[Recorded by Electronic Apparatus]
Thursday, October 24, 1996
.0936 
[English]
The Chair: Order. We're on the record.
Mr. Ramsay, we have your motion. I would like to deal with that after we finish with our witnesses, if that's okay.
We also have Mr. Strahl's request that I review my position on Mr. Thompson's bringing the motion. I would like to give my reasons for that today. I indicated that I would let Mr. Strahl know when. So I'll rule on that at about 3:30 p.m.
Mr. Ramsay (Crowfoot): In fact, on the motion I had placed before the committee on behalf of Mr. Thompson, if it's preferable, I would just as soon have him present when you deal with it.
The Chair: No problem. When is he going to be here?
Mr. Ramsay: I'm not sure. Perhaps we could deal with it after we return from our trip west, if that's all right.
The Chair: I don't mind. If there's no disagreement with that, we'll simply tableMr. Thompson's motion until our first regular meeting after the trip west.
But on the ruling, Mr. Strahl seemed to think we should rule on that right away. I'm prepared to do that at 3:30 p.m.
Mr. Ramsay: Okay. I'll notify him to be here at 3:30 p.m.
[Translation]
Mr. Langlois (Bellechasse): I would like to know if we have a rule in the Justice and Legal Affairs Committee that allows us to hear witnesses with a reduced quorum. Can we proceed immediately?
[English]
Do we have a provision that sets a mini-quorum for the sole purpose of hearing witnesses?
The Chair: Yes.
Mr. Langlois: So I can go ahead.
[Translation]
I would like to draw your attention to the fact that the brief submitted by the witnesses is in English only, Madam Chair. Maybe the clerk could tell us when the French text will be available. While I am aware that witnesses are fully entitled to express themselves in their language, I am disadvantaged compared to other committee members when the brief is handed out in English only. This is why I would like you to order it to be translated as is customary, please.
[English]
The Chair: All right. We're just going to find out when it will be available.
[Translation]
Mr. Langlois: I do not want the witnesses to be blamed for the lack of translation. I want them to be able to proceed since we are going to get the translation, but -
[English]
The Chair: I don't disagree with you. The clerk informs me that the French translation is on its way. Would you like to proceed or do you want to wait?
[Translation]
Mr. Langlois: Exceptionally, this once, let us proceed, Madam Chair.
.0940
[English]
The Chair: We have witnesses today from REAL Women: Diane Watts, researcher; Sophie Joannon, a former board member; and Jeannine Lebel, a board member.
Go ahead, Ms Watts.
Ms Diane Watts (Researcher, REAL Women of Canada): Thank you for inviting us. We're very pleased to share our position on the family, which we view to be the basic unit of society, a very important unit. We have presented this brief on the amendments to the Divorce Act.
We understand that the main purpose of Bill C-41 is to provide fair, consistent and predictable guidelines for child support across Canada and to have these guidelines rigorously enforced. These guidelines, we also understand, have been based on average expenditures per child at different income levels, with no provision made, however, for the differing ages of the children.
Although this bill may be well intended, it would appear that it will not likely achieve its objectives because of some major defects in it. We would like to address the areas where we believe changes in the bill will make it more effective.
First, guidelines are determined according to income of non-custodial parent only. It is noted that in determining the child support to be awarded, only the income of the non-custodial parent, usually the father, is to be considered. This formula presumes that the custodial parent will contribute to the child's maintenance in accordance with her means. This may be satisfactory if the mother has a high income and will in fact be to her benefit. However, those mothers with low incomes, or with no income at all, such as a full-time homemaker, will be placed at a serious disadvantage by these provisions, since she will receive a reduced income owing to the fact that she is unable to contribute financially to the family income.
The affluent father, meanwhile, need only contribute according to the guidelines and not to the actual needs of the family, and in fact, because of the guidelines, may be permitted to make even lower support payments than previously agreed upon by the parties or ordered by the courts.
Moreover, in cases where the child may spend a substantial amount of time with the non-custodial parent, the bill is also unfair. For example, the latter's costs, which may include food, housing, activities and other out-of-pocket expenses - significant direct expenses - will not be adjusted for under the bill. Thus, under the guidelines set out in Bill C-41, a non-custodial parent who has incurred substantial direct expenses will pay the same child support as another who never has the child under his direct care and therefore has paid no such expenses.
A similar inequity could also apply to the custodial parent if she has the child all the time and absorbs all the child's expenses, as she would receive the same child support as another mother whose child spends a great deal of time with the other parent.
The only provision made to adjust the guidelines in Bill C-41 is consideration of undue hardship to either parent or to the child. The judge, however, must provide written reasons for the adjustment of the guidelines in such cases, which may tend to discourage such departures from the guidelines.
In order to comply with this provision in the bill, the party pleading undue hardship, almost always the non-custodial parent, has to show that he has a standard of living that is lower than the custodial parent, caused, for example, by significant travel and accommodation expenses to visit the child, or perhaps obligations to support other children and a second spouse. This adjustment would require complex calculations regarding the composition of incomes of the two households. It would also require constant changes in the awards long after the marriage break-up because of changes in marital situations and incomes of the parties.
.0945
Such updated calculations and child support awards will not be inexpensive, but rather will be a substantial drain on both parties' resources. That is, Bill C-41 has built into it a legislative inflexibility that not only compromises fairness but will likely lead to an increase in the number of custody battles - that is, more fathers asking for custody. So there will be an increase in the acrimonious nature of divorce proceedings and non-compliance with child support awards.
Moreover, because the guidelines are to be based on the income of the non-custodial parent, new spouses - that's new spouses of the non-custodial parent - are implicitly included in the calculation for support payments and therefore will also be held responsible for supporting children of a partner's previous marriage. This is unfair, since support payments should be a matter between the two parents. This latter predicament will only serve as a disincentive to remarriage.
Our section 2 deals with added-on expenses for the custodial parent. Bill C-41 also provides only limited flexibility for the custodial parent to obtain extra child support. The few categories in which special child-related expenses can be added on to the guideline limits, if the expenses are reasonable and necessary, include medical and health-related expenses, certain child care expenses, educational expenses, primary, secondary and post-secondary and extra-curricular activities.
The difficulty with this added-on provision is that these latter expenses may well have already been included in the guidelines and therefore may be counted twice. Moreover, these add-ons are vague and uncertain and do not contribute to the purported consistency and predictability of the guidelines.
No two families are alike, and the one size fits all concept of the guidelines, which is so fundamental to this bill, is fraught with difficulties. Further, the guidelines will not achieve a fair and more consistent level of support as intended by the bill since they are to be based on fixed amounts regardless of the age of the child. Needless to say, the expenses of a pre-schooler differ markedly from those of a teenager, but the guidelines do not reflect this significant fact.
In comparison to this new system of guidelines included in Bill C-41, the previous method of case-by-case determination of child support awards has considerable merit. Under the circumstances, it's a very good thing that clause 12 of Bill C-41 requires that the justice minister undertake a comprehensive review of the federal child support guidelines within five years after its coming into force and that he report the outcome of this review to Parliament. However, we believe that this review should be required within only two years.
.0950
Number three is the access issue inherent in support payments. The guidelines are supposed to result in fairness in the system. This is not possible, however, as long as Bill C-41 contains the glaring defect of regarding fathers as mere wallets or paycheques rather than as the parent of their child. Access is an integral part of child support payments. That is, access is not a separate issue from that of support payments for the child but is intimately intertwined with it.
Fathers are entitled to certain rights in regard to their children, including the right to have access to them on a regular basis. Moreover, there is no assurance that child support payments will be actually spent on the child. In fact, in some cases the support payments may be being used to provide an improved lifestyle for the mother. In short, non-payment of child support is a far more complicated matter than the simple explanation of a deadbeat father.
When access to their children is denied unreasonably, or support payments are not spent on the child, the bill should make provisions for the custodial parent to be penalized in the same way a father delinquent in his child support payments is penalized. That is, if it is acceptable for the non-custodial parent to be penalized under this bill for his failure to provide child support payments, then there should also be a similar provision in the bill for sanctions against the custodial parent who is unreasonably withholding access to the child from the other spouse or who is failing to spend support funds on the child.
Number four is on the enforcement of guidelines. Bill C-41 includes a range of measures intended to reduce the problem of non-payment of support awards. The provisions include the suspension of certain federal licences such as air traffic controller licence, aircraft maintenance engineer licence, commercial pilot licence, private pilot licence, helicopter, and able seaman certificates, to name a few, as well as the suspension of the non-custodial parent's passport.
The bill also provides for better tracing through the Department of Revenue's tax files, coordination with provincial enforcement agencies, and the diversion of federal pensions to satisfy arrears and support payments, as well as the garnishing of funds from income tax refunds, unemployment insurance payments, and the salaries of federal employees. It is noted, however, that Bill C-41 has failed to include one other very effective method of obtaining child support moneys, namely the automatic deduction of child support payments at source. Such provision has already been put in place in some of the provinces and it seems to be working out well.
Finally, although our organization is fully aware of the necessity of enforcing child support payments, we nonetheless believe that some of the methods of obtaining such support payments are counter-productive, in particular the withdrawing of federal licences from uncooperative fathers. Our concern lies in the fact that should a father's occupation require he hold one of the federal operating licences listed in the schedule to the bill then such removal will render him unemployed and therefore unable to provide an income for his children.
.0955
Thus, although this provision is understandable it does not seem to be a particularly wise one. It's somewhat similar to the debtors prison of Victorian times, now thankfully obsolete, in which a man with unpaid debts was thrown into prison. During his time of imprisonment he was of course unable to take any steps to clear his debts.
Similarly, how does it assist the beleaguered custodial parent, or the children, to have the non-custodial parent without employment due to the cancellation of a licence required to work within his profession? It would be better to avoid such a catch-22 situation by, as suggested above, deducting support payments at source.
We have four recommendations. First, the strict application of the guidelines set out in Bill C-41 will not achieve its objective of providing fairness and precision in child support awards. Rather, these guidelines should be applied as non-mandatory guidelines only, thus leaving judges with more flexibility and discretion in order to determine child support awards on a more fair and realistic case-by-case basis.
