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EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, November 7, 1995

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[English]

The Chairman: We'll continue our hearings on Bill C-232 this afternoon. I believe this is the last witness we have on this bill.

We have with us Charles Merovitz, barrister and solicitor. Mr. Merovitz, you can make your presentation and then we'll go to questions and answers.

Mr. Charles L. Merovitz (Barrister and Solicitor): Thank you, Mr. Chairman, members of the committee.

I've submitted a brief on behalf of Grandchildren's/Grandparents' Right Of Wholesomeness Through Heritage, or GROWTH. GROWTH was formed in 1994 as a result of a group of grandparents who were concerned with the failure of the provincial and federal legislation to adequately address the issue of grandchildren's right to visit with their grandparents.

These concerns relate primarily, but not exclusively, to the issues of the failure of both the federal and provincial legislators to recognize grandparents' significant role in the family, and to distinguish the grandparent-grandchild relationship as a distinct type of relationship. That relationship is now only accorded the same value as a child's relationship with any third party.

In addition, there was a failure of provincial legislators to provide that grandparents should receive notice of any application to declare a child in need of protection, and therefore a ward of either the Children's Aid Society or the Crown; the failure of provincial legislators to require that grandparents receive notice of an intended adoption; and the failure of provincial legislators to provide that a step-parent's adoption does not affect grandparents' access to grandchildren. I know this committee is only concerned with federal legislation, and it's to federal legislation that I'll direct my brief.

I'm a lawyer and a volunteer. I bring a grandchild's perspective to GROWTH. I dedicate my service in the memory of my wonderful grandparents, who are all dead now but provided me and all their grandchildren with some of our warmest childhood memories. I know I would have been devastated if anyone had denied me the right to visit with them.

I am a lawyer with almost 20 years' experience. I've had much exposure to family law. I've served on the Official Guardian's Panel and often provided independent legal representation to children. I'm proud to say I was a successful lawyer in the first Ontario case in the appellate courts that unequivocally stated that access is a child's right. The Ontario legislation was amended after that case to reflect that principle.

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Grandchildren and grandparents have a special relationship. As early as the days of the Bible, grandparents have demonstrated a special relationship with grandchildren. In the book of Ruth, Naomi was the grandmother of a boy, but it was said a son was born to Naomi. This special relationship has continued to modern times.

The two best publicized current events demonstrate this attachment. The children of O.J. Simpson and his murdered wife are being cared for by the grandparents, and probably the most moving eulogy at the memorial to Yitzhak Rabin was the speech of his granddaughter who talked about the hugs and kisses she received from this man.

Arthur Kornhaber, the noted child psychiatrist, researcher and author, states:

He states that not only were children with close grandparents more rooted in their families and communities, but they felt very emotionally secure. Kornhaber states:

He states that children love to hear stories of the ``olden days'', demanding to hear them over and over again. In this way, grandparents' stories become part of the child's own life story. In their capacity as living historians, grandparents transmit ethnic heritage. He states that a child who has a close grandparent is less likely to fear old age or revile the aged than a child who's bereft of such a grandparent.

Fredelle Maynard, a grandmother and part-time journalist wrote:

Parents' expression of love is often complicated with need, ambition, exasperation or pride. There is most often pressure to go further and achieve more. All grandparents want is for their grandchildren to be happy. Grandparents serve as mentors and teachers to their grandchildren, giving them the benefit of years of experience and a sense of their history that cannot be obtained from any other source.

The grandparent-grandchild relationship may provide the child with a vital sense of continuity when everything else in the world seems to be falling apart. When parents are separating, grandparents can help to minimize this conflict by giving the child a place to turn for support and someone to talk to about their feelings. The grandparents are close enough to the child to have his or her confidence and trust, but removed enough from the situation to allow them to listen to the child's point of view.

A survey of cases referred to the Toronto Family Court Clinic in the period of June 1985 to June 1986 determined that one-third of parents and three-quarters of the children had lived in a grandparent's home during or after a parental separation.

Judge Steinberg, who's a noted family court judge in Ontario, stated in the case of Children's Aid Society of Hamilton Wentworth v. M:

Historically, grandparents had no right of access to grandchildren, as parents were entitled to decide all matters relating to their children. More recently, access laws provide that access is a child's right. This has replaced the previous concept of the unfettered discretion of the custodial parent.

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Judges are now required to decide whether access is in the best interest of the child. In our submission, it is too often determined by judges, and too open to allow them to determine that access to grandparents causes too much conflict and therefore ought to be denied.

It is obvious that in any case in which grandparents must resort to the courts to obtain a right of access to their grandchildren, there is going to be conflict. We submit that legislators must protect grandchildren by preserving this grandparent-grandchild relationship by requiring serious cause to deny access to a grandparent.

Since the late 1800s, France and Belgium have recognized the unique relationship between grandparent and grandchild, and through either legislation or jurisprudence have provided that parents may not, without serious cause, place obstacles to personal relations between a child and grandparents. Since 1980 the Quebec Civil Code has similarly provided.

This type of provision recognizes that the personal ties of the grandparents and grandchild must not be interpreted as an intrusion into the life of the custodial parents, but is an opportunity for the child to maintain a link with his or her history and cultural heritage, as well as an opportunity to maintain that unique relationship with his or her grandparents.

Legislative amendments are required. Legislation creating a presumption in favour of maintaining the grandparent-grandchild relationship would likely alter the behaviour of custodial parents who might otherwise withhold access to grandparents without good cause. Custodial parents are often desirous of denying or curtailing access to non-custodial parents for a variety of reasons ranging from inconvenience to concern about the parenting skills of the non-custodial parents.

It is now assumed, however, that access by the non-custodial parent is likely to benefit the child over the course of the child's life. Access to a non-custodial parent is now denied only because of apprehension of harm to the child. Custodial parents have been made aware of the state of the law and litigation attempts to deny access to a non-custodial parent occurs only in rare cases.

