Proceedings of the Standing Senate Committee on
Social Affairs,
Science and Technology
Issue 17 - Evidence - December 11 meeting
OTTAWA, Wednesday, December 11, 1996
The Standing Senate Committee on Social Affairs, Science and Technology, to which was referred Bill C-41, 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, met this day at 3:10 p.m. to give consideration to the bill.
Senator Mabel M. DeWare (Chair) in the Chair.
[English]
The Chair: Today to continue our consideration of Bill C-41. Our witnesses this afternoon from the Equitable Child Maintenance and Access Society, are Ms Marina Forbister and Mr. Michael LaBerge. I would ask you to proceed with your presentation, and then we will have questions from the senators.
Ms Marina Forbister, President, Equitable Child Maintenance and Access Society: I would ask that our written submission be considered as part of our oral submission so that it can be put on the record.
The Chair: Yes, that will be done.
Ms Forbister: We represent the Equitable Child Maintenance and Access Society, ECMAS, an organization that represents approximately 1,500 Alberta families. We have had enquiries from Saskatchewan, Manitoba and British Columbia. Our organization is becoming well-known, especially in Western Canada. Our members are both men and women, with a 60-40 split. We are parents, both custodial and non-custodial, we are grandparents and other extended family members.
As a custodial mother I am in the fortunate situation of having a very good working relationship with my ex-partner. I believe our son benefits from that type of relationship.
We have concerns with the system that has come to reign our family law affairs and, in particular, today, we would like to deal with the negative impact we feel Bill C-41 will have on our family situations. As parents, we are committed to our children, whether we are custodial parents or non-custodial parents, and we believe that in the past few years the emphasis has shifted to financial considerations and that the other areas surrounding access and care of our children have been lost in the dust.
We would ask that you listen carefully and openly to what we have to say today because we have been working with and, in fact, living these issues. We understand them very well and we would like to try to share that understanding with you. Today we can safely say we represent many non-custodial parents, both mothers and fathers, as well as, as I said, custodial parents.
Bill C-41 is introduced to implement certain measures which are deemed to be in the best interests of our children. This phrase, "in the best interests of the children," is often used in the legal system, and today we would like to raise some issues with you to question whether these issues really are in the best interests of our children.
The intent of the bill is to adopt some mandatory guidelines that will determine the level of child support. We believe that the intention behind the guidelines may be admirable, however, the process that has come about to adopt these particular guidelines will not do what it is designed to do and it will, in fact, put more stress on a family situation that is already in a lot of strife. We believe that, if a family law is a good law, it should benefit the children and one or both of the parents without harming the other parent. We want to demonstrate why we believe that Bill C-41 is not a good law.
The bill is designed to amend the current infrastructure, thus, the sweeping amendments before you today. The Divorce Act has been in place for a good many years and, although the legal system may not be working well, the act itself has set out the rules and the guidelines by which the divorces are granted, and the sweeping amendments contained in Bill C-41, introduced under the guise of an amendment, are before you today. We feel that the amendments should not be introduced in the way that they are. It will constitute a system whereby amendments will be introduced through regulations. What we feel is particularly heinous about this is that the amendments are not in the bill itself, they will be made by regulations, and will not be subject to proper control and parliamentary review.
The Federal Provincial Territorial Task Force was established in 1990. We have been following its progress. I have read many of the submissions, I have read all of the summaries and the reports that have come from the task force. Its mandate was to deal with the areas of custody, access and maintenance. After six years they have dealt only with the area of child maintenance, which is one-third of the mandate and, while our legal system operates on the premise that maintenance and access are two separate issues, in the hearts and minds of children and parents and, in fact, everyone involved, you cannot separate those issues. The maintenance of the child is not only the financial maintenance, it is also the care and the day-to-day contact. We feel that, by placing this emphasis on maintenance, they have denigrated the paying parent to the position of a wallet with legs, and nothing more than that.
At this point I would make it clear that we do not represent parents who do not wish to support their children. There is a difference between the ability to support your children and the wilful intent not to support your children. We distinguish between parents who cannot as opposed to those who will not. We are not on the side of those who will not support their children. In Canada, however, it is not a crime to be poor. There are many parents out there whose situation has not been investigated and who cannot support their children in the amounts that have been set for them.
The underlying premise of the application of Bill C-41 is that custody will be afforded to one of the parents. The children are set up to be a prize. We believe that, in a truly equitable system, both parents would start on the same premise they have in their intact families whereby they work as partners on an equal basis. We believe that a 50-per-cent position would be an equitable starting place. Thus, we feel that the task force must go back and examine the issues of custody and access and that that is a critical part of this entire system.
The changes proposed today will echo in the lives of our children. I am involved in this situation because I have a five-year-old son. Twenty years from now I do not want to be living the horror stories I hear from grandparents today of being denied access to my grandchildren. I do not want my son to be living under my roof because he cannot afford his own accommodation. I am here today for our children and for the future, and we must remember that the laws we pass today will be lived out by our children.
I am asking today that the true measure of Bill C-41 can be found in the response to the question: Do I want my son or my daughter to live under these guidelines with no consideration for access or other situations? I believe the answer is definitely no. In addition, you must also consider the question: Could I, as a parent, sit on either side and feel I was being treated equally? Again I believe the answer is no.
Mr. Michael LaBerge, Secretary, Equitable Child Maintenance and Access Society: I am a non-custodial father with two children, the ages of 11 and 12, a boy and girl respectively. I have remarried and my wife has two children, aged 12 and 10 from a previous marriage. Between the two of us we have four kids. When they are all together we become taxi drivers and cooks because they are the centre of our lives.
I have a vested interest in this, as do many non-custodial parents. I do not like the word "non-custodial." I am the parent of these children, no matter what anyone says. The term "non-custodial" means that I do not have legal custody or, in particular, that my children do not reside with me.
Our children are a message that we are sending, as human beings, to a time and place we will not see. The laws, principles and values we put in place today is what they will grow up with. I do not want those principles and values to be skewed so that there is caution, resentment and bitterness felt towards those who were responsible for establishing them.
Although neither Marina nor I are lawyers, we did examine a number of the proposed provisions contained in Bill C-41. Marina is a chartered accountant and I am a geologist. First, I will address clause 2 and subclause 7(3) of Bill C-41 which propose the creation of subsections 15.1, 15.2, 15.3 and 19(9) of the Divorce Act. The proposed section 15.1 states that "a" spouse is to be responsible for the financial well-being of the children. "A" spouse, not two, but one. This is usually the non-custodial spouse. The person who has custody of the children under his or her will have the prospect of financial gain. This change will pit the mother and father against each other. It will be destructive. It will cause acrimony between the parents because there will be the concept of a prize which will be awarded to the parent who is granted custody. If this bill is passed, whoever has custody of the children will have the ability to take money away from the other parent. It is discriminatory on that basis.
If I substituted "a spouse" and made mention of some class of people of a particular sex, gender, religious preference, colour or creed, we would not be here today because it would have been denounced as discriminatory. Presently, non-custodial parents are treated like smokers or alcoholics -- we keep nagging at them and digging into their pockets and they pay the taxes accordingly. That we are treated in that way, I think is wrong. It takes money away from me and, therefore, my ability to support and participate in activities with my children is reduced. Litigation will increase because of the conflict this will cause. The government's overall intent in the guidelines was to reduce conflict and tension and to improve the efficiency of the legal process. That will not happen because both parents will be pitted against each other and the prize is worth fighting for, their children.
Ms Forbister: I would like to deal specifically with the proposed section 15.3(3) which states that priority will be given to child support and that the termination of such child support would constitute a change of circumstances to justify an increase in spousal support. That is unfair because at the time support is paid, it has been determined that the paying spouse has a certain ability to pay. This amendment would mean that, beyond the time that the parent must support the children, they must pay spousal support. We believe that this is piggybacking on the back of child support.
We also believe that this is in total contradiction of the proposed subsection 15.2(6)(d), which promotes economic self-sufficiency. Subsection 15.3(3) states that, once you have gone beyond paying child support, your former spouse can then go back and seek additional spousal support. At that time, we believe that spouse should be in a position to support him or herself.
Under this bill, subsections 15(8) and 17(8) of the Divorce Act will be repealed. This will eliminate the recognition that both parents are financially responsible for their children. You are placing 100 per cent of the legal obligation to support those children, even into their adult lives, on the non-custodial parent. I believe you are taking away part of what we as women have fought for, and that is to be financially responsible. It is discriminatory against the custodial parent and the children. Children have the right to have the love, care and the financial support of both parents. How can the elimination of that joint responsibility be in the best interests of the children?
The specific removal of the provision it stated "recognizes that spouses have a joint financial obligation to maintain the child." As I said, I am not a lawyer, I am a chartered accountant working with Price Waterhouse, but I have spent a lot of time on the legal end of this, and that is an important point at law. If you are promoting that that section of the act be repealed, you are making the assumption that the custodial parent contributes to the maintenance of the child by the very fact of living with them. How can you make that assumption? On one hand you are saying that there must be legal obligation on the non-custodial parent to support the children and, on the other hand, you are saying that the same legal obligation does not apply to the custodial parent. I do not believe that is or should be the intent of the law.
Under subclause 5(2) judges will be required to provide written reasons when there is a departure from the guidelines. Bill C-41 says that the courts must follow these guidelines. They are mandatory. If they are not followed, the judge must provide written reasons. That places a new obligation on our judicial system.
In October, Mike and I spent some time at the Court of Queen's Bench in Calgary. The judges there have in excess of 50 applications on their docket every day. They only manage to hear approximately 30 of them. They have no time to read the documents let alone write written reasons. They will be unable to comply with that particular provision.