Second, access to the child by a non-custodial parent is an integral part of child support payments. Similarly, the use to which child support payments are put is also highly relevant. Unreasonable denial of access to the child by the custodial parent and misapplication of child support payments by the custodial parent should be penalized in a way similar to the penalties provided for delinquent non-custodial parents.
Third, a comprehensive review of the guidelines by the Minister of Justice should be carried out within two years of the act coming into force.
Fourth, enforcement guidelines should exclude the withholding of federal licences required for the non-custodial parent's employment and instead deduct support payments at source, as is already being carried out under some provincial jurisdictions.
[Translation]
Mr. Bellehumeur (Berthier - Montcalm): Thank you very much for your brief. I had a number of questions but in your recommendations and your comments towards the end you answered most of them.
One of them was on the lack of flexibility that you underlined in your brief. If I am not mistaken, you agree that guidelines should be set out. Is this correct?
Ms Watts: We would leave them to the discretion of the judge.
Mr. Bellehumeur: Okay. And to make them more flexible, we should emphasize the discretion that is usually given to the judge. At any rate, judges always have some room when implementing legislation. So, we should clearly establish some guidelines, but still allow the judges the freedom of judgment they usually have.
Ms Watts: Yes. His hands should not be tied to much by the guidelines, because they can become very inflexible and can be used for bad purposes.
Mr. Bellehumeur: Agreed. Unless I misunderstood, there is one aspect you did not mention and that I find very important. It is with regard to the implementation of the guidelines as drafted by the Department of Justice last June. It says that if the non-custodial parent and the custodial parent do not reside in the same province, the table for the province of habitual residence of the payor applies.
.1000
In other words, if a woman in Quebec receives child support from a man living in British Columbia, the guidelines for the latter province apply, rather than those for Quebec. Do you agree with this provision? Would it not be preferable to apply the table of the province where the beneficiary and, in most cases, the children reside? Therefore, if the children lived in Quebec and the non-custodial parent in British Columbia, the court would apply the guidelines for Quebec, and vice versa if the children live in British Columbia and the payor in Quebec.
Ms Watts: This is the weakness of tables and guidelines. Each province may have its own rules, as well as the federal government, which adds to the confusion. This is why they should be left to the discretion of the judge and should not be compulsory. Let the judge make the decisions, rather than imposing figures established by governments.
In the alternative, we should take into account the place of residence and the varying costs of food and housing which differ greatly from one province to the other. We should also take into account differences between rural areas and large cities which can be very significant. This is the weakness of opting for tables and why we think using them should be a secondary requirement.
Mr. Bellehumeur: Agreed.
[English]
Ms Clancy (Halifax): On a point of order, Madam Chair, with the greatest respect toMr. Bellehumeur, I would refer him to subclause 1(3) of the bill; I'm sorry, I'm looking at the English version. The definition section says that in a case like the one he has cited, the federal guidelines would apply. There would not be a conflict between Quebec guidelines and B.C. guidelines. In a situation like that there are federal guidelines that work out, I assume, sort of an average.
[Translation]
Mr. Bellehumeur: This is a debatable issue, Madam Chair. It is a matter of interpretation. It will be debated in the House. At the present time, I have here the federal guideline, which says, and I quote:
(4) The applicable table is:
a) if the spouse against whom the order is sought to be made resides in Canada at the commencement of the proceedings for the order or at the time of the recalculation of the amount pursuant to Section 25.1 of the Act, the table for the province where that spouse resides -
If that is not clear, we can debate it in the House for as long as you wish. For the time being, I think you interrupted me for absolutely no valid reason.
[English]
Ms Clancy: On a point of order, Madam Chair, if Mr. Bellehumeur wants to read the guidelines, that's fine. Most of us on this side prefer to read the guidelines and the bill. That way our minds are improved.
The Chair: Carry on, Mr. Bellehumeur.
[Translation]
Mr. Bellehumeur: I am a very patient man, Madam Chair. However, if we want to play games in committee, I too know how to play them. You know me, Madam Chair. If we want to play games in this committee, I will take part very actively, but it might not be in the interest of the work we want to do in this committee.
That being said -
[English]
Mr. Ramsay: Madam Chair, on a point of order, I ask that the chair rule that the Bloc member be allowed to continue his examination of this witness undisturbed.
The Chair: I haven't stopped him from doing that.
Mr. Ramsay: Thank you.
[Translation]
Mr. Bellehumeur: That being said, am I to understand that the discretion that should be left to the courts by the bill, in your view, should allow the judge to set aside a table in the guidelines and to opt for another?
Ms Watts: I do not think we would agree with this. Again, it would lock the judge inside certain limits. The guidelines should be taken into consideration. However, there can be many. Sociologists, parents' associations, lawyers involved in divorce proceedings, all these groups will have their own tables.
.1005
Therefore, all available information should be taken into account. Setting aside all tables would be risky and would not greatly benefit a couple going through a very difficult time. We suggest that in coming to a discretionary decision, the judge should consider all available information. If the judge finds a table is not enough, is incorrect or contains many errors, he should be allowed to set it aside. If his experience tells him that one table or another is not up-to-date or is incorrect, he should be free not to apply it.
Mr. Bellehumeur: In such a case, the guideline tables would be used only as a reference.
Ms Watts: Exactly. We do not want the system to be rigid, we want it flexible.
Mr. Bellehumeur: As a last point, I want to say that I fully agree with you that these tables and the whole system should be reviewed in two years and not in five years from now. I think that after two years we should have a sufficiently clear view of how this system is working out and what adjustments should be made. I think two years should be quite enough.
[English]
The Chair: Thank you, Mr. Bellehumeur.
Do you have anything to add, Mr. Langlois?
[Translation]
Mr. Langlois: Yes, yes. I would like to ask my questions right away, if I have any.Mr. Bellehumeur already covered the main questions I had.
At the present time, there already exist guideline tables for lawyers, for practitioners, for whoever wants to use them. They exist and it is easy for judges to determine how much two children living in the Edmonton area will cost, if one is in high school and the other still in diapers. We know how to do it. It is being done every day and in many cases judges set those tables aside.
I wonder if it is not going to take ten or 15 years before judges in provincial or superior courts establish a case law that will vary from one province to another. Appeal courts will have to look into this and, at some point in time, it will appear that there will always be some special circumstances requiring exceptions to be made to the rules contained in the tables.
Besides, lawyers will all argue that the tables are applicable to everyone except their clientss. They will try to have them set aside in the case of their clientss. I am not convinced that this will really take matters out of the judges' hands. I am not opposed to having tables, they can be useful. However, I do not think they are a panacea.
I still maintain that we should emphasize prevention and mediation to avoid the process ending up before the courts. It would be much more useful than establishing tables, even though I admit it is a step in the right direction.
I agree with you on the suspension of federal licences. It is a bit like using Section 215 of the Criminal Code on non-support. You can throw somebody into jail if he refuses to pay the alimony he owes, for example to his children. However, if you put a father into jail because he does not feed his children, if he is sentenced to three months in jail, he will not earn lots of money to feed them during that time. This provision has become almost obsolete in our law. It is not being used any more. Crown attorneys do not want to bring charges under Section 215, and rightly so.
I wonder if withdrawing the licences that one needs to earn a living will not simply have the perverse consequence of preventing garnishment of wages. It is better to let somebody work and to garnish the earnings at the source. I believe this is your recommendation, if I understood correctly, and I agree with it.
This was more in the line of an editorial comment, but if you have anything to add, I would be glad to hear it.
Ms Watts: We should not lose sight of the fact that a divorce is a tragedy and that all the persons involved suffer from it. Prevention is very important. One of the suggestions we have been making for a long time in order to help Canadian couples is to have compulsory marriage preparation courses in schools and churches.
There should be a support network for endangered couples, including affordable counselling services. These services should be tax-deductible or funded by the government. These are suggestions we already made ten years ago.
.1010
It is often better to go to the source of a problem. Here, we are trying to deal with the consequences of the tragedy of divorce. It is complex. We come out with our tables but this will not always improve the situation. We should do what we can to prevent it from arising.
Mr. Langlois: This will be my last question, Madam Chair. I will not come back on the second round.
I agree with you and want to thank you for sharing with us your expertise. We provide sex education courses in our schools. Very often, these are nothing more than genital manipulation courses. You cannot teach people how to love each other. In my view, the best way to show people how to love is through the family model where parents resolve their differences and conflicts, when they arise, not by coming to blows but through negotiation. It is the best possible way to pass on these values.
What models can society offer to these young people who do not have the ideal role model of a united family where parents live in a harmonious relationship? What alternative references do we have for young people who are placed in foster homes or given away for adoption and who move from one home to another? What emotional security can society provide to allow them to become adults who will not repeat those behaviours leading to marriage breakdown, generation after generation, and to social and behaviourial problems that very often result in crime?
I have many concerns in this regard. We pass legislation to counter the effects of these problems but we do not really deal with the causes.
Ms Watts: There is a kind of legislative neglect of the family. Our organization is aware of this. All social groups need to help the institution of family, whether it be governments, schools, churches, etc. If children do not have a role model, we can give them intellectual information. But we need to help the family in every possible way.
The pressures of excessive taxation do not help. This is all part of our recommendations and of our positions.
[English]
The Chair: Thanks, Mr. Langlois.
Mr. Ramsay, you have ten minutes.
Mr. Ramsay: Thank you, Madam Chair. I'd like to thank you ladies for being here today. It's good to see you here and it's good to hear from you.
On page 2 of your brief you raise the unfairness of the situation arising from joint custody. This weakness in the bill was identified yesterday by Professor Finnie, I believe, who presented this brief before the committee: ``Good Idea, Bad Execution: The Government's Child Support Package''. I mention this because there is support for what you say, in that the professor did identify the very point you made.
Inasmuch as this bill does not deal with the real problem of access, do you think this is the time to deal with the question of access and the problem that arises around that whole question?
Ms Watts: When a bill, any bill, fails to address an issue that is central and significant for the circumstances, that's a very strong weakness. We have addressed it because we feel it's important that it be addressed. There's an unfairness in not addressing it, in not even considering it, as if there is no such problem. It's been demonstrated that it's a very serious problem.
.1015
We could multiply the examples, and I think you've heard many already before this committee. We believe that in order to be fair and equitable to both parties, custodial and non-custodial, access is a strong consideration and it's a strong factor in the non-payment of support, so it has to be considered and we have to look at all of the factors when we amend the Divorce Act.
