Proceedings of the Standing Senate Committee on
Social Affairs,
Science and Technology
Issue 8 - Evidence - April 1, 1998
OTTAWA, Wednesday, April 1, 1998
The Standing Senate Committee on Social Affairs, Science and Technology met this day at 3:30 p.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 Colin Kenny (Acting Deputy Chairman) in the Chair.
[English]
The Acting Deputy Chairman: Honourable senators, our first witness is ready to begin.
Professor Bala, please proceed.
Professor Nicholas Bala, Associate Dean, Faculty of Law, Queen's University: By way of introduction, I am a law professor at Queen's University with a special area of interest in family and children's law. I have written and participated in continuing legal education programs dealing with the child support guidelines. I was a witness before the Senate committee dealing with the guidelines last year. I have done some consulting work for the Department of Justice in regards to the guidelines, as well as with the Canadian Research Institute for Law and the Family. I would, however, emphasize that the views I express today are my own.
The brief I have provided to you is intended to be a initial impression of some of the issues that have arisen in regard to the implementation of the guidelines. In fact, as you can see from the date on it, it was written almost two months ago. This is an area where the law is changing quite quickly. I might mention a few more recent cases as well. The paper was written based on a review of a few of the more important reported cases and from talking to people in the justice system -- lawyers, judges and others -- about their impressions of how the guidelines are working.
On the whole, I think the guidelines have been a success in the sense that we are better off with the guidelines than with the previous individualized litigation model. That does not mean that the guidelines cannot be changed in significant ways. We need more research into how the guidelines are being implemented. It is clear is that there is much variation across the country from place to place or even from judge to judge. We require further study. That does not mean that it is not useful to talk about and consider how things are going to this point. It does mean, however, that when one is listening to a person who is situated in one particular place and may have legitimate concerns about the guidelines, one should not necessarily assume that those concerns are uniform everywhere across the country.
In terms of the reported case law and discussion among judges and lawyers, one of the critiques made of the guidelines is that the issue of determination of income is still, at least in a significant number of cases, problematic. I do not think that is a criticism of guidelines in the sense that, in any family law case, particularly one dealing with child support, an initial issue is the income of either or both of the parents. In some cases, it is relatively easy to determine income. If someone is a law professor or a senator with no outside income, you could just look at their income tax returns for the last few years.
How can you establish that? There are also accounting issues. Some expenses can be legitimately deducted from income for income tax purposes, such as depreciation of the business, but the same expenses may not be appropriate to take into account for child support purposes.
As I mentioned, the issue of determination of income is a problem. Looking at the world as a whole, there are a number of different models of child support guidelines, and it is a common international problem. There will be no easy resolution to it. The accounting profession and the tax consultancy business are in large part based on the fact that there is no easy way to determine income. There will always be argument about it, at least in some cases.
However, I think that statistically we still have a society where most people get most of their income from employment, as opposed to being self-employed, and in those cases the guidelines have greatly simplified the process. While there are some areas where one might consider reform, I would not rush in to trying to redefine income in some way. A lot of progress has been made in that area in particular.
Senator LeBreton: Some time ago we got into the whole issue of having officials having access to income tax records and whether that was an infringement of privacy rights. Of course, that would be something for the courts to determine.
We heard from some witnesses about cases involving individual income-earners, specifically farmers, where they have a set income and they will go out and buy a combine perhaps and therefore not show as much income. Yet some people will say the farmer only did that to lessen his support payments. I realize there is a problem there.
Has the system of having judges dealing with the guidelines improved the uniformity of how this is handled across the country, so that therefore you do not get the discrepancy from one jurisdiction to another in handling these cases?
Mr. Bala: With regard to the self-employed, which is obviously where the problems are, judges do have discretion under the guidelines and are in some cases going back and saying, "You should not buy that harvester," or, "You are not going to buy that harvester. You are going to pay child support." They have discretion to move away from the income tax definitions and seem to be doing that in a reasonably thoughtful way and saying that support of children comes first. However, we also to have to recognize that if you have a business, you are going to have legitimate expenses. We do not want to kill the goose that is laying the eggs and force people out of business. It is a fine balance to draw.
On the issue of uniformity, I have no doubt that the guidelines have improved uniformity. One the problems that we had before the guidelines in some places in the country, and maybe to some extent in every place, was that in a city like Ottawa or Kingston or Toronto, the judge assigned to your case was an important factor because different judges viewed the issue of child support in quite different ways. I am convinced that we have a much greater degree of uniformity across the country which people rightly perceive as fair. So wherever you are, if you have adequate legal representation and if the judge knows what he or she is doing, you are much more likely to be treated in the same way, and that makes much more sense.
