[Recorded by Electronic Apparatus]
Tuesday, October 22, 1996
The Chair: Order. We're back for consideration of Bill C-41, An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and other federal statutes.
We have three witnesses tonight representing three different groups. From the Canadian Council for Co-Parenting we have Patrick Mullin, chair. From Kids Need Both Parents, we have Kirk Cavanagh, from Tony Valeri's riding, I'm told. As well, we have Glenn Cheriton and L.J. Bouchard from the National Association for the Advancement of Non-Custodial Parents.
I welcome all of you. I understand each of you has a brief presentation.
Mr. Mullin, you have a video, correct?
Mr. Patrick Mullin (Chairman, Canadian Council for Co-Parenting): That's correct.
The Chair: We'll proceed to see the video and then carry on with the presentations.
Mr. Mullin: In this video you're going to see a lot of statistics and a lot of testimony. We felt the video would complement our raison d'être - that is, Bill C-41 is unbalanced and there's a volume of information out there that would prove this.
Please don't just take it from us. If you would, be very attentive to the video. We've put a lot of work into its preparation.
Mr. Mullin: I feel comfortable here because two people from Windsor, Ontario, are here.
I want to say three basic things about the film. That's what we're about. We don't feel that Bill C-41 addresses these issues. It is definitely not in the best interests of the children. To say that you can't deal with it now is probably to say to one parent...you're basically giving the message out that they should pay their support now but not to bother you if they're not seeing their children.
I've gone through this. I've been a support payer. I am now a support receiver. I have my daughter with me. So I've been on both sides of it. It's a cruel, inhumane way to handle it...and we don't see why it couldn't be handled that way. The film says a lot.
On the point the psychiatrist brought out, this is a study from the U.S. bureau of statistics that was released last year. She was talking about child support. The main goal in the government's legislation is obviously to get people to pay child support. No one at this table is saying someone should take off and not be worried about their responsibilities for children, or their family responsibilities. No one is.
We know there are no studies in Canada on the non-custodial side - unless you can challenge me on that. I'm certainly open to that. I haven't been able to find any, period, except from 1981.
This study says - and I'll read it verbatim because I don't want to make a mistake - that:
For my second point, I want to focus on the State of Florida because of the link between support and custody. We've heard so much about that. The State of Florida has grasped this. They have not established a link. What we're asking is that you deal with it at the same time, in fairness. If you're ostracizing a parent from their children.... You have children, I'm sure. Think of that.
From the State of Florida, I'm going to read this verbatim:
On these shared parenting principles, access and custody, can you honestly argue that if you deal with them now...can you not help grandparents out? I want to ask everybody that. The Florida statues do that. So that's a question I want to ask you.
If you deal with access and custody, you will, by one third, increase support compliance, and you will help a lot of non-custodial, loving parents. I'll let Liliane address the third issue. When I worked on the Hill for two years, the grandparents issue was an issue then, and everybody said it couldn't be done.
Please, respond to me why not. The Divorce Act is opened up now. If it gets closed, when will it get opened up again? Please, in fairness, answer that.
Ms Liliane George (President, Grandparents Requesting Access and Dignity Society): As grandparents we see the problems when there's a divorce. We see the pain of our sons and daughters who don't have access to their own children. We see the pain our grandchildren go through. It's very devastating for families, not only for grandparents but also for aunts, uncles and cousins. It is so devastating. There's pain and suffering, and it's children who suffer the most.
We're asking you, please, for an amendment to the Divorce Act that would grant both joint custody. It could solve so many problems for the future. Let's bring justice and peace to our families.
The Chair: Thank you.
The next witness is from Kids Needs Both Parents, Mr. Cavanagh.
Mr. Kirk Cavanagh (President, Kids Need Both Parents): Thank you. I'm here from Hamilton, Ontario, speaking on behalf of our organization, Kids Need Both Parents. It's an incorporated charity. Our mandate is to help separating and divorcing parents adapt to new roles and hopefully inflict a minimum of harm on their children as they do so. We're all volunteer, we're self-funded, and we respond to over 5,000 requests a year for assistance, some of which we're totally unable to deal with.
We're eminently well acquainted with all the problems associated with separation and divorce, not the least of which is the financial aspect. I don't think anyone here can deny that it costs more money to establish and maintain two households than the previous one. However, there are a lot of other problems, very serious problems.
I was talking earlier with my MP, Tony Valeri. Over the past year Mr. Valeri has lost eight constituents. They're dead. They all died within three months of separation: Steve Matesic and his ex-wife; Eugene Banks and his two children; and Fran Piccolo and her two children three weeks ago.
These are deaths that could not have been prevented by this legislation. This legislation doesn't come close to addressing the problems, the serious problems, attendant with family law.
We didn't know any of these people at Kids Need Both Parents, but we're all poorer, you and I, with their loss as neighbours, loving parents and productive citizens. Kids Need Both Parents feels child support guidelines are necessary and inevitable. We also feel, however, this proposal doesn't come close to dealing with the reality of what kids need subsequent to separation or divorce.
We feel it's putting the cart before the horse in its presuming a 40-year-old stereotype of marriage and dissolution of marriage, which doesn't come close to reflecting the realities of the 1990s. We heard, in the afternoon session, a witness explain that, in her opinion, close to 25% of all custody arrangements are about 40-60. This proposal totally ignores that. It presumes an absent parent, and that does not reflect the realities of today. Therefore, we decline to endorse this legislation on the following ten points.
One, it's not required. The Supreme Court decreed in Thibaudeau that the existing legislation was quite appropriate as is. There was no need.
Two, the rationale behind the proposal is fallacious. I've been involved in this initiative since 1991, when the original discussion paper was published. On page 1 of this discussion paper is cited a book - which just this past year proved to have had faulty research - by Lenore Weitzman. It's a 1985 publication that purports to report on 63 divorced couples in Los Angeles County in 1978. I have to differ with Mr. Mullin in this regard; I don't think it's at all appropriate to enact legislation based on research done in a foreign country 15 or 20 years ago.
