Proceedings of the Standing Senate Committee on
Social Affairs,
Science and Technology
Issue 19 - Evidence - Morning sitting
OTTAWA, Wednesday, January 29, 1997
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 8:35 a.m. to give consideration to the bill.
Senator Mabel M. DeWare (Chair) in the Chair.
[English]
The Chair: We will continue our consideration of Bill C-41, an act to amend the Divorce Act. We have with us today Mr. Michael Day, a family lawyer.
We all have the brief which you sent to us, Mr. Day. After your presentation, we will have some questions for you.
Mr. Michael J. Day, Family Lawyer: I wish to start my presentation by reading my written submissions, so that they are on the record. After that, I will provide you with a brief handout which contains some case commentary on the proposal I am making with regard to the proposed amendments to the statute.
By way of background, I am a lawyer in Mississauga. I have been practising for 17 years. My area of practice is confined primarily to family law. To date, I have been involved in about 3,000 contested files and more than that on an uncontested basis. I therefore believe I have some background upon which I can rely for the submissions I want to make to you today.
I have represented women and children and have also advocated on behalf of children in the province of Ontario through the former Office of the Official Guardian, which is now known as the Children's Lawyers Office.
In my principal submission, my comments are restricted to one particular subsection of the old section 15 of the Divorce Act. I will deal with that in more detail later, but the thrust of my comments this morning are limited to that one specific provision and how the province of Ontario has handled that problem. It will be my submission to the committee that it consider adopting the approach which the province of Ontario has taken on the issue of conduct when it comes to determining entitlement to spousal support and the issue of quantum of spousal support once entitlement is settled.
The current wording of section 15(6) of the Divorce Act provides that in making an order for support the court shall not take into consideration any misconduct of a spouse in relation to the marriage. In assessing the issue of entitlement to support or the quantum to be paid, the court is mandated to not involve itself in what the parties did to each other. In other words, the test is in essence an economic one. This limits the court to principally confining itself to what are the needs of the dependant spouse and what is the financial ability of the other spouse to meet those needs.
The Supreme Court of Canada, in the Moge case, which was handed down by the court in 1992, supports the approach of examining the economic consequences of the marriage in determining an appropriate level of support. This certainly simplifies the inquiry for the court but, in certain situations, can cause extreme unfairness to one of the separating parties.
It is my submission to this committee that the Divorce Act should be amended to allow the court to consider conduct of the parties in limited situations when determining whether a support order should be made, whether an interim order or a permanent order.
The current wording in subsection 15(6), which is adopted in the proposed 15.2(5), states that in making an order, that is a support order under this section, the court shall not take into consideration any misconduct of a spouse in relation to the marriage.
I propose that the amended wording of 15.2(5) should read, "The obligation to provide support for a spouse exists without regard to the conduct of either spouse but the court may, in determining the amount of support, have regard to a course of conduct that is so unconscionable as to constitute an obvious and gross repudiation of the relationship."
There is a practical rationale for the existing wording in section 15(6). The jurisdiction in which I practice is called the Central West Region of the Ontario Court General Division. This is known to be one of the busier jurisdictions in the country because of its proximity to the Greater Metropolitan Toronto area and the fact that the Toronto International Airport falls within our region. Motion lists in our courts are extremely long. It is quite usual to have one justice handling as many as 40 contested motions each day. Often matters that require immediate attention are not reached. Very complex issues are given short shrift and not properly considered, simply because there is not enough time.
When the issue of conduct is introduced, it will, admittedly, require the court to look at issues in a divorce proceeding at which it is not currently required to look. The built-in prejudice, in my opinion, is that the scope of the justice's inquiry will be limited to economic concerns rather than conduct, simply because there are less issues to consider with the current wording.
The problem is that this limited inquiry will result, in some situations, in inequities and will, in those limited cases, ignore fundamental issues of natural justice in the determination of the issues.
I represented Mr. M. in a divorce action in Brampton, Ontario. He had been in a very unhappy marriage for approximately 20 years. My client's wife had, throughout the marriage, suffered from a series of emotional and mental health problems. The allegations of my client in his pleadings in the affidavits filed were that his wife had, throughout the marriage, physically and emotionally abused him. Counselling did not assist with the problems in the marriage. My client's wife alleged that he was insensitive to her mental health issues, but there was no evidence of any abuse from my client toward his spouse.
Mr. M. alleged, among other things, that his wife bullied him throughout the marriage and, on one occasion, butted her cigarette out on his person in an argument. His wife denied this treatment with unconfirmed general denials.
What was not in dispute was one particular event where my client was, while sleeping and without provocation, attacked by his wife with a butcher knife. The knife was plunged six inches into his chest. He was rushed to hospital and, through the efforts of the doctors who treated him, his life was saved.
The wife was charged under the Criminal Code with attempted murder. She retained the services of Mr. Greenspan and, at a very preliminary stage in the criminal proceedings, was discharged because she was determined by the court which tried the issue not to be mentally competent and to be unable to stand trial. The matter within the criminal courts never proceeded beyond that point.
My client commenced a divorce proceeding on the basis that the marriage had broken down. His wife counter-petitioned for support and the matter was argued in the Ontario Court General Division in Brampton in November, 1995. The Honourable Mr. Justice McKay, who heard the interlocutory proceedings within the divorce, ordered that my client was to pay spousal support on an interim basis in the amount of $1,500 per month. I argued, unsuccessfully, that it was not fair that a support order be made under the circumstances that were presented to the court. I argued, unsuccessfully, that it was not fit or just that my client be ordered to pay support to his attacker.
Justice McKay, who is a well-respected, well-known and knowledgeable jurist, held that the Divorce Act, as it stood at the time, was clear that conduct -- or misconduct, more accurately -- of spouses within a marriage was irrelevant and was not a consideration that he could take into account in making his decision to order spousal support.
My client is still under psychological and psychiatric care. He still suffers from the problems he says he experienced within the marriage and as a result of the attack. The support order that was made in the divorce proceeding only magnified his suffering.
Mrs. M. is now living on her own, fully functional within the community, and is still receiving support from my client.
The bill before you proposes to do nothing with the existing wording. The wording in clause 15.2(5) of the new bill is the exact wording in the current legislation.
The fact that the courts are overworked is not, in my submission, justification for eliminating what might be difficult inquiries into conduct in certain limited situations. Unfortunately, all marriages that break down have, by their very nature, low moments and times when the conduct of one of the parties may be unreasonable and, perhaps, abusive. There is a point, however, when a party's conduct within a marriage becomes so abusive that no society should condone it by ignoring it altogether.
The statutory wording of the Family Law Act of Ontario seems to be a reasonable approach to this issue in relation to the matter of spousal support. If the conduct of a spouse is an obvious and gross repudiation of the relationship, in my submission the court should have statutory authority to deny or alter the level or entitlement of support.
This caveat to the no-fault philosophy in support considerations is incorporated in section 33(10) of the Family Law Act. I will provide you with the actual text of that in my handout.
If one tries to kill his or her spouse, whether because of mental illness or in a deliberate act, the court should have the right to consider that conduct and decide whether that act, in and of itself, constitutes an obvious and gross repudiation of the marriage and to adjust the support obligations accordingly.
The common law process of stare decisis can determine what is or is not an obvious and gross repudiation of a relationship. Recognition of an obvious and gross repudiation may be reflected in the reduced order or an outright elimination of support. By allowing the court to make this inquiry, the Divorce Act is thus not sanctioning violence within the family unit, which is obviously consistent with society's best interests.
Before I go on with a couple of other points, I have a handout for the committee.
Senator Jessiman: Is there not a section in the present act which has the exact wording that you have asked us to put in this bill?
Mr. Day: No.
Senator Jessiman: There is no such section at all?
Mr. Day: No.
Senator Jessiman: Where did that come from?
Mr. Day: The wording I propose comes from an English court of appeal case.
Senator Jessiman: I thought that under the Divorce Act the conduct of the parties was not taken into account. Is the act silent on this?
Mr. Day: The current law is contained in the handout I am circulating now. It is subsection 15(6).
Senator Jessiman: Is the wording exactly the same?
Mr. Day: Yes.
Senator Jessiman: In effect, they are not asking that the current law be changed by this bill. You are saying that they have changed the subsection. I am sympathetic to that view. To look only at the economic circumstances of each of the parties and not at conduct is contrary to what was done prior. For instance, if one person committed adultery, the other had grounds for divorce.
If you go back further into the common law, you could have a clause put in which said that if you did commit adultery you were entitled to nothing. The act does the reverse. You can now do anything. It is sad. However, I do not think it is before us.
Mr. Day: On page 1 of the handout, which comprises six pages, you will see section 15(6), which is the current law. That is the law that is not being changed by this bill. It states:
In making an order the court shall not take into consideration any misconduct of a spouse --
That is what prevented me from arguing before the judge that, under the circumstances I have described, my client should not be forced to pay support.
Senator Jessiman: When did this come in?
Mr. Day: This has been in place since prior to 1986.
Senator Jessiman: Did it come into effect in the 1960s?
Mr. Day: No. This spousal misconduct clause was brought into effect in 1986.
The second page of the handout is a part of the Family Law Act of Ontario. I am suggesting that you might consider importing section 33(10) into the amendments to the Divorce Act. It states, in part:
The obligation to provide support for a spouse exists without regard to the conduct of either spouse --
Basically, that is what the federal law says, and then stops. It goes on to state:
-- but the court may in determining the amount of support have regard to a course of conduct --
That is the first condition.
-- that is so unconscionable as to constitute an obvious and gross repudiation of the relationship.
I am asking you to consider substituting that subsection for the existing section 15(6).
Senator Cools: That is what we have been told in evidence all week. A former judge told us that the courts have ignored Parliament anyway and are doing certain things. We have been told that we must change the Divorce Act to bring it in line with the provincial statutes. That is fascinating. It is now going the other way.
Mr. Day: As a matter of practice, when a lawyer drafts his pleadings for support here in Ontario, he makes a claim for maintenance under the federal statute and joins with that an application for support under the provincial statute.
The ludicrousness of it is that, depending upon on what statute you rely, the tests are different for spousal support. If you are acting for the wife, you will take the position that you rely upon the Divorce Act for maintenance because that will prevent the lawyer for the husband raising the issue of conduct. If the parties were not married, and had the same fact situation, the wife could only claim financial help under the provincial statute. The lawyer for the husband could then argue that the conduct is relevant because they did not go through a marriage ceremony. Obviously, that leads to inconsistencies.
The balance of the handout is case commentary about the Ontario subsection. Three or four points come from the cases dealing with section 33(10), which I suggest you consider bringing into the federal act.
The first is that the Ontario courts, in the Blackmore case, have said that conduct should only be considered on a final order. That would not have helped Mr. M. because the $1,500 order was an interim order. However, when we go to trial in a year or two I could at least say that gross and unconscionable conduct should be considered in the final award.
The second point which comes from the cases is a very limited situation where the courts will regard a particular act as gross and unconscionable. Post-separation acts are not usually regarded as gross and unconscionable. In other words, if a woman has a sexual relationship after separation, that is irrelevant on the issue of gross and unconscionable repudiation of the relationship, and that makes common sense. In another case, a woman who became a stepmother did not accept the stepchildren as her own. That was not regarded as a gross and unconscionable act, and that also makes sense.
The case of Morey sets out conditions (a) through (f) which the court might consider as gross and unconscionable. These are as a result of precedents which courts set along the way in considering the statutory language. Some of the conditions and principles that they considered are as follows:
First, the conduct must be exceptionally bad. That is an objective test; it is a "reasonable man" test. Attempted murder would fall into that category. Refusal to accept the child of a partner as your own child does not meet the test. It is up to the judge to decide what is exceptionally bad.
Second, the conduct must have been in the face of innocence and virtual blamelessness. In other words, you cannot come to court with dirty hands; you must be a victim. If Mr. M. had abused his wife throughout the relationship and this was her way of dealing with a very bad situation, then Mr. M. would not be entitled to argue a gross and unconscionable course of conduct.
The third point is the matrimonial offenses of adultery, mental cruelty and physical cruelty. Those are not the only situations in which there is a gross and obvious repudiation. It would be up to the judge to decide what constitutes that.
Next is a risk of punitive costs. If someone says in court that they are the victim of an exceptionally bad act and that is not proven on the facts, that person runs the risk of being penalized by legal costs.
Finally, the pleadings must set out in some detail what the victim is alleging.
The point of dealing with those details is that the Ontario courts have not had a difficult time distilling a course of conduct that would fall within that test. The argument that getting into conduct in certain limited situations will bog down already busy courts does not seem to bear out in the Ontario experience. If the statute contains the discretion for the court to make those inquires, it will not have an adverse effect on the dispensing of justice. Even if that were the case, it is not a reason to limit the inquiry of a court in an obvious, common-sense situation.
The balance of my handout is to give the committee an idea of the kinds of cases the courts have been asked to deal with in the past in relation to that section and to give you some insight on how one particular jurisdiction has exercised that discretion.
Those are my submissions.
Senator Jessiman: Did the Divorce Act contain that clause in 1978 at the time of the Morey case?
Mr. Day: Yes, it did.
Senator Jessiman: Which takes precedence? Under section 91 of the Constitution Act of 1867, divorce is a federal matter. Property and civil rights under section 92 is a provincial matter. Is the divorce itself federal and the actual payment of spousal support provincial, or does the Divorce Act extend, as a consequence of divorce, so that the federal act governs on spousal support?
If two statutes are contrary, we must determine which has priority to know which to follow. One could argue that the actual divorce falls under the federal law but that the payment of support falls under the provincial law.
When you went to court in 1995, did you have the provincial statute?
Mr. Day: Yes.
