we must consider in determining the entitlement of an applicant for a passport.
Senator Cools: I have a couple of questions which will take a few minutes in the development. You laid out to us the authority under which passports are issued to anyone in this country. Basically, they are prerogative powers. I understand that very clearly. You then went on to grounds on which you issue passports. You then moved from there to grounds on which you revoke.
You have also made the point that what Bill C-41 is empowering you to do is totally novel in your experience.
Concerning the grounds for refusing to issue, you stated that one is to persons serving a term of imprisonment. Is that a person who is detained in the penitentiary, or does that also include a person who is out of prison and on parole? You did not make it clear. Could you just clarify that, please?
Mr. Francoeur: You are right. Obviously, it is someone who is on parole or whose freedom to travel is limited by conditions of bail, and so on.
Senator Cools: I am hearing you say that you do not issue passports to inmates on parole. Let us go in the other direction. If a person who already has a passport is in prison, do you revoke it?
Mr. Francoeur: The short answer is no.
Senator Cools: Right. I know where I am going.
Mr. Francoeur: May I explain?
Senator Cools: Yes, you can explain. We want to know about all of the 10,000 inmates who are currently in jail and whose passports have not been revoked.
The Chair: They do not all have one.
Senator Cools: Many of them do. I would also like Mr. Francoeur to clarify the situation where people who are on parole do get express authority to travel abroad, especially for bereavement. It does happen.
My next question deals with the issue of truckers who are back and forth across the Canada-U.S. border driving their rigs all the time and the authorities that are given to them to move. I am talking about their mobility rights. We all know that with the Charter of Rights, many of the laws dealing with parolees and inmates have changed since 1982. You can no longer restrict the mobility of inmates unless that mobility has something to do with the crime or offence that they have committed or may be committing.
It used to be that the courts would draw a radius for them. They could only drive 35, 40 miles. You know where I am going.
Mr. Evans Gérard, Legal Counsel, Department of Foreign Affairs and International Trade: The passport order regarding the grounds to refuse or revoke states that the passport office "may" refuse or revoke, so there is discretion there. That is as opposed to Bill C-41, which says that if there is a suspension application, we "shall" suspend. That is to say, we will have no discretion. I wanted to make that clear.
Senator Cools: I understand that you have no option but to obey the statute. I am not disputing that at all. I am trying to compare this power that is being handed over to you in Bill C-41 and the normal practice that you have in the instance of inmates -- that is, those who are currently serving time and those who are on parole.
Mr. Francoeur: I will try to address, as precisely and briefly as I can, the many questions you have put forward.
The most important question that our organization is asked regularly is: Why is the passport office is not stripping the passport of anyone who has committed an indictable offence and who has been found guilty? A short answer to this is that the commission of an indictable offence has not been deemed by the legislator to be a ground to embark on such a road.
We have clients who come to us and fill in the application form to get a passport. They admit that they have committed an indictable offence. They were charged with impaired driving. They want to know what effect this would have on their right to get a passport. We deal with those situations. By the same token, are you to extend the long arm of justice in another fashion that has not been contemplated by the legislator in the first instance?
The passport office is vested with a discretionary authority. To the best of our ability, we examine every circumstance of every applicant. We are not the police; we are not the enforcers of every piece of legislation, including the Criminal Code. We rely on law enforcement organizations to come to us and say, "We do not want Joe Smith to leave the country." We put Joe Smith on the hit list, and when and if Joe Smith comes to us and wants to get a passport, we will deny him the service.
However, we cannot take upon our tiny shoulders the job of getting the information and of being the police so that we would be mindful of every offence that anyone has committed at any point in time. That is the brief statement I wanted to make first.
You have also alluded to the crossing of the United States and Canadian border. There is a long-standing, privileged practice between our great country and our friends south of the border. Basically, we do not need travel documents such as passports to cross the border because both governments are prepared to rely on pieces of identification that display a photograph. Documents such as baptismal certificates are increasingly questioned, but if you have a medical insurance card issued by a provincial government with your photo on it, and your driver's license with your photo, and documents like that, you will be able to cross the border without any questions.
Senator Cools: That is the case if you are white. Do not believe for a moment that every person who lives in this country can go back and forth across the border. As soon as the officials hear people's accents and see features and colours, they know that they were not born here. They then require proof of citizenship. Let us not kid ourselves for a moment that everyone can go back and forth easily. But that is another issue. That does not go into this business because, for the most part, those people have passports, so they do not mind producing them.
In the instances of the revocation of passports, it seems that the revocations are usually related to instances of violations of the use of the passport based on what I can see that you are pointing out here. The first one you mentioned was using the passport to assist in offences. The second one was having obtained the passport illegally. There was a third one, but I was not fast enough to catch it.
In your experience, is this the first time where passports will be taken or offences will be suspended that are not even of a criminal nature or related to the improper use of the documents themselves?
Mr. Francoeur: I do not think it would be the first instance because the Passport Office, as I mentioned in my opening statement, already has a policy to carefully monitor the applications for children under the age of 16 who are the subject of court orders.
It could happen where a passport is issued to an infant that the court order that would authorize us or upon which we could rely to issue a passport could be struck down by another court. In such an instance, then, once the new holder of the custody rights comes to us with a new judgment, we would embark on the road of revocation. This has nothing to do with Criminal Code enforcement.
Senator Cools: With respect to some of the precautions and care you are taking, are they not meant to guard against abductions in the case of children under certain ages? Is that not what the department is vigilant about?
We had a woman give testimony a few weeks ago. Her name was Edith. She spoke about her husband. He left the country a long time ago. There is a prerequisite that the issuance of passports to children of a certain age must be done with the agreement of both parents. That is perfectly standard. However, where there are custody orders, people worry that there may be abductions or people may move to other countries. My understanding is that your vigilance in that area is still related to a potential for crime, which is an abduction.
Mr. Francoeur: That is certainly one of the many aspects of which we are mindful, but I would not say that our actions are solely driven by this preoccupation. As a governmental organization, we try to be mindful and respectful of court orders. Most of them have nothing to do with that.
Senator Cools: Can you tell us of a way in which you are doing this sort of thing where your intention is not the avoidance of some terrible wrongdoing? Perhaps you could point me in the direction of where a particular statute empowers you to act.
Mr. Francoeur: I have identified as a ground to refuse to issue a passport the fact that someone owes money to the government. I do not know if it is up to me to attempt to qualify what is grave and not grave. Technically, I have the discretion to refuse to issue a passport to a person because he was loaned $50 in San Diego 10 years ago when his wallet was stolen.
Senator Cools: The clause says there is no appeal.
The concept of prerogative powers has been mentioned. Unfortunately, some people no longer know what prerogative powers are, so perhaps we can put some of that to the deputy minister.
In terms of the current mandate and the current authority your department is acquiring under Bill C-41, I must tell you that I do not like that at all. However, that is beside the point.
These powers are issued under the prerogative. The bill says that with respect to any actions in your department, there is no appeal. Clause 71 states:
Notwithstanding the provisions of any other Act of Parliament, of any regulation or order made under any other Act of Parliament or of any order made pursuant to a prerogative of the Crown, no appeal lies from any action taken under this Part.
This is even more Draconian if one understands this clause. There is no appeal.
In the old days, were there not special appeals to the King? When inmates were convicted, they used to be restricted to travel. Did they not have appeals to the authorities to recover travel documents?
Mr. Francoeur: I do not know of the good old days. The truth is that the passport order, which gives or vests the Passport Office with a discretionary authority that is being exercised now, does not set a special mechanism of appeal. Our decisions, like any decision of an administrative body, are subject to judicial review.
I do not want to lose you on legal and technical grounds, but I fail to appreciate that the lack of an appeal mechanism in the passport order would be such a problem. Judicial review is available. Every decision that a Passport Office takes is subject to judicial review.
I appreciate that in the instance of Bill C-41, a specific clause has been created saying there is no appeal. I leave that to the wisdom of Parliament.
Senator Cools: That is what we are doing. You are talking to the right people.
With respect to this business of removing licences by prerogative, there used to be mechanisms to return those licences by the National Parole Board in the instance of drivers' licences. You used to be able to cancel those orders; is that not true? In instances of the exercise of such powers, could not a finding of clemency return the drivers' licences?
The Chair: Every province has a driver's licence appeals board.
Senator Cools: I am speaking particularly of federal jurisdiction. I was thinking of the jurisdiction the National Parole Board used to have under the Parole Act to be able to cancel orders taking away drivers' licences from people to operate motor vehicles. People could be reinstated after a reasonable period of time. I am trying to say that even in the exercise of criminal powers with respect to an indictable offence, there was an exercise of mercy as well. If we are looking at the exercise of a prerogative, we should also be looking at an exercise of mercy, especially when the prerogative is being employed for behaviours that are not related to any improper use of the thing in and of itself.
The Chair: If you revoke a passport because of custody non-payment, is that revoked forever?
Mr. Francoeur: The passport is not being revoked. The fine-line distinction here is that the passport is being suspended. That means its validity has been suspended. We will grab it and put our hands on it, but once the provincial authority seizes the federal coordinator with a notice that payment has been surrendered, we will give it back to the client very fast. That is the scheme.
Senator Cools: If I could just put one reference on the record for our researchers, I have before me a copy of the Parole Act as it was passed in 1958. If we go down to section 18, there is a jurisdiction given to the parole board in the instance of operating motor vehicles.
18.(1) The Board may, upon application therefor and subject to regulations, revoke or suspend any sentence of whipping or any order made under the Criminal Code prohibiting any person from operating a motor vehicle.
There used to be an authority for returning drivers' licences.
One of the reasons that I find this entire matter so offensive is that we are taking the Divorce Act in the very opposite direction from where even the criminal law has gone. Most inmates are now strongly protected in dozens of ways by the charter. The entire area of mobility and access to voting and passports and all of these related issues have really come into play under charter rights.
I am making the point here for the record that, in a piece of legislation which has to do with divorce and has nothing to do with the commission of a crime, the law is going in another direction.
I know, Madam Chair, it gets a little boring and a little tiresome, but these issues are of some complexity. If we err, we err on the side of giving them insufficient attention.
The Chair: I realize that, but I do not want us to get too far off the subject.
Senator Cools: We have only just begun to touch it. The gentleman has told us that they will be suspending passports for no wrongdoing related to the use or improper use of passports. That is a serious matter.