Third, parents will be deprived of the means with which to provide for their children. This legislation will move the tax burden.... Normally it will move it from the lower-wage earner to the higher-wage earner with a higher incremental tax rate. It will, by Mr. Martin's reckoning, remove $240 million a year from the parents, regardless of how it's apportioned, and put it in the federal treasury. I do not see how my kids, or any kids, will benefit from the parents not having those funds and the government having it.
Four, intact families will be denied benefits available to divorced families. While we are married we provide for our children with after-tax dollars. Divorced custodial parents already have an equivalent-to-married exemption that gives them an extra benefit. They now will also have tax-free income, which we feel transgresses equality provisions of the Charter of Rights and Freedoms by discriminating on the basis of marital status. It also will provide, in a lot of cases, another tax break, where a custodial parent can pay for tax-exempt expenses such as day care and receive a tax benefit on the tax-free income.
Five, this legislation, according to lawyers with whom I've talked, can and will be circumvented. When divorcing/separating parents are cooperating - and I'm told that 95% of all support orders are made on consent - the judge does not set the number. The parties agree. The parties can and will couch their agreement in terms of spousal support, which will circumvent this legislation. They can attach the same conditions that would be to child support and thereby circumvent the tax implications.
Six, social assistance costs will rise. There are already many payers who are deciding that this life is not for them, opting out of the workforce in favour of welfare. The reality is, we've lost them as taxpayers. They've become tax burdens. The proposed guidelines are going to turn up the wick by 32%, on average, over what the present support awards the courts are paying. This is just going to drive more and more people out of the workforce and onto the welfare rolls.
Seven, children will be deprived of parents. The guidelines propose no adjustment whatsoever for caring, loving, non-custodial parents who remain involved in the lives of their children. Such parents will be forced to support their kids totally while in their care as well as bearing the lion's share of the costs while they're in the custodial parent's home. They will not be able to do it. They'll be driven away when the 32% hit comes. Parental absence in a child's life has been repeatedly shown as a primary indicator of substance abuse, sexual precocity, criminal activity and suicide. All of them bring with them social costs. We can't afford as a society to do this to our kids.
Eight, enforcement costs will rise. Mr. Rock's staff has already acknowledged that 90% of the arrears problem is intractable. There is not the ability to pay. Only 10% of that arrears total is due to intransigence. This comes about when people either withdraw or are booted out of the labour force. They get themselves into a catch-22 position. They cannot afford to pay their support orders and they cannot afford a lawyer to return to court to adjust the support orders to reflect reality.
Nine, court administration costs will rise. Mr. Martin has presumed that a lot of litigation will be prevented by these guidelines. I agree with that. I also think there's going to be a lot more litigation over custody when people become aware of the great price attached to the loss of custody.
Finally, the legislation addresses the wrong problem. All the Ontario government enforcement initiatives have proved eminently unsuccessful. Arrears have gone, in the last four years, since they started automatically garnisheeing - which was supposed to solve the problem - from $470 million to almost double, $900 million.
The real problem - and it was alluded to in Patrick's film - is that less than 10% are wilful defaulters. That comes from Justice Minister Rock's office. In fact, a study in Calgary, not in a foreign country, in 1992 showed that between 38% and 55% of custodial parents do repeatedly deny access to the other parent. The wonder is that less than 10% of the payers refuse to honour their end of the court order when nearly half of the custodians decline to feel bound by access provisions of the same court order.
We don't feel this proposed legislation is going to address the needs of children. We feel that child support cannot be dealt with in isolation given all the other attendant problems that accompany separation and divorce and that are being ignored here.
We feel that the ultimate cost of this legislation will be measured not only in increased social service costs and the loss of tax revenue but in the Matesics, the Banks and the Piccolos, who will serve as tragic epitaphs to the shortsightedness of this proposal by the time the four-year review has arrived. This proposal does nothing to our children but harm. We cannot endorse it.
We urge this committee to return this proposal to the federal-provincial family law committee with a directive to fulfil their mandate and bring an integrated proposal that will serve the needs of the children and address the problems inherent in custody, access and support.
The Chair: Thank you, Mr. Cavanagh.
From the National Alliance for the Advancement of Non-Custodial Parents, go ahead, Mr. Cheriton.
Mr. Glenn Cheriton (Researcher, National Alliance for the Advancement of Non-Custodial Parents): Thank you, Madam Chair. This organization was set up in 1984 in an attempt to get standing at the Thibaudeau Supreme Court case. As it turned out, it was unsuccessful, so only one side was heard.
I would like to ask that the committee accept our total submission into the record. We have limited time, and we'll probably have to skip certain parts of it.
The Chair: It's been given to us, so it will automatically form part of the record.
Mr. Cheriton: Thank you.
I would like to explain the format of our presentation. Originally in looking at Bill C-41, I discovered that the government had a policy in 1995 of requiring all new policy initiatives in legislation to be subject to gender-based analysis. In calling up both Justice and Finance, no such analysis was available. Thus, we looked at the constituencies that would be affected by Bill C-41 and did our own gender-based analysis in an attempt to get the government to follow its policy.
Our first section looks at Bill C-41 and its impact on single custodial fathers. The number of male lone-parent families in 1991 - and this comes from the Vanier Institute of the Family - makes up 22% of single families. That's a total of 170,000. The figures from Revenue Canada show the number of single fathers, the number of men receiving child support, to be 6,760 as of 1992, or about 4%. Thus, non-support payment by mothers may in fact be as high as 96%. A study of single fathers and reasons for non-payment of support to them is urgently needed.
