Proceedings of the Standing Senate Committee on
Social Affairs,
Science and Technology
Issue 4 - Evidence - February 24 meeting
OTTAWA, Tuesday, February 24, 1998
The Standing Senate Committee on Social Affairs, Science and Technology met this day at 10:00 a.m. to monitor the implementation and application of Chapter 1, An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act, the Garnishment, Attachment and Pension Diversion Act and the Canada Shipping Act, and the associated Federal Child Support Guidelines.
Senator Lowell Murray (Chairman) in the Chair.
[English]
The Chairman: Colleagues, we have a quorum.
This morning we are dividing our time into two sections of 45 minutes each. During the first half of our meeting, we will hear from the Canadian Bar Association, represented by Jennifer Cooper, Q.C., Chair of the Guidelines Implementation Committee, Family Law Section; and from Tamra Thomson, Director, Legislation and Law Reform at the national office of the CBA here in Ottawa.
Ms Cooper is a practising lawyer with the prestigious -- Senator Jessiman reminds me -- Winnipeg law firm of Pitblado & Hoskin.
Welcome to both of you.
Ms Tamara Thomson, Director, Legislation and Law Reform, Canadian Bar Association: Thank you, Mr. Chairman and honourable senators. The Canadian Bar Association is a national association representing over 35,000 jurists across Canada, including lawyers, notaries, law teachers and law students. The primary objectives of the association include improvement in the law and in the administration of justice. It is in this rubric that we come before this committee today to make our comments on the implementation of the child support guidelines.
Our submission was prepared by the Family Law Section of the Canadian Bar Association, which has been involved in the issue of child support guidelines since the early 1990s when the Department of Justice first started its review of the current system of child support, and it has been an active player in the various consultations throughout the process and leading to the implementation of the guidelines.
The Family Law Section represents lawyers across the country who act on behalf of all parties in family law matters -- moms, dads and children. Therefore, we bring a unique perspective in this brief in that it is certainly not in our interest to look at just one point of view. We have a very broad perspective in looking at issues relating to family law and to child support guidelines.
I will now ask my colleague, Ms Cooper, to address the substantive issues of the brief which has been sent to you.
Senator Jessiman: You are the director, are you not?
Ms Thomson: Yes.
Senator Jessiman: And you are very familiar with the procedure followed in having this brief reviewed by the CBA?
Ms Thomson: Yes.
Senator Jessiman: Could you tell me what the procedure was in this case? You tell me it started with the section of which Jennifer Cooper is the head. Where does it have to go from there before you can present it to this committee as being representative of the Canadian Bar Association?
Ms Thomson: First, I should note that it has been approved as a statement of the Family Law Section of the Canadian Bar Association.
Senator Jessiman: How many members are there of that section?
Ms Thomson: There are approximately 6,900 members of the Family Law Section. However, to be presented as a submission of that section, it must go through a rather rigorous approval process. In this instance, it would perhaps be instructive to look at the full context of the briefs of the Family Law Section on this issue.
Senator Jessiman: Excuse me. I do not want to take a lot of time. I am really more interested in this particular brief. You say that there are 6,900 members. I would like to know approximately how many of those 6,900 members have actually seen this brief or a draft of it. Have ten members seen it?
Ms Thomson: Senator, I think it would be more instructive for the committee to know the context of the approval process. The first step in approving any submission that goes before a parliamentary committee is that members of the section who indicate an interest in the matter volunteer to put a first draft together. Those volunteers are from members of the section from across the country. In this instance, seven of our branches indicated an interest in working on the submission.
First, the section executive as a whole, which has approximately 30 members, each of whom represent a branch or are national officers --
Senator Jessiman: So far we know that, of 6,900 members, 30 members have considered this brief or parts of it. Is that correct?
Ms Thomson: That is the first step in terms of the group which first considers the issue. We go to the experts in the association, which is the Family Law Section. That executive, consisting of about 30 members, names a number of interested members who then put together a first draft of the brief.
Senator Jessiman: How many members would be involved in the first draft? I just want to know how many members of the Canadian Bar Association were involved in drafting this.
Ms Thomson: Approximately 10 members would have initiated the first draft. They are bound by the policies of the association which have been approved in the past by the Canadian Bar Association and are consistent with the past --
Senator Jessiman: I have no objection. You have given me the number and I want to go now to the next step. Ten members of this section have been involved in this. The preface of your brief says:
This submission was reviewed by the Legislation and Law Reform Committee.
I know that there are six members of that committee. Is that correct?
Ms Thomson: Yes, there are.
Senator Jessiman: Did that committee ever meet to discuss the draft of this brief?
Ms Thomson: First --
Senator Jessiman: It is not a hard question.
Ms Thomson: We have missed a step, Senator Jessiman. You seem to be very concerned with the process and I think it is fair that the members of this committee know the full process.
Senator Jessiman: What is the step I missed?
Ms Thomson: We need to go back a step. The people who prepared the first draft of the submission --
Senator Jessiman: The 30 members?
Ms Thomson: Ten of those 30 made comments for inclusion in the brief. That brief was then reviewed by the members of the executive who have been elected to represent --
Senator Jessiman: Are these the senior officers?
Ms Thomson: These are the executive of the Family Law Section who have been elected by --
Senator Jessiman:How many of those --
Ms Thomson: We indicated that there were 30, who are elected to represent the members of the section from across the country.
Senator Jessiman: Did the 30 members meet to discuss this, or was it done by sending it to them for review and comment? How was it done? What is the process?
Ms Thomson: They met.
Senator Jessiman: How many times?
Ms Thomson: On this particular issue they met once and had a series of conference calls.
Senator Jessiman: How many of the 30 were present when they met?
Ms Thomson: I believe that most of the 30 were at that meeting.