Senator Forest: I would like to be clear not just on the grounds but on the procedures. In a number of provincial jurisdictions where there is persistent arrears in default of payment for child support, the provinces do revoke drivers' licences. It is my understanding now that your department will only bring this into force after the provincial enforcement services have found persistent default of payments. The passport holder would have received notice that they were in default, and they would also have received notice that their drivers' licences or whatever could be suspended unless the child support is paid.
Having done that and the provincial government having received no response, am I to understand they would then notify the Department of Justice? The Department of Justice would review it and pass it on to you? Is that the correct procedure?
Mr. Francoeur: That is exactly it.
Senator Bosa: When a passport is suspended, do you notify the board of authorities to ensure that that person may not cross the border with all their documents?
Mr. Francoeur: Yes, we are notifying those who ought to be notified.
Senator Cools: People on parole are back and forth across the border; they are travelling all the time. I used to grant paroles. I remember one particularly terrible case. This fellow used to drive a rig. The owner of the rig came to plead for him. Let us not be mystified. People with very serious convictions are moving back and forth all the time.
The only wrongdoing of the poor guys affected by this bill is that they happen to be fathers.
The Chair: Thank you, witnesses, for the information you provided today.
Before our committee this afternoon is Professor Nicholas Bala from the Faculty of Law at Queen's University. Professor Bala has sent out an extensive brief. We asked him if he would condense it for us, which he has done.
I was impressed with some of the information contained in your brief, Professor Bala. You got deeply into the taxation part of the bill, and I hope that you will be able to give us some explanation on that.
Please begin your presentation. We will then have some questions for you.
Professor Nicholas Bala, Faculty of Law, Queen's University: Thank you for inviting me here today. I am a law professor and associate dean of the Faculty of Law at Queen's University. My area of special interest is family and children's law. I am also married and a father of four.
As I mentioned in the introduction to this written résumé, I have done some work for the Department of Justice as a consultant around child support guidelines issues. My role was that of a technical consultant. I was there after all of the major policy decisions were made and, in significant respects, my views differ from those of the department. I speak only for myself today.
I have written an extensive article that was published in the Reports on Family Law dealing with the family support guidelines -- both the tax issues and some of the other issues -- and I have participated in a number of continuing education programs for judges and lawyers about issues in regard to the guidelines.
I do have certain reservations and concerns about the guidelines and the tax changes, but I should just like to emphasize that, on balance, I think the tax changes, in combination with the changes to the working income supplement, provide a more equitable and more focused regime for dealing with issues related to child support.
In regard to the guidelines, I should like to emphasize that, on average, they will provide more money for children of divorce; provide for a more consistent system of justice; and provide for a substantially less expensive and emotionally traumatic process for resolving disputes in relation to child support.
There are a number of enforcement changes. They are not perfect by any means, but there will be substantial improvements.
I do not disagree with the notion that courts should have ultimate control of passport regulations. I am not sure that most of the enforcement mechanisms that we have -- for example, the attachment of wages and the seizure of property -- are all governed by the court process rather than simply an administrative agency responsible for enforcement. It may well be that judges rather than enforcement officers should have the power to suspend a passport.
Senator Cools: We will visit that when you come back because you are introducing a whole new angle.
Mr. Bala: Concerning the improved enforcement of child support, understandably, much of the focus of discussion here is on the amount of child support. However, the problem of non-enforcement is probably even a bigger problem than the amount of support.
I should like to see further changes to the Divorce Act in areas of child-related issues. So-called custody and access issues are of concern to me. I have written about that as well, but it is not appropriate to delay these needed changes for other changes. Those should proceed separately and apace. I broadly favour and support acting at this time.
By way of a broad philosophical concern, I have done a bit of comparative research, although others have done more. My research mainly has been talking to others and reading what they have written about other models. In some ways, the difficulty this committee and others have had with regard to the child support guidelines is that these guidelines come out of a process of a federal-provincial-territorial committee, which is probably politically necessary in this country. That committee did a lot of work in the area and made many compromises. The result is a set of guidelines that, from an academic perspective, are somewhat confused in the sense that there is not one, single, simple model of child support guidelines there. If one looks at other jurisdictions where a single body or a single person was responsible for developing a model of guidelines, one might well have a simpler model or one that had a clear, single philosophy. Nevertheless, the guidelines represent an improvement over the present regime.
In regard to the process we are looking at, one of the political issues or other issues is this: Should we have this kind of dramatic regulation all in the form of regulations as opposed to legislation?
If one looks at the Income Tax Act, many provisions that might be there could be contained in legislation as opposed to being contained in the guidelines and in the regulations. One of the advantages of having regulations rather than legislation is that if there are problems, they can be addressed in a timely fashion, whereas the major overhaul of the complete process will await the five-year review. There are certainly some advantages to having this in the form of regulations.
In regard to the tax changes accompanying these Bill C-41 changes, I was quite disturbed with the public debate about the child support provisions of the Income Tax Act. Much of the public advocacy and certainly the reports to the media were somewhat ill-informed and confused. Nevertheless, I think that changes to the present inclusion/deduction model are appropriate in that the inclusion/deduction model -- the present tax regime -- is really quite arbitrary and inequitable. In other words, under the present model, you get a large advantage if you have a high income payer. Let us say he is making $150,000 a year and the recipient is in a much lower tax bracket, perhaps making nothing and getting all of her income by way of support. There is a large tax support saving that, if handled properly, can go to the benefit of the children.
On the other hand, in a family where both parties are making $75,000 a year -- the same amount of money, but child support is also being paid -- there is no tax saving at all. Indeed, if the recipient is at a higher level, there is actually a tax penalty.
The way the present tax regime works is very arbitrary. It is very unfair and not properly focused.
Changes in the tax law, combined with changes in the working income supplement, will focus tax resources on lower income children, which is a very important part of the process in dealing with the issue of child poverty.
If I were making laws on my own, I would have scrapped the present system and gone to a system of tax credits so that all payers would be treated in the same way to ensure that that benefit goes to the children. I think there is a good argument for giving some kind of tax subsidy to divorced family units. They have greater expenses because they are maintaining two households, but I do not think the present law did that. With the working income supplement, one is focusing resources on low income families.
In regard to the guidelines themselves, if I were devising a model on my own or looking at other countries, I am not sure that I would have chosen the Canadian model. As I say, philosophically, it is somewhat confused. It is largely now based on a percentage of income of the payer model, which is not uncommon. A number of countries and American states have that kind of model. Rather than getting into the add-ons we have -- for example, section 4 -- one would simply say that where there are children under the age of 7 who have higher expenses, or where there is someone at home to look after them, one would simply add on a certain percentage. If 8 per cent is your base rate and if you have children under the age of 7, you might have 10 per cent. If they are over 12, you might have 10 per cent as well. A percentage grid would be simpler to manage than our present system.
The failure to explicitly take account of the income of the recipient is obviously of concern and raises questions about the symbolic, emotional or psychological impact of this particular regime, although in practice the guidelines very clearly do take account of the income of the recipient. It might be preferable to have stated this more explicitly. One could probably deal with some of the issues in regard to joint physical custody in a better way.
Another change I would like to see in an ideal world would be, for example, when the recipient is on welfare. Right now, in most jurisdictions, all of the money paid by a non-custodial parent essentially goes to the provincial treasury and then to the welfare authorities. In fact, when one thinks about the whole scheme and indicates that this looks like it is tilted towards custodial parents, by far the biggest custodial parents in the country by tens of millions of dollars are provincial and territorial treasuries which are paying welfare. That has affected how the issue is viewed.
Personally, I would favour a system somewhat like that in Australia. If the recipient is on welfare and the non-custodial parent is paying support, at least 50 per cent of what he pays should go to the good of the family just as if the custodial parent were earning money, and not all of it would be taken away dollar for dollar. However, that is really a provincial issue.
Senator Cools: Does that Australian system have a name?
Mr. Bala: I do not know if it has a specific name, but it is an issue in a number of jurisdictions. The typical Canadian model is not very satisfactory. The recipient in British Columbia gets to keep the first $100 of payment.
It does strike me -- and there is literature on this -- that there is a real disincentive to non-custodial parents to say, "You have to support your children; we will take away your passport and do all this stuff so that you can pay for your children." However, in fact, the payer, who is typically a man, says, "Just a second. My children are not getting anything. You are making my life very difficult. This is just going to general tax coffers." This creates a very problematic dynamic. In fact, the custodial parent is saying, "I do not care if he pays anything because I am getting support also. In fact, my children would be better off if he were paying less so he has more to spend on them when they go to visit."
I think there are better models. However, I do not believe in our constitutional regime that there is anything the federal Parliament can do about that problem in terms of the Divorce Act. It is a matter of provincial and territorial jurisdiction and one that some provinces have begun to address. In fact, in Ontario, a report was written in 1988 by George Thompson called "The Transitions Report" which discussed this and raised some of the issues. It has not been acted on in Ontario, and I suspect that, with our present provincial government and the present fiscal situation, we are not likely to see changes.
Senator Cools: He has changed his mind on many things recently.
Mr. Bala: I think that should be addressed. It would have an enormous, practical impact for very substantial numbers of custodial parents and recipients.
As an academic, I see the problems of the guidelines. They are not perfect, and I have alluded to some of the issues. On balance, the guidelines represent an improvement over the present regime. They will improve the position of children and will result in lower costs for litigation for families which can ill afford these expenses.
I mention a few issues in my summary brief. With regard to you question, I can address the maximum age for children of the marriage. If we look at the United States, a jurisdiction which has the exact opposite regime, when they say there is not support at all when you are 16 or 18, there is a tremendous social cost for children of divorce in a regime like that. The Canadian model is vastly preferable to the American model in that regard. I should say that I have taught law in the United States as well.
In regard to access costs, for the vast majority of non-custodial parents, the model of the guidelines is appropriate. There again, a number of other jurisdictions have models where they take into account access costs at some fairly high level of joint custody. If you worked 30 or 40 per cent of nights, it might be appropriate to take that into account in some way.
There was mention in the earlier discussion -- and I am sure we will come back to it -- that if the non-custodial parent or the payer has the children with them 40 per cent of the nights, I would not advocate a 40-per-cent reduction in the guideline. It is payment quite to the contrary. Many of the payments expensed in regard to children are not directly related to the number of nights a child spends in a particular place. Many of the costs are for clothing, dentists, lessons, and so on. They are not variable with the number of nights. To the contrary, they are fixed costs. Even in situations where there is a so-called 50-50 joint physical custody, often one parent, almost always the mother, ends up paying the vast majority of expenses. In other words, the mother ends up buying all the clothes for the children, and the father would say, "Well, the kids are with me 50 per cent of the time, so I do not have to pay support." That is not a valid argument.