Mr. Ramsay: Do you have any information that you could provide the committee dealing with the percentage or number of cases where non-custodial parents are not meeting their payments, simply based upon the fact that their access to their children has been denied them by the custodial parent in the face of a court order demanding that they do so? Do you have any information in terms of figures or statistics?
Ms Watts: I could see if we do have them. I can't think of any right now. It's very difficult to determine. Not everybody exposes his motives when he doesn't do something. There are very strong emotional consequences of loss of wife and children and loss of access to a child. You enter into an area that can lead to illogical reactions and sometimes seemingly logical reaction of a parent. Again, this is the tragedy of divorce.
You can't identify everyone's feelings. But there are certain cases where the sadness is so great that it is involved in non-payment. But again as far as putting that statistically, all statistics are inadequate in a sense when we're dealing with emotions and family break-up. The family unit is essential. I believe it's essential to sanity, although it can be overcome. It's essential to a strong, healthy society. It's essential for even the function of a society. So when you have tragic breaks in a person's life you can have statistics, and I suppose there could be statistics, but do they really cover the situation? I mean, the problem is a consequence of easy divorce and I think we have to address the roots of it. If I find statistics, I will make them available to you.
Mr. Ramsay: I gather from what you have testified before this committee so far that if the access issue were dealt with in a successful manner it would reduce the number of situations and cases where the non-custodial parent is refusing to make payments. You feel that this is a motivating factor and cause?
Ms Watts: Yes...in some cases, and I don't think we have to pinpoint it directly. I think it's only common sense that it would reduce the non-payment.
Mr. Ramsay: That's at least a two-pronged situation, in that children benefit from access to both parents, and of course if it is justifying the refusal to pay support payments then it could be examined as well.
I'd like to turn to my last question to you. It is on the area of enforcement. You argue very persuasively to me, in my mind, about the catch-22 situation - that if non-custodial parents are not meeting their child support requirements and we simply strip them of their means to maintain their jobs and maintain employment then it's not going to help anyone.
It has been suggested here that perhaps we should look at imprisonment, a penalty of imprisonment, and it was pointed out by one of my honourable colleagues from the government side yesterday that inasmuch as the majority of these parents do not go about committing acts with criminal intent, this is designed basically to ensure that they meet their obligation to their children. If the parents faced a penalty in jail, if that were a club hanging over their heads, not many would end up in jail. They would simply meet their obligations because there was no real criminal intent not to pay. They're getting out from under it for various reasons - the hatred they might have for their spouse that blinds them to their love for their children and so on.
.1020
How do you feel about that? How do you feel about an amendment to this bill to include a penalty of imprisonment? It is touched on in the bill, but it has to do with licensing. How do you feel about an amendment to this bill to allow for a term of imprisonment for someone who wilfully and deliberately refuses to make support payments?
Ms Watts: We don't have a specific position on that, but it seems to me that a caring, compassionate and intelligent society should be able to find ways other than imprisoning a parent.
Mr. Ramsay: That's not quite my question. My question is this: from your viewpoint and your experience, do you feel that a possible prison term hanging over the head of a non-custodial parent with a court order requiring them to make monthly support payments would be an inducement for them to do so? That's one of the big issues, parents not meeting their support payments. Would that be an inducement from your point of view? Anything you'd like to offer the committee with regard to that would be welcome.
Ms Watts: First of all, I think you are dealing with a very small percentage of fathers. I think the majority of non-payment stems from inability to pay, especially aggravated by the difficult times of our society. It may help in extreme situations, but we have to be very careful before we pass legislation suited to the extreme situation that will apply to every situation.
Mr. Ramsay: Okay. Thank you, Madam Chair.
The Chair: Ms Clancy.
Ms Clancy: You say that with some temerity, Madam Chair. Thank you very much.
I would like to congratulate REAL Women. I have to say that in eight years in Parliament, I have never met a group more consistent than yours.
With regard to your presentation there are some glaring jurisdictional errors, but I know that my colleague, Ms Torsney, is going to ask you some questions regarding those. Perhaps I should saythey are misunderstandings, because you appear to share them with a third party. But as I said,Ms Torsney will look at that.
I wanted to deal with your comments about inflexibility. I don't know if you've looked at the section of the bill that talks about special or extraordinary expenses. After ten years of practising before the family courts in cases just like these, looking at the amounts listed in the Nova Scotia grid, I can tell you that not just the vast majority of my clients, but all of my clients would have been downright delighted to see that kind of money coming regularly from the non-custodial parent.
I can also tell you that your questions with regard to inflexibility are completely covered by proposed subsection 17(4.1). I remind you that there is judicial discretion. The guidelines are just that - they are guidelines. We don't appoint judges just to rubber-stamp. The reason for these guidelines is to set the stage, but we still assume - and, God willing, it will happen - that judges will exercise their discretion in the best interests of the child. This is the paramount interest in this act and acts like this. I'd like you to comment on that.
.1025
Before you do that, let me deal with a few other matters as well. Mr. Bellehumeur has gone, and the definition question in subclause 1(3) was probably not as much your problem as his.
I'm quite pleased you haven't, in spite of Mr. Ramsay's comments, gone heavily into the mediation aspect, given that - I am assuming - you agree that enforced mediation creates a very difficult situation for usually women, although it could be men as well, faced with a controlling and/or violent spouse, wherein an extended period of close contact is both unhealthy and untenable for the other party and the children.
You mentioned something about new spouses and the fact that the calculation included the new spouse's salary. That is not the case. Indeed, it only will come into play, as I understand it, if the payor is pleading undue hardship.
I'm reassured to see Justice officials nodding at me.
In other words, if you say you can't pay because of A, B and C, they then will look at the income of the other spouse. Effectively, the incomes set out in the grid are not as you have said. I'm sure you'll want to correct that in your brief.
The other point relates to the section in your brief entitled ``Access issue inherent in Support Payments''. My response to this, after fighting the family court wars - and I know the minister made this comment here the other day, although I don't necessarily expect you to agree with the minister - is that to tie custody and access to maintenance effectively ends up trafficking in human flesh. You're holding children hostage in that situation. I really can't believe REAL Women would want to fall into that trap.
I'll quote you in section 3:
- Moreover, there is no assurance that child support payments will be actually spent on the child.
In fact, in some cases, the support payments may be being used to provide an improved lifestyle
for the mother.
Thank you, Madam Chair.
Ms Watts: In terms of the best interests of the child, I don't think we should lose sight of the whole picture. The best interests of the child means an intact family.
Ms Clancy: Does that include an abusive family?
Ms Watts: Well, let me finish. We can get into that if you want to.
Ms Clancy: I do.
Ms Watts: That involves support from pro-family legislation, support from the community, support from its churches, support from schools. We have many societies working together in all this. Then we fall into situations of marriage breakdown. We have to look at that. I don't want to lose sight of the whole picture.
When I hear all the details of taking into consideration the child in the cases of separation and divorce, what I see is that you have there, in a sense, still a family. They're all separated, they're going through a crisis, but in a sense you still have a family. You have to consider that, and you have to consider all parties.
This is why we believe access should be considered. It seems there's an inequity in considering only the defaults of the non-custodial parent and not those of the custodial parent. So we are trying to reach a balance between the two, to not be one-sided.
As well, we don't use language like ``tie custody to access'' or ``trafficking in human flesh''.
.1030
The Chair: It was ``tying custody and access to maintenance'', not ``tying custody to access''.
Ms Clancy: Thank you, Madam Chair.
Ms Watts: What we're looking for is fairness and equality and broadminded views from all parties involved. No one lives in isolation, whether after a marriage or whatever. You still have a family in crisis there, even though legislatively they are separated. In many cases the child's mother is still his mother, the child's father is still his father, and they still have been married before.
This is a tragic situation. It's not a matter of trafficking; it's a matter of being fair. I imagine in some cases it could be viewed that way, but I think we try to rise above those attitudes and try to be fair to everyone involved.
With regard to the standard of living of the child, again, the committee has been told that everyone suffers financially in a divorce, and nobody gains. So again, the best standard of living for the child is an intact family. Maybe indirect aid to the intact family would solve more problems that wouldn't come down the line in these situations, which are becoming more and more complex the easier a divorce is to come by. The standard of living is tied to the custodial parent's situation as well as the non-custodial parent's situation. Splitting all this is....
Now, it applies to certain situations, but I think we have to look at the broad picture.
Ms Clancy: Ms Watts, I think I'm hearing a theme here. You used the phrase ``divorce easier to come by''. On the question of divorce itself, we now have in this country as easy a method as possible. What we're talking about here are corollary matters. These are the things that complicate divorce.
I can assure you that as a divorce lawyer nothing made me happier than when a client walked into my office and said they had no kids and a prenuptial agreement - no problem, dissolve the marriage. That was as easy as rolling off a log. There was very little emotional Sturm und Drang involved. We did it.
So it's the corollary matters that are the problem. Divorce is easy. Corollary matters are hard.
With the greatest of respect.... And I know I'm probably not one that your group thinks is terribly sympathetic to your group; you'd be right, but I want to be as fair as I can here. Are you not effectively looking at this whole situation through rose-coloured glasses? Do you think we are, in the evolution of legislation and indeed society, going to see people stop getting divorced? Do you really think abusive situations can effectively be healed in most cases? Do you really think this is just a time of crisis and eventually these people will come back to, if not loving each other, then treating each other with some dignity and respect? Because I have to tell you, Ms Watts, for most of us who have laboured in these fields, that is naïve to a point that is truly almost criminal.
Ms Sophie Joannon (Former Board Member, REAL Women of Canada): First of all, as a divorce lawyer you deal with the fallout of divorce. You don't deal with healthy families. Your view will be coloured by this as well.
Ms Clancy: This act is not to deal with healthy families, either. This act is to deal with the fallout.
Ms Joannon: Yes, but our ideal is still a society in which we support the healthy and intact family.
I want to respond to something else you said. You implied that it's usually abusive families, but this is not the majority of people who divorce. They do not do it for reasons of severe abuse. They do it because they are bored with their marriages. This is proven. I can supply you with some statistics that the majority of partners do not separate because of severe problems but because it's easy. Yes, it is easy.