Those members, in turn, go back and discuss the brief with other members of their branches and other members of the section. Therefore, this is a representative process, much as the Senate is a representative body of the Canadian people.
The Chairman: How much longer are we going to continue with this? I quite understand its relevance.
Senator Jessiman: It is very relevant.
The Chairman: I have been on Senate committees which have heard from the Canadian Bar Association before.
Senator Jessiman: That is the importance of it. I received this draft only yesterday. It was with the Library of Parliament approximately 10 days ago. We have questions based on this draft which I received yesterday.
I was contacted by a member of the Legislation and Law Reform Committee who told me that there was no meeting at all of the Legislative and Law Reform Committee, which committee the witness is saying has reviewed this brief. He sent me the draft, although I did not request it. He says it is possible that the draft was sent to him for comment with the assumption that, if he did not respond, he agreed with it.
I have spoken to him four times since yesterday. He has suggested, and it was suggested to the director as well, that one part of the draft in particular might be postponed for further study. He requested that if that suggestion is not made at this meeting, I should question the procedure in order that it will be clear to everyone who in the Canadian Bar Association has approved this brief.
The Chairman: Senator, I appreciate the relevance of the issue because some of these questions have occurred to me on previous occasions when we have heard from large organizations such as the Canadian Bar Association. However, to be fair to all members of the committee, as well as to the witnesses, and to ensure that we do have some time for discussing the content of this, there is a point at which we will have to move on. If you have something to say about it, perhaps the next meeting of the CBA would be the place to raise it.
Senator Jessiman: I would like to put on the record, however, that it is my information -- and the witnesses say otherwise -- that the Legislation and Law Reform Committee did not meet in any way whatsoever at any time to discuss this brief.
If that information is correct, I would like the witness to tell us so.
Ms Thomson: The brief was approved in the manner indicated for the approval of public statements by the Canadian Bar Association in its by-laws. That approval process, which has been approved by the council of the association, does not require a meeting of the Legislation and Law Reform Committee to review every submission that goes before Parliament.
I believe that this committee can appreciate, given that we make in the order of 30 or 40 submissions to parliamentary committees each year, that it would be very difficult to have the one committee which reviews all the submissions actually meet, either by phone or in person.
In briefs such as this, where there is a very strong historical precedent for the position being taken by the section, and where it is based on principles passed by the council, it is the process that the brief will be circulated to the members of the Legislation and Law Reform Committee who will relay comments to my office.
The Chairman: Thank you. Senator Cools, can you conclude this portion of the meeting quickly, please?
Senator Cools: Thank you, Chairman.
I am not a member of the CBA and I do not pretend to know the processes by which opinions are formulated. I know very little about how consensus or agreement is formulated at the CBA, but I have heard what Senator Jessiman has said and it is of enormous concern to this committee that opinions of people or organizations are presented as they really are, and I am hearing you now to say something quite different from what you said initially, and I would like this to be clarified. This issue is somewhat novel to me. I am not concerned with how, when or how many times they met. I am concerned with whether or not this submission is representative, as the statement in the preface states:
This submission has been reviewed by the Legislation and Law Reform Committee and approved as a public statement of the National Family Law Section of the Canadian Bar Association.
I am just trying to understand clearly what Senator Jessiman's concern is. Has this submission been reviewed or has it not been reviewed by the Legislation and Law Reform Committee of the Canadian Bar Association?
Ms Thomson: This submission and others on this subject which have gone before it have been reviewed by the Legislation and Law Reform Committee.
Senator Cools: May we take your word for it that this has been reviewed?
Ms Thomson: Yes.
Senator Cools: Very good. Has it been approved?
Ms Thomson: It has been approved in accordance with the procedures set out in our by-laws, yes.
Ms Jennifer Cooper, Q.C., Chairman, Guidelines Implementation Committee, Family Law Section: Honourable senators, I have a brief presentation and I will then be available for questions.
The National Family Law Section has been working on this issue since 1991. This is actually the fifth submission that we have prepared. The Family Law Section was and remains supportive of the guidelines. Since they have been implemented, we have had some bumps along the road, but generally speaking we are supportive of them.
As you may be aware, the government has responded to some requests for changes. There were changes made to the regulations in December of 1997. Those were somewhat minor and technical in nature and it is our view that further changes are required.
Most of our eight recommendations are technical in nature. Through our experience as family lawyers, we have found that certain phrases used in the legislation, or certain procedures, might be improved.
We are scrutinizing the various processes the government has put in place to see whether they effectively monitor the need for change. Again, this committee should be aware that there is a federal-provincial-territorial working group in place. There is also an advisory committee in place and the Bar Association has representatives on that committee. Also, at the staff level there is a child support team within the government. Those people, we hope, are working on further amendments.
There are two recommendations which I should like to bring to your attention that are somewhat more technical in nature. The first is recommendation 8 found at page 8 of our brief. We recommend that the federal, provincial and territorial governments take immediate steps to improve access to and increase funding for legal aid.
It does not really matter how good law is if people cannot afford to access it. One reason we have not seen a deluge of variation applications may be that lawyers are able, at the level of their offices, to resolve, settle and negotiate with their clients and do not necessarily need to access the court. However, we are concerned that another reason may be the steady erosion of legal aid in this country.
The second recommendation which may be viewed as controversial is a position we took in our previous brief and that we continue to take. We are not comfortable with the section of the guidelines which allows a departure from the guideline amount when the spouse exercises a right of access or has physical custody of a child for not less than 40 per cent of the time. Our recommendation dealing with that is contained at page 3 of the brief. We recommend a test of whether the custody is substantially equally shared.
Our concern is not with access but with whether true co-parenting is exercised. We recommend that the wording be restored to the wording in the original bill. That is consistent with our past submissions to this committee.
