Proceedings of the Standing Senate Committee on Social Affairs,
Science and Technology
Issue 16 - Evidence
OTTAWA, Wednesday, December 10, 1996
The Standing Senate Committee on Social Affairs, Science and Technology, to
which was referred Bill C-41, to amend the Divorce Act, the Family Orders and
Agreements Enforcement Assistance Act, the Garnishment, Attachment and Pension
Diversion Act and the Canada Shipping Act, met this day at 9:05 a.m. to give
consideration to the bill.
Senator Mabel M. DeWare (Chair) in the Chair.
The Chair: We are considering Bill C-41, an act to amend the Divorce Act.
We have with us this morning Greg Kershaw, president of Fathers are Capable Too,
and Nardina Grande, from Second Spouses Group. We also have a little one, which
brings us all back to reality.
I should like to ask you to start and make your presentation, and then the
committee will have time to question you.
Mr. Greg Kershaw, President, Fathers Are Capable Too: Thank you for having me.
My name is Greg Kershaw. I run a group called Fathers Are Capable Too. We are
based in Toronto. We represent over 100 families. We have been around for close
to four years now.
We are a group of non-custodial parents. People ask us why we have the word "fathers"
in the name, and it is because most non-custodial parents are in fact fathers.
Our membership is open to anyone. We have many women in our group. We have
grandparents in our group. This is the youngest member of our group. His name
is Terran, and he will be adding a few things during the presentation, I am
The Chair: Before you start, we may have to ask you to move him to the other
side of Ms Grande because the microphone is picking him up. Thank you.
Mr. Kershaw: The transcribing could be rather difficult since he is not fluent
in any language but his own.
I should like to start the presentation by reading three things. Ms Grande has a
short speech which she would like to read, and then we will be pleased to
answer any questions.
When talking about Bill C-41, people do not realize what is going on in the
trenches -- in the family law courts. Long before we get to the issue of child
support and who is paying what bill, there are the issues of custody and
access. I have a quotation from a judge, and this is typical of what you find in
the family courts. Judge Richard Huttner says:
You have never seen a bigger pain in the ass than the divorced father who wants
to get involved. He wants to meet the kid after school, take the kid out to
dinner, have the kid on his own birthday, talk to the kid every evening on the
phone, go to every open-school night, take the kid away for a whole weekend.
[He wants to live with this kid, not just visit his kid!] This type of involved
father is pathological.
Senator Jessiman: What date was that?
Mr. Kershaw: This is from the late 1980s. This is out of the New York court
system. There is quite a bit of information available. Unfortunately, much of
it is American. For whatever reason, we do not have information such as this in
Canada. Much of it is extrapolated from the United States.
It is typical of the attitude. You are there as a father asking permission of
someone one who does not even know you to see your own child. If they give you
what is called fair, generous and liberal access, that means four days a month.
That is generous; that is liberal; that is fair. They might not give you that.
You are in a position of begging.
The next thing I would like to read is once again American. It comes out of
Oklahoma City out of the Christian Science Monitor. It is important because
they have legislation very similar there to the guidelines in this proposed
legislation here. The person who wrote this article is executive coordinator,
District Attorney's Office, Oklahoma City. The article is entitled "Deadbeat
Dads? Look Closer!"
Deadbeat dads are the special targets of politicians hungry for the perfect
scapegoat. Child-support enforcement must be tougher and tougher until all of
these deadbeat dads are made to feel the lash, and all will be well.
I have put hundreds of these deadbeat dads in jail, and I have collected child
support from tens of thousands of them. I was the primary or only trial
attorney in three child-support enforcement offices for eight years, and then I
ran the Oklahoma child-support enforcement program for three years.
So this man knows what he is talking about. He says:
The real deadbeat dad is seldom a model citizen, but he is even more seldom the
mythical monster described by politicians. Most deadbeat dads are frightened,
angry, and depressed men who fall into several overlapping categories.
A large percentage of deadbeat dads are remarried and are supporting several
step-children or biological children from a second marriage. Often this family
is poorer than the household of his ex-wife, who may have married a more
successful breadwinner. It is also common for the ex-wife of a deadbeat dad to
have remarried another deadbeat dad, who is supporting her and her children.
Men in poverty:
Many deadbeat dads are homeless, and an even greater percentage are poor.
Because the calculation of a woman's income excludes many of the social welfare
benefits she receives, the statistical picture of women in poverty is highly
misleading. Not only are many deadbeat dads destitute, it is often their
failures as providers which led their ex-wives to divorce them. I prosecuted one
deadbeat dad who had been hospitalized for malnutrition and another who lived
in the bed of a pick-up truck. Many times I prosecuted impoverished men on
behalf of ex-wives who had remarried successful men and were living in
Fathers helping mothers:
Men who provide non-monetary support are deadbeat dads according to the
child-support system. Mothers and fathers often work out agreements for child
support that involve dad fixing the car, buying groceries, baby-sitting the
children, or getting clothes for the children. These men may be unemployed, but
they want to help their children. Sometimes they are concerned that monetary
support doesn't benefit the children, but the mother's newest boyfriend -- or
that it goes to buy drugs or alcohol. None of the non-monetary support counts,
even if the mother and father want it to count and even if they agree in
writing that it should count.
Fathers paying child support:
Child support is "paid" only when it's paid in a bureaucratically
acceptable form. In a child-support program, the jargon for other means of
payment is a "shoe box full of receipts" -- which means a father who
was paying his support, but not through court or the program. I had thousands of
these cases. In one, the mother signed an affidavit that the dad had never
paid. But when confronted with receipts acknowledged that he had always paid
support. Why would she do that? She was on welfare; her child support became
the property of the state and federal government. If she keeps the child
support, it is welfare fraud.
Why would concerned fathers pay child support directly to the mother? The
bookkeeping in child support offices is atrocious. The mother could be confused
with another woman or the paying father with another man.
Men with actual custody:
Yes, even men who are raising in their homes the very children for whom child
support is sought are deadbeat dads. If a court order says that the mother has
custody and is entitled to child support, and if the mother gives the father
the children because she cannot control them or has other problems, then he is
still liable for child support.
I have some people in my group who are in situations like that.
Most of the fathers I prosecuted said that they would raise their children with
no help from the government and with no help from mom, if given the chance.
Men who can't find their children:
Even the inability to find children to support is no excuse. The mother may
leave the state with their young children and not tell the father where she is
for five years. The child-support system can, and does, go in and collect five
years of delinquent child support from this deadbeat dad. In some cases, of
course, the mother has a very good reason because of domestic abuse, but in
other cases it is the father's allegations of child abuse by the mother which
prompt her to run.
Fathers who love their kids, but won't work for them:
This is different, of course, from mothers on welfare who won't support their
kids. The former are "creeps" and the latter are "victims of
society". The sad fact, however, is that children have precisely one set
of parents, and if the parents can provide emotional support, that is at least
as valuable as economic support. Many deadbeat dads love their children just as
much as the mothers on public assistance who don't support their children
either. The social costs of driving dad into another state or putting him in
jail are seldom considered in the calculus of child-support enforcement
Let's take the case of the "worst deadbeat dad in the country." He fit
none of the above categories. He had money; he knew where his children were; he
had no excuse. And he was almost half a million dollars in arrears on child
But how much child support was this man ordered to pay each month? $5,000?
It was actually $9,000.
These are middle-class men who are obligated to pay half of their take home pay
as child support. Mandatory child-support guidelines remove from parties and
even courts the power to determine what support is fair and reasonable.
The guidelines are based on an "income sharing" model which presumes
what the needs of the children are --instead of actually examining the needs of
the children. The result? A growing class of men who -- on principle -- would
rather go to jail than pay support.
The article then goes into a few solutions. Many of the people in there
represent people in my group. I have people who actually have physical custody
of their children but the mother retains the actual legal custody so she still
is eligible for mothers' allowance or any other benefits.
My final piece to read is a letter that was faxed to me, and it is pretty scary.
It is by a man by the name of A. T. Renouf. It says:
To whom it may concern.
Last friday (13-October) my bank account was garnisheed, I was left with a total
of $00.43 in the bank.
At this time I have rent and bill's to pay which would come to somewhere
approaching $1500.00 to $1800.00.
Since my last pay was also direct deposited on friday I now have no way of
supporting myself, I have no money for food or for gas for my car to enable me
to work. My employer also tells me that they will only pay me by direct
deposit, I therefore no longer have a job, since the money would not reach me.
I have tried talking to the Family Support people, at 1916 Dundas St. E., their
answer was: -- "we have a court order." repeated several times.
I have tried talking to the welfare people in Markham, since I earned over
$520.00 in the last month I am not eligible for assistance.
I have had no contact with my daughter approx. 4 year's. I do not even know if
she is alive and well. I have tried to keep her informed of my current
telephone number but she has never bothered to call.
I have no family and no friend's, very little food, no viable job and very poor
future prospects. I have therefore decided that there is no further point in
continuing my life. It is my intention to drive to a secluded area, near my
home, feed the car exhaust into the car, take some sleeping pills and use the
remaining gas in the car to end my life.
I would have preferred to die with more dignity.
It is my last will and testament that this letter be published for all to see
These are the sorts of things that end up on my fax machine. That is the end of
my written presentation. I will be available to answer a few questions in a few
moments. Right now, I will take care of my son while Ms Grande comes in and
reads her speech.
Ms Nardina Grande, Second Spouses Group: I often find that there is truth in the
unspoken word and I think this applies effectively to Bill C-41. For instance,
what is not mentioned in Bill C-41 is a group that I think includes a large
number of people, and they are second-families.
I was at the Finestone hearings three summers ago. There was a lady there from a
group called MAFIA, Mothers Against Fathers in Arrears. She told me and another
second spouse to our faces that we did not have a right to exist. That is the
prevailing attitude out there.
I met another lady about six months back at an FAD meeting. FAD is Families
Against Deadbeats. Another lady there told me the same thing, that I had no
right to exist. I was holding my son in my arms, and I guess my son has no
right to exist. Well, I do exist and my son exists, and I will not move to the
back of the bus any more.
To introduce myself, my name is Nardina Grande. I am the founder of Second
Families of Canada. I am also a founding parent of FACT -- Fathers Are Capable,
Too -- which was started about three and a half years ago to address the
crucial issues around divorce and access and child support, the whole gamut.
If you compare the issues today with 10 years ago, they are not the same. Things
have changed drastically. So do not compare the child support figures 10 years
ago. I have spoken to women who were receiving child support 10 years ago, and
they are nowhere near the levels that are being ordered today. We are talking
about a crisis here and unreasonable awards.
My husband has been ordered to pay, for one child, $1,300 a month. He is
currently on disability. They are garnishing more than half his wages.
Because right now, they can only take half his wages unless they order a family
garnisheement, I am kicking in, offsetting his expenses by supporting him,
feeding him, making sure that he has shelter, as well as supporting my own son.
I am not asking for hand-outs. I just want the system to be fair.
Second spouses are portrayed in the media in one of two ways. The first way,
ironically, is that we are portrayed by our absence. We are often not mentioned
at all in the media. We do not exist. That is the current opinion out there.
The second way that we are portrayed in media and magazines and popular culture
and Ms. magazine is as part of a prosperous family which is taking everything
away from the first family because we are living on the high horse.
Show me someone who is. If you find a family like that, you will often find that
the second spouse is working like a horse. I should be running my business
today. I drove here from Toronto to be with you so that you could hear our
plight and the plight of other second families.
I want to give you what I think is a true portrayal of second spouses, the ones
who are actually married to divorced men who have children from the first
marriage. I refer not just to men who are divorced but to men who are divorced
with children and who are paying child support. In most cases, we prevent
divorced men from committing suicide. We provide emotional support. When I met
my husband, he was on the verge of committing suicide and I was there to pick
up the pieces.
You might want to call me a martyr. You might want to say that I knew what was
coming. No, I did not know what was coming. I did not know that Bill C-41 was
coming. Who was to predict that an Attorney General of Canada would propose to
undermine the fundamental rights of a democratic nation and make us into some
socialist state? That is what this is saying: Let us take all this money and
extort it from one group of people and hand it to other people. Let us take it
from the doers and the entrepreneurs and give to the people who are takers.
That is a socialist state, and I am not afraid of talking about it any more
because, frankly, I am not going to go to the back of the bus any more.
I was born in this country. I am first-generation Canadian. My parents were
immigrants. They came from Italy to find a better country to live in. Instead,
the country where I was raised has changed. I am really disappointed with what
has happened to Canada. I am really embarrassed and, frankly, I am scared about
these kinds of laws, laws that can put my husband in jail.
I met one second spouse who had to go to all her friends and family to find
enough money to bail her husband out of jail. Another second spouse is
offsetting her husband's expenses to pay spousal support. The judge actually
said that, because he has a new spouse with a good job, that he will continue
paying spousal support. It had nothing to do with the fact that his spouse was
able to support herself. It had more to do with the fact that there is now a
new woman who has money, so he must continue to pay spousal support to the
This does not make sense. I was brought up a feminist. I went to school at the
University of Toronto. I was taught feminism. The kind of feminism I see now in
the kinds of thoughts and ideas that are influencing this legislation is victim
feminism. This is not the kind of feminism I learned. I learned that women are
supposed to be self-sufficient and men are supposed to be self-sufficient. Yes,
there are child-support obligations, but when the child support is not reaching
the child and they are in amounts that the person cannot pay, to the point
where you are devastating them so that they cannot even function in day-to-day
life, this is getting really ridiculous.
As I was saying, second spouses also provide emotional support to the children
of divorce. I have been providing emotional support to my step-daughter for
three-and-a-half years. I have known her since she was eight months old. She
loves me and I love her very much. On her fourth birthday in August, we had a
beautiful birthday party in our back yard. We implored of the mother that she be
able to stay a little longer for her birthday party, and the mother was very
angry at this. She lied to a justice of the peace, got a court order, and we
cannot see her any more. Like that, we are cut off. You might not have sympathy
for us, but there is a child there who has been cut off from her father, her
half-brother whom she loves very much, and her stepmother. We do not have any
Second spouses indirectly pay child support by supporting our husbands,
providing food and shelter, bailing them out of jail. I will say they are
wrongly jailed. We have brought back debtors' prison. People have not been
jailed for being in debt since almost the turn of the century. Now we are
bringing it back. We are reviving the old tradition of debtors' prison.
Second spouses are doers; they are providers; they are entrepreneurs. If you
start affecting the lives of all these productive people in the country, I am
not surprised the economy is in the shape it is. I do not think we will come
out of this recession. This is affecting too many people. It is affecting
families. It is an adversarial system. The legal system is an adversarial
system. I am sorry if I offend people who are lawyers here or who have friends
who are lawyers, but family law just does not work. You cannot take a family
unit, which is the basic institution of a country, which is emotionally bound
together, and tear it apart over money matters. This is tearing the children
apart. It is tearing the parents apart. It is tearing everybody apart.
I can safely say that the child support that has been spent to date on my
step-daughter has gone to her lawyer, not to her. All the money that she got in
child support has gone to her lawyer. That is a sad state of affairs because
the amount of child support is astronomical and that did not go to the child.
I have a press release here which I sent out a couple of years ago. Believe it
or not, it is still relevant today. I sent it to Allan Rock and it has been
published in the Toronto Sun. It is called, "A Nation on the Verge of
Suicide." I apologize for being so morbid today.
Financial suicide, political suicide, literal suicide... does your country feel
like home anymore? Is your right to own property and enjoy your family being
taken away? Welcome to Canada -- the country governed with compassion.
Your Federal Government is in the process of instigating minimum child support
guidelines that even intact families cannot afford. Their hope is to end child
poverty and pay off the deficit sooner. They could never be more dead wrong.
The proposed minimum guidelines would mean that the child support, and federal
and provincial taxes can take up to 75% of a support payor's income. Remember,
these are minimum guidelines. That would mean that a support payor with a total
gross income of $50,000 would be forced to pay $38,000 in child support and
taxes, leaving him/her with $12,000 to clothe, feed, house himself/herself and
God forbid should that person have a second family, and want to do the
responsible thing and save for their retirement so as not be a strain on the
government in their old age.
The Federal Government, under the leadership of Justice Minister Allan Rock,
will not solve its goals of resolving child poverty and reduce the deficit. In
fact, this initiative on the part of the Federal Government would achieve
exactly the opposite effect it intended to achieve. Child support payors will
be unable to live up to this payment schedule. They will lose their businesses,
have so many stress related illnesses because they can't afford the interest on
the arrears that will build up with the provincial child support enforcement
agencies, and some will even be jailed, or worse, commit suicide. So what in
effect the Government now has created is a downturn in the economy, a drain on
our health care and prison system costs, and has attributed to children growing
up without one of their parents, not to mention the heightened increase in
teenage and non-custodial parent suicides.
