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Submission to the Royal Commission on Family and Children’s Law (B.C.)

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Introduction

The Board of Directors of the Association has authorized the preparation of this submission after careful scrutiny of the Commission’s Reports and Working Papers. Our recommendations are drawn both from such scrutiny (for example, of the Family Court proposals), and from already established positions in areas the Association hopes the Commission will cover (for example, religious freedom in public schools). The need to provide a statement for the Commission has kindled serious discussion at Board meetings on one issue already under discussion there—namely, the very difficult one of children’s rights. Partly as a result, this part of the submission will be late arriving.

In summary, the contents of the brief spell out the Association’s belief in the necessary integrity, separation and openness of the courts, the need for individuals to be protected from administrative decision making by appeal or by judicial review, the right to privacy, and the right to equal representation before the law (Family Court, Adoption and Protection of Children); our belief in freedom from sex discrimination (Matrimonial Property, Change of Name); in freedom from discrimination by mental capacity and by too broad a notion of affinity and consanguinity (in the area of Marriage); freedom from compulsory public schooling and from religious exercises in public schools; freedom from age discrimination before the police, and in sexual relations, and freedom from discrimination by birth (Rights of Children).

The format is a list of recommendations organized into sections (Family Court, Matrimonial Property, etc.) with references at the head of sections to the relevant Association briefs and reports to the Board. These are collected, in order, in an appendix.

Recommendations

Family Court

      [See

On the First Report of the Royal Commission on Family and Children’s Law, 7 February 1974

      . 26 April 1974; and

Data Files

      . Spring 1974; and

In Favour of Open Family Courts

      . July 1974.]

 

  1. A firm distinction should be maintained between the Court and associated social services. If the purpose of the Family Court is to cure what some conceive to be social ills, then it is not a court at all. If the purpose is to protect people’s rights, then the social services must be clearly auxiliary, voluntary and non judicial. The reasons for this are to avoid the position whereby administrative persons come to make judicial decisions, and the protect the privacy of the parties to the court proceeding. The latter requires not just the extension of confidentiality to what is said between litigant and counsellor (letter from Justice Berger to BCCLA president, Reg Robson, May 23rd, 1974), but adequate safeguards around the use of data files (see point 5).
  2. A firm distinction should be maintained between the Court and the community. While we appreciate the Commission’s resolve both to make legal action a last resort, and to bring the community into play (First and Second Reports of the Commission), lay panels achieve these ends only at a cost to the integrity of the Court and the privacy of the parties. Better that the community should be involved before any matter reaches Family Court, at street or community group level. The organization of this, however, may or may not be the Commission’s business.
  3. There should be machinery for providing representation for all parties, not just for children (Family Advocates).
  4. Family Courts should be open. A decision to close the court should be made only in unusual circumstances, using the same rationale as in other courts.
    1. The specific purposes for which social-service-type information is gathered should be made clear and available to the public, so that people may judge whether such purposes are legitimate ones.
    2. The relation between the information sought and the purposes for which it is sought should be clearly demonstrated, so that the amount of “fishing” can be minimized.
    3. In determining whether a particular item of information should be “gathered,” the potential damage to persons because of misuse, inaccuracy or unreliability should be taken into account. In particular, unless the information is highly reliable it should not be compiled and used as a basis for action.
    4. All information collected about individuals should be divulged to those individuals and opportunities provided for them to refute it. There should be the opportunity for frequent and regular review. Information should be destroyed when it has served its purpose. (See (a) above.
    5. The persons to whom the information will be made available must be clearly identified and procedures developed which guarantee that others will not be able to obtain the information.

    Matrimonial property

    [See On the First Working Paper of the Working Group on Matrimonial Property, 26 February, 1974. 26 April, 1974.]

  5. The Association supports the recommendations in the Working Paper on Matrimonial Property to adopt a marital property regime with the following characteristics:
    • Property acquired after marriage by either party becomes community property and each party owns half of it
    • The parties to the marriage manage and control the community property jointly.
    • A couple cannot make an enforceable contract to adopt some other property regime.

    Change of Name Act

  6. The section in the Act which discriminates against married women should be repealed (letter of David Cruikshank to Ms. Ann Robertson, 28 July, 1974).

    Further recommendations in the area of marriage The following two recommendations are offered more tentatively for the Commission’s consideration.

  7. Support and alimony payments shall be made to a central provincial fund from which payments are made on a regular basis with deficit due to non-payment made up from public funds.
  8. Degrees of prohibited affinity and consanguinity for marriage which are not blood relations (such as son’s wife) should be removed from the prohibited list.
  9. We recommend that amendments be made to the Human Rights Code of B.C. and the Landlord and Tenant Act to prevent discrimination against single parents in acquiring housing accommodation, particularly of a low-cost sort.

