Manitoba Committee Hansard — 15 December 1988 (Legislative Affairs Committee, Sitting 2, 34th Legislature, 1st Session)

34-1-la2

Manitoba — Debates (Hansard)

MG-8048 First Session - Thirty-Fourth legislature of the Legislative Assembly of Manitoba STANDING COMMITTEE on LAW AMENDMENTS 37 Elizabeth 11 Chairman Mr. H. Enns Constituency of Lakeside VOl. XXXVII No. 2 - 8 p.m., THURSDAY, DECEMBER 15, 1988. ISSN 0713- 9586 Printed by the Office of the Queens Printer, Province of Manitoba

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LEGISLATIVE AS SEMBLY OF MA NITOBA THE STA NDING COMMITTEE ON LAW AME NDMENTS Thursday, Decemb er 15, 1988 TIME- 8 p.m. LOCATION - Winnip eg, Manitoba CHAIRMAN:- Mr. Harry Enns (Lakeside) ATTENDANCE - QUORUM - 6 Members of the Committee present: Hon. Messrs. McCrae, Or chard and Ducharme Messrs. Angus, Burrell, Doer, Edwards, Enns, Ms. Hemphill, Messrs. Rose and Taylor APPE ARING: BILL NO. 38: Mr. T. Dalmyn - Canadian Mental Health Association BILL NO. 47: Mr. P. Meyer - Private Citizen Mr. D. Sexsmith - Broad casters' Association of Manitoba Mr. A. Peters - Private Citizen BILL NO. 11: Ms. J.

Bjornson - Manitoba Charter of Rights Coalition Ms. B. Suek - Manitoba Advisory Council of the Status of Women Ms. M. Peek - Private Citizen Mr. A. Hamer - Concerned Families for Fair Child Access Mr. W. Muirhead - Concerned Families for Fair Child Access Ms. S. Braid - Concerned Families for Fai r Child Access Ms. L. Lamb - National Association of Women and the Law Dr. M. Matas - Manit oba Law Reform Assoc iation Mr. J. King - Fam ily Law Su bsecti on, Manitoba Bar Associ ation Ms. R. Rachlis - Family Mediation Manitoba Ms. N. McCormick - Private Citizen Dr. C.

Ross - FATHERS (Fathers Association To Have Equal Rights) BILL NO. 40: Mr. N. Turnette - Winnipeg Gr eens Mr. F. Steele - City of Winnip eg MATTERS UNDER DISCUS SION: Bill No. 38- The Mental Health Amendment Act (2) 14 Bill No. 47- The Liquor Control Amendment Act

(2) Bill No. 11- The Child Custody Enforcement Amendment Act Bill No. 40- The City of Winnipeg Amendment Act (2) *

(2005) Mr. Chairman: Committee, come to order. We have a number of presentations to be made. I would seek some guidance from Members of the committee. I recognize Mr. Cowan. Mr. Jay Cowan (Ch urchill): Th ank you, Mr. Chairperson. Given that there are two Bills where there are either just one or two persons who want to make presentations, I would suggest that perhaps we wou ld consider reviewing those Bills first, Bill No. 38 and Bill No. 47, and then go on to the other Bills where there is a longer list of presenters who would be prepared to speak on those specific Bills. Mr.

Chairman: Committee Members have heard the suggestion from Mr. Cowan. The Chair is open to advice from the committee. lt seems reasonable to me. Should that be the pr ocedure of business? (Agreed) I also remind our visitors and pr esenters that should there be other people wishing to make presentations they may do so by speaking to staff, at the head of the table here, to have their names added to any Bills that they wish to make pr esentations to. Mr. Cowan: One final point , if there are any out-of town presenters, perhaps they could identify themselves and we could hear them first, as well. Mr.

Chairman: I thank you, Mr. Cowan. That has been the tradition of our work here at these committee meetings. If there are persons from out of town, out of the city making pr esentations, we will endeavour to hear them first on the Bills that they are speaking to, to help facilitate their presence here. BILL NQ 38- THE MENTAL HEALTH AMENDMENT ACT Mr. Chairman: I will then call on pr esentations on Bill No. 38. We have two persons listed as wishing to make pr esentations. Bill 38, The Mental Health Amendment Act, I call on Mr. Bill Martin and Mr. Tony Dalmyn, I believe, from the Canadian Mental Health Associ ation.

Would you pl ease come forward?

Tlnsrsday, December 15, 1988 * {2010) Mr. Tooy Dal myn (Canadian Mental Healt h Association): My name is Dalmyn. Mr. Martin and I have agreed that only I will speak. Mr. Chairman: Thank you. Mr. Dal myn: We have circu lated a brief and left the requisite number of copies with the Clerk. I do not know if everyone has it in front of them at the present time. Mr. Chairman: Thank you , they are being distribu ted at this time. Proceed , Mr. Dalmyn. Mr. Dal myn: The remarks I am going to make are directed only to Sections 4 and 5 in the Bill which have an impact on

Section 5, and which enact a new

Section 5.1 within -! shou ld say subs ections 5 and 5.1 of

Section 24 of The Mental Health Act. Se<:;lion 24 is new legislation thr ough the 19 87 amendments. lt provides that persons suffering from mental illness, like anyone suffering from any other illness, have the right to consent or not to consent to treatment, even il they are involuntary patients in a hospital.

Section 24 quite logically and reasonably provides a number of exceptions. lt provides tha t a physician may administer emergency treatment without the consent of a patient; il provides that the Publ ic Trustee may authorize treatment of a patient. The Attorney -General (Mr. McCrae), in introducing the Bill and on second reading, quite correctly pointed out an anomaly in the legislation whic h is be ing corrected.

The Act, as passed in 19 87, says the Publ ic Trustee "may give consent to treatment where the patient has been found incapable of managing his or her affairs, balancing a cheque boo k or dealing with property." This amendment is designed to clear that up. My association agrees with th at. The problems I am going to identify fall into two classes. I will deal with the administrative problems first. The administrative problem is the resources given to the Public Trustee to carry out the Public Trustee's responsibility.

Under the new legislation the Publ ic Trustee is supposed to consent to treatment in the best interests of the patient. This type of legislation has operated in Ontario and other ju risdictions for some time. The decision-making process is difficult. The Public Trustee is supposed to decide what the patient wou ld do in his or her best interests if the patient was competent. In principle, the Pu blic Trustee should be given an opportunity to review with the patient's family, friends and others what the patient would do if competent, to look at the history and try to make a reasoned decision.

In practice, what has been happening is that the doctors-o ften in the emergency ward, often not the treating doctor -a re phoning the Public Trustee for emergency consent or phoning for a blanket consent. * (20 15 ) Under the Act, we have a review board. The review board is supposed to decide if the patient is competent 15 or not and the review board has the power to make a decision on behalf of the patient, if the patient is resisting or declining treatment. What we have in practice is the Public Trustee being called on on the spur of the moment to make very difficult decisions.

I do not see a problem with the Public Trustee making the decision on adequate information. I do not see a problem with the Public Trustee making the decision even !hough the Public Trustee is not a doctor. The whole idea is that, if you or I go for medical treat ment, the medical treatment is explained to us and we apply our best jud gment to it even though we are not doctors. What the Pu blic Trustee brings to this task is empath y for the patient and independence. The Public Trustee is not getting a chance to do that.

Th e legislation as proposed here is going to write into law the idea that the Public Trustee is going to make the decision on the basis of a telephone call. You have the wording in proposed 5. 1 that upon being notified by the physician who completed a certificate that is being sent to the medical officer, the Public Trustee may give consent to psychiatric or other medical treatment on behalf of the patient unti l the review board or the court determines the patient is mentally competent or the certificate is cancelled.

In my submission to you, if it is an emergency, the doctor can deal with it under the existing law in 24.7 and 24.8. There is no need for telephone consultations. In my view, and in the view of my association, the Public Trustee's involvement should be temporary. There can be differing

interpretations on this. lt may well be the opinion of the Legislature of Manitoba that the best co urse is tha t on a patie nt be ing fo und to be incompetent to make medical decisions, the Public Trustee should be given legal responsibility. Th at should rest with the Public Trustee unless the patient appeals to a review board. If that is the case, the legislation should spell out in 24.5 and 24.6, in similar terms to the restrictions and the guidance given to a review bo ard under

section 25, what the Public Trustee is supp osed to be looking at. These are important decisions. lt is not a matter of rubbe r-stamping a doctor 's decision. I think by all accounts this is the most difficult and challenging area of medicine. Th ere can be different opinions. The doctor shou ld be capable of engaging in a constructive and serious dialogue with the Public Trustee for the family to determine the best wishes of the patient. I appreciate that the legislation is new.

When I was here in July of 1987, i suggested we were going to have problems with the legislation and it sh ould be brought back for review. I appreciate !hat the Court of Queen's Bench has said the legislation in general is constitutional. To say it is constitutional does not mean that it is good. I suggest there can be improvemeni s- 24 .5, 24.5. 1. !n one sen se, th ey are merely housekeeping; in another sense, you are losing the opportu nity to improve the Act. That summarizes my comments for you. Mr. Chairman: Th ank yo u, Mr. Dalmy n.

Are yo u prepared to answer questions that committee members may have of you?

Thursday, De cemb er 15, 1988 Mr. Dalmyn: Yes, sir. Mr. Chairman: Do l hear any questions from committee members? Mr. Doer. Mr. Gary Doer (l eader of the Secc.md Oppo sition ): You ha ve had excellent consulta tion, according to the president of the organization, on some of the mental health initia tives. Have you discu ssed this with the Minister, and what would be the reasons for not making those chan ges in terms of the feedback you have received? Mr. Dalm yn: The Mi nister ha s had a very good consultation process, but it was broken into two parts.

There were two committees, one dealing with major amend ments or matters of pol icy. My associat ion participated and I represented my association. This type of ho usekeep ing legislatio n was dealt with by departmental committees. We were generally aware this was coming. We did not see the letter of it until we saw the Bill, so we have not had a real opportunity to engage the Minister in a dialogue on this issue. Mr. Harold Taylor (Woiselay ): Mr. Chairman, through you to Mr. Da!myn, is it your suggestion, after hearing your presentation, that 5.1 should be lifted from thi s amending Bill? Mr.

Dalmyn: I would not agree that 5.1 should be lif ted. The wordi ng about "u pon being notif ied tha t the certificate is being transmitted" should definitely be lifted but, instead of lif ting the rest of 5. i, I would add to it that the Public Trustee is giving a temporary consent until the patient appeals to a review board, and it should contain some guidance for the Public Trustee and some information for the public as to wha t the Public Trustee is looking at: the best interests of the patient, the wishes of the patient, has the patient made them known while competent, the benefits and risks of the treatment.

Mr. Chairman: Thank you, Mr. Dalmyn. "

(2020) Mr. Dalmyn: Thank you, Mr. Cha irman. Thank you, Members of the committee. Mr. Chairman: Do we have any further presentations on Bill 38? Hearing none, we wil l then proceed to consideration of Bill 47. Bill NO. 47-THE liQUOR CONTROl AMENDMENT ACT

(2) Mr. Chairman: We have several persons lis ted here for presentations: Mr. Peter Meyer, private citizen; Mr. Adrian Peters, private citizen; and Mr. Del Sexsmith from the Broadcasters' Association of Manitoba. Mr. Peter Meyer. Mr. Peter Meyer (Private Citizen): Mr. Chairman, Gentlemen, thank you for the opportunity of being able to come and say a few words on Bill 47. 16 I would like to oppose Bill 47. lt is a very weak excuse to use the American beer commercial poli cies as an example to allo w breweries in Manitoba to advertise throughout the whole day.

