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Proceedings of the Standing Senate Committee on
Social Affairs, Science and Technology

Issue 4 - Evidence - February 10 meeting


OTTAWA, Tuesday, February 10, 1998

The Standing Senate Committee on Social Affairs, Science and Technology met this day at 10:00 a.m. to monitor the implementation and application of Chapter 1, An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act, the Garnishment, Attachment and Pension Diversion Act and the Canada Shipping Act, and the associated Federal Child Support Guidelines.

Senator Lowell Murray (Chairman) in the Chair.

[English]

The Chairman: Honourable colleagues, as I told you at our December 16 meeting, our clerk Jill Anne Joseph is now on maternity leave. The blessed event to which I referred on that occasion has taken place, and Ms Joseph has given birth to a new baby girl whose name is Morgan. On your behalf, I have conveyed our congratulations to her, the baby girl, the father, and all concerned.

This is by way of introduction to Nadine Huggins, who is our new clerk joining us today. I welcome her on your behalf and tell her that we all look forward to working with her.

You will have received from Ms Huggins a program for this committee which takes us to the end of March. We expect to meet at this time every Tuesday for the next seven weeks to carry out our mandate of monitoring the federal child support guidelines.

Beginning tomorrow, and probably for several weeks thereafter, Wednesdays when the Senate rises, this committee will meet to consider Bill S-8, Senator Haidasz's bill which passed second reading in the Senate and was referred to this committee. That bill would have the effect of lowering the legal limits of nicotine in tobacco products. Senator Haidasz will be here tomorrow to speak to his bill, and I hope to have witnesses from the Departments of Health and National Revenue and possibly also from the tobacco industry in succeeding weeks.

I see several hands going up around the table.

Senator Jessiman: I understood that I was seconded to this committee for this particular part of it. Am I permanently on this committee?

The Chairman: As of today, you are on the committee, senator. Further inquiries should be addressed to your party whip.

Senator Cohen: Four of us are involved in the joint custody committee which will meet tomorrow at 3:30.

The Chairman: Once again, I trust the party whips will address this and ensure that we have a quorum at this committee for quite an important bill tomorrow afternoon.

After we have heard from today's witness, I ask you to stay behind for the purpose of some housekeeping and budgetary matters involving both this committee and the Subcommittee on Veterans Affairs.

Colleagues, our witness today is Mr. Philip Epstein, QC. He is in family law with the firm of Epstein Cole in Toronto. He is a member of the federal government's child support advisory committee which advises the Department of Justice's child support team on the implementation of the child support reforms.

Let me state for the record that he was called to the bar of Ontario in 1970. He has had extensive experience in family law. The firm in which he is a partner specializes in civil litigation with an emphasis on family law. He has also had experience as an editor and contributing author of family law bar admission course materials, as past chair of the family law section of the Canadian Bar Association of Ontario, as a member of the Toronto General Division Family Law Bench and Bar Committee, and as a member of the Ontario General Division Family Law Rules Committee. He has been a bencher of the Law Society of Upper Canada since 1984 and received the 1998 award of excellence in family law from the Canadian Bar Association.

Mr. Epstein filed a brief which has been sent to members of the committee. It is not over-long. Mr. Epstein tells me his brief is cogent and understandable to a non-lawyer. I congratulate him on this. He tells me he will not read his brief into the record but rather will take us through it.

Mr. Epstein, welcome. Please proceed.

Mr. Philip Epstein, Q.C., Family Lawyer: Thank you. I am always happy to come to Ottawa and speak about the guidelines in which I have a significant interest.

Some of you may remember that I was here just before the passage of the guidelines. I urged upon committee members at that time that they resolve their differences, make some compromises, and send the bill on for passage. I understand that, certainly not through my doing but as a result of other discussions, compromises were made and the bill became law. I congratulate senators for their role in that because it is the most important and significant development in this country's family law in the last decade.

There is no doubt that more work needs to be done in the area of the guidelines, particularly in the area of enforcement. As I have noted at the end of my paper, work needs to be done and is about to be done, I understand, in the house and Senate committee on the areas of custody and access. No doubt doing all of those things together will bring balance to the issue of the rights of children and the rights of parents who have responsibility for children in this country.

The child support guidelines became law on May 1. It became apparent immediately thereafter that the provinces were not entirely ready for the guidelines. As a result of fits, starts, and delays in this legislation, some provinces had doubts that the legislation would come into force by May of 1997. That delay by the provinces turns out to be entirely fortuitous. It has given the provinces time to catch up with their own legislation, and, for the most part, most of the provinces of Canada have adopted or are in the process of adopting the Federal Child Support Guidelines.

The delay, however, has meant that the courts have not been flooded with applications simultaneously arising under the Divorce Act, which is the federal statute, and the various provincial statutes. Therefore, although there is an increasing trickle of cases in both the federal and provincial areas, the hiatus between the federal bill and the various provincial bills has allowed an orderly introduction to the guidelines.

The guidelines have undoubtedly introduced predictability and certainty into the issue of child support. Many in this country would criticize the guidelines as being too high, too low, or too inflexible, but no one doubts that they have introduced certainty and predictability. Let me deal with that aspect first.

Most of the common-law world has recognized that trying to resolve child support issues on a case-by-case basis was counterproductive, costly to parents, used up a considerable amount of court time, and aggravated already difficult situations when parties were separating and divorcing. Any system that produces predictability and certainty will benefit the public at large, particularly parents who are separating, and more particularly the party who has responsibility for child care and child responsibilities.