Clause 11 creates section 26.1 of the Divorce Act. This will provide for the establishment of guidelines respecting child support. Subsection 26.1 (1) states that the Governor in Council may establish guidelines respecting the making of orders for child support, to determine the method of payment, variation of circumstances and the determination of income, including imputed income. That means that if it is thought that the income figures presented are incorrect, then it can be arbitrarily decided what the correct figure is. These wide-sweeping powers will circumvent the process of established Canadian law. Fiscal policy can be adjusted simply by a change of the regulations and, although that may be appropriate in certain areas of Canadian law, it is not appropriate in the family law system.
We believe there will be no ceiling for increases or changes and, although parents have the obligation to support their children, they must be able to support their children within their means. This is not just a bottomless pocket, as Mike indicated. If you pay a cigarette tax you have the option of not paying that once it is too high. In this case there are no options.
Clause 12 adds section 28 to the Divorce Act. Section 28 will require the minister to undertake a review of the guidelines and their implementation within five years. At the end of five years, the damage that we have inflicted on Canadian families will be extensive. We are pitting fathers against mothers and putting the children in the middle as a prize. Where will we be five years from now?
Mr. LaBerge: Previously I mentioned that, with the passage of this bill, only one spouse will be responsible for paying for the children. To add insult to injury, both the guidelines, specifically, 3.3 on page 3, and 4.1(d), and Bill C-41 clause 1(2), amend the definition of a "child of the marriage" to include children up to the age of 18 -- and we are in agreement with that because most provinces have the age of majority at the age of 18 -- but they go beyond that and amended it to include "in the pursuit of reasonable education."
It has been stated publicly by the Minister of Justice that, in his opinion, post-secondary education may include at least two post-secondary degrees and that would be the "pursuit of reasonable education." That means that you are paying child support for an adult. Attached to our document is appendix A which was part report of the Premier's Council in Support of Alberta Families. This was released by the Alberta Justice Department in February 1993, just prior to the Year of the Family in 1994. In particular, pages 88, 89 and 90 tabulate the rights and responsibilities that are afforded an 18 year old in the Province of Alberta. It also mentions the acts and the sections of those acts which give them those rights and responsibilities.
Going through the list, you will see that an 18 year old can stand for election, can be a director of a company, can become a trustee, can be tried in adult court, can go out and drink, and that he or she ceases to be a minor under the Age of Majority Act. In Alberta, for all intents and purposes, an 18 year old is a young adult. Why should that person not have the ability to negotiate and discuss his or her plans for post-secondary education and the financing of those plans with the parents? If the child has been raised in an amicable manner with both parents, these discussions should not create a problem. Bill C-41 will not allow that. It arbitrarily states that the parent must automatically accept the obligation, to the extent of 100 per cent, to finance the child's education, as determined by the custodial parent.
I went through university on student loans and scholarships and, after the first year when my dad helped me to pay for part of my education, I worked during the summers. As an adult, a university education was my goal. This bill is basically stating that the parents must pay for their children's university education, and the children have no obligation to discuss their plans or to make any financial contribution.
We find this adjustment to the age of the child of the marriage to be unequal and discriminatory against the non-custodial parent. It erodes the responsibilities that should be accepted by our young people. It encourages piggybacking of spousal support over the longer period because this will be income paid to the spouse that will then be directed towards the child.
Ms Forbister: From among the members of our group we currently have one non-custodial father paying child support for a 30 year old who is attending university. At what point do you start to take responsibility for your own life? We also have a father who is paying child support for two children. These children are working full time and they go to school in the evenings. They go every month of the year, granted. The judge has ruled they are in attendance at university full time. They are eligible for child support.
We also have the situation where child support is paid for a child in the amount of $850, and only $300 is spent on the child on a monthly basis with the remainder being banked by the custodial parent. We must stop this abuse. Education is a privilege and it is a right, but it should not be treated as a necessity of life under the Divorce Act.
Mr. LaBerge: I would like to move on to clause 22 of Bill C-41, which deals with section 62 to the Family Orders and Agreements Enforcement Act, in particular the definition of "persistent arrears." Persistent arrears has been defined as missing full payment of any three payment periods. It is not three consecutive periods, it is three periods; or accumulated arrears of $3,000. When you consider the amounts of money that will be paid under the guidelines, somebody could be in persistent arrears of over $3,000 within a two-month period.
If the supporting parent lost his job and had no opportunity to have his situation reviewed by the court very quickly, he could find himself in the situation of being in "persistent arrears," as it is defined in the bill.
Clause 22, also deals with section 69 of the Family Orders and Agreements Enforcement Act, the section covering licence denial. This is, possibly, the most punitive, ineffective way of dealing with arrears. Again, I must emphasize that we do not support people who deliberately disregard their obligation when they have the means and the capability to meet it. This provision will not affect these people, because you will not find them. It will affect the law-abiding people who participate in their families and who consistently pay support payments, but who may run into financial difficulty through the loss of a job.
Some people within our group are taxi drivers. They could be out-of-pocket for a couple of months because of some labour strife within the community. If their drivers' licences are not renewed they will have no source of income. How could a taxi driver pay back any arrears, let alone keep up what he was willing to pay in the first place? He could not.
The Chair: That comes under provincial jurisdiction.
Mr. LaBerge: Yes, I realize that. The point is that it is punitive, it is regressive and it could be a perfect tool in the hands of a vengeful spouse.
The Chair: The Department of Justice officials told us this would be used only as a last resort. However, I understand your concerns.
Mr. LaBerge: The capability to revoke the licence will be there and, with these regulations, that provision can be changed at any time.
Clause 22 also covers section 71 of the Family Orders and Agreements Enforcement Act. Under this provision, there is no right of appeal if the licence denial goes into effect. We find this unacceptable, undemocratic and discriminatory.
Ms Forbister: I wish to address the guidelines. To appreciate the impact of Bill C-41, it is important to understand the value of the "prize" created by the introduction of these guidelines. The bill denigrates time with our children to a prize -- and to understand this we are talking about a prize: 50 per cent you win, 49 per cent you lose. We believe the litigation surrounding the access time will increase because there will be a financial reward for either increasing or decreasing the access time.
The concept of the guidelines is admirable but we believe the methodology behind it is flawed. At page 4 of the Federal Provincial Territorial Task Force summary it is stated that the method of determining the costs of children produces higher estimates of those costs than other methods, in part because it assumes to include all expenses, including day care, and that it will apply to children of all ages.
In Bill C-41 there are provisions for add-ons; that is day care, medical, educational and extracurricular. What other expenses are there? The task force stated that the guidelines were set down to include those expenses, in particular day care. We believe this is double-dipping; the same expenses will be paid for twice by the non-custodial parent.
In our written submission we have outlined instances where children of different ages have different requirements. A pre-school child requires full-time day care, a child of 12 does not. We believe that you cannot just set down a set of guidelines and say that they will apply to all children from birth to age 18.
The inference is that it is difficult to determine what it costs to raise a child. However, Stats Canada spends millions of dollars annually to gather information pertaining to that question. The information is available. Why are we not using it? Surely using an actual figure of the cost of raising a child makes more sense than a standard by-the-board set of guidelines.
I would like to address the basis for determining the amount of child support. This is based only on the gross income of the non-custodial parent, usually the father. As I said, I am a chartered accountant who specializes in income tax but, for the last several years, I have also been specializing in the division of matrimonial property and negotiating maintenance awards. We must first consider the definition of "income." A salaried employee and a self-employed person may make the same money but they will have different expenses. They are not comparable. No provision is made for the statutory deductions such as Canada Pension Plan contributions, employment insurance or income tax. The gross income does not represent the disposal income.
This calculation is particularly important in situations of a second marriage. There are more children to support and all children of a parent should have an equal right to the support of that parent. However, this set of guidelines gives preference to the first family. There is no consideration of "re-combined" families.
The main concern is the effect of these guidelines on non-custodial mothers. Currently, non-custodial mothers pay very little maintenance. However, under the guidelines, if they are applied fairly, their financial situations will be destroyed.
In our written material, we address the matter of the expenses of the non-custodial parent, the considerable costs of access, and the undue hardship provisions. There will be increased litigation because everybody will be out to prove undue hardship. I believe the courts will be very reluctant to find that there is undue hardship because, remember, written reasons for finding undue hardship must be provided.
In particular, there is a financial reward for time that is spent with the children. A non-custodial parent returns the children to the custodial parent at night and she puts them to bed? How is the quality of the time spent with the children measured? Who gets credit for what?
Mr. LaBerge: My children are with me 32 to 40 per cent of the time. They have a home with me. When two people break up the furniture and everything else in a single house is used to furnish a second home. We cannot consider the costs of running only one home, because there are two. If we approach this properly then the children can have two healthy homes.
On the constitutionality and fairness of certain provisions, our position is that a number of the recommendations and amendments are unconstitutional. They are lacking in equality and fairness. They are discriminatory.
Ms Forbister: I would now invite questions.
Senator Bonnell: I believe that in many cases of divorce the children should have a lawyer. They should be protected. The child may want to reside with the father but, because the judge has decided that the mother should have custody, they are compelled to reside with the mother. Do you agree that children should have legal representation?
Mr. LaBerge: At the time of divorce, a young child might have feelings of abandonment and insecurity. Our premise is that they should not be enmeshed in the problems of their parents. I would not be in favour of having more lawyers involved. Enough money is being paid out to people who do not add anything to the family. They walk off the next case and the litigants are left with the scars and bruises that have come out of their conflict. I would not want to put the children through that.
Ms Forbister: If you start with the basis of presumptive joint custody, that is, that the children will be in the custody of each of the parents for equal amounts of time, that is a balance, and there is no need to deal with the situation where one parent has control over the children.
