[Recorded by Electronic Apparatus]
Tuesday, October 22, 1996
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[English]
The Chair: Order.
We're very happy to have a graduate of the University of Windsor with us. How is it that Windsor seems to be running the justice system in this country? It's the best kept secret, but sooner or later the good ones all seem to find their way to Windsor.
Silja Seppi is a barrister and solicitor, and chair of the family law committee of the Advocates' Society. We're here to discuss Bill C-41. I understand that you have a presentation from the Advocates' Society. We will then have lots of questions. Thank you and welcome.
Ms Silja Seppi (Barrister and Solicitor, Chair of the Family Law Committee, the Advocates' Society): Thank you. Good afternoon, bonjour, ladies and gentlemen, members of the Standing Committee on Justice and Legal Affairs.
I'm here representing the Advocates' Society, and in that regard I'd like to provide some introductory information on this particular association, which was established in Ontario in the 1960s. Since that time it has evolved into a professional association recognized throughout the legal profession for its successes in advocacy, education, and legal reforms.
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The members of the society practise as advocates in the courts, administrative tribunals, government and other forums for dispute resolution. The society includes members of large and small legal firms, as well as sole practitioners and barristers who work in government and industry.
Our membership represents every area of litigation from administrative, commercial and family law to entertainment and native rights law, and extends to all regions in the province of Ontario. The regular members are required to have been called to the Ontario bar at least five years prior to membership. There is also a significant intermediate membership of those who have been in the bar for less than five years, but intend to practice advocacy as their principal occupation. The membership also includes judicial members of advocates who have been appointed to the bench.
Included in the work of the society is an ongoing process in which the society maintains an active role in shaping the community of justice, and preserving and maintaining the rights of our clients, the public. Our society regularly submits papers and briefs to present our views and initiate needed reforms to the legal system.
The family law committee, which is the committee that is interested in this particular legislation, Bill C-41, is comprised of lawyers throughout Ontario all of whom have an active family law practice. The role of the Advocates' Society as an organization which promotes and speaks out on justice issues is pursued through the work of the committee on issues and concerns which particularly affect family law litigants.
I have prepared for you, on page 2 of my submission, a list of the current members of this committee. As you can see, they are from throughout the province of Ontario, and in almost all cases are lawyers who have significant experience in family law, and certainly have a large portion of their practice relating to family law.
The third item in the submission deals with the initiative of the family law committee on federal child support reform.
Following the release of the federal-provincial-territorial family law committee's report and recommendation on child support in January, 1995, the family law committee of the Advocates' Society prepared a written response which was submitted to the government in the spring of 1995. The overall thrust of our committee's concerns with regard to the proposals contained in the report were summarized in our response as follows:
The Advocates' Society has long endorsed the need for child support guidelines. Historically, child support awards have been inadequate, inconsistent and unpredictable. This has led to increased expense for litigants.
The Advocates' Society has also taken the position that the principles of certainty and predictability cannot override the principle of fairness. We, therefore, have opposed the adoption of a rigid formula for the determination of child support. Family circumstances can vary enormously. The extent of these variations are impossible to anticipate or encompass within a ``formula''. It is our experience that an unfair award can be a more difficult award to enforce. Consequently, we begin our comments on the report in question by making it clear that we support the adoption of child support guidelines - guidelines which can be departed from when necessary, when to follow them would be unfair or inequitable.
This continues to be our position. It is our expressed hope that with the introduction of the legislation, which now mandates the application of a child support order ``in accordance with the applicable guidelines'', the safeguard of judicial discretion in establishing parental obligations for the support of children is not eliminated.
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I wish to highlight some items of concern with the legislation.
First is extraordinary or special expenses for a child. These were identified in our first response as day care costs; major health related expenses not covered by an insurance plan; orthodontic expenses; private school fees; the cost of post-secondary education; the cost of special schooling, tutoring or counselling; and other unusual expenses associated with child care or education; and, in certain situations, any significant expenses associated with certain religious or cultural events.
We therefore support the provision in the guidelines that includes the categories of special child-related expenses that may be added to the schedule amount, where such expenses are reasonable and necessary in the light of the needs of the child and the means of the parent.
Second is costs of access. The formula as developed in the first report did not take into account the cost of access or the cost of a secondary home unless the non-custodial secondary parent is exercising access 40% of the time. The concern of our committee in regard to this recommendation, as expressed in our response, was twofold:
- (i) that to adopt such a rule would be to encourage custody litigation, i.e. that primary parents
would have as their agenda keeping the secondary parent's access restricted to under the 40%
mark so that their support would not be affected; secondary parents, on the other hand, would be
motivated to insist upon access above the 40% mark to reduce their child support obligation;
and
- (ii) the formula did not take into consideration costs involved in establishing the secondary
home of the access parent.
