[Recorded by Electronic Apparatus]
Thursday, October 5, 1995
.1005 
[English]
The Chairman: Order, and good morning.
We're dealing with Bill C-232, An Act to amend the Divorce Act. By teleconference we have Steven Andrew, chair of the national family law section of the Canadian Bar Association.
Good morning, Mr. Andrew.
Mr. Steven Andrew (Chair, National Family Law Section, Canadian Bar Association): Good morning, sir.
The Chairman: We also have Tamra Thomson, director of legislation and law reform with the Canadian Bar Association. She is with us here.
Mr. Andrew, if you have a presentation to make to the committee you can do so in the time you have. I believe we have only one hour today, from 10 a.m. to 11 a.m. When you're done your presentation in whatever time it takes, we will then have questions from members. Please proceed.
Ms Tamra Thomson (Director, Legislation and Law Reform, Canadian Bar Association): Mr. Chairman, I will start. Mr. Andrew will continue, and then we will entertain questions.
[Translation]
Mister Chairman, the Canadian Bar Association is a national association of more than 34,000 jurists - lawyers, notaries, judges, law teachers and students - from across Canada.
[English]
The appearance today is on behalf of the national family law section of the association. The family law section has more than 6,900 members across Canada representing all aspects of family law practice.
The letter you received from the family law section was approved by the section as well as by the standing committee on legislation and law reform and by the senior officers of the association, in accordance with our constitutionally derived procedures.
The primary objectives of the Canadian Bar Association include improvement of the law and the administration of justice. We believe the comments today are made in that context.
I will ask Mr. Andrew to now speak to the substance of the bill.
Mr. Andrew: I first would like to thank you for the opportunity to speak to you on behalf of the national family law section of the Canadian Bar Association. I would also apologize for not being able to present in both languages.
I would simply like to put forward our arguments for defeating the bill. They are as follows.
First, the bill gives grandparents the same status as parents. In other words, it extends the possibility in the litigation for conflict. It adds more players to an already costly and emotionally charged process. It also has the effect of giving grandparents in divorcing families more rights than grandparents would have in intact families, or non-divorcing families.
As the law stands right now, grandparents of intact families have no legal rights for access to their grandchildren, with very small exceptions. There are a few exceptions in provincial legislation, which varies across the country. In an intact family, the parents have the right to determine contact. It's our submission that it should be the same in divorcing families.
Second, in the rare situations - and we feel they are rare situations - where it is appropriate to have the grandparents added as parties to the divorce litigation, the grandparents may be added as parties with leave of the court. In our opinion, this provides a judicial safeguard against frivolous or manipulative claims.
.1010
Last - and I may be speaking more here to the aspect of how the bill has been presented - it doesn't just give grandparents the right to apply for access or visitation. It also gives them the right to apply for custody. In fact, it puts them in exactly the same situation as parents are in the divorce action. It's a situation where, if you read the bill, grandparents would be on exactly the same footing. They would be able to apply for custody or access.
It also invokes subsection (10), if I can use that terminology. That subsection deals with the idea in the Divorce Act that both parents should have maximum contact with the children. The bill would have the effect of putting the grandparents in the same situation there. So the court would have to deal with the situation where they're trying to maximize contact not only with both parents but with grandparents. Society being what it is today, it may not be limited to one set of grandparents, depending on how many times people have been divorced. Unfortunately, even in our line of work we get repeat business. There may be any number of sets of grandparents who could be involved in the litigation. We see that as a big problem.
Those three things essentially set out the main difficulties we see. But I would like to go over just a few practical points I feel may come up. Those are as follows.
Contrary to popular belief, in my estimation over 90% of all divorce actions are resolved by agreement and with minimal input from the courts. In other words, the divorce is put through, obviously, by the court, but not a lot of litigation is involved. In effect, it goes through on the basis of a consent agreement. We feel it's fair to assume in those circumstances the grandparents have access.
In the remaining cases, the vast majority - in other words, the remaining number of contested cases - wouldn't be dealing with grandparents' rights issues. In the eighteen years I've been practising - and it's been almost exclusively family law - I believe I've had two cases that involved grandparents' access rights.
Of the number of contested cases that may involve grandparents' rights - and we feel they would be minimal - two situations arise. One is where grandparents should be able to see their grandchildren but aren't being allowed. The second is the situation where grandparents shouldn't be allowed to see their children and they aren't being allowed.
