Proceedings of the Standing Senate Committee on
Social Affairs,
Science and Technology
Issue 7 - Evidence - March 24, 1998
OTTAWA, Tuesday, March 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: We have a quorum. Permit me to remind you that tomorrow afternoon at 3:30, this committee will be meeting here pursuant to our mandate to consider Bill S-8. We will be hearing from the Non-Smoker's Rights Association tomorrow afternoon as well as from the sponsor of Bill S-8, our former colleague the Honourable Stanley Haidasz, P.C.
Today we are meeting for the sixth time pursuant to our mandate to monitor the implementation and application of the Federal Child Support Guidelines. During the first segment, we will hear a witness from the National Association of Women and the Law and a witness from Support for Children: An Organization for Public Education, SCOPE.
The National Association of Women and the Law is a non-profit organization with a mandate to lobby for changes to laws and policies that will benefit Canadian women. NAWL speaks on behalf of a membership made up of lawyers, professors, students and activists throughout the country. Since its inception in 1974, NAWL has made hundreds of oral and written submissions to all levels of government on a wide variety of issues affecting Canadian women. NAWL has been active in the area of family law since its inception 20 years ago. Family law issues affecting women have always been recognized as fundamental, particularly in the economic well-being of women in Canada.
SCOPE is a non-profit organization of some 3,000 members that focuses on changing attitudes on the responsibilities of parents after separation. Please proceed, Ms Curtis.
The witnesses did not supply briefs in advance, but we now have copies of them.
Ms Carole Curtis, Family Lawyer, Member of Family Law Working Group, National Association of Women and the Law: I am a family law lawyer in Toronto and, as such, I have a particular interest in what is happening with the Child Support Guidelines. We submitted our brief about a week ago, and I apologize if the committee did not receive it. It is quite detailed and I will deal with the highlights this morning.
I will talk about the objectives of the guidelines, the structure of the guidelines, the definition of "income", "shared custody" and the implementation issues.
The objectives of the guidelines are set out in Section 1. NAWL is concerned that the objectives are missing what we call a "prime directive" which is that the guidelines should ensure a level of support which meets children's needs. That is not the same as what is in section 1(a) of the guidelines which is a fair-standard test.
The objectives were amended to include a test that NAWL had earlier articulated, which is the consistent treatment of spouses and children in similar circumstances. That is also an important test.
When I am explaining the guidelines to clients, over the year and a bit since their implementation, they have evolved into a double-barrelled structure. There is the base amount of support that is based on the table that is meant to change annually based on the payer's income. The payer is to make annual mandatory disclosure. Then there are the add-ons under section 7 which are to be shared proportionately in accordance with the income of the parties. That is also to change annually. That could be zero in any given family. That is to cover the expenses for the child that are not included in the base amount.
These guidelines are not simple, and they are not straightforward, notwithstanding what the government may have said at the time of their introduction. Unfortunately, a different message is being sent to Canadians. The determination of child support under the guidelines may in fact be more difficult than it was before the guidelines, particularly in this transition or shakedown period. It is wrong for Canadians to be led to believe that the determination of child support is not a legal problem or a legal issue. This is a legal issue with long-term consequences for parents and children, and professional advice is necessary in many cases. For example in every family where there is a self-employed payer, both legal and accounting advice are needed. I give you that example because that is, in part, a measure of how complicated this is.
I have recently received the workbook put out by the federal government on the guidelines. I urge the committee to obtain and read it. It is 200 pages in length and it is called Federal Child Support Guidelines: The Complete Workbook. There is a shorter version of this that is 50 pages long which I also read. Unfortunately, I do not have the name of that booklet. I found it confusing and I am an expert in this area. This is the contact that the average Canadian will have with this law reform initiative, either this booklet or the 50 page booklet that I found confusing.
Senator Cools: When was it put out?
Ms Curtis: November 1997. The shorter booklet is the information the average Canadian will have. Most of my clients would not read a 200 page workbook, and many of them would not understand it.
The add-ons are a separate problem. That is dealt with in section 7. In the guidelines, the add-ons are called "special or extraordinary" expenses, a description which is misleading and inaccurate. If you look at these categories carefully, you will see child care, school expenses, and it could include tutoring, for example. These are not extraordinary expenses for the average Canadian family, not even low-income or working-poor families. How many Canadian kids play hockey or soccer or take gymnastics or piano lessons?
There are three problems in this area. One is the characterization of these add-ons as extraordinary. They should be mandatory, not discretionary. Second, the courts are interpreting this section in many different ways. Some courts are finding that extracurricular activity should be included, and others are finding that they should only be paid for over and above the base amount if the child has, say, Olympic medal potential. That is a pretty broad range.
The Chairman: They all have, do they not?
Ms Curtis: Parents like to think that, but this particular judge did not think that was the case and, therefore, did not order the amount to be paid.
The third category that is a problem is post-secondary education. The coverage for that offered in these guidelines is a dramatic change from how we dealt with post-secondary education in the pre-guidelines era. Post-secondary education should be paid for. There is a long course of jurisprudence in the common law providing that children shall be supported through their university and college degrees. This should be available to children, just as it would have been had the family stayed together.
The test that NAWL is encouraging is: What were the reasonable expectations of the family prior to separation? Education is a value that Canadians respect, share and support. That should be reflected and preserved in our laws.
As was predicted, the definition of "income" continues to be a problem. The financial disclosure required to sort that out is also a problem. Using the income tax definition of "income" is a significant departure from the pre-guidelines definition. Income is not a simple calculation. Again, for self-employed people this determination requires accountants and lawyers.