Mr. LaBerge: That is one of our recommendations: presumptive joint custody. Before a marriage break-up you have two people in a partnership, who have decided how they will work within that partnership. One or both of them may work and the children may or may not require to be in day care. When the marriage breaks up they often become very possessive of what they consider to be their own property, and the children fit into that category. However, cannot be owned like a piece of furniture.
Men have a tendency to say that women are the prime caregivers in the family and, therefore, many do not want their children to be apart from the mother. However, I feel that we should start with presumptive joint custody.
[Translation]
Senator Losier-Cool: Madam Chair, I have a few more questions, but I know that other members would also like to ask some questions.
According to you, ECMAS represents 1,500 families in Alberta. Have you formed an association? Do you have any full-time staff?
[English]
Mr. LaBerge: No, we have no full-time staff.
Senator Losier-Cool: I must congratulate on producing such a complete brief in such a short time, especially since you have no researchers. Are you funded in any way?
Mr. LaBerge: No, we are not funded. We must scratch up a few dollars every time we want to have a meeting.
Senator Losier-Cool: Did you appear before the House of Commons committee?
Mr. LaBerge: No, our request to do so was denied.
Senator Losier-Cool: My question has to do with education and when does a child become an adult. The Senate is also studying post-secondary education, and the students who have appeared before that committee would certainly appreciate financial help. I cannot follow your reasoning when you say that education is not a necessity of life.
Ms Forbister: We are saying that it is not a necessity of life under the Divorce Act. At age 18, a child has reached the age of majority.
Senator Losier-Cool: Yes, but you are responsible for their education even after they have reached 18.
Ms Forbister: We are saying it is a moral responsibility not a legal responsibility.
Senator Losier-Cool: I did not understand your reasoning.
Ms Forbister: You are still morally responsible for your children, just as you are in an intact family, but the legal onus is not there.
Mr. LaBerge: What early steps are we taking to help these students prepare for when they are 18 and starting to go to university so that they can be responsible? Suggesting that the world owes them this is not encouraging them to be responsible.
Senator Losier-Cool: You do not see Bill C-41 as a step towards helping children?
Mr. LaBerge: No.
Senator Losier-Cool: Remembering that there are billions of dollars of child outstanding in Canada, what would you suggest we do?
Ms Forbister: We have met with the justice department in Alberta to discuss a system whereby the parents, the children, and the government would be partners in providing education. This would apply to both divorced and intact families. It would replace the current student loans situation. It would amount to a mediated agreement between both parents, the student and the government, equally, to fund education. This concept had a good reception by the Alberta government.
Mr. LaBerge: When I went through university, student loans were at a very low interest rate. Perhaps parents could co-sign student loans so that they would both have a responsibility to repay the loan if necessary.
Senator Losier-Cool: I was hoping you would give me some suggestions as to how we might be able to recoup these outstanding child care support payments. If you do not agree that Bill C-41 is a step in that direction, do you have any suggestions as to how this might be done?
Mr. LaBerge: I do not see what connection that has to post-secondary education.
Senator Losier-Cool: There is no connection. You talked about early prevention -- dealing with it before children reach the reach post-secondary-education stage. Children have a right to a certain quality of life and we see this bill as a step towards helping children.
Ms Forbister: If there are any arrears owing at age 18, they will not be extinguished.
Senator Cools: I should like to thank these people for such a well-thought-out presentation. How many hours of work did you put into this? You only received a few days' notice.
Mr. LaBerge: We started on Friday afternoon.
Ms Forbister: Mike and I put the presentation together. Our board members are all volunteers who will do anything they can to help. They are dedicated to their children and to the system. I would like to thank my board.
Senator Cools: You obviously read the bill clause by clause and investigated every element of it. I have a great deal of respect for that.
Senator Bosa: I share the comments made by Senator Cools. I think you did a wonderful job. Thank you for coming all the way from Alberta on such sort notice to make your presentation here.
I want to draw your attention to the guidelines. While the bill itself will come up for review five years from now when some other amendments may be proposed, the guidelines are subject to amendments within a shorter time frame.
Senator Jessiman: Where does it say that?
Senator Bosa: The regulations do not have to come before Parliament.
Senator Jessiman: Where does it say that?
Senator Bosa: The officials told us that. I do not know if there is a reference to that in the bill.
I should like to thank you for pointing out some of the flaws in the regulations, for instance, the age of majority and some of the unfairness which may be imposed on non-custodial parents. You are not the only group which has referred to the guidelines. Notwithstanding the fact that the bill will pass, some of those anomalies will be taken into account by the government.
As you can see in the guidelines, the government wanted to receive comments by October 15. However, that does not preclude remedial action being taken in the near future.
Ms Forbister: We recommend that the guidelines be sent back for revision prior to the implementation of the bill.
The Chair: I want to thank you. Often witnesses do not come forward with recommendations. The fact that you have is very important and most satisfactory.
Mr. LaBerge: Madam Chair, Ms Forbister and I would like to thank you very much. After not being able to be a part of a process when these guidelines were being worked out with the task force, you have restored our faith in the system by inviting us here today.
Senator Jessiman: For Senator Bosa's information, it is stated that, within five years after coming into force of this section, they will reconsider the guidelines.
Senator Bosa: That is the bill.
Senator Jessiman: I believe it refers to the guidelines.
The Chair: We will now hear from representatives of R.E.A.L. Women of Canada.
Ms C. Gwendolyn Landolt, National Vice President, R.E.A.L. Women of Canada: Madam Chairman, thank you very much for the opportunity to speak to you today. We have a great deal of concern about the legislation. In every piece of legislation it is important to have one defining quality, that is, fairness and balance. It seems to us that this piece of legislation does not provide fairness and balance. It seems to be addressing men who mostly are the non-custodial parent as being difficult, intransigent and not trustworthy. On the other hand, it portrays women as always being noble and virtuous. I wish that were the case, but it is not.
You will note in this legislation that the only person it addresses is a non-custodial parent which in 85 per cent of the cases in Canada is the father. There is no balancing responsibility for the custodial parent who would be the mother. She is not accountable in any fashion. All the provisions relate to this dreadful man who, obviously, will be reluctant to pay his responsibilities toward his children.
I should like to say right at the beginning that most parents, both fathers and mothers, deeply love their children and care about them. They want to provide for them. This legislation does not at all portray that. This portrays men as beasts and enemies of mothers and children and that the only way they will be whipped into shape is by putting very difficult provisions in place so that they will be forced to pay.
One of our major concerns is the lack of balance in the legislation. There is no commensurate responsibility or accountability by the mother, who is usually the custodial parent.
The other problem with this legislation is that one of its main objectives is that it be universal and provide fair guidelines across the country. Yet, clause 2 of the legislation states that "child of the marriage" will be defined according to the age of majority in place in the different provinces. In the province of British Columbia, that age is 19. In the province of Ontario it is 16. In New Brunswick it used to be 14; I am not sure if that has been changed or not.
Even though there is supposed to be fairness and equality across the country, provincial legislation determines the age of majority. In many provinces that age is 18; but it is certainly not the case in all provinces. A mother in British Columbia will receive child support for a longer period of time than will a mother in Ontario or in another province. That, in itself, is questionable.
Another problem with this legislation is that there are guidelines that are determined by regulation. As a lawyer, I want to mention one concern that has arisen. It is that enormous power is being given by Order in Council or regulations which are not in the legislation.
For example, clause 11 of the bill states that the "Governor in Council may establish guidelines." If you continue reading that clause, you will see that the court is being authorized to do something. The guidelines state what the court must do. In effect, regulations are being used to force the court to take a specific action. There is some concern about whether or not subordinate legislation is the appropriate way to have this tremendous force and effect.
I understand that in 1972 there was passed what is known as the Statutory Instruments Act. At that time, a standing joint committee of the Senate and the House of Commons was established to review regulations and statutory instruments. Before we even get into the substance of the legislation, I think we should question whether or not we should, by regulation, be giving this tremendous power to order the courts to do specific things; we should question whether the courts should be told what to do by legislation.
What is going on here? There seems to be subordinate legislation which is controlling our courts in Canada with regard to child care support. Is this appropriate? I think this matter could be referred to the committee I mentioned. It certainly would not hurt. Someone should be raising this very serious problem that certainly hits a lawyer between the eyes right away. There is something very wrong in that there will not be debate. There will be secrecy; no one will know until the Order in Council has come out. Every family that is separated will have to jump to the tune of the regulations, and the court will have to jump to the tune of the regulations.
The other problem we are finding with this legislation is that it deals with the father, who normally is the non-custodial parent, and it has nothing to do with the mother, who normally is the custodial parent. I have had much experience in the family law field, and time and time again I have heard parents, particularly the non-custodial father, say, "Every time I want to see my child, she has some excuse," she usually being the custodial mother. "I never get to see my child. I am merely a wallet or a paycheque, not a person, and I am not given the responsibility, and I am not treated as a person who cares and loves and wants to be with my child." This legislation digs the ditch and makes that even more apparent, because there is nothing in this legislation that says that the mother must honour the access orders that were given at the time of the divorce. Often, the court will say, "Go back to court, if you are not getting your access," but there is an enormous cost to going back to court.
Payment and support of your children is closely and intimately intertwined with the non-custodial father's access to his children. He deeply loves the child and wants to be a part of that child's life and not be what they used to call in a very derogatory fashion a Ronald McDonald father, who is allowed on Saturday afternoon to take the child to McDonald's, but every other time he is supposed to have access, the child is not available.
This legislation entrenches a great problem in domestic relations or family law in that it says nothing about access. I understand that the Minister of Justice has said, "Oh, we will deal with that later." "Later" is not satisfactory, because that is not dealing with the core issue of the father and mother sharing that child. That is one of the very serious drawbacks in the legislation.
