Skip to main content
EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, September 19, 1995

.0906

[Translation]

The Clerk of the Committee: Order, please.

Honourable members, I see a quorum. Before proceeding to the election of a Chairman, I would like to explain why the 48-hour notice required to call the organization meeting was not respected in this case.

Yesterday, the House passed a special order putting aside Standing Order 106. This is why the notice was sent yesterday for the meeting called for 9 o'clock this morning.

In conformity with Standing Order 106(1), your first item of business is to elect a Chairman. I am ready to receive motions to that effect.

Mr. Ramsay.

[English]

Mr. Ramsay (Crowfoot): I nominate Mr. Morris Bodnar for chair.

The Clerk: It is moved by Mr. Ramsay, seconded by Mr. de Savoye, that Mr. Bodnar do take the chair of this committee. Is it the pleasure of this committee to adopt the said motion?

Motion agreed to

The Clerk: I declare Mr. Bodnar duly elected chair of the committee and invite him to take the chair.

The Chairman: Thank you very much.

With the election of chair, we would proceed to the election of the vice-chair.

Before we proceed with that, I simply want to indicate that I feel very privileged to be elected to this today. In particular, I would like to express my gratitude to the prior chair, Mr. Allmand, who I thought over the past almost two years was a good teacher to the rookies who appeared on this committee. He taught them well in procedure and in the ethics of handling a committee and in dealing with fairness on this committee.

So with that, we should proceed to the election of the first vice-chair. Now, there are two positions for vice-chair, and if everyone agreed, those positions would remain the same as we have had. Is there agreement that the vice-chairs remain the same as before?

Mr. Ramsay: I don't understand. Can you explain that?

The Chairman: If there is agreement of all parties, then the vice-chairs who were vice-chairs in June and prior would remain the same. Is there agreement?

Mr. Ramsay: No, I would object to that and ask for an election.

The Chairman: Okay. We'll proceed to election of the first vice-chair. Is there a motion?

Mr. Ramsay: On a point of order, I would like to determine the process by which the nominations will take place. What I would prefer, Mr. Chairman, is that the nominations of those who the members feel should be nominated as candidates for the vice-chair be made and that we then proceed by way of secret ballot.

.0910

The Chairman: The procedures are that there is to be one vice-chair nominated from the government side and one from the opposition. A nomination is taken for one individual and then we proceed to determine whether that person is elected or not. Then the second one is dealt with, rather than having a ballot of two or three people and a vote taken. Those are the rules and that's how we deal with the matter. So we take a nomination for an individual from the government side and deal with that individual, and then we take nominations from the opposition side and deal with the matter.

Mr. Ramsay: Mr. Chairman, with respect, the rules of procedure are determined by the committee.

The Chairman: No.

Mr. Ramsay: Well, I believe they are. On the rules of procedure, Beauchesne states very clearly that committees are and must remain masters of their own procedure.

Mr. Boudria (Glengarry - Prescott - Russell): For their own business.

The Chairman: The procedure set out in Beauchesne is that the rules on the election are that you deal with one individual who is nominated and determine whether that person is elected or not and then proceed to the second individual -

Mr. Ramsay: What rule?

The Chairman: - and a third individual.

Mr. Ramsay: For the record, would you indicate to what rule you're referring, Mr. Chairman?

The Chairman: Beauchesne refers to this at page 227, paragraph 788, and indicates as follows:

Mr. Ramsay: That is a motion, not a nomination. That doesn't indicate that we can't have two nominations under the same motion.

The Chairman: That is a motion to call a nomination.

Mr. Hanger (Calgary Northeast): That is a motion.

Mrs. Ablonczy (Calgary North): Mr. Chairman, that's not correct.

Mr. Hanger: Mr. Chairman, if I may, the motion says that there be nominations, but to make the nomination is not a motion in itself.

The Chairman: What we will proceed with is that we will take nominations for individuals. Once we have taken these nominations of individuals for vice-chair, we will dispose of them one at a time. This is the procedure that was followed in the prior election of the vice-chair, whenMr. Allmand was the chair, and that is the procedure we will follow today.

Mrs. Ablonczy: Mr. Chairman -

The Chairman: Just a moment.

Mrs. Venne.

[Translation]

Mrs. Venne (Saint-Hubert): Mr. Chairman, you have stated the rules clearly. I believe that we should immediately proceed with the nominations. I would like to move right now that Mrs. Barnes be elected vice-chair for the government's side.

.0915

[English]

Mrs. Ablonczy: Mr. Chairman, on a point of order, I believe the procedure you have outlined is not in order. In fact, I would like to quote your own party's whip at a committee meeting in May 1991, where he said this:

Mr. Chairman, I believe your party whip made a very good point at the time. I believe that point is still valid -

Mr. Boudria: That was the judgment.

Mrs. Ablonczy: - and I believe we should be proceeding in that fashion, where we have nominations for each position and a vote on the nominations that come forward - if there are in fact more than one, which there may not be.

The Chairman: Thank you. I've heard what you have indicated. I've indicated what the procedure will be. We will take nominations on who is being nominated for the position of vice-chair, and we will dispose of them one at a time.

We have a nomination from Ms Venne.

Mrs. Ablonczy: Mr. Chairman, with respect -

The Chairman: Just a moment. There is a ruling; that is the ruling.

Mrs. Ablonczy: But, Mr. Chairman, the rulings of the chair must follow the rules of procedure. The chair is not entitled to interfere arbitrarily with those rules of procedure, and I would respectfully request that the chair uphold the rules of procedure of this House in this proceeding to elect our vice-chairmen.

The Chairman: I can indicate that if you are not satisfied with the ruling of the chair you can proceed by appealing that particular ruling. We will proceed according to that ruling and we will take nominations.

The first nomination I have is of Ms Venne nominating Ms Barnes. Are there any other nominations for vice-chair?

Mrs. Ablonczy: Mr. Chairman, I will....

Mr. de Savoye (Portneuf): Monsieur le président, is this only on the government side or also on the opposition side?

The Chairman: We will take first of all the nominations for the government side. We have one nomination for Ms Barnes. Do we have other nominations for the government side?

Mrs. Ablonczy: Yes, Mr. Chairman, would nominate Shaughnessy Cohen.

Ms Cohen (Windsor - St. Clair): I decline. I can't do this.

The Chairman: Ms Cohen is not a permanent member of the committee; she is an associate and cannot be....

Mrs. Ablonczy: That's too bad. She would have made a wonderful vice-chair.

Ms Cohen: Thank you so much.

Mr. Hanger: Mr. Chairman, I nominate Gar Knutson.

Mr. Knutson (Elgin - Norfolk): Thanks, Art, but no.

The Chairman: Mr. Knutson was nominated and declined.

Are there any other nominations? Since there are no other nominations, I declare Ms Barnes elected as vice-chair.

Mr. de Savoye.

[Translation]

Mr. de Savoye: I move that Mrs. Venne be elected vice-chair for the oppositon's side.

[English]

The Chairman: We have the nomination for opposition, Ms Venne being nominated by Mr. de Savoye. Are there other nominations?

Mr. Hanger: Mr. Chairman, I nominate Jack Ramsay.

The Chairman: Mr. Hanger nominates Jack Ramsay.

Two individuals have been nominated. Are there further nominations of members from the opposition? Since there are no other nominations, we will proceed with the disposition of the first nomination of Ms Venne. If Ms Venne is defeated, then we will proceed with the second one. If she is elected, there will be no need to proceed with the second one.

