Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 33 - Evidence -December 14, 2017
OTTAWA, Thursday, December 14, 2017
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-202, An Act to amend the Divorce Act (shared parenting plans), met this day at 10:30 a.m. to give consideration to the bill.
Senator Serge Joyal (Chair) in the chair.
[Translation]
The Chair: Welcome this morning, honourable senators.
[English]
Welcome to our guests and to the public who are watching our proceedings this morning of the Standing Senate Committee on Legal and Constitutional Affairs.
This morning we are going to continue our study of Bill S-202, An Act to amend the Divorce Act (shared parenting plans).
[Translation]
This morning we have the privilege of hearing first from Professor Nicholas Bala.
[English]
He is a professor of law at Queen’s University and is appearing via video conference.
Good morning, professor.
Nicholas Bala, Professor, Faculty of Law, Queen’s University, as an individual: Good morning.
The Chair: It is my pleasure to welcome you this morning. You are familiar with our proceedings. You are invited to make an opening statement.
Your article on the issue of the Divorce Act and in relation to the subject matter this morning has been circulated to the members of the committee. We will first hear your presentation, and then we will have an exchange of questions and comments on your contribution. The floor is yours, Professor Bala.
Mr. Bala: It is a pleasure and honour to be here with you via video. I’m glad that you have a couple of my papers that are related to Bill S-202. I’ve done research with mental health professionals, lawyers and judges on a range of the issues related to the matters under consideration, including interprovincial comparisons between Ontario, Quebec and other provinces. As I’ll come back to, one of the challenges and issues is that there is differential implementation and interpretation of federal legislation.
I certainly support and applaud the Senate committee for addressing some of these issues around parenting, and particularly parenting plans, but I have serious concerns about the bill as it is presently drafted. Although it has some very useful ideas that could be, in my view, put into a bigger and more comprehensive piece of legislation, I cannot support it being enacted in its present form and I don’t think that minor amendments,per se, could save it.
Certainly the issues raised are controversial; they are important; and they’re also complex. Many countries are dealing with these issues in different pieces of legislation. In terms of systemic reforms in Canada, some of the challenges are increased by our constitutional division of responsibility.
The basic idea that the 1986 Divorce Act provisions related to parenting and child care need to be amended and revised is certainly true, and I would support efforts to do that.
As the committee has heard, there was a major report from the special Senate and House of Commons joint committee. You had Roger Galloway with you yesterday, who was a co-chair of that committee. They produced a very important report, but it should be noted that it was controversial. In fact, I think the reason it was not implemented and acted upon — although there were efforts to revise it and bills brought before the House of Commons — is that it was not sufficiently balanced and child-focused, in my view.
Since 1998 — and, indeed, since 1986 — there have been substantial changes in how economic issues are dealt with. I think you heard something about this yesterday. In Canada, as a whole, I think we have a much better way of dealing with economic issues, child support, now spousal support advisory guidelines, and property, largely under provincial legislation. Certainly, further changes could be made, but we have more consistency and predictability, and less litigation, about economic issues. More cases are being settled, which I think is desirable.
On the other hand, in regard to child-related issues, we’ve had no reform at the federal level to the Divorce Act, as it was in 1986. We have seen significant changes in provincial law, as mentioned to your committee, in British Columbia, Alberta and Nova Scotia. Quebec has a somewhat different regime.
One of the realities is that we have a lot more shared parenting already in Canada than we had in 1986, or indeed in 1998. One of the papers I submitted to the committee demonstrates the increase in shared parenting. It also points out that there is significant variation across the country in terms of the extent to which shared parenting is being used.
I’m using the words “shared parenting.” That is a broad concept. I personally like the term “shared parenting.” I think it’s useful to emphasize to parents that they will have a continuing role in the care of their children.
There are, however, definitional problems. In particular, the words “shared custody,” which, of course, sounds a bit like “shared parenting,” is something very different. Shared custody is defined in the child support guidelines, section 9, as each parent having the child at least 40 per cent of the time. That is now done, in roughly 20 per cent of cases in Canada, either 50/50 or somewhere in the 60/40 range, both parents having significant child care responsibilities.
We also have broader notions of shared parenting. “Joint legal custody,” “co-parenting” — different words are used to identify the fact that both parents will have significant involvement in the lives of their children and will make decisions together.
One of the challenges you face or that any law reformers face, particularly in the family law area, is that the law is a blunt instrument to guide parents. Not only is the legislation very difficult to implement on an individual basis, but also judges and courts have limited control over what parents actually do. So I think that law reform in this area should be approached cautiously.
Speaking specifically about Bill S-202 — and it comes out of, as I say, one strain of ideas that were in the 1998 report, but it does not deal with many of the issues that were dealt with — I think the idea of parenting plans is extremely useful and should be supported, and indeed is being supported right now by the federal government. The Department of Justice website has information about how to draft and use parenting plans. More could be done there. There are many other places where people can have access to draft parenting plans. I know that, increasingly, mediators, judges, lawyers and mental health professionals encourage parents to have parenting plans, moving away from the rigidity of one parent having custody and the other parent having access. I think that basic idea is very useful.
My concerns about the bill as it is now drafted first of all relate to proposed paragraph 11(1)(a.1). I think you heard something about this yesterday. In my view, that provision will impose huge obligations on both judges and litigants — both those with lawyers, who will end up paying more, and those who are self-represented, who will face increased burdens and delays in meeting that objective. Right now we have paragraph 11(1)(b), which imposes an obligation on judges to ensure that reasonable provisions are made for child support. That already is a significant burden, but it can be easily addressed by having proper documentation about the income of the payer and the number of children.
When judges are dealing with the vast number of uncontested divorces — we are talking about 96 per cent of cases — they may spend five to ten minutes reading over the papers and making sure the child support meets the provisions of the guidelines, or there’s an explanation of why it is not, or it’s sent back for more information. It is a significant burden on judges and litigants, but it can be met.
To expect judges to get into what are reasonable provisions for parenting would be a huge undertaking for the judges. They are saying, “I can’t do this based on just reading a few documents. I need more documents and I need to meet the people.” I think it will be a very costly process. The reality is — you have heard this — our family courts and criminal courts are already clogged. I would say that proposed paragraph 11(1)(a.1) in some ways is the most burdensome provision.
Moving on to the idea of parenting plans — which I think is a good idea — this piece of legislation does not make clear the relationship between the so-called parenting plan in 16.1 and what is now section 16, which is there. It’s not repealing section 16. It will continue to have the words “custody and access,” and then laid on in a way that’s not at all clear, there is this new idea of the parenting plan. Is it mandatory? Is it optional? How does it relate to custody and access orders? Who is going to be bringing forward evidence about it? I applaud the attempt to try to deal with parenting plans, but I think this legislation is incomplete.
I’d also just make a couple of comments about some of the specific principles there. Many of them in proposed section 16.1 are desirable, in my view, but there are certainly provisions that are missing.
Two that I am a little concerned about relate to proposed paragraph 16.1(4)(d), the child’s right to know each parent. I would just caution the committee that when we say it’s the child’s right to know, what does that actually mean? What we are seeing in many cases are situations where a parent says, in cases we call parental alienation — which I can get into and explain — “I’d like to see the child,” and the other parent says, “The child doesn’t want to see you.” Already the alienating parent says, “The child has the right to see you but also the right to stop seeing you. They are 11 years old. They don’t want to see you. A judge might think it’s in their best interests. I might agree with that. But it’s the child’s right and I just want to defend the child’s right.” Talking about the child’s right to know each parent is problematic.
“Grandparents” in proposed paragraph 16.1(4)(e) is a highly contentious issue in the sense of, again, putting it in the way of the child’s right to know. There is no doubt that the vast majority of children benefit from a relationship with their grandparents, but if you’re talking about the court system, how is that right going to be affected? Can the child say, “I want a court application so grandma can come and visit”? Is grandma going to hire a lawyer for the child to exercise the child’s right to know the grandparent? I would have concerns about that.
I’m also more fundamentally concerned about what is missing from this list. It’s a very partial attempt to deal with a complex problem. As I said, the words “custody and access,” which I think are archaic and have disappeared from provincial legislation and other legislation in other jurisdictions, continue to be there. How does 16.1 relate to 16?
A second thing that’s missing is the child’s right to participate. Although the legislation talks about the child’s right to know their parents, it doesn’t talk about the child’s views, wishes or perspectives. I think both in legislation and in practice this is extremely important. Parents often don’t know what their children are thinking, especially in high-conflict separations. Understandably a child may be giving one message to one parent and another message to the other parent. There is no objective information about what the child is saying.
There is a range of ways — and, again, I can get into this, largely matters of provincial responsibility — of having children participate in a meaningful way, whether in mediation or arbitration or judicial decision making or parental negotiating. It has to be done in a sensitive way. Children have the right not to participate, but to ignore their views altogether, not to mention them in legislation, in highly problematic.