Ms Clancy: Thank you.
The Chair: Thank you, Ms Clancy.
Mr. Langlois, you have five minutes.
[Translation]
Mr. Langlois: It is true, and I think you mentioned it earlier, that divorce is not a panacea. It might be a remedy, but in most cases, if not in every case, a new meaning has to be imparted to the broken-down family, which still remains a family, in my view.
.1035
There is still a father, a mother and children. There still exists a family, only with a different make-up. I have seen it often in my practice. When you ask these children what their family situation is, they answer yes, they have a family. They readily state that they still have a family. Even if their father does not live with their mother any more, in their mind they still have parents. It is more difficult to make the spouses understand that the family still exists. Children are often the pretext for a settling of accounts and they are the ones who pay. This is what the legislation must prevent.
But there is one thing that cannot be prevented, unless we borrow the policies of the Social Credit Party and start printing money. Usually, there is a decrease in the standard of living of the partners since economies of scale cease to be possible. A house for two people does not cost more than a house for one, even if you will be using more warm water for the bath, but it is more costly if each person takes his or her bath separately in a different place.
So there is a drop in income. People need to realize it. People would like the best of both worlds: stop living together, because they cannot get along any more, and also keep the same standard of living. It is impossible. You cannot have both. For a period of time, unless you can increase your income... Personally, I have had a lot of difficulty getting through to clients when I told them: "Do you think you will be better off afterwards?".
I am not talking about situations of abuse where you need to separate husband and wife as fast as possible before a murder occurs. However, there are cases where, for almost spurious reasons, for a trifle... We have somewhat trivialized divorce in Canada by making it too easy and because no mediation measures are undertaken beforehand.
In my own modest way, I may have saved several couples through mediation, by getting them to understand that their economic situation would be worse. I told them that for one month, two months, three months, they might feel terribly free, they would be able to go to bed with whomever they liked, they would get the impression of having found eternal youth, but that there would come a time where they would wake-up to reality. In some cases, they did not listen and they came back to me later saying that I may have been right.
But this unavoidable result of a marriage breakdown, which is often caused by financial hardship due to the lack of resources, I do not see how it can be avoided. I do not know if you see any way to avoid this net loss. We will protect children at the end of the line, but we cannot inject new money to confirm in the eyes of people that their marriage did not work. Alternative measures, preventive measures, are nowhere to be found. This is what is lacking in Bill C-41, in my view. There is nothing about prevention and education. There is nothing about it in the Divorce Act.
Ms Watts: Yes. As you say, we should tell people that there is always a loss. Maybe we should show them the tables so that they could see that, financially, the dissolution of marriage is always more difficult.
We should not forget that in Canada - we have this figure somewhere in our files - , after the liberalisation of 1968, the number of divorces increased by 500 per cent. After an increase of 500 per cent, one can always hope to see the figures come down. We can look at the figures. Is Bill C-41 going to make the numbers go up or down? We should continue to assess the situation to see if the numbers increase or decrease. It is important to look at the situation because we talk about it today, but tomorrow it will all be totally forgotten.
We have to be accountable for our decisions, for our legislation; it would therefore be important to keep regular statistics after this legislation takes effect throughout the country, in order to pin-point what goes wrong. When the rate of divorce climbs by 500 per cent, it is a tragedy. It is not just a statistic, it is a tragedy for the parents, for the children, and also for the grand-parents. No one ever mentions grand-parents.
In my experience, it is the generation of parents who are having this difficulty to live together. I think the younger generation finds it more and more difficult to bear with patience the problems that inevitably arise in any marriage. Quite often, it is the older generation, those people who have known the stability of marriage, who will help their grand-children. I see it myself. The middle generation seems incapable to keep the family together. It also seems that the older generation has better habits that they can transmit to their grand-children.
.1040
[English]
The Chair: Thank you, Mr. Langlois. Ms Torsney, five minutes.
Ms Torsney (Burlington): Starting at page 2, I note that you think things are going to get more complex with the guidelines. I wonder if you're aware how complex things are now by virtue of the fact that people have to go back to courts and to judges, whereas with increases of income now it would be an administrative procedure and it's not a very complicated procedure to make changes. If you suddenly get a doubling of your salary it will become easier to go and have the amounts changed.
I wanted to know, on page 4, if you have some statistics or some dollar figures to back up your comments about the expenses related to various ages of children. I was out buying a snowsuit recently with somebody. It was for a very young child and it seemed to be no less expensive than one for an older child.
On page 6, I want to draw attention to the fact that the reason we can't include the automatic deduction of support payments at source across all employees in Canada, or all employees of various businesses, as you note that some provinces have done, is because of course that's provincial jurisdiction. The thing we can control is the deduction from salaries of federal employees, and that's why it's in this bill, and from tax refunds, and it will be in the future employment insurance provisions.
At the federal level we cannot say that in this province you will do this. We can certainly work with the provinces and encourage them to do that, and I encourage your group to do that, but we cannot mandate it.
Down lower, I'm a little confused about your concern with the fact that should a father's occupation require he hold one of the federal operating licences listed in the bill such removal will render him unemployed and therefore unable to provide an income for his children. Too bad he never thought of that before, because if the consequences are that grave - and that's why it's included in here - maybe when that parent wilfully chose to neglect paying their support they would have thought of the consequences. So that's why this is a bit of a stick hanging over. It says you either pay or there will be serious consequences. The children of this country cannot wait for all these excuses that have been used over and over and over again to deny them support.
Lastly, I was a little confused when you said in response to Mr. Bellehumeur that guidelines could be used for the wrong reasons. I really didn't understand what that meant. I wonder if you could elaborate on that for me.
Ms Watts: Guidelines could be used to decrease custody payments. The judge, maybe under certain circumstances, would say the custodial parent should be receiving such and such and the non-custodial parent could say yes, but the guideline says this, and he could insist on following the guidelines.
Ms Torsney: The judge is in control of the situation. If the judge wants to award a larger settlement, the judge can do that. That's their prerogative. This is a guideline -
Ms Watts: He could use the guidelines to lever, and so could his lawyer, for a lower payment.
Ms Torsney: Nonetheless, if the judge wants a higher amount, the judge decides.
Ms Watts: Yes.
Ms Torsney: So I don't see how they could be used for the wrong reasons.
Ms Watts: They're used to lower the support payment to the custodial parent. They're used to attempt to lower. They may be successful, or they may not be successful. That's what we mean, that they could be misused.
Ms Torsney: I'm not sure. Since we haven't said judges must award this amount and not a nickel more, then it's a false argument. People can say anything they want. They can use any defence they want. But if a judge is in that courtroom and he or she decides the support payment will be that much, the other person could say all kinds of things, but that doesn't mean the judge has to agree with them. The judge is in control. This is a guideline, anything above.
I wonder if you have any comments on any of the other points I've raised.
Ms Watts: In regard the expenses of children, three teenagers are more expensive to feed and clothe than three young children.
Ms Torsney: Is it personal experience?
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Ms Watts: It's personal experience. A teenager takes adult-size shoes, and they're quite expensive and they wear them out. You have a lot more difficulty getting second-hand clothes for teenagers than you do getting second-hand clothes for babies and children because they grow out of them.
Ms Did you ever see a teenager eat?
Ms Torsney: Yes, I have actually, and I've been wearing adult-size shoes since I was about seven, but that's another issue. So anecdotes are fine, but they're not scientific. If you're going to make these kinds of statements I think you have to back them up, because a lot of work has been done in the last six years to try to figure out the various levels. You could argue anecdotally that adult shoes are more expensive. Try to price a pair of Reeboks for a little kid, even a three-year-old, now. They're almost as expensive and they whip through them like 90 because they're into the next size, they're growing so fast.
Frankly, in regard to the issue of used clothes, there are tons of locations all over the place now for used clothes for children, and teenagers can wear adult used clothes if they need to. There can be easier sharing among parents if that's what they want to do.
So I'm not sure that anecdotes are really relevant. I could match anecdote for anecdote if I wanted to. You really have to back this up with some facts. I think it's only appropriate if you're asking us to make changes based on age.
The Chair: Do you have any questions, Mr. Ramsay?
Mr. Ramsay: I'm a little bit confused. I would like to ask this of the members of our panel before us, or any member here, so that we could put it on the record with regard to the court being required to abide by the guidelines. Proposed subsection 15.1(3) says this:
- A court making an order under subsection (1) or an interim order under subsection (2) shall do
so in accordance with the applicable guidelines.
Mr. Ramsay: Yes, but how do you get around the ``shall'' in subsection (3)?
The Chair: Perhaps you should ask that of someone who has some experience in the law. You will have that opportunity after these witnesses. One of the best family lawyers in Canada is sitting in this room right now just champing at the bit, a graduate of the University of Windsor.
Mr. Ramsay: I'd like to make a comment that having raised four children, anyone who suggests to me that the cost to raise children under ten is not different from the cost to raise children after they get into their teens is not going to convince me, because I know the costs we went through in raising our children, and I'll tell you, as they get into the teens and their demands increase and so forth.... The cost is no different, I think, in my family from in any other family, and my wife frequents the garage sales and so on and picks up the second-hand clothing and the second-hand toys and so on. There's no question that as the children grow older the demand on the financial situation of the family increases.
So I simply leave that with you, if you want to make a comment on it. Anyone who suggests to me that there's no difference in the cost of providing for the needs of three-year-old compared to a fifteen-year-old or a sixteen-year-old is living on another planet.
Ms Joannon: Ms Torsney said that the Reeboks for a three-year-old cost the same as for teenagers. I said if you are foolish enough to buy Reeboks for a three-year-old, it's your stupidity and it's to impress your friends, not to impress the three-year-old.
The Chair: Thank you, REAL Women.
We'll rise now until 11 a.m. so that we can have a little break and our next witnesses will start. Thanks.
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.1104
The Chair: We're back, and yet again we have a University of Windsor graduate in front of this committee.
We're glad to have you, Carole.
Mr. Rideout (Moncton): Did you select the witness?
The Chair: I didn't have anything to do with this; I swear to God I didn't have anything to do with it.
I have to tell you that Carole is also a bencher of the Law Society of Upper Canada, one of the very first women to serve in that capacity. She's yet another very successful graduate of the University of Windsor. She's well known for her facility in the area of family law.
