SPECIAL JOINT COMMITTEE ON THE CHILD CUSTODY AND ACCESS
COMITÉ MIXTE SPÉCIAL SUR LA GARDE ET LE DROIT DE VISITE DES ENFANTS
[Recorded by Electronic Apparatus]
Tuesday, March 31, 1998
[initial material clipped out]
The Joint Chair (Mr. Roger Gallaway): Mr. Fox, please.
Mr. Walter Fox (Individual Presentation): Hi. I'm a criminal lawyer. I've been in practice in criminal law just over 30 years. I want to share with you some observation from a criminal lawyer on the family law process.
Family law, as I guess you all know, has a serious and profound impact on the people who become involved in it. The family law process decides who will own the house, who will pay, who will receive money, and how the children will be raised, including how they will be educated and what religious training, if any, they will receive.
The family law process also has a profound effect on Canadians as a whole. There is no family in Canada that is untouched by the family law process and the attendant divorce industry.
As a criminal lawyer I deal with accused people who, when they come before the court, have the protection of the Charter of Rights and Freedoms and the whole common law. It is stunning to me that in the family law process, the future relationship between parents and children and grandparents is decided without even minimal attention being paid to due process and propriety.
In Toronto, which is what I know about, family law matters had for years been decided on interim motions, very often in a back room. The parties are not even present. There is no transcript to record the various positions taken by the parties and the judicial officer or officers. We learn in history, from the Star Chamber, that this kind of process inevitably leads to abuses.
I speak as a lawyer, and given the way the family law process functions today, our courts are the last place to decide issues of custody and access.
Civil courts generally have an internal regulation called costs. If you come to court and lose an adjournment, you lose a motion, or you lose a trial, in Canada you have to pay costs. In a custody matter, where the issue is supposed to be how much the custodial parent will get in order to properly raise the offspring, how can we make that parent, usually the mother, pay costs? In the absence of costs, the anticipated custodial parent faces no sanctions with respect to their conduct toward the court or toward anybody.
Perjury is common, but how can we put the custodial parent in jail for lying? As a result, the family law process ricochets behind closed doors or even in open court without a transcript and without any of the basic sanctions our courts have traditionally used to control the process.
A single court order ordinarily deals with both maintenance and access, but maintenance is enforced with jail and access is not enforced. Doesn't this send different messages to both boys and girls about equality and the law?
If I am correct in my view that the defective family law process combines with a societal view that favours mothers over fathers, our courts are not serving us well in these matters. I understand that the committee is looking for assistance in helping to solve the custody and access problems that appear to exist.
I'm not able to recommend any legislative changes to the Divorce Act as that act already deals with: (1) the duty of lawyers to consider reconciliation and to recommend mediation; (2) the duty of the court to consider any possibility of reconciliation; (3) the duty of the court on custody to consider the best interests of the child; and (4) the duty of the court on access to consider maximum contact with the non-custodial spouse. It's in there, it's in the Divorce Act. The court has to consider those things.
The Divorce Act as it stands is fine. However, it's a little bit like the constitution of the former Soviet Union: there's a vast difference in how it reads and how it's applied. I urge the committee to consider ways of enforcing mothers and fathers and the family law process to obey the ordinary rules of court as they apply in all courts: not to lie and not to waste the time of the court.
It must be apparent to this committee that the family law process is seriously flawed. I urge the committee to write a report that will not be ignored. You have to say loud and clear what is really going on. We need to have some hope of changing the family law process so it helps our kids more than it helps the divorce industry.
The Joint Chair (Mr. Roger Gallaway): Thank you,
Senator Duncan Jessiman: I'd like to start with you because you were last and you talked of something I know is very popular, certainly in California, which was the first state to create a legal presumption in favour of joint custody. It's kind of gotten away from that, do you know that?
Ms. Wendy Dennis: I'm not necessarily suggesting a legal presumption of joint custody. I am suggesting a presumption of shared parenting, which is the notion that both parents will have an active and involved role. It will start from that basis, and whatever parenting plan is worked out within the context of that is the way to go.
