Dear Mr. Kevin Pedersen,
Thank you for taking the time to contact my office on Bill C-560, An act to amend the divorce act (equal parenting).
It was a great privilege to receive your message Honourable Dr. Fry. Thank you for giving me a chance to discuss our children. I wish my own Member of Parliament would do so.
Consistent with the 1998 Joint Senate and House of Commons Committee on Custody and Access’s report For the Sake of the Children, I recognize that parenting is only an enhanced process when both parents are active participants; however, the Supreme Court of Canada has placed the best interests of the child as the foremost principle to be considered in such litigations.
First, our Divorce Act(Canada) is an application-based statute. At least one parent must apply for a divorce. In our case, neither parent applied. An application was entered for a child protection hearing, which Canada had a statutory duty to fund as a public case. The best interests of the child are supposedly always considered in any custody case, although public custody cases brought as child protection cases have an an exactly opposite definition of best interest of the child from private custody cases brought as divorces. In a child protection case the law says a state-funded lawyer is mandatory to find the complicated best interest of the child. In divorce the law says it’s easy to find best interest and no lawyers are needed. The vast majority of separated parents are self represented and false allegations in divorce have historically been high in hopes of creating state-funded child protection custody cases.
That being said, the Supreme Court declared in Gordon v. Goertz that “each child is unique, as is its relationship with parents, siblings, friends, and community. Any rule of law which diminishes the capacity of the court to safeguard the best interests of each child is inconsistent with the requirement of the Divorce Act….” I, along with both the Liberal Critics of Justice and for the Status of Women, oppose this bill with the concern that this legislation will only weaken the Divorce Act’s principle of representing the best interest of the child in favour of the rights of parents.
Let me say that again. The contradictory argument is so strong that the law on child protection custody cases, meaning the New Brunswick Minister of Health’s case against a single mom G.(J.). calls your law on private custody cases, meaning the Gordon’s divorce case, UNACCEPTABLY RISKY! The exact wording of the G.(J.). warning, which as you may know Dr. Fry, was upheld by the Supreme Court of Canada in 1999, states:
Without the benefit of counsel, the appellant would not have been able to participate effectively at the hearing, creating an unacceptable risk of error in determining the children’s best interests and thereby threatening to violate both the appellant’s and her children’s s. 7 right to security of the person.
~ The Honourable Lords and Ladies of the Supreme Court of Canada As Per Lamer C.J. and Gonthier, Cory, McLachlin, Major and Binnie JJ
From a health perspective, every child involved in a protection hearing or divorce hearing risks a permanent loss of parenting time and faces a combination of stigmatization, loss of privacy, and excessive, unnecessary disruption of family life sufficient to constitute a restriction of the child’s security of person. While this child harm may not always rise to the level of psychiatric illness for every child in court, it is certainly greater than ordinary stress or anxiety and constitutes a serious interference with the psychological integrity of the child. Honourable Dr. Fry, Canada’s Divorce Act version of best interest of the child is arbitrary child harm and unconstitutional.
The Canadian Bar Association strongly opposes this bill on the premise that “the best interests of the child are not always met by exactly equal ongoing parental involvement. Each case must be evaluated on the facts and each child treated as an individual.” After all, family circumstances vary considerably from family to family, as does the interests of the child. Placing a presumption on the courts of equal time-sharing only seeks to overly simplify a personal matter that has no “cookie-cutter” mold to fit. While the considered bill seeks to remedy such concerns by making the assertion that judges may go against the presumption if the child would be substantially better off; however, there are legitimate concerns that rebutting such a presumption would not be easy due to the burden of proof that would be required to do so substantially.
The Canadian Bar Association and all other self-serving trade unions, like the British Columbia Teachers’ Federation, trying to use outdated arguments for monetary gain, have been completely discredited. To the contrary, the Honourable Justice Brownstone of Toronto has stated we must get inside our Middle Schools and confront the parental alienation of eleven year old children. How could so much child harm be happening in front of teachers and judges, who claim they have a duty to report child abuse? I can tell you, Dr. Fry, that teachers say it’s hard to tell when the duty to report exists and judges tell parents they are not there to answer court users legal questions.