Individualized litigation about what are reasonable expenses is very problematic, conceptually and practically. That is why I am a little unhappy about section 7, the provision about extra-curricular activities, because we are going back into that individualized litigation, and that particular provision may have to be rethought so we know what was really intended there.
Senator Johnstone: Professor, you mentioned that parents are not always represented by lawyers. What are the advantages of a lawyer, taking into consideration the extra costs?
Mr. Bala: In family litigation, particularly, and child support is only one part of this, there are several advantages to having a lawyer. First of all, people might not be aware of their legal position without having legal advice. A lawyer can help and can have a critical role in discovering the facts of the case if, for example, there is an issue about whether assets are being hidden or not accessed.
People find it very difficult to be advocates for themselves under the best of circumstances and, in family law litigation, given the potential for emotional stress and conflict, it is often better to have a party who has some objectivity in representing them. That lack of representation is a very serious problem in this area. I do not know what your agenda is but if you speak either to lawyers or judges who talk about dealing with unrepresented litigants, they will tell you that in those cases, hostilities increase because the litigants are trying to cross-examine one another, not knowing what they are doing, and are taking up the time of the courts.
There are certainly issues about how lawyers are educated and trained. As someone working in a law school, I can say we are certainly concerned about preparing people for practice in the best way possible.
I am not saying that every lawyer in every case does a good job. There is certainly a small minority of lawyers who may sometimes increase the level of hostility between litigating parents. However, there is also sometimes a tendency for people involved in family litigation who have had a lot of problems and who have spent an enormous amount of money on legal bills, to look back and say that the it was the lawyers who increased the hostilities and that it is all the fault of the lawyers or the judges or the justice system or Parliament.
In most cases where lawyers are involved, one of their major roles, which on the whole they carry out successfully, is encouraging people first to know their legal rights and to settle cases and to be reasonable and to think about their children. In fact lawyers are often restraining the clients, rather than inciting them. There are certainly exceptions to that but, in general, the legal profession has a very important role to play here. That is evidenced by the fact that very few people who can afford to have lawyers will choose to represent themselves. The problem of lack of representation, by and large, is that people do not have access to Legal Aid.
Senator Johnstone: How do you determine incomes in a reasonably accurate way? How can you be sure you know what the income is?
Mr. Bala: May I add one thing on the previous question? I did not want to suggest that lawyers are the only people who should be involved in this. Mediation has a important role. Child support guidelines, for example, can simplify the issues in mediation. Lawyers need not be exclusively involved but there is a role for lawyers.
On the issue of how you determine income, if someone is an employee or has one source of relatively fixed income from dividends, it is relatively easy to determine income. If someone is self-employed, there are problems both conceptually and practically in determining income. Practically, there may be a tendency to overstate expenses or to understate income. That can be just a practical problem of accounting and finding where the money is. If it is a cash-generated business, or even if there are good records, one can have legitimate arguments about issues like depreciation, which are legitimate business expenses for tax purposes but which are not necessarily taken into account in the same way for child support purposes.
Senator Johnstone: Do you have access to income tax returns? What can the court access?
Mr. Bala: Under the child support guidelines, there is access to and a requirement to provide the last three income tax returns. A key starting spot is the last few income tax returns. I think the theory that most people in this country are fairly honest about their income tax returns is largely but not completely correct. It provides a good starting spot. You will certainly hear people say that most people in this country are honest about their income tax returns, but in a divorce one party often accuses the other of not being honest in their tax returns. You can get into a discussion about that, but it is a good starting spot.
I view the guidelines and the model that has been put forward as a significant improvement. The question is how we can further improve it, I hope, as opposed to going back to the old system.
Senator Grafstein: Forgive me for my lack of background, but this is a fascinating topic. I am interested in several questions, the first being the question of onus. Let us take the example of a female spouse making the claim of a certain level of income. Upon whom is the onus for determining the narrow issue of income? Is it upon the applicant, or is it with the respondent in the narrow issue of determining income? That is question number one.
Question number two is in determining the quantum of support for a child, where is the onus?
My final question relates to assessing assets that are non-income bearing. Suppose someone has a lavish farm. He has farm implements and owes money to the bank. He has been able to make a subsistence living off the land while barely keeping up his payments, but he is land-rich. If in fact he chooses to sell off a quarter, he would have some cash. In other words, a spouse who has the child and is bearing the responsibilities for that child is confronted by another spouse who has a non-bearing income asset which has value. The person can properly say that the asset bears no income and, in fact, costs money to maintain.