I know you have many questions, so I will end my formal presentation there.
Senator Lavoie-Roux: We have received several letters from parents who are divorced or are in the process of getting divorced. One concern expressed by most of them is the lack of provision for proper access to the non-custodial parent. Do you have any suggestion to make on this? It seems to be harming them. It is not only a letter or two; there are many letters. They are articulate, and their concerns, in many cases, are valid.
Mr. Bala: I allude to this in my brief. You have a very difficult task in that there are literally hundreds of thousands and, in fact, millions of people who have gone through the process of divorce in this country. Most of them resolve their problems in a reasonable fashion, but some of them certainly have difficulties. Thousands of people have had difficult and unfortunate experiences that are not necessarily of their own making, although sometimes they are. When you read a letter, you are getting one side of the story. There is almost always another side, or perhaps several sides.
I do not want to say that people should not write to you. To the contrary, we live in a democracy, and people should have a place to go. However, you should read those letters knowing that those are likely but not always people who have had particularly unfortunate experiences or who have very much one point of view. In many of those cases there is another side of the story.
When one looks at access issues in general -- and I have written quite a bit about access, including something for the Department of Justice in this regard -- by far the biggest problem with non-custodial parents with respect to custody and access is that they do not show up for access. They stop visiting their children. In other words, if I could do one thing in regard to access, and it is something which no legal system could do, it would be to ensure that non-custodial parents visit their children and do not abandon them.
Having said that, there is a real minority in which a non-custodial parent is denied access or does not have appropriate visitation. Some of those cases may well be due to the actions of custodial parents. However, I am convinced that that is a relatively small number. One of the problems with some non-custodial parents is that they are abusive during access visits, either to their children or their former partner. Any changes to our custody and access regime -- and I certainly think there should be changes -- require careful study. In my view, they should not be tacked on to this piece of legislation.
The reality of the process of legislative reform in this country is that in regard to any problem there are a whole lot of related problems. Ideally, one would like to deal with everything at once. The problem is, however, that everything is related to everything else.
If you want to deal, for example, with the problems of non-custodial parents in regard to access, then one would also ask, "What about problems in regard to custody?" For example, there are women who are victims of domestic violence who are being abused by their partners and who are either forced to give them access they do not want to give or who are being terrorized in the context of custody litigation. In other words, you will not be able to pull out one thing without opening up a lot more related things.
I know there are problems in regard to non-custodial parents and access. I do not even like the word "access" which is, of course, used in the legislation. Other jurisdictions have better terminology which promotes a better dialogue between parents. Mediation has an important role in regard to many problems in which a non-custodial parent is experiencing difficulty with access. In fact, mediation is often, although by no means always, the best route for dealing with problems of non-custodial parents in regard to access.
On the whole, our courts have said, and I think appropriately, that economic issues and issues of access are separate. They have said that we will not punish children by saying, "You will not have enough support," if the non-custodial parent claims that they do not have enough visitation. Yes, those issues must be dealt with separately by the same judge, by the same mediator, but they are not directly and legally tied.
Senator Lavoie-Roux: I agree with you when you say that the economic aspect of divorce is one thing while access is another. On the one hand, it seems that most of the emphasis has been unfairly placed on the economic aspect. On the other hand, I cannot be completely insensitive. The people who took the time to write to us feel that they are being denied something or that they are not being given sufficient assurance that the problems they went through are not being corrected. When do you think the matter of access should be taken care of? You say that we should not mix economics and access. In real life, you cannot separate the two.
Mr. Bala: Many people who are denied or who lack access to their children are victims of vindictive, even emotionally disturbed custodial parents. Problems with access are relatively small in number compared with the problems of child support. If I were asked to rank the number one problem of children of divorce in this country -- and there is much literature about this -- I would say it is the lack of economic support. Access problems are less numerical. The main access problem for children is non-custodial parents not visiting enough. They have the right to visit every second weekend, and they do not show up. Statistically, that is a much bigger problem. That does not mean that we should ignore the problem.
Custody issues, access and joint parenting plans should be a priority for the Department of Justice in terms of bringing legislation before Parliament in a timely fashion.
Senator Cools: We have the legislation here.
Mr. Bala: In fairness to the Department of Justice -- and I believe you heard from the Canadian Bar Association earlier -- there is much more consensus about what to do in regard to child support guidelines than there is in regard to custody and access. In other words, those issues are not necessarily easy. I support the priorities the Department of Justice has had, but I certainly agree that the next issues to be dealt with are custody and access problems.
Senator Lavoie-Roux: You stated that the number one problem was the lack of economic support, with access much lower down on the scale. Regarding access, the problem manifests itself in the following manner: non-custodial parents simply fail to show up or to visit, even though they have access rights. You list the lack of economic support as the number one problem. Is this not often linked to the fact that access to children is difficult and that in this case, the motivation of the parent who must support his children, and often his spouse and his ex-spouse as well, is one reason for this lack of economic support? In fact, the non-custodial parent may face so many problems that access becomes a complex issue.
Some people do exaggerate. I witnessed a case that was a clear example of ill will. For example, a woman might argue that her ex-spouse was a bad husband and that she will not give him the opportunity to treat his children the same way. I am not talking about physical violence. In cases of physical violence, whether it be sexual or some other form of abuse, it is normal for access to be denied. However, if access legislation is ever passed, provision should be made for all types of situations.
To some extent, such provisions already exist, but perhaps adequate comprehensive measures are not in place. The two issues, economic support and access, are linked. It may be possible to give priority to one over the other. We want children to suffer as little as possible given that they already find themselves in a very difficult situation. Unless the father is an utter scoundrel, in which case he would no longer have any parental authority over the child pursuant to the Youth Protection Act, it is normal for a child to have both parents as models. This is not a minor, but rather a major problem.
Mr. Bala: Certainly, one of the realities is that in each and every case we are dealing with parents and children and the most important things in their lives. Each and every case of injustice and each and every case which is dealt with in an unsatisfactory way raises a legitimate question of social and human concern. On the other hand, you are trying to deal with laws that affect hundreds of thousands -- indeed, millions -- of people. Any law that will function effectively may not be perfect for each and every case. That is why we say that the kind of regulation we have for child support would be appropriate for dealing with issues of custody and access. Those questions, although there should be presumptions, require individualized assessment.
I know that many non-custodial parents for whom it is a legitimate issue say the reason they are not paying their support is because they are being denied access. They feel that they do not have that relationship.
On the other hand, I do not think many people would bother to write to you to say that they have not been paying their child support or visiting their kids because they really do not care about their former wife or their kids. Those people, who are more numerous than the ones who write to you, do not put forward those kinds of problems and realities to you.
The Chair: I realize that access is not in this bill and that we should not be dealing with it, but we are dealing with it because we have received a stack of letters talking about access.
The law does not seem to be interested in enforcing access, yet the law is going to enforce payment. I realize that payment is more important, but people are writing to us are asking why the law does not enforce access granted in a court order.
Mr. Bala: I do not think it is fair to say that the law will not enforce access. The access orders which I would like to see enforced are the ones where the non-custodial parent is disregarding the children, both economically and otherwise.
One must realize that the law is a blunt instrument. It is already difficult enough to get monetary matters dealt with, let alone trying to regulate human affairs by court order. That is why there is more difficulty in enforcing access orders. If someone does not pay, it is, at least in theory, possible to garnish their wages, seize their bank account or seize their property. In practice, that is incredibly difficult.
If an access order is not being enforced, judges will, not only in theory but in fact, at some point send the custodial parent to jail for not honouring it. It does happen, but this is about the welfare of the child.
Will it help the child if you send mom to jail for the weekend? Usually, it will not. Will it help the child if a police officer bangs down the door and drags the children off to access visits? Usually, it will not.
By far, the best way of dealing with this kind of problem is through mediation. It is not always possible, but there are many things we can do with mediation and parenting plans that have not been fully explored or utilized in this country. We are seeing initiatives in some provinces in that regard.
Most parents, both custodial and non-custodial, want to do right by their children. Most custodial parents want their children to visit the non-custodial parent and have a relationship which will continue for their entire lives. They support that. It is very much a minority who are thwarting these relationships.
Senator Jessiman: In your letter to us you said that the guidelines being used by the federal government will increase the amount of support to children as compared to what the courts have been awarding.
Mr. Bala: Since there has been much discussion about the guidelines, they are, in significant measure, but by no means completely, already being used by judges and lawyers. We have seen already very significant increases in the amount of child support compared to before we talked about guidelines.
From 1968 to 1990, we had relatively low awards in this country. I would say they were grossly inadequate awards. Since 1990, we have seen very significant increases.
As a scholar, I would have to say that no one really knows what is happening throughout the entire country. On May 1, the tax law is changing and those changes, in and of themselves, will push down very substantially the amounts of child support. If nothing else happened and you did not act and there were no guidelines and the present regime stayed in effect, there would be a dramatic decline on May 1 because on average, albeit not in every case, less money would be available.
The experience in other jurisdictions has been that the existence of guidelines increases the amount of support. I believe, from the research that I have seen, almost all of which, of course, comes from the Department of Justice, that the awards will, on average, be more than the courts are giving now.
Senator Jessiman: They are also not deductible.
Mr. Bala: That is right.
Senator Jessiman: You get it twice. They are higher awards and the amount is not deductible. Therefore, the non-custodial parent, who is the payer, will have to pay more because the guidelines are higher. He will also not be able to deduct it, so he is getting hit twice. They are taking away from the ones who will pay it, which will make it difficult for them.
Mr. Bala: This is not, finally, about non-custodial parents as opposed to custodial parents. This is largely about children.
I read a very interesting article which revealed something that researchers have long known. It was in The Kingston Whig-Standard and The Ottawa Citizen. It was about the difference between the income of men and the income of women. It said that women make 73 per cent of what men make. The researcher from StatsCanada said that showed that there is no discrimination in the workplace because a single woman makes the same amount as a single man. The 27-per-cent difference is almost entirely due to mothers who work part-time or take time out of their careers, thereby losing seniority and therefore earning substantially less than men. StatsCanada is saying that families are causing the problems for women, not employers. I think there is substantial validity to that theory.
