ONTARIO PUBLIC SERVICE EMPLOYEES UNION
ONTARIO ASSOCIATION OF FAMILY SERVICE AGENCIES
SUPPORT AND CUSTODY ORDERS FOR PRIORITY ENFORCEMENT
HUMAN EQUALITY ACTION AND RESOURCE TEAM INC
CONTENTS
Thursday 14 February 1991
Child and Family Support Statute Law Amendment Act, 1990, Bill 17 / Loi de 1990 modifiant les lois relatives aux obligations alimentaires, projet de loi 17
Ontario Public Service Employees Union
Ontario Association of Family Service Agencies
Mrs Paul Demeter
Frank MacKinnon
Support and Custody Orders for Priority Enforcement
Afternoon sitting
Tadeusz Lipinski
Henry B. Rasmussen
Andrew Axhorn
Stanley Fisher
Citizens' Advisory Committee to the Social Services
Committee of the Regional Municipality of Ottawa-Carleton
Barry Demeter
Human Equality and Resource Team Inc
Fathers for Justice
Adjournment
STANDING COMMITTEE ON ADMINISTRATION OF JUSTICE
Chair: White, Drummond (Durham Centre NDP)
Vice-Chair: Morrow, Mark (Wentworth East NDP)
Carr, Gary (Oakville South PC)
Chiarelli, Robert (Ottawa West L)
Fletcher, Derek (Guelph NDP)
Harnick, Charles (Willowdale PC)
Mathyssen, Irene (Middlesex NDP)
Mills, Gordon (Durham East NDP)
Poirier, Jean (Prescott and Russell L)
Sorbara, Gregory S. (York Centre L)
Wilson, Fred (Frontenac-Addington NDP)
Winninger, David (London South NDP)
Substitutions:
Cunningham, Dianne E. (London North PC) for Mr Harnick
Elston, Murray J. (Bruce L) for Mr Chiarelli
Kwinter, Monte (Wilson Heights L) for Mr Poirier
Murdock, Sharon (Sudbury NDP) for Mr F. Wilson
Wessenger, Paul (Simcoe Centre NDP) for Mr Winninger
Clerk: Freedman, Lisa
Staff: Swift, Susan, Research Officer, Legislative Research Service
The committee met at 1011 in committee room 1.
CHILD AND FAMILY SUPPORT STATUTE LAW AMENDMENT ACT, 1990 / LOI DE 1990 MODIFIANT LES LOIS RELATIVES AUX OBLIGATIONS ALIMENTAIRES
Resuming consideration of Bill 17, An Act to amend the Law related to the Enforcement of Support and Custody Orders.
Reprise de l'étude du projet de loi 17, Loi portant modification des lois relatives à l'exécution d'ordonnances alimentaires et de garde d'enfants.
The Chair: I would like to call the committee to order. As we had mentioned earlier, we will be sitting until at least 5:30, as there is a presentation added at 5:15. The other point I would also like to mention is, of course, that, subsequent to last evening's meeting, we still have not an agreement about timing in regard to clause-by-clause consideration of the bill. The clerk suggests that immediately after our adjournment for lunch the subcommittee members meet to discuss potential timings. I would suggest that people from the various caucuses mention to their subcommittee member what their schedule is to facilitate that meeting. And then I would also like to remind people of the routine.
Mr Elston: That is at noon, did you say?
The Chair: At noon, yes. Will Greg be here?
Mr Elston: I just realized that since Greg is not here I am probably supposed to sub for him.
The Chair: Okay.
Mr Elston: And I have an engagement at noon which I will run out and try and cancel.
The Chair: Okay. So you will meet with Mrs Mathyssen and Mr Carr, then?
Mr Carr: Hopefully it will be Diane. I am sure it will be Diane. I cannot either.
The Chair: So Diane will be subbing for you.
Mr Carr: But I have always been easy. Just fill in the dates and let me know.
The Chair: You are, you are. I would also like to draw the committee's attention to the fact that we have a number of presentations, some of which are a half-hour, some of which are 15 minutes. Again, as earlier, the time will be divided up roughly in equal amounts per caucus. The rotation will alter in a clockwise fashion starting with the official opposition -- for the first rotation, that is. And for the 15-minute presentations, given that there may not be sufficient time, I would suggest that there only be one question per caucus and that if committee members have particular desires to speak at length to any of the witnesses or a number of questions, they seek the support of their other caucus members in doing so and then, if extra time is needed, perhaps the consent of the other committee members.
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
The Chair: I would like to now call upon the representation from the Ontario Public Service Employees Union. I know that some of you are familiar with presentations before committees but if I could, none the less, go over that at the outset: Very simply, we have half an hour and you can divide that time up as you wish. Typically, it is a half for your presentation and a half for questions from committee members. Would you please identify yourselves into the microphone for the purposes of the recorder? Please feel free to commence whenever you are comfortable.
Ms Wagner: Thank you. I am Bobbi Wagner, representing the OPSEU provincial women's committee. At my far right is Diane Roberts, representing the Parkdale Legal Service; Twila Roulston, representing support and custody orders enforcement; and Nick Di Salle on my left, representing OPSEU staff.
The Ontario Public Service Employees Union, OPSEU, welcomes this opportunity to submit to your committee our perceptions and recommendations regarding the impact of Bill 17, amendments to the Support and Custody Orders Enforcement Act.
Our union represents approximately 105,000 public-sector employees in Ontario. The majority, 68,000, are directly employed by the provincial government. The other 37,000 work in various sectors involved in social services, post-secondary education, health, and other public services. Over half of our members, 54%, are women. Many of our members work directly with single-parent families in a variety of ways. OPSEU members employed as parent support workers, PSWs, in the Ministry of Community and Social Services work directly with fathers and mothers to develop separation agreements and support obligations. OPSEU members are also employed as support and court-ordered enforcement officers in the Ministry of the Attorney General and as community legal workers.
Bill 17 will directly affect the way they do their work. Our submission today, to a large degree, reflects their views about Bill 17 and their concerns about how to approach the dilemma of child poverty and the hardships that follow family breakdowns.
Child and family poverty: Over the past few years Ontario's social service system has been the subject of several major reviews. In 1988 the Social Assistance Review Committee, SARC, released its milestone report, Transitions. After two years of deliberations and over 1,500 submissions, the committee concluded that Ontario's poor are too often women and children. In Ontario 360,000 children under 18 grow up in poverty. Of these, 205,000 depend on public assistance. Women who separate or divorce are severely disadvantaged when trying to seek employment or survive on the inadequate support.
The period between 1979 and 1990 saw some important changes to social programs. In particular the implementation of some of SARC's recommendations resulted in increases to public assistance rates. But the shocking fact is that the proportion of women among Canada's poor has not changed to any great extent. The National Council on Welfare reported that: "In 1975, 59% of the adults living in poverty were women. By 1981, the proportion grew to 61%. In 1987, it was back to 59%." The group identified as being most at risk were the single-parent families headed by women. About 57% of them lived below the poverty line.
Despite the fact that more women are moving to paid jobs outside the home, from 53% to 68% during the past 10 years, other factors totally beyond their control have worked against women. "The main factors are child care responsibilities, labour market inequities, and marriage breakdown and widowhood." This is according to the National Council on Welfare. Child-rearing and household work are heavy burdens to carry, especially when little help is available from the non-custodial parent. The lack of affordable day care spots also limits women's access to employment. As a result, the majority of mothers continue to spend many years outside the labour market or in low-paying part-time jobs.
The impact that adequate and continuous support payments have on the wellbeing of children and sole-support families cannot be ignored. A report by the Department of Justice, Canada, in 1988 states that support payments, despite the low amounts, make a significant difference to a family's standard of living and 58% of the divorced and separated women who received maintenance lived in poverty in 1986, compared with 75% of the women who did not receive support payments.
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Receipt of support payments also impacts on the amount of time spent on public assistance. Transitions reported that single-parent mothers who receive support payments, modest as they might be, stay on welfare for shorter periods of time than those who receive no support.
Although Bill 17 addresses the enforcement of support orders, we feel that it is appropriate also to talk about the level of support orders. As the Honourable Mr Hampton stated, "The single most important goal of this new program must be to fight child poverty." We believe that to achieve this goal society must also address the real costs of raising children or our attempt at enforcement of support orders runs the risk of simply enforcing poverty.
A Statistics Canada economist-demographer report from Quebec gives us some idea of the true costs of raising a child. "Depending on the age of the child, the cost of the first child in 1982 was between $192 and $533 a month for a low standard of living and between $250 and $708 per month for an average standard of living. A second child costs 80% of these amounts."
Assuming that these costs are similar in Ontario and by using the Ontario cost-of-living index, we can estimate the real costs of raising a child in Ontario in 1990. For a low standard of living it would cost between $271 and $750 per month, and for an average standard of living, between $353 and $999 per month. A second child costs 80% of these amounts. Clearly, enforcing the payment of support orders will help, but we strongly recommend that an objective process be developed to assist judges and others in setting adequate rates.
We agree that Bill 17 will facilitate both the paying of support obligations and their enforcement. As the minister stated, "Without a change in the way we do business, the problem of unpaid child support orders and child poverty will continue to grow." We support the minister's goals but feel that Bill 17 should be seen as a first step towards a real commitment by the government to support children and families. We would like to see the government look at ways of ensuring that women and children entitled to child support receive it and do not suffer hardship if the man does not pay.
Public maintenance advance program: Under the proposed Child and Family Support Act, a child and mother will receive support payments only if the man has a steady income and if his place of employment is known. Failing this, the family receives no support. We believe it is time for this government to seriously study the feasibility and desirability of instituting a public maintenance advance program.
A public maintenance advance is a guaranteed periodic payment to children whose private support obligations are not or cannot be met. In essence, the payment is an advance on the private obligation, which the state then seeks to collect. Because enforcement of private obligations is not always possible, the maintenance advance system provides a guaranteed minimum income to these children. Public maintenance advance systems originated in the Scandinavian countries and have spread and been adapted to social security systems in other countries. Sweden has the most advanced and comprehensive system. Public maintenance advance systems of one type or another also exist in Finland, Denmark, Israel, Switzerland and New Zealand. The basic aim of the maintenance advance is to provide a guaranteed income to a child suffering economic hardship because the supporting parent fails in his or her obligation. The advance is a right on which the children may count regardless of the behaviour of his or her parents. The maintenance advance is an attempt to raise the dependent family's income to a level above that of the subsistence provided by social assistance and to avoid, as much as possible, the stigma of social assistance.
In a 1983 study of eight countries that have some sort of public maintenance advance system it was concluded that the maintenance advance makes a significant difference to the income of single-parent families. Not only are children cushioned from the effects of the debtor's default, but the maintenance advance also guarantees a minimum income for those children of low-income parents who cannot provide adequate child support.
It is our belief that Ontario's and Canada's women and children need a public maintenance advance system.
Division of assets: We would like to recommend that authority to seize and sell assets to pay support -- proposed section 10a of the act as set out in section 8 of the bill or related legislation -- be expanded to include seizure and sale of assets to repay a spouse for any raiding by the other partner of assets subsequent to court orders dividing the assets. That is, following a family court order regarding the division of assets, some spouses, mostly men, have covertly raided bank accounts or other convertible assets. By the time a Supreme Court order is issued and the couple begins to implement the division of assets, many women are rudely shocked to find that the family assets to have been divided have been seriously depleted.
At present the onus is on the aggrieved spouse -- mostly women -- to pursue civil action to recover the depleted portions. The civil action route is too expensive an option for most women. The result is a de facto loss of assets. It is our belief that the proposed Child and Family Support Act should allow for automatic support payment deductions against a spouse's paycheque to restore the value of family assets allocated to the other spouse.
Private agreements: Part of the duties of a PSW in the Ministry of Community and Social Services is to assist the custodial spouse, usually the woman, and non-custodial spouse in arriving at a mutually agreeable support obligation. Currently the PSW arranges two types of agreements: a separation agreement between married couples or couples who have cohabited, and an agreement for support: terms of settlement for single parents who have not cohabited.
We were informed by our members that presently only the separation agreement is enforceable. The agreement for support: terms of settlement is not enforceable. The couple is required only to make a court appearance and get a court order for support. In subsection 1(2) of the proposed act it states, "and includes such a provision in a domestic contract or paternity agreement that is enforceable under section 35 of the Family Law Act, 1986."
We recommend that both types of agreements developed by the PSW and endorsed by the other two parties be enforceable through this act and lead directly to a support deduction order without having to go through court proceedings, unless custody is an issue. This adjustment will offer an alternative to expensive and time-consuming court appearances and validate the work presently performed by PSWs.
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Labour issues: For Bill 17 to be effective in decreasing the default rate of child support payments, long-standing problems in SCOE and related services must be addressed. It is important to draft new laws to legislate tighter enforcement and to develop new systems to administer the laws. But it must be remembered that in the final analysis people operate the system and the quality of working life of those charged with administering enforcement directly affects the quality and success of their work. Two issues in particular must be addressed for Bill 17 to be at all effective in improving the rate of maintenance enforcement: adequate staffing levels and formal involvement of front-line staff in developing new systems.
Staffing levels: Since their inception just three and one-half years ago, SCOE offices have been perpetually underfunded and understaffed. Staff currently carry case loads varying from approximately 700 to over 1,000 and increasing weekly. Under the current system it is simply humanly impossible to deal responsibly with clients' needs, and many maintenance orders which could be enforced with proper staffing are not.
Women and children therefore are often not receiving the child support to which they are legally entitled, simply due to understaffing. Historic use of contract and short-term contract staff has not dealt sufficiently with staffing issues and has exacerbated a situation of low staff morale and bad labour relations. Staff turnover rates are incredibly high. Our members estimate that only 10% to 20% of the original front-line staff remain in offices which have been open for only three and one-half years.
The financial and human costs of such turnover rates must be exorbitant. We hope, as you do, that Bill 17 will eventually serve to free some staff time and enable SCOE staff to work on more difficult cases. However, the importance of a substantial increase in permanent staff in the SCOE system cannot be underestimated. Recent postings of long-standing unclassified positions is a beginning but we must understand that a commitment has been made only for more short-term contract staff. Unacceptably high case loads will cause more unnecessary suffering, both for SCOE workers and for women and children entitled to and in need of support payments.
In jobs as varied and complex as SCOE jobs, short-term staff are hardly even able to learn the work. Bill 17 will be an administrative nightmare without adequate permanent staffing levels. SCOE staff consulted in the preparation of this brief suggested that case loads of a maximum of 400 to 500 people, after the successful implementation of Bill 17, would help ensure that they could deal responsibly with their case loads. If staffing levels are not greatly increased, little improvement is likely, due to the current massive backlog in the system. We urge this committee to make strong recommendations to this end.
Consultation with staff: It is OPSEU's position that consultation with front-line staff should be an integral part of how work is done, especially when developing and implementing new systems. We understand that the new government also appreciates the need for this consultation. However, consultation on Bill 17 has been haphazard and inconsistent at best, throughout different SCOE offices and related services.
The implementation of Bill 17 would be most successful with formalized consultation and involvement of front-line staff. We suggest that recommendations be made to ensure that implementation committees, including front-line OPSEU representatives, be struck to ensure that those who know best and those whose work will be drastically affected by the proposed changes will have formal, recognized input into the implementation process.
Formal participation in the implementation process will also ensure that a wide variety of concerns that have been expressed to OPSEU in relation to Bill 17 can be addressed. These concerns include security issues, especially during the implementation period; concerns about other health and safety issues, such as increased computer time; changes to the very nature of the jobs in SCOE offices; enforced quotas such as the current 22% compliance rate in the Hamilton office, and electronic monitoring and other issues which impact adversely on the work of those in positions related to maintenance enforcement.
In conclusion, we understand that there is some concern that the wording of the current bill is problematic. But we trust that this committee will ensure that the legislation will be amended as necessary to ensure that it is a sound legal document.
Our recommendations can be summarized as follows: (1) that Bill 17 be adopted as a first step towards addressing the issue of child poverty and that the government investigate the feasibility of a public maintenance advance program; (2) that public education go hand in hand with the proposed legislation to ensure greater understanding of the responsibility for adequate child support; (3) that guidelines for adequate support levels be established; (4) that protection of assets in the case of raiding by either partner be addressed through this or other necessary legislation; (5) that adequate permanent staffing be provided to ensure that Bill 17 can be administered successfully, and (6) that front-line OPSEU representatives be formally consulted regarding the implementation of Bill 17 and other issues affecting their work.
Mr Elston: There are a couple or three areas where I would like to go, but I think I will probably reflect a little bit on the SCOE operation itself. Is it Ms Roulston who is here from SCOE? Just one other word. We are not able in the committee necessarily to recommend much except that the people from the Attorney General's office I am sure have heard you on the subject of the advance maintenance payment issue. We cannot do that here, but I think we have heard that from two or three other organizations with respect to SCOE. We have heard a number of cases about the frustration which is felt by people who have called both payers and payees under the terms of the amendments that are about to be proposed for this act. Can you describe, Ms Roulston, what your colleagues at SCOE feel currently about working there? I have heard the statistic that only 10% of the originals are remaining. But just give us a sense of what it is like there.
Ms Roulston: Okay.
Mr Elston: Are you a front-line worker yourself?
Ms Roulston: Yes, I am. I am an enforcement representative in the Oshawa branch. Bill 17, we feel, is going to help the ongoing maintenance payments, so we are quite excited about that because we know we can get to a lot of files more quickly. But the concern is with the backlog of orders currently and not being able to get to them on time because of the backlog. That is what the biggest concern is, because we are already so overworked, in implementing this new bill, how is that going to affect our already overloaded case load? And without adequate staffing, we feel that Bill 17 would become a priority, of course, to get these orders enforced on time and to get the moneys coming in, but what about the other 14,000 that we have in our office that we are still currently trying to enforce? So I think the position of adequate staffing really needs to be addressed.
Mr Elston: Is it fair to say that the ones that are in arrears longer are the tougher pursuits for an enforcement officer, or is it just that you have not been able to get to them?
Ms Roulston: The likelihood is that we are not able to get to them.
Mr Elston: So some of them might very well be caught up quickly if you could just get there.
Ms Roulston: That is right.
Mr Elston: Okay. You have mentioned the ratio of about one enforcement officer to 400 to 500 cases. I presume that is on the basis of sort of an equal distribution of the good, the bad and the ugly, so to speak, in terms of cases.
Ms Roulston: Right.
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Mr Elston: What percentage of the cases now that you handle could be described as good in the sense of, does not take much pursuit, or then there are tougher ones and then the ugly are sort of in the category where no matter what you do you really are in a tough battle trying to find where somebody is or trying to find out what the new job is or all that sort of stuff? Can you give us an idea?
Ms Roulston: An idea? It is all so varied. I cannot really give you an exact statement on that but I can check into that and get back to you on it.
Mr Elston: Just one other question, then, with respect to SCOE. I know that during our time considering how we could make it a bit of a better place to work in the sense of trying to free some staff time to get to the tough cases, which, I think, by and large, is agreed upon as being the ones that you want to be able to put the staff time towards, there was an indication that there would be, at some time during the course of the registration of a payment order, a long period of compliance which would allow the case to be kicked out, I think was the term that was being considered -- in other words, that you would stop having SCOE enforce the good complying payers after a while. Any sense that that would be beneficial in terms of staff time, in terms of the pressure that staff would feel on the job?
Ms Roulston: I do not quite understand what you are saying. Could you repeat that, please?
Mr Elston: Okay. If there is an order in and you have a particular person who has paid for a period of, let's say, two years, without any problem, it would seem in some cases that if there is a good compliance record they could fall off the administrative side of the SCOE activities, so to speak, and go about their business on their own. That would leave, again, staff to pursue the more difficult cases, which would mean that instead of floating between 400 and 500 -- I think that is the optimum that you are advocating; I do not know what your case load is now, I guess I should ask that -- that would tend, then, to leave the easy cases away from responsibility and, in fact, let you deal with the more difficult and almost the impossible on some occasions.
Mr Fletcher: No. There is no such thing as an easy case.
Mr Elston: Well, there is.You do not have to answer it. I am not concerned. It was just a question of whether the easy cases should be allowed to be --
Ms Roulston: -- to just be put aside and work on the hard cases.
Mr Elston: Yes, and as long as they were in compliance they would not reappear. Could you just answer this last question and I will pass the floor over to someone else? What is your current level? You have suggested that 400 to 500 might be a semi-rational number. Do you know what your load is now?
Ms Roulston: My personal case load?
Mr Elston: Yes.
Ms Roulston: I am monitoring, right now, 969. That is just me alone and I am part of a team. We currently have three members that are permanent staff. Well, two are permanent, one is contract. Our team's case load is 3,000.
Mr Elston: And how many are good cases, if I can describe them as that -- easier? I am not saying any are easy, but there is a level of ones that are easier to deal with, and then there are ones that are more difficult.
Ms Roulston: That is really hard because every case is different. I do not really have a percentage to give you at this time, but it just depends on when you open the file. Some of them are easy and some of them are not.
Mr Elston: Okay, thanks.
Mr Carr: I had a question for you as well, having been on the front lines in a task that, I think, is probably very difficult, especially when you hear of the 969 cases. I was just wondering if you can enlighten the committee on the reasons why there is not payment. There have been various reasons why there is not payment: sometimes people do not want to pay, or we have heard that they maybe cannot pay, and then there is access. What has been your experience as the front-line person, seeing this every day, of what some of the reasons would be where somebody is not paying and is in default?
Ms Roulston: Again, there are various answers to that. Every case is different. It could be for a number of reasons. Maybe just not employed at the time. Like I said, mostly it is just us not getting to the files.
Mr Carr: It is not what? Getting to the files?
Ms Roulston: Being able to.
Mr Carr: Oh, meaning you not getting to the files. Yes.
Ms Roulston: Right.
Mr Carr: But of the ones you do get to -- you know, what we are struggling with is that there are so many different reasons and we have heard various groups and it is very complex, and I was just wondering, and I know it is very difficult to do, but are you able to put any numbers to it in terms of percentages? Is it people just walking away, what percentage fights over access, what percentage is it that the person just cannot afford because of what the payment is?
Ms Roulston: No, I cannot put any percentage on that, I am sorry. Like I said, I just monitor my own case load. There are just various avenues for various reasons, and some like you mentioned, but I do not have the statistics.
Mr Carr: If you do not keep that, I guess that is probably the reason we cannot get them because nobody really keeps it. It is only sort of a guess from what you have done from your own experience.
Ms Roulston: I think they have statistics at my head office, but I do not personally so I cannot comment on that.
Mr Carr: I guess that is why we probably cannot get them. My one last question: With Bill 17 you talked about this tremendous case load. Do you see having to reduce the staff in your area if this comes about?
Ms Roulston: No, no. We would have to increase.
Mr Carr: Even with Bill 17?
Ms Roulston: Yes.
Mr Wessenger: I would just like to comment on some of the issues raised. First of all I would like to thank OPSEU for making their presentation today and to assure them their front-line staff will be consulted with respect to the implementation of the legislation.
Second, I would like to indicate that there is the additional $2 million of resources that is being provided to hopefully help clear up the backlog.
Third, with respect to the question of enforcement of separation agreements and paternity agreements, both these agreements are now enforceable without the necessity of going to court. A statement of arrears is filed along with the agreement and then SCOE can take the necessary steps to enforce the collection of those arrears or payments that are owing.
With respect to the question of guidelines, presently there is a federal-provincial committee studying the whole aspect of support guidelines, and that report is expected some time this year.
The Chair: I had one question for clarification. We have had a number of deputants discussing mediation services. On page 8 of your brief, at the top, you mentioned PSWs. The services you are talking about here seem to be something like mediation. I am wondering, is this custody and support or is it support alone?
Mr Di Salle: Well, they do mediation, but if it comes down to custody what they are normally doing is assisting the parent in the court hearing, almost as a paralegal you could say. But they do not do the custody in private agreement; they will do obligations and --
The Chair: So this is a service from the Ministry of Community and Social Services but it is primarily for financial support.
Mr Di Salle: That is correct. It is basically to work out an agreeable amount between both parties. If it breaks down then they follow up with SCOE and so on.
The Chair: The reason why I mention that is simply because we have had a number of deputants mention mediation and we have not --
Mr Elston: Mr Chair, might I ask for some more time? I notice that there are some members of the government caucus who would like to speak. I know Mr Kwinter from my caucus would like to ask a few questions. This is an important group of folks, and if that is agreeable with the rest perhaps we could just slightly extend our hearing time with them.
The Chair: Well, does that request -- Mr Carr, Mrs Mathyssen? Mr Elston is requesting additional time.
Mrs Mathyssen: That is fine.
The Chair: Okay, with the indulgence of the witnesses perhaps we could extend some of the questions for another 10 minutes. We had another two more questions from the government caucus and back to Mr Elston or Mr Kwinter.
Mr Morrow: First of all, I would like to thank you for taking the time to come here today. I just wanted to expand on the labour issues. The staff increasing: How many more staff would you like? I understand that you would like to obviously cut the case load in half, so I guess what I am asking is: What staff level are you now at? You would obviously like to double that, and you refer to a heavy staff turnover. Is that because of the case load?
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Mr Di Salle: Well, the staffing level is problematic when you start working out the case load sizes. From talking to our people at SCOE, the 400 to 500 figure was one that they felt would be manageable. It is something that needs to be reviewed periodically as legislation changes or as circumstances change. But the total number of staff that would be required to run the system, we do not have those figures with us today, but using the case load size that just becomes arithmetic.
Mr Morrow: Okay, thank you. I would also like to say that I do personally also believe that the direct involvement of the staff is the only way to implement Bill 17 and implement it correctly.
Ms S. Murdock: Just a couple of questions. I presume that the staff turnover, a lot of it is stress, in Workers' Compensation Board claims that are not allowable yet. But what I was particularly interested in --
Mr Elston: Was that an announcement?
Ms S. Murdock: Well, our Workers' Compensation Appeals Tribunal allowed one last week.
Guidelines for adequate support levels, that is what I am wondering about. Are you suggesting that if a spouse earns, we will say, $50,000 and there are two children involved, you would set a limit? Is that what the recommendation --
Mr Di Salle: No, that is not what we are saying. We are saying there should be a floor --
Ms S. Murdock: A minimum.
Mr Di Salle: A minimum, yes, where that is realistic in the cost to raise a child today in Ontario. And that is where the public maintenance advance system comes into play to a great extent, in that it guarantees that minimum to the child and to the family. Right now, from talking to parental support workers and SCOE workers, there is no really clear instruction or guideline as to how to figure out what is an appropriate amount. It is basically an ability to pay as opposed to what the child and mother require.
Ms S. Murdock: Well, to raise a child, there were a couple of presenters here this week saying that it is very expensive, and your presentation explains that quite well in terms of cost. But in terms of the person who is earning $20,000, and there are many male jobs out there that do earn that, and the person who is earning $70,000, on the basis of what you are suggesting, guidelines for adequate support level, there would be a minimum that both would have to meet. Is that what you are suggesting?
Mr Di Salle: That is basically what we are suggesting, yes.
Ms S. Murdock: Okay.
Ms Wagner: If I might interject: I know someone recently, within the last two years, who had a support order for $10 a month. Now that, in today's world, does not buy very much, so there is a need for a minimum guideline.
Ms S. Murdock: Oh, yes. No, $10 a month is a slap in the face, I would say. I know what I would probably tell them to do with it. So I understand that. The person has the responsibility for his children, regardless; that is a given. I am just wondering how they can live, and at the same time if the minimum is set, that they have to support both. I do not know how that would work. I would have to think about it, okay?
Mr Kwinter: I just have one question. I doubt whether OPSEU can answer it, but maybe the people from the Attorney General's office can. You talk about the feasibility of a public maintenance advance program. Do you have any idea what the net cost would be on such a program?
Mr Di Salle: Well, when we talk about this issue with people in the community we have to look at the costs in a variety of ways and not just money. We will have to look at the social costs of not acting, also. There are 360,000 children whose future depends on adequate support. So we have to take that into consideration. We have not done an exhaustive study of how much it would cost to implement in Ontario or preferably in Canada, because a national program is what most other countries run. But it is our belief that the cost to the nation is even greater in not acting and allowing hundreds of thousands of children to live in poverty perpetually, for years and years.
I worked for 12 years in family benefits myself, and I saw that. Sometimes for 10 years I would see the same family, and the children would suffer enormously. And the next thing you know, they would be dropped out of high school and on the rolls themselves. So there is a tremendous cost in not acting.
Our proposal is made in honesty to see if we can basically attack child poverty. And we took the minister at his word when he was talking about eradicating child poverty, and we think the public advance system is one way of attempting that. It also follows from a lot of SARC's recommendations in regard to the child benefit that it was advocating. So in one way or the other Canada and Ontario have to address child poverty, regardless of the cost.
The Chair: Mr Carr, do you have additional questions?
Mr Carr: Yes, actually I do. One of the questions I have is going way back to page 3 where we did talk about eradicating some of the poverty for children -- and women as well. I was just wondering if you have any report or statistics on some of what you would like to see in terms of improving education and skill levels. One of the ways to do that is to give women, and certainly children as they are growing up, the skill levels to be able to compete and get out of poverty. And I was just wondering if you have anything on that, hard copies or reports, that I could get, or any thoughts here on how your union sees that process taking place.
Mr Di Salle: I am sorry. Are you talking about what role education plays in this?