I believe that Manitoba should ban all liquor advertising so as to set a good example to the rest of Canada and to the USA. Presently, beer commercials are always associated with good times, beach parties, good healt h, success and sports. Subconsciously, young people today are growing up with the idea that in order to have fun or a good time they must incl ude alcohol in their parties and outings. If liquor advertising is to continue, then let us show the true story such as smashed cars, bloo died bodie s, abused and neglected childr en, disparity and poverty.

Equal time should be given to show the results of alcohol abuse. lt is also reported that younger and younger childr en are being abused and becoming addicted to alcoh ol. In yesterday's paper we read of a Kindergarten teacher who is now saying that the childr en in Kindergarten in the Indian reserve are pla ying games of serving alcohol and also pla ying games of rape. Usuall y rape and alcohol are usually tied quite cl osely together. If you compare the AID S epidemic to the alcohol epidemic, then AID S is a drop in the bucket. At least 50 percent of fatal car accidents are alcohol related .

I also believe that sports events should not be sponsored by the beer industry. Let the breweries go and pick their th ree-star selection in the back lane s of Main Street. Als o, these special event vans that the breweries supply for sporting events could be better used as ambula nces so they could assist the polic e to haul drunks in. Als o, the liquor indus try cou ld build some big hospitals to house many people that get into accidents through liquor abuse and those unable to work because of alcohol addi ction. The tax on alcoholi c beverages should be greatly increased.

At the present, the tax only covers a very small fraction of the true social cost of clean-u p. Approximately 90 percent of those in the Remand Centre and in Heading ley are there directly or indirectly because of liquor abuse and of liquor offences. The Government-! would like to add a litt le bit here- I believe are going to build a new remand centre for some $30 milli on. Possibly you should approach the liq uor industry to fund that for about 90 percent of the cost. If we could clean up the abuse of liquor, the present Remand Centre would be practically empty.

I have talked to pol ice and guards and that is what they tell me. They say practically about 90 percent are directly and indirectly related to liquor offences. Brand names of beer should always be included in the media reports. For example, in today's Free Press, we read of this stabbing tragedy on page 3. lt reads that killers had injected themselves with drugs and consumed several beers. The name of the beer should be include d in capital letters in these reports. I think that would make-y ou know, a lot of times we read

Thursday, December 15, 1988 the paper and it says well, alcohol was involved, and alcohol was involved in this. Sometimes , we read of rubbing alcohol but a lot of times it is beer and I believe that if people would see this in capital letters that hey, these men had drank, say, Molson's Canadian or something or Labatt 's Blue, it would bring home a little more forcefully the danger of too much beer consuming . Liquor sales at the arena and stadium should be discontinued . Surely, if people cannot go to a sporting event and do without alcohol for two or three hours, there is something drastically wrong with society. •

(2025) No extension should be allowed at the airport bar. In fact, I think liquor should be remov ed completely from the airport and airlines as there are more and more problems on airplanes because of alcohol. Just last week, my wife took a trip to Vancouver and she said, by the time we got to Vancouver, there were several passengers who had consumed so much alcohol already that the stewardess' were having quite a rough time to control them. Imagine, what a sick society when we cannot take a two-hour trip without getting half drunk . It is amazing.

In addition, I think the legal age of drinking should be raised to at least 21 years of age. I realize that the liquor industry makes large political contri butions and they expect something in return, but I believe that they have tar too much freedom alre ady. No amount of money can pay for the misery and suffering the liquor industry is causing. Now, the most important paragraph-I believe I will hear at the end, and I think it has been proven here tonight. I believe there are only three people here to speak to this Bill. I wonder whe re all the pastors and priests and rabbis are. It is amazing.

These are the people who have to perform the funeral services for those who are killed in accidents. They are in contact with the misery and suffering of alcohol abuse. Yet, when they have an opportunity , they do not seem to come out. I do not know what it is. However, the greatest tragedy I see is that we are becoming accustomed and conditioned to reading about people being killed by drunk drivers or people being stabbed at drunken parties, so that we are becoming immune to the suffering that the alcohol industry is causing . I think that is the most important part of the whole letter.

It seems that we read about it every day and, the more we read about it, the less it affects us. I think it is a real danger in society that we have become so accustomed and so immune that we just shrug our shoulders and say there is nothing we can do. I realize for a Government, it is much easier to loosen the law than to tighten it up. I would urge you, as lawmakers , to tighten it up as much as you can. People are being-you cannot read a paper these days. In today's paper there alone are four people being sentenced to prison for murder. All four of them were under the influence of alcohol.

Think of the cost, some of these men went for 10 years, I believe, and some for 14 years . If you think of the cost of the courts and 17 of course .a lot of these people can get Legal Aid . They get the best lawyers and the highest priced lawyers in the city. Then we add that to the court costs and now we have to put them in prison for 10 years or 14 years. Those four people are going to cost the taxpayers well over $1 million . It is time that the liquor industry is taxed far greater-much more tax , so at least the taxpayer is going to get a little bit back.

Today, I do not think he is getting back one cent on the dollar. So I guess that is about it for me. But I am really disappointed there are not a lot more people here to speak on this, that is my greatest disappointment. •

(2030) Mr. Chairman: Are there any questions coming from the committee for Mr. Meyer? Hearing none , thank you, Mr. Meyer. I call on Mr. Adrian Peters. Mr. Del Sexsm ith . Mr. Sexsmith, repres enting the Broadcasters Association of Manitoba . Mr. Del Sexsmith (Broadcasters Association of Manitoba): I represent the Broadcasters Association of Manitoba which is, in effect , an association of the private radio and television stations in Manitoba .

I thought I would take this opportunity to speak in support of the amendm ent which would , in effect, eliminate the curfew that has been in place in Manitoba for 20 years . In general , I would just like to reiterate the heart of our argument and that is an argumen t we have made for many years now that, in effect, the curfew as it applies in Manitoba is discriminatory to Manitoba radio and television stations . Some time ago, we supplied a list of media operating in Manitoba that are allowed to carry beer and wine advertising on an unrestricted basis.

That list consists of, and I will read it to you: newspapers, magazines, bus cards inside and outside, billboards , signage and public access facilities, cable television, satellite television, off air from Saskatchewan and Ontario border stations, off air from U.S. border radio and television stations, sports adve rtisi ng , university and community college publicati ons, back lit posters, all ethnic publications, special eve nts promotions , or in restaurant adve rtising, specialty publications, bus benches, KNRR-TV, airport display advertising, U.S. cable radio stations, Winnipeg Jets and Winnipeg Blue Bombers mail-out advertising, mall posters, transit shelters , theatre, symphony , ballet , opera, dance and sports programs.

The only media licensed in the Province of Manitoba that cannot carry beer and wine advertis ing on an unrestricted basis at this moment happen to be Manitoba radio and television broadcasters . We would just like to point out tha t beer and wine happen to be food substances. So prior to their being advertised in any other province in Canada , they are submitted to the National Food and Drug people and subject to their regulations. In the event that this memo goes through as suggested, then we would expect that there would be Liquor Control Commission regulations in place as well.

Thur sday, December 15, 1988 Our final argument, of course, is that advertising is a matter of choosin g a brand and has not been demonstra ted in any su rvey pr evious ly to affect consu mp tion or social habits. Mr. Chairman: Do we have any questions for Mr. Sexsmith from the committee? Hearing none, thank you, Mr. Sexsmith, for your pr esentation. I understand Mr. Adrian Peters is with us. I will give him an opportunity to make his presentation. Mr. Peters, please. Mr. Adrian Peters (Private Citizen ): I am Adrian Peters, as you know.

I would like to thank you for having me attend here to hear what I have to say on Bill No. 47 and other amendments to the Act. We have been operating a British-style tavern in the Exchange District, at 12 0 King Street, for the past 15 months. On May 15 this year, we expanded the pr emises to include the downstairs portion of the establishment, and this expansion involved puttin g in a 24-foot solid oak bar and typical pu b-style seating.

Section L 16 0-34887, Su bsection 24(2) states that a licensee may serve liquor to pat rons without food , if the patron is seated at a table where 50 percent of the pat rons seated have ordered food . Because reference is made specific ally to tables, we cannot use the stools pl aced at the front of bar, and because we cannot use the stools, the entire area of the bar has been su btracted from our usable seating capacity and has thus resulted in a net loss of 13 dining room seats and seven cocktail lounge seats from an operation that only had an overall rated capacity of 11 4 seats.

This reduction of almost 20 percent raises serious concerns about the continued prof itability of our business. I draw you r attention to the fact that the Act previous ly did allow for over-the-counter food and beverage service in a dining room . So our request for an amendment to the Act lo a!iow over-the-counter food and beverage service is one of restoration rather than pr ecedent. !t is common in a British-style tavern for patrons to stand while enjoying food and/or beverage.

Since the Act does not appear to add ress this matter, we assume that if we allowed pat rons to follow this custom in our establishment, we would be guilty of an infraction. In neither of the foregoing examples, there does not appear to be a basis for considering these activities either illegal or immoral. While we are not directly affected by the propo sed changes in Bill No. 47, we welcome the initiative. We do feel however that there remains much room for a more civilized attitude toward the service of food and beverage in licensed premises in Manitoba.

Sp ecifically, we would urge the Legislature to give consi deration to the immediate creation of a category of licence that is commonly known as a dining lounge licence. This category of licence exists in other Canadian provi nces and provides the rules governing the ratio of food to beverage service are suspended at a point in the evening when the service of full cou rse meals is no longer likely.

Licensees would then be able to use their vacant restaurant space as an extension of their lounge. 18 An alternative to the foregoing, if it were thought to be too bold an initiative, would be to change the Act in such a way as to allow for freestanding neighbourhood style pubs on an experimental basis, restricted to areas of significant historical value and/ or significant touris t value. Based on our experience at the King's Head, the British pub style establishment draws a wide variety of patrons from many walks of life.

In conclusion , I would like to draw your attention to the fact that the police have never been called to our premises, nor have we had to employ a door man in an area where it might be assumed to be a necessity. Thank you. Mr . Chairman : Th ank you , Mr. Peters. Do any committee Members have questions? Mr. Harold Taylor (Wolseley): Mr. Chairperson, a question through you to Mr. Peters, not wanting you to be cited for an infraction of the Act, but do you have that pr actice now of patrons standing as they would in a British pub and consumin g their beer in that fashion? Mr.

Peters: Many of our patro ns are native British and do attempt to, in what is the restaurant area, and we do have to tell them that it is not. Mr. Taylor: In other words, they rise to the occasion. What would be your view on consu mption practices? Would there be a variance in the amount of alcohol consumed if patrons were standing, as op posed to the way we have it under our Act tod ay, where it is compuls ory, it is required, to sit? What would be your comment on the amount of alcohol consu med and the state of the person as they left the premises if in pr actice they were standing? Mr.

Peters: I am not clairvoyant. We have never had any difficulty with the service of alcohol, either to pat rons seated or pat rons standing in the cocktai l lounge. I cannot see that it would create a probl em in the restaurant. Mr. Taylor: Can you giv e us any experience of comparat ive practic es in British pubs and what happ ens there on the extent of alcohol consumption in an evening by a patron who is standing and conversing with other patrons as opp osed to what we have, seated in armchairs, and statistics that there might be on the level of alcohol infractions of people leaving pubs in cars. Mr.

Peters: I am sorry, I do not have any hard data on that. My general feeling is that the style of licensing that we have, the categories of licence that exist in Ma nitoba encourage an att itude tha t I wou ld characterize as herding more than socialization, and my personal view is that the British pub style of service is that much more civilized. *

(2040) Mr. Steve Ashton (Thompson): I have had some oppor tunity to talk to Mr. Peters prior to the committee

Thursday, December 15, 1988 hearings in terms of some of the difficulties he is running into, lt would be fair to say that the problem in Manitoba is that we do not have a licence category that allows for the.type of establishment that you have, unlike British Columbia and Ontario, for example, where neighbourhood style pubs are a specific licence category. Is that basically your bottom line problem, the fact that our licencing does not really have a category of licence for your type of operation? Mr. Peters: Yes, it is definitely the problem. Mr. Ashton: You made reference, I know, to police visits, etc.