We support the aspect of flexibility and the elimination of a rigid standard of 40% access time. However, we continue to have concerns regarding the potential restricted application of the term ``undue hardship''.
Third is the undue hardship test. This aspect of the legislation, which limits the departure from the amounts required by the schedules in the guidelines to cases of ``undue hardship'', continues to be a concern. As stated in our second submission in response to the proposed amendments sent in January 1996,
- the ``undue hardship'' test for departing from the ``formula'' rather than the test of ``unfair or
inequitable'', severely restricts judicial discretion in ordering child support in an amount that
differs from the guidelines.
It is the collective experience of the Ontario bar that the courts very rarely depart from the ``formula'' of equalization where ``unconscionability'' is required rather than ``unfairness''. We anticipate that this will also occur in the applicability of the ``undue hardship'' test required for the departure from the guideline schedule of support.
Where the unpredictability of special circumstances affecting the determination of child support cannot be fully legislated, it continues to be of importance to allow judicial discretion as a remedy against potential unfairness. Our committee is concerned that the use of the words ``undue hardship'' will severely restrict and limit the application of judicial discretion in adjusting for circumstances that create an inherent unfairness by the application of the child support guidelines as mandated in Bill C-41.
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Bill C-41 itself, in particular the amended Divorce Act, proposed subsections 15.1(5) and 17(6.2), require that, one, the departure from the guidelines under the act can only occur in the event of special provisions in an order, judgment or written agreement made before this legislation that were made for the benefit of the child, and two, where the application of the guidelines would result in an amount of child support that is inequitable given those special provisions.
We believe such a legislative directive will also have the effect of restricting departure from guidelines to extremely limited situations. It does not address the concern of inherent potential unfairness arising from a mandatory application of guidelines, which is required in the legislation, nor in our view does the undue hardship test, which is in the guidelines.
In terms of significant disparities in income, this further area of concern by our committee in the original report submitted in 1995 was expressed as follows:
- It is our recommendation that the guidelines should provide that one reason to depart from the
guideline could be if there is a significant disparity between the incomes of the primary and
secondary parent. Not to take such a disparity into account could produce unfair results.
As an example of this problem, take the custodial parent earning $100,000 per annum who has two children in his or her primary care for about 60% or 65% of the time. The other parent, who has the children with him or her 35% or 40% of the time, earns $30,000 per annum. With the application of the guidelines, in a strict interpretation, the parent earning $30,000 per annum will be required to pay to the higher-earning parent the guideline amount for child support, which in Ontario, on a non-taxable basis, would be approximately $457 per month for two children.
In effect, this removes $457 every month from the secondary parent's household to the primary parent's household. This potentially results in an inequity and hardship for the children when they are with the secondary parent for such a significant period of time. That parent clearly will not be able to provide the same standard of living for the children when they are with him or her.
This in our view is contrary to the stated objectives of the legislation, which we understand is intended to provide for the responsibility for the financial support of children to be in proportion to the means of each parent.
Finally, there's enforcement of child support. Child support collection and enforcement, which is primarily the responsibility of provincial agencies, requires cooperation from the federal government to allow the tracing of defaulting support payers and in the garnishing of federal payments due to defaulting payers. The family law committee of the Advocates' Society supports the enactment of provisions designed to enable the effective enforcement of support obligations.
In most cases where support is payable either by court order or agreement, the quantum of support has been set having regard to the respective means and ability of the payer parent and the extent of the responsibility of this parent to his or her children. Financial statements are required by the courts and sworn evidence regarding financial ability is considered before orders are made.
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Accordingly, where a payer has defaulted in his or her support obligations, it is presumed that in most cases this is a deliberate default in which the parent is channelling his or her financial means to other sources, thus depriving the family of needed support. Enforcement of support orders is often not pursued by the recipient parent, as he or she cannot afford the legal costs of the enforcement procedures.
In Ontario the family support plan legislation and agency has been established to assist in collection of support without cost to the recipient parent. We therefore support federal government initiatives in providing tools that will enable the agency and recipient parents to collect and trace defaulting payers. On the other hand, the members of the family law committee of the Advocates' Society are in their experience aware of many situations in which child support arrears accrue due to unfortunate circumstances such as job loss. For this reason we stress the importance of maintaining safeguards to protect individuals from enforcement measures that may be automatically applied without giving the payer parent notice and a fair opportunity to demonstrate the mitigating circumstances of the default and obtain relief through a lowering of the support obligation to a level consistent with the reduced financial circumstances of the payer.