Mr Carr: Yes, in terms of helping with the poverty, because, as you said, the kids drop out of school for whatever reason and then, of course, the next generation cannot get the jobs --
Mr Di Salle: The only perspective I can give you is that a lot of the children in these families feel tremendous stress when they see their parents are not able to meet the expenses of the family. So a lot of them take it as it is not affordable for that particular individual to continue in school. In my experience as a family benefits worker, I talk to a lot of teenage kids who are simply saying, "I can't sit back and watch my mom and my brothers and sisters living like this just for me to go to school." So they go out and work and try to assist the family. That is what I have seen. Whether our educational structure is adequate or meeting the needs of Ontario is another question, but as far as child poverty, I see it from that perspective: that children are at a certain age recognizing the difficulty of the family and withdrawing from school in order to support the family.
Mr Carr: And one last question. Were you consulted on this bill since the new Attorney General has come in? Have you had input with him?
Mr Di Salle: Consulted in what way?
Mr Carr: Discussions with him. Being able to sit down with him.
Mr Di Salle: The Attorney General, no. I met with a few of the staff at the Attorney General and some of them are here today.
Mr Carr: So you mean you have been involved in this --
Mr Di Salle: Some clarification on the bill, yes.
Mr Carr: Okay, good, thanks.
Mr Di Salle: Let me just make one comment to Mr Wessenger. About the two forums that you were talking about: I spoke just recently to people in a parental support unit, and if what you are saying is true the message has not gotten down to that level, because even yesterday they reaffirmed to me that they cannot enforce the order.
Mr Wessenger: Oh, perhaps I should clarify. This is new in the bill. We will provide for that.
Mr Di Salle: Thank you.
The Chair: A very informative presentation and it is very important to hear from square one, from the front line. Thank you.
ONTARIO ASSOCIATION OF FAMILY SERVICE AGENCIES
The Chair: We now have a presentation from the Ontario Association of Family Service Agencies. Presenting we have -- you have the document forwarded to you -- Miriam Mayhew, the executive director, and Julie Foley. Would you please mention your names into the mike? You have been here for a little while, so you know we have approximately half an hour to divide up as you wish. Please feel free to start when you are comfortable.
Ms Foley: All right. My name is Julie Foley. I am the executive director of the family service agency in Sarnia. I sit as a volunteer member on the advocacy committee of this Ontario association. And this is Miriam Mayhew, who is the executive director of the association based here in Toronto.
The Ontario Association of Family Service Agencies, which we fondly refer to as OAFSA, represents 48 member agencies across the province of Ontario. Its mission is the leadership, reinforcement and support of its member agencies' endeavours to strengthen, preserve and protect personal and family life. Member agencies provide counselling and support services to both individuals and families who request assistance. We see at first hand the pressures experienced by people encountering a variety of social problems, including those related to marital breakdown and poverty.
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We have been on record for some time as an advocate for strengthening the enforcement of support and custody orders. We have attached to our brief a copy of a letter to former Attorney General Ian Scott in June 1990. We have pointed out that the compliance rate of 35%, at best, which SCOE has achieved is disappointing and unacceptable. We are aware that the results of non-compliance cause poverty and hardship in single-parent families, usually mother-led families.
Further, non-compliance creates a greater need for public assistance than might otherwise be the case. A report published in 1990 by the National Council of Welfare, Women in Poverty Revisited, points out that 52% of previously married single mothers and 75% of never-married single mothers live below the poverty line. Single-mother-led families have an income at 61% of the poverty line, and although this group makes up only 3% of the population it bears 17% of the poverty gap. The poverty gap is the difference between what people actually receive as income and the poverty line.
The same report points out that support payments make a crucial difference to the financial wellbeing of single-mother-led families. A total of 58% of the divorced and separated women who received support payments lived in poverty, compared with 75% of those who did not receive support payments. Noteworthy, of course, is the extent of poverty among single mothers generally, supported or not by their ex-spouses, and their consequent need to claim income support through general welfare assistance and FBA.
In Ontario, single mothers on welfare suffer additionally since their welfare entitlement is deducted dollar for dollar for any money they receive in support payments. Women gain nothing from support payments while on welfare, and it is important to recognize the interconnectedness of various pieces of social legislation. This institutionalization of poverty should be considered alongside changes in enforcement proposed by Bill 17.
Support orders are made by the court according to a variety of formulae. Ideally the real costs of supporting a single-parent-led family should be a factor in the calculation. Unfortunately, this is not usually the case. What customarily happens is an award is granted based on what is left over after the non-custodial parent's costs are covered.
This notwithstanding, we are aware that even inadequate support payments, if made, are better than nothing, and we applaud the efforts made in Bill 17 to strengthen the enforcement of support orders. Automatic deductions of these payments at source will go a long way towards ensuring that single parents and children receive the financial support ordered by the court. Further, automatic deductions lift the payment of support orders to the level of social responsibility rather than individual arrangements.
We hope that these support deduction orders will be truly portable -- that is, trackable -- as this will deal with the problem of debtors changing employment. We urge that the enforcement agency use all of its powers to locate ex-partners who move.
We are concerned about the plight of single custodial parents whose ex-partners are self-employed or out of the province, and hope that appropriate arrangements will be made to ensure that their needs too are addressed. We appreciate that it is difficult to tap the income sources of self-employed persons but we urge that enforcement capability be strengthened for these cases. We also hope that arrears will be collected with interest.
While we appreciate the intent of the provision allowing opting-out, we hope that there will be some process which protects women from undue pressure to agree to an opting-out arrangement. We note that women from abusive relationships particularly may be vulnerable.
We are concerned additionally about the time frames within which collection may take place, knowing that at present SCOE's procedures are long and cumbersome. For this reason we remain committed to the principle of the provincial government's up-fronting of support payments to single parents. This would have two benefits:
1. The needy family would be promptly provided for and the problem of collection would be that of the government's.
2. This would be a recognition that support payments are indeed an obligation, a public debt, and that it is in society's interest to maintain income security for families. Support payments are part of income security, and income security is clearly a responsibility of the province.
Mr Carr: I just had one quick question and it relates to some of the questions that, as a matter of fact, I asked just before, if you were here, to one of the ladies who was working on the front lines, about the reasons for non-compliance. l was just wondering in your travels if you had any thoughts and again, the question was, there are various things that people do not think there is a responsibility, there are some that cannot pay, there is the access question, and as the lady before you said, there is even more than that. There could be hundreds. I was just wondering if you would give this committee some sense of what some of the reasons are there, because as you know, we have brought in the question of poverty and so on and I was just wondering if you had any thoughts in that direction.
Ms Mayhew: There are a lot of reasons why usually men fail to pay these debts, and certainly we cannot discount that some men are also poor and that child support payments are a load for them to bear as well. However, in our discussions with SCOE about this they have certainly confirmed what is clearly our experience, which is that this is a particular form of debt to which high emotions are attached and many people who are very, very good debt payers or bill payers turn out to be very, very bad support-order payers because of the high level of emotion that runs through this issue.
Marital breakdown and all of the associated emotional uproar that goes with it is certainly one of the factors that results in people being unwilling to pay these bills. While one can have some sort of understanding of how very emotionally people feel about these debts, it is none the less our position that this is a public debt and a social responsibility.
Mr Carr: What I was getting at is, the people from, for example, Dofasco -- and I think we all agree that the children should come first before your Visa, your car or anything else -- are saying that 70% of the people are struggling to make these payments because of the economic pressures, and Lord knows, even with Dofasco and steelworkers layoffs coming, it could even be worse.
So what we have got is we want to make sure that the priority goes to the children instead of maybe the car payments or whatever. So I think that is what we are achieving. But what they are saying is that there is not enough money there in a lot of cases, and I was just wondering how you see that.
The group before you talked about maintenance programs where the province and/or the federal government would kick in to help the children, and I was just wondering if you see that also as a measure. In other words, Bill 17 will not help and I think the words that everybody is using will be a good start. How much of a start are we going to get with this in your estimation, in terms of getting money to the children?
Ms Mayhew: We feel that it is a very good start in getting money to the children because it does involve this automatic deduction. We have mentioned that in some cases it seems not to be too applicable and particularly in the case of the self-employed. In terms of the struggle that usually non-custodial fathers encounter in paying their bills, with all due respect, it is unclear to me why that should be something that would elicit more sympathy than the struggle of the mother who has not only the responsibility of supporting herself but also her children.
Mr Carr: I do not think it is a case of whom we are more sympathetic to; it is just that I think what this group is trying to do is get a little bit of a sense of fairness -- that we are not trying to hurt one or the other. It is, as you know, a very complex problem.
The other last question I have got is regarding the ability to opt out and pay on your own. I know that various groups have said that that does not work because we are trying to show that it is not a stigma to have child payments. From your experience is it better in terms of counselling if you can get an agreement to say, "Yes, l will pay you on your own and this amount per month," rather than, and I know there are quite a few unfortunately where there are fights and angers and so on, but those groups where we can get above and beyond that, would it be your thought that they should then be able to do it on their own and work the payments out? One at a time, eh?
Ms Foley: While I understand where some of that is coming from because there are many responsible parents, either mothers or fathers who do pay support payments regularly, we would have a great deal of difficulty in acceding to very much opting-out because there are times when people have good intentions but the follow-through is not appropriate. And if there is good intention then there is no stigma in remitting it through one source rather than another. So for those people who are going to be responsible, the remittance through the employer should not be a problem. We just know too many people over and over again who do not follow through with support payments because it means a change in their standard of living.
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Mr Carr: What we are looking at is, we just heard of the tremendous case loads and we are saying that if we try to do it we do not want it to end up being like the rent review board, which is a great idea but it is backlogged. And what we are saying is that the kids who really need it might be affected if we are going to put people into the system that might otherwise pay, and we heard 965 cases per person and so on. And I was just wondering if we left those out, would we get more money to the kids, which is really the goal of this?
Ms Mayhew: We think we need to go back to our principle, which is that the payment of child support orders is a public and social responsibility. It is not a question of being a nice guy, it is part of one's responsibility as a citizen, and in many ways it can be compared to paying one's income taxes, in our view.
Now, I remit, I pay my income taxes very, very regularly but I do not see anybody telling me that as a result I do not have to have them deducted from my paycheque because I am a nice guy. By the same token, we feel that as a social responsibility and part of the expense of being a parent, there would be very little reason to make exceptions and have opting-out arrangements.
Mr Carr: So it is not helpful, then, in terms of keeping the -- and I cannot say the relationship going, when you are getting divorced or separated, but having a good willingness to pay does not help keep some type of good feelings together, then? Because my feeling is that if you can work out a payment with somebody then you are showing good faith, and even though you are getting divorced or separated or whatever, that there is some goodwill there and that you can still part with some type of good feelings, because ultimately that still will come back to the kids; if there is bad feeling between the parents.
Ms Mayhew: If there are going to be good feelings I am not sure that this is going to be a variable that will affect it either way. If paying child support payments either by handing over the cash or through payroll deduction is going to cause ill feelings, then it is going to cause ill feelings. I am not sure that it is going to be a crucial variable.
Mrs Mathyssen: Yesterday we heard testimony from the Law Union of Ontario. At that time the statistic raised by the Dofasco payroll association about 70% of the defaulters in child support being unable to pay was refuted by them. They said, in fact, the standard of living for women declined after separation and the standard of living for the male defaulters increased substantially. Would you concur with the observations of those women from the law union?
Ms Foley: That certainly fits very well with what we see every day in our practice where women are affected substantially by a lowering of their standard of living, the women and children. I suppose I would be careful about saying that a great number of men's standard of living increases, but at the very, very least women and the children suffer a much more dramatic decline in standard of living.
Mrs Mathyssen: And do you believe that in the cases of many of the defaulters, as they indicated, it is a matter of not being able to pay or would you suggest there could be other reasons?
Ms Foley: Well, I think one would have to check the definition of "ability to pay." If they are choosing to maintain a certain standard of living then that is when one might suggest that they have an inability to pay. It is a choice, it is a choice about where you make your cuts and where you make your changes.
Mrs Mathyssen: In other words, to put the children before the pay-TV, the new car, the --
Ms Foley: That is what we believe firmly.
Mrs Mathyssen: Okay.
Mr Mills: A succinct presentation, I enjoyed reading it. One thing that puzzles me is, on page 4 you mention that, "We hope that there will be some process which protects women from undue pressure to agree to an opting-out arrangement." We had some people here yesterday that brought that issue up and thought that maybe there should be some clause in the bill about undue harassment or things like that. I have a little bit of difficulty how we would enforce that because, if I am sort of telling my wife, you should opt out or else I am going to do certain things to you and she runs off and makes a complaint and then the authorities come back to me and I say I do not know what she is talking about, how are we going to protect people from opting out and how are we going to enforce if we consider putting in some amendment reflecting the harassment of a woman? Would you have any ideas on that subject?
Ms Foley: Yes. I would be very reluctant to see any amount of opting out. I have a great deal of concern that even where there is not any abuse in a relationship, there may be good intention, but those choices along the way about whether I pay for my new car or my new colour TV versus, well, I can just let the support payment go for one more week, that will happen too often. I personally would not like to see very much opting out at all. When some of the comments have been raised before that if we allow some opting out perhaps that decreases the case load, I am suggesting that if we allow any opting out and it turns out to be faulty, and the parent charged with paying support does not, it ends up costing us more in staff time anyway to go chasing. So I would be reluctant to allow opting out at all.
Mr Mills: So what you would suggest is more, what shall I say, difficulty to opt out, making it much more difficult to do that.
Ms Foley: Yes.
Mr Mills: Is that your recommendation?
Ms Foley: Yes.
Mr Mills: Thank you.
The Chair: We do have some extra time here. Mr Wessenger first and then Mr Kwinter and Mr Elston.
Mr Elston: Why do we have extra time?
The Chair: Because the presentation was short. Mr Wessenger and Ms Murdock.
Mr Elston: Okay. I have some questions, just in case you think you have a whole lot of extra time, since our caucus has not started asking questions yet.
The Chair: The amount of time that is available for questions is larger because the presentation was shorter, Mr Elston.
Mr Wessenger: I would just like to thank you for your presentation and I would like to assure you that the ministry is looking at ways of extending the program's ability to trace and locate absent payers. We realize that is a very serious problem.
Interjection.
The Chair: That is a good idea. Thank you, Mr Wessenger. Ms Murdock.
Ms S. Murdock: Actually, my colleague and I have not discussed this because the whole issue of not allowing opting out -- I mean, frankly, I do not even think I would go with the four months allowable, in truth. One of the things that actually the ministry people told us the first day, I think it was, was that there is constant movement from the 70% collectables. Although you may have a good payer for a period of time, some difficulty arises or whatever and then that person ends up into the -- so that it is constantly changing. As a consequence, the opting out, just to carry on to yours -- I know I am not asking you a question but I am making a comment about -- to continue on what your argument is, because I think it reinforces what you are saying.
I just want to compliment you on the succinct presentation and the clarity of this and I really enjoyed it. Thank you.
Mr Kwinter: I would like to pursue a concept that is outlined on page 4, and that is that support payment obligations are a public debt. Could you explain why you feel that support payments are a public debt?
Ms Foley: We feel that they are a public debt because if they are not paid then, number one, the parent that is custodial, usually the mother, may very well end up on public assistance. Second, in a broader, more global perspective, we feel that in terms of the benefit of children, we as a society profit and benefit in a general way if children are properly cared for and given the privileges and the care to which they are entitled. So in that kind of way it is a public debt.
Mr Kwinter: Well, I would like to suggest that -- I have no quarrel with the intent of what you are doing, I just do not see how you can possibly tie one to the other. l think they are two separate issues. We have a welfare situation where people, regardless of whether they are getting support or not, are entitled to some kind of assistance. My colleague and I were just discussing, to take it to rather extremes; let us say that you have a rock star, an athlete, a very, very successful businessman who has a marriage breakdown. In their settlement they agree to give hundreds of thousands of dollars a year to a spouse and to their children and they default. Are you suggesting that the state would pick that up because it is a public debt?
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Ms Foley: Those kinds of extenuating and unusual circumstances, I think, would have to be dealt with in the sense of whether we provided for a floor and, if you wish, we could certainly speak about providing a ceiling as well. I do not think we would be talking about requiring the state to cough up that sort of settlement. That would not be, l do not think, in the course of what we were suggesting.
Mr Kwinter: Well, then, let's take another situation. You have a group of taxpayers sitting in this room and out of their tax payments a certain amount is allocated by governments, whether it be federal or provincial or municipal, to assistance for various causes. What do you think, as a taxpayer who, over and above the general allocation of welfare payments and the welfare system, is asked to pay his or her share of someone's non-support payments?
Ms Mayhew: I think as a taxpayer I would have every expectation that the government fulfil its responsibility at reclaiming that money. We are talking about up-fronting the money which is reclaimable. And if the government has a problem reclaiming that money, that is the government's problem. I as a taxpayer would say to the government that I would like them to clean up their act and get that money back, because this is an up-fronting of money on behalf of women and children, of money that is owed by another individual taxpayer and who should be expected to pay it.
Mr Kwinter: Let's just pursue this a little further, if you do not mind. l want to spend just a bit of time on this. I think the basic problem that I have is your presumption that when a court order is made the onus really transfers to the government; that once that court order is made, it is the government's obligation. They have to do their best to collect it, but if they do not, they must pay it. In fact, the court is really saying to the government, "Now you have this obligation to pay it. Good luck in collecting it from the debtor or the payer but if you do not, tough," as opposed to saying to the debtor, "This is your obligation and you must pay it." That is where I have the problem, where you say that everyone is entitled to income security.
Then I suggest that maybe we should be looking at a no-fault system. Let's eliminate, let's stop this charade of having these hundreds of thousands of cases; let's eliminate that. Let's just say, "If your marriage breaks down you are going to get X amount of money from the state for your children." Let's not go through this whole situation of trying to track these people down and go through all of the truly gut- and heart-wrenching stories that we have heard here, where people have come in and said, "We have these problems. We cannot collect. And I have lost my home. I have done all of these things." Why do we not just eliminate all of that and just, as they say, cut to the chase and say, "Once the marriage breaks down you are entitled to X number of dollars to support your children and to support yourself."
Ms Mayhew: It is clear that the government has accepted some responsibility for ensuring that support orders, when made, are enforced. And I am certain if the government could provide a perfect record of enforcement that we would be happy to drop this part of our submission, saying that it was unnecessary. It is because the perfect record of enforcement has not yet been attained that this is contained within our brief. The question of whether or not the government should have a role or responsibility in enforcement is back to a first principle which I think has already been established.
Mr Elston: Just sort of one line again. It talks about the substantial nature of the difficulty of poverty with respect to women and children in broken arrangements. I presume that you would advocate, or could advocate, that in terms of the assignments that are now taken by the Ministry of Community and Social Services, that those should be at least suspended until the women and children receive enough money to take them at least to the poverty line. That seems to be a benchmark area. As it is now, whatever you get paid, it is a dollar-for-dollar reduction and -- I do not want to put words in your mouth but I presume that you would probably take people at least to the poverty level before the government ought to reduce their payment level. Would that be a fair assumption?
Ms Foley: Yes.
Mr Elston: Because Monty and I were really intrigued by the concept, which is not an unfair one, in the sense you like to see people having the support that is required -- except that this one variation of the well-to-do would put a substantial burden on others, we would say -- how do you determine at what level the advance payments would reach? Would you develop a formula based on location of residence, number of children, types of disabilities?
Ms Foley: Certainly the welfare system has the capacity to do much of that now. There are shelter allowances that vary from one community to the next. There is a variation, of course, of the number of dependants. I think that is not a concept that would be very difficult to develop given some of the baseline funds that we have.
Mr Elston: Presumably, though, we would have to make sure that the support system was augmented. SARC is one area in which there have been some recommendations obviously and which, I am sure, you are well aware of, but we would have to be pretty well assured that there was substantial augmentation of the amounts to at least the poverty level, which again to me does not sound like a fair place to stop but at least is a first step, if I could arrange in that way.
Ms Foley: Yes, it is a reasonable first step. There would certainly have to be the kind of arrangements that, if someone literally left the country and made enforcement next to impossible, then there has to be a renegotiation. If the support order provided for a substantial amount of $5,000, $6,000 or $7,000 a month, and the person who was paying support was truly untrackable, then there has to be a renegotiation. I do not think we would expect the province to automatically pick up a very, very generous support order that is well beyond some basic social assistance.
Mr Elston: Just one other question. We are getting a little bit of conflicting advice on the issue of the opting out, the consent opting out.
I pursued a series of questions yesterday with one of our groups that have made presentations, I think it was representing the law union, it may have been them. At least someplace on the record yesterday there are questions where I had suggested that maybe there was a possibility that coercion, possibly suffered by particularly abused spouses, would be best eliminated if there was no option whatsoever. The reply was, from them, that that removed all possibility of choice and made it so that the spouse had no decision-making power or authority, control over their future destiny. So while they recognized, in fact advocated, some problems existed with respect to a consent order possibility, they did not want to remove it.
Can you help us? I know what you just said a little bit earlier, but can you help us with that side of our dilemma when we get conflicting advice from people who are working on the front lines but in slightly different capacities?
Ms Foley: Certainly I appreciate the feeling that one was left with if there is a sense of choice and some option about it. l think if we begin to paint it in the same colours as other responsibilities, such as income tax, it does not become a matter of "you have no choice," it just becomes a matter of "this is the way that it is." I think we do have to promote that attitude --
Mr Elston: No, no, I understand that line, but this is with respect to particularly the opting out and the issue of whether you would prefer this committee to advocate the removal of all choice in terms of that consent or not. It has nothing to do with comparing it and choosing to pay Visa or the television bill or whatever it might be, but it has everything to do with the psychology of helping a person again reassert control over his own future.
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I took it from what was said to me in my questions yesterday that part of the first step of taking control of one's future is being able to make a decision, and maybe by just refusing any access to a choice in the early going would be not an insurmountable but it is certainly a problematic commencement to a person's going on his own.
Ms Mayhew: I am very sympathetic to the notion of allowing people to have choices. Having said that, however, our current system is one in which there is quite a wide range of choices as to whether or not --
Mr Elston: Sure.
Ms Mayhew: -- apparently, as to whether or not men pay their support payments, and we see that in at least 75% of cases they choose not to make their support payments. I think we have to be guided by the empirical data that we have, that where you leave these sorts of choices, the choice not to pay is often made.
Mr Elston: This has nothing to do about that; it is just the issue --
The Chair: One last question.
Mr Elston: No, I will stop.
The Chair: I would like to thank you very much for your presentation. Obviously it engendered a lot of discussion. Thank you.
Ms Foley: Thank you.
The Chair: Before we start with the next presenter, I would just like to make mention of the fact that our schedule for this afternoon has been lightened slightly in that we will not be starting until 2 o'clock. The witness at 1:45 will not be appearing.
MRS PAUL DEMETER
The Vice-Chair: I would like to call upon Anne Demeter, please.
I would like to welcome you to the committee hearings and remind you that you have 15 minutes, and you can use that whichever way you wish. Go ahead.
Mrs Demeter: Mr Chairman and members of the committee, it is sincerely appreciated that you have invited the people to express opinions on Bill 17 as it affects the administration of justice.
I am happy to be able to say, in good conscience, that I have never been summoned to court, but in the past four years I have involuntarily spent an excess of time in courts from Osgoode Hall to Chatham to audit what takes place in our halls of justice. If it were a natural inclination to be good which has kept me from the clutches of the law, what I have observed has made me resolute to be very, very good. In fact, my experience with judges, crowns and lawyers of varying degrees of competence seemed so weird to my sense of integrity that I thought I might be losing my critical judgement.
Two years ago I enrolled in a government-sponsored course in family law and, to my pleasure, was able to maintain an average of 95%. At least in reading it the law is reasonable; it is when it is in practice distorted by social and political interpretations and influenced by high-decibel groups that it is an ass.
The most violent justice body in family law, SCOE, formerly known as support and custody orders enforcement, is now known as support and custody orders enforcement branch. One wonders how many think-tank hours and how many dollars were expended in making this astounding change. Its administrators, however, still call it SCOE and nothing has changed. So SCOE must go.
A good omen in the 6 December announcement by the Attorney General is that he did not mention SCOE, and neither would I were I in his shoes. Bullet-proof glass separating clients from staff, electronic locks and screening devices, false addresses on letterheads, and a single 800 phone number which answers four questions that nobody asks do not inspire honourable mention.
Will Bill 17 reduce the frustration and anger of those already reeling from divorce or separation and burdened with obscene legal fees? Does it guarantee fair treatment for those, like myself, who have lived within the law and respected their family obligations?
Despite the statistics showing the numbers of men and women who use money and children as instruments of punishment, we must remember they are far outweighed by couples who do not. Why should these self-disciplined people be lumped together with the slackers? Is this not in opposition to our legal system which assumes that one is innocent until they catch one? I believe this government garnishee of wages could be challenged in the courts. We note that two groups are excluded, the first being dentists and doctors. Are their insurance companies more honest than a loving parent? And the self-employed, why are they protected?
I noted the gulf between the law as written and as acted out in the courts. Last July I took the bizarre step of picketing the courthouse in Sarnia where nasty things were going on: judges' letters addressed to me but never sent, and showing up months later in their files; no replies from the crown, nor return phone calls in re proven perjury; a lawyer's letter threatening to sue and intended to scare the bejabers out of me.
I weathered the embarrassment of being in the press, but I got justice, and I had nothing more to do with them. But now it seems somebody with clout did. It was a bully girl who was behind this, although I never saw her. She worked for a judge. On 22 December she was fired. In a fit of pique, the judge sealed his chambers. He said Vicki was the only one he trusted. What did that say for the other judges, crowns, clerks and security? For a month the court was hampered by his actions and then, on 17 January, he was ordered by Justice Zuber to open the door. With such paranoia and infighting by a judge who makes decisions on critical family issues with their extended social implications, it is small wonder that the Attorney General has pledged a legal system overhaul.
In his announcement of 6 December, the headline reads, "Ontario Cracks Down on Support Defaulters." The operative word here, of course, is "defaulters," yet employers may be permitted to remove funds from pay envelopes of all payers of support. This is unacceptable for several reasons: Businesses should not be drawn into such an invasion of privacy; paymasters are not sworn to secrecy; it will not make the defaulters behave, they will simply change jobs or disappear, and this is a futile attempt to legislate morality.
To make a request for exemption, dependent on the permission of the recipient, is patently unfair. The cranky partner who stubbornly refuses to enter into a face-to-face meeting with the supporter who has never failed in payment must be dealt with severely. This could be managed through the promised overhaul by withholding funds until they co-operate.
Now the bleeding hearts will raise a dust-up, claiming that it is the children who are being deprived. Not so. Brother Richard, chairman of the Hamilton-Wentworth food bank, with years of experience in discerning the bad actors, recently said that money is not the main issue. "You could give some people $5 million and it wouldn't be enough," he said, because they have no skills in bringing up children, managing a household, or social mores. They must be told to make a start by putting the cap back on the toothpaste.
The first order of business in restructuring our legal system is to restore a respect for truth. Flagrant abuse in sworn testimony and affidavits has been the price paid for the abandoning of perjury charges. Lawyers will tell you most of what is passed off as truth is creative fiction. A tiresome similarity in a comparison of testimony points out that lawyers are programming their clients to be loose as a goose in setting legal scenarios. How is this different from 50 years ago when the man, in order to protect the little woman's honour, would agree to fake an adulterous liaison, complete with cameras? The only ones benefiting from this subterfuge are the lawyers.
As members of this committee, you have a great burden to carry. We are at a crossroads where people are demanding that the new government challenge the legal system and remove the abuses. The CTV program of 6 November asked the question: "Who's Policing the Lawyers?" The answer was, nobody. With respect, I ask you not to add to this confusion, but to present us with as perfect a Bill 17 as is humanly possible.
I have just appended here some of the things that I referred to in there, any references I made. I have added that on at the end.
Mr Carr: I just wanted to know what got you started down this road. Was it a particular incident?
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Mrs Demeter: I was reading some things in the paper and there were some personal, or related, or friends, or people who were having difficulty with some of these things. Many of the people who are involved in this are very busy making a living. They do not have time to be scooting around from one courthouse to another, to take the time. There are quite a number of people of my generation who are now on to this.
Mr Carr: You might be probably even a better expert than some of the lawyers, having followed it clearly, because you come at it from maybe a more objective view. When we speak with some of the lawyers, we hear about the tremendous backlogs. We have got a year, one gentleman said two years. You ask the lawyers and they say, "Yes, maybe so, but we could settle before that," but then the reality is that they usually do not until it comes up to court day. So basically the court system, as the Attorney General will tell you, is in an absolute mess. And I was just wondering what your experience has been in these cases about the amount of time it takes to get a solution from the court and, also with that, how long and how much it costs.
Mrs Demeter: It is a zoo and I think the lawyers have got to be brought to task for taking on too many clients. There is a retainer when somebody goes in to them and then they forget about you and they are busy with the next, and they see you and they do not see you again until maybe you have to harass them or call them, and you usually get their secretary; you cannot get them. There are a whole lot of things have to be done with the law society, really. It must be.
Mr Carr: So you do not have any idea what it costs to go through the system with something like this?
Mrs Demeter: I know one man, it is over $30,000 right now, yes.
Mr Carr: In lawyers' fees and so on?
Mrs Demeter: Yes, in lawyers' fees, yes. Oh, that has got nothing to do with the settlement. That is just lawyers' fees, yes.
