THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Thursday, June 6, 2019
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-78, An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act, met this day at 10:30 a.m. to study the bill.
Senator Serge Joyal (Chair) in the chair.
[Translation]
The Chair: Honourable senators, I welcome you this morning as we continue our study of Bill C-78, An Act to amend the Divorce Act and to make consequential amendments to other Acts.
We are pleased to welcome our witnesses by video conference.
[English]
Quite unusually, all the witnesses this morning will be testifying via video conference.
Good morning, Mr. Boyd. We were supposed to hear from you yesterday afternoon, but for technical reasons that was not possible. Thank you for making yourself available this morning.
Before we have the pleasure to hear from you, Mr. Boyd, we have with us two other witnesses.
[Translation]
First, may I introduce Manon Monastesse, Director General of the Fédération des maisons d’hébergement pour femmes. Good morning, Ms. Monastesse. We also have, from the Regroupement des maisons pour femmes victimes de violence conjugale, Mathilde Trou, Co-responsible for political issues and Communications Officer. Before we begin, I would ask you to limit your presentations to five or six minutes because we would like to have a chance to discuss your testimony with you as long as possible.
Manon Monastesse, Director General, Fédération des maisons d’hébergement pour femme: Honourable senators, I want to thank the Senate committee for inviting me.
First of all, we would like to remind you of the federal government’s national and international obligations respecting women’s rights, particularly under the Declaration on the Elimination of Violence against Women and the Convention on the Elimination of Discrimination against Women.
We see there was a concern to cite the UN Convention on the Rights of the Child in the bill but that no mention is made of the conventions respecting violence against women, which, however, are central to any discussion of the interests of the child and family violence in relation to the Divorce Act and the determination of child custody.
Our analysis underscores various aspects of Bill C-78, including those requiring communication and cooperation between spouses, and more particularly the fact that parents’ failure to comply with the communication and cooperation provisions during divorce proceedings may actually conceal intimate partner violence and could endanger women and children.
The broad definition of family violence stated in the bill demonstrates an understanding of the complex and pervasive nature of family violence. It is therefore important that all aspects of the bill be worded accordingly and take into account the complex and omnipresent impact of past violence, and even cases of current violence, and of the fact that this violence does not simply end when divorce proceedings begin.
There is a plethora of good data indicating that violence against former spouses often intensifies in the months following separation, making that period the one in which the homicide risk is highest for many women victims of violence and their children. Consequently, requiring mothers to continue communicating and cooperating with a violent spouse is not only inappropriate but also dangerous for their safety. Yet we still see cases in which the courts rule against mothers who are legitimately unable or reluctant to cooperate with a violent spouse, as a result of which they may even lose custody of their children to that spouse.
Our concerns are shared by many researchers who see that increasing numbers of stakeholders doubt what women say about the violence they experience. Those women are then suspected of triggering their spouses’ violence to make them forfeit their custody rights. Many also say this is a “no-win situation” for abused women. If the abused mother does not report the fact that her children have witnessed or been victims of the father’s violence in order to protect them, she may lose custody of her children because she is supposed to guarantee their protection. However, if she goes ahead and reports the father, she is then accused of alienating him and, once again, loses custody of her children to the violent father.
With respect to child access and contact between child and violent spouse, many authors say a violent father’s abuse seems to do little to restrict his access to or contact with the child or to regulate them through supervision. In 2002, Susan B. Boyd added the following:
The preference for involvement of two parents in a child’s life can lead to assumptions that a “broken” family is worse for a child than living in a home that is fractured by abusive behaviour.
Consequently, the provisions respecting cooperation and communication must remain flexible and clearly state that they may not be abused by either party and should not be triggered in cases in which there is the slightest history of family or intimate partner violence.
The definition of family violence provided in the bill rightly excludes self-defence. However, some provisions reveal a lack of understanding of the various ways in which women resist and survive family violence. We hope the determination of the models of coercive and controlling behaviour will help the courts understand the dynamic of family and intimate partner violence and that acts of resistance and survival by women victims of violence will not be construed as acts of family violence.
We are in favour of the idea of maintaining the usual and clear terms respecting custody and access rights under the Divorce Act rather than amending them. We also propose that Bill C-78 be further clarified with respect to the types of decisions the custodial parent has the power to make as well as those that may be made by the parent who has access rights.
I would like to add a point concerning the resolution of family disputes. Instead of requiring that legal advisers always encourage the resolution of disputes, we recommend that the bill be amended to remind all legal advisers that they must fully inform spouses about all processes available to them. This amendment will ensure that all women obtain information on the full range of processes available so they can make an informed choice as to the type of process that best accommodates their situation and needs.
We believe that the present use of the word “appropriateness” in this provision of the bill is insufficient and that it would ensure that the resolution of family disputes becomes the default process, including in family violence cases where the physical and psychological safety of mothers and their children may be at risk.
Generally speaking, we are very much in favour of adding the definition of family violence to the preamble, but it must be understood that intimate partner violence is involved in many custody cases brought under the Divorce Act. Consideration must be given to the gender-specific aspect of family violence and the concept of family violence must be added to the continuum of violence against women.
We naturally welcome efforts to clarify what is meant by “the best interests of the child” in order to ensure those interests are central to the bill, and some aspects of family or intimate partner violence cases determine more specifically how we should assess those interests. We feel this is critical, and I can only welcome this innovative bill because this is the first time that guidelines have been added in order to address the best interests of the child by specifying what “family violence” means.
I will stop here for the moment.
The Chair: You will have an opportunity to clarify certain aspects of your presentation following the senators’ questions, Ms. Monastesse.
Now we will hear from Mathilde Trou, from the Regroupement des maisons pour femmes victimes de violence conjugale. Please be as brief as possible so we have enough time to speak with you afterwards.
Mathilde Trou, Co-responsable for political issues and Communications Officer, Regroupement des maisons pour femmes victimes de violence conjugale: Good morning. I want to thank the committee for inviting me today.
I would briefly like to introduce the Regroupement. It currently represents 43 transition houses and shelters in 15 regions in Quebec. In 2017-2018, member houses accommodated close to 2,800 women and more than 2,200 children. They also provided more than 16,000 services other than accommodation, such as outside consultations, support for resident and non-resident women in their efforts and post-stay follow-up. Member houses also responded to more than 49,000 other requests, mostly from women, but also from relatives, professionals and other resources.
More specifically, Bill C-78 is very important for us because some of its provisions have a direct impact on the safety of women and children victimized by family and intimate partner violence. The main reason is that violence does not stop after separation. In many cases, women and children are tragically killed by ex-partners when the relationship ends, or even just afterward. That is why the requirements that should be established for a separating couple experiencing no conflict must be different from those that apply to women victims of intimate partner violence who are in the process of separating.
First of all, I would like to point out three important aspects of the bill with which we are very satisfied. The first, and the main addition, is the codification of the best interests of the child in a provision that includes an item on family violence and its effects, which the courts must take into account.
The second point is the inclusion of a comprehensive definition of family violence. We would have liked that definition to state specifically that family violence essentially affects women, but we are satisfied that the bill provides a definition of family violence. We also welcome the fact that the bill would require the courts to verify whether either of the parties is subject to any type kind of order.
Of the points that we would like to add or retain, the first, which is definitely the most important, as my colleague, Ms. Monastesse, said, involves paragraphs 16(3)(c) and (i), which concern communication and cooperation between spouses. In family violence situations, encouraging communication and cooperation may prove dangerous for both women and children. We would like these paragraphs to provide for exceptions in family violence cases.
The same is true of the family dispute resolution process, which several studies have said is inappropriate in family violence cases, since there is no balance of power or ability to negotiate on an equal footing in couples experiencing family violence. We would therefore like an exception to be added to this section for family violence cases.
We would like the courts to take into account all past conduct in determining the best interests of the child in the exercise of parenting time, decision-making responsibility and contact with the child. Intimate partner violence is a cycle, and it is important, in determining the best interests of the child, to consider all acts that may previously have been committed.
Another very important point is shared custody, because intimate partner violence does not stop with separation. When the courts award shared custody, it becomes a way for ex-partners to continue exercising their control over the mothers and to continue abusing their power. We would have liked the bill to include a clause providing that shared custody may not be granted in family violence cases.
In the same vein, with respect to subsection 16.2(1), the courts should not presume that it is always in the best interests of the child to spend time with both parents. That may cause problems in cases of family violence. We would recommend deleting that subsection to avoid all confusion.
Lastly, our member houses have regularly noted that a majority of lawyers and judges lack awareness of family violence and its mechanisms. Some lawyers advise women against reporting violent incidents. Some judges do not take family violence into account in their decisions, even where it is proven. We also see that increasing numbers of women are being accused of parental alienation, whereas their sole purpose is to protect their children from a violent ex-partner. To prevent this, we recommend that the bill require mandatory family violence training for all justice system professionals.
I will stop my presentation there, but I would also like to emphasize that, even though the bill, as drafted, contains some imperfections, we nevertheless prefer that it be passed.Thank you.
The Chair: Thank you very much, Ms. Trou. As I mentioned to your colleague, Ms. Monastesse, you will have an opportunity to clarify certain aspects of your presentation later on during the period of questions and comments by the honourable senators.
[English]
I would now like to introduce again John-Paul Boyd from the Arbitration Chambers. You have long-standing experience in the field of arbitration and mediation. We are grateful that you have made yourself available from Alberta this morning.
I will make the same invitation to you to try to restrict your comments to five to seven minutes so that we have ample opportunity to have an exchange with you.
The floor is yours.