I know the neighbourhood in which you are located where you have a number of large hotels within a short radius. i am wondering if you could indicate the type of problem that some of those hotels are having. I believe you expressed, it was 16 0 police visits in six months to a hotel across the street? Mr. Peters: I believe that was the case. I do not, again, have the figures in front of me. it was 16 3 calls, I believe, in a recent six-month period. Mr. Ashton: 16 3 calls. What has been the experience at the King's Head pub? Mr.

Peters: As i said, we have not had to call the police, much less if we employed the services of what !s called a bouncer. Mr. Aahton: The hotels, in particular that one hotel you are referencing, which presumably has a license category , which fits under Manitoba law and it presumably is not allowing the licences, has had a 16 0 police ca!ls, and you, with the number of problems that you have outlined in your brief, have not had any police calls at all. Would that be a correct assumption? Mr. Peters: That would be fair to say. Mr. Ashton: If I could be just permitted one comment, Mr.

Chairperson, I think it shows to me that if we are going to be looking at the liquor laws in Manitoba, and certainly we are looking at some amendments tonight which deal with some concerns that have been expressed, that we might want to broaden our consideration to include allowing I think for the kind of operation that Mr. Peters operates, a neighbourhood style pub, which I think has proven just on that one particular count to be a very-1 think the word you used was "civilized" type of outfit, type of operation. lt does not promote excessive drinking; instead it promotes socialization. I think Mr.

Peters has raised an excellent point in his brief. Mr. Chairman: Thank you, Mr. Ashton. Hon. Gerald Ducharme (Min ister of Urban Affairs): Mr. Peters, you have mentioned that you have expanded the premises to include a restaurant in the lower level of the building and this expansion involved putting in this 24-foot-long solid oak bar. In the lower level, do you also have, other than the bartender, someone serving on the floor? 19 Mr. Peters: Yes. Mr. Ducharme: So that would include both levels? You have another level that they serve at the same time. They have somebody else up there all the time? Mr.

Pet ers: One of the drawbacks to our premise is the business was created I believe with a core area grant out of a warehouse. lt was built on two separate levels, so our cocktail lounge does not directly adjoin our restaurant. So there are two separate bars !o service the customers in each area. Mr. Bob Rose (St. Vital): Mr. Peters, my knowledge of pubs in that is limited. I would like to know, in this hotel, where 16 0 police calls came in approximately six months, do the Manitoba liquor laws allow for people to stand in the beer parlors in that particular hotel or any hotel in Manitoba? Mr.

Peters: I believe they do allow for stand-up areas in beverage rooms. I think it is an across the board- Mr. Rose: Would not that then seem to go contrary to your argument then? Mr. Peters: In what sense? Mr. Rose: In the sense that you say you have had no police calls where they all have to sit down and yet there has been 16 0 police calls in a place where they are allowed to stand up, and you are wanting a place where they want to stand up? Mr. Peters: Oh, I see, well, I am not familiar.

I have only once ventured in there when I had a flat battery in my car to use a telephone and call a tow truck. i am not familiar with whether their operation, in fact, has a stand-up bar or not. Mr. Chairman: Thank you. Mr. Peters. Mr. Peters: Thank you. Mr. Chairman: I will now revert back to the orders of the Bills as were listed, with the will of the committee. Bill NO. 11- THE CHILD CUSTODY ENFORCEMENT AMENDMENT ACT Mr. Chair man: We will deal with Bill No. 11 , The Child Custody Enforcement Amendment Act. We have a number of presentations.

If it is helpful, I shall read the list of presenters: Alison Norberg and Jeri Bjornson, Manitoba Charter of Rights and Coalition; Beverly Suek, Manitoba Advisory Council on the Status of Women; Ms. Marlene Peek, private citizen; Mr. Alan Hamer, Mr. Bill Muirhead, Ms. Sandra Braid, Mr. Jeff Cudmore, Mr. Randy Marshal!, Concerned Families for Fair Child Access; Ms. Louise Lamb, National Association of Women and the Law; Dr. Manuel Matas, Manitoba Law Reform Associatio n; Mr. Jack King, Family Law Subsection, Manitoba Bar Association; Mr. Ruth Rachlis, Family Meditation Manitoba; Ms. Norma McCormick,

Thur sday, December 15, 1988 priv ate cit izen; Dr. Colin Ross, FATHERS (F athers Asso ciation To Have Equal Rights). Mr. Gary Doer (Leader of the Second Oppo sition ): Just for the record, it is Mediation Manitoba, not Meditation. Mr. Chairman: Mediation? I am sorry. Mr. Doer: No problem. Mr. Chair ma n: Meditation or Mediation, tha t is interesting. One could ponder on that one, cou ld one not, Mr. Attorney-General? Ms. Bjornson. *

(2050) Ms. Jeri Bjorn son (Mani toba Charter of Right s Coalit ion): The Charter of Rights Coalition wou ld like to thank you for this op portunit y to ap pear before this committee. The Charter of Rights Coalition, to introduc e you to the grou p, is a group whose ultimate goal is to see that all statutes, policies, regulations and pr ograms in the Province of Manitoba comply with the equality sections of the Canad ian Charter of Rights and Freedoms. CORC has done a considerable amount of work in the area of family law and access assistance since this proposal came forward.

Prior to that, we had done a major review of Manitoba's statutes, polici es, pr ograms and regulations in which we had covered the entire area of family law.

For nearly two years, we have been in consultation with the Attorney-General's Department and Community Services in regard to this Access Assistance Program, although I might add that we did not identify this as a pr essing need in our review of programs in Manitoba. lt is the position of CORC Manitoba and that of other women's groups that any discussion of access and any Access Assistance Program must have, as its first and foremost goal, the interests of children.

In fact, that is the demand of The Family Maintenance Act. lt is also our position that there are situations where it is not in the best interests of the child to maintain contact with both parents. There was a lot of early research in the area of joint custody which seemed to indicate that maximum contact with both parents was always in the best interests of children, and mu ch of that research was done by Judi th Wallerstein.

Recently, there has been accumulation of a large body of literature which calls Wallerstein's earlier conclusions into question, and I wou ld like to note that some of that research has been done by Wallerstein herself. In a study entitled "Parental Participation and Children's Well-being after Marital Dissolutio n," three male researchers at the University of Pennsylvania looked at several dimensions of parental involvement to see which was the most critical for children after the dissolution of marriage.

They discovered that there 20 was little supp ort for the hypothesis that paternal contact is always beneficial to the child. This research also revealed that apparently children in maritally disrupted families were not doing any better if they saw their fathers more regularly than if they saw them occasionally or not at all. They also found some evidence that the level of child support is related to ttie incidence of problem behaviour. We felt they had some words of wisdom in there in this report.

The pol icy impl ications of findings reported here are unsettling, because they clash with pr evailing practice that attempts to increase parental involvement. We see no strong evidence that children will benefit from judicial or legislative interventions that have been designed to promo te pa ternal participa tion, apart from pr oviding economic support. .*

(2050) In a series of stud ies done for the Centre for the Family in Transition, they have fou nd similar results. These stud ies concluded that custody arrangements were not significantly related to child adjustment and that children with more problems had parents who were more physically and verbally aggressive toward one another. A second study in that series which focused on fam ilies in conflic t foun d consi stent evidence that children who had more frequent access were more emotionally trou bled and behaviourally disturbed where there was parental conflict.

The researchers concluded by saying these findings caution against encouraging or mandating joint custody or frequent access when parents are in ongoing disputes. We think it is also necessary to look at the whole area of family violence when we are looking at custody and access. Stud ies indicate that for many women abuse does not stop with the end of marriage.

Overt conflict in the form of physical and verbal abuse between separated and divorced parents is severely detrimental to the psych ological health of the child and, where the post separation parental relationship is marred by such abuse, there seems to be a common chain of events. The more frequent the access of the child to each parent, the greater the contact between the parents. The greater the contact between the parents, the more intense the conflict. The more parental conflict, the greater the psy chological harm to the children.

CORC (MB) do es not include this information as an argument against giving children the opportun ity to know and spend time with both their parents after separation or divorce. As a personal aside, I have a joint custody arrangement. In fact, CORC (MB) and other women's groups sup port such arrangements when they are truly in the best interests of the children.

The above research is cited to dispel the myth that frequent contact with both parents is always in the best interests of the childr en and to make legislators more kno wledgeable about tho se situations where such contact might be seriously harmful, where there is considerable discord or conflict, and where there is a history of child abuse or wife abuse.

Thursday, Decembe r 15, 1988 Under no circu mstances should the issues of access and maintenance be linked for enforcement or for any purpose. lt is childr en who suffer when mo ney used to provide childr en with the necessities of li fe is with held. The statis tics are well known about poverty among female-headed, single parent families. There is a wealth of data that puts a lie to the assertio ns that women are gain ing improper or undu e benefits from child maintenance payments. CORC (IIII

B) also fin ds any com parison between main tenanc e enforcement and access enforcement unacceptable. In matters of maintenance, if the mo ney does not ar rive, there is no question of weighing confli cting evidence. In matters of access, there are compl ex issues at play. As mentioned before, CORC and many other women's groups have been in consultation with the Attorne y-G enera l's Department and Communi ty Services and raised our concerns about this Access Assist ance Program. From the beginning, CORC (MB) has maintained that there is no demonst rated need for this program.

A publi c perception has developed that there are hundr eds of vin di ctive women in Mani toba who are wi thholding access for purely selfish reasons. This we di spute. There is also a perception tha t all non custodial parents are willingly taking advantage of access. This we also di spute. CORC (MB) feels that the research commis sioned by the Att orne y- Genera l's Department does not demonstrate a need for the imp lementation of an extensive Access Assistance Only 15 percent of those parents surveyed that they were currently experiencing dif ficulty wit h access.

There was no attempt wi thin the research to specify or verify the di fficul ties al leged. Custodia l parents , either corresponding with tho se access parents inte rviewed or a separate sam ple, were never surveyed. Of the 23 percent who reported that they had problems, they were not asked about ways in which th ose problems had been solved. We suggest it mi ght have been helpfu l to evaluate the process used by thos e who have solved their problems. I think everybody in volved will acknowledge that access is a point of contention between parents, but few accept it as a major social problem.

In the words of a Toronto lawyer, "I cannot tell you how many access problems are solved with thr ee phone calls ." We would also like to note that the Manitoba research was surveyed to capture the mo st recent information on access orders available. However, it is these very recent access orders that constitute the very situations where there may not have been time to work through the normal adjust ment period. Furth er, James Richardson, in a study done on The Divorce Act (1 985), states that despite the lit erature access was not especially sig nificant, even among the men we talked with.

As CORC looks at the Mani toba research and Richardson's finding s, we do see a picture that is being painted by some groups that there are nu merous women wi thholding access from their former spouses. We also do not see a clear demons tr able need for thi s program. CORC (MB) wou ld also li ke to note, that 21 despite the fai lur e to addr ess some other ma jor concerns, the intens ive consultation with communi ty groups did result , we beli eve, in an incr eased recognit ion of the problems that custodial parents have with access parents who do not take advantage of access.

In the study referred to by Richardson earlier, he noted that although onl y 1 percent of non-cus todial parents were deni ed access by the courts; in situa tions where the wife had sole custody, the father does not in fact see the childr en in about 11 percent of cases. However, Richardson does not assert that this is a result of un reasonableness, or defiance on the part of the custodial mother. In stead the data reveals a num ber of reasons why this is so, including that the father has no in terest in maintai ning contact with the childr en or that the father has moved away.