Second, the percentage of single custodial fathers with a support order, as far as court cases go, is 30%. This comes from the Ross Finnie report in January 1995 to Justice Canada. It's based on Statistics Canada data records of available court judgments, again from 1991. Thus, it seems that judges are over three times as likely to refuse a single father a support order.
The amount of support paid by women to single custodial fathers in 1991 is $22 million. The amount of support paid by women in 1992 is $18 million. The percentage decrease in support to single fathers in one year is 17.2%. When these orders go over six years, this represents a massive drop.
We feel that this huge drop represents negative effects of biased and counter-productive government involvement at the provincial level. According to Newsweek and other sources, single-father families are the fastest-growing family type by percentage in North America.
The total support paid by women to single-father families, as I've cited, if you look at the amount the average single father gets, is about $100 per year in child support. This amounts to about $6 or $7 per month, per child.
There is no mechanism in Bill C-41 to ensure that single custodial fathers get equal proportion of orders, amounts of judgments, collection or payments under this bill.
The number of single fathers eligible for the equivalent-to-married deduction was 78,000 in 1995. That source is Human Resources Development Canada. Male custodial parents are ineligible for tax exemptions, probably because they are paying child support, or spousal support. Thus, there are up to 92,000 separated custodial fathers paying support in addition to being the primary care-giving parent.
These families and their children would be further impoverished by higher taxes on the support payments called for in Bill C-41. No study on the impact of Bill C-41 on single custodial fathers and their children has been done.
The provinces are currently not providing a gender breakdown of support judgments and support paid. No funds are provided under Bill C-41 to ensure that provinces make a gender breakdown, never mind to monitor the existing gender bias in support orders and collections.
Single fathers report that divorce courts are unwilling to require mothers to pay the current amounts, never mind the onerous amounts required under the Bill C-41 plan. Therefore, single fathers may encounter more difficulty in getting a fair custody decision.
Bill C-41's high child support and taxation liabilities will lead to use of desperate adversarial tactics to gain custody. The result will be large legal fees and enormous court costs, poverty for children and bitterness for custodial and non-custodial parents alike.
Already the largest number of family court actions in Ontario are parents seeking access. The reference here is Marilyn Bongard of Justice Canada. In Quebec, 86% of the Quebec Superior Court time is spent on divorce, access, custody and support. That comes from Ricardo Di Done, who heads the organization for the protection of children's rights in Montreal.
The amount of money spent by the three levels of governments on single mothers - I was able to get this from the Caledon Institute of Social Policy - is $6.1 billion. The amount of money spent on single fathers does not seem to be available, but if you combine that with the Human Resources Development reports on parental leave, about 1.5% is paid to fathers. In terms of GST tax credits and other amounts, you'll notice that the average GST tax credit for single mothers is about 40% higher than that of intact families, while the average amount paid to single custodial fathers is less, on average, than for intact families. We feel that Bill C-41 will exaggerate this imbalance.
Jason, over to you.
Mr. Jason Bouchard (Coordinator, National Alliance for the Advancement of Non-Custodial Parents): The one thing we want to avoid is the perception that this is one more mud-slinging exercise, which happens a lot in these kinds of discussions. The point is, an awful lot of research needs to be done as to why there are these peculiarities in terms of child support paid and received between the genders. That is the point.
The government has said they want, need absolutely, to do gender-based analysis on any new legislation. Obviously, in this area they haven't done anything. Before we have these huge changes for non-custodial mothers, which could in theory be 20% of what they pay now, we need to see what's going on.
I'm not saying there aren't valid reasons for what's going on now, but if we just parachute into this that one in six non-custodial parents, who are women, will be affected by this roller coaster twenty times more than most non-custodial fathers, it's something that should be looked at and addressed before this proceeds. But it doesn't seem to be in the cards.
Because women who have been married generally have lower income, when they are paying child support they will be at the bottom end of the scale. If you've seen any charts that show the rate of payment of child support, it's much higher at the bottom end. So poor people pay a higher rate of their income in child support, a population in which, again, non-custodial mothers are more likely to reside.
These are all areas that have not been looked at, even though this government has a policy of doing just that.
There are many reasons why the dollars don't go that way, like high access costs and, again, the lower income. There could be any number of reasons, but we need to know that before we go ploughing ahead with something that doesn't take these things into consideration.
The woman who spoke for the advocates' group this afternoon made a reference to the use of the term ``undue hardship'' and how a judge would interpret that. Some people would say that asking anyone whose income is $10,000 or less to pay child support if the other person's income is above that by a significant amount is undue hardship.
But again, we'll be back to a situation where every judge will interpret it in their own way. We could very well have these huge variances all over again. We don't know. Let's study the variances we have before we create a whole new set. That's really the point.
Non-custodial mums are certainly a very marginalized group. If we think we get a lot of bad PR for non-custodial dads as deadbeats, you can imagine what women get when they're told they've abandoned their children to men. They're a very marginalized group, and again, there's no outreach. There's no effort to consider the impact on them. We seem to be totally uninterested in gender-based analysis in this area, which particularly affects very identifiable gender-based groups.
It's the same thing in terms of the impact on the grandparents and the extended family. We haven't looked at the impact on those people. We hear Liliane speaking of other situations where grandparents are totally excluded.
As we know, in intact families the support - physical, emotional and otherwise - comes from the entire family, not just from the two people who have the main job of being parents, and yet somehow when we talk about this or we talk about the whole picture, all of a sudden it's all down to dollars and cents: who can we first grab for the money? It's not about what grabbing that person for the money is going to do in terms of creating hostilities or creating animosity, if it's perceived as being unbalanced and unfair. All of those things have effects on the children that are as long-term - if not longer - as the effects created by the amount of child support due, and yet again we're working in a vacuum.
I think it's something that needs to be looked at before we go diving any further into this issue of dealing only with one side. As someone has mentioned, this has been looked at since 1991. This is the second report I've seen in terms of guidelines, although the previous one did show both parents' incomes as part of the picture. We feel that is a lot more balanced, and frankly, I think that seems to be reflected in the upcoming Quebec ones, which we're pleased to see. But this other two-thirds of the issue has not been brought forward after all this time. It seems odd.