Senator Jessiman: Did you argue as I am suggesting?
Mr. Day: Yes.
Senator Jessiman: What did the judge say?
Mr. Day: The justice said that the matter would be determined under the federal statute because that is what the lawyer for the wife argued. I am not a constitutional lawyer.
Senator Jessiman: Neither am I, but I am learning a bit about it.
Mr. Day: In a typical divorce in Ontario you plead both; you plead maintenance under the Divorce Act, which is federal, and support under the provincial statute. The election is done at the time of argument. My understanding is that the Divorce Act overrides where it occupies the field. On property issues, we deal with the provincial statute. With respect to the dissolution of the marriage and maintenance, we deal with the Divorce Act.
Senator Jessiman: The Divorce Act covers maintenance as well?
Mr. Day: Yes.
Senator Jessiman: The actual wording from 1991 does not say "divorce and maintenance," does it? I thought that under section 91 it just said "divorce," but it is a while since I have looked at it.
Mr. Day: I am not sure what section 91 says under the BNA Act or the Constitution Act.
Senator Jessiman: Thank you.
I am very sympathetic, but if this is a federal jurisdiction, we would be stretching it a bit to say that this is before us, but I would be prepared to stretch it a bit from the committee's point of view. It really is not a change from the present law. The change is only a change in number.
Perhaps the majority of committee members would be prepared to recommend that the federal government consider it. There are situations where it is ludicrous that the court's hands are tied by this section when a person acted in a reprehensible way.
Senator Bosa: Mr. Day, I am very sympathetic to the case that you illustrated.
You said that this legislation was changed in 1986. It eliminated misconduct; is that correct?
Mr. Day: Yes.
Senator Bosa: Did it previously contain the same wording as found in the provincial legislation?
Mr. Day: I do not know the wording that existed prior to 1986, but my general understanding of the law as it existed then was that conduct was very much relevant.
Senator Jessiman: That is right. There were certain grounds for divorce. Adultery was one.
Senator Bosa: Did you review the debate? Was gross and unconscionable misconduct debated and it was then decided by those who dealt with the legislation to set it aside?
Senator Cools: No. That is not what happened.
Mr. Day: I did not review the debate on the issue of why the government at the time decided to go to a no-fault approach. I know from practising in the family law area that the courts, lawyers and parties wanted to get away from dealing with conduct in most situations because no one wants to see the dirty laundry of others. Ninety-nine per cent of the time, it is irrelevant.
In a very limited number of cases, we must make that inquiry because it goes right to the heart of our desire to have a safe and a just society.
In 1986, the government moved to what I would call economic situations. For example, how is a spouse affected by a relationship or its breakdown? The government was trying to get into less confrontational issues, and conduct became a much less time-consuming issue. I understand that. That makes sense. However, we must have some escape valve in isolated cases.
Senator Bosa: Are you saying that if the amendment which you are proposing had been part of the law in 1995 you would have won the case?
Senator Jessiman: If I had argued it, I would have given a much stronger argument.
Senator Bosa: Had you won the case, the spouse who committed the abuse would not have received any spousal allowance?
Mr. Day: The justice who presided over the case said that, had the law been worded otherwise, he would have not made the order he did. He was very sympathetic to my client and felt very badly about what he was doing.
Senator Cohen: Although I agree that the woman in the case to which you refer committed a terrible act, she was mentally ill and so that is not really a true picture.
I would hate to see adultery brought back as grounds for divorce. Too much hard work was done to get that out of the system. Men have been doing it for centuries.
Senator Cools: Women have, too.
The Chair: At the end of Mr. Day's proposal it says that Mrs. M. is now living on her own and working full time.
Senator Cools: Mental disorders are frequently claimed by women. One would have to conclude that women have more mental disorders than men. They are successful, too. Consider Mrs. Joudrie.
Senator Forest: I have sympathy for the case you have outlined. I appreciate what Senator Cohen was saying about getting into the debate on conduct. You mentioned that this would apply only to a limited number of cases and you are probably correct in that.
Do you think that including this might result in a lot of people arguing this where there was no gross misconduct or repudiation of the relationship?
Mr. Day: That is possible, but I do not think it will happen. The guidelines that were enumerated in the case I referenced set out, at the fourth point, the Morey case. If someone takes up the court's time on issues which it determines are not appropriate, that person runs the penalty of a punitive cost award. In the Ontario experience, it has not opened the floodgate of litigation.
Senator Forest: How long has this been in force in Ontario?
Mr. Day: Since March of 1978.
Senator Forest: That is almost 20 years.
Senator Cools: Thank you, Mr. Day, for appearing before us.You laid out your case in a very focused and strategic way. You focused on one particular example to drive home your point and then brought the case law to support it, especially from the family law.
These problems are very well known to practitioners in the field. I would not want the committee to think that this is an unusual phenomenon. Women are just as violent as men.
It is interesting to note that, had the roles been reversed and she had killed him because he was beating her, she would be detained in Kingston penitentiary and would be involved in the inquiry which is looking at how to release from prison women who have killed their husbands.
This rather suspicious and questionable concept of battered woman syndrome has taken hold in many areas.
One of the issues that perplexes and is a curiosity for me is the concept that women can do no evil. This concept seems to permeate so much current legislation.
You did not cite a case to which I have not given much thought for quite some time which involved a woman's prolonged violence toward her husband. I think it was called Green v. Green. Have you ever heard of that case?
Mr. Day: I am familiar with it.
Senator Cools: That particular case was so terrible that it has made its way into many international journals.
Have you represented other persons in similar circumstances to Mr. M.?
Mr. Day: Yes, I have.
Senator Cools: Can you tell us about some of them?
Mr. Day: I have represented both men and women who have been victims of violence by their spouses. However, I have found that I do not get recognition from the courts when a male client alleges abuse by his spouse. It just does not seem to wash.
In the reverse case, it is very much easier for me to get quick relief when I am acting for a female client who alleges abuse. It is almost a matter of course to get exclusive possession of the house, a non-harassment order and protection from the police. It happens quickly, as it should.
When the reverse is alleged, it is the exception that I get that relief. The statute is gender-neutral, but in practice it is not.
Senator Cools: I speak to many practitioners of family law who tell me that. Do you have any insight as to why that is?
Mr. Day: It may be as simple as built-in prejudices. It is hard to accept that a male might be abused by a female within a marital relationship, yet it happens all the time.
Senator Cools: All the definitive studies show that combat in marital relationships is mutual. The literature supports it.
Mr. Day: Yes. I am familiar with the studies that have been done.
In practice, there are two sets of rules when there is abuse within a relationship.
Senator Cools: Yet the law claims to be gender-neutral.
Mr. Day: Yes.
Senator Cools: I would be prepared to move Mr. Day's amendment. Perhaps we could have some discussion on the merits of it.
The Chair: If you have it properly drafted, we can deal with that at clause-by-clause study.
Senator Cools: If it comes from the Family Law Act of Ontario, it is probably extremely well drafted. We can run it by our law clerks, but all we need do is adopt it.
The Chair: I do not think we can.
Senator Cools: I will handle that myself.
I am always amazed at the hushed silence when we start to talk about women's violence.
Senator Cohen: We do not want to argue about it at this time.
Senator Maheu: I do not know what it is, but it is insignificant.
Senator Cools: I am sure that his client, with a six-inch butcher's knife in his chest, did not think it is insignificant.
I thought your submission was extremely well-honed and articulate. It was very much to the point. Obviously, you gave a lot of thought to your presentation.
Section 8 of the Divorce Act speaks to breakdown of marriage. Section 8(2) says that breakdown of a marriage is established only if, (b):
(i) committed adultery, or
(ii) treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses
Those are grounds for divorce. That is scripted in that way because there was a change of government during the process. The original intent was that if a marriage broke down, it broke down and one need seek no reason. They were trying to move away from the concept of fault in the emotional breakdown of a marriage.
As the new players came onto the field, they reintroduced these three issues as causes of breakdown. I observed that process carefully. That is the reason it is written in this way.
When the act was so scripted and they were speaking of not considering misconduct, they were looking at the so-called moral issues such as whether one party had a love affair post-separation.
At the time this was being looked at, there was no consideration or contemplation of murderous behaviour. I sat through every single one of those hearings.
You wish the legislation to take account of the fact that in recent years society has taken the position that we must not tolerate terrible domestic violence. I support your initiative.
Senator Bosa: Senator Forest asked whether, if this amendment were accepted, it would open the gates for other cases that are not as serious or as dramatic as the one that you illustrated.
The meaning of the phrase "gross and unconscionable conduct" can be stretched by lawyers to apply to any serious misconduct, such as adultery. The committee must weigh the effects of such an amendment if we decided to accept your suggestion.
Mr. Day: In response to that, I refer to the experience here in Ontario. That legislation has not consumed the courts; it has not opened up a floodgate of litigation. With the penalty of costs for coming before the court with a frivolous claim, that is not a practical problem. Even if it were a practical problem, does the committee want to ignore it?
Senator Bosa: The provincial law now has the wording in the way it would like the federal law to apply. Is it not up to the judge to choose what argument to accept from the plaintiff or from the defendant?
Mr. Day: No, because in the fact situation that I gave you -- and this happens all the time -- the lawyer for the attacker says, "I am not relying on the provincial statute. I am making my claim for support under the federal statute." That ties the hands of the presiding justice.
Senator Bosa: But in this instance you propose to deal with the case under provincial law.
Mr. Day: That is not my decision. Once the wife's lawyer proceeds under the Divorce Act for maintenance, there is nothing I can do to stop it. I am stuck with the scheme in the federal statute.
Senator Forest: Do any other provincial jurisdictions have the same or similar wording as Ontario?
Mr. Day: I do not know. I know that wording does exist in other jurisdictions but I cannot tell you if the province of British Columbia has the same wording as Ontario.
The Law Reform Commission adopted many of its provisions for the Ontario Family Law Reform Act from the California experience. That was regarded at the time as a very progressive statute and it made Ontario the leader in Canada, and many of the provinces have followed suit.
Senator Cools: The Family Law Reform Act was a stunning piece of legislation at the time. It was the leading edge in the entire country. It was introduced by Roy McMurtry, who is now the chief judge. Much of this legislation has regressed from that. It said marriage is a partnership, the spouses will share everything and women are equal. It was an extremely progressive piece of legislation and the other provinces across the country tended to follow. We should understand that.
I wish to cite for the record a similar case, Keehn v. Keehn, which is another case that made the international journals. This was heard in the New York Supreme Court. It was an appalling history, lasting 14 years, of massive ill treatment by a wife of her husband. The various instances, which are detailed in the judgment, are too numerous to detail. The justice described the wife's conduct in the following terms:
The picture drawn before me -- a picture I accept as fact -- was one of a grimly determined, evil-tempered woman who sought to turn an active and successful American businessman into a useless and indolent creature, old before his time, and utterly possessed by her, body and soul.
He then went on to say that the husband regularly arrived at the doctor's surgery with bruises all over his body and multiple teeth marks. You apparently see teeth marks in a lot of these cases. The judge further stated the husband was obviously on prescribed medication. I am reading from the journal Family Law.
The Judge, not unexpectedly, held the wife guilty of cruelty and, in addition, found that her conduct was such as to disentitle her from alimony.
Honourable senators, what Mr. Day has raised is not new to family law. It is just that, for whatever reasons, many people have chosen to turn a blind eye and a deaf ear to it. We can go back in case law for centuries and find such cases.
Senator Jessiman: I have before me the Constitution Act of 1867. I understand that the part which I will read has not been amended. It has to do with distribution of powers. Section 91(26) says that marriage and divorce are under federal jurisdiction. Section 92(13) of the same act says that property and civil rights in the provinces are under provincial jurisdiction.
Has this been interpreted by the courts to give jurisdiction to the federal government not only to deal with marriage and divorce but to go further, as far as divorce is concerned, and grant alimony, spousal support and support for children, or is that the jurisdiction of the provinces? We will ask the deputy minister that. There may be some law on that. It certainly is not in those few pages that we were given. You would have thought they would have discussed that and that one would take priority over the other.
The Chair: Thank you, Mr. Day. We appreciate your appearance before us today.
Senators, our next witness is Mr. Paul Carrier from the Royal Ottawa Hospital. He is a family counsellor.
Please proceed, Mr. Carrier.
Mr. Paul Carrier, Family Counsellor, Royal Ottawa Hospital: Madam Chair, you introduced me as a family counsellor. That is true, but over the last 17 years I have done assessments in custody and access cases and mediation. I have been involved in this issue at the front line.
I believe this bill is on the right track with a grid for payments. Most of the colleagues I have spoken to in the mediation field agree with this. There is no doubt that it will reduce some of the litigation associated with dividing up the assets. Anything that reduces the acrimony in divorce or separation will benefit the children involved.
Disputes of custody and access hurt the self-image of children. As children, we are our parents psychologically. If your mother is running around town and your father is a drunk, you do not feel so good about yourself. Many people spend their lives trying to move away psychologically from their parents. If one parent is saying that the other parent is not good, they are really saying that the child is not good. When there is acrimony between parents and they are putting each other down, they are putting the child down directly and psychologically. There are many ramifications from what I am saying, but that is it in a nutshell.
Another area which causes trouble for children with respect to custody and access is no access or irregular access. This all bears on the bill. The bill is a social engineering bill, and people will react to it. No access or irregular access causes trouble with children and their psychological make-up. I know this from my clinical observations and research.
The third thing that causes trouble for children in the long term in a separation and divorce situation is a depressed custodial parent. Anyone who is parenting and is depressed does not do a good job. That is particularly true in custody-access situations.
These three things pose the biggest risk to children's mental health.