In our submission, it's time for the legislators to similarly recognize that access by the grandparents is likely to benefit the child over the course of the child's life and should only be denied in extreme cases. It's submitted that this new state of the law will become known and will not lead to additional litigation, as it will be accepted that grandparent access will be denied only in extreme cases, similar to the situation regarding non-custodial parents.

We are required to seek legislative changes from both federal and provincial legislators due to the constitutional division of powers between the provinces and the federal government.

We are now dealing with the federal power over divorce. I've read in previous testimony that some concern has been raised as to whether or not the present legislation is problematic. I submit that it is. An Alberta study of divorce and access, which is shown in my bibliography, found that 54.2% of extended family members who had participated in the study reported that they had experienced difficulties visiting and maintaining contact with grandchildren, nieces and nephews following separation of the parents.

This isn't a problem that can necessarily be dealt with by provincial legislation, as has been suggested in some previous testimony. There are cases such as the case of Sheldon v. Sheldon in the British Columbia Supreme Court, where it was held that because custody had been awarded to a spouse under the Divorce Act, provincial legislation could not be used to obtain access for a grandparent. Therefore, it's left to the federal legislation. I have provided you with a table of provincial legislation that shows the discrepancy between the various provincial acts.

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One of the concerns I've heard raised by this committee is the inconsistency with provincial laws and the possible discrimination that would exist if this bill granted to grandparents the distinction sought. I submit that if you examine the existing legislation, then you will see that now federal legislation in a sense discriminates against grandparents because of that requirement for leave to apply for access. That requirement for leave to apply for access is not found in most provincial legislation, yet if the Sheldon v. Sheldon case is correct and grandparents cannot resort to provincial legislation once there's been a divorce order, then, in effect, notwithstanding that provincial legislation would have allowed grandparents to apply without leave. Federal legislation denies them that right, and therefore is discriminatory, which is one of the arguments that has been raised for not amending the legislation. It's my submission that the argument is erroneous.

Somebody has to be a leader. Otherwise, the provincial legislatures can refuse to take any steps on the basis that their law would be different from the federal legislation, and conversely, the federal legislators can refuse to take any steps on the basis that their law will be different from the provincial legislation.

Some of the provincial legislators are attempting to grant to grandparents the distinction that we seek. In speaking in favour of legislation, in favour of grandparents' rights, the Hon. Edmund T. Blanchard, the Attorney General and Minister of Justice of New Brunswick, on April 13, 1994 said the following:

On April 28, 1994, Bill 156, a private member's bill, was proposed in Ontario by Tony Rizzo, MPP for Oakwood. Section 2.1 of that bill provided that ``a person who has custody of a child shall not unreasonably place obstacles to the personal relations between the child and the child's grandparents''. This private member's bill did not proceed, but it is an indication that at least one particular legislator has attempted to move the provincial government to recognize grandparents' role as we are now asking you to do.

I can't stress enough that you are being asked to send a message - a message to grandchildren that grandparents are extremely significant; a message to parents that this significant relationship should not be disturbed without grave reasons; and, most importantly, a message to provincial legislators that, like Quebec, the federal government recognizes that a grandparent-grandchild relationship is second in importance only to a child-parent relationship and this relationship should be acknowledged as a legal statutory presumption because the importance of the relationship is evident.

The federal government has, in subsection 16(10) of the Divorce Act, assumed that access to a non-custodial parent is presumed to be in ``the best interest of the child''. I submit that it is just as evident that access to a grandparent is in the best interest of a grandchild. There may be cases in both categories where examples can be found to doubt the accuracy of this presumption, but I submit that history, literature, experience, and common sense support this presumption.

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There's concern raised about the potential for increased litigation by grandparents. I can't give you statistics, but I can tell you it was my experience that there was much more litigation relating to a non-custodial parent's right of access when the custodial parent had the right to determine the access that would be provided. When the legislators amended their assorted legislation to presume that the non-custodial spouse should have a right of access except in exceptional circumstances, the attempts to deny access by the custodial parent almost disappeared.

I doubt that there will be increased litigation as feared. I submit that what is more likely to occur is that there will be an acceptance of the grandchild's right of access to the grandparent, and that may even lead to less litigation.

We submit that children have an inherent right to associate and love their grandparents whether or not there has been a death, divorce or separation within the family. We urge the speedy and effective enactment of laws protecting the inherent right of children to have their grandparents be an important part of their lives.

Article 5 of the Convention on the Rights of the Child, which was adopted by the General Assembly of the United Nations on November 20, 1989, requires state parties - and Canada is a state party - to respect the responsibilities, rights and duties not only of parents but also of members of the extended family. In tribute and acceptance of 1994, The International Year of the Family, we urge the implementation of laws that would protect intergenerational relations.

We submit that the following changes should be made by the federal government.

The Divorce Act should be amended to recognize grandparents as a distinct category of third persons who may apply for access to a child without requiring leave of the court.

The Divorce Act should provide a presumption that this relationship will be in the best interests of the child, and this relationship should therefore not be disturbed unless it can be demonstrated to a court that it is not in the best interests of the child for the grandparents to have access to the grandchild.

If this committee thinks that the changes proposed in Bill C-232 go too far but agree that grandparents should be granted distinct access, then in our submission amendment of the draft legislation would be acceptable that would delete the leave requirement only as it related to access and maintain the leave requirement as it pertains to custody, delete the information request, delete the reference to past conduct - although we see no reason to do so - but maintain the proposed amendments to subsection 16(10), which states:

Thank you.

The Chairman: Thank you very much.

Now we'll go to the period of questions and answers. Madame Venne.

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[Translation]

Ms Venne (Saint-Hubert): First of all, in spite of what you have just said, I still believe that the Divorce Act is not the appropriate vehicle to make it easier for grandparents to have access to a child or even to win custody of that child.