Most of the notice provisions in Bill C-41 appear to be fair and realistic but ought to be considered in the context of any submissions you may receive from organizations or individuals representing such debtor payers.
I'd like to depart from my text for one moment and draw to your attention one provision in Bill C-41 regarding enforcement measures that in my submission appears not to have the necessary safeguards to protect against arbitrary actions. This is proposed section 72 in part III, regarding licence denial with regard to the termination of the license denial application, which in the legislation is put entirely within the discretion of the provincial enforcement service - for example, for that provincial enforcement agency to decide that the debtor is ``unable to pay'' - this is in proposed subparagraph 72(1)(a)(iii) - or that the debtor is complying as per ``a payment plan that the provincial enforcement service considers reasonable'', from proposed subparagraph 72(1)(a)(ii).
I'd like to draw your attention to this potential problem because we have had problems in Ontario with our enforcement agency, the family support plan. Some of those have been of serious proportion such that payments have been lost in what they call ``computer glitches'', frequently resulting in unrecorded transactions.
These proposed sections appear to give a wide and unfettered discretion to government employees, which in my submission could result in arbitrary arrangements and decisions by civil servants from the point of view of both the recipient and the payer. This, coupled with proposed section 77, which exempts the government authorities from all liability arising from such actions, even if these are mistakes, as long as they can demonstrate good faith in the administration of licence suspension provisions could, in our submission, result in unchecked abuse of authority by overzealous government agencies. This could have serious repercussions if they do make a mistake.
It's not clear yet as to how the regulations will be established, but we do want to draw your attention to this, mainly from the point of view that the safeguard of due process needs to be preserved even in your enforcement provisions.
Those are my prepared submissions and introduction. I'd be pleased to answer any questions you may have.
The Chair: Thank you. Mr. Langlois.
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[Translation]
Mr. Langlois (Bellechasse): Thank you for your presentation, which was well prepared, researched and delivered. I share a number of concerns and comments you raised, such as special expenses and the undue hardship criteria. I prefer the references to the principle of justice or fairness, which are easier to detect and have a lower threshold.
On the other hand, what I do like about Bill C-41 is the method proposed to make it easier to track alimony defaulters and the fact that the amounts due will be paid. That is a very positive aspect.
As for the grids, I have mixed views on those. If they are too rigid, there will not be sufficiently leeway.
I practiced family law for a little over 20 years. I feel that grids are worth what they're worth. You know yourself that when divorce petitions are filed and the list of income and expenditures must be included, when adding up the total expenditures for children first for the petitioner and then for the respondent, the child probably needs approximately 235 or 238% of its usual expenses. Divorce therefore leads to impoverishment of the family unit.
I have always told my clients that they should not think they will get rich through a divorce. They will probably be bankrupt on two fronts: first, emotionally, and second, financially. The obvious exceptions are those where there was no other choice. By this I mean cases of family violence, where I think there should be zero tolerance. No one should suggest that people stay together when there is obvious physical abuse. Sometimes verbal abuse is more violent than a slap in the face. In such cases, it is best for the couple to separate.
The biggest shortcoming of Bill C-41, and perhaps of our overall approach, and this is not particularly related to the current government, are preventive measures.
To do anything in this country, you need a license or permit. Earlier on, we referred to drivers licences. You need a passport to go abroad, a work permit in one province and a work permit in another.
There are no mandatory marriage preparation courses. People can just decide to get married and do so. To get divorced, you do not have to go through mediation. Of course, under the 1985 Divorce Act, the attorney has to tell his clients about mediation services, but if his client takes him up on that offer, the attorney has just lost a client. If mediation is successful, there are no more legal proceedings. That is not very good.
I don't know what you think of the approach used by some American States to impose mandatory meetings with social workers or psychologists to determine whether an agreement can be reached. In those cases, there is a first meeting to determine whether the marriage itself can be saved, and not to discuss child custody. Saving a marriage - wherever possible, because sometimes it is not - , is the best thing you can do for the children. They end up with a stable couple who can resolve its differences.
We live in a society where overly simplified approaches are used too often and leave little room for compromise. One sees white and the other sees black. People have forgotten the meaning of compromise. Perhaps they should be reeducated. I would like to hear your comments on that. I made some general statements and I would like to hear your opinion on preliminary mandatory mediation.
Second, there will always be prosecutors who claim, probably, legitimately, that their case is unusual or special. It is similar to the situation that occurs when lawyers go before the court to try to have their case given priority before the chief justice. We always claim that our case is more urgent than that of the next lawyer and that he or she can wait.