In situations where access parents do not take advantage of the access, the custod ia! parent is left with sole responsibi li ty for the caring of childr en and other problems, includin g di sappointed childr en who wait to see their parents and loss of in come and other expenses for the custodial parent. We acknowledge that the program in Bill No. 11 has been drafted in such a way as to attempt to address some of these issues. However, we feel that they fall short of the mark and may do more harm than good.

Our fund amental question about parents who do not exercise their access responsib ilities toward th eir childr en was put by Gerrie Hammond, MLA from Kirklield Park, when she said, "Access parents who do not exercise their rights-1 have a problem i suppose wit h this one because how do you force someone to be responsibl e?" CORC (IIII

B) recommends that the Access Assistance Program not be imp lemented. We assume it is going forward - advertisements for two posit ions showed up in the Winnip eg Free Press on the weekend of December 3. We would like to turn our att ention to the program itself and having mentioned the advertisements for staff, we wou ld like to begin by commenting on our concerns about staff for this program. If the program is to work, there mus t be adequate staff, adequate in numb ers and in unde rstandings of the comp lexit ies of the issues and emotions that play in any disp ute related to access.

Unlike maintenanc e di sputes, here we are dis cussing people thems elves. The issues related to access are comp lex and the variables many. Many women fi nd th emselv es frightened and vuln erable for a long time after the end of the marri age. The program staff mus t be expert in skills which will redu ce hostility , deveiop tr ust and bette r comm un ication.

The focus must be to work with the existing agreement while main taini ng an openness to recommending that there are times when access is not in the best inte rest of the child. * (21 00) Richardson notes in his study that Canadian courts, almo st in variabl y, gr ant some fo rm of access or visita tion rights to the non- custod ial parent. This seems to be the case even where there is history of violence

Thur sday, December 15, 1988 or insanity. CORC has some concerns and questions about the use of volunteers for supervised access. Where will they be fou nd? How will they be screened? How will they be trained? Like program staff, the volunteers must be aware and sensitive to the complex issues related to access, as well as the concerns of the children with whom they are working. CORC understands at the present time that mediation in this pr ogram is voluntary, and we are convi nced tha t it must ever be thus.

Und er no circu mstan ces should there be any element of compuls ory mediation worked into any access enforcement program. We agree that there are times when mediation is successful and helpful. But mediation is a pr ocess that assumes equal bargaining power between disputing parties. When it is forced on one pa rty, the equality is gone from the very beginning. We wou ld also like to note that where abuse is an issue that mediation should not be included as an option for a pro posed case plan. Mediation does not work in situations where there is abuse and in fact there are times when it may be harmful.

"In cases where there has been a history of spou sal or child abuse, one party has exerted continuing control over the other by violence or threats of violence. Victims of do mestic violence are intimidated by the abusing spous e or parent and may be incapable of asserting their own interest during mediation for fear of retributio n." We would note that these dynamics should also be considered in any interventions with a child.

The counsellors and all program information available to the public must make it clear that mediation is voluntary and all pos sible measures must be taken to ensure that refusal of a mediation option cannot be used against the custodial parent in any further action conc erning custody or access. An integral part of this pr ogram is compuls ory conciliation, and we want clarification of this term and the intention behind it.

We understand that the Attorney-General's Department is responsible to enforce court orders but want to stress our concern that under no circu mstances must it be demanded that the two parties meet face to face. In fact, if that happens, we have set up "defac to" compul sory mediation. CORC has concerns about the three-month maximum for access supervision and acco mp anying couns elling. We are of the opinion that there will be cases where this is not long enough. Research clearly points to the need for a situation as free of conflict as possi ble to serve the best interests of children.

Many of the behaviors which lead to conflict are long-standing, and it seems to us that the time period is too short to allow for the elimination of old behavior and the learning of new behavior. In fact, this short period may cause more harm than good , especially where there has been a shor t period of "confl ict-free" access fol lowed by conflict. So we wou ld recommend that the time limit be eliminated and be at the discretion of the supervisor or counsellor.

Keeping in mind that the program must at all times be based on the best interests of children, we have a recommendation for major changes in the legal component of the program . One of the possi ble aspects of a case plan is tha t a counsellor may recommend that the client apply to ha ve an order varied. Although there are provisions for referral to an access enforcement lawyer where access is not being exercised or is being denied and the other parent refuses to par ticipate in the prog ram, no such pr ovisions are made where the recommendation is that a custodial par ent apply to have the order varied.

The cost of legal pr oceedings is high. In our opinion, most women who are also custodial parents will not be able to pay tor those legal proceedings. In some cases, but by far not most, women may be able to use Legal Aid services, but the reality is that Legal Aid services are woefully inadequate, especially when it comes to fam ily law cases. lt is the position of CORC that for this program to be called truly child centred that the mandate of the access enforcement lawyer must be extended to include selected order variance appl ications where such appl ication is considered in the best interests of the child.

We have exp ressed our reservat ions about this program and, since it is to be imp lemented as a pi lot pr oject and is breaking new ground in its inclusion of a full range of services, CORC (MB) recommends that an advisor y committ ee be established before the program is imp lemented.

We envision this committee with a broad mandate which would include: ongoing assessment of the program, development of the necessary pr otocols and screening pr ocesses for all components of the prog ram, research into non compl iance with access orders, and the development of a clear and compr ehensive tool to assess the project at the end of its three-year pilo t period.

Although we are not convinced of the need or wisdom of this program, we do concur with Susan Crean when she says, "lt remains to be seen whether the Manitoba option will fare any better than the Ontario option , although there is no doubt at all that if any app roach should be adopted as a model at this early stage, it should be Manitoba's and not Ontario's." And finally, to Bill 11 and its direct relationship to the Access Assistance Program, the first draft of this pro posal did not include within the legal component the provisions for pos ting of a surety or compensation where expenses have been incurred. lt is the inclusion of these pr ov isions whic h has necessitated the introd uction of Bill 11 .

In CORC's respons e to the April 23, 19 87 draft of the propo sed Access Assistance Program, we did poi nt out the need for the passage of legislation prior to the onset of the program. At that time, CORC and other groups saw the provisi ons for reimbursement and the pos ting of a surety as a way to alleviate the financial costs which result when access parents do not live up to their responsibilities as set out in court ord ers.

We continued to accept the assump tion that there are some custodial parents who might benefit from these prov isions, but we have had some serious second thoughts about the inclusion of these provi sions in the prog ram and the passage of this amendment to The Child Custody Enforcement Act. We are of the opi nion

Thu rsday , December 15, 1 988 that the potentia l of misus e and possi ble harm to the "n ew " iam ily unit mi ght outweigh the potential for good. COAC bell eves that Bill 11 could be used as a tool for harassment of custodial parents who have valid reasons tor denying access . lt these amendments are passed, we woutd lOve to be able to find a way to restrict the provisions so that they could be used only by those parents who had taken advant a ge of the Access Assistance Program. As , Mr.

MeCrae stated in the speech on second re ading of this Bill: "This Bill is to come into force on Royal Assent so that parents who have been having aHficulties and who have the means to do so, may immediately take advantage of these new powers given to the court." Considering the fact that most of Canada's poor are women With child re n, custodial parents, it stands to reason ttrat they are not the ones '' who have the means'' to take immediate advantage of these provisions.

Very few custodiat parents wilt find themselves in a position of using the provis ions of this Bill witho ut taking advantage of the Access Assistance Program and/or a referral to an access enforcement lawyer. Those who will be able to use these provisions are those parents who possess the "power" of havin g "t he means to do so." We have come to believe that that these mone tary remedies will be of little practical benefit to those who we once thought they would serve.

One of the argum ents which Is often made against existing legal provisions for the enforcement of custody orders is, in the words of tan Scott, the Attorne y-General of Ont ario, that they are "drac onian," and he has a point. lt does seem sli ghtly absurd to imagine any good purpose can be served by putt ing the childr en's prima ry caretaker in jail or by siphoning mo ney from the fam ily budget. But CORC Manitoba sees similar problems with the provisions for compensation and the posting of a surety. The result of

section 14. 1( 1) will be the "si phoning of money from the family budget." The penalty will be levied agains t the fam ily unit, not only the parent, with the possible result of harm ing the child ren and their well-being. With th ese concerns in mind, CORC Mani toba recom mends tha t in the event tha t the Access Assistance Program is im plemented, that the provisions for reimb ursement and the posting of a surety be removed from the legal component of the Access Assistance Program. This recommenda tion wou ld elimi nate the need for Bill 11.

CORC recognizes other problems with Bi ll 11 which we believe support a position of the rejection of the Bill at this time. Bi ll 11 cjoes include provisions that there mus t be "wro ngful deni al" of access but the problem, as we see it, is that there is no definition of justifiable denial of access. As well, we are not aware of any consensus of what might constitute justifiable denial of access. The Ontario legislation may have a starting point for the di scussion working towards such a consensus.

Their legislation li sts a numb er of reasons for denying access which are in cluded in, the brief. * (2 11 ,0) 23 CORC Manitoba recognizes that the inclusion of

definitions is frau ght with di fficultie s. Wh at are reasonable grou nds? In the case of ill ness, how does one determine it? By whose watch does one determine the hour? Questions are many and the possible result is that such defini tions could become serious points of conflic t, exactly what we are trying to elim inate in this program . On the other hand, CORC is convi nced that before any legislation is passed, there must be some clear understan ding or consensus about justifiable denial of access. Without that, it seems Impossible to protect the beSt inter ests of the children.

CORC finds itself in a conun drum and suspects that the Attor ney-General (Mr. McCrae) also found himself in a conundrum in regard to a conclusive definiti on of justifiable denial of access. CO RC sug gests tha t the dis cussion to ward s consensus take place prior to the enactment of any amendments to The Child Custody Enforcement Act and that that issue could be referred to the advisory committee which we have recommended. Throughout the consult ation process, CORC has had concerns about the lack of clarity and elaboration in regard to reimb ursement of �xpenses and posting of sureties.

We do not know how this will work. How will expenses be paid? Will there be provisi ons to enable the use of a surety to reimbu rse expenses? What expenses will be consider ed reasonable? How tong will the surety be held? These are serious problems which we believe must be add ressed before any legislation is passed. CORC has noted that

Section 14. 1(1) , dealing with cases wher e access has been wrongfu lly den ied , "d irects the court to take into consi deration the best in terests of the child. " This dir ective is not inclu ded in

Section 14 . 1( 2), dealing with the failure to exercise access. CORC recomme nds that if this legislation or simila r legislation is to become law that the di rective "to take into cons ideration the best in terests of the child" be added to

Section 14. 1(2). CORC has lob bied long and hard for the expansion of the un ified fam ily court system. We think that if Bill 11 is passed and new powers are given to the court that this is ju st one more reason to expand the uni fied Family Court system and the appointme nt of specialist Family Division ju dges. CORC has rai sed several concerns ab out the proposed Access Assistanc e Program in Bill 10 . These concerns we believe are serious and valid.

We do not support the im plement ation of the Access Assistance Prog ram but, assuming that the program will be imple mented we ask, therefore, that you consider seriously our recommen dations . Mani toba is again breaking ground in the area of famil y law. Therefore, we urge the Attorney -General and the Legislat ive Assembly not to rush into this program and legislation before the full impl ications are un derstood. Mr. Chairman: Thank you, Ms. Bjornson . Do we have quest ions from the comm it tee'? Mr. Doer.

Thur sday, December 15, 1988 Mr. Doer: Mr. Chairperson, I would like to commend the commit tee for a very thorough presentation. The Charter of Rights Coalition , all the groups lis ted , have endor sed the brief presented here this evening. Ms. !Bjomson: We have not circula ted this brief, but all of the points inclu ded in this brief have been agreed upon by the steeri ng comm ittee, which works by consensus. Mr. Door: We had heard jus t recently that there were some problems with this Bill that you have ident ified in your presentation.