Don't you think that grandparents of children from divorced couples will have more rights than those of children whose parents are not divorced?

[English]

Mr. Merovitz: No, I don't believe that, and that's not what we're asking for.

[Translation]

Ms Venne: Given the text of those amendments and the fact that it was decided to do it through the Divorce Act, those sections will apply only after a divorce. For that reason, I say that those grandparents will have more powers and more rights than others.

[English]

Mr. Merovitz: That's not exactly correct. First, in Quebec grandchildren of undivorced parents have more rights than do grandchildren of divorced parents, as it stands right now.

[Translation]

Ms Venne: In Quebec... Yes, I agree with you.

[English]

Mr. Merovitz: There is the reality of the division of constitutional powers. The federal government was given the power over divorce, and therefore, as I mentioned in my speech, somebody has to be a leader.

The legislation of the provinces and that of the federal government are not always the same. In fact, before the Divorce Act was amended, the provinces amended their legislation to indicate that access has to be determined with respect to the best interests of the child. That's because there's the reality of different legislative bodies.

So at the same time as we are asking the federal government to give the message that the grandchild-grandparent relationship is a special relationship, we are asking the Ontario government and the other provincial governments across the country to give grandparent-grandchild relationships the same status. But if nobody goes first, and if everybody uses the argument that they can't because then there's going to be a different relationship under federal law or under provincial law, then no change will ever occur.

[Translation]

Ms Venne: I remain convinced that the provinces should be the ones acting in this matter. Of course, each of us is entitled to its own opinion!

In your own opinion, what more will this Bill give to the grandchildren of those grandparents? I understand fully the grandparents' interest, but I would like you to explain how it can really do more to help those grandchildren.

[English]

Mr. Merovitz: I think it would give to the grandchildren what I talked about - the right to have that special relationship with their grandparent, the right to have that unconditional love they get from their grandparent.

[Translation]

Ms Venne: They already have that right.

[English]

Mr. Merovitz: But after a divorce, if a parent tries to deny a grandchild that kind of visiting with the grandparent, the Divorce Act now makes it more difficult for that right to be allowed to continue.

[Translation]

Ms Venne: Thank you. That's it.

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[English]

The Chairman: Mrs. Jennings.

Mrs. Jennings (Mission - Coquitlam): I'd like to thank you for your presentation,Mr. Merovitz. I certainly agree with it. It's very pleasant to have someone here who has actually been working in these issues and has the experience.

A lot of the things you have said are also things I have been trying to get across for the last two or three months.

First of all is a child's right to have a relationship with her extended family. I was just reading over Barbara Baird's testimony; she's one of the lawyers who was here last week. She stressed in particular that she recognizes, from working with children - and the New Brunswick legislature now recognizes this - it's the child's right.

I also just recently read a long series of papers on the American point of view. They stipulate very strongly that it is a whole change of view. It is no longer the right of the parent who has custody to make decisions; it is the child's right. The United Nations agrees.

I just want to reiterate that. I believe that's what you stressed. It's the child's right of access to the family we are talking about here, not the parent's right.

Mr. Merovitz: Absolutely. Fifty years ago children were chattel. It didn't matter what they thought or what was in their interest. Twenty-five years ago, children were no longer chattel, but a parent had a right just by virtue of having given birth to a child.

With the changes in the last ten to fourteen years, there's no question that custody and access are all child-centred. It all depends on what is in the best interests of the child.

Mrs. Jennings: There are a few items here that I wonder if you could make clearer for me and for our committee today.

Is it okay to proceed with this bill in isolation? You may be aware that in the justice area we have a review going on in the area of custody and access. Is it okay to proceed with this bill as it is?

Mr. Merovitz: This bill as it is, perhaps subject to some amendments that I know you've conceded are reasonable, I see as declaring that the federal government finds there is a sanctity to a relationship between a grandchild and a grandparent and that relationship should be fostered. Grandparents aren't to be treated the same as a neighbour, who would have to apply for an access right, or an uncle, who would have to apply for an access right.

Largely in recognition of what Dr. Kornhaber says, the emotional bond between a grandchild and a grandparent is second only to the bond between a child and a parent. It is definitely time that relationship be accorded the status it deserves.

Mrs. Jennings: You've also dealt with the increase in litigation. This is a really important issue.

Something I have been saying for some time is that this will not mean an increase in litigation. It is very unlikely it could happen. Just the reverse would be true if a whole new action had to be started up, with lawyers and the parents coming back and everything like that.

I notice Ms Baird also said it was not, and it has not been the case in New Brunswick, where they have it actually working now in the provincial law. Could you tell us again your position? Will it mean an increase in litigation to have it all done at the same time?

Mr. Merovitz: My opinion is there won't be. My opinion is based on my experience dealing with access disputes regarding non-custodial parents.

When I started my career, it was common to have custodial parents try to deny access 100% to a non-custodial parent because he was known to be a drinker and shiftless and lazy. Thousands of dollars in litigation were often spent on trying to deny access to a non-custodial parent.

Psychologists started to become concerned about the effect on the child in later years if they had absolutely no access to the non-custodial parent. The child would feel abandoned. Inroads were made with respect to the rights of the children, and gradually it became accepted that non-custodial parents had the right of access. In fact, it wasn't their right of access; it was the child's right of access.

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What came to be realized was that if you had a non-custodial parent who was a drunk, then rather than try to deny him access altogether you should try to find some reasonable accommodation. Perhaps the parent would have to refrain from drinking for a period of 24 hours before the access visit and during the access visit. There would be supervised access.

All I'm saying is that the net effect, in fact, was that there is less litigation involving access rights to non-custodial parents, because it's taken as a given that a non-custodial parent is entitled to access.

Mrs. Jennings: Thank you. I also want to know if you think it matters that the word ``grandparents'' is not defined in the bill?

Mr. Merovitz: That's a tough question. Lawyers can make a word mean anything they want it to mean, I guess.