No one I know calls the Great Melting Pot of Canada the land of the cookie cutter. Canada is proud of it’s diversity and our cultural mosaic has nothing to do with the child harm caused by our arbitrary, unconstitutional Divorce Act. Countries around the world are reforming their family laws.
Tasha Kheiriddin of the National Post has also voiced her concerns on this matter by invoking a report by the Australian government that provides that equal shared parenting leads to the “prioritization of parents’ rights over those of their children” and another report by the University of Virginia that found that 43% of babies “with weekly overnight visits to the other parent were insecurely attached to their mothers, compared to 16% with less frequent overnights.” In short, there is a considerable amount of literature and discussion that disproves that equal shared parenting will address the best interests of the child.
I am disappointed you would try to McIntosh me. Jennifer McIntosh and Samantha Tornello have been strongly discredited, Ms. McIntosh for having political motives and Dr. Tornello by the vast majority of medical researchers, including Dr. Warshak and 110 of the world’s top experts. This Consensus Report appeared in February 2014 in a prestigious journal published by the American Psychological Association. With all due respect Honourable Dr. Fry to you and all of Canada’s other 307 Honourable Parliamentarians, I worry that our whipped representatives may not speak for all women, or all lawyers, or all Liberals (the party of the Charter), or all media, or the majority of medical scientists, or even the majority of their Canadian constituents. The situation is so grave for children, delay and political debate seems like further abuse.
Bill C-560 fails to truly improve upon the current Divorce Act and will instead only sacrifice the best interests of the child in order to appease the rights of parents. Our country can no doubt do better than that by working to improve existing laws that allow judges the capabilities of considering the interests of the child on a case to case basis.
The constitutional remedies of Bill C-560 are reasonable and much more so than the chaos created by the current Divorce Act. Here’s a test for you, Dr. Fry. There are approximately a dozen complicated factors to consider when assessing the best interest of a child and our governments are in the worst debt since 1930, and some provinces are in the worst debt in Canadian history. How do you intend to pay for these expensive, complicated three-week divorce or child protection hearings? Since the vast majority of separated parents are self represented, how do you intend to run fair trials for children without lawyers? Do you agree that your message that divorce is all in the best interest of children, ignores the fact it is all about money and family court judges never consider the children instead following a definition of best interest that is arbitrary, unconstitutional, and exactly contrary to the definition of best interest in child protection cases. In my own family a British Columbia court labelled our child protection hearing a divorce hearing, even without an application for divorce, to save money and to avoid the difficulty of finding our children’s best interest.
Once again, I would like to thank you for contacting me on this issue. While I do not believe that C-560 truly improves upon the lives of children involved in such matters, I do believe that this is an issue that should be appropriately addressed by placing children first.
I believe shared-parenting after separation is in the best interest of children as found by a strong consensus of medical professionals. I agree with you that this issue will finally be addressed by placing children first. Thank you again for the privilege of discussing this important children’s health issue. I remain sincerely yours, Kevin Pedersen, Abbotsford, B.C.
Hon. Dr. Hedy Fry P.C., M.P.
Liberal Health Critic
La fête des bulles d’amour – le 25 avril, 2014
Ensemble, nous sommes capables de beaucoup.
Il n’y a que 337 jours avant la journée de sensibilisation!
Bubbles Of Love Day – April 25, 2014
Together We Can Make A Difference
Only 337 days till Awareness Day!
Sean Casey, MP for Charlottetown
Justice spokesperson for the Liberal Party of Canada on Best Interest
Thank you for your email on Bill C-560 which is currently before the House of Commons. From the outset, I wish to convey to you that I have reviewed the Bill thoroughly and I have sought and heard advice from individuals and groups both for and against this initiative.
As Justice spokesperson for the Liberal Party of Canada, it is my duty to assess any given Bills that touch upon the Justice portfolio.
After careful consideration of the facts, I forwarded my views to my colleagues in our parliamentary caucus. The Liberal Caucus had the opportunity to consider the Bill, from a perspective based in facts, and in this instance, taking into consideration the particular sensitivities that arise when dealing with divorce.