The guidelines, however, were not a complete formula or table-based approach. The Government of Canada, in conjunction with the National Family Law Committee, over a long period, emerged with a proposal consisting of primarily a table amount. You look at the income of the payer and the number of children and determine the amount on the table that should be paid, but, in addition, the legislation provides that the parties proportionately share special or extraordinary expenses. These are what some call the section 7 expenses but what the bar and the courts have quickly begun to call the add-ons.

It was predicted at the time this bill was studied that the add-ons would lead to the most litigation, and that is clearly what has occurred. That is not surprising since, for the most part, divorcing couples look at the tables to establish the base amount. However, the area in which there is room for discretion and argument is the so-called add-ons.

Fortunately, in the vast majority of Canadian homes, the add-on list is not extensive. The primary add-on is child care that is triggered by the custodial spouse going to work or going to training. It is not child care simpliciter but child care that assists parties who need to be out of the home either for training or for going back into the workforce. It is sometimes an expensive add-on that must be shared.

From my experience over the past eight months, parties are not disputing the issue of child care but the issue of extra-curricular activities and whether they fall within or outside the guideline. There has been much litigation across the country about this particular topic. Although one judge out west has written a very long judgment in an attempt to clarify what special or extra-curricular expenses ought to be covered, it is by no means certain that courts in Canada are providing a uniform approach.

The advisory committee intends to review this section of the guidelines, and this committee ought to review it, because it needs further work and further clarification. The object of guidelines is to reduce dispute, and if you rework this section so that it is more easily clarified and becomes more predictable, you will discourage people from attempting to litigate and find creative and unique ways out of the guidelines.

The second area that the guidelines covers in which there is discretion is the area of shared parenting, which took up much of the time of this committee last time. It was thought that this would lead to a great deal of litigation, and, surprisingly, for the moment, if has not. This section provides that where the non-custodial parent has the child for 40 per cent of the time or more, there can be some variation from the table amounts.

This 40 per cent figure, I gather, was arrived at very late in the day as a result of discussions between the Department of Justice and the Senate -- in particular, this committee. The problem with the 40 per cent figure is that it is nowhere defined, and courts are struggling to establish what this 40 per cent means. Does it mean 40 per cent of the waking hours? If the father has the child from Friday night to Sunday morning, does that count as four days? If it does, and if the mother has the child for most of Friday until she turns the child over and then gets the child back Monday, that must mean there are at least nine or ten days in every week. Even in the Senate, there are not nine or ten days in every week.

It is difficult to calculate what this 40 per cent means. Some judges have made some attempt, and there is some jurisprudence, but this section, in my respectful submission, is doomed to failure. The 40 per cent is a figure out of the air. It needs further refinement.

When an access parent exercises unusual time with the child, there is no doubt whatever that there ought to be some relief from the guidelines and some discretion. The problem is in designing a better mousetrap or a better section than we currently have. It ought to be revisited. The principle is sound, but the mechanics of this section are not and are causing litigants difficulty.

It was thought that some litigants would use this section to try to get more time with children in order to get out of the guidelines. In the eight months that I have been involved as a lawyer and as a member of the bench and bar committee in Toronto, in what I am told is the busiest family court in the country, I have not seen that. We have seen a minimal number of cases in which people are fighting over access when they are really fighting about money, so some of the concerns I have about this section have been somewhat abated by the experience.

The courts in this country are almost overwhelmingly in favour of the guideline approach. From time to time, they have commented on the difficulty in understanding what the legislation intended, but literally hundreds of cases are being decided in Canada every day. Within a year or so, there will be significant direction from the courts of a higher level making it clear how this legislation is to be interpreted. There have been virtually no appellate decisions in this country on the guidelines, although some are expected shortly, particularly from the Ontario Court of Appeal, and they will have a significant effect in clarifying the legislation and reducing the litigation.

One of the more interesting features of the guidelines requires that parties who separate provide annual income information at the request of the other spouse. This section troubled the bar initially because they had been taught over the decades that you best design a settlement where you create a clean break between the parties. However, bearing in mind that child support guideline legislation is intended to help children, the bar has begun to rethink this and by and large are pleased with the notion that people must exchange information on a timely basis.

This has, in my respectful view, dramatically reduced game playing. Previously, if you did not want to pay as much support as you might otherwise have to, you would defer a raise or bonus or do all sorts of things in order to defer income. The theory was that you were safe once you settled. Now that you must provide income information on an annual basis, it eliminates that kind of game playing and moves people on to a more direct approach.

There is also the fact that everyone is treated equal -- that is, everyone pays roughly the same amount in accordance with their income. This has had a salutary effect on settlements. It was always a problem in family law when the payor or recipient sat with their friends -- the cheerleaders, as we call them -- who would tell them they could get a better deal, or a better lawyer, or they were paying too much or not getting enough. It would stimulate further litigation. This legislation has had a great levelling effect. When you have a level effect, more people are encouraged to comply with the guidelines.

It is too early to tell the effect of the enforcement legislation in Canada. You will be hearing about enforcement from others in the course of your hearings. My paper did not deal much with enforcement since, in the middle-class court in which I practice, enforcement is not the height of our problems.

