[Recorded by Electronic Apparatus]
Tuesday, May 14, 1996
.1542 
[English]
The Chair: Order.
I'm just going to make a little bit of an introduction, Mrs. Jennings, if you don't mind, because this is sort of the first time the committee is testing -
[Translation]
Ms Venne (Saint-Hubert): Point of order, Madam Chair.
The third report of the sub-committee says that we are recommending to the committee that the witness appear today, but we would be submitting the report after her appearance. We would then be proceeding in reverse order. I would think that it should first of all be stated that she would be appearing today, and then we could proceed to hear her testimony. Otherwise, the sub-committee's work would have been useless.
[English]
The Chair: Oh, I see. Sorry.
Mrs. Venne: Don't you think we have to do that before?
The Chair: Yes, if that's the first thing on the agenda, then that's what we'll do. All right.
It's not a great day for me.
Mrs. Venne: No.
The Chair: The chair will now compose herself and we will begin again. Thank you.
The first thing on our agenda is the report of the steering committee, which you have in front of you. I take it that everyone has had a chance to review it.
The first part of it is that we'll be travelling to Toronto and London, Ontario, between June 2 and June 6, 1996, with respect to the YOA. I just wanted to make it clear on the record, because there were some concerns from the Reform Party.
You'll be away, I guess, Mr. Ramsay. Will the Reformers be away from the committee on Thursday and Friday?
Mr. Ramsay (Crowfoot): Yes.
The Chair: So, on the Thursday, we're going to make sure that we've organized our meetings so that there will be a record of what transpires. Instead of having a site visit, for instance, we'll have formal testimony before the committee so Mr. Ramsay won't...
Mr. Ramsay: Lose everything.
The Chair: Lose everything, that's right. That's an undertaking that we've made and that we will fulfil.
A second part of this report is that I asked for the authority of the steering committee and of this committee to explore the possibility of organizing a one-day national forum on the Young Offenders Act. I thought we could do that before we come back in the fall, maybe sometime in September or at the end of August, depending on schedules and that sort of thing. The idea is that we'd televise it on CPAC and use it to consolidate our thoughts so far, to see where we have common views, but also to engage the public in the debate. So the steering committee is recommending that to the committee as well.
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Number two is that we invite Mrs. Jennings as part of our ongoing commitment to dealing with private members' business in a timely fashion.
Finally, number three is the operational budget. The steering committee is recommending that for activities of our committee in May and June of this year we request from the budget subcommittee of the liaison committee the amount of $19,050. The budget submission is attached to this report. As you know, that is a maximum amount we could spend. Typically we don't go to the maximum.
Sometime this week we will have a report - won't we, Mr. Clerk? - on what we spent on the Nova Scotia trip. The clerk will be able to give the committee the details this week.
Ms Torsney (Burlington): Do you need a motion to adopt?
The Chair: Yes, please.
Ms Torsney: I so move.
Mr. DeVillers (Simcoe North): I second the motion.
Motion agreed to
The Chair: Now let's go back to Bill C-245. I'm going to have to keep you with me, Madame Venne, to keep me in line. I appreciate that.
As I mentioned earlier for the benefit of those present, this procedure of having members come back when their private member's bills are on our agenda is to keep us honest, to keep them in the public eye, and to make sure we are dealing with private members' business in as timely a fashion as we can within the bounds of our other obligations.
The first step we took in that regard was to hear from Madame Gagnon of the Bloc on her bill concerning female genital mutilation. She came and gave us a presentation last week or the week before.
Today we're hearing from Mrs. Jennings. For the record, the status of this is that committee had dealt with the bill prior to proroguing and had voted not to report it back to the House. I understand that when the government reactivated private members' business, it reactivated this bill at a stage prior to that last vote. So we're here to have you make your best pitch to us and we'll make a decision afterwards with respect to this bill. Feel free to go ahead.
Mrs. Daphne Jennings, MP (Mission - Coquitlam): Thank you, Madam Chair. First I would like to say hello to all members of the committee. I hope that any new members of the committee have had an opportunity to look at the transcript of the witnesses who appeared in the fall of 1995 and have familiarized themselves with that, because I will be making reference to it.
Members of the justice committee, today I appear before you once again to ask this committee (1) to recognize the need of Canadian grandparents and grandchildren to continue to visit and be a part of each other's lives after a divorce, and (2) to agree with members of the House of Commons who already unanimously passed this bill in second reading, and to vote in favour of Bill C-245, which is an act to amend to Divorce Act.