On second reading, I suggested that the Min ister responsible meet with the groups prior to getting to this stage of the commit tee. Has there been any further consu ltations in recent weeks or recent days, inde ed-1 think I spoke last Frida y on this Bill with a desire to be ahead of the rest of the countr y but at the same time doing it in a proper way that makes sense. Ms. Bjornson: We have not met with the Attorne y General, but we have raised our concerns in the last few days with the Family Law Division. Mr.

Door: Is there ju st a major di sagreement between the Fam ily Law Division in terms of the points you are raisi ng? I know you cannot speak for them, but your perception of their- Ms. Bjornson: My perception is that in a numb er of these areas we are thinking somewhat the same and tha t th ere is some agreem ent, at least ackno wled gement, of our concerns. Th ere is a fund amental dis agreement about whether there is a need for this program or not. Mr. Doer: Th ere seems to be two sugge st ions throughout the Bill with all the criticisms of the proposed Bill.

One is to not pass the legislation at this time and to spend mor e time thinking about the impl ications of (

a) the move, and (

b) some of the other details of the aspects contained in the legisla tion. Is that basically correct? Ms. Bjomson: That is basically our positi on. I think what we would like to see, knowing that the program will probably be imp lemented and that it is a pi lot program, wou ld be the elimi nation of the reim bursement in sureties as a possible plan of action which would then elimina te the necessity for Bill 1 i.

Let the program go through if it is going to be imp lemented, go through its th ree-year pilo t project with an advisory comm ittee, with a broad manda te to continue looking at this and monitoring the program. But at this time, after mu ch thought, we do not want to see Bill 11 passed. Mr. Doer: Your coalition meets on a fairly regular basis, I would imagine, with the Min ister responsible for the Status of Women (Mrs. Oleson), and I notice that there are concerns raised in the brief from that constituenc y, if I was to use that term.

Have you met with the Min ister responsible for the Status of Women on this issue? Ms. Bjornson: We have not met with her on this issue, but all of our correspond ence has gone to her. 24 Mr. Doer: I was a little confused by the point raised on the survey. Could we please have an explanation to the survey on the top of page 4? Who conduc ted the survey, was it an independent survey, was it random, and the figure that was reached in terms of onl y 15 .9 percent ind icating that they were experiencing di fficulty with access? Ms.

Bjornson: The survey was done by the Attorne y General's Department. lt was a random survey. I believe they started with about 440 names- I do not have the research in front of me-and interviewed approximately a little over 10 0 people. Out of that in formati on, they extrapolated that there might be 200 people who would use this program in a year. We think that is high. Mr. Paul Edwards (St. James): I also want to congratula te the presenter for a very thorough job. it obviously shows a lot of work and I thank the presenter for that brief and her presentat ion.

I wanted to ask her, fi rst of all, if she has seen the revised Bill by the Attorney-General which has an (a), (

b) and (

c) to each of the sections. Ms. Bjornson: No, I have not. The only Bill that we have received was the original Bill 11 as it was in trod uced in the House. Mr. Edwards: How long have you been li sted as a person who was want ing to present? Ms. Bjornson: Since about six hours after this Bill went to second reading. Mr. Edwards: You might be in terested to see the proposed amendments, as I have received them two days ago, and they do now have a

section (

a) of the only two sections which do any thing in this Bill. Ma ybe I will jus t read that for you. Seeing as you have not seen it, you might be in terested to hear it. This is an addition to the two su bstant ive sections. Ms. Bjomson: I can get my own copy of the Bill. Go ahead. Mr. Edwards: I must say, I find it is quite un fortunate, given that you have put all this work into this and obviously have done a very thorough job and have been inte rested sinc e the fi rst day, that you do not have and did not get the new Bill. lt is not th at long to start wi th. There is an (

a) added , which states, with respect to 14 .1( 1) , "Re quir e supervision of the access where the court is satis fied that a person or agency is willing and able to provide proper su pervision." The same- * (2 12 0) Mr. Chairman: Mr. Edwards, I in terrupt with a great deal of reluctance, but I remind commit tee mem bers that the purposes of examining and asking questions of the presenters and people who are before us, are for the purpose of clarification of their presentations, of their briefs, not to intr oduce pot ential suggestions

Thur sday, December 15, 1988 or amendments, as legitimate as they may be, that you may be wishing to present to the BilL We do that at committee stage later on. With that gentle admonition, I would ask you to reconsider your tina! question. Mr. Edwardfl: This is not my amendment, nor is it the pr esenter's. it is the Attorney-General's amendment and I would simply mention that same word ing is applied to both of the sections. I realize it is short notice. !t adds that optio n of supervision. Does that affect your submis sion in any way? Do you have any comments to make? 1\b. Sjcrnson: We probably would have added a

section on that addition . I think that adding that to the Bill would not elicit our support for Bill 11 at the present time. What it does is adds one more thing that the court can do rather than the monetary issues. But I think, under the circumstances, that we would not support the inclusion of the supervised access. lt is possible within the Bill at the present time-o r the program, excuse me. Mr. Edwsrds: I am interested in some of the earlier statements that you made. Are you suggesting that perhaps our judges are making mistakes in ordering access so often? Ms.

Bjornaon: I am suggesting that there is a myth about, that it is always in the best interest of children to be in contact with both parents. We would say that is not true. We do not believe that it is always true. I think our po sition wou ld be that the friendly parent rule in the new Divorce Act has put women in a posit ion where they are unwilling and somewhat nervous about raising concerns around access, and so that often family court judges are in a position of not even knowing some of the situations and having the information there to make decisions on.

So I guess we are saying there are times when the decision to give access is not in the best interest of the child. I certainly do not have any statistics to say that there are hundreds and hundreds of times that is true either. Mr. Edwards: I just want to touch on one of the statistics that my honourable friend raises which was the 15 percent statistic, and that comes from a study that the Attorney-General's Department did to support this. That 15 percent-and you go on to say that there does not appear to be a need for this progr am. I am just confus ed.

Are you saying there is not a need for this program based on that statistic, or are you saying there is not a need for this program in this form and we should try and come up with a better prog ram? Ms. Bjornson: We are saying that we do not believe that statistic demonstrates a clear need for the program . That statistic is broken down in ways that people might us e such a pr og ram.

That, along with the other information and the fact that we believe that there are some problems with this research and that is that many of those who were interviewed were in the very earliest times of working out an access order, there are some normal problems in that process. So we just do not see that there has been a demonstrable need. 25 �J.!r. Edwards: This will be my !ast question. I promise. An Honourable Member: Do not be intimated. Ask as many as you want. Right, Mr. Chairman? Mr. Chairman: Absolutely. Mr. Edwards: I respect the Chairman. I do not want to monopol ize the floor.

I simpl y wanted to ask, and I do not want to put words in your mouth, but I heard some statistics and I have not obviously read your brief comp letely about statistics about access by fathers not being good in X percentage of cases or not always being good. Does that mean that generally, do your statistics show and do you say that mothers make better parents overall than fathers? Ms. Bjornson: No, I did not say that. Mr. Edwsrds: Do the statistics say that? Can you just run me through those statistics again which had to do with contact with fathers? Ms.

Bjornson: The statistic that we used came from a 1987 study which was done for the federal Department of Justice, and in that study they found that 11 percent of fathers who had access did not, in fact, see their children. That was the statistic, and there were a number of reasons given. In 55 percent of the cases the fathers were not interested in maintaining contact with the children and, in 30 percent of the cases, the father had moved away. Mr.

IEdwards: Are there any statistics that show what percentage of fathers who have access, and maybe you stated this, ac tually frustra te the custodial parent, the mother and the child, by abusing that access right? llll s. Bjornson: I do not have those statistics in front of me. Mr. Edwards: If this program could address both of those problems, and you say there are 15 percent who are having access problems, does tha t 15 percent include both access prob lems from the point of the custodial parent and from the parent with access?

Would that be a larger figure, do you surmise, if it did include both of those aspects? And if this program could deal with both of those, wou ld it be suppor table then? l\ll s. Bjornson: Well, this prog ram does deal with both of those. Mr. Edwards: lt purp orts to, but you have pointed out criticisms- Ms. Bjornson: Yes, there are criticisms. The prog ram does at least add ress both those issues. This piece of research that was done by the Attorney General's Department interviewed only non-access parents. !t did not interview custodial parents, and so I mean there are two things there.

One is that, therefore, it did not include figures about frustra tion of access or not taking

Thurs day, December 15, 1988 advantage of access. lt also had no component in it to verify the claims that access had been denied. Mr. Edwards: Just very briefly, there has not been a demonstrated need-1 have not been in pol itics that long but I guess it seems a bit probably uniqu e to say that we do not need something and obviously the need is there. Do you have in mind something else you would rather see? I mean, is there something else- not that there is money to throw around or to spend-a nd maybe it is in your report, specifically, that you would rather see? Ms. Bjornson: No, we do not have a propos al.

We do not believe that there needs to be an Access Assistance Program at the present time. Mr. Chairman: Thank you, Mr. Edwards. Do we have other committee members wishing to add ress the witness? Hearing none, thank you, Ms. Bjornson. I call on Ms. Beverly Suek, the Manitoba Advisor y Council on the Status of Women. Ma. Beverly Suek (Manit oba Advisory Council on the Status of Women): I wou ld like to start off by saying that the Manitoba Advisor y Council on the Status of Women suppo rts the presentation made by the Charter of Rights Coalition. (The Acting Chairman , Mr.

Parker Burrell, in the Chair.) The coalition has pr esented a comprehensiv e analysis. I will just be highlighting some of the major poi nts of concern to us. We would like to begin by commanding the Family Law Division of the Attorney General's Department, and the Family Dispute Services of the Department of Community Services, who we have met with frequently. As a matter of fact, we met with them today to go over some of our concerns and discuss the differences that we may have on these issues and the similarities.

I would like to talk both to the Bill and the prog ram because we see them as being quite interrelated. I am not going to read from the brief. I am just going to highlight a few poi nts because many of them are repetitive from what Ms. Bjornson said. I wou ld like to say that the Advisory Council also feels that the research was not compr ehensive enough to justify that there is a need for this program. As was said before, only custod ial parents were interviewed for this research-1 21 custod ial parents were interviewed-and of those 121, only 15 percent identified having a need for this kind of program .

Non custodial parents were not interviewed and unfortunately a lot of people do not know that there are publi c hearings tod ay. We have talked to a number of custodial parents who wou ld have liked to have been here but do not have the time to make a brief or be able to present. I do not think they have been sufficiently heard from.

There still needs to be a great deal of research with custodial par ents to find out what their views are on this issue. * (2 13 0) 26 Our belief is that the program should be put on hold until such time as there is more in-depth research done and until custod ial parents have a voice in this issue. We have concerns about the Bill and the prog ram as it stands right now. I would like, in speaking to this, to ask you to keep in mind that single-parent women are the poo rest group in Canada. The last Stats Can figure showed that single parent women are the largest group in Canada who live below the poverty line.

So we are talking about people who do not have resources. First of all, the program could pos sibly be used to intimidate custod ial parents, because they do not have the resources to defend themselves. They do not have the resources to be able to hire a lawyer to defend themselves and therefore they may go along even though they think it is not in the child's best interests. A lawyer, in this program , is suppl ied to the non custodial parent if the complaint is found to be justified. A lawyer is not suppl ied to the custodial parent if their concerns are justified.

I do not know what is going to happ en when a counsellor finds that there is very good reason to vary the access order, and that the child might in fact be harmed by not varying the access order, and yet there are no resources for the custodial parent to be able to do that. After long custody battles in divorce, a lot of custodial parents already have big legal bills and they are not about to take on more. So, without the provision of having that available to the custod ial par ent, I think that we are going to have some problems with this program.

