[Recorded by Electronic Apparatus]
Wednesday, October 4, 1995
.1530 
[English]
The Chairman: Today we're dealing again with Bill C-232, an act to amend the Divorce Act. We have with us today Madame Miriam Grassby from Comité en droit de la famille.
Perhaps you could just start your presentation. We're sorry we started late but we needed a quorum. Perhaps you could make your comments, and after comments we'll have questions and answers.
[Translation]
Miriam Grassby (President, Comité permanent sur le droit de la famille, Barreau du Québec): I am the president of the Comité permanent sur le droit de la famille of the Barreau du Québec. I am not speaking on my own behalf, but on behalf of the Barreau.
We have made our comments on your proposed amendments to the act. You are probably all aware that the Barreau du Québec does not support these changes for several reasons.
First, the Divorce Act is a federal piece of legislation, and we believe that legislating in this area should be left to the provinces. In Quebec, in our Civil Code, we already have articles which cover situations where there are problems concerning contact with grandparents. Moreover, we feel we have struck a balance between the needs of children and grandparents and the problems relating to power that can exist in a family, especially at the time of divorce or separation.
We are very concerned, because the amendments to the Divorce Act would give grandparents rights that are too significant and too similar to those of parents, whereas the rights that they should exercise are not at the same level, nor of the same quality.
I'm going to refer to a decision that was rendered recently. The case involved a grandmother who had requested the right to take her young grandson out, because she wanted to take him to a weekly activity devoted to grandparents and children. It was called:``Bubby and Me'', which means ``Grandmother and me''. It was a two-hour long activity.
The judge had to decide whether or not to grant this to the grandmother, who already had some access to her grandson, because her son had access to the boy every second weekend and every Wednesday and because the son was already living with the grandmother. So the grandmother had access to the child at least eight days a month through his visits with her son.
The honourable justice Senécal, who is the person in Quebec who has written the most on family law, and who has recently been appointed a judge, made a distinction between the role of parents and that of grandparents. Moreover, he mentioned that it is quite rare, in a two-parent family, that the grandparents see their grandchildren from the family. It can happen, but very often grandparents see the grandchildren during family dinners, etc.
He states:
- ...the role of parents and grandparents is not the same with respect to children. Parents must
raise their children. They have the duties of custody, supervision and education of their children
which requires their presence daily, monitoring, and constant involvement. This is not the role
of the grandparents. Their role is simply to love their grandchildren and to share with them the
wealth of their personality, their experience and their affection. As Dominque Goubau pointed
out, ``they can develop close relationships with their grandchildren without worrying about
education or controlling it.''
- The rights conferred by Article 661 of the Quebec Civil Code are not comparable to the
access rights that parents can claim as part of the separation or divorce and the contact between
grandchildren and grandparents cannot be measured against the contact between children and
their separated parents. This leads to the conclusion that while personal relations between
grandparents and children are very fulfilling and cannot be interfered with without a grave
reason, they must not be confused with access rights granted to separated parents nor, generally,
should the contact be as frequent and as extensive.
.1535
The purpose of this act is to put grandparents rights on an equal footing with those of parents. The Barreau du Québec considers that this is inappropriate and that it should not exist. Moreover, it must be recognized that this can be the cause of major problems. It is all very well to say that everyone is for virtue and motherhood and grandparents, but in truth, there can be problems in exercising certain rights and it can give rise to challenges in court, involving considerable fees, etc. When a marriage breaks down, there are problems with dysfunction.
[English]
I can speak in English about dysfunction, perhaps.
What you have are situations - This is what we see as practising lawyers, and I've been practising family law for 20 years. If you have grandparents who have had good relationships with their grandchildren, very often they are able to maintain that through a separation or a divorce. If the non-custodial parent is seeing his own or her children - Let's just pretend the non-custodial parent is a he and make our lives easier for the afternoon. If he is seeing his children on a regular basis every second weekend or more, then his parents have a chance to see the children while the children are with him, or the maternal grandparents have a chance to see the children when they're with the mother, who has custody.
Really the only time you have serious problems, outside of the death of one parent - and this would not be covered by the Divorce Act - is when you have a non-custodial parent who is not visiting with the children, and he is not visiting with the children for one or two reasons - well, perhaps one of three, to be kinder. He may not live close by so he's unable to exercise visits, he may not be interested in visiting, or he may have been prohibited from visiting because of some serious problems.