Those are the two recommendations I wish to highlight. I am prepared to take questions on those or any other issues.
The Chairman: Last week we had a discussion about a recommendation that Ms Poitras made to the effect that provincial enforcement agencies should have access to Revenue Canada records. I undertook at that time to canvass all future witnesses on this point.
What is your position on that?
Ms Cooper: The Canadian Bar Association does not have a position on that subject, to my knowledge. You will appreciate that I am here in my representative capacity. My personal opinion as a family lawyer is that I would support any measures that would enhance enforcement. This has certainly been a difficult issue for many clients. Again, what good is an order of a court if it is not fully enforceable?
The Chairman: The Canadian Bar Association must have a view as to the privacy of income tax records and matters of that nature.
Ms Cooper: We would be very pleased to provide a written response on this subject if this is of concern. We apologize for not realizing that in advance.
The Chairman: We would appreciate that. Thank you.
Senator Jessiman: Ms Cooper, you are likely aware that it was the Senate that was able to convince the government that there should be some recognition of a non-custodial parent who spends time with his children. You mention co-parenting. Would you explain to us what you mean by "co-parenting"?
Ms Cooper: By co-parenting we mean a parent who is more than just a visitor. It is someone who is involved in the fabric of the lives of the children, and that has financial spin-offs in terms of costs that are necessarily undertaken as a result.
Senator Jessiman: Would you not agree that you could have co-parenting that would be something less than 50-50?
Ms Cooper: Yes, senator, you are quite right about that in the sense that people sometimes do share decision-making, but they are not necessarily involved in the fabric of the children's lives.
Senator Jessiman: Why is 50-50 such a magic number? Why could it not be 48-52?
Ms Cooper: We are not actually recommending a number. We see the present number of 40 per cent as problematic. People tend to work toward a number. A phrase such as "substantially equally shared" would allow the court the discretion that we feel it needs to recognize a true co-parenting and sharing arrangement.
Senator Jessiman: I would suggest the number could go down as low as 25 per cent if it were true co-parenting.
Is your concern that because 40 per cent has been identified we will have more litigation?
Ms Cooper: We are very concerned about that, yes. It is, of course, very early, since there have only been seven or eight reported decisions that we know of on the shared parenting section. Our experience in our offices is that non-custodial parents are asking, "Do I have to pay this amount? What are the loopholes? Spell them out for me."
We must advise them that if they litigate and are able to persuade the court that they should have the children sleep overnight on the Thursday night, rather than just having them for a Thursday evening visit, that will give them more hours toward their 40 per cent, the objective being to reduce their overall maintenance obligation.
Senator Jessiman: Why not look at it from the other point of view? Is that not encouraging the non-custodial parent to work toward the goal we are talking about?
I know a person who, prior to these guidelines, was contemplating divorce. He has now been divorced. He tells me that for three days and four nights of the week he looks after the children, and that works out to a little over 40 per cent, which he thinks is fair. I think it is fair too. Do you think it is unfair?
Ms Cooper: I guess if they have arrived at a consensus, it is a fair solution.
Senator Jessiman: It is working.
Do you know Philip Epstein?
Ms Cooper: I know who he is.
Senator Jessiman: He was an advisor to the Department of Justice.
Ms Cooper: Yes. I have worked with him a bit.
Senator Jessiman: He appeared before us and said:
The second area that the guidelines covers in which there is discretion is the area of shared parenting, which took up much of the time of this committee last time.
I know, because I was part of that study.
He went on:
It was thought that this would lead to a great deal of litigation, and, surprisingly, for the moment, it has not. This is the section that provides that where the non-custodial parent has the child for 40 per cent of the time or more, there can be some variation from the table amounts.
He said that there should be some clarification, and I agree, as I think you would, in that 40 per cent or 30 per cent, or whatever the magic figure should be, to give recognition to the other parent if it is actual co-parenting. I think you are suggesting that not only is it ambiguous and difficult, it is unfair. You are saying they must be substantially equal. Circumstances may not allow that, but that is an encouragement for a non-custodial parent trying to work toward seeing his children more. It would save him some money, but he would only be saving money to pay for his children.
You even give examples here of co-parenting that is less than 50 per cent. In your argument, you mentioned a person who has access Thursday to Sunday, but you could limit that to Friday to Sunday, if it were true co-parenting, and I suggest they should get some recognition.
Ms Cooper: No.
Senator Jessiman: Why? It is co-parenting.
Ms Cooper: I have some difficulty with that label. We all attach different meanings to different labels. A parent who has very little time with the children and is incurring very little expense in respect of that child might nonetheless have an order of joint custody and be participating in certain decisions pertaining to the children; i.e., what school they go to, what medical treatments they receive. Yet the cost issues, which is what we are really speaking about, are not being addressed in that kind of a scenario.
I disagree, and I may say the section disagrees, with moving the percentage down to 30 or 25 per cent. We would argue that there is an expectation built into these guidelines that non-custodial parents, most often "he", will spend some money on these children; will take them out and feed them and so on. That is part of the expectation.
The guidelines were not developed so that there would be zero contact. The Canadian norm is to have some contact, and hopefully a reasonably good amount of contact. It is only when that becomes substantially equal that the court should use its discretion. We like the fact that the guideline amount is not manditorily cut down. It is discretion.
There is a reported case in which the court said that although the father had the children half the time, he was living with his parents and did not seem to be incurring any great expenses, and so ruled that he would pay the guideline amount. That is the kind of discretion that works sometimes. You must look at the facts of the case.
Senator Jessiman: You and I will disagree.
Ms Cooper: We disagree.