Is there power within the authority of the guidelines to deal with that situation? In other words, is it time to slice off a piece of the loaf and spread that piece around? If a spouse says they are rich in apparent value but essentially they do not have any money, that is valid. It is a true point. Meanwhile, the a determination must be made whether the child must go without while that spouse is maintaining the family home, farm or business.
Mr. Bala: Onus in a civil proceeding is not nearly as significant as it is in a criminal case or in an income tax case.
Senator Grafstein: I understand the difference.
Mr. Bala: The starting spot that the guidelines set out is income tax returns. You get the income tax returns for the last three years, and those are the starting spots. If someone wants to rebut that either to raise it or lower it, the onus is on that person to say, no, those do not reflect the last three years' income. They must bring forward evidence to satisfy the judge that there is some reason not to rely on those returns.
Then the payer could say that the last three years' returns are accurate but, unfortunately, this year they have been laid off. In that case, the last three years' income tax returns would not be as useful. They would then try to rebut the support level downward.
Conversely, the applicant might say that the income has gone up a lot since those three income tax returns or that the returns understate his actual income.
Senator Grafstein: Is the application of the guidelines clear that the onus is upon the spouse who has to make the determination as to what is the income level? In other words, with respect to the income of the person who is the subject matter of the litigation, is that onus on him or is that onus displaced once that person produces their tax return?
Mr. Bala: In my reading of the guidelines, once you have the tax returns, that is the starting spot. The onus is then is on anyone who wishes to vary those figures. There are major factual problems, but I do not think the problem is how the guidelines have been drafted.
You raised the issue of how to deal with assets. The guidelines have provisions in sections 15 through 20 to deal with imputing income if people have assets. You are correct in identifying, again, a range of assets. One may wish to make some technical amendments, but the fundamental thing is that you must give judges discretion.
One can imagine situations where a uniform set of guidelines would suffice very well because a lot depends on the value of the asset. A number of factors are identified: Is it income producing or not? Is it likely to increase in income? Is it reasonable to expect this person to sell it or to sell a part of it?
Senator Grafstein: The onus is there. You are saying that in the first category the onus shifts to the other party when someone produces their tax returns.
Mr. Bala: Yes.
Senator Grafstein: Is it clear in the guidelines that the primary onus is on the spouse who is required to declare interest?
Mr. Bala: In fact both spouses are required, depending on the circumstances, to file financial statements. My reading of the cases is such that the legal issue of onus is not a significant problem. The factual problem is profound, but the guidelines cannot resolve that.
Senator Grafstein: Would there be more a fair tool in the hands of the person who is responsible for the child? Our interest from a public standpoint is to preserve, protect, maintain and facilitate the rearing of a child. That is our public policy. The question is how do we facilitate this in a way that is appropriate?
It strikes me that if you have to deal with this issue, one of the ways to at least get to the first hurdle, as opposed to the disputed hurdle, is to place the onus on that spouse who has income and upon whom a claim has been made. It is a reserves onus, in effect.
I do not want to be my own lawyer here, but it clarifies things for the judge when there is a balance of probabilities. One can say that it must be beyond that balance of probabilities. If there is a question not beyond a reasonable doubt, one must err on the side of the person seeking protection for the child.
I have listened to tales of woe from people about this, and my inclination is to protect the child. How do you protect the child and get out of a lot of these horror cases? One of the ways is to make the onus clear.
Let us say you are a parent; you have brought a child into the world. If you are not supporting that child, you have a responsibility to prove to the court that you do not have the income, as opposed to the onus being on the other parent to come and make a claim against the non-paying parent. It could be a male or a female parent. As far as I am concerned, the issue is gender neutral.
Mr. Bala: You may want to include a clear onus provision. For example, in Ontario, the provincial property legislation makes it clear where the onus lies. That may help deal with some of the issues. That is an interesting and useful suggestion, but I caution that you will not be able to solve the problems of everyone in family law litigation by changing the rules. There will always be factual problems and people who will come forward to accuse their spouse of lying to the judge and asking what can be done about it. The answer is that that is why we have judges. Your suggestion is useful.
Senator Grafstein: I am trying to establish, for the Senate's purposes, a regime which is consistent with our public policy.
How do you protect the child when there are truly factual situations? Upon whom is the onus? I think the onus is upon the current parent who has the income and says that he or she does not have the income and makes a claim.
The courts may find that you place the amount of your income on your income tax return. That is one material step in satisfying an onus. The onus might shift at that particular juncture to the other party if there is a variation from that. I start off with the premise that, whether or not you use the income tax return, you might resolve some of the questions concerning the balance of probabilities where the facts are balanced. If I were a judge and the facts were balanced, then I would err on the side of the child.
I am putting that to you as a judicial model. I think the senator was trying to think of judicial models.
Mr. Bala: Onus is a part of it. Those are interesting questions.