    Alternatives to compulsory public schooling

    [See brief of same title, February, 1974.]

  10. Section 121 of the Public Schools Act of B.C. should be amended to place the onus on the Crown to prove by an objective test that education offered as an alternative to compulsory public schooling is of an unacceptably low standard; and, if such cannot be proven, the alternative education be presumed to meet the requirement of the Act.

    Religion in public schools

    [See brief of same title, May 1969.]

  11. Section 167 of the B.C. Public Schools Act should be amended to prohibit the observance of any religious practices or exercises in the public schools. At the same time, the amendment should make clear that the academic study of religion should be permitted and encouraged.

    Adoption and protection of children

  12. To amend the Adoption Act and the Protection of Children Act, either the Courts should be put back into a real decision-making role, or there should be an appropriate appeal tribunal from decisions of the Superintendent of Child Welfare; this body could be the court. As in (2) community involvement is best had at the local level before the Courts are involved. That is, while we agree with the Commission’s general orientation to moving resources to the family rather than apprehending the child, this is better done locally than by a court conference (Protection of Children report).
  13. The question of adopted children seeking out the identity of their natural parents (Justice Berger’s letter to the Sun, July 22nd, 1974) is not a clear civil liberties issue. In such circumstances where a choice has to made between the rights of different groups of persons one has to make some kind of judgement as to which right is more important on balance, and should therefore be protected. We would recommend that this decision should be made by a judge, especially where a minor in involved. A registry system which provided information only when all parties involved are agreeable and which is totally confidential in all other respects could provide a balance which would appear to protect the rights of all concerned and not violate any civil liberties principles.

    Rights of children

    A full brief is now being written on this topic. It should be ready by the end of September, at which time we shall submit a copy to the Commission. In the interim we offer the following recommendations:

  14. (See Interrogation of Minors in the Schools. Revised January, 1972.)
    1. No student should be interviewed at school by police without prior consultation with at least one of the student’s parents or guardians.
    2. Such a parent or guardian should be present (as is required in the case of juvenile court) at such an interview.
    3. In no case should a principal or teacher assume this parental responsibility.
    4. Students are clearly subject to normal citizenship responsibility in assisting police, where it is established that the student involved is not subsequently to be charged.
    5. This policy should be made known to students, parents, principals, teachers and police.
  15. All children born in British Columbia should be of equal status regardless of the marital state of their parents. A father who acknowledges paternity is entered on the birth certificate and the child inherits equally from both parents.
  16. The age of consent for sexual acts, heterosexual or homosexual, shall be sixteen.

Appendices

Appendix A Report to the Board on the Royal Commission on Family and Children’s Law, 7 February 1974. 26 April, 1974 This report was tabled in the legislature and resulted in the introduction of Bill 49—The Unified Family Court Act. The Bill will allow the establishment of a pilot project unified family court in the South Fraser Judicial District (Surrey-Delta-Richmond).

The report and the resulting Bill present two significant civil liberties problems. The first results from provisions to remove prosecutors from Family Court and substitute “Family Advocates”. The advocates will advise court staff on legal matters, occasionally advise citizens seeking court services, and will represent children in maters in which the judge believes the child needs representation. The advocate will not represent either applicants or respondents in Family Court matters. This means that all parties to actions (except children) will have to retain counsel of their won or seek legal aid if they want or need legal representation. The old system of providing counsel only for applicants presented obvious problems for respondents and often outraged applicants in Vancouver who were not allowed to retain private counsel if they wished. The proper solution hardly seems to be to deprive everyone of staff counsel. The implication of the proposed system are:

  1. Those who fall between legal aid eligibility and real ability to pay private counsel will be unrepresented.
  2. Those who can afford private counsel will face the prospect of paying for frequent court appearances, since Family Court matters tend to go on forever with four or five appearances a year not uncommon, or go unrepresented.
  3. Those eligible for legal aid while seemingly in the best position may have to be content with counsel unfamiliar with family matters.

Thus the pilot project structure may well interfere with people’s access to adequate representation in often complicated mattes and result in inadequate protection of their rights.