Put it this way. It might result in some litigation to define the term ``grandparent'', whether it applies to a step-grandparent, whether it applies to a de facto grandparent in a common-law relationship. Perhaps it would be beneficial to define grandparent if you wouldn't have to spend too much time on deciding whether or not you were going to accord that status to a non-biological grandparent.

If you're talking about the bond, I would suggest that that bond could probably be created just as easily with a non-biological grandparent who is seen as a grandparent by the grandchild, and has always been seen as a grandparent by the grandchild, and with a grandparent who has always seen the non-biological grandchild as a grandchild.

Mrs. Jennings: There has also been a lot of comment on the fact that in a bitter divorce case, the grandparents being there will just add to all the turmoil. There is already this person and that person, and everybody's upset, and all of this. I suggested at the time that in fact the grandparents could be a calming influence.

I was interested in reading Ms Baird's article and what she said last week. In fact, she said that is exactly what has happened in the cases she has been involved with in New Brunswick. The judges often look through this maze of discontent and disagreement and see the grandparent, who really has only one main idea: the love of the child, the wish to see the child. And they don't get the courts being swamped by all these grandparents who suddenly want to apply because they suddenly have a right to apply, but rather only those that are interested.

Could you comment on that, please?

Mr. Merovitz: I think it would be naive to think there aren't going to be some grandparents who would abuse the legislation; there are people who abuse all kinds of legislation. But certainly in my experience, grandparents do provide a lot of comfort to grandchildren when they're going through times of turmoil, such as a separation or the death of a loved one.

Any time you're dealing with legislation, you have to weigh the good with the bad. There may be a small opportunity for abuse, but I submit that the goal of this legislation and the good that this legislation would do, far outweigh any harm there might be because of the possibilities of abuse.

The Chairman: Thank you, Mrs. Jennings.

Mr. Knutson.

Mr. Knutson (Elgin - Norfolk): Thanks very much.

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As a general point, I think all of us at the table have to deal with the issue - understanding the importance of a healthy relationship between a grandparent and a grandchild, the value that they provide. I didn't really experience that myself, but I have children of my own and certainly know the value they get from their relationship with their grandparents. So I think we can take that as a given, for my questions anyway.

But a number of your colleagues from the bar have suggested that a divorce action is the worst time to be dealing with this issue. They think that bringing in potentially four grandparents - and there may have been marriage break-ups and remarriages, so you might have as many as six or eight grandparents coming to the table, all bringing their points of view.... I think the term one of the witnesses used was that it's a bad time to have them ``mucking around''; that you should just deal with the break-up between the parents, get it over with, let that settle down, and then leave it to provincial law to sort out the access at some other point.

That was, I think, a fairly consistent message that we got from family practitioners, at least early on in our hearings. I wonder if you could comment.

Mr. Merovitz: Yes, I read their evidence, actually, and I was surprised that none of them mentioned the possibility that the grandparents would be denied access - if you don't mind my using that word - to the provincial legislation because there has been a divorce, as happened in the case of Sheldon v. Sheldon in the British Columbia Supreme Court. So it's not as simple a matter, I would submit, as they put forth to you.

The other thing I would say to that is that I would hope that the litigation aspect of it would not occur, and that what would happen - and I submit that what is more likely to happen - is the scenario that I presented with respect to the non-custodial parent's right of access. That is, once it just became a given that grandparents were entitled to access, you wouldn't see the courts clogged up and you wouldn't see grandparents making a divorce situation more complicated.

I'm aware that there certainly are those witnesses who had concerns about it, but I go back to what I said, that you have to weigh the benefit against the harm. The big concern I have, from reading all the evidence, is that this committee is missing the major point, which is that if this committee doesn't grant to grandparents this distinction, the provincial legislation can't do it, if courts determine, as in the Sheldon case, that provincial legislation can't be resorted to once there's been a divorce.

Mr. Knutson: Fair enough.

Could we talk about notice for a second? There's been some general concern that when adults get divorced, they don't want to have to tell their parents. It seems to me, unless we put a notice provision in, that we could have a nice piece of legislation, but if grandparents aren't notified, they're not going to be able to appear and then the issue won't come up. Where do you stand on that issue?

Mr. Merovitz: I think that the legislation as it stands does not require a notice.

Mr. Knutson: That's right.

Mr. Merovitz: I may differ from some of the proponents of this bill. I'm not sure that notice is a good idea. I think that grandparents who are entitled to this distinction we seek will know what's going on, and it's those grandparents I think that are entitled to the distinction.

Mr. Knutson: So you don't see a requirement for notice, then, in the bill?

Mr. Merovitz: No, I don't.

Mr. Knutson: You made a point about the threshold - applying for leave to the court which establishes a threshold that has to be satisfied before the grandparents come into the court. I sense you think it's appropriate in the cases for custody and other matters, but not appropriate in access cases. Have I read that right?

Mr. Merovitz: You have read that right. I concede that grandparents should not necessarily be on the same level as parents with respect to custody, but that argument has no merit, in my opinion, with respect to access.

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Mr. Knutson: That's all I have. Thank you.

Mr. Ramsay (Crowfoot): On the matter of notice, we were advised by the witness from New Brunswick that notice was not a real problem. They don't have notice requirements under the provincial statute in New Brunswick. It does not deter grandparents from somehow finding out their children are divorcing or from making their concerns known to the court.

From that, I would assume this amendment really doesn't have to have that requirement in it with the ramifications and concerns that some people have raised, not only the witnesses but members of this committee, over that question.

I think everyone on this committee is interested in what this bill is aiming to do. I have some concerns about whether or not this bill is going to make it through. I'd feel a lot more comfortable if it was coming from the government side rather than from a private member.

Nevertheless, I'm hoping members on all sides of the table will take the matter to their caucuses in a convincing way and that we will make amendments to this bill that will save it and its intent.