Nevertheless, enforcement is a constant issue before the courts and before the bar. The threat of losing a driver's licence, as now happens in Ontario, and the threat of losing a passport are significant incentives to pay support. However, the government can do more in the enforcement area and ought to consider a national program on enforcement to further encourage people to comply with child support orders.

The amount of child support in default in this country is simply staggering. The other citizens of the country pay a significant increase in their own taxes, whether provincial or federal, because many people who are owed child support are forced onto welfare. This is a social issue of concern to all Canadians, and we have not gone as far as we can in terms of enforcement.

The federal changes to the Income Tax Act were not largely supported by the bar. They were no doubt largely supported by women's groups which, in light of the Thibodeau decision, urged the Minister of Justice and the Minister of Finance to amend the Income Tax Act to end the deduction and inclusion system.

Those who have agreements prior to May 1, 1997, can continue with the deduction and inclusion system. Because of that, large numbers of people have adopted not to trigger new applications under the guidelines.

By and large, and for whatever reason, men earn more than women in this country. They are in a higher tax bracket. Women are generally the custodial parent. By and large, women benefited from the deduction and inclusion system. That being so, they are reluctant to have their agreements reopened and see those benefits go down the drain. Although they may get more on a table amount, it may not be worthwhile for them after making the adjustments. It may be such a significant penalty to the payor who losses the deduction that it causes more trouble to the family than it is worth.

I personally did not support the change to the deduction and inclusion system. I thought it was a poor idea then. I thought it was an ill-conceived plan by the women's groups in this country. Middle-class and poor women in this country have not benefited from this change. I think the government should revisit this issue and consider alternatives to the current plan. It is unlikely that it will be rolled back, but making it optional might be a better way to deal with this. In the long run, it benefited only very small groups. It may have benefited Mrs. Thibodeau, but Mrs. Thibodeau is not reflective of the vast majority of child support recipients in this country.

I congratulate the Senate and the House for moving ahead in the custody and access area to strike a balance in this legislation. I encourage the committee to continue to look at the issue of enforcement and, if it has sufficient time, to revisit the issue of the deduction and inclusion system.

I think the guidelines are working well; I think over the years they will work better. After five years, when the review is undertaken, we can take a comprehensive look at whether these are the best guidelines and whether they have worked in the best fashion. There is no doubt that guidelines are the way to go, but it is too early to tell whether these are the best guidelines. They seem to be working well, but they may be able to work better. Substantial revisions may be more helpful, but it is too early to tinker with them in a major way.

Senator Jessiman: You are correct in that the 40 per cent has caused some problems. When the non-custodial parent spends 40 per cent of his time with the children, perhaps we should take into account not only the non-custodial parent's income but also the custodial parent's income. The way it was worded, a non-custodial parent could have had custody of the child for eight hours a day, seven days a week, and received no consideration whatsoever from the custodial parent. The person had to stay overnight 50 per cent or more of the time, and that was not fair. You are right in that it was a compromise.

You say it has not worked. I know a tax lawyer who is separated, and I assume he is divorced now. I do not know that for certain. He has custody of his two children for three days, and the wife has custody for four days. They both work. In their case, the formula works.

This is not a strict formula whereby you consider only the two incomes when determining what each parent should pay. The third part is that other matters can be taken into consideration.

I suggest that the percentage should be less than 40 per cent. In most cases, if parents have custody of their children, it costs money. We should have legislation encouraging parents to have custody of their children, whether for 40 per cent of the time, 30 per cent, or whatever it might be. If it costs one parent money, to some extent it is saving the other parent money at the same time.

Do you have any suggestions as to what you think the change should be? You surely cannot mean that a person must have the child in excess of 50 per cent of the nights before financial considerations for the custodial parent must be taken into account.

Mr. Epstein: Certainly not, and I am not sure that that was the last draft before you before the 40 per cent rule was taken into account. The last draft I saw talked about substantial time.

There is no doubt, senator, that you are right. If the parties share time with the child in a very substantial way, there ought to be some adjustment to the table amount. I think that principle is generally accepted. However, you must balance trying to create a "guideline certainty approach" with calculating what that time should be.

Senator Jessiman: You said it was the reverse. The words "substantial time" were included in that sentence without the word "overnight". I questioned witnesses and gave them some examples of persons having less than 50 per cent of the time. They said that, to their minds, that was certainly substantial.

The people on behalf of the women's groups and those who were bringing this bill forward did not like that. They thought, "My goodness! The courts will say that it is less than 50 per cent, and that is substantial." That is when they brought in the 50 per cent rule and added the overnight aspect.

Mr. Epstein: I did not like that draft any more than I like this draft. Some other jurisdictions, particularly in the United States, have adopted an attempted formula approach by deciding that, when a certain threshold is reached, you apply a formula approach and determine what it should be with greater certainty.

The advisory committee will look at this over the next few months. I do not think anyone has a better idea yet. We knew this would be a troublesome section from the start. Everyone recognizes the principle that the more time you have with a child, the more likely there should be some relief from the guidelines.

I do not think I said that it does not work. I said that it needs more clarification and certainty. You do not want to encourage thousands of people to litigate over this section. The 40 per cent is a bit nebulous. It is uncertain as to what it means, and different judges have taken different views. If you count 40 per cent simply by counting days, you end up with 400 or 500 days a year. However, if you count it by hours, it is uncertain whether you count waking hours or the hours the child is at school. It is a difficult section to interpret. It needs more work.

Senator Jessiman: It could be brought to the Supreme Court. Then we might know what it really does mean.