John-Paul E. Boyd, Principal, John-Paul Boyd Arbitration Chambers, as an individual: Thank you very much, Mr. Chair and honourable senators. Also, thank you to the witnesses from Montreal who have made some very important points about family violence, in particular with respect to section 7.3 of the proposed bill.
To provide some context to my remarks, I am a family law lawyer and I have practised in that capacity for the last 20 years. After spending five years with the Canadian Research Institute for Law and the Family at the University of Calgary, I have gone back to private practice. I now work as a mediator and arbitrator throughout all of British Columbia and Alberta. I also serve as counsel for the Calgary law firm Wise Scheible Barkauskas.
There are two primary points I wish to make today. They concern the UN Convention on the Rights of the Child, as well as the provisions of the bill with respect to relocation.
Let me say first that this bill, in my mind, is a remarkable piece of draft legislation. It would make the Divorce Act the most progressive legislation in Canada next only to the British Columbia Family Law Act.
It is entirely appropriate that we abandon conflict-laden language such as “custody” and “access” in favour of more child-centred terms about decision making and parenting time. It is also past time that the federal statute discussed family violence to the extent that it does. I am also grateful for the discussion about the importance of encouraging litigants to attempt out-of-court dispute resolution processes before turning to the courts.
My primary concerns as a family law lawyer really have to do with the profound impact that parental conflict can have on children. We have abundant research from American researchers like Joan Kelly and Matthew Sullivan and Canadian researchers like Rachel Birnbaum and Professor Nicholas Bala whom you heard yesterday about the terrible impact that conflict can have on children. It impacts the well-being of children throughout their lifespan.
I am also concerned about the ability of low and middle income Canadians to access family justice. I am further concerned about the damage inflicted by adversarial court processes on the ability of parents to work together and co-operatively raise their children into the future.
Having said that, this bill is a tremendous advance and will do a tremendous service to all married Canadians who find their relationships coming to an end. It is very progressive and past due.
With respect to the two points I wish to make, Canada is and has been since 1991 a signatory to the United Nations Convention on the Rights of the Child. Among many other things, the convention recognizes that children are independent rights bearers who have rights and interests completely independent from those of their parents.
Article 12 of the convention, in particular, allows children the right to be heard in legal proceedings affecting their interests where they are able to express those interests as well as form them.
Section 16 of the Divorce Act, as it will be amended, makes a significant improvement over the 1985 act because it creates a rebuttable presumption for the first time that the views of children will be heard.
It seems to me to be important that the United Nations Convention on the Rights of the Child be explicitly referenced in the act. At present, and my experience has been as counsel, even though this convention has the force of law in Canada, in practice the views of children are rarely expressly solicited either in courts or in out-of-court dispute resolution processes.
The way our adversarial system is built, the people with the primary interests are parents because they are the actors in the litigation: the plaintiff or the defendant, the applicant or the respondent. Because they have the primary focus in courts, the rights and interests of children take only a secondary role. Sometimes they are not even properly considered apart from the value that the best interests of children have to the strategic interests of the parents.
Incorporating an explicit reference to the UN Convention on the Rights of the Child, a view that is supported by the Canadian Bar Association Child and Youth Law Section, would have the effect of promoting children’s rights; educating the bench, the bar and the public about the convention; and ensuring that section 16, as amended, is not interpreted in a manner inconsistent with the convention.
It would also have the benefit of ensuring that the Canadian understanding of the rights of children keeps pace with the convention if and when it is amended.
The other point I wish to make is with respect to the provisions in the act on relocation. I have the privilege of practising in British Columbia. The Family Law Act in that province, which came into effect in 2013, was the first statute in Canada to incorporate some means of guidance to parents and courts when a parent is considering relocating with a child.
However, the way the mobility provisions of the bill are framed in section 16.93, we have a situation where the burden of proof switches, depending on parenting arrangements for the child. When the parents have “substantially equal time” with the children, the parent who wishes to move bears the burden of proving that the move is in the best interests of the children.
On the other hand, where the parent who wishes to move has “the vast majority” of the child’s time, the burden of proof switches to the other parent to prove that the move is not in the best interests of the child. Then there is a large spectrum of middle-ground cases where the parenting arrangements are neither substantially equal nor a vast majority of a child’s time. In such cases both parents bear the burden of proof with respect to the best interests of the child.
This draft is appropriate because it follows the 1996 Supreme Court of Canada decision in Gordon v. Goertz and much of the judicial writing of former Justice McLachlin and former Justice L’Heureux-Dubé, both of whom have taken pains to emphasize the importance of a highly contextualized inquiry when making any judgment about what is in the best interests of the child.
Although I appreciate that and although I highly value the theoretical approach to the best interests of the child articulated by those justices, the concern I have is about access to justice. It is about discouraging parents from litigating disputes about the interests of children. It is about discouraging litigation so as to minimize the effect of parental conflict on children’s well-being.
The problem with the draft, as I see it, is that “substantially equal” and “vast majority” are inherently ambiguous terms. Equal is a mathematical concept. We understand what that means, more or less. You can’t argue that your time is not equal if there is a mathematical division of it, but you can certainly argue about whether it is substantially equal, as opposed to significantly equal, somewhat equal or some other modifier.
Likewise, with respect to “vast majority,” there is no definition of what that term means in the federal legislation. “Vast majority” could mean 99 per cent or 95 per cent of the child’s time. We will have parents argue they have a simple majority of the child’s time and that must be a vast majority, or they have a large majority that isn’t quite vast.
In using ambiguous language to this effect, I am concerned that we are in effect driving parents toward litigation because they will be arguing about the definition of their time and the extent to which it meets either the vast majority status or the substantially equal status.
We have in Canada, largely thanks to the Senate, section 9 of the Federal Child Support Guidelines, which talks about the effect of shared custody on the payment of child support. I believe the Senate was responsible for the inclusion of the 40 per cent rule in section 9. That section provides that a payor who has the children for 40 per cent or more of the time is at liberty to apply for a child support order that departs from the child support guidelines.
Although that section caused a great deal of consternation among the bar when it was first passed in 1997, the reality is that we have built up more than 20 years of case law interpreting what 40 per cent means. Although we used to argue about this until the end of the day when that section first came into effect, we now understand what that means and we hardly ever argue about what the 40 per cent threshold means.
The bill could say that substantial majority means that both parents have the children for at least 40 per cent of the children’s time. That would allow the bench, the bar and the public to rely on the substantial body of case law built up under the child support guidelines, explaining how one calculates 40 per cent. Then, if you have less than 40 per cent, that could be the vast majority of the time.
What I am trying to say all boils down to the ambiguity inherent in language, such as “substantially equal” and “vast majority.” If we are to steer parents out of court, it would be greatly helpful if there was some objective measurement of what these terms mean. Without that kind of certainty, parents will have no choice but to go to court to resolve these issues, given the incredible importance of the shifting burden of proof.
Having said that, please do not interpret my remarks as suggesting, if the relocation provisions of the act are not amended, that the bill should not be passed. The bill is outstanding and would provide a profound benefit to Canadians. This is only a concern that I have. It’s about trying to balance the trade-off between certainty of result and the minimization of conflict between parents versus the important value of highly contextualized inquiries into the best interests of children.
Even if the 40 per cent threshold from the child support guidelines is adopted in the Divorce Act, there is still going to be a best interests of the child inquiry as a fundamental portion of the test to relocate. The contextualized inquiry can still happen in that context.
The Chair: Thank you very much for those wise comments and reflections, Mr. Boyd.
[Translation]
Senator Boisvenu: Welcome to our guests. It is a pleasure to see you again, mesdames, especially Ms. Monastesse. I want to note the excellent work you are doing through the Regroupement des centres de femmes victimes de violence.
A lot of space in the bill is devoted to family violence, but not much to intimate partner violence. My impression is that this problem, which is often the very cause of persistent parental conflict of which children become prisoners, is being trivialized. Those conflicts often wind up in the courts or even attract the police. Other organizations, such as the DPJ, also intervene. This is very traumatic for the children. We recently saw some children in Quebec become victims of the judicial system, which now has to take them into care because they are possibly removed too quickly from the family home.
I think you’re absolutely right in saying we should amend the bill in intimate partner violence cases, because I consider the bill weak on that aspect. I do a lot of work with women who are dealing with intimate partner violence. It’s true the judicial system offers them little assistance in proving their spouse has a violent past and present. It troubles me that the bill refers to a pattern of violent behaviour. I don’t think that interpretation will help solve the tough everyday situations in which children are simply taken hostage, often by the father and sometimes by the mother.
You propose various measures for addressing intimate partner violence that may result in excessive litigation of parent-child relations. What amendments were you prepared to suggest in intimate partner violence cases where serious measures must be taken but aren’t contained in the bill?
Ms. Monastesse: Thank you very much for your excellent analysis, Senator Boisvenu. We also welcome the work you are doing with victims of violence.
Yes, from the outset, we want the Declaration on the Elimination of Violence against Women to be taken into consideration. Canada ratified it more than 20 years ago and commitments were made, and it is highlighted on the first page that the gender-specific nature of violence against women must indeed be considered and that family violence must be added to the continuum of violence against women. We know that, in cases in which family violence is cited and women go to court to obtain custody of their children, most of the time it’s because of intimate partner violence. We therefore ask that the bill refer not only to the Declaration of Rights of the Child, but also to the Declaration on the Elimination of Violence against Women. This is a critical issue. We often talk about family conflict, and a distinction must be made between a conflict and intimate partner violence. We can already see this in the bill, to a degree, as it pertains to determining the best interests of the child, but differences must be taken into account. When we say intimate partner violence, we’re talking about a situation in which the male spouse dominates the female spouse and the children. It isn’t a conflict; the male spouse is exercising coercive control that may result in homicide.