I'm really glad you're here, Carole, and I know everyone else is, too.
Ms Carole Curtis (Member, National Association of Women and the Law): I'm glad to be here. That was a very nice introduction. Thank you.
I'm here for NAWL, the National Association of Women and the Law. We've distributed a brief of our comments. I regret that it's as late as it is, but in my comments I'll try to highlight the important parts of it and take you through the places that particularly need attention.
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The National Association of Women and the Law has been around since the early 1970s. It is a non-profit organization with a mandate to lobby for changes that will benefit Canadian women. I'm also here because I'm a family law lawyer. I've practised for 18 years, exclusively in family law.
The Chair: Carole was in law school a long time before I was.
Ms Clancy: And only because Shaughnessy was still trying to get her grade 12.
Ms Curtis: Our paper is 10 pages long, but I'm going to start off by briefly talking about the four points that are the most significant, and then perhaps I'll go through the paper.
When this initiative began - and I must say that NAWL congratulates the federal government on this initiative - the federal-provincial-territorial committees working on family law recognized that child support was too low. It's very important and significant that the federal government responded to that and did something about it.
But the other side of the coin is that the purpose of these guidelines was to address the fact that child support is too low. If the guidelines do not accomplish the goal of getting more money into the hands of children's caregivers, they are a failure. This is one of the most significant reforms to family law ever. It's very important to stay on top of whether or not the reforms accomplish the goal they were set out for. That's our threshold concern.
The next concern of the four is that the special child-related expenses that are itemized in the guidelines for child care, like medically related and health-related expenses and educational expenses, are actually essentials as opposed to special expenses. They must be preserved.
The amounts shown in the guidelines for support for families that earn less than $40,000 a year, where the payer is earning less than $40,000 a year, are low. In fact, they're lower than the amounts currently being awarded in courts, not just in Toronto where I practise, but across the country. As a result, these areas will be even more important for those families. On that point we encourage you not to allow those expenses to be deleted in the amendment process or in the House in the passage of the bill.
The third significant point for NAWL is that the definition of income is too narrow. It's inappropriate for the calculation of child support and should be reconsidered. Different policy considerations apply to deductions that are permitted from income for the purposes of income tax calculations than those policy considerations that should apply to accountability of parents for the support of their children. Not only are there different policy considerations, but this definition of income is in fact a change from the current law and the current way child support is calculated now.
The final point of the four is that more money needs to be made available for the implementation of the guidelines. There are cutbacks to civil legal aid all across Canada. As a result, the right to go back to court to have child support adjusted, which is part of this process because both the guidelines and the changes to the Income Tax Act are deemed to be material changes in circumstances for the purposes of changing a previous order, is a hollow right for most women, who do not have access to lawyers.
Those are the big four. The paper deals with those four and others in more detail. I'm going to take you through some of the important ones.
There's a real concern with guidelines generally, in that they become not a ceiling for child support, but a floor. This has been an experience that has caused some concern in American jurisdictions. I think 47 of the 50 states have child support guidelines. The use of the special expense category as an additional amount on the guidelines will certainly help to prevent this ceiling problem. That's another reason why it's essential they stay.
There's a little confusion about the whole question of cost-of-living increases. Will cost-of-living increases continue to apply to child support? Cost-of-living clauses are very common in separation agreements. There are thousands of separation agreements out there with such clauses. Is the provision for requesting annual disclosure meant to replace cost-of-living adjustments? That isn't clear from the bill or the schedule.
The numbers in the schedule need to be revised on a regular basis. It's good that the federal government wants to look at this in four years and report back in five years, but that's too long for the children of Canada. The numbers should be revised annually, or at most, every two years.
.1110
I was very happy to hear comments in the earlier presentation about the cost of raising children of different ages. One of the problems with a grid like this is that it doesn't reflect the fact that raising children of different ages costs different amounts. I'll use a really brief example. Two fathers who each earn $40,000 a year are going to pay the same amount in child support even though one of them is supporting a three-year-old and the other one is supporting a fourteen-year-old.
NAWL has concern about the treatment of spousal support in the bill. Spousal support continues to be a very contentious issue in family law, far more contentious than child support. Notwithstanding recent case law in the Supreme Court of Canada, there are still many other factors that contribute to low awards of spousal support or no awards of spousal support, even in cases where it is appropriate and necessary.
There are some problems with giving child support a priority in the bill in the sense that it's already difficult to get spousal support, and this may make it more difficult or even impossible. We've made a specific recommendation - the recommendations are at the back of our package - that section 15(3) of the Divorce Act, clause 2 of the bill, be amended to make it clear that despite the priority given to child support in the bill the courts shall consider the need for and the entitlement to spousal support, as already set out in the Divorce Act.
NAWL is also concerned about the 15-month timeframe involved in the introduction of this package. From February 1996 to May 1997 is very long. It becomes a negotiating tool for lawyers and makes settlement very hard. At this point, which is about six months into the process, all I can say is that you must move fast and get this over with for the sake of everybody who's trying to settle cases.
This bill, the amendments and the schedule are going to produce a lot of variations and a lot of requests to courts to change orders. Those variations are going to come from three different client pools: women who have awards that are too low are going to come back to court; men who have awards that include income tax amounts that they feel are too high are going to come back to court; and, perhaps the biggest pool of all, provincial and municipal governments that have a huge pool on their books of awards in favour of welfare and family benefits recipients will also come back to court. Many of those awards are extremely low, like $25 a week or $50 a week, and are well below the guidelines.
As a result, there is going to be an increase in demand for court time to change not only divorce orders, but other family law orders in any province that adopts guidelines, whether it adopts its own guidelines or the federal guidelines.
The right to go to court and seek a variation is not the same as the ability to do so. We're in a situation right now where the cutbacks to civil legal aid across the country have made this right basically non-existent. NAWL urges the federal government to spend appropriate amounts of money on the implementation of the guidelines. Just so you're very clear about that, let me say that $50 million for ten provinces and two territories over five years is not enough money to accomplish this task.
The objectives of the guidelines set out in the working draft should be amended in two ways. The first stated objective of the guidelines should be to ensure a level of support that meets the basic needs of children. This sounds pretty reasonable but it isn't clear from the objectives. This is necessary to provide a framework for judges and for lawyers, not only for lawyers who are arguing these cases in court, but for lawyers who are negotiating. It is also necessary to provide a framework for couples who are sitting at their kitchen tables trying to work it out. What's the goal of this exercise?
The other amendment we're suggesting is to clause 1(d) of the guideline objectives, that the present goal is ``to ensure consistent treatment of support-paying spouses who are in similar circumstances.'' Frankly, that should not be the goal. The goal should be to ensure consistent treatment of children who are in similar circumstances.
I want to deal briefly with the special expenses portion of the working draft of the guidelines. NAWL is concerned that the use of the words ``special or extraordinary expenses'' to describe these categories is in fact misleading and inaccurate. These are categories that will be relied on widely, and they ought to be mandatory or presumptive. If you just look at those five categories, it would actually be a rare family in which none of those categories would be relevant.
The special expenses provision is necessary in the guidelines to create fairness. Unless these expenses are recognized, custodial parents will either unfairly bear the burden of major expenses or they will forgo other necessary expenses to cover these items.
.1115
Perhaps I could talk a little bit about where the guidelines came from. I'm not going to go into detail about it, but there is a false impression out there that the guidelines were actually designed to produce the complete or average cost of raising children and that those numbers therefore should be fine by themselves.
In fact the guidelines are not a precise estimate of the average cost of raising children. They are a kind of limited tool that was designed to provide rough comparisons of the relative well-being of households with different incomes and compositions. This is set out on pages 3 and 4 of our paper in a lot more detail. It is a little technical and I'm not going to spend time this morning going into it. But it is a very strong reason to ensure that the special expense category continues. Otherwise, if you're unfamiliar with the cost of raising children, it's very tempting to look at the numbers on the grid and think that's what the cost of raising children is. That's not in fact where the guidelines came from.
I saw that the undue hardship category in the working draft was also the subject of some comment and discussion this morning. Although it may be necessary to provide for some discretion from the automatic application of guidelines, it's not at all appropriate that debts be given priority ahead of responsibility to children. It's not appropriate because it's far too easy to fit yourself into that category. Debts are something that every couple - and every separating couple - has. Children should come ahead of debts. There's no question about that.
If this category is kept it should be structured to ensure that the court is authorized to use its discretion to order a fixed time limit for the repayment of debt and to ensure that at the expiration of the time limit the proper amount of support for the children returns.
We're also concerned about the use of the standard-of-living calculation. It should be mandatory except in exceptional circumstances. We're concerned that a more permissive approach will result in inconsistencies.
Also, priority must be given to the payer's first family. It's always difficult to think that you're choosing between children. Children are innocent in the decision of their parents to re-partner and have more children or to re-partner and support children from a second or third relationship. But it is clear from several different things that Canadian payers are all too often abandoning their responsibilities towards their first children. It's clear from the existing level of support arrears in the country. In Ontario, arrears are about $900 million right now, about half of which are owed to municipal and provincial governments for welfare and family benefits recipients. And it is also clear from the numbers of children living in poverty.
We're just talking about some sort of basic moral approach to the way you conduct your life: you have responsibilities to your first family that the assumption of second and third families ought not to diminish. In other words, the first children should not be subsidizing the decisions that the adult makes with respect to second and third families.
In terms of what to allow courts to take into account in determining undue hardship, the question of legal obligations or court orders that the payer might have is not a bad analysis. But many court orders for support are unpaid, and it ought to be clear that courts should only take into account these previous orders to the extent that they're being paid, not to the extent of the order if the order is not being paid. Again, we've set this out in some detail in the paper.
The undue hardship test and the standard of living threshold are important policy choices on the part of the federal government and we generally support them. They allow deviations from the grid, but they are deviations that are based on a full picture of the resources available in both households, which is in many ways a significant shift from the current law and a much better test than is used in many American jurisdictions.
I want to deal briefly with the definition of income. I mentioned earlier that it is one of our biggest areas of concern. We've dealt with it on pages 6 and 7 of the brief.