Disclosure, which is necessary prior to settlement, is not happening as the guidelines had anticipated. This is still an area where payers and their lawyers can stonewall, and are stonewalling. It is being used as a tactic. I recognize that the guidelines contain sanctions, but they are not being strictly applied. This provision is not functioning as the federal government anticipated. That is critical to the functioning of the guidelines.
The definition of "shared custody", which is dealt with in section 9, is wrong for a variety of reasons. I would urge that the 40 per cent reference be deleted. It causes problems for three reasons. First, it is based on an assumption that custody arrangements are static -- they are structured once and adhered to for all time. Parents know that is not the case. Arrangements regarding children are fluid and changing and, depending on the children's age and the circumstances of the parents or child, needs may change dramatically.
Second, this section has actually promoted litigation, which I am sure was not the intention of the federal government. It has promoted litigation around who has custody, and what constitutes 40 per cent of the time. How do you calculate 40 per cent? Is it where the kid eat the meals? Is it overnights or school days? Too much litigation has arisen as a result of this provision.
Third, the test should be equal time and that should be measured by considering the child's time, not the adult's time.
The last item I want to touch on is implementation. Access to the courts continues to be a problem and an issue with respect to the guidelines. There has been no flood of applications to the courts to vary support. That is because there are no lawyers available for the majority of the people who cannot afford to hire their own lawyers. The cuts to family law Legal Aid across the country have devastated the programs generally. Legal Aid is almost non-existent, and there has been a dramatic rise of unrepresented parties in court.
What are the consequences of having more and more unrepresented parties in court? A system that was structured around parties with lawyers is unable to cope. Many parties ask me and other lawyers to do appeals because the trials were a disaster, for a variety of reasons.
The annual mandatory disclosure provision for payers is a great idea in principle, but it needs to be coupled with a simple administrative mechanism to get this information. Spouses do not want to have this kind of contact with each other, even though the provision of the information is necessary to facilitate the annual adjustments required under the base amount.
The table itself needs to be revised annually or at least every two years at the longest. A five-year timetable for review is way too long. These numbers were introduced in 1996 or 1995, and they are already stale.
Ms Judy Poulin, President, Support for Children: An Organization for Public Education (SCOPE): SCOPE is a non-profit group which is staffed by volunteers. We are all single parents who do not have the time to make submissions. I am speaking on behalf of our 3,000-plus members from across the country who are mostly working women, some with two jobs, who have custody of their children. They generally do not have time to get involved in these types of hearings. This is one of the reasons why SCOPE came to be.
Our main concern is that our members are telling us that they just cannot access the guidelines. All of our members had court orders before the new guidelines. Many of our members, after much hard work and soul searching, contributed to the original guidelines. Unfortunately, they are unable to access them because they simply do not have the money.
Senator Jessiman: Can you explain that?
Ms Poulin: They do not have the money to go to court to have their orders varied. That is what they must do to access the guidelines. In order to get a variation, they must have money to get a lawyer to have a variation.
The Chairman: Do let her complete her opening statement.
Senator Jessiman: You are not complaining about the guidelines themselves?
Ms Poulin: No. I am saying that they cannot access them and that is a major problem. We are recommending that money be made available, whether it be through Legal Aid or other means, to deal with this.We do not have all the answers. We raised this issue during the consultation period before the guidelines were put into place, and the federal government assured us that they were considering it. I feel very strongly that these guidelines were made for new orders, and the consideration for existing orders did not come into play. Something must be done about it.
The Chairman: Thank you very much, Ms Poulin.
Ms Curtis, as a practising lawyer, did you have a view or your organization have a view concerning the recommendation that was made to us some weeks ago to the effect that provincial enforcement agencies should have access to the income tax returns of parents?
Ms Curtis: Yes, I have a view and my organization has a view. Yes, they should.
Senator Jessiman: Ms Poulin, you are suggesting that those people with orders predating the introduction of the guidelines are paying under the old regime. Let us assume a figure of $300 was deductible for tax purposes and not included as income of the payer. It was calculated as income of the recipient. These people do not apply to court because they do not have the money to pay for legal assistance. Do those people have to go to court and prove that this $300 is not income?
Ms Poulin: For example, when I look at the tables, I am entitled to more money, but I would be happy simply not having to pay income tax on the money that I am getting now. I have approached my ex-husband three times with a form that Revenue Canada has made available. It is very simple. You fill it out. My amount will not change, but I will no longer have to pay tax. He will not sign it.
Senator Jessiman: Can he still deduct it?
Ms Poulin: Yes. Unless he signs this form to make the change, then I will still have to claim it. In order for me to submit this form, which is supposed to be a simple process, he has to sign it. He will not sign it. The only way to make that change is to go to court, and I cannot afford to do that. This is happening time and time again. I do not want to change the amount. I just do not want to pay tax.
Senator Jessiman: Payers can deduct it now under the old system. If they found they could no longer deduct it, some may want to change because, in effect, it will cost them double if they are in a particular tax bracket although they are paying the same amount.
Ms Poulin: If I do go to court I will most likely win. However, I cannot afford to go to court. I would need a lawyer, and a lawyer wants a $500 retainer.
Senator Jessiman: I am retiring June 5 and I am very knowledgeable.
Ms Poulin: The guidelines are not accessible.
Ms Curtis: It is important to note that they are not accessible because one impetus for this initiative on the part of the government was that it would allow Canadians to do this without the assistance of lawyers. Canadians could sit at their kitchen table and do this. That is the example they used over and over again. This 200-page system is not one for the kitchen table.
Senator Cools: My opinion was that the matter was enormously complicated and that we were being led down the garden path.
Ms Curtis: This is exactly what NAWL said a year ago when we appeared last time. We were of the opinion that this system was complicated. There has been no change in our position.