Those are essentially the three times that you would have the parents of the non-custodial parent feeling they would have to exercise some rights, or would perhaps need to. If you have a relatively functional extended family, very often there is no problem in that situation because there's a relationship between the paternal grandparent and the daughter-in-law, and there is some relationship with the grandchildren.
What you're doing by suggesting that these rights should be on the same footing as for parents is opening up a possibility of tremendous conflict, tremendous pressure and tension, which I think most family lawyers I spoken with have been unanimous to say is inappropriate. There is already enough tension and enough fighting and enough money spent on cases before the courts.
I've been involved in some very - There are not that many cases. In fact, in Quebec we have other rights; that is, grandchildren can go after grandparents for support, and you do have custodial parents going after grandparents for support.
I was looking at the statistics, and there's an article written by Dominique Goubau, which is very interesting. He looked at the sociological description of the cases before the courts, and really what you have in 70% or 80% of the cases is essentially in-laws who very often are taking former daughters-in-law to court to argue over access. What I am basically saying is that they are often very dysfunctional families, because if they've got to that point it's because there are some serious problems.
By adding to the law the principle of as much contact as possible, I can tell you, as an attorney who often represents parents and custodial parents, that's already a very difficult article for the custodial parent vis-à-vis just the other parent, because you always have to prove you've been reasonable, and it's difficult to be involved in those kinds of debates. The non-custodial parent says, oh, she doesn't want me to take the child out on Wednesday nights because of whatever, and you have to prove, of course, that you really do want to, but you think your children have the right to do their homework and get to bed on time, and so that's not a good night because they've got hockey that night. You get into a debate. How do you prove you are reasonable? How do you prove you do have maximum possible contact?
.1540
To throw into that the fact that you are encouraging maximum possible contact with grandparents - what is the appropriate contact with grandparents? Is it what it used to be when you were happily married, maybe once a month for supper? Is it every second weekend like it might be with a non-custodial parent? What is it? It is opening up a Pandora's box that is going to be very difficult for a custodial parent to know how to deal with.
Children in divorced families have only so much time. It is not a question of cutting up a pie: the custodial gets so much and the non-custodial gets so much, and now the grandparents, being on an equal footing, will get an equal amount. I think that to put it in the law on the basis that it is would be wrong, and the bar has taken that position.
Grandparents are never on the same footing as children in a functional and intact family. There is no reason they should be in the time of divorce.
[Translation]
What we have in Quebec is very interesting and I'll say a few words about it. I don't think you should come to the conclusion that if you don't accept these amendments you won't be able to solve the problem of grandparents acting in good faith who have problems establishing relationships with their grandchildren. In Quebec, we have legislation providing certain things. I'll quote you the article because it is brief and we consider it works very well. We did not put parents and grandparents on an equal footing. The Civil Code, in article 611, provides as follows:
- Article 611. In no case may the father or the mother, without a grave reason, interfere with
personal relations between a child and his grandparents.
- Failing agreement between the parties, the terms and conditions of these relations are decided
by the court.
It must be done in the best interest of the child and the Code states that the standard is to maintain personal relationship between children and grandparents. It doesn't have to be proved that it's in the intereste of the child.
[English]
It's taken as a presumption that it's a good thing to have relations with grandparents.
[Translation]
It's a presumption although proof to the contrary is possible but the principle can be cast aside only for grave motives. And, as it mentions, personal relations can be maintained through letters, phone calls and in many other ways. Of course, if the people live in the same city, it is advisible to do this through visits, however, this article is far from giving grandparents the broad rights the amendments to the divorce legislation seem to.
I'll conclude my brief presentation and repeat that we consider the federal government does not have to legislate in this area and that it's up to provincial authorities to do so.
I'm available to answer all your questions.
[English]
The Chairman: Thank you.
[Translation]
Mr. de Savoye, you have ten minutes.
Mr. de Savoye (Portneuf): I quite appreciate this presentation that throws light on the kind of relationship between grandparents and the child and the way that kind of relationship is preserved in Quebec first and foremost in the interest of the child.
.1545
I have two questions for you. First, let's talk about the grandparents. How do you define a grandparent? Of course, one could presume, a priori, that the biological grandparents are the grandparents. But you also have grandparents in law. And what happens if those grandparents have divorced, remarried and develop a relationship with the child? In the extreme, a child could have a lot of grandparents. So my first question is to know how, in Quebec, they settle that.