We're not concerned with the group that shouldn't be. I'm speaking of obvious situations here: if you have abusive people - that type of situation.
So in the normal scheme of things, where parents have worked out access, they've worked out custody, the children are going to see their grandparents through the access and custody arrangement their parents have. What we're left with is an extremely small percentage of grandparents who are being denied the right to see their grandchildren. In our submission, these people are protected adequately right now by the provision in the act that says they can apply to be involved in the litigation with the leave of the court. At present the case law says as long as the application isn't a frivolous or vexatious application, leave will be granted. There aren't a lot of hurdles to go over in order to be added as an ``other person'', as the legislation refers to it.
.1015
Just so you're aware, the application for leave to be involved in the divorce litigation is done on affidavit evidence. It's usually done on an interim basis and can be coupled with an application in the divorce itself. The reason I set that out is that there's been some talk of the legislation as it now stands being very costly. In my experience, it isn't costly at all. There's simply an affidavit done up. It's presented to the court and you ask for leave to be involved in the litigation.
Also, the application for leave to be involved can be made either as soon as the divorce action has commenced or after the divorce. In other words, at any time that one of the parties to the divorce could apply for leave to bury the divorce judgment, so could an ``other person'', which in this case would be the grandparents.
The cost with respect to the litigation for grandparents seems to be a big factor. When I say it seems to be a big factor, I'm referring to what I've read in the media to the extent that I've been involved.
I think we have to keep in mind that if it's a situation where the question of grandparents' access is disputed, whether the dispute comes about after the grandparents have asked for leave or whether they didn't have to ask for leave, it's still going to be costly because a judge still has to decide what the access is going to be. Ultimately, there still could be a trial. So the bill itself isn't going to be a cost saving, other than perhaps the small application for leave to be involved in the process.
However, it may increase the cost of the litigation for the original participants, the husband and wife. In other words, if this bill went through, I would think that all grandparents would have to have notice of the divorce application. What this may mean is not only serving the other party, but serving all sets of grandparents, wherever they may be. This is a cost that the parents would have to bear, and as I've said, it may involve serving a number of sets of grandparents located in various places.
This leaves the grandparents in the situation where if this bill were to go through, they would have to be served with process. That costs money. They would probably have to retain counsel, at least to see what their rights were. We have questions about whether, if the various sets of grandparents did nothing, they are then barred from seeking redress before the courts. We're not sure what might happen.
The next concern is where to draw the line with relatives. For example, there may be an aunt or uncle in any given situation who is a lot closer than the grandparents, yet they wouldn't have the status and the grandparents would.
It's our feeling that the legislation in its present form treats all relatives equally. They all have a right to apply for leave to court to be involved in the litigation process.
There is also another concern, which is sort of a side concern. In terms of helping grandparents' rights, we should be cognizant of the fact that this legislation would only help grandparents of divorcing couples. In other words, it wouldn't help common-law marriages. It doesn't help in the situation, for example, where one of the parents dies and the widow remarries and then there's a difficulty for the grandparents to have access. It doesn't help in any of those situations.
.1020
We feel that in reality the risk in the highly litigious divorce cases - this is a small percentage of the ones I have alluded to - there is a high risk that couples will get their grandparents involved in order to manipulate the process. Unfortunately, people aren't above that. It is a situation in which the grandparents, in effect, can also be manipulated to be involved in the court process.
Another aspect is not really a legal issue, but grandparents may be frustrated by this legislation even if it did go through. What we are seeing more and more today is what I would call the usual divorcing situation; that is, both parents work, there are two children. You try to work out custody and access agreements in which both parents have maximum contact with the children. As far as quality time is concerned, that means the weekends. We may be left in a situation, if this legislation goes through, in which judges simply aren't going to add another group of players to the mix.
As it is now, the children are residing with the mother, while the father essentially gets alternate weekends. As for adding more players into the situation, we feel that a lot of judges simply aren't going to add the grandparents into the mix.
In other words, even if the legislation went through, it wouldn't guarantee access. No one can guarantee access; it is left up to the courts. All it would guarantee, I suppose, is a right to be involved in the litigation.
In the letter we sent to the committee, we made reference to the question of maintenance. To some extent, I suppose, it was a rhetorical question. We were simply questioning whether, if grandparents are given an equal footing with the spouses in the marriage, they shouldn't be faced with equal liabilities in terms of maintenance.