Did you know that Canada now has the third highest rate of teenage suicide in
Dr. Hazel McBride, a reputable North American child psychologist doing research
in the field of family law and its effects on children and non-custodial
parents found the following statistics: An examination of 1018 pairs of adult
female twins found that females who were separated from a parent prior to 17
years of age were at increased risk for major depression and generalized anxiety
disorders. (Kendler, Neale, Kessler et al., 1992, Archives of General
A German study from 1991
...found an increased incidence of suicide attempts in patients with experiences
of loss in childhood, both by separation and death of parents. The increased
suicidal tendency was mainly attributed to the loss of the father. (Journal of
Affective Disorders.) Research in Scandinavia found that a significantly higher
number of adults who attempted suicide had lost a parent through divorce in
childhood (Acta Psychiatrica Scandinavia, 1990, 1993).
The Chair: That looks like quite a long document. Perhaps you could submit it to
be put into the record because we would like to ask you some questions.
Ms Grande: It is quite short, just a couple of paragraphs. I will wrap it up.
Dr. McBride found that the stressors on Non-Custodial Parents include legal
fees, unrealistic support awards, harassment by Government Support and Custody
Enforcement Programs, loss of children due to access denial and false
allegations of abuse, lack of control of how support payments are spent, loss
of all parental right to make decisions about children, etc.
Her recommendations include joint custody, mandatory mediation, a court ordered
course on divorce and separation (which has fared extremely well in the U.S.),
divorce counselling for children, shared parenting et al.
Rock's guidelines redefine child support, contrary to the Family Law Act and are
actually an underhanded form of income redistribution to the detriment of all
family members involved.
That is first and second families.
Mr. Rock... has rocked the boat and as a result, our children are drowning in
the waters of narrowly focused political agendas and lack of foresight.
The Chair: Mr. Kershaw, could I ask you where the phrase "deputy dad"
Mr. Kershaw: I have never been asked that. It seems to be a popular term in the
media. Whenever you speak about divorced fathers, you always seem to hear about
The Chair: I thought you were talking about "deputy dads".
Mr. Kershaw: No, "deadbeat".
The Chair: Thank you.
Senator Forrest: Mr. Kershaw, in your presentation, we heard anecdotes and
stories which certainly touched us.
I worked in the field of human rights and realized many years ago that there
were custodial problems with respect to fathers. In those days they were not
given children at all. I appreciate that.
I have some concerns that in this particular bill we are only looking at the
money matters rather than the custodial aspects. I know the two are tied
together. However, it is very difficult for us, because we hear one side one
day and the other side the next with respect to the money aspect. We hear one
set of statistics from one side and another set of statistics from another
You have mentioned that some people refuse to pay support on principle. I have
difficulty with that position because there is also a principle of the children
receiving the support they need.
Mr. Kershaw: That is true. I will give you an example of a person in my group
who is not paying any support.
This man's ex-wife has kept him from seeing his child for four years. The child
is now six years old, the ex-wife has had the child in therapy since the child
was two and-a-half. The ex-wife is remarried. The name of the child was changed
to the new husband's last name so the new husband could have all the benefits
of being the father with the same last name but without having to adopt, in
order to keep the former spouse on the hook for child support.
In this particular case, the woman does not need the money; her family is well
off, her new husband is well off. However, they like having the support there,
they like the fact that the father is in arrears, because every time he goes to
court to say he would like to see his daughter, even though child support and
access are not supposed to be related, the first issue on the table is: Sir, are
you paying child support? He must answer: Well, no, I am not. It then goes off
on to a discussion of child support.
He has now spent $80,000 to get the right to see his child and, in every case,
his ex-wife has denied him, with no penalty to her. There is a court order
which says that she has to let him see the child. However, even for periods of
supervised access, she would not bring the child to the access centre.
I see many of these situations and I can see good reasons for not paying,
especially if the mother's home has a higher income level. The mother has taken
the children and completely cut the father out of the picture.
These fathers get very depressed because the only time anyone refers to them as "dads"
is when they are being asked for money. However, for the rest of their lives
they are nothing to their children. Their children's names may have been
changed. They may have been moved to a different province or country.
These men do not feel like fathers. They feel that sending money is akin to
paying ransom. It is as though someone had kidnapped your child and said, "If
you do not send me $1,000, something is going to happen to your child. We would
hate to have to do it, but it would be your fault. Keep sending us the money
and we will tell you the child is all right."
Senator Forrest: Would it be your recommendation that payment of support be
associated with custody?
Mr. Kershaw: Custody is tied to access. In areas of the United States where
child custody is relative to child support, there is a 92 per cent compliance.
In cases of protected access orders, where fathers actually get to see the
children, there is 79 per cent compliance. However, when there is no access and
there is no custody for the father involved, it drops off to 45 per cent
Senator Forrest: Is that above the statistics we have in Canada?
Mr. Kershaw: The statistics are hard to interpret. I have contact with the
Family Support Plan office in Ontario. Their accounting is abysmal.
Is everyone familiar with what the Family Support Plan is?
Senator Cools: Explain to people what it is.
Mr. Kershaw: In Ontario, if you go through a divorce and there is a support
determination made, a copy of the order goes to the Family Support Plan, which
then sends a letter to your employer and that amount of money is deducted from
your pay at source. Once you are in the plan, you can never get out, even if
both parties agree. There is a problem there.
The Family Support Plan tracks all this. When they first started, essentially
they were a collection agency; they would be assigned debtors and then try to
Many companies have approached the Family Support Plan with software for debt
collection. Family Support Plan decided to write their own software. Their
software is so bad that if you are in arrears by a penny or by $1 million, you
are still in arrears. If you are paid twice a month, you will be in arrears
four times a year, just through accounting errors. They have no "reasonableness"
test in their software, as is found in standard collections software, where
debts are put in ascending order, 0 to $30,000, and so on. They do not do that.
Also, when Family Support Plan started, they took on court orders which had not
had payments made for a long time and where the original order could not be
found. They took this debt on and have never written it off.
The numbers coming from them are highly suspect. When they want to go in a
certain direction, they will say, "Do you realize that only 24 per cent of
court orders are in full compliance?" Then 76 per cent are not, so they
will describe the 76 per cent as "deadbeats". That is when they are
trying to show you how serious the problem is.
When they want to show you what a good job they are doing, they say that over 75
per cent of the files have funds flowing. Inasmuch as they have the ability to
take 50 per cent of your income at source, and the majority of people who have
obligations are working, there is no way that these men, even if they chose not
to pay, could get out of paying. However, their numbers go up or down depending
on what they want to prove. They have had limited success with about 25 per
cent of their orders.
However, even they admit there are problems. Some of these men might be dead.
The United States Health and Human Services found that 14 per cent of "deadbeat
dads" were dead. No one got around to telling the office that, though.
The Chair: We have to remember we are speaking about provincial jurisdiction in
some of these cases.
Mr. Kershaw: Once Bill C-41 goes through, that is true, it will be enforced
Senator Bosa: You gave us several instances of the hardship fathers experience
through these child support payments. However, these have happened before this
bill came into force. You have not addressed the particulars of Bill C-41. Some
of the things to which you were referring just a moment ago are under
provincial jurisdiction, as Madam Chair has pointed out, and have nothing to do
with Bill C-41.
Mr. Kershaw: Well, Bill C-41 will establish minimum guidelines. I have gone
through the bill. One of the problems I have with Bill C-41 is its
inflexibility. Some people who have come through our office are not having much
of a problem; the man and the woman have sat down and worked it out; they are
doing various things. One of the concerns with this bill is with cases which
might be described as "the divorce from hell", where the parties have
been fighting for the last four years but where things are finally settling
down. This bill will force judges to say: This is the mandatory amount which
must be paid. This could reopen old wounds and change many things. A mother may
decide she should be getting $1, 000 instead of the amount she had agreed to
I will give you an example. A lady called me. We were chatting about her
ex-husband. She said, "I let him see the child, but he has not paid child
support for four years." We chat a while longer and I find out that he is
paying for the son's hockey, the son's hockey equipment, the skiing, the son's
clothes, the son's bicycle and all these other things. I said, "That
sounds to me like he is supporting his child."
Under Bill C-41 the father will get no credit for doing these things. It is all
nice and well that he does it; however, who cares? He has to send her the
$1,000, and if he still has any money left, he can actually do these things on
top of that.
The Chair: I think we should question the $1,000. The grid shows that you would
not pay that unless you were earning $137,000 a year.
Mr. Kershaw: I have been told what will happen by various legal people who are
getting ready for court. Although what the judge does is look at the number of
children, then look across the grid and find the number there, I can guarantee
that is not the number the father will pay, it will be higher. That number is a
minimum and if there is any money left over, there might be some spousal
Senator Bosa: Ms Grande, you make reference to your parents coming to Canada and
that you feel that this is not any longer the promised land they thought it
would be. I would not ask you this question had you not mentioned it. However,
I was born in Italy, too, and I presume your parents came to Canada in the late
1940s or early 1950s.
Ms Grande: It was in the 1950s.
Senator Bosa: From a rural area?
Ms Grande: Yes.
Senator Bosa: Divorce was unheard of in rural areas at that time. However, I go
back to Italy quite frequently, and I can assure you that the divorce rate is
just as high in Italy as it is in Canada or the United States. You would have
the same problems in Italy today.
Ms Grande: I know there is divorce in Italy. That was not my point. My point is:
My parents came here for a better life.
Senator Bosa: Obviously they got a better life because they were able to send
you to university.
Ms Grande: That is true. However, now I am seeing legislation which scares me
because it is undermining fundamental rights which we think we should have in a
democratic nation. When passports and licences can be refused, we are
restricting freedom to earn a living. What is going to be next: electronic
Senator Bosa: I will ask you one final question: Why do you think Bill C-41
would allow people to be put in jail?
Ms Grande: It is already happening.
Senator Bosa: That has been happening without this bill being in force.
Mr. Kershaw: One of the reasons we believe that is that you can go to jail today
for arrears in child support. It is called contempt of court. If you are
increasing the amounts which have to be paid in areas where current amounts are
not able to be paid, then more people are likely to be jailed.
Senator Bosa: Is there not a process by which these orders from family court can
Ms Grande: If you have money. However, if you are already in debt, it is
Mr. Kershaw: You are speaking about a variance, based on material change in
circumstance. You are going to go in and get your child support payments
reduced, right? Wrong. First off, Legal Aid will not cover a man, even one who
is destitute, attempting to have his child support payments reduced. Even if
you qualify for legal aid, they will not do this for you.
So you have two choices: You can borrow some money and perhaps hire a lawyer or
you can go in and defend yourself. If you go with a lawyer, you are looking at
$2,000 per appearance, and you should not expect a decision to be made on the
first appearance. It looks bad: Here is a man with his lawyer; he would rather
spend money on his lawyer than on his children. Judges do not go for that. If
you decide to defend yourself, you can be cut to ribbons because you are dealing
with highly technical issues and the opposing lawyer is going to be merciless
on you. So there is a situation where you are destitute and the only way to
change it is to hire a lawyer. You cannot afford to prove you do not have
In Bill C-41, there is the undue hardship clause. After consulting with some
lawyers on this, I was told the only way you can actually put forward a case
under that clause is to use modelling software because the calculations are so
difficult. The estimation is if you want to prove undue hardship, you will have
to spend between $5,000 and $10,000 with a lawyer preparing your case, knowing
that even if judge acknowledges that you may be facing undue hardship, he or
she is not bound to do anything about it under this bill. You have to have
$5,000 or $10,000 to spend to prove you do not have any money, so good luck. It
is a self-defeating feature. There may be a lot of people with undue hardship.
There is no way you can even do the calculations on your kitchen table.
Senator Cohen: Thank you for your presentation and for the initiative of
creating Second Families of Canada. I never thought I would say "thank you"
for that because most of my adult life I have worked on behalf of women trying
to get custody and support payments. What you describe is a situation a member
of my own family is going through now: a husband on disability and a second
family with children, where she is supporting the household and all the money
is going to fighting in court. The attention is on the money involved instead
of being given to the children. I want to thank you for pushing that button for
What would you suggest or what you like to see in this bill that might open the
door for recognition of second families and the hardships that they go through?
Ms Grande: First, I would like to be mentioned in the bill. Put us in there.
Second, if I may just address Senator Bosa's question, divorce is a relatively
new phenomenon when you consider how many centuries we have been around, and it
has taken different forms. People did not call it divorce before, but in terms
of legal divorce, it has been around for about the last 50 years.
Whatever legislation you are putting through now will set a precedent that is
going to last for another century, or maybe longer. I do not know what is going
to happen to the family structure. Second spouses have to be included in the
legislation because there are a lot of remarriages. Family structure has
changed. You should also keep in mind that the divorce legislation that was in
existence 10 years ago is not completely relevant to what is happening now. The
situation has radically changed. I have to say that shift has really been to
the benefit of family law lawyers, the family law industry, and also somewhat
to the benefit of the first families. However, I really think the first family
does end up getting eaten alive by her lawyer. I feel sorry for my husband's
first spouse. She has done terrible things to me, things that I do not want to
talk about, atrocities, and she has put us through a lot of pain. However, she
has suffered because all the child support money has gone to her lawyer. She did
not think she had to pay it but she did. It was a wake-up call when her lawyer
knocked on her door and said, "You have to pay me that $80,000." That
money did not go to the benefit of the child.
I would also like to talk about morality in general. That seems to be lacking
today. What bothers me is that you are putting in place legislation which is
not encouraging people to marry for love, for stability, for companionship. It
is encouraging people to marry for profit, for opportunity. What is to stop
someone from getting married and divorced six months later and taking the spouse
to the cleaners?
Senator Bosa: That is an exaggeration, really. That is highly speculative.
Ms Grande: That happened to my husband. It is encouraging opportunists, and
opening the door to abuse.
The worst thing you can do is attach a monetary figure to a child. A child is
priceless. A child needs emotional support, compassion and financial support.
However, if you start attaching a monetary figure to a child, and saying that
because this person makes this much money, this child is worth this much, that
child is no longer a child for the joy of having a child; that child becomes a
meal ticket. I am going to say it because the feminists will not, but a lot of
people hang on to their kids as a meal ticket. They encourage alienating the
other parent so they can prove they need all the money because they have the
child most of the time.It is a form of kidnapping and legal extortion. That
parent might love that child but that is what this bill is encouraging.
Senator Jessiman: Did either or both of you appear before the committee in the
House of Commons when this bill was there?
Mr. Kershaw: No.
Senator Jessiman: Do either or both of you agree that what we have to consider
is the child, and the child before the parents? The act presently states that
both spouses have a joint financial obligation to maintain the child.
Mr. Kershaw: That is correct.
Senator Jessiman: Do you not agree with that principle?
Mr. Kershaw: I believe both parents should support the child. That is what is
lacking in the new bill.
Senator Jessiman: It is being taken out.
Mr. Kershaw: The custodial parent's financial support of the child is presumed.
The other problem I have with the bill in that regard is that there is no
absolutely no enforcement to ensure that that money, which is supposedly going
to the child, goes to the child.
Senator Jessiman: I agree with that. Where I part company with you, though, is
that, whether deadbeat or not, at some point you have to pay. You talked of
someone who owed $80,000. At $1,000 a month that would take over five years.
Rather than paying his lawyer, he should have been paying his support.
Mr. Kershaw: His point is this: He wanted to see and bond with his child. He had
a very close relationship before the break-up. He did not start out on his
legal course to spend $80,000 but his lawyer told him, "Victory is just
around the corner. I just need another $5,000, another $2,000. It will be over
when the assessment is in, or at the next court date." All of a sudden he
has gone through his entire equity, part of his parents' equity, friends'
money. He did not set out to spend $80,000. He feels he has done nothing wrong.
He has never been charged criminally with anything. He wonders why he cannot
see his child. He even has a court order saying he can see his child. He is out
of money. He is desperate and depressed. On top of the $80,000 he had to spend,
his ex-wife spent $120,000. This is a $200,000 deal. The lawyers are happy
because their children can go to college on that money.
Senator Jessiman: I am a lawyer and we do have family lawyers within our firm,
and I am told that certainly in Manitoba the guidelines as set out are, in
fact, lower than recent maintenance awards. You have this other section where
you have special extraordinary expenses, and in that case they do take into
account both sets of income, but they also take into account second marriages
because they are looking at the household income.
Mr. Kershaw: That is if you use the undue hardship clause, where you go through
the entire calculation. That is really tough. Let us suppose you have actually
proven your case, you have gone through all this with the software. What
happens in six months, or six years? Circumstances change. It takes a long time
to put that together and then someone wins a lottery or loses a job or gains a
job. Hardship is going to go back and forth. Things change.
The Chair: I am sorry, we are out of time. I thank you very much. Your
statements are on record for us. We appreciate your coming here this morning to
give us your views.
Ms Grande: I have a closing comment. Children should be supported whether they
are from the first marriage, the second, or the third. Children should be
supported, with reasonable child support and with access. Bill C-41 should not
go through unless you have an equivalent bill for the enforcement of visitation
The Chair: This bill is not dealing with visitation rights.
The next witnesses this morning are from the National Alliance for the
Advancement of Non-Custodial Parents. We have with us Mr. Jason Bouchard and
Mr. Glenn Cheriton. We have a brief from them, but apparently there is a
problem with photocopying and there are a few pages missing. I hope you have a
summary for us.
Mr. W. Glenn Cheriton, Chief Researcher, National Alliance for the Advancement
of Non-Custodial Parents: Yes, I do.