We've had witnesses before the committee dealing with the constitutionality of the bill. Professor Joseph Magnet appeared and gave us his opinion, which is that this bill is constitutional.

Of course, I don't think legislation should be created on hypothetical scenarios. We need factual and statistical data, if it's available, and we should be very careful of it.

Although we project what we think might be the negative aspects of any bill into the debate - there's nothing wrong with it - I think we should avoid creating legislation simply based on perhaps an extreme example, or perhaps an abuse of the bill that might occur in remote instances.

What I have seen raised as a concern is the cost in terms of additional litigation being created by this bill and greater complication with the addition of the grandparents' intervention into divorce proceedings. So far, particularly with the witness from New Brunswick, my concerns in that area have been alleviated somewhat.

I know you touched on this already, but would you just focus again on that in terms of the cost, creating greater litigation than what is occurring now when grandparents are attempting to gain access, and whether or not it does cause a greater complexity when grandparents suddenly have standing in what amounts to a divorce case.

Mr. Merovitz: That's a very multifaceted question. Let me first say that with respect to notice in Ontario, parties are only required to obtain notice of a proceeding if the legislation itself requires it, or if they are what are considered necessary parties.

There is no real definition of ``necessary parties'', but I can tell you it's my opinion that unless there is some positive obligation inserted into the Divorce Act to give grandparents notice, then there is no requirement for them to get notice every time there's a divorce. As I said, the benefit of this clause will go to the people who basically have earned it, who are those who know what's going on in their grandchildren's lives.

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With respect to greater costs of litigation, it's my belief that once everybody is aware that it has been presumed that a grandchild is going to benefit from access to the grandparent, then there will not be attempts to block that access or increased litigation. This was my experience with attempts by custodial parents to block the access of non-custodial parents.

I'm saying that people will simply accept that this is the situation. We'll start off with a given, which is that little Johnny or Sarah is entitled to access to his or her grandparent. How are we going to accommodate that as opposed to legislation that's silent? Now mom can say she doesn't think it's very convenient for Sarah to see her grandmother, so she doesn't want to do that.

Here is what I'm getting at. This is the message I'm giving the federal government. Grandchildren-grandparent relationships deserve the recognition by the federal government that it's a special relationship.

Dr. Kornhaber said that as an emotional bond this is second only to the bond between parent and child. I'm asking for the recognition by the federal government that this exists. I submit that if the federal government gives it the recognition that within no more than two years the provinces will follow suit, then every grandchild in this nation will be better off.

Mr. Ramsay: Thank you.

The Chairman: Mr. Regan, five minutes.

Mr. Regan (Halifax West): Mr. Merovitz, I want to thank you for coming today. I know you've done quite a bit of work on this. I have the impression it's on a pro bono basis, and you're missing billable hours right now, I'm sure.

I want to ask you about a couple of matters. One concern I have about this bill is that it fails to distinguish between grandparents who have had a close relationship with children and saw them on a regular basis and those who don't, meaning that they have seen them either not at all or very rarely.

I think there's a big difference in that situation. This bill doesn't distinguish that. They have the same right of access, which is automatic standing, before the courts in divorce actions in this matter.

It brings forward the issue you talked about, which is the question of defining grandparents as biological or non-biological. It's the question of what the basis of this connection is. Is the basis of the connection the relationship that's there between them or is it something else that's biological and genetic, such as the fact that there are ties of family, meaning direct parent-child ties and so forth? If it's simply non-biological and based on relationships, then how is it distinguishable from the relationship between a child and their parent's friend who sees them, for instance, perhaps much more often than the grandparent sees them?

Mr. Merovitz: I've given some thought to that. It's not an easy answer. On the one hand, the easy answer is to accord this status only to grandparents who have formed their relationship with the grandchild.

It's perhaps arguable that this is what the Quebec court does by virtue of the wording such that in no case may anybody place obstacles to personal relations between the child and the grandparents. You might argue that it means the relationship already exists.

But I also know of cases in which, from the time the child is born, as was the case in the Bible in which a son is born to Naomi, from the time an individual learns of the existence of a grandchild, at least on the grandparents' side, that bond is there. The benefit to the child to be gained in the future is evident.

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I've seen cases in which grandparents have fought for custody of children they had never met who were about to be given up for adoption. It was just because of the bond that was instantly there by virtue of the child being alive. All I'm saying is that it's not an easy question.

Mr. Regan: But it seems, from what you're saying, that this is primarily in the mind or on the part of the grandparent. Obviously the grandchild, not having any knowledge of his grandparent, wouldn't have that sense of a bond in the same way. But you're saying it's a benefit to be had.

Mr. Merovitz: Yes, it's a benefit to be had in the future. That's right.

Mr. Regan: You talked about a problem. If custody and access is decided in a divorce, the provincial legislation, according at least to the Sheldon v. Sheldon case, might not be applicable. It might not be used by grandparents to gain access and so forth.

Mr. Merovitz: Well, the Sheldon v. Sheldon case definitely said that. Whether it would be appealed by appellate courts and whether it would be followed across the country, I can't tell you.

Mr. Regan: That's the question. But couldn't the federal government correct that problem by saying in the Divorce Act that provincial law would apply to provide for access and custody in the future?

Mr. Merovitz: I don't think so. I'm not sure, because I'm not a constitutional expert. It would probably be better if Professor Magnet considered this.

I'm not sure it can just do that. If it could, the federal government would have been happy to say that about custody and access entirely and not deal with it at all in the Divorce Act.

Mr. Regan: Perhaps or perhaps not. I think it's obvious that because people are divorcing, it's likely they're going to be dealing with the issue of divorce or custody between the two people who are actually divorcing. That's obvious.