Good, healthy contact between both parents is best for children. Money is important, but the contact is even more important. Many people are raised in poor homes and do just fine. Money is not the be all and end all. It is important, but the most important thing is good contact.
If this bill purports to do what is best for children, then it should encourage more contact between the children and both parents. It is within the scope of this bill to do that.
The grid or tables could be made to accommodate various time-sharing arrangements. Currently there is no clear financial inducement for the access parent to have the children four or five nights out of every two weeks. Having the children four or five nights out of a two-week period is much better for the children and for the parent than the traditional or North American standard of every second weekend. Usually custody is Friday night to Sunday night with maybe a visit during the week.
I will give you an example of a typical situation that I would see in my office. The mother has custody and the father has access. The mother asks for reduced access because when the kids come home on Sunday evening, they are a mess. They do not listen to their mother and they are misbehaving. She says that the father is not parenting the children and therefore the access is not good for the children. Furthermore, she says that they are always a mess at school on Monday morning. The teacher is calling her to say that the children are misbehaving and not listening.
Then the father comes in and tells me that the kids were fine all weekend, that he did not have any problem with them. He says that she cannot look after the kids and that it is her problem.
They are on the horns of a dilemma. He is blaming her and she is blaming him. She believes that the solution is reduced access.
I then speak to the children. I ask them if they are misbehaving when they get home. They say, yes, they are misbehaving, but not that much. They say that school is not so great on Monday morning after dad's access weekend. I ask what they do with their dad. They say that they have a good time with dad, which translates into staying up later, less discipline and more junk food. That results in the situation they are in when they come home.
When I speak to the father, he says that that is true and that he does not have any trouble. When I ask if they ever misbehave, he says that they do but because he does not see them often, he kind of lets things go.
When I speak to the kids I ask if they are misbehaving at their father's place like they do at their mom's. They say that because they do not see him that often they do not misbehave as badly.
Everyone is playing a bit of a game. You cannot parent as a weekend parent. When I tell the mother that there should be more access, rather than the reduced access she asked for, she does not greet that very positively. However, they are willing to try.
I have seen thousands of sets of parents in similar situations over the past 17 years. Most parents are okay. We all have our strengths and weaknesses. There are exceptional cases, of course, but I will not deal with them because the bill should speak to the majority of people in its basic content. Most people parent well.
My advice to the custodial parent is to let the other one parent during the school week. Let them have the children on Thursday night and send them to school on Friday morning, and keep them for the weekend knowing that they are coming back Monday night after school. Monday is usually not a good night. If they have been lousy over the weekend, Monday will be terrible.
Therefore, I suggest that the access go from a Thursday evening to a Tuesday morning when they go back to school. This makes the father's parenting more real and the kids' relationship with him more real. More time is what is important for the average family.
I believe that the bill does not address that well enough in division of money.
Senator Jessiman: Are you suggesting that each week be on that basis?
Mr. Carrier: No, I am suggesting extending every second weekend access over time.
Senator Jessiman: Do you think that is better than every week?
Mr. Carrier: Every weekend is not good access because that is the best time to have some down time with the children. I often see situations in which the children eat at one parent's house every weekend, or they split the weekends. Eventually, those arrangements fall apart. With very young people, it might work well. People like their weekends for getting away to cottages, et cetera. Splitting weekends, or every weekend access, does not allow that.
A number of people who have made presentations to the committee have said that access and child support should not be considered together. Bill C-41 deals with the money issue and mentions the access issue. They are related.
Access is dealt with poorly in this bill. It does not reflect what is best for children. The bill should do what it is capable of. It is capable of encouraging more contact between parents and children. If the division of money does not encourage more contact and more time spent with the children, it is missing what is fundamental for children.
Prior to 1900, it was a man's world when it came to custody. It is interesting to read some of the judgments from the 1800s in which it is stated that it was in man's nature to have custody. However, in the 1930s, they state that it is in woman's nature to have custody. That has polarized the situation. However, slowly but surely, it is becoming a parents' world where the value of both parents to a child's mental health is being realized.
This bill places an emphasis on the division of money. It does that in a way which is reminiscent of the past way of thinking.
It does, at least, provide the appearance of fairness. A father may feel that if he is getting the children every second weekend, he is not being treated any worse than the guy next door. There is some value in that. However, it does not effectively encourage more contact. I feel that it is a disincentive.
Many parents I dealt with in the scenario I gave you before about the weekend access being extended have opted for a 30-70 split, with 70 per cent of the time being spent with the access parent. Basically, that is the scenario I have discussed about 4 nights out of 14. Many also opt for five, which would be a 35-65 or a 40-60 split. These arrangements get away from what I have referred to as weekend parents or the McDonald's parents syndrome.
Once the parents have discussed the time sharing in a mediation session, you turn to money. You do not do one without an eye on the other; you just do not discuss them at the same time.
This bill does not allow for a range of shared time situations. Parents must share physical custody of the child in a substantially equal way. I am not too clear on what that means. Does it mean a 50-50 split or a 40-60 split? It is not clear. I do not believe that it encourages what society is moving toward. It is stuck in the past. This bill should address that issue.
Many of my colleagues believe that with this bill people will go for 50-50 access, that they will not bother trying things out, which is usually what people will do. They may have a lot of distrust about each other, but they are willing to try. If the law is a disincentive, they may not wish to try. In these emotional situations, the law needs to lead the way somewhat and not just react.
The bill sets out what a parent would spend on a child if the parent were living at home. This translates into what an access parent would pay. That makes certain assumptions about what amount of time the designated access parent will be spending with the child. However, I do not know what those assumptions might be.
There should be a grid which delineates payments for various amounts of time spent with the children. That would be an encouragement for many parents. A grid reflecting time sharing would make the financial planning more realistic and speak to whether a given plan was feasible or just pie in the sky.
I agree with Mr. Finnie who told the committee that the amount of time the non-custodial parent has the child should be taken into account. He seemed to imply that there were some scales to take this time sharing into account.
Minister Rock told the committee that the undue hardship provision could deal with the money issue when it came to sharing time. I suppose it could. In my opinion, this places the wrong emphasis on the issue. It is not a hardship. I think parents will take exception to it being termed a hardship to have to go to court or to have some sort of dispute over what is time sharing and how the resources could be allocated. In fact, this is the way things are going. People are beginning to share.
I agree with Mr. Epstein who told this committee that society is changing and that, 20 years from now, we will see far more shared parenting and joint custody. It is happening now and the statistics show it gradually increasing.
Senator Jessiman asked Minister Rock about taking out the words "in a substantially equal way." Minister Rock replied that that would go a long way in stuffing courtrooms with lawyers on behalf of parties arguing about the definition of "substantial." I believe that it will happen anyway because it is not defined well enough. I believe that it should be defined, and in a positive way. I hope that is done before this law is proclaimed. It should not be referred to as undue hardship.
If it is not defined, it may have the unintended consequence of dragging back to court parents who are already sharing custody on 30-70 or 40-60 splits. The person will say, "This is what the government of the day and society says I should be getting, so I should be getting it." If it is not defined, it may be back to court to have a fight over the grid the way it stands, even though they have worked something else out.
I wish to propose an addition to the Divorce Act; section 15.1(5)(c). I do not expect this addition, but I should like to propose it anyway; namely, "that the parents are sharing time with the children beyond what is considered the usual standard or normal child care arrangements". That would allow for a grid to be added. This is found on page 7 of my document.
Under objectives of the guidelines I should to have included "to encourage the involvement of both parents in the lives of their children." The word "parents" is important here. The act uses the word "spouses." It should use "parents" rather than "spouses."
Another addition to the guidelines in subclause 7 dealing with shared custody would be, "where both spouses share custody of a child beyond what is considered the usual standard or normal child care arrangements." I do not know what that is, but I am sure that the people who drafted the bill had some idea of what that was to be.
The point is that the bill should accommodate shared parenting. It is good for kids. It is more important than money.
In my experience, most people do settle and most lawyers are very good; they do not exacerbate matters. There are always a few exceptional cases, but the majority of people get on with their lives, even if the law is not very good.
Several of the groups and people presenting to you complained about various words or labels in the divorce area. For the purposes of the Divorce Act, the word "spouse" should be replaced with the word "parent" wherever it applies to children. It is not a dramatic change, and I am sure it is possible. It places the emphasis where it should be; namely, on children and raising children, not on spouses. It gives the message to people who read this law that the act is not interested in spouses, or man, or woman, but in parents. That would go a small incremental step toward getting away from this terrible polarization. It colours the reaction of a lot of people and anything to get away from it is important. It is about parenting, not spouses.
I recognize that women's groups are concerned that the time sharing proposals will be used by men to lower support payments. This is a legitimate concern. I have no time for half-time sharing in my office. For example, the mother has custody and the father has access. The father is making lots of money and the mother is making not very much money. The father is making support payments and says, "I do not expect to make any payments at all. After all, it is 50-50." I am not interested in going one step further. You cannot have a rich house and a poor house. It is as simple as that. It is a legitimate issue, given the spread of finances between men and women these days in general.
I believe that this concern could be handled by section 15.1(7) of the Divorce Act. If it can not, then a section could be added to ensure that whatever plan is put forward is financially viable; that is, that it is not making a rich house and a poor house.
I should like to make a point regarding the education clause right at the beginning, where it mentions "definition of child of the marriage."
My concern is that this will extend the disputes until the children are in their twenties. At some point, children and parents must be responsible for their own behaviour and deal with the fall-out of family problems without the imposition of the state.
When I raise this with my colleagues, they ask, "Will it be the child or the adult taking the parent to court? Will the parent get the money or will the child get the money?" This is a child-adult, really. Is post-secondary education a right or a privilege? Will non-separated families be obliged to pay for post-secondary education? How much should be paid?
If my own children are not contributing to their education or in some way helping out, should I be obliged to support them? If they do not contribute, I should have the right to say, "I will not contribute to you because you are not contributing." Perhaps they are blowing the money on things that I feel that they should not be spending it on. Maybe they do not deserve this money.
How will the court decide that? It is left wide open. I think it will drag disputes on and on. At some point, they should end. I do not know whether it is at the age of majority or 19 or 20, but to leave it wide open like this is a recipe for disaster. I do not think it should be there.
The Chair: You covered points that many of our witnesses have addressed. The importance of mediation in the breakup of marriages comes up over and over again. Also, it has been suggested that we use the words "parent" and "parenting" rather than "in custody" or "non-custodial."
Thank you for your presentation.
Senator Jessiman: Thank you very much for your presentation. You addressed a number of points to which we are very sympathetic. What would you consider to be the ideal 50-50 split? Would be it every three days, every week or every month? From your experience, what would be an ideal situation for the children to be shared between the two parents?
Mr. Carrier: Everyone is different. I do not think there is an ideal situation. I would not counsel anyone with younger children to split 50-50. Younger children need more stability and more predictability. The definition of "younger child" differs with every family too. Some people make it work with really young children. I would not deny them that, but it would not be my choice. I do not think most responsible counsellors, mediators or therapists would suggest 50-50 for very young children.
Most people seem to request it on a week-to-week basis or every two weeks. A lot of logistics works into this, as well as family finances. You cannot live on opposite sides of the city and share custody 50-50. It is not pragmatic. Some people do, but it demands an awful lot of the children to be ferried back and forth to schools, and so on. The school district is the key.
Frequent changes are usually not as good as giving children more time at each place to settle in. There is always a day or two during which they get settled in, and then life gets going.
Children accommodate these situations very well if the parents are in a business-like frame of mind. They do not have to like each other, as everyone around here does not have to like each other, but you do have to be businesslike and get the business done. Otherwise, the business fails. If they cannot behave in a businesslike manner, the business fails, and the business is the kids.
Senator Jessiman: Have you ever had a case where the parents take six-month turns at being the custodial parent?
Mr. Carrier: Yes. That is a rare situation, but I have seen it.
Senator Jessiman: It would seem to me to present less confrontation as far as the children are concerned.
Mr. Carrier: These situations usually evolve too, and that is why the law should encourage it. At the start, people are usually very suspicious and feel backed into a corner. Then they start to try things incrementally and move from there. People will find their own level eventually and live without the law in their lives.
Senator Pearson: You gave an excellent presentation. I quite agree with your position, since the children are the ones at issue in these cases.
Do you think that joint custody is better? Does that not solve some of these problems?
Mr. Carrier: Are you referring to joint legal custody?
Senator Pearson: Yes, in terms of support payments and so on. In joint legal custody, arrangements are less regulated.
Mr. Carrier: I distinguish between joint legal custody and time-sharing. They are two different matters.
You could time-share and not have joint legal custody, which is what most people seem to do initially. Eventually, as the trust builds, people start to consult each other about education and health and so on. Eventually, most people get there without the law.
In the long run, I think joint custody is better. Initially it may be more difficult for people to negotiate. There is no simple answer. It is very difficult. All the people I see are fighting. To impose joint decision-making on them might create more problems initially. Most of these agreements are like a Band-aid. They let people cover their hurt and get a framework in which to do their business, and then they get better. They mourn the loss of their relationship, which usually takes two years.
If you continue fighting or disagreeing, every time you go to court or see your lawyer all the stuff from the marriage comes rushing back to you. It is like reliving the marriage again, which means you are starting all over again to mourn the loss of your marriage and hopes and dreams. It delays the healing process.
It is important that people can live with the agreements.
Senator Pearson: As I am not a regular member of this committee, I have not been following the legislation as closely as most of the others. Is there anything in the legislation which encourages mediation? Mediation seems to be the way to go.
Mr. Carrier: No, there is nothing that I can see there.
Senator Pearson: There is a growth in mediation, is there not?
Mr. Carrier: Yes. It should be tried before people jump into court. It is not the solution for everyone, and some people need a legal solution, but it should be encouraged.