Senator Duncan Jessiman: Perhaps you could expand on that a little and apply it to the guidelines we're all bound by now. If we do have shared parenting, how do you see it working?
Ms. Wendy Dennis: Okay.
Senator Duncan Jessiman: As I said earlier, some think it should be substantially equal time. What do you say is shared parenting? At some state I said one-third of the time could be shared if you worked out overnight.
Ms. Wendy Dennis: I'm a parent who has a joint custody arrangement with my ex-husband, notwithstanding the fact that I have had an ongoing acrimonious relationship with him for about 14 years, including litigation, which is still ongoing. Nevertheless, our daughter, who is now 18—and we separated when she was 4—went back and forth between our two households on a weekly basis for a number of years quite happily. She flourished, and we changed that arrangement only when she became 13 or 14 and decided herself she wanted to alter it.
So I've heard many arguments. The court right now takes the view that you cannot have joint custody in an acrimonious situation because it can't possibly work. I don't necessarily agree with that, because I think it can.
Senator Duncan Jessiman: So you're saying acrimonious only as between yourself and your husband, but not as far as the custody of the child is concerned. The acrimony wasn't about custody?
Ms. Wendy Dennis: No, it was never about custody.
Senator Duncan Jessiman: Okay, go ahead.
Ms. Wendy Dennis: In terms of whether it should be half-time, third-time or three days a week, I think that's something that has to be worked out in the context of this process you set in place as soon as people divorce. You have both parents there and the parent coordinator, and you get them to work out a parenting plan.
I don't think you can legislate that it has to be this or it has to be that. I think parents need to have some autonomy in deciding what is best for their children, so I can't give you a perfect answer there.
Senator Duncan Jessiman: But under the law now, if you worked out a parenting arrangement and the man—80% or 90% of the time the man is the non-custodial parent—has 39% of the parenting, and the custodial mother has the 61%, they would not take into account both incomes under those circumstances. But if it went to 40%, they would. Some say it should go to 50%. What's fair? We thought 30% and we were arguing—
Ms. Wendy Dennis: What's fair is 50%.
Senator Duncan Jessiman: At 50% pay and 50% custody—50% or what, though?
Ms. Wendy Dennis: If children are living an equal amount of time in each household their household expenses will be the same, and then you only have to deal with their extraordinary expenses—their activities and so forth—which again can be paid on a proportionate basis according to their respective incomes.
Senator Duncan Jessiman: But you don't take into account respective incomes.
Ms. Wendy Dennis: I know that we have the guidelines and that they only look at the payer—
Senator Duncan Jessiman: Yes, it makes it very complicated and difficult.
One other thing about access, and it nothing to do with dollars—
Ms. Wendy Dennis: I hope, by the way, that you will get rid of that word. It's an ugly word. All those words are ugly.
Senator Duncan Jessiman: All right.
You know that for non-payment of maintenance, the non-custodial parent's passport and driver's licence can be taken away. We had a witness here this morning who said there was a contempt of court, I don't know how many times, before his wife was actually put in contempt of court and put in jail. Before you did that, wouldn't it be reasonable that the same penalty be applied to a custodial parent who refuses to give access? Take her driver's licence and passport away before they put her in jail. Would you agree with that?
Ms. Wendy Dennis: As I mentioned, if you're going to do it on one side, you absolutely have to do it on the other. I don't think anyone thinks jail is a good alternative.
Senator Duncan Jessiman: I'm not suggesting that, but at the moment there's no penalty for not giving up access.
Ms. Wendy Dennis: Right, there's no penalty.
Senator Duncan Jessiman: So you'd agree that it should be equal.
Ms. Wendy Dennis: I would. And I would add that what we know from the social science research is that when you allow fathers—it's almost overwhelmingly fathers who have no contact with their kids, or who are the non-custodial parents—to have contact with their children, you don't have the same kinds of problems with non-payment of support.