Senator Jessiman: No one would disagree with that. There are instances of people sitting down at the kitchen table and working out their problems without a lawyer. They want no advice from me. From what other witnesses have told us and what I have heard within our own office from people who are doing this work, these guidelines have helped to some extent. However, they do recoginize that the findings of the court have been inconsistent. I recognize that, eventually the law will be consistent. There is no question these guidelines are a positive step and, eventually, both parties will know where they are coming from.
Ms Curtis: The notion that it can be sorted out on appeal is a risky one, because few family law cases get to appeal courts. The average citizen cannot afford a lawyer, let alone afford to go to the Court of Appeal. The first case to go to the Court of Appeal in Ontario on the child support guidelines involved a Mr. Baker whose net worth is $78 million and whose income is $980,000 a year. That does not help my clients. It will not help us understand the law. It is of no precedent value at all with respect to the guidelines. Only 6 per cent of Canadians make over $150,000.
Senator Jessiman: We know what the common law and the courts have interpreted the section about post-secondary education. They have interpreted the word "other" to mean disabled, sick or other costs to include secondary education. You said you want separated parents to have the same obligation to their children as if they were still married. However, they do not sit down together and discuss these things as if they were married. You are saying there must be an obligation on the non-custodial parent to pay, even though he or she would not necessarily have that obligation if they were together. That is the problem of the non-custodial parent. The courts are upholding that obligation on the non-custodial parent.
It would seem logical that, if you are a married couple and you have some concern about the children pursuing higher education, you should divorce, and then you would have it made, because the courts would support you.
Ms Curtis: We are not disagreeing. The test we are proposing is: What were the reasonable expectations of the family prior to separation? If this was a family in which the child or children were expected to go to university, then that is the test that we think should be applied post-separation. Not every child in every circumstances should have university money available. Is it reasonable for this child, given what the family's expectations would have been for this child, to be supported through university?
Senator Cools: I do not think anyone would disagree that, where the means are available, obviously parents have an obligation to send their children to university or to assist them through university. Where the disagreement comes in is: Who should be the recipient of the dollar amounts? Should it be the adult child or even the institution?
Senator Jessiman: What is your view on that?
Ms Curtis: I do not have a view. That is fine, because the tax consequences have been taken out of the equation now. The father will not be able to deduct the money no matter to whom it is paid. Formerly, the Income Tax Act was structured in such a way that, if it was paid to the child, the father could not deduct it. Now that the tax consequence is out of the equation, I do not care to whom the money is paid, as long as the child is supported in circumstances where it was reasonable for that child to expect to go to university.
Senator Jessiman: We have heard complaints that, if the support is paid to the custodial parent, she can spend it on herself and not on the child.
Ms Curtis: This must be considered from the perspective of the child. That is all that matters on the university education issue.
Senator Cools: Ms Curtis, you support the principle that divorcing parents owe their children of university age assistance and, basically, it is not a matter for the courts to decide.
Ms Curtis: No. According to the law before the guidelines, children could be supported through post-secondary education where the family had the means and where it was reasonable to do so. That is the position we support.
Senator Jessiman: Do you agree that it is an obligation which should be shared by both the custodial and non-custodial parent?
Ms Curtis: Under this legislation it would be considered an add-on, which means it would be shared in proportion to the income of the parents, and would fluctuate annually in accordance with that information. It is an add-on under section 7, post-secondary education.
Senator Cohen: Ms Poulin, I was pleased to see your recommendation that extra funds be available for Legal Aid. Working as I do as an advocate in the area of poverty, I know it is a tragedy that women are put in a position where they cannot access lawyers because it is beyond their financial reach. I am hopeful that this committee will take that recommendation very seriously.
I also want to comment on the five-year review of the guidelines. This committee, when studying the original Bill C-41, went on record as saying that five years was too long and we wanted them revisited within two years. That was not changed.
Recently one of our witnesses suggested that add-ons should be restricted to three particular areas: child care, major medical expenses, and post-secondary education, and that the others, medical, dental, insurance premiums, school expenses and other extracurricular activities should be dropped. Our witness also suggested that the guideline amounts should be increased to reflect these changes. They claimed this would reduce the scope for disagreement between spouses. What comments do you have on that?
Ms Curtis: I do not know that we have a position on that. The categories in the legislation may not be perfect. They may require some tinkering, and maybe shortening them would be an improvement but, since this is what we are stuck with, we are looking for ways for them to be mandatory, not discretionary.
The problem is that the kitchen table agreements -- those are happening, and they were happening before the guidelines -- do not take add-ons into account. Generally, those people sit down and stare at the table. That is all they can do because this is confusing and the information is inaccessible to most people. It is even confusing to most lawyers. It is incorrect to think that everyone is getting the add-ons. If the add-ons were mandatory, it would be a lot fairer on a case-by-case basis. It would mean that families -- parents and children in similar circumstances -- would be treated similarly.
Senator Cools: That the add-ons should be mandatory is an extraordinary statement. Do you mean that the base amount should be more clearly defined? It would be most unusual to have expenses in the guidelines and then to say that add-ons are mandatory. We have heard testimony that the reason the add-ons are causing so much stress or strife and disagreement is that no one really knows what is truly included in the base amount. Perhaps you could clarify that for me. You simply cannot have a base amount which is mandatory, and have add-ons that are mandatory as well.
Ms Curtis: The recommendation that the add-ons be mandatory was made by us to this committee a year ago. The structure in the legislation is for two different streams. It is for the base amount in the table, varied annually based on the payer's income, and then the add-on stream. The add-on stream is shared in proportion by the parents, and that could be zero in many families. It could be $5,000 one year, and zero the next year, because these expenses change. The child could be in private school one year and not the next. Although the base amount would never be zero, the add-ons could clearly be zero at any given time.