I also question the need for financial penalties that are listed in the Bill. When you are putting financial pe':Jalties on a single-parent woman, you are also put ting it on the whole family and the children are the ones who end up suffering. The penalty comes out of the family income. These are already poor families. I also question the cost of this program . Given the fact that we are not convinced there has been a demonstrated need for this program , it could end up being a very costly program. You are talking about cou nsellors; you are talking about mediators; you are talking about lawyers.

I think it is a big initiative to take on. I understand that the federal Go vernment is payi ng for half this program for three years. That may be the rush to take advantage of that prog ram but in three years, if it goes on, then the pr ovince will end up payi ng all the costs of this pr ogram and have we found enough of a need to justify that happen ing? We are also concerned that if the program does go ahead that the counsellors be available both day and evenings for people, because in most families both parents work and certainly most single parents work. So we are looking at a very costly prog ram.

We also question the component that has volunteers doing the supervised access, working with a lot of women's organ izations tha t use a lot of volu nteers, I can guarantee you that you are going to have a hard time finding volunteers to do supervised access. So our point is that we do not think there is enough of a need demonstrated as yet to justify this pro gram

Thursday, December 15, 1988 or that the outco mes will be of great enough benefit. We .talk about mediation not being mandatory in this program but, when a custodial parent knows that if they do not go through the program, they do not go through mediation, then it can go straight to penalties under Bill No. 11 or, when it becomes

an Act, then of cou rse they will go. I mean, that is as mandatory as you can get without actually dragging people off. We do not see enough reference to being child centred in either the Act or the program. We would like to see

an Act and a prog ram that centres on the nee(:ls of the child. Too often, I think we talk about ownership of chi ldren, who owns the children, who has rights to children, how do we divide up c hildren. I t hink that is a totally sad, sad situation. lt is the ch ildr en who we are concerned with and what is good for them. That is our main concern. I would like to sort of just end by talking about some of the general assumptions on which a Bill such as this or a program such as this is based. (Mr . Chairm an in the Chair.) We ce rtai nly question some of those assumpt ions.

One of them is that this is the flip side of maintenance enforcement that because we are doing maintenance enforcement we should do access enforcement. We certainly question that. One is mon ey, one can be assessed and documente d and col lected. That is an entirely different thing from access where you are talking about human dynamics, you are talking about people, you a re talking about children" An access order that was made five years is not necessarily valid for a child today. So I think you are talking about an entirely different subject.

I very much disagree with the simpl istic comparison with maintenanc e enforcement. The other assumption that we question is the fact that there se ems to be an image out there of all these women withholding custody . I think that is more the rare case than the general case. lt is true that there are some good fathers out there who do have trouble getting access. I think that is a real problem and that is sad. Most women, most custodial parents, really care that their children get the best care and that they have contacted as much as possi ble with the husband.

I think that it is very rarely frivolously denied without some substantial reason from the custodial parent. In fact, in my experience with people, it is often the children that do not want to go.

We as parents, and I have six children of my own, we often think we are very important to our children but when they get to be about five, it is their friends and their school and their community and pla ying baseball or going skating with their friends, or somebody's birthday party that becomes much more imp ortant to them, than being trucked off to another commun ity where they have no friends, no one arou nd, no birthday parties to go to. I think it is very hard on children. That assumption that we can move children around and we can share them, I think, is an assumption that I have difficulties making.

I would like to end by just making some specific recommendations that we made on the last page of 27 our proposal and that is that, fi rst of all, we would pr efer to see this whole pr ocess put on hold until more comprehensive research can be done that includes the needs of custodial parents around access, and that assesses the results of access programs elsewhere. Secondly, if Bill No. 11 is passed and the access enforcement imp lemented, we strongly recommend that legal assistance also be made available to the custod ial parents, par ticularly in cases where abuse is alleged.

Financial limitations must not prevent custod ial parents from their best efforts to pr otect their children from harm. Third ly, shou ld the pi lot pro ject proceed as plan ned, we urge the Government to involve the community in monitoring and evaluating to the greatest pos sible degree and to provide a pub licly available report at the end of a three-year period . I would like to add a fou rth that we missed, and that is that cases in this Access Enforcement Program be referred only to Family Division ju dges who have specialized knowledge of family disp utes.

Last, but by no means least, we recommend that Bill No. 11 be reviewed to ensure that it reflects a specifically child-c entred phi losophy in dealing with access issues. In conclusion, we would like to remind you that Manitoba is seen across the countr y as a leader in the area of Family Law. Many other jurisdictions have looked to us for leadership and innovation in this very diff icult and complex issue. We are sure to be watched closely as we take on this issue of access enforcement.

The well-being of many children is at stake, and you can be assured of our sup port for posit ive changes, and of our challenges in the ongoing pr ocess. Mr. Chairman: Th ank you , Ms. Suek. Do we have questions for Ms. Suek? Mr. Doer: Thank you for the pr esentation on behalf of the Advisor y Council on the Status of Women. The pr oject was jointly annou nced in July by the Attorney-General {Mr . Mc Crae) and the Min ister responsible for Community Services (Mrs. Oleson) or responsible for the Status of Women (Mrs. Oleson).

Have you had any opportunity to discuss this with the Minister responsible for the Status of Women, and what has been her feedback to you on the joint pr oposal that was made by the Attorney-General? lillls. Suek: I discussed it many times with the Minister responsible for the Status of Women, both before it was announced and after it was announced. There was no decision in terms of any changes. We just discussed our concerns about the Bill. * (2 14 0) Mr.

Doer: There are a number of groups that are listed as groups for purp oses of consu ltation about the BilL Has there been consultation on the Bill with individual organizations or has there been any round tabling of

Thur sday, Decem ber 15, 1988 the various groups: the Charter Coalition, the Advisor y Council on Status of Women, the Committee on Wife Ab use, the Bar Association, the YWCA, etc., a broader group together in terms of discussi ng this Bill? Has there been a pr ocess that has really taken pla ce with one group and the Go vernment separately? How does it work just so I can get an idea? Ms. Suek: As I und erstand, it was indi vid ual consu ltations. I certainly did not partici pate in a round table discussion. lt was individual with us. Mr. Harold Taylor (Wolseley): A question I have is, could Ms.

Suek advise the committee with the views of the Manitoba Advisory Council on the Status of Women as to the decisions in recent years out of the Manitoba court. Is it or is it not child centred in your view? Are they child centred? Ms. Suek: I cannot say that I have a precise knowledge of access orders over the recent years. I am not sure that I could answer that with any definite answer. Mr. Taylor: The reason I raised that, Ms.

Suek, is that the statement by your organization and the preceding delegation both said tha t this is neither child centred at one moment or not child centred enough, and the reason I asked that is that we are talking about the fact of court orders not being followed and it is on both sides. So the question is, is it a problem with Bill No. 11 or is it a problem more basic with the fact the court orders themselves are not child centred? I think this is very germane to the subject matter. Ms. Suek: I think it is germane too. I am not the person to answer the question.

We have a few lawyers coming up so you might want to ask it of them. My concern about it not being child centred was more the word ing in the Bill and the word ing in the program which, to me, is interpreted more as parents' rights over children, as opp osed to children's rights over themselves. So that is where my concern comes. Mr. Taylor: You raised the point about the aspect of finances and securing performance and that, and I guess I tend to share your concern that dollars can be a problem with both custodial and access parents.

One may be a recipient and maybe not have quite enough dollars to provi de properly for the family. On the other side, the access parent may be pr oviding for two families, again not a very happy situation and a shortage of dollars both ways. I would ask you then, and perfor mance is the issue here, the following of a cour t order. Has your group discussed any other mechanisms, considered any other mechanisms, other than a dollar penalty to try and assure performance? Ms.

Suek: No, I mean, I certainly do not think a dollar penalty is appropria te in these kinds of cases but I have no idea what else might be appropr iate. I do not see that there is a tremendous need for this prog ram generally to-1 mean, people seem to be on the most part res olving these issues for themselves in court or 28 between each other. So I do not see any penalties that need to be put in pla ce. Mr. Taylor: I guess from the statistics we have, some people may conclude that.

I fou nd it interesting you may want to make comment is the fact that the statistics that are being displa yed this· evening are of those from the custodial parents. I wonder if you would like to speculate at what might happen if there had been an even balance of statistics garnered from the other side. Ms. Suek: The statistics that we were talking about were non-custodial parents. Only 15 percent of the non custodial parents saw that there was, felt that there was a problem, that it was unresolved. The custodial parents have not, were not interviewed for this study. Mr. Taylor: Then I heard ju st a word slip.

Mr. Chairperson, the other point is that there were 23 percent who had problems previously. We are not sure how painful or how long a dur ation it was before they were resolved, which they seem to be. But one adds 15 percent and 23 percent, at 38 percent to me is saying that there is a problem. That is saying that three out of eight cases is pro blematic. Ms. Suek: Well, on the other side of that though, Mr. Taylor, is that if people can resolve issues for themselves as 23 percent of them did, I think that the Go vernment should let them resolve it for themselves.

I am not sur e that the Go vernment should intervene when people are able to do that for themselves. Mr. Taylor: I guess I could share your view if we knew the time frames involved, Ms. Suek. If it was five years before that resolution was in pla ce with what trauma on the part of the parents and what trauma on the part of the children, and what wasted time of life and what wasted money, if I knew those things, then I could agree with you. In that I do not know them, I certainly have some big questions. Ms.

Suek: Back to our original point about let us do some better research on this so we know the answers to those questions because I do not have the answers to the questions and certainly they were not in the research. I think that we need better research if we are going to undertake a program of this kind. Mr. Edwards: The second last parag raph, you say that you recommend that Bill 11 be reviewed to ensure that it reflects a specifically child-centred phil osophy . Did your group come up with any specific recommendations with respect to this Bill in the event that it should be passed? Ms.

Suek: No, but we would love to partic ip ate in an advisory committee to shape alternati.ves for the Bill if that comes about. Mr. Edwards: A better Bill. Ms. Suek: A better Bill, or no Bill at all. Mr. Chairman: Are there any further questions?

Thursday, December 15, 1 988 Ms. Maureen Hemphill (Logan): I want to thank the Status of Women and the Charter of Rights Coalition for their briefs and presentations. There is one thing that I would like to emphasize. lt seems to me, first of all, you have made a numb er of recommendations and in both cases they are very reasonable recommendations. If this goes ahead, wou ld you please take this in to cons ideration and do this or do that. I think your message is clear from both of you that you really do not want this Bill to go ahead.

I think we need to make sure that we under stand that because I do not want any confu sion, because you have gone ahead and put forward very reasonable suggestions for change if it does go ahead, that should not take away frorn your firm and strong position that you do not believe this Bill should go ahead at this time at all, that the stat istics and in formation are confus ing and contradictory and are not at all clear that what we are aiming to achieve is going to be achieved th rough this program , is going to benefit children and that it needs more time. lt needs mor e research and more involvement of the people invol ved and groups and organizations like yours.

I just want to ask if that is the case. Ms. Suet: That is absolutely the case. We wou ld like to see that Bill 11 not go ahead. Our concern tho ugh, as Jeri Bjornson mentioned , is that they are already advertising for couns ellor s for the program and so it seemed like it was imminent. That was what our concern was too. lilt. MemphiU: Mr. Chairperson, I just want to indi cate th at there have been many jobs tha t have been advertised by the Government or by many Governments and, after the advertisement, the jobs were either stopped completely or put on hold for a very long period of time.

You should not consider that the advertis ement of two positions means that thi s needs to go ahead or should it detract you from your main posit ion is that it definitely should not go ahead in its present form. Ms. Suek: Well, we were certainly surp rised , because the public heari ngs had not been held and the Legisla ture had not decided on Bill 11 that the program should be put in place. Mr. Chairman: Thank you, Ms. Suek. Any further questions from comm ittee Members? Thank you, Ms. Suek, for your presentation. I call on Ms. Marlene Peek, a private citiz en. * (2 150) Ms.