As well, the Divorce Act presently states that both parents are responsible for the care of their children according to their financial situation. Suddenly that has been wiped away and the woman who has the child has no legal obligations. I am not suggesting for a moment that mothers do not care for their children, but there are exceptions, and I have seen them in my own practice, where mothers not only have not honoured the access order but have not followed the rules as far as caring for the children. There is never any question that the money is used for the children, but often not all of it is. She has her other means. There is no accountability. However, only the father is, in fact, ordered to pay. There is not a mention of the mother herself. Most women would never dream of taking money from the children for their own purposes, but there are some, and I have seen them in real life. There is no accountability for the money and no accountability for the access to the child.
The only time that the poor old father, the non-custodial parent, ever gets any ability to express himself is to apply under hardship legislation, but he has to go to court and prove it. One of the problems of proving it is that he must give a financial statement, and the financial statement deals not only with his own income and financial needs but also brings in his second spouse if he happens to be married again. The income of a woman who has entered into a marriage with a man who was previously married with children is also part and parcel of this. One would wonder if that is a good thing. It would certainly be a disincentive to marriage. I think more couples would say, "Why would we get married? My income will have to go to support your children by a previous marriage."
What if they have children within the second marriage? That is a problem that would be troubling for Solomon. Who gets what money, when there are limited funds? Is it the children of the first marriage or the children of the second marriage? I would never want to say that not each child is of equal value. However, you do have a problem under this legislation in that the child of the first marriage gets primary consideration.
Perhaps that is right, but I think it is wrong. I would bring to your attention that the children are affected by the first or second marriage, and the children of the second marriage are locked out of the perimeters. Their needs and their concerns do not seem to be relevant under this legislation.
We also have problems with the fact that the mother may apply for extra funds under "extraordinary circumstances," which is child care, education, and medical expenses. That is deeply puzzling, because surely those are the everyday problems and everyday expenses of any mother looking after her children. Why is there a provision in here indicating that she can apply for extra funds for the very things that are involved with the day-to-day care of the children?
It seems that the custodial parent has advantages under this legislation and can apply for extraordinary circumstances, whereas the non-custodial parent can only apply under hardship, and then must include a financial statement of the second spouse. The non-custodial parent is very vulnerable to the demands and very vulnerable to the responsibilities to the children of the first marriage, and his other children and his second wife often are left in the periphery of the whole problem.
Incidentally, I thought that the Income Tax Act was bad, but this bill is hardly better; it is a very complex bill. One of the provisions deals with enforcement. What happens arbitrarily is that the man who is $3,000 in debt for non-payment can have his licence removed. It is only federal licences that are at stake. If he is a pilot or if he is at sea, that can be affected. There is no commensurate responsibility for the mother, the custodial parent, if she does not provide access. It is only the so-called wicked man who will have his licence removed.
From a practical point of view, how much sense does it make to remove a man's licence, which is his livelihood, because he has not paid his child support? Surely it is like the old Victorian debtor's prison when the debtor was thrown into prison for not paying his debt. It did not help the creditor one bit that the person was in jail, because he could not pay any way and he lost all his security and employment. It seems to me that we are witnessing a return, in a very contemporary fashion, to the Victorian debtor's prison, and the man who does not pay will be thrown out into the cold and into the wilds because he has not conformed.
However, the mother has no problem. She is kept totally isolated and is totally protected by this legislation. She does not have to worry about it. If she is a pilot, she does not have to worry about any enforcement against her if she does not provide access.
There is a lack of balance in this whole legislation that is deeply troubling. There is the constitutional issue, which I referred to earlier, of whether the courts can, by regulation, be ordered to do something. There is unfairness to the couple, who obviously are deeply troubled by the fact that they are a broken family, and there is so much pain. I had never understood that there could be such tremendous pain until I got into the area of family law and saw the pain of both the mother and the father. However, all we have here is a piece of legislation that seems to be completely one-sided and unfair to one partner in this issue.
I would think that the Senate may be the place where you can think, "Well, perhaps there can be some changes and recommendations on the Constitutional aspect of it, but also on the substance of the bill." Otherwise, I suspect that this bill, if it is passed, will be back for repair before too long, because I do not think men and women and families can live with this legislation. It is not practical; it is not fair; it is not balanced; it is not a workable bill. Anyone who has had anything to do with this bill will understand that it is not a down-to-earth piece of legislation, dealing with flesh-and-blood men and women in their ordinary relationships. I would like to see the repairs to this bill done here.
Certainly, I would agree that the time in clause 12, which states that the minister has five years to submit to Parliament his recommendations on the bill, is far too long. There will be far too much damage done. If you do not repair this bill here and now, you will have a problem. It should be brought back in a year, if necessary, but in five years there will be so much anguish, so much litigation, and so many more deeply troubled families that I do not think we can afford the minister the luxury of five years before he brings back a report on the bill.
The Chair: You said that this bill allows you to take into consideration the income of the spouse of the second marriage, but it does not take into consideration the income of the spouse of the first marriage in the support of child custody; is that correct?
Ms Landolt: It takes the second marriage into consideration, and the income of the spouse, but it has nothing whatever to do with the mother of the first marriage. She may, in fact, have married a multimillionaire, but it has nothing to do with that. There is no provision for her to go before the court and for the husband to say, "I am on a $40,000 salary, and she has married a millionaire. Why am I stuck?"
It is important to note that every parent must support the children, but I am suggesting that there certainly could be problems there. With respect to the mother who has custody of the children, there is no requirement that she come forward and say that her circumstances are such that she is a multimillionaire. It relates only to the income of the non-custodial parent and the second spouse.
Senator Bosa: I have one brief question on clause 12. I suppose you were here when I raised it before.
Ms Landolt: Yes, I was.
Senator Bosa: It says that a comprehensive review will take place within five years, but that does not mean that we have to go to the end of the fifth year. It could be done within a year, six months or two years depending on the evidence.
Ms Landolt: You and I know it never works that way. They always wait until the 11th hour and put it in at the very last moment. That is how the world works. That is how ministers work, because we are all human. Certainly, they could do it within six months, but I know, and you know or can guess pretty well, that it will be in the fifth year. In the year 2001, the Minister of Justice will submit his report. Even though it says "within a maximum," I think the practical effect will be the year 2001.
Senator Bosa: Have you been practising family law for some time?
Ms Landolt: Not for a while, but I did practise family law for many years. That was my field.
Senator Bosa: Has it been your experience that the government has not acted on similar wording for guidelines before?
Ms Landolt: It is my experience, not specifically with regard to family law, that when a minister is supposed to issue a report, the report is put in at the 11th hour. There is the simple, practical aspect of getting around to it, when there may be many things on the agenda. It has nothing to do with the law, but it has everything to do with human beings and a busy agenda. No one is more busy than the Minister of Justice, for example.
Senator Bosa: Did you have an opportunity to appear before the House of Commons committee?
Ms Landolt: I was not available, but both my colleagues did appear before the committee.
Senator Bosa: Were the same points raised there?
Ms Landolt: We changed some of them. There are some differences. We did not raise the constitutional issue of giving a power under regulation to order a court. That was not raised. However, the substance of the bill was raised with the House of Commons committee.
Senator Forest: Speaking of the lack of balance, you have a point there. However, I think there is a lack of balance in referring to the custodial parent always as a woman and the non-custodial parent as a man. That is where the larger numbers are, but it is not always the same way. As well, I disagree that men are being portrayed as beasts.
I should like to comment on the concept of default. I do not know if you read the recent statistics out of Ontario about the millions and millions of dollars of payments in arrears, but I want to point out the difference between those who cannot pay and those who wilfully do not pay. The numbers are pretty grim, and I think, in fairness, something must be done in order that children receive proper support.
I listened recently to a lecture by Dr. Mustard on child poverty. It is horrendous in Canada. Also horrific are the number of single parent families where children are in poverty. The vast majority of those are headed by single women. Much of that has to do with a default in payments. There has to be some fairness here in seeing that the money which should be going for the support of these children does indeed go to support them.
I agree with your statement, which was also made by the previous witness, that basing it on three periods and accumulated arrears of $3,000 in this day and age is not practical. Support payments are as high as $1,700 a month. However, something must be done to resolve the problem of persistent default.
With respect to taking away or not renewing drivers licences, several provinces already do that. That is not within the federal jurisdiction.
Ms Landolt: You are quite right, but the vast majority -- 85 per cent or 88 per cent, depending on the study -- of custodial parents are mothers; studies indicate that the mother has custody of the children because she is the main nurturer of the child. I understand your point and it is well taken. However, in most of the cases, we are dealing with fathers as the non-custodial parent.
I want to make it clear that we would never suggest that these fathers do not have a responsibility to their children. However, much of the default is mixed in with the question of access. If they do not have it, they become discouraged and dispirited.
One of the other problems is the change in economy, particularly in Ontario, since some of the orders were made perhaps five, ten or fifteen years ago. The fathers do not have the money to go to court. There is a real problem with Legal Aid. It has been significantly cut, especially with respect to domestic relations or family law in the province of Ontario. Much of the Legal Aid is directed to criminal law. Those are human problems.
I agree with you that we must do something for children. The greatest cause of poverty is the broken family. Two households are not the same as one. However, answers are complex because we are dealing with people. It may be that somewhere along the line we should make it more difficult to get divorced and perhaps people might try a little harder to work things out.
No-fault divorce has certainly increased the number of divorces, which has increased the amount of poverty. It is a one-two-three step. On the other hand, I do not want to suggest that everyone should be forced to stay in a marriage. It is a matter of balance.