That is not really a frivolous question in that, depending on where grandparents live, it will affect the question of maintenance. If you have parents who live in Edmonton and grandparents who live in New Brunswick, you have a big question as far as access goes and about who is paying for it.
Last, on behalf of the national section, I suppose - this isn't really a legal representation, but just a common-sense thought - you can't legislate common sense. You can't legislate divorcing couples to have insight about what their parents have to offer their children. It just can't be done. Either it is there or it isn't there.
We just feel that in the very small number of cases in which grandparent access is an issue, it is a simple matter of applying for leave to the courts to be involved in the process. The legislation as it now stands puts ``all other people'' on an equal footing. It leaves it open to other relatives. That is subject to the judicial safeguard, which is the requirement that there be an application for leave involved.
Those are essentially my points. I would be happy to answer any questions.
The Chairman: Thank you, Mr. Andrew.
We will start the questioning - the Bloc is not here today - with the Reform party. Mr. Ramsay.
.1025
Mr. Ramsay (Crowfoot): Thank you very much, Mr. Chairman.
I would like to deal first with this letter. There seems to be a bit of confusion about the letter you sent to the committee, Mr. Andrew, dated September 18. There was some concern about whether you were representing the whole of the bar association or not. We have received a letter from Gaylene Schellenberg, from the Canadian Bar Association, stating that this letter represents the national family law section. This morning I heard something that questioned whether or not this was clear in this letter.
Who are you representing, and what part of the bar association? Are you representing the whole of the bar association? Particularly when you wrote this letter, who were you representing?
Mr. Andrew: I was representing -
Ms Thomson: I may answer that. Steve, I'll go ahead on that one.
The letter of September 18 -
Mr. Ramsay: I'm sorry, but Mr. Andrew wrote the letter, so perhaps he should answer.
Ms Thomson: If I may, I would like to answer that question.
The letter of September 18 is the position of the national family law section of the Canadian Bar Association. That letter was approved by the executive of the section with the -
Mr. Ramsay: What section?
Ms Thomson: - in accordance with the procedures set out in the by-laws of that section. As with every statement that goes ahead on behalf of either the CBA or a section or committee thereof, it must also go through another very rigorous approval process.
The approval process is set out in our by-laws. This letter, as any other statement, was approved by the legislation and law reform committee, which is a committee of lawyers from various aspects of practice. It views the letter for balance, decorum, and consistency with CBA statements. On their recommendation, the letter is then reviewed by the table officers, who are our senior executive officers: the president, vice-president, treasurer, and immediate past-president. They must approve the statement as well. All of those bodies have approved this statement as a statement of the national family law section, in accordance with our by-laws.
Mr. Ramsay: So this letter went through all those people?
Ms Thomson: Yes, it did.
Mr. Ramsay: And did all those people have an opportunity to examine this bill?
Ms Thomson: The letter was sent with the bill, and it was approved in accordance with the standard procedures as set out in our by-laws.
Mr. Ramsay: What is the form of the approval? In what form is approval granted? When they grant their approval, in what form is it made?
Ms Thomson: They give oral assent.
Mr. Ramsay: So Mr. Andrew would have received oral assent to this letter before it was sent out?
Ms Thomson: Yes, that is correct.
Mr. Ramsay: Mr. Andrew, can you confirm that?
Mr. Andrew: I can confirm that we examined the bill itself.
Mr. Ramsay: When you say ``we'', Mr. Andrew, who do you mean?
Mr. Andrew: It was a number of the executive for the national family law section, along with some other members. Essentially what the national family law section is comprised of is table officers, an executive of six people, and representatives from all across Canada - essentially the CBA branch chairs of the family law section across Canada.
I don't need to tell you the make-up, other than to say that between the branch chairs and the executive we cover all of Canada fairly well. Obviously we can't all get together to discuss something like this in great detail, but a number of us got together and the letter was sent to the CBA head office, where it went through the process Ms Thomson has described.
.1030
Mr. Ramsay: Turning to the bill itself, it seems to me that what the grandparents across the country - those who have written us and signed petitions and so on - are really asking for is more ready access to the courts to place their application before the courts for visitation rights or access rights or, I suppose in the rarer cases, custody rights. That's basically what they're asking for.