Mr. Cheriton: I'd like to speak about the effects on intact families, which, again, have not been studied. It's pretty clear that any taxes unpaid by separated families must be paid by intact families. As Kirk has pointed out, separated families who agree will now have an income-splitting choice that is not available to intact families.
As separated families gain the advantage of lower taxes, I think we can expect a higher divorce rate. People don't believe this, but I was on the board of directors of a day care and I saw people separate in order to retain their day care subsidy. It happens.
Family reunification after divorce will become financially more difficult because of past liability for arrears or welfare payments. A CBC story of Sunday, September 29, talked about how the Province of Alberta was in fact putting an intact family - remarried - into poverty in order to recover past welfare payments.
Child poverty is not just a matter of welfare payments. It also is a matter of recovering amounts of money, which forces children back into poverty.
In my view, marriage is a relationship between men and women, a relationship that is a kind of an affirmative action program and solves a lot of the social disadvantages of men and a lot of the economic disadvantages of women. If we damage that relationship, I think the social fabric of our society is going to fall apart.
One of the problems with Bill C-41 is its adversarial nature. The adversarial nature as far as support goes, including the producing of higher financial expectations for women and the increasing inability of men to meet these expectations, will poison the relationship between men and women and produce a divisive form of gender warfare.
Women will not trust men - and this is encouraged by Bill C-41 - and men will not trust women. The results for the intact families are going to be increased divorce and increased gender warfare.
There's an example here of second marriages that I will not go into because it's a little confusing.
You also have the effects of the tax credits on intact families. Ross Finnie has cited this in an article in Canadian Public Policy. He says that if separated families are getting tax-free income that is not available to intact families, there's no point in providing tax credits to separated families when you're providing them with tax-free income. Therefore, inevitably, tax credits for intact families and separated families will come under increasing pressure from governments, and governments will eliminate those tax credits for families.
Mr. Bouchard: There is a lot out there in terms of research. The one thing we found, as an anecdote, is that in our inquiries with the justice department we could get very little. For whatever reason, it wasn't there or it wasn't quite available. Some things we have been promised just haven't come. There seems to be a vacuum. The fear is that we're proceeding ahead with what, in some ways, is a colossal change in how we deal with divorce, without a lot of the knowledge we should have before we even start.
Custodial mothers have been told that there should be a 30% to 60% increase depending on what bit of PR they get, but in a letter to us from Paul Martin it was suggested that the amounts might actually drop because of the tax implications. We have sources within the government and we have copies of the letter....
Mr. Cheriton: We have copies of a letter from Paul Martin, in agreement with our analysis.
Mr. Bouchard: Peruse it and tear apart our logic after you read that letter. It certainly seems that within the government, and certainly within the justice and finance departments, there is disagreement as to what the impact of this is. It seems odd that we're launching ahead on something that even those folks can't be of a single mind on.
The one thing this kind of stuff...it does put a cash value on custody. As one psychologist put it very well, it turns children into a cash crop. What does it do? Custodial mothers - the presumption of the court is usually that the mother has to have the kids, and certainly the slant is in that direction - who may not feel up to the task, or who at least would want to share the task, would be faced with huge financial repercussions for not insisting on custody.
What happens when you put people under stress in parenting situations? We know that's when child abuse increases. We know that's when neglect increases. We know that's when mental illness increases for the person trying to do this job that is normally done by two parents. None of these things are good for the children.
We can say the child has food and has clothing on his back. Yes, but if that child grows up to help fill our jails and be unstable himself, what have we accomplished? The children of divorced families are in one of the groups in our country that has the highest suicide rates. Canada has the third highest rate of suicide among young people. Some folks would say there is probably a connection, but we don't know because those are all the areas that we don't want to look at.
So while mothers are being told that there are big bucks coming in, I think there are more and more who are saying this doesn't quite wash on paper.
It discourages short custody, which means a potential release of responsibilities. People can have their own lives, can re-establish themselves as individuals outside of the family, which is very important as children grow up. He is not there because if he sees the kid more than 38%, boy, there goes your child support. It becomes a cash issue.
Is this how we want to train people to parent? Are these the priorities we want to establish for these people? To me, this is insane. It discourages remarriage by them, because then the demographics shift and, God knows, the money goes again. Again -
The Chair: Mr. Bouchard, the two of you together have been speaking for about twenty minutes. There's only about half an hour left, and I'm sure members may have some questions. Perhaps you could wrap it up so that we can get to the questions. That would be helpful.
Mr. Bouchard: Okay, I'll finish on that.
Perhaps you could point -
The Chair: Keep in mind that we have a written brief.
Mr. Cheriton: I have two points that I wanted to bring up with regard to the tax implications of C-41. Clearly, the tax system will be far more complex with the separate processing required for agreements before 1997 and after, for both child support and spousal support, and matching deductions and income. Some of our research has shown that Revenue Canada figures from 1989-1992 -
The Chair: Can I just interrupt you for a minute, just so that you're really clear on this? We don't have the tax sections before us in this bill. The tax changes are not in C-41. They will be before the finance committee in a budget implementation bill, but they're not before us now. All right?
Mr. Cheriton: Sure, that's understood.
The Chair: Just for now, perhaps we could try to stick with the things that are in this bill. We're just running out of time.
Mr. Bouchard: The final point that's worth making ties in with the very first thing you saw. It loops all of it together.
There was a reference in there to the idea that certain men shouldn't see their kids because they abandoned their wives for younger women. There's some type of bizarre mindset out there in the world that those evil men who leave their wives for younger women should suffer, that the women's incomes drop. Those things are mostly myths.