Marlene Peek (Private Citizen): First of all, I wou ld like to thank you for the opportunity to speak tod ay. Speaking as a single parent who has recently had the mi sfortune of seeing the jus tice system at work in the area of access and custody , I wou ld like to state my views in opposition of Bill No. 11 . My fi rst point is that I feel there should have been more forewarning and public notice of these hearings in order to get a reliable sampJii)Q of the ,opinions of the citizens they encom pass.

There are many single parents who are not aware of these hearings tonight and, ther efore, mus t rely on myself and various human rights organi zations to speak on their behalf. I mu st oppose this Bill at this time, since it is clear that the problem does not lie in enforcement but in accurate in vestiga tion. The manner in which the justic e system is now investigating these cases involving access contin ues to keep our childr en in abusive and neglectful situa tions. Too many childr en are being abd ucted , abused imd neglected after lost battles in court.

The jus tice system seems to want to give the addi cts, alcoholics and child abus ers the opportun ity to prove themselv es before taking action. The obvious assump tions that are being made in this respect have cost our childr en their stabil ity, their self-respect and, in some ca�;es, their lives. By enforcing access without upgrading its methods of inv estig ation , the jus tice system will onl y be putting our child ren at further risk. There are many fathers and mother s who are rightl y fight ing for just access to thei r child ren.

I feel that they will be creating a more comple x problem by failing to recognize the points I am making here tonight. Perhaps in conside ration of these comments and those of other concerned indi viduals and om anizations, a Bill could be developed to ensure the accurate investigation that is so lacking in our jus tice system and so necessary to ensure the well-being of our chil dren . Only th en can enforcement be consider ed a positiv e solution. Mr. Chairman: Thank you, Ms. Peek. Do we have any questions for Ms. Peek from the comm ittee? Hearing none, I thank you for your presentation.

We have a group of five persons li sted next on our presenter li st, representing Concerned Famil ies for Fair Child Access. I call on Mr. Allan Hamer, please. I will intr oduce your whole group: Mr. Allan Hamer, Mr. Bill Muir head, Ms. Sandra Braid, Mr. Jeff Cudmore and Mr. Randy Marsh all. We do tha t for pur poses of recording your names tor posterity in our Journal of the Legislature. Mr. Allan Hamer (Concerned Families for Fair Child Access): My name is AI Hamer. I would like to thank you for hearing us tonight. I have found this whole experience very in vigorating.

I represent a group of people from all wal ks of life: mo thers, fat hers, grand parents, in terested people, Concerned Fam il ies for Fair Child Access. Sandra Braid is our legal advisor . She is a lawyer who has seen both sides of custody through her law cases with Newman Maclean. Bill Mui rhead is a jun ior high school teacher with the Assi ni boine South School Division and he has seen access problems that crop up pr ofessionally through school and also personall y thr ough his own case. Bill is going to lead off our di scussion. We are going to do it in three parts; it is relatively lengthy. Mr.

Chairman: We are hearing from Mr. Bill Muirhead. Mr. Bili Muirh ead (Concerned Families for Fair Child Access): I wou ld like to thank you for this opportu nity

Thur sday, Decem ber 15, 1988 to sp eak to you about this very imp ortant issue, being the enforcement of custody and access orders. Our presentation will take the form of general opening remarks, fol lowed by a detailed overview of our prop osals, including a contrasted comparison of the prop osals of those of Bill 11 in the Family Law Branch. Lastly, we would like to leave time for you to express any comments, questions or concerns, something that may strengthen our proposal. For this pu rpose, we have also given a prop osal to the head of the Family Law Branch and are currently awaiting a response.

We feel more strongly that only by coopera ting and working together can we hope to solve this very severe social problem for all children of divorced and separated parents in Manitoba. Let me begin by saying that as we all know, you can no t legislate behavior, you cannot legislate reasonableness and you cannot legislate fairness, but you can provi de an environment that encourages the upholding of the law-in this case, court orders of registered specified access agreements.

Wha t legislation can do is to put both proced ures for the resolution of access disp utes and sanctions for those individuals who, by design, willfully break the law. Members of the committee, we are not talking about crimes of phy sical violence that leave scars for all to see. We are dealing with a crime tha t leaves psyc hological scars on children and those who love them the most. The most defenseless members of our society are victimized by those who pu rport to love them the most.

Children have the right to be loved and cared for by both parents, whether married or divorced or whether their parents live together or not. We believe that to be para mount. We hope to show you that in our propo sal and we hope to make recommendations that would strengthen Bill 11 . In August of this year, the access problems of a number of individuals were outlined in Mike Ward's co lumn, a columnist with the Winnip eg Free Press. Among the cases mentioned was that of Allan Hamer. Mr. Hamer's phone number was included so that those experiencing similar problems could call him.

Both our organization, the Concerned Families for Fair Child Access, and this proposal, have grown out of the response to those newspaper articles. Although only 10 of us worked on this paper directly, our membership numbers over 10 0. Before I continue with the specifics of our brief, I would like to say that we are not mediators, conciliators, legislators by tra ining. Most of us are not lawyers. Rather, we are a group of custodial and non-custo dial parents, grandparents, family members and concerned citizens who care about children.

We have lived through the effects of the current court and social service system as they deal with access problems, and we speak from personal knowledge and experience with in the syst em. We have done our homework. We have tried to read a!! of the relevant docu ments and we are now here to present this pr opos al. We are not experts. We do not pu rpor t to be experts, but we are concerned and we have tried 30 to make ou rselves aware of the relevant information that has been publ ished from numerous sou rces. We have learned a lot in this pr ocess. I personally have learned a great deal.

I have never read so much since I was at university. We believe that our program has merit and worth and that it is cost effective and will solve the majority of access disp utes in Manitoba- Mr. Chairman: I regret to interrupt you for a moment, but could I ask committee members to refrain from their pr ivate conversations to the extent possi ble? lt is difficult sometimes to catch ail the presentation being made. I thank you. Please pr oceed. Mr.

Muirhead: We believe it is cost effective and will solve the majority of access problems in both rural and urban Manitoba, something that Bill 11 ho pes to address but does not add ress at this point. This is a third draft of our proposal. For those of you like Mr. McCrae and Mr. Edwards, the difference between the second and thir d encompasses some minor word changing and some pa gination changes. If you now turn to page 1 of the pro pos al, you will see that our go als and obj ectives of our group encompass many areas that concern children and parental conflict. I would like to read some of those to you: 1.

To pr epare a realistic proposal for pr esentation to the Go vernment to imp rove the enforcement of access orders. (And that is why we are here tonight.) 2. To pr epare other prop osals aimed at improvi ng the Family Court System in the following areas: (

a) mediation/conciliation services; (

b) home assessment program; (

c) legal aid system; (

d) couns elling and education of separating/ divorcing parents. 3. To provide information to the public to make them aware that sep arated or di vor ced parents have equal responsibility to their children, both emotional and financial, and that through this eo-responsibility, children will not be effected as greatly due to marital breakdown and divorce. 4. To provide a support gr oup for parents experiencing access problems. We have met our first goal by being here tonight. We hope to be able to appear before you to add ress issues on certain subjects in the future, if you deem it and if it is approp riate.

A comparison of our proposal and that of the Family Law Branch would take a great amount of time and, as the night is pr oceeding, I wou ld like to touch on a number of very important issues to us. Firstly, the goals and objectives of Bill 1 i as set out by the Go vernment, we agree with 10 0 percent. We agree that parents have to be assisted in accessing their children. We believe that the clientele that Bill 11

Thursday , December 15, 1988 is currently trying to add ress is correct, and agree with that. We agree with allo wing non-custodial parents to maintain or reestab!ish rela tionships with their childr en. Ho wever, we di sag ree on perhaps a fundamental point of the pilo t program, and that is that the pilo t program relies on a social service program, that of compulsory or quasi-compuls ory mediation. Most of us have been through mediation. Most access orders have come about through the experience of having gone through mediation.

We see the enforcement of access orders taki ng a quasi-judicial method and we will further go on to highl ight that. We support mediation. We believe mediation is an important service. However, we do have a problem with mediators valida ting non-compli ance by treating both sides of a dispute as equally valid , which is perhaps one of the aspects of mediation. Further, for a mediator to recommend or to channel the non-custodial parent towards an access la wyer perhaps tips the imbala nce or tips the balance, the neutrality of the mediator towards one parent or the other. We have a concern about that.

We have a concern about the people who would be hired and have to work within the program. The idea of contempt charges, while on paper, seems to solve the problem. We have a concern about that. We believe that is important. However, most family lawyers a11d senior partners of firms that we have talked to in the city say that t he best defence for a contempt charge is to apply for variation of the order, which puts both parents back into a court situation, add ing to more expense and further typing up of the courts. As you saw on Sunda y, this seems to be a major problem and we have all experienced that.

Posting of a performance bond, surely, we agree with. We agree with it from both custodial and non-custodial parents. We see no excuse for parents who have access not to exercise that access. I think that is important. The time factor is one area that ha s not been add ressed in this program , and we ha ve serious concerns about that. Ontario's Bill 12 4,

An Act to Amend The Chi ldr en's Law Reform Act of Ontario, introduced in April 19 88, provides for an expedited hearing to take pla ce within 10 days of the service. We have a concern that this program would drag on and that a resolution to the access problem may take many months. Now many months in the li fe of an adult may not be very long, but two weeks in a child's li fe is a very long time, and we believe tha t the time factor must be addressed because children's time is more important than the time of their parents.

What I would lik e to do now is turn it over to one of my other committee members, who will further go on to explain this program, and I will come back and sum up in a few minutes. Thank you. Mr. Chairman: Thank you, Mr. Muirhead. Ms. Sandra Braid. *

(2200) Ms. Sandra Braid {Concerned Families for Fair Child Access): When we reviewed Bill 11, we too.k a very 31 cl ose look at the proposal proposed by !h e Family Law Branch in the Attorney-General 's office, as we see that Bill 11 and a proposal must go hand-in-hand. We see Bill 11 as a vehicle by which this proposai can go through. However, we have some problems with the proposal ill itself and we have some probl ems with Bill i 1. Starting with the proposal, we state, first of al l, it is not really a new proposal.

Wha t it is doing is making the system, as it stands tod ay, more accessible monetarily to th e non-custod ia l parent who is experiencing access problems. We find that at present there are serious problem s in the system. I kn ow, as an attor ney, tha t in many cases th e problem is immediate. People want to see their childr en today or tomorrow and have accountabilit y immediately. With the system proposed by the Attorney-General's office, that accountability goes through an access counsellor who refers to mediation.

If me diation does not work, then there is a further proposal to a lawyer who must make a motion to the court. That takes time, especially setting up mediation, and mediation is already fairly booked and sometimes people wait two to three weeks just to get an appointment. That, to us, is not sufficient. We are looking for something that is immediate and accountabl e. The system which you will be hearing about in a minute, we think, solves this major problem . The other problem is at present the polic e are enforcing our court-ordered access.

On more than one occasion, as a domestic attorney, I am phoned on the weekend and explained: "I am at the house, the childr en are inside, I am perfectly sober, I am not doing anything untoward and I have been told that I cannot see my childr en today," because the custodial parent just does not feel it is convenient. The pol ice should not have anything to do with the enforcement of access orders. This is a domestic problem, which will be better hand led on a social governmental scale, rather than tying up our City of Winnipeg Pol ice Department.

Our problem is that as we!! with the proposal is that in fact it jumps. There should be something in between mediation and a contempt charge. Also, with the contempt charge, at present the remedies are not sufficient. The judge, on contempt, is faced with a very difficult problem, and that is looking at a single parent who has chil dren. Awarding anything that is monetary is going to be extremely difficult for them to, in their own minds, award. Our proposals sugge st alternativ es to financial remedies and using financia l remedies only as a la st resort.