I do think that because non-payment is intertwined with access that perhaps these strong provisions for the removal of a passport or the removal of a licence could be balanced off for the woman who does not provide access.
I have chased husbands from one end of the country to the other because they simply would not pay. We will bring a garnishee, and the next thing we know, they have quit their jobs and have moved to Vancouver. There are people like that.
However, I would suggest that somehow we just haven't got it right with this legislation. Somehow there should be a better arrangement or a better balance so that we are fair to both parties.
Senator Forest: I certainly agree with respect to access, because everybody knows that, unless there is an abusive relationship, children do better when they have the benefit of both parents. There is no question about that.
Ms Landolt: We are finding that fatherless families are a major cause of problems. The father does have a very important role to play. Of course the mother does too. As the mother of five I am quite strong on that point, but I do think the father has an extremely important role to play. Unfortunately, many of them are not fulfilling the role that they would like to play because of the very stringent legislation that puts them off.
The Chair: I asked you about the second-family spouse. On page 5 of the working paper, under "undue hardship" it states that the court may, under custody of either spouse, make a child support order, and it then enumerates the circumstances. At the top of page 6, the papers reads:
A court shall not apply subsection (1) if it is of the opinion that the household of the spouse pleading undue hardship would, after determining the amount of child support in accordance with subsections (3) and (6), have a higher standard of living than the household of the other spouse.
Ms Landolt: I had forgotten that. You are quite right; they do include the question of the standard of living, if his standard of living is lower than that of the custodial parent.
Senator Bosa: May we make this report part of the minutes?
The Chair: Of course.
Senator Jessiman: What is R.E.A.L.? What does it stand for?
Ms Landolt: R.E.A.L. Women of Canada. "R" is for realistic. "E" is for equal; we believe women should be equal. "A" is for active, and "L" is for life. We are a pro-family organization. We believe in the equality of all women. Our motto is: "Equal rights for women, but not at the expense of human rights." That is why we are here today. We are here to say, "Yes, we do believe in equality for women, but not at the expense of someone else who will suffer as a result of giving extra rights to one element of society."
Senator Cools: How many members are there in your organization?
Ms Landolt: We have about 55,000 across the country, both family, individual and group members. We are interdenominational and non-partisan. We have been federally incorporated since 1983 and have always been self-supporting. We have not been as fortunate as the more radical feminists, who all receive federal grants. We must manage well. We are a grass roots organization doing it by volunteer work and because of our concerns about society.
Senator Cools: Your presentation was extremely articulate, well thought out and, I would add, very kind and compassionate. I should like to thank you for flagging that issue of the guideline regulations being used, essentially, to invade judicial independence. Basically, they are instructions to judges with respect to their decisions and findings.
I would have liked to put this question to the previous witnesses, but there was a shortage of time. Perhaps you could respond to it for me. This concerns the definition of being in persistent arrears. According to the previous witness, one could arrive at a state of being in persistent arrears very quickly.
Have you studied that? Could you amplify somewhat on what he had to say?
Ms Landolt: With $3,000, it is very easy, if you have two or three children, to have that racked up against you and you will simply not have an opportunity to go to court to get the amount reduced. You are stuck with it, and the next thing you know your licence or passport will be removed. It does not deal with the reality of the situation.
For example, you may have had a court order in 1977, but, because of a change in circumstances -- you lost your job or had other responsibilities or debts or whatever -- you are unable to pay that monthly child support. With that $3,000, you are immediately in deep trouble. There is no opportunity to go to court to readdress the amount of the judgment or the child support. All of a sudden, even before you can move, you are in deep trouble. This exacerbates the problem immeasurably for the father, having this sword of Damocles over him before he can deal with the issue or apply to the court to reduce the order, or apply for some sort of variation of the order. The key point is that he would want a variation of the order, but he would not have time to get it or to go to the court to ask for a debt adjustment.
Senator Cools: How could we improve those sections of the bill?
Ms Landolt: With regard to the enforcement?
Senator Cools: Yes, regarding the definition of persistent arrears.
Ms Landolt: If it is still an important part of this legislation to have this enforcement by removal of passport or licences, then I have some trouble with that, because it is like the old debtor's prison. However, if they want to continue that provision, then another provision should be written into the legislation to give the non-custodial parent the opportunity, or a time break, to apply to court for a variation of the order, or to adjust his debt, to have a just payment so that it can be worked out.
In my opinion, a whole section is missing from the enforcement aspect, in that it has not dealt with the reality of these non-custodial parents. If the non-custodial parent has no excuse and can afford it, I have no pity for him or her, but in many cases it is simply that they cannot pay and then all of a sudden they are dumped on. We should like to see some provision to adjust the length of time in which he can apply to the court, so that the court can deal with it without this horrible business of removing the licence or passport. As we pointed out, there is no appeal, and that is frightening. He is a goner, if he does not pay; he is dead in the water. There is no right of appeal under this legislation. Maybe there should be a provision for an appeal -- that is, if the license has been removed, he or she can appeal that decision. That might be a more humane way to deal with the situation.
Senator Cools: I have been giving some consideration to the issue of no appeal, which is really quite extraordinary. The issuance of a passport is an act between Her Majesty and Her Majesty's subject. I have been trying to figure out why on earth any minister or any government would enter that field in the first place, since it has much to do with the Royal Prerogative. Do you have any thoughts on that? Why have we gone to passports at all?
Ms Landolt: You are right; it is a question of Royal Prerogative, and this legislation is saying that the government by regulation -- not by statute, but by -- can remove or alter a Royal Prerogative, and that is somewhat troubling.
This seems like a very draconian measure. No one will know about it until it is passed, because it is not debated and it is not public, and I do not think many of us read the Gazette to find out what the regulations are. Approximately 99 per cent of Canadians will not be aware of what is contained in the regulations until people are pounced on by the enforcement officers. It would be far better if this could be done by legislation. People would be aware of it then, because it would be debated in the House of Commons and in the Senate.
One point I should like to mention is that senators and members of Parliament, for the first time in history, will also be affected by this legislation. No one has ever done that before. A senator's salary or an MP's salary can be garnisheed. Again by regulation, not by statute, the rights of senators and MPs are being affected.
Senator Cools: I am so pleased that Ms Landolt has moved us on to this ground, because there are some fairly questionable areas in this bill. I have been waiting for someone to spot this. Again, I am impressed by the quality of study and reading and the attention that the witnesses have paid to the bill.
I wonder, honourable senators, if this bill is not doing the unprecedented, the unheard of, bringing the Senate and the House of Commons under the jurisdiction of a statute. I have been beating this drum for many years.
Since Ms Landolt has raised this issue, and now so have I for the first time in this committee, perhaps we could have our Law Clerk or the chairman of our privileges committee look into this, but someone in the Senate should begin to look at this issue seriously. I have never before seen a statute of Parliament that attempted to bring into its purview the Senate of Canada.
Senator Phillips: I think we should have a legal opinion on that.
The Chair: The minister will appear here tomorrow.
Senator Cools: We may discover that he does not know much about it. If he has taken the initiative to bring the Senate and the House of Commons under his purview, I doubt that he will give us an unbiased opinion on what rights of the Senate are being trenched.
The Chair: Can we defer getting a legal opinion until tomorrow?
Senator Cools: Yes, as long as we agree that we will study the issue. This is not the first time that departments do this sort of thing. We have to send them packing from time to time, and I have no problem with sending this particular department packing.
The Chair: It will be recorded that we will seek a legal opinion.
Senator Cools: I should like to be involved in the decision on whom to consult. It is unfortunate that Senator Forsey is no longer with us.
[Translation]
Senator Losier-Cool: I should be very brief. You partially answered my question when the Madam Chair queried you about the second marriages. The mother has the custody of the children; she gets married again with a pretty good prospect, a millionaire; I believe you have used the word "well off."
I did not quite understand what the children's father responsibility would be? I am not talking about the stepfather or the millionaire, but about the children's father. Do you believe that he should still be financially responsible or not? He would then have no more responsibility as a father.
[English]
Ms Landolt: I believe that the father is always responsible. It makes no difference whether she marries a millionaire. He still has a duty to pay for the support of the children according to his financial ability. However, his ability may be considerably diminished. He may have a second family with children. I would never say that a man is not responsible for the children he has brought into the world. It is absolutely essential that his financial support continue.
Senator Losier-Cool: Are you implying that only men can hold licences under the lists of acts which you have provided?
Ms Landolt: Not at all.
Senator Losier-Cool: That is what I inferred from your comments.
Ms Landolt: One member of our association is a commercial pilot. My point was that the majority of recalcitrant support payers are male, because most of them are non-custodial. I do not suggest that women cannot be pilots, for example.
Senator Losier-Cool: This list was not made to address men. This list was made to address non-payment.
Ms Landolt: The practical impact is that very few women, if any, would be affected by it.
Senator Lavoie-Roux: Did I understand you to say at the end of your testimony that your organization is family centred?
Ms Landolt: Yes.
Senator Lavoie-Roux: I realize that you have read this bill more carefully than I. One of the main objectives of the bill is to clarify the financial responsibilities of the custodial and non-custodial parent. Is there anything else in the bill that is meant to support the family, such as mediation?
Ms Landolt: There is nothing in the bill with regard to mediation, compromise or other means of working the situation out. It is a harsh, uncompromising and draconian bill. It simply states that if you do not do A, B will happen. Perhaps there should be some revision of the bill to include mediation.
I know that some women do not want compulsory mediation, because it would compel them to meet with an abuser, for example. However, there should be some method of doing this. If mediation fails or the couple chooses not to mediate, other measures could be taken.
Senator Lavoie-Roux: Madam Chair, you asked the witness if she had presented similar testimony to the House of Commons. Before the House of Commons sent this bill to us, should they not have taken into account the representations they heard?