The second concern is more general. The report and its reflection in the Bill do not seem to have decided whether Family Court is a court or a massive social-mental health clinic. (The Federal Law Commission’s Working Paper on Family Court has the same problem.) While it seems good to provide counselling for families in difficulty, we cannot help but be disquieted by the close association of such counselling with a court of law. The court should protect people’s rights without regard to a social worker’s opinions about whether the enforcement is “good” for the people involved. The conception of the pilot project is so vague that we think careful consideration must be given to the relationship of social services to the court and to the purposes of the court. If the purpose is to cure what some conceive to be social ills, then it is not a court at all. If its purpose is to protect people’s rights, then the social services must be clearly ancillary, voluntary and non-judicial.

Appendix B:
Draft Brief on Data Files Spring, 1974

“The Committee on Privacy of Justice,” the British Section of the International Commission of Jurists, published their report on 16 January, 1970, in which they concluded that the balance between the freedom of the individual to be left alone and the freedom of others to find out about whatever they legitimately need to know, had become unfairly weighted against the individual, “and that a new legal structure is required so that a proper balance may be restored.” (“Privacy and the Law,” quoted in the Report of the Committee on Privacy (Younger Report), London, Her Majesty’s Stationery Office, July 22, p. 197.

Over the past several years the problem of privacy has been exacerbated because of developments in surveillance devices and computing technology. Improved surveillance devices make privacy invasion much easier and at the same time more difficult to detect. Computers make the recording, storing, classifying and retrieval of information convenient, comprehensive, fast and efficient. The cost of utilizing these techniques is becoming quite inexpensive. In pure economic terms the very fact that cost is decreasing rapidly over time suggests that more information gathering can be justified.

As a consequence there is pressing need for legislation in a variety of areas to protect the privacy of individuals where data files are established. There follow points to be considered in the drafting of such legislation.

  1. The specific purposes for which information is gathered should be made clear and available to the public, so that people may judge whether such purposes are legitimate ones. Legitimacy can be thought of as a question of cost. For many government files—such as census, tax (income, property), automobile, voter’s lists, medical and police files—the question is often one of benefit to the government versus cost to the individual, where the latter can be defined as a loss of property. Publicizing the purposes of files prompts public scrutiny, and scrutiny safeguards legitimacy.
  2. The relationship between the information sought and the purposes for which it is sought should be clearly demonstrated, so that the amount of “fishing” can be minimized.

    Relevant information is defined as information that makes a difference in the decision process. Information that will not affect the decision is of no value to the decision maker. Thus it is important to relate the information to be gathered to the purpose legitimizing the data file. The major problem encountered in the relevancy area is that it is becoming increasingly more inexpensive to collect information. As the cost of collecting information decreases, those who wish to create the data file will be tempted to ask for more information. There is some point beyond which data collection becomes a “fishing expedition.” The relevancy test is designed to prevent this.

  3. In determining whether a particular item of information should be “gathered” or not, the potential damage to persons because of misuses, inaccuracy or unreliability should be taken into account. In particular, unless the information is highly reliable it should not be compiled. In credit, bank, employment, educational and medical files, for example, the potential for misuse is enormous. The libel laws presently offer only limited redress. Moreover, both false information and malicious intent on the part of the defendant must be proven. Amendments are needed here to strengthen the rights of the collectee against the collector.
  4. All information collected about individuals should be divulged to those individuals and opportunities provided for them to refute it. There should be the opportunity for frequent and regular review. Under such a regime the individual becomes the final “auditor” on the accuracy of the file.

    By allowing individuals the opportunity of adding refutations to the data, the file will have at least a balanced set of opinions. For example, suppose a credit file stated a person was delinquent on a particular company’s bill. That person’s statement that, for example, (a) the bill was contested because of shoddy merchandise, and (b) the company did not take the individual to court over the matter, might indicate to whomever accesses the record that the argument about a poor credit rating was dubious.

    By requiring the individual’s consent before information is transferred from one data file to another, there is a check on the singularity of purpose and relevance of the data gathering.

  5. Consonant with (4) is the requirement that information be destroyed when it has served its purpose (see (1)).

    Information decays in value (accuracy, relevance and reliability) over time. For the information to be of value, it must reflect the current status. As time passes information should be destroyed as its purpose becomes fulfilled. The obvious example is a juvenile file which should be purged when the individual reaches adulthood.

  6. The persons and agencies to whom the information will be made available must be clearly identified and procedures developed which guarantee that others will not be able to obtain the information. This type of protection is needed to prevent the “dossier” society from developing. It assures access to information only for those who have a legitimate need for the information. Furthermore, it provides that the requisite amount of information only be obtained, and deters “browsing” because of the lack of anonymity of the individual seeking access.