After much discussion in our Caucus, it was recommended that the Liberal Party not support this Bill in its current form. I have included a link to my speech on this Bill given in the House of Commons during this Bill’s First Hour of debate. I provide it for your review and to give you a more in-depth perspective of my concerns with the Bill.
The concerns I raised in my speech, specifically, include the “best interest of the child” approach, which is a view that is shared by the former Justice Minister Rob Nicholson as well as the current Conservative Justice Minister, Mr. MacKay. These two senior Conservative Cabinet Ministers have clearly expressed their concern about changing the standard from the “best interest of the child” to one of equal parenting.
As you likely know, there will be a Second Hour debate on this Bill soon. After that Second Hour debate, there will be a vote at Second Reading. It is not clear whether the Bill will pass Second Reading and make its way to Committee. Should it pass Second Reading, and then go to Committee, I can assure you that the legislation will get a fair and open hearing, from all sides and all parties including an opportunity to hear from experts.
I realise that you support this Bill. I also realise that my opposition to the Bill, and that of my colleagues in the Liberal Party, may be of some disappointment to you. I applaud your efforts to bring forth your views on this important issue. It is the proper role of Parliament to debate tough issues, and more importantly, that the debate be robust and respectful of differing opinions.
Again, thank you for your time in writing me and for making your voice heard.
A Matter of Child Safety
The Divorce Act Creates An Unacceptable Risk To Children
Dear Honourable Mr. Casey,
It was an honour to receive your email regarding the position of the Liberal Party of Canada on Bill C-560. It would be interesting to know if Mr. Trudeau intends to whip the vote on this Bill. If the Bill goes to committee I have already written Mr. Vellacott to express my willingness to be a committee witness.
I was only recently separated and our children were very young during the original For The Sake of Our Children Committee hearings. I never managed to testify then. Later, the seemingly permanent Justice Committee hearings were not as widely advertised. I have never testified yet. The ongoing nature of all these justice hearings would seem to put to rest your suggestion that family law will not reform, when it has done nothing but make considerable corrections and reforms since those early days.
With all due respect to you and all our Honourable Members of Parliament, I hope I can further address your concern regarding either the form of this Bill or the name of the man who brings it. The retroactive form is reasonable given the Constitutional nature of these proposed remedies. Your concern that many parents might try to re-connect with their children if given a chance expresses the exact purpose of the Bill quite nicely. As to Mr. Vellacott, like the Prime Minister I lend my full support to Mr. Vellacott’s Bill. I have called it Canada’s Bill because it comes with solid grassroots support for the benefit of our children.
In preparing for the May 7 vote for Equal Shared Parenting I hope you and our other Honourable Members of Parliament will ask yourselves one question: Is it a grave error in law – a palpable and significant material error in law – and a serious violation of the Section 7 Charter right to life, liberty, and security of person that the Divorce Act(Canada) creates an unacceptable risk Canada’s Honourable Courts will NEVER be able to determine the best interest of our children?
Here are three examples of the irrational, arbitrary and hurtful outcomes for children from the Divorce Act.
1) Many parents, like me, are prevented from parenting on their holy day, or rest day each week, which prevents their children from learning about their religion or even fully learning about their parent. This is an egregious error in law and a serious violation of children’s fundamental Charter rights to freedom of religion, expression and association, requiring Parliament’s immediate and retroactive remedy.
2) Many Canadian parents, who like me, were once shift workers are legally declared permanently unfit parents, but only after they are separated. Sometimes, even when their co-parent is also a shift worker, but not declared unfit. This creates parentlessness and is a serious violation of both the parent’s and children’s Section 15 Charter equality right to equal protection under the law requiring an immediate and retroactive remedy.
3) Almost all Canadian parents found by a family court to be unfit parents are prevented from rehabilitating themselves and are considered permanently unfit. This is both irrational and a serious violation of Canadian’s Section 7 Charter legal rights to reconsideration which creates the worst possible outcome for our children, either losing one or both parents permanently. This absurd, devastating and unequal outcome for children caused by the Divorce Act requires an immediate and retroactive Constitutional remedy either by Canada’s Parliament or by Canada’s Guardians of the Charter. Any Honourable Canadian Judge is a Guardian of our Charter of Rights and Freedoms.