The Chair: The committee did make some recommendations, but no recommendations came from any members of the House of Commons. They came from the committee before the bill was passed.
Senator Lavoie-Roux: And then nothing happened, or did it happen later?
The Chair: The bill was amended.
Senator Lavoie-Roux: Was it amended in the way you would have liked, Ms Landolt?
Ms Landolt: Not at all. When we appeared, we questioned the fact that the guidelines apply to a child regardless of age. We suggested that the guidelines should differ for a child who is three and a child who is 15. Some members of the committee thought we were being absurd, but, as parents, we know that there is a greater financial requirement for a 16-year-old than for a 3-year-old. They seemed to spend an inordinate amount of time attacking us because we did not like the fact that the guidelines were not adjusted to age. They did not seem to hear the concerns we brought forward, which we have now brought forward with you this afternoon. They did not seem to be aware of the lack of balance. They were not sensitive to the lack of balance in the legislation. We wished that they had been more responsive to that.
Senator Lavoie-Roux: I have the feeling, Madam Chair, that all this will come back to us. Many witnesses have told us that they have been in front of the House of Commons committee. Why do we go through this process, if it is of no use? Well, that is beside the point; we do not need to discuss it now, but I think the committee should question itself.
The Chair: We hope that it will be of some use. It is good for us to hear this evidence, and we need to hear, personally, what the witnesses have to say.
Senator Bosa: Many of the anomalies in this bill are caused by the behaviour of people who are supposed to abide by the rules. Would you not say that it is difficult to legislate behaviour -- honesty and fairness -- and is that not the root of the problem of many of the things that are wrong with this bill, or the things that are perceived to be wrong?
Ms Landolt: I think behaviour can be modified by legislation. Otherwise, if we did not have legislation that says you cannot kill people, we would have everybody killing their grandmothers, or, for instance, they would be stealing their neighbours' property. However, I think legislation can be fair. I think legislation can be balanced. I think it can be done with thought and concern for all the parties. Lots of legislation is wonderful and does try to balance the concerns of all the parties involved.
Senator Bosa: I was referring specifically to what you told us about the non-custodial parent wanting to have access and the custodial parent saying, "I am busy. I have an appointment," and finding all sorts of excuses not to comply with the rules. How do you legislate that?
Ms Landolt: What I would recommend is that, intertwined or involved in this legislation, there must be a commensurate responsibility for access orders to be honoured. If there were a provision requiring access orders to be honoured, and the non-custodial parent still did not pay, then I could see these stern provisions being put in; however, when I see that there is no accountability or responsibility on the part of the custodial parent, then it is all one-sided. A provision could be written in to make it fair and balanced, and I think that parents would respond to that.
Again, as I said, legislation can modify behaviour. If a custodial parent knew that, if he or she did not allow access to the child, he or she would have difficulty with the legislation, I think much more access would be provided and there would not be so many excuses for the child not being available.
The Chair: We want to thank you for coming before the committee today. We appreciate your testimony.
We will now proceed with our last witness, Mr. Philip Epstein, who is a lawyer and is the past chairman of the Family Law Section of the Canadian Bar Association of Ontario. At present he is a member of the Toronto General Division Family Law Bench Bar Committee and a member of the Ontario Gender Division of Family Law Rules Committee.
Mr. Philip Epstein: Honourable senators, I appear here today as a private citizen and as an experienced family lawyer, because I am concerned, as the word filters down to Toronto, about what people are saying about this bill. I think there are serious misconceptions about this legislation; because this is an extremely important bill for Canadians generally, I thought it might be useful if I came and talked to you about it.
I have, for the past 13 years, been responsible for teaching family law to lawyers graduating in Ontario; I have had the privilege of training about 10,000 lawyers in family law in that time. I interact significantly with the family law bar and the judiciary. I bring to you a different perspective than some of the speakers you have heard over the last couple of days.
It will be apparent from my remarks that I have significant disagreement with the speakers who have gone on before me, and I say, with the greatest of respect for them, that there are significant misunderstandings about this bill. One can come to a realization and understanding of what this bill offers Canadians only after some considerable study. I have been astounded at some of the remarks contained in some of the questions and some of the answers, and I am going to respond to them.
First, I think it is important for everyone to note and understand that this bill is primarily about protecting the rights of children in this country. It is designed to create a formula approach to child support, which approach is no longer considered even an interesting question in most of the common law world. Canada is one of the last countries in the common law world to adopt child support guidelines. It is not a serious discussion in most of the common law world, since everyone has recognized that you do not let the parties go to battle over the issue of child support. What you do, if you are a responsible government, is draft legislation that allows the parties to understand at the inception of their divorce what are their rights, roles and responsibilities.
If you create a formula for the calculation of child support, and if that formula is fair, reasonable and objective, and if you provide some statutory safeguards so that in the aberrational case a judge can make a different result, you will promote early settlement of a family dispute involving children and child support. That is the most significant step in this bill and it is badly needed in this country.
Australia, England, New Zealand, and more particularly the United States of America, have long recognized that this is the way to deal with child support: Establish a guideline; apply a guideline. Who benefits? The parties benefit, because they have an immediate formula that determines and settles the issue of child support. The public at large benefits, because it reduces the strain on an overburdened judicial system and does not force people into court to resolve issues of child support. Members of the judiciary benefit, because they can then concentrate on the aberrational or difficult case, and the public benefits by having less litigation in the family courts about matrimonial cases.
Senator Bosa is correct that legislation can modify behaviour, but in the family law area, it is difficult to design legislation that modifies behaviour in the area of custody and access. No common law country -- I dare say no country -- has been able to successfully design legislation to stop parties from fighting with each other about access. Access problems are solved by mediation, by alternative dispute resolution methods, by education, and by teaching people at an early age how to resolve problems in a non-acrimonious way.
I respectfully suggest that you will fail in trying to design punitive legislation that somehow punishes people for denying access. You will never know why access was denied. You will never know who caused the problem. It is why we moved in this country, quite wisely in 1968, to no-fault divorce.
It was a wise English judge who said many years ago, when the husband complained of the wife's adultery, that it takes three to commit adultery. Someone thought he was talking about a ménage-à-trois, but he was really talking about the fact that one person's behaviour can drive another person into other forms of behaviour.
It is too late in the day to go back to looking at fault in family law. One must take the family law case as one finds it and help the parents to resolve their differences. A formula to which parties can look for help would be a major step forward in resolving issues.
There is some considerable discussion about whether this bill somehow picks on men. As an experienced family lawyer, I have some difficulty with that concept. First and foremost, the bill is even-handed. The bill assumes what is obviously correct in Canadian society: that the custodial parent spends what resources are available to the custodial parent to look after the children. All of the economic studies done by the family law committee and Justice Canada in that regard show that custodial parents spend what is available on their children, if not more.
All this bill does is to say that the non-custodial parents must contribute their share of the proper support for the children. In cases of shared parenting, which have been discussed by some previous speakers, there appears to be a misconception of what this bill does.
Shared parenting is treated differently from the normal case under this particular statute and set of guidelines. Shared parenting allows the court to examine how children are treated by both families. If both families are sharing the children in a substantially equal way, then the guidelines will not hurt either of the parents. The guidelines will, in fact, further assist in determining the appropriate level of support in cases of shared parenting.
It is interesting to note that these guidelines were issued by Justice Canada in 1995 as draft legislation. They have gone into widespread use across this country, particularly in Ontario, because judges are enamoured of them, lawyers are enamoured of them, and clients have found them useful in resolving their disputes. There has clearly been a significant, accelerated level of child support settlements. Judges routinely keep these guidelines on their desks. Although they are fond of saying they are not law yet, they are being widely applied across this country to determine the appropriate level of support.
It is important to note that the legislation has built into it a review period. Whenever we introduce new legislation of this kind, it will be some time before we can sort out whether the guidelines are doing exactly what they are supposed to do. It will be necessary, from time to time, to adjust them. However, until we start with a formula approach and apply the formula approach across the country, it is very difficult to start tinkering until we see how it is working.
It is most important that the government be charged with the responsibility of doing anything it can in the family law field to promote early settlement. It is not in the interests of the public in this country to engage in acrimonious and expensive litigation in the family law field. We have all have heard horror stories in that regard. All of us regard "The Divorce From Hell" as the last thing we want to see happen to any family.
One begins by trying to create legislation that creates fairness, equity and, more important, predictability. When people who are separating know that this will be the result when they get to court, then they will not go to court. If people know that this will be the result before they engage in expensive litigation, they will not engage in expensive litigation. If people know that this will be the result if they separate, they will make separation agreements; they will take this issue off the table; and it will reduce the number of issues over which they can fight.
If you slowly reduce the number of issues over which people will fight, you will reduce the considerable overburdening of the court and you will reduce hostility between the families.
There is nothing any of us can do to retard the considerable divorce rates in this country and elsewhere in the common-law world. Unfortunately, high divorce rates are probably here to stay.
What we can do, as a responsible government, is try to draft legislation that creates predictability, certainty and objectivity. The current law with respect to child support is simply an unmitigated disaster. The Supreme Court of Canada said so in 1994 in a case called Willick v. Willick. It made it clear that it thought that judges were not meeting their responsibilities to make appropriate support orders across this country.
The suggested answer to that problem is to stop families from individually litigating over child support. Does it really make sense for the hundreds of thousands of people in this country with child support issues to fight out each case as though each case is different? Yes, there are differences from case to case, but they are not so different that the guidelines will not assist the vast majority of these people in reaching equitable and reasonable solutions.