Mr. Epstein: I think you should fix it before it gets there.

Senator Jessiman: I wish to refer you to the Divorce Act and the definition of "child of the marriage". Do you have the act in front of you?

Mr. Epstein: Yes.

Senator Jessiman: It says that a child of the marriage is a child of two spouses or former spouses who, at the material time, is under the age of majority and who is not withdrawn from their charge. It also states that a child of the marriage is also one who is of the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life.

I read the part of your document in which you gave a number of examples. I will give you an example. You tell me whether the guidelines provide what I think they provide under the following scenario.

A man and wife divorce. The children are very young. An order is given awarding custody to the wife. Several years later, one of the children attains the age of majority. The order is silent as to whether that child is a child of the marriage. The order is silent as to the child, by reason of illness, disability or some other cause -- as you and I know, that means higher education -- is unable to withdraw from their charge. I do not agree with that particular interpretation, but that is all right. The Supreme Court says that that is what it means. However, the order itself is silent as to that child remaining within the marriage for these reasons set out in paragraph (b).

I do not think these guidelines say that. I am referring to section 3(2), which states:

Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support order is

(a) the amount determined by applying these Guidelines as if the child were under the age of majority;

Mr. Epstein: The conjunction "or" is included in that paragraph.

Senator Jessiman: However, the court has said nothing at this point.

Mr. Epstein: That is not so. That is an understandable misunderstanding of how the court works.

Senator Jessiman: I think I know how the court works; I practised law for 50 years. What do you mean?

Mr. Epstein: I meant how the court works in terms of making these orders under the guidelines.

Until the passage of these guidelines, it used to be that the court would make an order for each child. If a court was ordering $600 a month and there were three children, the court would name the children, their ages, their dates of birth, and say that support is $200 per month for each child. Usually it would go on to say that this would continue "as long as they are a child of the marriage under the Divorce Act". That meant that the recipient parent would continue to receive $200 every month as long as that child fit the definition of "child" under the Divorce Act.

That has changed under the guidelines. Now, if you have two children, age six and ten, the court makes one order. It does not separate them because the guidelines move up from one child to two children to three children. It is not individual.

In this case, let us say the court made an order of $1,000 a month for two children. Approximately 10 years goes by and the oldest child becomes 19. What happens then? First, the parties can agree to leave the order alone and it stays in force if that child is still in school, because reaching the age of majority is not a cut-off point. It is only falling outside the definition of "child of a marriage" that becomes the cut-off point. If the child is in school and the parties leave well enough alone, then the order continues in force.

However, if one party or the other wishes to deal with that 18-year-old, either because he is going off to school or for some other reason, then the variation provisions of the Divorce Act provide that any change in circumstances that triggers a different result under the guideline can be brought to a court. The coming of age of majority is a circumstance under the guideline which automatically gives every recipient of child support and every payor of child support an automatic right to go to court to have the amount revisited.

In the vast majority of cases, the parties will agree either that the amount is appropriate or that there should be a table amount for child one and a different amount for child two. The parties or the court may decide that with respect to child two, the child over the age of majority, the guideline amount is now inappropriate. It might be inappropriate because the child has a part-time job earning money while going to school or it might be because the child is based in Toronto but going to school in Victoria. There are different considerations. It might also be because there are increased access expenses. There might be a host of reasons as to why the order would be changed, but the parties do have an automatic right. One of the clever features of this act allows an automatic change.

Senator Jessiman: Perhaps I am not explaining it correctly to you. Let me try again, if I may.

The order is silent. It does not say when the child becomes of a certain age or over the age.

Mr. Epstein: You therefore do not know when you should stop having to pay support.

Senator Jessiman: The parties do not agree. The child is over the required age, but they do not agree on whether the child is disabled or whatever.

Mr. Epstein: I understand that. The mother is saying that she is entitled to receive support, and the father is saying that the child is not really at school, that he is fooling around taking night courses or whatever.

Senator Jessiman: That is right. The guidelines now say that until such time as you obtain a court order, you continue to pay, which is not fair. I would have no objection if it were the reverse. If the court decides that you pay more, you pay more. You pay under the guidelines. However, it should be automatic unless there is an order saying that the person is unable by reason of illness, disability, or other cause. If the order is silent, the parties cannot agree, and the facts are not clear, it is incumbent upon the non-custodial parent who has a child of majority age, not necessarily at school, not necessarily fitting this definition, to continue to pay unless he goes to court. That is unfair. I think it is unconstitutional. I think it should be challenged. I was hoping to get some support from you first.

Mr. Epstein: Senator, while I agree that there needs to be some adjustment with respect to people who have their child an unusual amount of time, or more than the ordinary amount of time, I respectfully do not agree with your suggestion here. The courts in this country have uniformly said that child support is the responsibility of both parents and that a child who is in full-time attendance at a school, college, or university pursuing an education is a dependent child. We know that the costs of education are rising. We know that the surviving in this economy is difficult for people without an education. We should promote legislation that allows children to get an education and not be completely over-burdened with student debt and student loans by the time they graduate. If that is the case, then you must allow children to be supported under legislation.

If the problem you perceive is that the order does not say when it stops, I say respectfully that it does say when it stops. The order says that support stops when the child is no longer a child of the marriage. If the child has dropped out of school and the mother continues to collect support, the father, on two days' notice, can go to court for a determination that the support has ended. Putting the onus on the recipient to go back to enforce an order or to obtain a further declaration that an order that has been made stays in force just because the child has turned 18 does not attract my sympathy.