I would also support and emphasize the remarks you heard yesterday from Pamela Cross about the issue of family violence and domestic violence. Most provincial legislation that deals with this broad set of issues in Canada now specifically mentions the importance of taking account of family spousal violence, usually perpetrated against women, but by no means always. Sometimes the female is the perpetrator. It’s an issue in same-sex relations. But there is a gender dimension to it. It is not mentioned in this legislation. It’s not mentioned in the Divorce Act. I think that is a serious failing and that going ahead and dealing with a piecemeal part of this without mentioning family violence would be a serious problem and de-emphasize what is a serious issue.
Finally, it does not mention issues around culture and heritage, which I think are also very important for children and can rise in contentious ways when parents have separated. I think that’s another omission that should be addressed.
I certainly think, in sum, that we need comprehensive reform on a federal level. Reforming the child-related and parenting-related provisions of the Divorce Act is an important objective. I hope that the federal government with undertake it. I think the Senate can have an important role in that. But I worry about a piecemeal, limited and in some ways inadequate effort to reform this complex legislation.
I think clearly there are also issues around services for families. I think the federal government has a clear role in supporting the provision of services, whether mediation, counselling, access to legal services. The federal government is doing some things in that area. In my view it should and could be doing a lot more.
Finally, there is a need for research. The reality is there are a lot of things we don’t know about — well, first of all, we don’t have national statistics. We don’t even know the number of people getting a divorce in Canada anymore. We have lost track of keeping the most basic information about what is happening to separated families on a national level. Statistics Canada has a little bit of information on children of separation and divorce. We actually de-emphasize information gathering, let alone getting into some of the research.
When we think about shared parenting, the question is not, “Is it a good idea?” The question is, “Which children is this a good thing for and for which is it going to be problematic?”
Also, a final thing in that regard: How do relationships vary over time? I think actually one of the good things in the legislation is that it does mention the fact that there have to be provisions for variation. I think variation is an extremely important part. These relationships between parents and children are not going to be static. They inevitably can and should change. How is that going to be done? And on the research side, do we know how relationships presently are changing, how it’s being done? The answer, in significant measure, is we don’t.
Thank you for your attention. I would be happy to answer any questions you may have.
The Chair: Thank you very much, professor. You were within the 15 minutes that we had determined for your presentation and there is no doubt that your helpful comments will be of interest to all the senators.
[Translation]
First, I would like to invite the Honourable Pierre-Hugues Boisvenu, who is deputy chair of the committee, to begin our discussion this morning.
Senator Boisvenu: I will limit myself to a single question so my colleagues can have enough time to ask questions on this important topic.
You are discussing a subject of great concern to me, spousal violence in the divorce process. Ms. Cross from the National Association of Women and the Law said that this bill contains a presumption in favour of shared custody. Spousal violence often occurs in the divorce process. I am considering the case of a person named Audrey, who, together with her children, was the victim of an attempted murder. However, her former spouse has just obtained shared custody — which I think is completely unacceptable as regards the protection of this woman and her children. She said there was a presumption in favour of shared custody.
To protect these women and children, wouldn’t it be preferable to amend section 16 of the Divorce Act to include notions of protection in situations of spousal violence?
[English]
Mr. Bala: Thank you. I think that’s a very important issue. I think it’s not in the present Divorce Act. It is mentioned in a number of pieces of provincial legislation, and indeed Canada has lagged behind the rest of the world in amending our parenting legislation. Almost every country in the world has new — when I say “new,” they have enacted legislation in the last 20 years that does raise some of the questions that are addressed here — the good ones; the parenting plan issue.
On the other hand, all those pieces of legislation specifically address the issue of domestic violence and point out that there really needs to be a balance. Domestic violence can be and often is extremely serious. In some cases, despite domestic violence, there can be a meaningful relationship with a parent who has been violent maybe on one occasion. The fact that there has been one instance of domestic violence, if it is not a serious incident, it should not necessarily terminate the child’s relationship with that parent.
Also, somewhere in there is an issue of false allegations or exaggerated allegations of domestic violence. I want to emphasize that we have a lot more founded allegations that are unjustly denied than unfounded allegations, but it is something of an issue. One can’t simply say, “There is an allegation. Let’s just cut off the relationship with that person altogether.” There needs to be a fact-finding process.
But the major deficiency is that this legislation and the present Divorce Act do not even mention domestic violence as a factor.
Fortunately, judges in Canada, as a result of case law and awareness of social science literature and influences by the provinces where we have legislation, are taking account of this factor, but we need to do a better job. Of course, many of the people dealing with these cases do not have lawyers, they are self-represented and are just reading the act. If they read either this act or the present act, they think domestic violence doesn’t matter at all. So, senator, you are exactly right: It needs to be addressed in the Divorce Act.
[Translation]
Senator Dupuis: Mr. Bala, thank you very much for that overview of the bill, which you present as a partial enactment, whereas what is needed is a more systemic reform of this regime.
In one of your remarks in particular, you referred to the bigger burden the bill would impose on the courts and emphasized that 96 per cent of divorces were uncontested. Consequently, this would put an additional burden on the courts as a result of the current section 2 and clause 4 of Bill S-202. Could you provide more details on that additional burden?
[English]
Mr. Bala: Well, I am particularly concerned about proposed paragraph 11(1)(a.1) that requires, in its words, the court to be satisfied “. . . that reasonable arrangements have been made for the parenting of any children of the marriage . . . .”
We call them uncontested cases, where sometimes one of the parents is really not involved at all and the other parent is simply going ahead with the divorce. In many of the cases, the parents have informally negotiated a resolution; in some of the cases they have seen a mediator who has helped them come up with a resolution; and in many cases they have had lawyers who have negotiated a settlement. Sometimes they have met with a judge in a case conference who has suggested how they might settle it, and then they go away and talk to lawyers and draft a separation agreement. I should say there is a bit of variation by province. In Quebec, it may be a little lower at 92 per cent and some provinces around 98 per cent, but those are cases where judges do not make the ultimate decision. Parents, and appropriately parents, make the decision and live with it and then change it if they need.
But those cases now, as regards parenting and the parents arrangements, are accepted. The judge has no responsibility to look over and say, “Oh, you have this plan. Let me not only read the plan, but I must be satisfied it meets the child’s best interests.” What does that mean? How do I know that? Do I have to hear from the parents?
In the Divorce Act, we have a number of provisions that judges are required to follow. We do require that judges be satisfied that child support is paid in a reasonable amount, which typically means the amount required by the child support guidelines. Judges take that responsibility seriously. It’s already a significant burden on parents, whether with lawyers and paying them or without lawyers and trying to figure out what they mean on their own. If they don’t speak one of the official languages, they are challenged even more, coming up with some evidence about the economic situation of the children and of the payer and saying to the judge, in writing, “This is the arrangement for child support.” But it is comparatively easy because the child support guidelines in most cases say that if you know the payer’s income and the number of children, you know what the amount of child support should be.
So one can look at the income tax return or even the last pay stub and say, “The child support here looks reasonable and I will sign off on it.” But if a judge is required to be satisfied about the parenting arrangements, this will impose a much bigger burden on, first, the parents to bring forward evidence; second, the court; and there will be interaction going back and forth.
So it is a financial burden on parents, a time burden on parents and an emotional burden on parents.
On the court side, it is a time burden on judges. Then the question is: Are we going to appoint more judges to deal with the extra workload? Right now we already have a crisis of access to justice in terms of delay. So I think proposed paragraph 11(1)(a.1) is very concerning.
[Translation]
Senator Dupuis: Thank you. That clarifies your position very nicely. When I heard you talk about the additional burden on the courts, it made me think that we were also creating a new burden for parents. The bill calls for reasonable arrangements to be made without defining the criterion on which “reasonableness” is based. Not only does it require that reasonable arrangements be made, but it also stipulates that the granting of the divorce be stayed in the absence of such arrangements. Doesn’t that also impose a very heavy burden on parents who may have made arrangements that are entirely in the child’s interest? An additional burden would be placed on them under the bill.
[English]
Mr. Bala: Yes, I think that it is a very important point. In some cases, the judge might simply say, “I’m not granting you the divorce,” but I think more commonly the judge would say, inevitably, “I need more information. We need to have a hearing. I’m not just going to deal with this by looking at the documents, and I need to see and hear from you.”
I think a fundamental premise of the Canadian justice system, and maybe Canadian society, is that parents are presumptively in the best position to make decisions about children, which is what happens with intact families and with most families where parents are separated. There certainly is a role for professionals like judges, lawyers and mediators to be involved. Further, I think it’s important to remember that underlying a lot of this, if there are serious issues of abuse, child protection agencies in every province may be involved.
But speaking about the Divorce Act itself, which is the piece of legislation before you, this is dealing with people who are married and getting a divorce. They want the divorce so they can remarry and move on with their lives and change their legal status. What we now say is before you can do that, we must be satisfied that economic provisions are made for children, which are relatively simple.