As for the policy decisions on what you're allowed to deduct as business expenses, these deductions are dramatically different from what you should be allowed to deduct for purposes of determining child support. Right now you can deduct business lunches, conventions, and courses held in lush resorts. Why that money would not be considered to be available to a family for child support is confusing, to say the least. It is also a significant change from the current law. It is probably the most significant change from the current law that exists in the bill or in the guidelines.
.1120
The obligation to provide financial information and the mandatory disclosure provisions are generally to be applauded. Financial disclosure is absolutely essential to equitable settlement and litigation. The remedies that are set out are comprehensive and appropriate and we generally support them, but there is a concern about the continuing obligation to provide financial information and how that's going to be accomplished.
NAWL is urging you to find a way to amend the guidelines to introduce a simple administrative mechanism for the requesting and providing of this information through a third party so that spouses are not tied to long-term contact with each other to do this.
The philosophy of family law in Canada generally is the ``clean break'' theory, which is that we should get on with our lives following the end of our marriage, notwithstanding our financial obligations to our children. This kind of continuing contact is the opposite of that theory. It also would be very difficult for assaulted women to have to have continuing contact with their husbands. In many provinces, the support enforcement program might be a way to do this, or even the courts might be a way to do this on an administrative basis.
Again, we make a comment on page 7 about the fact that children should not have to wait five years for the numbers to be re-examined. It's not just a question of re-examining the numbers and guidelines; it's comparing the awards that are being made to previous awards. In other words, these are the awards made before the implementation of the guidelines and awards made to the basic costs of caring for children. This is just to ensure that the guidelines are accomplishing the goal set out by the federal-provincial-territorial task force when it first started looking into this.
That's basically a fly-through on the paper. I'm going to ask Judy Poulin from SCOPE to talk about enforcement.
Ms Judy Poulin (Support for Children - an Organization for Public Education): This is a hard act to follow, so bear with me.
I'm a mother of three children, and I've been involved in the business of collecting child support for about 14 years. I still have a few more to go, unfortunately.
SCOPE was formed about six years ago out of the frustration that I personally had with the collection of child support in Ontario. My ex-husband is self-employed. So I've been through the gamut, and I got to the point where it was suggested to me that an organization needed to be put together basically of women in the same situation.
That's what happened. Here in Ottawa, we got a group together. We've basically been following the instigation of these child support guidelines over the years. This is one of the things we found. Obviously, our forte is enforcement, because without enforcement, the guidelines mean nothing.
I think a question has been raised. I've been sitting in on a few of the other presentations. The big question is why is enforcement such a problem in our country? I would suggest to you that the reason is because we have let it be a problem. We have allowed non-custodial parents to get away with not paying their child support.
I often compare drinking and driving. What happened with drinking and driving? Until the government took a stand and put out a big public awareness campaign and started getting very tough on drunk drivers, a lot of people would have a drink and then drive. I think that because of this and because of the stand that was taken, people started to think twice about it. I believe that if this government took a stand and started to become much tougher on defaulters, then you would see a change.
The steps to strengthen the enforcement that are laid out in this bill are good, but I don't believe they go far enough. I know you've heard from other presenters who say that a stronger stand needs to be taken. I think someone suggested that it should be a criminal offence. SCOPE agrees with making any kind of changes to make the enforcement stronger.
I think a national enforcement system is called for here. If every province was doing the same type of enforcement, something that the federal government could initiate, I think it would make a big difference to our children. I think we would see the default rate decrease.
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That's it. Are there any questions?
The Chair: Thank you.
Ms Curtis: On the enforcement issue, the only thing that I would add is this. Notwithstanding that enforcement is a provincial area, the federal government could easily set and insist on enforcement standards that the provinces would have to meet.
Right now, we have a situation in which children in British Columbia may not be entitled to enforce the support order in the same way that children in Ontario, or Nova Scotia can, and that's impossible to justify.
The Chair: Do you know if the Uniform Law Conference of Canada has ever addressed that?
Ms Curtis: I don't know.
Mr. Ramsay: I'd like to thank our witnesses for their presentation. I appreciate it very much. I heard a lot of common sense coming from this presentation.
I have some concerns about some areas. Nevertheless, you pointed out that the cost to maintain a three-year-old is different from the cost to maintain a fifteen-year-old. Having had three-year-olds and fifteen-year-olds, I know exactly what you're saying, and I support that.
You indicate in your brief that the purpose of the guidelines is to increase the amount of support paid to the children. Of course we're all interested in ensuring that children have adequate support. I wonder if you're aware - it's been pointed out to us quite accurately and clearly - that the courts need not be bound by the guidelines.
Do you have the document ``A Working Draft of the Federal Child Support Guidelines''? The courts don't have to be bound by those guidelines. Under clause 12(2) it states:
- In determining whether the arrangements are reasonable, the court shall have regard to these
Guidelines. However, the court shall not consider the arrangements to be unreasonable solely
because the amount of the support is not the same as the amount that would otherwise have been
determined in accordance with these Guidelines.
Ms Curtis: Yes. I guess I'm not as concerned about that as you are, because the truth is that in practice judges and lawyers jumped on the guidelines minutes after they were first released, even when they were in a working draft form almost two years ago.
Early in 1995, there was a grid released - it was a very low grid, I might add - and even from that point, people were attempting to argue that these were appropriate and should be used.
I think there's such a concern about child support generally that there will be a great deal of reliance on the guidelines. In fact, that's what NAWL is concerned about. They are the standard. They will be the standard for child support, provincially and federally. So notwithstanding that the legislation doesn't make them mandatory, it certainly makes them presumptive.
Mr. Ramsay: I agree with you. I think that a judge who receives a strong argument from both sides will fall back on the guidelines. I think that's kind of the easy way out for a judge or judges to follow.
Ms Curtis: Yes.
Mr. Ramsay: So I would share that.
Here's another point I want to ask you about. If we do see an increase in payment orders, do you think that will contribute to the number of delinquent non-custodial parents in meeting that requirement?
Ms Curtis: There are extensive data about defaulting parents. There are data from all of the common-law world: Canada, America, England, and Australia. The data are overwhelming that the ability to pay is not a factor in the large defaulting we see. In cases where the ability to pay is a factor, the defaulting parent has the option to go back to court and have the order reduced. Courts make those orders every day to reduce child support where genuine inability to pay exists.
What the data tell us, unfortunately, is that defaulting parents frequently make a conscious decision to prefer other obligations, for whatever reason. So it's hard for me to think that increasing the size of the payment orders will increase the default.
.1130
The default rate in Canada is an embarrassment now. Even though in my province we've had an enforcement program for ten years, on which millions of dollars are spent every year to enforce it, there still has been a very small improvement in the compliance rate. In Ontario, 75% of orders are in default. That's a national shame.
Mr. Ramsay: I would perhaps ask Judy this question, but both of you may comment on it. It has to do with the enforcement end of this. I wonder what you think about what one of our other witnesses has suggested here earlier, which is that we should perhaps, for at least the extreme cases, have a period of incarceration available in the enforcement end of it. In other words, send some of these guys to jail if that was hanging over their head.
What if they're able to pay? As Mr. Telegdi mentioned, F. Lee Bailey was in jail. The only thing he had to do to open the door of the jail was take $15 million over to the court, or whatever it was. I'm not going to stay in jail if all I have to do is open up my wallet and walk out. Would you agree, then, that perhaps this would enhance or reduce that 75% of non-payment?
Ms Curtis: It's available now, sir.
Mr. Ramsay: Yes, I know.
Ms Curtis: It's not something the federal government wants to do.
Mr. Ramsay: It's not being used.
Ms Curtis: It is being used. It's being used quite a bit. It's used extremely successfully. I can tell you that when defaulting dads are thrown in jail, for example, they pay, and they pay quickly, which proves that the ability-to-pay analysis is correct. These are people who can afford to pay.
For example, the cells in the provincial courthouse where I practise have a telephone in them. When defaulting dads are put in that jail, they are given access to a phone. Many of them make a phone call, write a cheque, and they're out that afternoon.
Mr. Ramsay: In spite of that, the high rate of defaulting in Ontario still reaches 75%.
Ms Curtis: Yes.
Mr. Ramsay: So perhaps this would not be a deterrent.
Ms Curtis: I guess the issue is that maybe it's not used enough.
Mr. Ramsay: Well, then that comes down to the question: should there be a clear indication within this statute, or relating statutes, that this penalty is there, it's easily accessible and it will be used?
Ms Curtis: It works for me. I agree with you. Judy?
Ms Poulin: I agree wholeheartedly. I think it needs to be used more. We have evidence right here from a family law lawyer telling us that when it is used, it works, so let's use it. It's a deterrent measure.
Mr. Ramsay: It's not in your -
Ms Curtis: No, it's not.
Mr. Ramsay: Would you consider putting it there?
Ms Curtis: Sure. Anything that will produce higher accountability toward our children should be something that everybody in the room wants.
Mr. Ramsay: I'm sorry, but I'm going to have to leave. I don't usually have to leave committee work, but there's an extraordinary meeting I have to attend.
If what you're saying is true - I accept it because you're saying it - that 75% are non-paying, and the majority of those can afford to pay, then perhaps we should be looking at a period of incarceration that's there and clear. If it was in this bill, it would be part of something that we could put forward as being new that would ring across the country.
Ms Curtis: Yes.
Mr. Ramsay: It would ring in the ears of some of these people.
Ms Curtis: Yes.
Mr. Ramsay: Would you make that recommendation?
Ms Curtis: Sure, in the amendments to the enforcement bill.
Mr. Ramsay: Okay. Thank you very much.
The Chair: Thanks, Mr. Ramsay. Ms Torsney wants a chance to clear her name on the issue of -
Ms Torsney: This is against the advice of some of my colleagues.
Mr. Rideout: Never admit you're wrong.
The Chair: She just wants to back up on a mistake she made, we think.
Ms Torsney: I'm actually disappointed to hear that it's not as administratively easy to change the orders as I had anticipated. I wonder why it is that you have to go back for a variance with those who are employed and who have clearly had raises. Did you guys push for it be an administrative function for the reporting? I know you mention it on -
Ms Curtis: Are you talking about the variation reported or the mandatory disclosure of information?
Ms Torsney: A little of both.
Ms Curtis: Okay.