Senator Cools: In many instances, the add-ons have the effect of defeating the very purpose of the guidelines which is "certainty". Now we can be certain that there is uncertainty.
Hearing your testimony today I think that some of these comments should have been made last year, because many of us predicted that these guidelines would do very little good.
If these guidelines are to give guidance as to amount, one cannot take away judicial discretion in the base amounts and then pour back out full judicial discretion in the add-ons. It sounds schizophrenic.
Ms Curtis: You have described the present circumstance under this legislation. Two things are significant when identifying what is included in the base amount. First, the legislation and the regulations do not tell us what is included in the base amount, but they do list the add-ons. Lawyers are interpreting that to mean that everything is included in the base amount other than those items listed. However, some items are clearly not meant to be included in the base amount. Child care expenses, medical and dental expenses, and post- secondary education are clearly not included in the base amount. That is how we hope the judiciary is interpreting it. That is in the clear language of the legislation.
The problem the judiciary is having relates to the language in section 7(1) which is, "Taking into account the necessity of the expense in relation to the child's best interest and the reasonableness of the expense." That is where they have to make the determination: Is this kid an Olympic athlete? Is that the only test for paying? I suggest that part of the confusion comes from the use of the word "special" or "extraordinary" in the heading for that section. These are not special or extraordinary in the average Canadian family. Certainly child care is not special. As well, a post-secondary school trip to Niagara Falls, New York or wherever would not be considered special.
Senator Cools: Last week reference was made to a particular case and a judgment by Mr. Justice Moreau in the 1997 Alberta case of Middleton v. MacPherson. Obviously some clarification will be needed in this particular area because this issue of the add-ons comes up before us in this committee again and again.
Senator Jessiman: I believe you said that those add-ons should be obligatory and shared. I have a problem with the federal guidelines in that they only take into account the non-custodial parent's income. As well, the general public of non-custodial parents cannot understand that.
Quebec takes both incomes into account and the figures work out to be almost the same. However, when that is not done, the non-custodial parent never knows the income of the custodial parent. If she falls heir to the lottery or falls heir to a large amount of money, that is not taken into account. There is some psychological impact, even though it might not make a great deal of difference to the numbers. Would you have any objection if the guidelines were changed to reflect the Quebec structure?
Ms Curtis: I am not familiar with the Quebec structure, so I would not want to comment on that. These guidelines are based on the assumption that the custodial parent is contributing either equally or otherwise.
Senator Jessiman: I understand that. However, many non-custodial parents are objecting to this, and they would feel much better if they knew the income of the custodial parent. They may end up paying as much or more, but at least psychologically they would feel a great deal better.
It is not a matter of dollars. I think these guidelines are probably fair. Do you have any objection to that provision, even if it has no effect other than a psychological one on non-custodial parents? As you said, you want the add-ons to be mandatory and shared. If they are shared, financial information will be available. Why not build that disclosure in right from the start?
Ms Curtis: You have given my answer to your question. It is not really correct to say that, under these guidelines, the income of the custodial parent is irrelevant. Under half of the structure it must be disclosed and it is factored in. I do not share your view that the legislature should concern itself with psychological considerations. It is not the job of the legislature to ensure that people feel good about child support. It is the job of the legislature to set a system whereby child support, which is ordered, is paid at an appropriate level for the benefit of the children. I have a different set of priorities.
Senator Jessiman: Under one system, disclosure is required, but under another it is not. The numbers do not vary in both instances. We are trying to do what is best for Canadians. This would have no impact on the children. I do not think the custodial parent would disagree with that.
Ms Curtis: When you are looking at what is best for Canadians, I hope you will look at the recommendations we brought today which we think would be best for Canadians.
Senator Jessiman: On the issue of shared custody, what periods of time do you thing should be factored in? I do not think the time a child is sleeping has much to do with parenting.
Ms Curtis: Custodial parents who have to get up in the middle of the night when the child is throwing up would disagree.
Senator Jessiman: I do not think there is much parenting involved when the child is at school.
Ms Curtis: Did you make the muffins for the school lunch? Did you make the Halloween costume for the party?
Senator Jessiman: That is not done during the time they are at school.
Ms Curtis: Those are responsibilities.
Senator Cools: You are raising profound questions. I would challenge you on a lot of them. What is parenting?
Ms Curtis: Exactly.
Senator Cools: Why is making muffins when the child is at school that day more important than making muffins with the non-custodial parent on the weekend? We could go into this in quite some depth. You are saying that your definition of parenting, somehow or other, has pre-eminence over other definitions of parenting.
Ms Curtis: Not at all. In fact, I am agreeing with you, Senator Cools.
Senator Cools: One thing is certain: There are no more than 24 hours in a day. Any discussion of where children are at any time covers that 24-hours period.
Ms Curtis: That is how you do it in fact. You do not try to count meals, overnights or anything like that. You count days. It is regrettable that we are counting days at all.
Senator Cools: Precisely.
Ms Curtis: When I read about the litigation in this area I am not proud to be a Canadian.
Senator Cools: You and I know that the reason people are counting days and hours is because there is unfairness all round.
Ms Curtis: I have a different take on it. The reason they are counting days and hours is that they want to get out of paying child support.
Senator Cools: You can hold your discriminatory statements. I endured them a few days ago quite well, but if any man came before these committees and spoke about women the way the National Association of Women and the Law spoke last week about men -- That is enough. Let us be fair.
Senator Cohen: Recommendation 17 by the National Association of Women and the Law is that section 9 of the Federal Child Support Guidelines be amended to delete reference to "40 per cent of the time" and that shared custody be defined as "a child residing with each parent equal amounts of time". No months, no days, no weeks, just delete it. That is something that we should think about.