Therefore, we do not need complex pay equity laws. However, in the context of divorce, we do need a system of child and spousal support which compensates those people -- who are almost all women -- who have made sacrifices that will affect their earnings over their entire lives. That is, in part, what this regime is about.
In fact, the tax law will affect both custodial and non-custodial parents and different people in different ways. Some people will be better off, some people will be worse off, and some people will be in the same position. The guidelines will, on average, increase the amounts. However, after May 1, we may see that when we add the two together the average child support payment may go down. In other words, non-custodial parents are not being hit twice; everyone is being hit by the taxes and then the child support guidelines come into effect.
Senator Jessiman: The custodial parent is not getting hit; she is getting an advantage. It is a non-taxable payment.
Mr. Bala: But the payments will be lower.
Senator Jessiman: Not according to you. I asked you that question first.
Mr. Bala: If that is what you understood, I did not make myself clear. There will be two effects occurring at once. The net impact of those remains to be seen, but it may well be that, on average, as will certainly be the case in many families, the amount of payments will be lower than they are now.
Senator Jessiman: That is not what I understand from people who I have spoken to in our office. The guidelines, in fact, are a little higher than what the courts have been awarding, even though when they were awarded, they could deduct them from taxes. A person who was paying $2,200 a month for three children could deduct that before. If he was in the 50-per-cent income tax bracket, he was paying $1,100. Now he will pay $2,200, which is double.
Mr. Bala: You have had people from the Department of Justice do some of the research, but it is important that you are comparing apples and apples. Under the working draft guidelines that all of the lawyers and judges had, if you asked what the average effect of the guidelines were under the present tax law, the answer would be, on average -- and there is much dispute about this -- the guidelines would increase the amount. That is the first change. The guidelines, in and of themselves, are pushing up the amounts.
However, if you then asked about what will happen after May 1, the answer is that no one is 100 per cent sure. I have heard suggestions by people in the Department of Justice that it may push up the amounts. Research on this issue has been done by professors in tax theory at the University of Waterloo. I am not sure that, on average, the amount of child support will not fall because of the effect of the tax changes. The real answer is that we do not know.
Senator Jessiman: The guidelines are pretty clear. If you know the gross income of a person, he must pay X number of dollars and he cannot deduct it. I do not understand why we cannot know. It is there; we now know. If a person makes X number of dollars, he pays so much per child depending on his gross income, but now he cannot deduct it; before, he could deduct it. He is being hit twice.
Mr. Bala: This goes back to changes in the tax law. For many families, changes in the tax law will not be good news. In fact, they are bad news. If you talk to practitioners, many of them will say that the changes to the guidelines are not that big a deal compared to the changes in tax law, which is not before this committee. The changes in the tax law -- and I have written about this -- from a policy point of view is a much tougher issue than the guidelines.
Had I designed the tax law, I would have had a credit system. I would neither have the present system nor the proposed system. If I had to choose between the present system and the proposed system with the working income supplement, I would choose the proposed system because the present system is arbitrary. The present tax law favours families where there is one spouse with a very high income and another with a very low income, which seems unfair and arbitrary as well. For people in that situation, there is no doubt the new tax law will be a negative feature. When I say "those people," of course people who have existing orders will keep them. I am referring to people in that situation in the future.
Senator Jessiman: They keep them as long as the custodial parent does nothing about it. However, if she finds that she is getting a good amount now because of the tax situation, she will now look at the guidelines and apply. It will be non-taxable.
Is there any rationale for choosing to make contributions for children non-deductible, yet they can deduct for spousal support?
Mr. Bala: I think that is a very good question. In fact, in my paper I make the point that philosophically there may not be much reason for doing it. However, I would say that the new Canadian regime is the same one as they have in the United States. There may be practical reasons. Giving people some flexibility, you would not be doing them a favour if you said, "Let us get rid of spousal support also." I think the argument, of course, is that they have two households, and there must be some kind of subsidy for people getting divorced. Some kind of subsidy is certainly appropriate. Taking it all away may not be justifiable.
From a practical point of view, in a relatively large number of cases involving child support, the parents will often have roughly equal incomes or at least not so far apart that there is no tax advantage. When you are paying spousal support, the payer often has a substantially higher income. That will be the model you have. There would be different practical and policy-related reasons for treating it that way.
There is a question about why you give this kind of deduction. The reason you have it is because it is a subsidy for people getting a divorce.
Senator Jessiman: In 1995, a report by the federal-provincial-territorial family law committee recommended that if you had 40-per-cent custody and the custodial parent had 60 per cent, financial consideration should be given to the non-custodial parent. Would you agree with that?
Mr. Bala: Yes, subject to two important qualifications. First, when you are talking about 40-per-cent custody -- and I think Madam Grassby pointed this out -- there would be a question about how you count that. The answer is you count that by overnight visits, which is the Australian model. If you just say "40 per cent" and do not say "overnight," you get into arguments about custody.
I should say that 40-per-cent custody is extremely rare. It is actually a very high threshold. When most people talk about joint custody in this country, they are probably talking about 10, 15, or 20 per cent of the nights, not up at 40 per cent.
The other qualification is that I would reduce it by 40 per cent because there are a lot of fixed expenses in regard to children's clothing, medical and extracurricular activities which are typically paid by one parent. In practice, it is most often the mother. You want to be careful about how you do that. I personally preferred that model. That is the model Australia uses. They actually have a 30-per-cent figure. I am not sure I would have pushed as far as the guidelines have.
If I am being asked if I like the guidelines better than those we have now, even with these defects the answer is that I prefer the guidelines. If you said that I could play with that however I like, that is one thing I would have looked at.
Senator Jessiman: Professor Finnie said he could actually have guidelines for that. If you did have a certain percentage and you could actually work it out, you would have it in your guidelines. You would know right off the bat that this fellow who is paying $2,200, the non-custodial parent, does not want any access. That is why he pays $2,200.
Mr. Bala: Professor Finnie has done a lot of interesting work in this area. My understanding is that he is a divorced father as well as an expert in this field. I think that may colour some of his analysis, but I also agree with some of his analysis.
Senator Losier-Cool: I had a question on access and on the wording, but since you made it clear that access is not in this bill, I will skip that question.
When you refer to rapid adoption at the bottom of your brief, how important is it to meet the May 1 deadline with these guidelines?
Mr. Bala: That is a good question. A process of law reform is moving along, but what kind of law reform are we talking about? There are many kinds of law reform where time may not be so important as to be talking about a change in the criminal law. It may not affect behaviour that much. The reality is that especially with changes in the tax law coming into effect, lawyers and judges -- especially lawyers -- have been anticipating these changes. In response to the concerns being raised, many lawyers are trying to renegotiate agreements before the changes in the tax law come into effect.
There is a political reality. If you are talking about an extra week, that may not matter. However, by way of political reality, if the Senate tells the Department of Justice and the federal-provincial task force to go back and think about this bill, we will be talking about a change and a process that will go on for years and years. I would be worried that we may never get these guidelines through. People will say if we could not get this through with a broad consultative process, nothing will get through.
From a practical point of view, May 1 is a very important date. If it does not come into effect May 1, I do not think anyone would believe that we are talking about weeks. They would assume that we must be talking about years and quite possibly never.
In practice, most or many judges and lawyers are using the guidelines already. If you said no to the legislation, they would ask about the message they are getting from Ottawa. They would assume that the message must be to not look at these documents at all, throw them out and go back to the old system. In practice, we would be worse off on May 1 than we are today because today, at least, most people are aware of and look at the guidelines.
Senator Cohen: You mention that the tax changes are beyond the scope of this committee's study. Yet we are talking about support. You say that the tax changes will impact on support payments. I know we cannot wait months and months, but would it not be a smarter idea to wait until the tax changes come in and then take another look at Bill C-41?
Mr. Bala: I think it would be better for the Senate to have its hearings first in general. I would appear before Senate committees. I find them very stimulating. Senators are well-prepared. I realize that the people in the House of Commons are busy, but they seem less well-prepared and less thoughtful.
The income tax changes which have not even had first reading are part of the Liberal government's budget. The result of that, which is quite typical of tax measures, is that we may be having a 1997 budget before the 1996 budget is law. If the government acts on that in terms of collecting taxes, the government is irrevocably committed to it. However, the government will fall if the 1996 budget is not passed.
One can take it as a given that these tax changes are going ahead. I do not disagree that in the ideal world one would deal with custody and access issues, child support and tax issues all together. The problem is this: Where do you stop?
Dealing with guidelines is complex enough. That is a realistic package for a legislative body to look at. I do not disagree that it is related to many other things.
Senator Cohen: I am sorry we cannot talk more about the tax changes because I am sure there are more impacts than those you have discussed here, impacts such as not being able to use legal fees any more. We will save that for another time.
Senator Cools: It is always exciting to have professors with us. I see you people as having a unique opportunity to study and hone ideas.
You made a few interesting statements on the whole phenomenon of access. The issue of access is one that concerns me deeply. It concerned me deeply 11 years ago when we proposed amendments to the Divorce Act. We were not successful in getting them in the bill at that time. However, colleagues assured me not to worry because we would get them in the next go round. Well, ten or eleven years go by, and the next round is here.
On the issue of access, we had a witness here a couple of weeks ago who played a tape of an interview with Charles Harnick, the Attorney General in Ontario. In that interview, Mr. Harnick said he is aware of the enormous violation of court orders in the area of access, but he does not quite know what to do. Access is being violated repeatedly. Perhaps you know about creeping progress.
A few days ago, Judge Steinberg put a lady in jail for some days, a lady who had been violating access orders repeatedly and perniciously for quite some time. I am encouraged by Judge Steinberg's initiative. He is experienced in this particular field, and he knows what he is doing.
Why is the law, the department and the legislature so reluctant to address the issue of access?
Mr. Bala: I cannot speak for either the law, the legislature or the Department of Justice, but I would generally say that access, because it involves human relations and the feelings of children and because it can be related to issues of domestic violence, is an extremely difficult issue to deal with. In most cases it is better not dealt with by a judge and better not dealt with by means of precise statutory guidelines.
That does not mean that there is no role for the courts. In fact, one of the things about a decision like Judge Steinberg's is that it would have more value if it were on the front page of every newspaper in the country so there would be more education about this kind of issue. Its general deterrent effect and its symbolic effect is probably more important than what it will do for that particular family.