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This bill would provide that a person wishing to make an application under the Divorce Act to be granted access to or custody of any of his or her grandchildren shall not be required to obtain leave of the court to make such an application.
Many concerns were raised by the committee members regarding this bill, such as whether it would increase litigation, whether it would increase costs, whether it would be unconstitutional, and whether it may cause more acrimony in the courts. I remind this committee of testimony given to the Standing Committee of Justice and Legal Affairs by three very eminent practising family lawyers and one professor of law at Ottawa University.
Our first witness, Charles Merovitz, a barrister and solicitor in Ottawa, expert in family law with over twenty years of experience, strongly supports the bill. He was the successful lawyer in the first Ontario case in the appellate courts that unequivocally stated that access is the child's right. The Ontario legislation was amended after that case to reflect that principle.
I repeat here that we are talking of a child's right of access, already recognized by the United Nations Convention on the Rights of the Child in November 1989. Canada accepted this convention in 1991.
What about extra litigation? Well, Mr. Merovitz stated:
- 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.
- Something in the transcripts I take great exception to, and that is 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 process can take
several hours. The preparation for the cross-examination can take several hours. It means
probably there is a trip to court before the cross-examination and another one after the
cross-examination.
- The fundamental issue here is whether or not the child's right to have a relationship with the
members of their extended family is more important than the custodial parents' rights to control
the everyday life of the child.
- The concern...of the Canadian Bar Association...that there might be an influx or a plethora of
cases of grandparents running off to the courts asking for access and visitation rights...has not
been our experience in New Brunswick...
- ...under the current legislation, the grandparents have no vehicle to appear and be heard unless
they apply for leave of the court, which is a somewhat cumbersome procedure.
- In my view, what we have to consider ultimately is the child's best interests and the right of the
child to have a continual relationship with their extended family.
- I would have to say no. In fact, if anything, the grandparents often lend a unique perspective to
the issue of parenting and the issues of custody and access that otherwise would not be given to
the court when the court makes its determination.
- The courtroom is already crowded with many strangers in family cases, including social
workers, psychologists, child care workers and all sorts of people who work for government in
one role or another within social service ministries. Surely there is some social value in
supporting the family, its integrity, its continuity, and its basic role in child rearing.
- I would like to emphasize first that when we speak of the rights of the grandparents, we're really
talking about the rights of the child to a relationship with the grandparent. These are not rights,
in my view, that biological parents or the state should be entitled to remove or reassign unless
there are serious reasons detrimental to the well-being of that child.
- With regard to the jurisdictions of Great Britain, the United States and Quebec, where the
inherent right of the grandparent and grandchild relationship is recognized, there is no evidence
of a floodgate of litigation.
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I would like to point out here that Barbara Baird also explained her position on receiving what the members of the committee received from Steven Andrew under the Canadian Bar Association letterhead. Supposedly he represented the national family law section, and this is what she said:
- I know that the chairman of the family law subsection of the Canadian Bar Association made a
presentation to the committee. At one time I was the chairman of the family law subsection, and
I can tell this committee that at no time have I, as a 20-year practitioner-lawyer, been canvassed
on this question by the Canadian Bar Association. I don't believe that the presentation that was
made to this committee by the Canadian Bar Association fully reflects the position of the
practising bar or the judiciary, nor do I believe that the issues have been properly canvassed
within that organization.
The Liberal member from Burlington said:
- Bill C-232 can be supported in principle for attempting to address a very distressing situation.
- And again:
- For these reasons I rise in support of Bill C-232 and suggest that we should applaud it for
attempting to emphasize the beneficial role that grandparents may play with respect to their
grandchildren.
- In closing, the Bloc Québécois, the official opposition, will put aside the few misgivings it has
and will support Bill C-232,
- - which of course is now Bill C-245 -
- which was introduced by my kind colleague from Mission - Coquitlam.
- I support the spirit of this motion and the spirit of the legislation is worth supporting.
- Mr. Speaker, I rise because I also feel strongly about this bill. I think we should definitely
support this particular piece of legislation and make sure that the children are taken care of and
that we allow their grandparents to take care of them wherever possible.
- The highest expression of public policy in matters involving family is expressed when
government favours the continuity of the family. When that can be done, as in the proposed
amendment, in a way that is in accord with tradition, simple and economic, when it does not
require any expense of government or establishment of yet another bureaucracy of control, such
a legislative project is a sound expression of good government.
The Chair: Are there any questions or comments?