Now, we have Mr. de Savoye's nomination with respect to Ms Venne.

Motion agreed to

The Chairman: Ms Venne is elected the vice-chair for the opposition and there is no need to proceed with the second motion.

We are to proceed at 9:30 a.m., the first matter being a private member's bill of Ms Jennings, and we will simply stand this committee down until 9:30 a.m.

.0920

PAUSE

.0931

The Chairman: We'll proceed with the committee. It's 9:30 a.m. and we have a matter set for 9:30.

However, before we proceed with that, I have a matter that's been brought to my attention, a conference that's scheduled in Winnipeg for late this month and early February. It's my understanding that there was an undertaking by this committee, or at least by some members of the committee, on a prior date, to be in Winnipeg on October 2 from 9 a.m. until 11:30 for a meeting for a presentation by the Canadian Congress on Criminal Justice, so the affiliates of that particular association can make certain presentations on a vision of justice for the new century during that particular time. There's a matter of discussion of a budget for the committee members who wish to go to Winnipeg, who would be going, and how many individuals.

I bring this to your attention so we can deal with this in the next day or two. If you wish more information on this particular matter, please contact the clerk.

The matter we have scheduled for 9:30 a.m. is Bill C-232, An Act to amend the Divorce Act (granting of access to, or custody of, a child to a grandparent). It's a private member's bill of Mrs. Daphne Jennings, and she is before the committee today.

It's my understanding, Mrs. Jennings, that you have a preliminary matter you wish to deal with just before your presentation on this particular bill.

Mrs. Daphne Jennings, MP (Mission - Coquitlam): Yes, thank you, Mr. Chairman, I do. I have in my possession a letter I received just this morning. It was brought to me by one of our grandparents who's visiting from British Columbia today. It states:

It's signed by Svend Robinson, MP for Burnaby - Kingsway.

When I saw this, it gave me great concern. I immediately talked to the chair about it, and he assures me it is inappropriate and he knows nothing about it.

I suggest it should be tabled. I would leave that up to your decision.

The Chairman: Mrs. Jennings, perhaps you could leave a copy of that letter with the clerk. I can indicate to you that we are proceeding with that bill right now. Upon your presentation being made, we will go to the normal questions and answers. Please proceed.

.0935

Mrs. Jennings: I assume everyone has a copy of my presentation, in either English or French. I will read from it.

Mr. Chairman, members of the justice committee, it is an honour for me to appear before you this morning. As you know, I am here to speak in support of Bill C-232, a private member's bill I have sponsored. As you can see from its title, it seeks to amend the Divorce Act.

Before I begin, I want to acknowledge the presence here today of certain grandparents in the audience. I didn't invite them here today, but they wanted to come to see the legislative process in action and hopefully to see a bill they want very much to become law move another step forward along the legislative road.

I want to begin by speaking about the importance of private members' business. None of us in this room is in the cabinet. Our individual legislative projects are not found within government legislation we can sponsor, so we are left with private members' business. It is a time when we, as members outside of the cabinet, can sit in judgment on legislative initiatives advanced by fellow members.

From what I am told, in this Parliament private members' business has been successful, at least in terms of comparing it to what has gone on previously.

The government is to be congratulated for allowing votes during private members' hour to be free votes. This has helped tremendously in getting private members' bills accepted and, in some cases, passed into law.

Now I would like to deal with the specifics of Bill C-232, which is before you today.

Historically, this bill began its life in the previous Parliament, sponsored by Stan Wilbee. Unfortunately, it never reached the second reading stage. In this Parliament there is another bill similar to Bill C-232. It was introduced by my good friend Beryl Gaffney, the Liberal member for Nepean. This illustrates the widespread political support this bill enjoys now and has received in the past.

You should note that the bill before you differs in one significant way from Mrs. Gaffney's bill. Bill C-232 has an automatic review clause in it. I believe this is necessary so that adjustments can be made to the law within a specific timeframe should such adjustments or improvements be deemed necessary.

Specifically, this bill addresses one particular issue encountered by grandparents and grandchildren across this country when divorce of the children's parents occurs. At present, when divorce of the child's parents occurs, the child's grandparents do not have automatic standing before the courts, unless they seek it in the divorce hearing itself. This bill would give grandparents an automatic right to standing in this divorce case. Therefore the needs of the whole family, especially with regard to access, can be dealt with at the same time.

Specifically, in the divorce action it allows the presiding judge to address this issue of access of grandchildren to grandparents and grandparents to grandchildren.

Since taking up this cause, I have become aware of many instances where the custodial parent denies grandparents access to the grandchild. This of course occurs regularly in relation to the parents of the non-custodial parent.

As some of you sitting around this table know, grandparents' rights groups have been raising this issue regularly on behalf of grandchildren and grandparents. I have tabled numerous petitions in the House of Commons in relation to this matter, and my friend the member for Ottawa West, who has a particular interest in this issue, has tabled numerous petitions as well.

Therefore, this bill would give grandparents an automatic right of standing in the divorce action of the parents of their grandchildren.

It does not automatically give the grandparents access. Access will be granted on the merits of the case, just as it is now. But at least, by virtue of this bill, grandparents would have a right to be heard on this subject when all other divorce matters are being settled.

I do not believe it will increase litigation in the area of family law. It is my submission that the exact opposite will result: all issues will be dealt with at the same time.

Paramount rights in this area belong to the children or grandchildren, as the case may be. This bill recognizes those rights.

Those who spoke in the debate in the House of Commons spoke passionately in favour of continuing the relationship between grandparents and grandchildren. When we discuss grandchildren, we usually envisage a happy family scene with the entire family present. Perhaps it's a holiday time such as Thanksgiving or Christmas, when grandparents are always a part of the celebration, or Mother's Day or Father's Day, when a special part of the day recognizes grandparents as well as parents with gifts made by children who are also grandchildren.

.0940

It is my sad duty to remind Canadians everywhere that this happy scene is not always the case, that in fact many of our senior citizens no longer have happy Christmases or Thanksgivings or any other holiday celebrations because one of the major parts of the whole is missing. Many Canadian grandchildren no longer see their grandparents.

Therefore this bill is necessary to address our changing social fabric.

The movement for this type of legislation, which will only give grandparents standing before the courts, began a number of years ago, in 1986, in British Columbia with the founding of the Canadian Grandparents' Rights Association, or GRAM. Now we have other chapters across Canada.

I would like to remind the members present that Nancy Wooldridge is with us today. She is the president who started the Canadian Grandparents' Rights Association in British Columbia in 1986.

In Ontario one grandparents group goes by the name of Grandparents Requisition Access and Dignity, or GRAND. Another Ontario support group is GROWTH, or Grandchildren/Grandparents' Rights of Wholeness through Heritage. It was formed by a group of grandparents concerned over the failure of provincial and federal legislation to address adequately the issue of grandchildren's rights to visit with their grandparents.

All these groups, and others I have not yet mentioned, are trying to address grandchildren's rights.

Article 5 of the Convention of the Rights of the Child, which was adopted by the General Assembly of the United Nations on November 20, 1989, requires state parties to respect the responsibility, rights, and duties not only of parents but also of members of the extended family.

Article 16 of the said convention provides that no child shall be subjected to arbitrary or unlawful interference with family. Preventing a child from seeking his or her grandparents without just cause is unlawful interference with family. It is important that we look at why it is important for contact between grandchildren and grandparents to be maintained after the divorce of the parents.