Mr Carr: Also you mentioned, I think, on page 1 about the SCOE office, the bullet-proof glass and so on. Maybe you could expand a little bit on that, because I would like to hear a little bit of what that is about.
Mrs Demeter: Okay. In the London office, as Gail Taylor told us -- we came down to see her; she was the executive director; now she has gone with the federal government -- but the glass there, there is no egress after you are allowed in the door. You are just in the lobby and if you want to speak to anybody, you have to speak through just a hole, like that, and if it is a tall person, it is a most embarrassing position to be in, too, to have to get down, and it is totally unsatisfactory.
The reason that Miss Taylor gave for having this 800 phone number -- and it can take you anywhere up to two hours to even make contact on that, and then it is just this electronic thing telling you answers to four questions and they are not what you want to know anyway. But she said they did that because, "Our staff is certainly not big enough, that if we answered all the questions that came to us" -- well, you know, they could not afford it. Well then, why have it? It is just another body there that is creating havoc.
They have held up cheques. I know, personally, of money that has been sent to them and the recipient has not got it and then there is another, "Let's go back to court." This has got to stop, because the people are talking now about the difference in the standard of living after separation, that there can be this wide divergence. Certainly people are keeping up two homes where they only used to keep up one. There is going to be a drop for both men and women. If the court says, "This is what is supposed to be paid," and it is paid faithfully, that person should never have his employer have anything to do with this. This has nothing to do with business, absolutely. They should not be put through that.
As for this business of asking people who are at loggerheads to get the other one to make some kind of an agreement that it can just be paid to them, this great big rise in how many people were defaulters came all of a sudden and it came after there was a general order issued that everybody had to pay through SCOE. Then you would hear the people on the talk shows say, "And these are the defaulters." They are not the defaulters at all.
Just because people decide to separate, for whatever reason, does not mean that either parent has any less love for that child. They are going to do the very best for them -- and that applies to grandparents too -- that they possibly can. And the least interference that we have -- as I say, there is nonsense that you will read on this one.
I gave this to Edward Greenspan at the Shirley Show on the lawyers, and he advised me on it. l wrote
"I think it was Henry Vl who said, `But first -- let's kill all the lawyers.'
"Church bulletins are carrying ads under the heading `Women's Interest Groups' -- Women, Children and the Law. Guest speaker (unidentified) and a phone number.
"A friend of ours, curious as to why fathers were not included, attended one of these in a private home. The speaker, a female lawyer, warned them of the necessity to keep absolutely quiet if they were contemplating divorce. Don't tell anyone -- parents, children, religious counsellor -- until they had seen her.
"She would advise them how to clean out the bank accounts and take the children, because the judges placed such importance on `possession' being nine points of the law."
Then I asked Mr Greenspan, "Has the law society sunk so low as to look on the hustling of business in homes, and this very bad advice, as legal or ethical?"
And this is what is happening, and there is proof of it all over the place and there is no need for this hate to be engendered by any outside body.
The Vice-Chair: Mr Carr, I would like to remind you that we have run out of time, if you would not mind keeping it brief for now.
Mr Carr: I am up, am I? I am up.
The Vice-Chair: I would like to thank you for coming and giving us that presentation.
Mrs Demeter: Okay, thank you.
FRANK MACKINNON
The Vice-Chair: Frank MacKinnon, please.
I would like to thank you for coming and remind you that you have 15 minutes. You can use that whichever way you want to use that. You may begin now.
Mr MacKinnon: Well, I would like to thank you all for inviting me here today as well. l would like to start off with a bit of a preamble, and sitting here this morning listening to the presentations, given that I am one of the candidates you and your committees could be chasing for support payments, whether I deserve it or not, I felt like I was drawn and quartered by the various associations that spoke here this morning.
I want to thank Anne Demeter. It is the first time in the 10 years that I have been separated and divorced that I have ever heard someone speak out on behalf of the supporting spouse, male or female.
My problem in preparing for this morning's presentation was how to present the case in the first place, and I decided I would personalize it, because in the end it brings things home to reality, if you like. It is one thing for associations to speak in a black-and-white sense as they look out at this as a job to be done. It is another thing when you are caught in the middle of it, and as Anne Demeter clearly points out, you have no one, not even the law, to turn back to for guidance or support.
With that in mind, I would like to go through my presentation, and I would like to point out once again that it has been personalized but I believe on a global sense it applies to most people in my situation.
A bit of background: Where my situation is concerned, it shows that for 10 years I have been separated and providing financial support to my wife and children of that marriage. During those 10 years, I have tried extremely hard to maintain family relations, and I believe I have succeeded in doing so -- 10 years of fostering parental relations with my children, even under conditions that were adverse to what I was trying to accomplish and maintain in a situation where I was living apart from my children, but at the same time trying to create the feeling of security that the child so dearly needs in a situation such as divorce and separation.
It is very expensive to go through a divorce, as many people have found out and I am sure you are aware, but my personal cost was $30,000 in legal fees before I finally established terms with my spouse, terms that were acceptable, more to her than they were to me. If I had continued for my purposes, the $30,000 would have gone on to a much larger number.
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I have had 10 years of alimony and support payments, without ever missing a single payment, I would like to add, and 10 years of providing the kids extra, whenever finances permit, and of sharing tuition fees with my oldest son and my daughters, soon to enter university and remain there.
The current status, then, is that I have been officially divorced for the last three years. I did not require, however, a court order to bring home the responsibility of support payment for the previous seven. I have been married for the last two years and a half, and from that marriage I have two young children. I have a total of five children from both marriages, and I am very proud to say that I feel a responsibility to my family, whether they live with me or they live apart from me.
I have, according to our separation contract but not through legal enforcement, reached a mutual agreement with my ex-spouse to reduce the alimony portion of support and custody payments. This agreement has been made between my ex-wife and myself and without the involvement of lawyers on either side, and I think the point will be drawn later. Payments are made direct and copies of all cheques are available as proof of payments for any year you might like to audit.
According to our separation agreement, my responsibilities to provide my ex-wife with financial support in addition to custody support ended a year ago. That is, she was supposed to be self-sufficient two years following the divorce, and I have no formal record that she is or she is not. However, given the limited information I have, I did meet with her at my request over a year ago and negotiated a reduced payment to her which is less than the contract actually allowed me to do.
I recognize certain circumstances in today's economy, especially when you have three children living with you, that sudden cutoff of finances has an impact. I am well aware of financial strain for the reasons or comments I have made, so it is not my position, having left my first wife, to cause anybody undue stress. It is, in fact, my position to make life a little bit better for both of us. I have no formal idea of whether my ex-wife is working or not. She on the other hand does, and prefers not to make that information available to me, so I continue to work in a vacuum and I continue to make decisions as fairly as possible based on limited information.
The separation agreement was established, based on the fact that my current wife was employed at the time, and since that time we have had two children and my wife has been out of the workforce for the last three years. The point of this is that the decision was made when my current wife was making a substantial amount of money. I should not say substantial, she was making a good income just before the decision was made or the court order was produced. She had left the workforce in favour of having a child and I continued to pay, according to the court order. I continued to ensure that both families were looked after as fairly as possible.
The next page is my impression of the impact of the proposed amendment to Bill 17, and I am not against the bill, I am in favour and I am hoping that I am drawing a point that I am in favour of custody and support. I just totally disagree with people who divorce and leave their children forgotten. But I am against the bill when I hear groups such as I have heard this morning talk about the male role here. I mean, that is the problem I have had with the law from the very beginning. It is always the male who is the culprit. Now I suppose we make up the majority. However, one of the groups, and I think it was SCOE, bothered me when they indicated that statistics are not kept regarding support payments. My attitude towards that is if you do not have a statistic, then you do not have a problem. If you cannot prove the situation, why are you people here meeting to solve a problem in the first place.
Needless to say, if payment is to be made direct through my place of employment, I am afraid my ex-wife will use this to reverse the progress made to date. I have had a long struggle in getting where I have today. I believe that a regression will take place and we are both going to pay for that, and we will pay for it dearly.
My income versus financial commitment to my family is already heavily burdened. I could not sustain a reversal in current conditions as per the first point or the burden of additional legal fees. The children from the first marriage are 20, 18 and 16 years of age. Their needs are different than the younger children who are four and seven months. I am committed, as I have been in the past and continue to this day, to ensure the best care possible for my family. I do not believe that I stand alone here, but I am here to speak on behalf of fathers like myself who feel that responsibility. Children from the first marriage choose to live with me for months at a time. Then they move back with their mother. I believe that wherever the kids are is where the child support should go. And we try to balance that or I try to balance that.
Legal intervention should not be required to redirect the child support under those circumstances. It would cost too much money; it would be too time-consuming and repetitive changes would be quite a burden to my employer if my employer is going to be pulling funds as a direct payment.
To be placed in a position to involve the legal system for every desired change in circumstances would cost thousands of dollars to both sides. The only beneficiary in this case, as it has been in every case, will be the lawyer. My recommendation, based on my own personal experience, is that the government should implement amendments for troubled situations only. That is where the spouse has reported delinquency, the spouse male or female, related to the support and custody payments. The province of Ontario should assume the authority to investigate thoroughly and intervene to ensure fair payments are maintained. In all other cases I truly believe you should leave things as they are.
The Chair: Thank you very much. Mr Carr?
Mr Carr: Yes, I want to thank you, as we have thanked all groups coming in, particularly, as I said before, the ones that are dealing with a personal situation rather than the groups that are doing it without personal involvement. And we sincerely appreciate that from all sides. One of the questions I have got, and I asked it earlier to one of the front-line workers in the Ontario Public Service Employees Union, the person that is right there, what the reasons are for non-payment? She cannot give me the reason why they do not pay or will not or whatever. I was just wondering, the perception has been left that 75% of the men, mostly men, do not want to pay, and obviously that is not the case in your situation. I was wondering if you have any guesstimates, through the people you have talked to, of whether this is high or what the reasons for non-payment would be?
Mr MacKinnon: If I look at your question as being two, the first one being, "Do I mind paying?" the most honest response to that is, "Yes, I would rather keep that sum of money." I feel a tremendous commitment towards my children as every parent does, I am sure. It is because of my parental nature that I must make that payment. I am not encouraged by my spouse to make the payment in terms of the support or understanding that she may pass on to myself in this particular case. I am locked out of most situations that my children may be involved in or be part of.
That sort of begins to answer the second part of your question and it ties so well into Anne Demeter's commentary because basically it is a burden to make custody and support payments. But it can be lightened by a positive attitude and support by the receiver. If you do not get that support then you must remind yourself on a continual basis that you are doing this for the children and not for her or him as the case may be. That is a very difficult thing to do.
If it is 75% I would challenge the number anyway, because most, in fact all, of the people that I know in my situation, like myself, do not miss payments. Now I am not going to stand here and try and cast a halo over my head by saying that at the first of the month, every month, I am there at the door with my ex-wife's cheque, but I am there within the first few days. To go back to Anne Demeter's point about the receiver being perhaps the culprit in this situation, you would think that after 10 years the receiving spouse would have the common sense of respect, I guess, for her, or the payee in this case, of talking and sharing concern regarding the children, etc, but nothing has changed. Things are like they were perhaps 10 years ago. I would suggest that that attitude exists in many, many of the cases and that could be the major reason why people fall back on support.
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Mr Carr: One question, too, regarding what I think one of the -- and I do not want to quote him wrongly, but one of the lawyers' groups that were in yesterday said, "Well, if the payment is too much, just go back to court and change it," and then, of course, we find out that it takes a year to two years to do that and I was astounded to see the $30,000. Maybe you could just give us your experience of what it was like to go back through the court system and then also, I guess -- I take it that is why you tried to work out the agreement individually with your wife, without the lawyers, because of the cost and time frame. But maybe you could share with us where that $30,000 went and what it would be like if you tried to --
Mr MacKinnon: Well, the $30,000 -- and I remind you, that was my cost. I have no idea what my ex-wife's cost was, except she handled that, I guess, through the settlement payment from myself. But the cost was directly related to the fact that it took a long time to achieve the end result. It took a long time to convince my ex-wife that her husband was not coming back, it took a long time for the lawyers to get the message across. It is hard to say, you know. In a situation like this there are so many factors at play, you never know what the real circumstances are and I, of course, do not want to cast the impression that I did everything perfect and my ex-wife did everything wrong. That is not the point. Divorce is a very, very dirty situation.
I know people whose expenses have been much higher than that. I know people who are going through divorce right now and in the last few months have come together with a document; they walked into a lawyer's office and said: "Here, notarize it. This is what we want." But where you have a situation between -- and I think it is the case in most cases -- where one of the parties refuses to come to terms the cost will get higher and higher. There is no accommodation through the legal system that basically says on every point -- I mean, you could take divorce and you could break it down into the various points, as I have basically with this document, and you could say, "All right, now we've spent enough time, if not money, on that point, it's time to move on." Someone should intervene and make the decision where the individual is incapable or demonstrates that he or she is incapable of making that decision.
Mr Carr: I only wish we could have used some of that $30,000 for the children instead of for the lawyers.
Mr MacKinnon: Absolutely.
Mr Wessenger: Mr MacKinnon, are you aware that prior orders and separation agreements are not subject automatically to support deduction? So unless your ex-wife requests it, you will not be subject to support deduction.
Mr MacKinnon: I am not sure if I understand your message.
Mr Wessenger: I am just saying that you will not be subject to a support deduction order unless your ex-wife files and requests the order as amended by the separation agreement with SCOE. So you are not going to be subject to it, unless she makes that decision.
Mr MacKinnon: That was the reason for coming here, because I was not sure if I would be and I thought, "My God, there must be more people like me," and if this is going to be an en masse -- or a decision that affects the mass, in essence what I was hearing this morning, then it would be very damaging.
Mr Wessenger: So you will not be subject to it unless your ex-wife makes a decision to require SCOE to implement the program. That is the first thing I would like to tell you.
The second thing I would like to tell you, and I think all members of the public should be aware, is that separation agreements themselves, even in the future, will not be subject to support deduction unless the spouse requests the branch to enforce it. So in future, people can opt out of the situation by agreement, provided there is no court order made, of course.
Mr MacKinnon: I guess, and I know I am out of time, my only point to that is if I were the receiving spouse and I looked at this article that you have had in the late December time frame --
The Chair: I am sorry, we entered into a side discussion. My apologies.
Mr MacKinnon: That is fine.
To continue, I would look at that as an opportunity to go to the Ministry of the Attorney General and reverse things to where they were, which in her case would be beneficial. As I indicated, it would force myself or people like me to incur legal expenses that would very quickly -- I mean, you are looking at $250 an hour now for legal expenses, and all of a sudden you are looking at another $10,000 to $30,000 of fees for help, lawyer help, to defeat something that the ministry forced on us. Your article in the Toronto Star back in late December is enough of an opportunity for people to basically jump on the bandwagon and say, "I'm going to get the SOB again," and it really scares the heck out of me and a lot of people I have spoken to.
The Chair: Thank you. Ms Murdock has a short question.
Ms S. Murdock: A comment and a short question. Just to even go further than what Mr Wessenger has said, one of the sections under Bill 17 is 3k, and even if your ex-wife went and asked for the order to be enforced through this bill, it is only if the director thinks it is advisable, and if it is impractical, it is likely that the director will not consider it advisable. So if it is working for you, unless it is going to serve a purpose, it will never be included in the process. In truth, if it is working for you, and from what you have said and if everything here is correct --
Mr MacKinnon: That is right.
Ms S. Murdock: -- then, I do not think you have a problem. But I am just interested that wherever the kids are is where child support should go.
Mr MacKinnon: Yes.
Ms S. Murdock: And I agree. Obviously, if the children are there, you need the money to feed and clothe them where they are, but how would that work, how could you get that into the system? Presuming that this goes through, the system is not set up to have it -- you know, like the kids stay with you for three months and then they decide that they are going to go back to the mother for three months and then -- you know? I mean, the system is not set up to do that and I am wondering --
Mr MacKinnon: You are absolutely right and I think that is where the -- and I have no answer for you, except in my personal case. When the children move back with me, whether it is one, two or the three of them, I adjust the custody payment accordingly. At first my ex-spouse did not appreciate that. I sat down and I tried to explain it and I believe today she still does not appreciate it, but at the same time, as I said to her, "Well, look, you have got then to sit down and talk to me about things that are going on so that I can encourage the child in your direction and these things won't happen. But if you don't do that, then the consequences -- they're living with me and that's an expense," and I cannot double that expense by paying her as well.
Ms S. Murdock: It is just a question that no doubt the ministry people will let me know how that works later on, but it was a point. In fact, out of everything that you have said, that was the thing that probably struck me the most because, surprisingly, it has not been raised all week. No one has raised that issue at all. Thank you very much.
Mr MacKinnon: Okay.
Mr Elston: Just briefly, it is basically to the parliamentary assistant and his advisers, because the advice given to our presenter has basically been, "Don't worry about this, this won't" --
Mr Wessenger: I think there should be some clarification.
Mr Elston: I was just going to ask for that and since you are volunteering, proceed.
Mr Wessenger: There are two ways for your existing order to be enforced. First of all, the recipient, that is your ex-wife, would request it, plus it is feasible. So those two tests -- the recipient requests it and the director considers it feasible.
Mr Elston: So, ie, there is an identifiable income source?
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Mr Wessenger: It is an identifiable income source, that is right, correct. The second way it could be enforced is if the agreement is filed and the director considers support deduction to be the most practical method of enforcement, but that would probably only arise in the case of default, I would think.
Mr MacKinnon: With all due respect, I sat and listened to the two groups this morning. I caught the tail-end of one and the other one from the Sarnia area, and what makes me nervous about these groups is that they present a very black-and-white picture. There is no room for feasibility, if you like. There is no room for what may really be going on here and it becomes a case load situation where, if we spend time listening to this or trying to do something mutually beneficial to both sides, it is going to increase the case load. Let's just stamp it as being completed and let the consequences fall accordingly. That cannot be done. I think you would cause more harm there in that approach than in trying to find something more equitable for both sides.
Mr Elston: You will likely also be pleased to know that if your payment arrangement is to be enforced under SCOE your contributions to your son's tuition will not be considered as any part of the support at all. In fact, any informal arrangements for you to increase will not be acknowledged by SCOE as being payments to be made and, in effect, you could not make extra payments to SCOE, because they would not forward them on. They only pay what is due to your ex-spouse. But in fact they would require you, if you wanted them to be made, to pay them directly to your spouse or directly to your son, who is making the payments.
Basically, I think what the point becomes is that there is very little flexibility in your circumstances. I have to acknowledge that while you say that maybe 75% is not the right number, that is probably true, but there are a lot of people who do not pay support and you are evidence that in fact there are people who make the payments out of a sense of responsibility and obligation, which is right. What we are trying to do here is find a quick way of making sure that the majority of people in fact make the payments that they are responsible for.
The question for us is now, how do we make it flexible enough? Your circumstances make it appear that it is going to be dangerous or could be dangerous if there is not enough flexibility for people like you who are responsible and law-abiding. So I think it is a word to the wise.
Ms S. Murdock: A point of clarification here: If that is the case, then what does section 3k say? If what Mr Elston was saying, and got clarified by you, then I am reading section 3k completely wrong.
Mr Wessenger: That there is a proposed amendment to the bill.
Ms S. Murdock: Which changes that?
Mr Wessenger: Which changes that. That is right, that is what I am referring to.
Ms S. Murdock: Changes it how?
Mr Wessenger: It changes from the word "practical" to the word "feasible."
Ms S. Murdock: I do not have "practical." Section 3k:
"(1) This section applies only to support orders filed with the director's office that are,
"(a) support orders made by an Ontario court before this section comes into force;
"(b) domestic contracts and paternity agreements...
"(2) The director may enforce payments under a support order to which this section applies as if a support deduction order had been made if the director considers it advisable to do so and the director shall do so if the recipient requests enforcement...and the director considers it practical to do so."
Mr Wessenger: Yes.
Ms S. Murdock: You have changed "practical" to "feasible"?
Mr Wessenger: Yes.
Mrs Cunningham: Big change, eh?
Ms S. Murdock: You're not kidding.
The Chair: Could we reserve this discussion for clause-by-clause and amendments, please?
Ms S. Murdock: Yes, well, I wanted a clarification, which I am allowed to, Mr Chair.
The Chair: Yes, certainly.
SUPPORT AND CUSTODY ORDERS FOR PRIORITY ENFORCEMENT
The Chair: We have now a presentation from the Support and Custody Orders for Priority Enforcement. Could you please identify yourselves into the mike? My apologies as well, on behalf of the committee, for the time delay. You have, as you have probably heard, having sat through a couple of presentations, a half-hour as a group and you can divide that time whichever way you wish.
Ms Poulin: Okay, thank you.
The Chair: Please start when you are comfortable.
Ms Poulin: My name is Judy Poulin. This is Rosemary Gilbert and John Nicks. We represent Support and Custody Orders for Priority Enforcement, or SCOPE for short. SCOPE is an organization committed to improving the enforcement of child support and changing the attitudes of society about parents' responsibilities after separation. The majority of our members are registered with SCOE.
We will not be quoting statistics. I am sure you have heard them already. We will be trying to give you a firsthand view of the problems and emotions that we and our members have encountered. We will also be addressing some of the suggestions that we have come up with.
Our group was formed in February 1990 after an article in the Ottawa Citizen. My phone has been ringing off the hook ever since. We now have a mailing list of over 250. Our first newsletter was sent out in the fall of 1990 and it is attached to your brief. Our second will go out in March of this year.
We are currently based in Ottawa, but will actively pursue membership across the province in the coming months. At our monthly meetings we spend time talking about our individual cases and how to improve them. We are currently in negotiations with SCOE to set up advisory boards across the province. These boards would provide the vital link that is missing between SCOE and its clients.
Mr Nicks: As an organization, SCOPE is pleased to see the new political will apparent in Bill 17. Changes to both the Support and Custody Orders Enforcement Act and the operation of SCOE are long overdue. This new desire to make a workable and effective system out of that which currently exists is one that we are relieved to see.
We feel that the proposals contained in Bill 17 will be a great benefit in clearing up the massive backlog of cases that now exists. This bill will benefit not only the children of Ontario but also relationships between members of the family unit as a whole.
The penalties proposed in Bill 17 for failing to fulfil the moral and legal obligations parents have towards both their children and each other are a step forward in resolving the current situation. However, we are concerned that, as in the past, these will not be followed through and the program will lose more credibility.
Many fine words and promises accompanied the original Support and Custody Orders Enforcement Act. Many of these remain unfulfilled. We are concerned that few changes have been proposed for improving debt collection from those defaulters who are self-employed or whose incomes are from non-salaried sources. We are aware, however, that this is a major problem area and we will put forward proposals for deterrent measures to help deal with this.
The system of debt collection will continue to operate poorly unless adequate funds and resources are allocated to deal with it. Care must be taken to ensure effective systems are put in place to handle the massive and growing case load. SCOE's staff must be fully trained to handle all procedures to avoid client frustration, a major issue in the fundamental reason for the existence of this organization.
Ms Gilbert: Support deduction order: One issue that we are glad to see addressed is the provision for support deductions from salaries and other income sources. This was one of our original suggestions to SCOE for improving support enforcement. We feel that this will create fewer problems within the separated family, since the almighty-dollar focus will be removed. Many custody and access battles are fought because the payment of support is a bone of contention.
On the enforcement side, it simplifies matters in cases where there are reluctant debtors. It will no longer be a simple matter to avoid enforcement by garnishment by changing employment. It is by no means rare to find a debtor who regularly bounces between paid employment, unemployment insurance benefits, self-employment, back to salaried employment, often with a spell on social assistance thrown in. All this is done to stay one step ahead of a garnishment. Meanwhile, the children and families entitled to the support being avoided are probably living below the poverty line. We do not need to remind the committee of the poverty rate for single-support single mothers. Compliance on the part of employers is also provided for. This is important in reinforcing the concept that society as a whole must be responsible for the enforcement of court-ordered family support. The image of a wage attachment or salary deduction is very different from that of a garnishment. It is an important step in establishing in the public mind the concept of the universality and normality of this form of payment. A support deduction order will be issued whether the payer is a deputy minister or a parking lot attendant. It does not send out signals that the support payer is a deadbeat who must be forced to meet the financial obligations.
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Flexibility is also provided by permitting the parties to opt out of the program if they agree and if security requirements are met. This could apply where there has been an amicable separation or in the case of a debtor who has been faithfully making all payments on time and in full. This opting-out factor will allow enforcement officers more time to deal with those cases that require active rather than passive enforcement.
Provisions for enforcement: We are in large part in favour of most of the amendments being proposed for the act. However, the original act also contains strong provisions for enforcement. The problems with the current act from the recipients' perspective have as much to do with the lack of staff at SCOE to initiate enforcement action and failure to follow through in a timely and forceful manner as with any weaknesses or ambiguity in the act as it now exists. We are feeling a healthy scepticism and will reserve judgement on the changes which will be implemented until we see concrete changes in the cases of our members.
Where there has been contempt of court by perjury, such as outright lying about income sources or assets owned, whose responsibility will it be to lay charges? Since the crown attorney lays these charges and the crown attorney is not present at a default hearing, how are these charges to be laid?
Concerning the new obligation on the debtor to provide information on changes of address or employment, how will these be monitored? Since searches through federal data banks average 40 to 60 business days, a debtor trying to avoid payment could be untraceable for months before the next enforcement step could be initiated. There then is a time delay before this next step can be effective in getting the money flowing to those entitled to it. In the meantime, the arrears have accumulated. In the meantime, the children continue to live in poverty.
More use must be made of the default hearing provisions. Bill 17 proposes that even if payment of outstanding arrears has been made SCOE may elect to proceed with the default hearing. We applaud this measure. We believe that if a case has reached the default hearing stage, and this is usually when all else has failed, the defaulter should in every case be made accountable to the court. The court could at this time decree whether a penalty should be imposed or a security should be provided or both. This would put some teeth into the system and give it credibility.
Case history 1: "For the last eight years I have had to fight to receive the child support ordered to me by the court. There have been six default hearings ordered. Three of them were cancelled because payment was made before the court date. In two of them the payment was made in the waiting room outside the court and the judge then dismissed the case. One hearing went ahead with my ex-husband failing to appear. He eventually paid 10 months' worth of payments, again without having to answer to the court. Six times taxpayers' money was used. Six times my ex-husband walked away without a penalty. He continues to pay his support only when backed into a corner by SCOE and the court system."
The bill has made some improvements in the procedure for a writ of seizure and sale. The provision to change the amount owing directly with the sheriff without having to go back to court is a good one. We would like to see the court system automatically recover from the debtor all costs incurred in this process. If the case has come to the point of seizure and sale, measures need to be taken to deter a repetition of the default. The cases of our members are full of writs of seizure and sale and arrest warrants from default hearings, none of which have been actioned or executed. These are the strongest measures we have in the current or the proposed legislation. The act will continue to be a paper tiger unless its provisions are used consistently and fully and unless the court systems and the police forces of this province give it their full co-operation.
Ms Poulin: Many of the phone calls I have received over the last year have been from frustrated men and women. A lot of this frustration is due to the lack of information being given to them. Some receive conflicting information; some none at all.
I will read you one case. It was filed in October 1987. The court ordered the debtor to pay all arrears in June 1990. A warrant was issued for his arrest when they were not paid. As of this date, they are still not paid and the warrant has not been executed, despite the fact that they do have his present address. The custodial parent in this case spent many hours trying to get something done, but eventually gave up.
You get to the point where you are so overwhelmed by the whole thing that it seems to be better just to give up. We are afraid of the message that this is sending to our children. The frustration takes over and it works its way into your everyday life.
There have been some improvements in the phone system, but it is still inadequate. SCOE staff continue to give incorrect information. It is imperative that this change. The feelings you go through when support is not being paid are hard enough to deal with without being made to feel belittled and unimportant.
We would suggest an information form be sent to clients approximately every six months. It would include a list of dated actions that have occurred since the last update. It would also ask for any new information that would assist SCOE. Also, we strongly recommend an advertising campaign to include radio, news media and television -- educating the public of the consequences that families go through when they cannot depend on monthly support payments.
Our recommendations for the act are as follows:
The act would include provisions for strengthening communications with the federal government in order to improve the retrieval of vital information on the debtor.
That the necessary steps be taken to ensure all penalties stated in this act be fully enforced by the courts.
Our recommendation for changes in the act that go directly towards deterrent measures are as follows:
All default hearings once ordered by the court must be heard regardless of amount owing. We would take away the discretion of SCOE to proceed with such.
All costs incurred would be recovered by the court in every case where a writ of seizure and sale have been so ordered.
We strongly recommend that public input be sought in the implementation of the regulations mentioned in the act.
Thank you.
The Vice-Chair: Thank you very much for that interesting brief.
Mrs Cunningham: Thank you very much for coming before the committee and helping us out with this legislation, and let me commend your group for the education that you provided for the communities that you come from. I was reading -- I guess it is the Ottawa Citizen that covers you most and you obviously have done a very good job of raising some concerns around a very important issue. Because of that I think you have got a lot of credibility so I am going to ask you a couple of questions with regard to your brief this morning.
You seem to be very understanding in your approach. Although you have your own group, you have actually offered to start a men's self-help group or perhaps yours is for both anyway, but I saw you reached out and said some of the men who are talking about losing their jobs because of garnishment that took place eight months after they had their problem because of the operation of SCOE -- I wondered if you would talk a little bit about that.
