Law Times

Law Times • may 5, 2014 Page 7 www.lawtimesnews.com COMMENT Feds wage war on transparency, impartiality at tribunals ill C-23, the Conservative government's so-called fair elections act, may con- tinue to draw the greatest ire of experts and editorial writers, but bill C-31, the latest budget implementation bill, provides the freshest evidence yet of its desire to dispose of transparency, impartiality, and democracy altogether. Buried in the back half of the 375-page bill and unannounced until its appearance on March 28 is a provision to create a new office, misleadingly titled the administrative tribunals support service of Canada, that would strip all federal tribunals of their au- tonomy and place them under the control of cabinet. e arm's-length relationship that currently exists between the government and the Canadian Human Rights Tribunal, the Public Service Labour Relations Board, the Public Servants Disclosure Protection Tribunal Canada, and eight other quasi-judicial bodies would in effect disappear. e change would cast serious doubts as to the impartiality and independence of these tri- bunals that determine the outcomes of, among other things, discrimination claims, pay equity settlements, labour disputes, and even allegations of government wrongdoing. What does any of this have to do with the budget? It apparently has nothing to do with it as the government hasn't said how much money it will save by creating the new office. As with all omnibus bills introduced by Prime Minister Stephen Harper's govern- ment, the Conservatives will smuggle anything and everything on their agenda they can into law under the cover of the budget without prior notice, discussion or debate and on the slightest pretext or none at all. To a government already famed for secrecy and con- centrating power in the fewest hands possible, the new administrative tribunals support service of Canada act is the equivalent of doubling down on the judicial checks and balances that would ordinarily defend a democratic government from accusations of creeping despotism. Under the proposed legislation, any Canadian seeking adjudication of a discrimina- tion claim the Canadian Human Rights Tribunal routinely reviews now risks having the outcome determined not by an impartial, arm's-length, quasi-judicial body but ulti- mately by a tribunal subject to the whims of a deputy head appointed by and account- able to the prime minister and his cabinet. What chief administrator, as the bill styles the new overlord of tribunals, would risk contradicting the prime minister? If all of this sounds a bit familiar, it's because few people appointed by the current prime minister have shown the courage of former parliamentary budget officer Kevin Page to publicly disagree with their boss and act with the independence their office truly demands. Bill C-31's proposed centralized office casts serious doubts as to the independence of tribunals. Had this kind of control existed a few years ago, would one of the largest pay-equity cases in Canadian history have gone in favour of the nearly 1,000 nurses who brought the matter forward? e nurses who work as medical adjudicators for the Can- ada Pension Plan disability program filed a landmark gender discrimination complaint with the Canadian Human Rights Commission in 2004 and, aer an arduous eight-year fight, arrived at a settlement valued at $150 million. Are administrative efficiencies worth putting at risk one of the pillars — the impar- tiality and autonomy of our judicial system — of our democracy? Some, like Minister of Justice Peter MacKay, may view this as simply the Harper gov- ernment saving taxpayers' money. If so, it will come at a far greater cost to all Canadians than the amount spent creating the abjectly named administrative tribunals support service of Canada. By allowing the government to exert even the appearance of greater control over the affected tribunals, Canadians risk losing not only transparency and im- partiality but the appearance of both. To a government renowned for its secrecy and partisanship, this may seem unsur- prising. But it's especially disturbing when one considers the Public Servants Disclo- sure Protection Tribunal that reviews the complaints of government whistleblowers. Knowing now what we do about the role played by the prime minister's office in the Senate expenses scandal, the hidden costs of the F-35 fighter jets, and the real impact of so-called back-office cuts to government programs and services, do we really trust this government to be honest when it comes to investigating and reporting alleged mis- spending, human rights violations or complaints about inadequate health and environ- mental protection? It's a question every democratically elected MP and every voter should be asking. LT uDebi Daviau is president of the Professional Institute of the Public Service of Canada. Time for Canada to embrace equal shared parenting rom the 1998 Senate special joint committee recommendations to the present, nu- merous reports and statements concerning the family law system have recognized the need for fundamental reform as it relates to contested custody cases. Bill C-560, a private member's bill proposed by Conservative MP Maurice Vel- lacott, is a reasonable and balanced proposal to address the current broken system. Parlia- ment will debate bill C-560 on May 7, followed by a second reading vote. e principal change to the Divorce Act, with the goal of reducing incentives for bitter and expensive litigation over children, is the proposal for a rebuttable presumption that equal shared parenting would support the best interests of the children unless a party can establish that some other parenting plan would substantially enhance those interests. Section 16(10) of the Divorce Act, as amended in 1985, calls for a consideration of max- imum contact with both parents. However, experience with reported decisions to date has shown that the