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I am wondering whether the bill might simply result in the same level of court involvement. I am wondering whether we are not missing the objective, which is to remove family law issues from the courts so that children suffer less.
It is all very well for consenting adults to quarrel, but this is not true of little boys and girls who become teenagers, who are drop-ins or drop-outs, in other words children with problems who end up paying the price.
These are my general comments. I support your position on clause 77, namely that the liability of Crown agents should not be linked to the question of good or bad faith. People who make mistakes in the performance of their duties should be responsible for what they have done, whether they acted in good or bad faith, particularly if they acted in bad faith. Good faith is no excuse in this area.
I would like to hear what you think. If you have no comments, the Chair will probably give the floor to my colleague from Mission - Coquitlam.
[English]
Ms Seppi: Thank you. I apologize. I will answer in English.
As I understand it, you have a serious concern regarding aspects of the legislation - and perhaps more so, the practice of law as it relates to family law clients. Your concern relates to the fact that family law lawyers do not suggest frequently enough to their clients that perhaps they should attempt reconciliation, and failing this suggest to them they attempt to resolve their differences either by negotiation or mediation rather than litigation.
You've asked for my views on this. To preface my answer, I would point out that in Ontario, as I understand it, the government is going through a fairly extensive review of the whole civil litigation process. Mediation is being contemplated as a mandatory step prior to access to the courts, not only in general civil suits but also in family law cases where children are involved. Certainly mediation, if it works, is a preferable means of resolving both the issues of custody and support.
The only reservation I have with respect to mediation and family law is what we call the unequal bargaining power. You mentioned instances of violence in the family. To ask the couple to sit down together and solve the problem with the mediator might be impossible in certain situations. One spouse may feel totally overwhelmed and under the control of the other, although often a skilled mediator is able to diffuse this power imbalance.
To answer your question about reconciliation, naturally I would say this would be the best solution. But I think, as you noted in your practice of family law, by the time most parties come to their lawyer it is too late. We certainly have the obligation under the Divorce Act as it exists now before we commence the proceeding on behalf of our client to discuss with them opportunities for counselling and mediation and other methods of resolving disputes. Unfortunately, this is all we can do. I think as lawyers we have to then step away and say if you are unable to reconcile, do what can you do to resolve matters and then go to the court as a last resort.
On this same topic, I would say that when you consider these guidelines, they are not perfect. As I've indicated, there are concerns that there is perhaps too little judicial discretion left for special circumstances. But having some guidelines is still a step in the right direction, because in the past many cases ended up in court and in bitter, expensive battles.
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Currently, where we don't have guidelines, people are still uncertain as to what a judge might order for child support, and in some cases there seems to be a wide disparity of amounts. The lawyers had problems advising the client what child support might be because it would often depend upon the judge. I think the guidelines are a step in the right direction, both in terms of the consistency aspect, but also in terms of predictability. I understand the hope of the government as well in passing this legislation is that it will eliminate or at least reduce the number of child support cases going to court.
The Chair: Thank you.
Mrs. Jennings, you have ten minutes.
Mrs. Jennings (Mission - Coquitlam): Thank you.
Good afternoon. Your presentation was very clear and very well explained. I understand the Advocates' Society's position, from what has been reiterated throughout, involves the principle of fairness. You recognize there are many variations. I'm pleased to see you put this down, because I think this is what is being lost in some of the discussions with witnesses. There are many variations. Although Bill C-41 deals with arrears, there are variations even in arrears. As you pointed out, some arrears are intentional and some are not. You want to recognize the unfair awards make it difficult to enforce. I think this is where we as legislators should be very careful. In any type of legislation, we must first look at what is realistic and workable.
I have been saying this all day and it's something I am very committed to, because many of the members from my riding are in this particular situation. Unwittingly and probably unwillingly, they are for various reasons in a difficult financial position. They're not all scoundrels out there. I think we recognize there are some very bad examples. We've certainly heard about one this morning who is definitely a scoundrel needing some sort of enforcement like this and maybe even a stronger enforcement. But I think we have to recognize there are those on the other side.
Keeping this in mind, and from what you've said, are you familiar with the United Nations Convention on the Rights of the Child? It actually passed, ruling that a child has right of access to family. Although we didn't pass it in legislation in 1991 under the Mulroney government, we did accept this.
This is where I'm coming from. It is prevention. I'm very concerned, because my life has been spent with children. It is very important that children have an opportunity to be the best possible. I think, keeping this in mind, Alberta passed legislation including mandatory programs. This legislation just came into force in February of this year. They look at sitting down and discussing access and custody. If they don't, they may end up in a situation where you have guidelines set out, but they're not realistic. As we know, there are various standards of living and they'll change across the country the same way the country changes.