When you are talking about the best interests of the child, can the coin sometimes land on its side as opposed to on heads or tails? Because it is a civil model, the onus is less problematic and less significant than it is in criminal cases.
I would also caution you that, while thinking about the issue, the fairness of the system to everyone is important. If the only concern that you have, for example, is the vision of the best interests of the child, you may say that that is completely confounded with the economic welfare of the custodial parent. One is seeing this in custody and access hearings across the country. One might think that the percentages are too low and that the payments should be tripled or doubled, but, as with other things, it is a question of balance. That is a cautionary comment. It does not mean that the issue of onus should not be more clearly addressed.
Senator Grafstein: For the quantum of support, subject to the guidelines, the onus is upon the applicant who is making a claim for support to say that this is the income and this is the amount of support their child should receive. Where is the onus there?
Mr. Bala: Once you have determined income, the starting point is found on the table. It is not a question of onus. That is the amount. If you want to try to raise that amount under section 7, the add-ons for extra-curricular activities, the onus is on the person who wants to raise the amount to get it raised. If you want to lower it under section 10, the onus is on the person who wants it lowered. Both in the way it is drafted and interpreted, it is very difficult under section 10 to get below the guideline amounts.
There are legitimate cases in which one might want to lower the amount. In my mind, the courts have taken an appropriate and narrow interpretation of section 10 and have shown that it is difficult to claim undue hardship.
Senator Grafstein: That appears to be fair.
Mr. Bala: That is fair. It is encouraging in that area that judges, to the extent that they have lowered the amount, have said that probably the single most important factor is the best interests of children. There might be children from other family relationships that could affect it, or in some cases there might be problems with access. For example, the mother has custody and moves across the country and the father must fly out to visit the children. Perhaps that should be taken into account. The focus, however, is on the best interests of children. That is the way it is drafted and that is the way it has been interpreted.
On the issue of raising the amount, in section 7, the provisions state that if there are extraordinary extra-curricular expenses, we can add on to the amount. The onus is on the applicant there. I have some concerns about that.
First, if you do not have legal representation, it is very hard to get into section 7 because you will not understand. A lot of low- and middle-income people are not able to take advantage of that at all. Second, in middle- and upper-income families, it invites re-litigation of issues that are inherently personal. In these cases, the parents begin to argue about hockey, ballet, day camps, music lessons, and so on. It invites a parent to deny that their child needs hockey but to claim soccer is better, because it is cheaper. That is exactly the type of situation that the guidelines try to avoid.
One should recognize that as income starts to increase, the average parent spends more money on extra-curricular activities. That should be built into the guidelines and not individually litigated.
Senator Grafstein: I have heard what you said. People have talked to me about their personal situations dealing with this issue. This goes to the question of onus. Let me give you the model that concerns me.
Sometimes marriages break up and one of the children of the marriage is child disabled, perhaps deaf or emotionally or physically disabled. This is a special child. The guidelines are there but this child has a whole raft of special needs. I am less interested in the question of hockey versus soccer. That is not a public policy issue as far as I am concerned. It is a public policy issue to ensure that the disabled child is being fairly treated without having to prove on a factual basis that he or she needs special support. How do the guidelines deal with that narrow question? Is it fair?
Mr. Bala: I think you were sort of pushing me on this. I did not want to suggest that everything in section 7 should go. Your are correct in identifying the human problems that develop after marital break up for children with special needs. The guidelines do deal with that issue.
The problem is not found in the reported cases but in the unreported cases or in the cases where people give up. Judges are certainly aware of and are sympathetic to that kind of concern. Ideally, people would have be forced to spend time and money to find a judge and persuade him. Ideally, they could use the guidelines in general without having to say that this child has special needs. How do we quantify that? Who will bring forward the evidence about those special needs? It is the person who has custody of that child. That person will have to document the special needs and the expenses for the child. It would seem to be quite unfair to say to the respondent that they must identify the child's special needs or rebut the claim of special needs.
One of the things about family law, generally, is that you must be aware of and sensitive to the limits of a generalized law. The questions arises whether you, sitting here in Ottawa, can solve all the problems of all the people in the country? We can certainly solve many of them. There are other things that we can do, or that we can do better, to help solve many of these problems. We can improve access to Legal Aid. We can provide unified family courts and parenting education. It is not good enough to simply declare an automatic increase for a disabled child or a child with special needs. Each child with special needs is unique. You will have difficulty building that into the guidelines.
The problem right now is that section 7 does not focus on only those children, who are a very important group. The way that section is currently written, a lawyer can make at least an argument in every single case that section 7 applies. It is far too broad, in my view.