I'm just suggesting to you that considering the fact that, generally speaking, the matter of access and custody is a matter of provincial jurisdiction, except where there's divorce, it seems to me it would be quite easy for the federal government to say it would not interfere with the rights of the provinces to deal with this issue after there's been a divorce. It's in charge of dealing with this divorce between two people who have been married, and that's it. The relationship between those grandparents and those children is a matter, after the divorce is dealt with, for the provinces to decide. That's a constitutional question you don't want to get into.

Mr. Merovitz: I'm saying I'm not sure the federal government can do that.

The Chairman: Mr. Merovitz, one of the problems that have come up during the hearings deals with the responsibilities of the federal government and the provincial government and the division of powers on this particular issue.

As you mentioned, the Divorce Act is in the jurisdiction of the federal government, and custody and access is provincial. Because of the ancillary relief that's granted in the Divorce Act, the Divorce Act deals with custody and access in a divorce situation. But grandparents are never a party to the divorce action.

I realize we've had an opinion from Professor Magnet, but I don't necessarily agree with him and his opinion. The reason is that the grandparents are never a party to a divorce action. Aren't we really trampling here on provincial rights by trying to allow grandparents to apply and to deal with their rights under a federal piece of legislation when it's really, perhaps, provincial legislation?

Mr. Merovitz: I think I would adopt the answer of Professor Magnet for that. I also read his transcript. What he said with respect to that issue - I do think it's correct - is that the federal government has already made provision for non-parents to apply, but they need leave. So if that provision is constitutionally valid, then so would the provision giving grandparents distinctive status.

The Chairman: I'm not sure that's been challenged. That's a concern.

You mentioned a concern you have. You enumerated a number of them at the end of your presentation. But one of the concerns you have is that grandparents have a right to access, except when it can be perhaps shown that they shouldn't have access. I think that's what you generally gave in your presentation.

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Do you feel this particular bill before us is in fact going to accomplish even part of that, or should we be looking at a different piece of legislation to deal with that aspect?

Mr. Merovitz: Oh yes, it goes a long way toward accomplishing it. It perhaps doesn't go as far as some of the grandparents' groups would have liked, but it does go a long way.

I refer you to the proposed amendment to subsection 16(10), which basically says the court shall give effect to the principle that a child of the marriage should have as much contact with each grandparent as is consistent with the best interests. That would give a clear signal to the court that the federal government thinks the relationship with the grandparent is significant and is worthy of status above that of any other third party.

The Chairman: Thank you.

Mrs. Jennings.

Mrs. Jennings: First, I'm a little concerned about this discrimination argument. I have trouble with it myself, because as a grandparent with four sons, no divorces in my family yet, and seven grandchildren, I have rights far and above those of any grandparent in a divorce situation. I can see those children at any time. I can inquire as to their health and welfare at any time. I am in a very privileged position.

I find it very odd that someone would object - even though we've agreed to remove the information clause - to a grandparent being given visitation rights and the right to ask, ``How are you doing? How are you doing in school?'' and things like that. Can you comment on that? Who's being discriminated against here? Shouldn't the grandparents have extra rights in a divorce situation because they are suffering and are being penalized in certain ways?

Mr. Merovitz: To answer the second part of your question, I'm not sure.

To deal with the question of discrimination, let's use you as an example. You're from British Columbia. We have the British Columbia provincial legislation in front of us. In a non-divorce situation where you're having a problem with your grandchildren being denied access to you, you could bring an application under the Family Relations Act. You would simply go to the appropriate British Columbia court, say you're being denied access and that access is in the best interests of your grandchild. You would tell the judge that therefore you would like him to give you access.

But if one of those two spouses had divorced and there was a divorce custody order, according to the Sheldon case - which happens to be a British Columbia case - if you tried to go to the provincial courts and do that same scenario, you're likely to be met with, ``Sorry, Mrs. Jennings, Sheldon v. Sheldon says this isn't the right place for you.''

So you'd ask your lawyer where the right place is for you. He'd tell you that now you have to go under the Divorce Act to vary the original custody order; and you'd say, ``Okay, that's great, apply.'' He'd say, ``Whoa, it's not that easy. You need leave under the Divorce Act.'' So in fact in British Columbia and in Ontario, because the legislation is similar, in a divorce situation grandparents are discriminated against because they need leave.

I read something in the transcripts that I take great exception to, and that was how simple an application for leave is, because while it's correct that it's done on affidavits, what wasn't explained is that there is a right to cross-examine on the affidavits. The cross-examination can take several hours. The preparation for the cross-examination can take several hours. It probably means there is a trip to court before the cross-examination and another one after the cross-examination.

Often undertakings are given on the cross-examination. Your lawyer has to respond to those undertakings. You can then be re-examined on the undertakings. It's by no means the simple process that seems to have been portrayed to this committee, and it's a very expensive process.

Mrs. Jennings: In fact, the passage of Bill C-232, which would not require leave of the court but would give them automatic standing, the right to ask, would make things a lot simpler for the grandparents and our grandchildren to see each other.

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Mr. Merovitz: Absolutely, and it would remove the discriminatory bar of being required to apply for leave in a divorce situation, when you don't have to apply for leave in a non-divorce situation.

Mrs. Jennings: I would just like to point out, too, Mr. Merovitz, something I should have said at the beginning. I apologize for not having done so.

I think you're aware of this, but grandparents have said to me that we are not talking about grandparents' rights here; we're talking about grandchildren's rights, and I'm sure you'll agree with me.

Mr. Merovitz: I appear as a grandchild, because I am one.

Mrs. Jennings: Had it been possible for the grandparents in British Columbia to be set up as the grandchildren's association, they would have done so, but that was an impossibility. They are speaking for thousands and thousands of grandchildren who cannot speak for themselves in this matter. And I know you agree with me on this.

Mr. Merovitz: Yes.

Mrs. Jennings: ``The reality is that grandparents are reluctant to get involved in these disputes unless they feel it is absolutely necessary''. That was something Barbara Baird said. Although I was not here because I was in my riding last week, that quote has met me again and again as I've travelled across Canada.