Senator Maheu: I was happy to hear some of your comments. I have been lobbied by a group from the West with regard to incomes in the $150,000 range. Are you referring to joint incomes when you talk in your brief about $150,000 and the possibility of a judge providing a written decision?
Ms Cooper: When the guidelines talk about $150,000, they are talking about the payor spouse alone earning at least $150,000. They give the court discretion to vary and order less or more if the person has that much money.
Senator Maheu: I am trying to determine what purpose written reasons would serve if the judge is not obliged to take into consideration the $90,000 or $100,000 that the spouse is earning when he allocates the support payments for the payor who is earning $150,000.
Ms Cooper: Remember, this is one area in which the court has discretion. We want to track judgments so that we can learn when courts will exercise their discretion and what kind of factors they will take into account in varying the table amount. As the case law develops, we will be guided on how to advise clients.
Senator Maheu: In your opinion, are there times when the judge will indeed take into consideration the $100,000 being earned by the spouse?
Ms Cooper: You are raising a controversial issue. At first blush, our guidelines do not consider what the recipient spouse earns. However, we do look at that if undue hardship is claimed. If the payor says that he or she cannot afford to pay, we look at the standard of living of each household. However, at the start we say that all payors who earn $200,000 pay the same amount.
Do you wish me to repeat the reasoning for this?
Senator Maheu: No.
Ms Cooper: That has probably been explained to you before.
Senator LeBreton: Thank you for appearing. When representatives of an organization present a paper under its name, it is obvious that that paper is sanctioned by the organization. I cannot imagine anyone not representing the group they came before us to represent. As I listened to the debate this morning I thought that perhaps everyone had taken their Suzanne Tremblay/Don Cherry tonic this morning -- anger tonic. My granddaughter would say, "Chill out, Granny."
With regard to your position on the guidelines, you recommend that data be independently collected and analyzed. Who did you have in mind to conduct this independent collection; a body of the Canadian Bar Association or some other body?
Ms Cooper: We do not have the funding to do this, so I suppose we are looking to the federal government to initiate it. Perhaps representatives of the government will appear before you and you can ask them more about this. My understanding is that the government is looking at data collection, research and so on.
It is important to note that our support of these guidelines is contingent upon these objectives being met, so we really want to know whether they are being met and whether we are seeing consistency, not standards of living declining in custodial parents' homes and so on, so we can ensure that children are being treated well.
Senator LeBreton: Some people would feel comforted, I think, if it were an arm's length group rather than a group attached directly to the government or the Department of Justice. It could be the Canadian Bar Association. Having made the recommendation, I wondered whether you had given any thought to some other body doing this.
Ms Cooper: We can certainly follow up with a recommendation in that regard if that is something you wish to consider further in your deliberations. It is a key recommendation.
Senator LeBreton: There appears to be a lack of clarity between the various jurisdictions.
The Chairman asked about access to Revenue Canada information on people's income. As I said to a previous witness, I have a problem with accessing people's income tax information, other than having them turn it over voluntarily. I do not know that it would stand a charter test or whether it is an infringement of the privacy laws to have some outside body independently access Revenue Canada documents. Surely that should be resolved between the parties to a dispute. I would be strongly opposed to that.
Ms Cooper: In my personal experience, most people have no problem providing their tax returns. It is only a problem with incorrigible, difficult people.
Senator LeBreton: I wish to talk for a moment about the issue of shared custody and the 40 per cent threshold. You asked a very good question on page 4 of your brief about how this situation should be addressed. There seems to be a lot of debate on the issue of 40 per cent and shared custody.
Has any work been done by the Canadian Bar Association to determine what constitutes shared custody? Is it based on the time the child is awake in the residence of either parent? They are obviously at school or in bed for a certain amount of time. Has anyone tried to figure out what constitutes shared custody or the 40 per cent threshold?
Ms Cooper: You will be very excited to see our brief on custody and access which will be our next presentation. It will deal squarely with some of those issues.
Case law has already been developed in an effort to interpret who gets to claim the time the children are away at camp or away at school. Whose time is that? Are we talking about waking hours? Judges are starting to look at it.
Again, this is an example of litigation coming out of this issue, which is unfortunate for the children because it is conflict. This whole area will be looked at in a broader way.
Are you on the joint committee, senator?
Senator LeBreton: I am not, but Senator Cohen is a member of the joint committee.
Ms Cooper: We will have a thorough analysis of what constitutes joint custody and co-parenting.
Senator LeBreton: Has there been any data gathered yet on the overall impact these changes have had on children? Although in a perfect world people would not take on new responsibilities until they had discharged their old ones, that is totally unrealistic because people form new partnerships and remarry.
Has a subgroup of your organization tried to assess the impact? Will this make things better for children in the long run? At this point in time, are they suffering at all, or has their lot in life improved? Do you have any data on that?
Ms Cooper: Your last question brings you back to your first one. We are recommending that such data be collected. We are interested in knowing the following: Have these guidelines met their stated objectives; are maintenance awards more predictable; is settlement being achieved without the emotional and financial cost of litigation? That is precisely one of the things that needs to be measured -- the impact on children.
Senator LeBreton: The children tend to get lost in the process.
Senator Cools: This is a new thing -- the children. How are you measuring the impact on children?
Ms Cooper: As an organization, we are not measuring it in an evaluative sense. Our first recommendation is that independent and arm's length research be conducted.
Senator Forest: I wanted to ask about the impact on children, because that is really what it is all about.
I should like to reiterate what has already been said about concerns with respect to the privacy of individuals when their income tax information is opened up to third parties. I understand and appreciate the difficulties in getting information, but this poses a problem for me with respect to the Charter of Rights.
You said that you expected a deluge of material. Do you take a measure of comfort from the suggestion that things are going well, or is it perhaps, as you said, that people are unable to access the courts due to financial and other reasons?