It is a good question as to whether things will actually be better for that particular child. They may be. However, in the back of one's mind, one must ask what it will be like when mom gets out of jail and says: "How was your weekend with dad? I was in jail because you were visiting your father."
Senator Cools: Women do that to men all the time. I know of a case a few days ago where a visitation was going on. Halfway through the afternoon, six or eight police came in and took the child. It is happening all the time. What I am trying to get from you is: When will the courts take better notice of that? That is number one. Second, when will the legislation bite the bullet and face the music?
The Chair: He cannot answer that.
Senator Cools: Yes he can. Professors on the last go round gave us much input on this matter.
Senator Losier-Cool: It is not in this bill.
The Chair: He is prepared to answer.
Senator Cools: When Mr. MacGuigan began his initiatives with respect to the current bill and the current Divorce Act, his intention was that a child should have maximum access to both parents. The policy thrust at the time was to move into the area of the law itself, taking greater cognizance of this whole business of access. For some reason we shy away from it because there is a sense of the biological pre-eminence of women. I find that disturbing.
Mr. Bala: You mentioned that I am an academic. One of the nice things about that is I am not constrained by institutions or otherwise. However, the answer to when it will be dealt with is a political question.
Section 16(9) of the Divorce Act actually says, in response to the 1986 amendments, that in making a custody order the court shall give effect to the principle that a child of the marriage should have as much contact with each former spouse as is consistent with the best interests of the child. This is the so-called maximum contact. That is in the law right now.
Would I like to see improved access enforcement? Yes. If I were cross-examining Mr. Harnick here, I would want to know about funding for such things as mediation and access supervision projects. Those are extremely important and a valuable way of dealing with things.
A law like the Divorce Act will not do much to solve the problem. Most of the best solutions will come through a variety of legally related means but using the courts as a very last resort. That does not mean no role for the courts. The courts are there and should be there as a last resort. That is how it should be dealt with.
How will it be dealt with? You must ask the politicians.
Senator Cools: That is us.
My next question is on the issue of custody and the awards of custody. I recently read an excellent reasoning by a very eminent judge, Justice Estey, in a case called Talsky. In that particular judgment, Mr. Justice Estey tries to deal with the legal reasoning that causes custody of children to be awarded to mothers most of the time. In my recollection, Mr. Justice Estey says there really is no basis for it in law.
From your thorough study of these issues and from the probably thousands of books you have read, what is the legal reasoning and the legal basis for the granting of custody to women 85 per cent of the time? Is it biological pre-eminence? What is it?
Mr. Bala: I have written a major paper about this. The so-called "tender years rule" discussed in Talsky, a 1976 case, is in my view not an appropriate legal rule although some judges do follow it. A vastly preferable rule would be a primary caregiver presumption which would say that the parent who has the primary role in caring for a child, especially a child under the age of seven, should presumptively be the parent who has custody, to use our present language. In practice that would mean mothers would receive custody because they are most often the primary caregiver. It would be a better rule. It would also be a better symbolic rule for families. It would be a much better social message than the "tender years rule." Unfortunately, some judges still rely on the "tender years rule."
That is why I would be happy, if you get to amending those provisions of the Divorce Act, to come and talk more about it.
Senator Cools: The "tender years" notion is so frequently used. It has a lot of validity; let us not kid ourselves.
Senator Forest: As far as your research is concerned, you mentioned that the major problem with access is not having enough contact of the non-custodial parent with the child. That is very important and very sad.
We also talked about the payer now being required to pay the support and also the taxes and that that seems unfair. I am sure it does. On the other hand, we have received information from intact families saying that, in divorced families, there has been a tax break there for years which they never were able to get. That is the other side of the coin.
My question is with respect to this deadline. We had a witness today who was very concerned about the time frame because of the amount of time it will take to get the word out to the practitioners in the field. As I understand it, one of the concerns is that parents who already have court orders will have an opportunity to stay with what they have or to make a change.
It seems to me it is very important that they know ahead of time what the score will be when they must make that change.
Mr. Bala: In my view, any good family law practitioner -- even any family law practitioner of a mediocre level -- is well aware of the fact that these changes are coming. There were major educational efforts by the Canadian Bar Association. One program was attended by 1,100 lawyers in Ontario. Anyone who subscribes to the Reports of Family Law had a series of articles going back years by, first, Ross Finnie and then myself and others, commenting on the guidelines.
Everyone knows these changes are coming and, indeed, is planning on their coming. I do not want to say that every non-custodial parent or custodial parent is aware of the fact that those changes are coming, although many of them are.
In terms of the profession, if you do not go ahead, they will believe that the statements that the legislation is coming will have no effect. The credibility of the Department of Justice and, more broadly, of the parliamentary law reform process will be so grievously wounded that people will not believe it until they actually see it.
It is like filing income taxes. It is not a coincidence that some income tax returns are arriving now but that most of them come in on April 30. This is part of a process. Delay will certainly tend to feed a sense of scepticism about the process.
Senator Forest: As you say, many of the practitioners are aware of the guidelines. Should there be changes at the last minute, it would be very difficult then.
Mr. Bala: I know that many people have settled cases on the basis of the June 1996 draft guidelines, as you have heard. There are some relatively small changes, but in some cases they will not be insignificant compared to what will finally come out. Many lawyers are saying, "Let us get the final regulations."
Senator Forest: I was very concerned about your suggestion that if the legislation does not go now, it may not go for years. That really concerns me.
Senator Bosa: I have a supplementary question to that put by my colleague Senator Losier-Cool. She asked you why you think it is so important to meet the deadline of May 1. How much time do you think is required by judges and lawyers to implement these amendments?
Mr. Bala: You will have a judge here to speak to you. Many lawyers are very familiar with the guidelines and are using them already. The reality is this is a big country. Until lawyers see what is coming, they have some difficulty in responding to it. For example, there is a widely used computer program called "Divorce Mate" that does all the calculations for lawyers. It is already used by many family law practitioners.
The task for the judges, with the greatest of respect, is by far the easiest. They are waiting for May 1. They have had education programs; they will have more. In a number of the education programs, they have used the paper I have written. Their task is not insignificant because they are not just dealing with this new law but with other new laws. Still they can wait.
The problem of the family law bar is greater because they are trying to renegotiate all the previous agreements. That is their challenge. I cannot speak for the bar. I am not sure anyone can speak for all the lawyers in Canada. They would probably say, "Go ahead by May 1, but, if you can, make April 30 a 1,000-hour day."
Senator Phillips: I will take a different approach from the one the legislation is taking. I will express a personal concern of mine.
Not every citizen is making the $75,000 or $150,000 that the law society keeps quoting to us. I wish that were true, but it is not. For example, a highly trained technician will make about $40,000 a year. He goes through a divorce and then makes payments. Few of these people become monks. Most of them get remarried and have a second family. In all the evidence before this committee, no one has mentioned the second family. That second family is entitled to the same benefits as the first. It is not the child's fault that he or she is a child of a second marriage. We have heard representatives from the bar association and now you say that it is a wonderful thing to have these extra guidelines for education and other things such as hockey equipment. In most cases, the father -- and I think we can say that -- will be unable to afford payments for the second family.
You indicated that you worked with the Department of Justice in devising these guidelines and giving them advice. What consideration did you give to the children of a second marriage?
Mr. Bala: My role with the Department of Justice was very limited. It was just a couple of days in a process on which they have spent literally thousands of human days working on with many different people.
The guidelines do very much consider second families. I think your sociological observation is completely correct and very important. All children are important -- children of the first relationship, the second relationship and, in some cases, the third relationship. The problem is that most often the father gives priority -- that is, if left to his own devices -- to the children who are near and dear, and the children from the previous relationships are the ones ignored. There is no visitation. In other words, he does not exercise his visitation rights and he tends not to pay support. That is where the major problem lies. The guidelines say that if that second family is at a lower standard of living, then you get into the undue hardship provision. It is specifically taken into account.
The reality is that, yes, most men do remarry or enter into new relationships, and most of those second spouses or second partners also have an income. You are correct that the problem of divorce is that there is not enough money to go around. Nevertheless, that family unit has substantially more resources than the previous custodial parent and children. If that second family unit is worse off, then they can use the undue hardship provision.
You are correct in saying that most families do not have very much money. They are especially troubled in the context of divorce. Guidelines will substantially reduce their legal fees. That is one of the major advantages of them.
Senator Phillips: I am not impressed by the idea of making application to the court under the undue hardship provision. First, it will probably cost $8,000 in legal fees and take months, maybe years, to settle. I do not find much comfort in your reply there.
We are coming to the end of our time, so I will not to ask any further questions on this issue. I would recommend that the members of the committee read your unabridged brief, wherein you refer to the overlap in undue hardship cases. I would recommend that honourable senators read page 328. They will find that you have considerable doubt about the benefit and the overlapping as well.
Mr. Bala: What I believe I say there is that, in practice, it will not arise that often in terms of the total number of cases because in most cast cases the second family will be better off than the first family. However, if the second family is in a lower income position, which could arise in a situation where, for example, the custodial parent marries a wealthy man, then that would be taken into account in terms of the undue hardship provision.
There is always a problem in that we are talking about averages and no family is average, but in most divorces, the man has a new relationship with a new partner, and most of those partners are in the labour force. Statistically, a smaller number of custodial mothers enter into new relationships. That tells you something about where they end up. It takes them longer to enter into new relationships. Therefore, that first family unit is typically at a lower standard of living. People have done research on this. We would like to have better social science data, but I am quite convinced that in Canada that pattern holds true as well.
With respect to the issue of legal fees, in many cases they will be very expensive to resolve, and they will have to go to court. Even in undue hardship cases, or others, the guidelines will be especially important to lawyers who settle cases. Many more cases now -- and certainly under the guidelines -- will be settled by lawyers negotiating cases and not spending $8,000 to go to court. Instead, perhaps they will spend $1,500 or $2,500 negotiating a case. They will say: "We know what will happen if we go to court. There is no point going there. Let us settle the case because someone in Ottawa has given us clear guidance about how to settle the case." That is a major advantage of the guidelines.
The international experience is that once you have guidelines in place, you will have a lower litigation cost. That international experience is an argument that must be monitored.