Senator Jessiman: What province are you from?

Mr. Epstein: Ontario.

Senator Jessiman: Are you telling me that you can appear before a court with two days' notice? I can tell you that you cannot get before the court in two days.

Mr. Epstein: Senator, this is a straightforward determination of an agreement or a court order. In most jurisdictions in this country, you can serve a notice in two days and be in court in four days. In Toronto, you could be there in two days if you really wanted to, certainly within a week. There is no court in this country that you could not be before in a month. Since you only pay by the month, that does not seem to me to be an excessive burden.

Senator Cools: I have a great deal of correspondence on this issue. The conflict seems to arise not around the issue that a child in university needs assistance and support; the conflict seems to arise around who should receive the support, the child or the custodial parent. There are literally hundreds of cases in which the non-custodial parent is quite happy to pay support for that child but the conflict is with regard to who should receive the money. Do you have any data on such situations?

Although you say it can be changed in two days, I have much correspondence from people who tell me it has taken them two years or so to have it changed. Do you have any hard data? How can we get some hard numbers?

Mr. Epstein: I do not think anyone is collecting this data, but I will tell you why I think these things drag on. This is a serious public education issue. I think that people who think they are no longer required to pay support simply do not pay it, and the enforcement mechanisms in this country are so overburdened and slow that they do not get around to enforcing it for a very long period of time. There is a hiatus where no one does anything, and then, all of a sudden, in Ontario, for example, they get a notice from the Family Responsibility Office saying that they are $22,000 in arrears. All of a sudden they are 11 months in arrears and must scramble. It takes some time to get to court to straighten it out. That is a problem.

Senator Cools: You are not describing the instance of the parent who is trying to support the child directly; you are talking about the parent who is in arrears. I can cite you an example right now. It is quite fresh in my mind. The father pays $1,000 a month for a child who is about 20 and is away at university. The mother keeps $800 and sends the child $200.

Mr. Epstein: That is not how the section works.

Senator Cools: Perhaps not, but that is how it works in the real world. The parent who wants to see their child through university in these circumstances is quite often impaired by the other parent who wants the cash for him or herself. That is something we will have to examine. I was hoping you had some numbers.

Mr. Epstein: Under the guidelines with respect to post-secondary education, the legislation provides that the amount of that expense is shared by the spouses in proportion to their respective incomes, and it includes a consideration of what, if anything, the child should contribute. I think the guideline deals with university education expense in quite an appropriate fashion.

Senator Cools: We heard many witnesses last year who told us that --

The Chairman: This is becoming a bit of an argument.

Senator Cools: It is an important issue.

The Chairman: I understand that it is.

Senator Pépin: I agree that we must be more precise and have clearer legislation. However, I must say that I find it distressing that, when dealing with the custody of children, I have the feeling that legislation is being written much more for the comfort of the parents than for the protection of children.

My question comes from another angle.

[Translation]

It is a question of money. You also mentioned that the parents...

[English]

...fighting over access, but it is also because they want more money.

[Translation]

I know that the Act has not been in effect for a very long time. On the basis of your experience, are you able to tell us whether the children who spend 50 per cent of their time with one parent and 50 per cent with the other are happy? On the one hand, some young children adapt very well, and on the other, some adolescents need a nest, a stable point of reference. I know that there are no studies on this, but on the basis of your experience, what do you think? Has the children's welfare been taken into account?

[English]

Mr. Epstein: Your concern is an extremely important and obviously will be looked at by the joint committee on custody and access. This section of the guideline already presupposes that the parents have worked out some arrangement and therefore does not address how they work it out. That legislation is covered under the custody provisions of the Divorce Act.

Your question really concerns the role of joint custody and the role of parents in resolving these disputes among children. There is a considerable body of literature in the world about joint custody and the value to children. By and large, the authors of that literature say that different children in different cases require different things, and at different ages children require different things. Moving a one-year-old child back and forth between two homes on a week-on-week-off basis is not recommended by anyone. On the other hand, forcing a 14-year-old to go back and forth when the 14-year-old does not wish to is not recommended by anyone. One must strike a balance.

We do know from the literature that parents who resolve custody and access disputes amicably have children who can handle it. It is not so much the schedule but how the parents deal with each other. If the parents deal with each other well, children will generally do well no matter what the schedule. If parents deal with each other badly, children will suffer no matter how much time they have with the custodial parent and how much time they have with the access parent. It takes only moments a day to undermine the other parent.

Accordingly, I hope that, when the House and the Senate look together at custody and access, they will look at a new approach to resolving custody and access disputes. One size does not fit all. A presumption of joint custody is no better than a presumption of sole custody. We need a whole new approach to custody in this country, and we need to look at what other progressive countries are doing in this area. Once we have sorted out what that is, it may be time to revisit section 9.

If the question is whether one size fits all, the answer is absolutely not. It depends on the parents, it depends on the child, and it depends on the social environment in which they are raised. We are living with custody and access laws that have not been changed, although we have tinkered with them, in more than 50 or 60 years. It is time that we looked at this and brought some balance to this very important area.

Senator Cohen: Mr. Epstein, your experience and knowledge has certainly given us a lot of food for thought and presented many questions.

In your experience with the public and the lawyers and judges, do you feel that they have accepted the principle that the custodial parent is not to be considered when assessing the support obligations of the non-custodial parent?