Where there are aberrations from family to family, the guidelines are carefully crafted in order to provide for a variation by a judge. The add-ons for special medical expenses, for educational expenses, for daycare, will allow courts to adjust from case to case. When individuals cannot pay the guideline amounts, there is an "undue hardship" test that will allow the courts to relieve undue hardship. There are enough outlets in this bill to allow for proper variation in the proper case.
The vast majority of cases, though, and the vast majority of Canadians, will fall squarely in the middle of the guidelines and they will have predictable and settle-able amounts.
With respect to enforcement, it is no secret that hundreds of millions of dollars are unpaid by defaulting parents in this country. It is a national shame in this country and elsewhere in the common-law world.
The United States, particularly California, have moved to licence revocation in an attempt to increase compliance with support orders. They have seen startling and amazing results. Licence revocation is a common way of dealing with enforcement of child support. You must, as a government, I suggest, and as an opposition, send a clear message that child support is a primary obligation in our society and that children cannot be neglected.
Senator Cools: Who does he think he is talking to?
Mr. Epstein: If you are serious about this message, there must be proper enforcement mechanisms. No one who pays child support needs to be concerned about enforcement legislation. It is the people who do not pay child support as ordered who must be concerned about enforcement legislation.
There are many avenues for enforcement in this bill. It seems to me that it is reasonable that both this government and the Ontario government, which is moving in the same direction with respect to enforcement, recognize that we can no longer afford a society where children are not paid proper child support.
It would be nice, in a perfect world, to tie child support to access. Other governments have tried and failed and, frankly, 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.
Senator Cools: Who is proposing that?
Senator Bosa: Let the witness finish.
Mr. Epstein: I think R.E.A.L. Women proposed that while I was sitting here, senator.
Senator Cools: Nobody here has proposed that.
Mr. Epstein: It is what I hear coming out of the discussions.
Generally speaking, lawyers, judges and the mainstream family law clients in this country support this legislation and hope to see it passed. Certainly, the 1,500 lawyers who attended the recent program in Ontario to study the guidelines were significantly in favour of having guidelines in place and moving on with this issue. We can put the issue of the formulae behind us then and, over the next few years, we will see if we have adopted the right approach with respect to those formulae and we will see if they need tinkering.
With respect to whether the guidelines should be in the legislation, I say this: If you put the guidelines in the legislation, then every time you want to adjust or tinker, you will have to amend the bill. That is a difficult and slow process. The legislation would be better with regulations, which can be adjusted from time to time if it becomes clear that the guidelines are not working as they are intended to work.
As I said, most other common law jurisdictions have enacted guidelines and they have had to tinker with them. I do not think the experience in Canada will be any different from the rest of the common law world.
I know that represents a substantially different view from the speakers from whom you have heard over the past few days. However, given my background in this area, I thought it important that I at least make a trip up here. I am very obliged to all of you for giving me the opportunity to speak to you.
I would be happy to answer any questions that you might have.
The Chair: We have been inundated with phone calls about this bill since last Friday. In fact, my office had 41 phone calls this morning while we were in the office. Why is there this kind of concern about this bill, if you feel it is right?
Mr. Epstein: That is an excellent question. First, no bill is ever perfect. You have received 41 phone calls, but you have not received a million phone calls from people who think it will work very well.
First, it is a natural reaction for parties who will have to adjust support to be concerned about this bill. I will be honest with you. If you are a father in this country and you are paying support prior to a 1994 agreement or court order, then you are probably paying too little. The Supreme Court of Canada has said so. Other courts across this country, particularly those in Western Canada, have also said so. If you are a father and paying support pursuant to a 1989 or a 1991 agreement, you will have to pay more under this legislation.
Senator Jessiman: It will not be deductible.
Mr. Epstein: It will be deductible, if the order stays the same. If the order is changed, then it will be grossed down. If it is not being grossed down, senator, it is because it was not grossed up in the first place, in which case the child and the recipient of the child support suffered.
The whole question of taxation is a difficult one. If I had had my way, I would not have changed the taxation rules. But the taxation rules were changed as a result of the Thibodeau case and, quite frankly, by the pressure of the women's movement across this country, who did not want to pay tax on child support. The result is that we will not gross up and we will not gross gown. They will be paid in net dollars. The net effect will be neutral.
There is no doubt, honourable senators, that many people will have to pay more money. If you raise taxes, I imagine you will get thousands of calls as well. You will get many calls from non-custodial parents who will be asked to pay more money.
The Chair: The majority of them were concerned about paying support while having no access. There is nothing which deals with access in this bill.
Mr. Epstein: Senator, that has been a problem for 200 years. The Ontario government tried to pass an intertwined bill seven or eight years ago. It was so roundly condemned that it had to be withdrawn. It is hard to legislate in the access area because the father will say, "I am being denied access." The mother will say, "You are being denied access because there is a serious problem when you exercise access." It is very hard to sort out the truth. It is much easier to determine when someone does not pay child support than it is to determine why a person is not receiving access.
The Chair: Do you think the grid is fair, when it looks as if it almost doubles and triples according to the number of children in the family?
Mr. Epstein: I think the grid is fair. We have run some computer projections in our own office in Toronto based on a very considerable number of family law cases. We think that the grid now produces virtually the same results that courts are now ordering post the Willick decision in the Supreme Court of Canada. I think the grid might be a little higher in the low end. Certainly, in the middle range, which will catch most Canadians, we think the grid is probably dead on.
As we say, after about a year of this, we will be able to have a better idea of how close the grid is.
Senator Jessiman: Do you agree that an order made by a judge should really take into account the fact that spouses have a financial obligation to maintain a child? Do you agree that the amount that is to be paid should be apportioned between the spouses according to their relative abilities to contribute to the performance of the obligation?
Mr. Epstein: Yes.
Senator Jessiman: Do you believe those provisions should remain in the bill?
Mr. Epstein: What you have captured in your question is the prevailing principle for awarding child support in this country. I refer to the Paras principle. Parties are required to contribute to the care of their children based on their respective means.
Senator Jessiman: Do you agree with that?
Mr. Epstein: Of course I do. Any right thinking person would agree with it. The problem is that the Paras principle is impossible to fairly ascertain. It leads to people litigating each individual child support case because they argue over the expenses of the children, their respective means and what they should be contributing.
The Paras principle was the principle available in all of the common law countries which have gone slowly to child support guidelines. These guidelines are different from other guidelines because they have only the non-custodial parent on the grid. It could be done a different way. However, the non-custodial parent on the grid assumes that the custodial parent uses his or her income to support the child. In the vast majority of cases, senator, we all know that people who have children look after their children as best they can.
I do not think that the guideline approach changes the Paras principle. What it does is formulize the Paras principle so that it avoids the argument over how much a certain child is costing.
As a perfect example, senator, if you and I are sorting out between us the issue of child support based on the Paras principle, we will argue about how much food the child consumes in a week, how much of the rent should be attributed to the child and how much of the driving expenses should be attributed to the child. I use pay TV. Do we charge that off against the child even though I might have it on my own anyway? In terms of the Paras principle, we would never agree as to the basic numbers.
Senator Jessiman: The guidelines could have been set up on the basis that both parents pay. Is that not correct?
Mr. Epstein: It could have done that way.
Senator Jessiman: There are guidelines in Canada that provide for that, are there not?
Mr. Epstein: There are in Prince Edward Island.
Senator Jessiman: What about Quebec?
Mr. Epstein: Quebec does not have them yet. They are looking at implementing them.
Senator Jessiman: The evidence we heard from the department is that Quebec has them.
Mr. Epstein: In my view, they do not have a statutory, mandatory guideline yet.
There are probably 20 different guidelines, senator.
Senator Jessiman: In fairness, you agreed that both parents should be responsible for the children.
Mr. Epstein: Absolutely.
Senator Jessiman: You also agreed that both incomes should be taken into account.
Senator Cools: Come on now, tell us.
Mr. Epstein: I do not agree that both incomes should be taken into account in using this guideline approach.
Senator Jessiman: I did not say "this guideline." I read to you words from the present act. That is the law. You have indicated how it came about. That is what the courts have been looking at. I am suggesting that that is a much better way to do it than the way the Canadian government has decided to do it.
Mr. Epstein: I respect your view, senator. Respectfully, I do not think it is working any more. If it were working, I do not think the common law world would have moved to guidelines. I respect the view; it is a view held by many.
Senator Jessiman: Do you agree with the statement that guideline levels must be set so that there is a realistic range of expenses allowing for children, given the income level of both of their parents?
Mr. Epstein: Yes, I think I agree with that.
Senator Jessiman: I would like to think you would. That is what the Canadian Bar Association had to say.
Mr. Epstein: The Canadian Bar Association and its lawyers do not always agree. However, I agree with that. I think the guidelines do exactly that.
Senator Jessiman: The guidelines themselves say that the non-custodial parent will pay. Period.
Mr. Epstein: No, senator.
Senator Jessiman: Yes. They take into account the other party's expenses or income.
Mr. Epstein: The guidelines are based on an overriding assumption which you cannot ignore. The overriding assumption is that the custodial parent spends what is available to look after the child.
Senator Cools: That is the assumption of these guidelines, but there are many other guidelines that make other assumptions.
Senator Jessiman: With respect to shared custody, today there are more families where both the husband and wife are working parents than was the case 20 years ago, and when they separate, it is not uncommon that, where they actually do share custody, they share on a substantial basis. They may not necessarily share substantially equally, but I know of cases where it is on a 40/60 basis.
Mr. Epstein: I believe 40/60 is probably a substantially equal sharing.
Senator Jessiman: Not according to the department. When I asked them, they said it was 50/50.
Mr. Epstein: It clearly is not 50/50 or the legislation would have said so. It says the sharing must be "substantially equal."