The Chair: Thank you. Please proceed.
Mr. L. Jason Bouchard, Coordinator, National Alliance for the Advancement of
Non-Custodial Parents: If I may explain the purpose of our organization in
Ottawa, we try to assist non-custodial parents' organizations to link together
because, of course, there is no funding or support. Contrary to what I read in
The Globe and Mail, there is no well-funded father's lobby group out there. A
lot of non-custodial parents are women, and they are even more marginalized in
Mr. Cheriton will summarize our main points and then I will discuss some
Mr. Cheriton: Our organization is the National Alliance for the Advancement of
Non-Custodial Parents. I have been working with single custodial fathers for a
number of years. They told me a lot of things that frankly I did not believe so
I started to do my own research to find out what information exists on child
I am probably going to shock a lot of you in the sense that what I discovered is
that virtually all of what government has been telling Canadians is
contradicted by their very own figures on child support. This has application
to whether Bill C-41 will actually do what it sets out to do, in actually
tackling child poverty or enforcement of child support, and whether these
amounts are actually going to improve child support.
Essentially my brief details the data I have been able to gather from government
data banks, from the Department of Justice, from Revenue Canada, from the
provincial collection agencies of Ontario and Alberta, and information from the
Vanier Institute of the Family.
I would like to comment on this presumption that there are large numbers of
fathers not paying child support. I did some calculations which show that the
numbers are probably in the order of about 9 per cent. I have seen figures
quoted up to 75 per cent. You also hear figures that up to 75 per cent of child
support is not paid. However, the data I have for 1991 shows that the average
court judgment was $4,411. The average amount that fathers paid in the same
year was $4,883, which is 11 per cent higher than the average court judgment.
Another assumption is that there are a relatively small number of single
fathers. The number of single fathers is about 22 per cent.
Senator Jessiman: Is that with custody?
Mr. Cheriton: Yes, 22 per cent with custody. In fact, they get about 1 per cent
of child support. This is important when it comes to Bill C-41 and whether the
bill is in the best interests of children. If you look at the system and where
the child support is going and what is working, you come to the astonishing
conclusion that the areas in the best interests of children are not the areas
where most of the child support is going. In fact, data from the United States
show that states with the highest levels of child support and child welfare
actually rank among the lowest in the interests of child health and child
On the other side of the coin, if you look at what is in the best interests of
children, overwhelmingly the data show that children will perform much better
in families after divorce where both parents are involved. Those are families
where child support levels are the lowest.
The problem with Bill C-41 is that it is based on research that discarded every
single case of shared parenting in order to produce this child support formula.
They discarded all the cases where fathers and mothers were working together to
raise the children.
The second thing they did in producing this child support -- I will not call it
a formula because it is a guideline, which is another problem -- is that they
discarded 70 per cent of single-custodial fathers to produce a database which
represented almost exclusively the lone-parent, single-mother-headed family.
The data in my brief show that this type of family after divorce has the most
problems. According to a recent report of Statistics Canada, these problems are
not solved by money. Even the high-income, lone-parent family has many of the
same problems that poor families have if they are separated. The problem is the
absence of the other parent; the problem is not the absence of money.
One of the astonishing pieces of data from this report, which Bill C-41 is based
on, shows that for a given level of income of the non-custodial father, the
higher the income of the mother, the higher the amount of child support she
receives, and thus the wider the discrepancy between the standard of living
that the child experiences with the one parent versus the other parent. This is
exactly the opposite from my experience with single fathers. The higher the
income of the custodial father, the lower the child support he receives from
The problem with the existing system and Bill C-41 is that it essentially
provides another tool to a system which results in enormous disadvantages to
children after divorce. This tool will exacerbate all of the existing gender
differences. It tilts the entire playing field.
These problems are not caused by women; these problems are caused by the fact
that there is only one parent. If you tilt all the resources so that the one
parent, in order to get those resources, has to do virtually all of the
parenting, it is not surprising that that parent will have all of the problems
without any of the help.
Bill C-41 raises several questions. One is whether the bill is based on a model
which will work. I suggest it is not. The co-parenting model is the most
successful model. Bill C-41 is based on the lone-parent model. It is also based
on the assumption that you can replace a parent in the family with money.
The government tried this with native residential schools. They took away the
parents and replaced them with an organization with vast amounts of monetary
resources. This was a dismal failure. The reality is that kids in this country
do not need Bill C-41 money. What they need are parents. Overwhelmingly, what
the child experiences on divorce is the loss of the father. That is the problem
with Bill C-41 -- it makes that problem worse.
In the justice system, if it comes down to custody, judges often decide on the
basis of gender bias rather than on the best interests of the children. When it
comes down to child support, the justice system decides on the basis of money
rather than the best interests of the children.
Let us look at the enforcement of child support. This is shocking. There are
wild claims about what is not paid. However, the Province of Ontario is
collecting about 25 per cent more per year. Actually, it is 33 per cent, 34 per
cent, and 23 per cent in the four years for which I was able to receive data.
They are claiming over the four years that the arrears have doubled. This is a
50 per cent or 40 per cent increase in the amount of money the provincial
government of Ontario is expecting to get out of child support. Men's incomes
are increasing at about 3 per cent per year, which is lower than the rate of
inflation. I do not know how we can expect an increase of this magnitude. In
fact, the money women are receiving from Revenue Canada is increasing by about
7 per cent a year. That is about twice the rate of increase of men's incomes.
If you look at the last year of the data I was able to get, what single fathers
receive has dropped by a staggering 17.2 per cent. The two systems are moving in
exactly opposite directions. There is one system for single fathers and
co-parenting, and one system for mothers, but the systems that are working are
not the systems where the money is going. In that sense, Bill C-41 simply does
not make sense.
We must challenge whether this bill will actually reduce child poverty. In
looking at the data from Human Resources Development, child poverty has
actually decreased in single-father families, in spite of decreasing child
support, decreasing government programs and an implacable hostility in the
legal system to single fathers and co-parenting. On the other side, in spite of
massive increases in government programs, child support and government
attention, the rate of child poverty in single-mother families has actually
increased. To me, this was an astonishing revelation. This data is from the
agencies I have cited in my brief.
Mr. Bouchard: Perhaps you could talk for a minute about the amount spent on
single-mother families at all levels of government.
Mr. Cheriton: Yes. This is an estimate by the Caledon Institute of Social
Policy. Apparently the three levels of government spend $6.1 billion per year
on single-mother families. This represents approximately 10 per cent of
families. If you double the rate of divorce, you will double the number of
lone-parent, mother-headed families and double that amount to $12 billion. That
is the problem that governments will face. The more you make this into a
problem, the more government will have a problem. Government simply cannot
replace two parents with money. They do not have the money, but they also do
not have the skills. Governments do not raise children. Governments raise taxes;
parents raise children. That is a simple fact of life.
The Chair: That $6.1 billion, is that Canada-wide?
Mr. Cheriton: That is federal, provincial and municipal.
The Chair: That is total, per year, with respect to single-mother families?
Mr. Cheriton: Yes.
Mr. Bouchard: We keep hearing the phrase "best interests of the child"
over and over again. It seems to be the catch phrase in this decade for "give
me what I want because it is in the best interests of the child." Bill
C-41 talks about money, but it does not talk about anything else.
A commission was in place for five years to look at three aspects of this
problem. Support and access were two of them. The point is that dollars are not
the whole issue.
Mr. Cheriton spoke about single custodial mothers. One of the reasons we have to
look at it as two separate groups is because the circumstances around single
custodial fathers and mothers are somewhat different. In the system, they are
dealt with differently. One of our concerns is that in comparison to what is
being paid now by non-custodial mothers in hard dollars as opposed all the
other things that people provide for their children that are not in a cheque --
such as taking care of kids when they are not with them, access costs, all of
those things -- the difference between those hard dollars now and the
guidelines could mean increases in some cases of about 2,000 per cent. We are
talking about a 20-fold increase, and the government has not done any research
as to why there is that difference.
Regardless of which numbers you use, whether it is one-fourth or one-fifth of
single-custodial parents being men, obviously there is an equivalent number of
non-custodial mothers who will be ploughed under by these guidelines with no
study as to why there is that disparity. One of the assumptions is that in a
lot of cases they do not have the income. Well, if you have guidelines starting
at $7,000, they will not have much more. The government has intentionally
ignored much of what is out there in the world to get these numbers. Given that
they do not know what is out there, we can only surmise that the impact on
those big areas will be disastrous. I do not know about you, but I assume that
most poor non-custodial parents who were given a 20-fold increase in child
support payments would find that a problem. That is a safe assumption. That is
the situation most non-custodial mothers will find themselves in.
Again, this makes custody a dollar issue. I have not yet seen a definition of "shared
parenting", but shared parenting seems to be considered a very tight, 50
per cent split. The assumption is that if you have a 60-40 split -- and it was
based on real world situations of what people can do, what their jobs allow and
what schooling requires -- all of a sudden you are paying child support at these
rates. However, if you are in a 50-50 split, then we do what we think makes
more sense, which is to look at both incomes. Going from a 45 per cent to a 50
per cent breakdown in the time could mean a doubling of child support. You have
effectively made that thin area of negotiation in the middle between, say, 45
and 50 per cent in terms of the access to the kid -- all of those things which
involve cooperative negotiation -- almost impossible. If the custodial parent
allows too much of that to happen, they can see their child support disappear.
It could also go the other way. They could actually end up paying child
support. If you have a custodial parent whose income is higher and they are
receiving child support from someone and the split is 60-40 in terms of time,
if they shift to 50-50, then you would be talking about using both parents'
income to calculate the cost of raising a child. What a novel idea! But these
guidelines do not reflect that. However, if you actually get sensible and use
both parents' income, all of a sudden the custodial parent is now paying child
support to the other person as equalization. That makes sense. The idea is to
equalize the income that supports the child. This is not supposed to be a
money-making proposition. This is supposed to be for the best interests of the
Shared parenting, which is the increasing style of parenting in divorced
families, will now be squashed flat. If you allow shared parenting, you lose a
lot of money. In real terms, what will you do? You are the parent with the
child, and the bottom line is for you. This is not meant to say that someone is
doing this to make money. The bottom line is that if you have the children with
you, you want the best deal possible so that you will have the best resources
to take care of them. You will do whatever is required to get more money. If it
means going from 20 to 50 per cent access to do so, you will. In your terms of
reference, that is in the best interests of the children. However, the "best
interest" of a child is not just money, it is having both parents -- that
is, the closest thing to having the intact family model continue after divorce.
Non-custodial mothers make access a money issue, which is not good for the
children. The rates under these guidelines are interesting because they are the
reverse of tax rates on income. The more you earn, the higher your percentage
of taxable income. That is graduated taxation. It has been around for a long
time. Here, we have the reverse. People making under $20,000 are paying the
highest rates. People keep throwing around numbers about child poverty, but
$7,000 is certainly nowhere near what is generally considered to be the poverty
line. In some cases, the rate of payment of support for any income above that
figure will be 40 or 50 per cent.
For example, take someone who is off welfare. That person is working, but is
considered working poor -- as is a large portion of the population in this
country. He makes $8,000 a year. Suppose he is paying child support for one
child to an ex-spouse on welfare. That mother, at the bare minimum with one
child, is making $14,000 tax fee. In Ontario, family benefits starts at about
$14,000 for one child. Tell me where that makes sense. People say, "There
is always a basic minimum requirement," but that does not really apply
because that money will not go to the person making $14,000. Where will it go?
To the province, because they will reduce the family benefit.
You have taken someone who is poor and made him poorer. When he does have the
children for access, he will be able to afford to feed them nothing but
macaroni and cheese. You have taken the money from their pockets and given it
to the government. It never gets to the person who is on family benefits and is
making $14,000. Tell me any case that you can think of where that is not undue
I would hope that lawyers out there do their jobs.
Senator Bosa: Did you say $40,000 or $14,000?
Mr. Bouchard: I said $14,000. We are talking about tax-free dollars. If that
person does not pay taxes on it, then that is equivalent to more.
Senator Cools: Perhaps you could define "family benefits" for Senator
Mr. Bouchard: If you are a single person, you get welfare; if you are a person
with a child, you receive family benefits. Basically, it doubles with one
If lawyers are doing their jobs correctly, then someone who is making $8,000 a
year would apply to the court to request that he be excused from paying child
support because it would cause undue hardship. This bill provides for that
because the drafters of it saw the flaw contained in their own numbers. Before
you are done, everyone under $20,000 will be exempted from child support under
the undue hardship provision, rendering the guidelines worthless.
Senator Bosa: Did you have an opportunity to appear before the House of Commons
Mr. Bouchard: Yes, we did.
Mr. Cheriton: Yes.
Senator Bosa: What kind of response did you receive?
Mr. Cheriton: This is a problem. We have had continual problems with employees
of the Department of Justice. In fact, while we were there, some of the
employees of the Department of Justice were smirking and rolling their eyes.
The reaction was extremely hostile and distracting. I was shocked because these
people are lawyers. If they did this in court, they would be found in contempt
I had been told by employees of the Department of Justice that fathers do not
care about their children because they do not pay child support.
Senator Cools: They say that all the time. That is a commonly held point of
Mr. Cheriton: If you have a system which is based upon a belief that fathers do
not care about their children because they do not pay child support, but the
figures show the reverse, that is a problem. If you look at single fathers,
they are far better at supporting their children. If you look at single,
non-custodial fathers, they are far better at paying support. If you look at
single intact families, fathers are the reason why children are not in poverty.
If you have a justice system -- that is, lawyers and judges -- who firmly
believe that getting the fathers out of the family will improve things for
children, then providing Bill C-41 as an additional weapon will just create
The reaction we received in the Commons committee was, with a few interesting
exceptions, pretty hostile.
Senator Bosa: The equivalence table used in the guidelines was developed by
Statistics Canada and recommended by various economists. Do you have any
problems with this measure of average expenditures on children?
Mr. Cheriton: I do not have any problems with the average expenditures on
children. In fact, they use four different ones in here.
There is one standard for the cash expenditures of children, which is $683 per
year for actual cash, out-of-pocket expenditures. The average amount that a
custodial father gets is approximately $100 per child. That is one-sixth of his
cash expenditures. The average amount that a custodial mother gets is $4,883,
which is eight times what the out-of-pocket cash expenditures are. If you
compare that with what the government gives people for foster parenting or for
welfare, then you can see that there are a number of different standards.
Overall, the Bill C-41 formula is an increase. There have been four separate
approaches to the formula by different economists. Every single one has
increased the amount.
Senator Bosa: But what are the problems specifically in this bill?
Mr. Cheriton: First, they will not even measure whether this will be enforced
fairly in relation to both types of families.
Second, the bill deals with child support in isolation rather than dealing with
custody, access, support and enforcement all at once.
Senator Bosa: But it took five years to get this to stage. They consulted every
Tom, Dick and Harry.
Mr. Bouchard: That is the problem. They did not.
Senator Cools: They did not consult Toms, Dicks and Harrys. It was probably
Marys, Janes and Suzies.
Mr. Bouchard: If you look at the list of people who submitted to the committee,
there were only two organizations that did not represent custodial mothers.
Almost all those organizations were government-funded. So, no, they did not
speak to every Tom, Dick and Harry.
The guidelines that were proposed by economists were considerably lower than and
different from these. They were discarded because they were not politically
Senator Bosa: You cited a case of the spouse earning $8,000 and the custodial
spouse receiving $14,000 by drawing family benefits.
This money comes from the province. The province does not have to support this.
It is the parents' obligation to support their children.
Mr. Bouchard: You are telling me that someone who makes $8,000 a year is not
allowed to have any spare money to feed the children when they are with him?
Remember that these children are not with the custodial parent 100 per cent of
the time. In an intact family model, you are talking about one-third to
two-thirds parenting. With these guidelines, anything less than 50 per cent is
considered a non-custodial parent. This person could have the children 40 per
cent of the time and you are saying he is not allowed to have any money to feed
Senator Bosa: Are you saying that the scale contained in these guidelines
concerning this matter is completely out of kilter?
Mr. Bouchard: At the low end, it is ridiculous -- especially when you look at
the fact that the rates are higher for poor people. Do we tax people that way?
I do not think so. There is a reason for that. These people must be able to
feed their children themselves.
Senator Bosa: The guidelines have not been tabled yet. They are what we call
guidelines, but they have not been approved.
Mr. Bouchard: But every time we have seen them, they have gotten higher.
Senator Bosa: I am told by the experts that these are the minimum standards.
Senator Cools: But they can change them if they want.
Mr. Bouchard: Yes, at will.
Senator Losier-Cool: I looked over your brief. Most of your brief relates to
divorce and child support. You realize that that is a provincial jurisdiction,
do you not?
Senator Cools: That is not correct.
Senator Losier-Cool: I am talking about child support.
Senator Cools: No, child support falls under this act.
Senator Losier-Cool: A few times you mentioned that it is a model that would not
work. You also said that the bill is taking fathers out of the family.
I am looking at clause 15 where the bill talks about spouses and the child.
Could you point out to me where the bill exclude fathers as part of the family
or where it says, "Mothers get this, fathers do not get that," or, "Fathers
get this and mothers do not"? Spousal issues and issues relating to both
parents are addressed throughout the bill.