Studies show that homicides in which the female spouse or the children are the victims often occur in the first year following separation. The reason given in many instances is an ongoing court case, but that’s not the cause. The cause is that there is intimate partner violence and that the male spouse is trying at all cost to retain control over his spouse and children. In the minds of violent husbands and fathers, if their families can’t be with them, they’ll be with no one. As you said, yes, we welcome the definition of family violence that is being introduced, but it must also be clarified that intimate partner violence is part of the continuum of violence against women.
Senator Dupuis: Thanks to the three of you for being with us. I listened to you closely, and that reminded me that this committee recently had an opportunity to examine criminal justice issues and the way the entire process is tainted by systemic discrimination against women. I’d like to invite you to read our report. From family law to criminal law, we can see a continuum and a systemic discrimination problem, which we noted.
All three of you raised the issue of the lack of awareness in the system as a whole. You mentioned the lack of awareness of family violence among its stakeholders. I’d like you to say exactly which stakeholders you are referring to. There are various stakeholders in the entire family justice process. I’d like you to tell us exactly which ones you mean.
Ms. Monastesse: First of all, we don’t distinguish among types of conflict, in which there may be disputes, but not in a coercive sense.
In intimate partner violence cases, there really is total control and coercive control over the female spouse and children. Many authors have noted this, such as Mr. Jaffe, who has been studying the matter for more than 35 years. I mentioned the hopeless situation in which mothers find themselves. If they don’t speak out about the violence to which their children are exposed, they aren’t good mothers. If they do, they’re accused of alienating the other parent.
There’s this whole definition issue, and we can see it in the socio-judicial system in general, whether it be judicial professionals, lawyers, judges or others. We can also see it among psychosocial workers, who don’t discuss coercive control. The stated prejudice is that the man was a bad spouse but a good father. When you’re talking about intimate partner violence, that statement is completely false. The violent spouse wants at all cost to exercise full control over the mother and children. We see this in our everyday practice. Some women will lose custody of the children to a violent spouse precisely because they try to protect their children.
We’ve even conducted a study that we could submit to you. It will be finished in the next few weeks. In it, we asked some law professors to examine and scientifically validate this state of affairs, and they analyzed 250 civil court and appellate court judgments related to the impact of intimate partner violence in the determination of child custody. Unfortunately, what we see is that it’s a neutral factor. We’re talking about 250 judgments that were analyzed. We will submit that research report to you in a few weeks, once it’s completed, and it will inform you about certain aspects here in Quebec. That’s why we welcome the fact that the bill is innovative and an attempt to provide a clearer definition of family violence and its impact on mothers and children. When it comes to intimate partner violence, protecting mothers means protecting children.
Senator Dupuis: Mr. Boyd also had...
[English]
The Chair: Mr. Boyd, very quickly, please.
[Translation]
I see that time is passing.
[English]
Mr. Boyd, would you care to comment on the question that Senator Dupuis asked of Ms. Monastesse?
Mr. Boyd: The changes proposed to the Divorce Act follow very closely the changes that were made in British Columbia in 2013 with the introduction of the Family Law Act.
There are two basic components. There is a definition of “family violence.” The definition in both pieces of legislation is suitably broad. It includes psychological abuse as well as sexual abuse, physical harm and threats. The second component comes into the assessment in the best interests of the child.
Under section 16, there is a list of factors that the court and parents are required to consider when assessing the best interests of the child. The presence of family violence is one of those factors.
When family violence is a factor, there is a second group of factors appearing at section 16.4 that include the nature, seriousness and frequency of the family violence and whether there is a pattern of coercive and controlling behaviour.
To my way of thinking in my recollection of practice prior to the Family Law Act, family violence was taken into account because it was obviously a factor that related to the best interests of children.
I don’t disagree with the witnesses from Montreal that the effect may have been neutral in terms of a custody decision. The benefits that I have seen in British Columbia with the introduction of this approach are not that family violence is a new consideration, but the effect is to emphasize to parents, to lawyers and to judges that family violence is as broadly defined as it is, that it is not just a trope involving physical violence and that there are psychological, financial, emotional and psychosocial dimensions to it. Then, when the analysis comes to the best interests of children, it requires the court to turn its mind to all of the subtleties involved in family violence spelled out in section 16.4.
With respect to the stakeholders in the system, they are obviously the judges, who are required to make decisions and to have a certain degree of understanding and training in family violence and its implications.
It is also the parents, litigants and spouses who appear in court, many of whom have never been involved or sought help with family violence, may not understand the proper breadth of it and do not have the nuanced understanding the witnesses from Montreal do.
It is also lawyers. In British Columbia, a Family Law Act regulation requires family law lawyers, mediators and arbitrators to meet with their clients to assess for the presence of family violence and the extent to which the family violence has an impact on the safety of the individual and their capacity to reach a rational compromise of their position.
How that has manifested in the bar is that we are required, as a part of our continuing professional development, to take a certain number of hours of training in family violence. I believe it is 14 hours. It isn’t a great amount, but it’s more than we have ever had before.
What is taught at that course is a discussion about the nature and breadth of family violence, about the distinction between coercive controlling family violence and situational violence, and the other kinds of family violence. It has better equipped the entire bar to understand and assess for family violence and appreciate the profound impact this can have on the well-being of parents and the well-being of children.
The Chair: Thank you very much, professor.
[Translation]
Senator Miville-Dechêne: First, I’d like to welcome all our guests, particularly Ms. Trou and Ms. Monastesse, whom I know from another life. You are doing very important work. By way of a preamble, I’ll say that intimate partner violence and violence against women are definitely proof, were any needed, that gender equality has not been achieved. That’s what we have to work on.
I’m also going to ask you to be pragmatic, and I know you can be. We have very few days in which to study this bill and table our report in the Senate. I’d like to know what amendment you think would be a priority, if you have one to propose. You talked about maximum parenting time and maintaining the child’s relationship with the other spouse. If you favour one amendment, what would it be? What would your priority be?
Second, I would like your pragmatic assessment so we can determine whether this bill, as drafted, is good enough and significant enough for you. If you had one choice to make, would it be that the bill be adopted in the Senate or die on the Order Paper if too many amendments are proposed?
Ms. Trou: As regards what we think are the most important clauses, I would go back to communication and cooperation between the spouses and the family dispute resolution process. We think the essential problem is that communication and cooperation are being encouraged between spouses in the best interests of the child. We think that’s definitely something we can agree on for separating couples who aren’t in conflict. Unfortunately, these are processes and mechanisms that don’t work and shouldn’t be preferred in family violence cases.
We would really emphasize the fact that an exception for family violence cases should be added to paragraphs 16(3)(c) and (i), which concern communication and cooperation between spouses. We would recommend the same exception in section 7.3 for family dispute settlement processes. Those would be our priorities.
To answer your second question, yes, we would like this bill to be adopted. Even though we’re aware that not everything we recommend will be included as a result of time constraints, there are nevertheless some major advances that should be included in the bill, and we very much hope it is adopted.
[English]
The Chair: I think, Professor Boyd, I’ll come back to you on that very issue because you have already commented on it. I don’t want to prevent you from speaking, but I have a list of four other senators, and I am looking at the clock at the same time. I will ask you to be as brief as possible on this issue.
Mr. Boyd: Section 16.2 of the bill is essentially a carry-over from subsection 16(10) of the current Divorce Act. It reads almost the same way, save that the phrase “parenting time” is used rather than “custody and access.” In allocating parenting time under this paragraph, the section reads:
. . . the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.
In the early days of the 1985 Divorce Act, that maximum contact principle was argued by counsel to suggest that there is a presumption of shared parenting in the bill and a presumption that each parent should have as much time with the child as possible.
However, the courts quickly disabused lawyers labouring under this view because the key qualifier is that it is as much time as is consistent with the best interests of the child. It has been very rarely the case that the court has interpreted this section to imply that there is a mandate toward shared parenting. It has always been qualified by the amount of time that is in the best interests of the child.
The Chair: Thank you very much.
[Translation]
Senator McIntyre: Ms. Monastesse and Ms. Trou, thank you for your presentations and proposed measures. As you said so well, generally speaking, the safety of women victims of family violence and intimate partner violence and of the children is still at stake.
[English]
Mr. Boyd, thank you also for your presentation. Bill C-78 respecting the Divorce Act establishes a shifting burden of proof in relocation cases. As you’ve indicated, the new provisions employ the terms “substantially equal” and “vast majority” to categorize the amount of time a parent spends with the child, terms that have been described as vague.
Why those terms were used is beyond me. Hopefully guidance will be made available to the courts to determine what qualifies as a substantially equal amount of time or vast majority of time on any given case.
I have three short questions for you, so I expect brief answers.
First, to what extent, if at all, will the new section 16.93 reduce or increase litigation?
Second, to what extent, if at all, does the shifting burden of proof place the interests of the primary parent ahead of the interests of the child?
Third, to what extent, if at all, can best interests of the child be disentangled from the best interests of the parent in relocation cases?
The Chair: Mr. Boyd, short answers.
Mr. Boyd: I’ll do my best, Mr. Chair. My answer to your first question is that it will, without a doubt, increase litigation precisely because of the ambiguity of those phrases.
With respect to the shifting burden of proof and the interests of the parents, the overall approach that government has chosen to take in this bill is to try to cut through some of the problems left over from the Supreme Court of Canada’s decision in Gordon v. Goertz to try to provide some guidance.
It is certainly the case that the shifting burden of proof is a shortcut to attain that end. Without the implementation of shortcuts of some kind, whether it’s a presumption based on vast majority or another presumption based on substantially equal, we have no guidance at all and we are left with the mess that is Gordon v. Goertz.