Ms Curtis: Thank you, senator.
Senator Cools: I appreciate, Ms Curtis, that you feel very strongly and I respect that.
Last week witnesses mentioned the case of Jones v. Jones, a 1997 Alberta case, Justice Kenny presiding. It impinges on the point made by Ms Poulin that members of her group cannot get access to the guidelines because they simply cannot afford to hire lawyers to go back to the court for variations.
Last year when the bill was before us, we were told that it would be unlikely that most people would want to vary their orders so that would not be a problem. In Jones v. Jones a non-custodial parent was going back to court to try to get a variation in accordance with the guidelines which would greatly reduce the amounts that that parent had been paying. Apparently the judge took no notice of the guidelines and refused to alter the child support amount. I am not too sure that Legal Aid is a solution to this problem, despite the fact that Senator Jessiman was offering his services. Can you comment on the Jones case?
Ms Curtis: I could not comment on that particular case. I can tell you that people like me who work in this field every day are trying to stay on top of the cases; and the decisions are all over the place right now. If somebody has cited a case in which the results seemed wonky, I am not surprised. Wonky decisions are being made. I mean no disrespect to the judiciary. This area is very complicated, and confusion exists. There is a lack of understanding about the intention of the government, even though the government had a long lead time for public education. In many cases the results are the opposite and they cannot be reconciled. That is where we are right now when it comes to the implementation of these guidelines.
Senator Cools: Last year the committee was trying to find time to properly study the issues. At the time, the government, citing people like yourself, told us that everybody had been consulted over the past five years and that the government was under this time constraint of May 1. Perhaps, in future, we should resist the government even more strongly when it puts us under that sort of time constraint.
This is a rare opportunity for us, in that we can look back only a few months later. What we are hearing very clearly from witnesses, including Ms Curtis, is that we rushed our judgment on this matter.
The Chairman: I would thank Ms Curtis and Ms Poulin for leading us through a very stimulating and interesting discussion.
For the next 45 minutes approximately we will hear witnesses from FatherCraft Canada and from the National Alliance for the Advancement of Non-Custodial Parents. I would ask those witnesses to come to the table.
Both witnesses have opening statements to make. They have also filed a brief with the committee and copies will be or have been distributed to you. These briefs will not be appended to the record. They are quite lengthy since they include verbatim transcripts. They will not be appended because the cost will be prohibitive to our record.
Mr. W. Glen Cheriton, Director, FatherCraft Canada: I will begin by making a submission to the committee, following which I will refer to Cavanaugh v. Cavanaugh. My written submission contains a number of recommendations, but I will not go through at this time.
The committee will eventually be faced with a choice on the question of child support. Either the committee will take complete responsibility for every single detail of child support -- and I suspect that by the time you are done you will end up with something as complicated as the Income Tax Act, which is extremely large <#0107> or it will look into other models, one of which is the British model. The British have taken 95 per cent of the cases out of the courts and have allowed the people decide for themselves. Ultimately, you will face that choice.
I would like to deal with the question of bias in interpreting the Child Support Guidelines. It has become very clear to me that this will be a major problem. Bias is an extremely powerful tool. In the hands of a judicial court system, which is largely biased against fathers in this area, where traditionally fathers have been excluded, you can expect to see increasing amounts of bias and an increasing number of fathers being driven out of the lives of their children.
Take, for example, the case of a farmer who had custody of two of his three children. He was ordered to pay $1,300 a month in child support. He was unable to pay and was subsequently jailed. The judge, in reviewing this case in 1997, found that the actual income of the farmer was negative. The farmer sustained business losses of some $16,000 and $20,000 in those years. Nevertheless, he was still jailed. That is an example of judicial bias. This judge decided that the income was not negative, as reported on his income tax returns. Instead, he imputed the income to the father and ignored the custodial actions of the father, the fact that he was the de facto custodial parent.
That is just one example, but I think it is indicative of a lot of the problems.
I believe you have a copy the 1997 Gardiner Study. We know that in 1991 the percentage of fathers being granted custody by the courts was approximately 11 per cent. Looking at Gardiner, if we can trust his figures, the number of fathers being granted custody dropped to 4.6 per cent, which means that the more powerful the tool the less likely judges are to consider fairly fathers being part of their children's lives. Over that same time period, Dr. Leroy Stone shows a rise in the number of father's participating in the lives of their children as well as fathers who are primary caregivers.
The long-term trend in shared parenting has been rising steadily over the years, but when we look at Gardiner we see a massive drop, from 11 or 12 per cent in 1991 to approximately 3.4 per cent in 1997. What is happening here? Fathers are being driven out of the lives of their children. That is a consistent pattern. The harsher the tool, the more reluctant judges are to apply this to women.
If the measure of the success of the legislation is how much money you get out of someone, then clearly judges find it is much easier to get money out of the father than out of the mother. The last time I was before this committee, we compared the amount of child support fathers were paying, which was rising by 7 per cent, to father's incomes, which were rising at 3 per cent. This is a recipe for disaster. Conversely, child support paid by mothers was dropping by about 17 per cent a year.
I will now deal with Cvanaugh v. Cavanaugh -- which I refer to in my written brief. Mr. Cavanaugh is very well versed in the law and is proceeding without a lawyer. He has two children, one of whom is with him 50 to 60 per cent of the time. The other child is with the mother 50 to 60 per cent of the time. Mr. and Mrs. Cavanaugh have comparable incomes -- or her income is higher.