Ms Poulin: We have a problem, which was mentioned before, regarding lawyers in family court. On both sides, it hinders the outcome of the case. A lot of men get bogged down in lawyer fees that they just cannot possibly pay and, on the other side, where there should have been an increase because circumstances change, the same thing happens. The custodial parent cannot afford a lawyer and therefore things stay the same. So, in that sense, we feel that there are injustices on both sides -- along with the access issue, too. I have received a lot of calls about the access issue and, yes, there are people who abuse the system. Our main concern right now is getting this flow of money on a better track, but we are listening and talking to other groups and trying to be aware of those problems and, yes, we do admit that they are there.
Mrs Cunningham: I am interested because you have given us so many other suggestions with regard to perhaps how we can improve the legislation, but also some ideas for regulation change, and you have also made some very specific comments about the court system. We are also chatting, I think, as a committee, about making recommendations beyond this, I hope, so that we can advise the government as to where the priorities are of the persons who come here, specifically the whole idea of access, which we have tried to separate out from this. So we are aware of it.
You will not relate, I do not think, to this very much, given the work that you do, but we have had people come before this committee who have told us two things: first of all, that if you automatically deduct from their wages in spite of an excellent track record, they are very concerned about their jobs. They feel that there should be an opportunity in this legislation, at least for people who have a good track record, or for new people who are becoming part of this system, unfortunately, for them to establish a track record and there should not be an automatic deduction from one's paycheque.
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The other point of view that has been raised has been from businesses themselves, payroll people who have said it would be a very awkward thing to do. Then, of course, the third point of view is that this is often another burden for business, the business community who are already overtaxed and not as competitive in Ontario as they have been in the past. So we are taking that into consideration.
My personal view is no secret. I have worked in this field for a long time, so I am supporting the bill, certainly in principle right now. But I feel there should be a period of time where people who have established a good track record or people who in fact have been positive and there is a positive family relationship should not have an automatic deduction where they have been paying, let's say, for years.
Ms Poulin: We agree with the opting-out provision that is provided in the act. If the track record is there and if the ability to return to the system, if once you have opted out -- as long as it does not get too far into arrears. That is our worry, too, you know, if you keep going out and in and out and in, and you stay out for too long, you are going to get too far behind. That is a concern that we have. But as far as the inconvenience is concerned, I think for far too many years the other side, the custodial parent, has been very, very inconvenienced and it is time that that changed.
Mrs Cunningham: Do not get me wrong. You do not ever have to convince me on that.
Ms Poulin: I know.
Mrs Cunningham: But when you say the opting out, there really is no opting out here, unless -- I mean, there is a slight opting out. But the point of the matter is that everybody who has a separation agreement, whether they have done it unofficially or whether they have got an informal arrangement -- any piece of paper; most people have a piece of paper, because everyone has a slight fear down the road, the "What is going to happen to me?" kind of thing, as circumstances change. This means everybody will be subjected to this particular piece of legislation. So I do not think the opting out is going to be there in many instances.
Ms Poulin: For the new cases; my understanding is that for the old cases it is up to -- it has to be requested.
Mrs Cunningham: Yes.
Ms Poulin: What I understood from SCOE is that they are going to look into each case that is being requested, and if there is a history of payment being made there, they are not going to automatically say, "Okay, just because you want it, you are going to get it." That is what I have been informed by them.
Mrs Cunningham: Okay, could we have a clarification here on that point, because this is not -- I mean, I happen to have -- I know you indirectly because of your reputation and talked to people in that office. That is exactly what they advised me of about a week ago. I came to the committee, until I had done my homework, with that same view. So perhaps we could have the clarification here. This is what is coming in southwestern Ontario. The clients have been advised that way.
The Vice-Chair: Could I ask the parliamentary assistant to the Attorney General to answer that question?
Mr Wessenger: The original form of the bill as drafted did represent that viewpoint with respect to the question of enforcement where practical, but the amendment that has been brought in changed the concept from practical to feasible, which has changed the legislation. So --
Ms Poulin: Could you define "feasible"?
Mr Wessenger: "Feasible" is where the director considers that it is possible to collect the --
Mr Elston: Probable?
Mr Wessenger: Yes, "probable," shall we say? That it is reasonably probable --
Ms Poulin: Possible and probable or probable and possible or --
Mr Wessenger: -- where it will work well. Where they feel it will work well, we will put it that way.
Ms Poulin: Where it will work well. So no regard will be given to his past.
Mr Wessenger: Where it is possible, reasonably possible, that sort of -- if you cannot have an income source, you cannot do it, obviously.
Ms Poulin: No.
Mr Wessenger: It was basically -- the idea was that it should not -- if an income recipient requested it, they should have that right to have it come out of the system. That was the reasoning behind it.
Ms Poulin: Regardless of past performance? Then I have misunderstood.
Mrs Cunningham: Well, I did too. So, it is support orders made by an Ontario court before this section comes into force; so it is everything. I am thinking that you would probably have some sympathy for my position on this one, then, if we can work it out in the committee. By the way, it is not just my position; it is others' as well.
Ms Poulin: I agree. I mean, obviously in terms of case load at this point in time, unless the new government is willing to sink a lot of money into this program, something has to be done to alleviate some of those cases. They even have cases on file where the support recipient had not filled out a filing package per se, and so therefore they are still sitting there. You know, there have got to be some options open to keep harmony, because it is not just a question of the money. It is also a question of the obligation of that ex-spouse to the children, and to know that they willingly and voluntarily -- like this gentleman who was here before. He can pat himself on the back and be very proud of the fact that his kids can look back on it and say, "My father did this, and he was not forced to do it." But yet we have to have that body there that will be able to do that, be able to step in and take over.
Mrs Cunningham: Some of those individuals who have come before the committee have even pointed out the real difficulties and the expense, as that gentleman did, of being able to pay more, and how much it costs him to get a lawyer so he can pay more. The informal arrangements have been brought to the attention of all of us by way of letter and mail. Could I ask you one more question? Mr Chairman, I know I am taking a bit of time here, but it is on the practical --
The Vice-Chair: As long as you are brief, Mrs Cunningham.
Mrs Cunningham: Okay. On the practical aspect, you just raised a point when we have had it before the committee, where the package that has to be filled in is on a desk. I have seen those packages in four offices. Nobody ever touches them unless you have made your 15 phone calls. It is a very time-consuming thing for the staff of SCOE to have to deal with those packages, and probably they should be looked at as to how informative they really are, whether they are even practical. But you are right. If, in fact, we start dealing with people who have a track record, a good track record, those of them that we can find, that is more work, and really this bill is aimed at people who do not have a good track record, I would expect. So, you have raised a point, and I thank you for it.
Mr Wessenger: I would just like to clarify again this whole concept of feasibility. The whole intent behind the legislation was to allow the recipient to make the choice to have the order registered and collected. Some of the reasoning behind that, of course, is the concept that being in compliance with an order does not necessarily mean that there has not been abusive behaviour with respect to the payment because some payer spouses abuse their position with respect to paying. So, we wanted to protect the recipient spouse against that situation by giving them the right to register the order and have the deduction come in.
I certainly appreciate your brief, and with respect to page 4, I agree that in the past default hearings have been withdrawn when there has been this last-minute payment, and the result of that is there can be no order made. Then, of course, the payer goes into default again and it has to be all started over. We have recognized that that is a problem, so we are going to amend the act to take out the provision that when there are no arrears a judge cannot make an order. That is going to be taken out. The effect of that will mean that the court then can adjourn the matter and it can be brought back in the event of further default and orders made. That will stop that continual problem of a person coming, paying the arrears, the matter is dismissed, then the default occurs next time, it starts all over again. By changing the legislation the judge now can make an order, in fact; even under that section; for instance, give direction to the payer, order the posting of security, all the other aspects. He can still make those orders or, alternatively, he could adjourn it. So that will keep the jurisdiction and keep the pressure on the payer.
Ms Poulin: Okay. I think the new act is worded such that it gives SCOE the discretion. They will decide whether to go ahead with this default hearing or not. And what we are saying is we do not think that SCOE should have that discretion. We think that it should be automatic because it goes to deterrent measures. Even if it is your first time and it has gotten as far as a default hearing being ordered, you should be made accountable. Even if it is a matter of standing in front of the court and submitting medical records that you were ill, or whatever that may be, it goes to the seriousness of the matter. Right away, off the bat, people are going to know that they cannot get away with it, not even once.
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Mr Elston: Mr Chair, just on the clarification, because this is getting a little confusing for us: When the previous presenter was here, he was given advice that there was some discretion on the director, that the application might very well be made by the recipient to implement the collection by SCOE. On your clarification, it really sounded to this group as though all the recipient had to do was decide to make the application and her application would in fact be complied with by the director.
Can you tell us which bit of advice is right? Does the person who paid all the time need to fear that an automatic award will be made in favour of his former wife, or is what you are saying now the correct view, which is that all the recipient has to do is decide what she wants done, or he wants done in this case, and SCOE will comply?
Mr Wessenger: I think perhaps for clarification I will let staff answer this question.
Ms Pilcow: There are two situations in which support deduction can apply to an existing case or to a domestic contract that is filed with the program. One is where the recipient requests support deduction. In that case, the director will apply support deduction if it is feasible, and "feasible" generally will mean that if there is an income source, support deduction will apply. That is one circumstance. There is another circumstance --
Mr Elston: Okay. So even if the person has never defaulted before, the recipient can make the application and the director really shall enforce the order.
Ms Pilcow: If it is possible.
Mr Elston: If it is feasible.
Ms Pilcow: Feasible. And feasible and possible, I think, have the same meaning.
Mr Elston: Okay. But if you cannot locate, and somebody wants to have the order enforced, they do not have to --
Ms Pilcow: You cannot do anything -- well, you cannot.
Mr Elston: Well, if they do not -- okay. Then they will not search?
Ms Pilcow: You cannot and you will not have to.
Mr Elston: They will not search after the source, for instance?
Ms Pilcow: No, they will search after the source, and if there is none found --
Mr Elston: Okay, so that is sort of like an automatic -- the application is made and the director shall --
Ms Pilcow: Shall do it if it is possible.
Mr Elston: Okay, sure. Okay. That is the one.
Ms Pilcow: And then the payer does have the opportunity to apply for a suspension on the same grounds which apply to the payer in the first instance.
Mr Elston: Unconscionable.
Ms Pilcow: Unconscionable and consent plus security.
Mr Elston: Well, there is no consent, because the recipient has decided she wants it done. So there will not be any consent.
Ms Pilcow: Well, they may get together and agree.
Mr Elston: The only question will be unconscionability, which we have heard is virtually a non-existing ground.
Ms Pilcow: A very high standard. Now, that is one circumstance, Mr Elston.
Mr Elston: So that sounds like automatic registration and enforcement, unless the payer is a scoundrel and unavailable.
Ms Pilcow: Well, no, unless there is no income source that is found.
Mr Elston: Okay, I am sorry.
Ms Pilcow: Now, that is one circumstance that -- where the recipient requests. There is another way that support deduction can apply to an existing case or to a domestic contract, and that is where the domestic contract is filed with the program or the support order is filed with the program and the director --
Mr Elston: By one party or the other, presumably? It does not have to be --
Ms Pilcow: It is only the person who is entitled who can file the --
Mr Elston: Okay, so only the recipient.
Ms Pilcow: That is correct.
Mr Elston: Okay.
Ms Pilcow: And where the director feels that support deduction is the most appropriate way to enforce that order.
Mr Elston: What might be another way of enforcing the order?
Ms Pilcow: Garnishment, default hearing, writ of seizure and sale.
Mr Elston: But if the recipient has already decided that that other stuff is not very good, then the director probably will say, "Listen, I've been asked to do this." Is the director then going to the recipient to say: "Have you tried garnishment? Have you tried something else?"
Ms Pilcow: No. This is where a case is already filed with the program. The recipient has not requested it. The recipient is waiting for her money, and the program can then make a choice as to whether or not support deduction or garnishment or a writ of seizure and sale is the most appropriate. That is an option available to the program.
Mr Elston: I take it from the way the philosophy of construction of this program is going that the garnishment, we have been told in other processes, is too cumbersome, so would they not just attach the source? I mean --
Ms Pilcow: It depends.
Mr Elston: These things -- it sounds like you are trying to make up ways which will result in this not applying, when in fact this is going to be virtually automatic.
Ms Pilcow: For new cases it is going to be virtually automatic. For existing cases, support deduction may not offer a whole lot more than garnishment could for existing cases, because it is already in default. You have not got the payer there in front of you to tell you what the income source is and to start establishing a good payment record from the very beginning.
Mr Elston: I guess all I was getting at was we are trying to make the previous presenter feel that he was not going to be affected by this when, if his receiving ex-spouse makes a decision to move on him, then the director will enforce, because it sounds like this fellow has a steady, reasonable income source that has existed for so long and it will be in fact feasible for the director to do it.
Ms Pilcow: That is right.
Mr Elston: In fact, he should have been told, basically, that if she decides to put him there, then he is done, just like he was suspicious.
Ms Poulin: If he is registered with SCOE.
Mr Elston: What?
Ms Poulin: If he is registered with SCOE. If he is not --
Mr Elston: Well, then she can apply to have him registered, too.
Ms Poulin: She can apply to have him registered.
Ms Pilcow: And I think that is the answer that was given.
Ms Poulin: If there is an amicable agreement between the two parties --
Mr Elston: No, you were trying to make him feel comfortable that he would not be included in this thing, because you said, "The director has some discretion and you may not be included because you're a good guy."
Mr Wessenger: Well, he would not be included, I said, unless his ex-wife requested that he be included.
Mr Elston: But that was his whole point in coming here. He said, "I'm afraid that if she decides to go back on me then that will happen."
Mr Wessenger: Yes, if she decides to go back. Yes, that is quite correct.
Mr Elston: In a moment of pique. And you know, that is the whole problem with this. I think he should have been given the right view. If she decides to bring him into the system, even though he has paid for over 10 years --
Mr Wessenger: That is correct.
Mr Elston: -- then he is in the system.
Mr Wessenger: Yes, he is in the system.
Mr Elston: Period.
Mr Wessenger: Period. That is right.
Mr Elston: And the discretion of the director really does not exist that much.
Mr Wessenger: Well, I think that was made clear, that if your ex-wife decides --
Mr Elston: I am sorry to have taken some time, but it has been quite confusing in this whole issue of malfeasibility and practicability and possibility and --
The Vice-Chair: Thank you, Mr Elston. That needed to be clarified.
Mr Kwinter: I was going to talk about that. On page 2 of your submission when you talk about these things, I think it is important to know that what we just discussed is really the facts, that the new people will almost automatically be brought in unless they post a financial security of four months to let them out of it. They will virtually all be in, and the old ones can be brought in as long as the person receiving support wants them in.
The other thing that I wanted to talk about was the part 1(a) where you talk about, "On the enforcement side, it simplifies matters in cases where there are reluctant debtors." We have been hearing testimony, and it was just raised by one of the staff members of the Attorney General, that under the old garnishments this will do virtually nothing. If someone is under a garnishment order, the fact that he is now under compulsory income deduction is not really going to help him.
We have heard testimony to the effect that in fact it may encourage people who are not being garnisheed and who have been making payments, whether they are sporadic or regular, to seek ways of getting out of it, because now they are in a position where some people feel that the minute they become under a mandatory deduction order, this will in some way jeopardize their jobs and it will in fact encourage more people to find ways to circumvent it by skipping jobs or leaving the jurisdiction or doing all of those things. So I was just curious to know your reaction to that, in that in your presentation you think that just the opposite is going to happen.
Ms Poulin: We think that the opposite will happen if all things stated in the act follow through, such as the fines -- and we spoke to SCOE about this. Our concern is that unless they follow through with these fines, fining employers, and the changes to the Employment Standards Act about the fact that this will not cause jeopardy to your job, they are going to have to follow through if they find out that there is a case where someone has lost his job because of this and make some fines and yes, make some imprisonments to give this system credibility.
That is one of our concerns that tends to say that if those things are not done, this is going to fail just like a garnishment. A good garnishment should work but there are no teeth there to back it up and people are continuing to get away with it. So they are not working, and the same applies to this. It will work in principle, and on paper it looks really good, but it has to be supported by the court system and supported by SCOE by being tough and hanging in there and putting some people in prison and making some of those fines and letting the public know that these things have to change.
Mr Kwinter: The point I was making is that you are putting the onus on the employer and saying that as long as you put some tough controls on the employer it is going to work. My concern is on the employee.
Ms Poulin: And the employee. If the debtor does not report his whereabouts, it says in there he can be fined $10,000 or jailed up to 90 days. Well, if a debtor does not report his whereabouts and they finally find him, then they had better fine him or they had better jail him for 90 days or 60 days or 20 days and they had better do that right at the beginning. If they start doing that, it is going to take a few times, it is going to take some publicity, and eventually it is going to get through. The idea is to say: "Look, you can't do this. You cannot get away with this. This is the way it's going to be and we're going to start making these things happen."
The Vice-Chair: Mr Wessenger would like to make a very, hopefully, short and brief clarification.
Mr Elston: Is this a clarification?
Mr Wessenger: Yes. There seems to be some confusion.
Mr Elston: I think we had better order out for lunch.
Mr Wessenger: Well, maybe you should. There seems to be some confusion --
The Vice-Chair: I asked him to be very brief.
Mr Wessenger: No, there seems to be some confusion here with respect to garnishment and wage deduction. There is a difference. Garnishment, first of all, deals with arrears. Wage deduction is a current obligation. So there is that distinction. The second aspect is, of course, that garnishment extends beyond wages. It can attach a bank account, it can attach federal payments, I believe, of certain types, or commission payments owing. So it is a very useful device in collecting, particularly against self-employed people or people who are not regular wage earners. So it is a very useful collection device which will still be needed and still be required in the system.
Mr Elston: Well, it is a successful clarification.
The Vice-Chair: I would like to take the opportunity to thank you for coming here and presenting. A job well done. Thank you very much.
The subcommittee will be meeting at a quarter to 2 with the full committee meeting at 2 o'clock.
The committee recessed at 1251.
AFTERNOON SITTING
The committee resumed at 1417.
The Chair: I would like to resume hearings. I understand that we have an agreement from the subcommittee. I suggest that I receive it later after it has been confirmed, probably between two of the later presentations.
Mr Elston: I think it is a tentative report.
The Chair: Exactly, and that is why it might be important to check it through, Mr Elston. Accords among three parties are not usually arrived at all that quickly. So my apologies to the first presenter.
The recommendations from Monday and Tuesday are ready and I believe Susan has circulated them, and I believe that there is also a response from one of the questions for the ministry staff which has been circulated as well.
Clerk of the Committee: Will be circulated.
The Chair: Will be circulated, excuse me.
Mr Morrow: Mr Chair, can I have a clarification, please? On tomorrow's date, is that --
The Chair: It is the 15th.
Mr Morrow: -- cancelled? Is that cancelled as a clause-by-clause?
The Chair: We had that as part of an earlier agreement, I believe, yes.
TADEUSZ LIPINSKI
The Chair: I would like to welcome Mr Tadeusz Lipinski.
Mr Lipinski, welcome to the committee. Please sit down. The way things proceed basically is, with yourself as an individual you have approximately a quarter of an hour. You can use that time in whichever way you wish in terms of your presentation. Usually people allow half of the time for questions from the various committee members, who will probably all have an interest in inquiring into your presentation and your viewpoint.
Please proceed whenever you feel comfortable.
Mr Lipinski: Is it better to stand up or does it matter?
The Chair: Please sit down. It is much handier for you and for the microphone.
Mr Lipinski: Ladies and gentlemen, as a piece of proposed legislation considered in isolation Bill 17 cannot be seriously faulted. If there is an honest order to pay support, the bill serves the ends of justice in that the necessary support funds will be received with the least difficulty and with the maximum of reliability. I cannot overemphasize that the support order must be based on an honest judgement made without fear or favour, and that it be based on all the facts, none being disallowed merely to satisfy irrelevant rules of procedure.
Incredibly, however, in the broader field of legislation one of the first things that the present NDP government of Mr Rae did was to declare that the amendment under Bill 124 would not be proclaimed, and it immediately proceeded with the subject Bill 17. That seems flagrantly dishonest on the part of the government, and I would have thought that a knowledgeable and sincere Legislature would be up in arms over it. The action of the government can hardly be considered a move without fear or favour.
I understand that of the custodial parents about 80% are the mothers of the children involved and they will be guaranteed all the available support. The proposal is now that 100% of the fathers be subject to a python-like constriction to pay up, at the same time refusing those fathers even the partial reduction of access problems which Bill 124 offered them. This does not enhance the credibility of the government which claims to be a government of the people.
Even overlooking the glaring favouritism towards women, what about the children? Do you or do you not believe that the children should see their fathers with the same reliability with which the mothers will now receive their financial support? The frenzied action of the government ignores the totality of the interests of the children. So much for the interests of the children. It does not reflect statesmanship in those responsible for this duo of legislative action.
There is something else that takes place as the two actions are taken together. It demonstrates how the government contributes to the disunity which preoccupies Canadians at present. How can non-custodial parents, treated with such flagrant negative bias, be interested in questions of national unity, especially the status quo? Why should they care whether or not there is national unity when a provincial government will be able to continue pummelling them with biased legislation in the critical area of their family relations?
Surely the NDP claims to be the first of the major political parties to appreciate the importance of respecting family ties in keeping a society and state viable. Mr Rae says, and I quote: "Ontario insists that any overall change to the Constitution be done on a basis that includes everybody." By the pair of actions, the government alienates men and foments even more cynicism about government, and it does so right at the very foundation of the state, namely within the family. The government incites citizens to exclude themselves from taking part in formulating a revised Constitution for Canada. The Constitution is only of academic interest to people placed in that situation.
Mr Rae is also quoted as saying: "Mr Mulroney does not speak for me or for the government of Ontario." Well, Mr Mulroney does not speak for me either very frequently. But, more important in the present context, neither will lawyer Premier Mr Rae, QC, be speaking for me if the pair of actions involving Bills 124 and 17 represents his understanding of the kind of government action which will promote a rally for a united Canada.
Mr Rae, his cabinet and the Legislature should realize that there is a profound sense of discouragement among the people in the province of Ontario too, not only in the province of Quebec. I do not believe that that discouragement is basically over Meech Lake in Quebec any more than it is in Ontario. It is over the fact that legislation in total, as designed by elected legislators, does not serve the real needs and legitimate aspirations of individual people constituting the electorate. The suppression of Bill 124 and simultaneous submission of Bill 17 is a perfect case in point.
The Chair: Thank you, Mr Lipinski. I unfortunately cannot recall where we were in rotation, seeing as I was not chairing the last presentation, but I would like to welcome Mr Phillips, who is going to be with us this afternoon, and suggest that we start rotation with the official opposition. Mr Kwinter or Mr Phillips? No? Mr Carr or Mrs Cunningham?
Mr Carr: Yes, I will go ahead if I could. Again I will thank you for coming with your particular interest; you, I think, have put it in a different perspective from anybody else. They have put it in their own way by putting it in a constitutional context. I was just wondering if you could expand, because some of the other people have talked in terms of a Bill 17 challenge through the Charter of Rights and Freedoms. I was just wondering what your thoughts in that area would be as a Canadian with our present Constitution, how you see that.
Mr Lipinski: I do not think it is necessary to go to something as unwieldy as the charter. I think that men and women in the Legislature should know in their hearts what is good legislation. Especially this government with this large majority should have no problem in putting through legislation which the people need and which serves their, as I say, legitimate aspirations. I do not think we have to go to such an extent as something as fuzzy and unwieldy as the Charter of Rights.
Mr Carr: And without trying to be too personal, and forgive me if I am, what is your particular arrangement? Is it based on the constitutional issue or do you have a personal interest in this particular bill? Maybe you could just enlighten us in that respect.
Mr Lipinski: I have a general interest in this bill. I have a general interest in seeing that in this rich country of ours people can live enjoying the fruits of their labour and enjoying their families. What I see is so much that is done which works in opposition to that, and that is what I object to very strongly.
Mr Carr: I see. One last question. Again, forgive me for being fairly personal, but have you lived in Canada all your life?
Mr Lipinski: I was born in Canada, yes.
Mr Carr: Okay, good.
Mrs Cunningham: Just a question. You talk about being in favour of this particular piece of legislation and certainly in support of the unity of families.
Mr Lipinski: Yes.
Mrs Cunningham: And you are concerned about the fact that Bill 124 was not brought back to the Legislature. I think that is up to government members to talk to that as part of their strategy with regard to this whole issue of support and custody. I am going to ask you this question: Do you have any feelings about the automatic deductibility from income for support payments on behalf of the fathers or mothers who happen to be the ones who are providing the support?
Mr Lipinski: No. I thought I made it quite clear that it serves, as I said, the ends of justice in that the necessary support funds will be received with the least difficulty and with a maximum reliability. I qualified it by saying that one must be certain that that order is made honestly, made without fear or favour and is made on the basis of all the evidence that is available.
Mrs Cunningham: My reason for asking the question is that there are those who come before this committee who in fact have been making payments regularly, who are not in favour of the government intruding in their personal lives by way of automatic payroll deduction, who have a good track record and who do not feel that this should be something that the government should be looking at for people with good records of payment. Or, people who are brand-new at paying ought to be given a chance; that is the other side of the argument. So I am wondering if you have any comment on that.
Mr Lipinski: Yes.
Mrs Cunningham: This is automatic.
Mr Lipinski: Yes, automatic.
Mrs Cunningham: If you become separated from your spouse then automatically the deductions will be made. That is the intent of the legislation. We may have trouble tracking people down in the beginning, but certainly that is the intent -- any new custody orders or separation agreements.
Mr Lipinski: To me that would not be the most important consideration. As I say, if support has to be paid, I do not think it is too important how it gets paid.
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Mr Mills: Mr Lipinski, what I would like to ask you is, do you see the difference between support and visiting rights? Or do you see those being hand in hand?
Mr Lipinski: Oh, I most strongly feel that any parent who has to pay support for his children has to at least have his visiting rights. What with the introduction of Bill 17, his visiting rights have got to be as secure as the payments are to the supported person. That is why I object to withdrawing Bill 124 and attempting to institute Bill 17. As in every sphere of life, you have got to get value for your money. Pardon me, I really should not put it in that respect, in that light, because that is not the light I see it in.
Most parents should be able to see their children. If, on top of that, you are going to deduct at source the support payments, then there is no question you should make accessibility to the children just as reliable.
Mr Mills: But in fairness to your suggestion, Bill 17 is dealing with support payments. That is the main thrust of the bill.
Mr Lipinski: Yes.
Mr Mills: We are not talking about, if you pay support, you automatically get accessibility. There are two different issues here. I am just wondering where you are coming from on this.
Mr Lipinski: Oh, well, I hope that you do not view this business within the Legislature with blinkers on, sir. Those two things have got to be seen together just as all legislation has got to be seen as a totality of legislation, because that is what the people have to live by. They have to live by the totality, not by one bill at a time. I could not foresee any other occasion on which to point this out except this one.
Mr Mills: I take exception to some of the things that you say here, about the "frenzied action of the government." I think the frenzied action of this government, sir, is to take into consideration the rights of the thousands upon thousands of single young mothers who have no visible means of support. They are starving. They are in poverty and that, sir, is the frenzied action of this government, the way I see it. I think it is due and long overdue. I take exception to your term that we are acting in a frenzied state. If we are acting properly and correctly to correct a terrible injustice, in my view, in the province of Ontario, if you term that as being frenzied, I think it is a poor choice of words.
The Chair: Mr Lipinski, please respond. We really have run out of time. I know Mrs Mathyssen wishes to speak as well, but --
Mr Mills: No, please, I asked for his comments -- please, sir.
Mr Lipinski: I am sorry. Mr Mills, I did say that I fully support this bill with a qualification which hopefully will not apply in the same paragraph. What concerns me is that the bill had already been passed and had been signed by the Lieutenant Governor. Why did the government not let it go ahead? It was all ready to go ahead.
Mr Mills: I could tell you why, but I will not.
Mr Lipinski: Well, that is unfortunate, sir. Because in fact I was going to ask the committee why it did not go forward. I wonder whether the population of Ontario knows why it is not going ahead.
Mr Carr: The parliamentary assistant is here.
The Chair: We can certainly discuss that if you wish.
Mr Wessenger: Certainly, I would be very happy to. I understand the bill was passed approximately at least one year before the last election. The previous government decided not to proclaim it in effect because, in its wisdom, because of the recommendations made from lawyers and the Canadian Bar Association who were all very critical of the bill, it was felt not to be a good bill. The previous government decided not to proclaim it. This government agreed with that and withdrew it.
The Chair: Thank you very much, Mr Lipinski. My apologies again for the tardiness.
HENRY B. RASMUSSEN
The Chair: We now have a Henry Rasmussen. People may note Mr Rasmussen's name at a later point on the agenda when he was to be appearing with Fathers for Justice. I understand that Mr Rasmussen is appearing on his own behalf and that Mr Rowsell is appearing for Fathers for Justice. It is a simple switch in timing. Please be seated, Mr Rasmussen. As you have noticed, you have about a quarter of an hour to use as you wish. Typically, again, members will probably wish to ask you questions about your presentation and ask for your advice. Please feel free to start when you are comfortable.
Mr Rasmussen: I am here representing myself and the bottom line of the whole issue is the kids. This is a picture of my daughter here. My ex-wife certainly is not starving.
To the ladies and gentlemen on the committee, I would like to make the following comments. It is fine and noble to have a bill such as Bill 17, but that is like trying to solve a problem with another problem.