Here we are saying you have to meet with a judge and, effectively, you have to satisfy a judge about what you have done and why you have done it. In the vast majority of cases, parents do what is best for their children and know what is best. And when we say “best,” it is best taking into account the needs and realities of parents.
One might say there might be optimal arrangements for children. The reality is parents, both intact families and separated families, face economic pressures, logistical pressures, job pressures, and they say, “This is the best arrangement that I can make for my children, taking into account all of the circumstances.” And then to say, “You parents may think that, but now you have to persuade somebody else it is,” that’s a huge burden that we don’t place on families in other contexts. It is a burden, and I don’t see any gain for society.
The reality is judges correctly make decisions based on law. They are not well placed to say what is best for this individual child, at least without very substantial evidence. If we expect judges to make decisions about children, and they sometimes have to if the parents can’t agree or can’t resolve it by mediation, they do go to trial. At that trial, which is a very expensive process, there will usually be a lot of evidence from social workers, psychologists and others, that this is best for this child. Then the judge hears all the evidence and decides. But it is a hard thing to do on the basis of just documents and without meeting the parents, for example.
Senator McIntyre: Thank you, Professor Bala, for both your oral and written presentation.
Yesterday, the committee heard from the Canadian Research Institute for Law and the Family. It was made clear to committee members that Alberta’s Family Law Act and British Columbia’s Family Law Act set out factors that can assist both the court and the parents in determining the best interests of children. Those factors are child-centred, as are the principles proposed in Bill S-202.
I mention this to you because in your brief, you also mention the possibility of following the lead of provinces like Alberta. But then again, you speak about the approach taken in Australia, which is an entirely different approach, and I would like you to elaborate on that, please.
Mr. Bala: As an introductory comment, one of the challenges in Canada is that we have this divided jurisdiction between federal and provincial responsibility for making parenting arrangements.
In theory, the Divorce Act applies in every case where people are getting divorced. But in provinces where there’s provincial legislation that in theory just deals with unmarried people — either they never married or they never even cohabited — and they’re having a dispute about their children, they use those pieces of legislation.
In fact, some of the research we have found that what is understandably happening is that judges within a province want to be consistent and not say, “Well, I dealt with this unmarried family one way and these people are married, so I’m going to deal it with a different way.” The provincial legislation tends to affect how federal legislation is being interpreted.
In constitutional theory that shouldn’t happen, but in reality it does. I think it’s child-focused and shows that, to some extent, family law, while it has a national dimension, also has provincial and local dimensions. That’s just a reality that we have to deal with in this country.
We do see somewhat different approaches in Alberta, British Columbia and Nova Scotia changing, and the provincial legislation is affecting how the federal legislation is being interpreted.
I think the same is true, by the way, in Quebec, albeit with a different context there. For example, Quebec has almost no use for sole custody, so their civil code provisions are also affecting how the Divorce Act is being interpreted.
In terms of where we should be going, both papers I submitted set out some ideas about how we should be developing. One of the differences in Australia is they put a lot of resources into child services and, I should say, into family law research.
Australia is a country that takes family law really seriously, and I think they’ve had good results to show for that. They have a national network of so-called family relationship centres where people can go for counselling, support and aid with, in some cases, reconciling people to stay married or stay in the relationship, or, more commonly, to help them separate in a child-focused way. They put the resources into it, and I think they’ve had positive results as a result of that.
In terms of their legislation, they’ve gone back and forth. While I like some of the things they’ve done in Australia, if I was looking for a model in Canada, I think the kind of work that’s been done in Alberta, British Columbia and Nova Scotia — each of which is similar but each of which is also a little different — could well serve as a model for Parliament and should certainly be taken into account.
The actual Australian legislation is extremely complex and has caused controversy in that country. What I was referring to in Australia was the fact that they put the money into services, which I think is useful and well spent and has shown positive results. They do better research than anyone around the world in terms of family justice because the government is putting money into it. Some of the questions that have been asked are very important. We don’t have answers to them in Canada, but in Australia, they at least know what’s happening in their country.
Senator Gold: Welcome, Professor Bala. Thank you very much for your testimony.
I would like to ask you to comment on two things that were said by witnesses before this committee previously. I’ll give them to you both.
Yesterday, John-Paul Boyd characterized the principles set out in Bill S-202 that are supposed to be taken into account in a parenting plan as values and ideological and not necessarily appropriate given the lived experience of many families.
The second question relates to testimony from Ms. Kirouack, who worried that the provisions of this bill and how it might interact with the Divorce Act and other matters might compromise or complicate a focus on the best interests of the child.
I’d appreciate your thoughts on those two remarks of previous witnesses.
Mr. Bala: I had the privilege of watching the testimony yesterday, and I thought that both Ms. Kirouack and Mr. Boyd had very good comments. I agree with much of what they said.
If there’s a place where I might have a shade of disagreement with Mr. Boyd, it was referring to that list as ideological and value-based. Inevitably, when one thinks about family law, there are two kinds of statements one can make. One is value-based. We do have values in this country around families that I think are passionately held and deeply affect everyone, because everyone has family or knows people in families, and that influences people. So there are value statements and then there are statements based on social science research.
For example, there is the issue of domestic violence, which was, by the way, historically completely ignored in family law and perhaps, more generally, in Canadian society. One of the things we’ve discovered through social science research, as well as hearing from people about their lived experiences, has been the enormous social human cost of domestic violence.
And that is not only for victims — although that’s a lot of it — but also for their children. Children who live in places where their parents are arguing, let alone where there’s violence, suffer as a result. We can see that in terms of their brain development, behavioural development and so on.
So there are things one can put in legislation that would reflect some of the social science literature that we have. Domestic violence would be a good example.
Contact with parents is another set of issues where literature suggests it’s often valuable, but I think what Mr. Boyd pointed out was that contact with both parents is not always desirable for children. It’s not always in their best interest, especially if there’s violence.
Some parents ignore their children after separation. I would actually say the issue of the disappearing parent — I don’t mean that literally, but metaphorically in reference to the parent who has left the relationship and doesn’t really want to see the children — is a huge social problem that understandably can’t be addressed by the legal system. Those kinds of issues that are based on social science research are also reflected in legislation.
I wouldn’t dismiss statements because they are value-based and ideological as opposed to those founded in good social science research. I think there’s a place for both in our family law legislation, so I wouldn’t have been quite as dismissive, but I’d certainly want to be clear about the basis of a statement. Are we saying this because we believe that this is something that should happen, or are we saying this because we know or believe that this is something that would promote the welfare of children?
That’s one of the problems with the whole concept of the best interests of the child. It’s a wonderful concept and I support it, but I also recognize its limitations. When we say something is in the best interests of the child, how do we actually make that determination, whether “we” is a parent, a judge or a politician? What is best for the child? Is it best for the child to go to a particular school, such as a bilingual school? Many people in this country would say, “Yes, it is,” but the other parent says, “No, I’d rather they go to a school that is closer to home so they can walk.” What is best for the child? Who’s to say that and how do you make that kind of determination?
It depends on the individual child. Maybe they have difficulty with languages. Maybe they’re gifted. It’s very contextualized and, ultimately, has an element of values but also an element of science.
This is the nature of family law. We see both values and social science being intermixed and intermingled in a very complex way. To the extent that Mr. Boyd was saying that, I certainly agree with him.
To the point of Ms. Kirouack, I think she quite correctly brought up a whole set of issues about how proposed section 16.1, as it is now, sits with section 16 as it is in the act. The two provisions do not mesh together well. There are some inconsistencies and it’s not clear, particularly in how subsection 16(10), the provision that calls for so-called maximum contact to the extent that it’s consistent with the child’s best interests, fits with some of the statements and ideas in proposed section 16.1.
Senator Pratte: Professor, thank you for some interesting testimony. You mentioned that the concepts of custody and access are archaic, and I guess most people would agree with that.
In the process of modernizing that portion of the Divorce Act and trying to salvage parts of Bill S-202, I was wondering whether you thought that the concept of parenting plans would have any place at all in the eventual modernized Divorce Act or not.
Mr. Bala: I think the idea of parenting plans is very valuable and the idea of contrasting the notion of a parenting plan as opposed to a custody and access order. You’re right; those words are, as I think you would acknowledge, senator, archaic in the sense that when you think about custody, ordinarily you think of jail.
In the history of parenting provisions, going back to the 19th century, children were treated as property, and that’s why you get those words — access to a piece of land, access to a child. That’s where those words come from. Those words clearly have to change. These words at best are words that were appropriate in the latter part of the 20th century. We have to modernize that.