The second question appears to me to be a concern for Quebec. You know that in Quebec there's privacy legislation and in Bill C-232, there's a clause indicating that grandparents can ask for and get information concerning the health, education and well-being of the child. At first glance, that seems to be in conflict with the Quebec legislation. What's your reaction to that? Could you throw some light on it for our committee?
Ms Grassby: I'll answer your second question before answering the first.
I have to tell you that I can't answer that question because I don't have the answer. However, I can answer you not as a lawyer with knowledge of the law but as a lawyer practising family law.
I didn't think of commenting that aspect. That's a real Pandora's box. You already have a lot of conflict between the custodial parent and the non-costodial parent on what must be communicated. When you have agreements signed even by parents who agree, the question is always, when you get a note from school saying there's going to be a picnic a week from now, whether this should be communicated to the other parent. Of course, if there's a concert then both parents are invited and in that case, it's clear. But where do you draw the line between what is useful information and what is not?
I have to say it's awful. I recently got a petition against one of my clients saying she had not communicated the results of her child's report card. I asked her why she had not and what kind of mother she was. She told me she didn't have any photocopy when she was asked for them and that it had taken a week for her to communicate them. So that can create conflict.
If you have to put the grand-parents on the mailing list to - I'm sorry, but I often see problems from the custodial parent side. It's an extra burden and it complicates things. Anyway, schools send some information to both parents even though they're separated. I don't think we should add grandparents to those lists; I don't think that's desirable. After all, grandparents do play a very different role in their grand-children's lives and it seems to me the parents can very well decide whether the in-laws should be told if the children are doing well in school or not.
Mr. de Savoye: It still remains that the bill before us may grant grandparents more rights than they would otherwise have had if the couple had not gone for a divorce.
Ms Grassby: Absolutely. It brings grandparents up to another level. You're trying to settle a problem that might exist, but you're giving them things that they never had in the first place even in a functional family and this is done in the far more complex context of a divorce. You're also forgetting about all the grand-parent/children relations in a common law context where one of the partners is deceased. A lot of our cases, in Quebec, have to do with common law situations, where there is a death in the family.
As for your first question, I can just say that in Quebec, thank goodness - and it's the same for the rest of Canada whereas it's not the case in the USA where you often get three marriages for the parents while we're only up to two here - there are not too many grandparents. I think there are very few cases like that in Quebec. On the other hand, you can certainly have parents, in loco parentis say a man married to a woman with children from a first marriage who develops a parental relationship after living with them for 15 years. In any case - and this is stated in the act - has to pay alimony and he also has all rights of access.
.1550
I don't think we'll be necessarily be able to extend the definition of «grandparent» by putting it on the same footing as in loco parentis and there should be a way to gain access as a third party close to the child.
Mr. de Savoye: You said that in Quebec grandparents could be made financially responsible for their grandchildren.
Ms Grassby: Yes.
Mr. de Savoye: In the context of the bill before us, wouldn't granting rights to grandparents lead to recognizing they also have duties? Isn't that part of the Pandora's box?
Ms Grassby: I don't see anything in this bill that would put grandparents under any kind of financial support obligation. In any case, those obligations are in our Civil Code and I think that's the place for them. If you're asking me if we should give access rights without imposing responsibility, I don't think I have to answer that question in this context, but it is a worthwhile question.
In Quebec, there have recently been a lot of articles in the press concerning a case where the grandparents were sued and had to pay support, but you also have to understand that this happens in very specific cases. Usually, it's because of neglect of duty by a non-custodial parent either because of incapacity or bad faith.
Mr. de Savoye: Thank you.
[English]
The Chairman: Mr. Ramsay, you have 10 minutes.
Mr. Ramsay (Crowfoot): Thank you for your presentation. From your presentation I take it you consider all to be well, and grandparents don't need any further rights in law.
Ms Grassby: I would like to interrupt you on that. All is well chez nous. I cannot speak for the other provinces. I'm simply saying that I think it's up to the provinces to solve the problems they might have and that we in Quebec have found a way to solve them adequately.
Mr. Ramsay: Then all is well in Quebec?
Ms Grassby: I understand there are two other provinces that have legislation with regard to access rights for grandparents.
Mr. Ramsay: So grandparents in Quebec have no problems that this bill would address.
Ms Grassby: In our opinion, this bill would create problems.