great majority of decisions are still following a primary and secondary par- ent model with secondary parent time-shares running from 16 per cent (alternate two-day weekends and some mid-week contact for a few hours) to 35 per cent (alternate three-day weekends and one mid-week overnight) aer accounting for equal vacation time. However, social science research overwhelmingly supports the more current un- derstanding that children need, benefit from, and want two primary parent relation- ships aer separation rather than one parent and someone they go to visit. Among the leading experts globally is Prof. Ed Kruk of the University of British Columbia. He recently published a book with a synthesis of the rationale for equal shared parenting and a listing of the leading global peer-reviewed research. ere's wide acceptance that children deprived of meaningful relationships with one of their parents are at greater psychological risk even when they're able to maintain relationships with the other parent and that shared time and parenting between two parents works. Shared custody agreements have also been shown to reduce parental conflict and increase co- operation over time. Bill C-560 recognizes that the current effort to specify with precision a specific time- share between a primary and secondary parent isn't logically or empirically justified. Cus- tody litigation seeking to marginalize one parent has no discernible benefit when mea- sured against the financial and emotional cost and the impact on the children of litigation. Public opinion polls over many years have consistently shown up to 80-per-cent support for equal shared parenting across all demographics, regions, and political affil- iations. Support among Canadian women is indistinguishable from men, and a global group called Leading Women for Shared Parenting is assisting in efforts in Canada and elsewhere. Perhaps this is because, according to Statistics Canada in 2012, the employ- ment rate for women with children under six years old was 67.8 per cent (up from 31.4 per cent in 1976) and 79 per cent for women with children from six to 15 years old (up from 46.4 per cent in 1976). Despite the development of both permissive and mandatory mediation, collabora- tive law organizations, and parent education programs, the family law courts remain overburdened with substantial backlogs due to child-related disputes. is problem, together with the associated costs to taxpayers and parents, has only gotten worse over the years. e cost of litigation has led to significant advantages for wealthier parents and those more able to represent themselves. e opposition to equal shared parenting frequently comes from divorce industry pro- fessionals who might have difficulty reviewing bill C-560 objectively since one of the main goals and likely effects of the Divorce Act amendment is to reduce the current plague of custody litigation. However, many studies identify the very existence of the custody litiga- tion itself as the primary concern regarding the effect of divorce on children. In response to the active discussion in the media and on behalf of several shared parenting organizations, I prepared a document on the myths and facts about bill C-560 that dispels the rhetoric and confusion put forth in opposition to it. In addition to the public support and strong social sciences empirical support, there are several key facts to consider: • Bill C-560 will foster settlements and reduce litigation due to the requirement that a parent seeking primary parent status must establish that disproportionate parent- ing time will substantially enhance the best interests of the children, a principle that remains the focus under bill C-560. • Bill C-560 focuses on the right of the child to know and love two primary parents in accordance with the leading research on the best outcomes for children of divorce and Canada's commitments under the United Nations Convention on the Rights of the Child. • Mediated, consensual or, if needed, adjudicated custom solutions are still available under bill C-560 where there is demonstrable merit in light of the unique aspects of the particular family. e proposed legislation does not impose a one-size-fits-all solution; it merely provides a starting point for adjudication based on what works for most children and then still allows for an examination of the unique aspects of a family to see if a disproportionate time-share is justifiable. • Decision-making powers can fall to one parent for good reason even though child time-share is equal or close to equal. Bill C-560 is an urgently needed, balanced response to a significant social problem that is familiar to anyone with exposure to child custody litigation. e public over- whelmingly supports the equal shared parenting solution. Parliament will soon speak on the issue. LT uBrian Ludmer of LudmerLaw is a business and family law practitioner and was among the draers of bill C-560. BY BRIAN LUDMER For Law Times BY DEBI DAVIAU For Law Times F B u SPEAKER'S CORNER UNREPRESENTED LITIGANTS A DANGER TO LAWYERS Call me a cynic, but the editorial car- toon (April 7) showing a self-represented litigant about to have a ladder pulled out from under him by a wily lawyer gets it quite backwards. As every lawyer who has dealt with a savvy self-represented litigant knows, the person in danger is the lawyer acting for a client. Rightly or wrongly, the judicial system grants every indulgence and privi- lege to self-represented parties while cut- ting no slack to the erring counsel who, for example, misses a filing date. Heaven forbid a lawyer who tries to argue a self- represented litigant has failed to follow a rule or practice direction. No, the person standing on a trap door with a noose around the neck isn't the self- represented litigant but the lawyer. James Morton, Steinberg Morton Hope & Israel LLP, Toronto u Letter to the editor

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