The idea behind a parenting plan is a good one. It tells parents and the professionals working with them, “You’ve separated and are no longer intimate partners; you have to have a plan for your children.” The parenting plans — and there are different forms of them — address specific issues. What will be the arrangements about residential time? I think that’s in here. That’s good. What’s the schedule that you’re going to have for the children? What decisions are you making about their religious upbringing? Maybe you agree; maybe you disagree. How will you resolve that? How will the child have some religious instruction or celebration with each parent? How are you going to deal with extracurricular activities? How are you going to make health decisions? You specify that in the plan.
One of the key things that I think is good in this legislation is that it recognizes those plans have to vary. One of the challenges in our legal system, Senator Pratte, is that most situations we’re looking for finality. If it’s a criminal matter, someone is found not guilty and that’s the end of it. There’s no appeal. We don’t go back into it. If it’s a civil case, there’s a monetary judgment, you pay the money and that’s it.
But in a family case, especially around parenting, we know it’s going to change as children get older and as parents enter into new relationships. We need to think about how parents are going to deal with that in a child-focused way. How are they going to hear from children? Again, I mentioned the child’s view doesn’t come into this at all. In fact, most parents can and do say, “Let’s make sure we’re hearing from our child, without putting pressure on the child, but letting the child have some voice in that process.”
That aspect of it, the idea of having parenting plans, of using concepts like parenting time, parenting schedule, residential schedule and specifying the kinds of issues that we deal with are very useful and will be found in the ultimate resolution. I’m hopeful that it’s possible — I don’t think this needs to be salvaged. I think this needs to be restructured, and I’m not sure your committee has the mandate to say this is a small part of it. We’ve got one room here, let’s bill a house around it. If you can do that, then that’s fine. But if you say this is very problematic because we’re only dealing here with the rec room and we have to put in a kitchen and bathroom before we do anything here, you might say this is not salvageable but part of it will be in the final plan.
Senator Pratte: You’re leading to my next question. How should Parliament move forward to look at this? As you mentioned, the joint committee 20 years ago came up with a very controversial — this is a very difficult, complex, controversial issue. How should Parliament move forward to try to tackle this difficult issue?
Mr. Bala: I think we’ve seen a lot of movement. I’m optimistic. One of the papers I set out there, I think we’re in a different position than we were in 1988. In particular, I think both on the service side and the changing family reality, changes in the justice system, we can move forward.
One possibility would be to have a special joint committee again. Another possibility is to call in the Department of Justice to engage in a process of consultation. I should say, and it’s a matter of public record, that they have been consulting at different times. They have heard and are continuing to do research around what family justice professionals — I would include lawyers in that, but also mediators, judges, counsellors, social workers involved in family justice — are thinking, and also involving parents and parenting groups saying, “What can we come up with here?”
I would like to see the federal government introduce legislation that deals with this issue comprehensively. We could then have a process of hearings in the Senate and the House of Commons asking, “What changes can be made?”
With regard to bringing in the provinces, there’s a federal-provincial-territorial working group, as you know, on family justice. Bring in those kinds of groups and say the federal government has consulted with these groups and now the Department of Justice is prepared to put forward a comprehensive legislative solution.
I think much of the groundwork has been done there in terms of meeting with the federal-provincial-territorial groups. It has to be a priority. One of the challenges, as you know in your committee, frankly, is that criminal law seems to push out everything. Criminal law is hugely important, but when is family justice going to get a position on the agenda?
The Chair: Thank you, professor.
Senator Fraser: Welcome, Professor Bala. This is extremely interesting.
You addressed my first question in large measure when you were responding to Senator Gold. So I’ll just go straight to my second and less sweeping question, which has to do with the paragraph that would provide that:
(d) the child has the right to know and be cared for by each parent, including the right to have a personal, meaningful and ongoing relationship with each parent . . . .
The word that struck me there most of all was “meaningful.” I was trying to apply that to teenagers of our acquaintance. Is there jurisprudence that you know of that uses this word “meaningful,” or is this a novelty?
Mr. Bala: One of the issues you raised is teenagers. Of course, up to the age of 16 or 18, children are affected by this legislation, particularly around child support. I think financial support for teenagers, as difficult as teenagers sometimes are, is very important. To say, “They’re being difficult, so we’re not going to support them,” we don’t think that.
But around issues of parenting, as your question implies and as other witnesses have said, it’s important to recognize that children are going to make their own decisions, some of them which may be good, some not so good. We have to take account of their voices, their role and their position in all of this.
I think that the word “meaningful” appears in some legislation, but it’s not put in this exact way. Meaningful, like everything here, is going to be contextual. What it means if dad is in the navy and is at sea for three months of the year is different from what it means if dad is literally around the corner and the child is living with mom.
I think the word “meaningful” is a useful one. Other legislation talks about “significant,” the point being here that we’re moving. In 1986, most arrangements were that the children were living with the mother. She had custody of the child and they would see the father maybe every second weekend. With most situations of separation in Canada now, if the parents are in reasonable proximity with one another, the child is seeing the other parent, who is often the father, but is increasingly the mother, much more than every other weekend. There are midweek visits, more time in the summer and more time at various vacation periods. I think meaningful means more than marginal.
On the other side of this, when one looks at research, in many cases children don’t see their non-primary parent once a month. Studies reveal children often don’t see them — often it’s the disappearing dad. Sometimes it’s because of his decision. Sometimes it’s because mom has moved away with the children.
Another thing we haven’t gotten into here is the issue of relocation. A number of provinces, when they talk about best interests of children, say one of the issues we have to address in legislation like this — this is true in Nova Scotia and British Columbia — is how we make decisions if one parent wants to relocate. That’s not even mentioned here.
I think it’s sort of implicit in the word “meaningful,” but most jurisdictions that have dealt with this issue — again, they have reconstructed their house — have dealt with relocation as well. I think that, too, should be part of any comprehensive reform. It’s an issue that I address specifically in the paper that you have.
Senator Fraser: Thank you.
Senator Pate: Good morning, Professor Bala. Thank you for your decades of work in this and other related areas.
You just raised the house issue again. I thought it was interesting that the analogy used is that you’re building a house around a rec room. I want to talk about the people who don’t even have rec rooms.
At a recent family law conference I was at, a lot of time and energy was taken up talking about the number of unrepresented individuals who are appearing increasingly in family law matters. I’d like you to speak if you could, please, about the impact that Bill S-202 would have on Canadians who would be unrepresented, those who might not be able to afford legal services or for other reasons choose not to be represented.
As well, what resources are available? I know that there is information from the Department of Justice for parenting plans, but what other material would need to be available? And what other implications should this committee be aware of in considering this bill.
Mr. Bala: Thank you, Senator Pate.
The issue of access to family justice is a very important one. Although I didn’t address it much in my comments, it’s one that I’m very much aware of and I’m working with various groups, particularly in Ontario but also nationwide, to try to address those issues. There’s not a single simple answer. I think clearly legal aid is a part of it. Increasing the use of law students is another part of it. I think in my mind there is a limited role for paralegals, which we’re talking about in Ontario, but it has to be closely monitored and supervised.
One of the things we need to improve access to is what we’re calling limited scope retainers, recognizing that one doesn’t necessarily need full representation or can afford full representation throughout the process; so getting access to lawyers for a limited period of time to get some constructive advice and let the parent do most of the work, but having a lawyer provide some assistance.
So there are a lot of things that can and are being done about them.
One of the real challenges with regard to that issue is how much do we expect the government to pay for it? Right now we’re in a situation where there are pending cutbacks. In some provinces there are cutbacks, other provinces there are freezes, some places where we have increases, such as Ontario, but recognize there’s a limited extent to which governments will fund legal services.
To what extent can we reasonably expect parents to pay for services, and can we make the provision of those services more efficient? Use of the Internet has been very important. A lot more needs to be done, much by the provincial governments, but some by the federal government as well. I think providing information to people is very important.
I think the reality and one limitation is that people who are going through separation or divorce are going through an inherently extremely difficult process. Print information, Internet information, is only going to have limited value. First of all, many people can’t read English or French or have difficulty just in understanding the material that’s available. Secondly, people need individual counselling and support to go through this process. When I say “individual,” it could be a mediator. As I mentioned, in Australia they have family relationship centres that are staffed by people who are not lawyers but who have access to lawyers and legal information, and they have some paralegal training. I think we need a broad approach to this.
The kind of work that has been done by the so-called Cromwell committee on access to family and civil justice is extremely important. Changing the language, by the way, will help in the sense that when an unrepresented person asks what custody and access are, they have no idea. What they’re actually thinking is, “I’ve left my partner, so how are we going to parent our child and what are the decisions we have to make? ”
So the kind of materials the Department of Justice is starting to put on its website is a good starting spot. Would I like to see a more sophisticated set of materials available? Yes, including things like videos. There’s a lot more that can be done with the federal Department of Justice website, which will take resources, of course, but I think it will be useful in terms of parenting education.