That only stands to reason, when they're allowed to be actively involved in their children's lives. We do not have a problem in this country of fathers refusing to support their children within marriage. What happens? Do they suddenly become swinish deadbeats? I don't think so. I think there's another reason for this, and we have to get to the crux of that reason.
The social science research is telling us that fathers are longing for that contact with their children. When you turn them into uncle dads who only gets to see their kids on alternate weekends, and they come back into their lives—they sort of parachute back in very occasionally—the pain of losing that daily involvement with them is so great, and their children suddenly start to become strangers to them, and they cannot bear it, so they start to drift away and move into second families and try to make a new beginning for themselves. So it's understandable in that context.
Senator Duncan Jessiman: Thank you.
The Joint Chair (Mr. Roger Gallaway): Thank you, Senator.
Mr. Peter Mancini: I have a couple of questions. I'll address this to Mr. Fox, but I would invite comment otherwise.
I think we're kind of narrowing this discussion to the enforcement issue. There are some other good ideas here about joint custody or shared parenting, but the complicating factor in this is the child. I appreciate what you're saying as a criminal lawyer—I've practised criminal law and civil law—and there are costs. You used that as a good illustration to say that if one party consistently comes to court or refuses to be cooperative or to abide by the rules, in civil situations we have costs. We have contempt of court, where somebody can be fined or put in jail.
But at the end of the day the complicating factor is the third party, who is the child. If we order costs against the mother, for example, or we put the mother in jail.... I don't think anybody is going to deny that children bond. Even with the worst parents, there are bonds there. So even a mother who practised parental alienation, for example—if we put the mother in jail or the father in jail, if we apply costs to the father or mother, at the end of the day we're taking money out of the mouth of the child, we're depriving the child of access to a parent that they care for.
So on the issue of enforcement, isn't that the complicating factor? I don't have the answer, and that's why I'm asking. Is there anything that you can think of? Maybe we could put the money in a trust fund for the child. I don't know, but—
Mr. Walter Fox: One thing we can do is bring this out of the back room and put everything on a transcript.
Senator Anne Cools: That's right.
Mr. Walter Fox: You can imagine what these committee hearings or the House of Commons would turn into if there weren't Hansard. So we have these problems and they're difficult and intractable. You know what happens then. The judge brings everybody, including the lawyers, into the back room. The judge starts to make outrageous and bizarre threats to one side or the other—usually to the father. Then the lawyer says that if you don't agree with what the mother is offering, the judge says you'll be beheaded.
We can't figure out what is really going on as long as this happens in a back room, or even in open court, when the positions aren't transcribed. I don't know if that is going to solve the problem—there are all kinds of layers to this that must be apparent to this committee—but that's certainly a beginning.
As criminal lawyers, we do plea bargaining, right? We go into the judge's chambers, we meet and some determination is made. But then we come back into court and the defence says, “This is my position, which I put to Your Honour in the back room”, and the prosecutor says, “This is my position.” Then the judge says, “I heard both of you back there and this is what I'm deciding.” Sometimes it is what both have offered, sometimes what the prosecution asked for. and sometimes what the defence asked for, but it's on the record, open and clear.
The clearest example is the Karla Homolka case in Ontario, where she got what some people are calling a sweetheart deal or a deal with the devil. I don't want to go into that issue, but whatever was determined was determined in open court. Even though it was sealed, sometime later we could see the whole story.
We don't get that in family law, and personally, after going through the process, as a criminal lawyer I was astounded. My lawyer comes out and says, “The judge says you're going to have to support that child until she's 30. You have it, so you'd better settle.” You can imagine what I told my lawyer to tell the judge.
Mr. Peter Mancini: I can imagine.
Some hon. members: Oh, oh.
Mr. Peter Mancini: My second question is really an observation. It kind of came to me when another witness, Mrs. Grande, was here, but I'm going to ask you to comment on it. You've talked a little bit about the issue of money, and we keep getting into that at some point.