There is no doubt that in the first few months there will be a lot of difficulty breaking it in, but I suspect that in two or three years we will have lower costs. I would urge you to consider that you are talking about whether or not we should do something. Not doing something is also a very real step because you are leaving the present system in place with a lot of defects. It is not like saying, "Well, there are problems with the guidelines so let us do nothing because nothing is pretty good." Nothing is very problematic also.
Senator Phillips: Your assumption that lawyers will settle out of court at a lower fee is one that a great many people will have difficulty accepting.
Mr. Bala: There is an enormous amount of statistical data in this country indicating that most cases are settled at present by negotiation as opposed to litigation.
Senator Maheu: When you spoke about the proposed guidelines representing a reasonable compromise that will improve the position of children by increasing amounts of support and decreasing costs of litigation, you also at one point mentioned a computer program that lawyers are using. You could make that available to litigants and probably abolish the cost of litigation.
I am being facetious.
Mr. Bala: The Department of Justice would like to do a lot of public education about this. The bigger the time frame, the better. Quite legitimately, they are saying, "We cannot spend public money on advertising about this until it is the law." This is a sort of chicken and egg problem. In their public statements, they certainly indicated that they would provide public education.
They have already done professional education, and I suspect they are waiting for the law to be enacted.
Senator Maheu: You say provinces and territories may choose to have their own guidelines if they disagree with the approach taken. Are you speaking of the judgment approach?
Mr. Bala: The guidelines we refer to, and quite appropriately, are the national federal guidelines. Quebec has its own model. You heard a little bit about that. There are many models of guidelines, and no model is perfect.
The experience internationally is that if you move to a reasonable set of guidelines, of which there are a number of different models, you reduce litigation costs. You reduce animosity to some extent, although that is relatively small, and you provide for often higher support payments. On the whole, jurisdictions have had a positive experience with this kind of regime.
There was a question put earlier about waiting five years. A number of pieces of legislation say Parliament will wait five years before doing a full assessment. One of the advantages about this particular model of guidelines is that, since it will be in regulations, if there are problems, the Department of Justice have committed themselves to monitoring this, and they will be dealing with them more expeditiously.
They are saying they know how busy the Senate is, let alone the House of Commons, and as important as these issues are for hundreds of thousands of people, you will not revisit them every few months. However, they may have to make changes. That flexibility, on balance, is a welcome feature. While I am a little uncomfortable about this being a regulation as opposed to legislation, on balance it is probably a better way to go.
The Chair: Thank you for appearing before the committee.
We have one more witness, the Honourable Kenneth Halvorson. He was a Justice of the Court of Queen's Bench for Saskatchewan from 1977 to 1996. He has also written a paper in 1992 on support payments for college children and for spousal support.
Coming from Saskatchewan, we realize that you are sort of ahead of the times when it comes to child support. We look forward to your presentation.
The Hon. Kenneth R. Halvorson, Retired Queen's Bench Justice: I am happy to be here, and I hope that I can provide some assistance to you. I have actually used the guidelines, and perhaps what I say will indicate to you where some problems might be, or it may precipitate some questions from you. I will not talk too long because time is short. I would like to leave it open for you to question me rather than talk about things that perhaps are not bothering you.
I should tell you at the outset that I am not a family law judge. I was a full-service judge. I did the rapes, murders and civil cases; in addition, I did family law. I do not have what some perceive as biases among judges who only did family law year after year.
I should also say that I had to be converted to guidelines. I was not initially receptive to this approach. When this was discussed six or seven years ago, I knew we had to do something about the fact that my fellow judges and I were all over the map with child support. Under similar situations, I might order $250, and the office next to me might order $400. We had to do something about that. I was not convinced that guidelines were the way to go, but after studying the information in the preliminary report that came out two years ago, they were far preferable to the means and needs approach, which was our only other alternative.
I studied this material when it came out in January or February of 1995. I decided in my own mind that I was wrong in getting my back up about guidelines, thinking they would interfere with a judge's discretion. I studied it carefully and decided we could make this work. I called in some of my colleagues who were also interested, and we said: "Look, let us implement these guidelines in a back-hand way. On interim support applications only, we will calculate the support according to the means and needs test, and then we will measure it against the guidelines and see where we are coming from." We did not find that there was a huge difference.
This progressed to the stage where the lawyers started coming before us and simply said, "Under the guidelines, my client is entitled to this amount." The other lawyer would say, "We agree, but we would like to see some refinements here because the cost of access is a little more in my client's case because he has to drive from British Columbia."
By the time I left the court last fall, the guidelines were being followed. Judges will never say it, but they were simply applying the guidelines. Lawyers were simply pointing out the guideline figures to the judges, and the means and needs test had fallen by the wayside. That is not only because of simplicity but also the fact that child support does not generally arise after a trial where you get all the really good evidence on the means and the needs. Periodically it does and there is a trial, but usually it happens in what we call a chambers application. Those of you who are lawyers will know what that is. The judge walks in and there are 30 applications for child support, interim child support or variations. He does not have time to sit down and weigh them properly on the means and needs test. He knows that the day after tomorrow he will get another 30. Theoretically, he is supposed to apply these tests; in practice, he does not do it and does not have the time to do it. If you must eyeball it, you should eyeball it against some statistical basis, and the guidelines are the way to eyeball these.
I am not saying the guidelines you have before you are the only way to go and the best way to go, but I am saying that guidelines in some form are the way to go.
I have some strong views on other sections that have been put before you. I do not want to spend a great deal of time on them in case you are not interested. Let me raise one section and then be quiet and let you raise sections with which you have difficulties.
I have always been against parents being forced to pay support for children to go to university. That is a moral obligation left to the parents to work out with the children. Unfortunately, the law does not agree with me. That is a lost battle, as far as I can see. There is no point fighting it any longer. The reason I was so much against it and the reason I wrote that article alluded to by the Chair about college kids is that not only in this country but in many countries you do not have to support your children going to university so long as you do not leave your wife. Once you leave your wife, all of a sudden a moral obligation becomes a legal obligation, but that is the way it is and we cannot go back on it now. It is not what I like to see, but that is what the law is.
This provision that is being proposed --
Senator Jessiman: It must be passed first.
Mr. Halvorson: -- in the new legislation is just a catch-up. It is already the law. The Supreme Court has already said so. They said so 20 years ago. The Supreme Court read into the definition of "child" post-secondary education, so we were stuck with it. Because of that, most of the provincial legislatures changed their legislation so that support carries on while the child goes to university. It is in provincial legislation in many areas now.
Many of you will be aware that child support is a provincial, not federal, jurisdiction. Most of the child support, custody and access problems arise in a provincial setting. It only becomes federal jurisdiction if you hook it on to the Divorce Act. All we are talking about is those cases which are hooked on to Divorce Act applications, of which there are many, of course. Even if you did not amend the Divorce Act now and put in education costs, it is still the law provincially and federally because the Supreme Court has said so. It is no big deal. I look at it and say, "They are just catching up with the times."
I know that access concerns you, Madam Chair. It seemed to be the focal point of the concerns of many husbands. It is of huge concern to judges. It is something with which we cannot come to grips. As you heard Professor Bala say, "What will you do; throw the mother in jail because she will not give the father access?" How will that impact on the children? It is probably not such a big deal if the father lives across the street; you just move the children over there. In reality, that usually does not happen. He usually lives across town or in another town or another province. Therefore, you cannot really move the children somewhere else. If you did move them, what are they to do; start in a new school, make new friends and get into new activities? Is that in their best interests because their mother is obstreperous and will not give the children access to dad as she is supposed to? If she had any brains, she would know that the children have a right to see their dad.
In the real world, however, mothers often do not do that. I keep saying "mothers and fathers" because we all know what foot the shoe is really on here. Of course, we could throw her in jail.
In Saskatchewan, there is legislation to cover all these things we can do to mothers who do not abide by the rules and who frustrate access by the fathers. We could throw them in jail. We had that option before. We can take away some of her access to compensate for the access that she has frustrated. We can take the children away from her and say, "How would you like to see what the shoe is like when it is on the other foot and it pinches a little?"
However, that leaves us with the same old problem. You take the children out of the school and the environment they are in. Is that good for them? In some cases, it works, if the father is living across the street. However, it does not work in many cases. It is a horrendous problem for judges. We would like to come to grips with it.
Those of you who might think that judges are biased in favour of women are wrong. We look for the case where we could finally give custody to a father so we can belie this situation that judges are biased in favour of the mothers. They are not. What happens is that when you weigh the situation, the mother almost always comes out on top because she has the better facilities. That is why she is getting custody. It is not because there is a bias. Where we can give custody to the father, you bet we are doing it. It is a huge problem. You cannot link child support to access.
Fathers who are complaining about being deprived of access have a great complaint. They do not even say, "Let me withhold payments from the mother and she will shape up in a big hurry." They do not say that, but that is what they mean. It probably would work; but what are the children supposed to live on for the month that there is no access payment? Who will pay the rent? It is a very complicated problem.
I know you have heard a lot about access. It is a serious problem. Judges are having a lot of difficulty with it. I do not think we can deal with it by legislation.
Senator Bosa: I wish Senator Cools had been here when you talked about judges giving custody to fathers.
Mr. Halvorson: I was only saying that there is a bit of a bias in the other direction. The judges on my court are breaking their butts trying to give custody to fathers to prove it is a lie that they are biased in favour of mothers. When we weigh the facts in the cases which actually go to trial, we see that the mothers almost always come up the winners because the facts point to them being the better person to have custody in the circumstances. When we find a case in which it is close to the border, we are giving custody to the fathers just to show that we know fathers can look after children. In most cases, the evidence is just not there to support them.
Senator Cools: I am with you all the way. I am very aware and sensitive to the problems that judges face. Sometimes I do not even know how anyone can do the job. I have watched a lot of cases and I have read many judgments. I am heartened to hear what you are saying. I encourage you to press on.
Mr. Halvorson: I heard some concern about deleting from the Divorce Act the section which states that it is a joint responsibility for the parents to contribute to the support of the children. If that were left in, as a judge, I would be in a real dilemma. On the one hand, I would have the guidelines directing me to follow the guidelines. On the other hand, I would have a section in the act directing me to look to the means of both parents and make them contribute according to those means. They are not compatible.
Senator Jessiman: They could be.