When you oppose this bill, who are you representing? Are you representing divorced parents? Are you representing their children? Are you representing the grandparents? Or are you simply representing your own association?
Mr. Andrew: As divorce lawyers, 90% of our practice is the divorcing couples. However, we also on occasion act for children and for grandparents. To that extent we're thinking of everyone.
I can say personally my thought was about how this would complicate the divorce process for divorcing couples. I'm tempering that thought with the fact that there's already provision for grandparents to be involved in the litigation process. They simply have to ask for leave of the court to be involved, as can anyone else.
Mr. Ramsay: In answer to my question as to who you're representing, what I heard you say is that your first concern would be that this bill would complicate the divorce process.
Mr. Andrew: Yes.
Mr. Ramsay: Well, that's really not what the bill is designed to do. The bill is not designed to deal with anything but the access rights of grandparents to a court so they could make application to the court in those three areas: access, visitation, and custody in the rare cases.
What is the problem with granting the grandparents these rights, inasmuch as they now have it in a more difficult form? They don't have standing, as this would grant them. What is wrong with granting them the opportunity to make their application earlier rather than later?
Mr. Andrew: I think there's a difficulty in understanding there. It won't make it any earlier or any later. If the matter goes before the courts, it won't matter whether leave has to be asked of the courts or there's been granted an automatic standing.
Our feeling is if there's automatic standing, all it's going to do is increase the costs for everybody involved. As soon as any person wants to start a divorce action, they'll in effect have to serve either the petition for divorce or some type of notice on all the grandparents. To that extent it's overkill in a big way.
For the limited number of cases where access rights are an issue for grandparents, we feel the legislation is perfectly adequate the way it is.
Mr. Ramsay: I find it strange that there are so many grandparents who are asking for this right so that they will have an opportunity to remain part of the family and remain in contact with their grandchildren and all the benefits that flow from that, and you're opposing that. What I can't understand is in whose interests you are acting. Whose interests are you representing? Are you representing the interests of the children, the grandparents or the parents of the children?
Certainly it doesn't seem to me that you're representing the interests of the grandparents, because you're opposing what they want. Why would you oppose what the grandparents want unless it denies the right of the parents, whose rights should be first? The grandparents' rights should certainly fall into a lesser category. Nevertheless, all they're asking for is more ready access so a judge can make a decision if necessary. I don't understand why you oppose that.
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The final decision on any application is going to be made by the judge. Why would you oppose that when so many grandparents from all across the country have signed petitions and written letters requesting this?
Mr. Andrew: I don't know what any of the petitions have said. If someone gave me a petition that asked if grandparents should have rights to their grandchildren, I would probably sign it too. It's an apple pie issue.
We're concerned that it puts divorcing parents in a situation of less control than that of other parents. In the normal case, if my parents want to see my children and I don't want them to, they don't see them. Just because parents are getting a divorce, why should everyone all of a sudden have the rights parents normally have to control who their children see? Parents are the guardians of their children. They make the decisions for children up to a certain age.
If this legislation were to pass, divorcing parents would lose that right. I hate to repeat myself, but in the rare situations where parents are being ridiculous and not thinking of the children's best interests, the grandparents can apply to have leave. In the grand scheme of things, it's a simple application to make in the court process.
Mr. Ramsay: I'll come back to that.
The Chairman: Mr. Regan.
Mr. Regan (Halifax West): Thank you, Mr. Chairman.
Mr. Andrew, I thank you for appearing before us.
One of my questions relates to this question of whose interests you're representing. It seems to me that if anyone would gain from grandparents being able to have more access to the courts on this issue, or having a greater level of standing before the courts in relation to divorce proceedings and custody, it would be family lawyers. It's of interest to me that where family lawyers would seem to have an interest in having this procedure go through in terms of getting more work to do for themselves, that in fact they're opposed.
Do you have a comment?
Mr. Andrew: How we're going to benefit from this isn't the first thing that comes to our minds. It was interesting when we were asked to comment on this. There was a group of us in the room, and we all just sort of hit our foreheads and thought, this is going to be horrible. All it's going to do is add to the cost of litigation, particularly for litigating parents, the ones who are in the litigation process in any event. The thought wasn't how it was going to affect us. It's interesting there's that reaction.
I've received a letter from the grandparents' rights association saying that our decision must be based on a self-interested, financial decision. If anything, it's exactly the opposite. We're concerned that divorce is emotionally charged enough and expensive enough. You don't have to add another layer of litigants into the fray.