Senator Pearson: The legal solution can follow on with mediation.
Mr. Carrier: Yes. It can perhaps narrow some issues.
Senator Pearson: I would certainly like to encourage that.
Mr. Carrier: Many lawyers with whom I deal also mediate.
Senator Forest: Thank you for your presentation. I very much appreciated it.
In our family, we have had two divorces, which we thought were very distressing at the time. However, when I look at all the information we receive from parents now, I realize things were handled very well by our children and their spouses. In both cases, while one parent was considered to be the primary caregiver, the time-sharing was equal, and they did it in different ways. It seems to have worked out well. As you mentioned, it has changed as the children have grown older.
I appreciate that more is being done to encourage further contact with the children, which is the most important thing. Financial situations were not an issue here. Had they been, things might have been different.
I like the choice of "parents" rather than "spouses." We have heard a great deal about the negative connotations of "custodial" and "non-custodial." I do not know whether we can do anything about that, but certainly those terms are pejorative.
One of our witnesses yesterday made the point with regard to access that by far the bigger problem is not being denied access but taking advantage of access. There are many non-custodial parents who, for one reason or another, are not seeing their children as often as the other parent would want them to. Would you agree with that?
Mr. Carrier: I do not know about "many." I worked in a children's aid society in the 1970s, and I worked in a low-rent project which was full of single moms. Many of them did not have the fathers visiting. As I said, it is one of the three factors that load the gun against a child doing well in the future.
It is a big problem, but there is a way to induce more contact.
Senator Forest: As well, there has been a great deal of talk about grandparents' right to access, which is very important. I have also found that the grandparents being warm to the other parent and making the children feel that both their parents are very loving and supportive makes a big difference.
Mr. Carrier: Yes.
Senator Forest: The extended family encourages the contact and the trust of the child in both parents.
Mr. Carrier: That is very important. Oftentimes, grandparents or friends or relatives get on-side and do not encourage that. They become part of the problem.
Senator Forest: That is very detrimental to the children.
Mr. Carrier: Absolutely. As a matter of fact, when the parents are at odds, it is the grandparents or other relatives who are the comfort for the children. They are the ones the children can go to and feel good about themselves. They can make them feel that someone likes them unconditionally.
That is good and should be encouraged. It may be indirectly, but statements in law encourage people in certain ways.
Senator Forest: How we can encourage both parents to have greater contact with the children?
Mr. Carrier: The bill could encourage it if it showed that "access," which I define as time for a parent, is important. That would require some provision in the grid for other than just substantially equal, which might be 50-50. Otherwise, you take what you get and that is it. There should be some encouragement.
Senator Forest: There has been some suggestion that 50-per-cent time sharing should be presumed the norm.
Mr. Carrier: I would not consider that the norm at all.
Senator Forest: There is some suggestion it should be.
Mr. Carrier: I think that is totally ill-advised. From street level, that is ill-advised. That is not the way people start out. Some might move there, but most people have something in between.
Senator Losier-Cool: I appreciated the clinical approach in your brief. We like children so much, so we like to see something positive for children.
In the Divorce Act it is written that mediation is encouraged. You commented, on the last page of your brief, about post-secondary education. Has that ever been an issue? Are these your opinions as a family mediator?
Mr. Carrier: It has never been an issue which I have addressed in mediation. In the situations I have dealt with, the majority of children are in the 0 to 13 age range. Most people tend to settle down and get on with their lives by the time the children reach about 13 years of age. Also, at that age the children can vote with their feet.
Senator Losier-Cool: You do not see them very much after they are 18 years old or at the post-secondary-education age?
Mr. Carrier: That is right.
Senator Losier-Cool: In our subcommittee on post-secondary education, we heard from students who discussed the high level of debt that they have when they go to university. Children who come from single-parent families have almost no access to university. Statistics show that there is very little university population from that category. This may be a way to allow more youths from single-parent families to go to university.
Mr. Carrier: If it takes going to court to get it, it will create problems. If children from single-parent families are having difficulties accessing post-secondary education, then perhaps there could be another law or act to deal with that. I see these things dragging on for a long time. It would not be good for families. People have to let it go at some point.
Is post-secondary education a right? I do not know.
Senator Losier-Cool: It is difficult to be a parent and it is more difficult not to be a parent.
Mr. Carrier: My son or daughters must ask for money from me or my wife. A child of separated parents can do the same. If dad says no or mom says no, they live with the consequences. Their relationship will bear the brunt of it. At some point, they must face themselves without a judge present.
Senator Cohen: One of the witnesses yesterday spoke about post-secondary education. We have been discussing whether it is a right or a privilege and whether there should be a cap, perhaps after one degree. Perhaps it should be a joint decision of all. The witness said that usually the children of the first marriage are the ones deprived of that post-secondary education when the non-custodial parent marries again.
You do not deal with that, so you probably do not have an answer.
Mr. Carrier: My answer on this issue is on more of a personal level and from what I have heard from my colleagues. I believe that this will cause more disputes, and I do not want to create more disputes. If this is a social problem, perhaps it could be dealt with in a way other than through litigation.
I have friends who are separated. My friend's son can take his father to court to make him pay for a university education, or a part thereof, but my son cannot. That does not seem right.
I do not understand why this clause has been included. I am sure there is some social engineering going on, but this is not the right place for it. It is grist for a fight. Most parents would help their children through a post-secondary education.
Senator Cohen: Most of the correspondence that we have received on this issue is opposed to having it legislated. They want it to be a family decision after discussion.
Mr. Carrier: Absolutely. It will be grist for a fight and will carry on the misery of a separated family for years longer than it should be.
Senator Cohen: We do not want to see that.
The Chair: The Honourable Mr. Halvorson was here last evening. He talked about the fact that married couples do not have to send their children to university, but divorced couples do under this act.
Mr. Carrier: Touché.
Senator Phillips: Did I understand you correctly to say that you do not recommend 50-50 time sharing when the children are young?
Mr. Carrier: Yes.
Senator Phillips: How does one get access time increased? Do you build into the original agreement that as the children get older they will spend more time with the non-custodial parent?
Mr. Carrier: That is correct. It is built in to happen incrementally. The parents can see whether the child is tolerating it well. Not all children tolerate it well. There may be a number of health or personal reasons why they do not. If it does not work out, they will come back or they will just make the decision themselves.
Senator Phillips: It does not usually create another row where they go back and revisit the marriage and the break-up?
Mr. Carrier: The focus is on speaking to both parents about how the child is behaving and what is happening with the child. We do not revisit the marriage. This is the business of raising the children. Most people can make that decision on their own, but there are some people who will fight no matter what common sense says or what the law says. Most people will move incrementally to try to do well for their children.
Senator Jessiman: Senator Losier-Cool mentioned this but I would like to quote the section from the Divorce Act.
9. (1) It is the duty of every barrister, solicitor, lawyer or advocate who undertakes to act on behalf of a spouse in a divorce proceeding
(a)to draw to the attention of the spouse the provisions of this Act that have as their object the reconciliation of the spouses, and
(b)to discuss with the spouse the possibility of the reconciliation of the spouses and to inform the spouse of the marriage counselling or guidance facilities known to him or her that might be able to assist the spouses to achieve a reconciliation,
unless the circumstances of the case are of such a nature that it would clearly not be appropriate to do so.
(2) It is the duty of every barrister, solicitor, lawyer or advocate who undertakes to act on behalf of a spouse in a divorce proceeding to discuss with the spouse the advisability of negotiating the matters that may be the subject of a support order or a custody order and to inform the spouse of the mediation facilities known to him or her that might be able to assist the spouse in negotiating those matters.
(3) Also, every document presented to a court by a barrister, solicitor, lawyer or advocate that formally commences a divorce proceeding shall contain a statement by him or her certifying that he or she has complied with this section.
The last part is section 10 and it has to do with the court:
10. (1) In a divorce proceeding, it is the duty of the court, before considering the evidence, to satisfy itself that there is no possibility of reconciliation of the spouses...
That part is covered already. I thought that should be read into the record.
The Chair: A witness who deals with mediation in Ontario indicated that she did not feel that lawyers are as thorough with that as they should be; that it should be encouraged more.
Senator Jessiman: They have to certify to the court that they have followed the section. If they so certify without having followed the section, they are making false affidavits.
Senator Cohen: I agree with you totally on the language. This law does not acknowledge the concept of parenthood as it should. I would also like to see that language changed to "parent" whenever possible in the bill.
One of the witnesses we heard on this bill, who does mediation in this area, recommended that promotional material clarifying the role of parents after separation should be prepared and made available to the general public and that an advertising campaign be initiated to promote a positive view of parenting within a separated family structure. That sat well with me when I heard it. What do you think about that?
Mr. Carrier: There will always be those who will not listen to reason.
It would be very good if fighting over children became as socially abhorrent as smoking in a social situation. It is not healthy. It should be considered as a disservice to the children, along the lines of: "You are fighting over your children? What is wrong with you? Come to an agreement. What is going on?"
The Chair: On that note, we thank you for your presentation today. It was very well done and we really appreciate it.
Mr. Carrier: Thank you for the opportunity.
The Chair: Senators, our next witness is Professor Ross Finnie. We welcome you back, Professor Finnie. The committee has a few questions for you. If you have a presentation for us first, we would like to hear what you have to say.
Professor Ross Finnie, School of Public Administration, Carleton University: Madam Chair, I am a bit surprised to be back before your committee. I did not think it would happen. However, I am pleased to be here at any time, if I can be of assistance.
We all share the same goal. We want to improve the situation for divorced individuals and their children. I respect the concerns and the questions that the Senate committee has raised. They are excellent questions.
First, I have a few preliminary remarks. One of my main points is that listening to the reassuring comments of other witnesses has not given me a great deal of reassurance. In general, I have found that their responses to the specific issues I raised have not been clear. Instead, I heard mostly broad reassurances that all the experts agree, that there has been a long consultative procedure and that these guidelines have been long in the making, and so on, all in an attempt to convince us that the process that has been gone through should persuade us that the result is good.
A great deal of effort has been expended in the process, not surprisingly. This is a tough problem. However, I am not so convinced by the process and by these reassurances. As a result, the problems remain.
As to the reassurances that while there may be problems remaining, they will be fixed in the future, if all this time was taken to construct the guidelines, then why have they not been fixed to the degree that they have been identified, and, if they have not been rectified to this point, then what assurances can we have that they will be fixed at some time in the future? Soon, individuals will be living with these guidelines; their lives will be affected be them. To open things up in the future and say, "Oh, those are not the real guidelines after all," will be untenable. We will get the guidelines that have been proposed, for better or for worse. To my mind, of course, there are certain problems.
I want also to be clear that I am a long-time supporter of guidelines. I have written a book which comes down in support of child support guidelines. I have brought with me today a book which was put out last year in the C.D. Howe series on social policy, entitled Family Matters. I was asked to write an article on divorce for this series. In this book, once again, I make it clear that I am a supporter of guidelines.
I should like to tell you what I see the issues as being, what guidelines are all about and why I support them.
Let us review the pros and cons of child support guidelines. A guideline could -- and this is where my support comes from -- standardize awards, thus raising their average levels. That is appropriate. They could make awards fairer across different income levels. They could render the divorce process less complicated, less conflictive and less expensive -- a desirable goal. They could help individuals plan for the post-divorce situation. This is why I have been a supporter of guidelines.
On the other hand, inevitably, the guidelines would impose a uniformity of awards, which is undesirable to the extent that that does not reflect the particular circumstances of each situation. That is to say, we are imposing standardization and, while that has advantages, it also has costs. We have to accept that in accepting a guideline.
Furthermore, a poorly designed guideline can codify a structure of inefficient and/or unfair child support awards, with all kinds of undesirable repercussions, including reduced child support payments. That is to say, while I am a supporter of guidelines, and I think a good guideline is a good policy, by no means are we guaranteed to have the positive results which can come from guidelines through using just any set of guidelines.
There is a general set of trade-offs between having guidelines and having individual based awards. On that issue, I have come down on the side of guidelines. I think the justice that is achieved, including the ability to increase and standardize award levels, the ability to simplify the divorce process, the ability to allow individuals to plan for the future in a potential divorce situation, is worth the costs of such standardization. Again, standardization means we do not take into account the specific details of each case. However, through all of that, the final judgment depends on the quality of the specific guideline being recommended.
This underlay is what drove me as the co-author of one of the major research report on guidelines put out by the Department of Justice. I believe this is why the Department of Justice sought me out to have me involved in this process. Basically, I was concerned with the deterioration in the position of women and children at the point of divorce. I have written numerous articles on that subject. I saw guidelines as being part of the solution for aiding women and children at divorce, and I was, in principle, in support of guidelines. Therefore, it is not surprising that the Department of Justice and I came to an agreement that I would participate in this process.
In the end, however, the problems which I saw initially remain. That is why I cannot support the guidelines which are before this committee.
The basic guidelines for awards are fine. As well, the basic system provides a simple, morally defensible set of awards. I have no problem with the basic guidelines. It is the other things that have been added on, or not added on, that cause the problems.
I will take one moment to list what I see as problematic in this set of guidelines. After that, I will answer whatever questions members of the committee might have.
First, the guidelines do not incorporate any adjustments for direct spending on their children on the part of non-custodial parents. A non-custodial parent who has his or her child even 30 per cent or 40 per cent of the time will pay the same child support to the custodial parent as someone who never sees his or her child. That is unfair for custodial parents, non-custodial parents and the children.