[Translation]
Ms Venne: As a matter of fact, I wanted to raise a point of order on that. Are we then going to start all over again, given that we've already questioned the witness and given that no changes whatsoever have been made to the bill, except for the amendment to be tabled. Do we have to go through the whole question and answer process again? That is what I'm asking, Madam Chair.
[English]
The Chair: Obviously I'm in the committee's hands. In terms of the process here today, my understanding is that because of an error, this bill was activated at an earlier stage. I think we can adopt the evidence the former committee heard. Before, the committee did clause-by-clause consideration and all the clauses of the bill were defeated.
The only question I would pose to the clerk is whether we can adopt what we did before or we have actually to go through it clause by clause again. Finally, there's the issue of whether we will report it to the House or not.
We have to make the decisions again, but the advice I've had is that we can adopt the old evidence.
The special order of the House says that the evidence will be part of the proceedings of this session. So we've done that. We simply have to do the clause-by-clause consideration.
[Translation]
Ms Venne: Are we ready for the clause by clause study?
[English]
The Chair: Do you have anything else?
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[Translation]
Ms Venne: No. It's the same bill. As far as I'm concerned, I think that we shouldn't be studying the whole thing over again. That's all.
[English]
The Chair: Any comments from the Reform members?
Mr. Ramsay: No, as long as the procedure is clearly set out on the record that the activity of this committee is not only to hear the mover of the motion but also that we go through clause-by-clause and we vote on it and we vote on the final amendment to the Divorce Act. As long as we understand clearly what we're doing here today, okay.
The Chair: Any comments from the Liberal members of the committee? Mr. Gallaway.
Mr. Gallaway (Sarnia - Lambton): I just want to clarify something on the amendment that's been moved by Mrs. Jennings.
With regard to the fact that you're deleting lines 10 through 16, how will this act now differ from section 9 of the Divorce Act?
Mrs. Jennings: Section 9 of the Divorce Act, I would imagine, at this time does not include the grandparents.
Mr. Gallaway: From the evidence, I understood it did.
Mrs. Jennings: No. It doesn't give them standing.
Mr. Rideout (Moncton): It doesn't give them automatic standing. They have to apply.
Mr. Gallaway: They have to apply, yes.
Mrs. Jennings: They're underlined. All the new words in the proposed act are underlined.
Mr. Gallaway: It relates to 10 through 16.
Mrs. Jennings: Yes, just to lead into the information clause.
The other way it's different is the fact that we will have a review clause. We're suggesting a four-year review clause.
Madam Chair, if I'm finished here, I want to take my place as a committee member, please. I'm sitting in today for the vote and to do the amendment.
The Chair: That's fine.
If there's no other discussion, shall we do - -
Mr. Discepola (Vaudreuil): Shall clause 1 carry? Shall clause 2 carry?
On clause 1 - Application by other person
The Chair: On the amendment to clause -
Mr. Ramsay: On a point of order, I would ask for a recorded vote on all these amendments.
The Chair: All right.
The first question is on the amendment to clause 1, the amendment before us, which was moved by Mrs. Jennings today.
Amendment negatived: nays 6; yeas 3
Clause 1 negatived: nays 6; yeas 3
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[Translation]
Ms Venne: Madam Chair, could we simply say that the vote that has just been taken will apply to clause 2?
[English]
The Chair: Would you consent to that?
Mr. Ramsay: Yes, as long as there is a recorded vote.
Clauses 2 and 3 negatived: nays 6; yeas 3
Mr. Ramsay: We have an amendment to one of the clauses when we get to it.
The Chair: We already did it. Thanks, Mr. Ramsay.
Title negatived: nays 6; yeas 3
Bill negatived: nays 6; yeas 3
Mr. Kirkby (Prince Albert - Churchill River): I believe there's been some discussion about how this bill will be either reported or not reported to the House. There are a couple of different interpretations on this, and perhaps we could table this vote until the next meeting and, because all of the provisions have been defeated, get a clarification of whether we should report to the House. Since all of the provisions have been defeated, is there really nothing to report? Does it stop here? I think we're going to have to get that clarified before we...
[Translation]
Ms Venne: I thought the clerk was to seek an opinion on that, Madame Chair. If so, I would like to hear what that opinion was.
[English]
The Clerk of the Committee: May I?
The Chair: Yes, please, Mr. Clerk.
The Clerk: I am going to say it in French.
[Translation]
According to the advice I was given and according to Standing Order 75(2), the committee has to make a progress report once it has reviewed a bill.
That is the advice I was given. However, in terms of procedure, there might be different interpretations. I am in your hands.