Ms Cooper: I take a measure of comfort from that. Remember, the court is like the tip of an iceberg. Most of the real action happens below the water in lawyers' offices and around kitchen tables.
I remember when the marital property legislation was instituted in Canada almost 20 years ago. There was a lot of confusion about the case law and what it meant, but that confusion has settled down now. Most people can sit around their kitchen table and discuss these issues. They know the law is 50-50 and they sort things out. They are able to divide their things. The odd case will be litigated.
The hope is that eventually some of these little technical problems will be worked out and some phrases will be interpreted so that people will know what is what. We hope they will be able to sit around the kitchen table, perhaps with their lawyers, and resolve these issues without going through a great expense emotionally and financially.
Senator Forest: One of our previous witnesses expressed the concern that at income tax time there will be some surprises; that people will not have recognized the impact. We may hear more at that stage of the game.
Ms Cooper: On the tax issue?
Senator Forest: Yes. We may be waiting with bated breath for that.
We spent a lot of time in this committee previously going through these guidelines on the hardship provision, wondering how the provision could be evaluated. Do you have a sense of how difficult it has been to interpret that hardship clause?
Ms Cooper: I will give you my own experience as a practitioner working with a group of other family lawyers. As well, I participate in this section at my local level in Manitoba, and we talk about these things.
In Manitoba, judges are not all that enthusiastic about the undue hardship provision. They are not enthusiastic about moving away from the guideline amount. They are not impressed with someone saying that they have a lot of debt and cannot afford to pay maintenance, which is perhaps as it should be. This is good because it provides a little more certainty as to what we can accomplish here.
There have been some cases of undue hardship.
Senator Cohen: I support the idea of data being collected. We are finding that there is little research on custody and access for us to go back to in order to make comparisons with what we are doing today. I am interested in whether the guidelines have resulted in fewer children and their caregivers living in poverty. In other words, has it helped in any way? I am hoping that we will see that information come forward.
In your experience, do the public, lawyers and judges accept the principle that the income of the custodial parent is not normally to be considered when assessing the support obligations of the non-custodial parent?
Ms Cooper: I will speak as an individual again. There was a lot of excitement about that when the guidelines were coming in. People could hardly believe it. However, that excitement seems to have died down.
From a lawyer's perspective, there is enough to worry about and consider in ensuring we are interpreting the guidelines. No, it does not seem to trouble people much at all. It has not been the issue that you would think it would have been.
Half of my clients are men and half are women. It is rare that the men say, "How can that be?" We just go to the table and say, "Here it is. This is what we will pay, plus some add-ons." They do not say, "But she is working." That has not occurred yet.
Senator Cohen: Although you may be addressing enforcement provisions in the brief you will be presenting to us later, I am wondering about the withholding of passports and licences. Are there additional enforcement measures that could be considered or devised when there is a denial of access? Usually, it is associated with money. That is to say, non-custodial parents are told, "If you do not pay, you cannot see your child." We are receiving a lot of letters which address that situation.
Can you suggest anything in the enforcement area that you have seen to be successful?
Ms Cooper: Enforcement of access?
Senator Cohen: Yes.
Ms Cooper: This is completely outside what we are doing today, but I would love to chat with you about it. We ran an access enforcement program in Manitoba, unsuccessfully. I would be pleased to speak to you off the record later.
Senator Cools: Everyone always says that access is a difficult subject matter. As the former judge who appeared before us on Bill C-41 was leaving the committee, he spoke about some of the cantankerous individuals and the intractable nature of access. Hopefully, we will get at some of that in our other committee.
Could you give me a list of the case law on the subject matter so far in Manitoba? Have you been tracking the cases?
Ms Cooper: I have a pretty complete list, yes.
Senator Cools: Could you share that with the committee?
Ms Cooper: The Department of Justice Web Site lists every single case, does it not?
Senator Cools: If you have a list of the cases, we would be happy to have a copy. The clerk will copy it for us.
Ms Cooper: I will either give you a list or the place you can find it, because my list is about one month old. If you want it up to date, there is a Web Site with that information.
Senator Cools: I can take it up to a month previous and then I can find the next month for myself.
I find what you are saying quite interesting. It is quite a departure from previous positions that we have heard. Basically, you are saying that the court should not exercise this discretion where there is not a true co-parenting arrangement. You also talk about true co-parenting arrangements.
My understanding was that the government was urged to move to these guidelines, which we protested about quite strongly because this committee did not like the thought that subordinated legislation was being used basically to give judges instructions. We were told, universally, "No. Judges must not have this discretion. We need uniform guidelines, coast to coast." I am hearing you depart from that view now. I am hearing you say that you want judges to have more discretion again.
Ms Cooper: I am not sure. I do not think so. You are saying now that you want this judge to tie access to support -- and we were always told the two could not be tied -- by determining true co-parenting. That can only be determined by pure discretion.
Ms Cooper: The position of the section and of the Canadian Bar Association is supportive of guidelines for the simple fact that they remove discretion and create an objective system. Within that system, there are areas of judicial discretion. One of those areas is this so-called 40 per cent rule. Within that context, our recommendation is -- and you can call it co-parenting but we are not talking about that -- a substantially equal sharing. In that kind of context we are saying, "Let there be judicial discretion because it does have an impact financially."
Senator Cools: I see it as a shift, but that is life. That is quite all right.
Mr. Epstein told us some weeks ago that he and most members of the bar in Ontario sort of regret that the original taxing scheme had been altered and that he would prefer the old taxing scheme to be brought back. Do you have an opinion on that?