Mr. Epstein: I am not so sure that that has reached universal acceptance. This was a very controversial section, and it was a novel idea by the National Family Law Committee. It would not have been my approach, but it is an approach that deserves study. At the moment, it does not appear to be causing the kind of controversy in action that it did when it was in draft legislation.

There was a considerable movement against this approach initially because it did away with an approach called the "Paris approach" which proportionately looked at these issues, and the lawyers had been used to that approach. However, by and large, lawyers and judges are beginning to see that the numbers produced are reasonable. The more they see that the numbers are reasonable, the less they are concerned with how they arrived at them.

I have indicated in my brief this is an issue that should be revisited at the end of the five-year period because I too have some doubts about this approach. I do not doubt that guidelines should be here, but I wonder whether this particular approach is more aggravating than it is worth and whether you could adopt the tables and look at some different formulas. I would let this have a fair run before I tinkered with it because it is becoming less controversial by the day.

There is still joint responsibility, although it is calculated a little differently. If the numbers being produced are reasonable numbers, and they seem to be working, then I am not so sure this controversy will not die away. It is too early to tell. It should be monitored.

Senator Cohen: In an amicable relationship, marriage or whatever, no parent is forced to send their child on to secondary education, to university. No law says, "You must do this." If I am reading this right, these guidelines say the non-custodial parent must pay for the secondary education of the child. I may be wrong.

I feel that if the custodial parent is able to contribute toward the education of that child, or if the child can be encouraged to contribute through summer jobs, that that somehow should be recognized.

Nowhere do we define what expenses for post-secondary education are or what constitutes a post-secondary education and how long it should last. We can talk about tuition, boarding, a second-hand car with a licence and insurance, all those implications that go with being on campus or travelling by plane. To make it simpler, there should be definitions in both these areas.

Mr. Epstein: I spent yesterday afternoon on an arbitration between two parents fighting over how much each should pay and what they should pay for post-secondary education, so the topic is quite fresh to me. Let me first deal with the first part of your question.

I do not think this section in fact forces parents to pay for post-secondary education because there is a threshold in section 1. The threshold takes into account the necessity of the expense in relation to the child's best interests and the reasonableness of the expense having regard to the means of the spouses and the child and the family spending pattern prior to the separation. If you do not meet that threshold of necessity, reasonableness and fitting in with the family's spending pattern, you never get to the issue of post-secondary education.

If, however, you meet that threshold, then the second part of your question comes into play. The custodial parent is required to contribute because under section 7.(2) of the guideline, in determining the amount of the expense, the expense is shared in proportion to their respective incomes. If a wife received spousal support, that would be included as her income, and she must pay a proportion of that for secondary expense. There is no doubt that the custodial parent does bear an expense. The issue I faced yesterday was a disagreement over what the percentages should be because there was some suspicion that people were not being forthright about their statements of income.

The courts have a long track record in considering what are reasonable expenses for post-secondary education. However, it would not hurt to further define it. For example, one of the disputes yesterday was whether it included the meal plan at the university. As the husband was paying child support under the guidelines, he said the meal plan should not be included in the post-secondary expense. Reasonable people could differ on that. I agree that it could require some clarification.

As a matter of real life, lawyers generally agree in separation agreements, by which 98 per cent of all cases are settled, that when the child starts post-secondary education, that there usually is a lowering of the amount of child support being paid in order to offset some of the costs of university.

Once lawyers become accustomed used to the guidelines, they will anticipate this problem, will plan for it, and will balance out a reduction in child support as an offset to the university expense to be paid. I do not think it includes the car, though, no matter how you stretch it.

Let me also respectfully remind you that the custodial parent who has a child away at university usually has that child come back five, six, or seven times a year. They must still maintain the home, must still clothe the child and give the child an allowance, because those costs are not part of university expenses, and still has an arguable case for why child support should continue.

Senator Cools: I wish to seek clarification on three points.

First, when you appeared before us last year on Bill C-41, you did not then and you do not now support the changes in the taxing scheme. What you said is not new; you said that to us last year. Many of us could not understand why the government was chasing down the Thibodeau decision to make a change. Most people have told us what you told us about not wanting a change in the tax scheme. However, you said today that most of the lawyers and most of the bar do not support it either. Could you amplify that statement for us, please?

Mr. Epstein: Senator, I have what I would describe as a middle-class practice. Ms Curtis, who has appeared before the committee, likes to describe it as a carriage trade practice, but that is an unfair characterization.

I act for people who are in relatively high tax brackets and who pay or receive relatively significant support. They are, for the most part, disadvantaged by this legislation. The husband normally paid in 46 cent dollars and the wife usually received in 60 cent dollars. There was a considerable benefit as a result of the savings in tax which was generally paid over to the wife and children. With the end of the deduction and inclusion system, there is less money available for support, both for children and for spousal support. The government gets that extra money.

Frankly, as an outsider, I watched this debate with some interest. My perception was that the women's movement rather forced this on the government. Their initial inclination was not to go along with this because they did not see the particular advantage either. The result is that they have a huge tax windfall. I suppose that is nice to have. That was the original goal; that was the end result. Revenue Canada is in it for the long haul, so they will pick up an extra couple hundred million dollars forever. That amounts to a significant amount of money. It was not a good idea.