Ms Venne: The clerk has said that that was the advice that he was given. Would the parliamentary secretary have received a different opinion?
[English]
Mr. Kirkby: I received another opinion, so perhaps what we could do is simply try to reconcile the two opinions before we do anything.
Would it be all right if we just set over until the next meeting what we shall do?
[Translation]
Ms Venne: So, if there are two opinions... I thought there was only one, since this had already been discussed previously.
[English]
A voice: When there are two opinions, the chairman decides.
Mr. Breitkreuz (Yorkton - Melville): May I ask a question for clarification?
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Do I understand that we as a committee have the ability to prevent a bill from going back to Parliament for third reading? Can the committee prevent legislation at report stage from going back to Parliament? Do they have the power to do that? It seems to me that would override the will of Parliament. If all the members are supportive of a bill at second reading, a committee could actually prevent it from going to third reading if all the members of Parliament -
The Chair: It's a good point, I think. I can tell you that the last time the justice committee met on this issue, the decision was not to report the bill to the House. So we're left with an issue and I'm the chair.
Mr. Breitkreuz: It seems to me that this would be a travesty of democracy.
The Chair: You raise a good point. I suppose the other part of it is that a committee could hold a bill in committee indefinitely and not report it.
Mr. Breitkreuz: But that seems to be a very undemocratic measure.
Mr. Kirkby: I think we should find out what is appropriate. Obviously there's a right answer and I want to make sure we are doing what we should be doing. That's all.
The Chair: Are you just asking for some time to look into it?
Mr. Kirkby: Yes, just time to clarify it so that we do it right.
Mr. Ramsay: Do we have legal counsel here today that can advise us on this?
The Chair: It's more procedure.
Mr. Ramsay: This bill has been defeated. What is the concern about having the thing reported as being defeated? Why are we wasting time? Why not go forward with this and end it now? What's the big problem if it does go forward and is reported to the House? I don't understand why we're -
Mr. Rideout: All you'd be reporting is a blank page.
Mr. Ramsay: Then report a blank page. It seems to me there are a lot of blank pages in the House. Why not report another one?
Mr. Rideout: It doesn't even have a title.
Mrs. Jennings: The members of the House might like to hear about that.
The Chair: Just wait. Could we do this through the chair? Mr. Kirkby.
Mr. Kirkby: I'm not saying one way or the other. Let's just find out what the right way is and do it that way.
The Chair: Is there any objection to our exploring that?
Mr. Ramsay: Yes, I have a difficulty. Was the previous way not the right way?
The Chair: I don't know the answer to that, Mr. Ramsay.
Mr. Ramsay: Is that what Mr. Kirkby is suggesting?
The Chair: Mr. Kirkby.
Mr. Kirkby: The committee last time chose not to report the bill to the House, and there is some suggestion in some circles that this is the right way to do it - that if it's defeated and you just have a blank page, you don't report it to the House. The clerk today has indicated a contrary opinion whereby we should report the bill but report essentially a blank page.
I'm not saying what we should do one way or the other. I just want it to be the right way. If the clerk and I can have until the next meeting to figure out exactly what appropriate steps to take, that's what we should do.
The Chair: Mr. Gallaway.
Mr. Gallaway: I agree with what Mr. Ramsay and Mr. Breitkreuz have said about reporting it to the House. I think it's essential that it be reported to the House even though it is essentially a blank page because we've amended it to the extent that it is a blank page.
Perhaps I could move a motion that the chair of the committee report the bill as amended to the House. Then it's before the members of the House. It's on the Order Paper. It's shown as being defeated in the committee, but at least there's public awareness of it. It's drawn to their attention. Technically, members are aware of what goes on in committees. Technically, members are supposed to monitor in some wondrous way the affairs and business of all committees, but we know that's not feasible. If we allow the chair to report it back to the House as defeated or as amended, whichever term you prefer, it will be on the Order Paper -
Mr. Ramsay: And on the record.
Mr. Gallaway: - and on the record.
The Chair: Mr. Kirkby, are you asking for time to prepare an argument?
Mr. Kirkby: I am asking for until the next meeting to prepare an argument so that we do it the right way. That's all. At this stage I'm not advocating one way or the other.
The Chair: Is there any problem with that?
Mr. Ramsay: You know what we're doing. We're setting some sort of precedent here. The committee has already ruled one way, and Mr. Kirkby is suggesting that it might have been the wrong way. If that's the way we want to do this...
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Mr. Kirkby: I'm not saying that.