Ms Cooper: I do not have an official opinion but I certainly have a personal one. I think sophisticated lawyers like Mr. Epstein, who are dealing with sophisticated clients, used the old system to their advantage in appropriate cases, particularly where there was a high disparity of income between the payor and recipient spouse. I did, too. That bit of tax planning has been removed.
Senator Cools: You must admit that this involves a major tax grab that amounts to millions of dollars. We were opposed to it, but it is fascinating how things change. Things are far more mercurial than we think.
The Chairman: The witness has not quite taken a position against it. She simply said that it had been in the best interest of her clients.
Ms Cooper: Yes, the wealthier ones.
Senator Cools: I believe Mr. Epstein said that the wealthier ones could recover but the poorer ones were suffering more.
You stated that across the country members are reporting that some clients are now motivated to spend as many hours as they can with the child so as to reduce the amount of support. I would say that as many do that as those who try to have child support taken as spousal support.
I would submit that in life we have deviants on all sides of the issue. If 10 per cent of the population are deviants, it is 10 per cent by whatever gender. Do you have a view on the use of child support as spousal support?
Ms Cooper: I would just as soon not comment on that today. I do not think of my clients as deviant -- even 10 per cent. I do not think of it that way. I do not think that child support gives you such a high quantum that it is like spousal support. It costs a lot to raise children and the amounts provided in the tables are probably pretty fair.
Senator Cools: I was not doubting that. I was talking about the phenomenon of using child support as spousal support. This issue will return to us sooner than we think, because spousal support still enjoys tax benefits. This issue will be coming at us in a different form. I was trying to see if I could I get an advance view of what will be coming before us in the near future. There is no doubt that, the way this matter is structured, child support is becoming spousal support. We will revisit that issue later.
The Chairman: We are running late, so we must leave it at that.
I wish to thank Ms Cooper and Ms Thomson for coming here this morning.
I made note of some areas in respect of which you have undertaken to provide an elaboration of your views, or more information. One area is the question of access to Revenue Canada data. Another area was the Manitoba case law issue brought up by Senator Cools. There was also the matter with respect to your first recommendation about research data being independently collected. You undertook to provide some further views on that to the committee. The clerk will be glad to hear from you on those matters.
Our next witness is Lynn Reierson, who is a family law practitioner in Dartmouth. Ms Reierson's brief has been circulated to you. I understand that she does not intend to read it into the record but will comment on it and then we will open the floor for questions.
Please proceed, Ms Reierson.
Ms Lynn Reierson, Family Law Practitioner: Mr. Chairman, I will comment on some of the issues which were raised this morning and we can go from there.
It is important to note that these guidelines are a hybrid guideline between judicial discretion and a strict guideline. During my original involvement early in my career, there was a real concern about having a strict guideline. Therefore, I am happy that it is a hybrid in some areas that you people are concerned about in particular.
I will go directly to the shared custody provisions, since that seems to be a real concern. This is an area in which it is very important that there is discretion, and I am glad that the guidelines provide discretion in this respect. I do not like any set percentage. I think that this committee has fallen into the same problem that the community at large has fallen into; that is, getting stuck on the amount of time. We are fixated on how many hours are spent at school, at camp, sleeping and awake. To me, that is not the point and that is why there must be discretion.
The amount of time a child spends sleeping in one parent's house or another is not irrelevant. It is one factor. In my view, it is not a real big factor, but it is a factor. The actual time a parent spends with a child is a factor which is more important, frankly, than where they sleep. Decision making is part of shared custody, in my view, but that by itself does not, nor should it, in my view, determine who pays what amount of the children's expenses.
When trying to connect the amount of time a person spends with their children to the amount of money they pay, the court needs to look at -- and these guidelines give them the means to do so -- things like: Who provides pizza money in the morning because it happens to be pizza day at school? Who buys the raffle tickets for the ball team? Who is the coach of the soccer team and, therefore, takes them all to McDonald's after the soccer game when they won the championship? Who takes them to swimming lessons and buys the treat on their way home? Who is having the friend over for the afternoon, taking them to Discovery Centre and spending $5 apiece for the three kids and their friends? Who is going shopping for the sneakers; not the $150 Nikes but the sneakers they must have for day care? Who is buying the school supplies for the project that is due on Monday?
These are the kinds of things that affect whether shared parenting should influence the amount of support. These are the things that courts have, for years under the old system, looked at painstakingly in inflated financial statements, and which they now have discretion to deal with under the guidelines, as they should. The problem with putting a percentage in the guideline is that is all people want to look at. The courts want to look at the easiest way out, frankly, and so do the lawyers. So they look at 40 per cent and say, "Where is the kid sleeping," instead of looking at the important pieces about the money.
The second concern I have is the reverse of what everyone is talking about. Not very many people come into my office saying that they want 40 per cent of the time with their kids so that they do not have to pay support. That is not a big problem. The problem is that, unless both parents have significant means, there is usually not enough money to provide two proper homes for the children. Whether people like the gender biases or not, there is a reality. More often than not, there is an emotional parent and, more often than not, that emotional parent is still the mother. That has not really changed. The reality of that is that children need to spend at least half their time with their emotional parent.
If their emotional parent makes $20,000 a year, that emotional parent cannot provide a home for the children without child support. Even if the other parent has them half the time, they cannot provide a home on $20,000 a year. This is not a problem if they both earn $50,000 plus, because the basics can be provided by anyone earning $50,000, or somewhat less, in this country. It becomes a non-issue at that level. It then becomes an issue of power about who has time and who gets to make decisions. At the $50,000, $40,000, or $30,000 level, it frankly does not matter whether both parents have the children 50 per cent of the time. What matters is whether or not the emotional parent, who earns $20,000, needs child support in order to provide the basics.