Would it simply not be cleaner and neater to cut off access so that for the children of the divorce the memories of grandparents and the way it used to be when mommy and daddy lived together simply fade away with the passage of time? Fortunately, this is not the opinion of experts in the files of family psychology.

Anton Klarich, chief psychologist of the French-language separate schools in Essex County, states:

Klarich was referring to a report released in August 1993 by the Ontario government that showed that children as young as ten are overwhelmed by the helplessness that grips family members worried about personal and financial problems. The children absorb feelings of insecurity, worry, and fear. Klarich says:

I recently had the honour of listening to Judge Andreo Ruffo, who spoke of her concerns that children should know they are loved and needed, that they should be encouraged to try to follow their dreams. Grandparents have the time to discuss our grandchildren's dreams with them and to encourage them.

I am not suggesting that all grandparents should have access to their grandchildren. I know there are some problems. This is why I stress that the courts will make the decision in the best interests of the child. We must not punish 95% of grandparents for 5% of the problem.

The Chairman: Just a moment, Ms Jennings. There is a camera in the room, and I believe that during the hearings cameras should not be in the hearing room.

[Translation]

Mrs. Venne: Mr. Chairman, I thought I'd heard recently that a new rule now allowed cameras in the room while committees are sitting.

[English]

The Chairman: That's not my understanding, but I'll have the clerk check on it.

[Translation]

The Clerk: I don't think so, but I will check.

Mrs. Venne: I will also do some checking of my own, because that's what I've been told. Thank you.

[English]

The Chairman: Proceed, Ms Jennings.

Mrs. Jennings: Returning to the specifics of this bill, I do not believe it encroaches on provincial jurisdiction. It was drafted by legal counsel to the House of Commons and follows basically the wording used in similar bills introduced in similar Parliaments.

.0945

Fortunately the new Civil Code in Quebec, in article 611, contains wording that relates to the issue of grandparents and access to grandchildren. It states that in no way may the father or mother, without a grave reason, interfere with personal relations between the child and its grandparents. Failing agreement between the parties, terms and conditions for these relations are decided by the courts. Therefore in Quebec, thanks to the Civil Code, grandparents enjoy the right of standing in court. Therefore this bill would complement the Civil Code, or it would simply not be operative in the province of Quebec, since the matter is already covered by legislation.

I realize legitimate questions have been raised about the clause in the bill that gives grandparents the right to certain information concerning their grandchildren. This may amount to a violation of the right to privacy. In fact, the member from Nepean and I have discussed this matter and determined that it may be a matter this committee may wish to delete.

In my attempts to advance this bill to this stage, I have had discussions with the Minister of Justice. He has informed me that at some point in the future Justice will be reviewing many of the issues involved in the Divorce Act file. I am pleased to hear this. But all of this will take time; and time is not something grandparents have a lot of.

I urge the committee to deal with this bill in an efficient and effective manner. If you want to hear from grandparents' groups on the need for this legislation, many have already made application to this committee and are still waiting to receive your answer. I would recommend you do hear from the grandparents themselves.

I thank you for listening to me. I would be pleased to answer any questions you might have.

The Chairman: Thank you, Ms Jennings.

We'll go to questioning. The first round will start with the Bloc Québécois, Madam Venne.

[Translation]

Mrs. Venne: Ms Jennings, you say that the Committee might want to delete the provisions of your bill relating to information on grandchildren. As you probably know, in Quebec, with regard to the protection of medical and school records as well as personal information, the Civil Code and different acts apply. Therefore, these types of information cannot be given to anyone except the parents and the people mentioned in these acts.

Would you be willing not only to say that the Committee may want to delete section 1(2) of your bill, but to make the proposal yourself?

[English]

Mrs. Jennings: Yes, Madam Venne. I did mention that in my speech. Subclause 1(2) actually says:

Yes, we have discussed that, and if that poses a problem certainly I will accept the decision of the committee.

[Translation]

Mrs. Venne: In your bill, there is no definition of ``grand-parents''. The concept of ``grand-parents'' could include biological grand-parents and the ``de jure'' grand-parents. There are other situations that we all know about, where two people divorce, each of them remarries and has children, and there are then many grand-parents since there is no definition in the bill.

We know that in 1991, in Quebec, 41 p. 100 of children were born out of wedlock. Would your bill also apply to the grand-parents of these children? After all, these children born out of wedlock do have grand-parents.

In my view, there is a flaw in your bill in that it does not have a definition of grand-parents. What do you think?

[English]

Mrs. Jennings: Basically, the bill is designed for grandparents at the time of a divorce, so it would automatically refer to the parents of the parents involved in the divorce and the grandparents of those children. So I imagine at that time it would be the biological grandparents.

.0950

There is the problem later, of course, that grandparents may change; for instance, if the child is adopted by a third person, who becomes a new parent. That is something else. But at the time of the divorce I believe there is a clear distinction that it's the parents of the parents who are divorcing.

[Translation]

Mrs. Venne: You say it's the parents of the parents who are divorcing, but these people remarry and have children. If that were the case, how many grand-parents could apply for standing? That's what I'm getting at.

You're talking about a very simple divorce where the two people concerned have a child, but that is not always the case. That is why I think that there is a flaw. I think we have to admit it.

[English]

Mrs. Jennings: First, I don't see it as being a flaw. I am talking about a divorce, and that's the way the bill is interpreted, so that automatically refers to the parents of the divorcing couple. That's straightforward.

But if you're talking about too many children - suppose hypothetically that you're talking about there being a lot of grandparents in here - first I'd like to stress that there are not going to be a lot of grandparents. There might be a few extra ones.

I'd also like to stress what we are concerned about here. We're concerned about grandchildren, and to my knowledge, no child ever died from too much love. So if we're really concerned about family and family issues, then if a grandparent has the legal right as a grandparent, they would have a right to apply.

I mentioned to you that we have Nancy Wooldridge with us. She had to question that very right you're talking about. When her son's ex-wife remarried, she was informed that she would no longer be the legal grandparent. She had to go to court to retain her legal-grandparent status, which she did successfully, because under the law, at least in British Columbia, if a child who is divorced remarries, then his or her parents automatically assume the legal right. I'm not sure about the rest of Canada.

So, again, we're talking about probably the legal grandparents, and in this case they're the ones who would be at the divorce.

[Translation]

Mr. Langlois (Bellechasse): Thank you Mrs. Jennings for your clarification on clause 2 which deals with information. Although I did not oppose the bill in second reading, I saw a problem with giving information to a grand-parent who is not a legal parent of the child. If the grand-parent is the legal grand-parent, he or she must receive the information.

Moreover, it must be pointed out that a grand-parent who has access to a three-month old child will not receive much information from the child himself, but when the child reaches 12, 13 or 14 years of age, he will provide the grand-parent with information. This will create 2, 3 or 4 categories of information. The child himself will want to communicate the information, and a relationship of confidence will be established or won't be established with the grand-parent. In that respect, your approach reassures me.

As for the definition of grand-parent, I am much more familiar with the Quebec Civil Code. If you talk about grand-parents at the time of divorce, and I do not see how we could state it otherwise, it seems to me that rules of lineage should be followed. Lineage is determined through bloodlines or adoption under Quebec legislation. My colleagues can shed light on common law in Canada. It can happen that a grand-parent, at the time of divorce, subsequently becomes a grand-parent because his son or his daughter has other children. But that does not change in any way his situation with respect to the children who were already born at the time of divorce. I do not really see there being any problems in that respect.