Mr. Ramsay: Just to answer my question here, what you're saying to the committee, from my understanding, is that grandparents have no problems in terms of access and visiting rights to their grandchildren.
Ms Grassby: I understand your question. If grandparents in Quebec have a problem in their specific family, you're telling me they have a way of resolving it through legislation.
Mr. Ramsay: I'm asking you that.
Ms Grassby: Certainly grandparents have problems. There are problems that have to be resolved in individual families, but there is a way to resolve them through the legislation and through the courts. They don't need anything else to resolve them.
Mr. Ramsay: You're saying this legislation would create a problem.
Ms Grassby: This particular law? Yes.
Mr. Ramsay: When I look at the legislation - and I just want to say that certainly the letters and the petitions we're getting from grandparents on this particular issue and on this bill indicate that all is not well, at least not in the rest of Canada outside of Quebec. They're seeking something.
This is not the first time this bill has been brought forward. I understand it surfaced under the previous Parliament and was sponsored by Mr. Stan Wilbee.
This bill is addressing some of the problems grandparents have in terms of visiting and access rights to their children. What does this bill do other than say to the courts that grandparents have the right to make application? Surely the courts in Canada, including Quebec, have the wisdom to make a decision on the application of grandparents as to access or visitation rights, wouldn't you think? What great problem is this creating?
.1555
We had witnesses here from the Department of Justice who posed some hypothetical situations as well. Of course, you have mentioned some extreme cases, or at least one that suggests there would be these kinds of extremes. Wouldn't they be rare? Do we not have extreme cases regardless of the legislation we can bring forward?
What is the real problem with allowing a court to assess the application of a grandparent at the time of divorce as to whether or not it would be in the best interest of the child for the grandparents to have visiting rights and access rights? Is there anything wrong with that particular section of this bill?
Ms Grassby: Yes.
Mr. Ramsay: What is wrong with it?
Ms Grassby: You've asked me several questions. I'm not sure, but I will say that you can have an existing problem that needs to be resolved, but which doesn't necessarily have to be resolved by this piece of legislation. This is the wrong piece of legislation to resolve it.
Mr. Ramsay: To resolve what?
Ms Grassby: To resolve any real problems that may exist with grandparents who exercise their rights.
Mr. Ramsay: The problem being addressed here is simply one of access and visitation. Of course, it could get into the area of custody as well.
Could you respond to the questions on access and visitation rights by grandparents, and on them simply having the right to make that application through the courts at the time of divorce rather than afterwards? They do have the right to make application.
Ms Grassby: An application for access by grandparents at the time of the divorce is probably the worst possible thing that could be done. You need to let the main players work things out. When the dust settles, many of these problems are resolved without the court's intervention.
If you have a situation where you discover a problem, you look at legislation or look to see how it can be resolved. The worst time to have grandparents coming into court is at the time of divorce.
Mr. Ramsay: Why?
Ms Grassby: You have two main players who are often in situations of emotional distress and anger. They are working for the right thing and may not know what the right thing is. They're hiring experts who are trying to work it out. They're trying to set up a post-``being together'' family life. Things adjust themselves and in almost every case things work out for the grandparents. Very rarely do things not work out.
The last thing you want, and quite frankly the last thing most grandparents want, is to go into a courtroom. The last thing you want is to have people at the time of the divorce -
I'm going to keep going because you've asked me several questions and I'm never going to get to answer them if every time I say something you ask me another one. Please give me another minute or two.
I'm not denying the fact that there can be a problem for some grandparents. I'm not denying the fact that there may have to be some response through legislation. I'm saying that giving grandparents rights equal to those of parents, as this presumes to do, is inappropriate. Grandparents can -
Mr. Ramsay: No, it doesn't. I'm sorry but -
The Chairman: Mr. Ramsay, please let the witness answer the three or four questions you have asked.
Mr. Ramsay: The questions I've asked aren't being addressed. I have only ten minutes on this round.
The Chairman: You did ask her a number of questions. If she can answer those we'll see if there is time left.
Ms Grassby: Grandparents can apply for custody. They can use the part of the Divorce Act that says they can do so with leave. If there is a serious situation, they can do so. They don't need to be put on the same footing as parents, whether it's for custody, access, the encouragement of the most possible contact or getting information from the schools or about health. They have the right to proceed for custody.