Really what we’re talking about is how we can help parents to go through a restructuring of their relationship and recognize it’s going to be an ongoing process. You’ve just separated. Let’s help you through that. Things change two years later because somebody is moving: How can we help you through that? What’s the division between what we expect parents to pay and what the governments are going to pay?
I think governments have to recognize they have an obligation to all children. It’s not enough to say, well, parents won’t pay for it. In some cases, even if the parents won’t pay for it, the government should be providing various kinds of services, not to the parents directly, not about their financial matters, but saying, “Someone should go investigate what’s happening to this child.”
We’re fortunate in Ontario that we have the Office of the Children’s Lawyer that will do investigations if parents can’t afford or won’t do it. In other provinces we don’t have some of those kinds of services. When people ask what is in the best interest of the child, I think that’s case-specific and we need to have investigators, largely social workers, in some cases lawyers for the children, who go and find out and make recommendations to the judges. So I think, yes, there’s a lot to be done.
This bill, however, doesn’t address — I mean, in an inferential way it does. It suggests that those services may be needed, but it doesn’t deal with it explicitly.
I think the issue you’re raising about lack of resources is particularly pronounced in the context of parents who are separating. When parents are separating, it is almost always a huge economic crisis for everybody. One of the biggest negative effects of separation on children is the fall in their standard of living. We’ve partially addressed that by helping increase the amount of child support.
I think the work that Parliament did in 1997 getting the child support guidelines in place and, for example, requiring judges to be satisfied with the adequate amount of child support was very important. We now need to do similar work in regard to parenting. I would certainly encourage the Department of Justice, and Parliament has a critical role in getting that going.
Senator Sinclair: Welcome, Professor Bala. It’s good to see you again.
In the time we have left, I wonder if you would comment on the way in which you see there might be, or not be, conflict between the issue of shared parenting, which this bill appears to call for, and the issue of child support. I see the potential that the child support requirement is going to be affected by a decision with regard to shared parenting. Maybe you have a different view. Would you mind sharing your thoughts?
Mr. Bala: Again, this is an issue that is not fully addressed.
As I mentioned, if someone gets to the 40 per cent threshold in terms of what the child support guidelines call shared custody, then that would very much affect child support.
I should say that I think the provision that deals with shared custody in the child support guidelines, section 9, is another provision that needs to be addressed. I’ve written in different contexts about the need to reform section 9 to deal with it in a more child-focused and effective way.
I think you’re exactly right, Senator Sinclair, that in many cases the move to try to get shared custody actually reflects not child-focused concerns but economic concerns. I think we have to see that interrelationship too. This is another reason, I think, to take a longer, deeper and wider look at how to deal with these issues.
Senator Sinclair: Thank you.
Professor Bala, I read the article that you did for the Toronto Star. I wondered if you’re of the view that this shared parenting approach is really a euphemism for joint custody. Is it the same thing, in your mind?
Mr. Bala: I’m not sure it’s a euphemism. It’s a different and more child-focused term, but I think it certainly encompasses joint custody.
One of the issues is that joint custody itself is a very broad term. What does joint custody mean? Joint legal custody, joint physical custody? And now we have the concept of shared custody.
I do not see shared parenting as the same as shared custody. Shared parenting is a broader concept, and it’s an important message to give to most parents. When you’ve separated, there will be cases where one parent should be excluded, and we need to recognize that. But, in most cases, parents have to get the message — and Parliament can have an important role to play — that you will both continue to be the parents of the child. In that sense, while I have real concerns about the legislation as drafted, I think it sends important messages to parents: You are not getting rid of the other person. You’re going to be co-parents, shared parents, for the rest of that child’s life. Figure out how you’re going to work around that and develop a plan. That core message here is a really important one. The problem is that it’s so limited in how it’s defined and leaves so many loose ends, including around child support, that it would be problematic to enact it as it is.
The Chair: Professor, what has been the impact on the Convention on the Rights of the Child to define what is in the best interest of the child? Would it be time to review the Convention on the Rights of the Child? It dates back to the 1990s. Society has evolved, and our perception of the rights of the child might have evolved also.
Mr. Bala: Thank you, senator. I completely agree — and, again, in the paper that I mentioned — that the present Divorce Act is inconsistent with the Convention on the Rights of the Child. Judges are starting to cite the Convention on the Rights of the Child in helping to interpret provisions like the Divorce Act, but, certainly, the review of the Divorce Act must take into account the UN convention. At present, it doesn’t.
The Chair: On behalf of my colleagues, professor, we would like to thank you very much for your contribution this morning. I’m sure that each and every one of us has considered it very enlightening for the future reflection on this bill.
Mr. Bala: Thank you.
[Translation]
The Chair: Honourable senators, for the second panel of witnesses, I am very pleased to introduce Mr. Alain Roy, Full Professor at the Faculty of Law of the Université de Montréal, and, on behalf of the Barreau du Québec, Ms. Arianne Leblond, a lawyer in the Secretariat of the Order and Legal Affairs, and Mr. Jocelyn Verdon, Chair of the Family Law Committee.
We invite you to make your presentation, Professor Roy. If you can do so in 10 minutes, that will then give senators time to speak with you.
Alain Roy, Full Professor, Faculty of Law, Université de Montréal, as an individual: First, I want to thank the Standing Senate Committee on Legal and Constitutional Affairs for inviting me here today. It is a great privilege to be able to express my views on Bill S-202.
At the outset, I want to thank and congratulate Senator Cools for this public bill, a bill that conveys a modern and pluralistic conception of the law, normativity and contractual commitment. Senator Cools trained in psychology and sociology, not law. That is surely no accident. It often takes non-lawyers to force lawyers to expand their vision of the law, which at times is somewhat reductive, and I say that, of course, with all due respect.
When I began my university career, I did a great deal of work on the application of the relational theory of contract in intimate relations inspired by the work of great legal sociologists such as the American Ian Macneil, of Northwestern University, and the Canadian Jean-Guy Belley, of McGill University, under whose direction, incidentally, I did my doctoral thesis.
In relational theory, a contract is not a defensive weapon or an instrument designed to preserve the rights of one party over the other, as people have traditionally thought of it, but rather an instrument of peace, dialogue and cooperation. From the relational perspective, the idea is not to use a contract to negotiate against the other party, who plays an adversarial role, but rather to establish parameters that are designed to maintain a relationship between partners in a spirit of mutual trust. This is what the parenting plan provided for in Bill S-202 represents.
In the relational perspective, a contractual arrangement serves as a living and evolving communication tool. Rather than winding up in a safe deposit box, the engagement or arrangement that the parenting plan conveys is posted on a bulletin board or refrigerator, like a blueprint, and each party may refer to it to guide his or her actions.
In the situation that concerns us here, we are of course talking about actions intended to benefit the child, the vulnerable being for whom the parents are jointly responsible, despite their breakup, particularly in Quebec, where child custody does not deprive the non-custodial parent of parental authority.
Yes, divorce terminates the marital relationship, as we all know, but it does not terminate the parental relationship, which we must strive to construe as narrowly as possible. The principle already provided for under subsection 16(10) of the Divorce Act, that the child should have as much contact with each spouse as is consistent with the best interests of the child, is not enough. We must equip parents to enable them to achieve this objective for the child’s benefit, and that is what Bill S-202 does.
Lawyers who take a legalistic view of the law will tell you that it is not law but rather post-divorce psychology that has no place in a statute. Lawyers who have a pluralistic conception of the law will say that a parenting plan establishes the basis for a source of relational normativity that will help consolidate each party’s sense of engagement and preserve their parental relationship for the child’s benefit.
Since that is indeed the objective here, Bill S-202 is not a bill that favours parents, or more especially the father, as some may claim. It is a bill that favours the child. It is not the parents who have a right to maintain their relationship with the child after divorce, but rather the child who is entitled to maintain his or her relationship with each of the parents. And the parents are responsible for preserving that right of the child.
I will conclude by noting what I think is a deficiency in this bill. Children are also entitled to take an active part in the decisions that concern them. I think we should consider the idea of including children in the parenting plan process, where their age, judgement and the situation permit. To the extent that children are full-fledged subjects of law, and that is the presumption of Bill S-202, I consider it somewhat paradoxical that they are completely and systematically excluded from the process. In matters pertaining to youth protection, adoption and consent to care, children are viewed as participants in the decisions that concern them, and, in my humble view, having regard to all the circumstances, that should be the case in the divorce process.
Thank you for your attention.
The Chair: Thank you, Professor Roy. Ms. Leblond, you have the floor.
Arianne Leblond, Lawyer, Secretariat of the Order and Legal Affairs, Barreau du Québec: Good morning, everyone. I am accompanied by Mr. Jocelyn Verdon, Chair of the Family Law Committee of the Barreau du Québec. He will outline for you the Barreau’s position on the bill under consideration.
Jocelyn Verdon, Chair, Family Law Committee, Barreau du Québec: Thank you for your invitation. It is always a privilege to take part in this discussion process, which, in some cases, concludes with the adoption of a bill.