It would however be interesting to hear witnesses on that topic. In short, I would hope that we could study this issue rather quickly, as you said earlier. I share your opinion: for grand-parents, each minute of their life counts.

I would now like to talk about situations where grand-parents have lost contact.

.0955

Section 611 of Quebec Civil Code which, since 1981, gives grand-parents direct access to the courts, has not resulted in an increased number of litigation brought before the courts. However, what that section of the Quebec Civil Code has done was allowing lawyers and notaries who prepare agreements for those who are getting a divorce to raise before them the fact that section 611 exists and that perhaps they should include in their agreement on corollary relief provisions for visitation or access rights for grand-parents because otherwise, the latter would always have recourse.

I believe that measure has had a preventive effect on grand-parents and that it has not been a source of conflicts. I really don't fear that it will have a much more considerable effect in Canada as a whole than it has in Quebec, because of the provisions that have already been made. I don't think that it could be a source of conflict and that it will cause a backlog in the courts.

[English]

The Chairman: Ms Jennings, did you have some comments? Time has expired, but go ahead.

Mrs. Jennings: I have to agree with Mr. Langlois. I don't see it being a problem at all. In my mind there will not be more litigation, and I am very, very convinced of that.

What's happening right now, as I said earlier, is that grandparents are in a happy situation with the custodial parents prior to divorce and do not suspect there will be any change. When the divorce comes and suddenly, for whatever reason - we have two quite emotional people involved here with parents divorcing - the custodial parent decides to move away or whatever or finds it easier to do without the other parent's parents, then that situation is forced on the grandparents. At that time they have to go back to court, get a lawyer, advise the court, set up another date, get the parents back. It's obvious the litigation is going to increase. It can't help but increase. If it's all dealt with at one time....

I think the problem is communication. I think because you run away doesn't mean you get away from the problem. All you do is increase the problem. You have to deal with things at the time. That's why I agree with you. I do not think there'll be any more litigation; it will be dealt with at one time. Only if the grandparent is interested, remember.... It's up to the grandparents to decide they want to be there, but if they're notified they at least have the right to make that decision.

The Chairman: Mr. Ramsay.

Mr. Ramsay: I would like to begin by stating that my impression of this bill is that it enhances the principle of the extended family and the strength that emerges from within the extended family when a crisis situation endangers the physical, emotional or spiritual needs of a family member, in this case the children. This to me is an extension of that principle. It would tend to strengthen the extended family, and I think that's what we all would like to see.

But I have just read a letter from the Canadian Bar Association, who are opposing this bill. Basically they are saying this, and I quote from the second paragraph of the first page: ``Under Bill C-232, grandparents would be given the same status as parents in matters of custody and access of children.'' Do you agree with that statement?

Mrs. Jennings: I do not believe they would be given the same status. They would have the opportunity to appear at the divorce and ask for rights, but the court would still discuss the parents' rights first, as they do now.

Mr. Ramsay: As it is today...I have children, and of course they have grandparents who are living. Those grandparents have access to our children only with our consent. What this letter from the bar association is suggesting, to me at least, from my interpretation of it, is that this bill would change that situation, where grandparents to my children have access to their grandchildren only with our consent. We've never withheld consent, because they have been kind and loving grandparents, but if they began to interfere in a manner that we didn't think was our way of raising our children, then we have the right to stop that.

.1000

This letter is suggesting is that if the bill becomes law.... Of course I support the main thrust of the bill, but the critique of it is that if this bill goes through, then there will be a different situation for children of divorced parents in terms of the powers and rights of grandparents to intercede in the raising, the education, and perhaps the religious upbringing of the child.

Do you have any concerns in that area?

Mrs. Jennings: I think I have more concerns the other way if it continues as it is now.

First, keep in mind that this is only standing in the courts to ask for visitation rights at the time and custody only in the case of a dysfunctional family.

The parents would still have their rights. The parents will always have their rights. The judge, he or she, will always decide in the best interest of the child. It will not violate parents' rights in any way. It is not a threat to parents' rights.

Right now in our country we have a tremendous number of parents who get along well with their grandchildren and with their own children. At the time of divorce something happens. As you say, there is no reason for them to disallow them to continue...and the question never comes up. At the time of divorce something happens, usually because of the custodial parent, who fears...or for whatever reason.

You have to decide whom we are really thinking of here. Are we thinking of children, or are we thinking of the custodial parent? Now the custodial parent, for whatever reason, decides that the grandparents should not see that child any longer.

The United Nations, in its wisdom, knew that the children must be protected, that children must have rights to their family unless there's some serious reason why they should not. That's what the court is there for.

So it's not only more than possible, but it's now happening every day in our country that custodial parents are not justified in their reasons for preventing grandparents from visiting their grandchildren. It's very serious.

If we allow it to continue as it is, then we're going to see these grandparents.... You're seeing a very few of them here today. We're going to hear from them more and more.

This has been going on for years. So at some point we as legislators have to look at reality and make wise decisions. The decisions are going to have to stem from society, which today has a growing divorce rate. It's out of control right now.

Senior citizens are living for longer and longer periods. We're concerned about it, because we're concerned even about the CPP. Is it going to be there? They're healthier and living longer. This group of senior citizens supplies the love and stability, family matter, in our country that we need today. Are we going to keep legislation against them so we force grandparents not to be able to assist and help?

We have a growing crime rate. This is part of crime prevention as well. The children grow and are nurtured in a happy family setting, and the custodial parent, who right now may or may not be upset with continued meetings with the grandparents of the other spouse, doesn't realize at the time of the divorce how much he or she may need the help of those grandparents. Remember that we're talking about grandparents who are there to help when needed, not to take over.

Try to take the 5% that may be a problem out of your mind and deal with the 95% that are a serious issue. That's what we're talking about here. As legislators, we must be very responsible, and this is something about which I feel very strongly.

.1005

Mr. Ramsay: What this opposition letter, or this letter from a Mr. Steven Andrew.... He is chair of the national family law section of the Canadian Bar Association. The issue he has raised indicates to me that the grandparents of a child whose parents are divorced are going to be granted rights that grandparents of children whose parents are not divorced do not have.

The question that it raises in my mind, and that I would like you to focus on for a moment, is if my wife and I decided the grandparents, for one reason or another, ought not to have access to our children as they do now, should they be granted the right in law to appear before a court and receive permission that would strike down the decision we made as parents to withhold that? I think this is a thrust of the bill. If my point is clear, would you comment on that?

Mrs. Jennings: First of all, Mr. Ramsay, the clause you are talking about is the clause Madam Venne has already discussed, and as I said in my preparation speech, that is clause 1, proposed subsection 16(5) of the bill. We're suggesting that one be deleted. So in fact grandparents who are given access would not have rights to private information. That's what we're concerned about.

But I would like to say something. As a matter of fact, they would have no more rights than I. I am a grandmother of seven. At any day of the week or at any time of the night I can phone my daughters-in-law and my sons and I can inquire about the health, welfare, and education of my grandchildren. I have always had that right. Each one of you in this room probably has, unless you're undergoing one of these situations.

So I do not believe it would in any way intervene in that way. But we are more than willing to delete that proposed subsection.

Mr. Ramsay: Okay.

Mrs. Jennings: Mr. Chairman, I wonder if I could say something else. It's been brought to my attention - and I imagine it was in 1986 it was amended, probably in British Columbia - that any third party can apply for visitation rights or access or custody in B.C. I don't know what it is in the other provinces.

The Chairman: Ms Phinney?