Mr. Ramsay: He's suggesting the previous method may not be the right way and he's asking for time to have that looked at, from my understanding.
Mr. Rideout: No, he's saying it was the right way.
Mr. Kirkby: I'm saying there are two different opinions on what was the right way to go about it, whether not to report it, as the committee did before, or, as some are suggesting, to report a blank page. But let's find out what the right way is so we do it the right way.
Mr. Ramsay: I support Mr. Gallaway's suggestion. If he'd make a motion, I'd second it.
Mr. Gallaway: I made it a motion.
Mr. Ramsay: I will second it if it needs a seconder.
Mr. Gallaway: The motion is that the chair of the committee report to the House of Commons the bill as amended.
The Clerk: Okay.
An hon. member: It wasn't amended.
Mr. Gallaway: Yes, it was. ``As defeated'', then.
The Chair: Is there any discussion on the motion?
Mr. Discepola: We're talking about reporting nothing.
The Chair: I know. I appreciate that. I'm a little worried that on the way over here I left this planet. I'm scrambling like hell to get back. I may have hit a time warp.
Mrs. Jennings.
Mrs. Jennings: Madam Chair, I'm rather concerned it might not return to the House, which I think would be a travesty of democracy, definitely. Secondly, absolutely no reasons have been given for defeating the bill, no arguments at all. I'm concerned about that. I realize you don't have to, but I'm concerned there aren't any. That's a very big concern. I'm concerned that there seems to be a bit of disregard for the whole House and the concerns of all the House. I have an idea that all members of the House would like to know what does happen when they refer bills to committee and unanimously refer them and they come back as a blank page.
These are concerns I think we have to deal with and not just say we've always done this, or it's accepted, or it's okay. It's not okay.
Where do we go from here?
Mr. Ramsay: There's a motion on the floor.
Mrs. Jennings: I realize the motion is on the floor.
The Chair: The motion is on the floor. When we finish and everybody has had a chance to speak we'll vote on it.
Mrs. Jennings: Is it possible to talk about that after the motion - about the fact that there's absolutely nothing on the bill and we've not given any reason -
The Chair: First of all, just to make this very clear, there's no obligation on any member to put anything on the record about how they voted, unless they want to; and if they wanted to, they had an opportunity to do that. Nobody asked to do it, so I guess that's the end of that.
Right now we have the motion by Mr. Gallaway on the floor. We're having discussion on that. Then we'll vote.
Mr. Rideout: In light of what Mrs. Jennings is saying, maybe the appropriate thing would be to table the motion for two days or when the next hearing is, which will give enough time to find out what is the appropriate process. I gather that is what you want. I'm just trying to help the Reform Party.
Mrs. Jennings: As a matter of fact, what I was concerned about is, first, why all this wasn't decided. We were aware it was coming up. You knew the motion was in fact going to enable this all to happen. Why was it not until now that we've suddenly been hit with what do we do? Has there been no discussion or anything?
The Chair: Mrs. Jennings, I'm not in the habit of making decisions until I have to make the decisions, first of all, or of settling it myself in my office. I don't think that's the role of the chair.
Mrs. Jennings: I'm not suggesting that. I'm wondering about in committee. I know you've met to make decisions on it. Did it not come up? Did no one discuss it?
Mr. Gallaway: This is a private member's bill, so there's no collective agreement. It's an individual decision. There wouldn't be any discussion of this. It's private members' business.
Mrs. Jennings: I meant returning it to the House, the process.
Mr. Gallaway: I want to make a comment on that, because I was here when this bill was before this committee previously, as was Mr. Ramsay, I believe.
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I don't know if you were there on the day we made the final vote on it, Mr. Ramsay. I don't recall the reason, but someone came in and advised us that this was the way we could do it. Because it was defeated, we could in fact vote not to report it to the House. I wish I could remember who gave us that advice, but I don't know and I don't recall. So the committee collectively followed that suggestion.
I agree with what Mr. Breitkreuz and Mr. Ramsay have said about drawing it to the attention of the House, and that's why I've made this motion.
Mr. Jennings: Thank you, Mr. Gallaway.
Mr. Rideout: I move that we table it until the next sitting of this committee.
Mr. Discepola: We have to dispose of it.
Mr. Rideout: No, a motion to table is always in order. It would table that particular motion, and it's not debatable.
I move that we table this matter, which is the motion by Mr. Gallaway, until the next sitting of this committee.
Motion agreed to
The Chair: Do any members have other business? No?
The next sitting will be on Thursday. This meeting stands adjourned.