We see that a contempt order should be a la st resort and one of the reasons we are lo oking at contempt being a la st resort is that the judiciary is al ready overcrowded, al ready overly busy and this would do nothing but add to the caseload and we have not seen anything in the proposal that would supply more judiciary to be able to handle this increased casel oad. Also, the problem with Bill 11 is that in fact with the exception of the posting of a surety bond, the things that are in there are thi ngs that a judge can order alr eady. He does not need a Bill to make these orders.

They are al ready in his discretion. However, these orders

Thu rsday, December 15, 1988 are not being made and tha t is not because the judge has not thought of them or considered them, because they may not be appropriate in most of the cases. Wha t Bill 11 is doing is codifying the judge's possibilities and options tha t he considers. I do not know and I do not have any research on it as to whether or not this is going to change what a judge decides. We are looking at putting Bill 11 into perhaps a codified form that sets up an entirely new system.

I have include d in the materials for you a copy of the present maintenance enforcement legislation and how they set up a system. We believe that in the same way that complex system was developed through a complete legislation is something that Bill 11 should be like. lt should provide for powers of a deputy registrar to handle some of these cases. As we have heard earlier in the research and I will not repeat it, sometimes all tha t needs to be done is a few phone calls.

Our proposal, in essence at the very first stage, takes out and weeds out these cases where in fact phone calls would be helpf ul. lt also goes to a second stage in between any contact with the judiciary, thus freeing up the judiciary to handle other matters such as varia tions. We applaud the Attor ney-G eneral's Depart ment in putting forth the maintenanc e enforcement system in 19 85 and find it works wel l. However, we do not see any reason why an access enforcement system could not work the same way. We are looking mainly as well at costs. Costs are key in setting up a comple te program.

The program we have proposed, we figure, can work as a tail along with maintenance enforcement. We supervised access rather than having volu nteers. We have investigated in Manitoba and there are two such agencies tha t are already running very simila r to supervised access programs. We would like to hi nge on to those types of agencies rather than create another bureaucracy to handle something that should perhaps be int errel ated with the same special ists and the experts, perhaps doing the same job with a bit of help and working together.

In effect, we would ask that Bill 11 would not go through in its present form. We are quite concerned that the proposal from the Family Law Branch and the Attorney-General 's office is going through by February 1, simply because it is an arbit rary date that they have set to get started. We think it would be a very sad thing if this program goes through only because it has been started, and I am asking you to consider that it is really not too late to consider other options. We have not had an access enf orcement program in Manitoba before.

In fact, there is not a formal ized access program hardly anywhere, and a few months to consider to make it the best possible program and actually have other provinces and states point to Manitoba and say this is something that we would like to take, we would like to borrow it, I think would be fabulo us.

We have concerns that tying up the taxpayers' dol lars for three years on a proposal that is going to cost money through hiring a Crown attorney to go through the access cases, an access enforcement officer or two, plus an increased burden on the judiciar y, the clerks of the court which also must be considered 32 peripheral ly, is simply a lot of money to be just saying it is too late to do something else. Thank you. I am going to turn the mike over to Mr. Alan Hamer to discuss the proposal in detail. * (22 10) Mr. Chairman: Thank you, Ms. Braid. Mr.

Hamer: One page 9 of the papers in front of you, we outline our ideas on a proposed access enforcement program. I am not going to go through the whole thing, but I am going to highlight it. You have got your copies there you can read up on in detail. I think one of the things to point out, first of all, is that Bill 11 is deal ing with enforcement of an al ready existing cour t order. That order is ba sed on the assumption that both parents have had some contact with mediation services in most cases. We also stress that there should be continuing contact with mediation services thr oughout this process.

The order has been judged to be in the best interests of the childr en already, by capable courts, by la wyers arguing back and forth, by mediation services, by all the social services that we have in pl ace already . So we are talking about enforcing something that is correct. We antici pate that early awareness of this program will elimina te a lot of the future problems, just like in maintenance enforcement. When the lawyers talk to you about your maintenance, they tel l you you can go on the maintenance enforcement program. Tlley will also give you the same information for the Access Enforcement Program .

The onus would be on tile complainant parent or on a complainant to register with the system and make the first formal complaint. Hopefully , we would like to have make-up visits involved in there so that, if there is a missed visit for some reason or other that is perfectly legitima te, maybe the parents can get together and agree on a make-up visit on a future date. When the case is opened, there would be a continuing documentation of non-compl iance, and a file would be maintained that can be used as a last resort as evidence in court.

We have heard tonight from a lot of people who have been very gender specific-m en, women, mothers, fathers-one of the first things that we did in our meetings was used the terms, complainant, non complainant, custodial and non-custodial. We do not refer to gender in th is, and it works both ways, this system. lt works in the way that if you have a non custodial parent who is not exercising his access that can be documented. lt works in the way that a custodial parent who is not allo wing access as a specified court order, that is also documented.

The first step is registration with the Access Enforcement Division. Agai n, as I have said, it is antici pated that the parents' lawyers will inform their clients of this particular service. Upon registration, the intake worker will send a letter out to both parents explai ning how the system works, very much similar again to the maintenance enforcement system. In the appendices in this, there is a letter from Maintenance Enforcement for your information.

The second step is actually makin g the complaint. Either parent can make a complaint, no problems with that. The intake worker is then going to mail a le tter it wil l be a form-type lett er-to the non-complia nt parent requesting · a written explanation of the incident and make-up visits. That .parent can respond in thr ee �ifferent ways really . One is a re;'lsonable explanat ion. Jwas in Brandon, the car would not start in this weather, I could not get back in time. I am sorry. How about making it up on next Tuesday? Fine, no problem. That sta ys on ,file and that is the end of the case.

Anotqer one is that is a reasonable explanation for non-compli ance in the long term, and that can deal with things like abuse. At tnat point, we recommend that there is an applica tion to varythe order. That would be aga in a formal proc edur e in cour t beca use �PPiilrtmtly the current order is not working. Tha t is fine. In the meantime though, the curr ent access agreement should be maintained. If there is a problem concerning the safety of the children, we recommend sup ervised acces s, and the Supe rvised Acces s Program - as a matter of fact, I just found out about another one today.

There is one in the City of Winnipeg called the Marymound Program, as opposed to the Marymount Program, and the y are more than willing to get involved with this on a gratis basis until it gets too much for them to hand le. If the non-compliant parent fails to respond, a second letter is sent out in seven days. If there is still no response or the response is totally un reasonable by the non- compliant pa rent , a le tter is sent out summoning the non-compli ant parent to appear before a deputy registrar, much as agai n in the case of maintenance enforcement. They appear in front of Mrs. McGregor.

At tha t point, the deputy registrar becomes involved. I am sorry, I have left out a

section here. There is also .the case of .the buildup of a number of complaints where you have had a sick child every Friday for the la st nine weeks. lt gets a little suspicious and the intake worker can have a look at tha t and refer that also to the deputy registrar. There is obvious non-compl iance going on. lt is a pattern that sets once you build up a case. When the deputy registrar gets involved , they can recommend several th ings. One is, of course, immed iate complia nce, sta ting appropr iate consequences for failing to comply. A second recommendation would be a return to mediation.

Maybe the parents can get together and work this out. A third one will be make-up visits. A fourth one would be mandatory supervised access in c-.ases where the chil dren's safety is a concern. A fifth area is a negotiated settlement between the parents that may include make-up visits, monetary restitution for expenses incurred, and supervised access agai n. The iast step is referral to the master. That is when you cannot get the person to comply with the court order. At this point we envision an awful lo t of the cases ending. They are just not going to go any further.

Agai n, like in maintenance enforcement, appear once before Mrs. McGregor and she will scare the heck out of you. With al l the due consequences that come up, we feel 33 that an awful lot of people, particul arly so."Tie of the vind ictive cases, will take the people out ot the court system at that point. They will voluntari ly maintain the access agreement. The last step is involvement of the master. The master can do a number of thin gs and usually we are into the hard core cases now. Maintenance payments can be held in trust.

Now, we do not at all agree with the withholding of maintenance payments or the non p;'lymE)nt of maintenance payments. We feel .childr en need that and that is very important, but you can use it as a stick to say, if you do not comply on Frid ay, you are not going to get those maintenance payments. We are going to hold them in maintenance enforcement l!ntil such time as you comply with the access. Another one can be fines. Another &rea is performance bond, as discussed in Bill No. 11, restitut ion of funds for expenses incurred.

Again, that can work both ways where you have a custodial parent sit ting at home with plans for the weekend waiting for the non -custodial parent to come to pick up the kids, and they do not show. All of a sudden you have to,cancel the pla ne tickets, the hotel reservations. lt costs a lot of money to do that, quite apart from the kids being pretty disappointed. lt also works the other way where the non-custodial parent again made up plans for a trip to Calg ary, what-h ave you with the kids, and tha t person cannot get the kids to go with him. it is tough.

From there, you go to contempt of court charge with its sanctions. One of the sanctions can be community service, that can be performed while the childr en are not with the offending parent, so the kids do not even have to know about this. Of .course, the las t one is a jail term. We hope that it just does not come to it. That is some pretty hard stuff in there. What you have got there is an in-depth four-page review and you als o have a two-page highli ght

summary. If you want to refer to it, feel free. I am going to turn back to Bill now and he is going to sum up on some of this. Thank you. Mr. .Muir head: Somebody tells me that when you receive a lot of information in a short period of time it is very difficult to retain it, so if you will let me act as teacher for a minute, if you will turn to page 14, you will find a

summary of our proposals and the strength of our proposals. I will go over them very quick ly. Access problems can be addressed easily and quickly at the simplest level , before serious disputes develop. Parents who are dissatisfied with a current agreement are given increased motivation to attend mediation to resolve problems instead of taking the matter into their own hands. As a result, childr en are less lik el y to become victims of parental disputes. Access accord ing to the current agreement will generally be maintained through out media tion or subsequent access disputes. Contempt charges as the "l ast resort" outcome of access assistance wiiJ be elimina ted by dealing with

Thu rsday, Dece mb er 15, 1988 the problems at lo wer levels of the courts. As a result, the potential for multiple contempt charges and the associated expenses will be reduced. The program is equally applicable throughout Manitoba, and not just those centres which have access to mediation services. ..

(2220) If I could stop here for a minute, I think that is of critical importance. Having taught in rural Manitoba and li ved in Winnipeg, I have always been amazed at the number of services that are available inside the City of Winnipeg as opposed to those outside. We took great pains to try to develop a program that was equally applicable to all Manitobans, no matter where they geographically reside. The program is equally appli cable to custodial and non-custodial parents.

I think it must be fair tha t what we are herefor is that both parents have a responsibility and both parents should be assisted for whatever probl ems occur . In summ ary, this program will encourage parents to cooperate with existing orders. The one thing we have not talked on and we spent a great deal of time on was cost effectiveness. We tried, we spent a lot of time, and we hope the proposals that we bring to you tonight are cost effective.

We have to keep in mind in this day and age that Government money is not overrunning, that there is a shortage of money, and we hoped by adopting a program and making these proposals that these programs would be economically feasible for the Government to undertake. In areas of supervised access, where allega tions of child abuse or other parental irresponsibili ties preclude the child's access to either parent pending investigation, we recommend that contact be maintained for some form of supervised access.

We recognize that those charges may be investigated and we recognize tha t a number of those alle gations are unfounded and tha t sometimes we feel the accused parent should have

Document details

Collection	Manitoba — Debates (Hansard)
Citation	34-1-la2
Type	hansard
Volume / chapter	34th 1st hansardpdf la2.pdf
Language	en
Format	pdf
Source	PROVINCIAL
Identifier	41b19e1274b00cb02c5a1f7a9e19cee4038b5297

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