Mr. Cheriton: That is the case with the existing law. If you set up a system
where those who work full time in the federal government will get $100,000 a
year, whereas anyone who works part time, which is defined as less than 37.5
hours a week, will earn $5,000, and if you were to hand that to managers who
really do not believe that visible minorities or natives can do a full-time job,
it would not be surprising that those who are from a visible minority or
natives would be earning $5,000 from working 37 hours a week, whereas those in
the "approved" group would be making $100,000 simply because they
would be working a half hour more.
That is what is happening within the child-support system. You are having
fathers who are doing 22 per cent of the custodial parenting and receiving 1
per cent of the support. That is a 20 to 1 difference. Essentially, you do not
have to have discriminatory language built into a law in order to have it
applied in a discriminatory fashion.
Senator Losier-Cool: When you say "the model does not work", you seem
to say that we should have 50 per cent shared parenting.
Senator Jessiman: Joint income?
Senator Losier-Cool: Yes; 50/50. What is the percentage of single-parent
families? Who has the custody of the child? Are you aware of that?
Mr. Cheriton: Generally, two things happen. If you look at the court judgments,
approximately 11 or 12 per cent result in sole custody for a single father.
Approximately 75 per cent result in sole-mother custody. The rest result in
The interesting thing about shared parenting is that the amount is growing.
Lone-mother and lone-father custody is decreasing. This is happening as mothers
and fathers realize that children need both parents. The way Bill C-41 is set
up, it will almost inevitably reverse that trend against the will of both
mothers and fathers and their children.
Your question is, if men get custody only 11 per cent of the time, why are 22
per cent single fathers? As the children get older, they need their fathers
more. Gradually, particularly as they get into their teens, the women say, "You
take them." If your child support is so high that financially you cannot
afford it, that trend will be stopped in its tracks.
Families recognize children's needs for their fathers. You do not get a doubling
of this. This is done by free choice. Bill C-41 will stop the very thing that
children need at the time they most need it.
Senator Losier-Cool: We all favour shared parenting.
What would you suggest as an amendment if you were to vote on Bill C-41? What
would you do with the bill?
Mr. Cheriton: First, I would make these things subject to the ability to pay. If
you do not have it subject to the ability to pay, it does not make sense.
Second, I would hold the House of Commons to their commitment to end child
poverty and ask them to show you where there is any evidence whatsoever that
these levels of child support will actually reduce the amount of time children
spend in poverty. I do not think they have the evidence. It is not there.
Senator Bosa: Could you repeat that?
Mr. Cheriton: The House of Commons made a commitment to end child poverty by the
year 2000. Ask the House of Commons to show you any evidence they have that in
fact Bill C-41 or these levels of child support will in any way reduce child
poverty. I do not think they have the evidence.
The third thing they could do would be to model Bill C-41 not on a lone-parent
model but have it start from co-parenting, rather than, as Mr. Bouchard has
pointed out, have this enormous, massive change as soon as it approaches the 50
per cent level. According to Allan Rock's chief of family law research, if it
is anything below 50 per cent, it falls under these guidelines, which is
Another thing you could consider is moving the whole question of divorce and
custody and access and enforcement out of the court system into something which
is essentially mediative. The family is a unique institution. The family is the
only institution we have which does not have a single head. Ultimately, the
family starts out with two people on an equal basis. There is no other
organization that runs on that basis of a central partnership. This is where
kids learn balance, negotiation, and working things out. In fact, the court is
exactly the wrong model for that. What you need is the model that reflects the
The closest thing that I have seen to that is the native healing circles. I work
a lot with men in different cultures, and all those cultures seem to have a
similar model. If a family has a problem and they are about to go through a
divorce, the elders in the village, including the two grandparents, get together
and try to work something out. The village puts pressure on them to get
together for the interests of the children. The court is precisely the wrong
model. Take it out of the courts and put it into something that works, like the
native healing circles.
Mr. Bouchard: Some of the work that is being done in Quebec, in terms of leaning
quite strongly towards mediation and in terms of their guidelines, which take
both peoples' income into question, is quite progressive in this regard.
Perhaps we want to look in that direction for some guidance.
Senator Forest: I would certainly agree that co-parenting is a much better route
to go. We have experienced that within our own family. I would also agree with
mediation as opposed to an adversarial situation.
You mentioned the ability to pay. I believe there is a clause in here which has
to do with ability to pay. That will be taken into consideration in the
While fathers pay more, I think statistics would also show that most of the time
the fathers have the higher income. Statistics show that, and perhaps that
takes that into account.
Mr. Cheriton: From the information I have, the difference in the order of
magnitude between what fathers pay, and what mothers pay when the genders are
reversed, is so huge, in the order of 20 to 1, that it overwhelms any
differences in income. In fact, the interesting point is that, in effect, a
non-custodial parent is put in the same position as a single person. Single
people earn virtually the same amount, regardless of gender. The difference,
according to Statistics Canada, is something in the order of less than 5 per
cent between men and women who are single, never married. These differences
should not make a difference of the order of 20 to 1 between the amount of child
Senator Forest: We are hearing so many statistics on one side and so many on the
other. It is a very difficult task to try to reconcile them?
Senator Bosa: You stated that the House of Commons advocated the elimination of
poverty by the year 2000. Who specifically in the House of Commons stated that?
Mr. Cheriton: This was a vote of the House of Commons, a unanimous commitment,
to eliminate child poverty by the year 2000. Put that into the context of the
Bill C-41, and I think the bill is a retrograde step. The federal government
and the provincial governments have also made a commitment to the United
Nations on keeping both children in contact --
Senator Bosa: This bill is not a welfare bill. This bill is not about reducing
child poverty. This bill is about child support.
Mr. Bouchard: The purpose of child support is to reduce child poverty, is it
Senator Bosa: Not in the context that Mr. Cheriton put it. He said that the
elimination of child poverty was to be accomplished by the year 2000.
Mr. Cheriton: It was simply a suggestion as to how to improve Bill C-41.
Senator Jessiman: You say that Quebec does in fact in their guidelines take into
account the two incomes. Therefore, each province could do the same thing if
Mr. Bouchard: If they had the money to spare to do all the development costs,
yes. How long has it taken the federal government to get to these? How much has
it cost? What kind of money do the provinces have to spare? What do you think
the natural evolution will be?
Senator Jessiman: I assume from what you have said that you think Quebec is
fairer, and I would agree that both incomes should be taken into account. That
can be done just by the guidelines themselves. The federal government is
passing a guideline for Quebec, but it is not the guideline that Quebec has, is
Mr. Bouchard: Exactly. If provinces develop their own guidelines, they
effectively supersede these. However, in most cases, if you have the choice
between an existing guideline that has, in theory, been researched, and
spending all the money to develop your own, most provinces would suggest they do
not have the money and would rely on the federal government's guidance.
Senator Jessiman: Could they not also do likewise with Quebec's guidelines?
Mr. Bouchard: They can all develop their own.
Senator Jessiman: You are saying it is fairer, and I agree with you, in that it
take both incomes into account, both custodial and non-custodial. That is what
I think is one of the very basic wrongs with these guidelines. If Quebec can do
it -- and they have done it -- could the other provinces not use those
guidelines and simply adjust them for of differences in the cost of living
Mr. Bouchard: They certainly could. It is pretty strange situation when you have
the federal government passing legislation that every province will have to
fix. It seems like an odd way of doing business. You would not survive in the
private industry if you were running things that way.
Senator Jessiman: Section 17(8), which is the one recognizing that former
spouses have a joint financial obligation to maintain the child and apportions
that obligation between the former spouses according to the relative abilities
to contribute to the performance of that obligation, is being deleted from the
act. Would you not think that that should be left in?
Mr. Bouchard: It seems to be the one area that provides a bit more balance.
Unfortunately, balance is not what this is about. This is why they want to
remove it. That should tell you more about this piece of legislation than
Mr. Cheriton: That is the core of co-parenting, the core of an intact family,
the core of shared responsibility.
The Chair: Thank you, Mr. Bouchard and Mr. Cheriton, for your presentation this
morning. We appreciate your coming before the committee.
We welcome now Mr. Patrick Mullin.
Mr. Patrick Mullin, Director, Canadian Council for Co-Parenting Thank you, Madam
Chair. I plan to speak first to one issue relating to Bill C-41 and to develop
the argument or the discussion I want to present through that.
You all should have a five-page document entitled, Presentation to Standing
Senate Committee...Divorce vs Justice: C-41 -- A Missed Opportunity.
Attached to that is a photocopy of a page from the U.S. Bureau of Statistics,
and a copy of a page from a document entitled Dissolution of Marriage; Support;
Custody, which are statutes from the state of Florida. That is all there should
be to your package. We will focus on that.
I understand this is being simultaneously translated. I apologize that we did
not have the capacity to translate this.The Council for Co-Parenting has no
funding. We are all volunteers. Our budget approximately shows minus $52 to
Senator Lavoie-Roux: Parliament has the responsibility to translate this. Do not
Mr. Mullin: When I was called to make this presentation, a number of things came
to mind. I have been involved in political activity for a number of years. I
want to ask the question: Is it possible? Do you really feel that we can tack a
car on to the train, so to speak, or am I at the platform waving my ticket and
looking at the caboose?
Then I thought of a quote by Winston Churchill that goes something like,
democracy is the worst system but show me a better one.
Under the guise of those types of feelings, and also since it is Christmas, I
will tell you that Bill C-41, to me, deals with real feelings. I would bet that
most people in here have grandchildren or children. I will say no more on that.
Briefly, I have personally experienced separation and divorce. I have been a
non-custodial support payer. I am presently a custodial parent who receives
support. I live in a blended-family situation. I have with me my new wife Carol
and my daughter Lucy. My daughter will observe and will later sanitize what I
will tell you.
The passage of Bill C-41, amendments to the Divorce Act, passed by the House of
Commons on December 18, 1996, called for closer scrutiny in the name of
fairness and balance. While positive in its intention of dealing with child
poverty, it is apparent that the damage and devastation caused by the
adversarial nature of the family law process in Canada will continue and perhaps
increase for parents, grandparents, and relatives -- and do not forget
employers in this whole scenario -- but, most of all, for children.
Bill C-41 will set up guidelines, amounts and enforcement regulations ensuring
that child support responsibilities will be honoured. Not many would argue that
any parent should wilfully abandon that responsibility. That is not part of the
presentation. That is not even a consideration. No one is considering that.
Conscientious defaulters make enforcement measures necessary. The consistency
aspect of standardized guidelines are long overdue; no question.
However, as many Canadians know, many caring, loving, fit parents are ostracized
from their children by the process itself and left devastated. I will tell you
about one of the best recent examples, and there are many out there. As
chairman of the Canadian Council for Co-Parenting, I see fathers crying at our
meetings; I see mothers crying at our meetings.Why?
"The Divorce from Hell," Toronto Life, February 1996, is a good
example of what is terribly wrong with the family law system.
The new measures fail in ensuring that fit parents, in a time of great turmoil
and anger, will be treated fairly. Bill C-41 enhances the "winner takes
all" stakes -- the children, the financial support, and the opportunity to
continue to be an active parent. On top of that, you have the full weight of the
government on one side here.
There is simply no support for any type of shared parenting after divorce, from
Justice Minister Rock and his department. Sadly, Bill C-41, in my opinion, is
an opportunity missed.
As far back as 1970, the Law Reform Commission of Canada did a major study of
family law in Canada.
On procedure, the commission concluded that the bitter proceedings in divorce
actions should be reformed particularly because of the detrimental effect on
the children. It concluded that no purpose was served by acrimonious courtroom
The actions of the government and the courts since then have done little to
improve this cause for concern. Family court decisions have consistently
aggravated the problem. If you do a quick review of custody decisions through
Statistics Canada, those figures clearly show an unbalanced picture when it
comes to the issue of parenting after divorce.
One could conclude that the large number of single-parent families is systemic
in large part due to family court decisions and practices. For the children,
there is ample evidence that adjustments and negative impacts as a result of
those decisions can be life-long. It is not news to many that developmental and
relationship theory should have alerted the mental health field to the potential
immediate and long-term consequences for the child of seeing a parent four days
each month. Under the guise of "in the best interests of the children,"
Justice has ignored that critical part of the support picture. It also expects
the parent who has been removed from their children's lives to comply
complacently until all available resources have been depleted.
The gaps in the research done leading to the formation of Bill C-41 are
striking. The Department of Justice itself admits that there has been no
research done, no data collected, about the problems of the non-custodial side
of the post-divorce family in Canada.
Bill C-41 will affect these parents intensely. I know that personally. What is
surprising is that, in its announcement of the new legislation, the government
stated that the concerns of all have been taken into consideration.
I have gone to the Institute for Research on Public Policy in Montreal on this,
to the Carleton Association locally, to the Law Foundation of Ontario, to the
Attorney General, to the Family Support Plan, to the Justice Department, to
Professor Finnie, to Professor Payne, challenging them to provide this kind of
information. I challenge the Senate to provide me with some and I will gladly
say that this is incorrect.
One of the major goals of the entire exercise is to ensure that children get the
benefit of support from the absentee parent. This new legislation will enforce
compliance through punishment by the denial of licences, passports, et cetera.
You know that.
As far back as March 1993, the Department of Justice released a discussion paper
dealing with the issue of access and custody. I have it here. During the debate
on Bill C-41, many groups tried to convince Mr. Rock of the importance and
fairness of this in connection with the child support initiatives.
The U.S. Bureau of Statistics released a study in August 1995. One page of it is
in the brief. The statistics deal with 1991 figures, but it was released in
August 1995. They found that where there was joint custody and/or secure
visitation on the part of fathers, child support was paid between 85 and 79 per
cent of the time. Where there was neither joint custody nor visitation
privileges, compliance was 56 per cent.
On the other hand, the payment rate for mothers with visitation privileges only
and those with joint custody provisions was 65 per cent. There were no figures
available for mothers with neither access nor joint custody provisions.
I want you to understand the gap between 85 to 79 per cent and the low 50s. By
arguing that establishing a link between access and custody issues and support
payments would be problematic, Justice Minister Rock and his department have
chosen to ignore this type of evidence in proposing Bill C-41, even though it
may have moved the government closer to their stated goal by approximately
one-third. Please consider that. We do not have any research in Canada which
mirrors this, but this is the most recent study that I have found. If you can
move on access and custody, you can solve the problem by one-third.
There are also effective U.S. statutes from some states which do not establish a
link but which do deal with the two issues at the very same time -- no link,
just dealing with them at the same time -- thereby ensuring a greater measure
of fairness for the absentee parent.
Parents who might find themselves in a non-custodial situation should take note
of the win-lose aspects of Bill C-41. By reviewing a few examples, one can see
that the non-custodial parent will now have more than Revenue Canada to fear.
On the whim of an ex-spouse, they must provide tax return statements to the
ex-spouse for the three past previous years, even if they are religiously
complying with support obligations.
I can tell my daughter now that, once Bill C-41 gets passed, I can go into my
ex-spouse's private affairs and ask her for her financial statements, even
though she is living up to her support payments. Think of that. It is
incredible that an opportunity to continually harass a former partner will soon
be included in the divorce statutes in Canada.
There is no provision for direct spending expenses for the children on the part
of the non-custodial parent. This means that a parent who totally ignores a
child, spends no time, has no expenses for visitation, will be treated the same
way as a caring parent who has the child, say, 30 per cent of the time. Bill
C-41 discourages any attempt at co-parenting or shared parenting. If it does
not, please explain that to me.
Bill C-41's standard-of-living-awards approach to joint custody would make a new
partner responsible for the support of the children of the previous marriage of
the other partner. By basing variations from the guideline schedule -- undue
hardship -- on this concept, Justice has rejected the notion that child support
should be a matter of equity strictly between the child's parents. The
intrusive and damaging implications for couples moving on in healthy new
relationships are staggering.
We have professionals who talk to us at co-parenting meetings. They tell us to
deal with it as a business relationship and move on. Tell me, does Bill C-41
An expert in the field, Professor Ross Finnie of the School of Administration at
Carleton University, a contributor to the original guideline proposals, calls
for Bill C-41 to be revisited by the Department of Justice. In his review, "Good
Idea, Bad Execution," Professor Finnie comments:
In short, the basic unfairness incorporated in the current guideline proposals
might undermine the basic goal of the whole guideline exercise.
He argues that, overall, the package is likely to worsen, not improve, the child
support situation in Canada.
Along with other criticisms of the legislation, Professor Finnie also maintains
that Bill C-41 is a tax grab from both parents by the government.
Moving on a bit, other jurisdictions in the U.S. have taken a more humane and
proactive role in assuring fairness and balance in an otherwise complex and
very emotional situation. We all recognize that. If you told me,
hypothetically, to choose between the death of my mother or my separation and
divorce, I would choose the death of my mother. I can sincerely tell you that.
The state of Washington has taken a progressive approach to parenting after
divorce. By statutory principle in family law, the state recognizes the
fundamental importance of the parent-child relationship to the welfare of the
child and that the relationship between the child and each parent should be
fostered unless inconsistent with the child's best interests. Both parents, by
statute, must file a parenting plan.