Mr. Regan: Some arguments before us are that if grandparents had the right to have leave automatically and to have standing before the courts right away during the divorce proceedings the amount of litigation might decrease, and that some of the problems might decrease. Do you see any validity in that argument?
Mr. Andrew: The number of situations where grandparents are being denied access is so small it doesn't justify changing the legislation to this extent.
I'm sorry, I've lost my train of thought. Could you repeat the question?
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Mr. Regan: The question was about the arguments that in fact if grandparents had these rights to be involved from the start and had the same basic access to the courts as parents would have, then it might resolve some of these problems ahead of time and might actually make things better during the divorce and make it less complex.
I think you've answered that, but if you want to go on....
Mr. Andrew: That might be the result, I suppose, but our concern is that if you've got a divorcing couple that has to serve all sets of grandparents, no matter how many there may be, then that certainly adds to the cost. It might add to the cost for the vast majority of grandparents who don't have any difficulty with the legislation as it now stands, because all of a sudden they're going to be served with court process every time there's a divorce.
As legislators, you must give thought also to the 99% of grandparents who don't have a problem, who all of a sudden are going to be served with divorce petitions. I suppose the reaction would be to go and see a lawyer to see what their rights are and if they have to do anything. It's not clear what happens if they don't do anything.
Does that mean that they don't have any rights? We don't know.
Mr. Regan: We've been debating whether this bill would put grandparents in the same position in relation to custody and access as parents are in. What's your view of that? Wouldn't the court judges say that parents should still be the primary choice for having custody and access? What do you feel about that?
Mr. Andrew: My reading of it is that it puts them in exactly the same position. Section 16 of the Divorce Act says that:
- A court of competent jurisdiction may, on application by either or both spouses or by any other
person, make an order respecting the custody of or access to any and all of the children of the
marriage.
- It goes on to say that:
- A person other than a spouse may not make an application under subsection (1) or (2) without
leave of the court.
A concern we have is that the bill is being promoted as something that would give grandparents just more access or visitation rights, but in fact it puts them on the same footing as parents.
Mr. Regan: Surely if under the present system a grandparent is granted leave and is part of the process, they're in the same position now as the parents.
Mr. Andrew: Yes.
Mr. Regan: They have the same standing before the court, yet the courts generally would still favour the parents. Don't they now - in terms of custody, for example?
Mr. Andrew: Yes. What it legally says and the practical effect might be different. All I'm saying is that legally it puts them in exactly the same situation. In reality, if they had automatic standing, obviously you would still have the courts dealing with primary custody and access between the parents and ordering some type of access to the grandparents who have been denied access. But that's what they do now.
Mr. Regan: Are you familiar with the Quebec procedure? I guess there is also some provincial legislation in B.C. and some other province that deals with the issue of grandparents' rights to access and custody.
One of the issues we talked about is the constitutional issue. Where there is an intact family, where the parents are not divorced, under this bill the grandparents would not be able to apply for access and they aren't given rights under this. They couldn't be given rights under the Divorce Act for custody and access, but in the case of a divorce grandparents would be given rights.
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It strikes me that there's a constitutional problem there in that where the federal government has jurisdiction over divorcing in the divorce of parents and matters that are ancillary to that, do those matters go so far as to be able to grant rights to grandparents of divorced people that they couldn't grant in cases where they're an intact family?
Mr. Andrew: That was one of the points I attempted to make, that it creates a distinction. That's one of the difficulties. The specific constitutionality of the bill we haven't looked at. We've just looked at it as practising family law lawyers.
Mr. Regan: Do you have any suggestions for other kinds of tools, let's say? The grandparents who are coming to us feel very strongly that they have a problem and that it isn't being addressed through the present system or it's too complex, too cumbersome and too costly for them. Is there some other tool, other than this bill, that you would suggest?
Mr. Andrew: While I was reading some of the material last night, it occurred to me that it may be a simple matter of making people aware that they can apply to court. Perhaps a lot of grandparents just feel they have no standing at all before the courts, and there's no way of having any standing before the courts as far as a divorce case is concerned. Perhaps simply an educational type of thing may make people aware. I don't think there'll be a flood of people coming in. Again, only a small minority of people have the problem. Perhaps if those people are educated about the fact that they can apply to the courts under the present legislation, they could do so.