That was a seminal decision of the Supreme Court of Canada. The problem is it has unfolded in the case law. The same facts can be used under Gordon v. Goertz to support or oppose a move. The Supreme Court of Canada has consistently refused applications for leave to appeal that would have the effect of clarifying Gordon v. Goertz.
The problem we are left with is that the case law is a mess, and what we need is legislation of some sort to provide a test. Any legislation will have a balancing of benefits and demerits. If the Senate can come up with a more sensible test that will reduce litigation and provide increased certainty to parents who are considering relocation, I would be greatly appreciative.
The Chair: Thank you so much, Mr. Boyd.
[Translation]
Senator Dalphond: I’d like to thank all our witnesses this morning and to acknowledge, in particular, the remarkable work of the Fédération des maisons d’hébergement pour femmes. When I began my practice 25 or 30 years ago, it was not even in existence. There were no resources for women victims of violence, who had no idea where to turn and had to continue enduring violence because that was the only solution.
This morning, however, all the witnesses have made broadly similar remarks, except on one point. You mentioned that you weren’t in favour of a terminological change to replace the words “custody” and “access” with the expression “sharing parenting time”. Would you please explain your opposition or concern at greater length?
Ms. Monastesse: The sharing of parenting time refers to parents’ maximum access to their child and to the child’s access to his or her parents. We know this is very much a slippery slope in intimate partner and family violence cases. It will be difficult to change the terms internationally because other international conventions, such as the Hague Convention, concern access and custody. As a result, we would, in a way, be running counter to the international conventions that Canada has signed. The basic problem is defining what “quality parenting time with the child” means, knowing that it’s a major issue in the context of intimate partner and family violence. Are we talking about the rights of the child or rights to the child? This is very much a slippery slope in the judgments that we studied, in which the determination was that it is in the best interests of the child to have maximum contact with his or her parents, which is absolutely inappropriate in a situation of intimate partner and family violence.
[English]
The Chair: Mr. Boyd, could you comment on Senator Dalphond’s question?
Senator Dalphond: A brief comment about the international aspects and the fact that we’re going to use a terminology that might be defective in terms of international instruments.
Mr. Boyd: May I answer that, Mr. Chair?
The Chair: Yes, Senator Dalphond’s question is essentially the discrepancy between the words or the terms used in the bill, and the ones that we find in the international convention.
Mr. Boyd: I suspect that the primary convention the honourable senator is referring to is the Hague Convention on the Civil Aspects of International Child Abduction. That convention uses very specific language. It talks about having a “right of custody.”
This matter came up in British Columbia when British Columbia dumped the terms custody and access in favour of very similar language talking about parenting time and parental responsibilities or, as the bill puts it, decision-making responsibility.
The question isn’t that one has to have a complete word-for-word synchronicity with international statutes. It’s how the phrase “right of custody” is interpreted. In British Columbia, a number of ideas were floated about where there was a risk of abduction, namely orders and agreements that said the rights of parenting time expressed in this order or this agreement is a right of custody pursuant to the Hague Convention. I honestly do not see this as a serious impediment to the enforcement of relocation and abduction cases as I think many are concerned.
Even if it were an impediment, I believe that the decrease in conflict between parents resulting from child-centred language that speaks to the child’s right to parenting time and decision making rather than a parent’s right to custody and access overall is a greater benefit than any loss we might suffer internationally.
[Translation]
Senator Carignan: I have two questions. The first concerns the amendment to section 282 of the Criminal Code, in clause 123 of the bill, according to which a criminal offence is committed by
Every one who, being the parent, guardian or person having the lawful care or charge of a child...takes, entices away, conceals, detains, receives or harbours that child, in contravention of a custody order...
Have you considered the potential unintended effects of this section in the case of a mother who wants to protect her child but who, for reasons of time or means, can’t go to court to file an application for change of condition or protection, or in that of a violent father who calls the police to make trade-offs in this situation and to prevent the mother from protecting the child victim?
Ms. Monastesse: That’s a good example because it actually happens. We’re also dealing with another provincial jurisdiction problem, but more in the other direction, for example, when fathers abduct their children. I worked for several years on the implementation of the Convention on International Child Abduction. In the vast majority of cases, it was violent fathers who abducted their children and took them to other countries or, here in Canada, to other provinces. The mother had obtained legal custody in one province, and the father moved to another province to apply for legal custody. We also have this harmonization problem at the provincial level because provincial jurisdictions are involved. So it’s also a challenge in the case of mothers who abduct their children in order to flee a violent spouse and who, as you say, often don’t have the time to apply for legal custody in their province. When they leave, they’re charged with parental abduction.
There is an issue of harmonization between the Divorce Act, which is federal, and provincial statutes, as is the case here in Quebec with the Civil Code and family law.
[English]
The Chair: Mr. Boyd, would you comment on the issue raised by Senator Carignan on the implication of section 282 of the Criminal Code?
The senator is concerned about section 123 of the bill that amends section 282 of the Criminal Code titled, “Abduction in contravention of custody or parenting order.”
Mr. Boyd: To give some context, section 282 is part of a small handful of provisions in the Criminal Code that relate to the parental abduction of a child. In a sense it is the domestic counterpart to the Hague Convention on the Civil Aspects of International Child Abduction.
The amendments proposed at section 123 of the bill do no more than change the language from a right of custody to a parenting order. It doesn’t affect the substantial nature of the Criminal Code as it currently does. It merely modifies the Criminal Code to reflect the language used in the amended Divorce Act.
The full reading of section 282 is “abduction in contravention of an existing custody order” or, as it will be, an existing parenting order. In cases like this, a parenting order has been made by a court. This criminalizes the wrongful removal of a child by a parent in the face of a court order or, in other words, in contempt of that particular court order.
This section does not give the police the right to mediate or arbitrate disputes like that. It gives them the right to lay charges, which ultimately have to be prosecuted by the Crown, if the Crown is satisfied that the actus reus and mens rea of the offence have been met. It is meant to stop parents who are unhappy with a parenting order they have received, perhaps preventing them from moving and then just taking off to some other part of the country.
This is meant to address a serious wrong where somebody who is unhappy with the result they have achieved in court takes matters into their own hands and takes their child away without permission of the court.
Although I can see how there is intersection of this with issues of family violence, because we live in a country governed by the rule of law the proper recourse is to apply to court to vary the parenting order if family violence has emerged after the order was made that adversely affects the safety of the child or the safety of the parent.
The Chair: Thank you so much.
[Translation]
Senator Carignan: Shouldn’t we take the opportunity afforded by these divorce amendments to reduce the amount of separation time before a divorce can be granted from one year to six months, for example, to prevent situations in which a parent is forced to plead mental cruelty or elements of harassment, which adds fuel to the fire for a couple whose lives are already a mess? If waiting time were reduced from one year to six months, people could then divorce more quickly and thus avoid being charged with this and that, which might exacerbate disputes.
Ms. Trou: We’ve seen several cases in our houses in which proceedings have dragged on for many years. In some cases, the lawyers ultimately advise the women to waive the criminal complaints they’ve filed because they would merely extend the delays further. The women are exhausted, they can’t go on, they lose custody of their children, they see them less and less, and they no longer know what to do. If matters could be expedited, in some cases, that would really advance matters for those women.
Ms. Monastesse: Yes, for their safety. Contrary to what you say, for reasons of safety, we agree that waiting time should be shortened. It shouldn’t be forgotten that the issues associated with custody and divorce proceedings aren’t the cause of the violence. The violence was already there long before the parties went to court, and I think that fact has to be considered.
We clearly see this, particularly in homicide cases. Men kill their spouses and children because they’ve lost the total control they had over them. The ultimate recourse for men who exhibit violent behaviour is to go through the entire child custody determination process.
As Ms. Trou said, proceedings drag on for years, sometimes even until the children reach their majority. It’s absolute hell for these women and children who experience domestic violence. Some children refuse to see their fathers because they’re afraid of them. They are actually afraid of the spouse who is an abuser.
The studies also show that the system should listen to what the children say instead of accusing the mother of parental alienation. They also reveal that the cases heard before the Superior Court involve intimate partner and family violence. I’d like to reiterate the fact that this violence is not the cause of the problems; it was there before any lawsuits were brought.
The Chair: Thank you, Ms. Monastesse.
[English]
Mr. Boyd, do you care to comment on Senator Carignan’s suggestion that the period to get a divorce should be shortened to six months?
Mr. Boyd: With the greatest of respect, the time it takes to get an order for divorce really has nothing to do with any of this. Divorce is often a last priority for people because they are far more concerned about getting orders relating to child support, spousal support, the care of their children and the division of property.
The reality is that spouses who have separated are entitled to apply for all of these orders immediately upon having separated. They can do that under the federal statute and they can apply for these orders under the provincial and territorial statutes.
In my practice, it has usually been the case that people are far more concerned with ironing out the details of parenting time, child support and spousal support than they are in simply getting an order for divorce. The time to wait until a divorce has nothing to do with someone’s ability to access the court and obtain orders for their personal protection, for the protection of their children or for the parenting of the children. It has nothing to do with that at all.
The divorce is a legal severance of the legal nature of the relationship between the two spouses, but the time they have to wait until divorce has nothing to do with the fact that cases drag on for years and years. That has to do with questions about the efficiency of the court system and about a failure to encourage judicial dispute resolution options like we have in Alberta.
Compressing the time to divorce would certainly be convenient for people who want to get out of it a bit faster, but if they have children, the sooner they can get a divorce has nothing to do with the speed at which they are going to obtain a final order with respect to the parenting of their children.