I suggest to you a couple of things. I know you're very familiar with the act and with the Bill C-41. I would like to see a couple of things done. I'd like to see included the needs of the child for whom the order is being made and the ability of the spouse against whom the order is being made. These amounts would be set out in the order. Then, of course, follow the guidelines.
I suggested this morning they take a look at ability to pay and the child's needs. I suggested it when we spoke with the minister. He did mention it is more than possible that if they couldn't agree to settle they would go to the guidelines. But, you see, this is not what the bill says. The bill specifically says the judge in both child and spousal award situations may look at agreements made between the parties, ability to pay and matters that would be of benefit to the children, but first go to the grid guidelines.
I'm suggesting we take a look at the bill. Look at the ability to settle and look at the ability to pay and the needs of the child first. If you have an unworkable solution, all you're doing is setting up hardships down the road. I think it is children we're concerned about as well as spouses.
Do you think it is important enough that we could include this in the bill, and that we take a look at those two items?
Also, we keep hearing one party may have control over the other when there is an agreement to settle. Yes, I agree this is a very real possibility and it has existed, but it is not always the case. I would venture to say it represents less than 50% of the cases. I would like to suggest we do some considerable thinking on this and maybe make some amendments that would be workable for both.
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Could you please comment on those two? Would you consider putting the needs of the child and ability to pay in there?
The Chair: Before the witness answers, could you point out where in this act it says that the court has to...? Could you give me the section?
Mrs. Jennings: Excuse me, Madam Chair. Clause 2 of the bill, which amends section 15 of the Divorce Act, recognizes that a judge in both child and spousal award situations...
The Chair: Clause 2, subsection - you're going to have to -
Mrs. Jennings: I'm sorry, but I don't have the subsection right in front of me.
The Chair: Clause 2 replaces section 15 of the act, so it says section 15... I just want the subsection. I'm not taking up your time; I've stopped the clock. I just want to make sure. I don't think I agree with your interpretation and I don't want to send the witness off on a tangent.
Mrs. Jennings: I'm sorry, but I couldn't give you the subsection right now. I'd have to go through all of my papers. But when I spoke to Minister Rock he acknowledged that it was in fact the case -
The Chair: Let's take a moment -
Mrs. Jennings: - and he did say -
The Chair: Let's take a moment to find the section. If you found it once, I'm sure you can find it again. Maybe you're talking about proposed subsection 15(1)(3).
Mrs. Jennings: Yes, I'm looking at proposed subsection 15(1)(5) right now.
The Chair: Proposed subsection 15(1)(3) reads:
- A court making an order under subsection (1) or an interim order under subsection (2) shall do
so in accordance with the applicable guidelines.
Ms Seppi: I think that's right. I think the legislation allows parties to make their own agreement. The court is not prevented in any way from confirming those kinds of consent orders.
The Chair: Yes, in the courts... At the end of it, if he has to make an order he has to consider the guidelines. Isn't that -
Ms Seppi: That's right. So he has to make it in accordance with the guidelines.
Mrs. Jennings: I suggested earlier that if the judge would first use the guidelines - because he's not forced to use the guidelines - because it's easier to use them... Because the opportunity of an appeal court and something like that is there, and nobody wants to be in an appeal court.
Ms Seppi: And I think I can answer your question in a general way. The legislation has already done this. In other words, you're saying to look at the needs of the child. That's what the case law has directed the courts to do in the past, but the legislation seems to say it's gone over the other way. Look at the ability of the payer to pay, and then, as I understand the background of the legislation from what the minister has explained and so on... In establishing these guidelines, the schedule amount, the government has done research and is satisfied that the percentages that will be applied relate to the needs of a family, depending on how many children they have.
The legislation doesn't say to look at the needs of the child, but as I understand it, the government is saying that the guidelines as to what the needs of the family are were established based on the research done. Certainly from our perspective in Ontario, there's no magic in the numbers. Some people would say they're too low and other people would say they're too high.
As I've indicated, the problem is that there is an absence of judicial discretion to adjust... It's almost undue hardship, yes, but I don't think the judges will use that very much, because they'll see it as sort of something out there where somebody's really down and out, and if they're not down and out, it's not undue hardship so they'll go by the guidelines. That is our concern. Those special circumstances that we as lawyers and you as legislators cannot possibly foresee might not be addressed because of the limited judicial discretion.