Mr. Halvorson: If the only problem is that you think there should be a statement in the legislation that says both parents are responsible for the support of the children, then I agree with that. That is no problem. That is an apple pie statement with which no one would disagree. There could be a section which states that parents have the joint obligation to provide support for their children. The removal of the section goes far beyond that. It is to address the conflict that would exist if the section is left in as it is today.
I heard some statements to the effect that there is not in the guidelines the income of the custodial parent. You must look at the income of the non-custodial parent alone. I had a lot of trouble with that. The first time I read the position of the committee in 1995 I did not understand what it meant. I had to go over it again and again. Finally, it was explained to me and I began to accept the rationale of it. When you look at the examples you were given the other day by someone who knows more about this than me, I think it becomes a lot clearer. It does not make any difference anyway. If you were to use both sets of incomes, you would come up with about the same amount of money.
In any event, the thrust of the whole point is that guidelines are important. What set of guidelines or how you refine them is, perhaps, of lesser importance today.
There was some concern about the wording "in a substantially equal way" in the potential guidelines. There was talk to the effect that if there were shared custody and that phrase were used, then we should calculate the child support differently and not look at the guidelines. That is the theory behind it. There was a problem as to whether that means 50-50 or 60-40. What does it really mean? I rather liked the phrase "substantially equal." Before I heard all the problems about it, I thought that as a judge I would look at the words "substantially equal" and say, "What is happening here?" It is not just a time element. It is not necessarily conclusive that it is 50-50, 40-60 or whatever. It includes a lot of other things. It includes how you spend your time. Perhaps the father has the children 40 per cent of the time but does not do anything with them except take them to the movies. The mother, perhaps, spends 60 per cent of her time driving them all over the place, such as to music lessons, swimming and hockey. It is not just a time element; it is what you do with the time.
If I were weighing the phrase "substantially equal way," I would look at all those things, not just time. I would not get too hung up on 50-50, 40-60 or whatever.
Senator Jessiman: If the father were the non-custodial parent and he was spending his 40 per cent of the time doing all the things you were suggesting the mother did, would you think they were substantially equal?
Mr. Halvorson: That sure looks like substantially equal to me. That is the way I look at it.
Senator Jessiman: It is too bad you are retired because I would like to see whether that could be binding on judges of equal or lesser stature.
Mr. Halvorson: I do not think I reflect a thinking that is much different from that of my colleagues. I know basically how my colleagues deal with these things.
Senator Jessiman: I hope you are right.
Mr. Halvorson: I heard some mention about judicial independence and interfering with the discretion of judges to set the amount of child support. We must always keep in mind that judicial independence is not for the protection of judges; it is for the protection of litigants. It is to ensure that judges are not leaned on by someone and therefore prejudice litigants. If guidelines are imposed on judges, I see that as a benefit for litigants, not an interference with the independence of judges.
With regard to seizing the assets of the father, there is a hang-up about passports and that sort of thing, and I can understand why. We have a lot of trouble with self-employed fathers. You cannot get at them. They can fix their affairs so that you cannot do anything about it. We have to be able to take their drivers' licences away and that sort of thing in order to really make it pinch, because we cannot get money from them. You just cannot do it. There have to be devices to get at these guys. As a last resort, I think you must have other measures, otherwise you will never get at them.
With regard to meeting time frames, it could be a disaster if the income tax amendments go through and institute a tax neutral position with child support and there are no guidelines to fall back on. Thousands of existing support orders will come before the courts when tax neutrality comes in. They will qualify to be revisited because the amount should be different now that there is no tax implication.
When I was still on the bench, we discussed how we would handle the thousands of applications that would come before us. I was lobbying for an administrative process whereby a lawyer or a retired judge would deal with them all by simply looking at what the husband is now earning and applying the guidelines. That is an easy exercise which could be done administratively. However, it cannot be done administratively if there are no guidelines, because in that case the only thing you have to fall back on is means and needs, and only judges can do that because one must begin weighing evidence. It will be a disaster. There will be thousands of these cases, and I do not know how the courts will handle them.
I leave that for your consideration as the way I see it. Others will see it differently.
The Chair: You may have a very big job when you get back to Saskatchewan.
Mr. Halvorson: I would like to assist you, if I could, by answering any questions. I am not an expert in this field. I simply have some opinions.
Senator Losier-Cool: I would like to hear more about the responsibility for children at university. Statistics show that a very small percentage of single-parent students can attend university. The Senate Subcommittee on Post-Secondary Education heard from many associations representing university students. One of their major recommendations was that they want the federal government to give special help to single-parent students.
You have put it so clearly. I am not a lawyer; I am a teacher. I find means and needs, to use your words, a possible solution to that problem. I would like you to convince me of that.
Mr. Halvorson: I was offended by the way judges made the law. Parliament never said in the Divorce Act that parents had to assist in financing post-secondary education. Judges read that into the act, so it became the law. That is what offended me. That is for legislators to decide, not judges, but the judges did decide. They imposed it and it became the law.
It is strange that so long as you stay with your spouse, you do not have to support your children in university, but if you separate, then legally you must. I am all for parents helping with their children's education, but I cannot see why it is compulsory only if you separate. In logic, it makes no sense to me. I am certainly not against children having an education.
Senator Losier-Cool: It is a moral responsibility.
Mr. Halvorson: It is a moral matter. How does it become a legal responsibility just because you cannot get along with your wife?
However, that is water under the bridge. That is an argument I lost a long time ago.
Senator Losier-Cool: Why is it water under the bridge?
Mr. Halvorson: That is because nearly all the provinces now have legislation making parents responsible to contribute to the university education of their children. It is the domain of the provinces, and many of the support applications come under provincial jurisdiction. Therefore, it will happen anyway under provincial law. Lawyers will simply apply under the provincial act in order to get child support for university kids if they cannot get it under the federal law.
Senator Jessiman: Does the provincial law apply only to separated couples?
Mr. Halvorson: Yes.
Senator Forest: I want to be clear about this. I thought that is what you said before. Whether or not this goes into the new legislation does not make much difference.
Mr. Halvorson: It will not make one iota of difference. It simply brings the legislation up to date with the law, as strange as that may seem.
Senator Phillips: Did I understand you to say that we are essentially attaching provincial legislation to this act?
Mr. Halvorson: That is not quite right. This change to the federal act only brings the federal legislation in step with provincial legislation and in step with what the Supreme Court has already imposed on the Divorce Act anyway.
Senator Phillips: If a province wanted to change that, what effect would this legislation have on it?
Mr. Halvorson: It would have no effect. If a province changed its legislation, it would have no effect on the Divorce Act.
Senator Phillips: No, but would Bill C-41 have any effect on the ability of the province to change the law?
Mr. Halvorson: No. What actually happens in practice in Saskatchewan, for example, is that the wife leaves, kicks the father out, and sues for child support under the provincial legislation and under the federal legislation at the same time. She can follow both routes as far down the road as she wants. She can only get one order, in the end, but she can follow both routes as long as she wants.
She could get an order for child support under the provincial legislation covering university costs even if it was not in the federal act. It would just stop there. She can continue on and get it under the federal act even as it is today because the Supreme Court has said so.
Senator Jessiman: Are you saying every province has that?
Mr. Halvorson: No. I only know Ontario and Saskatchewan have it.
Senator Jessiman: By passing this, it will affect all. Those provinces which do not have it, by putting it in here, gives divorced couples the right that some provinces have today but not all.
Mr. Halvorson: No. A person would still sue for child support under both the provincial and federal legislation.
Senator Jessiman: If the provincial legislation does not provide for the education of a person that is no longer a minor --
Mr. Halvorson: You would have to rely on the federal legislation.
Senator Jessiman: If the legislation in the federal Divorce Act does not provide for it and the provincial legislation does not provide for it, they cannot get it.
Mr. Halvorson: That is not quite so. If the federal legislation did not provide for it and the provincial legislation did not provide for it, one could say that. However, we must remember that the federal legislation, unamended, does provide for it only because the Supreme Court has said so.
Senator Jessiman: Can you give me the case?
Mr. Halvorson: Yes, it was a 1976 case, and Mr. Justice Laskin was involved in it. I cannot pin it down other than to say that it was 1976. It is in the Supreme Court Reports and it is in the article I wrote about this issue. This is the leading case that put us into this situation.
A Manitoba judge, to his great credit, said otherwise, and I agreed with him.
Senator Jessiman: Do you remember which judge?
Mr. Halvorson: The Court of Queen's Bench in Manitoba. In any event, he lost the war, and the Supreme Court ended up saying education is covered.
Senator Jessiman: Well, the Supreme Court can reverse itself.
Senator Cools: They change their mind from time to time.
Senator Jessiman: You know there are guidelines, as Quebec is going to have, where they do take into account both parents' incomes.
Mr. Halvorson: Yes.
Senator Jessiman: Do you think that is fairer?
Mr. Halvorson: I do not think it makes any difference.
Senator Jessiman: Let me explain to you how I think it makes a difference. The department tried to explain it to me by writing me a letter. This letter is from the Department of Justice dated December 5, 1996. It reads, in part:
The standards of living of the child and the custodial parent are inseparable because the child is residing in his or her household.
They say that if the custodial parent increases her income, then the child gets that benefit. I would agree with that. The non-custodial parent is how we determine this now because we only have one guideline, and it only applies to the non-custodial parent. He has to pay X number of dollars for that child. The custodial parent gets an increase and the child benefits. There is no question about that. If does not affect the husband either.
Now, if joint incomes were the case and they are both contributing, let us assume she had to pay 40 per cent and he had to pay 60 per cent. That is what they had determined. A certain amount should be paid. If she increases her income, that child receives the benefit. The husband still has to pay, which I say is unfair. However, if we increase his income, he has to pay more now. He is already paying X, but he now pays X plus whatever. It does not just go to the child; it goes to the spouse. It increases the standard of living of both, and that is not the intention. This intention is that it is just for the child. That is where they miss out.
Mr. Halvorson: I understand what you are saying, and I do not disagree with you. I am not here to beat the drum for the feds. I am here beating the drum for me because I feel strongly, after so much experience on this issue, that we must do something about the disparity which arises.
Senator Jessiman: I agree.
Mr. Halvorson: Whether the guidelines take this form or that form, I do not think is important. However, I support the approach that the federal government has taken. It is the right way. The difference between doing it the way you are suggesting and the Quebec way is not worth the candle at the end of the day. I do not think the difference is significant. I cannot disagree with you, senator. Your argument is as good as mine.