The best interests of the children are clearly defined in family law in the
state of Florida. Recognizing that children must be protected from undue hurt
and turmoil, parents are cautioned that just because dissolution proceedings
have begun and they are ending their marriage, neither is ending their
respective relationships with their children.
Florida, it seems, recognizes the brutality of the adversarial system. It values
and supports parenting after divorce. This is not a radical idea. It is the
change in emphasis which has to be grasped by this committee. Florida has
changed the emphasis in family law disputes by making shared parenting the
preferred policy. Shared parental responsibility is a court-ordered relationship
and is intended to protect the children's rights to an ongoing relationship
with both parents.
It is also interesting to note, and I am sure you can relate to this, that
Florida also deals with the grandparent access issue.
In Canada, our Supreme Court judges, together with Mr. Rock and the Department
of Justice, have yet to grasp this new and more progressive interpretation of
the best interests of the children.
As a kinder, gentler society, there is no doubt that the needs of the children
should be our primary focus. It is a social justice issue. This is especially
true when divorce occurs. The evidence is clear that the costs, emotional and
financial, are high. Except for the separation and divorce industry, no one
benefits -- not the children, not the parents, not the grandparents, not the
community, and not the government.
Professor Julien Payne, Faculty of Law, University of Ottawa, has extensively
studied the economic, emotional and parenting crises of marriage breakdown. Mr.
Payne puts our adversarial system in perspective:
To the extent that our courts continue to resolve parenting disputes on the
basis of competing quasi-proprietary claims, the "best interests"
doctrine, which supposedly governs custody adjudications, will remain more myth
Those are not my words. This gentleman has put his life into this study.
Professionals will tell you that you cannot force two individuals to mediate, to
co-parent. We have had people at the co-parenting meetings saying we cannot
force people to do that. We agree with that. However, they will say: Change the
emphasis. They will also say that in over 80 per cent of the cases, mediation
is successful in bringing two angry, disillusioned people to an agreement, once
time has passed and they understand the consequences of their actions.
Sadly, the measures introduced in Bill C-41 maintain and enhance the status quo.
There is not a mention of mediation. With the stakes in losing custody even
greater, bitter battles over custody have the potential to become even more
acrimonious and devastating.
Changing attitudes, changing the emphasis in the Divorce Act is now up to the
Senate. Canadians who have been involved in divorce, who have known relatives,
parents and children who have experienced the devastation caused by the
adversarial process of family law in Canada, sincerely hope for sober second
thought on Bill C-41.
To claim that the parenting initiatives in family law are problematic is to
ignore the large wealth of information which solidly refutes that position.
Time will tell if honourable senators are up to the challenge of amending Bill
Most Canadians realize that guidelines and enforcement measures are sometimes
necessary for wilful defaulters. Again, that is not even the argument here.
Child support is clearly more than simply a financial concern. Most Canadians
probably know of examples where current family law decisions have led to
incredible imbalances, cruelty, hopelessness, and sometimes violence and
Now that the Divorce Act is being amended, the opportunity exists to direct
courts to provide every encouragement for loving and fit parents to share
parenting after divorce. It would be a strong and timely signal to send out.
This can be done without weakening Bill C-41. I would argue that in the child's
best interests, it is time to do that.
I would now ask honourable senators to turn to the attachment to my brief
headed, "U.S. Bureau of Statistics, August 1995".
Senator Bonnell: Do you have copies of what you are going to say?
Mr. Mullin: I do not have copies.However, it is attached to the brief.
Senator Bonnell: That is not what you are going to recommend we should do. Do
you have a copy of an amendment?
Mr. Mullin: I do not. However, I could provide it, if you would like.
This document stands to reinforce that I did not invent these numbers.
There is no mention of access and custody in Bill C-41. What is the logic of
that? There is no research in Canada done similar to this study from
Washington. If there is, I stand corrected.
To reinforce that fact, when you get a separation or divorce document, there is
one clause in there which says: You will pay so much support. Further down the
page, there is also a clause which says: You will get access for so many hours.
Is it not unfair for the government to enforce one of them but not the other?
Linkage is a terrible thing, and Mr. Rock has said: I do not want a link
established. Do not tell me there is not a link to this in the courtroom.
Do you have grandchildren?
Senator Cohen: Yes.
Mr. Mullin: What if I told you that in this season you see them for four hours
on one Saturday for the next month? Please consider that.
There may be good reasons to the contrary and we can all think of them. However,
are anger or the desire to get back at the other partner justifiable reasons?
I would like to read a portion of a discussion paper on custody and access,
dated March 1993, from the Department of Justice.
The continuing use of children as pawns in one parent's struggle to control must
What happened to that?
I do want to appeal to you as grandparents, too, because I am in association
with Lillian George, who is a member of GRAND.
Everyone wants a dispassionate argument here. I do not know how one could do
that. If you return Bill C-41 without amendment, what you are saying to
non-custodial parents is: Pay up, see your children, but do not bother us if
you are not seeing your children.
If you would move on to the second item I provided, it should read, "Dissolution
of Marriage; Support; Custody". I apologize for making scribbled notes on
this when I was researching.
I highlighted section b(1). It says "note" on it.
Family decisions in court contribute to the fact that we have single parent
families in Canada.
Senator Jessiman: Is this part of a statute?
Mr. Mullin: These are statutes from the state of Florida dealing with
dissolution of marriage, support and custody. These are from the
Attorney-General's office in Tallahassee.
The Chair: It has Florida written on the bottom, Senator Jessiman.
Mr. Mullin: I want to read that part, because once you get into the gender
issue, we lose the core of the issue.
I suggest you look at this concept in terms of your own grandchildren and
someone saying to you, "I am sorry, you cannot see those children."
Imagine as a parent you pull up to the laneway, you are paying your support,
and you are told, "I am sorry, we cannot provide the children to you today."
The message of Bill C-41 is: Pay up, but do not bother us if you are not seeing
We had a social justice heart in Canada. Has it stopped beating? I am not sure.
These are Florida statutes. I challenge you to send something like these back to
the House of Commons:
It is the public policy of this state to assure that each minor child has
frequent and continuing contact with both parents after the parents separate or
the marriage of the parties is dissolved and to encourage parents to share the
rights and responsibilities of childrearing. After considering all relevant
facts, the father of the child shall be given the same consideration as the
mother in determining the primary residence of a child irrespective of the age
or sex of the child.
There are two points I want to make about that statute. First, you should say, "Let
us send that back."
In 1977 the Law Reform Commission recommended that Parliament endorse through
legislation the principle that one parent is not to be preferred as the
custodial parent on the basis of sex. Custody of a child is entrusted to a
particular individual and not to a representative of popular conceptions about
what a man or woman is supposed to be capable of doing or ought to do. Sexual
stereotypes are irrelevant in determining the individual capacity of a parent
to love, care for and raise a child.
Second, and again in relation to what I just read to you about the Florida
statutes, I would like to paraphrase from a household flier from the Status of
Women on gender-based analysis, a guide for policy making, in which they said
that the guide will facilitate the development and assessment of policies and
legislation from a gender perspective so they will have intended and equitable
results for men, women, boys and girls.
My question: Does Bill C-41 measure up to the government's own policy?
Finally, I will draw to your attention the issue of grandparents; you may be
affected by it. If you do not deal with this in Bill C-41, you will not deal
with many grandparents who cannot see their grandchildren. Think of that
yourselves, especially around Christmas.
With regard to sections (4)(a) and (4)(b) on page 515, Minister Rock has said
that the government does not want to establish a link. I will read those two
statutes into the record:
(4)(a) When a noncustodial parent who is ordered to pay child support or alimony
and who is awarded visitation rights fails to pay child support or alimony, the
custodial parent shall not refuse to honor the noncustodial parent's visitation
That is one side of the argument. Here is the other side:
(b) When a custodial parent refuses to honor a noncustodial parent's visitation
rights, the noncustodial parent shall not fail to pay any ordered child support
Very simply, they are dealing with both of these at the same time. They are not
linking them, but, in fairness, they are dealing with them.
I know that this is on the table for discussion. I appeal to you to take the
initiative. These are workable statutes. They could be worked into Bill C-41.
How would these statutes weaken Bill C-41? Let there be enforcement; let there
be guidelines; but let there be fairness.
Senator Lavoie-Roux: Thank you for your brief and your testimony. It was very
interesting. On page 2 of your brief you say:
One of the major goals of the entire exercise has been to ensure that children
get the benefit of support from the absentee parent. This new legislation will
enforce compliance through punishment -- the denial of licences, passports, et
What do you suggest should replace what you call punishment for the
non-fulfilment of support orders for children?
Mr. Mullin: If we are talking about wilful defaulters, individuals who go to
Florida, for instance, not wanting any further involvement, I have no argument
with enforcement. However, taking into consideration what I said in my
presentation, before all the other things are dealt with, in fairness, how can
you say, "Pay up, but don't bother us if you are not seeing your children?"
I know that is an emotional appeal, but for parents and grandparents, the issue
of children is emotional.
When children are killed in a car accident, the whole community grieves. When
the courts ostracize a parent from his or her children, it is no big deal.
The answer to your question is no, but the key is to ensure that every
opportunity has been given to the parent to be a parent. That is the change in
emphasis. We do not want the adversarial boxing ring. Would it not be better to
consider shared parenting for the good of society -- to reduce delinquency, for
the psychological good of the parents, to reduce court costs? We should start on
that even playing field with an opportunity for the parents to say why that
should not be the case.
Enforcement guidelines may be necessary for wilful defaulters.
Senator Bosa: The denial of licences and passports is only triggered as a last
resort when the non-custodial parent has not met his or her obligations; is
that not so?
Mr. Mullin: It is my understanding that, after three months, the hammer will
fall. I understand that, in some situations a parent will fake unemployment.
However, these days, people are becoming unemployed all the time. The very
nature of unemployment means that, after three months, you could no longer meet
your financial obligations and therefore must get a variation.
The minimum cost for a lawyer to start a variation procedure is $2,500. When
unemployed, you cannot afford that. You get on the slippery slope. You are
paying child support and are out of work. It builds up. That can only be
brought to the attention of the court through a variation proceeding which you
cannot afford. It is a slippery slope of unfairness.
Senator Lavoie-Roux: At the top of page 3 you say:
There is no provision for direct spending, expenses for the children on the part
of the noncustodial parent.
As a result, whether or not you are a caring parent makes no difference. Any
attempt at co-parenting is discouraged.
How could that be included in the law? On one hand, this seems to be
contradictory. You do not want things to be too specific because we are dealing
with often complex human behaviour; I agree with that. But here you seem to
deplore the fact that there is no provision for direct spending by the
non-custodial parent, and that discourages any attempt to co-parenting.
How could we deal with that in the law?
Mr. Mullin: If the emphasis is changed and it starts from the premise of
co-parenting, you would be surprised at the number of fathers who would make
more effort in this regard. My daughter used to live in Owen Sound, Ontario,
which is 540 kilometres away. The working guidelines say "shared custody",
where both spouses share physical custody of a child in a substantial equal way;
meaning 50 per cent. The custody may have to be shared 80-20 for logistical
reasons. However, the working guidelines should take into account the expense
of transporting the children, sometimes great distances, as in my case, to
spend time with the other parent.
When my wife and I were together, we were each earning $35,000. A combined
income of $70,000 is not a problem. However, once we separated, there were two
households to maintain. My wife had access to $43,000, while I was living on
$17,000, before expenses. Is that fair?
In response to your question, we do not need specifics, but with a new emphasis
on co-parenting, which Canada wants, a judge would take into consideration the
amount of time the non-custodial parent would keep the children and make a
fairer support order.
Senator Lavoie-Roux: The guideline is deaf and mute on this issue?
Mr. Mullin: Yes, it is. It is a golden apple for whoever takes the children.
They get the right to parent as well as the financial support.
Senator Lavoie-Roux: You refer to Professor Finnie from Carleton University. You
say that he maintains that Bill C-41 is, in essence, a tax grab from both
parents by the government.
Is it a tax grab to ask parents to fulfil their responsibility for their
children's support? Where is the tax grab? I do not understand.
Mr. Mullin: As I said, my expertise is not in the financial area. I recommend
that you read Professor Finnie's study and perhaps you should talk to him. He
says that the government will get more money under Bill C-41 than it would
receive without it.
Senator Lavoie-Roux: We must look at this carefully.
The Chair: Senators, Professor Finnie is to appear before this committee on
Senator Bosa: You used your own case as an example of the unfairness of the
system. You said that you were making $35,000, as was your spouse, but that
after the separation, you were living on $17,000 and she was living on $43,000
after you contributed to the maintenance of the child.
Mr. Mullin: I earned the same income, but after taxes and child support that is
what I had left.
Senator Bosa: Now that the situation is reversed and you are the custodial
parent, is it the same?
Mr. Mullin: Yes.
Senator Bosa: So you have $43,000?
Mr. Mullin: Theoretically, it should work that way. However, I will not get into
Senator Bosa: I do not want to be personal. You introduced it, therefore I ask
Mr. Mullin: Theoretically, it should work that way, but since February it has
not. I am constantly working with the Family Support Plan, which is a total
disaster, to try to correct the situation.
Senator Losier-Cool: On the question of the penalty, it is only after $3,000 in
arrears, or three months of non-payment, or multiple notices, that there would
be a sanction.
There are billions of dollars in non-payment of child support. This is perhaps a
way to get at the defaulters -- not ordinary people and certainly not you. We
have in our documents an article from The Globe and Mail that gives out
statistics on that.
You mentioned gender analysis. The advisory councils across Canada agree with
Bill C-41. The researchers, the consultants, have come to the Commons committee
and they have agreed. They made a gender analysis of this bill. You were
reading from some document. Could we get a copy of it for our records?
Mr. Mullin: Certainly.
The Chair: I have a question about the grid. The figures seem to double for two
children as opposed to one, and they almost triple for three. Do you feel that
is fair? Does it cost three times as much to raise three children?
Mr. Mullin: I will defer on that. I have not got into the financial aspects of
it. I would suggest you talk to Professor Finnie on that.
Senator Jessiman: Are you familiar with sections 15(8) and 17(8) of the present
Divorce Act that provide that the court should recognize that spouses have a
joint financial obligation to maintain the child?
Mr. Mullin: I have a copy of the act at home. I am familiar inasmuch as I have
Senator Jessiman: They are now deleting that provision. Would I be correct in
saying that you would be in support of leaving those sections in the Divorce
Mr. Mullin: I would need to read it. Again, I will defer because I have not done
any thinking on that.
Senator Jessiman: The guidelines, as you know, do not take into account the
incomes of both parents. You have said that if the other parent helps in the
custody, he or she should get some credit. You also think the courts should
take into account the income of the non-custodial as well as the custodial
parent when you are separated?
Mr. Mullin: Of course.
Senator Jessiman: In your last paragraph on page 2, you say:
The non-custodial parent will now have more than Revenue Canada to fear. On a
whim of the ex-spouse, they will have to provide tax returns to the ex-spouse
for the three past previous years...
Would not you agree, though, that even if it was on a whim, if the custodial
parent thought the non-custodial parent's income situation has changed -- he or
she may still be making payments but may have become extremely successful and
therefore have a larger income -- the custodial parent should be able to look
at what they actually are making? The information would help them decide
whether to ask for a variation. There does not seem to be anything wrong with
that. Your problem is just with the "whim" aspect?
Mr. Mullin: Yes.
Senator Jessiman: It seems to me it would be fair to see how well they are doing
even though they were making the payments under the previous orders.
Mr. Mullin: I referee soccer, and I would raise a yellow card on that one. I
would ask you to listen to Professor Finnie because his idea has merit. He is
suggesting deductions at source. In other words, it would be an automatic
situation where once Revenue Canada knows that a person who is paying support
gets a raise in pay, the support payment would be adjusted automatically. No
ex-spouse would have to go and phone or get a lawyer.
Senator Jessiman: Would they get a percentage of the total?
Mr. Mullin: Please talk to Professor Finnie. I believe the term is "deductions
at source." This helps to prevent, two years or three years down the road,
the acrimony starting again: "Did you get a raise?" "No, I did
not." "Well, I am going to a lawyer and you will have to give me your
I accept the point you are making, if you accept child support. However, please
ask Professor Finnie about his idea because I think it is non-intrusive and it
would satisfy that requirement.
Senator Jessiman: If it were a percentage of income or gross income.
Mr. Mullin: I know he calls it a deduction at source, and to me it is a
trouble-free way of letting people live their lives. I hope you talk to him
The Chair: Thank you for coming.
Mr. Mullin: If I can say one more thing just as a challenge to senators. No one
is saying that people should not live up to their support, but please answer
the question, using those Florida statutes or some facsimile of them: Would
that weaken the bill?
The Chair: Honourable senators, the Liberal Party has a caucus at noon.
Senator Cools: Why are we rushing this? People are coming a long distance.
Certainly, they should be allowed to make their presentations.
The Chair: Mr. Hall has been here since early this morning. He has listened to
all the witnesses. Welcome, and please proceed.