Second, extra awards have been adjusted upward for those payers at low income levels. Think of it as a low income surtax. These people are paying higher proportions. The lower your income, the higher proportion you will pay in child support, something which is based on no credible evidence. I searched for such evidence, but there is none. I talked to the best researchers in Canada, be they at Statistics Canada or academics in university. These are colleagues and friends of mine. No one can say that there is consistent evidence that people spend more or less at the low income levels.
In the United States, one of the goals of the guidelines was to reduce awards for low income payers because, historically, they have been paying high proportions of their incomes towards child support. Historically, those with medium and higher incomes have not paid as much as they should. However, any assessment of the data suggests that those at low income levels have been paying too high a percentage of their incomes. That is not to say that their children are in some way privileged. It is simply the fact that there is not much money around in those families, and penalizing those low income payers could have the perverse effect of driving them out of the labour market entirely, driving them on to social assistance, resulting in lower child support awards being paid.
My third point is relatively minor in nature. It deals with jumps in award levels. I did not cover it very thoroughly the first time I was here, but if you are following along in my Caledon document you will find it on page 6.
If you look at the back of a tax table, you will see that for every $10 there is an increase in the amount one pays. That is to keep it smooth across income levels. In the current guidelines, there are jumps at $1,000 increments. As people make a little more income and go over that limit, they will wind up paying significantly larger chunks in child support, something which leaves them significantly worse off. This ends up building in perverse incentives, particularly for low income individuals trying to get out of the poverty trap and into the labour market. This perverse result could wind up with there being lower payments rather than higher ones. However, this is a relatively minor and technical point.
Fourth, and more important, there is the hardship condition and basing awards on the standard of living. I see that as being one of the fundamental flaws of these guidelines. No guideline with which I am familiar is based on such comparisons across the income spectrum. Conceptually, these are very difficult.
What is the relevant family? We all know the world is complex. With respect to someone in the post-divorce situation, to define the family, the appropriate incomes and then to base awards conceptually would be difficult to do. In terms of implementation, I think it would be a nightmare. It would also be invasive. It would draw subsequent partners into the child support calculations with all sorts of negative repercussions. For example, there would be a clear penalty for many divorced women with children who remarry. Why? Because the income of that person would be calculated into the adjustments and the awards. We are buying our way into some of the most well-known welfare traps which we know plague the welfare system generally. Whenever you introduce standard of living comparisons, that is what you are doing.
The fifth point is the exceptional case of joint custody. That is the situation where awards are to be based entirely on this comparison of the standard of living of the two households. In general, this should not be done. Imagine someone who is about to have another child in a second relationship and the spouse from the first relationship has remarried. There is one child and another coming along.
What is the concept of family? Where is the relevance in equalizing the standards of living of those two families? Those two people have gone on in their lives. This could occur 10, 15 or 20 years later, and you will say, "We will define the family that you are in and make sure that you give that person enough money so that that family is at the same standard of living as your family." In a year's time when people start to see that that is what awards consist of, I think there will be opposition, if not before.
The next point, which is somewhat less important, relates to an adjustment for special expenses. I happened to be interviewed on the same show as a person who I believe was a witness before this committee. I understand that person to be generally a supporter of this measure. I refer to Mr. Philip Epstein. He made a comment to the effect that this provision is meant only to cover children who will be Olympic athletes. That is very reassuring, except that as I read the bill there is no reference to Olympic athletes. It simply states "extracurricular activities." In my opinion, this opens a hole into which you could drive several very large trucks.
In fact, the question posed was entirely elaborate. The question was: Does this not open guidelines up because we do not know what will happen in the negotiations that plague the current system? What is the definition of an "extracurricular activity"? What is appropriate? It is something which will be settled over time, but it is not a well-designed, clear guideline. As well, through all of this, those special expenses are already incorporated into the average amounts of the guidelines. This will complicate the guideline. The basic guideline award amounts should be adjusted because those amounts are already reflected, on an average basis, in the current levels. That means that those who are to pay a second time will be paying twice for that sort of thing.
Finally, there are no guarantees on access or how the child support is spent. I agree entirely that child support and access are two entirely different questions. They should never be mixed.
I do empirical work. That means that I look at numbers and at the world. The reality, as anyone will tell you, is that the two issues are inextricably linked. I saw the introduction of this measure as an opportunity for the government at the same time as resolving difficult questions with respect to child support to make certain statements of principle and to provide certain broad safeguards in terms of access and how that money is spent.
In general, custodial parents spend the money wisely on their children. Many times they spend more than their share on their children. On the other hand, there are also cases in which that is not true. I get lots of mail from all sides on this subject. Lots of people call me, telling me their horror stories. There are some situations which are not quite horror stories, but which are questionable. At the same time as you are ensuring that the right amount is being transferred, why can you not also have certain assurances that that money will go toward the children and that access will be guaranteed as appropriate to the situation?
The assurances that this process has taken a long time to produce these guidelines and that a great deal of effort and consultation has gone into them does not assure me when I see what is written here. I know how people will be affected as soon as this law comes into effect.
I hope I am wrong. However, I am not recanting at this point. I am on the record for identifying these problems. I fear that when this law is enacted in one year's time, people will be coming back to me asking, "Why would they design such a guideline?" Representatives of the Justice Department have said that they have consulted across the land and that they have received all sorts of positive feedback. How can that be? In the end, we will see. The people will decide.
Madam Chair, that is all I have to say. I would be glad to answer your questions.
Senator Losier-Cool: Did you tell us that if the access time amounts to 20 per cent or 30 per cent of the time that the non-custodial parent has the child, you feel that child support should be reduced?
Mr. Finnie: Yes.
Senator Losier-Cool: I wish to return to your position on the guidelines. Do you prefer a flat percentage or income shared guidelines? You favour guidelines, do you not?
Mr. Finnie: Yes.
Senator Losier-Cool: But you do not prefer these guidelines?
Mr. Finnie: That is right. There is the standard of living approach that is used in joint custody but, in general, that has never been used. It will be used only in Canada, if it is adopted.
There are two standard approaches. One is called the income share approach, in which you take into account the incomes of the two parents. The hypothetical exercise assumes that the family is still intact. You add the two incomes together to obtain the hypothetical family income and then you use other estimates from Statistics Canada, for example, which say, "If a family had this sort of income, how much would be spent on the child?" You then take those two incomes in proportion and say, "One parent has 60 per cent of the income while the other has 40 per cent. Of those hypothetical expenses, 60 per cent will be paid by the person with 60 per cent of the income and 40 per cent will be paid by the person with 40 per cent of the income."
The second approach is to base it simply on the non-custodial parent's income. Initially, that strikes everyone as being unfair. It did me. I was at the University of Wisconsin when Irv Garfinkel was there. He is the guru of these things. I remember clearly the conversation I had with him. He said, "Actually, they work out to be the same sort of award. It does not change the award levels."
I went through an example the last time I appeared before this committee. Basically, as you factor into the equation the custodial parent's income, that will increase family income and change the shares between the two parents. In the end, those two effects largely wash out. It is a surprising result. I have examples of it.
Since it is a surprising result, I ask you, for the moment, to take me on faith on that point. That is why I support the basic structure of the guideline put forward by the Department of Justice. It is based only on the non-custodial parent. It does not affect the quantum of awards, or their levels. In fact, it makes the calculation of awards much simpler. That basic approach has been adopted here, but then they have added on these other things, which will make it many times more difficult. On the one hand, they have said, "We want to make awards simple. Therefore, we have adopted this procedure to make the calculation of awards simple." On the other hand, they have said, "At this other stage of the process, we will make it much more complicated than the standard approaches by having these standards of living calculations." Is that clear?
Senator Forest: Is that with regard to the special expenses?
Mr. Finnie: Many adjustments throughout the guidelines require the consideration of these standards of living or this hardship condition. Certainly, in the case of split custody, which is shared 50-50, that would be the basis of the awards. However, many other adjustments would depend on those comparisons. Often, you do not know whether or not there should be an adjustment without performing the calculations. Since they would require so many, it would become a uniform procedure to go through these elaborate standards of living calculations.
The basic guideline would work well because it would be based on reasonable principles of fairness. It would be quite easy to implement. Yet all the advantages of that have been thrown away by adopting these standards of living calculations. The better approach is to base it on the non-custodial parent's income.
Empirically, for example, a number of jurisdictions have done that, which is not at all out of line. Wisconsin is most advanced in this area. That is their approach and it works fine.
The practice of basing it on both parents' income has been adopted largely because people do not understand. I do not want to sound pretentious, but sometimes it is hard to explain how the awards do not change much when you consider the two incomes. It is people's gut feeling that it is fairer to base it on the standards of living of both parents. That is why it tends to get adopted where it does. Nevertheless, I support the Department of Justice on their approach in that respect.
Senator Forest: You say that these guidelines based on one income are not unusual and that it has been done in other jurisdictions. Have you any information on other jurisdictions with respect to added expenses for things such as illness and disability? How is that handled for special circumstances?
Mr. Finnie: When I have a specific question on something like this, I call Irv Garfinkel. He usually says, "That is hard to say." There has not been an overall assessment of which I am aware. For example, I do not think that the Department of Justice has been able to find one. In the United States, each state has its own rules. There is what is written on paper and then there is what is enacted. Often, what is on paper is not really what is enacted because the guidelines are ignored, especially when they do not appear to work well.
I have never seen a summary which asks: How is it in the 50 states? How is it done in England? There are some that have it; there are some that do not. There is wide variation concerning how they act on them or not. I wish I knew better myself how it works, but such evidence does not seem to exist.
Senator Forest: It was suggested by someone that these additional, that is, unusual expenses, medical expenses, expenses for disabilities, and so on, were included in the guidelines. One of the witnesses quoted the average amount of monthly payment and said that he could not understand how that would be enough to cover highly unusual medical expenses.
Mr. Finnie: Canada is different from the United States. The sort of things that one needs to take into account in the United States are different from what is taken into account here. Examples of that are their private medical system and their private education system. Therefore, it is generally not appropriate to compare Canada with the U.S. Our social system of supporting children, families and individuals has developed sufficiently that many of the issues are not relevant.
However, I agree that those awards do not take into account truly extreme circumstances. I am saying that there seems to be carte blanche for defining "extracurricular." Does that refer to a pair of running shoes because the child is on the track team; does it refer to an Olympic athlete; or does it refer to a child who needs special health care because of a health disability? It is not clear.
Senator Forest: My concern is that with the cutbacks in my province of Alberta, as well as here in Ontario, in education and health care, there are many things falling to the parents now that used to be covered.
Mr. Finnie: Over time, the basic schedule of awards might have to be adjusted appropriately, perhaps upwards, to reflect that. That would be fair. Second, you might want to make very clear which sort of expenses should be incorporated as exceptional and which should not.
I am not opposed to incorporating expenses that are truly exceptional. To the extent that there has been a general increase in what it costs to raise a child, that should simply be reflected in higher award levels. I am not against higher award levels. One of the reasons I support guidelines is that I think that awards have historically not been high enough. On the other hand, they should not be too high. They should be at the appropriate level.
Senator Jessiman: I wish to argue that you were correct the first time on the question of the two incomes. You say that it really does not matter. I guess it does not matter if you consider both incomes when you start. The amount that the non-custodial parent pays will not be much different if you take only his income into account or you take both incomes into account. You said that today and you said it in your paper, and you say that your initial thought was that that was unfair.
Mr. Finnie: That was my initial thought.
Senator Jessiman: I have tried to think it through myself. I agree with you on that when the initial award is made.
When the custodial parent begins to earn more money, no change is made in the level of payments by the non-custodial parent because the child will get the benefit of that extra income. Yet, if the non-custodial parent begins to earn more money, then he pays more. That money does not necessarily go just to the child. It goes to both the child and custodial parent, because they are together.
The Department of Justice wrote me a letter saying that the standard of living of the child and the custodial parents are inseparable because the child is residing in his or her household.
I base this argument on the assumption that there is no spousal support being paid, that the custodial parent earns enough money to pay a certain percentage of the care of the child. However, when the non-custodial pays an extra amount, the entire family is getting more money, not only the child. As a result, that is unfair.
Mr. Finnie: The point the Department of Justice made in that letter is exactly right. You cannot separate the well-being of the child from the custodial parent, which is one of the great paradoxes of child support. In some sense, child support is supposed to be about money to support the child. However, the child's standard of living is inextricably bound up with the standard of living of the custodial parent. Already you are in a fundamental dilemma. You want to help the child, but in order to do so you would have to, to some degree, help the custodial parent, even if you did not want to. That is where much of the conflict in child support comes from. Non-custodial parents say, "I make these payments and they move to a nicer neighbourhood." Of course they do, and the child benefits from that.
By the same token, part of every dollar the custodial parent spends goes to the benefit of the child. As the custodial parent has an increase in income, it is almost inevitable that some of that money will go toward the child. In fact, the basis of these awards is research that shows how much more high-income parents typically spend on their children.
Therefore, as the custodial parent earns more money, in general and on average, more money will go toward that child. We can rest assured that in most cases the "child support" by the custodial parent will happen as a matter of course. However, there should be some assurances that the money is in fact going toward the child.
For the non-custodial parent there is not that automatic adjustment, but these percentages are calculated on the basis of how much of the non-custodial parent's income at the margin would go toward the child if they were still together. That is the basis of the increase in the award that would be paid.
In summary, as the income of the custodial parent increases or decreases, he or she will generally spend more or less on the child. In the case of the non-custodial parent, because the support of that parent goes to the child through the payments, you have to adjust the payments accordingly.
In the end, aside from the divorce, basing it on a two-parent or a one-parent situation, it would wind up being approximately the same amount.
Many people think that the award should be based on the income of the custodial parent, but it is sometimes asked, "If the income of the custodial parent increases, should the support payment by the non-custodial parent go up or down?"