In other words, I suppose the people in these situations would go and see a lawyer and see what their rights are. They may find out they're not as shut out of the system as they think they are.
Mr. Ramsay: I'd like to follow up on what Mr. Regan touched on.
If this bill went through, Mr. Andrew, and if we could surmise a hypothetical case where the grandparents are there before the court, the position of the grandparents can never occupy the same position in the eyes of the court unless custody is in question.
Surely it should be a simple process where if the grandparents are making application for access or visiting rights the court will ask the parents if they have any objection. If they do, the court will take that into consideration. If they don't, I'm sure the court will ask what has been the normal visitation and access of the grandparents to the children, and whether they would have any objection to that continuing, or whether they would like it modified or changed. Surely this is something that would be simple and straightforward and not nearly as expensive as it's been suggested today.
Would this not, in your mind, be a simple process where the court would look after the interests of the parents as well as the interests of the children and never for a moment consider that the grandparents have equal rights to the child as the parents unless there's a question of custody?
Mr. Andrew: I think this is what is the problem with perception; that is, in 90% of the cases, that question doesn't have to be asked, because there isn't any issue over custody access or grandparents' access rights. In the normal course...and it's even a misnomer to say ``ask the judge'', because what happens nowadays in an uncontested divorce is that we send the paperwork down to the court-house and a judge reads through it, signs it and sends it back.
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The only time it really comes up, I suppose, is if a divorce goes through, there was no problem with the grandparents getting access prior to the divorce, and then after the divorce they somehow find they've been shut out. That's a problem for the grandparents and they can apply to the court.
The way it is now in 90% of the places, we don't even have to make it as complicated as the judge asking all the grandparents or the parents if there's proper access to the grandparents, because there simply is. I suppose to some extent, if it's an uncontested divorce and everybody has agreed on everything, it's assumed there aren't any difficulties with grandparent access.
In reality, when there are kids and the parents are divorcing and one has custody or primary residence and the other has access, both parents are going to have access to the kids. That is the normal scheme of things.
Mr. Ramsay: If I understand what you're saying correctly - and I think you've been fairly clear - this bill would address the concerns of just a very small minority of about 10% of grandparents. The normal procedure is that the grandparents would have visiting rights by agreement. It wouldn't come before the judge at all for consideration. It would only apply in that small percentage of cases where there are difficulties and the grandparents would then be required to apply.
If it's going to disrupt the system so little because of a small minority using this law, why oppose it?
Mr. Andrew: The way I understand it would have to work is that everybody would have to be served and involved in the litigation. In other words, if you have standing automatically in the action, you have to be given notice that a divorce is happening. That increases the expenses for the 99% of people, or whatever, where there's no difficulty at all. They would have to go out and serve both sets of grandparents, or however many there may be.
Mr. Ramsay: That's not what we have heard at this committee. We've heard differing views on service of the grandparents simply because they have standing before the court. Is it your opinion that if they did have standing before the court, they'd have to be served?
Mr. Andrew: Yes. How else would they know whether they're supposed to be involved in the situation? They have to be made aware of the court application.
Mr. Ramsay: That question was raised, and it was the opinion of some that standing doesn't necessarily require notification.
My time is up and I'll come back. Thank you.
The Chairman: There may not be time to come back, Mr. Ramsay.
Mr. Mitchell (Parry Sound - Muskoka): From listening to your testimony...are you suggesting we do not need legislation because there is no problem?
Mr. Andrew: I'm not saying there is no problem. I'm saying there is a very small problem and the legislation, as it presently stands, covers that problem.
Mr. Mitchell: So you're saying if there is a problem there is already legislation on the books to handle it.
Mr. Andrew: That's correct. I hate to give that simple an answer, but that's the reality of the situation.
Mr. Mitchell: That's cutting to the basic component of your argument.
I have a concern. In your statistical information you've used the phrase 90% and you've used the phrase 99%. I'm interested in knowing your evaluation of the problem. Is it anecdotal or statistical? Is there any kind of evidence as to how many grandparents are impacted in a negative way? Is it 1% of grandparents, is it 10%, or do we really know?
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Mr. Andrew: We don't really know. It's anecdotal. I'm basing it on my practice. I've practised for 18 years, and I've had two situations that I can recall where I've been approached by grandparents to get access to their grandchildren.