The Chair: Thank you, Mr. Boyd.
Senator Batters: I want to echo wholeheartedly what you just said, Mr. Boyd. As someone who practised family law in Saskatchewan for quite a number of years, that is absolutely what always happens.
Usually it actually happens that parties are able to come to an agreement about many of those matters and don’t have to go to court to settle matters of custody, property division and that sort of thing. Frankly, it often helps the parties if they have a bit of time before that final order happens because on the very rare occasion I have actually handled someone’s separation and divorce, and then they remarried the person years later.
Sometimes it is not a bad thing if they actually have some time to make sure that those very important decisions are properly final.
[Translation]
The Chair: Ms. Monastesse and Ms. Trou, may I ask you the names of the legal experts you asked to review the 250 decisions? If isn’t confidential information, we’d like to know when the study will be available. I’m sure the members of the committee would like to read it.
Ms. Monastesse: They were Dominique Bernier, professor at the Université du Québec à Montréal, and professors Rachel Chagnon and Lucie Lamarche. The report will be available in late June.
The Chair: Thank you very much for that information. Once again, on behalf of my colleagues, thank you for the outstanding work you are doing to ensure that the society we live in retains its humanity in very difficult situations of conflict that unfortunately occur all too often. Thank you very much for making yourselves available this morning.
[English]
Mr. Boyd, thank you for having shared the wealth of your experience and understanding of Canadian law, not only at the federal level but at the provincial level also. I am sure that honourable senators will want to keep you on their favourite list of experts we will want to listen to when we are charged by the chamber to review family law legislation.
[Translation]
Honourable senators, we are continuing our study of Bill C-78, An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act.
[English]
Welcome, Suki Beavers, Project Director, National Association of Women and the Law; Brian Ludmer, Advisory Counsel, Canadian Association for Equality; and Glenn Cheriton, President, Canadian Equal Parenting Council. Good morning.
I will start with Ms. Beavers.
Suki Beavers, Project Director, National Association of Women and the Law: Thank you for the opportunity to speak on this bill on behalf of the National Association of Women and the Law. I am also pleased to be speaking today on behalf of Luke’s Place, our sister organization with whom we worked in partnership on Bill C-78.
As I think you all know, NAWL is an incorporated not-for-profit feminist organization that promotes the equality rights of women in Canada through legal education, research and law reform advocacy. Indeed, NAWL has been around since 1974. Advocating for much-needed changes to family laws, including the Divorce Act, has been a focus of our work since the early 1980s.
NAWL and Luke’s Place developed a joint discussion paper and a brief on Bill C-78 which reflect an intersectional feminist analysis of this bill. It was submitted to the house committee, and I believe it was also made available to all of you.
Our joint brief was endorsed by 31 organizations from British Columbia, Saskatchewan, Manitoba, Ontario, Quebec and New Brunswick, as well as more than a dozen national feminist and equality seeking groups. It is the fruit of our consultations convened with feminist academics, lawyers, service providers and advocates.
I raise this now simply to emphasize that there is broad-based support for many aspects of Bill C-78. We urge this committee, the house and the Minister of Justice to cooperate to ensure that this bill is passed before the end of this parliamentary session.
We take this position, as Bill C-78 introduces many important and long-overdue amendments to the Divorce Act, including, placing the well-being and best interests of children at the centre of the bill and developing clear criteria for the best interests of the child. The clear identification of family violence is an issue that must be taken into account in divorce proceedings. The inclusion of coercive control, psychological, financial and animal abuse in the description of family violence is extremely important. It must be recognized that family violence exists whether or not conduct constitutes a criminal offence. It is critical if women, the primary victims of abuse within the family, are to receive appropriate outcomes in divorce proceedings.
I emphasize that NAWL fully supports the exclusion from this bill of any presumption of shared parenting. Determining what is in the best interests of a child must be done on a case-by-case basis. I’ll come back to this point to make some recommendations for amendments to clarify this critical issue.
In the hopes that all parties involved can cooperate to make a few key amendments to this bill, NAWL and Luke’s Place propose the following four key and relatively simple amendments that can be made to Bill C-78. They reflect concerns raised by a range of the briefs that have been submitted both to this committee and the house committee, as well as the testimony of witnesses today and yesterday. These are all focused on family violence issues in the context of divorce.
Our first recommendation was supported by witnesses yesterday and I believe this morning as well. It is that proposed section 16.6 entitled “maximum parenting time” be deleted entirely from the bill. This provision opens up the possibility that maximum time with both parents will be presumed to be in the best interests of the child which, as we know, is not always the case, especially in the context of family violence. This clause could seriously undermine the entire framing of this bill around the best interests of the child as the primary and indeed the only presumption that should be in operation in divorce proceedings.
Our second recommendation is that proposed paragraph 16(3)(c) also be removed from the bill. In cases where there has been any family violence it is totally unacceptable, and indeed in many cases dangerous and even lethal, to insist that a mother be willing to support the development and maintenance of the child’s relationship with an abusive spouse.
Similarly, proposed subparagraph 16(3)(j)(i) should be removed or revised, since the critical issue to be determined here should not be the willingness of an abusive parent to care for a child. Rather, the focus should be on the impacts of family violence perpetrated by that parent on their capacity to parent, and not on their willingness to do so, in a manner that reflects the best interests of the child.
Our last recommendation is that the bill should explicitly reflect the reality that we were very pleased to hear the minister acknowledge in his remarks yesterday: the gendered nature of family violence. The evidence on this is clear and unequivocal. As with other forms of gender-based violence, the majority of victims/survivors of violence within marriage and when it ends, and I emphasize this, are women and men remain overwhelmingly the perpetrators of this violence.
Therefore, as reflected in recommendation No. 3 contained in our joint brief, we recommend that the gendered nature of family violence be included in the bill by simply adding to the definition that is already there of family violence:
Family violence perpetrated against women is a form of violence against women.
We have also provided a definition of violence against women. This is found in recommendation No. 2 in our joint brief.
However, given the short timelines that remain to agree on any amendments, I can also propose a second globally agreed and long-standing definition of violence against women that could be adopted at this point and then reviewed later when the Divorce Act is next reviewed, which we hope will not be with the same delay and length of time we are now facing.
In conclusion, I reiterate that while concerns with these elements of Bill C-78 remain, I am here today to urge you in the strongest possible way to pass this bill. Bill C-78 offers the opportunity to modernize the Divorce Act so that it better reflects the realities of families in 2019. In particular, it will be able to more appropriately and effectively respond to families where violence is a reality, making it possible for women, the primary victims of violence, and their children to move on to lives free from violence or the threat of violence.
The Divorce Act, as amended by Bill C-78, can protect the best interests of the children, understand family violence, reduce child poverty and increase access to justice for families in Canada.
The Chair: I invite Brian Ludmer to make his presentation. Mr. Ludmer, if you could be as succinct as Suki Beavers, it will be much appreciated.
Brian Ludmer, Advisory Counsel, Canadian Association for Equality: I would like to thank Ms. Hogan for her hard work in organizing a brief on behalf of the organization that I represent.
I am going to give the committee a completely different perspective than what we have heard today. I have a practice that spans Ontario and I consult around the world. I published a book on high-conflict divorce. That process led me to be a co-founder of Lawyers for Equal Shared Parenting.
I drafted the operative language of Bill C-560 in the last Parliament, which was an attempt to bring in the rebuttable presumption of equal parenting. It’s important to understand that concept. It is not equal parenting for all. It’s a rebuttable presumption. There is always to be the ability of the court, on substantial evidence, if the needs of the children would be substantially enhanced by a parenting plan to do so. It is that misconception, where people drop the language “rebuttable presumption,” that leads to some of the conclusion.
When I testified before the House of Commons committee, I had the opportunity to meet certain of the members of the committee. We were successful in convincing the Conservative members of the house committee to move that amendment, as they did, and they were outvoted. This is our attempt to expand that analysis to a broader audience.
In the presentation I prepared, this debate can basically be summarized as the battle between myths and facts. The primary myth is that the current system actually works and actually does what it says it does, trying to advance the best interests of children. The current system is a complete failure in doing so. There have been judicial reviews of the system, a full-page article in the National Post by a learned family law counsel, former treasurer of the Law Society of Ontario, which clearly makes the point that the current system is not working and is not meeting the needs of the children it’s meant to protect. Why is that? It is because it’s built on a failed foundation of assumptions as to how it actually works.
When you actually practise in the trenches and see how it works, the cracks in the foundation and indeed the missing pillars of the foundation become apparent. We have an overwhelming body of science that children’s outcomes from divorce are substantially improved when you have two primary parents as opposed to one parent and somebody whom you go to visit from time to time.
Entirely missing from the debate yesterday is where the Canadian public is in this regard. We have decades of public opinion polls in Canada showing that over 80 per cent of decided participants are in favour of equal parenting. That cuts across almost any demographic: age, region, political affiliation and, yes indeed, gender.
The women of Canada overwhelmingly want equal parenting. My clients who are women want equal parenting. When you get to see how the system works in practice, you see the cost, the trauma, the delay, the uncertainty and the results that quite often don’t make sense. They are never empirically tested. We don’t take families that have come through the system and track them for three, five or seven years afterward to see how they did and whether the decision was in their best interests.
There are many other flawed assumptions upon which this merely aspirational system is based. First is that a judge will get it right. That assumes that you have two parties, two lawyers, and unlimited time for a trial. Over half of family law litigants are self-represented. They will not be able to marshal the arguments, the case and the law to advance their view of the best interests of the children. When a self-represented litigant goes up against a lawyer, you are not going to get a result that advances the best interests of the children. When there are two self-represented litigants, the trial is very unwieldy, indeed often chaotic, and usually you are not going to get the right answer.