Ms Torsney: If you disclose information, you should be able to get the variance on the fact that the person just had their salary doubled.
Ms Curtis: Right. I mean we have, unfortunately, a fairly complicated family law system, part of which has grown up in the last 25 years with legal aid.
Ms Torsney: Yes.
Ms Curtis: You know, legal aid existed in many provinces to provide for lawyers, and the system I think adjusted around it. So I will start off by saying that too much paper is required in our family law court system.
.1135
If we start from the premise that we can get this information disclosed, and the recipient finds out that she's not getting the right amount under the guidelines, it would be great if there was a simpler system, but that system would only be simple if the payer was going to agree to pay the guideline amounts on request. If the payer is not going to agree, then that's what courts are there for. We can try to simplify the court structure, which, as you know, is a provincial responsibility, but we are going to have litigation in those cases.
The other thing is this. What if she wants not just the guidelines, but three categories of additional expenses? That's definitely going to be litigated. That's not going to be something people easily agree on, particularly since that portion is not 100% the payer's responsibility. That portion is to be divided in proportion to the incomes of the two parties.
I think it's going to be hard to do these at the kitchen table, quite frankly, if you're looking at varying existing orders or at trying to keep existing orders current.
Ms Torsney: The other issue is apparently that, as you point out on page two about the different classes of children, obviously not every three-year-old is the same and not every fourteen-year-old is the same, which is why anecdotal evidence doesn't work. There could be different costs. There could be different child care costs on the lower end, and there could be different opportunities for older children to in fact supplement income by baby-sitting or whatever else. So they've come up with some average. It may not be enough. There may be differences between two three-year-olds and there may be fourteen-year-olds who cost less than three-year-olds in certain families, but I gather that it was done because it was administratively easier.
I'm wondering whether the special circumstances don't allow for that extra stuff that certain teenagers - some people would argue that it's all teenagers - need. Feeding boy teenagers is often difficult. Are you satisfied that the special circumstances could make the difference for those teenagers who, as lots of people would argue, cost more?
Ms Curtis: We're satisfied that allowing for the addition to the guidelines of additional amounts based on these categories would be appropriate and necessary. What we're not satisfied with is the fact that in our view it's going to happen in almost every family.
Ms Torsney: Right.
Ms Curtis: It's not going to be an extraordinary event or a special event. So from a lawyer's perspective, the use of the word ``extraordinary'' in this portion of the guidelines is concerning. That's a high test in law. When a judge is asked to interpret the word ``extraordinary'', they usually come up with a very high standard to meet that threshold.
In the paper we also talk about the whole notion of child care costs and the fact that in a certain percentage of families child care costs are free because a family member is providing it. Either it's a stay-at-home mother or a member of the extended family. So to some extent this inappropriately skewed, if you like, the base numbers on the grid, because it didn't get added in.
I'll be less fussy if the word ``extraordinary'' is be deleted, but I'll also be less fussy if the judges are prepared to interpret this on a case-by-case basis, looking at what the average family needs and what this family needs.
In the paper there's a place where we talk about the cost of teenagers. I'm glad to hear you talk about food. My clients also tell me that two-thirds of their hydro expenses are attributable to their children, as opposed to them.
The Chair: There are 40-hour showers, 50-hour blow dries, and boom boxes.
Ms Curtis: There are also electronics: hair dryer, stereo, computer and computer games. In fact, probably two-thirds is too low for the hydro expense.
There's a place where we talk about school uniforms, locker rentals, choir, band, driver education, and all the expenses associated with teenagers that really are not on the grid. They can't be on the grid. If you just look at those grid numbers, they are way too low to cover what a 13-year-old or 15-year-old is going to want in high school. This isn't talking about trips to Paris with the class; this is talking about the stuff that everybody wants.
So it's very important for these categories to be preserved. The committee ought to really look at whether the words ``extraordinary'' and ``special expenses'' are inappropriate for these categories and should be amended.
.1140
Ms Torsney: If you have suggestions specifically on that wording, that would be terrific. Joking aside, unless that covers medical and health-related expenses, health-related is feeding them. A 15-year-old boys eat a lot of food. I'm always astounded.
Ms Clancy: You've made your point, Paddy.
Ms Torsney: Would that be covered in there, or are the five categories too small or too specific?
Ms Curtis: The use of the categorization is not at fault, in our view.
What is the risky area is the use of the word ``extraordinary'' in both the title of section 4 and also in (b), (c) and (e), because it betokens a very high level.
Clearly, we're not talking about the day-to-day expenses. In (b) we're not talking about the three or six infections a year that the six-year-old gets, or the the penicillin. For health-related that's extraordinary, we're talking about something else.
Ms Torsney: Like foot braces.
Ms Curtis: Yes, that's a good one, or the consequences of a broken arm. What are the costs for that?
Ms Torsney: So then we don't have the coverage for those healthy eaters?
Ms Curtis: No. That's meant to be on the grid, and that's the problem with the grid. It doesn't cost you to feed your three-year-old what it costs you to feed your fifteen-year-old.
One of the real problems with family law, generally, is that we all think we know family law. We are all in families. Most of us are parents. We were all children at one time.
Ms Torsney: Some of us still are.
Ms Curtis: So we all look at family law from the perspective of our individual family experiences. It's impossible for us not to.
It has consequences, and for members of Parliament it has consequences for policy-making that affect the whole country. So I urge you to be wary of applying only your own experiences to these analyses.
Ms Torsney: Mother told me the school uniform cut costs for clothing.
I wanted to ask you a couple of things, Madam Poulin. First, when I asked the minister specifically about self-employed individuals, because that's where some real hiding of income can go on, he said a lot of things could be adjusted, could be deemed to be income in certain circumstances. I don't know if you heard that answer, or if it's something that can be addressed in the budget implementation legislation that's going to come up. Are you satisfied that would work in the best of circumstances?
Ms Poulin: The way we addressed the determination of income in the paper really explains it. We need to go further. They made some steps toward making it a little bit more difficult to hide income, but I think we have to go further than that.
I wanted to address your question on the variation. It's such an important issue because if people who are in existing orders can't vary their orders.... What we've done here is we've said the system we had in place wasn't working. Children weren't getting adequate support. So we have all these children out there who have inadequate orders. If we don't provide a mechanism for those orders to be changed, they're not going to help those children. Yes, they're going to help children in the future, but we have a lot of children who are there now.
The variation aspect needs to be looked at carefully to ensure that the children who have existing orders have the mechanism to go forward and to benefit by this change.
Ms Torsney: I was glad also to hear you talk about a public awareness campaign and to link it specifically with drinking and driving. If you hadn't talked about that kind of a drinking-and-driving model, I was going to offer that to you. This is exactly what we need.
One of the additional benefits is not just to those who have separated or who are about to. Somebody said maybe we should post these orders on the fridge and maybe people wouldn't want to get divorced in difficult circumstances.
Often it can be government bureaucracies or politicians themselves who are also part of the problem in that they haven't moved forward enough to recognize the importance of taking care of children. They are cutting back civil aid in various provinces, not realizing what that means for kids across the country who can't get adequate support.
Of course, national standards and a national enforcement agency are also going to have to come from the ground up. The provinces are probably not that interested in hearing from us right now on this. But if we could get more people aware of what's happening to children out there, and aware that children do have first call on getting support - and the first family has first call - that campaign would perhaps get some policy changes and some implementation changes on the enforcement right across the country that might get us where we want to get, not just for the individuals but for governments and government employees and politicians.
.1145
Ms Curtis: I'm sorry Mr. Ramsay wasn't able to stay to ask me his access questions, actually.
The Chair: Well, let's get him on the record.
Ms Curtis: I'm very sorry, because -
Ms Clancy: I could pretend.
Ms Torsney: Could you please answer Mr. Ramsay's access questions?
Ms Curtis: Thank you. That's great.
Conflicted or denied access is a very small part of family law, a very small part. It's generally resolved through the parties themselves or by negotiations through their solicitors. It's generally a by-product of a recent separation, as opposed to an older separation. It happens during negotiations of litigation during the first year or two after separation, until the family settles down into some kind of routine. It's nowhere near the problem that child support is, not in a court or in a lawyer's office or in the volume of the kind of work that comes across my desk every day.
There are, however, some high-conflict families out there for whom access will just never work. There's intense animosity. There are families that are seriously dysfunctional. This is a very small percentage of separating families, let's say 5% or less. They're obviously a vocal percentage, because they get the attention of the media and they clearly have the attention of some members of Parliament.
It's regrettable that there are families for whom access will never work, but it's a situation that is not solvable by the legal system. In a certain percentage of families it may in fact be unsolvable by any system. Lawyers call them ``hostility junkies''. It's a bit of a flip analysis, but that is in fact what has happened. You can't design a justice system to work around the minority or smaller problems. You need to design it for the majority.
Also, our experience and the empirical data about access tell us there's an assumption out there that where access diminishes, somehow the problem is with the custodial parent, that she's interfering or denying. In fact, the reality is that access parents don't necessarily exercise their access. In women's experience the major problem with access is that men do not always exercise it, or they exercise it erratically and unpredictably. Those data are from a Department of Justice study in 1988 by a gentleman named Richardson, and also from the federal-provincial-territorial family law committee report on custody and access.
Ms Torsney: Would mediation help in those circumstances?
Ms Curtis: In the very high conflict family?
Ms Torsney: If we forced it, yes.
Ms Curtis: ``Mandatory mediation'' is a oxymoron. There should never be mandatory mediation. You're not talking about a labour dispute, where you can put Mr. Hargrove and the president of GM in a fancy hotel for eight or ten consecutive days and they're going to resolve it. These spouses are people who had a very complicated relationship that was fraught with power imbalances. Women are not equal to their partners - they are not socialized to be equals to their partners - and they are not equalized to be their own advocate. In fact, women are very poor advocates for themselves. They are socialized to facilitate relationships, and that's in fact what they do.
The very-high-conflict families are among the most unsuitable for mediation, because those people have an agenda, and their agenda is not to agree to anything. Their agenda is to continue the war.
Mediation is very suitable in a limited group of families - I certainly use mediation in my practice for appropriate families - but it cannot be seen as any kind of satisfactory resolution across the board for separating families.