Sadly, there is no less acrimony in situations where there is no money. I've practised poverty law as well, and in situations where the father has no income except for minimal, and the mother has no income except for minimal, there is still acrimony. It's not tied to tables or to support, because there's just no money to go around. I don't know if that offers us an illustration.
I've heard some people say that part of this is tied to the fact that the mother may be looking for money and so is seeking custody or denying access, or the father is not paying or what have you. But even in situations where there isn't money—and I wonder if the panellists have any observations on this—is there a difference between people who find themselves in poverty and those who do not? Are there different problems? Am I clear on that?
Ms. Wendy Dennis: I think you're clear on that. There are two separate things in what you're saying. The acrimony surrounding a divorce can take many forms and can be there for many reasons, but in the judicial system that we have now, it's very easy to use the children to trade for dollars—
Mr. Peter Mancini: My point is that happens even when there's not money. We're not trading the children for dollars. We're putting the children in a power situation.
Ms. Wendy Dennis: Yes.
Mr. Peter Mancini: Access in and of itself becomes almost a power.
Ms. Wendy Dennis: That gets back to something I was saying about the way in which we have to look at support. If we look at support not just in a financial sense but as emotional support as well as financial support—you were asking earlier whether we really want to take money out of the mouths of babes and put moms in jail or whatever. But do we also want to give children the message that you can get away with murder, there's no accountability and the system is rigged? So I definitely see it as a two-sided issue.
Mr. Peter Mancini: Thank you.
The Joint Chair (Mr. Roger Gallaway): Thank you.
Senator Anne Cools: Thank you, Chairman.
Once again, I'd like to thank the witnesses for being thoughtful.
I have a technical question and then I want to put a question to Ms. Dennis and Mr. Fox. The first witness made a reference to section 233 of the Criminal Code. I believe the section covers infanticide. Perhaps the witness could tell the committee what that section of the Criminal Code says.
Mr. Patrick Ellis: It says:
A female person commits “infanticide” when by a wilful act or omission she causes
Senator Anne Cools: Only “she”?
Mr. Patrick Ellis: That's right.
Senator Anne Cools: It cannot be a “he”?
Mr. Patrick Ellis: Section 28 applies. That's for a newly born child. It reads:
if at the time of the act or omission she is not fully recovered from the effects of giving birth to the child and by reason thereof or of the effect of lactation consequent to the birth of the child her mind is then disturbed.
The corollary of that is the defence.
Senator Anne Cools: Of course. And we know about the role that plays, so we have diminishing responsibility. Thank you for that.
My second question is to you, Ms. Dennis, and I thank you for what I thought was very eloquent statement about so-called radical feminism, biological pre-eminence. I would like to thank you for describing the moral and intellectual bankruptcy of so-called radical feminist ideology.
I also thank you for bringing forward what I understood you to say, which is that any ideological assertion that women can do no wrong is an invitation to certain women doing wrong. I was very struck. Obviously you've given this a lot of thought and you've been doing a lot of research. I was struck by the attentive way that some of you writers have of articulating these issues. So I thank you for that. The whole phenomenon of the reward of unscrupulous behaviour....
My question to you is that somewhere and at some point in time this ideology found a resting place and a breathing place in family law, in family court and in the related judicial proceedings. I know that you're writing and researching this extensively, but do you have any idea or thoughts around how and why this ideology was able to take such firm hold on this particular area of the law?
Whoever wants to, go ahead.
Mr. Walter Fox: I have something to say about that.
Senator Anne Cools: I'm interested in what I would have to call the corruption of legal concepts.
Mr. Walter Fox: My concern is that feminism, as it has been presented to us and the way it's playing itself out—I'm not so concerned with the content of the feminism as I am with the structure.
The first thing that happens is that thought and free speech go out the window. The second thing is that it gets into the court in the area of law that is most significant to it, which is family law, as we now know. That's feminism.