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We don't oppose the guidelines. I think the amounts have been researched to the best extent possible, and if there's also provision in here to review the legislation and its applicability within four or five years, that's good. But the discretionary aspect is missing. And I think that's what you're also concerned about, as I hear you.
Mrs. Jennings: Yes. I think it's very important that it is equitable and fair.
I'm also concerned about another item that's not mentioned in the bill, and that's access. Minister Rock actually felt it was a separate component and shouldn't be mentioned. What are your thoughts on that?
Ms Seppi: It is a separate component, but certainly access enforcement can be problematic. There's no legislation that really helps us that much, either provincially or federally.
Judges are very good about that. If you go to court to try to enforce or obtain an access order, in our experience in Ontario, judges are certainly very understanding of the importance of access, to the extent that it's almost a given that there must be access unless very unusual circumstances occur. But again, that requires people to go to court. I don't know how one can get away from it, certainly at this point.
Mrs. Jennings: We're finding across the country that there are very serious problems with access, very real problems. I can understand why it may not be included here, but it's still such a necessary problem that I hope we will take a look at it.
Ms Seppi: Right. It's in the Divorce Act. In my experience, judges are certainly making access orders and understand the importance of access. It's just the enforcement in situations where someone's being difficult that we don't have legislation for.
Mrs. Jennings: Thank you very much.
The Chair: Mr. DeVillers, did you have a question?
Mr. DeVillers (Simcoe North): Yes. Thank you, Madam Chair.
Just as a point of clarification, it is the Advocates' Society's position that it finds the proposed legislation too restrictive when it says judges can vary from the guidelines only in circumstances of undue hardship.
Ms Seppi: The concern is that the words ``undue hardship'' will result in judges very rarely departing from the guidelines, even in situations that might appear to anybody to be unfair. The judge is going to say ``Well, this might be unfair, but there's no undue hardship so I can't depart from the guidelines. The act says I must make the order in accordance with the guidelines unless there's undue hardship in this case. It might be unfair, but there's no undue hardship so I'm going to make the order.'' That's our concern.
Mr. DeVillers: Do you have a suggested alternative to that?
Ms Seppi: The wording could be either unfair, inherently unfair, inequitable, or unfair and inequitable. We believe those types of combinations would help the judge look at it more seriously in a situation that might be borderline but not necessarily undue hardship.
Mr. DeVillers: Okay. Another subject is the question of enforcement, where the bill proposes amendments that would have Revenue Canada release information obtained from taxpayers. Does the Advocates' Society have a position on the infringement of privacy, etc? Are there any concerns in that area?
Ms Seppi: At the present time, there are other agencies and government authorities that are required to release the information and provide the data bank necessary to locate defaulting payers, so we don't oppose adding Revenue Canada to those.
Mr. DeVillers: There's no major concern to add that. Okay. Thank you.
The Chair: Mr. Maloney.
Mr. Maloney (Erie): On balance, do you feel this legislation will reduce the amount of litigation necessary?
Ms Seppi: On balance, I think it will.
Mr Maloney: Is that a good thing?
Ms Seppi: Yes. I think the more people can settle their disputes in a less expensive way, with fewer costs involved in obtaining child support orders, the better it will be for the public, subject to what I've said.
Mr. Maloney: Getting back to what you've said, using terms such as ``inequitable'' or ``patently unfair'', something of this nature, is this the opening of a door, which will then provide more initiatives for litigation?
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Ms Seppi: Well, yes and no. People who want to litigate will litigate undue hardship. In other words, they'll be coming before the court and there'll be a period of adjustment, usually, with the new legislation, where people are going to be trying to establish there's undue hardship. In some cases there will be situations where the departure from the guidelines should occur and it won't because the judge will feel limited. In other cases the departure shouldn't occur and the judge will quite rightly say this is something that should not be a change from the guidelines.
So I'm not sure. Perhaps there will be more people who might think their case is more likely to be considered a departure if the word is ``unfair'', but we're coming at it from the point of view of not eliminating judicial discretion in cases where it's needed. When you're drafting and passing legislation, you cannot possibly foresee every situation of unfairness that might come before a judge. We don't want to be a position of putting judges in a situation where they cannot depart from the guidelines in cases where they should, to be fair and equitable.
Mr. Maloney: We have suggested schedules here for different problems and levels.
Ms Seppi: Right.
Mr. Maloney: Do you have any concerns that a schedule applies to a specific province willy-nilly, without necessarily looking at rural and small-town Canada as opposed to urban Toronto? Do you have any concerns about the cost of living in urban centres versus small communities?