Mr. Tony Hall, Ph.D.: Thank you for the invitation. I must say it came on very
short notice, about four o'clock yesterday afternoon. I have come 2,000 miles
across country for this. I heard very interesting presentations this morning.
One of the witnesses brought his son and it seemed that the appropriate thing
to do would be to give him the opportunity to give his testimony because the
baby was teething.
Bill C-41 really deals in tremendous abstractions, and it was interesting to see
the reaction of the reality of an actual child coming into the Senate area and
crying. Someone pushed the panic button and security guards came up. I bring
this up because, when I read Bill C-41, it seems far removed from the kind of
realities that we have heard about this morning.
When I read Bill C-41, I find a very peculiar vocabulary. I will first give the
three most important terms that I picked out of the bill, and then I will base
my presentation on the terms that I did not see.
The word "spouse" is mentioned, as is the phrase "child of the
marriage" and the word "debtor". Those are the three concepts
which the bill advances. I do not see at any place in the entire bill the word
"parent". Nowhere has this law confronted the reality that children
are of parents.
For our children who no longer have a marriage from which they come, to describe
them in law as "children of the marriage" describes them as of
something that no longer exists, that only exists in history. They continue to
be children of their parents. Honourable senators, I submit to you that this
law not only does not show respect for but does not even acknowledge the concept
of parenthood. It does not even use the word.
I suggest that you begin to grapple with the concept of parenthood, the concept
that children are of parents. They are of two parents. The basic idea is being
lost here -- that it is a fundamental, inherent right of children to have two
parents, a mother and a father. There may be reasons to deny children in some
very rare instances that fundamental right but this law essentially entrenches
an approach which denies the right of children to one of their two parents. It
advances a situation where the government imposes its authority, its power, and
comes between one of the parents and the children.
I submit to you that this law is fundamentally abhorrent in the way that it
attacks the fundamental rights of children to two parents, rights acknowledged
by the UN convention to which Canada claims it adheres. Of course, when this
comes into your life, it is not an abstraction -- it is real.
Overwhelmingly, children are being denied the right to their fathers. By this
approach, my own children, I believe, are being put into a condition of
poverty. That need not be the case.
I am not really sure where the origin of the term "non-custodial parent"
lies. Was it something said in some court ruling? I suspect it comes from a
court ruling. I challenge you to explain to me what a non-custodial parent is.
Explain to me how to do this. Explain to me how one goes about being a
responsible, non-custodial parent.
Another phrase that I do not see in this legislation is the term "relatives."
Children have cousins and grandparents. They are nieces and nephews of their
uncles and aunts. This legislation does not begin to deal with that reality.
In Lethbridge, there is a high-powered group of grandparents who might be called
-- in the perverse approach that this law advances -- non-custodial
In exploring this concept of "non-custodialness", let me introduce
another concept or another term into the vocabulary of this issue. Once the
state intervenes to designate one of the parents a non-custodial parent, the
child's right to the parenthood of that person is extinguished. I should like
to advance this concept of the legal extinguishment of a relationship.
This phrase is central to my work in native American studies at the University
of Lethbridge. It is a concept which the Royal Commission on Aboriginal Peoples
has tried to address in advance. There is a deafening silence from this
government on that concept and on the Royal Commission on Aboriginal Peoples.
Let me try to put this concept of extinguishment into an historical context and
look at some comparisons to describe a condition or a legal circumstance in
terms of a negation.
There used to be and still are people in Canada who are called by the government
"non-status Indians". What a thing to call a person, to describe them
as something but then a negation of that thing.
The Balfour Declaration in 1917 described the Palestinians as something called
the "non-Jewish population." They did not want to legitimize the
concept of "Palestinian-ness," which strikes at the pride of the
Palestinian people to this day.
The Royal Commission dealt with Indian residential boarding schools. The mother
of my kids went through that experience. That was an episode in Canadian
history where the government thought it was a better judge of what was in the
best interests of children and essentially extinguished the parental
relationship of registered Indian men and women -- parents with their children.
I submit to you that this extinguishment of parental status is a very serious
matter. I suggest it is, ultimately, illegal.
Underneath the reality which we are entrenching and advancing through this
legislation is the reality that all parents are men or women. The Charter of
Rights and Freedoms guarantees the equal treatment of men and women. The
Charter implicitly states that men and women as parents should be treated as
Only men can be fathers; only women can be mothers. I cannot change my status to
a mother. I can only be a father. The statistics are 90 per cent or 80 per
cent; in such a vast plurality of the cases, the non-custodial parent turns out
to be the father. It strikes me that there is a profound, systematic
discrimination and a breaking of the supreme law of Canada being advanced here
by the Ministry of Justice. It speaks to a carelessness that I have noticed
from this ministry and this Minister of Justice with the rule of law.
I refer to a document called "Abuse Is Wrong In Any Language", which
is clearly gender discrimination of the first order.
I do not want to get into the personal dimensions of this issue, but, after all,
we are coming from the hinterland, and this is an opportunity to draw on actual
My kids have witnessed my assault. My ex-partner was charged and convicted with
assaulting me on several occasions. This summer she assaulted my current wife.
I have witnessed my kids going off with their mom to the police station. I
tried to get counselling for my kids. I believe that what they have witnessed
is tough for them.
I have here a letter from my lawyer, Brad Smith in Thunder Bay, dated November
25, 1996. I have been turned down from my request to the courts to get
counselling. Justice Maloney was of the opinion that a general order requiring
counselling was unenforcible, and he refused to grant the order.
Mr. Smith wrote:
Another reason Mr. Justice Maloney hesitated to make an Order for counselling
was because the request was coming from you as the access parent and access
parents generally do not have a legal entitlement to consent or obtain
counselling or medical treatment for children.
If my child is sick, does that say I do not have a right to take my own child to
the hospital? If my child does not take counselling at this point and later
assaults my current wife because he has not dealt with some of these issues,
who is accountable? What about this decision specifically denying my wish that
my child should have counselling? This extinguishment of parenthood is extremely
I want to throw another term into the vocabulary of this discussion. I want to
speak of something called the "family law industry." The family law
industry, in my view, must be one of the most lucrative businesses in the
country. It is an industry with its own lobbyists and its own representatives
to government. It seems that the Ministry of Justice listens very carefully to
these lobbyists. I could even, in some way, see Minister Allan Rock as the
chief lobbyist for this industry. I suggest that this industry is totally
unaccountable. This industry is making the most profound and fundamental
decisions about the kind of country we will have in the future. What could be
more profoundly essential to the future of the country than the way we are
socializing and raising our children?
This industry essentially polices itself. I find it lamentable that the Law
Society of Upper Canada or the Canadian Judicial Council seems unable to police
itself in any decent way. I do not see any real sign of the principle of peer
review in this unaccountable industry.
I charge this industry with exploiting our children. I am the father of my
children, and I am here before you to stand up for the rights of my kids.
Minister Rock and different associations are saying that they speak for the
best interests of my children. As a father, it is very liberating to put aside
this term "non-custodial parent" and say that it is my inherent right
and indeed my responsibility to defend my children from exploitation by the
family law industry. This law advances an approach which essentially makes our
children the battleground of an industry based on adversarial approaches, which
tends to exploit and emphasize the tension and ill-feeling which exists between
parents at the time of divorce. The system actually exploits that feeling.
If there were a situation where the Government of Canada in one moment
extinguished the relationship between hundreds of thousands of mothers and
their children, what would be the response? I think Canada would be seen
instantaneously around the world as committing a great human rights violation.
Yet, in a quiet way, Canada and all the agencies of the state and the courts
have been extinguishing the relationship between hundreds of thousands of
fathers. It is getting on to millions of children.
This situation of family breakup is very sadly and lamentably no longer an
aberration. The hard reality is that it is becoming a fairly ubiquitous aspect
of life in Canada. I suggest to you that this is a human rights violation of a
When I think of the family law industry, I think of trying to bring some
accountability to that industry and trying to get the Government of Canada not
to act like an irresponsible government, but to respect the fundamental
principles of responsible government. These concepts go back to the 1840s. They
are important to the way our Constitution is supposed to work. However, what we
have is a government acting in an irresponsible fashion, essentially taking its
responsibilities and putting them over to lawyers and judges in the family law
At one time, slavery was constitutionally supported. We saw boarding schools and
the extinguishment of relationships between Indian children and their parents
for which the federal government has not accepted the fiduciary responsibility.
The Ministry of Justice is hiding and playing games and trying to deny and deny
until all the people who have experienced this are dead. I suggest that we
should look at what is going on in that context.
Nardina Grande, to my way of thinking, made an extremely important and powerful
presentation. It rings so true in relation to what I hear back in Lethbridge. I
hear story after story.
She said that she used to think Canada was a good country. I have heard this so
many times from the men I see at these meetings and their wives and their
grandparents. I think of the man in Lethbridge who says, "I am able to see
my children only in the morning when I stand on top of the grain elevator. I
can see them get on the bus to go to school. I can also watch them when they
play hockey." He can go to the arena and watch his children. I cannot
describe to you how fundamentally this has affected my view of this country and
this federal government.
I have heard the phrase that we are being brought in to watch the caboose go
off. Allan Rock came out west. I tried to see him; our groups tied to see him.
It should be very clear that the groups you are seeing this morning have no
relationship with the Ministry of Justice and have been insulted by that
When they were talking this morning about debtors' prison being brought back, I
heard a joke. Someone said "Jail bait! Ha, ha! Let's make a play on words
here." That was most inappropriate.
Thank you for giving me this opportunity to speak here today. If my emotions are
strong, please try to understand that, although I know you make a better case
as a scholar and an academic by seeming to be relatively dispassionate, this is
an extremely profound issue. It is extremely hard to talk about this. Even for
the so-called non-custodial parents, it is difficult to find the ability to
speak about this and to face all the gender stereotypes that seem to cloak this
issue and make it impossible to act in a rational fashion.
Senator Bosa: I am sorry, Dr. Hall, but I disagree with you fundamentally on
your definition of a non-custodial parent. English is my third language, so
perhaps I am losing out in the translation.
Senator Cools: That is an interesting exchange, Senator Bosa. You are losing out
on the translation; he is losing out on his children.
Senator Bosa: The way I read it, and the way other members with whom I have had
conversations have read it, the non-custodial parent is just that -- namely,
the parent who is not living with the child. That does not deny the rights to
parenthood. It does not deny visitation or all the rights that a parent should
have. It is merely a description of who cohabits with a child and who does not.
When you try to relate the Indian Act to the Palestine situation, that is an
entirely different concept. I beg to differ with you. That is not the case.
Mr. Hall: It is fairly clear that you have not experienced the human reality of
For instance, I have six weeks' access in the summer. My only relationship with
my children occurs during that six weeks. I try to pick them up but even with
three police officers, I cannot. This was my experience last summer. I am then
told that, though, I have a court order and it took many thousands of dollars
to get that six weeks, the police will not enforce that court order. I must
obtain another court order to enforce the original court order. I must pay $200
an hour to get a court order. I am at the other side of the country and I do
not have anywhere to stay.
The practical reality is that once you have this stigma of non-custodial parent,
it is entirely within the discretion of the so-called custodial parent whether
or not the other parent gets to see the children. What you are saying to me is
a fantasy which demonstrates that you have no personal experience with this.
You say that I am not entitled to make a comparison between the Indian Act and
Palestine. I am a professor in the Department of Indian Affairs. My children
are registered Indians; their mother went to boarding school. These are not
distractions to me. The mother of my children may well have been abused in
boarding school. I am dealing with the legacy that the federal government
created in this area. I am dealing with violence and the possibility that my
children will experience some kind of extension of that violence represented in
the boarding school situation.
Please do not try to trivialize or treat as tangential these comparisons that I
Senator Bosa: I am sorry if you take it that way. I also feel sorry for the
situation in which you find yourself. You have personalized this matter. You
gave us your own particular situation. I feel sorry that you are denied
visitation with your two children and that you must have two court orders.
Mr. Hall: Tens of thousands of other non-custodial parents are in my position. I
am not an aberration; I am the rule.
Senator Bosa: But you must admit that this is not the rule or the general
Senator Cools: It is the general situation.
Senator Bosa: There have been many cases --
Mr. Hall: How do you know? What research have you done?
Senator Bosa: From the testimony we have heard here --
Mr. Hall: What research has the Ministry of Justice done?
Senator Bosa: You bring me to another point.
The Chair: Order, please! We cannot hear.
Senator Bosa: It is not my intention to engage in an argument.
Mr. Hall: What research have you done into suicides?
Senator Bosa: We heard about that this morning. It is also unfair that you
should bring the person of Minister Rock into the equation as being on the
other side of the fence. I know Mr. Rock personally. He is a very caring and
sensitive individual. For you to say that is most unfair.
Senator Cools: I would suggest we move from this point.
Senator Bosa: If you have facts to state, please do so, but do not bring
personalities into the equation because it is not fair to do so.
The Chair: Do you have a suggestion that we could use which would replace the
Senator Lavoie-Roux: I should like to know how to translate "non-custodial
parent" in French. I have never heard of such a beast.
Senator Cools: It is a term that should have been taken out of the act years
Senator Lavoie-Roux: It does not translate well.
The Chair: It is a strange term.
Senator Cools: First, we are proceeding with these hearings at too much speed
for my liking. This man has come all the way from Lethbridge. I am overdue in
my Senate caucus. I do not understand why we cannot give this matter the time
it deserves. I have not been able to ask a single question this morning. What
is the rush?
The Chair: I did not notice you requesting the floor.
Senator Cools: Every time I put up my hand this morning and indicated that I
wanted to put questions forward, there was no time to put questions to these
The Chair: I am sorry. I did not realize that you had your hand up this morning.
I should like to hear from Dr. Hall if he has another term that we could use
instead of "non-custodial."
Mr. Hall: First, I wish to respond to the comment about Allan Rock.
The question of suicide was brought up. In fact, an actual suicide letter was
read this morning. If that individual does commit suicide, is there blood on
someone's hands here? That is a strong term. We have heard this word thrown
around but we have no data.
My primary recommendation to you would be that the terms "spouse," "child
of the marriage" and "debtor" leave out too much of the human
substance of what we are dealing with here. If you simply try to include in
this act the word "parent," that process of trying to confront that
word and the meanings of that word would force this process to deal not in
these vague abstracts but with the real human situations which are being
allowed to fester and get worse.
Here we are at a Senate hearing. Where are the elected people? If Allan Rock is
so sensitive to this matter, why is this kind of testimony being left for the
Senate to deal with? Why was it not looked at by the Minister of Justice who
has dubious things going on with the Judges Act, putting a veto in the
Constitution and changing the Constitution without touching the Constitution.
In my view, this Ministry of Justice is playing fast and loose with the rule of
law. I should like the opportunity to give more background and to justify that
in an academic way that is as scholarly and dispassionate as possible for me.
Senator Cools: I wish to address this issue of the appropriate amount of time
being given to witnesses to discuss these issues. I was due in my own caucus at
11:45. We know the schedule. We have heard from four witnesses this morning.
What is the problem?
We are using taxpayer's money to bring people from Lethbridge or wherever. What
is the problem? I have many questions. These witnesses have raised interesting
and, with all due respect, extremely intricate matters.
Approximately 10 years ago, we thought that terms like "custody" would
disappear. We were to move such language out of the legislation because terms
like "custody" reflect earlier eras of history when children or even
women were chattels.
Very important questions are being raised. I am sorry if I am getting a little
impatient, but I, too, am feeling the constraints of time. I was supposed to be
in my office to receive some phone calls. If we could, I should like to look at
this matter and bring him back. He can come back tomorrow, maybe. Are you
Mr. Hall: Yes.
Senator Cohen: I wish to support the senator in this matter. It is the
government who is pushing us. That is why we are crowding the witnesses under a
time line. We must take a good look at the situations being given to us in
which to address a bill which is far from perfect.
Senator Bosa: This is nothing to prevent Senator Cools from asking any questions
Senator Cools: I have other commitments.
Senator Bosa: I have other commitments, too, but this takes priority.
Senator Cools: Says who? We have allocated times for committee meetings. We have
time. Let us use it.
Senator Bosa: But we have a witness who came all the way from Lethbridge.
Senator Cools: Let us put him on our agenda for tomorrow, then.
I am sorry to be so impatient, but all morning long we have been rushing the
witnesses along. We sit here. It is our duty to listen to these people.
Senator Bosa: That is not true at all. Every witness had 45 minutes to present
their case. That rule has always prevailed in this committee.
Senator Cools: What rule?
Senator Bosa: We always allow 45 minutes for a witness to speak. Every witness
here today had 45 minutes.
Senator Cools: Are you the chairman?
Senator Bosa: No, I am not the chairman.
The Chair: Senator Cools, we allowed a little leverage this morning. I tried to
be as fair as I could.
Senator Cools: I was not allowed to ask questions at all.
The Chair: Who was the justice that dealt with your case, Dr. Hall?
Mr. Hall: Mr. Justice Maloney.
The Chair: I have had dealings with him before on legal and constitutional
affairs matters. We always found that his judgments were fair in Canada. Why
was your request unenforceable?
Mr. Hall: Because I am something called an access parent. He is probably going
by precedents. He is not in a position to make law; he can only interpret law.