Further, the vast majority of cases don’t get to a trial. People don’t have the money. People can’t wait. They settle, or someone abandons the pursuit of a parenting plan that they truly believe is in the best interests of their children because the other side is better funded or is prepared to fight it out and they are just not of that mindset. The paper I have goes on about many of the other assumptions on which today’s system is based that are not reality and, therefore, we get the output that we do.
I mentioned the science. The science overwhelmingly tells us that the closer we get to two primary parents, the better the outcome. When we interview children during divorce and after divorce, they say, “The best thing I want is my family to get back together.” If they can’t have that, they want their two parents. We don’t listen to the children.
Where is this advice coming from? Usually overwhelmingly from those who make their money from the system or who simply advise the system. When you go to the public opinion polls to see the people who have lived through the system and how it actually works, it is inescapable. This system doesn’t work and is harming our children.
We heard some myths yesterday. The maximum contact principle, we’ve just heard, should be dispensed with. That was brought in at the outset of the modern divorce legislation. It was featured in Young v. Young in the Supreme Court of Canada in 1979. We have 40 years of cases interpreting the maximum contact principle.
It is simply untrue to suggest that it’s a meaningless clause, that it doesn’t express fundamental Canadian values or that it doesn’t express today’s understanding of the science. To suggest we should just have a blank canvas dominated by one factor or by a list of factors and let people figure it out is to condemn our children to continued cost and uncertainty. It is also to condemn Canadian taxpayers to the massive cost of this system.
It is a rebuttable assumption that all equal parenting is an enhanced version of maximum contact. At the house committee I was asked the question, “What’s the difference? Why do we need it?” The answer is equality of justice right across Canada. You have 10,000 cases interpreting maximum contact. Those answers vary based on who the judge is and what their background is. Is it a rural setting where there aren’t a lot of judges or a major urban setting where there are lots of judges and they are interacting? It varies by province.
This inconsistency is not fair to our children. It shouldn’t make a difference if your parents are getting separated and you live in a small town in rural Ontario or in Montreal, where I am from originally. You should get the same result, but it doesn’t happen today. While maximum contact puts some bookends around the blank canvas, it doesn’t go far enough and is interpreted differently.
If we want to end the disaster of the current family system, we need to make a fundamental change. There is a lot that’s laudable in Bill C-78, such as the technical amendments and the modernization. As everybody said, the statute hasn’t been touched in 30 years, but will it actually make a difference to the Canadian public, the 80 per cent who know that we need a rebuttable presumption of equal parenting?
Bill C-78 will make zero difference in the actual application of today’s system of helping families restructure. The voice that was unheard yesterday and unheard until now is the voice of the Canadian public. We ask you to listen.
The Chair: Mr. Cheriton, on behalf of Canadian Equal Parenting Council, the floor is yours.
Glenn Cheriton, President, Canadian Equal Parenting Council: I am the volunteer president of a national non-profit parent advocacy organization, the Canadian Equal Parenting Council. Thank you for this opportunity to present the case for family law reforms which would meet the objectives of Bill C-78 and fix most problems of Canadian family courts and practice.
Parents generally agree that there are major problems in how separation and divorce are handled in Canada. They agree with the objectives of the bill of efficiency, effectiveness and accessibility. They agree with the principle of best interests of the children.
However, the experiences of parents are that family courts and the legal profession do not act in the best interests of children but, rather, in their own vested interests. Parents are not listened to.
Judges don’t meet with the children, and the legal profession and courts are not interested when parents run out of money.
While parents support changing language so that parenting is the issue rather than the current adversarial legalistic custody and access regime, none of the provisions of Bill C-78 will significantly reduce contact, maximize parenting, reduce costs to parents or improve outcomes for children.
Let’s look at some specific provisions of Bill C-78. Parents are concerned with the attempt to dilute and diminish the friendly parent rule. That rule maximizes parenting time. Since Parliament inserted it in 1985, the legal profession has made persistent attempts to diminish it. Parents recommend, instead, that Bill C-78 be amended to expand the rule so that maximum parenting time is recognized in law as equality for both parents, unless another plan is shown clearly to be in children’s best interests.
A rebuttable presumption, if you will, an onus on the courts to maximize parenting or a starting point for parenting plans are the same.
Regarding move away, Bill C-78 proposed change in rules regarding moveaways has parents deeply concerned as it will encourage greater conflict and adversariality in custody hearings. Bill C-78 appears based on the ideologically and scientifically invalid theory that removing a child from a parent is presumed to be in the child’s interest. Parents want to see a rule that moveaways need to be shown to be in children’s interest for both sole custody and shared parenting as the Supreme Court has ruled.
Parents hope you will agree that the Senate has a special responsibility for divorce. In the past, the Senate passed private bills for divorce before the Divorce Act made national provisions. Also, the Senate stood up to the government in 1997 with strong advocacy from parents and forced the creation of the Special Joint Committee on Child Custody and Access, which made 48 recommendations. None of those recommendations have been implemented, as they were blocked by vested interests.
Parents recognize and thank Prime Minister Justin Trudeau for his promise in Parliament on March 28, 2018, to “support equal parenting.” Please do it. Put it in Bill C-78. Parents recognize and thank now former Supreme Court Justice Thomas Cromwell for his critical study of family law and for recommending consensual agreements, which parents view as effectively equal shared parenting.
These are our recommendations. First, amend Bill C-78 to include equal shared parenting as a starting point, an onus or a presumption, however you would like to do it. Second, parents are looking for a collaborative process for reforms. There has been no consultation by the government with parents in order to create Bill C-78 or any other reforms of the Divorce Act. Instead, the government in Indigenous Services Canada collaborated with Indigenous parents, organizations and communities to create a program where the onus would be on the funding for the government to ensure contact between Indigenous children and their culture, their parents and their community. We want the same in the Divorce Act.
Parents note that the Report on Missing and Murdered Indigenous Women and Girls included that the government engaged in genocide by enabling and protecting residential schools, but the family court system has removed more parents from more children. I suggest that the outcomes, as shown by social science, are equally disastrous. Canada’s family court systems represent a much larger vested interest and profits for the legal profession. It is not my position to claim that family courts are genocidal, but I do say they are sexist and racist. It is a feudal system, as viewed by parents, that does not act in children’s interests. Parents are begging the Senate to fix this problem for parents and children.
The Chair: Thank you, Mr. Cheriton. We will now go to questions.
[Translation]
I would now invite Senator Boisvenu to begin the discussion with our guests this morning.
Senator Boisvenu: Thanks to our guests. I basically think the principle of equal time-sharing for parents is entirely commendable. However, that’s not the problem. Ms. Beavers, the problem is related to what I would characterize as “violent” divorces, in which many divorcing parents use the courts to compensate for their inability to decide on time-sharing.
As everyone knows, many divorces occur in situations of intimate partner violence. Children often become prisoners of conflict. However, the courts tend to avoid cutting parental ties and very often find it difficult to designate the violent party in the couple, to determine which of the two parents it is.
In most cases that I have seen and that I discuss, poor court decisions drag the mother through years of judicial proceedings in which she must prove to police officers and to the courts that the child is being mistreated, that the mistreatment began before the divorce and that it was at the origin of the divorce. It appears that the burden of proof always falls on the mother. The courts are reluctant to cut off ties to protect the children. That causes considerable and lasting frustration and conflict.
You have proposed that subsection 16(3) be amended. I’d like you to say more about that point. This is the reality of everyday life for many mothers. They turn to the courts and explain that the father is dangerous and, in many cases, that he is even having incestuous relations with the children. However, the courts are powerless. They don’t want to break the tie with the father, and the situation drags on for years. I’d like to hear your comments on that subject. In studying this bill, perhaps we should have heard from more parents who were experiencing these problems rather than testimony from experts. I’d like to hear what you have to say on the subject, Ms. Beavers.
[English]
Ms. Beavers: Thank you very much for the excellent question.
Let me start with three solutions to the problem you have identified, which is a significant problem indeed. The first is that the comprehensive definition of family violence included in this bill should go a long way toward providing courts with the kind of guidance they need to determine where family violence has occurred and the impacts that violence have on parenting. That’s the first point.
Here I want to pause again and say that the issues you raise are exactly why we are requesting that there be an amendment to the definition of family violence that includes an explicit recognition of that gendered nature. When women experience family violence, it is a form of violence against women. This will also help to make that reality better understood by the courts.
In response to your question, as you will see outlined in our joint discussion paper and brief we recommended two other issues. One is mandatory training regarding violence against women for judges, lawyers, mediators and all these involved in family law through whatever process is pursued. This is critically important and would help very much resolve the issues you have raised about the difficulties the court has in trying to determine family violence when there are extremely good reasons why many women do not want to disclose that family violence has occurred, or indeed is sometimes still occurring or very often is still occurring. I echo the comments made by my colleagues from Montreal this morning. We know that the single most dangerous time for women is when they leave. This divorce bill must absolutely provide added protections in that context, rather than continue a status quo which does not serve women and their children. Here I pause to say unequivocally that when women are safe, that is in the best interests of their children.
The last point I want to speak to, although it’s unlikely to be included in this bill, could certainly be included afterward. The development of approved and accredited screening tools to identify violence against women is critical for all the actors involved in family law. I attended the CBA Family Law Conference in Vancouver about a year ago.
In one of the sessions, all the family lawyers that were in the room were asked to raise their hands if they did some kind of screening for violence. Many of those in the room did not raise their hands. Second, they were asked to clarify what type of screening tool they used to try to determine whether or not there was violence. The range of different screening tools that were used, with good intentions, I might add, was quite interesting. This really underscores the need for the amendments to the Divorce Act to be accompanied by both training and the imposition of mandatory screening, using approved and accredited screening tools to identify violence within the family. I hope that answers your question.