With 75% of support orders in default, does that not say something is wrong? I would say that the majority of these people just do not have the ability to pay the amount ordered. The problem really starts with an expensive and complex legal system. Ian Scott in a statement to the Legislature dated 1 May 1989 states:
"Our present court system has been with us since 1881. While it has been frequently modified over the last 100 years to reflect new social needs, the system...has remained essentially intact.... Almost two decades ago, the Ontario Law Reform Commission assigned the blame for public dissatisfaction on `the nature of the organization and the inefficiency of the system.' Judges, lawyers and lay people alike recognize the essential truth of this statement. For most people, the existing trial court structure is confusing and remote."
As long as the courts are making unfair judgements there will be problems in collecting support payments. For example, I know a person earning $1,400 per month who was ordered to pay $900 per month in support. It is hard enough for a couple living together to live on this amount and obviously harder, if not impossible, when there are two separate households. Maybe judges, lawyers and politicians cannot really relate to this because they make an average living. In my own situation, I was initially ordered to pay more than I earned.
Just to show the extent of work put forth by judges, I would like to quote from the first issue of Justice Research Notes, issued November 1990. This is on victim impact statements but is probably a good example of the shortcomings of the judicial system. The excerpt is as follows:
"Judges were interviewed in all but the Toronto project. It is a telling comment on the extent of the use of the statements in court that in two of the evaluations, the judges either had no experience with the statement or were surprised to learn that they had, in fact, heard cases in which a victim impact statement had been obtained."
The word "debtor" is throughout Bill 17. If I understand Bill 17 properly, it would mean every person that has a child becomes a debtor as soon as they become a non-custodial parent. This means that there is no difference between a person willingly supporting his or her child and a person doing it unwillingly or not at all. According to Bill 17, they are all debtors. This is most unfair to people who are doing their utmost in supporting their children.
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Howard Hampton, our Attorney General, is quoted as saying, "We want to see the payment of support orders become something that is not discretionary, so it becomes a social duty just as paying your taxes and your deduction to Canada pension." It is not something discretionary you pay for after you buy a new car. I guess you could say, if you do not want to pay taxes, you just do not work, or if you do not want to support a child, you just do not have children. However, if you buy a car and you cannot pay for it, they will take it away from you. Does this mean that if you do not pay enough support, they will take your children away?
In closing, the government should take a look at making the system more accessible and simplified to people of all economic situations so that people are not drained financially and emotionally, because the true losers are certainly the children.
The Chair: Thank you, Mr Rasmussen. Mrs Cunningham -- I am sorry, the rotation would start now with the Tories.
Mrs Cunningham: Thank you very much for coming before the committee. It must take some courage, some days, to have to tell your story so many times. However, I am hoping that because of the witnesses who come before this committee that we will, through amendments, be able to make some changes, and I am happy to tell you that the word "debtor" will not be in this legislation. Am I correct?
Mr Wessenger: Yes, you are correct.
Ms S. Murdock: Presuming we approve of the amendment, yes.
Mrs Cunningham: I would suggest that the other side get their act together so we can be assured that the word "debtor" will not be in there.
Ms S. Murdock: "Debtor" will not be in there.
Mrs Cunningham: So I thank you for that, Mr Chairman. I was saying that with a smile on my face. You must not get uptight.
The Chair: No, I quite appreciate that. It sounds like that amendment may well have all-party agreement.
Mrs Cunningham: Yes, I think you are looking very happy right now. We should be happy about that.
I think that you raised one of the issues that has not been raised as frequently by witnesses as it has by some of the members of the committee, and that is the need for education, certainly of judges. I am very much aware of victim impact statements and family court clinics and supervised access and all those things, and if I had my druthers, I would put the taxpayers' dollars into programs that help families that are going through these tough times and not more legislation. So that is where I come from.
I will also tell you that I am not in favour of an automatic deduction from paycheques from people who have a track record of supporting their families, and I am not in favour of more intrusion into personal lives of families either. So I thank you for coming before the committee to support what I think is also your opinion.
I will ask you, though, in your experience, have you had to deal with SCOE at all?
Mr Rasmussen: Oh yes.
Mrs Cunningham: And how has it worked for you?
Mr Rasmussen: Not too well. I got separated five years ago and I went through hell with the court system and I am just sort of psychologically, emotionally getting back into shape, so I am getting involved with them now and I just sent them a letter the other day requesting information that I could not get anywhere else.
Mrs Cunningham: Do you feel free to pick up the telephone with this office?
Mr Rasmussen: I do, personally, but I talk to a lot of guys who do not have a clue what SCOE is all about, and everybody just has to be educated to what the system is all about. I am just learning the system within the last six months.
Mrs Cunningham: I will remind you that government services are there to serve you.
Mr Rasmussen: Oh, I found that out.
Mrs Cunningham: So do let us know from time to time. There are others on this committee who have had a lot of experience. I am sure they will ask some questions, but I basically wanted to thank you for being here and helping me along when I try to get my amendments through later on. Thank you.
Mr Carr: Did we lose our time? Is that it, Mr. Chairman?
The Chair: If you would like to. With the 15-minute presentations, I had suggested one question per caucus. Are there questions from the government caucus?
Mr Mills: I have got one.
The Chair: Mr Mills, okay, thank you.
Mr Mills: I have a comment that I would like to make, sir. You say that support orders become something like a social duty, just as paying your taxes and your deductions to Canada.
Mr Rasmussen: No.
Mr Mills: Oh, I beg your pardon, I see. I stand corrected. You are implying to me that you want to have some discretionary opinion about whether you should pay support to a child. Is that what you are saying?
Mr Rasmussen: No, that was a quote from Howard Hampton.
Mr Mills: No, no. You are saying that if you buy a car and you cannot pay for it, they take it away, and does that mean if you do not pay enough support, they will take the children away. Are you sort of implying that if --
Ms S. Murdock: That is not -- clarification, Mr Chair?
Mr Mills: I am sorry, okay.
Mr Rasmussen: Howard Hampton is implying --
Mr Mills: No, no.
Ms S. Murdock: Can I have a clarification here, because I am not understanding. The quote is in the first paragraph of page 3, but the block capitals are your opinion?
Mr Mills: Yes, that is what I cannot understand.
Mr Rasmussen: That is not my opinion. That is a quote from Howard Hampton.
Ms S. Murdock: The second paragraph?
Mr Mills: The block.
Ms S. Murdock: Because it is not in quotation marks.
Mr Rasmussen: Oh, where it says, "I guess you could say."
Ms S. Murdock: Yes, from there on, is that not your opinion?
Mr Rasmussen: Well, that is, yes, that is my opinion of Howard Hampton's statement.
Mrs Cunningham: Mr Hampton does not usually make silly statements, but this is a silly statement.
Ms S. Murdock: The first paragraph.
Mrs Cunningham: The first paragraph, in my opinion.
Mr Rasmussen: I got it out of the newspaper, so it might not be exactly true. But I have the clipping.
Mrs Cunningham: You are very funny. That is nice.
Mr Mills: I just could not see who was quoting what, there, that was the difficulty I had with --
Mrs Cunningham: The quotes are around the first words.
The Chair: I think Mr Rasmussen does make a significant point. I have certainly noticed quotations around remarks I have never said. Go ahead.
Mr Mills: I would like to know, sir, how you think that the government would best deal with the tragedy of children not being cared for by parents who refuse to come to grips with their responsibilities. After all is said and done, if you have a child, I feel that you have a social responsibility to that child to care for it and I see that you seem to have some difficulty with that and you are simplifying it to economic situations. How do you feel about this? Do you feel that people do not have a social obligation to support their children?
Mr Rasmussen: Oh, definitely, they should be supporting their children, but there are so many people in it from different economic backgrounds. I am a bricklayer. In my own personal situation we, my wife, myself and the family, managed to survive and get some better things that other families could not, and when we split up, we created two separate households. The court system is so intimidating and to me it is not accessible to a person who does not have unlimited funds to go out and hire a lawyer. If a person is at that level where they are not that poor to get legal aid but they are not that well off to go out and hire "a good lawyer" or whatever, then they are stuck right in the middle or just above the middle and it makes it very difficult.
Mr Mills: So I get the tone from you that if you earn a nice living somewhere, our responsibility to a child should be adjusted to reflect that, and if you, as you say, are a bricklayer with less money, your commitment to your child should be less, or based on what you have available. Is that really the thrust of what you are trying to say?
Mr Rasmussen: No, no, I am not saying that. I do not really have an opinion on that, because there are people out there who -- God, some people make over $80,000 a year and some people make under $20,000 a year, so how can you, say, put a value on raising a child in that respect? I cannot do it, I could not.
Mr Mills: I am asking you if that is what you intended?
Mr Rasmussen: That is not my opinion.
Mr Mills: Okay.
The Chair: I believe Mr Kwinter has a question as well.
Mr Kwinter: Mr Rasmussen, I am interested to know when you are -- page 2, when you talk about how you were initially ordered to pay more than you earned, can you tell me the circumstances that led to that?
Mr Rasmussen: That was supposedly my first court appearance and I still do not understand the system. I am still in the court system and I am supposed to get a date but it has been over a year now waiting for a date. But what happened there was, initially, when a person goes to court in a separation situation, they are told by the lawyers that it is not necessary for you to be there. So in my personal situation -- I am self-employed and my gross earnings were $120,000, including all material, equipment and labour, all my expenses. I guess the judge believed I made $120,000 net and I was ordered to pay -- I do not have the figures with me, but it worked out to just under $50,000, where my net was under $30,000.
When a lawyer comes back to you and says, "Well, this is what the judge ordered," and you look at it and it is more than you make, then what do you do? You have got to go back into the court system, into the higher court, and that costs money.
The Chair: Thank you very much, Mr Rasmussen.
Mr Rasmussen: Thank you.
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ANDREW AXHORN
The Chair: Our next presentation is from Andy Axhorn. Mr Axhorn, as you have noticed, typically you present for a while and then probably the committee members will have some questions for you. Please feel free to start whenever you are comfortable.
Mr Axhorn: Thank you. I object to Bill 17. I believe it is repressive, intrusive and offensive. It presumes that I am guilty without the opportunity to prove my innocence. Whatever happened to innocent until proven guilty? It is not my employer's responsibility to pay my bills. It provides access to assets accumulated since the separation and divorce. She has already been given everything once, including my daughter.
The bill requires that I report a change of address to yet another government body. I do this on my federal income tax reports and to my banks, approximately 30 other various businesses, associations, levels of government, my daughter and my ex-wife. I am divorced; I am not a criminal and I am not on parole. The term "unconscionable" is ambiguous and does not clearly define who is in good standing and who is not.
In my opinion, the question of support needs to be tied in or related to that of custody and access. I believe that in a great many of these cases funds have been cut off as this is the only defence left available to us. This is the only way that we can get anyone's attention. I almost did it myself. Bill 17 will guarantee the continued inequities divorced men face.
When a woman has to deal with non-payment, she has mechanisms put in place by three levels of government. In the Metropolitan Toronto area there are a minimum of 50 support groups and organizations to turn to for help. A simple phone call is all that is required.
When a man is arbitrarily denied his access or custody, his only route is another expensive court battle that in all probability he cannot afford. Where do we turn for the support that we need to grieve the loss of our children? I am sorry. I cannot go on. These are my cancelled cheques.
The Chair: Take a moment, Mr Axhorn, please. There is no pressure to continue right away. Would you like a glass of water?
Mr Axhorn: Yes, please.
The Chair: These are very difficult proceedings when people are talking about the issues that are the most important to them. It is for that very reason that I think we value testimony like yours and that of other fathers and mothers who have been before us. So, although it is difficult, please rest assured that we certainly appreciate your presence.
Mr Axhorn: I will try and go on. Thank you. I apologize.
We have cleaned up some of the agony of divorce with the Family Law Reform Act, but we did not go far enough. I feel it is long overdue that we address the problem of unnecessary, unconscionable legal fees. OHIP limits the amount a doctor can charge for saving a life. Why can we not limit the amount the legal profession charges to destroy one? I would welcome the introduction of legislation that would curb the legal profession and regulate their fees for a specific procedure.
Joint custody was an issue previously brought before Parliament but not passed. I believe that this bill should be resubmitted and some accountability put into the system. Joint custody should be automatic unless some gross misconduct can be shown at trial by one of the other parties. By that I mean a trial; I do not mean trial by defective affidavits, erroneous financial statements, innuendo and in some cases bald-faced lies. I would encourage anyone to reintroduce a bill that would address this matter.
These are the minutes of my settlement. That document required three years of litigation, approximately 13 court appearances and $10,000. This document is not worth the paper that it is written on. It says that I will pay a set amount each month for the support and maintenance of my daughter. These are my cancelled cheques, including one dated 1 February 1991. None have ever been late, none have ever been short; they have all been paid in advance.
This document gives me specific rights to access, education and medical information. I last saw my daughter 22 September 1990. That is almost five months ago. Every attempt that I have made to contact my daughter has arbitrarily been blocked. Educational information is being withheld. Only very recently was I provided with a transcript of my daughter's school marks, the first that I have had in six years, over six years. I have never been invited to attend a parent-teacher night even though prior to separation I attended every one.
I would like to just very, very briefly mention that the amount of money that is outstanding, I understand, is horrendous; it is $360 million, I believe. That is not my bill. I believe that these children should be looked after. I have looked after my obligations. Do not penalize me. Do not tar me with this brush.
This document was $10,000. The other side's had to be the same. That is $20,000. That money would have better been spent in putting it into a trust fund for the kid. We go to a dentist because we need our teeth fixed; we go to an electrician because we need wiring fixed; we go to a lawyer because we do not know what we are doing. I have never defaulted on my support payments. I will not in the future. I can understand why some guys are confronted with these problems -- because of the type of treatment by ex-spouses and a judicial system that is either unwilling or unable to dispense justice equally without gender bias.
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Mrs Mathyssen: It sounds like your problems, sir, are something that are outside the realm of mortal politicians to resolve. You spoke of some financial concerns, and I wonder, do you think if there was an automatic process in place, like child support deductions, that you might in fact be alleviated of some of that financial burden? Would it make it easier if it were an automatic kind of thing, as Bill 17 --
Mr Axhorn: No, I am opposed to it. Again, I believe that I have handled my obligations to my daughter in an honourable manner and I do not require a government clerk to pay that bill for me.
Mrs Mathyssen: So your problems, though, are something outside of financial. Your concern is the access question.
Mr Axhorn: My concern is that I paid my money to get this. The majority of that money was paid because of access -- property was not a problem -- because of access. I cannot afford to pay $180 an hour to go back and fight for something I have already paid for. Why do I have to?
Mrs Mathyssen: Well, this bill does not deal with access; it just deals with support.
Mr Axhorn: But it should. I believe that it should.
Mrs Mathyssen: And you think they should be connected.
Mr Axhorn: I believe that they should be linked in some manner. What do I do? Do I go on the rest of my life without being able to talk to my daughter?
Mrs Mathyssen: How would connecting access to support help your situation?
Mr Axhorn: I guess I feel like you are giving the other team all the marbles.
Mrs Mathyssen: But how would it help you? I am talking here about helping you. It sounds to me as if your family situation has become very difficult and I am asking you how connecting access to Bill 17 would help you.
Mr Axhorn: Well, if she is not going to get paid, I am going to see my daughter.
Mrs Mathyssen: But what about your daughter? What if there is no grocery money? How is that going to help --
Mr Axhorn: My daughter is not going to starve. In my personal situation, you know I am sympathetic. I have empathy for all these children. On the large scale, the social scale, yes, they are part of my responsibility, but they are not my responsibility per se like it is not my responsibility to pay this gentleman's hydro bill. So again, I would take the responsibility of my daughter and I would ensure that she is fed, one way or another, and that is not the issue. I feel like my daughter is being held for hostage and sold back to me one toenail at a time. The rights that I fought for here are being arbitrarily denied me anyway and there is nothing that I can do about it because I cannot afford to. And I am saying, who will help me?
Mrs Mathyssen: I am wondering, though, if you connect access to support whether or not you are holding a mother, a custodial parent, hostage in the way that you resent being held hostage.
Mr Axhorn: No, and please do not misunderstand me. I guess what I am looking for is some accountability. You have my child and you are telling me that it is none of my business whether this child -- she could be in the hospital now. I do not know and I am not going to find out because she is not going to tell me. And if I were to call her and say, "Well, let me talk to my daughter," all I am going to get is a telephone answering machine and that message is going to be erased. If I continue to call, then she is going to charge me with harassment. But the other end of the stick is, all she has got to do is pick up the phone, and I think this is very unfair.
Mrs Mathyssen: Okay, but are your problems something that is outside the political arena's control? Are you talking about a personal situation over which no legislation in the world can fix?
Mr Axhorn: No, I think the legislation could fix it and I think that if a guy is not going to make his child-support payments because the payments on his Harley-Davidson are too expensive, that is not my problem. Put him in the slammer. Do whatever you have to do with him. Get that money out of him. I do not want that coming out of my tax dollars. That is not my problem. Pay up. But I am looking for some accountability out of this person. I am looking for somebody to say to this person, "Listen, a judge agreed that this is what you should be doing. Now, why aren't you doing it?" without it costing me a fortune, and I cannot do that. There is nothing in place for me to do that with.
Mr Elston: The concern that you have expressed is a good one here. First of all, the issue of cost, and of course this bill has not got the flexibility in it to allow any kind of variation on it. We have been talking about that on and off here because if somebody has been making payments all along there is only one way you can get out of it, being in the support and custody order enforcement branch, and that is on consent, or somebody might figure it is unconscionable or that it is not "feasible," or what you were about to talk about, to bring you into the program.
I want to ask you about whether or not you make other payments on behalf of your daughter. Do you send her gifts or do you make payments on account of music lessons or anything like that?
Mr Axhorn: Yes, I have traditionally participated up to 50% and in some cases more than that in things such as summer camps. She needed a new bicycle so I paid for half of her bicycle and I bought her a new bicycle for my place, too -- that kind of thing. That has never been a problem.
Mr Elston: But do you understand under this bill that if you made extra payments or if you made payments in addition to what was required by the order that SCOE would send those back to you? They would not be sent on to your daughter or your former spouse. Would you suggest perhaps that we consider making some kind of a flexibility provision in the bill that allowed those to go through?
Mr Axhorn: I would rather be left with the option of spending the money on the child myself so that it does not look like it is always coming from the other party. That is one of the problems. Everything gets taken off you. They take all your money off you. The child comes to see you and the kid says, "What are we going to do today, Dad?" "Well, we can't do anything because everybody just took all my money." So you end up feeling like you have to catch up all the time.
Mr Elston: So in your situation where you actually provided all of your payments, did all the support, that what you really are longing after more than anything else is the personal contact and the direct contact with your daughter.
Mr Axhorn: Of course, and a gentleman whom I spoke to approximately a month ago put it very eloquently. I said that I agree and I equate this to the loss of my father. He said, "Well, of course, when your father died you lost your past and now that you've lost your daughter you've lost your future," and that is exactly how I feel.
Mr Elston: I think this presenter has put the issue of the non-defaulting payer in a particularly new way for us, the sense that the intervention of SCOE in a long history of support being paid and everything will mean that there is another intervention between him and his child, between him and his past and his future, and I think that is a very telling piece of information for us, in that we have got to strive to make sure this bill does not do something more to drive a bigger wedge deeper between people who want to participate in their children's upbringing. I really appreciate the testimony that was given to us this afternoon.
The Chair: I believe we have spent a fair bit of time. I would like to thank you very much, Mr Axhorn.
With the committee's indulgence, I think it is fair to share that the person whom Mr Axhorn was quoting was myself and we did converse about his coming, but I only introduced him to what the process was going to be like.
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STANLEY FISHER
The Chair: Stan Fisher -- is he here? Mr Fisher, I note you have been observing the proceedings. Basically, you have, as you know, 15 minutes. We did not finish the rotation last time so at the outset of the rotation it will be Mr Carr most likely who might be asking you a question to start with. Please feel free to start when you wish.
Mr Fisher: I wish to thank the committee for the opportunity to address this Bill 17, which I did not know about until I read it in the paper. I wish to state at the beginning that I am in agreement with the main thrust of this amendment, which is to collect support payments from those individuals who shirk their responsibility for whatever reason and perhaps to make the collection of the support payments easier for the agency responsible for said collection. But I feel that I must make you aware of some deficiencies within this act that are very personal to me.
In the article in the paper, you talked of automatic deductions. To me, this means garnishment of wages. To someone who has acted responsibly, which I consider myself, this has a certain stigma attached to it that I consider to be painful, both emotionally and socially. My cheque is open to my employer and certain staff where I work and it would seem to be an invasion of my privacy, as you have just stated previously with some other individuals that you were trying to be aware of.
The second point I would like to make is that I spent three painful years in working out an agreement through lawyers at considerable expense that was agreeable to all parties. Now you come along with an act to alter this agreement's workability.
On the third point I would perhaps like to start with a question. Being salaried, I would like to know how you are going to propose making these deductions from someone who is self-employed. I phoned this committee and they simply said that I would have to ask this question. So I do not know how this is going to come about, but if it is only the salaried people who are going to be deducted, to me this smacks somewhat of discrimination against the salaried sector of the population. But I would like to hear what you have to say in reference to that.
The last point is the one that really moves me in reference to this bill. It is the most disturbing one as well. The collection agency right now is the Ministry of the Attorney General, custody and support enforcement branch, to whom I send a cheque every month without fail. In the past two and a half to three years I have received letters from this agency indicating that I owe them money above the set amount that was set out in my divorce proceedings.
Phone calls by myself to this agency are a waste of time as I can never seem to get through. The line is somehow continuously busy. I then turn to letters that I wrote them to ask for clarification on where these amounts come from. One of my letters was answered; all other letters were not. The figures they seem to throw at me, I do not know where they come from. I assume, I could be wrong, that the case that they have on file is in error. I think that is the case because of one of the letters they have sent me and they seem to be under the impression I should be paying so much amount and I have got a statement signed by a judge that says that I should be paying not that amount. So there is a discrepancy there, which I sent them. When I send them proof of my figures and agreements and cancelled cheques, I receive nothing back, even though I indicate on the letter, "Please let me know if I am right or wrong." Now you are asking with this act to put this agency in charge of automatic deductions from my salary. I dread what would happen to me financially if they can just go ahead and start doing what they are doing with letters automatically.
In closing, I would like to ask that you weigh very carefully the effect of this act on both parties and perhaps consider not to enforce the act on those who are responsible, which I consider myself to be, as opposed to those who are irresponsible. Why should I have to suffer for someone else's irresponsibility? I am living up to my end, as a lot of other gentlemen have said here as well. I just want what is fair. Thank you.
The Vice-Chair: Thank you very much.
Mr Carr: I take it the amount they are taking off is higher than --
Mr Fisher: No, it is not.
Mr Carr: It is lower?
Mr Fisher: No, it is not. It is reasonable. Hang on, what do you mean, the amount?
Mr Carr: The difference. You say they are not taking off the correct amount.
Mr Fisher: It is higher. Their amount, their figures are higher.
Mr Carr: Than what the judge ordered you to pay?
Mr Fisher: Yes.
Mr Carr: So consequently that is, how is that fixed? Is that --
Mr Fisher: I keep telling them this is the amount that I should be paying. I send them the court order and I keep sending the cheques. The last correspondence, as you will notice, was in September when they said I owed a considerable amount of money in arrears and I asked why, and I have yet to hear why after I sent them in all my cancelled cheques. I had to go through a small expenditure just to get those and I sent that to them along with my divorce proceedings, and I said to get in touch with me.
Mr Carr: So the system now is that the 75% that are in arrears, technically, by the --
Mr Fisher: But I am asking for information which I do not seem to get.
Mr Carr: And how long has this process been going, that you have been trying to get clarification and writing the letters and calling?
Mr Fisher: I think the first letter that I gave you is dated back to 1988.
Mr Carr: And what happens when the calls come? You said you cannot get through?
Mr Fisher: I do not get calls.
Mr Carr: No, when you call them.
Mr Fisher: The line is busy. I try to call them. I assume that they start work at 9 o'clock. I would call at one minute before nine. I would call continuously at work. It is just hopeless.
Mr Carr: And what happens with the letters? You do not know?
Mr Fisher: In the only letter that I did get back from them, a young lady did indicate where they got their figures and it was wrong. What I basically have to do is take a day off work and go down there and find out what they have on file on me because the two just do not seem to go together.
Mr Carr: But you do not have to go back to court then? You do have the written
Mr Fisher: No, I do not. I assume I do not have to go back. I do not want to.
Mr Carr: No, obviously, because of the time and the cost involved in that.
Mr Fisher: That is right.
Mr Carr: I guess what I am getting at is that we keep hearing about the 75% that do not pay, but technically you are one of that 75% even though you are making that payment.
Mr Fisher: That do not pay?
Mr Carr: Yes. That is what you are technically. You would be classified under their system as --
Mr Fisher: I pay every month.
Mr Carr: That is what I am saying.
Mr Fisher: What do you mean, I do not pay?
Mr Carr: You pay, but under our system you would be considered in arrears even though the mistake is not yours and that is why when they talk about the 75% figure. It is basically erroneous.
Mr Fisher: Okay.
Mr Carr: That is what I wanted to make you aware of.
Mr Fisher: I see what you mean now.
Mr Carr: And I guess what you are saying is you would like the provision for whatever number of fathers that would pay, mostly fathers -- you would like to have that option to continue to make it optional. That if you feel responsibility and you want to pay, you want to have that option rather than having it taken off your pay.
Mr Fisher: Well, most definitely. I really feel it is an invasion if one is living up to one's responsibility, which I consider I was.
Mr Carr: I have asked this many times to many groups, and nobody seems to know; you are obviously connected with a group of fathers that probably --
Mr Fisher: No, I am not. I am just strictly individual.
Mr Carr: You are. Okay. I was just wondering if you -- Actually, if you are not part of a group, there will not be a question, then.
Mr Mills: Sir, I am trying to come to grips with this problem that you have where they are taking too much money off you.
Mr Fisher: No, they are not taking too much money. They are asking for arrears. No money has been taken off.
Mr Mills: Okay. Looking through this, and I may be totally wrong, it would appear to me that what you are saying is that the judge made an order for X number of dollars. Right?
Mr Fisher: Yes.
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Mr Mills: And then subsequently, without going to a judge, the Statistics Canada -- the cost of living index put that payment up 4.2% retroactive.
Mr Fisher: That is right, that is right.
Mr Mills: Is that where you say that that has been added and --
Mr Fisher: To an incorrect figure.
Mr Mills: So the 4.2% is not incorrect?
Mr Fisher: No.
Mr Mills: What is incorrect?
Mr Fisher: The amount that they are taking 4.2% of.
Mr Mills: Oh, I see. So the whole problem stems from the judge's order and what they are taking off.
Mr Fisher: Since that judge's order, I have had another judge's order on the amount and it seems that this agency does not have that other judge's order, but they do now because I sent it to them.
Mr Mills: Yes.
Mr Fisher: But I have no proof of that because I have got nothing back. And I have just learned now that I should start documenting and keeping everything.
Mr Mills: Yes, yes.
Mr Fisher: And I learned it too late. This is all the stuff that I have that I can throw before you.
Mr Mills: Thank you for that. I am a bit of an optimist and always have been, and I kind of think that when we get into this new system it is going to be better and that an automatic deduction devoid of, shall I dare to say, human error would be much more correct. Do you see through your experiences with SCOE --
Mr Fisher: I do not even know what SCOE is. This is the first I have heard of it.
Mr Mills: Oh, I am sorry. Well, the deductions that are happening now, do you see that the new system based upon the old system is going to be as bad or do you not think that it may be better? It could be better, because it is a different system. It will be automated.
Mr Fisher: It will be better if the system is correct, but I have no faith in this system right now. I dread what is going to happen to my paycheque. I dread that I am going to have to go to court to fight for money that has been taken off that should not have been taken off or has not been explained to me.
Mr Mills: Yes.
Mr Fisher: And it is going to cost me money to get my money back, if I get it back. It is putting me in a very disadvantaged position.
Mr Mills: From time to time I suppose some of us have experienced that to a degree with the federal government with our income tax, and I know where you are coming from. Thank you.
Ms S. Murdock: I think I was --
The Chair: You were, but there is one question per caucus with the short presentations. With the indulgence of the Liberal caucus, Mr Phillips, please.
Mr Phillips: Your first two issues, I think, Mr Fisher, are around the automatic nature for someone who is prepared and is actually fulfilling their obligations. Do you have any disagreement in principle with the automatic nature for those who have shown they are not fulfilling their obligations?
Mr Fisher: None whatsoever.
Mr Phillips: So in theory, the three quarters that are not --
Mr Fisher: That is right.
Mr Phillips: -- you would have no trouble with it.
Mr Fisher: That is right. None whatsoever.
The Chair: With the indulgence of the committee, the parliamentary assistant wanted to address --
Mr Wessenger: Yes, I would just like to advise you that the staff are going to be looking into this case to determine if there has been an error and to sort it out.
Mr Fisher: Did you notice on each of those sheets there is a different name continuously? I do not know who to even deal with any more, it is mind-boggling.
Mr Wessenger: I am sorry you really had to come here to sort of get it --
Mr Fisher: That is why I am glad I am here because I figured at some point someone is going to hear what I am saying and maybe that might rectify itself.
Mr Wessenger: I hope that we can get it corrected for you. Thank you.
The Chair: Thank you very much, sir.