Senator Jessiman: It should go down.
Mr. Finnie: Some say it should go up because of tax consequences in the current system, or because that would mean that family income would go up and the award should be even higher. Empirically, that could happen. The ironic result is that there is general agreement that awards should be adjusted for the custodial parent's income, but then there is disagreement on whether they should be adjusted up or down. That is another illustration of how complicated this matter is.
I think the current guideline is fine. I understand that it is open to criticism. I think that the Department of Justice has taken a bold position, and the appropriate one, in saying that it is a better approach to base it on the one parent's income, even though it is sometimes a little hard to explain. Having given that accolade, it is a shame that they then squandered the advantages by messing the thing up with the standard of living comparisons.
Senator Jessiman: In your last appearance before us, you said that the special or extraordinary expenses, a good part of which are included in section 4 of the guidelines, were already built into the grid. I know you were working with them, but how do you know that that is the case? Are you saying they were included because you worked with them when the grid was arrived at?
Mr. Finnie: I did not work out this grid. The grid is based on estimates of how much families spend on their children. Much of that work took place at Statistics Canada, and much of it was done by a colleague, Martin Browning, at McMaster University. They try to estimate all spending on children and the averages at different income levels.
When you talk about all spending on children, you include things like child care. That enters into the calculations of how much parents spend on their children, which is the basis of the awards. Those amounts are in there on an average basis.
If you say that someone is paying child care, and that on average it is already in the award, then your response might be, "Well, that is only on average." Those people must pay it, and it is a greater amount than that. If you want to build that into the award, then you should adjust the base award downward so that they do not incorporate these costs on an average basis but build them in on a case-by-case basis. I am opposed to that. If you want to do it, that is the right way; however, it is not a good thing to do because you will greatly complicate the awards again and thus lose the advantages of the guidelines.
Senator Jessiman: Does that apply to each and every paragraph?
Mr. Finnie: Are you looking at Bill C-41?
Senator Jessiman: I am looking at page 4 of the guidelines. It is not in the bill.
Mr. Finnie: Perhaps you could list them for me.
Senator Jessiman: You mentioned child care expenses, extraordinary medical or health related expenses.
Mr. Finnie: In general, yes.
Senator Jessiman: As well, there are extraordinary expenses for primary or secondary school education.
Mr. Finnie: Yes.
Senator Jessiman: Also, there are provisions for any educational programs that meet the child's particular needs.
Mr. Finnie: Yes.
Senator Jessiman: As well, there are expenses for post-secondary education.
Mr. Finnie: It depends on the precise calculations used.
Senator Jessiman: That may be doubtful.
Mr. Finnie: Yes. In general, I do not know why provisions for post-secondary education are in here. They are adults by that point, and that is no longer child support. I would get around the issue that way.
Senator Jessiman: The last one is extraordinary expenses for extracurricular activities.
Mr. Finnie: Definitely.
Senator Jessiman: Turn to page 7, please, where it talks about shared custody. How would you amend that clause so that, when there is shared custody of something less than equal, it would cover the situations you have talked about of 30 per cent and 40 per cent? You also said that you could provide us a grid for that sort of thing.
I am referring to number 7 on page 7, where both spouses share physical custody of a child. They have added the words "in a substantially equal way," which I would like taken out. When I asked a person from the department what that meant, they said it meant they had to have 50 per cent each.
Mr. Finnie: I would cover seven in the same way as six. Six is entirely intelligent. Six is a case of split custody. This is one of the ironies of the way they have done it. Six says the award would go in one direction versus another. Suppose the child was with one parent all the time, and calculate the award. Suppose the other child is with the other parent all the time, because six is based on two children. You must then ask what one owes the other for the other child, and the difference is the net child support award.
Senator Jessiman: Is that how you would do it?
Mr. Finnie: Yes. The irony is that if you have two children in two different households, you have one way of deciding awards. However, if you have two children and each of them spends half the time in one household and half the time in the other, you go to a completely different way of setting guidelines, one which is much more complicated. The logic behind that was not explained to me. In each case, each of the parents has half of the children half the time, and the first case makes good sense. I applaud the Department of Justice for their approach here; and I deplore them for what they have adopted in chapter 7 and urge them to incorporate into that chapter the same procedures as used in chapter 6, which would be entirely fair.
Senator Jessiman: That would cover 50-50.
Mr. Finnie: Yes, and you could make the appropriate adjustments. It would not be hard to come up with a set of tables that did that at rates of 40 per cent, 30 per cent, or whatever. I would make it continuous after that.
Senator Jessiman: There is a limit. Let us say it is 10 per cent.
Mr. Finnie: It is not worth the bother. It depends on the case. You should have other sub-schedules. Someone might have the child 20 per cent of the time, but they might have substantial expenses regardless of that, such as an extra bedroom. Perhaps the couple has decided that the child have a complete residence, effectively, with the non-custodial parent in order to maintain the sense of the home, et cetera. I agree that this would complicate the setting of awards, but not inordinately.
Senator Jessiman: Could you provide us with a grid in respect of the sharing?
Mr. Finnie: Personally, I could not, but I know who could, for the price of a small research contract.
The Chair: Professor Finnie, in what countries or states is it mandatory for judges to make awards according to guidelines?
Mr. Finnie: Again, there is the law, and then there is the practice even when it is supposed to be "mandatory." In the United States, universally, they were to have been "mandatory." My last information was that the state with the most compliance was Wisconsin, and that was still only around 70 per cent.
The Chair: Even there, the judge uses his own discretion.
Mr. Finnie: Yes, which I think is one of the dangers here. The problems with some of these things are obvious. You will have some jurisdictions saying, "That is not fair, so we will set the guidelines aside." Others will say, "But we must follow the guideline." The inconsistencies and the non-standardization we have in the current regime could be just as bad, or worse, with guidelines.
The Chair: In which jurisdiction is the resort at the discretion of the judge?
Mr. Finnie: I cannot answer that question.
Senator Phillips: Professor Finnie, yesterday, I asked a question of Professor Bala from Queen's University. I was not entirely convinced by his reply, so I will ask you.
This legislation causes me concern in regard to children of a second marriage. These people are not monks or nuns. They quite often re-marry and have a second family. I find there is very little consideration given to that second family in this legislation. This applies particularly to those with low incomes, farmers, fishermen and truck drivers. Even highly trained technicians in Canada are lucky if they make $40,000 a year. To try to support two households and two families under this legislation is unfair to low-income people.
Another witness who appeared before us tried to convince me that the second family was usually better off than the first. Do you agree with that? Do you have any statistics in that regard?
Mr. Finnie: No, I do not have any statistics in that regard. I would be very surprised if he did. I would like to see the source of those statistics because one of the problems throughout all of this discussion is that we do not have enough statistics.
I did some work on what happens at the point of divorce. I wrote numerous articles which have been published in scholarly publications. In terms of a general assessment of the standard of living of the two families, I am not aware of the existence of numbers that would allow that to be said. Even if you could say that, I am not sure what you would do with it.
Your point is well taken. I like to think that I do not have my feet, or my head, in cement. I am willing to change my thinking. One area where I have changed my viewpoint over the years is precisely on this point. Originally, I thought awards should be maintained. If a person did go on and have a second family, that person should say, "I am already paying this. I have this responsibility and that should not change."
However, I got a lot of feedback from people who said that even in an intact family that is not how it works. If a second child is born, there are fewer resources for that first child in some way as well. I started to think about that. I have recanted on my initial position. I am more in agreement with what you have said here.
Having said that, there is a vague reference to that in the current guidelines. Again, we are left with just a vague reference. We are to be reassured that, once again, it took five years to come up with this vague reference and if it is not quite right, it will get better in the future. I share your concerns. There should be a clear rule.
I would adjust the awards. My own guideline would be about 18 per cent of the non-custodial parent's income in the case of one child and approximately 30 per cent in the case of two. If the second child was in a second marriage, you could say in total that the parent could be expected to pay 30 per cent of his or her income on the two children and make a moderate downward adjustment in the award for the first child. That would simply reflect that this person is continuing to be responsible, continuing to support his or her children equally without giving preferential treatment to the first child, as we do in intact marriages.
Again, the point is well taken. There is some vague reference to adjustments here. At to what they mean, I have no idea. One can imagine some precise wording that would be useful and appropriate.
For another small contract, I could fix that for you. I can fix all of this. That is the hopeful part in all of this. None of the problems are hard to fix.
Senator Phillips: During your remarks, you mentioned that there is no guarantee on how the money is being spent. This is a complaint that I have heard in several cases where the non-custodial parent is paying his ex-spouse who now has a second family. He has no way of knowing that the payments he is making toward his children are actually being used for his children, as opposed to helping to support the second family. Is there any way we could correct that?
Mr. Finnie: That is a tough question. I do not want to make it sound as though the solution is easy. I do not think it is. At the minimum, the guidelines could have a statement of principle that this is appropriate. The government is concerned; they can make all the appropriate references that most custodial parents, of course, spend their money in appropriate ways. Nevertheless, it makes sense to provide assurances -- not just wishes and hopes but assurances -- that that money is, indeed, being spent in that way.
In terms of legal procedures, there are already established procedures. This is not my bailiwick. I am not an expert. This is more the nuts and bolts related to the non-payment problem and how the money is spent.
At least you could have that broad statement of principle with the best legal language that you could achieve at this point to allow procedural appeals that could come into play, if required.
When I hear this complaint, part of it is just that the non-custodial parents do not feel their contributions are being recognized. There is this simple phrase: "I would pay the money if I knew where it was going."
I repeat, the government needs a statement of principle with the best language providing some sort of appeal procedure that would not cause every case to bog down. You would want to make sure that this is used in only exceptional cases and not to harass the custodial parent.
Senator Phillips: Yesterday, the provinces met and gave an understanding that they are prepared to enter into an agreement with the federal government for child support payments of $103 a month for each child. Which parent should get that and how should it be reflected in the payments?
Mr. Finnie: That is a very astute observation. It opens up a whole series of questions. In the initial part of my document, one of the major points made is that we do not really know what the tax repercussions of these measures will be. I do not know the final calculations because I was not involved at that stage of the production of the grid. We do not know about the tax credits. You should ask the Department of Justice how to factor in the current tax credits and about all the advantages which go toward the parent with custody of the child. For example, are they just ignored?
In the public record, there is a comparison of the standard of living if they were to have the same income level. Does that same income level take into account the tax credits which are now quite sizeable which go toward the custodial parent? Or do they make those calculations without taking those tax credits into account? Would it then be simply a windfall sort of income gain to custodial parents at the end of the day? Do you know what I mean?
Senator Phillips: Yes.
Mr. Finnie: Your point is generally appropriate because to the degree that the award levels do not directly take into account the tax benefits that go toward custodial parents, they ought to do that. This is a sizeable new benefit which certainly ought to be considered. Even if they are considered, to the degree that they are, those awards should be adjusted accordingly. I must say that I had not thought of this when I was reading the newspaper yesterday.
In fact, if the government is in the process of giving this extra money toward children, then that should be reflected in the guideline amounts. I say that because, basically, the government is saying, "We are taking responsibility for children." The portion of the spending on the child which is now taken up by the government should be reflected in adjustments in the whole grid.
Senator Phillips: If it applies to two children, the amount would be $2,400 per year and the schedule would not be prorated. It would go up in increments of 10. That may move the individual from an $18,000 tax bracket to one over the $20,000 mark. He or she is then caught with having to make a further adjustment in the schedule of payments.
Senator Losier-Cool: Perhaps you are referring to the June 1996 chart. There is a new chart which shows the $1 difference.
Senator Phillips: I am referring to the 1996 chart.
Senator Losier-Cool: Professor Bala mentioned yesterday that he wishes the new chart would be made available. This new chart sets the figures out as a percentage of income changed.
Senator Jessiman: Are you saying it will be prorated?
Senator Losier-Cool: I am referring to the category into which falls the $1 difference. I do not have the new chart yet; I am still looking at the June 1996 chart. The new chart is calculated on a percentage of income.
Senator Jessiman: If it is $500, then it will be 50 per cent more, is that right?
Senator Losier-Cool: This is what I understand.
Senator Jessiman: Professor Finnie has said that if you are earning "x" dollars, then you pay so much, which is represented by "y." However, If you earn $1 more, then you must pay "y" plus $15, even though you are earning only $1 more. Are you now saying, as he suggested, that there is notching so that it will be prorated?
Senator Losier-Cool: That is correct.
Senator Jessiman: Do you not think that before we pass this bill we should see that chart?
Senator Pearson: I want to make a supplementary comment with respect to the child tax benefit. We are talking about poor children. The child tax benefit will not be going to rich families. Any thought that the amount parents give to their children will be reduced in relation to the child tax benefit is to pay a disservice to children.
Senator Phillips: I was not talking about children of parents who earn $100,000 each. I am talking about people who make $20,000 and $30,000 a year; in other words, the working poor.
Senator Forest: The notion that an added benefit to poor children will result in a lower support payment defeats the whole purpose of this measure.
Mr. Finnie: I do not agree. We agree that the guideline is based on the notion that the expenses that remain to be paid by the parents should be split equally between the two parents, or according to their incomes.
Senator Forest: I am speaking about the announcement made yesterday.
Mr. Finnie: I agree. We are speaking about all the tax benefits of that type. Let us say the residual costs of the child are $5,000 a year. Let us say also that the two parents are both at the same low income levels. In a sense, each would be paying $2,500; one through the child support award and the other directly as a result of living with the child.
Let us say that the government comes along and pays a child tax benefit of $1,000 toward that child. This means the custodial parent now has $1,000 to use in a discretionary fashion. Undoubtedly, some of that money will go toward the child. However, what will the custodial parent do with the money? This means there is no equal sharing of the costs of the child. It is a departure from the basic principle of fairness that is at the heart of this guideline.