I tried to explain to the committee here that it is much the same as anything that happens in your family. At first you want to draw your coat around you. You feel ashamed. You can't believe someone's come at you and denied you access. You don't understand what's happening. You're a senior. You would not take your family to court. You're from a different generation. This is not a thing to do.

If this bill should be passed, it's not that we're suddenly going to open these floodgates, and all these grandparents are suddenly going to come rushing to the courts. I believe in what Barbara Baird said, and she does this every day of her life. I know you do it every day of your life. I believe our grandparents, with the odd exception, are just who we think they are. They will be very hesitant to come forward unless it is absolutely necessary.

Could you comment on that, please?

Mr. Merovitz: That's certainly my belief. The last thing any reasonable lawyer would tell his client to do is to start by litigating, which is why I'm saying that in the normal course of events you would start with a letter. In fact, I always advise my clients that the first letter shouldn't even come from the lawyer. It should come person to person, and it would simply request a visit.

Then, if this bill passes and if the lawyer has to be involved, it might be a simple matter to remind the person or his or her lawyer that the federal government has recognized that it is an inherent right of a grandchild to have access to their grandparent, and to therefore implore him or her to recognize that right and to allow some reasonable amount of time to visit with the grandchild.

Mrs. Jennings: Thank you.

The Chairman: Ms Torsney.

Ms Torsney (Burlington): I would also like to follow up Mr. Knutson's comments. It seems particularly sad to me that those of us who ask questions about the bill, or who have some problems with the bill but don't particularly have problems with the concept, are somehow being perceived by some grandparents out there as being against grandparents. To be perceived as being against this is just the most frightening thing in the world to me.

I acknowledge all the very positive relationships that you outline in your first couple of pages, and how important this whole thing is. I have a problem, however, with anticipating some of the problems that could arise.

I really wonder if legislation is the best way to do this. Maybe a mass campaign and messages to judges that they should be considering grandparents when setting up access and custody issues, and messages to social services agencies across the country asking them why they are putting kids in foster homes when they haven't even checked out grandparents, should be our focus.

You say that if they at least had federal legislation they could write a letter to their children to say they want access and visitation. The United Nations has already recognized this. They can cite it as the body that has decided it, rather than even the federal government. The UN is far more important than we are, apparently.

How are we going to get the message out there to grandparents that they have these rights anyway, just by putting this legislation in place?

Mr. Merovitz: If you go back to my presentation, the message I asked you to send out didn't even include the grandparents. The message is to parents, to grandchildren and to legislators.

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I didn't indicate this, but the message is to judges. The only way judges get messages is when the legislature tells them. Judges are bound by legislation. If you tell the judge that when he's considering access you want him to give effect to the principle that a child in a marriage should have as much contact with each grandparent as is consistent with the best interests of the child, he's now obliged to listen to your message.

I hear everybody saying yes, grandparents are special. The question is how special. What I'm suggesting to this committee is that if you accept what Dr. Kornhaber says, that grandparents are that special and are that important to grandchildren, then you have an obligation to let everybody else know that you accept that.

Ms Torsney: This is the only way we can do that?

Mr. Merovitz: In my opinion this is the only way you can do that. You can amend this bill somewhat, but the bill has to include a special designation of grandparents in recognition of the relationship that's so significant that Dr. Kornhaber describes it as being second only to a child-parent relationship.

Ms Torsney: What about the issue of mobility rights? What about the recent Abella decision?

Mr. Merovitz: I don't think mobility rights are going to factor into this at all. I think it may be unfortunate, but a grandparent will just have to abide and make whatever accommodation can be made for a parent who exercises those mobility rights.

The most recent decision I read of the Ontario Court of Appeal says that with mobility rights, if the custodial parent is acting in good faith and if they're acting basically for the betterment of their own lives, that betterment will inure to the child and therefore it's in the best interests of the child to allow the custodial parent to move. That will not detract from the principle that a grandparent should have as much access to the grandchild as is consistent with the best interests of the child; it will just make it more difficult.

Reasonable people will attempt to work out a reasonable relationship. Believe it or not, even though I've been a lawyer for 20 years and even though in most of the litigation I'm involved with unreasonable people, most of the people out there aren't litigating. Most of the people out there are reasonable.

Ms Torsney: Where is it written that grandparents of intact families have rights to access to their grandchildren?

Mr. Merovitz: If you'll look at my provincial legislation, in most of the provinces anybody can apply for access. If you want me to go through it -

Ms Torsney: But is it currently a right of all grandparents to have access to their grandchildren in intact families?

Mr. Merovitz: They have the same right as any man or woman off the street, and that's the issue. We're going to be asking the provincial legislators to put grandparents in a category by themselves as well. The whole thrust of my presentation is that grandparents aren't equivalent to anybody. Grandparents aren't equivalent even to a close uncle. Grandparents are special.

The Chairman: Mrs. Jennings.

Mrs. Jennings: Mr. Merovitz, Ms Torsney has just pointed out mobility rights, and that's something I would like to really stress here. I agree that mobility rights will not affect this at all. The reason is that across this country we now have grandparents who would give anything to go.

We have one right behind me right now who has been waiting and waiting to get to Nova Scotia just to see her grandchildren. She's not arguing about mobility rights. She's not suggesting that those people not move and do what they want to do. All she wants to do is see her grandchildren.

I can tell you that across the country, although it will cost grandparents money, they will make that effort, even if it's once a year, to at least see them. Right now they are sending messages and the messages are being sent back unopened.

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I just want to reflect on what Ms Torsney said, that she doesn't want it misconstrued by the grandparents that any of the Liberals who are against this bill or anyone else are against grandparents.