Public Law vs Private Law Custody Cases
Canada has always contended that there is a difference between the public law found to be unlawful in the G.(J.). case and the private law found to be lawful in any Canadian divorce case. The landmark case which the Honourable Attorney General of British Columbia relied on in March 2014 to prove this difference was De Fehr v. De Fehr, 2002 in the British Columbia Court of Appeal. Although all custody hearings engage serious interests, the seriousness varies according to the length of the proposed separation of parent from child and the length of any previous separation. Custody hearings in divorce proceedings can result in a permanent separation of parent from child.
The question is not is the best interest standard in public law cases, like G.(J.), the same as the best interest standard in private law cases, like De Fehr. All Canadian law cases are heard following the same rules of court, the same principles of law, and under the same Constitution. All the fundamental rights and responsibilities of every Canadian citizen expressed in our Constitution are meaningless – even our MOST fundamental Section 2 rights are meaningless – unless our Section 7 legal rights to a fair process are first upheld. Further, it is unethical for the British Columbia Minister of Children and Families to avoid public custody law cases by threatening protective parents with child abandonment charges if they do not bring a private custody law case that cost as much as $100,000. The Honourable Minister Lois Boone gave me ten days to bring on a private custody case that she had a statutory duty to bring as a public case. Finally, both private law and public law custody cases have been problematic as noted in the 1995 Gove Inquiry into Child Protection and the 2014 ruling of bad faith against the London-Middlesex Children’s Aid Society.
“This was exacerbated by the actions of the Society, some police officers, some women’s groups, a school board and her employers . . . many of whom accepted without any level of scrutiny the (woman’s) self-reports.” ~ Superior Court Justice John Harper on the largest financial penalty ever dished out to a child-protection agency in Ontario
So the burning question is how can we ever find the best interest of children in custody cases with poorly trained judges and untrained, self-represented parents and still claim we followed the high standard set out in the G.(J.). case or even followed elementary principles of due process. Since we are not going to provide state-funded lawyers for all custody cases, then Bill C-560 proposes we follow the the rebuttable presumption of equal parenting time if parents cannot agree on their own parenting plan (which can divide time and responsibility as the parents wish). I believe this standard of reduced conflict will work for most Canadian families, especially now that society frowns on such scandals, and being a matter of child safety.
It was very ethical of you to assure me that our Equal Shared Parenting legislation will get a fair and open hearing, from all sides and all parties including an opportunity to hear from experts. As we have seen in G.(J.). not all hearings are open and fair. If you are successful in blocking Bill C-560, I hope to have my Constitutional Question certified over the objections of the Honourable Minister MacKay, although the only expert I can afford is myself.
Again, it was an honour to hear from you. Thank you for taking the time to try to help our children.
La fête des bulles d’amour – le 25 avril, 2014
Ensemble, nous sommes capables de beaucoup.
Il n’y a que 6 jours avant la journée de sensibilisation!
Bubbles Of Love Day – April 25, 2014
Together We Can Make A Difference
Only 6 days till Awareness Day!
The Family Law Reform Email Campaign
All 308 Members of House of Commons Made Aware of Bill C-560
I participated in an email campaign to make every Canadian Member of Parliament aware of parental alienation and Bill C-560 which will be before our government in January. You’re probably thinking that didn’t get me too far and you’d be right. All I got was nearly one hundred “Out of Office” or “Absence du bureau” responses. Some said, “Merci d’avoir contacté le bureau parlementaire du député… followed by the name of some honourable parliamentarian. Some were written in English, some in French, and some in both official languages. It would be more helpful if each automated response contained the Honourable Member’s website information, if email campaigns are so common.
Joy Smith’s automated response said that because she receives so many email campaigns she posts her responses to each campaign on her website. If you go to Joy’s website you will see her top three issues are: the conflict in Syria, the Senate Scandal, and Natural Health Products. While those are pretty important issues for all of us, you can tell that family law reform is not on her radar.
Ed Fast’s most recent website posts are about Canada’s pro-trade plan, Abbotsford’s nine green technology companies, and Ed’s travel disclosure report to the end of October 2013, but nothing about Family Law Reform or my Charter Challenge, even though I am his constituent.