Ms Seppi: There is some concern there, but as I understand it - and we do accept the answer to that - it's based on the payer spouse's income. So if you're living in small-town Ontario and earning $100,000 and you're living in big-town Toronto and earning the same amount of money, you're required to provide the same amount of support for your children, which I guess will then be used as people live in those communities.
It would become, I think, cumbersome if we started to provide guidelines based on the number of people who live in a community. We understand why it has been done as it has been, but certainly there might be situations where the order might be too high or too low. But because it's based on the income of the payer, I guess that's intended to balance that concern.
Mr. Maloney: In your presentation, about access, you made reference to your concern about the 40% mark. In your practice, how often do non-custodial parents exercise access in excess of or even close to 40%?
Ms Seppi: Not that often; maybe 25% of the time, maybe less. It depends. As younger people are divorcing, it seems to be more common that there's more parental time with the children by both parents and they seek to have more time regardless of whether they're to be the custodial parent or the access parent or it's a joint custody situation. That may be the result of more working mothers and more involvement from fathers in the parental role.
The Chair: Mr. Bellehumeur.
[Translation]
Mr. Bellehumeur (Berthier - Montcalm): My first question is about the draft of the federal government's guidelines.
The document states that the table to be used shall be the one of the province in which the non-custodial parent lives. If there is a contradiction between the Quebec table and the table of the province of residence of the individual, the table of the province of residence of the non-custodial parent will be used. Do you follow me?
[English]
Ms Seppi: There is a difference among the provinces, I understand, yes.
[Translation]
Mr. Bellehumeur: Yes, yes.
If there is a difference between the two provinces, the federal government will use the table of the province in which the non-custodial parent lives.
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I think the table of the province in which the child lives should be used. What is your opinion? Which table should be used if there is a conflict: the table of the province in which the child lives, who is after all the person who will benefit from the support, or the table of the province of the non-custodial parent.
[English]
Ms Seppi: As I understand it, the grid has been established taking into account the various differences in the tax structures of the provinces and other factors that relate to the payer's income and earnings.
I understand your thinking in saying that the child should receive support in accordance with what other children are receiving in his or her province, from his or her father or mother, depending on who's paying support.
If I were asked to choose, which I understand you are asking me -
[Translation]
Mr. Bellehumeur: Yes.
[English]
Ms Seppi: - and again, I haven't discussed it with members of our committee and you're really asking my view - based on my practice in family law and my understanding of this legislation, I would say that the way it's done is the consistent way in the sense that it seems that this whole scheme of guidelines is based on the payer's income.
Again, similar to the question from the other honourable member regarding the small town versus large city question, this departure from the scheme that has been selected - namely that if the child resides in a different province then you use the grid of the province in which the child resides and we make it child-based instead of payer-based, which it is at this point - could produce problems that make the legislative application cumbersome.
So if there are to be guidelines, I would say that the way it's done is probably preferable, given the way the guidelines are established. They'd have to do a whole new scheme, in my view, if we were to take into account your argument, which I think is a valid argument.
[Translation]
Mr. Bellehumeur: I would like to change subjects now. After listening to the testimonies so far, I'm going to ask what you think as a practitioner, even though you have probably not looked at this issue. The Income Tax Act provides that people who do not pay their income taxes may have to pay some administrative penalties. Under section 49 of the Quebec Charter of Human Rights and Freedoms, individuals can request exemplary damages if their rights are violated.
DO you think that Bill C-41 should provide that people to whom support is owing can request exemplary damages or support from the defaulter? We were talking earlier about individuals who deliberately and repeatedly defaulted on their support payments. Should the Act provide for a procedure whereby, in cases where a number of criteria were met, individuals entitled to support could request exemplary damages in order to teach the repeat defaulter a lesson?
[English]
Ms Seppi: That is a difficult question. I'm not sure we could provide it in this legislation. It almost becomes a matter of legislative power, and so on. But you're quite right, and I certainly appreciate your concern.
I really haven't given it any thought as being part of Bill C-41, but I have given it thought in terms of that perhaps being a necessary aspect of legislation. I'm not sure there's a place for it in Bill C-41. Have you thought of a specific provision or aspect of the legislation that would include that? I guess it would be under the enforcement section, but the enforcement sections appear to be merely related to tracing and enforcement through licence suspension.
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[Translation]
Mr. Bellehumeur: I would like to hear what you think about something that Bill C-41 does not provide for. The question actually goes beyond the scope of Bill C-41. I ask the question because of the opinion we heard today, last week and some time ago, when we were preparing for our study of the bill, from individuals who have been through some very negative experiences with respect to support payments. The spouse in question did everything possible not to comply with the support order.