I would then say to the members of this committee, and to you, Mr. Merovitz, that if the bill has been proven to be constitutionally sound, if we've got people to say that it's not going to cause any more litigation, that the judges would not see a problem with having the parents there or the grandparents in the courtroom - in fact, they have experienced it again and again - then I'm sure that the members of this committee would continue with what has already been done by this government and pass the bill in principle.

Hopefully, we can work together to make sure that the grandparents in this room and across Canada will in fact benefit by the wisdom of the legislators in this room.

Thank you very much.

Mr. Merovitz: This is really important. That is what I would wish to happen, but it's also my submission that, even if some changes are required, it will still send the message that grandparents are so important to grandchildren that their rights to visit with each other should be interfered with only in exceptional circumstances.

I repeat, if you want to delete the concern about custody, fine. Maintain that custody still requires leave. If you're worried about the information, then delete that paragraph. I saw some concern somewhere about past conduct; as I say, I don't see why that should be a concern, but delete that. But the most significant amendments in this Bill C-232 are proposed subsection 16(3), which gives grandparents the right to apply for access without leave, and proposed subsection 16(10), which indicates clearly that a court shall give effect to the principle that a child of the marriage should have as much contact with each grandparent as is consistent with the best interests of the child.

You will then be sending a message that this is a different situation from anybody else's other than that of a child and a parent, and that's the message we're asking you to send.

Ms Torsney: If this law is enacted, why will there not be a number of cases of single custodial parents who are very poor? Why will they not be going after grandparents and former in-laws for support?

Mr. Merovitz: Because the law as it stands doesn't entitle them to support.

Ms Torsney: We'd be sending a message to them that they have a very special relationship with their grandchildren and their grandchildren are hungry right now. Why would they not be obliged to find some money out of their savings to pay for food for those kids? How could a judge deny that?

Mr. Merovitz: Because he doesn't have the right, pursuant to any legislation that I see here, to make such an order.

Ms Torsney: Why is that not the next step?

Mr. Merovitz: If the legislators saw fit, then they could enact legislation that says that.

Right now, I can tell you just anecdotally of hundreds of cases where grandparents are supporting their grandchildren. Certainly most religious education that I know of is funded, at least in part, by grandparents. A lot of vacations are funded by grandparents.

Ms Torsney: Why don't we include it in here?

Mr. Merovitz: I don't know. It's not something I considered. It's not something the legislation appears to consider.

You raise an interesting point. Should a millionaire grandparent who perhaps has just a tenuous relationship with his grandchild be obliged to provide support? Maybe he should.

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Ms Torsney: I think he should. That's my point. If we're supposed to be looking after grandchildren and making sure they have their best interests taken care of, why are we not very much obliging them to make sure that their children are paying the support orders that are currently there, and put them on the hook for those who aren't paying, and why aren't we telling them that they have a financial obligation toward their grandchildren as well? The reality is that there are lots of grandparents who are wealthier than lots of their kids who are parents of grandchildren right now.

Mr. Merovitz: This isn't something I've thought about at length, other than to say that perhaps with the realities of the way governments are cutting back it may be where we're going. We seem to be going, in society, away from government assistance back to survival of the fittest and perhaps -

Ms Torsney: Families and churches.

Mr. Merovitz: Yes. Maybe that's where we're going, but I didn't really think this bill was going to deal with that.

Ms Torsney: Since all of us around the table are being open-minded, I'm not sure why we wouldn't consider that, because I certainly think it has some real merit. The whole mess of support payments and access and custody is so disheartening when you look at the issues right across the table. I've heard from grandparents who want to know why they have to list mother's maiden name for men who aren't paying support in the document. I'm not sure why they do, I'm still working on that answer, but it would seem that perhaps it's to start ferreting them out and finding them and all kinds of other things. So why aren't we working with them to enforce the support orders that are currently in existence and are being ignored across the nation?

Mr. Merovitz: Isn't it supposing that parents have some control over their grown-up children who are not paying support? I'm not sure I get the gist of your question.

Ms Torsney: Someone has to pay for the kid. Children are going hungry in this country because there is not enough support being paid, because there are support orders that aren't being enforced. Perhaps they would have some moral suasion with their children to get them to pay, or we should go after the grandparents who have some money and could supply support for those kids. I don't understand why we wouldn't. It's a logical extension of your argument about Naomi and Ruth and the kid.

Mr. Merovitz: As I say, most grandparents I know certainly feel an obligation to support not only their children but their grandchildren, no matter what age they are, just at different levels perhaps. But I would certainly hope you wouldn't delay sending this message that I so desperately seek to determine the issue of whether or not support should be a part of this bill.

Mr. Ramsay: Just for the record, I think what Ms Torsney is talking about is a principle upon which this country was built, which is the power of the extended family. I think the government has interfered with this over the years through their social programs, where they've taken not only the financial means but also the basic right. This is what we're fighting for here, to reunite or re-empower the extended family upon which this country was built, because we always looked after our extended family.

If you had problems you turned to your family first and then to your extended family, and then to your community organizations, and then the last resort was to some government agency. But they took that away from us over the years, I submit respectfully. We may have to go back to it. And, of course, for these programs they took the money from you and me, and now we're so far in debt that we no longer have the money to do that, and what Miss Torsney is suggesting may come into reality simply because of circumstances.

However, I think that to introduce that into this bill might change the fundamental aspect of it. I certainly support what she's saying, but as one of the grandmothers sitting behind us said here - or sent us in a note - she would gladly support her grandson if she had custody or a say in education or moral upbringing. So I think Ms Torsney is speaking about a very powerful principle, and that is the principle of the strength of the extended family looking after one another. I think that's the principle upon which this country was built.

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The Chairman: Thank you. With that, we will end the committee meeting, unless there's one last questioner.

Thank you very much for coming. Your submission certainly did cause some discussion here today and made a lot of people think. In particular, the points you made from your report were very helpful. Thank you very much.

Mr. Merovitz: Thank you.

The Chairman: The meeting is adjourned until tomorrow at 3:30 p.m.

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