Bud Loewen is involved in one of Abbotsford’s green tech companies, Columbia Cabinets, which makes kitchen countertops. Eight other Abbotsford companies will share the $840,000 funding from the Digital Technology and Pilot Program (DTAPP) and the Western Innovation Initiative (WINN). Bud was also the Parent Advisory Council President at Clayburn Middle School for two years till 2008. Later Bud was appointed District Parent Advisory Council President by Rhonda Pauls before she resigned to run for the school board in 2011, and before she voted with her fellow school trustees to give themselves a 5% pay raise during the biggest economic recession since 1930, while 3,000 Abbotsford residents rely on food banks, and we struggle for solutions to homelessness.
If a law is complicit at all, it is not law. ~ Professor Allan Young, Osgood Hall, York University, Toronto argued the Bedford Case
How To Make A Constitutional Argument in Canada
Lessons From The Recent Constitutional Challenge
Canada’s Constitution is in a living tree. Our highest law is alive and grows as we use it. The majority of us are divorced and being crushed by Canada’s irrational and arbitrary family laws. Our elected officials are reluctant to help their constituents and some agents of the crown are covering up family law abuses. Let me take you through the arguments of a Charter Challenge.
The Divorce Act of Canada has a social purpose. The laws that support our Divorce Act, for example the Employment and Assistance Act of British Columbia, the Family Maintenance Enforcement Act, and the Child, Family, and Community Services Act of British Columbia are also said to have social purposes. While much is made about how divorce is solely within the jurisdiction of our Federal government, it is clear to us all that the provinces, and even our cities, work together toward building a civil society.
In the Charter Challenge that brought down Canada’s prostitution law, it was proposed that Canada’s Constitution has at least these three core fundamental values:
- the protection of the vulnerable, in the case of divorce, solely children’s protection
- the protection of human dignity, in the case of divorce, solely children’s dignity
- the prevention of gender inequality, in the case of divorce, solely children’s equality
As individual Canadians how do we talk about a bad law to prove to the world it violates our Constitution? Canada’s prostitution law was called bad because, while it’s social purpose was to protect civil society from sex work on the street corner, it lead to tragically unnecessary deaths. You can listen to the lawyer who won the Charter Challenge for sex workers here as he explains his three constitutional arguments:
- The law was arbitrary. Some laws, like the Divorce Act (Canada) are so irrational, they do not even begin to achieve their purpose. The lawyers for sex workers lost this argument, but I would argue that the purpose of our Divorce Act is to help separated families save their money and their children. Many have argued the law tragically does the exact opposite, sometimes becoming an agent in the parental interference and alienation the court itself first identified and declared the primary concern for the children in the case. Lawyers have argued if a law is complicit AT ALL, it’s not law.
- The law was overbroad. Some laws, like the Divorce Act (Canada) are so vague they could refer to any behaviour. These laws extend into innocent behaviour and sweep up anyone unfortunate enough to have these irrational laws used against them. Unlike ordinary laws, divorce never ends and litigation often continues until the death of one of the parties. I could easily assert, although I cannot prove, suicides and murders have resulted from volatile and irrational family law procedures.
- The law was grossly disproportionate. Some laws, like the Divorce Act (Canada) are so bad that they contribute to mortality and morbidity, and increase the risk of death and harm. When a law is this bad it’s said to be “grossly disproportionate,” meaning it does more harm than good.
No one is saying that Parliament cannot permanently outlaw some unfit parents from parenting, only that the method of choosing which parents to permanently outlaw is irrational. For example, rarely an unfit parent is given a wonderful opportunity to rehabilitate themselves. While this is a compassionate act toward the parent, it is irrational and arbitrary act toward their children. Why don’t all unfit parents have a legal chance for rehabilitation if a medical chance for rehabilitation exists? If the reason that a parent is found unfit is because their shift work makes them always tired or never home, the Employment Insurance Act specifically calls for “job retraining for family reasons.” To avoid 50/50 equal parenting Canada’s federally-appointed Supreme Court judges have had to violate our Employment Insurance Act or face retraining every separated shift worker in Canada with young children. Shift workers are perfect parents while married, and only become “unfit” when separated. Like our prostitution laws, our family laws have been complicit in the deaths of Canadians and our Divorce Act is not law.