"There is definitely a bias in favour of women getting custody of their children. As I said in my brief, at least three judges in my local circuit have said in no uncertain terms that they believe young children should be with their mothers."
Proceedings of the Standing Senate Committee on Social Affairs, Science and Technology
Issue 9 - Evidence
(Witness: Karen Selick)
OTTAWA, Tuesday, April 28, 1998
The Standing Senate Committee on Social Affairs, Science and Technology met this day at 10:00 a.m. to monitor the implementation and application of Chapter 1, to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act, the Garnishment, Attachment and Pension Diversion Act and the Canada Shipping Act, and the associated Federal Child Support Guidelines.
Senator Lowell Murray (Chairman) in the Chair.
The Chairman: Senators, I wish to remind you that tomorrow at 3:30 the committee will meet to conduct clause-by-clause study of Bill S-8, the bill sponsored by our former colleague, Senator Haidasz, to amend the Tobacco Act.
As well, after we have heard from our witness today, the committee will continue in camera to discuss future business of the committee.
Our witness this morning is Karen Selick, a lawyer in private practice with the Belleville, Ontario firm of Reynolds, O'Brien, Kline and Selick. Ms Selick is in family law practice. Over the years, she has written numerous articles on general, legal and family law matters. Ms Selick forwarded to us a brief, which has been distributed to members of the committee. I believe she will speak to that brief, after which we will open the floor for questions.
Welcome, Ms Selick. Please proceed.
Ms Karen Selick, Family Law Practitioner: Thank you very much for inviting me to appear before you today. I know that you have heard from many other witnesses on this matter, and I have had the opportunity to briefly review the transcripts of their evidence. Although I agree with many of the comments made by other witnesses, I will try to focus on things which I think are unique to my brief; as well, I will add a few comments that do not appear in the brief.
As you will know if you have read the brief, I have nothing good to say about these guidelines. I have two categories of criticisms, philosophical and practical, and each category has seven items. As well, in the introduction, I slipped in an additional criticism about the tax aspects of these changes. I have also come up with one additional criticism which I wish to add to the practical side.
I will highlight my concerns. The first one, which is probably the most important point I have raised in the brief, is that I believe the guidelines are unfair because they are built on an unfair base. This is an issue now being dealt with by the travelling joint committee. I refer to the whole issue of who gets custody. If you have read the brief, you will know that I believe the custody provisions of our law are quite unfair as they stand and that they are being implemented unfairly by the courts.
I have a reason for saying that, a reason that I have never heard anyone else express. When a child is killed in a car accident, it is quite clear that the parents have a right to sue the person responsible and to recover damages for the extreme loss they have suffered. They may receive many thousands of dollars in compensation. That does not, of course, compensate them for the loss of the child, but it is the best our legal system can do.
However, what happens to a parent who suffers the loss of a child through divorce? In many cases, if the custodial parent decides to move across the country, or decides to make it difficult for the access parent to obtain access, the non-custodial parent has suffered a loss that, while not as severe as the death of a child, is certainly a severe loss. That parent gets no compensation whatsoever for the loss of that child through divorce. In fact, what we actually do is we turn around and kick him in the teeth one more time by saying that not only do you lose your child, but you now have the privilege of paying money every month to the person who did this to you. That is why, in my brief, I recommended changing the custody laws.
In family law, in general, we say that when there is a marriage breakdown, the assets of the family should be equally divided. In most families, and certainly most of the clients I deal with, the most important asset they have, the most important thing that comes out of the marriage, is their children. It is not the house, it is not the RRSPs. However, when it comes time to divide things equally, we do not divide the children equally. We usually give the children to one parent only and we say "tough luck" to the other parent.
The law has always been clear that we treat access and support issues separately. It has always been absolutely clear from judgments that the fact that a parent is not getting access to his or her child is no reason to not pay support. However, in the average person's mind, those things are not disconnected. I do not think that the average person is foolish to draw a connection between those two things.
People generally believe that they support their children because they have a relationship with their children. They do not support the children down the block, because they do not have a relationship with those children -- and that is not a foolish position to take. I do not think our law has been fair to parents by severing the issues of access and support.
I wish to draw another comparison here. When a person gives up a child for adoption, that person loses his or her access to and contact with that child; one is also relieved of the obligation to support the child. There are many parents who lose their rights of access to children through divorce, yet they are not relieved of their obligation to pay support.