It is the reverse of what I hear people saying. We need to be concerned and the court needs discretion. It needs discretion to say that, even though each parent has the child 50 per cent of the time, child support needs to be paid from one parent to the other to ensure that the children's needs are addressed properly at a basic level in both households.
There is also the problem of defining 40 per cent. You can hear a lot about other problems from other witnesses, but I keep hearing people missing the point that the basics are needed in both households even when sharing time 50-50. Those are my comments on shared custody.
I run a family law firm with seven lawyers, which is a big firm in Nova Scotia. A lot of information circulates among the lawyers. I get stacks of additional child support guideline decisions. The package of information I have here came from a provincial Canadian Bar Association meeting held January 30, 1998. It includes some of the papers presented and some cases, in no particular order. You are welcome to have it.
I picked up this document on my way out the door to the airport yesterday. It is dated February 23, 1998 and is an internal memo from our most junior lawyer to the other lawyers in our firm. It refers to case law summary on post-secondary education costs. I will leave that with you as well.
With respect to post-secondary education costs, I have heard all kinds of complaints about how people in intact families do not have to pay for this so why should separated families. I have some comments on that topic, if you are interested.
Senator Cohen: I want to compliment you and your firm for implementing what I see as a positive parenting education program. That is very innovative.
Ms Reierson: We were the first in Canada. About a year ago, Dartmouth family court began a program, thanks to people like Jim Williams. However, that program is only available to people in that court. We take a lot of credit for our program.
Senator Cohen: I will bring this up in our custody and access committee.
Ms Reierson: It works in a law firm. It takes a while to convince other lawyers that they should send their clients; that, as we are already in a conflict, we will not steal their clients.
Senator Cohen: Can you elaborate on why it works?
Ms Reierson: We have access to many people who do not think they need it. When a client comes to see me, mother or father -- and I am pretty familiar with both sides of that routine -- I do everything but insist that they take the positive parenting program. There is a nominal fee of $30 for the material. There is no fee back to the firm. We pay the facilitator.
I ask them to take it so that I can tell the judge, if the matter is ever litigated, that they completed the course. I also ask permission to offer the course to the spouse. If they refuse, I point that out to the court. You would be amazed how many people end up going through the program with that kind of pressure.
Senator Cohen: Regarding section 7 on the add-ons, which items on the list are creating problems in your practice? Is it too early to suggest any changes that you can foresee in section 7 of the guidelines?
Ms Reierson: The areas that do not create problems are childcare expenses, with the exception that many lawyers and judges do not know how to work the tax system in Canada yet. That was a problem with the old tax system, too. I hope they will learn.
Medical and dental insurance premiums are not a problem, nor are health-related expenses. I anticipate there will be a few cases where some alternative therapies which seemed to be a good idea in the past are not accepted by parents any longer because of cost.
Extraordinary expenses for primary or secondary school education are not a big problem in Nova Scotia because we do not have a high percentage of people paying for private school and those kinds of things and, if they do, they just continue to pay. It has not been an area of controversy as it is in Ontario.
Post-secondary education expenses are a bit of a problem but not more than they have been in the past. Extracurricular activities can be a problem because the term "extraordinary" makes it uncertain as to what exactly is included.
Senator Jessiman: You say that the shared parenting of 40 per cent would be difficult to ascertain. We all agree it would be difficult. Would you not also agree that "substantially equal" would be difficult to work out as well?
Ms Reierson: No, I do not. "Substantially equal" is not my term but I did hear it here this morning. I do not know what language is exactly right, and "equal" might be the wrong word. I am not aiming for 50 per cent instead of 40 per cent. I am aiming for broadening the discretion to include certain activities.
Senator Jessiman: You are talking about whatever is justified under the circumstances.
Ms Reierson: Yes. "Substantially" is a good word. "Equal" might not be. I disagree with you, with respect. The term does not create problems for interpretation. Judges in family law are used to interpreting words like "substantially fair" or "means and needs" and that should continue on this issue.
Senator Jessiman: "Substantially fair" might be a better term.
Ms Reierson: Yes, I would prefer that language to a percentage or equality.
Senator Jessiman: You said there is still a gender bias. I assume you mean that the judges still lean toward one parent.
Ms Reierson: No. I do a lot of father custody cases in my practice. I work in Halifax so there are not "a lot" relative to the rest of the country. I do not find a substantial gender bias in the courts on custody and access cases. When I started practising about 10 years ago, I noticed a gender bias, frankly, against me as a female lawyer and against men who wanted custody.
Today those gender biases are dissipating. That is due in part to the excellent members of the Nova Scotia Supreme Court bench. There have been some new appointees who do not come with those kinds of biases.
I said the reality in this country is that, more often than not -- more than half the time, and I do not have a number -- the emotional parent is still the mother. She is still either at home, spending more time, or expected to do more of the primary care. That is the way it is. That is what I said.
Senator Jessiman: I think the record will show it, but that is fine.
Are you familiar with the situation in other jurisdictions around the world, such as the United Kingdom, New Zealand, Australia, Washington State, or California?
Ms Reierson: I am familiar with some of the jurisdictions, for example Washington State, which has a presumption of joint custody. I am not intimately familiar with the legislation in each of those jurisdictions.
Senator Jessiman: Did you know that two or three of them legislate that there must not be a gender bias?
Ms Reierson: Yes.I know that California and Washington State have experimented with legislation regarding custody and access that included things like presumptions of joint custody and baskets of parenting rights and responsibilities which were divided up according to the parents' particular skills rather than giving all of them to one or the other.
Senator Jessiman: In my day, very few women worked so, naturally, when there was a separation, the woman was the caregiver. However, as we know, in many families today both spouses work. Are you saying that in some of the cases in which you act, male spouses are getting custody?
Ms Reierson: Certainly, they are. Men in Nova Scotia who want custody often come to me because I am the one who does that.