What if it were fascism? What if it were communism? What if it were any “ism” that would ultimately dehumanize and demonize any portion of our population?
To me, feminism unfortunately has come to take on the same kind of structure and shape that McCarthyism took. The print media has an influence in the courts, and it will seek some area in the courts to establish itself. The current form of feminism is really a replay or a repetition of the side that lost the Second World War. We're sort of refighting that ideology in a different form.
I don't want to equate feminism with Nazism—obviously it's more palatable—but when feminism goes, that structure, that way of approaching things, those ideas, that kind of ideological construct, God knows what it will be filled with. It's that approach to things that we have to attack, not the content itself.
The Joint Chair (Mr. Roger Gallaway): Ms. Dennis, did you want to say something?
Ms. Wendy Dennis: I'm old enough to remember when I was a volunteer for a rape crisis centre in Toronto. I went out on Sunday mornings and gave talks to the police, and they would poke each other in the ribs and make rape jokes. So I know how far we've had to travel in terms of changing attitudes, and I'm astounded at the distance we have travelled. In fact, I think we've travelled way too far. In part that's what I'm here to talk about today—that the pendulum has swung so far the other way.
I think it's pervasive in the media. In terms of my own personal experience, my spouse was falsely charged with domestic assault. At this moment in our culture, when a woman says “That man hit me”, that notion is sold. You don't need evidence. That's just wrong, and that poor attitude is what's permeating our family law system at the moment.
In principle, we're supposed to have equality. I went into that system thinking that our family laws had been reformed to reflect notions of equity and fairness, but when I got in there I said, what is going on here? This isn't about equity or fairness, it is about tactics and establishing a status quo and lionizing the mother in terms of custody.
It's not about equity, it's about what the mother needs to mother the children. That's the thrust of the process, not what do these two parents or what do these children need? It's what does the mother need? Does she need money? Let's throw some money at her.
When you get into that system, the assumption isn't to look at the evidence and decide; it's that the guy is probably lying, so we'll freeze the status quo and we won't disturb the mother and children's standard of living until we know how much more money the father has to pay. That's basically they way it operates.
The Joint Chair (Mr. Roger Gallaway): Thank you.
Senator Mabel DeWare: I just want to make an observation.
I think the time has come to be very cautious of not recommending or putting laws in place that create undue hardships in this country, because that's what I'm hearing today from Cynthia and all of you and from many other witnesses this week. We have to find some fairness in the system. The other thing is we have to definitely build a level playing field so that the law is fair somehow to everyone. When people are going bankrupt, that's not a level playing field. If you're bankrupt and you have no money and you're on welfare, what can you do for your children or yourself under those conditions?
That's where we have to really seriously come from, a level playing field and fairness for everyone. Thank you.
The Joint Chair (Mr. Roger Gallaway): Dr. Bennett, you can have the final question, and I must say we're running late.
Ms. Carolyn Bennett: I'm just hoping that after these proceedings feminism isn't seen as a swear word. In Wendy's excellent description of an intolerable situation, we have to make sure that it is the radical feminists who are being described. The feminists I know want equity, they want an equal playing field, inclusivity, and they don't like hierarchical structures. They are much happier in horizontal structures where power is balanced.
I would hope that all the feminists whom I see...and I would say that most of us in this room wouldn't tolerate the past. We would want what's best for the kids, and what's best for the kids is getting to see those two parents who have the responsibility and love for them.
Again, what we keep hearing at the committee is that the only person with rights is the kid, who has rights to see both parents. Everybody else has the responsibility in this argument. I would hate to leave the afternoon thinking that all feminists have horns and a tail.
The Joint Chair (Mr. Roger Gallaway): Thank you for dispelling that myth.
I'm sorry, but we're really out of time. It seems that this committee becomes more invigorated as the day goes on, and that's because of you. I want to thank you for coming. We'll adjourn for about three minutes. Thank you.