Mr. Mitchell: One of your specific concerns seems to be the cost of litigation, and you're saying if there's a cost to this legislation we shouldn't consider it. My suggestion is that no matter what we do here - when we change the Criminal Code there is a cost involved in doing it in most cases. The reason we do it is because we believe the benefit that will accrue will outweigh the cost.
Taking that argument, then, you're saying it isn't worth spending any money to change the law because the law doesn't need to be changed; there is not a problem.
Mr. Andrew: We don't think there's a problem. The cost in this case is only borne by litigants; it's not borne by the general public. I would think a change to the Criminal Code, if you use that as an example, would be covered by all the citizens of Canada. This change is covered by people who are getting divorces only.
Mr. Mitchell: You said there would be different rights if you were a parent who was not divorced than if you were a divorced parent because of this bill. It would seem to me, though, that parents generally go into a different category when they're divorced. If I'm a divorced parent, I may no longer have access to my child; if I were married, I would. So I don't see why it's so unusual that as a divorced parent I would not have the same right to deny access to my child's grandparent. There is a change in status when you become divorced, and we recognize that in terms of custody. Why would we have such difficulty recognizing it in terms of visitation rights by a grandparent?
Mr. Andrew: I know your status changes when you go from being married to being divorced, but I don't know that it should have such an impact on your rights and responsibilities as the guardian of your children to decide what's in their best interest.
Mr. Mitchell: You're saying that if a grandparent went to a lawyer today under current legislation about any of those concerns we're hearing as MPs, that lawyer would now have the power to solve that individual's problem without any new legislation.
Mr. Andrew: The lawyer would have the power to make an application for leave of the court to be involved in the process.
I'll just make up an example. If you have a grandparent who hasn't seen the kid in 10 years, and as soon as there's a divorce on the horizon he or she all of a sudden wants to become involved, a judge may not grant that person leave to get involved. The grandparent hasn't been involved for 10 years, so he or she isn't going to have the right to have standing in the divorce case now. That's a unique situation.
Everybody else is covered. It says that other people with leave can apply to the court, and that includes grandparents and any other relatives, for that matter.
Mr. Mitchell: Thank you. Thank you, Mr. Chairman.
The Chairman: Mr. Andrew, we started a bit late this morning. Are you available for another 10 minutes?
Mr. Andrew: Sure.
The Chairman: Mr. Ramsay, would you like to go with another round, and then we'll go another five minutes and five minutes?
Mr. Ramsay: If there's anyone on the other side who would like to take a turn now, I would certainly waive.
The Chairman: Okay. Mr. MacLellan.
Mr. MacLellan (Cape Breton - The Sydneys): Mr. Andrew, thank you for being in contact with us this morning. It has been very helpful.
I want to extrapolate, if I can, on one of the points, and that is the access to the courts at the time of the divorce with the consent of the court, which is the case now under the Divorce Act.
There are those who have said, and you have said, that this is the way it should be, with the consent of the court. It shouldn't be an automatic right. One of the reasons for saying that was because some people believe that at the time of the divorce having the grandparents involved confuses the issue, to which you've alluded; and that where 90% to 95% of divorces already have an agreement between the husband and wife, the grandparents' involvement would sometimes frustrate that agreement; and that where you have a simple, straightforward divorce, you would then have substantial litigation.
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There are also those who say that at the time of divorce the grandparents' rights are not really clear, that after divorce you find that the grandparents' rights perhaps are not being adhered to.
In this case, I would like your opinion on what is the case in Quebec, where the Civil Code says that you're not allowed to frustrate or interfere with the rights of a relation between grandchild and grandparent, and whether you see that as an area where we can pursue it - that is, exactly through provincial legislation - and what exactly the situation is in Ontario.
Mr. Andrew: Unfortunately, I'm not really familiar with the legislation in Quebec, other than that I'm aware that it says what you've just said.
If you have a piece of legislation that's going to give that right to grandparents - I don't know if it actually gives grandparents rights or says to parents that they can't frustrate grandparents - then to my mind, not having thought about this until you asked the question, it might be much more appropriate to have some type of legislation like that not in a divorce act at all, because then you would cover everybody equally. It wouldn't be just people getting divorced or just people who are married; it would be all situations where there are grandparents.