Senator Forest: Let us suppose that the fairness is addressed. The idea is to take those children to a level above the poverty level. If you lower the awards, then you are defeating the whole purpose of this measure.
Mr. Finnie: The awards would not be lowered dollar for dollar at all. There would be an adjustment so that the non-custodial parent would still be paying his or her appropriate share, that is, a share equal to the share of the custodial parent. There would not be a dollar-for-dollar reduction. The fairness of equal payments on the part of the custodial and non-custodial parent would be maintained.
The Chair: Mr. Finnie, as you know, this payment will go to all poor families, not only divorced families.
It is now time to move on to hear from our next witness. I wish to thank you, Mr. Finnie, for appearing before our committee for a second time.
Our next witness is Sean Cummings from Halifax. He is President of Fatherhood... Imagine that! Please proceed, Mr. Cummings.
Mr. Sean B. Cummings, President, Fatherhood... Imagine that!: Madam Chair, and members of the committee. I am a non-custodial parent. I did not ask to be. I wanted to be in the same parental role as I was prior to my divorce. Unfortunately, the situation after divorce deteriorates for most people. One has to adjust one's life accordingly.
Our organization represents non-custodial parent families and extended family members in Nova Scotia. Our organization was formed to answer a need which exists in my community and, indeed, in every community in Canada. We offer first level support to parents who are trying desperately to cope with the loss of their children. We offer advocacy, learning and a sharing of ideas because every father and mother in our organization shares the same common bond, that is, a profound sense of loss.
Try to imagine what it would be like to lose your children and try to imagine getting on with your life. Dare to place your hopes and dreams for your children on a schedule of access visits and holiday time. You can never really understand the pure grief non-custodial parents feel at the loss of their parental role, at the loss of their children, until you have lived it. Visualize the tearing at your heart as you help your children pack their things away every second Sunday afternoon. Consider the sadness a six-year old tries to express in his six-year-old way as he waves goodbye when his custodial parent picks him up.
Try to imagine that a short time ago you had an important role to fill in your children's life: You were a parent; you cared for, supported and nurtured them; you listened with pleasure to their victories in life and shared in their disappointments; you held them in your arms at birth, fed and changed them in their infancy; you walked them to the bus on their first day of school. You cannot buy that kind of experience. It is unique because the first day of school happens only once.
Then there are those other experiences you are missing: the first loose tooth; the first schoolyard scuffle; the first school play; the first date. Are you a parent any more?
What kind of country will we have when children grow up without day-to-day care and contact with both parents? Will it be a nation of single parents? Will it be a country of fatherless children? Will it be a country with a generation of children at high risk for social problems who likely will be condemned to repeat the failure of their parents? Have you ever really bothered to ask children what matters to them?
A generation of Canada's youth is silently suffering while at the same time reacting negatively because they have been missing one vital part of their lives -- their other parent. They walk a tightrope over a chasm of emotional turmoil and complications, all the while trying desperately to maintain their love and loyalty toward both parents. They speak in diplomatic tones out of fear of hurting the feelings of mom or dad. They muster their emotional resources and live a life of counting days on a calendar and scheduling their time with each parent. This is childhood in the late 20th century.
Do we understand their pain? Do we really presume that the answer to all of life's problems can be found in the labyrinth of complicated guidelines that make up of the substance of Bill C-41, which is just a price tag for Canada's youth.
What are our children worth? Is it $300 or $400 a month? Or is it a visit to McDonald's every second Friday afternoon between 4 p.m. and 6 p.m. and an apportionment of one's income? Is that what they are worth? Are they merely a taxable commodity? How should we measure our children's worth? What does it cost? How much shall we spend to develop a healthy and happy generation of children? Is their emotional development something which can be funded by a monthly pay allotment? Can childhood be purchased?
Where are the heroes in all of this? Some would applaud the great strides we have taken to eliminate child poverty in Canada, which is one of the main focus points of this legislation. It is viewed as heroic in certain circles; that is to say, those who have custody of their children.
I am my son's hero. He is six and I, along with my wife, a new spouse, parent him for 10 days a month. I live 800 metres from his mother's apartment, 600 metres from his school. When we are together, I am complete again and I know he feels true happiness, the kind of happiness we all experience at the moment of reunification with a loved one we have not seen for a long time. When you are six, 10 days is a lifetime.
I earn significantly less than his mother. I cannot afford to go to court to get a variance. I do not want to either. Support is just money. It is not love and it does not make you a hero in the eyes of your children.
I am my child's father and his hero. I can hoist my child on to my shoulders so that he might see the world through his father's eyes, so he can feel big, so that he can be a six-year-old man.
I am his hero because, in the springtime, we plant a garden in our backyard. We care for it through the summer months and harvest its bounty in the autumn together. It makes him responsible and it prepares him for parenthood. He cannot wait to be a big brother, and he cannot wait to grow up to be a man.
I am his hero because we walk together on cool Atlantic afternoons in the shadow of the Halifax Citadel. I am his hero because we talk about the most amazing things, important perspectives in the language of a six-year-old boy. We discuss snowflakes and waves on the ocean. We talk about our collective hero, Spiderman, as if he were a real person. He is real to my son, and if he is real to my child then he is real to me.
What is the cost of childhood? We talk about fear in the dark, about accidents in the bed that occur from time to time. We talk about my big hands and his small hands. We talk about his mother, who is planning on moving to Edmonton this summer. You see, when you are six, Edmonton is just across the road from your mom's apartment. You can still go to your dad's house for 10 days a month and after school you can go for a walk in the shadow of the Halifax Citadel.
What is the price of my son's childhood? What is it worth? His youth is a wonder to me; his innocence a source of joy; his confusion a source of pain for us both. His hope is hope for me.
What price shall we place on a walk in the shadow of the Halifax Citadel on a cool Atlantic afternoon? How much is a smile worth or a missed birthday party? What is the cost of a confused boy who faces a move to a city where he was not born, when everything that he knows in his young life lay in the shadow of the Halifax Citadel? Is it worth $300-$400 a month?
What about my wife? She is a "new spouse," a term she loathes. She is the main wage earner in our home and as such she must absorb any increase in the amount of support I pay each month. She inherits my misfortune, lock, stock and barrel.
She loves my son dearly, and I know that he loves and looks up to her. They have a special relationship because my wife is not his mother, something which he understands. She is not his mother but he knows that she loves him and is a vital part of his life. They share time and they respect each other. My wife is a co-caregiver and my son thrives because of this commitment. Of course, support has to be paid. My wife, the primary wage earner, goes off to work each day, living with the threat of seizure by the state. Anything that we possess in the way of jointly held assets can be seized and sold off to cover the cost of support that I would owe if I were in persistent arrears. These are jointly held assets, like our home, my child's home. She takes it in stride because she understands my grief and my son's confusion. She walked into it.
My wife and I are having a baby. My son will finally have a chance to be a big brother. That is, of course, if he does not move to Edmonton. This will be a new member of our family, a new child with whom to share my hopes. Of course, the child will be entitled to a reasonable standard of living, but I cannot help but wonder if he or she will have a lower standard of living because of yearly adjustments to the amount of child support I will have to pay and which his or her mother will have to absorb through her contributions to our collective standard of living.
Because I do not have as significant an earning capacity as my wife, I will likely be the one staying home to adopt the important role of homemaker. I will care for our new baby, care for my son if he is still here, and care for the home. Of course, support will have to be paid.
My wife and I have two options. Due to my poor earning potential, I can get a job and put our baby in daycare, which is just not the same thing as being raised by a parent. Or, I can stay home and care for our new child, and my wife will pay support for a child who is not hers.
Which child should have the priority? What if I cannot find work? Is it fair that I should have to institutionalize our new baby so I will not have assets seized and sold off? Does this make me a deadbeat dad?
My wife really dislikes feeling that we are living with the influence of my ex-wife. My ex-spouse is always there in every single decision that we make. Should we buy a new stove? The old one is broken. I wonder what my ex-wife will say. What if we would like to buy a new car? We had better not, my ex-wife might find out and demand an increase in support.
Try to imagine what it would be like to inherit this kind of life upon marriage to a non-custodial parent and live in the fear of the influence of the ex-spouse in everything you do. It is intrusive.
My wife feels that we must answer to my ex-wife; and she is right, we do.
My ex-wife does not have to answer to us, and we have no right to inquire as to her financial means. I do not really care to either, because if I did she, too, would feel controlled.
Meanwhile, my son is growing up every day. Ten days a month costs my family, which we gladly absorb into our monthly expenditures. Of course we all know that unless my child lives with me for greater than 40 per cent of the time, any child care costs in my home, the non-custodial parent home, are not recognized.
Senator Jessiman: It is 50 per cent.
Mr. Cummings: I stand corrected.
I guess that the costs for caring for my child, in my home, do not exist. Tell that to my wife.
I try to maintain a balance in my home. My child knows that he has two homes and, as such, that is much more special than having one. I soften the likelihood of his confusion by trying to communicate my parenting concerns to my ex-spouse. I try to schedule his bedtime routine with the one at his mother's house. The problem is that she will not sit down to discuss parenting issues with me. Suffer the little children.
In our group are people from similar circumstances. Most are not as fortunate as I am to have their children with them for 10 days a month. Most parent their children for a mere 48 hours every two weeks. Most are flat broke; many are unemployed. Nearly all of them have had their parenting time denied by their ex-spouse for one reason or another. I would like to add that some in our group have not seen their children in years. That is pain, salt in the wound. Forty-eight hours of access every two weeks is 96 hours per month, 1,152 hours each year, or 48 days. In 18 years, a non-custodial parent will have parented their children a possible 864 days, roughly two years and change out of the 18. This assumes, of course, that you are fortunate enough to live near your children. Many non-custodial parents are not that fortunate.
If you have your parenting time denied, there is no recourse. It is devastating to children and parents because the time they do have is fleeting. Any obstruction of that time is a horror.
Bill C-41 certainly addresses the issue of non-payment of support, but nothing even acknowledges the denial of parenting time.
What are our children worth? Most non-custodial parents would gladly pay if they had the money, but many simply do not. How does Bill C-41 address this reality? By revoking the licences of non-custodial parents, the licences they need for jobs so that they can exist; by revoking their passports.
Is there a provision to assist non-custodial parents in seeking a variance or claiming undue hardship if they cannot afford the support? Well, yes, sort of. In theory, it would work, assuming that an angry ex-spouse will not attempt to prevent application of undue hardship. We all know how well divorced couples get along.
Are you a hero to your child if you are poor? Yes, you can be. Are you a hero if you are wealthy? Yes, you can be. Are you a hero to your child if you deny access? Your kids will still love you, but you are a parent. Because you are a parent, even if you deny access, they will also likely feel confused and alienated from the parent with whom they were scheduled to spend time with.
Are you a hero to your child if you are a leader in their lives? Yes. Can you be a hero even if you live 2,000 miles away from them? Well, sort of. They will know you as "mom" or "dad" because they have only one mom or dad. They will see you for probably 30 days a year, which is not exactly day-to-day care. You will still be "mom" or "dad," but you will more likely be regarded as the distant friend who just happens to be called "mom" or "dad." You will pay $300 or $400 a month for that privilege.
When you have your children with you for 30 days in the summer, you will receive no support because you have the children less than 50 per cent of the time. When they go back to the custodial parent home, you will have a hole to fill in your life. Your children will grow and mature. They will change, and you will miss that. Your ex-spouse will probably still dislike you a great deal. This is normal. You will still pay support in accordance with the guidelines. You will have no value as a parent, no role to fill in the lives of your children. Your spouse will assist you in yearly increases of support, and you will feel so very alone.
This is life for non-custodial parents and their families. This is the best that we can offer children -- a monthly payment from a person they hardly know. Is it any wonder why non-custodial parents lose hope? Can you see how easy it is for some simply to walk away?
How shall I tell my six-year-old what will likely become of his life? How shall I tell him that he might know me now, but he will not when he moves away and I become another dad who sees his child for one month every summer? How can I be a parent when I am not treated as a parent? How should I explain to our new son or daughter that he or she has a brother with whom they will not be able to grow up? This is my life, like so many others.
For those of you who have been fortunate enough to watch your children grow and for those who have never experienced the thought of losing your children, be thankful.
To quote Joni Mitchell, "Don't it always seem to go that you don't know what you've got till it's gone."
What are your children worth, $300 or $400 a month, or an alternative to this bitter and hateful system which is destroying people's lives?
Bill C-41 simply adds more opportunity for adversity and litigation, more reasons to argue than to parent, more living under the control of an ex-spouse, and more living in fear of reprisal from the state. This is not the future I had hoped for my children. Suffer the little children.
The reason I put together this speech is because I feel, as do many in our organization, that perhaps one thing missing from this debate is the human cost in all of this. We can nickel and dime child support until the cows come home, but it will still not solve the problem because child support is twofold. Child support is a financial obligation, but it is a parenting moral imperative. That is the long and short of it.
My child does not care if he gets $1,000 a month or $300. What my child cares about is having a mom or a dad.
Our group is for non-custodial mothers and fathers. We chose the name "Fatherhood... Imagine that!" The group is composed primarily of fathers who have lost their parental role after divorce. The motto is, "I can pay support for 18 years" -- and maybe more under this piece of legislation <#0107> "but I am a parent for the rest of my life." I think that is what is missing in this debate. That is why we were adamant about having an opportunity to come here because this is one of the last opportunities to give a realistic perspective of what will happen to people under this legislation. We can talk until the cows come home, but there is cause and effect.