Mr. Ludmer: My answer to the issue of domestic violence and parenting plans is the same one I gave to the House of Commons committee. We have had 30 years or more of experience with the maximum contact principle that lives harmoniously with issues of domestic violence. The current statute handles it. Provincial legislation handles it. Where appropriate the facts have shown that best interests of the children will prevail in that paradigm.
If the maximum contact principle could live harmoniously for 40 years dealing with concerns over domestic violence, logically, a rebuttable presumption of equal parenting, which is just an enhanced version, can live harmoniously with concerns about domestic violence. You leave all the existing provisions that you are adding in Bill C-78 and then in effect, absent that, the vast majority of cases don’t involve domestic violence but they do involve four years of litigation, bankrupting the family, bankrupting the system and harming the children who are triangulated. We say for those families, with two normal parents who both have pluses and minuses, the needs of the children can be met by equal parenting.
Those two concepts live harmoniously. They are not mutually exclusive. The harm and the damage is in, if I take Ms. Hogan as an example, here separating and some judge saying that the kids should be with her 37.2 per cent of the time. There is no science to that. Presumably Ms. Hogan is safe or else we wouldn’t say that. If she’s a safe, normal parent, she should have her kids half of the time. That’s what we are saying. The two concepts live harmoniously.
Mr. Cheriton: I don’t agree that women are the primary victims of family conflict and violence. I think children are. We should be concerned about that, but we should not be concerned about legalistic approaches. We should be concerned about what reduces conflict, harm and violence. If you look into the social science, it is very clear that sole custody increases conflict and increases family violence. Equal shared parenting reduces conflict. It reduces harm to the children. It reduces family violence, or it decreases over time. If we are looking for a solution, I suggest that social science supports equal shared parenting.
The third point is quite critical. If the government is doing an initiative in a community that we would all agree has higher levels of violence and domestic violence than are acceptable, if they are doing a collaborative approach which essentially amounts to equal shared parenting in an Indigenous community as a way of reducing family conflict, family violence and harm to children, then they should adapt that same approach. They should adapt the collaborative, equal, shared parenting type of approach, keeping kids with both parents, to the other races in Canada.
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Senator Boisvenu: I didn’t say that women are the only victims of intimate partner violence, but they are the only ones who are murdered.
Senator Dupuis: I think I detect some fundamental differences of opinion on the current situation among the three witnesses. Which leads me to the following remark: I heard from one of you, Mr. Ludmer, that what most of the population wants... You’re speaking on behalf of the Canadian public, of what most of them want. I don’t know whether we read the same documents, but we’ve heard contrary opinions here on the Senate Committee on Legal Affairs this morning. We hadn’t heard until today that the principle of equal sharing between spouses should prevail and supersede the principle of the best interests of the child.
Consequently, my question is for both Ms. Beavers and our other witnesses. In subsection 16(1), if we agree that the tribunal should consider only the best interests of the dependent child in making a parenting order or contact order... In reading it, I get the impression we should consider only the best interests of the child of the marriage.
Ms. Beavers, you suggest that section 16.6 be withdrawn. However, you also say you can live with Bill C-78 as drafted because it would be better to adopt it. Under section 16.6, when a court allocates parenting time, it applies the principle that the child should spend as much time with each spouse as is consistent with his or her best interests. It does not state that the child should spend as much time as possible with each spouse; it clearly states that the test of subsection 16(1), which is to consider only the best interests of the child, also applies to the determination of parenting time. Can you tell me how you perceive this aspect, Ms. Beavers, and the other witnesses?
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Ms. Beavers: Thank you very much. Let me reiterate that I agree entirely with the approach of this bill. I understand your question to be around the importance of the primacy of the best interests of the child as the only presumption to be taken into account. What I would say about section16.6 is that I fear this particular clause is a back-door way of trying to get a second presumption into this bill. We heard that presumption from the other witnesses today. There should be a presumption, rebuttable or not, of equal shared parenting.
This is not in line with the best interests of the child. We have heard it over and over and over again. I am sorry to say I disagree entirely with the interpretation of the social science evidence presented by the other two witnesses today. An extensive body of research reflects the fact that when there is violence in the family it impacts not only on the woman but also on children. This includes direct and indirect violence perpetrated against children. We should start from a point where we assume maximum contact with both parents is in the best interests of the child. That concept is not only flawed. It’s dangerous in the context of family violence.
I ask: What is the added benefit of section 16.6? I think it’s very little, but the potential dangers of section 16.6 are great. However, in the interests of time, I would propose a second option that is available to the committee. If the removal of section 16.6 is something that seems to be too difficult, then simply change the title. Remove the word “maximum” from the title, and then the rest of the paragraph reads as it does with the best interests of the child being paramount. This is a simple, common sense resolution to the problem, if the deletion of that particular section is something that seems to be beyond the time that remains for this committee to come to a conclusion about the positions on this bill.
Mr. Ludmer: In a direct answer to the question, which was not framed about domestic violence, we are assuming it’s not a domestic violence situation. The rebuttable presumption still has that tail end dealing with children’s best interests. You still look at all the other factors.
You can pull it all together. You can look at the example I gave of our committee clerk. We’re proposing to simply state that among all those factors you could be in the zone where you have two equal parents. You can abandon the exercise, which is the current practice, of trying to find a primary parent. You can say that you have looked at all the factors in section 16 and you have two normative parents. They both have their pluses and minuses. They both love their children and are committed to taking care of them. In that circumstance, in the absence of compelling evidence that an unequal parenting plan would substantially enhance the needs of the children, we say we should go with equal parenting. We should abandon these situations where one parent gets 37.2 per cent of the time because it’s not evidence based and it results only from four years of litigation.
Once we satisfy ourselves that we have two loving, normative parents, it should be equal parenting because then by definition there is a lack of evidence that the children’s needs would be substantially enhanced by an unequal parenting plan. This is the language I came up with for Bill C-560. The rebuttable presumption of equal parenting does not exclude the broader context of a best-interest analysis. That’s your check and balance. You look at all the factors. You satisfy yourself that you have two normal parents who love and are committed to their children. Then it’s equal parenting. If in looking at the totality there is a compelling reason not to have that, then best interest prevails.
Mr. Cheriton: It’s important to recognize that there is a substantial body of social science. I have submitted a written brief that will eventually be passed to the committee. It details about 14 different social sciences, which are usually summaries of other substantial bodies of research showing the benefits of shared parenting. In fact, one of those studies shows that the benefits to children increase, in going from 35 per cent up to 50 per cent. There is evidence that this is better for children.
You must recognize that the research shows, even in cases where there is conflict, equal shared parenting actually is effective in producing better outcomes for children. It reduces conflict and family violence. If you look at the other jurisdictions that have implemented equal shared parenting in various forms, they show that they have reduced the level of domestic violence and the level of harm to children. If you’re interested in that, you should look at those jurisdictions and social science research and conclude, as I have, that this is something in Canada’s best interests and in the interests of Canada’s children.
Senator Dalphond: I have two questions. The first one was for Ms. Beavers, but I think you have answered it properly. That was my second option with regard to section 16.6. We are in agreement on this point. What is causing concern is more the title than the content of the disposition, unfortunately. Maybe it’s something that can be fixed.
In connection with Mr. Cheriton, you anticipated my question. First, I notice one of the main points is that you want to have more equality in the relationship between the parents when they separate. You find that the concepts of custody and access refer back to the primary and the secondary caregivers, which brings with it the idea of inequality between the parents.
Don’t you find that this bill, by replacing these concepts with shared parental orders and allocating parental time, is moving toward a signal of more equality, in a sense, and moving away from the idea of primary caretaker and secondary or less important caretaker?
Mr. Cheriton: Yes, I agree. That is one of the very positive parts of the bill. The problem that parents have is typically when one parent is on a different level. Often that’s a question of how the court order is written. If it’s written in the sense that one parent can do the moveaways and the other parent cannot without substantial effort, then those parents are on different levels. If it’s written, for example, that one parent decides the schools and can move the kids to another school, then the school assumes that the other parent cannot be provided with access to the school records. Health records and school records are practical considerations of parent inequality.
Senator Dalphond: I understand that.
Mr. Cheriton: That’s the problem from the viewpoint of parents.
Senator Dalphond: Are you saying this is a problem across Canada? Obviously, you haven’t checked in Quebec. In Quebec the orders will specify that both parents have equal access to the school records, the health records and all these things. There is a standard form of boilerplate law. Maybe the study should also include the experience in Quebec.
You’re referring also to other jurisdictions that have implemented shared equal parenting. Could you mention some to me? I am not familiar with many that would have gone that way, but I am aware of many that have refused to go that way.
Mr. Cheriton: That’s a very interesting question. Certainly in Europe, Denmark has gone to a form of shared parenting. They call it two residences. Once you recognize that the child has two residences, you’re automatically recognizing the fact that the child has two parents and both parents are equal. They recognize both residences equally in Denmark, Belgium, Iceland and certainly Germany, which is a federal state. Large portions of Germany have the same approach. Spain has implemented an equality of parents law, essentially the two-residence approach. In fact, the Council of Europe has recommended that this is the standard across Europe, and I don’t know of any backing away from that approach.
In the States, Arizona has a different form. It is essentially maximum time as equal parenting. Kentucky has essentially put in place equal parenting law.
Australia has done five reforms and moved gradually toward that. The recent election was partly fought on that. The losing party was promising to change it and revert to the old sole custody approach. These changes are relatively minor, but the party that ran there with substantial and surprising public support was the party that promised to maintain the relatively equal shared parenting approach of the Australian law.