Senator Forest: I am really pleased with the emphasis you have placed on the well-being of children. The implementation of the positive parenting program in your firm is an example of that.
I believe in post-secondary education and I would like you to elaborate on what the problems are, whether they are more than expected and what could be done to alleviate them.
Ms Reierson: First, the problems with post-secondary education are very much like the problems with determining the payor spouse's income. They did not come along with the guidelines. They have existed since child support has been payable. The guidelines did not create those problems, nor did they solve them, and nor do they have any mechanism for solving them.
Post-secondary education expenses are not that difficult to define because it is an area of judicial discretion and each family is different. I grew up in a family where no one ever asked what I was going to be, only where I was going to go to university. It was just assumed, from the time that I and my three brothers and sisters were born, that we would go to university. For my parents to have said later, "Now we are separated so we are not paying for it," might have been a little incongruous. I grew up in a town of 800 people. Very few people from there ever went to university; most did not even consider it.
My point is that the courts have for many years looked at the history of the family, the expectations of the parents, whether the parents have a university education, and whether they could obtain that education locally or they had to travel, which would affect the cost. All of those factors remain.
From my reading of this memo which I will leave with the committee, it looks as though courts are deciding whether the payor should provide support for university based on the particular circumstances of the family.
Senator Forest: So it is an individual decision.
Ms Reierson: It really is, and in my view it needs to stay that way. Under these guidelines, it is very much the discretion of the court to look at the circumstances of the family.
Senator Forest: Certainly some case law has decided the basis for that before these guidelines ever came in.
Ms Reierson: Yes. The guidelines have not changed that much at all.
Senator Cools:My question is on the issue of child support for children who are at or over the age of majority, and deals roughly with post-secondary or university education. My understanding is that conflict does not usually arise between parents as to whether children of university age should be given financial assistance. My understanding is that the conflict usually arises as to who should be the recipient of the money. For example, hosts of non-custodial parents have told me that they pay $1,000 or $1200 a month and that the child, who may be half way across the country at university, gets very little of it.
Bruce Haines, a lawyer in Toronto, wrote us a very profound letter on the subject. He pointed out that the only reason child support payments for age-of-majority children used to be paid to the custodial parent was the old tax scheme, and that, with the removal or alteration of the tax scheme, there is no longer any reason to be paying those monies to the custodial parent. He said that the alteration of the tax scheme was all the more reason the money should be paid to the age-of-majority child.
What are your views on that?
Ms Reierson: That is a good point. These guidelines are very helpful in dealing with post-secondary education expenses. Mr. Haines is correct. The reason it was paid previously to the custodial parent was the tax scheme. Now we have a guideline which breaks it into two pieces. First, should the custodial parent continue to receive some money by virtue of the child still living at home -- if they do -- or being home part of the year -- if they are? Separately from that, should the payor parent pay an additional amount for post-secondary education expenses?
From reading this memo, I learned that the courts are understanding that distinction. They are making a specific decision about what, if anything, the custodial parent should receive for maintaining a house. They are deciding separately on post-secondary education expenses and ordering those expenses to be paid directly to the child or to the institution. In my view, that is exactly how it should be.
The Chairman: I am sorry. Our friends have caucus at 11:45 so there will not be time for a second round.
Senator Jessiman: That is too bad because I have an important question.
The Chairman: I am sorry. We have just run out of the time. However, senator, if you would like to mention the subject matter, perhaps Ms Reierson could be persuaded to send us a written communication.
Senator Jessiman: I would like to discuss the question of how the guidelines have changed what the courts have already ruled on with respect to age of majority. The Supreme Court of Canada ruled in Jackson v. Jackson in 1973 that once the children reach the age of majority, the court should take into account the circumstances of the particular case and the financial resources of both parents. I think we all agree. You have said that yourself. The courts have also ruled that the onus to determine whether the child is still a child of the marriage is for the child or for the custodial parent asking for the support. The onus is on that person, not on the person who is going to pay.
Ms Reierson: The onus is on the person wanting to change the existing order.
Senator Jessiman: Yes, but once they are at majority, there are three circumstances that must be considered: disability, sickness, or something else; and that "something else" has been interpreted by the courts to mean higher education. That is one of the extra things. The onus is on that person. You might give us a written response. I am going to the legislative committee that looks at statutes. I think the guidelines contain sections that reverse that.
Ms Reierson: The onus should be on the person wanting to change the order. If the custodial parent wants to increase the amount for post-secondary education, he or she should have to make the application. If the non-custodial parent wants to reduce the amount paid, he or she should make the application.
The Chairman: I would ask you to consider Senator Jessiman's point, then. He has made it several times here and I referred to it privately with you before the meeting. There is a constitutional problem here, in his view, in that the guidelines go beyond or reverse the intent of the legislation. You may want to take that into consideration.
Thank you, Ms Reierson.
Honourable senators, before we adjourn, Senator Forest has a matter to raise.
Senator Forest: Mr. Chairman, as you know, our Deputy Chairman, Senator Bosa, has been ill for some time and it is not known when he will be able to return to his duties. I should like to bring to the attention of the Chair that I think we require an acting seputy chairman.
The Chairman: Thank you, senator.
Is it agreed that we should proceed to the election of an acting deputy chairman?
Hon. Senators: Yes.
The Chairman: Is there a proposal from your side, Senator Forest?
Senator Forest: I would like to propose the name of Senator Kenny for Acting Deputy Chairman.
The Chairman: Is that agreed?
Hon. Senators: Agreed.
The Chairman: Senator Kenny is our Acting Deputy Chairman.
Nothing personal, senator, but I hope your tenure will be short, because we all hope for the early return of our colleague, Senator Bosa.
The committee adjourned.