The judge applies the guidelines by stating that Mr. Cavanaugh will pay the full amount for the child that is with Mrs. Cavanaugh but prorates Mrs. Cavanaugh`s share according to the fact that she is sharing custody, treating them completely differently. The judge then computes the difference and applies some mysterious calculation to bring the child support back up to the point where it is virtually the same as the original order, based on the assumption that she was doing all the parenting. What we have here is great judicial bias.
The issue seems to be getting the most amount of money; we can tackle child poverty if we can get enough money out of fathers. That is analogous to approaching the issue of quota in the fisheries by saying that clearly the Maritimes need a billion tonnes of fish, so we should set the quota at a billion tonnes regardless of the fact that there are only 10 million tonnes of fish in the ocean. We can harvest it all we want, but once it is gone, it is gone. You cannot legislate that back.
There is a danger in setting too harsh an amount. If the court orders a payment which turns out to be too low, it can always be increased. However, a payment order that is too high can have disastrous results. Take, for example, the case of a person who is self-employed. Once that person is in default, it is virtually impossible to survive. You cannot borrow money. You cannot go to a bank. You cannot re-establish your lines of credit. You are ruined. We are not talking about somebody going into bankruptcy. That person is ruined forever. There is no forgiveness on this.
I suggest that you look through the Cavanaugh v. Cavanaugh decision. The judge essentially states his concern. For example, why should the mother be penalized because the legislation is changed? There is no consideration for the needs of the child while they are with the father. Instead, a very powerful tool exists in the hands of the court system, which has been taught to be biased against children being with the father.
We must be sensitive to the consequences of this legislation. If the kids are in contact with the father, if the father is participating is their lives, they will benefit from the father's full income, not just the guideline amount. Fathers do not abandon their kids, generally, therefore shared parenting situations help to guarantee that the children will not be poor. Similarly, mothers do not abandon their kids, unless there is something psychologically wrong or there is some serious financial crisis.
We must get beyond the issue of child support to the essential question: Is the government going to help preserve marriages, which are in the best interest of children, and preserve the contact of fathers with their children?
Mr. L. Jason Bouchard, Coordinator, National Alliance for the Advancement of Non-Custodial Parents: I wish to begin by reminding you, since these issues are often discussed along gender lines and there are very valid concerns there as Mr. Cheriton pointed out, that roughly one out of five non-custodial parents are women, depending on whose numbers you look at. It is important to look at the gender biases and it is important to look at the entire structure in an attempt to step away from the gender issues. There is a different perspective gained from both. They are both very important.
Thank you for inviting us to speak. We are pleased that the committee renewed its mandate to review the guidelines in question.
The Minister of Justice has met with women's groups, I assume to speak to the needs of custodial mothers, however they have not met with custodial fathers or non-custodial parents of any kind. Therefore, there is still an issue of preponderance by the folks who control the regulations to not listen to all sides of the issue.
The objectives of the guidelines, as stated, are to reduce conflict by making the calculation objective, to improve efficiency by setting levels that are consistent, and to ensure consistent treatment in similar circumstances. We feel that most guidelines would speak to some of this, but these guidelines have significant gaps in how they are applied and how they are dealt with in the courts.
We have a similar objection to the amounts in the guidelines in that, even if the guidelines are well applied, the amounts may turn out to be high in specific situations, and although judges can adjust them down for hardship, they rarely do, as we know from Mr. Gardiner's numbers, which indicate that only 1.4 per cent have been allowed in Alberta. That is a minuscule number.
As was mentioned currently we do not know, and the judiciary does not know, what is included in the current guideline amount. The reason is that this particular guideline model does not have a basis in research. Previous models which were developed for the federal-provincial-territorial committee were all rejected. They were developed by economists and accountants and based on real numbers and models. No specific reason was given for their rejection. We can only assume -- and it was certainly the assumption of many people -- that those models did not yield large enough amounts to satisfy the constituencies to which Justice Canada chose to listen.
We ended up with a model that states that, if one parent needs $1, a parent and a child need $1.40, and a parent and two children need $1.70. No one knows the basis for those numbers, but we do know those figures are higher than any other model.
This creates the problems for the judiciary. When addressing add-ons or any specific situation, they do not know the source of the data.
When new law comes before the judges, they often consider the intent of the legislators. In this case, they cannot know that because there is no calculation to back up these numbers.
The committee I referred to added a low-income variant to their formula which increased the percentage paid by payers with an income of less than $20,000. This is a peculiar system where the poorest pay the most. This is what we have in Canada. Of course, they are only allowed a subsistence amount of approximately $6,700 before the tables kick in. For example, if a payer in Ontario has an income of $10,000, he would pay $120 a month for two children, $1,400 a year. It does not sound like much, but remember, the person is making $10,000 a year. This is what this person must live on and use to feed the kids who are with him. This is someone who is, basically, forking over almost half of his income above subsistence level in child support.
The reality is that a person with one child in Ontario who is on family benefits, which in theory is the bottom line of their income, is making over $1,400 tax free. Someone making $10,000, which is taxable, is forking over child support to the government because the other person is on family benefits so they never see it. It is half of their income above subsistence level. That makes no sense.
One could argue that any parent at any level should always be trying to pay some support towards the children. That makes sense, but to have the poor subsidize the government makes no sense at all.
In that kind of situation, we would not be surprised if default rates increased. In the past, default rates were a wonderful item for the media to throw around, and people could interpret them however they wished. Under this system, whatever the real numbers, they will probably be greater because people cannot possibly pay at this level.
As I said, in the case of a person earning $10,000, half of his income above subsistence level is paid out. That paying parent must also have the kids on the weekend and provide them with a place to sleep, feed them, and generally take care of them. How can you have your kids visit when you are living in a rooming house? Maybe they can visit if you are living in the basement of your parents' house which, as we know, happens in many instances.