Mr. Ramsay: Let me return to what the act would provide for the grandparents. I agree, and I think others would agree, that not all grandparents would flood the courts every time there is a divorce and apply for custody, access or visitation rights. However, if the objective is to provide legislation in the best interests of the child, what is wrong with granting the grandparents an opportunity to make this application for custody, for visiting rights or for whatever and allowing the judge to decide what is in the best interests of the child, bearing in mind the applications that are before him or her? I don't see what the problem is.
.1600
Ms Grassby: I recognize that you don't see, but I want to point out just one thing. If lawyers are speaking out against this when it could give them more cases, it must be because they really understand it's going to cause problems.
The nature of this is that there's a lot of anger. In a divorce situation often a lot of anger is carried through from the families, from the parents. It's the type of legislation that can be - motions before the court that can be used. Sometimes grandparents are also controlled by the non-custodial parent, and they're playing out various things that are not profitable to the children. It's just not appropriate to do it at the time of the divorce and it's not appropriate to put it in the divorce legislation.
Mr. Ramsay: I have just one final question. If this would create such a problem, why do you think there are so many people writing in asking for this very type of thing?
Ms Grassby: I'm not sure that's a question that's best placed to me, but I think it's probably because they understand there may be a need for something. They don't necessarily understand how the need could be best addressed. They may see this as something that may be helpful, but they don't necessarily understand that it's up to the provinces to do it.
Mr. Ramsay: So your recommendation is to leave it to the provinces to do it.
Ms Grassby: Absolutely.
Mr. Ramsay: Okay.
Ms Grassby: Those people should write their provinces.
The Chairman: Thank you, Mr. Ramsay.
Mr. MacLellan.
[Translation]
Mr. MacLellan (Cape Breton - The Sydneys): I want to thank you, Ms. Brassby, for the evidence you are giving us this afternoon. I think it will be very useful.
[English]
Yesterday we were told - and this is just in conjunction with what you were saying - that at the time of a divorce, very few actually go without some kind of agreement before the courts. The majority are settled. The agreements are then made part of the decree from the bench. To have the grandparents have the right to intervene would in that case frustrate a lot of these agreements and would add to an awful lot of additional litigation.
Ms Grassby: There's no question about it.
Mr. MacLellan: As well, it was assumed by the presenter of this bill that grandparents, by having the right to intervene, would also be notified as the parties, as the petitioner and the respondent of a divorce action. Do you see that as actually being the case, that they would have the right to be notified, as grandparents?
Ms Grassby: If, for example, they did intervene, then they would be receiving copies of -
Mr. MacLellan: But for the sake of being parents, they wouldn't automatically receive notice of the divorce action.
Ms Grassby: You mean currently, as grandparents?
Mr. MacLellan: Yes.
Ms Grassby: Of course not. First of all, there's the question of privacy, and children not wanting to have one's own parents knowing about all these things. For example, I spend my time telling people who come to my office with their parents to please leave them outside. It's bad enough having two people relating, but when you carry in all the baggage from the extended families - It's really up to those two adults, the parents, to resolve their difficulties. It's already difficult enough. Having the parents, for example, pushing a daughter or a son is not needed. Throwing in their having their own personal rights is going to make it even more complex.
Mr. MacLellan: Currently under the Divorce Act grandparents have the right to intervene with the leave of the court. That's certainly understandable. I accept your point that everything is well looked after with the provision of the Civil Code of Quebec, and that the provinces have the right to do that. I would ask you, certainly, indeed that would be a provincial jurisdiction.
.1605
Ms Grassby: I believe so - or I know so.
Mr. MacLellan: Certainly the courts have recognized that where parents can intervene with the leave of the court, and custody and the welfare of the children is an ancillary question rising out of the divorce, if the grandparents had the right to intervene it would make them major parties in the divorce action, whether they had the right to be notified of the action or not.
I see a problem constitutionally from that. It's one thing to have the right to intervene with the approval of the court, but when you get to the point of having the right to intervene, you can then become a principal. Under the Constitution and the limitations of the Divorce Act respecting divorce and the ancillary rights of the children, I anticipate there may be a constitutional problem. Do you see that?
Ms Grassby: I am here as a family law lawyer, and not as a constitutional lawyer.
Mr. MacLellan: I know, I agree. It may be an unfair question.
Ms Grassby: But I must say that as you were speaking I remembered a case, and this is perhaps one of the horror stories. Often when a non-custodial parent feels he or she hasn't been given enough time or access, it's not too hard to convince his or her parents to come on side and agree with him or her. They themselves will make a motion - I'm off the Constitution topic and into the practicalities.