To my mind, it doesn't matter whether the grandchildren come from a situation where the parties are legally married or whether they live common-law or whether they didn't even live common-law. Children are children and grandparents are grandparents - it's that type of thing.
If one were to consider it on that larger basis, it might make more sense to have it in separate legislation altogether.
I keep coming back to this: despite what I'm told about petitions and everything else, I don't feel that it's a huge problem.
If you're dealing only with the situations where parties are incredibly entrenched, there are people in divorce litigation who can't agree on what day it is. They'll fight to the finish. We're afraid that's how this legislation might be invoked. It might be used in those types of situations.
If you're talking about the interests of children, they aren't going to be helped by a court battle that takes a couple of years and just entrenches everybody, including grandparents.
I don't know if that answers your question.
Mr. MacLellan: It has been very helpful, yes. Thank you.
Mr. Ramsay: I thank Mr. MacLellan for raising this.
Section 611 of the Quebec Civil Code states this:
- In no case may the father or mother, without a grave reason, interfere with personal relations
between the child and his grandparents.
We had a witness from Quebec before us yesterday, and I was left with the same difficulty in understanding the reason why this bill is being opposed, in that there is agreement.
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If I understood you right, you seem to agree that this law in Quebec is not creating the problems that you suggest might be created and that you would support it if it applied across the board, but you won't support it simply in the.... If it was provided for grandparents across the board in Canada, then you'd be faced with the same situation in the divorce proceedings in that grandparents would have access rights, certainly in this case, through the court and proved only by the court.
It seems there's a double standard here. I'm trying to understand the reasoning placed before this committee this morning as well as yesterday as to why you can support it on the one hand and don't seem to be able to support it on the other. I just don't understand that.
Mr. Andrew: Let me be clear that my comment in response to the last question was something that the national family law section as a whole hasn't contemplated. I was simply thinking out loud. I mean, I don't even know if the Quebec legislation is in the context of a divorce or not, or whether it's just general legislation that applies to everyone. If it is, then my same argument applies: why should we be singling out just people who are getting divorced?
Mr. Ramsay: Then I would ask, if this bill were broadened to encompass that concern would you support it?
Mr. Andrew: It can't encompass that concern, because it's an amendment to the Divorce Act.
Mr. Ramsay: I guess my question is that if legislation were passed with the spirit of the law directed toward those ends, would you support it?
Mr. Andrew: I can't really say that. I can't contemplate that happening. We would have to review it. I can't comment on a hypothetical question like that.
Mr. Ramsay: To be less hypothetical, I go right back to section 611, which I think conveys the spirit of this bill. It's operative now in the province of Quebec, where there are about 7 million people and many grandparents. They have access and the benefit of this law, and yet when we attempt to apply similar rights to grandparents through the federal statute, it's being opposed by you and your organization and by a family law lawyer from Quebec, who appeared yesterday. I don't understand that. I don't understand how the spirit of section 611 can be supported in this case in Quebec, and yet not be supported in the amendment to the federal Divorce Act. I can't understand that.
That's not hypothetical. If you could help me out there, I'd appreciate it.
Mr. Andrew: I think, to be fair to everyone, I can't help you out there. I'm not that familiar with the act. I think it's unfair for me to give an answer off the top of my head. I don't even know in what context section 611 comes up. I can certainly review that and make a further submission to the committee on behalf of the section.
Mr. Ramsay: Would you do that? I would appreciate it, perhaps after examining the Civil Code of Quebec. With respect, when I read your dissertation to the committee I assumed that this kind of provincial statute had been considered.
Mr. Andrew: Unfortunately, it hasn't. Provincial legislation is different in every single province. It would be a mammoth undertaking to compare it all, and in all situations.
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The Chairman: Mr. Ramsay, on a point of clarification.
Mr. Ramsay: It's just a point of clarification, Mr. Andrew. I think it's important to state that section 611 in the Civil Code of Quebec refers to the rights between grandparents and grandchildren through a provincial law. That in no way would give grandparents equal access under the Divorce Act any more in Quebec than in any other province in Canada. There is not the right within the Canadian government to give, through the Divorce Act or in any other way, equal access for all grandparents, but particularly in the Divorce Act.
The Chairman: Thank you, Mr. Andrew, for appearing before our committee today and making the views known of the national family law section. Thank you to Ms Thomson for appearing as well.
There will be a short steering committee meeting right now.
[Proceedings continue in camera]