The barreau’s position on the bill is as follows. In Quebec, the joint exercise of parental authority is clearly laid down in the genes of our Civil Code. Culturally speaking, this issue has been part of the political landscape for more than 15 years; it is an integrated feature. And in every breakup, regardless of who has custody, both parents continue to exercise joint parental authority. They must consult each other on all important matters pertaining to choice of schools and choice of sports activities. Where they disagree — and this is the cornerstone of our code — it is very important that people be able to apply to the court and that this joint exercise of parental authority be supervised by the court. Consequently, this is public, and it forms the very basis of our system.
That brings me to this bill. A process for resolving disputes over a parenting plan could be delegated under new paragraph 16.1(1)(d), which is set forth in clause 4 of the bill. This might cause a problem in Quebec because that authority currently cannot be delegated to someone else. In our view, joint exercise of that authority is fundamentally important and must necessarily be managed by a judge.
The bar’s other position concerns the idea of making this mandatory, because a judge could refuse to render judgment if there were no parenting plan. We feel that might cause problems. If we are talking about access to justice, parents often do not need to make a parenting plan because both are culturally accustomed to consulting each other about activities when solving problems during the divorce process. Requiring this type of plan in Quebec might thus raise more issues than it resolves. Since joint exercise is already provided for, this would therefore require people, on every occasion, to consider problems that might or might not arise. It is important to bear this in mind.
The members of our committee are also concerned because that would create two classes of persons. People in de facto unions would not be governed by this parenting plan. So that is a problem because we feel all families should be governed in the same way.
The idea behind the bill is a good one, but we must ensure it reflects the specific aspects of what is already being done in Quebec.
The Chair: Thank you. Now I have the pleasure of inviting the deputy chair of the committee to ask our witnesses the first question.
Senator Boisvenu: Welcome to the witnesses.
The federal government has jurisdiction over divorce by law and the provincial government is responsible for its execution before the court. Only about a third of Quebec couples will be affected by the bill. Since we know that Quebec is experiencing a two per cent to three per cent decline in the number of marriages every year, we can say that very few couples will be affected by this act in 20 years’ time.
One aspect that really worries me was raised yesterday by the National Association of Women and the Law, which is greatly concerned about divorces that occur in a spousal violence context. The cause of many divorces is in fact spousal violence, and the children are often taken hostage. Violence even occurs during divorce proceedings. The association I referred to testified to the effect that this bill might establish a prejudice in favour of shared custody. For many women in difficult marital situations, that prejudice applies equally to the spouse, or former spouse, and to the woman, who in many instances is involved in complex proceedings without legal aid. We know that a means test is applied for legal aid eligibility and that the divorcing couple will have to pay costs in the order of $50,000 to $60,000. So that means that the lawyers get richer while the couple gets poorer.
My question is this: will this bill benefit these women who are going through the stages of the divorce process? Or will this shared custody idea be another significant burden to bear during that process? Some women are involved in criminal cases during their divorce proceedings because they have been victims of violence or even attempted murder. Will the bill help these women or is there a chance it will penalize them?
Mr. Roy: Thank you for your question. I see no presumption in favour of shared custody in this bill. The confusion may stem from the fact that the concept of custody in Quebec law is not the same as in the law of the English Canadian provinces. In our view, custody is an attribute of parental authority; it isn’t parental authority per se. The parent who does not have custody at the time of the breakup or at the time of the divorce nevertheless retains parental authority. That parent loses only the attribute of the child’s physical presence in the terms and conditions provided for in the judgment or agreement. What I see is a plan to share parental responsibilities that may prevent potential subsequent conflicts.
You raised the issue of spousal violence. The parenting plan is not really consistent with situations of spousal violence involving structural inequality, threats and fear. Some cases are excluded from these main objectives, somewhat similar to mediation. A minimum amount of communication and conditions conducive to communication are required for mediation purposes. I think the same principle applies here.
Of course, clause 2 of Bill S-202 suggests that the court may stay the granting of the divorce until arrangements are made. That seems to mean that no judgment will be possible until the parties have submitted a plan. Perhaps those terms should be reviewed so it is clearly understood that the court could grant the divorce in situations where it is clearly unthinkable or legitimate to expect the parties to file a plan to share parental responsibilities.
Mr. Verdon: If you look at what is being done in Quebec, violent situations do occur, and the section providing for the joint exercise of parental authority is already there. Quebec has a 15-year history of managing this kind of situation, in which, for example, a woman who is a victim of spousal violence is required, at the time of separation, to choose a school or activities for her child and so on. In many cases, parents who have problems of this kind may apply to the court for decision-making attributes, commonly called a “partial deprivation of parental authority.” The court may be asked to say that communication is impossible. At that point, it may delegate.
Senator Boisvenu: We see cases of violence against women and children reported in the Quebec media. The court grants shared custody in spite of it all. I’m trying to understand that.
Mr. Verdon: The incident you brought to our attention is unacceptable from the get-go. However, the courts have to manage two things: fathers who want to take their place and cases in which violence has been reported but has not in fact occurred. Judges hear the parties and rely on what is brought before them. Instead of recognition, they definitely favour contact and assert that children need to see both parents.
Senator Boisvenu: As Mr. Bala mentioned earlier, it might be preferable to review the act as a whole in order to modernize it and make provisions to address these similar cases of spousal violence that too often occur. Shouldn’t the entire Divorce Act be modernized?
Mr. Roy: The act has not been punitive in perspective since 1968. All decisions have had to be made in the interest of the child since 1985. The child’s interest is obviously a variable-geometry concept, and it is the courts that interpret it in the last resort. We are always uncomfortable when we see certain judges view violence in isolation, as though the father’s violence against the mother could not potentially affect the child. It’s as though it were happening in a vacuum, whereas the studies suggest that, when you are violent with one person, there is an even greater risk that you will be violent with another person within the same family sphere. There is a real dilemma.
In the case law, however, I find that, except in perhaps isolated decisions, the courts usually show considerable judgment from the moment the issue of spousal violence arises. They are quite clear-sighted, and parental prerogatives are handled accordingly. As Mr. Verdon said, the judge has the option of depriving the parent — deprivation of parental authority — or withdrawing the attributes of parental authority, and that begins with custody.
Senator Dupuis: Mr. Verdon, I would like you to elaborate a bit more on the decision-making attributes of parental authority and the options that are open in that regard.
Mr. Verdon: What kind of options?
Senator Dupuis: When you say, further to Mr. Roy’s answer, that the terms of clause 2 could be reviewed, that is a question I would then put to Mr. Roy. You suggested the idea that decision-making attributes might be delegated by the court. Can you cite any more specific examples based on your practice?
Mr. Verdon: The major difference, as I understand it, is that, in the other provinces, the parent who has physical custody of the child has all the attributes. In Quebec, if a parent sees the children every other weekend — regardless of which parent it is — when the child shows up at the hospital as a result of an accident, the hospital will request the consent of both parents. That is something that people outside Quebec are not familiar with. The custodial parent has all the necessary authority to decide on schools and activities. That is not the case in Quebec. Regardless of the type of custody, even if you assign custody of your child to your mother-in-law in complex cases, both parents jointly retain parental authority. Some cases are complex, such as those in which one parent is violent, does not communicate and always tries to cause conflict. In those cases, every time one of the parents requests consent to register the child for a hockey activity, to take a trip or to go on a school outing, the other parent fails to cooperate. These are examples in which the court is asked to set aside the general principle, which is an equal sharing of responsibilities, in order to show that it is not in the child’s interest to punish him or her simply because one parent is not cooperating. The court will go beyond the general principle of joint exercise in an exceptional case that so warrants and grant the mother permission to sign the child’s passport on her own, to decide on the child’s school on her own and so on. These are examples where the points at issue break down.
Senator Dupuis: Mr. Roy, perhaps you could help us understand Quebec’s particular situation in statistical terms. We have heard statistics suggesting that approximately 96 per cent of divorces are uncontested. I don’t know whether that accurately reflects Quebec’s experience. I was wondering whether the introduction of clause 2 of the bill would not be a problem because it creates an obligation to make reasonable arrangements, which can be done in a large percentage of cases, but that puts an additional burden on the parents, who are then forced to go to court to have the plan approved. We are creating additional obligations that Quebec currently does not impose. Is that a problem?
Mr. Roy: Establishing joint parental authority is a complex matter. It is good in principle, but it creates tension and problems in practice. In the 1990s, Judge L’Heureux-Dubé tried to interpret the Quebec principles in the way that is done in the common law provinces by saying that sole custody of the child should come with parental authority to simplify matters. In her view, requiring the consent of the other parent for basic decisions was a bit awkward and hard to manage.