Ms Phinney (Hamilton Mountain): The last statement made by the witness was they'd be more than pleased to delete that proposed subsection. Could she tell us what subsection?

Mrs. Jennings: Oh, I'm sorry.

The Chairman: I wonder if we could leave that, Ms Phinney, to your time, when you're questioning.

Ms Phinney: I just want this to be clarified. We'll either delete something that has to be -

Mrs. Jennings: We've already discussed it. It's in the preparation I just gave you, and Madam Venne.... We were just discussing the one that talks about giving information about the health, education, and welfare of the child. That's the one Beryl Gaffney was also concerned with.

The Chairman: Mr. Galloway.

Mr. Gallaway (Sarnia - Lambton): Ms Jennings, you stated in your submission that you do not believe it will increase litigation in the area of family law. Certainly those of us from Ontario realize the great pressure legal aid is under. I wonder, is this a belief, or with whom have you checked to verify that type of statement?

Mrs. Jennings: I have checked with lawyers around the country: Barbara Baird in New Brunswick, who is in family law and working in this matter with us; we have a Mr. Culhane, who is a lawyer and has dealt extensively with these cases in British Columbia. He has had a great deal of success with grandparents' rights. Basically, they all say the same thing.

From my common-sense approach - I'm not a lawyer - if everything is dealt with at the time of the divorce, how can it increase litigation? Litigation is costly to the taxpayer. If it's at another time, it has to be costly. It costs money to go to court. So how could it increase litigation? There would be much more to prepare; there would be more papers at another time than at the time when it's being dealt with in the courtroom anyway.

Mr. Gallaway: Do you have any type of empirical evidence, then, that would suggest in what percentage of divorce cases this law would trigger some other type of interveners in the case?

Mrs. Jennings: No, we don't have any figures on that at all. We know this is in effect in the United States, and has been for some time, operating very successfully. But I could not comment on it.

.1010

Mr. Gallaway: Do you have any of the American evidence, then, in terms of the percentage of participants?

Mrs. Jennings: No.

Mr. Gallaway: Then would you think that in a divorce action where grandparents are interveners, if I might call them that, where they are given standing, this will in some way complicate or increase the tension at the time of a divorce? Divorces are often a time of relative insanity as between the parties. Do you see that complicating, in any way, the ultimate outcome or the ultimate relationship as between or among the parties? I ask this because we are now potentially adding, I suppose, four other interveners in a divorce procedure.

Mrs. Jennings: You must remember what I said at the beginning, which is what grandparents across the country have found. It is that relationships have been quite good and grandparents have been taking their rightful place and part in the family, but after the divorce - not at the time of or before the divorce, but a few weeks or months down the road - the custodial parent makes the decision to sever the relationships. So if it's the decision of the grandparents, that's when they have to go all the way back to court, and many can't afford to.

So that puts us back to the time of divorce, when the grandparents usually are still enjoying a good relationship with a custodial parent, a trust relationship. At this time there is someone in the room - in this case it's a judge - who is in charge of what's going on in the courtroom.

I do not see how it would increase.... Everyone wants the best interests of the child, and the grandparents just want to ask to continue visiting the children. I don't see how that's a conflict, unless there is some other issue there, and again that goes back to the 5% of the problem, not the 95%.

Mr. Gallaway: I must confess that we received your bill only this morning.

Mrs. Jennings: Oh, I'm sorry.

Mr. Gallaway: Would your bill then give grandparents, if a judge approves it, the right also to apply for custody? Or would it be for access alone?

Mrs. Jennings: I believe it would be right for custody as well if it's a dysfunctional family. Obviously you're not going to apply for custody if the family is fine.

Mr. Gallaway: But is it within the jurisdiction of the court to determine at the time of the divorce if it's a dysfunctional family? I don't know what a dysfunctional family is.

Mrs. Jennings: Right now we have many cases in British Columbia where people are applying for custody where one of the parents might be abusing with drugs or with alcohol - dysfunctional family. That is happening. It does not have anything to do with this bill, but that is happening right now, where custody is being asked for. But that's not the case in the bill. The bill is asking for visitation rights.

Mr. Gallaway: My concern is this: if we're going to talk about the rights of parents as opposed to the rights of grandparents - and I'm certainly very sympathetic with this bill - in terms of adding perhaps four additional parties at the table when it comes to discussing custody and access.... You've mentioned the word ``dysfunctional''. We might have a case where the grandparents, because of their age, are in a better financial position and, because they are not divorcing, are in a better mental state of mind at the time of the divorce. A grandparent who then slides in and has standing in respect of access might try to push further and say, I want custody, in which case, on the merits of any particular case at a given point in time....

If we talk about dysfunctional families, people who are divorcing are usually dysfunctional at the time of the divorce, because it's a time of great stress.

People who are older usually have accumulated more money and more assets. So from the perspective of who is best able financially and, at a given point in time, who is mentally a stable person to care for this child, do you see the potential for grandparents getting into a full-scale war as between parents? I ask this because surprisingly, or not surprisingly, grandparents tend to take sides in divorces.

Mrs. Jennings: First, in our definition of dysfunctional, I do not think a couple who are divorcing are considered to be a dysfunctional family. If we're talking about being dysfunctional, then normally we are talking about someone who is not operating well because of chemical dependencies or something like that. If you want to discuss dysfunctional, then that's fine; but that's not the intention here.

Basically, I must again stress to you that with this bill the grandparents are going to get standing in the courts only to ask for visitation rights and/or custody, which they can do now. But to do it now, they all have to come back to court at a later date, at great cost to us, the taxpayers, as well as to the grandparents. They can do all that now. This bill doesn't change that. All that happens is that to save costs and stress for everyone, it allows people to speak at the time of divorce.

.1015

And no, I do not agree that four grandparents, if four grandparents are in the courtroom, could not speak with two parents and a judge in a responsible manner. I do not agree that this has to be embroiled in all this conflict, which is the worst scenario to take or to suggest.

In the case that it all has to go back to court anyway, if you are right in your assumption, then what would you be saving? It would all be happening at a later date. So why not have it at the time when it saves taxpayers and everyone interested in the court case money?

Mr. Gallaway: Under this bill, then, would grandparents have the right to apply - and I understand the right is not automatic under this bill - to vary a decree, a divorce judgment, after the fact, much as the parties to it have the right to apply to amend certain provisions of a judgment?

Mrs. Jennings: This bill gives standing only at the time of the divorce. At this time it gives standing only at the time of divorce. Right now they have a right to apply after the fact. They are applying after the fact right now.

Mr. Gallaway: They are? That's interesting.

Mrs. Jennings: That's what we have right now, and that's what they have to do. They have to go to court and get a lawyer, make application, and get the parents back and everything. That's what's happening now.

Mr. Gallaway: Then presumably if they have the right to apply at the time of the action, they would have the right to apply at some time after the fact.

Mrs. Jennings: They do have that right now. It's just notification.

Mr. Gallaway: What I'm trying to get at is this whole business of your belief that it will not increase litigation. My belief is that if you have more people who are potentially applicants, petitioners, respondants in a case, you are going to have infinitely more litigation. It just stands to reason that when you have large numbers of plaintiffs or defendants and the right to appeal and the right to vary, ultimately you're going to clog the system with these types of actions.

Mrs. Jennings: First of all, I would like to refer to what Mr. Langlois has already said. It did not increase the litigation in the case of Quebec, and they've had it. One of the reasons might be that because people know they can't withhold visitation from the grandparents to their children, they may be more reasonable. I don't know. I'm not sure why that happens, but it has proven not to be the case.