The next point I will turn to is the issue of standard of living comparisons. The problem with the guidelines is that standard of living is determined by looking at cash inflows. There are two problems with that method. The first is that it ignores the existence of capital. Capital can make a big difference to your standard of living; it will not be reflected by just measuring and comparing cash inflows. In my brief, I use the example of a divorced mother who inherits or is given a big, beautiful home by her parents. Her standard of living will certainly increase significantly by virtue of owing that home, but cash inflow alone will not reflect that increase. A simple comparison of cash inflows is not an accurate way of defining people's standards of living.
We run into the same sort of problem when we use the Statistics Canada low income cut-off lines to define poverty in this country. Many people end up being defined as poor who are senior citizens who actually own their own homes free and clear. Those people are actually living quite comfortably, but if the only variable used in defining poverty is cashflow, it appears as though they are poor.
The second problem with our definition of standard of living is that it ignores the contribution that leisure makes to standard of living. If I work 60 hours a week, for example, and I make much more money than someone who works 40 hours a week, is my standard of living higher? I suppose it depends on your values. If I do not have time, because I work 60 hours a week, to spend time with my children, I may not consider myself to have a high standard of living. On the other hand, if a person who earns less actually has time to do things with their children -- for example, take them to the park and to the library, and participate in arts and crafts activities, things that are not very expensive but are nonetheless very enjoyable -- one might well argue that that person has a higher standard of living than the person who is making a great deal of money but is always under tension and stress, and never has a moment to relax.
The next point I wish to deal with is the fact that these guidelines are implemented largely by regulation. If I am known for anything, I am known for my opposition to big government and to bureaucracy. To be frank, I was shocked to learn, as I said in that article which I attached to my brief, that when these guidelines were implemented they would all be done by regulation. An alternative would have been a parliamentary review every two years or five years; or the legislation could have a sunset clause. Left in the hands of the regulators, Canadians cannot really do anything about it. They cannot vote the bureaucrats out of office; they cannot vote the Senate out of office. They are left with no remedy. In my brief I compare the proposed method of implementation of the guidelines to passing Income Tax legislation that mandates that all Canadians will pay income tax in accordance with the regulations, and then leaving everyone to the mercy of the bureaucrats. I do not believe this is the way things should be done in this country, and I find the complacency of Canadians in being treated like this to be shocking and alarming.
My next point relates to the enforcement mechanisms. I have used the word "oppressive" in my brief. I believe that the possibility of denying passports to people who do not pay child support, or who are embroiled in disputes over the amount of their arrears, is oppressive. It harkens back to the situation in East Germany when people were not permitted to get across that wall. I do not believe that a country should prevent its citizens from leaving its borders unless a crime has been committed. This legislation does not make it a crime to fail to pay child support. Failure to pay is only a private, civil debt. If you wished to make it a crime, then the legislation would have to be changed and we would then have an opportunity to debate it in Parliament.
I wish to compare it to any other civil debt. If, as a lawyer, I go bankrupt and I do not pay my staff, my secretary's children will certainly suffer because I have reneged and failed to pay a civil debt. Should I be denied a passport for that? I do not believe so. I do not believe we are at the stage where we will be saying that. Child support is really just another civil debt. It is a bit much to have the state involved in punishing people in that way and denying them the right to leave the country for what is just a civil debt.
The next point is the issue of computer software. This is tied into the criticism that these guidelines are not simple -- and I believe a number of other witnesses have expressed the same view and I agree with them wholeheartedly. In fact, the guidelines are so difficult to implement that we have all been told, in effect, to go out and buy software programs to run these things.
I have not bought the commercial software. I have cobbled up my own computer template to use in my office. By doing that, I was forced to go through the guidelines in great detail. It was beneficial for me to spend the time doing so. The expectation that we must go out and buy computer programs to do this is, I think, offensive. What it really means is that the ordinary person cannot do this and must go to a lawyer. It also means that lawyers must buy software. In that regard, I was particularly annoyed by the fact that in all of the presentations that I have seen, both by the Law Society of Upper Canada to lawyers in Ontario and now in the government's official reference manual that it will distribute to anyone in Canada who needs one of these things, only one company's software is mentioned. In actual fact, three different companies, at least, have produced software for this. Barry Gardiner, a developer of one of the software packages, was a witness before this committee. He did not raise this issue but, frankly, I wonder how he feels having developed software which in my view is very good. His software, called "Child View," does an extremely good presentation of the results. I wonder how he feels, knowing that every person in Canada who will be dealing with these issues will be given a copy of the output of his competition's software.