One can obviously understand why the parent who has custody of the child always retains unilateral authority to make day-to-day decisions. From the moment you go beyond that, however, as Mr. Verdon said, you need the cooperation of the other parent, including in cases where the child is placed in a foster family or with the Direction de la protection de la jeunesse, the DPJ. That’s going very far. Parental authority remains. In that sense, I view this bill as a tool to facilitating matters. The courts currently have authority to divide parental responsibilities. They do not necessarily do so very often, but they have that authority, somewhat as Mr. Verdon said, in the case of certain decisions where there may be an area of potential conflict.
Under this bill, parents would be responsible for stating at the outset where there might be problem areas and how parental responsibilities might be divided in the case of both shared custody and sole custody to the extent the situation permits, as would also be the case in mediation. In other words, it is similar to pre-emptive mediation, when no problems have yet emerged, and the idea is to prevent those problems. Instead of planning, communicating and dialoguing at the time of the conflict, the parties would have to do so before any conflict to prevent it and consolidate the sense of engagement. There is nothing more effective than consenting to one’s own arrangement rather than having it imposed by the court.
Senator Dupuis: What interests me are the many cases in which there is joint authority and, not total abandonment perhaps, but a withdrawal that long precedes the divorce, a genuine withdrawal during the marriage. That is why I’m trying to see how, in practice, we can bring people who have been completely withdrawn or in conflict for a long time to make reasonable arrangements. How can we hope to achieve that objective?
Mr. Roy: That’s an interesting question. That may be where the legislation should be clarified or improved. This is probably a case where, instead of encouraging the parties to share decisions, we should, with the court’s help, not deprive the father — because deprivation has serious consequences — but rather, having regard to the past, if he is a man who has completely abandoned the child, withdraw his authority to make decisions. That would then run counter to the Civil Code principle of joint decision-making. That principle is as valid for sharing responsibilities, where everything is going well, as for excluding a spouse who otherwise would still be in the picture unless the court withdrew attributes or decision-making authority.
The Chair: With your permission, article 606 of the code provides for the deprivation of parental authority. Bill S-202 provides no safety valve with which to adjust the parties where they are no longer on an equal footing when it comes to making decisions for the child.
Mr. Roy: The courts make every effort to avoid the very serious effects that come with deprivation. One parent may consent to adoption of the child without the cooperation of the deprived parent. Can you imagine what they expose themselves to? Deprivation is a very serious measure that must be based on very serious grounds, and it must be in the interest of the child.
A mechanism like this is much more flexible. Without depriving, the act could withdraw areas of decision-making authority from a parent.
Mr. Verdon: To answer your question, the status quo would be one of the factors the court might consider. Your comment about providing for the equivalent is a very good idea. To provide for the equivalent, that is to say, deprivation, the status quo is sometimes revealing of what happens. In cases where a parent has been absent from the child’s life for two years, that would provide a judge with factors that would enable him to assign rights to a single parent to prevent needless conflict. That might be a very good idea.
Senator McIntyre: Thank you for your presentations. We can understand from listening to you that there are significant differences regarding parental authority between the Quebec system and those of the other Canadian provinces and territories.
However, in its letter to the Standing Senate Committee on Legal and Constitutional Affairs, the Barreau du Québec states that, given this difference between the civil law and the common law outside Quebec, the bill would have the effect of creating a distinction with respect to custody between children born of married parents and those of unmarried parents. To clarify this matter, can you tell us more about the lack of impact the bill might have with regard to custody, considering married parents relative to unmarried parents in the Quebec system?
Mr. Verdon: It will have no impact in Quebec. The custody established applied to the other provinces. The joint exercise of parental authority is sacrosanct in Quebec, whether you are married or not. Joint exercise is the basic principle for all parents. Under the bill we are discussing today, we believe that providing for the parenting plan is a way of introducing the joint exercise of parental authority in the Divorce Act. We feel that the principle should be extended to include spouses. The barreau’s concern has to do with creating two classes of families: one that enjoys parenting plan protections and the other, consisting of de facto unions, that does not. For the children’s sake, the committee has always wanted to avoid having two classes of protection depending on whether parents are married or not.
Mr. Roy: The parenting plan idea could very well apply to de facto unions as in cases where spouses are in conflict and resort to mediation, even if that practice is not institutionalized. That is the case under the matrimonial regime. The distinction between a married spouse and a de facto spouse can be seen throughout the Divorce Act, in particular, based on the concept of the loco parentis spouse. A newly married spouse who is not the child’s parent is assigned custodial attributes and support responsibilities. My understanding is that the bill would change nothing in that regard.
There are disparities, but, between you and me, it may be the provinces that are dragging their feet, and I am thinking of Quebec in particular, which has decided to set aside an 800-page report on family law. I’m in a good position to talk about this because I chaired the advisory committee. Nothing is happening in Quebec. So much the better if the federal government wants to advance matters for half of all couples, the half of people who live as married spouses.
Senator Gold: Welcome to all of you.
We have heard testimony this morning and yesterday to the effect that the impact of this bill would be, I would not say harmful, but difficult for the courts, which are already experiencing well-known bottlenecks, and even for the parties.
However, another witness said that the idea of a parenting plan would free up judicial resources. I would like to hear what you have to say about the practical impact on the administration of justice if the bill is passed.
Mr. Verdon: That’s a good question. To answer it, I get the impression that the key is to look at the files your committee is targeting. Allow me to explain. Sometimes Parliament tries to adopt legislation to address exceptions, but it complicates matters for the majority by doing so.
Let’s consider what will happen if this principle is applied to Quebec. In Quebec, we have parental authority, and it works well. If parenting plans are required, I believe that will trigger discussions in day-to-day practice. Parents will be required to take a position on certain circumstances that may not arise. They will be talking about problems that may not occur and that are already naturally being solved. That is my fear about the bill, if this measure is made mandatory. The courts will need considerable leeway to adapt to circumstances. I think it would be dangerous to make this provision mandatory because this is not a problem for most parents. However, they will be asked to prepare a parenting plan, for example, for activities such as skiing and swimming. As a result, we are committing to a series of discussions. People in court this morning find themselves in a new situation. Families have broken up. People have no idea how the new family entity will function. There will be new spouses. Consequently, we are talking about a parenting plan in the midst of this hubbub, and I think it is extremely demanding for parents who are engaged in the process.
However, since this is a joint exercise, most people believe they must consult each other. And if one parent goes too far, then joint exercise will apply. People can go to court on the ground that they disagree about certain actions taken by one of the parents. They will apply to the court for exceptions and, I’m afraid, in so doing, will trigger things.
The Chair: Aren’t we in fact reversing the system as it currently stands in Quebec, where parties manage to agree on a parenting plan through mediation? The bill completely reverses the situation by requiring that parents obtain the court’s consent, failing which the divorce is not granted.
Mr. Verdon: Precisely.
The Chair: The bill provides for an enormous penalty.
Mr. Verdon: That part of the bill concerns us, and we think it may needlessly delay proceedings.
The Chair: Professor Roy, you wanted to add a comment?
Mr. Roy: Article 604 of the Annotated Civil Code notes the court’s authority to arbitrate where conflict arises over a decision that is not shared. Year after year, an enormous number of decisions are made under article 604, and people fight over matters that are not really fundamentally important.
The court has arbitration power from the moment the parties move beyond the management of day-to-day life. I view the parenting plan as a conflict prevention tool. A little more involvement may be required at the time of divorce, but that is in order to prevent this kind of application because they will fight in any case.
You do not pave the way to peace by failing to resolve an issue at the time you divorce. Practice proves this. When I read article 604 cases, people go to court because they need the judge to decide matters they did not discuss at the time of the breakup. As the saying goes, you can lead a horse to water, but you can’t make it drink. I think the same principle applies to mediation, the process of which we are describing here.
Mediation currently focuses very much on economic issues, such as the division of family property and support. Through mediation, people try to say they must take care of the children and establish potentially beneficial parameters in the form of guidelines in an attempt to see whether they can avoid certain areas of conflict.
However, if mediation does not work, the court recovers its authority to arbitrate. I think this is exactly the same principle. We may be sending the wrong signal in clause 2 by saying that divorce will not be granted if the parenting plan doesn’t work. However, if the parties can’t reach an agreement in mediation, the court has a duty to acknowledge that fact and must decide the matter. This achieves exactly the same effect since virtually the same kinds of situations will arise.
You have a parenting plan because you were able to discuss the issues and reach an agreement. That’s perfect. It will be a prevention tool in which I very much believe. It is a source of normativity, and studies conducted in the United States suggest that this kind of bargaining instrument consolidates a feeling of engagement and prevents disputes. However, if it doesn’t work, the court will decide through arbitration.
Senator Pratte: Professor Roy, clause 2 of the bill, which would amend subsection 11(1) of the Divorce Act, concerns “reasonable arrangements.” One of the witnesses who appeared before the committee this morning was concerned about this expression and said it would encourage the court to examine everything the couple submits to it.