The bar with whom I practice did not think it was a good idea at the time. It does help people like Mrs. Thibodeau who do not have to take it into account, but it has other implications. For example, if you receive child support now, you cannot use it as income to then get an RRSP. There is a real problem in this country as people get older because men tend to die before women. That leads to a considerable risk of feminization of poverty in this country. It is important that people build up pensions and RRSPs and the like. By not including child support in your income, you have lost an RRSP contribution which might be important down the road. That is one of the other detriments to this legislation to which people did not give much thought.

Generally speaking, I agree with you. I did not think it was a good idea at the time, and I do not now, nor do most of my colleagues. There is quite a significant number of others, to be fair, who see this legislation as a great idea and a great leveller.

Senator Cools: My position was consistent all the way through. I never wanted to see the tax structure changed. My position at the time was that women would be the greater losers and that the treasury would be the greatest winner. In any event, so it is. I would encourage all radical feminists to read this testimony.

My next question deals with the issues of your maturing point of view. Last year, you were before us on child support guidelines. I refer you to your testimony of December 12, 1996, page 17:35. You said:

It would be nice, in a perfect world, to tie child support to access. Other governments have tried and failed$when the Ontario government tried some six or seven years ago, the legislation was met with such condemnation that it was ultimately withdrawn before it was even proclaimed. I do not think, even in a perfect world, that you can tie access to support.

No one has ever proposed that access be tied to support. People have been suggesting that you cannot really look at one without looking at the other, that these terrible divorce situations are not situations where you can compartmentalize and say that this is not related to that. For the people who are separating and divorcing and fighting, it is all one large issue.

Today, in your written submission, you said:

...It is welcome news that the Government of Canada and the Senate intend to embark upon a study of custody and access through the joint committee that has been established. There is no doubt that one cannot deal with the issue of child support without dealing with the issue of custody and access andthere must be some balanced approach in dealing with the problem. The issues of custody and access need to be revisited and fundamental change is likely needed...

I put that in support of you, and in fairness to you. I wanted to put that on the record because it is important. You see a lot of this. I know that Ms Curtis will say you deal with a carriage trade, but the carriage trade still has rights. I thank you for that and for saying to us that the time has come to look at the issues of custody and access. We simply cannot continue this infantile, bureaucratic approach of insisting that they are not connected. They are very much connected.

When you appeared before us last year, you said that you were not so much committed to these guidelines as you were committed to the notion of guidelines. Today, you have stated again that the existence of guidelines has brought some certainty and some predictability. My question to you, then, is: Are you now more committed to these guidelines, or would you consider seeing some fundamental changes to them?

Mr. Epstein: Senator, I am frankly surprised at how well the guidelines are going. I anticipated more problems than have presently emerged. It may well be that because of the slowness in the provinces moving with their own legislation, more problems have not emerged as quickly as I thought they would. They are going better, I think, than anyone could reasonably have anticipated. I think they should be given their full five-year run, and then we will see if there should be fundamental change. I do not see any need at the moment for fundamental change. I did previously say that I am committed to guidelines, and I was not sure that these were the best; however, in light of how well they seem to be going, in light of how difficult it is to educate the bar and judiciary overnight, I think they should be given a fair run. It would not be wise to tinker with them too early. Three years from now we will have a much better opportunity, and I would then be in a better position to answer that question.

With respect to my earlier comments, I stand by them. It is dangerous to tie support to access in the sense that you cannot say in legislation that if you do not get access on a given day you do not pay support. That is what the Ontario government tried to do, and it also tried to create strict rules as to what happens when you do not get access. You do not get access for a variety of very complicated reasons: power struggles between parents, past hurts, vengeance, grief, anger. It is a complicated phenomenon. One must change the way people think about custody and access and put children's needs first. I agree that needs to be examined, but you must go incrementally.

The guidelines legislation was long overdue, so I supported its passage. I think the custody legislation is now long overdue. The risk was that if you tied them together, you would never get anywhere. Now that you are dealing with custody and access, which you will find to be an extremely complex problem, you are to be congratulated, but I would not have held up the guidelines until you resolved custody and access because that will take a long time. It takes a long time to change attitudes.

Senator Cools: You have been very up-front and consistent. I just wanted to note that.

My final question has to do with testimony that was put before us last year by, I believe, Mr. Ross Finnie. I think what Mr. Finnie said mirrored what you were saying. He made the point that these guidelines were intended to go along with the old tax structure. We should review this testimony. To the extent that the bar still has concerns and hesitation about the change to the tax structure, we should revisit Ross Finnie's testimony in the light of what Mr. Epstein has said.

Mr. Epstein: I very much doubt that, senator. By the time the guidelines and tables were designed, everyone knew the deduction-inclusion system was gone. I think they were designed with the new structure in mind.

Senator Cools: Perhaps they were, but I can look that up. I am fairly certain that he told us that these guidelines had been intended to go with the unchanged, the old tax structure.

Mr. Epstein: They are net numbers. They are calculated without the deduction.

Senator Cools: We can check. We are hearing consistently that the old tax regime was a desirable one. That is what I am hearing everywhere.

Senator Jessiman: I see in the paper today that Ontario is considering an arbitration system.

Mr. Epstein: Not in family law, senator. It specifically excludes family law for a variety of reasons.

The Chairman: Mr. Epstein, how many meetings have you attended of the child support advisory committee since May?

Mr. Epstein: Two, I believe, senator, and there is another one scheduled in Quebec City at the end of March.