Our biggest concern is with those people with low incomes. Those at the top end have a greater coping ability, no matter how unfair the guidelines. However, below an income of $20,000, there is very little room to manoeuvre. Mr. Gardiner's figures indicate that a significant portion of the population falls into that category. Whether they are divorced or living common-law, they amount to approximately one third.
One of the concerns that was raised when the Minister of Justice did meet with women's organizations -- this is a reference to Mr. Herman's submission on December 16 -- was the low level of awards when the payer's income was under $40,000. Consideration is being given to increasing those awards and that is, again, without any hard evidence that these numbers are based on what the children actually need. Are these numbers based on people's desires as opposed to their needs? There is a significant difference.
The 40-60 per cent rule has already been discussed before this committee. Those of us around at that time knew that it took some considerable arm-twisting to arrive at the previous proposal which was, basically, if parents split 50-50 both incomes would be considered. If not, too bad.
Our view was that, if parents have to pay the costs of parenting, which means providing bedrooms, lunches, clothes, bicycles, then considering both incomes makes all the sense in the world. We have problems with the one-income model as it is, but if we must have that model, at least in cases where there is substantial co-parenting, then we should consider both incomes.
Weekend visitation is a pretty well standard set-up in many cases. The non-custodial parent sees the children every second weekend and maybe the odd time during the week and some evenings. That is calculated to be, roughly, 25 per cent, so that parent can cope without having to provide bedrooms and all the other necessities that would be required if he or she had the children for longer periods.
However, when the parent has the children a little more than that, he has to deal with the fact that the children must go to school from the parent's residence. If children are attending school, they cannot sleep on the couch. Their needs have to be considered. One could argue that 40 per cent is actually quite high in terms of what constitutes actual co-parenting time when a parent has those expenses.
The judiciary has a certain bias. That may be a little strong, but it has a tendency to discount anything that would justify a reduction in the amount of child support. In certain cases, judges have done incredible callisthenics not to reduce the amount of child support below the guidelines. We are not in favour of opening this up to judicial discretion because, since the introduction of the guidelines, the decisions have been all over the map. Judges need these guidelines to justify their decisions.
One could argue that a parent who has their children one third of the time has the need for bedrooms, bicycles, clothes, prepared school lunches, including those infamous muffins we keep hearing about. That is the reality. However, 40 per cent is a reasonable compromise between the 50-50 camp and the ones who feel it should be much lower. That was a good measure from which judges could work.
When we get to the stage of arguing about the difference between 38 per cent and 42 per cent -- and that will happen -- then you must consider the costs. Would you require a three-bedroom apartment as opposed to a one-bedroom apartment for your kids? The actual living arrangements come into play. I would suggest that the 40 per cent rule takes a lot of that out of the picture, and that is very important.
Part of the idea here was to give judges less judicial discretion, because I believe in the past there was trouble with that. It made inconsistent orders.
The Chairman: We will not have much time for questions if you do not conclude your opening statement.
Mr. Bouchard: A good example of that is extraordinary expenses. If you look at the numbers from Alberta, fully half the cases have extraordinary expenses averaging about 30 per cent above the guideline amount. Any expense that is incurred by half of the population of Canada is not an extraordinary expense anymore.
I mentioned that relief under "undue hardship" is getting very difficult to obtain. In our brief we speak to post-secondary awards. We feel that parents should not be forced to do something that normally would be reached by consensus. There are certain controls that parents have over their subsidy of post-secondary education. That way the child certainly has more impetus to perform and to live up to those expectations. If you have a court telling you that you have to pay for your child to go through university no matter what, that is treading on very shaky ground.
We have some mention in here of the in loco parentis issue, which is becoming more and more of a problem when there are children with two- or three-step families. It speaks to the lack of consultation.
We mention in here the taxation issue, which was basically rammed through Parliament -- excuse the term -- without any kind of consultation to speak of. That, I think, speaks volumes for the true concerns over these issues.
Senator Jessiman: I would like Mr. Cheriton, if he would, to put on the record what he understands is the British model he referred to.
Mr. Cheriton: My understanding is that the British, under Margaret Thatcher, tried exactly the same thing that we are doing here. They spent a billion dollars on a computer system that they eventually scrapped. They had vast amounts of support enforcement. They hired large numbers of bureaucrats to collect child support. What they got instead was large numbers of suicides of dads who were being hounded; but that did not stop them. They went out there and they jailed fathers and they took away their passports. It still did not stop the government.
They suddenly discovered what they were getting was increasing numbers of children in poverty. That did not stop them. They looked at their welfare bill and it was rising dramatically. They said, "If this goes on, we will bankrupt the government."
At that point they reversed the model and they took it out of the courts and they put it in a situation where there is a mediator, and 95 per cent of the cases do not go in front of a judge. They are solved by the parents themselves. That has a number of advantages. It shows that kids can see their parents solving the problems. The kids figure they can control their own lives: "I do not have to have a lawyer and a court and a government and vast numbers of laws. I can do things myself." In other words, it is not dependent on someone else.
The parents are being treated as fully responsible people. Perhaps they have discovered there is 5 per cent of recalcitrant cases that they must put through the courts, but certainly their costs are reduced. Child poverty is reduced. In fact kids are having contact with both parents. That seems to me to be a reasonable model to look at as an alternative to what we are doing here.
Senator Jessiman: I would like to read for the record what our researcher found in this regard: "The U.K. concepts of residents and contact were adopted in Australia and have the same significance in both statutes of Britain. There is a similar emphasis on shared parenting and promotion of parents resolving their disputes outside the courts."
That is what you are really getting at, is it not?