I do not think the process was fair. It almost looks like an endorsement of one company's product over another.
I was even more alarmed to read Mr. Gardiner's comment that different computer software actually produces different results, because such varied interpretation is possible in these guidelines that the programmers cannot all produce the same results. So much for predictability and so much for treating people in like situations alike.
I should now like to address "add-ons", the extraordinary expenses, and the fact that they are supposed to be calculated net of tax relief. I recently received the government booklet telling us how we are supposed to calculate the tax relief on child care and medical expenses. I have two concerns on this. First, following the table in the booklet will result in approximate figures because the chart shows expenses in increments of $1,000 and parents' income in increments of $5,000. If you fall between an increment on the table, in respect of either expenses or income, you will be left with a rough guess of what the tax relief on the add-on will be.
My second concern with regard to add-ons relates to the situation when a parent is paying childcare expenses which they are not claiming for tax purposes. It is common today for parents to pay childcare expenses which the child caregiver does not report for tax purposes and, therefore, does not provide a receipt for. In this situation, there will be battles between the parents about whether, when calculating the add-on expense which the non-custodial parent is paying, the tax relief is supposed to be taken into account. The custodial parent will claim that he or she is not getting the tax relief, and the non-custodial parent will claim that they should be getting it and it is their problem if they are not.
A point came up recently in my office in connection with RRSP encashments. The guidelines start from total income on the T1 return. If you look at the components of total income, you will see that, if the person has cashed in RRSPs during the year, that RRSP encashment is included in total income. Of course, that is not really income the person has earned in the year. In fact, it is income which was earned in some previous year and no recognition was given to the fact that it was put into an RRSP in a previous year when support was calculated.
The RRSP encashment is included in income a second time, and the child support is calculated on this "bump-up" in income. I had a case where a gentleman cashed in about $40,000 worth of RRSPs in order to make a downpayment on a house. When we provided his tax return to opposing counsel, she leaped on that and saw it as a fabulous opportunity to apply the guidelines to that $40,000.
I raised this in a letter to the Department of Justice. The response was that there is a clause in the guidelines which says that when income includes a non-recurring amount, the court can apply its discretion to exclude that non-recurring amount and arrive at a reasonable amount of income. However, the application of that clause is discretionary. The reaction of opposing counsel in the example I gave was that they had a chance to go after the extra $40,000. Some judges may also take that view.
Clearly, that income was earned in a prior period and was included in calculating whatever support should have been paid in that prior period. If this couple separated recently, the other spouse probably received, through property equalization, a share of that RRSP money. This is a clear case in which the guidelines should be amended to remove any RRSP encashments which have been included in total income before considering the amount to which the guidelines should apply.
I should be happy to take questions.
Senator Cohen: Thank you for your presentation. You have given us a different perspective on many areas.
In your philosophical objections to the guidelines, you said that, "if the system was not broke, they shouldn't have fixed it." Many witnesses who have appeared before us have enthusiastically supported the idea of guidelines, even though they did not agree with every guideline.
Do you believe that the system needed any reform at all? If so, in what areas would you suggest reforms? Are you totally opposed to the idea of guidelines?
Ms Selick: The system is broken in a couple of ways which mainly relate to custody. However, I think I have dealt with that sufficiently, and I would rather deal with some of the other issues.
When I said that the system was not broken so why fix it, I was referring to the situation which existed in Belleville, where I practise law. We have a judge who formulated his own guideline. It was a very rough rule of thumb. It was used in Belleville and the surrounding counties on this judge's circuit. He used 1 per cent of the non-custodial parent's gross annual income as the monthly amount per child that parent would pay. He discussed this with the local family law bar and started to use it in his courtroom. We all knew this would be the guideline which applied. We were free to argue that, because a particular case had unusual circumstances, that rule of thumb should not be applied, but it did give us a ballpark to work with.
All the local lawyers were able to tell their clients what the judge was likely to rule in court and formulate a proposal along those lines. That system worked well, and it was very simple. We did not have to do the long calculations required by these guidelines.
The problem was that the rest of Ontario was not using that rule of thumb. However, I understand from that judge that he was getting a lot of feedback from other judges in the province who had heard that it was working well, and I think it was becoming much more widely adopted.