As per the Vanier Institute, men's incomes decrease after divorce, just like women's do. It makes sense, because you're trying to maintain two households on the same income. So let's not look at the guidelines as some type of punishment. Let's look at something that actually works. You cannot maintain the same standard of living that you had before. It's physically impossible. As long as the guidelines have that as their basic premise - which I believe they do - they will fail. They will create kids who live in poverty when they have the poor person who pays, and sometimes the person who pays is the person who has them most of the time.
The Chair: Thank you. Just so the witnesses are clear on this, we'll have a round of questions.
I just want to straighten something out from the opening. Mr. Forseth, we don't have any papers from your whip, just so you know that. Normally, unless people are signed in, they don't participate in terms of questions unless there's unanimous consent. Did you want to ask for the unanimous consent of the members?
Mr. Forseth (New Westminster - Burnaby): Well, certainly. I am an associate member of this committee.
The Chair: I'm not arguing with you.
Mr. Forseth: Right, and I don't why the paperwork isn't here.
The Chair: Okay. Is there any objection to Mr. Forseth participating, colleagues? No?
Mr. Forseth: Thank you very much.
The Chair: That's the first thing. On the second, members will be asking questions, and they will direct them to particular witnesses. When we have diverse groups together, they usually do so because those are the witnesses they want replies from. So please be respectful - and members will be, too - of the amount of time we have left.
Mr. Langlois, you have ten minutes.
Mr. Langlois (Bellechasse): Thank you for your very eloquent presentations. It will take me a while to absorb all of the figures that you quoted.
I agree fully with some of what you said, although I disagree with you on other points. As I said this afternoon, Bill C-41 is by no means perfect, but it does make it possible, among other things, to track down support debtors and I believe we are moving in the right direction.
In my opinion, Bill C-41 could be faulted for not addressing certain issues, among other things the shared custody to which you referred.
I would point out to you that in Quebec, women like Madame Justice Christine Tourigny handed down the first Quebec Superior Court rulings ordering shared custody when both parents were unable to reach a settlement. I believe women judges were the first to realize that children needed both parents.
However, I agree completely with you that the objective of divorce decrees is not to punish one or the other spouse. A spouse who has committed adultery may very well be a good parent. A spouse who tends to drink too much may also be a good parent. In such cases, there is no cause-effect relationship.
Generally speaking, the basic premise should be that children always need both parents, even after a breakup. Obviously, pathological cases, and these unfortunately exist, must be treated differently.
I practice family law for over 20 years. When children are asked after a divorce whether they are still a family, they answer that they still have a mother and a father, but that the two no longer live together. However, when asked the same questions, the parents will likely say that the family has broken up now that the spouses has divorced.
As far the children are concerned, there is no divorce. They still have a father and a mother. If the child is lucky, he might also have grandparents. Our priority must be the children and we are not doing them any favours by punishing the parents.
Children need a climate of emotional stability in which to grow and acquire some maturity and acquire the judgment that will serve them in good stead in our contemporary society. I would point out that Bill C-41 makes no mention whatsoever of this consideration.
Many judges are not always perceptive when it comes to awarding a parent custody of the children. Some judges who put in 18- or 20-hour days have not always been present in the home and they certainly do not how to take care of a child. I have often had very distraught fathers phone me to ask my advice, only to have me tell them to bring their child to the hospital.
However, we mustn't always blame the father. Some try very hard and bring their children to swimming lessons or to the doctor. However, for every involved father, there are nine involved mothers. This is surely a social issue which transcends all others.
I have long maintained that judges are perhaps not in the best position to make this kind of decision. Judges earn approximately $155,000 a year, far more than the average Canadian. When it comes to custody issues, whether it be shared custody or not, or to making decisions regarding support, I wonder whether it might not be preferable to defer to a six-member jury comprised of ordinary citizens, three men and three women for example, who would of course be guided in matters of law by a judge, but who would know what it costs to raise a child.
In divorce proceedings, applications for support are often artificially inflated for procedural reasons and often exorbitant. I wonder if perhaps the jury could be involved in this process, given that this mechanism has proven effective in resolving criminal matters and even, in certain provinces, civil matters.
However, I don't have a magic solution to this problem. It's merely a question that I have and that I am putting to you this afternoon. In our legislation, there is no prevention requirement. The only requirement is that lawyers advise their clients that mediation services are available. However, if the lawyer succeeds in convincing his client to avail himself of the services, he is going to lose that client. He is therefore in a conflict-of- interest situation.
I know that as a general rule, law societies offer lawyer mediation services. This is a very worthwhile initiative, albeit one that is not used enough. Personally, I think the legislation should require couples to undergo mediation in an effort to save the marriage. Can the terms of the divorce be improved and in many cases, can the divorce be prevented? When the process is initiated at an early stage, I think the answer to these questions is yes.
Of course, once the parties find themselves in court they must contend with an impressive stack of documents and they are not likely to emerge from the process as friends, regardless of the judge's ruling or whether the divorce is decreed or not.
Therefore, mediation sessions should be required early on in the process, before friends or family get involved and stir up emotions on both sides with all types of threats.
I have already taken part in this type of negotiation and I know that tempers can flare. Our legislation is deficient in this regard. It makes no mention of mediation. Some U.S. states such as California and Michigan require couples to attend two mediation sessions before going to court.
These are the general observations I wanted to share with you. You considered the technical aspects of the legislation, but you also raised questions of principle.
While it isn't necessary for you to comment on what I have just said, I would however like you to tell me if I'm headed in the right direction. Again, I have no magic solution and I think that Bill C-41 is an improvement, although it doesn't go far enough. The legislation should probably have been thoroughly reviewed, as we are currently doing with the Young Offenders Act. The review should involve all provinces from coast to coast and even the territories. I think we have to discover what the public wants and what parents and grandparents want, since with Mrs. Jennings' motion, they too are involved.