The Acting Deputy Chairman: Colleagues, we have passed the allotted time that we had set aside. On your behalf, I thank Professor Bala for his presentation.
[Translation]
Senator Ferretti Barth: The professor may have finished, but there is no time left for me to put my question.
[English]
The Acting Deputy Chairman: Excuse me. I am sorry, I did not realize you had questions. Please go ahead.
[Translation]
Senator Ferretti Barth: I have to leave.
[English]
The Acting Deputy Chairman: Senator, if you have a question, please go ahead.
Senator Ferretti Barth: That is okay.
The Acting Deputy Chairman:For the record, I had asked the clerk to check with the senator to see if she had any questions. Seeing no signal back, I assumed she had none. I asked her to go ahead and make her question. Unfortunately, she evidently did not hear me or I was not clear enough.I regret that we end on this note, professor, but I do thank you.
Mr. Bala: Thank you. It was a privilege to be invited.
The Acting Deputy Chairman: Our next witnesses are from Mothers Against Fathers in Arrears.
Please proceed.
Ms Regina May, Co-Founder, Mothers Against Fathers in Arrears: Thank you for the invitation to appear before you. As indicated in our brief, Ms Pakka and I had enormous problems getting child support from self-employed men who were in very high income brackets. The father of my child was a dentist who did not pay his child support even though the court ordered him to do so. The system was set up such that he did not have to pay child support.
Ms Pakka's situation was similar to mine. One day we decided to see what we could do for other children. We decided to picket the respective fathers with a group of people. Those two pickets caused an outcry from across the world. We received letters and phone calls from all parts of Canada, the U.S., Spain and England, because our efforts made international headlines.
We worked with the Government of Ontario in getting Bill 82 passed and everything has worked out extremely well in that regard.
There are some points in the guidelines which we would like to bring to your attention.
Under Bill C-41, suspension of passports will be used as a last resort. It can only be done once every five years, and that is meaningless. People travel for two reasons; vacation and business. If you have the money to go on vacation, you have the money to pay child support. If you travel for business, revenue is being generated which could be used to pay child support.
Ontario has recently begun suspending driver's licences in cases where child support is in arrears. There has been an overwhelming response to that. Men are now paying their child support in order to prevent having their driver's licence suspended. Insurance is also affected when a licence is suspended. I believe that using those guidelines with passports would assist greatly with child support enforcement at the federal level.
Application for Canadian citizenship is a privilege, not a right. In some cultures, people have children with different partners and do not accept responsibility for those children. They are able to receive Canadian citizenship with no checks or cross-references being done. To become a Canadian citizen is a wonderful privilege and each applicant should show that they will be a good citizen before they are granted that privilege. Our group does not accept that people who owe child support should be granted that privilege.
We have a large membership. Some of the women in our group are owed up to $120,000.
Ms Kaarina Pakka, Co-Founder, Mothers Against Fathers in Arrears: We believe that the Privacy Act should be re-examined with regard to social insurance numbers. Many custodial parents do not know the social insurance number of their ex-spouse and are therefore not able to find out whether they are working. We believe that the provinces and the federal government should have an agreement to provide the SIN number in order that people can be located and their workplace can be found so that resources can be utilized for the children.
One of the ways that this could be done is for both parents to have their social insurance numbers recorded on a court order for child support. The United States has implemented a program to keep track of people's work records and the location of their jobs so that orders of garnishee can be implemented and enforced. This would be helpful in Canada because taxpayers end up carrying the burden for children who do not receive their child support.
In terms of income tax returns, when the provincial government does apply to the federal government to get a garnishment, it is a slow process. Quite often the funds have already been sent to the person who is claiming the refund instead of to the child who is the subject of a claim. The federal government must be more aggressive in working with the provincial government on these issues.
One of the best procedures for determining a person's actual income would be to require that financial statements filed in court are truthful. We have never heard in family court of anyone being charged with perjury even though people do tend to make statements that are fraudulent. There must be some sort of punishment or procedure so that people will not waste the time of the courts and will tell the truth at the onset of going to court for child support.
We were looking at the amounts that are paid by men who make over $150,000 a year, and we did not find that the judges applied the higher amount of income. We find that the system is reluctant to give larger funds to children even though the funds are there in terms of the higher-earning parent.
When money flows into irrevocable trusts, the funds are there, but they cannot be touched for the child. The other parent has a high standard of living because the money is going through a trust. The child is living at the lower end of the scale, even though the funds are there. Many men who are self-employed run their money through the corporation. They may draw little in terms of income, but they have a high standard of living because everything goes through the corporation. They live behind the corporate veil and that is something the federal government must examine in terms of income.
Basically, women come to us complaining about not receiving child support.