I do not know whether we needed formal guidelines. I am still of several minds about that. There are so many underlying problems and I do not think guidelines are the way to solve them.
Senator Cohen: You have said that the method which was used in your jurisdiction was an easier route for lawyers, but was it easier for the people to whom the guidelines applied?
Ms Selick: Yes, I think it was. We named this rule of thumb after the judge who developed it. It was called "the Byers Rule." People often ask me about the Byers Rule, the 1 per cent rule. People know what was going on.
Senator Ferretti Barth: Do you disagree completely with the guidelines? If you disagree in every respect, do you have any recommendations for us? I agree with your suggestion regarding passports. This should be the last item taken from a person. As you said, the person is not a criminal. Some crimes go unpunished and persons remain free to travel anywhere in the world. This is not a solution for persons who default on their child support. Do you agree that the child support system needed to be reformed? If so, what type of system would you advocate?
Ms Selick: The recommendation which I put in my brief is a very radical departure from what we have currently. I would like to see a default provision where, provided that a parent has not actually done serious harm to a child by assaulting the child, sexually abusing the child, or abandoning the child, the default position would be that both parents would be allowed to spend equal time with their children, and both parents would have joint custody of the children. That is the system I would like to see. In those circumstances, I would like to see that no support be paid by one side to the other for the children, specifically earmarked for the children. If the parents spend equal time with their children, they will each be providing for their children, as they have a moral and a legal obligation to do, during the time the children are with them.
I do believe there is some value in saying that the children have an opportunity to experience different standards of living. I do not agree with the idea that the standard of living in both households must be evened out. In the brief, I have given one reason for that. Effectively, you are saying that, in one household, the children cannot have luxuries because that money must be diverted towards providing a higher of standard of living in the other household. I do not support the idea of paying child support from one parent to the other. That is not to say that a parent might not have an obligation to pay support to the other parent, but I view that in a whole different light. I view that as an obligation which arises out of contract and breach of contract. If two people decide to get married, to live in a particular way, and then one person breaches the contract by committing adultery or by abandoning the family, then that person, as a matter of brea ch of contract, may owe support as damages to the other person. However, that would be the limit of what I feel is justified in terms of support. If there is just a mutual agreement to separate, then I would say neither person owes support to the other. If one parent has a lower income than the other, then the children, when they are with that parent, will experience a lower standard of living. That is what I would do on that point.
On the issue of passports, I am not sure that I actually followed the question about any recommendations.
Senator Ferretti Barth: In my view, taking away someone's passport as a last resort is barely acceptable. Do you have any evidence to suggest that anyone's passport was seized in an inappropriate manner?
Ms Selick: I do not know of any specific cases where passports have been inappropriately withdrawn, however, I think the notion of being able to deny a person a passport for this is inappropriate. I do not know of any specific cases where it has happened. I just worry about the idea that we are even thinking of denying people passports for this kind of civil debt.
Senator Lavoie-Roux: On page 7 of your report, you seem to say that the application of the new guidelines will create more violence between couples. Do you have any facts to support this?
Ms Selick: I hear people say things that shock me these days when I tell them what the guidelines say will happen to them. People tell me that if it gets that bad they will leave the country. I hear people make remarks, which they tell me are joking remarks, about being better off if "I bumped her off." I hear things like this and it concerns me.
Senator Lavoie-Roux: Have you heard remarks like that on a frequent basis?
Ms Selick: I have not heard them that frequently, but I have heard people making--I hope--joking remarks about being better of if so-and-so were dead. If it happens in my office, it must be happening in other lawyers' offices all across this country. The payers of support feel trapped. They do not get the tax reduction any more. They look at their incomes and they say, "My God, the government will take this much, and then she will take this much. What is left for me? Why should I be working this hard?" Many have said that they will leave the country. I have heard these comments more than once.
Senator Lavoie-Roux: I have not attended many of the meetings on this subject. Is this the first time the committee has heard that worry being expressed, that it might be conducive to more violence?
The Chairman: I have not heard that before in this committee.
Senator Lavoie-Roux: It is the first time. It is very serious.
Ms Selick: I believe that one of the group making a presentations last month talked about people threatening suicide. Suicide is another thing that I have heard people mention.
Senator Lavoie-Roux: Is that because they are not be able to meet the new obligations?