That obviously increases the court’s responsibility in its judgment of what constitutes a reasonable arrangement. In addition to hearing the couple’s testimony, it will have to review all documentation to determine whether it is a reasonable arrangement. That will necessarily result in a considerable amount of work for the court.
Mr. Roy: That work must be compared to the disputes that could perhaps be avoided, because the court is very busy as a result of article 604. That is the article of the Annotated Civil Code that requires the most work.
Senator Pratte: Does this situation concern the 90 per cent of couples who actually agree from the outset? Ninety per cent of couples don’t go back to court under article 604.
Mr. Roy: We agree that this is not about establishing all the standards concerning the most minor details of everyday life. In many instances, we are talking about broad outlines, principles and potentially problematic areas of decision making.
Just this morning, we were talking about a parent who is a Jehovah’s Witness, knowing in advance that, if the child has a health problem, that religious belief could well pose a problem. Consequently, the parents are resolving the matter immediately rather than gamble that the child won’t have any health problems or need a blood transfusion, or that the parents won’t need to go to court to resolve the dispute. They agree that, with regard to consent to care, the child will be subject to the mother’s decision-making authority, if she is not a Jehovah’s Witness.
Some elements of conflict can be readily identified in advance, and it is this aspect of the parenting plan in particular that can be useful. I don’t think we can plan the next 18 years of our children’s lives by trying to anticipate everything that could happen.
Senator Pratte: Mr. Verdon, is it a good idea to urge parents to sit down and think about these things based on the parenting plan or something else? Isn’t it good to consider the major decisions that will have to be made in future, particularly those that would arise if there were no agreement? Who will decide? How will that be done?
Mr. Verdon: The concept is clearly very good. It is already being applied, and it has proven successful. The results are exceptional. Where Mr. Roy and I differ in our opinions is that he feels many decisions are made under article 604. I take issue with that statement because the number of files that are processed compared to the number of decisions that are made is very small, less than one per cent. You have to bear in mind that, yes, some people have gone to court to decide the terms and conditions of prom night.
People will always cite exceptions that I think cloud the picture. These are exceptional cases that a parenting plan could not have resolved, and, at the time of the divorce proceedings, no one could have planned for what would happen on prom night.
I am concerned about the fact that this is being made mandatory. Wanting to include it and say it is important for parents to think about it is a good idea. However, I think that making the agreement mandatory, delaying a judgment and asking the court to analyze its entire content will cause a lot more problems.
The case of the Jehovah’s Witness is a major problem. My colleague says the case should go to court and be litigated. However, there will never be any questions if the child never has an accident or goes to hospital.
What will happen is that, in all these cases, parents will appear before a judge to request a specific order. I understand Mr. Roy’s concern, but, for everyday practitioners, I believe it may cause a series of problems for nothing. If a health problem ever occurred, the parties would go to court at that time, but if only one Jehovah’s Witness in 100 has an accident, that will mean 100 trials for a single case.
Senator Pratte: When you say that occurs in one per cent of cases, is that an accurate statistic?
Mr. Verdon: The matter is settled in 97 per cent of cases. The settlement rate is enormous. Today, unlike when I began my practice, we have very clear laws, optional guidelines and guidelines on children and family property. These are tools that were not around 30 years ago and that make it easier to reach settlements.
The Chair: Mr. Roy, you wanted to add a comment?
Mr. Roy: I would simply like to say that failure to go to court and obtain an order under article 604 does not mean that the lawyers haven’t argued in advance. It would be good to have the option, between parents at least, to prevent such disputes by promoting communication. I told you I was interested in relational contract theory in the doctoral thesis I did on couples. It wasn’t about “parentability” or kinship, but about conjugality. We live in a multicultural society in which there is no single frame of reference, but rather many. Values differ from person to person based on religion and cultural differences. The way we view education may also vary profoundly. This is also true in marital and parental relations. While there used to be a uniform and predictable normative framework as a result of the dominant religion and culture, that can no longer be said today. We must create opportunities to clarify matters for preventive purposes and to plan in order to prevent conflicts that may be very harmful for children. Here, quite apart from what I have done in marital terms, there is a vulnerable player who could suffer as a result of these disputes.
[English]
Senator Sinclair: I was curious, Mr. Roy, about your comment that a number of American studies show the long-term benefits of shared parenting and joint custody. I think you referred to them as American studies, but I may have misheard you. I wonder if you can tell me whether those studies show any negative impact on children from joint custody in cases of domestic violence or any kind of emotional violence between the parents.
[Translation]
Mr. Roy: These statistics I referred to are not legal statistics and do not specifically concern shared custody or parental responsibility. Instead they reflect the virtues of this kind of communication tool, whether it is used in commercial, family or intimate contexts. We have statistics on shared custody in Quebec — they are not the ones I was referring to — for benefits and negative impacts, and I could probably send them to you if you wish.
[English]
Senator Sinclair: I would appreciate it if you could forward those. That would be good. Thank you, sir.
[Translation]
Senator Boisvenu: Thanks very much to our witnesses. The information you have provided and your testimony will be very useful to us.
My question concerns Quebec. The court delays in divorce cases are enormous, and we know they have recently increased because the minister decided to give priority to criminal cases. Consequently, lawyers have been shifted over to criminal cases, and the backlog of divorce cases has exploded. You can expect to wait months, if not years.
First, would this bill, which would require judges to examine parenting plans, have an impact on delays? Second, would it have a financial impact on the parents who pay the lawyers, who are paid based on the delays? If we implement this bill tomorrow, will Quebec parents be penalized by longer delays and higher costs as a result? That is my concern.
Mr. Verdon: I would like to address your concern. Since I come from Quebec City, I can’t help it: I have to tell you that the delays you refer to are not delays caused by Quebec City.
Senator Boisvenu: There is still a rivalry between Quebec City and Montreal. There is always pride in Quebec City.
Mr. Verdon: The wait times are very short in the district of Quebec City. We are talking about two or three months for a hearing and 24 hours for an urgent parental authority case.
Senator Boisvenu: So you should go to Quebec City, not Montreal, if you want to get divorced.
Mr. Verdon: You would have to talk to the chief judge. The idea behind the bill is to be commended. It is clearly important to make people aware that having these discussions matters. My concern is the idea of making the measure mandatory, such that a judge cannot render a judgment if there is no overall plan and is required to analyze the entire plan. I have concerns about this approach because it burdens the system, and the system has to focus on problem cases. The court has to let the functioning cases go. If there are no problems, they’re not a problem. Errors may occur in this approach, but, overall, we will achieve our objectives. Yes, tell people it would be a good idea to prepare a parenting plan, but the judge should have the ability to grant a divorce without having to consult the entire plan. Otherwise — and this addresses your concern — we risk overburdening the system, and judges are already overworked.
Senator Boisvenu: What about for the district of Montreal, Mr. Roy?
Mr. Roy: I’m not in private practice. I find your question interesting, senator, because, when it comes to economic issues, no one is concerned about the fact that the system is congested. We feel it is essential to resolve the economic issues, and there are a lot of forms that have to be completed for the division of family property and child support. No one is concerned about the fact that the courts will have to spend time on those aspects. People talk about the children. People talk about parental responsibilities. These are the most basic and most important issues in the context of a breakup. If we believe in the utility of this tool, we should not be afraid that the court may have to shoulder an additional burden. This is the most basic burden in the context of a breakup and should be the focus of more energy than the economic issues.
Senator Boisvenu: Mr. Verdon, do you share your colleague’s opinion that the plan should not be mandatory but rather optional?
Mr. Roy: Yes, I don’t think it should be made mandatory.
The Chair: I thank you for your participation, Mr. Verdon, Professor Roy and Ms. Leblond. This morning, we also had the opportunity to hear from Professor Bala, and that has given us a particularly clear overview of the bill’s implications as we move on with our business. I am very grateful to you for that. Thank you once again for travelling here this morning to take part in our proceedings.
Mr. Verdon: The members of the committee were very pleased to see the government was interested in family law and wanted to express some thoughts about improving it. Your proceedings elicited a very positive response from committee members. Parliament is finally talking about family law, and that is important because it is the spark plug, the gateway. I want to congratulate you for starting the debate.
The Chair: We are very grateful to the Barreau du Québec, the Canadian Bar Association and the professors who have regularly and successively appeared before us to help us understand the consequences of bills. We very much appreciate it. Without you, we would not be able to consider legislation in the same depth. This is potentially useful for its interpretation since, as you know, the courts regularly consider the thoughts of this committee and the remarks of the witnesses who appear before it. You help us explore the issues associated with the bills, and you help the courts understand Parliament’s intent, which is always the first question the courts consider. Parliament’s intent is defined both by all of us around the table and by the witnesses who appear before us. I would like to ask you to thank the barreau and your colleagues for their contribution to our proceedings. Thank you.
(The committee adjourned.)