Ms Torsney: Ms Curtis, could I ask you one more question? I got the impression from one presentation that perhaps if this whole process were more difficult, or if divorce were more difficult, people would somehow not want to do it, and intact families.... I can honestly see where they're coming from in a couple of cases, but is there anything to the theory that if you make it more difficult...? Ireland, for instance, doesn't allow it, although they may have finally voted to change that now. But it still happens. Is it too easy? Are people just getting bored? Can we make this part of it difficult, to prevent people using the other part of it?
.1150
Ms Curtis: I think any government has to decide whether it is government policy to keep marriages together even for people who want to be apart and whether that's the policy the government wants to support.
If people didn't want to split up in the high numbers they do I wouldn't have a day job. Lawyers do not create these problems; lawyers try to solve them. We as a society have adjusted the family, whether we like that or not. Many people in families, intact families in particular, find it very threatening that the family is changing as a unit. It's not anything one person or one government can change. This is what's happening, and our laws need to change to reflect that.
It's already much too easy to get married and much too hard to get divorced. If you have any notions about making it harder to divorce, you will find the people you hurt the most are children and women. I think that's an outdated analysis, one not suited to 1996 and to what's happening.
Ms Torsney: How can we make it harder for people to get married?
An hon. member: That's provincial.
Ms Curtis: It is provincial.
Ms Torsney: Having dealt myself with the Young Offenders Act, I wish more people realized having children in the first place is a huge responsibility. But I won't give my parenting skills lecture here.
An hon. member: I would hope not.
Ms Curtis: One of the interesting things is that we now have a generation of children and young adults who grew up in separated and divorced families, unlike some of us or some of our generation who didn't. It would be very interesting to see what consequences that has for policy making and for laws. I know in teaching lawyers, in teaching the bar admission course, I find the law students who come from separated and divorced families have a different take on family law.
The Chair: I'm not surprised.
Are there any other questions? Mary.
Ms Clancy: Thank you. You may call me ``Mary''.
I have a very brief question on your go-around with Mr. Ramsay on imprisonment. My experience - and it's been eight years since I gratefully left the practice - was that frequently I had a situation where the judge and I were totally agreed that Buddy should be popped right to the correctional centre, and in almost every case my client would say to me, ``No, no, we can't put him in jail; we can't put him in jail'', not because she was afraid he wouldn't be able to pay - he hadn't been paying anyway, so that wasn't any big thing.... It relates exactly to what you said about women facilitating relationships. Would that be your experience too, with the idea of incarceration to enforce maintenance?
Ms Curtis: For sure. I think it's really a horrible circumstance in a family that things would be so desperate that the children's father would have to go to jail over this issue. In many families the children are told ``Mommy put me in jail'', which is a pretty outrageous situation, one many mothers are unwilling to be responsible for.
That's actually a very good reason to have the decision-making about enforcement taken out of the hands of the mother individually, just the way we have taken the decision-making about rape, sexual assault charges, and wife assault out of the hands of assaulted women. In provinces that have enforcement programs those decisions are made by the enforcement program and the support recipient is a witness at the hearing; she is not the driving force.
It is clearly a last resort in all cases and it is never used for payers who cannot afford to pay - never. That's not the context in which it is used.
Ms Clancy: Bravo! Thank you.
The Chair: Mr. Telegdi.
Mr. Telegdi (Waterloo): What I'm wondering about when I look at some of your recommendations.... I had a concern about this going back to a change in the legislation as to how taxes are paid for support. Let's take somebody who makes $40,000 a year, according to the guidelines. I would like to get from our officials - and maybe you can provide us with a few examples, if you would - what would really happen if somebody who makes $40,000 a year and has let us say three kids, as the supporting spouse, and is paying child support and also is paying the ex-spouse spousal support as well.... It would seem to me if you get divorced and you have kids and you're getting by now, what would probably end up happening is in many cases we'll have both sets of parents getting some kind of top-up from welfare, depending on which province you happen to live in.
.1155
I see that as a real problem - you identified it as a concern - that the people making less than $40,000 aren't paying enough support. In realistic numbers for what that estranged family has to cope with on all sides, it's very difficult. I think you really are looking at having more people on social assistance, and you have the spouses....
I wonder if you could provide or try to get this committee some of those figures from your particular experience, as someone involved in the field.
The other one is that a comment was made that emphasis should be placed on children of the first family versus, I guess, children of the second family or what have you. I have difficulty with that, because children are children, and whoever is at fault...really, it's not the child's fault, and it doesn't matter if they're the first family or the second family or the third, you're talking basically about the victims of marital break-up. I have difficulty with that.
I heard a horror story the other day. I have trouble understanding how that is possibly allowed to happen in Canada. Somebody making a good income has managed to abscond totally and leave a family in financial distress. It's totally black and white.
Ms Curtis: It's very common.
Mr. Telegdi: I really want to slam-dunk those. But once you get into where it's a family under stress.... And in many cases it may be not having enough money causes the break-up. Certainly if you have three kids and two parents, that's five people. They live a lot cheaper than one and four...or making allowances for child visits...or you need a better place. To me there's no question the unit at the lower-income scales loses a great deal. So the thought of maintaining the lifestyle we have become accustomed to is not realistic. Everybody loses, all the way down the line.
I think it's important to have this reflected. Sometimes unfortunately the basic needs just aren't met for anybody in the break-up.
Ms Curtis: For sure there are families, millions of them in Canada, for whom separating is a horrible financial crisis. There probably was barely enough money in this family to get by when the family was together, and separating and trying to keep two households on the same level of income is difficult.
I think it's particularly challenging for middle-class people to look at that family and understand how the family survives. I can tell you that from eighteen years of doing family law I am constantly amazed at how my clients survive, how they raise their children. They hold down jobs, they participate in Brownies or the PTA or whatever in their community. Notwithstanding very modest levels of income and small amounts of child support or no child support, they still get by.
.1200
There isn't a lot we can do for couples that didn't have enough support in their family to begin with. The family you were talking about that earned $40,000 a year from the husband, with maybe no outside income from the wife, would not be eligible for any government top-ups in Ontario. In fact, they wouldn't be in most provinces. That family is doing pretty good in most provinces at $40,000 a year, but that family will have a very tough time sharing that $40,000 when they separate, particularly if it has a woman who has been out of the paid workforce for twenty years or so. If she is in her forties, she's not very marketable. There aren't very many jobs out there, so her ability to bring more income into that family is going to be tough.
I don't know that there is a lot we can do in those cases. Lawyers from across Canada have said, however, that the numbers in the grid for families with incomes under $40,000 are too low. And they are lower than the amounts currently being awarded in courts even when you adjust for the income tax changes.
I'm agreeing with your concern about that, but I'm not able to offer a solution. I can only tell you that families do survive with low amounts of money. They make adjustments, they totally change their standard of living. Almost no family is able to maintain its standard of living when there is a separation. Only the very wealthy can maintain anything even close to the standard of living they had when they were all together. Frankly, that's what drove people to be in families to begin with - access to a higher standard of living.
The first family and second family one is also interesting. You have basically said the same thing that I have: children ought to be treated equally. The problem is that we're currently not treating them equally. When we allow subsequent families to be supported at a similar level to that of the first family, what we are doing is reducing the amount of money available to the first family, and the first family is subsidizing subsequent families. It is an incentive, if you like.... There's no disincentive to people, there's no sense of personal responsibility about whether or not someone can afford to have three more children. Instead, they go ahead and have three more children. We remarry or repartner, have three more children, and don't fuss about it because we know the court will reduce our obligations to our first family in order to ensure that the second family is supported.
This is not unlike Judy Poulin's comments about changing attitudes and the necessity of change. It is a personal morality issue, which is very difficult for governments to be involved in, but governments are involved in them all the time.
This is not a perfect solution. There was a paper written by Ontario Provincial Court Judge Wiseman about ten years ago. He started the paper off by saying that in his experience on the bench, he had found that fathers were willing to support the families they lived with, the children they lived with, whether they were their children or not. They were less willing to support the children they weren't living with. I thought that was very interesting, and probably the right analysis.
Mr. Telegdi: I used a $40,000 figure exactly for the reason you mentioned: it's basically going to be hard for them to get by.
I worked with dysfunctional families for quite a few years, and I have been involved in community mediation. We started it up, so I have a fair amount of casework experience in this area. As a matter of policy, I guess I'm wondering.... When you say basic need is basic need, take a person who makes $10,000 in order to work these figures through. It's very easy for that person to end up on welfare if that's all the money he or she makes.
A voice: Not in my city.
Mr. Telegdi: Well, you're pretty close to it.
Would it be a better policy from government to make sure that everybody goes and gets social assistance? Or, from a policy perspective, is it the case that it's better that the family gets social assistance and he or she can get by on what he or she earns, such as the case may be? From a policy perspective, it doesn't make sense to force more people onto social assistance because then you need workers. Right now, though, we don't have enough workers, we have too large a caseload, and there's a cutback on the whole thing.
I'm trying to grapple with some of those very real situations that I have seen arise. At that end of the scale, of course, the breadwinner is employed and then unemployed, and employed and then unemployed again. It's amazing how some people, as a family unit, manage to get by on incredibly very little. A divorce just totally wrecks any capability they have to be independent of government assistance.
.1205
Ms Curtis: Those are big policy questions for governments generally. When I think of somebody earning $10,000 a year, I also think of artists and writers. In our country, it is our cultural stars who earn $10,000 a year.
The amount that we show in the Ontario guidelines for one child is $103 per month for a payer who earns $10,000. That would be about $1,200 a year, which is a little over 10% of the income. It's a pretty modest amount the payer would be paying.
You're wondering whether or not we're better off not having that payer pay anything, whether or not that payer should pay zero. I think NAWL would be concerned about two things there. It would be concerned about the personal responsibility issue, the issue of accountability to your children. Also, surely in this era of declining government resources, any resources available should be tapped for the support of the children. So even with reducing the welfare family benefit amount by that $103 a month, governments would want to do that. I certainly know the government in my province would want to do that.
There are a lot of policy considerations. I'm just glad they're on your desk and not mine.
The Chair: Are there any other questions?
Thank you, Ms Curtis and Ms Poulin. We appreciate your participation. It's always good to see another face from Windsor.
We're adjourned.