His interpretation is that the non-custodial parent has no right to take their
children to counselling or to the hospital.
The Chair: On the other hand, in Bill C-41, they are talking about extraordinary
expenses for which the non-custodial spouse will be responsible.
Mr. Hall: What is a non-custodial spouse?
The Chair: That is you, sir.
Mr. Hall: There is no such concept.
The Chair: For example, medical expenses are listed. That will be part of the
Would that not mean that you would have the right to look after your children if
you felt they needed extra medical attention?
Mr. Hall: These are serious questions. The proposition has been put that some
time be created to deal with this matter. I see people getting up and wanting
to leave. I could make some changes in Lethbridge and be available tomorrow.
The Chair: If I could get permission in the house today to sit at 3 p.m. during
the Senate session, we could hear further from Dr. Hall today.
Is there agreement on that?
Senator Cools: I am supposed to be speaking this afternoon on Bill C-45 which is
to get third reading. There are other bills proceeding as well. Some of us want
to do a few things.
Senator Bosa: I am supposed to do that, too.
The Chair: We will make it 4 o'clock, then. We will get in touch with you to
advise which room is available.
Is it agreed?
Hon. Senators: Agreed.
Senator Lavoie-Roux: Our witness spoke about "access parent." Is there
such a thing in the bill as an access parent?
Mr. Hall: "Parent" is not in the bill.
The Chair: Access is not discussed in this bill, but the witnesses are saying
that it should be.
The committee recessed.
Upon resuming at 4:00 p.m.
The Chair: Honourable senators, I see a quorum.
I would like to welcome back Dr. Tony Hall.
Mr. Hall: Thank you for extending the process here. I look forward to a kinder,
gentler atmosphere where we can take the care that these points deserve.
In looking at Bill C-41, I have been struck by the extent to which it reproduces
antiquated language and concepts. I was trying to bring into the discussion a
few phrases which might sharpen our minds and bring our thinking and
legislative assessment of the wording of this act into closer conformity with
the actual experiences of those of us who are living through these problems and
I do believe that the concept of extinguishing the legal relationship between
the child and what is called the non-custodial parent is appropriate.
Let us consider another term which runs throughout this act, the term "custody."
In my view, we are seeing language from an era when there was a much wider view
of "chattel." It is not that long ago that human beings were chattel
that could be bought and sold. It is not that long ago that women were first
recognized as citizens with the right to vote.
In my view, we still have not got to the point of dealing with the human rights
of children. Children are perhaps where women were 100 years ago. This term "custody"
really speaks of a property law concept. It is a kind of title of property to a
When I read Black's Law Dictionary, the word "custody" includes the
detaining of a man's person by virtue of lawful process or authority. The term
is very elastic and may mean actual imprisonment or physical detention or the
mere power, legal or physical, of imprisoning or of taking actual possession.
We are using a term, "custody," which we often apply to incarceration
in the criminal justice system. We are speaking of children and the care of
children in the same language we use to speak about the government's care of
When we begin with this concept of custody, it gets more and more burdensome and
onerous as we expand from that into something called non-custodial parent. This
really becomes an impossible enigma when you are presented with this by the
courts and you are told you are something called a non-custodial parent.
I read a recent letter from a lawyer describing a legal proceeding where I tried
to see that my children had the opportunity to have counselling. They had
witnessed domestic violence, had seen their mother go through the criminal
justice system for assaulting me and my present wife. There were two different
charges of assault and two convictions on different occasions.
There are gender stereotypes that tend to permeate and cloak this whole issue
and make it difficult for us to see the human realities. Imagine if the assault
had been the other way. Would that not be an issue which the courts would take
seriously in determining custody? I am deviating somewhat here.
Access parents generally do not have a legal entitlement or consent to obtain
counselling or medical treatment for their children. When I see this term "medical
treatment," I cannot help imagining a situation where my son is injured
and needs to go to hospital. Would I now be breaking the law by taking my child
to hospital? Are we burdening this whole issue with such strange language and
antiquated terms that we are making it impossible for parents to fulfil their
By being here today and dropping everything at a moment's notice and hurtling
across the country to take advantage of this opportunity, I believe I am acting
as a responsible father should. I have to look beyond the immediate
circumstances of my relationship with my children. I have discovered that my
hands have been so impossibly tied behind my back that I feel unable to act as a
meaningful parent to my children. I do pay $1,000 a month in child support.
My ex-wife does not work, so my children and their mother are living on $12,000
per year which I believe is well below the poverty line. I am a professor. I
make $60,000 a year but, by the time I pay tax and child support, I really make
$24,000 a year.
My children have lived through domestic violence. There is no need for my
children to be living in poverty. When I see these bold announcements about
taking child poverty seriously, it hurts me because my children are in that
situation. I believe they have been put in that situation by a whole regime of
law and jurisprudence which, I now see, has not been examined in a detailed,
careful way. Instead, a few ideas have been seized upon -- deadbeat dads; the
man as the assaulter, as the irresponsible one, as the one that needs to be
subjected to the full force of the state because these fathers by and large
must be treated this way.
It does strike me that there is in all of this a sense of criminalizing
fatherhood. By the very act of trying to be a father, one is suspected of being
When Senator Bosa said to me earlier that, surely, my circumstances are extreme,
are an aberration, I can only reply that, in my experience, that is not so. I
live in Lethbridge. I go every month to a group called the Equitable Child
Maintenance and Access Society. Lethbridge is not a huge place. I have met
dozens and dozens of people there, mostly men. Frankly, when I hear their
stories, I feel lucky not to be in some of their extreme situations.
Senator Bosa: But this bill does not affect you because you meet your
commitments. You are not delinquent in your payments.
Mr. Hall: The reality does affect me because it legitimizes and entrenches and
gives modern articulation to the whole principle that there is something called
a custodial parent and something called a non-custodial parent. The heart of my
presentation is that, in my view, this is a gross violation of the rights of
The basic right of children is to have two parents. The phrase "the
children of the marriage," to my way of thinking, does a disservice to
those children whose parents are no longer married. These children no longer
have a marriage from which they come, but they do have two parents. In many
cases, they have two loving parents. This is just one dimension of the whole
issue of the declining birth rate and negative population growth. Every two
people in Canada are producing, on average, 1.7 children.
When I go to these meetings and or to the court and hear the stories, I notice
that the joy of having children is lost. It is one of the central experiences
of life. It gives you a sense of having continuity with the past and projecting
into the future. I believe it is being recognized in society that there is a
lack of children. It affects not only mothers and fathers, but grandparents and
uncles and cousins and sisters. The designation of one of the parents as a
non-custodial parent has a ripple effect which will essentially stigmatize and
break the connection and make it virtually impossible for the families of the
non-custodial parents, who are overwhelmingly men and fathers, to continue that
We heard Ms Grande this morning speak from the point of view of a woman who is
experiencing this. Her children are experiencing this. There are men and women
who are hurting as a result of this.
To say, senator, that this does not really affect anything is wrong because,
yes, it does. When you use terms such as "custody" or "child of
the marriage," you are taking something from the past and giving it
contemporary expression. If you are suggesting to me that we should simply wait
because our issues are somehow secondary and that we should just have
confidence in the system until it eventually gets around to us, then excuse me,
senator, if I am somewhat cynical about that view. I do not have a great sense
that after this bill is rushed through, the Ministry of Justice will have the
political will to open up this issue.
As I start to face the complexity and the enormous vested interests at stake
here, and as I become aware of the extent of the family law industry, I sense
that these issues should become the subject of something like a royal
commission. This type of hearing does not begin to have the capacity to get at
what is going on. I reiterate the view that this is profoundly important to the
future of the country.
I have intervened on several occasions in constitutional matters before
different committees of the Senate, the House of Commons, and joint committees.
I have intervened on aboriginal matters. I have taken the Constitution very
seriously. However, as I have delved into this and seen the extent of the
injustices, the travesty, the exploitation of our children and the heartless
disregard for their rights in the battleground of this adversarial family law
industry, it strikes me that this is an issue that is bigger than the
It goes to the heart of what we are as a society, that is, how we conceptualize
ourselves culturally and socially. It goes to the most basic of fundamental
relationships. It goes to our relationships to the provinces, the courts, to
federal-provincial relations and distinct societies and aboriginal and treaty
rights. This is all founded on these deeper relationships.
I will leave it at that. I should like to make a couple of specific
recommendations for amendments, however.
The Chair: What would you suggest we do with this document?
Mr. Hall: After our session this morning, I heard two women from the Ministry of
Justice saying that they did not hear specific amendments.
We should leave clauses 15.8 and 17.8 to realize that the financial
circumstances of both parents should be taken into account. That is an obvious
point in terms of something which is way out of line. That gives the idea that
a woman who wins the 6/49 and becomes a millionaire is not affected in the
subsequent consideration of her status.
The Chair: Instead of repealing those two sections, you are suggesting that we
leave them intact?
Mr. Hall: Yes. That is a specific proposal.
I also propose that we leave the age of majority at 16. The addition of the term
"pursuit of reasonable education" is a big issue in the minds of many
people. This opens the idea that if a child pursues post-secondary or
post-graduate education, child support continues. The child support could
conceivably continue for a child into his 30s or 40s.
Senator Bosa: Into his 40s?
Mr. Hall: Graduate school can go on and on.
Senator Cools: Perhaps I could have some input into that particular clause.
There are so many clauses of the bill that we have not yet looked at. I am very
pleased that Mr. Hall has focused attention on the definition of "child of
the marriage." I thank you for that because we have not looked at it at
If you go to the original Divorce Act, section 2(a) gives the definition of "child
of the marriage". It says:
(a) is under the age of sixteen years, or
(b) is sixteen years of age or over and under their charge but unable, by reason
of illness, disability or other cause, to withdraw from their charge to obtain
the necessities of life;
When we come to page 2 of Bill C-41, at the top of the page it says:
1.(2) Paragraphs (a) and (b) of the definition "child of the marriage"$are
replaced by the following$
There are lots of marvellous clauses in the bill that we have not looked at yet.
It then says:
(a) is under the age of majority...
We have moved from the provincial standard, which was age 16, to this mysterious
"age of majority." In subclause (b) in Bill C-41, the writing is
almost the same, but, instead of 16 years of age, it says "age of
majority." Into the list of reasons for being unable to withdraw support,
reasons such as disability and illness, someone who thinks he or she is very
clever has slid a clause which they call "reasonable education." I am
trying to show you how someone slid that in, probably thinking that most of us
would not see it.
When one moves past a certain age of life, one is moving beyond child support.
Ross Finnie tackles this issue. He has appeared before us as a witness and I
would refer to footnotes contained in the Caledon Institute of Social Policy
paper entitled, Good Idea, Bad Execution.
He discusses the government's child support package. On a more specific point,
he says that by the time that spending on post-secondary education becomes
relevant, child support is, in general, no longer appropriate, and other
arrangements should apply.
It is interesting that this phrase is slid in here because, in 1985-86, there
was a lot of discussion at the committee about that. Conventional wisdom has
always believed that child support is really for children up to the age of 16.
When you go into the older years, there must be new negotiations beyond the
issue of child support.
I am grateful to you, Mr. Hall, for bringing the attention of the committee to
Mr. Hall: It seems to me this would raise basic constitutional issues. By all
means, parents should try to support their children to go as high as they can
in education, but children of normal, married parents -- if I can use that
phrase -- have no legal obligation to pay their children's education after age
18 or maybe after age 16. Why is it that, once parents are separated and
divorced, different rules should apply to them?
This is a perfect instance where this would eventually have to come before the
Supreme Court on an accusation of being discriminatory.
Senator Cools: I wanted to show senators how these things are being handled.
Basically, that clause concerns illness. This is for the child with spinal
bifida. This is for children who, for serious physical reasons, cannot support
themselves. This is not intended for the able-bodied youngster who will go on
to post-secondary education; yet they have added that term.
The bill is filled with all sorts of these "slip-ins." I would support
returning to the current Divorce Act, which is explicit on the definitions of a
"child of the marriage." They are just as valid today as they were
when they were put in the act a few years ago.
The Chair: We will have to flag that one with the minister on Thursday and ask
the officials what they mean by "reasonable."
Mr. Hall: In this document entitled, "Working Draft on the Federal Child
Support Guidelines," you drew attention to the fact that the non-custodial
parent is responsible for extraordinary medical or health-related expenses. You
were seeing a connection between that phrase on clause 4(b) and the finding by
Justice Maloney that a legal entitlement to consent or obtain counselling or
medical treatment for children does not adhere to the access of parent or
This is a case where the non-custodial parent has no say in the medical
treatment of the child and yet is expected to pay for those expenses. This is
the essence all through the act, namely, that the non-custodial parent has no
say in making decisions yet is responsible financially.
The Chair: If you read the preamble, section 4(1) refers to those expenses or
any portion of those expenses that the court considers appropriate. If it gets
out of line, then you are back in court again fighting it.
Mr. Hall: But if you are expected to pay all or some of those expenses, should
you not have some say in deciding what the nature of those medical services
The Chair: You would think so.
Senator Cools: This "non-custodial" term bothers me. The term "custody"
bothers me a lot. I speak to large numbers of parents who are non-custodial
parents and they cannot get proper records, reports for school-aged children,
information about different activities or about what is happening with the
child in school. They do not have proper entitlements to those kinds of things.
In the instances of granting permission to perform surgery or different medical
emergencies, they have enormous problems. Perhaps our committee should put
these particular questions to the minister or to someone else. In these
instances, what are the rights of the other parent?
Mr. Hall: Of course, the other side question of importance involves the rights
of the children.
Senator Cools: That is the bottom line. I think we are convinced on the issue of
the rights of the children.
Senator Forest: I agree with the premise that children are much better off with
both parents. We have had two divorces in our family and when I see how things
were worked out there and I hear the horror stories around this table, I think
how very lucky we are because custody was not a problem. Nor were there
problems with access and child support. In one case, it was a daughter and in
the other case it was a son. I want that said.
In working with human rights for many years I have recognized the importance of
the language we use. We fought for inclusive language and many kinds of
language that state what people can resonate with. You talked about the
pejorative meaning of the terms "custody," "custodial" and "non-custodial."
Do you have recommendations in that respect?
Mr. Hall: Let me propose that a term such as "domicile parent" might
be used to replace the term "custodial parent."
There is a lot of logic in the view of sociologists and others that it is better
for children to have a relative degree of domicile continuity in their lives,
such as having their own rooms. It seems to me, however, that we go from that
point to saying that the parent in that domicile with that child will make all
the decisions and will be the single parent, essentially. The other parent
becomes a non-parent in a sense, because the relationship is legally
extinguished. Could we start to think about terms such as "domicile
parent?" The assumption is that, in most cases, after divorce, the ideal
situation is co-parents, joint parents.
There may be some few serious situations where it is appropriate for the state
to make some kind of judgment on that issue. However, why do this as a matter
of course? Why take the approach, in every instance, that one must decide which
is the better parent? There is an assumption in most judges' minds that it will
be the mother.
Of course, it also strikes me that when, in the workplace, we have done so much
work, still more work has yet to be done. The idea is that we must be
respectful of one another in the workplace. We must share the benefits of good
wages and decision making. However, we have not gone as far in the workplace as
we should along those lines, but people have been working at it.
Then you get into this situation and suddenly we are back into the days of "Leave
it to Beaver." The assumption is that the mother is the nurturer and the
father is the provider. This seems to be the underlying assumption which guides
most judges. If you read the bill, of course, you will see that it is not
gender-specific. Let us look at the outcome.
The Chair: Are you suggesting that we call the custodial parent the domicile
Mr. Hall: I am suggesting not only that the name be changed but that the concept
The Chair: If you have a domicile parent looking after your children, what do we
Mr. Hall: "Parent" would be nice. "Father" would be nice.
Senator Forest: But you would not call him "non-domicile". As a
Catholic, I am conscious of all the non-Catholics here -- what a terrible way
to describe a person.
Senator Cools: That comes from an earlier period of non-Jew, non-Catholics and
non-status people. It is a term which is inherently discriminatory, but it
means the non-owner of the child.
Mr. Hall: You have lost the title. Your title has been extinguished.
Senator Cools: I am hearing you say you do not particularly have a term to
suggest but that the issue of domicile is not necessarily the issue of custody.
I am hearing you say that custody and domicile are treated as inseparable.
To reinforce your point, two days ago when we had the department's lawyers
before us, we asked them about joint custody. They said that one cannot really
define joint custody anyway. It would seem that "custody" is pretty
clear for definition purposes when it is one or the other. It would appear that
the definition of "joint custody" changes with each individual
situation in accordance with the particular agreement for joint custody.
In any case, your point is well taken because some of the dads this morning
talked about cases where so-and-so has custody, but the child spends 40 per
cent or 50 per cent of the time with the other parent.
I do not exactly know how to go at it, Madam Chairman, but perhaps we can probe
more deeply as to where the terms are used. I have been trying to find the term
"non-custodial parent" in the bill, but I am not finding it. I only
find the term "custody" but not the term "non-custodial." I
do find it in the guidelines. You may have a point there.