Mr. Bouchard: One of the things that has always been established in Georgia, and I think several other states, is that as soon as any action relating to marriage breakdown involves children, there are classes required. You have to go there - not together, obviously - to log the time. You learn the impacts of conflict. You learn the different ways of mediating. You learn these things.
A lawyer doesn't just give you a pamphlet, talking you into spending more money on them. The state says as soon as you talk to a lawyer, you're in there. They run you through an extensive program to give people.... Parental alienation is one of the most common situations in marriage now. If you have a parent who is denying access half the time, parental alienation is going on.
This makes the parent realize that getting back at the other parent through the kid does this and this and this. It's compulsory education. From then they're at least better educated to move to the mediation process, to keep away from the lawyers who basically pitch for a good fight - and there are a couple.
The Chair: Mr. Mullin.
Mr. Mullin: I am glad you brought that up. The other side of co-parenting, in terms of what we do in Ottawa, is obviously the counselling. We've had mediators from the Centre for Counselling and Mediation here in Ottawa come and say exactly what you say, that after that turmoil, that dismay, that disgust, that anger, when you want to both go out and kill yourselves, if time passes, over 80% of the time they can come up with an agreement in the best interests of the children.
So I'm really happy you brought that up. None of us talked about that, but it's something we don't see in Bill C-41.
The Chair: Thank you.
Mrs. Jennings (Mission - Coquitlam): Thank you, Madam Chair. I would like to share some time with Mr. Forseth.
First of all, I'd like to welcome you all, gentlemen, and thank you for your presentations. I must stress right now that Bill C-41 deals with the enforcement of support payments. Sadly, a lot of them are in arrears. That is something that has to be addressed. Some of them are in a bad situation that needs stronger remedies.
The support payment, I'm sure you would all agree, is a debt. It's a responsibility. It therefore has to be acknowledged as such, and it has to be paid. That's the bottom line.
We feel in our party, and I feel, that the needs of the child and the ability to pay have to be brought into play somewhere here. Bill C-41 doesn't deal with that as a first issue. In fact, in clause 2, proposed subsection 15.1(3) actually says:
I guess it's out of an abundance of caution that we would like to be sure that the bill does deal with circumstances first, the ability of the parents to pay and the needs of the child. That's something I will be addressing.
The second thing I'm concerned about that I'd like you to comment on is that the bill does not also address fair and equal treatment of all parties concerned. I think that's something we have to deal with. It doesn't deal with protecting individuals and the children. It doesn't deal with visitation and access.
I don't think we can separate these issues as though they don't exist. I think we have to be very realistic in today's world.
I did enjoy your presentation. I have been travelling for the last three years in this country, visiting with many families. I have personally experienced many of the situations you have described. I don't want to play lightly upon those payments in arrears, because I think that's very serious. By the same token, I believe we have to look at the whole scene.
Children are the issue here. I've said this in the last two years with my grandparent issues, as everyone's heard. Until we recognize that we have to look at the whole picture, any legislation we make is going to rebound on us.
We have to look at prevention, as Mr. Langlois has said. In Alberta they recognized this. Some of you are probably already aware of their program, which is mandatory effective February this year. It is mandatory because they fear part of the reason some of the children are getting involved in crime is because of what happens as a result of a divorce. That's not to say in every divorce suddenly the children are going to be involved in crime. Of course not; that would be silly. But that's one of the reasons for doing that.
I don't think we can play up mediation too lightly. I think mediation has to be enforced. I know it exists in the books now, but it's not being used. I know that for a fact. I've spent many hours talking to family lawyers.
I guess what I'm saying here is that I heard for the first time tonight ``joint custody arrangement''. While, yes, that was a video, there's no reason why that can't work. We're living in a different society, and we have to recognize it. Until we do, we're going to have problems.
Being a teacher for 30 years, I spent 30 years in the classroom with children of all ages. Let me tell you, that experience is something you have to think about.
When children are involved in a divorce, in break-ups, or in any catastrophe, it reflects on them, on their ability to do their work; it reflects on everything. This is very important, because these are our future citizens. We have to make sure these children feel secure and loved. Because parents divorce, I agree, does not mean they no longer have both parents. They still have a father and they still have a mother, and this is a major concern to me as well. The United Nations recognized this in its 1989 Convention on the Rights of the Child, giving the child the right of access to the family. Canada also recognized this in 1991, and without passing legislation. So I don't think we can enforce that too much.
The last thing I'm really concerned with is the guidelines. They're not flexible enough. They do not recognize the various standards of living across the country.
I don't want to take up too much more time. I'd like Mr. Forseth to be able to say something. So, gentlemen, perhaps Mr. Mullin can go first.
Mr. Mullin: I'll just make a short comment on what you're saying.
I have a public discussion paper entitled Custody and Access, which was released by the Department of Justice in 1993, three years ago. What happened to this? I want to read you this passage on approaching family law in Canada:
All I want to say is this. This is the hurt, and if this committee is saying it can't deal with this now, we know it won't be dealt with for another five, six or seven years. In other words, think of losing five, six, seven or ten years of your own child's life.
This can be done; we know it can. Please, slow down, and let's look at it.
I'm glad you made those comments, because they're so true.
The Chair: Thank you.
Mr. Forseth, there are about four minutes left.
Mr. Forseth: I think I have longer than that. The Bloc went for a full fifteen.
The Chair: Mr. Forseth, I was chairing the last time I looked. I may have made an error, but you have four minutes, so spend it on the question.
Mr. Forseth: I'd like to have some short, sharp, best-shot answers to a question that I'll pose to you. My reading of the radar screen is that your presentations are basically going to be completely ignored. You're basically going to be told that you've come here and talked off topic, that the bill doesn't deal with what you've made a presentation about. So I would like you to respond in order to get your best answers on the record as quickly as you can.