Senator Dalphond: I understand that. I have read the European Union’s rules, and I didn’t find a presumption of equal parenting. You refer to Denmark and the fact that the child may live with two different parents on the weekend or during the week, depending on the arrangement. The bill provides that the parental authority or those who will make decisions will be those with whom the child is living during that day for what we’ll call ordinary decisions. Don’t you think this is already close to the situation in Denmark?
I understand that in the U.S. they have refused to go forward, except in Kentucky, and that Arizona is not the state that legislated a presumption. It’s a kind of presumption through the courts.
In Australia, I understand that the Law Reform Commission has proposed to go back to the previous rules after 16 years of experimentation with this presumption of equal parenting. I am not talking about political partisanship and gamesmanship. I am talking about an independent commission that is looking at it and saying that this is the wrong way to go. I am wondering if you are advocating that we go the Australian way, which is described as a failure.
Mr. Cheriton: It certainly has been described as a failure. There is a difference in interpretation. Clearly, they have done five waves of reform in Australia. Each time they have moved toward more of a shared parenting and equality of parents model. The Australian Law Reform Commission also funded research by Jennifer McIntosh. That research claimed that you couldn’t have young children sleeping over with the secondary parent.
Subsequently, that research was pretty much discredited. In fact, you have problems with both sides of that. The fact is that it was a case where the people decided in Australia to vote for the party that maintained the relatively equal shared parenting model. It seems to me that if you want to do something that the people of Canada want, that the parents of Canada want and that the children of Canada want, as shown by four different public opinion surveys, this is something that they want and it’s something that works in other jurisdictions.
Senator Dalphond: You referred to Justice Cromwell, a former colleague of mine, as advocating for a consensual agreement. That’s what I am advocating for too. That’s what Canadians are really saying. They would like to see more consensual agreements.
Mr. Cheriton: Agreed.
Senator Dalphond: I suppose that 80 per cent of Canadians that want it are also parents. Since 50 per cent of couples will break up and go through a divorce within three to ten years of marriage, I assume that we will get more and more of these consensual agreements and we won’t need to have the law change that.
Mr. Cheriton: One of the big advantages of starting both parents off on an equal level as they go into the court process is that it leads to more consensual agreements. If you automatically do as Ontario does — and we are trying to change this — as soon as one parent is no longer living with the child that parent loses all rights to the children except in theory access. This is the point you brought up before. This occurs before there is a court order or before the parent is able to go in front of a judge.
To me this is a problem. It’s a problem for parents. If, without access to the courts, you can automatically lose your children, parents don’t like it. They want to see the law changed so that as they are going into that process they are on an equal basis and are respected as parents. Unless they do something wrong, they will keep parenting their children.
Senator Dalphond: I share your views. Certainly, that’s what the bill is trying to achieve. If they failed, despite their love for the children, to agree on what is a consensual arrangement, people will be coming before the court, not to dispute custody and access but because they are in the best place to decide what is best for the children. If they can’t do it, a third party, the judge, will have to decide on the allocation of time and no longer grant what we now call custody. The judge will also decide what the parental order should be with regard to decision-making processes. I think this is really a step forward. I think you should welcome that.
The Chair: I am looking at the o’clock. We have to take care. We have to be back in the chamber.
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Senator Pratte: My question is already asked.
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Senator McIntyre: Thank you all for your presentations. You have answered a lot of my questions.
On the one hand, we have the current Divorce Act and, on the other hand, we have the proposed Bill C-78. The current Divorce Act includes a maximum contact principle. Bill C-78 includes a maximum parenting time provision. In your opinion, does that provision appear similar to the maximum contact principle enshrined in the current Divorce Act?
Mr. Ludmer: I wanted to mention that before. Section 16.6 is not new. The operative language in section 16.6 we have lived with for 40 years. I am very disturbed by any comments that this is some radical change that will upset things. Section 16.6 is today’s world. We’re saying it is not applied evenly, fairly, consistently or transparently in litigation across the country. We need something more concrete. In and of itself, section 16.6 is not a danger. It’s not going to create problems. It’s what we have had for 40 years.
To echo a comment that we heard in response to the previous question, if you want to see this system at its worst, look at a non-consensual family in the first nine months after separation. One parent controls the children and forces the other parent to write out pieces of paper saying, “I promise I will return the child at 5:00.” It’s self-help. One parent declares themselves to be the dominant parent because they can’t get into court and through the first case conference to get your first court order. Under the new legislation, to the senator’s point, we will talk about parenting time and decision making.
You can’t get that for the first six to nine months. The children are traumatized during that first six to nine months as each parent says, “If your father comes to school to pick you up, don’t go with him. Just call me and I’ll come pick you up,” or vice versa. That’s the reality today in the absence of something more concrete. We need to end the open warfare to protect the children. The only way we can do that is by taking the 40-year-old maximum contact principle and making it more concrete so that it’s a starting point, subject to the whole best interests analysis that will play out over time. There is a rebuttable presumption of equal parenting to assist the family in making that initial transition, and then you’ll either settle or we’ll figure it out.
We don’t need Bill C-78 to foster settlements. The healthier families are settling on equal parenting today. The people who litigate, who clog the systems, who cost us tens of billions of dollars, who traumatize children, can’t figure it out by themselves. The best we can offer them is four to five years of litigation at immense expense and trauma. They need rules. They need bookends to figure it out for yourselves. Assuming you have two normative parents who don’t have to be perfect and domestic violence is a side issue, you have equal parenting because the science supports that.
To the senator’s point about the public, the public isn’t asking for anything consensual. They can do that today. The 2017 Nanos poll was about: Do you want a law that imposes a rebuttable presumption of equal parenting? That’s where the 80 per cent-plus answer comes from, consistent for two decades. Your constituents want this. They don’t want to hear from the experts. They want an end to the divorce war.
Senator Dasko: Mr. Ludmer, in your public opinion research have you asked Canadians whether they think the best interests of the child should be considered in these arrangements?
Mr. Ludmer: The specific question, to answer the senator’s point, posed was whether they would be in favour of a rebuttable presumption of equal parenting in child custody cases.
Senator Dasko: I understand that. I am asking whether you asked in public opinion research whether the best interests of the child should be considered. You’re saying you haven’t asked that particular question.
Mr. Ludmer: That’s implicit. These are parents speaking.
Senator Dasko: No, no, no. You have asked about equal shared parenting. I am asking if you asked specifically whether the best interests of the child should be considered, and you are saying no. Is that correct?
Mr. Ludmer: We didn’t ask specifically, but it’s implicit in the question.
Senator Dasko: Thank you very much.
Did you ask whether the child’s need for stability should be considered in your public opinion?
Mr. Ludmer: The same answer. It’s implicit when a parent says —
Senator Dasko: No, no, it’s not implicit. You are saying that you did not ask that question.
Did you ask whether the child’s preferences and views should be taken into account?
Mr. Ludmer: We didn’t say that they shouldn’t.
Senator Dasko: You didn’t ask that. You didn’t ask that. Okay.
Did you ask whether child care arrangements should be taken into account in the decisions?
Mr. Ludmer: If they are relevant, it would be part of the rebuttable presumption.
Senator Dasko: But you didn’t ask about that.
Mr. Ludmer: You can’t —
Senator Dasko: I am sorry, excuse me. Did you ask whether the cultural, linguistic and spiritual backgrounds of the child should be taken into account?
Mr. Ludmer: You can’t do —
Senator Dasko: You did not.
Mr. Ludmer: Polls have to be one simple question.
Senator Dasko: Ah, they can be many questions, though. They can be many questions.
Mr. Ludmer: You can have pages of polls.
Senator Dasko: Better polls will have many questions.
What I am doing is I am reading from the bill which lays out these factors. I am asking if you have asked Canadians about these factors, and you are saying, “No.” Thank you very much.
Ms. Beavers, I don’t have any questions about your substantive issues, but I am just asking your opinion as somebody who has worked in this area. How do you think these factors will be taken into account in the courts? How are they going to add it all together and look at it all? Do you have any thoughts about that?
Ms. Beavers: Let me start by giving a bit of a segue between your last questions and this one. I would start that by saying I too have spoken to women from Canada, from coast to coast to coast. What they say they need, they want and they have a right to is a life free from violence. What children across this country need, want and have a right to is a life free from violence. One of the most important factors in this bill is the fact that family violence is now embedded as an important issue to be taken into account in divorce proceedings.
We could ask the question: What has shifted in the last 40 years? That question was asked by one of the previous senators. One thing that has fundamentally shifted is the understanding of the complexity of family violence, the understanding of the ways in which family violence impacts on women and their children; and the understanding of the ways in which family violence can continue to be a factor long after divorce. All these things have changed dramatically. That alone gives us more than enough justification to move away, absolutely and completely, from any presumption of equal shared parenting.
To answer the question that you have put to me on how I see all of the amendments in the bill coming together, I think there are some very important aspects of this bill that will now be available to judges, to mediators, to lawyers and to self-represented litigants, which are absolutely on the rise for a range of reasons. The bill will provide some much-needed guidance.
I come back to one of the points I made at the beginning of my testimony, which is that this bill needs to be accompanied by additional guidance. That additional guidance should be in areas of training on family violence for all those involved in family law proceedings and mandatory screening for family violence. What I see here in this bill is a very constructive framework that is not perfect but can be built upon and improved. I hope that answers your question.
The Chair: On behalf of my colleagues, thank you so much for your testimony, Mr. Cheriton, Mr. Ludmer and Ms. Beavers.
(The committee adjourned.)