Senator Jessiman: One of the previous witnesses quoted an article. He was talking now about the feds doing just the non-custodial parent paying. However, he is saying now that there are good policy and psychological reasons for utilizing a model which takes account of both parents' incomes and household size. Quebec is developing a good one.
I have another, separate point. It might have been fairer, as far as income tax is concerned, that they left those who were already divorced and who had received orders paying a certain amount, whatever the amount might be. They are getting relief from income tax, and the wife has to take it into her income, certainly in the latter years.
When did you retire, sir?
Mr. Halvorson: Last year.
Senator Jessiman: From what I understand, the judges were kind of grossing up income and taking income tax into account.
Mr. Halvorson: We are supposed to.
Senator Jessiman: In the latter years, lawyers were certainly cognizant of it.
Mr. Halvorson: They were getting better at it.
Senator Jessiman: It might have been fairer, as far as income tax is concerned, that they left those who were already divorced and had already received orders -- now if the orders had to be increased, so be it -- but they left them and grandfathered them. Then anyone else who was to divorce or separate where there would be payments for child support, they would know in advance what their situation would be. They could have grandfathered them. What do you say to that?
Mr. Halvorson: They could have. As I understand it, the situation would be that the old orders were made, in effect, and it is only if someone triggers the change.
Senator Jessiman: You can be sure that someone will trigger it if it is to their financial advantage.
Mr. Halvorson: I suspect that is true. Grandfathering is as good a position as others have taken.
Senator Jessiman: I would have thought that, as a judge, you might have preferred having the guidelines and saying that if the judge, under the circumstances, thought there should be some variation -- maybe 10 per cent either way -- there should have been more flexibility. You are bound. Do you think you are better off not worrying about it or taking into account flexibility?
Mr. Halvorson: I think if you give the judges too much flexibility, they will destroy the guidelines. We cannot be trusted with all of this discretion. We proved it in the past by getting ourselves into this predicament. We did this.
Senator Jessiman: I know from experience in the United States that some judges just ignored the guidelines. I would have thought that judges, of all people, might want some discretion because, as you know, there are different circumstances and every case is not the same.
Mr. Halvorson: We hope that the exceptional circumstances built into the guidelines as proposed will cover most of those problems. There will always be anomalies, but most of the real problems should be picked up in the exceptions that are there.
As I read through them, I thought that those cover most of the things I can think of. We will always miss something.
Senator Jessiman: When I spoke to the Minister of Justice about this, he did not think it was a problem at all. The guidelines are notched in thousand-dollar increments. If you make $20,000 a year, you pay so much. If you make $20,001 a year, you pay much more than a dollar of additional support payments. They have not scaled that properly. They do not prorate it. If you make $1 more, you may pay $10 a month more in support payments.
Mr. Halvorson: You are probably right. I had not thought that the difference was so significant, but perhaps it is.
Senator Jessiman: I know I am right.
The Chair: Do you feel this will cause an increase in litigation?
Mr. Halvorson: Absolutely not. I have seen what happened when we applied them, somewhat clandestinely, in Saskatchewan.
The Chair: What about with the changeover after the tax change on May 1?
Mr. Halvorson: Let us call an application to the court to vary, based on the new tax rules, litigation. There will be a huge amount of litigation in that sense unless we control it at the beginning by having the guidelines in place and some sort of an administrative body to deal with them perfunctorily. I am referring to a body which can say to the parties: "Here is your old order. Under the guidelines and the tax-neutral provision, here is your new payment. That is what you will pay."
The Chair: How can we ensure that happens?
Mr. Halvorson: I am hopeful that the $50 million the federal government has earmarked to implement the new system will be used, at least in some measure, to hire people to do that sort of thing so it does not have to come before the courts. It is more complicated than that, but before I left, I was advocating that some of the $50 million be used to hire people to handle the routine alterations that will be made because of the income-tax-neutral provision.
The Chair: The costs would not be borne by the individual.
Mr. Halvorson: I hope that people will come in without lawyers and that it will just be a matter of arithmetic. Some cases will not happen that way. The father will say that under the guidelines and by the calculations he is obliged to pay only $300 now instead of $400, and the mother will say that may be so, but she needs more money because of special circumstances.
The Chair: However, for those at the bottom of the economic scale, the less fortunate who already have an agreement, this could help them by not having to go through a lawyer and having to pay a lot of fees.
Mr. Halvorson: I hope the vast majority will be handled in that fashion so they do not have to go to court. Those cases can be handled in some kind of administrative way, but I have not entirely thought that through yet.
Senator Jessiman: However, the $50 million is not for litigants; it is money for the provinces to set up certain administrative tribunals to help do this. If people wish to be represented and do not feel competent to do it themselves, they will engage lawyers and it will cost them money.
Mr. Halvorson: That is my understanding.
Senator Cools: Why are lawyers so costly?
The Chair: Can we put a lid on that cost?
Senator Cools: I watch some of these people operate and charge $250 an hour or $300 an hour. They will send you a bill for $10,000 without thinking. I could not charge anyone $300 an hour for my time.
Mr. Halvorson: I have not seen any bills as low as $10,000 for a long time.
Senator Cools: Why is it so costly? Will anyone look at that issue one day?
Mr. Halvorson: I do not know. Lawyers have high overheads, and I can appreciate that. I do not want to get into this.
Senator Cools: My next question deals with the issue of access. I would like to come back to what the Ontario Attorney General, Mr. Harnick, had to say in basically confessing his own impotence in not being able to do anything.
The Chair:The witness spoke to access but you were not here.
Senator Cools: What can this bill do to address issues of access?
Mr. Halvorson: It cannot do anything unless you want to make it the law, perhaps, that if you frustrate access, child support can be withheld from you. That would be very effective, but it has the downside that you are well aware of, which makes it pretty much unmanageable.
While you were out, I mentioned that, for example, Saskatchewan has set out a lot of things we can do to obstreperous mothers. There were things we have always been able to do but have not done in the past. When you see it written right into the legislation, it gives you more confidence. Judges are timid about throwing mothers in jail. Judges are timid about taking custody away from the mother and giving it to the father and saying, "How would you like to see how it works the other way around now?"
Senator Cools: Why are they so timid about that?
Mr. Halvorson: I think primarily because it does not appear to be in the best interests of the children.
Senator Cools: On what grounds?
Mr. Halvorson: Is it really so easy to take the children away and give them to the father? If he lives across the street and he is a good father, it is not a problem, but if he lives in another town or another province, it is difficult. The kids are uprooted and have to deal with a new family, new friends, a new school and a new daycare.
Senator Cools: I see cases daily where one of the parents has custody and moves to Australia or San Fransisco or far away. Obviously it does not matter then that the children are taken away.
Mr. Halvorson: You are right; it happens.
Senator Cools: It is happening quite frequently. I am pleased to hear you speak of the timidity of judges and to get some admission of it on the floor because I have a lot of friends who are judges and ex-judges, and they tell me the same things. In some instances it is not timidity; in some instances it is downright fear.
Mr. Halvorson: I disagree with you. There are many cases where I would have liked to have said to the woman, "If this happens again, you are getting 30 days in jail, and I am going to reserve this file to myself to see that it happens." However, then I have to say to myself what will I do with the kids in the meantime? Perhaps dad can look after them and perhaps he cannot.
Senator Cools: You are taking the example to the extreme. What I am saying is that that person should be made to understand the frustration and the displeasure of the court. Whether one goes to a totally punitive or totally criminal sanction is another issue. I have read dozens and dozens of cases about this, and you can actually see the judges going around and around trying to find every single word to admonish wrongdoing. No one wants vengeance. It is undesirable under any conditions.
Mr. Halvorson: What we could do easily and what we do not do -- I did not do it, and I am as guilty as any of them -- is take the children away from the obstreperous mother who would not allow access to the father and say: "Now you will be the access parent, and he will be the custodial parent; let us see how you like it and see how it works." It is not that easy.
Senator Cools: It is a very difficult situation. There are cases that I worked on years ago, and then, as those people grow through time and let go of some of the bitterness, I have seen many tears spilled literally as they begin to understand the consequences of their actions.
I will give you an example. A couple of weeks ago I attended a meeting in Winnipeg. There is a particular women's shelter which hands out a lot of very ugly advice. One particular woman took that advice, told lies, got the guy arrested, and now some years later is trying to figure out how she can repair that damage. Somehow or other we have to deal with the fact that these people are in pain and feel betrayed. They feel the other one has let them down. I have counselled many of these couples. It is very important that those of us who have authority, whether judicial or legislative, stay on firm and moral ground because they sometimes abandon the moral ground. It is very important for us to give those boundaries back to them.
You may not know me, but I used to run shelters for battered women. We had policies in our agency that when those husbands wanted to talk, we talked to them. I used to encourage my staff to sit between those men and women and talk to them. We were in a minority.
Mr. Halvorson: I agree with those who say that you cannot legislate this. It must be taught to people in a framework outside the court.
We pre-try all cases in Saskatchewan. You cannot have a trial unless you have a pre-trial conference. The judge sits down and he knocks heads. He tries to explain to the mother who has been withholding access that this is not your right. Your children have a right to access to their father. It has nothing much to do with you. You have a new husband and you would like to have a new little family and exclude the father, but that is not the way it is. You must get that out of your mind because when your child is 15 years ago old, she may come back and hate you for having been deprived of her real father. Sometimes that has more of an impact than trying to force something on them. This is something that you cannot legislate.
Senator Cools: I agree. I understand the problems in legislation. When you and other judges gather in your annual meetings or conferences, do you sometimes put this sort of thing forward for open discussion?
I have discussed this subject matter with many people, and they have all confessed their enormous frustrations to me.
Mr. Halvorson: Judges discuss this all the time amongst themselves. It is usually on this basis of asking for help with a case where one party will not abide by the order and will not allow the other parent to see the children, and there is no excuse for it. What can be done? That comes up all the time.
Senator Cools: As parliamentarians, what can we do to open up this phenomenon of discussion that you are talking about?
Mr. Halvorson: We must find the money to have counselling available for these people.
The Chair: Mediation came up several times.
Senator Cools: I thank you for your candour. It is one thing to see this bill on a piece of paper; it is another thing to see it in action out there on the ground.
The Chair: Thank you. Your experience has made your testimony very beneficial.
I have a three-page brief from Mark Raizenne who has been attending our hearings all day. This brief will be distributed.
The committee adjourned.