But I would still say to you that even if four people - it might be four - were in that courtroom, they have standing in the courts, they're notified, and all they have to do is make application. There are documents there; that's litigation.

But if they do it at a later date, all those people have to come back to court, we have to open up the courtrooms once again, we have to have a judge there, we have more lawyers. Of course that's more litigation, because that's the whole process being repeated again. At this time we're taking only a small section of the process and adding a small part to it.

[Translation]

Mr. Langlois: I was listening closely to Mr. Gallaway. I cannot generalize from my own practice, but in divorce cases at the present time the increased litigation is not caused by the parties, who are generally two, but by the grandparents who sometimes decide to involve themselves in the divorce, in particular by financing one of the parties.

We then have appeals of provisional decrees, appeals of judgements based on the merits and more litigation. If some grandparents want to throw oil on the fire or I don't know what...

Mrs. Venne: Stir up trouble.

Mr. Langlois: ...yes, stir up trouble, they can do it easily: all they have to do is find lawyers, and most of them will only be too happy to defend the rights of the parties if they are legitimately paid for it.

On the other hand, if all those people can meet at the time the dispute arises, a settlement can probably be found faster.

.1020

As you said, it is possible for the grandparents to be represented by an attorney, since the laws of the country already recognize that right. The Divorce Act already allows the appointment of an attorney for the child. So why not deal with that at the same time?

It can be done at the same time, in only one hearing. The judge will not spend three days on that. In practice - I've been in this field for 22 years - , judges do not spend too much time on that, unless there are opinions and counter-opinions by experts, but that cannot be avoided. It may be the 5% that Mrs. Jennings was referring to. When you want to prolong a divorce case, you can make it drag on as long as possible. However, in the majority of cases, it is possible to resolve the case quite quickly.

I still see that as a preventive measure. If it has to be litigated, of course, as for any other case at the moment, it will take time, money and energy, but I feel that we have here an excellent preventive measure.

[English]

The Chairman: Ms Jennings, comments?

Mrs. Jennings: I have to agree with a lot of what Mr. Langlois says. The process is there now. If you want to make complications, you can make all the complications you want.

Why am I here today? I am here today because I want legislation passed, with your help, to assist grandparents and grandchildren in our country who right now do not see each other, for various reasons. One of the main reasons probably is that at the time of the divorce they do not know there's going to be a problem. The problem emerges after the divorce. If it emerges after the divorce, what's happening in our country today? Many grandparents don't have the funds to do anything about it. So they spend the rest of their lives not seeing their grandchildren.

Are we concerned about grandchildren or are we not? Are we concerned about where our country is going or are we not? We have an opportunity to do something. It's up to us to be responsible and start the process.

It's not going to go away. Grandparents are going to be very upset if after all these years...and they've got this far with unanimous consent of the House of Commons who were there the day it passed. If they find again they're not going to be dealt with fairly, they're going to be coming back and back and back. You won't hear the end of it. It's something we should all be cognizant of.

I want to thank you very much, all of you, for your patience and time.

Mr. Ramsay: My concerns about this bill have been addressed. Just for the record, I'd like to say I have never seen a grandmother or a grandfather who did not love their grandchildren and who did not care for them and would not do what they could with the resources at hand to ensure their son or daughter had the means to help their grandchild on his way in growing into a solid, decent, law-abiding individual.

I think this bill is going in the right direction, and I will support this bill if this committee will move it forward.

The Chairman: Any comments?

Mrs. Jennings: I'd just like to thank Mr. Ramsay for his remarks.

Ms Phinney: I have a couple of concerns. Again, I'm not a lawyer, you're not a lawyer, so we'll see where this goes.

I would like to think all grandparents love their children, love their grandchildren, and would like the best for them. But there are cases where this isn't the situation. I have personal friends whose grandparents have said that if they can ever get their hands on the kids they will...and the grandfather carries a gun with him in the hope of getting hold of the kid.

I wonder if there's a single court case where access to the grandparents is connected somehow to the whole divorce process. If in a year's time the father, let us say, has been told he cannot have visiting rights without supervision, etc., because they're worried about...whether it's molesting the child or it's kidnapping the child, where would this leave the parents of that father? Would it be presumed the parents would not be on the father's side, therefore they would not have to be brought back to court and questioned about whether they would aid their son in kidnapping the child?

.1025

I just wonder if putting these two together automatically means the courts would have to.... If the father has to go to court, where this is decided, would the grandparents - the father's parents - also have to go to court at the same time, where they would be questioned about whether they would support their son if he were to do something illegal? I was just wondering what the connection is there.

You can't presume a grandparent is going to be 100% within the law and always be honest. If we are thinking about the safety of the children, there are times when the grandparents might be on the side of their child rather than have the best interest of the grandchild at heart.

Mrs. Jennings: I can't really comment on that. I don't know of any case where that is in fact the scenario. I do know that because the father is not being allowed to see the children, for whatever reason, the parents on the father's side are suffering in not being allowed to see the children also. I know in fact they are being punished because of that decision. Sometimes the custodial parent makes that decision.

Ms Phinney: But you're presuming the grandparent always has only the interest of the grandchild at heart and not the interest of their own child at heart. I'm sure there are many grandparents who have the interest of their own child at heart, which might be, yes, you have the right to this child; I don't like my daughter-in-law any more.... They may be on the other side. You're presuming people - I would like to presume that too - are 100% honest and 100% care about their grandchildren, but -

Mrs. Jennings: I'm not presuming anything. First of all, I have to reiterate what I said earlier. We must not punish 95% for 5% of the problems. Regardless of what decisions we make, it is still up to the judge in his courtroom to make that decision. Sometimes he may make an error, as happens, but that's still for his or her decision; and they must make it knowing the facts of what you've just said. Surely they'll have that information in front of them, or somebody will bring it forward.

That's happening in our country now. Decisions are being made about that. What we're saying is that unfortunately what's happening now is that because the father's not getting custody and sometimes not even getting visitation rights, it's assumed the grandparents no longer wish to see their grandchildren. They're being punished. So those grandchildren lose out not only on a father, which might be right, according to the judge, but they're losing out on loving grandparents, who are not backing their child, because they may or may not realize there is a problem.

Ms Phinney: I don't have an answer to my question, but that's all right.

Do you have a copy of the letter from the Canadian Bar Association?

Mrs. Jennings: Yes, I do.

Ms Phinney: I just want some clarification here. I know you didn't write it, but maybe you can clarify this. It says: ``Most provincial or territorial legislation allows any third party to obtain an access order....'' Do you know which provinces these are and which ones are not included in this? Do you happen to know that?

Mrs. Jennings: No, and I've not got involved in the provinces at all, first because I'm not a lawyer, and to try to explain litigation I'm not aware of.... But I have talked to the law clerk about the subject of encroachment on any provincial jurisdictions, and I'm assured it's within the competence of the federal government to put this law we're talking about today into effect.

Ms Phinney: If this said ``all provinces'', would we need this bill?

Mrs. Jennings: Yes, I very much agree, because the provinces have different legislation in front of them right now. We need one general format for them to take and administer from.

The Chairman: Mr. Regan.

Mr. Regan (Halifax West): It certainly seems to be a difficult situation. It would be ideal if we could have a tool that would ensure all the really good grandparents, of course, have access to children and all parents provide that kind of access. But it is also troubling in some ways, in the way we're looking at changing it.