There are two final points to be made. The considerations outlined above hold whether the information is located centrally or not, and whether the information is in computer files or not. To the extent that these two features make the information more easily accessible, then the dangers from its use or misuse are that much greater. They hold, too, whether the file is created for humane reasons or not. It is unfortunately true that schemes put forward for the most humane reasons have not infrequently turned out to be extremely unjust and vicious in their effects.

Appendix C:
Report of the Board in favour of open Family Courts July 1974

Family Courts, like criminal ones, should be open. As with other courts, only in unusual circumstances should they, at the court’s discretion, be closed.

This report sets out the arguments againstopen courts, followed by a point-by-point reply in favour of open courts. The latter is offered as the most persuasive arguments.

  1. Persons may be reluctant to discuss necessary personal problems in open family court.
  2. Education of the public is one of the functions of the proceedings and decisions of other courts; it requires their being open. Such benefits would be lost in an open Family Court, however, because of the probably poor press coverage, and an audience likely to be more interested in sensationalism and entertainment than education.
  3. Protection of individual rights is better effected by an assurance that all parties involved will be represented by counsel.

    These arguments against open Family Court can be countered in the following way:

      1. No less than any other court, the Family Court is administering laws of general application to the public and public scrutiny is the basic vehicle for guaranteeing the proper administration of the law.
      2. Particularly now that the United Family Court legislation provides for confidential counselling and mediation services as an optional preliminary to formal litigation, it can be argued that if either or any of the parties in any individual situation insist upon a formal hearing or if (presumably by reason of the conduct of any or all of the parties) the mediation and counselling services fail, the parties can be said to have invoked the authoritative decision making power of society’s courts and have thereby waived any claim to further privacy in the resolution of the problems at issue.
    1. The matters which come before family courts are matters of extreme public importance relating as they do to family stability and the upbringing of children. It is, to that extent, particularly contrary to our legal and social traditions that the law relating to matters of such importance be applied or enforced behind closed doors. It was suggested at a Family and Law Commission hearing that an assault upon a randomly chosen stranger is a matter of less social seriousness and harm than an assault by a spouse on his or her spouse or children. If indeed the family dispute has more social consequence, then there is more reason for a hearing in a court open to that society. Furthermore, notwithstanding the seriousness of indecent assault or rape, an incident involving either of these with the added factor of incest is generally (and, it is submitted, correctly) considered to be more serious than if the victim were a stranger. We would suggest that there is not more basis for extending the benefits of privacy to the parties in the latter cases than in the former.
    2. Rather than benefit of counsel being an alternative to openness, the latter is indeed a necessary complement to the former. Closed courts almost invariably lead to informality between counsel and Court over a period of time. This can have the following undesirable consequence. Where a lawyer has a client whose position he or she personally cannot approve of or agree with, there is the strong temptation in the informal conditions of the closed court for the lawyer to consent to orders; the lawyer may well substitute his or her feelings for the legal position of the client he or she is supposed to represent. In short, the “keep ’em honest” effect of doing the public’s business in public is aimed as well at Counsel as it is at the bench.
    3. There is the possibility that the relatively informal privacy of the closed court will mislead a defendant into underestimating the seriousness of the offence. A guilty plea may be entered in, for example, a husband-wife assault case, it not being realized that a conviction there creates the same record and carried the same potential sentence as in the open criminal courts. Open Family Courts militate against this possibility.

The Association’s position is, then, that for the traditional reasons adduced for other courts, Family Court should not be closed except in unusual circumstances. Appendix D On the First Working Paper of the Working Group on Matrimonial Property (Royal Commission on Family and Children’s Law), 26 February 1974. 26 April 1974. A working committee, chaired by Commissioner Rita Macdonall, investigating various proposals for possible matrimonial property regimes, released this paper for purposes of public discussion. The paper analyses the economic role of the family and reaches the conclusion that marriage is, among other things, an economic partnership. From that conclusion, the paper goes on to recommend the adoption of a marital property regime with these characteristics:

      1. property acquired after marriage by either party becomes community property and each party owns one half of it;
      2. the parties to the marriage manage and control the community property jointly;
      3. a couple cannot make an enforceable contract to adopt some other property regime.

      The paper goes into no detail as to particular details and exceptions, nor does it touch common-law relationships.

There appear to be no civil liberties problems with this paper. There has been a suggestion that a prohibition on contracting out of community constitutes an infringement of civil liberties. However, the implications of the paper seem to be rather the following: If a couple upon dissolution of a marriage wish to arrange their affairs in a manner different from a 50-50 split or during the marriage to manage their affairs other than jointly, no statute will stop them. But if either party goes into court with a document in which the other spouse gives up his right to the community for any consideration, the court will not now enforce contracts to forgo maintenance rightfully due under the Family Relations Act, Divorce Act, Testator’s Family Maintenance Act, et al. Though the parties involved in situations governed by these Acts may voluntarily agree to forgo these rights.