Ms May: There are only certain areas that the federal government has in terms of tools of enforcement. We have lobbied hard at the provincial level and all our requests have been implemented at the provincial level.
Senator LeBreton: How many people would you say are in the same category as the two cases you cited? How many are associated with your organization?
Ms May: As far as in the financial brackets, the number is higher than you would actually think. For years nobody would come forward because women felt that they had to keep quiet and take whatever was available. Many of these women fell back on the system. That is why there was such an outpouring when we went public.
We have chapters in the United States and elsewhere and have been quite vocal. Ms Pakka and I have a great steering committee and we have had to put the brakes on because we could be working 24 hours a day, seven days a week on the calls received by us and by our committee. It goes on and on.
Senator LeBreton: One of the mandates of the committee is custody and access. What is your position on custody and access?
Ms Pakka: Many men are not only not paying their child support, but they are not using their rights of access. So the child is losing financially and emotionally.
We then have fathers who come and see their children on a regular basis but they are not paying their child support. They will spend money on the child when the child is with them but they will not pay their support. A large number of these women are on Mothers' Allowance. Therefore, it is the Canadian taxpayer who is paying for this group. The child has a right to access both parents.
Senator LeBreton: You also have situations where the husband has left the province or the country so there is no support?
Ms Pakka: There is no support in many cases.
Senator LeBreton: I was surprised to hear the situation with the social insurance number. I was given to believe that the information available from a social insurance number was easily obtained.
Ms Pakka: In my case, my son's father stated he could pay whatever the courts deemed. He never put in a financial statement or social insurance number. At that time, the decision was not based on the father's income. It was based on what I spent on the child and then we split that. Since his income was so much higher than mine, he was paying 90 per cent and I was paying 10 per cent, but that does not reflect what he makes. He did not want to put in a financial statement and the court said that was fine.
Senator LeBreton: Would the new guidelines have markedly helped your case?
Ms Pakka: He would now be required to submit a financial statement. I looked at it and I tried to decide whether to go through that song and dance again. According to the guidelines, I would be receiving an astronomical amount, but I would have to first put out money to go through the system. The emotional turmoil of having to do that is exhausting for anyone who must go through the system.
Senator LeBreton: That is one of the problems that I have heard from other witnesses, that they do not have the resources or energy to fight. This is a major problem that we must address.
You mentioned the confiscation of driver's licences. Do you find that this is getting people's attention?
Ms Pakka: That is just starting with the provincial government. They have just started that process. We will have to see the end result.
A totally separate issue is that a paying parent can run up huge arrears of, say, $120,000. When they finally go back to court, they claim they cannot possibly pay that amount. The judge will ask what they can pay. The judge is shown another, possibly fraudulent, financial statement and the judge can wipe out the arrears.
You cannot say to Visa that you need to cut the amount of your debt by half and also lower the monthly payment, but you can do that to your child. I find it offensive that that can be done to a child.
Senator LeBreton: There is some reason to believe that the driver's licence aspect is working. Now they are talking about passports. I have always thought that lifting a passport might be a good way enforcement measure. However, as you mentioned, a passport is only issued every five years and people travel all over North America without a passport. They can get visas and live in the United States. Do you think that the threat of pulling a passport really does obtain the desired results?
Ms May: We must close the loopholes and send the message that not paying child support is unacceptable. If there is a loophole, we want it closed. Our profession sees many of these travellers, and we know that they do travel.
Ms Pakka: Even when going to the States, if they want to see your passport, they run it through. They swipe it. There is no reason that it could not come up on the computer that they have not paid child support and that they should not be allowed in. It should not be difficult.
Senator LeBreton: You would miss the people who do not travel across the border.
Ms Pakka: The top segment of the self-employed travel substantially for business, if not for pleasure.
Senator LeBreton: I wonder if it is as workable as we might like to think.
Senator Johnstone: My question is a carry-over from the previous witness and deals with the determination of who can pay or how. A person could have a substantial net worth but a very low income. You could have lands and buildings but not draw much income. Can you get at that net worth to make that parent pay?
Ms Pakka: It is difficult. We have found in talking to basically thousands of women over the last five years that a great deal of property goes into someone else's name before the divorce or that, just before court system, the funds are put somewhere else. It is difficult to show the initial worth or that funds or property are being held in someone else's name. One parent may have a company in someone else's name and be seen as just an employee getting minimum wage. Look at their lifestyle. The car is in the company's name or someone else's name. They may live a very affluent lifestyle. Possibly the courts could start looking at the lifestyle of the person and the fact that assets have been dispersed to other persons or corporations.
Senator Johnstone: Is that a question which the courts have already begun to examine?