I know some members of your party have indicated they feel the Charter of Rights, for example, has created a whole lot of new rights, and therefore increased a lot of litigation, because of course when we draft something we can never foresee all the ways in which courts will interpret the provisions we draft. It's always a great challenge, it seems to me, in creating new legal institutions or new legal mechanisms.

.1030

You've indicated that you don't feel it would add to litigation. From what I've seen, whenever you have more lawyers for different parties in a hearing, whether it's the royal commissions we've seen with lawyers of all sorts of different parties or just one or two more lawyers in a hearing, it complicates things and adds to the time and length of the hearing. So it might not create more separate actual cases, but it might increase the length and complexity of individual cases.

For my second concern, I want to refer to the paragraph my colleague read from a moment ago. I'll read the rest of the paragraph. It is the second paragraph on page 2 of the letter from the national family law section of the Canadian Bar Association.

When I saw this, it struck me that if anyone would have an interest in seeing this passed it would be family lawyers, because more of them would be required to work on these cases if there are going to be more parties to the matters. But here they are opposing it. That's an interesting point.

They say this:

I realize you might indicate that you can't look at just the 5% who are the problem, but on the other hand, we can't ignore the 5% either. We have to question how we're going to deal with that 5% and whether or not the present system, which, according to the letter at least, provides that kind of safeguard, is sufficient as it is, or whether there's something in between that we can do or whether to go as far as you're suggesting.

In my view, it comes down to this. It seems to me that at the moment - and please tell me if I'm wrong - parents who are not divorced can cut off access by grandparents to the children. But what you're saying here is that in the case of divorced parents the custodial parents could not do that. Why would it be in the best interests of the child for parents who are not divorced to cut off access to the grandparents, but not in the case where they are divorced? In terms of the interests of the child, what is the distinction?

Mrs. Jennings: I'm not sure I follow your line of questioning.

Mr. Regan: Let me try it again. What I'm saying is that in a case where you have a normal couple and they decide, for some reason, that they have an approach to the upbringing of children different from that of the grandparents, and therefore they don't allow access to those children, what is the distinction? Why is that in the best interest of the child, but not in the case where they are divorced?

Mrs. Jennings: First, I'm not sure that the scenario you just presented is in the best interests of the child. But if that's their decision and the grandparents aren't having any say in it already, then I don't see where that comes into play in what we're discussing today at all. That's a separate situation. There's no divorce and they're doing their own thing. How do we judge what other people are doing? How do we do that?

Mr. Regan: That's my point.

Mrs. Jennings: Well, no. We're talking about a case of a divorce where grandparents have been in contact with their grandchildren. It is not as if they haven't seen them for years and years, but, rather, they have been in regular contact. Some of these grandparents have even been looking after them, caretaking for the parents while they're working.

So we're talking about a different situation here. Suddenly, when the divorce comes, the custodial parent decides to cut them off. That's the only scenario we're talking about now.

You mentioned something here by reading page 2, the precondition of obtaining leave from the court. The grandparents still have to make an application to speak. They are granted standing. In other words, they are notified of the divorce. They still have to make an application, because of course you wouldn't know if they were there or not, if they were going to speak. So you still have that safeguard.

So I don't see where this argument holds any water.

If you say that the precondition of obtaining leave from the court provides a necessary safeguard against frivolous or vexatious applications, the court is still going to get applications that it will turn down, and the judge still has to make the decision. In this case the judge still has to make the decision.

.1035

Mr. Regan: At the time of the the divorce hearing itself.

Mrs. Jennings: Yes. Really, it's happening now, only too late to help grandparents and grandchildren.

Mr. Ramsay: I have one question to follow up on what Mr. Regan is saying and to make it clear for the record that if a family is married and everything is going fine and they say to the grandparents, for whatever reason, they do not have access to the children, they're allowed to do that. Now, let's say that same family experiences a divorce. Would this bill allow the grandparents then to apply and gain access where they didn't have access before?

I think this is the point Mr. Regan is making, and it's the point that concerned me when I read this letter from Steven Andrew, from the family law section. The bill is granting rights. There's no question about it. It's granting rights after a divorce but it's denying rights before the divorce. I have some concern in that area.

I'm talking about a hypothetical situation; I understand that. In most cases the grandparents would be interested only if they had contact with the children before.

Mr. Chairman, this is a point I have a bit of concern about, because in one case it's granting rights to grandparents they do not have before divorce. They have this right only after divorce. The parents' right to withhold access is there before the divorce, but it's not there after the divorce. I think that's a point Mr. Regan was pointing out, and it raises a concern in my mind, although I will continue to support the main thrust of this bill.

Mrs. Jennings: My answer to that is the same answer. It only gives them standing to appear in the court at the time of the divorce. They are not given any extra rights. Those rights you are talking about, and anything that pertains to family custody at the hearing, can be brought back at a later date. So all you're doing in passing this bill is allowing equality for all grandparents so they all are able to speak at a divorce hearing.

If you do not pass this, you are still penalizing those grandparents who don't have the funds, who don't have the wherewithal, who cannot afford to go back to court; who in our country today, at this time, are not seeing their grandchildren. It has nothing to do with saying this time you'll have rights, that time you won't. You still have the right in our country today to apply for those rights. You can go to custody at any time you want to.

I had one father phone me the other day. He was very upset because his wife is dead, the grandparents are on welfare and keep going to legal aid, and legal aid keeps letting them go back and back and back to the courts.

So obviously right now in our country it's happening at the will of people. If it all happens at one time, at the time of the divorce, it will stop all those particular problems. But it will be fair to grandparents who don't have the money, who are on fixed incomes, who can't go back to court to ask to see their grandchildren again.

Mr. Ramsay: I have just one final comment. I am prepared to place my faith in the wisdom of the judges. If there is evidence that there was justifiable reason for the parents to withhold access from the grandparents before the divorce, then I think the judge will take that into mind when he renders a decision on that. We can't determine the circumstances of each and every case here. I would leave that to the judges to decide. Therefore, I think my concern would be alleviated from that point of view.

.1040

The Chairman: Ms Cohen.

Ms Cohen: Actually, most of the questions I had wanted to ask were asked. But I am concerned about this.

Basically, the issues of child support and custody, and questions of whether a child needs to be protected or what are the best interests of the child, are matters of provincial concern under the Canadian Constitution, not matters of federal concern. The only way you get to custody, access, and support during the course of the Divorce Act is under what is called ``corollary'' or ``ancillary'' relief. I'm wondering if you or your research people or the special interest group you're representing here today have done any constitutional work on this to determine whether in fact we have the federal jurisdiction to deal with this.

Second, you have said in cases of this sort.... You are using the term ``95% versus 5%''. I would like to know where your numbers come from. Or is that just a sort of gut feeling?

Third - Jack, I just hate it when we agree - I have to agree with Mr. Ramsay and withMr. Regan on the one issue. It seems to me what you're doing in the event of a divorce is giving two grandparents rights they wouldn't have had if the parents had stayed together. The problem I have is that your private member's bill allows grandparents....

Let's say my husband and I have children and we decide that for whatever reasons one set of grandparents should not have access to those kids. We agree on that as parents during the time when we are married, and when we get divorced we still agree on that. We don't get along, but we still have the same point of view about the advisability of allowing these grandparents to see these kids. You are saying that just because of the divorce that opinion is no longer valid and that for some reason a stranger, a judge, should get into this. It seems to me if my husband and I agree someone shouldn't see our kids and nobody has the right to intervene in that when we're together, they shouldn't have the right to intervene in that when we're separated.