What do you say to those who are going to tell you that custody and joint access enforcement is really for another day? The principle is that parents should not pay to see their kids. Children should be provided for, and they have the right to be supported regardless of whether that parent has a right of access or not. Access is related to social things. Support is related to financial matters. They're not tied together. That's the argument and the premise of the bill before us. Obviously, access issues and so on are completely disregarded in the bill. I would like you to respond to that, which I perceive to be on the radar screen.
Mr. Cheriton: We're under no illusions about what's going to happen here. We're giving you information about what is going to happen with this bill.
As far as low-income Canadians are concerned, we have figures here showing that 140% of each after-tax dollar that they earn is going towards support. This is the kind of tax graph you people are prepared to draw.
We also have figures showing that while the increase the provincial government in Ontario is collecting is going up by 23%, 33%, and 34% - more money from fathers - the amount women are receiving is increasing, according to Revenue Canada, by about 4%; the same thing. So this money is going not to women and children; it's going towards provincial government coffers.
You people are going to go ahead, you're going to do your thing, and you're going to ignore this. But five years from now, people are going to look back and say we told you what the problem was.
You've been hearing what the problem is. The problem is not getting more money out of parents to soak into provincial government coffers; the problem is eliminating child poverty. What I've been telling you is that child poverty is eliminated under single-father families in spite of dropping support. There are fewer children and their single-family fathers in poverty. There are fewer children and their co-parenting families in poverty.
Where the support and welfare is increasing you're getting more child poverty. You people don't realize what's going on. What you're doing, in trying to solve the problems, is making things worse. That's what we've been saying, and that's what everyone else here has been saying, I think. We're putting this information out so that it will be a matter of public record, so that - if you pardon my bluntness - when you screw it up, history will judge.
The Chair: Mr. Forseth, there may have been others who wanted to respond. Mr. Cavanagh indicated that he wanted to say something.
Mr. Cavanagh: Yes, I fully agree with what Mr. Forseth has said. I spoke at good length with Tony Valeri, Sheila Copps, Paddy Torsney and John Bryden, and all of them gave me the same advice: don't go in there and slam it; give it a clause-by-clause critique and say what can be done right.
Lord knows I've tried. There is nothing good in here. As Glenn has said, I'm here to go on the record with my predictions - and you have ten of them in my submission - of what I feel will happen. If and when the promised review does happen, I would like to be able to come back and say, will you listen now?
The Chair: Mr. Mullin, did you have a comment?
Mr. Mullin: Yes, I'd like to make a short comment. We're known as a kinder, gentler society, according to President Bush.
I will not make it secret. I've worked on Mr. Whalen's campaign, Susan Whalen's campaign, and Mrs. Gaffney's campaign, and I've been in the Liberal Party for 20 years. But I'll be honest with the people in the government here. I don't know whether our social justice heart has stop beating, and that's why I'm here.
I'm a recipient of child support. This bill will probably be great for me. I can ask my ex-wife for her financial records, evidently, anytime I want, like Revenue Canada. I have nothing to gain here really - nothing. I have my daughter with me. But please, I'm asking you as a government to look at this. You don't know the hurt.
After today's meeting, I intend to ask Mr. Rock to come and address us at the Canadian Council for Co-Parenting.
I referee soccer: yellow card, red card, get off the field. No one wants advantage, but as a Liberal for 20 years, I thought we were concerned with social justice. I'm disappointed.
The Chair: Thanks, Mr. Mullin.
Mr. Bouchard: As a simple reply, if a judge came in and determined custody first and then looked at custody and access, support first, would you think that person was all there? No, but this is exactly what we're doing. We're doing it completely backwards. Unfortunately, doing it completely backwards will make it ten times worse to try to turn the cart around and make it go in the right direction later.
The Chair: Thank you, Mr. Bouchard.
That's it, Mr. Forseth. For the record, you were at just over 12 minutes.
Mr. Maloney, did you have any questions?
Mr. Maloney (Erie): I have a question for Mr. Cavanagh.
In your submission you say that child support guidelines are necessary and inevitable. Are you saying that the child support guidelines in the legislation as proposed are inadequate? Are they too high? Are they too low? I'm a little confused as to your position on that.
Mr. Cavanagh: I support the principle of guidelines. I did a great deal of analysis of a 1992 report where Justice commissioned four studies. The guidelines as proposed are roughly triple what respected economists across the country said that willing, loving, caring couples spent on their children in intact families. I think they're outrageous.
Mr. Maloney: Thank you.
The Chair: Mr. DeVillers.
Mr. DeVillers (Simcoe North): I have a question for Mr. Cheriton, on his comment that the money is being put in by the custodial parents but not getting through to the children. You said it's going to provincial coffers. How so? Through taxation or what?
Mr. Cheriton: I don't know how they're doing it. All I know is the amounts the provincial governments are collecting are rising. I have figures from Alberta and Ontario, and they're rising substantially. The average in Ontario in the last three years is about 33% per year, but the amount women are getting is not rising that much. I have to wonder. If you're going to have a bill like this, surely you should do the research and find out where that money is going.
Mr. DeVillers: You said it was going to provincial coffers. How do you know that?
Mr. Cheriton: I'll give you an example. This is the CBC case, which I will explain at length. The father lost his job. They divorced. He was making $50,000. The child support was based on the $50,000. He was unemployed, essentially, so he was substantially in arrears. They got back together, but in the meantime they had built up a substantial amount of welfare payments, which were owed to the province. They remarried and then money was being taken from both of them to repay that amount of welfare. But because it was repayment of welfare, he had to pay this in after-tax dollars, so he lost his tax exemption. In fact, essentially it was an automatic increase in the amount he was paying.
So this is one way it's being done. I don't know how this is happening, but it's pretty clear that money's going in at a substantial rate and it's not coming out. I don't where it's going and I don't know how they're doing it. I can't get information from the province. The figures they're getting don't make sense.