Ms Selick: It is not so much that they worry about not being able to meet their obligations; it is more a question of what is in it for them. Life seems very grey. "Here I am. I do not have my family any more, I do not have my children." In some cases they will not even be able to see their children very often because they have been moved to another town. "I work, I pay my taxes, I pay support for the spouse and the children. What does life have left for me?" Some of these people, when they look at their situations, are pretty unhappy, and I can understand why they feel that way.
Senator LeBreton: I read your presentation and I have listened to you this morning. I find a very strange bias here, and it is definitely against women. For instance, you just said, when you were talking about the possibility of murder and suicide, "better off if she were dead."In your opening remarks, you talked about "kick him in the teeth." Then you used an example of a mother who is being given a big, beautiful house by her parents, which is totally unrealistic. How many parents give to their daughters, who happen to be mothers in a custodial parent arrangement, big, beautiful houses and therefore alter the standard of living?
In your brief, the idea I found the most troubling of all was that it is not obviously the right way to go to take these guidelines and consider the children first. Then you go on to make a statement about children witnessing the justice system. "Boys can see that when they become men, the deck will be stacked against them in issues of custody and support. Girls can see that when they become women, the dice will be loaded in their favour. We should not be surprised if children grow up with a cynical view of the justice system."
You have put young women and young men in a stereotypical position; that young women are destined to be mothers, stay at home, somehow or other preparing themselves to bilk their husbands and the system. That is the impression I get from the tenor of your comments this morning. People have questioned the guidelines but they have not been as opposed to the guidelines as you have been. In my view, obviously the intent here is for people to make reasonable decisions in the interests of their children and have reasonable access.
For instance, on page 7, point number 7, "Extraordinary Access Costs," you put the whole onus on a woman if she happens to move away from her place of residence. You make comments that for "reasons of her own..." In this day and age, in many cases women earn more than their husbands. In reasonable cases, if it is properly done, people would come to a reasonable accommodation. I think that is the intent of the guidelines, imperfect as they are.
What is the gender breakdown of your clients? Do you have the breakdown of who is named the custodial parent more often, for Ontario and for your own district of Belleville.
Ms Selick: On the subject of inheriting or being given a big, beautiful house by a parent -- perhaps big and beautiful is an exaggeration -- I know of many cases where, after separation, both men and women were helped out by their parents. It often involves the grandparents providing a home for the mother and children to live in, which essentially changes their standard of living considerably. This is not being measured in the guidelines.
I am not biased against women. The comments in my brief have been couched in the male versus female on the understanding that they would of course apply in the opposite direction if the opposite were actually happening, but it is not. The vast majority of sole-custody families are mother-custody families.
All of my comments that are phrased with "he" should be read as "she" if the circumstances were different and the children were with the father instead of the mother. However, in the vast majority of broken families, the children are with the mother.
There is definitely a bias in favour of women getting custody of their children. As I said in my brief, at least three judges in my local circuit have said in no uncertain terms that they believe young children should be with their mothers.When I have done custody trials acting on behalf of men, how do you think those men feel about their chances? I do not think this is fair.
What percentage of my clientele are male and female? I have never asked and I have never counted. I have always avoided doing that count. Off the top of my head, probably more are female than male. Of the people who tend to act for themselves, probably a greater percentage of men do not bother to go to a lawyer. I get a typical cross-section of clients in my practice, and the percentage is probably slightly higher in the female category than the male category. I see that the people being treated unfairly these days are men.
Senator LeBreton: I do not necessarily believe there is a bias in our society, although I can cite where there have been examples of bias by the judiciary against men and women. However, it is a given, certainly in the cases of divorce and separation of which I am aware, that there is an agreed accommodation.
Men now take a much larger role in raising their families; however, in terms of coming to a custody agreement, most parents I know seem to agree that in terms of a custody arrangement the mother will best serve the children, in terms of schooling and care. It is not necessarily the courts or the state dictating this accommodation. It is an accommodation between two people that the children, in terms of their everyday living arrangements, go to the mother. That is not to say, however, that there are not a lot of fathers who could easily fulfil that role, because there are.
What upsets me is the tone, and raising the spectre of murder, suicide and fleeing the country. While you may hear of incidents like that, I would not want to see that become the overriding event. I believe these incidents are few and far between, and I hate to see that kind of language used in hearings such as this where we are attempting to deal with reasonable people coming to a reasonable solution in the interests of children.
The Chairman: Thank you very much, Ms Selick, for giving us the benefit of your experience and perspective on these issues.