Ms Pakka: I do not think the courts look seriously at the lifestyle of both parents. They look at the financial statements sometimes, if you are lucky, but the financial statements show none of these dispersed assets. The judge cannot get the big picture of how each parent is living their life.
Senator Johnstone: You do not have a lot of protection.
Ms Pakka: You do not, and this is a big problem for many of the mothers who come to our group.
Senator Grafstein: As to this whole notion of lawyers and getting into the system, in fairness, you are really saying to us -- and this is quite a terrible condemnation of our judicial system -- that the judges do not listen. They do not even listen to the material in front of them. I am taking the five or six complaints that you have made, which I assume are substantive. This is quite a ringing denunciation of the judicial system as it applies to these matters that come before the courts. Judges do not listen; they do not read; they do not enforce; they do not deal with perjury.
This is almost a condemnation of judges. If you raise those five issues, I would say this is almost an issue that should go before the judicial council to see whether a particular judge should continue to sit if he has demonstrated such a pattern. These concerns that you raise are a deep condemnation of the legal system as it applies to these particular claims. That is what you are saying. You are nodding your head and agreeing with me?
Ms May: The names of the same judges come up over and over again.
Ms Pakka: We have discussed this with the Attorney General's office.
Senator Grafstein: Which Attorney General?
Ms Pakka: We spoke with Charles Harnick.
Senator Grafstein: He is the Attorney General of Ontario.
Ms Pakka: We have suggested they insist that the judges upgrade their skills in terms of information. The Attorney General cannot do that. They can only suggest that the judges read up on how times are changing and about the different situations.
Senator Grafstein: I understand what you are saying. Let me ask the next question because this is another substantial criticism of our rule of law. You have said that not only do the judges not listen nor hear nor respond but that, in addition, it is an emotional and costly experience to get access to a decision.
Ms May: Absolutely.
Senator Grafstein: You have two problems, and I am trying to isolate the problems. On one hand, you have an episodic legal system that is not focused; on the other hand, you have a costly system that makes it difficult both financially and emotionally for spouses. Frankly, your association is named Mothers Against Fathers in Arrears, but I think it should be gender neutral.
Ms May: The association is gender neutral. At the time, when we first started, it was a proportion.
Senator Grafstein: That is a passing comment. I would have preferred Spouses Against Spouses in Arrears, as opposed to your Mothers against Fathers in Arrears, because I know many wealthy women have poor husbands. There are examples on the other side.
Having said all that, there is one category of problems there in which the system is not working, especially on questions of access. The next issue, and it is very difficult for me to wrap my mind around this, is enforcement.
You are suggesting extraordinary measures. Let me give you the example. A social security number in the hands of a vindictive spouse could be misused. There is a great chance of abuse and breach of privacy. It can apply to either a male or female here. A vindictive parent, male or female, could say set out to get the other parent, recognizing that the kids need care but want to pursue the spouse the greatest degree possible There is a tremendous amount of vindictiveness that goes beyond that.
I am very hesitant to use abnormal remedies. The abnormal remedies should be used after we fix both the judicial system and the access question. If those two problems are addressed, one assumes that many of these other issues fall away and we do not have to use extraordinary remedies.
Let me come to a conclusion about this. I am a senator from Toronto and a Queen's Counsel in the province of Ontario, so I understand what you are saying.
Would it not be preferable in the Province of Ontario, and this might apply to other provinces, to have a special assessor similar to the master system that we have in Ontario. Once a determination of damages is found, the case then goes to a master who is a person specializing in dealing with the numbers. Would that not better serve your group? Rather than flailing against the judicial system and access to the judicial system and its penalties, should you not focus on the reformation of the system to allow for a special assessor? That special assessor would act as an accountant essentially, because this is an account-driven situation, with full powers to examine these questions. These cases could be taken out of the legal arena and into a specialized arena because of the concern of the children involved.
In Ontario, we set up aeons ago a trusteeship for children. There is a public trustee who is responsible for those children who in effect do not have parents to care for them. There is a notion in the law of Ontario, and it applies right across the country, to provide for a specialist. Would your group not be better served if you examine the issues you have raised, rather than trying to change the world, if you will?
By the way, passports are a different issue. Let me just tell you that there are very difficult problems between Canada and the U.S., when it comes to questions of privacy. We are opening up a whole can of worms there which perhaps should not be opened. Is it not a better solution to have a specialized, focused assessors court? In a sense, the special assessor would be an administrative officer who has the talent and the support and the accountants, to look at these questions and assist in settling these applications. It is user-friendly.