I remember this one particular case where a person was desperately trying to bring up a child on practically no income, and had to pay a second time around in a very contested case where the grandparents were basically attempting to get visiting rights in order to provide the non-custodial parent with additional time, which he wasn't able to negotiate for himself. The court had not granted it because there were some serious problems in the family and also with the grandparents. So it wasn't something where you could just say, that's wonderful, yes, I'd love my son to see the grandparents. It was a much more complex issue.
So you're talking about this custodial parent trying to keep all the balls at the right spot, get the child to school and be organized, having to go off to court again and spend money. It would be very difficult to make it an equal right.
Mr. MacLellan: I have another question on your role as a family lawyer, which I can appreciate. I can certainly understand the concern of grandparents, and I can certainly sympathize with grandparents who have been excluded from the lives of the children. It's a tragic situation, and in many cases it's not beneficial for the grandchild, not to mention the heartache for the grandparents. I think we've all acknowledged that.
One aspect has to do with the cost. Grandparents speak about the cost of having to intervene at a later period. You've mentioned that they shouldn't intervene at the time of divorce. It would be the worst thing as far as reaching a settlement is concerned, and that's not the place for it. What about the cost vis-à-vis the parent, say the mother, where the agreement breaks down because of the intervention of the grandparents and you have to go to court and have an action and maybe later actions? What would be the cost to the parents, particularly the custodial parent who wouldn't be the one with the big salary, in a situation like this?
Ms Grassby: There's no question that having legal representation costs money. It's expensive, because any case that works its way through the courts takes a fair amount of time, and lawyers generally charge by the number of hours worked. But I don't think one can resolve that problem by saying let's throw it in at the time of divorce, because it's just going to lengthen and perhaps make more complex the settlement at the time of the divorce.
.1610
You have to understand that generally speaking people go through a period of crisis when they divorce, and then they work things out. For example, grandparents who've maintained good relations will very often call at some point and say, in a helpful way, gee, you might like to have a break; can I take Tom for you for a day? The custodial mother will say to the paternal grandparents, yes, when can you come?
If people have had relationships, these things can very frequently work themselves out. It's possible that same custodial parent, who says at the time of the divorce she never wants to see the paternal grandmother again, may start talking to her husband once six months have gone by, and things fall into place.
On the topic of having people intervene, you have to understand why lawyers try to avoid hearings on custody as much as possible. People say things that stay forever and later wish they hadn't been said, but they have to be said in that context. Really, the place to work out grandchild problems is in mediation or in some kind of family counselling.
I'm not saying there shouldn't be some recourse to the courts in certain very difficult situations, but it certainly shouldn't be at the time of the divorce.
[Translation]
Mr. de Savoye: In Quebec, for a number of years, we've been using section 611 in dealing with those issues. Has the experience been positive?
Ms Grassby: I think so. There haven't been many cases, but at least the provision is there. It's not because there aren't many cases that we shouldn't include in the Divorce Act specific provisions and say that it would not apply often. Judges are there to settle difficult cases and there have been several cases where grandparents have been refused access to their grandchildren for valid reasons.
For example, in the case where one parent is deceased and the grandparents claims rights over the grandchild, if the other parent has remarried and has created a new family cell, the judge may not grant visitation rights to the grandparent. If there are problems, if relations have not been good, if there are a lot of conflicts and tension, the judge may refuse to grant visitation rights if he feels that the visits may not be beneficial to the child because the applicant is involved in many conflicts. For example, if the grandparent is always speaking out against the custodial parent, the judge might feel that that is sufficient reason not to give visitation rights.
The fact that you have the right to apply to the court does not necessarily mean that you be granted any right. But it is certainly presumed that the application is valid. Only exceptionally is the application rejected.
Mr. de Savoye: If I undertand you correctly, the Quebec situation clearly shows that other provinces could do the same and obtain positive results and ensure that the child has the chance to grow and to see his rights respected.
Ms Grassby: I am convinced of that, as is the Bar.
Mr. de Savoye: I have no more questions.
[English]
The Chairman: Mr. Knutson.
Mr. Knutson (Elgin - Norfolk): Regarding your main point that the time of the divorce isn't the time to sort it out, I take it the relationship has to settle down to some level and maybe there has to be some healing. What's your suggestion for these people two to four years after the fact?