Mr. Bouchard: It's enough trouble getting information from the departments of finance and justice.
Mr. Cheriton: I did an access to information request with the Department of Justice and asked how many there were and what the average court judgment was. I asked for the total amount of support paid, the amount not paid, the amount paid by men and the amount paid by women. They had absolutely no information in any of these areas. They did redirect me to Revenue Canada, where I got some information, which was a breakdown for four years. They knew where the information was. They spent four and a half years researching it.
You have to look at the research that Bill C-41 was based on and ask if this is adequate for completely changing the system, when the information I have, which I've provided to you, contradicts the statements coming out of the justice department, such as, for example, the number of non-paying parents. I calculated that from the total number of one-parent families headed by women. Subtract the number of widows. Look at never-married women and separated and divorced women. Look at the number of eligible men and subtract the number of men paying. Do a few more figures on the number of men below the C-41 level and you get a figure of about 7% of men who are actually evading payment. My point is their lack of research -
Mr. DeVillers: I think that's more information than I needed.
Mr. Cheriton: Better more than less.
The Chair: Mr. Discepola.
Mr. Discepola (Vaudreuil): I don't know who can answer my question.
In all your presentations I tried to keep in mind where your interventions lay in respect of the best interests of the children, because to me that is what this legislation should be all about.
I am really confused. I may be the only one. I'm not sure. You're sending me mixed signals, so I want to correct two things.
My premise is this. If you've mothered or fathered a child, you're responsible for that child whether or not you're married to the mother or father responsible. Therefore, when you tell me that you tie figures and statistics with regard to accessibility and visitation rights to the responsibilities of paying, I have a hard time understanding that. It seems to me that -
Mr. Bouchard: It's the other way around, though.
Mr. Discepola: No. I'm saying that whether you have access to a child or not, whether you see your child or not, you have the responsibility to make sure of its well-being for the rest of its days. You fathered or mothered that person; therefore, you shouldn't tie your responsibilities to whether you have access to the children or not.
Second, I really wonder whether co-parenting or shared custody can work in practice. I sense from your interventions that you would really like us to recommend that it should be the norm and then argue why there shouldn't be shared custody. But I wonder how that would work in practice in terms of discipline. I have four children of my own and I can't discipline them. They're always playing one parent off against the other. The responsibility -
Mr. Bouchard: They do that anyway.
Mr. Discepola: But the responsibility for the children would still - if you have joint custody, who would assume responsibility, legal and otherwise?
What about the mobility? It's great when you show a film where a kid can jump on his bicycle and go see Mom and Dad at will. But what happens when they live in different provinces? What happens when they live hours away? Will it work practically?
It seems to me if I'm divorced, the first thing I want to do is sever my relationship with my spouse. That didn't work out. I have to admit to that mistake. But I still want to remain responsible to my children, to make sure.
Can you answer both of those concerns?
Mr. Bouchard: The connection is not that I see my kid and you get your buck. This is not the point. The point is, the child needs both of those things. When people are allowed to be full parents they will be full parents. When you treat someone as a wallet, it has an impact. That's a given.
Of course they should still keep paying support even if the person who has the main care of the child is irresponsible and denies them access. The point is, the child needs both.
When your relationship breaks down and you decide that you want to get away from this other person, I'm sorry - you had children with that other person. It isn't that easy. This is not a Hollywood movie. To be responsible for the kids you don't move to another city. You do the responsible thing and you move far enough away so that you're comfortable but the kids can share you.
Mr. Discepola: I may not have a choice. My employer may transfer me.
Mr. Bouchard: And they'd take you onto the plane in chains, yes.
We all make sacrifices for our children. Obviously, this is the part of the problem with judges, that their perceptions are from a different place, and obviously yours, because you probably have had to travel across the country away from your family. But that's a decision we out here make every day. No, I won't take that better-paying job, because my kids are here. If it were just the money, do you think the people I know who have spent a half-million dollars getting access to their kids would still be doing it?
Yes, you make sacrifices for your kids, because they come first.
The Chair: Mr. Cavanagh, you wanted to respond.
Mr. Cavanagh: Yes, I would, along the lines of what Jason was saying. I think the reality is, if your love for your children does not supersede your dislike or distrust of your ex, then, yes, you will abdicate. But if you truly love your children, you will put behind you all the problems that exist between you in an effort to cooperatively do the best you can for those kids.
Mr. Mullin: In terms of joint custody, I can give you my own personal experience. When I came here as Mr. Jackson's assistant in 1993, I left my children in Owen Sound, Ontario, 540 kilometres away. That hurt. But I did it. I left them with their mother at that point and paid my support, just because of what Kirk said. What are you going to do? Tear them apart? You're not going to do that.
Again, there are cases where we recognize that people will not get along, where one parent, when they both go in, decides, just as this Justice thing says, to get the other person, using the kids as chips. In our situation we have joint custody through mediation. It works because we care for the children. I've only seen them...well, you can guess. It's a long haul from here, and there's no highway 401 in between.
Second, I don't know whether you heard what I read in terms of the Florida statutes. That's what I wanted to bring to the committee's attention. Those are workable statutes. There is no link, so please don't say that. There is no link. Just put them both in the statutes and react in fairness to both these issues. It can be done. If I hear the word ``link'' again I will crack up. Don't link them, but deal with them in fairness at the same time for the mother and for the father.
I'll give you a copy of this if you need it.
The Chair: Thank you, Mr. Mullin. Can we keep that video?
Mr. Mullin: I need it tomorrow, but I certainly would like to give you a copy.
Rocco, can we make some copies?
Rocco was at CJOH on Saturday night really late doing this.
The Chair: We'll get the reference for it and we'll get a copy ourselves. As well, it would be easier for us if you could leave copies of the Florida statute with the clerk. We appreciate that.
Thank you very much, everyone. The meeting is adjourned.
Return to Committee Home Page