A woman who has breast cancer today faces a horrendous situation in the hospital. Some medical centres are trying to create an atmosphere almost like your living room at home so that the trauma of attending there is not as difficult as the disease itself. It strikes me that there is an analogy there. Do you not want to have a user-friendly court or special assessor to deal with these matters? That is where you should be putting your efforts.
I would like to be helpful here as a senator, but some of these issues cut across so many other problems that might distort our system and the cure might be worse than the cause.
Ms Pakka: We would like to see the use of mediators before going through the whole legal system. That would cut down on the time that one spends going through court. I agree with you that there should be accountants who are approachable, but, once again, you need to have all the information to give to that person before they can make an accurate assessment of the financial statements. It always comes down to that problem.
Senator LeBreton: Of course, you can have an assessor's decision and still have the problem that the person does not pay.
Senator Grafstein: Let me give you an example that might be helpful compared to the long-range proposals we are discussing here. In certain states in the United States, they do have mediation. You cannot go to a civil trial without going into the room with an assessor, who sits there and looks at your documents and tries to mediate. He is in effect a neutral mediator. If he makes a recommendation that he cannot settle the case, I can tell you the judge is very upset with the parties that have not tried to deal with this on a fair basis.
Senator LeBreton: That is done in Ontario in some cases.
Senator Grafstein: It might be useful for us to get a different model to recommend on a federal-provincial basis. I am sympathetic to your cause but I am concerned about your criticisms because they cut so deeply and cross-ventilate so many other issues that it is a bit scary.
Ms May: Sometimes you must take drastic measures when drastic things are happening.
Senator Grafstein: We could do everything you say. We could have a very miserable system, and we still may not accomplish what you want because the women or men who are confronted with this still have to go through the emotional trauma and all the rest of it. I am trying to get to the first side of the question as opposed to getting to the other side. You are dealing with the other side because the system has failed you.
Senator LeBreton: I did not take the reference to the social insurance number as something that one spouse hunts down. I took it as a job for the system. If someone is defaulting, there must be some way to follow up.
Senator Grafstein: You will recall, senator, that there was a huge debate in this country about whether we should have social insurance numbers, and the reason for that was exactly this point. There was an undertaking by the governments that these would be kept in the highest state of privacy. Who says that the spouse cannot use this for other sources? Privacy is privacy. By the way, if you are a spouse, think about your privacy being invaded.
Senator LeBreton: On the social insurance number, I took it as a way for the courts and people who are seeking to get these defaulted payments paid. It is a way of finding out where the person is. On the social insurance number, I was working for the gentleman at the time who was warning people against the possible abuses of social insurance numbers.
We could debate this until midnight, but on one of the issues that you did raise, I would like to have a supplementary. I have heard of many cases where lawyers will drag things through the court in order to get a sympathetic judge, and they are known around the system. I know a few around the Ottawa area. When you had your meetings with the Attorney General of Ontario, was there any suggestion that perhaps they would send judges who are dealing with matters like this back to school, to some sort of judges' school?
Senator Grafstein: Senator, a judge who does not understand statistical balance at age 55 will not learn enough by going back to school to use it in the time-frame he has available. You should start with experts at the beginning, experts in the numbers situation. We have such a system for mechanics' liens; we have it for damages. We have these mini-institutions within the system that deal with these issues. If in fact we come to the conclusion that there is a terrible abuse of the public interest here -- and that is what these witnesses are asking us to find; they are saying there is abuse of public interest and therefore it requires renovation -- then we are obliged to take a look at what model is the most effective and least deleterious to that solution.
It strikes me when I look at the complaints that a better solution wool be to start with such a system at the outset, as opposed to trying to renovate an entire system causing problems and distortions and not necessarily achieving better results. Social security is a very deep issue.
Senator LeBreton: My question was whether the Attorney General has indicated that new judges coming into the system would be sensitized to these issues or whether judges who have a history of prejudice in these areas will somehow be not permitted to sit on these cases. I know how the court system works but I wanted to know whether there was any undertaking to address this issue with new appointees or by having only judges assigned who have an open mind about issues like this.
Ms Pakka: The Attorney General said, basically, that they were holding forums on Bill C-82 to educate the judges but, once again, it is a matter of whether each judge wishes to participate. He discussed drivers' licences and how, for the first time, a few judges were willing to put people in jail for non-payment of child support. Surprise, surprise, the majority of spouses, except for one, found the money to pay the child support arrears that were owed. However, that applies to only a few out of the large number of judges in Ontario.
Senator LeBreton: That is a hopeful sign, at least, if there is a precedent that some judges are doing it.
Ms Pakka: It is a start.
The Acting Deputy Chairman: On behalf of the committee, I thank you both for appearing. We found your testimony to be helpful, interesting and provocative.
The committee adjourned.