The Chairman: I do not want to embarrass you or your colleagues; however, in general, would you say that the views you have expressed here represent a consensus?

Mr. Epstein: The advisory committee is very representative of the views across the country, and I think my views are representative of the experienced family law bar in Ontario and a good number of the members of the advisory committee, but certainly not all. The advisory committee has not talked about the deduction and inclusion system since it is not on its plate or agenda. I do not know what their views on that. However, the advisory committee agrees with me on the areas in this bill that need clarification. The advisory committee members are generally supportive of the guidelines and are surprised at how well they seem to be going.

The Chairman: What about the issue of post-secondary education, the add-on that you discussed earlier? Have those been canvassed in your discussions?

Mr. Epstein: They will be canvassed in more detail in March. We will start to look more closely at section 7 in March, along with the rising amount of litigation. The guideline approach was to use the add-ons, and we knew there would be some difficulty in having parties agreeing on what would be the appropriate add-ons. However, once some appellate court has dealt with this and we have done some tinkering with the wording, it will be much smoother, and I think they share that view.

The Chairman: Is there a case on this point before the Court of Appeal of Ontario?

Mr. Epstein: There is a pending case in Ontario on what happens if you earn more than $150,000, but only 2 per cent of Canadians earn $150,000 or more. That affects, therefore, very few people. There are some western cases. In particular, I refer the case of Middleton v. McPherson which deals extensively with section 7, and it is sort of the Bible at the moment.

The Chairman: Where is it now?

Mr. Epstein: It was not appealed, so it is just sitting there. However, there are other extraordinary expense cases working their way through the system. It will be at least a year before you see any appellate decisions on this.

The Chairman: Thank you, Mr. Epstein. I think the issues have been canvassed very thoroughly here, and I thank you on behalf of the committee for your contribution to our deliberations.

Colleagues, please take a minute with me to deal with a few budget matters. You have before you, I believe, a 1997-98 budget for this committee, for its work on legislation, to a grand total of $6,500.

When Senator DeWare was chairman of this committee in the last Parliament, a budget was passed for the purposes of our Subcommittee on Veterans Affairs and for the Special Committee on Post-Secondary Education. I am told there was no budget for the legislative work of this committee. We need $6,500 for that purpose. The chair will entertain a motion that the draft budget before you, which will tide us over until the end of March of this year, be accepted.

Senator Cohen: I so move.

The Chairman: Is it agreed, honourable senators?

Hon. Senators: Agreed.

The Chairman: The motion is carried.

There is one other matter, and it has to do with the Subcommittee on Veterans Affairs. The Subcommittee on Veterans Affairs has already availed itself of $5,000 in emergency funding, which was done according to our rules and procedures. Of that $5,000, they wish to spend $3,750 on professional and other services, which is to say a communications consultant. Hearings on the War Museum have attracted a good deal of media attention. Although the subcommittee already has the $5,000, in order to get approval to engage the professional services, the subcommittee must first seek approval of the main committee.

Honourable senators, I will entertain a motion that the budget they have put before us in the amount of $3,750 be approved.

Senator Maheu: I so move.

The Chairman: Is it agreed, honourable senators?

Hon. Senators: Agreed.

The Chairman: The motion is carried.

These budgets will then go to the Standing Committee on Internal Economy, Budgets and Administration.

Senator Jessiman: The Subcommittee on Veterans Affairs has already held five days of meetings. If this covers the money it spent last week, we will have to make this retroactive.

The Chairman: I do not know that they have already hired their consultant.

Senator Cools: Surely we can we add to the motion.

Senator Jessiman: This money is meant to cover the money the subcommittee may have already expended.

Senator Maheu: It is still within the $5,000.

The Chairman: Yes, it is within the $5,000 of emergency funding.

Senator Cools: The motion can be amended to say that some of that money has already been spent.

The Chairman: No. What I asked for was a motion to approve the budget.

Senator Lavoie-Roux: What are these other expenses for $1,250?

The Chairman: That is money for working lunches and dinners, for example. It is listed on page 3, senator.

Senator Lavoie-Roux: It seems that they have calculated $1,250 twice.

The Chairman: No.

Senator Lavoie-Roux: What is on page 4, then?

The Chairman: That is related to all other expenditures. There is another $1,250 for contingencies.

Senator Lavoie-Roux: What is the nature of these contingencies? It is nice that the subcommittee stipulated $1,250, but we do not know what the money will be used for.

Ms Nadine Huggins, Acting Clerk of the Committee: Ordinarily it is for emergencies. It is an amount that generally stays in the budget. It is rarely spent, but we need approval to spend it should something arise.

Senator Lavoie-Roux: Can you give me an example of an emergency?

Ms Huggins: If there were extended meetings and we required more meals to be covered, then we would use the contingency fund.

Senator Lavoie-Roux: Is all that money spent on meals? Can we not feed ourselves?

Senator Cools: We sat last week from 8 a.m., all day, with no time to stop for lunch. It was a very tough week.

Senator LeBreton: You did the Senate very proud.

Senator Cools: I must tell you, senator, that I have never seen such fantastic attendance at any Senate committee meeting. Senators were in their seats every minute. The committee meeting was even attended by senators who are not members of the committee.

The Chairman: On that note, senators, we will meet tomorrow when the Senate rises to hear Senator Haidasz on Bill S-8. I trust we will have quorum.

The committee adjourned.


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