Senator Jessiman: That is what the department thinks it is, and I am saying that should be changed. This is what the department thinks it means, and they have had some advice on it.
Mr. Epstein: You have to be careful about this kind of section as well, because you do not want to encourage people to litigate over custody for the sole purpose of trying to get away from the guidelines. You do not want to encourage people to claim custodial rights they are not interested in only so they do not have to pay the guideline amounts. I think the phrase "substantially equal" was chosen so you do not get people driving for 50/50 just to get out of the guidelines.
Senator Jessiman: That is exactly what will happen. If they remove those words, let the court decide. If a person has a child one day a week, they should be given some credit because there is cost involved. The cost that person expends will be that much less that the other person is required to expend. The court should decide. Perhaps the court would say you do not get any credit.
Mr. Epstein: I respect that view, and that is the view under which this country has operated for the last 100 years. We have taken each individual child support case and looked at the facts. We have looked at access costs, travel costs, and time costs. The problem with that is that we have an overburdened justice system, too many people fighting about child support, lack of objectivity, uncertainty, huge awards in Toronto, low awards in Thunder Bay, high awards in Downsview, and low awards in North York. That is what happens when you do it case by case.
Senator Jessiman: They would only be doing the shared custody if they could not agree. The parties also know it costs money to go to court or to engage a lawyer. If the "substantially equal" is out of there, they know that they will get some credit for shared custody. Anyway, that is my view.
[Translation]
Senator Lavoie-Roux: Thank you for your presentation. First of all, I would like to make a slight correction. The senators who are here today are not against a bill that aims at improving child support and promoting arrangements between the parents, et cetera. What you have to do is to study this bill and try to improve it.
After listening to you and reading your submission, I am under the impression that you consider this bill perfect. Am I wrong or are there possible areas of improvement?
[English]
Mr. Epstein: I think it is possible to improve any kind of legislation, but, generally speaking, I think the bill to amend the Divorce Act is probably as good as one can get it until one has tried it.
The regulations, no doubt, need improvement and need further work. My understanding is that further work is being done on the regulations. There can be considerable improvement in the regulations in a number of areas, but not on the grid. I think the grid is as good as you will get. However, in areas like shared parenting and the undue hardship test, there can be improvement in the regulations.
I do not see at the moment any recommendations that I would make with respect to the divorce bill itself. I think the work should be done in the regulations area.
[Translation]
Senator Lavoie-Roux: Still, over the last two weeks, we have heard several witnesses who had experienced themselves the troubles of divorce or of shared custody of the children. They expressed these concerns. We were not quite sure that those parents had been treated equally. The people who went through such situations seemed to be concerned about the balance and the fairness of the bill in that area.
[English]
Mr. Epstein: First of all, senator, I apologise that my French is not good enough to enable me to converse with you in your language, but let me say that I have practised in the family law courts for 25 years and have done difficult custody cases, and I understand the anguish of parties involved in a dispute over their children. However, the vast majority of Canadians, particularly in the last decade, have found much better ways to resolve custody and access disputes than through the courts.
We have moved in this country through provincial and federal legislation to mediation, to alternate dispute resolution, to psychological assessments, to extensive pre-trial systems, and a great many other mechanisms for resolving custody disputes.
For example, in the Toronto General Division, which is the busiest family law court in this country, there were virtually no custody cases tried last year. That signals a significant improvement in how society and the bench and the bar have co-operated in helping parties resolve custody disputes.
By and large, people will find a way to resolve custody disputes, and these days they take up very little time of the courts. People generally do not spend considerable litigation time over custody and access. They used to, but they do not any more. However, there are many hard cases, and when people separate, the most traumatized victims are the children. If people do not find a way to settle and settle quickly, children will be damaged by the process.
There are also many cases in this country in which one parent, out of vengeance or spite or out of immaturity, will not allow the other parent to have a full role in the child's life, and they deny access or hinder access or make it difficult for the other side. There are no easy answers to these cases.
I think the Government of Canada should, down the road, consider rethinking the whole idea of custody and perhaps removing the word "custody" from the legislation.
Senator Cools: That is music to my ears.
Mr. Epstein: I agree with that, but it is not easy to design a system to make people act responsibly in this area. People are hurt and damaged after a broken marriage. I think you have to do this incrementally. While I would like to see changes down the road in custody legislation in this country, and I would like to think more about mandatory mediation in some areas, I do not think we are ready for it. I do not think we have done enough research or have enough data, and I think we have to go incrementally.
However, I would like to see the removal one of the issues from the table, and that is child support, and then the government can go on to tackle the other issues. I think you make a valid point.
Senator Cools: Perhaps you could elaborate on what you said a moment ago about the term "custody" being removed from the act. This issue is very dear to my heart.
Mr. Epstein: "Custody" is one of those dangerous words, senator. In the heat of battle, people say, "I want custody," and away they go to do battle. There ought to be a better way.
When parties submit their custody rights to a court, what they are really doing is letting a stranger decide what should happen to their own children. Can you think of anything more bizarre than letting a third party decide what should happen to your children? Parties must be taught from an early age how to avoid these disputes; they must be taught better dispute resolution mechanisms. We should work in this country at finding ways to help people resolve disputes that do not involve judges acting like Solomon. There are no easy answers, and there is no easy legislation.
Yes, "custody" is a loaded term which gets everyone's back up. It makes fathers angry and mothers defensive. Yes, we should work towards a time when we can avoid that kind of process.
Senator Cools: Why is it in this day of gender-neutral language and gender-inclusive phraseology that Bill C-41, or any of the current legislation, is so antiquated?
Mr. Epstein: I think society is changing, senator. Twenty years from now, you will see far more situations of shared parenting and joint custody. We now live in a society where both parents go to work. We have to clean up hundreds of thousands of cases in this country where that is not the case. We must still recognize in this country that, notwithstanding our gender-neutral stance, men earn far more than women. Men have more opportunities than women. When we get to a time when we are truly equal, we may be able to have different legislation. However, right now, men earn more than women for the most part. Whatever the reasons, women are more frequently the custodial parents. Therefore, we must have legislation that adapts to that. I hope there will come a time when we will not have to do that.
Senator Cools: There is a point of view -- it is not mine -- which says that, if men have more money, then more men should get custody.
Mr. Epstein: I have just come off a lengthy trial in which I acted for the husband, and he did get custody. It is not the case that men do not get custody. However, it is not over money; it is over who is the primary caretaker, who is more nurturing and who is acting in the child's best interests.
Senator Cools: You are dealing here with people who have had other experiences, but your enthusiasm, sir, for Bill C-41 is to be admired.
Senator Lavoie-Roux: Or suspected.
Senator Cools: It makes some people suspicious, but it is to be admired..
Mr. Epstein: I have no personal interest other than to see this issue get off the table.
Senator Cools: The issue is not bogged down on the table. We have only had the bill for four or five days.
Mr. Epstein: I did not mean for the Senate; I meant for the family law bar, which takes no pleasure in resolving custody access or child support issues. There are other important issues to resolve.
Senator Cools: Absolutely, but we must deal with the issues before us. I understand your sense of urgency, but it is not mine.
Mr. Epstein: Of course.
Senator Cools: I was speaking about your enthusiasm for Bill C-41, but at the same time you say you would not have changed the current tax structure. You are giving what I would describe as pretty strenuous support for Bill C-41. I wonder if you could just give me some evidence on why the government has chosen this format for guidelines and not one of the others which currently exist. I am told there are about 20 models. Why these guidelines? Tell me why you are supporting this model.
Mr. Epstein: I would have supported any model, if it could have demonstrated to me that it worked reasonably in terms of the regulations. Other models -- some in New York, California and Oklahoma -- work reasonably as well.
I was on the sidelines while the family law committee, which has a distinguished membership, worked for four years on this. I am aware of the economic studies that were done, and I am aware of the work that went into drafting these guidelines. When I first saw these regulations, I was sceptical, but I have looked at them, studied them and worked with them, and I think they work.
For me, the issue is more that there be guidelines. I would have said that we ought to try any guidelines that have a reasonable chance of working; if they are not working, we should then scrap them and go to a different set of guidelines.
No jurisdiction has designed a perfect set of guidelines. In the last decade we have all been tinkering. My view is that we should get some guidelines and see if they work. If these do not work, we could try the P.E.I. model. If that model does not work, we could try the New York model.
We have to start somewhere with guidelines and then hope to make the guidelines react to the times. I am not wedded to these particular regulations; I am wedded to the idea of guidelines.
Senator Cools: I am pleased that you have made that clarification. Your premise is that there is a need for guidelines. I think many people agree with that. However, I am very glad that you have made the clarification that it is not these guidelines which are really fostering your enormous enthusiasm. Your enthusiasm is being driven by the fact that you need the guidelines.
The Chair: Do you think that five years is soon enough?
Mr. Epstein: My memory was that it was four years, and I thought four years was the right time.
You must consider that this all gets settled by some of these cases going to the Ontario Court of Appeal and the Quebec Court of Appeal. Four to five years is about the right time. It will take that time for the courts to sort it out.
The Chair: Thank you very much, Mr. Epstein, for appearing today. I believe the committee has benefited from your presentation.
Honourable senators, we shall now proceed to other business of the committee. I have an order of reference from the Senate giving our Subcommittee on Veterans Affairs the right to examine certain matters relating to expediting the adjudication of pensions in respect of the Department of Veterans Affairs. To do that work, the subcommittee requires approval of its budget. Obviously, they cannot operate without a budget.
Senator Lavoie-Roux: Madam Chair, I move that we approve the budget of the Subcommittee on Veterans Affairs.
The Chair: Is it agreed, honourable senators?
Hon. Senators: Agreed.
The committee adjourned.