Mr. Hall: Imagine children dealing with this term "non-custodial."
What are they being told when they are receiving the explanation about the
judge deciding that Daddy is the non-custodial parent but Mommy is the parent?
What happens when you have been through this situation of violence and you are
trying to keep alive in your children's minds the fact that you are not
abandoning them, but, quite the contrary, that you are trying to support them?
Yet you know the custodial parent has this judicial definition and then is
charged to interpret this to the children. What are the children thinking about
their fathers who for the most part have been designated by the government as
The Chair: If you were a spouse, according to this bill, we could call you the "former
Senator Bosa: Do the children have to learn the meaning of the term "non-custodial
parent" to find out that the father is not living with them?
Mr. Hall: Also, he cannot come. He can only come at limited times.
Senator Bosa: Are you suggesting that the term "custodial parent"
should be changed to "domicile parent?"
Mr. Hall: "Domicile" is defined in the bill as "a person's legal
home." Is that not a far more descriptive term? We are not using the
language of prisoners.
Senator Bosa: I understand that domicile means that. However, if you say the "domicile
parent," it could be also the parent who does not live with the child.
That parent is also domiciled someplace. It does not mean that the child or
children in question are living with one or the other. You would have to add a
footnote to give full meaning to that term.
Senator Cools: No, we do not need a footnote. What we need is for the department
to find a way to express in legal terminology the real concept that is being
Senator Bosa: Senator Cools, in your opinion then, if the department finds a way
to describe that, that is not a footnote, is it?
Senator Cools: Senator Bosa, I do not think any of these issues are footnotes.
The witness is giving us impressions and suggestions. It is our job to find the
proper legislative language --
Senator Bosa: I am not condemning him. I am just elaborating on the questions. I
am taking it one step further.
Senator Cools: Many couples have arrived at very satisfactory arrangements. They
use the term "custody" to mean "domicile."
The Chair: "Custody" is already in the act.
Senator Cools: "Custody" is in the act; "non-custody" is
not. I will look back at the child support guidelines to see if they are there.
I just ran through this quickly, and I did not see it.
In the long run, some of this is still to be determined in individual
circumstances. All that the law can do is guide. I tried back in 1985 and 1986
to change the presumption of the law to joint-parenting. Some of the newer
legislation in various U.S. states is moving totally away from custody and
moving towards language like "parenting."
I do not think you have given a lot of thought to the proper articulation, and
we are the persons who can do that. The Department of Justice has 1,200
lawyers. We can put this together to find a proper expression of the concept.
Senator Forest: Senator Bosa was making the point simply that both parents could
be called domiciled parents because they both have a home.
Mr. Hall: But the question then is about the children's home.
Senator Cools: Perhaps I could put more social policy development questions to
the witness. In your presentation you talked about the UN convention on
Mr. Hall: Yes.
Senator Cools: I would refer the committee researchers to this document issued
by Mark MacGuigan when he was Minister of Justice many years ago. They were
defeated in 1984, so this was probably produced in 1983 or the beginning of
The then Minister of Justice thought that he was paving the way of the future on
the questions of divorce. In this document, Mark MacGuigan brought forward the
issue of the rights of children. There is an entire section on that. Bill C-41,
in some ways, is marching in the opposite direction in terms of disentitling
In that time, back in 1983 or 1984, these changes came from Minister MacGuigan,
then subsequently the bill was carried on by Minister John Crosbie. It was
finally passed in 1986. Bill C-41 is attempting to repeal huge sections of
There is an entire section in this document entitled, "Divorce Law in
Canada: Proposals for Change." Much of the documentation in here that was
being brought forth by Mark MacGuigan was still following on the heels of the
notion of making marriage an equal partnership. If you remember, every province
in Canada had just gone into family law and the upholding of equal
responsibility within the marriage. Many of the principles here were moved
directly from the principles of quality of marriage as a partnership. It was
basically moving those principles into the issue of divorce and simultaneously
upholding the rights of the child.
One element recorded here is that, given the impact of divorce on the interests
and welfare of a child, divorce law should ensure that the rights of the
children are protected. It does not say divorce guidelines or regulations but
Senator Bosa: Excuse me for interrupting. Should we not continue with the
questions of the witness. Then perhaps, if you have something to put on the
record, we can discuss it amongst ourselves.
Senator Cools: Senator Bosa, I am in the hands of the Chair.
The Chair: We are here to hear Mr. Hall's concerns and his suggestions.
Senator Cools: I was asking him for some commentary on why the element of social
policy in this country moved from where Mark MacGuigan was and where the
divorce law was then to where Bill C-41 is now. I think that is an important
social question. He is a social thinker, and I believe his discipline is social
policy.I am getting a little tired of this, you know.
The Chair: Do not leave, senator.
Mr. Hall: Senator Cools, I would like to comment that --
The Chair: Senator Cools, he is referring his answer to you.
Senator Cools: Yes.
Mr. Hall: When you go through this experience, where do you find a hearing or
expertise in this area? It is fascinating to me --
Senator Cools: I wanted to put that on the record for him to comment --
Mr. Hall: I see Senator Cools as carrying much of the corporate memory of this
Parliament, of the federal authority in this field. She is a pioneer in many of
these issues. I certainly was on the edge of my chair to learn as a historian,
to get a sense of the history of these issues which have obviously come up in
other contexts. Where are we to find out about this?
Senator Cools: This is not even history. This is the current Divorce Act which
is before us, and we are being asked to repeal whole sections of it. It is not
as historical as you think.
Senator Bosa keeps cutting me off, and that is tiresome. May I continue,
The Chair: Yes.
Senator Cools: This paper continues with a list:
1) Where feasible, a child should have maximum access to both parents.
2) Both parents should share the responsibility to support their children...
3) The court may grant custody, or access ... particularly the child's interest
in having maximum access to both parents.
4) With the court's permission, anyone who has a sincere interest in the child,
such as a grandparent, may apply for access to or custody of the child.
5) If the court decides representation is advisable or necessary, a child should
be granted independent representation before the court ...
These themes are repeated again and again in that particular section entitled, "The
Rights of Children." Those concerns are repeated in different parts of the
As a social thinker, and obviously as a person who does some analysis on social
policy and its development, what has happened in the development of social
policy in this country that we have moved from the current Divorce Act to Bill
C-41? Could you wrap your mind around that? It is an enormous puzzle to me.
Mr. Hall: I believe that we have allowed gender stereotypes. The 1990s have
proven to be a time where slogans rather than analysis have carried the day.
People like simple explanations. They like to be able to generalize about who
the victim is and who the aggressor is.
In my way of thinking, "feminism" is a good word. I would like to call
myself a "feminist". I do see very big inequalities in some areas of
the workplace, but there has been one territory of feminism, in a very complex
world, which has become inordinately authoritative in giving advice to this
Minister of Justice, to his department and to judges.
Our little group meets in Lethbridge and the people you saw this morning meet
together where they live. there is no federally recognized basis for our
organizations. Our organizations have risen up out of the reality of injustice.
As we come to bring our little papers and to drop the fact that we are trying to
pay our child support and do our jobs, we are dealing with this situation: When
we get here, other organizations which have federal funding, which have staffs,
which have spokespeople, which have the ear of the minister, are already here.
In my view, there is an inequity there.
There is also the problem of the sociological phenomenon. Somehow men are
socialized to think that they should be able to take it and that screaming "uncle"
or "pain" implies something not macho or not masculine.
In society, to talk about these issues, to talk about yourself as a battered
man, to declare your frustration with the title "non-custodial parent"
and to scream, "I am not a non-custodial parent; I am a father,"
brings us face to face with the whole pervasive gender socialization and
stereotyping which affects men as well as women.
It is very interesting to attend meetings where men and grandparents are coming
forward with their terrible stories. However, when you take a step into the
public domain to actually pick up a placard or to make known these hurts and
injustices, then there is a sense that this is personal and perhaps it should
not be known in your community and in your neighbourhood.
There is a phenomenon here surrounding the way men and women are socialized and
the way that the media and society stereotypes these issues of child support,
child care and domestic violence. I believe this act, Bill C-41, is a
manifestation of those very unfortunate trends in our society which seem to be
making us dumber and less able to cope with our very real problems.
The Chair: As we often say, do not try to fix it if it is all right.
Senator Cools: I have more comments, if Senator Bosa promises not to cut me off
again. I am getting quite tired of it.
The bill has some very extraordinary features. You may not be the person to whom
to put these questions. Do you know the expression "judicial independence?"
Mr. Hall: Yes.
Senator Cools: And so-called judicial discretion? This bill is doing some
extraordinary things. This bill is engaging in what we call "delegated
legislation" or "subordinate legislation" which is regulations.
This bill is putting enormous powers into the hands of the Governor in Council
to make regulations.
These powers are heftier than usual, but what is different about these sets of
regulations is that there are these so-called guidelines. They are not
regulations at all.
Do you have any thoughts on this at all? These are not regulations. Regulations
are rules, procedures, regulatory and administrative matters. These guidelines
are instructions to a judge's findings.
As far as I can see, this is the first time that I have encountered the Governor
in Council using regulations to instruct judges on what their findings are to
be, as opposed to instructing judges on how to go about reaching their findings
as is done in the rules of civil procedure or any of the rules of the system.
This is an amazing intrusion by the Governor in Council into judicial
independence. They are telling a judge how to decide, and they boast about it;
they talk about limiting judicial discretion.
Very few people have picked up on this yet. Have you thought at all about this
very novel concept of invading judges' decisions by using regulations?
It is a judicial decision, a judicial finding which they are asking the judge to
make here. He must decide this or do that. It is not that he must be "guided"
in these findings; these are findings he must make.
Mr. Hall: Senator, my instinct is not to comment at length. If I were to comment
at length as a social analyst, the direction of my thought on all this would
deal with the issue which I brought up this morning. That deals with a sense of
respect for the rule of law and the relationship of the Ministry of Justice to
the rule of law.
I share with you, senator, a view that there are some dismaying signals coming
from the Ministry of Justice suggesting that something is seriously wrong; that
there is a lack of understanding or possibly respect for this very delicate
relationship between Parliament and the judiciary.
If I were to take on this issue, my sense would be to look at a range of bills
and initiatives. Let us not fool ourselves. This approach is now being extended
to the biggest political issue of them all, the constitutional future of
Quebec. The kinds of questions and concerns which are being raised here have
explosive and very dangerous implications when you take this same kind of
approach and apply it to the very delicate situation in Quebec.
I will leave that, senator, but I appreciate your analysis on that score.
Senator Cools: It is certainly something that I intend to put before someone.
The Chair: The person before whom to put it is the minister. We will get his
Other meetings are scheduled. We have given this witness a good portion of time
compared to other witnesses, so I would suggest about 10 more minutes.
Senator Cools: I have a few other questions. There is a part of us which feels
much repugnance toward anyone who does not want to support their children.
There is no doubt about that. I see Senator Jessiman react.
There is something repugnant about people who bring children into the world and
do not want to support them. My concern is with the use of federal powers in
the instance of navigational licenses and passports. We are going into even
bigger and deeper issues in accordance with the rule of law.
Several clauses of the legislation refer to the prerogative. The Minister of
Justice exercises powers in two ways, by statute and also by what we call the
Have you given any thought to the massive use of those kinds of powers and the
potential for them to be misused? I have no problems with real, deadbeat
fathers, but everyone that I know is speaking of the dangers that will be
unleashed when this sort of power is brought against an individual. There is
potential for great resultant damage.
Mr. Hall: I was struck by how much of this bill deals with access to information
and access to databases. I need only point to the debate unfolding in Ontario
right now about private information, about doctors' billings being used in a
dispute between the Ontario government and the doctors.
When I read Bill C-41, I see a great deal of it has to do with these promises to
open all these extraordinary means to get at all kinds of information. Then we
have very flimsy protections about how that information will be used.
As a professor and one who has been involved in aboriginal activism, when I go
to these meetings I meet a tremendous cross-section of people, primarily men.
They are car salesmen, carpenters, truck drivers and small business people of
all kinds. When I read this bill, I think about small business people who
cannot pay their child support, let alone the bills in their business.
The reality is that we have a very uncertain economy. This bill contains
coercive measures and punishments. I think, for instance, of the small business
person who will lose some kind of license and thus not be able to make money
and will fall into a growing cycle of indebtedness.
The operative phrases in this document are "spouse", "child of
the marriage" and "debtor." Somehow, this spouse is transformed
into a non-custodial parent and then a debtor. It conveys a mean-spiritedness.
My sense is that there is something profoundly troubling in the way that the
institution of fatherhood has been so undermined and so caricatured. So many
fathers have been trying to hang in as fathers. It becomes so painful dealing
with all the legal and police matters that, for the best interests of their
children, they simply decide that it is better to not try to see their children.
Senator Cools: That is the intended result.
Mr. Hall: The senator makes a pretty powerful statement. However, there is
something in all of this which seems to me to almost sanctify the institution
of single motherhood.
It is lamentable that so many children in our society have no choice but to grow
up in single-parent families, largely single-mother families, but there are
many children in our society who have two loving parents who are ready, willing
and able to partake in the growth of their child, to contribute and to give the
child the support they need from a mother and a father.
There seems to be such disregard for that spiritual aspect of life. Life comes
from two forces; a man and a woman. That does not happen only at the moment of
conception. That has to do with well-balanced growth and socialization
Where is that respect? Where is the appreciation of that equilibrium, that
harmony, which nature has vested in us and of which we seem to have become
The Chair: Maybe the people who draft bills should receive a nice lecture on
humanity in order that they will do their job while keeping society at the
Senator Forest: I have no doubt that this bill can be improved, but I am not
ready to accept that the people who drafted it were biased and prejudiced.
The Chair: I did not mean to say that, Senator Forest.
Senator Forest: I was not referring to what you said. I do not think that was
the intention. If it needs to be improved, that is our job.
I feel for you, Professor Hall, in what you have gone through. We have heard
from a number of fathers. We have also heard the other side from mothers, and
some fathers, who are doing their best to survive under the poverty level.
Somewhere there has to be a balance. The child has to come first.
I quite agree that the two parents need to work this out. There is some
responsibility on the parents, too. There are some couples who manage to work
things out. I am not saying that everyone can, but some have. We have to make
it easier for people to do that.
I have heard it said that the guidelines can be changed, and that is very
dangerous. I have heard other people saying that this should not be in the
regulations. We have to look at that. However, we must not impute the wrong
intentions to people.
Senator Cools: What is our time line on this bill? I agree with Senator Forest
that we must consider it seriously.
The Chair: The government would like to have the bill passed before Christmas.
Senator Cools: Before this Thursday or next Thursday?
The Chair: The government will decide when Parliament will recess. If the
government decides that it wants the bill reported back, the motion will be
People do not draft legislation unless there is a need for it. There has been a
lot of pressure on the government to get to the bottom of the problem of people
not paying their child support. If the government has gone a little too far in
this bill, that must be determined, but doubtless the government felt the need
to have this bill drafted.
Senator Lavoie-Roux: Madam Chair, someone told us that the government had been
working on this legislation for five years and now, all of a sudden, we need to
deal with it in two weeks. We should no delay a bill that will improve things
unless we have a solid reason; however, I do not think that any children, or
parents for that matter, will suffer if this is given further consideration and
is adopted in February, for example. The sky will not fall on our heads.
Studying this bill will not obstruct the government in any way. The bill applies
to children and families and I think we should report back the best possible
Senator Cools: Absolutely.
Senator Lavoie-Roux: That is my preoccupation.
The Chair: I agree with you, senator.
Thank you very much, Professor Hall. We appreciate your remarks and concerns.
Senator Lavoie-Roux: At the beginning, you drew our attention to the fact that
we are talking of children of marriage rather than children of parents and that
the simple terms we used to use are disappearing.
Is this not related to evolution, be it good or bad, of our society? Younger
generations than ours do not attach importance to the terms "parents,"
"spouse" and "marriage."
You will remember, Madam Chair, when we were working on the euthanasia study,
that people referred to "partner" in English and "conjoint"
in French. I said that the terms "husband," "wife" and "spouse"
still exist. They finally agreed to change the word "conjoint" to "spouse."
It seems that we are doing away with all those words because they were related
to old-fashioned concepts or values. I think that is a factor in this change in
What do you think, Professor Hall?
Mr. Hall: I am arguing for straightforward language. We should retain the term.
It is really a matter of inserting the term "parent." "Parent"
is a clear, straightforward term. We do not see it in Bill C-41. There may be
many issues which will arise once that word comes in. I suspect that those who
have designed this bill do not want these issues discussed.
When we talk about the good intention of the drafters, I am prepared to give
people the benefit of the doubt and assume the best, however, when I see that
this bill lacks the word "parent," I feel as you did about the "conjoin"
issue when it should still refer to "spouse." Why can we not use the
word "parent?" When we do use the word "parent?" You say it
does not work in French.
Senator Lavoie-Roux: It is an odd creation.
Mr. Hall: I am not coming down on the side of new-age language. I want terms
such as "mother," "father" and "parent" to be
used clearly for what they are, not side-stepped by using weasel words which
avoid these issues.
The Chair: Thank you. I would remind the committee we meet again tomorrow at