Mr. Cheriton: Agreed.
Senator Jessiman: We were talking about gender bias. I know from the number of people I have spoken to about this question that there is a bias. It is a bias that has been there for years. It will take a long time to change it.
Two sections of the California law, 308.0 and 308.9, have also been referred to in the study by our researcher: "When custody is being granted to either parent, the Court must consider which parent is more likely to facilitate contact with the other parent and must not prefer either parent on the basis of sex." I assume that you would like legislation like that in Canada.
Mr. Cheriton: As I understand the "friendly parent" rule, we already have. Certainly, I would go even further, and say not only the "friendly parent" rule and not only legislation requiring non-bias, but it also seems to me that you must look at the services that are out there for mothers. There is training and there are vast amounts of support services for them, if you go into the local community centres. If you look at Health Canada, they have specific training manuals for mothers. They talk positively about working mothers. You do not hear them talking about working fathers. They should have the same training.
Moreover, who will get custody, if a judge has to decide between a father, who says, "I need daycare in order to work while I have my child," and a mother, who says, "I need daycare as well so I can work when I have my child, but in the Municipality of Ottawa-Carleton I can get daycare tomorrow because they reserve these spots for single mothers." However, the single father must wait two years. Who is the judge going to give custody to? You must look at all the areas that essentially keep fathers out of parenting.
Senator Cools: This whole phenomenon of bias and gender bias is really now making itself felt before most of us as parliamentarians. If you look at something like welfare payments and family benefits, as in the welfare program, for example, in the Province of Ontario for mothers with children, it is only recently that single men have been allowed to collect family benefits. It is a new concept, and I am thankful that you brought that particular point forward.
Senator Johnstone: Mr. Cheriton, your submission was excellent, but I do take one exception. You make the statement that fathers do not abandon their children. I am very familiar with a case in the Province of Nova Scotia where the father did abandon his children completely. It was not a case of income. His net worth was in the hundreds of thousands. Besides that, he had a substantial income; so perhaps it was psychological, but there did not seem to be anything wrong psychologically. He simply walked out and abandoned his family.
Senator Cools: The witness said "generally".
Mr. Cheriton: I do get a number of calls on my phone line from women as single mothers. They ask how can they get their ex-husband, the father of their kids, to be involved with their kids? We work on it. I have not emphasized this other side.
There needs to be some way that fathers can see fathering as an important job. I am working on two sides. One of them is to allow fathers to be parents to their kids. The major problem out there is the barriers that are put between fathers and their kids. The other side is in the hearts of men. That is not what I am talking about here. A lot of what I do is to talk to men and show them how important their role as a father is to their children, to get them to learn more about it, because the more they do it, the more it affects men too.
The analogy I like to make is this: Once you took the children away from the native communities, the communities disintegrated. The whole purpose of a community, the reason why men go out there and build parks and make their neighbourhoods safe, is largely because of their commitment to their children. Essentially, in my view, a society builds communities once people have kids. That is the basis; that is the motivation. I can see the change in men once they realize how important fathers are. This is something that men must learn from other men. It is not something that can be taught by women.
You are right. The fellow you were referring to I would classify as a jerk, but, that being said, the vast majority of men are not jerks.
Mr. Bouchard: One of the problems we are having in the courts is that we are dealing with engendered stereotypes: that fathers do not care, that non-custodial mothers are unfit parents. We can always bring forward horror stories of people who are unfit parents. For example, unfortunately, in this country the vast majority of children who die at the hands of their parents are killed by their mother. Of course that is not the norm. Of course that person needs some severe training.
Up until about 20 years ago, our culture felt that a father's job was to go out there and earn the living, and often go out there in wars and fight and die for his family, but it was not to be the nurturer at home. We spent many years encouraging fathers to nurture, and now we are saying, "Yes, but once you are divorced you are out the door." By doing that we are reverting to a stereotype that is harmful to all concerned.
Senator Johnstone: Once a man has reached 35 years of age, I am not sure how much he will learn from other men. He is quite mature by that time and you will not change him much.
Senator Cools: It is very easy, and we really should refrain from doing it, to jump on the band wagon that says men must learn how to be human or humane.
Dr. Edward Kruk, who teaches at the University of British Columbia, has done some research that indicates that it is the father who is close to his child who is more likely to be forced out of the child's life. As for the particular example that Senator Johnstone raised, we could raise countless examples of that sort of thing. I could give quite a few examples of children that have been abandoned by their mothers, too.
The whole point is that society is only now beginning to look at the social issues leading to conflicts within the family that force the disengagement of the father. An American psychiatrist, Dr. Richard Gardner, is doing enormous work on this subject. He has written a book on it called Parental Alienation, in which he describes extreme instances of it in terms of a parental alienation syndrome. The syndrome is the extreme case where the child is even enlisted to be a co-combatant with the other parent. They hatefully push that parent out of sight.
The essential point here is that nobody would ever support parental delinquency of any type. The fact is that we must come to an understanding that vice and virtue are shared by both genders; vice and virtue are not owned by either gender.
The Chairman: I do not know that much needs to be added to that, except to say thank you very much, gentlemen.
Mr. Bouchard: The problem, unfortunately, is that the courts often take that type of stance; that is one of the issues. It is very valuable that organizations like NAWL have sensitized the courts to the issue of spousal violence and related issues. That is important. However, it predisposes the courts to take a certain slant. There is education needed on the importance of fathers and the role they play -- the importance of both parents actually, because we try to move away from the gender side of it if we can. Education is required for the population and also for the courts.
One could argue that judges spend the better part of their lives away from their children and therefore would find it very difficult to understand why another person who is the primary breadwinner in a relationship would not agree to do the same.
The committee adjourned.