Ms Grassby: Well, chez nous people can go to court if there's a problem. So how do you discover whether there's a problem? The dust settles, you call up and say you want to see your grandchild. Generally speaking, you see your grandchild because your son or daughter is seeing the child.
Mr. Knutson: Well, let's take the exceptional case.
Ms Grassby: Okay, so the exceptional case is when your child is the parent who doesn't see his or her child.
Mr. Knutson: Or maybe doesn't care.
Ms Grassby: That's right. You then have a grandparent who has to deal directly with her former daughter-in-law or son-in-law to see the child. That problem is only going to reveal itself with time. First of all, it's quite rare, but once it reveals itself, then there will be some type of negotiation, maybe some type of mediation, depending on how people try to resolve their differences. If it's an absolute no, then the grandparent will say, I'm going to take you to court. Then the person can say they don't really want to go through the expense of that, or they'll figure out a way to resolve it, giving them this or that.
.1615
Mr. Knutson: Do you know if that option exists in Ontario?
Ms Grassby: I don't believe it does, but I don't know the answer to that. When I say I don't believe it does, it's only because I'm referring to an excellent article today by Dominique Goubau, who talks about the fact that the legislation exists in only two other provinces. I don't believe Ontario was one of them. I believe it was Alberta and the Northwest Territories.
Excuse me - I'm sorry, but that's in reference to monetary obligations, not in terms of access.
So I really don't know whether there's something in Ontario. I can't answer that question. I understand the CBA will be here tomorrow, and I'm sure they can.
Mr. Ramsay: I'm looking at section 11 of the Civil Code of Quebec. I see something in law here, something we discussed yesterday.
Ms Grassby: Is that section 611?
Mr. Ramsay: Yes. It states:
- In no case may the father or mother, without a grave reason, interfere with personal relations
between the child and his grandparents.
Ms Grassby: I think it's a very proper piece of legislation. I think it has worked well because it gives a vent to the problems that can't resolve themselves. However, I think it's very different, although it may not be so easy to see that, from what's in the Divorce Act - in reference to the amendments that are wanting to be brought.
Mr. Ramsay: Then if you agree with the spirit of section 611, would you then support a piece of federal legislation that offers that kind of right to all grandparents across the country?
Ms Grassby: I don't think it's appropriate that it be done federally. We do have a BNA Act that divides things up. I generally try to follow that order.
Mr. Ramsay: No, outside of that, outside of the constitutionality of it, would you be in favour of all provinces and all grandparents having the benefit of section 611?
Ms Grassby: I've noticed that we live in a country where the provinces sometimes do things a little differently, depending on the province. That's one of the gloires de notre pays. So it's possible that provinces - and precisely, they have the right to do it - might want to do things a little differently from province to province. I think it's perfectly appropriate that it should be done provincially.
I think that does answer your question.
Mr. Ramsay: That's not my question. My question is, from a federal point of view would you be in favour of supporting a piece of federal legislation that contains the same spirit as contained in section 611?
Ms Grassby: First of all, I'm not here as - personally, I'm here from the Barreau du Québec, so I'm in no position to answer that kind of a question, but I think the views of the bar are pretty clear in terms of the fact that it should be provincial legislation.
Mr. Ramsay: I have no further questions.
The Chairman: Mr. Crawford.
Mr. Crawford (Kent): Thank you, Mr. Chairman.
Madam Grassby, when you originally made your comments I was certainly against them. After hearing your answers around the room, I can understand that now the bill is more provincial than it is federal. You're the expert legally, and I have my legal adviser here constitutionally.
Ms Grassby: I'm even going to be a grandparent in about two years, as I've counted. So I'm interested. I have a daughter who is on an agenda.
The Chairman: That's a long pregnancy.
Some hon. members: Oh, oh!
Ms Grassby: First you get married, then a year later you -
Mr. Crawford: I'm going to speak to you as an expert, as a grandson and a grandfather. As a child I spent half my time, if not three-quarters of it, with my grandparents. It wasn't that I didn't like my parents, but I seemed to be with my grandparents more often and I enjoyed it. Here in Ottawa I'm not with my grandchildren, but next week we'll be together all week. The grandchildren will be with us. We travel together.
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Ms Grassby: Will they also be with their parents?
Mr. Crawford: No.
Ms Grassby: Are you going to take them out on your own?