One thing we must consider outside the financial issues are the emotional and developmental needs of children. I propose to you today that Bill C-41 is part of the problem because it does not address those needs. It does not address a children's rights. Children need both their parents all the time, especially after a divorce.
What we see in this legislation is a significant revamping of many myths behind non-custodial parents and what their effect is on children and our social programs. There is a tremendous presumption in this country that non-payment of support is a huge issue. The Justice Minister has been quoted as saying that as high as 75 per cent of non-custodial parents do not pay. That is a false.
Nova Scotia has the Maintenance Enforcement Act, a Draconian piece of legislation. I suspect it will be challenged at some point because it suspends one's civil liberties. The actual number of people who are registered in the program number between 15,000 and 16,000. Of that, some 22 per cent are in arrears.
What is arrears? Well, arrears are, "I have lost my job, my wife has lost her job, and the house is being foreclosed on." Does that make you a deadbeat parent? Does that make you someone who should be forced into a debtor's prison? No.
This legislation is based on the presumption that all non-custodial parents have a capacity to become a non-payer of support. I propose to you that portions of Bill C-41 bolster that myth.
In 1942, Canada shamelessly interned Japanese Canadians because they might have been spies. In 1997, we have Draconian legislation, such as the Maintenance Enforcement Act and portions of Bill C-41, which suspends one's civil liberties based on the presumption that you might miss a payment.
Senator Bosa: That is an exaggeration. You cannot say that this bill does that.
Mr. Cummings: That is reality. I suspect this legislation will be challenged because of it.
Senator Bosa: First, if a person is not in a position to meet his or her monthly support payments, then that person must have his or her case reviewed. The parent becomes a dead-beat parent when that parent takes off without telling anyone. There is a big distinction between the two.
Mr. Cummings: Do we have an idea of how many people in Canada are doing this? Has an accurate study been done that has measured this? In Nova Scotia, the director of the maintenance enforcement program told me the actual number of the 22 per cent who are consistent dead-beat parents is less than 3 per cent.
Senator Bosa: You presented this case in an emotional way. It touches me, too, because you made me live what a non-custodial parent experiences. Surely, you cannot blame this legislation. This legislation did not create the situation. This legislation has identified a method to avoid litigation and confrontation between two parents who have decided not to live together any longer. I think you are exaggerating.
Mr. Cummings: With all due respect, I do not question the merits of the architects of this legislation. I am not adverse to the idea of guidelines. I, too, would like to see something fair and balanced. However, a growing segment of our community, and they reside in every part of this country, is feeling controlled. When a presumption that you might miss a payment of support is seen as a reason to enrol you in an enforcement program, we do not see there being a balancing out. Some statistics with respect to the denial of access indicate that as many as 65 per cent of non-custodial parents have experienced this denial of parenting time.
Perhaps we could try to put the shoe on the other foot. If you were a custodial parent, how would you feel about being compelled -- that is, by virtue of the fact that you are a custodial parent and have the capacity to deny your child's right to court-ordered access with one of their parents -- to be on an enforcement program?
Senator Bosa: I do not know the statistics either. You have said that 60 per cent or 65 per cent of non-custodial parents are denied access. This legislation is against the custodial parent who denies access to the non-custodial parent. This measure does not promote that. Rather, it tries to correct that situation. Honesty cannot be legislated. Sample cases have been presented to us which show that all sorts of excuses are invented to prevent the non-custodial parent from seeing his or her children. This legislation is trying to rectify that situation.
Mr. Cummings: I do not see in this legislation any acknowledgement that there is even the remotest possibility for the denial of access to occur.
Senator Cools: If you are saying that this legislation speaks to the issue that you have just raised, then point me to it. I would love to be comforted by that. Perhaps I missed it in my reading of this bill.
Senator Bosa: I said that there is legislation in place regarding access.
Senator Cools: Speaking to the problems of correction of denial of access -- the direct point the witness was raising -- you said that this legislation corrects that situation.
Senator Bosa: No.
Senator Cools: I thought you were referring to a particular clause of the bill that I had overlooked.
Mr. Cummings: I am trying to reinforce that there is cause and effect. Certainly, we want to have a fair and equitable method of determining financial child support in this country. That is but one-half of the equation. I propose to you today that we will be back at this again within the next 10 or 12 years, trying to figure out how to solve the problem of child support because this will not work. I will explain that to you.
The guideline is based on pre-tax income. I do not know about you, but all of my bills are paid from my post-tax income. It is unfair and unrealistic to determine that a person should pay a portion of one's income based on some money that they have yet to receive. The taxman has not had his way with it. It is from my post-tax income that I determine what I can and cannot afford to do.
With respect to that post-tax income, we are comparing apples and oranges. Every single person in this country spends, lives and exists differently from other people. What one person in one part of the country spends to exist is different from what another person in the same community spends because everyone is different. Furthermore, everyone apportions a certain amount of their income toward their children differently.
Because my children are not living with me or being parented by me for more than 50 per cent of the time, there is no recognition of costs in my home. Again, we want fairness here. The tone of the legislation provides a tremendous disservice to children because it sends out a message that children's needs are specifically financial and that is about it. A child could receive thousands of dollars a month in child support but grow up unhappy and unhealthy because one parent, one vital part of their life, is not there. That is reality.
I can say that from experience because I am a child of divorce. It scares me because I do not want to see the mistakes that my parents and I have made being passed on to my child. The reason people like me become involved in organizations like ours is because we must make a commitment to ourselves that we will make up for that by virtue of the fact that we cannot physically be with our children every day of their lives. For all intents and purposes, the odds in that regard are not good; my child will probably be moving to Edmonton.
I have decided that, by my actions, my child will grow up knowing that this is the best I could do. It is the absolute best I could do, but it is a far cry from parenting. Parenting issues are not specifically financial issues. Anyone who thinks that they are is not really focused.
Senator Forest: I have appreciated your presentation. As a mother who has two divorced children and a number of grandchildren, I appreciate what you are going through.
On the other side of the coin, I also appreciate what custodial parents have to go through, too, in that they feel abandoned and that they must care for their children on their own. Everyone hurts in a situation like that. I agree that parenting is extremely important.
With respect to access, on the one hand, you are doing the best for your child, as are many other fathers. On the other hand, we heard from a practitioner in the field yesterday who told us that the biggest problem by far is with non-custodial parents who do not spend time with their children, not even the time that is allotted to them. That is sad, too.
This legislation cannot address everyone's problems. We have heard a great deal from many people. We will have to do the best we can to accommodate the most people involved. Do you have any specific recommendations to make with regard to this bill?
Mr. Cummings: Our recommendations are contained in our brief which is entitled, "Implementation of The Federal/Provincial/Territorial Family Law Committee's Report and Recommendations on Child Support (Bill C-41)."
The primary complaint that I hear is that the guidelines are based on pre-tax income, which is clearly unrealistic. Another issue is that this is supposed to become law on May 1 of this year, yet no one knows about it.
Because it is not law, family court judges in Nova Scotia are making awards according to these guidelines, which may well be flawed. That is cause for concern because there is a potential for unrealistic awards.
My phone rings off the hook most days with both custodial and non-custodial parents wanting to know how this measure will affect them. There has not been much in the way of public education on what it means. This is extremely complicated legislation. I do not know how we will be able to inform everyone of this by May 1, especially if significant amendments are made to it. That is a big cause for concern.
A number of members of our organization are new spouses, both mothers and fathers. I expect that there will be court challenges to this legislation because it proposes a dramatic increase in most child support awards. In a marriage or common-law relationship, both parties contribute equally to the standard of living of the home. Most people in this country live pay cheque to pay cheque. If there is an increase in support, who will make up for it? Should the new spouse make up for it, as will inevitably happen?
Two things will happen as a result. First, someone will challenge this legislation in court. The attitude may be that, although you love the child of your new spouse dearly, you should not have to support that child. Second, it will increase the likelihood of acrimony and divorce in the new relationship and any children of that relationship will also be thrust into the mill of the family court system. As a result, more lives will be destroyed.
It is a very interesting moral and ethical argument. Who should pay the support? I simply do not have the earning capacity of my spouse. I contribute to the household income as much as possible, but if there is a significant increase in support payments, my spouse will have to pay. She will absorb it, directly or indirectly. Should she have to do that? That is a point that has been missed from this whole debate.
Another issue is that of a new child in the new family. Which child should have the priority?
The Chair: Under the bill, if your former spouse applies for an increase as a result of the implementation of the grid, you may then have to plead undue hardship.
Mr. Cummings: Which my ex-spouse will, of course, fight tooth and nail, at the expense of the children. Money which would normally be for my child will be spent on legal costs. It is pointless. In the long term, we will be returning to this issue because there will be long-term social problems as a direct result of it.
Another aspect is that I do not like to feel that I am being watched. I do not like the possibility that my collective assets with my new spouse can be seized by the state. Many lawyers are currently recommending to their divorced clients that they put any assets into the name of their new spouse. In that way, if you do lose your job, or if the maintenance enforcement measures kick in, there will be no assets to seize. That promotes disregard for the law, which is fundamentally wrong. I certainly do not advocate that, but I can see why a lot of people would do it. If my home is seized and sold to cover child support, once again my new spouse is paying for a child who is not hers. That is a very significant issue.
Senator Cohen: Mr. Cummings, thank you for the information you have provided to me personally and to this committee. You have opened up a whole new avenue of thinking for me and I am glad that it is on the record. There may well be social problems in the future as a result of these guidelines. However, they are open for review in up to five years. I hope that we will have the vision to rectify some of these inequalities.
With regard to civil liberties, we were presented a brief by a group from Vancouver which says that the denial of passports as part of enforcement of payment is an infringement on civil liberties. That is debatable, but I want to go on the record to thank you for giving me another avenue to think about. You were very articulate and the problems you have raised are real.
The Chair: Did you say that you have presented this brief to your provincial government?
Mr. Cummings: Yes, I have. The director of the family court services for the province of Nova Scotia contacted me at the beginning of October requesting input because the province of Nova Scotia does not know how this measure will affect people, although it is already being implemented. Once again, they agree with the concept of guidelines, as do I, as long as they are fair and realistic. They wanted to hear from a representative of non-custodial parents on how this legislation would affect non-custodial parents in Nova Scotia.
Essentially, I am telling you today the same thing that we told them in October: Expect significant problems. We are breaking new ground with this legislation. Perhaps we should implement the legislation in a test area first rather than right across the country. It would be better to have a small portion of the country blow up with a whole lot of social problems as a result of poor legislation rather than the whole country going to hell in a hand basket.
Senator Losier-Cool: Did you receive any response to your presentation from the government of Nova Scotia?
This bill is the result of three years of consultation with the provinces. The provinces have agreed to this, along with various parent groups, family law lawyers and family mediators. Although it is not perfect, they have said it is a very good compromise with the status quo. What was your province's response?
In Nova Scotia, one of the civil liberties which you mentioned is the driver's licence. Do you have an idea of the percentage of non-custodial parents who have been deprived of that liberty, that is, having had their driver's licence taken away from them?
Mr. Cummings: It has been reported in the press quite a bit in Nova Scotia that there are some significant problems with the Maintenance Enforcement Act, problems that we suspected would occur. The biggest problem is that of the 15,000 or 16,000 people who are on the program, 22 per cent are in arrears. They have lost their jobs, or their ex-wife has lost her job, or the mill has closed, or something like that has caused this to occur. The legislation is simply designed to enforce a support order. It is not designed to get a person a job so that the support can be paid. They have difficulty with throwing in jail a person who is trying to find a job but cannot. We all know that Nova Scotia has an extremely high unemployment rate.
The maintenance enforcement office is being inundated with phone calls from angry custodial parents who have not been receiving support from that 22 per cent who are in arrears. That does not make them deadbeat parents. The director of maintenance enforcement in Nova Scotia told me that less than 3 per cent consistently refuse to pay support.
Senator Losier-Cool: Our research indicates it is 3 per cent in terms of passport withdrawal under this bill.
Mr. Cummings: That is what I understand as well. Therefore, 3 per cent of 22 per cent of 15,000 is not much. If you were to expand that to a national level, that is certainly contrary to the 75 per cent figure that we have heard touted so frequently from the Justice Department.
It is something of grave concern. We feel that there has been a myth portrayed about non-payment of support. It is directly linked to the kind of parenting time arrangements that exist. When one parent denies parenting time, the custodial parent does not normally get much support. When one parent has an equitable, fair and balanced arrangement of parenting time, there is little difficulty in obtaining full support on time.
With respect to the civil liberties issues, you are automatically enrolled in the program as of January 1, 1996. Those with new support orders are automatically enrolled whether they have a history of paying support or not. In theory, I am enrolled in the program. The danger is that I can be enrolled in the program by my ex-spouse who can pick up the phone and enrol me without me having any recourse to question it. I cannot get off the program as a non-custodial parent unless my ex-spouse agrees. We all know how well ex-spouses get along. That is a significant problem. As a result, you cannot get off the program once you are on it if you are a non-custodial parent. We expect that you will see lawsuits now because non-custodial parents will be suing custodial parents.
I have never missed a support payment. This also brings into question ethics. If you have no history of missing support payments, then why is your name placed on an enforcement program? I do not know anywhere else in this country where that is done. That is a grave concern.
Senator Losier-Cool: The first part of my question had to do with the response of your government. Did you present this report recently?
Mr. Cummings: I presented the information to them in October. I met with the director of family court services and we reviewed it. To date, I have not received an official response from the government. I suppose they are still reviewing it. They are concerned as to how this measure will affect people. I do not question their motives. I am pleased they sought out our opinion. That is something which does not happen often with groups like ours.
The Chair: Mr. Cummings, we appreciate you attending on such short notice. Thank you.
The committee recessed.