Rather than criminalizing the action of defaulting, as has been requested, should we not rather provide for exemplary damages? Financial penalties are just as effective at making people understand as labels calling people criminals for not paying their support.
As you said quite rightly, Bill C-41 has no provision of this type. Do you think it should be possible to request exemplary damages in order to advance the cause and achieve our objectives?
[English]
Ms Seppi: Certainly I think enforcement is more in the provincial domain. As to whether there could be exemplary damages, I think the courts do have certain powers in situations where punitive damages are claimed, in a tort situation, for instance.
So I suppose there are provisions in the law outside legislative reform at the present time that are rarely used and are difficult to prove. Certainly that's an issue for the future. But I would assume probably the provinces are looking at that more seriously than the federal government, given that enforcement is supported in the provincial domain mainly.
The Chair: Mr. Maloney.
Mr. Maloney: We've heard from a witness who suggested that we consider a criminal offence charge of wilful default of child support payments. What would be your position as a lawyer in a family law practice acting for both sides on the claim? Is this a good measure or a bad measure, or what would your concerns be?
Ms Seppi: My first concern is that I don't think it's criminal law. I don't think it would be a criminal offence, but obviously that's one way the federal government could get around the question of jurisdiction to legislate, if it was suggested it was a criminal offence.
I think that's pushing it. That's my personal view. But I didn't hear the submissions of your guest or your speaker, so I'm not sure exactly what the thought there is.
Mr. Maloney: It was a very detailed presentation, but I wanted to get your reaction to the concept of an enforcement - they have similar legislation in the United States - and whether you think it would work, would it have the enforcement, because right now we have tremendous enforcement problems, and whether this would be a rather drastic resolution but perhaps a resolution just the same.
Ms Seppi: It could be, but it's going far beyond what the legislation is today.
Mr. Maloney: Thank you.
The Chair: Mrs. Jennings, you have five minutes.
Mrs. Jennings: I would like to go back to something you've already dealt with, but I wasn't too clear whether you actually thought there was a difference between... Across the country, according to the grid, if I take a payment for two children and I look at P.E.I., Nova Scotia, Newfoundland, Manitoba, Saskatchewan, Alberta and B.C., I do not see enough of a degree of variance to deal with the actual living standards, the various living standards across the country. I understood you didn't think this was too much of a problem.
In P.E.I., the support spouse of two children would pay $565, and the same with Nova Scotia, and yet in Ontario it would be $567. That's only a $2 difference, and yet there's a considerable difference in what you'd have to pay for rent and for the necessities of life.
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Don't you think it is a serious matter that this is not taking into account the realities of the variance across the country?
Ms Seppi: Yes, I think it is a serious matter. I guess the question is what is the goal of the government in passing these guidelines?
One of the problems is they've been working on this for so long. They've done research and they've looked at different methods of establishing the guidelines and so on. The public and people who practise family law have been waiting for the guidelines. The guidelines have been promised for a long time.
The government in its wisdom also had this family law committee, which obviously would have allowed the proposed legislation to be reviewed by many people across the country.
This is one concern that has been brought up throughout Canada, in the sense of equal application. It relates also to the other honourable member's question regarding applying the guidelines so the child in the other province gets according to what his need is in that province.
I agree these are all valid concerns. At the same time, we need to balance that against taking another two years, perhaps, to study the problem. That's why I think the current plan of moving on with the guidelines and then reviewing it over time to see how it affects the application of child support throughout the country might be helpful in watching what happens with those disparities. But you're quite right: it's going to affect people in different ways.
Mrs. Jennings: That's my point, and it's why I think the settlement and agreement made ahead of time with the two spouses is the important issue. If it's workable, use it, then go to this only in the case of an emergency, because this doesn't deal with all the issues.
Ms Seppi: In a way that's what will happen, except that on the other hand these guidelines are going to become a bargaining chip in the settlement in the sense that someone will hold out for the guideline amount or someone will refuse to go beyond the guideline amount even though they're negotiating a settlement in which they could go outside the guideline amount.
But there will be other situations where people are quite willing to be flexible. There's no reason they can't adjust to those kinds of concerns, but it's only by agreement, and those kinds of agreements of course will be harder to make when the guidelines are legislated.
Mrs. Jennings: That's true. Thank you.
The Chair: I don't think there are any other questions.
Thank you very much for coming and demonstrating yet again what a great school the University of Windsor is. Now that's on the record. It is frequently, though. I wouldn't want you to think this is the only time I've ever mentioned Windsor.
Some hon. members: Oh, oh!
The Chair: Thank you very much.
We'll rise. We're back at 7 p.m. in Room 371 for a very interesting evening.
We're adjourned.