We would now like to hear from Robert Mallysch. I believe the next group is waiting in the hall. The clerk will, I am sure, try to alert them.
Mr Fletcher: Is Mr Mallysch not here?
The Chair: No.
CITIZENS' ADVISORY COMMITTEE TO THE SOCIAL SERVICES COMMITTEE OF THE REGIONAL MUNICIPALITY OF OTTAWA-CARLETON
The Chair: Ms Lalonde?
Ms Lalonde: Yes.
The Chair: Thank you very much. You are presenting on behalf of the Citizens' Advisory Committee to the regional Social Services Committee of Ottawa-Carleton?
Ms Lalonde: Yes.
The Chair: We have a half an hour as you are presenting on behalf of a group, and typically the presentation is entirely up to yourself, but often divided into half of the time for your presentation and half for questions from the committee members. Please feel free to start whenever you are ready.
Ms Lalonde: I am representing the Citizens' Advisory Committee which is a committee of people who are currently on social assistance or who have been on social assistance, and front-line workers. Our purpose is to advocate for improvements in legislation and to ensure that people are receiving the entitlements that they have.
I must apologize, by the way, that you do not have a copy -- oh, you do, okay. I am not going to read through the whole thing; I am just going to summarize through it.
We have a couple of overriding points. We consider it absolutely vital that support payments are not in any way tied to access and are glad to see that the proposed legislation maintains that separation, although it often does not get played out that way in everyday life. We are pleased to see that support obligations and the enforcement of them will be made universal. You are moving away from the delinquent, bad-guy approach to a recognition of support as a social responsibility, and we feel this will remove some of the adversarial aspects of post-family relationships.
We cannot emphasize enough the importance of arm's length enforcement. Many of the women we are involved with are victims of abuse and these are particularly important situations where we feel that you should not be subjected to the ordeal of having to first of all go through the court process to get the order and then spend the next 10 years or whatever running after to get it enforced.
We have some concerns about specific parts of the legislation. In subsection 1(3) you are defining a person who is required to pay support as a debtor. The word "debtor" has some very negative connotations. If someone says, "Joe is a debtor," you know that is bad. So we would like to see that only used for people who are in arrears, and --
The Chair: If I could help you with that, actually, we had discussion before. There is an amendment from the government which seems to have consensus whereby that phrase will be changed to "payer." It has not, of course, been adopted as yet but it seems it may.
Ms Lalonde: Ah, so you have already read our brief. Okay. In the same section there is a definition of income source. Clause 1(1)(f) of this definition says "income of a type described in the regulations" which we hope includes the income of self-employed people. If you are self-employed you do have an income source. It happens to be the same as the recipient of that income, and we feel that this should be subject to the legislation. There is a perception out there that the little guys are the ones who are getting caught and the big guys can play around with what their income is, and when they get it and so on are able to slip through and get away. When an original support order is made, the payer has to provide financial information which includes a monthly income, and we feel that could be invoiced in some way.
We are very pleased to see that under section 3i arrears are not going to be reduced or wiped out. This has been one of the most unjust procedures under the previous legislation, that someone could fall in arrears and then go in and cry to the judge and say, "Well, gee, Your Honour, I do not have $4,000," and His Honour would say, "Well, okay, give her $1,500 and we will call it quits." Meanwhile, she is out the change. We would like to see, if the court is going to consider giving the debtor a longer time to pay his arrears, that not only the debtor's financial situation be taken into account but also the creditor's, because that money may be more important to her than it is to him.
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Section 14 amends the Employment Standards Act to cover people who have a job from being discriminated against on the basis of having this order against them. We do have a concern about employers who might not hire you in the first place. We would like to see this made a prohibited ground of discrimination in hiring because there are employers who have, for whatever reasons of their own, problems with the fact of divorce in society. The example we have given is a man applying for a job as a janitor at a church or a religious school. If he has to say at the beginning, "Yes, I have a support deduction order," they know he is divorced and that may be a reason for not hiring him.
Our experience with SCOE has been that it is a complete bureaucratic nightmare. It takes months to enforce orders and it is very difficult for a woman, once her order has been filed, to get any information about what is happening. And it is absolutely essential that any new system be appropriately staffed and funded, so that the legislation can be appropriately enforced. We do understand that the intention of this legislation is that most orders will be taken care of through this system and it will work, so that resources will be freed up to chase after the delinquents, which is okay if it works.
We have some concerns which relate specifically to confidentiality of information in situations of abuse. These concerns would apply to other people, but our major concern is abuse situations. We feel that it is very important, for people who are receiving support from an abusive partner, that that does not put their children or themselves in danger. Under the legislation, section 12 makes it an offence to release information about the payer, but there is no reference to information being released about the payee, and we would like to see that all information about the payee should be held in strictest confidence and it should be an offence, just as it is for the payer.
In cases where there is a break in payments because of job change or arrears, we feel that the province should cover the payment and then recover it from the payee in whatever you consider an appropriate manner. You are asking the women to trust in this plan working and if in fact you have faith that this is going to work, put your money where your mouth is. If it is going to work, then you will be able to get the money back from him and if it is not going to work, then she will not be able to get it back from him either.
The ultimate protection, we feel, for women who have been abused would be a national registry or agency which would receive support payments. If a woman is hiding from an abuser and, for example, the court order is being enforced in the Ottawa area office of SCOE, how long do you think it is going to take him to figure out that she is hiding in the Ottawa area? Once he can narrow it down, it makes it a lot easier for him to find her.
There are several questions of clarification that we would like to ask. The name of the legislation is being changed from the Support and Custody Orders Enforcement Act and we want to know why "custody" is being dropped from the title. Does this mean that it is being placed in the second class or something?
Section 3f is not very clearly worded. We assume it means that only the court can vary an order and that collusion to evade a support deduction order is a waste of time and is illegal and so on. We would like to see that collusion made an offence under section 12b and we would like it clearly stated that only the court and not the parties can vary an order. In other legislation it is stated quite clearly in that sense.
Subsection 3(7) refers to the enforcement within Ontario borders from other jurisdictions. We would like to know how orders from Ontario will be enforced in other jurisdictions. Will you attempt to have this order enforced there? And also, can these be enforced against the crown in right of Canada? This is obviously of concern to people who live in the Ottawa area, because many of the payers are federal government employees, and it is only recently that it has been possible to garnishee a federal paycheque. So we would like to know if the garnishee legislation that was passed will allow for this type of an order.
The recommendations are summarized on the last page, so I will not go through them.
The Chair: Thank you very much, Ms Lalonde. You have both recommendations and questions. I do not know if the parliamentary assistant would wish to take time from the government caucus to address any of the questions.
Mr Wessenger: I would like to reply to one question and that is your question, "Will support deduction orders be enforced against the crown in right of Canada?" Presently we do not have the agreement of the federal government to have it apply, so that means that garnishment will still be the only means of collecting the federal payments, but we are working on it and we hope the federal government would be amenable to that type of agreement.
Mr Mills: I take it, then, with the exception of these recommendations, that you are in favour of the bill?
Ms Lalonde: Yes, we are.
Mr Kwinter: On your second page, item 2, you talk about how it should include the earnings of self-employed people. The problem with this particular Bill 17 is that it really is a collection bill. It does not deal with the broad aspects of support and access and everything else that goes with it. It is really a process whereby we hope to improve the collectability of support orders, and that is really all it deals with.
What I would like to hear from you is, do you have any ideas as to how that would be improved by, say, providing in the bill that the self-employed people be invoiced? Right now, if you are self-employed you go to court with your spouse, you get a court order and you have to pay. If you do not pay, the spouse who is not being paid has the option of going back to the court and getting a garnishee. I am just curious to know what mechanism you see for improving that in this particular act.
Ms Lalonde: The reason that we are specifically mentioning that is that it does not appear from the list of income sources that self-employed earnings are included, which is a big concern to us. I realize what you are saying about it being a post-court order situation that this bill is intended to correct, and reading the bill I do not see any way that they would get the earnings of self-employed people under this legislation. We would like to see them put in under the legislation if there is no way of attaching their income because it is "I'm paying me," as it were. That is why we are suggesting that an invoice be sent out, just as you would be sending an invoice to IBM for Fred. The invoice would be sent, if I was the person, to me to be paid on my behalf.
Mr Kwinter: And if the invoice is not honoured, what do you suggest?
Ms Lalonde: Doctors have stethoscopes in their offices; you could go in and seize them. You could use the present SCOE enforcement things, which I understand are still being left in effect, but we see this as a pre-SCOE method and that the present SCOE methods would still be used.
Mr Kwinter: Actually, this is a post-SCOE as opposed to a pre-SCOE.
Ms Lalonde: No. I would go into court and get an order today for support. Tomorrow it would be enforced this way. If this did not work, then you would use the present SCOE. That is what I mean by "pre" and "post."
Mr Kwinter: Okay. You list the recommendations. In the second one, you say that there should be a distinction between those who pay their support orders regularly and faithfully and those who have a record of defaulting. What do you mean by that?
Ms Lalonde: There are some people from whom, on the first of every month, some women receive a cheque regularly from the minute the court order is issued until the child becomes 18 or leaves school or whatever the termination point is. And there are some people -- I was once very closely personally acquainted with one, who when he felt like it he paid and when he did not feel like it he did not pay. I went to court, over a period of I believe it was eight years, 47 times to enforce the support order. That is what I would call someone who has a record of defaulting.
Mr Kwinter: I know who pays regularly and who does not, what that means.
Ms Lalonde: Yes.
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Mr Kwinter: What I want to know is, what is the distinction? What are you proposing?
Ms Lalonde: Until he defaults, give him the benefit of the doubt.
Mr Kwinter: In what way?
Ms Lalonde: Call him a payer as opposed to a debtor.
Mr Kwinter: Ah, I see, but you are not asking for special treatment, that he be excluded from --
Ms Lalonde: No, no. We want the negative connotation of debtor taken off the fellow who is going to walk in the next day and write a series of cheques.
Mr Kwinter: I was hoping that maybe you had some mechanism for dealing with that person who pays regularly and is not in default in a different way other than just referring to him in one way as a payer and another one as a debtor.
Ms Lalonde: No, we do not, because we support the universal application of support deduction orders.
Mr Carr: You mentioned the time frame that you had to spend in going back to the court case, and forgive me for being personal --
Ms Lalonde: No, that is fine.
Mr Carr: -- but what was the reason that you did not receive payment? Was it that he did not want to? It is hard to believe, seeing the beautiful little child beside you there --
Ms Lalonde: This is my granddaughter.
Mr Carr: Oh, I am sorry. Okay, and I was just wondering if you could let us know --
Ms Lalonde: I could not have received payments for her for eight years.
Mr Carr: Oh, I am sorry, yes, great thinking on my part. I was taken up by her, though, she is gorgeous. What was the reason in your case, if you could?
Ms Lalonde: It was a punitive measure on his part.
Mr Carr: So it was not a case of he could not pay or something. He just said no for --
Ms Lalonde: Fifty dollars a month out of a $60,000-a-year income: I do not think there was a financial hardship.
Mr Carr: So he just was one of these ones who sort of cut it and went away.
Ms Lalonde: Yes.
Mr Carr: You mentioned too the situation. One of the problems that we have got is that even with the order being tied to the father's income there are going to be children who are not going to get enough anyway, because of the father does not make enough. The father in most cases does not make enough. You suggested social assistance or making it so that the government would help with that. Let's use the case of somebody who is making payments but can only make $50 but the court decides the child needs $100: Has your organization thought how you could make it so that it could be the ability of the father to pay and the state, so that the child can get not what the father can afford to pay, which is what we are at now really from the courts, but what the child needs?
Ms Lalonde: Okay. I would assume that that would have been handled under the original support order. What I was referring to is when there is a break in payments as when he leaves the job. Let's say by the time he reports he has left the job, goes to a new job, reports he is at the new job, they get in touch with the new employer, the new employer has 14 days to provide funds, you are looking at a period where the woman has no money unless he voluntarily keeps up his payments, which is possible and I do not want to sound totally negative towards payers. What we are looking at there is that those support payments would be paid by the province, not that the woman would go on social assistance necessarily.
Mr Carr: And your experience, having worked in this area on, as we keep calling it, the front lines, and your personal situation is that they would not. What is your feeling of the reason that sometimes they do not pay? Is it a lot of cases like your former spouse where he did not want to pay because of the problems and anger and so on? Or is it a case of sometimes they cannot pay? Or is it access? What is the range of reasons that are out there, from your experience?
Ms Lalonde: It could be any one of a number of things. It could be that in a lot of cases the husband feels that that relationship is over: "I've paid for a couple of years and let's move on." In some cases there is a new family. Either spouse has a new family, and either the husband feels he should not support when there is another male in the house who is supporting, or the husband feels he cannot support it because he has new obligations. Every case I think is unique.
Mr Carr: I do not know if you can answer this one, because it seems that we have got two classes of people: people like yourself who did not get enough from the court order and other people who are saying that they got too much. I was just wondering if you had any reason why you got such a low amount, $50 I think you mentioned. Was there any particular reason? Does it really come down to "having a good lawyer" in negotiations? Why did you not get enough that you really need? I suspect that $50 did not do it. Have you thought of why you did not get that amount?
Ms Lalonde: I am really not sure why I did not, but actually I was quite glad not to get a higher amount, because that way when it was not paid I was not in hardship. If my payments had been $500 a month I would have been desperate every month; $50 a month you can live without. So in my case it was good.
Mr Carr: Thank you very much for bringing the little one.
The Chair: Thank you very much, Ms Lalonde.
BARRY DEMETER
The Chair: Mr Demeter. I notice you have been observing the hearings. We have, as you know, approximately 15 minutes. Your submission has been circulated and it is quite readable. So go ahead, sir.
Mr Demeter: To enforce and make automatic deductions of child and family support payments from the income of people required to pay support, ie, garnishment, is an action that will be demeaning, denigrating and demoralizing, particularly if the garnishee has recently experienced the crushing emotional and financial drain of the family court system.
If the purpose of the proposed garnishment is to humiliate the individual and promulgate an intense atmosphere of hostility, then proceed with the amendment to Bill 17.
Since June 1987 I have not missed one single court-ordered child support payment, yet according to SCOE I am one -- and I apologize for this figure -- of the 84% who is in default, such that they requested the court to enforce a garnishment on my salary.
How is this possible?
I made a $52,000 lump-sum cash matrimonial estate settlement. Then I paid $56,000 in legal and court fees to have all outstanding support and access matters resolved. Yet one month after the divorce trial, SCOE was enforcing its apparent mandate.
Phoning is impossible. They refused to answer my letters. A trip at my expense to London saw the area director, Jack Holmes, scream at me from behind bulletproof glass that he did not have to accept any damned documentation from me at all, no matter what it was, because I was not his client and he did not work for me.
A trip at my own expense to Toronto saw the executive director of SCOE, Gail Taylor, apologize for Mr Holmes, fax him the documents and then admit to me that even the Attorney General himself could not stop a garnishment. I would have to go to court.
It will take over 50 years in this province to erase the stigma of being a father forced to pay child support through garnishment.
Despite the fact that I correctly filed all the required appeal documents, SCOE went ahead and ordered my employer to begin deducting 58.8% of my net salary from each paycheque. I was hauled out of my classroom by the director of education and my principal and informed of the garnishment.
I spent an additional $2,500 in legal fees so that the judge could halt the garnishment. The employer refused to accept the judge's order because SCOE told it not to act until SCOE approved any changes.
More pay was deducted. Again back to court and the judge was extremely annoyed because, in addition to ignoring his order, SCOE was refusing to release any of the moneys to my ex-wife. More court orders, more expense.
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Phone calls to the board office, a trip to present the new court order, return trip to pick up refund cheque, cheque was stale-dated back to June 1990, bank would not cash it, phone call to explain to board office, trip to present old cheque, return trip to pick up new cheque, return trip to bank.
The judge does not have the authority to rule on arrears, so now that has to be decided in a higher court. However, at SCOE's request the judge leaves the monthly current support payments under garnishment. There is no allowance at the board office for the third pay of the month, thus already it has deducted too much money. Another phone call, trip to the board office. I have included the cheques that have shown the overpayment and the refunds that I had to go and collect myself
Now, why not simply let me write out 12 post-dated cheques a year and give them to my ex-wife? Months before there was any sort of court order I voluntarily and regularly made larger support payments than the first order actually called for. Because this procedure did not involve 40 bureaucrats, SCOE and Revenue Canada refused to give me any credit for these payments. It is no wonder you have a system that is overloaded, bogged down and virtually ineffective.
And the reason for my alleged arrears?
The court order covered four children. It specified that the two eldest had to be in school full-time. Robert, who graduated with a 78% average in his OACs and who was accepted in business at Wilfrid Laurier University, decided that he wanted to come back for grade 14 so he could play basketball and be with his girlfriend.
He took two trips to Florida and one to Arizona. His attendance record, which I have included for you to see, shows he was absent a total of 126 days truant, 44 days excused absence and two days late. That is a total of 172 missed classes. Since the school year is only 186 days long, you really have to question his commitment to full-time attendance. Actually, he was working full-time at A&P.
Each semester he would sign up for three courses, the full-time minimum requirement, and his mother would inform SCOE that he was in school full-time. The records will show on the second semester on 1 February he signed up for physics, dropped it 1 February later in the day; 1 February law 04, dropped it 5 February; and 1 February law 03, dropped that one 10 April. In the first semester on 7 September he signed up for biology and he dropped that 13 September.
I kept asking SCOE to verify his attendance with the school and Mr Holmes refused, saying all he had to do was receive verbal verification from the boy's mother. So finally I quit paying for his year off when he turned 19. Thus I was in arrears. Included there is his attendance record and all the little notations that are there are the days that he was absent. All the reasons are listed down below and you will see that he included every one.
At every level then, in the courts, SCOE -- particularly SCOE -- and the employer, the system of enforced payments has a well-documented record of abject failure.
If the purpose of this system is to punish the male parent who is trying to support children who no longer are his, then it is doing exactly what it was programmed for. Why contribute even more misery to this dismal operation by conscripting those volunteers who still independently make all their payments?
My system would see a 33% drop in the number of arrears cases in the first year alone, guaranteed.
In part A, you have some options. This whole thing, psychologically, is primarily a matter of control. People will agreeably do many things that you want them to if they think they are in charge of the decision.
Thus, following the court order, you arrange for choice. A typical letter:
"Dear Sir:
"You have assumed the responsibility of child and/or spousal support in the amount of $ a month.
"Please be kind enough to select the payment option that best suits your life situation:
"1. You will sign an authorization instructing your employer to deduct $ monthly directly from your pay. This will be forwarded to SCOE and then paid to your ex-wife for the benefit of your children;
"Or, if you choose,
"2. You will pay SCOE, directly by cheque each month, $ made out to the director, SCOE. This in turn will be deposited in your ex-wife's account, again for the benefit of your children;
"Or, if you choose,
"3. You will mail or deliver directly 12 post-dated cheques, dated on the 23rd of each month in the amount of $ and payable to your ex-wife.
Since option 3 entails considerably less expense to the tax system, it will contain the following monetary incentives, and here is the reward in the program:
One year continuous record of support payments, in accordance with the court order, will see a one-week reduction in the amount of support while the child or children are spending their summer access with you.
Two years' continuous support will see a two-week reduction when they are with you.
Three years' continuous support and you will have the full month that the children are with you reduced.
Four years' continuous record of support payments, in accordance with the court order, will see an additional sum of up to $200 per child deducted from your December cheques, provided said amounts are supported with dated receipts indicating up to $200 per child was for their personal Christmas gifts from you.
Five years' continuous record of support payments in accordance with the court order will see you automatically eligible for a court hearing, at which time you may ask for one additional day of midweek access, including overnight, for the purpose of assisting your child/children with their school work or one additional week of summer access.
Now if the gentleman has maintained his access visits faithfully for five full years and has made all his support payments during this time, odds are the situation will be considerably less volatile and the children will all be five years older than when the marriage breakup occurred.
A continuous record of support payments past year five will see a continuation of any and all incentives previously earned. In the unlikely event that the person does default on a payment for a period of over 60 days, he will immediately revert to year zero of the incentive program and he can begin his credits again on a yearly basis.
Will the making of child and/or spousal support payments in the province of Ontario continue to be retributive or can we be enlightened enough in the province to enact legislative change that will allow the system to become one that is indeed remunerative?
If the purpose of the amendment to Bill 17 is for the continued harassment of the absentee parent, go for the automatic garnishment. You will accelerate the cumbrousness of the system 10-fold. If the purpose of the amendment to Bill 17 is truly designed for the efficacious and continuous delivery of mandated support payments for the benefit of the children, then it is time to calm the waters and allow the payer to maintain some dignity and self-respect, as well as the feeling that he is actually voluntarily contributing to the support of his children and I do wish you good luck in your deliberations.
The Chair: Thank you, Mr Demeter. You have quite an elaborate and well-worked-out scheme and some of the issues you pick up are some that we have heard before. We have a bit of a problem in terms of time, still, and I think probably many of the committee members would probably like to ask more than one question, but unfortunately we are time-limited. We will probably go over slightly -- starting with Mr Elston.
Mr Elston: The issue around which you have spoken to us is a good one. There is no flexibility in this program and you have pointed that out quite clearly. I think the presentation earlier by a gentleman about how he felt there was a wedge being driven between him and his children by the intervention of SCOE and an already well-working voluntary situation is something that we really have to be careful of.
Having said that about your first part, the second part, which deals with the options, for me revolves around a problem that we have here in this committee. Our bill does not speak at all to the issue of access, nor do we tie any of the principles of the bill to the access portion. Your option provided here actually does something that the bill is not designed to accomplish.
The other issue is this, how many people do you think would be able to participate in your program? It looks like it is sort of an unusual scheme, but do you see it being applied to everybody, no matter what level of pay is recorded in the order?
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Mr Demeter: As a matter of fact, I believe that people work more for rewards than they do for working for a punishment type of system. You are the experts and your committee advisers are more experts than I am, certainly, but I am trying to present to you, instead of just coming in and saying, "Negative, negative, negative, it is wrong, wrong," some feelings that perhaps you can work on.
I recognize the fact that this is not really the forum to give you the complete package, but I am overwhelmed by the fact that this openness is existing in front of this committee today. I am exceedingly impressed. So perhaps I exceeded my mandate a little and threw in a little more than I was supposed to --
Mr Elston: That does not bother us too much.
Mr Demeter: In terms of its being open to everybody, I believe anybody would work better under a system that rewarded them for faithfulness and devotion to duty or whatever. I strongly question the 75% figure because SCOE is making arrears where none exist and if they are giving you those statistics, they are false. Most of us would pay support. I paid voluntarily long before I was ever hauled into court and told, "You will now pay to SCOE." It was not necessary. It would not be necessary today; it will not be necessary six months from now. I will pay and look after my children because they still are my children, contrary to access arrangements and everything else that they tell me I have to live with.
Most men in this situation would feel that way. You give them the feeling that they have some say or some control and in effect, when you hand them the document and say, "We're giving you three ways to pay," what you are saying is, "You're going to pay anyway, regardless." They are going to feel that they have some control over it and you will get a lot more agreeableness, participation, regular payments made.
Mr Elston: I presume that you would also be an advocate for some flexibility being worked into the system, as opposed to saying once the order is made, that is it, and then you have to go back to the courts?
Mr Demeter: Oh, absolutely. That is a nightmare.
Mr Elston: Your expenses now, I guess, fighting the issues around support and custody, are now about $59,000 generally. I think you had $56,000 plus another $2,500. Would you be one of those people who would be unwilling to resort again to the courts if a variation order were required for support payments?
Mr Demeter: I shudder at the prospect of going back to the court and I am involved right now on this university issue. I have to go back. It is just automatically, oh, well, $2,500, $5,000, $6,000, $7,000, $8,000 -- just like this. I am broke now financially and at my age, I am trying to regroup and re-establish my life. I have, unfortunately, an ex-spouse who interrupts my access calls and says to me, "I love what the courts do for a woman." I say to her, "If we would stay out of the courts, there would be more money for everybody." Her response is, "I'll take you to court twice a year if I feel like it because SCOE pays for me and you have to pay." That is what I am dealing with.
Mr Elston: You have outlined a bit of a problem with SCOE as well, and perhaps one of the other questioners will get into it, but I was quite disturbed by your face-to-face confrontation with the SCOE office and I know that the new director probably will take that example to heart when other issues are started. It is your sense that there need to be a lot more resources involved in the SCOE operation, as well, I would take it.
Mr Demeter: They have to have some flexibility to at least make you feel they are hearing you. Now they may ultimately, when they get rid of me, send me the letter anyway when I am away from whatever the big threat is supposed to be. I am not a violent person but I strongly resent not even being able or allowed to sit down like I can with you people and present my information to an individual. This was like something out of a prison movie, the big door with the combination on it that locks and everybody is on the other side and I stand there and discuss my business openly with all the other men and women who are out in that lobby. That is ridiculous. Their executive director said that Jack Holmes was supposed to work for me also, but I still have to go to court now, because he has laid in the garnishment on this business and nobody can stop it. SCOE, nobody, can make it go away and even the lower-court judge cannot stop it. I now have to go up to another level. It is going to cost me a fortune.
Mr Elston: I will not ask another question, but I do want to bring to the attention of the Attorney General's representatives that there are two questions that come out of this brief. One is a 58.5% net pay deduction and the other is, to whom is the status of client owed by the SCOE people, and perhaps we can look at that later.
Mr Carr: We have heard a lot of talk about the 75% figure which I think we almost can throw out now, because it appears to be completely, for want of a better word, ridiculous. Why do you presume, then, people in SCOE are using that figure? Do you have any feeling of why they are throwing that figure out?
Mr Demeter: I guess from what I see, they are under a tremendous amount of pressure and like anybody who is pressured, any type of employee, they want to indicate that it is because of this fantastic workload. Therefore, they are creating make-work. They are harassing men who do not need harassment. They are hauling into court individuals who would very agreeably like to make some kind of a settlement.
I think it is because there is no control at the top. Obviously, when Gail Taylor can say that this man is wrong, but I cannot stop or overturn what he has done, there is nobody really controlling them now. You have got an organization that is out of control right now, and what you had better do is put the clamps on it because it is making hostility where none need exist. The whole divorce, psychological assessment, losing-your-child procedure is harsh enough without having this come right after it. So I agree with you. The 75% figure; I would strongly question its validity. And I heard earlier today that they do not even keep statistics. That is ridiculous.
Mr Carr: With the amount that you paid in the legal fees, which is such a tremendous amount there, the $56,000-plus, etc, why would it have been? Was it abnormally tough circumstances? As part of that question, I was just wondering, with the very elaborate way that it was used, for example, about the child in school and so on -- and I do not want to presume something when it is not there -- but is this maybe part of -- through your former wife's lawyer? Is this something where it was designed as a part of that, or how did this come about? You might not be able to answer that.
Mr Demeter: That is a very all-encompassing question that covers three and a half years of battling in and out of the courts. My feeling from day one was that I was always willing to negotiate, but I would wake up in the morning and find the bailiff there with a new summons to drag me into court again. I believe it was a combination of my ex-wife's lawyer and her own particular individual personality. For some reason, I guess, I deserve to be punished right now for whatever I did in 20 years of marriage, but she insists that she will see me in court on a regular and constant basis, no matter what I try and do to avoid it.
The legal fees are onerous. You cannot walk into their office now without laying down $750 or $1,000 right off the bat, and then each repeat visit, or whatever -- okay, that costs a lot. Second, the court has a little trick that is called "settlement." We negotiated all our property six months before the actual trial. A settlement was made. All the furniture disappeared because she and her boyfriend broke into the house and took it when I went to my brother's wedding. That was all gone too, so it was settled. Now there was nothing left to be settled. Everything was equalized, pensions and everything.
My lawyer told me on day one, "If you give an additional $5,000 and give up your claim for custody," which was very dear to me, "you are done." By day two it had grown to $10,000. By day three it was $16,000. By day four it was in the $20,000s and at the fifth day of the trial I had not had a single witness speak on behalf of me. Her lawyer was filibustering. They brought in everybody.
Mr Carr: So lawyers are actually using access as bargaining tools?
Mr Demeter: Absolutely. It was $26,000 at the end of five days and finally I caved in. Nobody had heard me. My lawyer kept saying, "Okay, if you come back next week it is going to cost you $35,000 to $40,000 to be heard. All I wanted was a chance to speak on my behalf to have custody of my children and I could not. I have the trial transcripts, by the way.
Mr Carr: All right. So all I can say is I appreciate you coming in and, again, through very difficult circumstances. I think you have presented a very thought-provoking discussion. Thank you.
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Mr Fletcher: Thank you, Mr Demeter. You are not the first person I have heard this from today and it is amazing how long SCOE has been going on and it has just been one of those bureaucratic messes and something that we inherited as a government and we are trying to fix. You are not the first person who has appeared here today saying that SCOE needs some adjustments and we feel that Bill 17 is part of that step in making some of the adjustments. It may not be the right first step, as far as you are concerned, but I think as the government does continue to readdress and take a look at the legislation, that some of the changes may become beneficial to what you are saying. As I say, Bill 17 is a first step and you are not a forgotten partner in this, by any means.
The Chair: Thank you, Mr Demeter.
Mr Demeter: Thank you very much.
HUMAN EQUALITY ACTION AND RESOURCE TEAM INC
The Chair: Perhaps we could hear from our next witness, Mr Norman Rosenitsch, who is representing the Human Equality Action and Resource Team.