Mr. Crawford: Yes, they will be with us.
Ms Grassby: Okay.
Mr. Crawford: If a day came when that couldn't happen -
That's why I'm interested in a law to cover that, whether it's provincial or federal law. In my own family, I have two nephews who have never known their grandparents. They've never known them, and they live seven miles apart. I don't want to see that happen with my grandchildren.
Ms Grassby: Okay, but you mentioned something interesting. You can't have a law to do something families can't do themselves. You talk about the nephews who never saw their grandparents. I imagine those were nephews with intact families.
Mr. Crawford: Right.
Ms Grassby: Yet the family couldn't work out relationships well enough between themselves to have that kind of contact. A law can't resolve -
This law is not meant to resolve problems in intact families. Look at the example of your situation, where your grandchildren are going off with you for the week. In fact, most of the cases in Quebec were situations where the grandparents have had extensive contact with their grandchildren before a divorce, not just partial contact.
You'd have to ask yourself a very serious question. Let's say your child and spouse were to divorce and there was a period of time in which someone was pretty angry at you. Mind you, your son or daughter would probably have the children for two or three weeks during the summer. You could take them for a week while your child had care of them. You wouldn't have that kind of problem.
If your son or daughter didn't care about their children, which is hard to imagine with a father like you, then -
Mr. Crawford: Watch it.
Ms Grassby: - you'd be in a situation where you'd have to negotiate with your daughter-in-law. What if she wouldn't have anything to do with you? You'd then have to make an important decision. Would it be good for your grandchildren for you to press your rights by using the courts? You might come to the answer, even though you have the legislation, that it would not necessarily be beneficial for them.
You might decide it is beneficial, but it is not an easy call for a grandparent even if there is legislation, because of the whole question of conflict. There is the whole question of creating bitterness in the family. It's a very tricky issue. Many people don't use that legislation because it's a very poor way of resolving these kinds of problems.
Mr. Crawford: No, but if the law were there I would certainly use it.
Mr. Ramsay: That's the whole point of the bill.
Ms Torsney (Burlington): You currently could.
Mr. Crawford: No. That's after the divorce.
Ms Grassby: You could do it in the divorce file.
The Chairman: Mr. Ramsay, do you have questions?
Mr. Ramsay: I would like to follow up on it. I don't know if he's the only grandfather here, but I appreciate what he is saying.
This is my understanding of the intent of this bill. If one of the parents says he or she doesn't want the grandparents to have access to the children even though there is a warm, loving and close relationship between the children and the grandparents, should the parent's decision stand without challenge?
This bill would give the grandparent the right, based in law, to make application at the time of the divorce for visiting rights. I'm somewhat confused in terms of the opposition to this bill, because are told that application for leave can be presented to the courts which, if it were reasonable - not frivolous or vexatious - would be considered by the courts.
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Why not consider it at the time? That's what this would allow. That's what I've heard. You mentioned you would certainly do that. As a grandparent, I would certainly do it too.
I don't understand the objection to this. I don't understand the objections of witnesses from Quebec and of members on the committee from Quebec when they have something so very close to that within their own provincial legislation and under section 611.
I don't know what else there is because I've seen only this part of it. I don't understand the reasoning behind it, and I suppose, Mr. Chairman, that's all I have to say.
I'll be supporting this bill. We may consider amendments as suggested. I'll be supporting grandparents' rights to visit their grandchildren, and their right to apply to the courts at the time of the break-up, not afterwards. All consideration is being given to the best interest of grandchildren. I think grandparents have the right to do that.
Ms Grassby: I understand. That might not have been a question, but the law does provide -
Mr. Ramsay: It's not a question.
Ms Grassby: - that with the leave, you could make that kind of application, even for access. There's no reason to put parents and grandparents on the same footing.
Mr. Ramsay: They're not on the same footing. I don't see that. I don't understand that, Mr. Chairman.
One has to do with custody and the other has to do with access and visitation rights. The parents are the ones who have authority first. Grandparents are second.
The Chairman: Thank you, Mr. Ramsay. You have the last word today. We're going to have to end, because the witness has a commitment and must leave.
Thank you very much for being with us, Madam Grassby. Your comments were most enlightening.
Could you make available those two items you referred to? They were Judge Senécal's decision and also an article by Dominique Goubau.
Ms Grassby: I'm going to leave them with you.
The Chairman: Thank you very much.
We are adjourned.