Appendix E:
Report to the Board: The Present Adoption of Children Situation in British Columbia. December 1973

This paper is intended to deal with two aspects of the British Columbia Adoption Act. The first part deals with problems which have recently come into prominence because of a B.C. Supreme Court decision of Judge Tyrwhitt-Drake bearing on the conflict between the Adoption Act and the Indian Act. The second portion is intended to deal with the nature of the actual Adoption Act as it raises important considerations as to due process. Part IAn important legal decision came down on April 6th of this year [1973] in a case known as In the Matter of the Adoption Act and in the Matter of the Birth Registration Number 67-09-022272. Two white parents had applied to adopt an Indian child. There was no issue as to the suitability of the parents or that the child could not otherwise be properly adopted. However, the mother refused to give her consent and the proposed parents had to bring a Court application to dispense with that consent.

The issue in the case was whether or not the Adoption Act of British Columbia was in conflict with the Indian Act of Canada: i.e., does the provincial legislation under the Adoption Act take away the Indian child’s status under the Indian Act once the child is adopted?

Both the Attorney-General for B.C. and the Solicitor General for Canada intervened in the case and both argued that the adoption did not affect the individual’s rights under the Indian Act. The judge found as a matter of strict law that this was probably the case. However, he still refused to dispense with the mother’s consent on the grounds that the Indian Act may affect the child’s status and he was not prepared to take the chance.

The provincial legislature tried to solve this problem by enacting Bill 12 in the second session of 1973. This Bill states:

“(4a) The status, rights, privileges, disabilities, and limitations of an adopted Indian person acquired as an Indian under the Indian Act (Canada) or under any other act or law are not affected by this section.”

The provincial legislature was trying to make it absolutely clear what their position on a constitutional issue was, and they hoped that this would remedy the situation.

The Social Welfare Department was not completely happy with this amendment to the legislation as there are practical problems involved. The most important problem is that as a matter of practical day to day operations, an Indian child is usually adopted when very young. Even though such children may still technically be Indians in law, they will most often not even be aware of this.

There is some evidence to show that most provinces in Canada, excluding B.C., don’t even bother to notify such children that they are Indians. Also the federal government keeps a very secretive list of the people who are Indians and even if a person wishes to inquire from them whether or not he was an Indian, he apparently has very little hope of finding out.

The Association recommends that the appropriate government body be required to notify every adopted Indian child that the child retains its full Indian status even though it is adopted by non-Indians.

Meanwhile, the Attorneys-General are taking the case to the Court of Appeal for a ruling on the constitutional legal question involved. This will hopefully clear some of the air as the reasoning in the trial judge’s decision is far from clear.

As a result of this case, the Department of Rehabilitation and Social Improvement has put a clamp on all Indian adoptions since April 6th of this year [1973]. What it is in fact doing is putting the Indian children through all the normal procedures but not allowing the matter to be finally completed. It designates the proposed parents as foster parents and leaves the child in their custody indefinitely. This will no doubt continue until the Department is more sure of its legal position. It has been made very clear to the proposed parents that they are in no way guaranteed of getting a permanent adoption if the child is an Indian. Part II

This second section is about the arbitrary powers vested in the Superintendent of Child Welfare.

The legislation as it is currently set out has effectively taken the real decision-making power in an adoption case away from the Court and put it into the hands of the Superintendent of Child Welfare. Not until the Superintendent has filed a letter with the court approving the adoption can the adoption be completed. In actual fact, the Court application is a mere formality and the person with the real decision-making power is the Social Worker who actually investigates the circumstances of the proposed parents.

The Superintendent of Child Welfare also has an unlimited discretion as to whom he will even bother considering as a worthy parent. In other words, he picks and chooses the people allowed a trial adoption. This discretion is again arbitrary.

The criterion which guides the social worker when making a determination is “the best interests of the child.” No specifics are set out and in each case it depends on the particular circumstances. If a proposed parent is unhappy with the Social Worker’s decision, he or she can appeal to the Social Worker’s superior. However, this is another case of hollow appeal because the Superior relies on the field worker for all information, and it is apparently very seldom that a decision is reversed. No other appeal tribunal is in existence.

In all the circumstances it would appear that the Association should back one of two proposed amendments to the Adoption Act:

    1. Putting the Courts back into a real decision making role.
    2. Setting up an appropriate appeal tribunal from decisions of the Superintendent of Child Welfare. (This body could be the courts.)