Mr Rosenitsch: Thank you very much, Mr Chairman. Just a few pre-comments that I have been asked to make --
The Chair: I am sorry, Mr Rosenitsch. Just for clarification, you have half an hour, as you represent a group.
Mr Rosenitsch: I understand that. I have just a few pre-comments to make. One is to be directed at Irene Mathyssen and it is from one of our members of HEART sitting in the audience here today. Her very heartfelt sympathies go forth to Andy Axhorn, because she has been denied access to her child since 30 July 1990. It does exist.
Second, a comment about the previous gentleman: We have a member of our organization who was forced by economic reasons to sign away seeing his child until the child is 18, because the alternative was financially devastating.
My name is Professor Norman Rosenitsch. I am a professor of computer studies at Centennial College and Ryerson Polytechnical Institute. I am treasurer of OPSEU Local 558. I am a delegate to the Labour Council of Metropolitan Toronto. I have been a delegate to the Ontario Federation of Labour and to the Canadian Labour Congress. I am the co-chairman of the health and safety committee at my college. Outside, I am a director, central east, of the Canadian Amateur Diving Association, Inc. That is springboard diving. My entire adult life I have been involved with young people and worked in the community in community affairs. I am on the board of HEART.
What is the Human Equality Action and Resource Team? The Human Equality Action and Resource Team, also known as HEART, is a non-profit, self-help organization composed of women and men who are dedicated to helping families who are involved in the separating and divorce process. We strongly advocate a non-adversarial approach to separation and divorce and alternative dispute resolution procedures.
Our main focus is on the children involved in the process and we affirm such concepts as family mediation, shared parenting arrangements and fair child support. We are dedicated to human equality between genders, as well as races and creeds. Our experience is with the application of equality in family law matters relating to separation and divorce.
HEART's concerns with Bill 17:
Concern number 1, and it is a lengthy one: Our first concern is with the mandatory, universal application of the proposed support deduction order. It is argued by government members who propose this bill that it will increase the collection and reduce default, as well as removing the social stigma that was attached to garnishment. I understand that $5.4 million will be budgeted to manage the proposed program. And I have that from a letter from Drummond White, not to me.
First, we are concerned about the universal application of the support deduction order. Telling the citizens of Ontario that the support deduction order is not a garnishment, because all supporting ex-spouses are included, is almost bizarre, as bizarre as Saddam Hussein telling the United Nations that the occupation of Kuwait is not an invasion but merely the incorporation of an Iraqi province.
A garnishment is a garnishment no matter what rhetoric the government chooses to use. Garnishment has its place in our society. It is used when a willingness to pay debts is absent. In the course of natural justice a support-paying spouse should not be subjected to the humiliation and psychological effects of garnishment unless his unwillingness to comply with the support order is proven. Every support-paying ex-spouse is judged to be a potential dead-beat by this proposal. Under the rights and freedoms of our country they should be deemed innocent until circumstances prove them to be guilty. Only at that stage should garnishment provisions be invoked.
A question: How many support-paying ex-spouses are there in this province? The government has announced figures regarding the number of defaulters enrolled in the current program, and today I have heard it might not even be that valid. I would expect that defaulters are recorded with your ministry, but how many people pay their support on a frequent basis? I am certain there is a majority of support-paying ex-spouses in this province. But will the government come up with accurate figures so the true ratio of payer to defaulter can be published? After all, good government management would surely indicate these figures in a feasibility study.
I have concluded there is a phenomenal number of individuals in this province who pay support as opposed to those who do not. I am sure there are a few support payers on your committee; if not, as least in the Legislature. Is the government proposing a bill to build a big bureaucratic bill-collection agency with the $5.4 million? Why not use that money to concentrate on the true violators of support orders instead of some massive computer system to collect bills that need not be collected at all? Do the taxpayers of this province have to pay for a service that is not even needed in the first place to collect from the people who are paying?
You have to realize that garnishment affects those who are gainfully employed, ie, the sitting ducks. What about those who go underground, those who become transients, those who leave the jurisdiction of Ontario? How effective is mandatory garnishment in these cases? What I am suggesting is that mandatory garnishment is not going to help solve the defaulter problem. Who is included in these defaulter totals -- those you can never collect from in the first place? We have a member of HEART whose ex-spouse has served time in a federal penitentiary. That person laughs at the fact that they might throw him in jail. The Don Jail is nothing compared to the federal penitentiary. Are they those who cannot afford to pay all of the ordered amount but who are paying some percentage; those who are trying to make ends meet; those who are on welfare? Produce some statistics on the nature of the problem, and the need for mandatory garnishment will be minimized, and then the focus on how to use the financial resources will become clearer. I challenge the supporters of mandatory garnishment to publicly issue a feasibility study, a cost-benefit analysis, a sociological and psychological study on this issue. I challenge that.
Third, one must look at the effects of mandatory garnishment on the children of the parties involved. HEART advocates that both parents should be involved in the upbringing of children. Both parents should be part of the child's life. Of course, there may be extreme circumstances where one or both parents should be excluded. In the first few years of separation or divorce there exists a general feeling of anger, hostility, hurt and revenge. We have heard some of those cases today. Children are usually aware of these emotions between parents. The support-paying ex-spouse is usually the non-custodial parent. Some custodial parents make sure the children know who the power source is. Most children respect the custodial parent because of the nature of the power source. The support-paying non-custodial parent has the respect of the children in that the child becomes aware of the financial contribution of the parent who may have some or little or no access to that child. I have personally spoken to adults who were children of broken homes and their praise for the non-custodial support-paying parent was considerable.
If the government of Ontario were perceived by the child to be the source of money for the child what damage is being incurred to the relationship between the support payer and the child? Is this bill going to put more barriers between the children and the parents? I heard earlier "drive another wedge in." Also, what about the school yard taunts among children that are so vicious at times? Have we considered this?
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Fourth, the option for two ex-spouses to opt out of the support deduction order is unrealistic. A support-receiving ex-spouse would never have to give up the guarantee of the province of Ontario to collect the bills. No lawyer would advise his client to give up that right. Would this option be another bargaining chip for one spouse to use against another to extract custody or access or to get more of the divided assets, as we heard earlier, or a lifting of the moving-from-Ontario clause that is in the current legislation, or changing of children's names? Is it another bargaining chip for one side? I ask you the question.
Fifth, the implications of spousal violence must be addressed. Separation and divorce have very emotional effects on both parties. For the support-paying ex-spouses, we usually see them faced with limited access to their children, without possession of the matrimonial home, and faced with a loss of friends and family support and with an order to pay support where the amount was determined with very little economic or sociological input. We have situations where there are some very frustrated, hurting and despairing people, especially during the first years. Add one more brick to the heavy emotional load and what will happen? Most people are not violent. Violence evolves from frustration. If this bill is the root cause for one more person to commit suicide, murder or assault, this law would be a bad law. Use the money to help ex-spouses resolve their differences. Do not help the cards be stacked. Use the law in a positive way to relieve this stress.
HEART's proposals: Garnishee only where a person is proven to be in default; set up a garnishment hearing before ordering the garnishment, so both sides of the issue can be heard; order mandatory mediation with an adverse inference provision for non-participation prior to the support order being issued; the mediators should have financial and social science expertise, and have compulsory disclosure of the mediation proceedings to the family law court in the event a settlement is not achieved.
Our second concern is that the proposal does not deal with overpayment. Who is liable to return money that was paid in excess of that which is required? There are circumstances that could arise where more money was deducted than should be. This could be caused by variation, suspension or cessation orders or even due to payroll differences when changing employers. Who is liable to repay? How can repayment be enforced? There is no language.
Also, what safeguard is there that will prevent double deductions? This could occur if deductions were required from two or more income sources. Again, who is liable for the repayment and how can it be enforced?
Last, who is liable to repay money that was deducted when parties do not agree that the order has reached termination? The court process could take months, if not years. If the termination were upheld, who is liable to repay, or will the innocent payer get stuck? What about the interest on improper deductions? HEART's proposal: Add some repayment or overpayment language.
Concern 3: Our concern is that parties cannot opt out of the program. After many years, support needs vary. The increase in support is addressed in the current legislation: you get your cost of living. As children pass from their early years to their late teens and early twenties they become more responsible for their own support. Concurrently, divorced parents are usually on better speaking terms.
After many years, many support orders are phased out by both parties without referring to the court. They do not need the aggravation; they do not need to waste their time; they do not need to waste their money. With this bill the two parties cannot agree to scale down or phase out the deduction order by themselves. They are forced to go to court to obtain orders. Is this merely a job-security clause put into Bill 17 by the legal community? I ask you. Surely two consenting parties should be able to handle their own affairs without legal counsel and the court. Bill 17 proposes that the deduction goes on regardless of what the two parties wish. HEART's proposal: Allow consenting parties to opt out.
Our fourth concern deals with the potential abusing of the garnishment facility by a recipient of the support. A custodial parent could establish a mailing address in the province of Ontario with the collaboration of friends and family. Then the custodial parents and children could move to some other jurisdiction or foreign country such as Jamaica, Bangladesh, Guyana, etc. How much time will elapse before the court deals with the change in circumstances? How long will it take for the court to enforce the Hague Convention? How long will it take for extradition to occur? In the meantime, the garnishment continues with the guarantee and support of the government.
Another abuse could occur when children are placed in the care of grandparents or other people by the custodial parent. The grandparents or the other people have means to support the child in their care and the custodial parent uses the garnishment for their own use. The grandparents or the other people could reside in Italy, Trinidad, New Zealand, Hong Kong or wherever. In this case the purpose of the support order is not being adhered to, but the government garnishment continues with the guarantee and support of the government. HEART's proposal: Plug this potential abuse by enforcing garnishments only where the child is under the care of the creditor and as long as they remain in the geographical area defined in the court order.
Concern 5 is more global in nature. Our last concern deals with the government's approach to family law issues. This prioritization of money issues above the social issues of children's needs and alternate dispute resolution is appalling. Many, if not most, of the money issues would disappear if the government's concern for the people involved in marital disputes were addressed. Family law wars continue because the government does not have an effective dispute resolution process. The current adversarial system economically devastates both parties financially and rewards lawyers financially. The children who are party to the dispute lose out emotionally and financially.
HEART's proposals:
1. Every child has a right to have both parents participate in its life after separation and divorce. If the two parents cannot agree on a mechanism, the court should order mandatory mediation. What parent would not wish to have a situation that is in the best interests of the child? An adverse inference should be inferred by a judge if one parent does not participate or frustrates the mediation process. The judge shall have full disclosure of the mediation proceedings in the event a settlement is not achieved.
2. Every child has a right to receive financial support while on its road to self-sufficiency. Children have a duty to phase in self-sufficiency as they approach adulthood. I know I did. I am sure many of you have. What parent would not wish their child to have the necessities of life in order to achieve self-sufficiency? If two parties cannot agree on what is fair child support the court should order mandatory mediation, again with an adverse inference provision and a full disclosure provision.
3. Support-paying parents should be allowed to exercise their duty to pay support with dignity and receive true respect from their children. Their rights should not be curtailed because of those who do not exercise their duty. Only those who are proven to be in violation of an order should be subject to the enforcement provisions.
4. Use the $5.4 million to relieve hardship by providing housing, day care, counselling and mediation services. Do not use it to collect from people who pay it anyway. If the government has trouble collecting from defaulters perhaps it should let the private-sector bill collectors handle it. If SCOE is not effective, maybe somebody else can be.
Concluding remarks: The government should be providing legislation to foster positive approaches to marital breakup and should not be engaged in negative punitive legislation. Bill 17 has its share of negative and punitive actions. It is time the government addressed the child and family law issues with a global view and not in the piecemeal fashion of Bill 17.
By the way, I have in my hand the 18 August 1990 NDP Agenda for People. There is no mention of the $5.4 million in this program. Is the government adopting the Mulroney government's morals by getting elected on one agenda and bringing in a secret agenda based on secret promises to special-interest groups?
Last, what legislation is planned for children who are denied access to the non-custodial parent by the custodial parent? Does this government value bill-collecting more than the psychological needs of children who are flagrantly denied access to their parents? Is this really a government that wishes to address the needs of people? I ask you that question.
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Mr Elston: Or is it the needs of power?
The Chair: Perhaps we could save the commentary for when the provincial House resumes on the 18th.
There are a couple of things. I believe you named at the outset of your presentation that some acquaintance had received a letter from myself.
Mr Rosenitsch: Yes.
The Chair: I do not recall sending any letters out that specifically mentioned garnishment. I would appreciate receiving that so I could verify that, please.
Mr Rosenitsch: That is where I got the 5.4 from.
The Chair: Five point four -- I do not think I made any reference to 5.4 unless we were talking about rent controls. Is that a rent control issue?
Mr Rosenitsch: It says here, "Sincerely yours, Drummond White, standing committee on administration of justice." "Thank you for your letter expressing your views on Bill 17," etc. "While the same structure and organization will remain, the new child and family support program is different in that it will have stronger enforcement measures and additional resources -- $5.4 million to manage the program."
The Chair: I do not recall --
Mr Rosenitsch: And I believe this is your signature.
Mrs Mathyssen: Drummond, I believe that this has a lot to do with the fact that in the past the argument has been that governments bring in legislation or programs and then fail to fund them so that they will work. The reason for providing the information was to illustrate that if this government is going to try to bring in legislation that will help women support their children then we are willing to finance that adequately so that it can work.
The Chair: I just do not recall having sent out detailed letters like that. I appreciate --
Mr Rosenitsch: It is your signature. I am sorry, sir.
The Chair: It could well be. Could you circulate it for me? Could I see it?
Mr Rosenitsch: Well, there is some other correspondence and I would wish to keep the name of the person this letter was addressed to confidential. Can we black it out? This is one page and we will black it out and give them the right to privacy. Thank you.
Mr Elston: Mr White has been found out.
The Chair: I am finding myself out. I do not recall that note.
Mr Mills: Will the real Drummond White stand up, please?
The Chair: I would be pleased to.
Mr Elston: Mr White, I wonder if we could ask Susan, who is our legislative assistant, to perhaps do a bit of a study and find out whether or not the NDP has given up on the Agenda for People --
Mr Rosenitsch: Excuse me, Mr Chairman, I believe the purpose of the hearing is for people to ask me questions.
The Chair: Yes, it certainly is, sir -- a very appropriate point. I wonder, however -- the recorder is having some difficulty in terms of volume -- if you and the rest of us could tone ourselves down.
Mrs Cunningham: I apologize for missing so much of the afternoon proceedings. We are trying to cover a couple of committees. There are not very many of us Tories left, sir, even with your remarks --
Mr Elston: Too many.
Mrs Cunningham: I do not believe you believe that, sir, and neither do I believe that Mr -- who said that? Not Mr Elston.
Mr Elston: Yes, I do believe it.
Mrs Cunningham: However, given that we have not met each other before, except earlier today, I think we certainly share the same views on this piece of legislation and I would like to ask you a specific question. First of all, what is your experience with mediation? Why do you take such a strong stand on mediation? I am interested in --
Mr Rosenitsch: In HEART one of our mandates is to try to get away from the adversarial system of dispute resolution, so one effective tool is to have people sit down and mediate. I am involved in the labour movement and that is a very good method of achieving some kind of settlement and it usually works through without going to the extreme to go to arbitration or the court to decide. So usually it is best for both parties to work out their difference where they have some control rather than a third party imposing it. Unfortunately, the mediation process is stacked right now because if you look at the legislation and the attitudes of our society, at mediation all you have to do is pretend to be doing a good job and you will get out of it without a settlement. And it will probably not be disclosed mediation, just the fact that you went. That is all.
But if it were mandatory mediation with full disclosure, no-one is going to try to bilk the situation, because bilking is just going to push you on further to more adversarial court costs. So if two parties can sit down with some realistic expectations to solve the problem and the federal legislation says in the best interests of the child, what could not be in the best interests of the child but to work out some settlement?
Mrs Cunningham: Could you tell me, then, what specifically we will have to do to support this mandatory mediation, in your view?
Mr Rosenitsch: My lawyer said to me when I went through the process, "You know, people who are interested in separating or divorcing should be forced to stay away from the lawyers for one year." I do not know how practical that is.
Mrs Cunningham: The children would certainly benefit.
Mr Rosenitsch: Certainly. Sure. The worst miscarriage of justice occurs in the masters' courts, in the initial separating process. Now they throw one person out of the house, not even thinking about the fact that perhaps there is something where there can be joint parenting. Maybe you stay in the house six months; the other person stays in the house six months. That is going to encourage people to get this thing settled, but if you give one person the house with the children for some undisclosed date, you are going to have two, three years of conflict. If we make things equal, children can stay in their own neighbourhood. Just have the different parents move in and out. There are all kinds of ways. Mediate the --
Mrs Cunningham: So how do you think we can do that?
Mr Rosenitsch: By some legislation. We are getting off Bill 17 but --
Mrs Cunningham: No, we are not because I think 17 is a small part of a solution to a much bigger problem.
Mr Rosenitsch: You are right. The global issue should be addressed --
Mrs Cunningham: You said yourself it is piecemealing it. I agree with you and I think we are dealing with the wrong piece today. But let's hear what you would do.
Mr Rosenitsch: I would have to go back and look at Dr Jim Henderson's proposal of presumed joint custody first of all, right at the master's level. Then there will be mechanisms to fall into place that would really show you where the children are going or how the situation should evolve from the interim period to the final period, which usually takes two or three years.
Now, there is some problem, but one way to defeat that is what we hear in HEART, and we hear it from both sides, men and women -- the allegations. Things like, "That woman cannot take care of those children," and, "That man. I'm afraid of him." Therefore, we should not have the children exposed to this potential abuse. Where there is proven abuse, assault, abuse and so on, I can see separating the people. But you know what is interesting? One spouse could throw a dish at another spouse and get charged with assault. Never gets convicted but will be charged and maybe lose custody of your children, or just interim custody. Or another spouse may slap another spouse's face. They are not violent people. They do not have a history of violence. But they use it. They use it in the courts. The lawyers use it in the courts to divide people; as they say, "I'm looking after my client's interests." They are not interested in their client's interests, I do not think. They are not interested in the children, anyway.
Mrs Cunningham: Would you mind, on concern 3 where you make the statement at the bottom where you are talking about consenting parties to opt out?
Mr Rosenitsch: Yes. It is my understanding --
Mrs Cunningham: I was wondering if we could have a clarification on that point by the staff.
Mr Rosenitsch: Okay. It is one of the articles in here.
Mrs Cunningham: I agree. Would you get the article, the number that you see, while they are giving the response here? I think it is section 3k as well.
Could we please, Mr Chairman, on this one because this is one that I am not clear on, either, get a view from the staff while we have them? This is on the opting out. The statement is made at the bottom of page 3. We are both wondering if that is correct. Yes, "With this bill" -- it is one that you and I are both interested in -- "the two parties cannot agree to scale down or phase out the deduction order by themselves." Now, if someone wants to change the deduction order by themselves, what would we have to do to this bill, or is this a true statement? I think it is very important that we hear --
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Mr Rosenitsch: I see your point.
Mrs Cunningham: If I ask someone to tell me how to make that happen with this bill through an amendment or something, I would like specifically to know now.
Ms S. Murdock: Section 3f.
Mrs Cunningham: Section 3f, right. I know why you said 3k. It is on my mind too.
Mr Rosenitsch: Section 3f, which says "no opting out" in the comments on the side.
Mrs Cunningham: I am just wondering if there was a solution on this one, if the people listening had thought about this at all, because it is not the first time we have heard it, the opting out. What would we have to do, just strike the clause or -- it must be there for a reason. It is 3f, sir.
Mr Rosenitsch: It is 3f, yes.
Ms Pilcow: An agreement to alter or to vary a support deduction order is not valid in and of itself. What has to happen is that the underlying support order has to be changed by the court. The philosophy is that a support deduction order follows the support order, and if the support order is itself appropriate then the support deduction order is then appropriate as well. If you want to change the amount, you have to go back to the court that made the support order and change it.
Mr Rosenitsch: My point is that parties phase out support over time without going to the courts, but how do you change the support deduction order for those whom you garnishee from, of course?
Mrs Cunningham: Correct me if I am wrong, because I would like to be right. Presently, if people have a support order where there is no garnishment, there has been regular payment, and they choose to change it, if the director of SCOE knows that they themselves want to change it, my understanding is that you have to get it changed through the courts, even now. Is that not right?
Ms Pilcow: No.
Mrs Cunningham: So the information we had from the witness yesterday was not correct. That was the one where we saw the cheques attached and he paid $215 and they, in fact, only passed on $200. No one told me it was not correct.
Ms Pilcow: I am not sure what you are referring to. Parties are free to amend a court order for support by way of agreement, and that agreement is binding. So you can change the underlying support order by agreement, and if you file that agreement with SCOE, SCOE will enforce that new amount.
Mrs Cunningham: Okay, so this is the case where someone did not, in fact, go and have the support order changed.
Ms Pilcow: Either they did not get the support order changed or they did not enter into a further agreement with their spouse. They do not have to go back to court for the support order. They can agree between themselves, draft up an order, and that will vary the original court order for support.
I think what you are referring to is a situation where people agreed informally to change the support order. You cannot do that and have it enforced by SCOE.
Mrs Cunningham: I have been given two pieces of advice and if I am going to be amending something I need -- I am sorry we are taking up your time --
Mr Rosenitsch: That is okay.
Mrs Cunningham: -- but on the other hand, Mr Chairman, I have been obviously misleading people based on the information we got yesterday, or the information that I incorrectly interpreted, which is probably more likely, but I do not think that is healthy either.
Mr Elston: Oh, that is not likely.
Mrs Cunningham: Oh, I think it could be. Given what is going on I think it well could be. Here I am with all the paid advice I can get and I am having trouble with this legislation. I do not know how ordinary, everyday people could even know what their rights are.
Now, having said that: If someone has a separation agreement and it says that you pay $400 a month and that has been registered with SCOE today -- forget this legislation -- and, in fact, you want to change it, you can change that separation agreement by both of you going to the SCOE office and saying, "We want to change this," is that correct?
Ms Pilcow: No, no, you cannot do that.
Mrs Cunningham: Okay, tell me how you can do it then without paying anybody a penny.
Ms Pilcow: The two of you, the two parties in a separation agreement, can get together and enter into a new agreement to amend the previous one.
Mrs Cunningham: How do you do that without going to a lawyer?
Ms Pilcow: You can do it without going to a lawyer. A domestic contract needs only to be signed and witnessed and dated.
Mrs Cunningham: At SCOE perhaps?
Ms Pilcow: No, SCOE does not act as a legal representative.
Mrs Cunningham: All right.
Mr Elston: You could go to the people who suggested -- the people from the community agency --
Mrs Cunningham: Could you go to the piano teacher?
Mr Elston: Or your clergyman or something.
Mrs Cunningham: Who can you go to, is my point, because I advise people and they have been advised otherwise by their lawyers, and I am now seeing that there is probably a vested interest here, so whom shall I tell them to go to?
Ms Pilcow: Well, you are very well advised to go see a lawyer if you are dealing with your rights to support. I think it is a good idea to know what your rights are before you enter into an agreement to amend those rights.
Mrs Cunningham: But the lawyer sitting there yesterday said she would charge $1,000.
Ms Pilcow: I do not recall that.
Mrs Cunningham: Was that not the question you asked, to change the agreement? I thought you or somebody asked the witness how much she would charge.
Ms Pilcow: What they were talking about is how much it would cost if you wanted to bring an application to vary a support order --
Ms Feldman: Through the court.
Ms Pilcow: -- through the court. Now, parties do not have to go to court. They can go to their lawyers, they can do it very simply, or they may not go to lawyers at all, which is not a good idea if they do not know what their legal rights are.
Ms S. Murdock: Section 3f says: "An agreement by the parties to a support order to vary a support deduction order and any agreement or arrangement to avoid or prevent enforcement of a support deduction order are of no effect." That does not clarify, I do not think, that you can, by way of agreement, vary a support.
Ms Pilcow: There are two provisions that deal with the variation issue. Section 3e says that the only way you can vary your support deduction order is by varying your original support order; that is in 3e. What this says is that you cannot deal with your support deduction order on its own. You cannot just say: "I choose to have my order enforced to this extent. You can deduct 50% of my wages but, in fact, my support order requires a lot more." You have to deal with your support order first, and that is 3e.
Ms S. Murdock: Yes, right.
Mrs Cunningham: Perhaps Mr Elston is following my line of questioning here, but I thought he asked my same question to a lawyer and now we are finding out they do not have to go to a lawyer.
Ms Pilcow: That was a specific question: How much does it cost if you go to a lawyer to bring an application to vary a support order; what does it cost if you go through to a trial? That is one question. Another question is: How can you go about varying a support order or a separation agreement? That is a different question.
Mrs Cunningham: Okay.
Ms Pilcow: There are any number of ways you can deal with that and the cost varies substantially, depending on which option you choose and how hotly contested it might be.
Mrs Cunningham: But if parties agree and they simply want to have it done in some way, how could I advise this gentleman to get it done so it does not cost him any money?
Ms Pilcow: He and his wife can get together and do it on their own and sign a piece of paper and that will become a domestic contract.
Mrs Cunningham: And can they then take that to the SCOE office which would administer it?
Ms Pilcow: They need to take it to the court first and register it with the court. You do not have to have a court proceeding; you would register it with the court and with SCOE.
Ms Feldman: There have to be certain requirements to make it into a domestic contract under the Family Law Act. If those requirements are present it could be on a napkin. It could be registered with the court and then registered with SCOE for enforcement.
Mrs Cunningham: So no lawyer has to be involved. They can take it into the court office themselves; family court, I am assuming.
Ms Pilcow: Provincial court.
Ms Feldman: Yes, the provincial division; right.
Mrs Cunningham: Provincial division.
Ms Pilcow: Yes.
Mrs Cunningham: Okay. So now --
The Chair: It is easy to see why we need a full educational program, as has been suggested and recommended along with the --
Mrs Cunningham: I think most elected people here today are having some difficulty with this.
The Chair: Indeed.
Mrs Cunningham: Certainly in my job, and that is what I am trying to clarify, advising my constituents.
But the next one then comes to this gentleman's concern, and that is 3f. Now, he is saying, and I think he is right, any support deduction -- excuse me, this is after we have got the deductions, is it not?
Ms Feldman: Agreed.
Mrs Cunningham: All right. They are being deducted automatically and the husband and the wife say, "Look, we don't want this deducted any more. " In the same way that they want to change their original agreement, they are now saying, "We don't want this deducted any more." How can we then allow these people not to have it deducted?
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Mr Wessenger: If I might answer that: You cannot sort of set the deduction order. You can set aside the order by agreement that makes the original obligation, but as long as the original obligation exists, you cannot change the deduction order.
Mrs Cunningham: Because that is a court order.
Mr Elston: They both are.
Mr Wessenger: They both are. Yes. There are two orders: the order that creates the obligation to pay support --
Mrs Cunningham: And we are writing yet another step in here. Why would we have this clause? Could I have some member of the government please tell me why we have got 3f?
Mr Wessenger: Yes. Because you do not want the deduction order eliminated when the order for obligation to pay is still outstanding.
Mr Elston: I think really what is being said is, you have two cases in which you can avoid a support deduction order. One is the unconscionability test, and the other is if there is consent by the parties at the time that the issue is tried. You cannot, after the fact, opt out of the support deduction order. After you have gone and had a court support order issued, you can, however, amend that by going to the court with an agreement, however drafted and among whom it is approved, registered then at the court, and that will be sent off to SCOE. They still have a support deduction order, but they will then allow themselves to follow the new amended amounts to be deducted, which could include in some cases, by the way, a deduction to the sum zero for some children who may have gone away from school or whatever. It is my impression, however, that one would not be allowed to amend the support order to the amount zero, which would have the effect of avoiding both the support deduction order and the support order in the first place.
Ms Pilcow: You can, in fact. You do not have to agree to support for your children. The court always has an overriding interest.
Mr Elston: But I am just pointing out the fact that if you say there is no opting out, that is okay. But it would be unusual to allow the parties to come together, the coercion and all those other issues at stake, to render the support order itself to an amount zero, which would have an effect on avoiding the payments. So I think you can take it down to an amount, but you may end up with an amount of a dollar or something just so that the support order is kept in effect and the support deduction order actually exists.
The Chair: I think that is an excellent suggestion, Mr Elston. Perhaps you could enter it when we go into clause-by-clause.
Mr Elston: Just trying to be of help -- and from the opposition, I know.
The Chair: You are. You are, sir.
The Chair: Mrs Cunningham, have you --
Mrs Cunningham: Please go on. I was trying to help solve a problem.
The Chair: Did you have a question for the witness after the discussion of 3f?
Mrs Cunningham: I was trying to be helpful in getting those explanations. I hope I was.
Mr Rosenitsch: You have another aspect I am thinking of, and that is, we have to look at the sociological and psychological effects of what is happening after the separation process. People want to scale down the escalation. They do not need to get down to a court to sign these things off. Life goes on, and children grow up, and spouses meet other spouses, and these things can phase out by themselves. They do not need to go back to the court.
I guess one person could always hold the order there if it is never -- you know, they could just disregard it and always bring it back some day and say, "Hey, I want to enforce it now." But if things are working well, why can people not just carry on without interference of the governments in the courts?
In fact, I guess the whole point is the mandatory part for the people who are paying and being good people about it. Why punish them?
The Chair: Okay. Thank you, Mr Rosenitsch. Do we have further questions? Mr Mills. We are running short of time.
Mr Mills: How much time have we got, Mr Chairman? Are we hard up for time for a couple of comments?
The Chair: We are past time, but --
Mr Mills: Okay. Thank you, professor. I thought that was a really punchy deliverance here this afternoon.
Mr Rosenitsch: I have one question. When is this clause-by-clause debate going to happen?
Mr Mills: We cannot tell you that.
Mr Elston: The 25th or the 26th.
Mr Mills: We do not know ourselves.
The Chair: Mr Rosenitsch, that was a matter that was up for debate and often there is controversy in terms of when 12 very busy people can get together. If you wish to stay around, that point will be confirmed after today's proceedings. I think it will be most likely in two weeks' time.
Mr Rosenitsch: I would also like to say that the Human Equality Action and Resource Team would be available for any further questions on these issues or if you want some further input, because we are people who are dealing with people out there who are hurting.
The Chair: Thank you, sir.
Mr Mills: Excuse me, Mr Chair.
The Chair: Yes, sir. Mr Mills.
Mr Mills: I was speaking. I was interrupted by the professor.
The Chair: You were? I thought you were thanking him.
Mr Mills: You heard what the professor said. You went back to yourself and then you said, "Well, that's good," and we carry on. Is it in some order?
The Chair: Do you have another question, Mr Mills?
Mr Mills: No. I am devastated. I am not going to say anything now. That is it, because it seems to me that it is a bit peculiar. I was thanking the professor for a punchy delivery and also I just wanted to tell him that in his first page, he says that -- I do not have any difficulty in understanding the difference between a garnishment and a support deduction at all.
Mr Rosenitsch: You do not.
Mr Mills: No.
Mr Rosenitsch: Oh, well, let me explain it to you.
Mr Mills: Now, listen. Just one moment, sir. You and I might differ over income tax. That is a deduction. I might call it a garnishment, in my peculiar humour. Anyway, I am not going to get into that. I just want to touch on one point. Maybe I have got a thin skin and I am sensitive, and I would hope that you do not mean, in your concern that "the custodial parent and children could move to some other jurisdiction or foreign country such as Jamaica, Bangladesh, Guyana" -- I do not know if you sort of think that everybody who is going to be a problem is from those countries because you do not mention the United States, England, Denmark, Norway or anything like that.
Mr Rosenitsch: It is only mentioned because of cases we run into.
Mr Mills: I am pretty sensitive to that sort of way of speaking, anyway. Thank you, Mr Chairman.
Interjection: I think it has to do with extradition.
The Chair: Any further question, Mr Mills?
Mr Mills: No. That is a comment. Thank you.
Mr Rosenitsch: I would like to respond to the honourable member, if I am allowed to.
The Chair: Please.
Mr Rosenitsch: First of all, the various countries are mentioned because of actual cases of people going to other countries. Second, I would like to respond to the difference between a garnishment and a deduction. One gets a benefit out of a deduction. We deduct income tax, the government collects that money and gives me benefit -- gives me the police protection, the army, the roads, the airlines, whatever. It is paying for service. I am getting a direct service when I have something deducted. When I get my union dues deducted, my union provides me a service, and so on. I pay for such service. When you get a garnishment, someone is taking money from you because you owe it to somebody. You are not getting anything out of it.
The Chair: Thank you very much, sir, and I apologize for bringing you back again. I hope you have overcome your devastation, Mr Mills.
Mr Rosenitsch: I will come back any time you want.
The Chair: Thank you.
FATHERS FOR JUSTICE
The Chair: Our next presenter is Moe Rowsell from Fathers for Justice. Mr Rowsell. You, I believe, have been here for a while and you understand what the proceedings are like.
Mr Rowsell: Yes.
The Chair: You may wish to know that there is a format that is supposed to be followed. You have heard what it is and then seen that perhaps it is not always so closely followed. Thank you, sir.
Mr Rowsell: All right. Can you hear me, all? I am here representing Fathers for Justice. I am the vice-president. Fathers for Justice is a non-profit, charitable organization that deals with matters of custody, divorce, separation and access, and through our experience over the last seven years we have been quite involved in these issues.
Fathers for Justice has stood before other legislative committees with respect to proposals dealing with matters of family law, and we are pleased to be able to participate in addressing the matter that is set before us now. In the past we have lobbied for fairer and more just laws that would lend themselves to a more conciliatory approach to questions relating to separation and divorce. The issues being dealt with here in Bill 17 are symptoms of flaws in the overall judicial handling of separation and divorce and the ensuing matters of custody and support.
Fathers for Justice believes that supporting one's children is the responsibility of every non-custodial parent. In the past, we gave our input and support to the introduction of legislation in Bill 14 dealing with delinquency of support payments. At that time, we believed that other legislation would follow that would deal with some of the issues that often cause defaulting of support payments.
Unfortunately, Fathers for Justice cannot endorse the passage of Bill 17, in the belief that it is counterproductive to solving the overall conflicts that are inherent in our present laws and court system. In respect to settling problems arising out of separation and divorce, we feel that the legislation has already been put in place to deal with the issue of support payments, and this revision will only produce more confusion and conflict on even larger segments of society.
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Support and custody orders enforcement cannot do the job. Why? This bureau was initiated to handle the problems of delinquent support payments and to alleviate the problems of custodial parents having to initiate legal proceedings. SCOE was given wide-ranging powers to investigate claims, initiate legal procedures and recapture default arrears. Yet with all these powers, financial resources and manpower, SCOE has shown a dismal inefficiency in all areas of their operation from recapture success rate to accounting. Their accessibility to the public that they are serving is equivalent to sending a letter by dog sled to Hawaii.
Fathers for Justice, however, believes that the existing system that is in place is better than what will be achieved if Bill 17 is implemented. Adding another deduction system on what is already in place will only lead to further problems in accounting, collecting and the overall costs that will be incurred by society. This revision will only add private-sector inefficiency on top of bureaucratic inefficiency. How many times will a dollar bill be handled before it gets to the support recipient?
"Stick up your hands and give me all of your money." When will we start to address the problems that are at the root of this very serious social dilemma? We reproach the government for this attitude of money first no matter what kind of hardship it places on the non-custodial parent. Fathers for Justice would like to make these recommendations and asks that they be taken into consideration before proceeding with Bill 17.
1. Standardization of support orders to relate to the actual cost of adequately raising a child: This amount should be the responsibility of both parents and be shared equally with the presumption of no fault. Please refer to the attached Social Infopac which is a study done by the Social Planning Council of Metropolitan Toronto. I believe that there is probably a more updated version of this but we do not have a copy of it. We also understand that the Attorney General's office is studying a model for standardizing support payments. It is our hope that their conclusions will be the same as ours, that by presuming no fault and by setting standards relating to cost, less re-litigation will be there to clog up the courts.
2. Fast-track availability to the courts for review of support in light of financial changes: Access to the courts for changing existing support orders is slow and confrontational and places many non-custodial parents far in arrears before they can even see the inside of a courtroom. Support orders are rarely changed except to increase them and arrears are seldom reduced or erased. Costs of this re-litigation probably costs more in government dollars than it recoups.
3. Presumption of no-fault custody: Parents divorce themselves; it need not mean that they divorce their children. Maximum access should be the norm, not the exception. Specified access should be part of any separation or custody agreement and should be enforceable with easy access to the courts if it is being denied.
4. Denial of access continues to exist and be accepted, or at least not enforced: This is probably the saddest, most frustrating situation any parents will find themselves in. This is as much an injustice to our children as it is to the non-custodial parent. This is probably one of the main reasons for the purposeful refusal to pay support payments. The government should encourage the setting up of access exchange programs, supervised access programs, co-parenting programs and give the courts the power to order their use. The best interests of the child is to have parents who co-operate, and co-operating parents, down the road, have less problems to deal with in their day-to-day lives.
5. Mediation as opposed to litigation: Too often the adversarial system causes more trouble down the road and subverts the principles of justice more than any area of our social fabric. Court delays and bulldog lawyers can wipe a family's financial resources out. Where one of the parties is receiving legal aid, there is no incentive to reach conciliatory agreements and moneys are tied up for years. Moneys that could be used to establish life after divorce end up being depleted in long and foolish court battles.
Mediation should play a greater role in determining what is in the best interests of the child and parents reluctant to try these services should be assessed as to whether their motives are in the best interests of the children. The Supreme Court has stated that criminal charges that are prosecuted too slowly can be thrown out, and yet in family court, support, custody and access issues can take years.
We would like to see the government adopt an attitude of mediation, rather than litigation, and encourage separating parents to stop acting like children and take care of their children. As our system stands, we have no-fault divorce, but fault is very prevalent in the family courtrooms when it comes to decisions of custody, access and support.
Dealing with Bill 17 itself, a small canvass that our group did found that businesses seem fully unaware of Bill 17. It would seem that they should be consulted, since the government wants them to take on the extra responsibility and play the devil's advocate. The effects on people with fluctuating incomes, seasonal incomes or in lower-paying positions may find their jobs on the line. While it is easy to change a clause in the Employment Standards Act, the extra paperwork may turn the heads of some employers.
In conclusion, I would ask that Bill 17 not be enacted and that the government should look into the causes and effects of why default payments are not being met. Read in any paper about the economic downturn and plant layoffs; we are in a recession and this is going to show up in the courts. However, access to the courts has been hidden away from the public and simple cases are being delayed and drawn out.
Non-custodial parents can play a vital role in the continuing upbringing of their children. This Bill 17 wants to turn us all into debtors and automatically pronounce child support as a punishment. Non-custodial parents support their children in many ways when allowed to continue to play an intimate role in the child's life.
The Vice-Chair: Thank you very much for that interesting brief. Before we go into questions, I would like to announce that the 5:15 witness will not be presenting. Mrs Cunningham, any questions? I am sorry, Mr Carr.
Mr Carr: I think what has come out of this is a very clear indication that the situation that goes on with the lawyers and in the courts is just absolutely amazing. No offence to some of the lawyers who are sitting on this committee, but it really is ridiculous when you see the amount of money being spent and what they actually do. I would commend you in some of the mediation process that you are talking about. I would much rather see us spend money on mediation and trying to get an equitable solution, rather than the way it is now, where we deal with our system of confrontation.
If Bill 17 is proceeded with and in fact becomes law, what will the reaction be, do you feel, from some of the people like your group out there? What will their feelings be?
Mr Rowsell: I would say that we felt that Bill 14 that was brought in was not really great, but we supported it at that time. We cannot support this one because we just see the problems that people are having with SCOE already are only going to be aggravated by bringing in another agency to give money to another agency to give money to another agency.
We already have members in our group who have 100% deduction in garnishees being taken off unemployment insurance. We have other people who have 50% of their income taken off from the gross and then have 49% deductions taken off, basically leaving them in poverty and putting them at a disadvantage in being able to deal with their children and their life in general. Basically, I would see that by doing this the dedicated dodgers are just going to change jobs, and the paperwork included in that -- the government wants the deductions to be taken off paycheques within 14 days of receipt of the order, and employees are supposed to give 10 days' notification to the government as to their change of address or their change of employment. This is a nightmare that will make SCOE look like fantasy land.
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Mr Carr: With the way it is now -- and you may have been here when we heard about this figure of 75% which, as I said earlier, we should completely discount and throw out because we find it is not in fact correct. What is your feeling of why this figure is being used by the people in the SCOE office?
Mr Rowsell: To be quite truthful, I wonder about any figures that I receive from SCOE because of their backlog in work. Personally, I am one of those 75%. I am not in arrears to any great extent. I am a non-custodial parent and I see my children whenever I want to. I support them above and beyond the support payments that are being deducted or my rightful amount given, and I will increase that. As situations stabilize and parents start to learn to co-operate and deal with the children as children and not as assets of a divorce, more is going to be done for those children. The continual re-litigation of issues just detracts from the emotional satisfaction that one gets from the children and continues to be an irritant farther down the road.
Mr Carr: All it does is make the lawyers rich, it seems to me.
Mr Rowsell: I think the California experience is eventually coming here and that is joint custody and the presumption of no-fault in child matters. The statistics on mediated settlements between parents show that where a settlement is mediated, where the parents are actually involved in coming to an agreement that is amicable and beneficial to all parties, they stay out of the courts. There is no need for them to go back into the courts, whereas you have got situations where court orders, particularly initial court orders, the court orders that are supposed to be temporary -- unfortunately the initial court order that goes through is often the one that one has to fight the most.
Again, this comment was brought up by other people, that people are being advised by their lawyers: "Oh, you don't have to be at that court hearing, you don't have to be. I'll take care of everything." The attitude of the lawyers is for arbitrary litigation. When you walk into a lawyer's office it is: "I'll get you everything you want. I'm your friend; I'm doing my best for you." Yet many of these lawyers do not have a clue as to family law or the use of mediation, or the effects that long-drawn-out litigation has on the emotions of the parties that are going through it.
Mr Carr: They certainly do not have the children at heart, that is for sure.
Mr Rowsell: I will tell you a funny story about when I was going through court. Fathers for Justice, I should say, is an organization that tries to help people who want to go into court and not take their lawyer with them because, basically, if I want to go into court, if I want to file the papers, it is my right. While it is discretionary on judges as to whether they want you to represent yourself in front of them, it certainly is your right, and the more prepared you are to do that, in being familiarized with the laws, the more success you have in the courts.
I was going to court, in the Unified Family Court of Hamilton, over issues of custody, support, abuse, mental cruelty, peace bonds and restraining orders, and I was having my wife's lawyer tell me that my wife would not be present at that hearing because she was sick. That was quite a valid reason, and he did not actually have to tell me, because at that time I was living in my wife's home taking care of my children while she was in the hospital. This was for a term of six months. And yet I am not a custodial parent.
If I went into a court and she was represented by legal representation, the first thing that that lawyer would tell her is, "You can't have joint custody. It's impossible to live with." I resent this idea that non-custodial parents are just supposed to be a pocketbook for the wishes of the custodial parent.
Ms S. Murdock: I just have a number of comments and one question. First of all, numbers 4 and 5 in here: I thought for sure that Mrs Cunningham wrote them.
Mr Rowsell: Well, good for her.
Ms S. Murdock: It was all on mediation and all very valid points, and I know that is dear to the heart of Dianne.
On page 1, I think actually many of your points in the entire presentation were summed up in the sentence that everything that you talked about today and all the problems, other than Bill 17, are the symptoms of flaws in the overall judicial handling of separation and divorce. That sums the whole thing up, because we have been hearing this time and time again.
It is true that Bill 17 is only going to be handling the enforcement aspect of any kind of custody legislation and the access sections are not handled by this bill, but actually even access is not really handled by us.
Mr Rowsell: It is a drop, yes.
Ms S. Murdock: You have got two jurisdictional levels handling family problems, which makes it a real difficulty because you have to negotiate with the federal level in order to get any kind of legislation that is going to work with the provincial level at the same time. Just in your organization alone, I am sure you know that that takes all kinds of time to get everybody on side.
But all of the points that you made are very valid. The one that I particularly like is fast-tracking the availability of the courts for review of support. Personally, I see that as one of our downfalls because if you have to go back to court all the time, the cost and the time involved is going to cause a problem.
The question I have for you is on page 3 on the standardization of support orders. Earlier today we had a father in who was recommending that same kind of thing. My question this morning, and it is still the same, is, for the non-custodial parent who is paying support and, say, makes $70,000 a year and the non-custodial parent paying support and making $30,000 a year, if you standardize court orders, then you are saying that both of those parents would pay the same amount of money.
Mr Rowsell: Yes.
Ms S. Murdock: Now, depending on what it is and how many children there are, of course -- I realize that -- but now you are seeing a standardization of orders to the point where the non-custodial parent is unable to support himself or herself.
Mr Rowsell: No, I would expect variations in that amount. What I am expecting is that to be a realistic base amount so that children are not being deprived, but at the same time the court system in setting down support costs has such a wide variety of it that it is so easy for the top end to be used rather than the bottom end.
In so many instances, it is again that initial court order that may make or break the healing of the relationship between the two spouses. If a court order goes through, particularly in areas where a court order goes through without representation, I think that is a tragedy. If somebody is definitely avoiding the court not to be there, that is fine; hit him. But in the case where a person learns that they have a court case in two days or that they were supposed to be in court today and are not there, and an order goes through such as Henry, who spoke earlier, said, where he was being charged more than he actually made, there is no easy solution to reversing that.
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Ms S. Murdock: No, because the other thing is, in that same regard, you can have the judges sitting there wondering where you are -- not you specifically -- and then putting the matter over to another day, giving the benefit of the doubt. You then backlog your court all over again when it is backlogged enough.
Mr Rowsell: That is true, but with the standardization of support, there you have at least somebody to say- "Well, I'm going in to court. This is what I can expect to get."
Ms S. Murdock: Right.
Mr Rowsell: There is a rule of thumb here. People actually have looked into this matter and know that this is what it costs to raise a child.
Ms S. Murdock: Boy, it is really --
Mr Rowsell: It is a hard one, but --
Ms S. Murdock: Oh, I do not know how it would be done. I still do not know how it would be done.
Mr Rowsell: Now, at the other end of it, I would have to say that custodial parents and non-custodial parents who are involved with their children, if you say, "well, this is a low figure for somebody making a high income," in one way their high income will be taxed accordingly because they are not having those deductions, but also a non-custodial parent who is involved with their children will put the extra costs into it.
It is usually in situations particularly of denial of access, where the non-custodial parent is basically saying, "Well, I'm paying for a hole in the ground," or "I'm supposed to be a responsible person in supporting the children, but you're saying I'm not responsible enough to be part of their lives." Particularly in the areas where access had been agreed upon and then denied, it is hard to argue with the fact that they are being used.
Ms S. Murdock: I know the Liberals probably want to ask you a question.
The Chair: I believe that Mr Mills does as well.
Ms S. Murdock: Oh, sorry.
Mr Mills: I was just going to ask you, sir, I have listened to you intently and all the ramifications of what you said I have taken note of, and hopefully we will come to grips and discuss them as a group here later on when we come to the clause-by-clause.
I think that the whole intent of Bill 17 is to ensure a regular payment system rather than the haphazard way we are doing things now. That is the intent of the bill. And I was rather interested to hear you say, "I'm not that much behind." To me, that is what you said. "I'm not that much behind." So I am saying to you that the thrust of Bill 17 is, in my opinion, to make sure that nobody is that much far behind. I am just wondering, sir, how much far behind you are.
Mr Rowsell: How much far behind? Well, none of your business, but --
Mr Mills: No.
The Chair: Excuse me, with respect, Mr Mills, I --
Mr Fletcher: It is none of our business.
Mr Mills: Well, I just say --
The Chair: Excuse me, with respect, I believe that the witness has the right to respond to that question if he wishes to, but not the obligation.
Mr Mills: Well, I just think that it is part of the discussion here.
Mr Rowsell: I am behind, have been behind, have not been behind, basically I am not too far off, because I represented myself in court and did not end up with the $50,000 or $20,000 or $30,000 legal fees. Quite truthfully, when the separation hit me, I did not have the money to do it; that is why I did it on my own. I did go to several lawyers. Through the Unified Family Court in the two years that I was there and the six adjournments that I had, why should I pay somebody so that they can file the paper and tell me in court, "Well, we're not going to listen to you today because your wife is ill"?
Mr Mills: I would just like to make it clear. I do not want to be misunderstood. I was not trying to put you on the spot, but I guess that what I was trying to put across was an analogy of what Bill 17 means to me and what I think the government is trying to do on what you said, that is all.
Mr Rowsell: Yes. I noted down here, "Gord Mills is optimistic." It is all very fine and dandy for you to be optimistic, because it is not your dollar bills. But in the case of somebody who is having deductions taken off now -- in deductions, all right? This is something under Dianne Cunningham's name that I noted here. My understanding of the law is that you can only garnishee up to 50%, and yet we have members who have 100% of their unemployment insurance garnisheed from two different wives, two different sources. They both got 50% garnishees, and yet after the fellow had gone into court and had the judge say, "Oh, no, you can't do that," it still continues, mainly because the court orders that are going through are slowed down by SCOE and the justice department. So it is hard to say whether the court influence extends itself on the bureaucracy and whether the bureaucracy is responding to court orders in the manner as quickly as the judges think that they should be, and unfortunately they are not.
On deductions -- I would like to stay on that for a minute -- under Bill 17, you want to take off support payments from the net of a non-custodial parent's income. I would wonder why it is that a non-custodial parent would be paying the taxes and deductions on the gross and then having it removed from the net when the actual responsibility of paying the income portion of that money is actually the responsibility of the recipient or the custodial parent. So basically, from your system here, taxes are going to be paid on that money by the non-custodial parent, so it takes it out of his use, and yet down at the end of the tax year, it is a deduction for them and it is an income on the custodial parent. And yet, you know, here it is basically taking money out of the non-custodial's pocketbook that could be used in better circumstances.
I would like to say that non-custodial parents do have the right of a lifestyle after divorce. This seems to be something that the legal system does not seem to agree with, and that is that after you have 100% of your UIC garnisheed, where do you go from there? If you do not have any money, you should be able to go to welfare, but if you are actually recorded as receiving money from unemployment insurance you are not eligible for those social assistances. So basically, once you have put somebody down in the hole, now you are putting your foot on their neck to keep them down there.
The Chair: Mr Wessenger has a brief comment.
Mr Wessenger: It is all right.
Mr Rowsell: Mr Wessenger, I would like to say that I was quite happy that you are pleased to have a look into one person's case earlier today. I would not be so pleased myself that you decided to look into one drop in the bucket.
Mr Elston: A lot of the questions have been answered. But I wanted to say to Mr Mills, actually, that this gentleman seems to be quite capable of defending himself. He has also indicated that he has often, as well, paid extra towards the support of his children, and I know you would not want the impression left that for some reason this person is not doing a reasonable job in making support and otherwise --
The Chair: Mr Elston, on one point --
Mr Elston: Can I just carry on --
The Chair: One little point, Mr Elston. I do not think that any witness should have to defend himself.
Mr Elston: Sure. I know, but I just wanted to make it clear --
Mr Rowsell: You have not been at the court lately.
Mr Elston: I just wanted to gain from you the fact that while you represent people who are looking for fairness and equity and some equality before the law in this situation, I heard you say something interesting. If a person is being unavailable or is being recalcitrant or is refusing to support children, I suspect that your whole organization wishes to see that person pursued so that their responsibilities can be enforced.
Mr Rowsell: Certainly.
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Mr Elston: And in fact the essence of your organization is that you promote the moral and social and legal requirements of supporting children of the marriage.
Mr Rowsell: Certainly. We also support the idea under the Divorce Act of no fault, and yet there is a clause concerning the normalization of the relationship by allowing for spousal support for a certain length of time to let, usually the woman, get back on to her feet or into the workforce or ameliorate the situation. But again with a lot of these court orders, if the money is not there, the court order is useless; and if a court order goes through that has to be fought, in many cases if the friction is so much you are looking at the non-custodial backing away and saying: "Well, I don't want to see the children any more. It hurts me to see the children." These are the attitudes that we want to get away from. Our main concern is for children. It is not beneficial to the children to have one member of the family all of a sudden disappear.
Mr Elston: If you have two people who have separated with children and there is an existing, voluntary or even court-enforced current order for payment of support that is going on without default, without problem, that can be worked out, but sometimes the means disappear and then you catch up or whatever, would you feel that it is inappropriate to introduce a third party into the equation? We described it earlier. Professor Rosenitsch actually described the wedge issue that we had found from a previous presenter. From a social or psychological standpoint, do you find the intrusion of the non-participant third party in the psychological drama an interference or a hindrance?
Mr Rowsell: No, I do not, if it is in the form of being dedicated to solve the problems rather than fight over the problems. Definitely, mediation. The legal profession itself will not endorse mediation. Many lawyers will say: "Oh, well, my client is on the skids. I would not send him to mediation because he will get chewed to bits," and yet it is quite the opposite of what mediation is all about. Proper mediation techniques would take into consideration all aspects of an agreement. After mediation there is certainly a need for specific legal techniques, but usually these are in the area of contract law rather than the social factors.
Also, there is the fact that you might want an actuary to look over your agreement to bring out the best in the financial viability of what is best for the children. There is a big push here on defaulting and recapturing defaulted money. The one area of social services that really does not ring true in this respect is that if a father or mother or a custodial parent is on family benefits, the money that they receive in support payments is directly reduced from that social assistance. So actually, in low-income situations, it is better to settle for a low specified support payment, with the understanding that the non-custodial parent would be more amiable to supporting the children on top of that.
So basically the whole argument about women or custodial parents not receiving benefits is exonerated by the government. It is no secret that the government finances social services at below poverty line. They have already made their class of poor people. Personally, being the Red that I am, I would like to see the government bring in guaranteed annual income and get rid of all of these bureaucracies.
Mr Elston: I think we had better stop there, although I think it is interesting because really what you have just said is this: that because the social service system pays and then deducts against support orders, it maintains people in a position of poverty. For every dollar that is collected for the Ministry of Community and Social Services and returned to the government, it does not help one iota the issue or the forward movement on the war against child poverty. In fact, the more money that is collected here by the government and recovered and sent back to the ministry is another strike against children and women climbing out of the situation of poverty.
Mr Rowsell: I still have a hard time believing that the government can believe that the amount of money that it spends on spinning its wheels and collecting money actually has a ratio that relates to collecting money. Certainly they are harassing a lot of people, but in the truest form it is probably costing them more money than they are --
This is maybe a question that I could ask any of the legal advisers: What does it cost an hour to have a courtroom running? Yet in most cases of support, the amount of time that a person spends actually in the courtroom is probably 15 minutes. I think that we should also find out if the courts should not be used as the boxing ring. The idea that litigation has to be dirty and mudslinging is passé as far as I am concerned.
Mr Elston: Mr Chair, thanks very much for your tolerance of my continued questions but this has been a very interesting presentation. I think that we owe a couple of minutes of consideration, at least, to some of the suggestions that have been made by this particular presenter.
Actually, this afternoon's presentations, all of them, have been quite good but particularly today there came to us several interesting suggestions and it has been well worth while, I think.
The Chair: Thank you, Mr Rowsell.
Perhaps I should call to see if there is an Elizabeth O'Breza present. l believe that Mr Smith has cancelled, so Mr Rowsell is the last of our witnesses today.
We have the subcommittee report which I would like to read into the record. I am informed by the clerk that I unfortunately cannot dispense with the reading unless it is already in Hansard, so with your tolerance:
"Your subcommittee met on Thursday 14 February 1991 and agreed upon the following:
"1. Clause-by-clause consideration of Bill 17 will commence Monday 25 February 1991 at 1 pm;
"2. Consideration of standing order 123 designation, scheduled for 25 and 26 February, shall be rescheduled to either 27 and 28 February or 18, 19, 25, 26 March and 1 April at the discretion of the third party and, of course, of the committee as a whole."
Any questions on the subcommittee report?
Ms S. Murdock: The 25th at 1 o'clock. Nothing on the 26th?
The Chair: The 26th is unclear as yet. It may well be, of course, with legislation like this, that it may take more than a few hours for clause-by-clause.
Ms S. Murdock: Oh, I would say so. Yes.
The Chair: So most likely the 26th might be used for that purpose.
Mr Elston: It sounds feasible.
Mr Mills: Have we got the dates in March right? It is saying either/or. You said either the 27th --
The Chair: Either the clerk or the subcommittee members -- I did not participate in this subcommittee report.
Clerk of the Committee: The reason for the dates in March is the standing order 123 designation is to take up 12 hours and therefore I have scheduled them for every Monday and Tuesday that this committee is to meet up to a total of 12 hours. That is why it went up to 1 April, assuming that we start at about 3:30 and end at 6 when the House comes back. So we have just scheduled them for the first 12 hours of the committee when the House resumes.
Mr Morrow: Doing clause-by-clause, for our own scheduling purposes, you are only scheduling one day. Should that not be two for our own scheduling?
The Chair: I understand that most likely it would also be the 26th. Is that not right?
Clerk of the Committee: What the subcommittee report says is that clause-by-clause will commence on the 25th. There is no end date and this committee is scheduled to meet for that entire week.
The Chair: Okay. Any further discussion? Could we have someone move the acceptance of that report?
Ms S. Murdock: I will move that.
The Chair: Ms Murdock moves. All in favour? Opposed? Thank you. The clerk would like to go over the agenda for next week, please.
Clerk of the Committee: The agenda for next week, as it currently stands, is: Monday 18 February we will be meeting at 1 pm with the Premier and the Conflict of Interest Commissioner, and this is all in committee room 2. We are not scheduled to meet on Tuesday 19 February. On Wednesday 20 February in the morning we are meeting with the Attorney General and staff and perhaps one former Liberal minister. We are not scheduled to meet in the afternoon of the 20th. On 21 February we are meeting in both the am and the pm.
Mrs Cunningham: Mr Chairman, I was given a letter. I thought it had gone to everyone but it has not. It is from Elliot L. Lerner, who is a lawyer in Downsview, Ontario, and I found it most helpful when I was reading it. It all of a sudden struck me that I am the only one with it, so I would like to give it to the clerk and have it sent to other members of the committee. I found it most helpful. It was copied to Mr Carr, my colleague, and Mr Harnick but I think there are some very important points in it so I will give it, for the record, to the clerk to have it distributed as she sees fit.
The Chair: Thank you very much for that information, Mrs Cunningham. I think we are adjourned until Monday.
The committee adjourned at 1744.