My last comment is this. Having been a lawyer who litigated for about fifteen years...you can get people in a lawsuit ganging up if you have more than two parties. So if I'm getting divorced from my husband and I'm trying to get custody of my children and I don't have enough guns, I could get my parents, who have a lot of money, to hire a lawyer and come in. They'll be the third party. Between the two sets of parties, we'll just gang up on the husband, or vice versa.

It seems to me that's fundamentally changing the nature of the litigation. It seems to me what the bill is inadvertently doing could change the balance, the fairness, of the playing field when you get into court on a divorce.

Mrs. Jennings: I'm not sure I have them all in order, but first of all, on the 95% and the 5%, that's just thrown out the same as a teacher. For many years I always said only 5% of our young people are problems, the rest are hard-working, responsible young Canadians.

Ms Cohen: It's a gut reaction.

Mrs. Jennings: Yes. When you're speaking of something where perhaps you have a majority and a minority, then that's just the way I refer to it.

The rights they wouldn't have had if they were together.... You've just given me a scenario where you, per se, and your husband were not allowing the children to see the grandparents. You already have a situation where those grandparents didn't have access. But I've presented to you grandparents who would be applying to the court because in fact they had been seeing them on a regular basis. That's what is happening in Canada today.

Ms Cohen: But with respect, and not just to stop you when you're on a roll there, it's not just going to be good people who are going to apply, and it's not just going to be people with fine motives who are going to use the courts. Sometimes people use the courts to stir the pot. Sometimes people use the courts to get even. Sometimes people use the courts for improper or at least illegitimate reasons.

Mrs. Jennings: Of course. Then I must come back and tell you again what I have been saying all morning. First, they can do that now. They can apply, and people are applying, after the fact, at a great deal of expense to us, as taxpayers, as well.

Ms Cohen: Then why do you need the bill?

.1045

Mrs. Jennings: I'll tell you again what I've been saying all morning. One, they can do that now. They can apply, and people are applying after the fact, at great expense to us as taxpayers.

Two, it's still up to the judge. It's not up to us. We have to put some faith in the judge. Those are the decisions that he or she is making at present.

Last, you didn't mention the child's right, but you're talking a lot about the parents. Grandparents are concerned about their grandchildren. It's the children we're trying to talk about. It's obviously important to the United Nations to bring in a convention to protect the child's right to have access to their family. We seem to be forgetting that here. We keep talking about parents only.

Parents are an important part of the family, and it's wonderful if everything is normal. Parents are the most important part if everything is normal.

As a teacher for 30 years, I've dealt with children on a regular, day-to-day basis, and there are some very unhappy stories there. You should be aware of them as well. We're talking about the child. We have to protect the children.

Ms Whelan (Essex - Windsor): In your opening statement you made reference to the Civil Code in Quebec, article 611. I'm not familiar with it, but I would assume that this article doesn't apply just to divorce situations, that it gives a right to all grandparents in Quebec. I'm wondering if, by putting forward an amendment to the Divorce Act, we're creating a separate class of grandparents.

It's similar to a point that was raised earlier, but perhaps it is a bit different.

I personally believe grandparents should have access to grandchildren, but I'm wondering if you're giving special status to only children or grandchildren of divorced parents. Perhaps we should take a second look or maybe do a little bit more research into what happened in Quebec and why they put that forward and whether or not we should be looking at it from a grander or broader perspective.

Otherwise, you end up with a situation that the second-last paragraph on page 2 of the brief of the Canadian Bar Association mentions. You end up with a situation where you're saying that if they're entitled to access, then should they possibly also be paying child support?

It's an issue that I really don't think it is necessary to get into if you look at the broader perspective of what was proposed in the Civil Code in Quebec. In light of what has been put forward today, the evidence that there hasn't been increased litigation in Quebec, maybe the issue deserves a second look.

Mrs. Jennings: In fact, it probably doesn't now get increased litigation in Quebec because they're already aware that the grandparents have some rights. As it states, without a strong reason you can't impede a grandparent from seeing a grandchild. So that speaks in favour of this bill, not against it.

Ms Whelan: I think you're missing my point, though. My point is that this bill might not be necessary if for some reason you were to have larger or broader rights for grandparents across the board.

Mrs. Jennings: If the Divorce Act at the federal level is changed - and we're dealing with a Divorce Act that is a federal act - then it will give each province a chance to have the same provisions as article 611 of the Civil Code contains right now. The wording is very similar. So it will bring some continuity to everyone across the country rather than going for nine different legislatures, nine different suggestions of wordings of how to help them. So it's very important that we should help them at the national level.

It's very difficult for me to try to persuade you that legally this is the best thing. I can't. I'm not a lawyer. I can only say that right now it is in every state in the United States and it has been for many years and it is working very effectively. I can only tell you that not only is it working, but it is proven, by over 5 million grandparents raising their grandchildren, that custody by grandparents is often very necessary, too.

When I travelled across Canada, I was told by many grandparents in P.E.I. and all through the Maritimes that now they are raising their grandchildren, with no support payments. Families are doing this out of love and concern. Nobody is giving them any extra money. That's happening now.

So we have to deal with the facts, not with what may or may not come. We have to trust our judges, because they're dealing with these issues every day right now. I don't think we can suppose what will or will not happen. We have to make good legislation and let them apply it - not for just some, but for all Canadians.

.1050

Ms Whelan: That's my point exactly. That's why I raised it. The Civil Code in Quebec deals with all the grandchildren in Quebec. I'm talking about all the grandchildren in Canada.

That's why I raise the point. I know of situations today where I would say parents deny access to grandparents with little or no reason. That's their choice right now. I'm just saying maybe that whole issue needs to be looked at.

That's my point. My point is you're going to create separate classes of grandchildren in the different provinces. That's my concern. I'm talking about all grandchildren, all Canadians. That's what I'm talking about.

Mrs. Jennings: I see. I guess I just see it differently from you, as one federal act that looks after everybody. That's not a federal classification.

Ms Whelan: Only in cases of divorce.

Mrs. Jennings: Well, the Divorce Act is an act. We have to deal with the act as it sits. It doesn't talk about everything else. We're dealing only with the Divorce Act here.

The Chairman: One short question from Ms Cohen.

Ms Cohen: It's more a comment, Mrs. Jennings, because you keep going back to the issue of getting in at one time and doing all the litigation at one time. Perhaps what you're not aware of is that in virtually every provincial jurisdiction, if you start an action or if you're involved in a court action under a provincial statute such as the family law act or the child services act or whatever it happens to be, that can be joined, through court procedure, with the Divorce Act, or with the divorce action or the federal litigation. So it seems to me it's not that difficult to deal with it all at the same time.

I would respectfully suggest that the other thing you have to keep in mind is that once there's an order under the Divorce Act, an initial order of divorce setting out the corollary relief, that can always be varied.

So you're giving more rights than I think you intended to give, because you're allowing the grandparents back in all the way through. I would suggest to you there's nothing here to prevent grandparents from intervening in a divorce decree, once it's finalized, and six months to six years down the line saying, oops, I'm having trouble, and going back in and interfering with that divorce order. There's nothing in your bill to prevent that from happening.

Those are just two comments I had.

Mrs. Jennings: All we're talking about is that grandparents have standing to ask for visitation rights. I don't believe that would give them any rights to interfere with a decree down the road. They would have to go back to the judge -

Ms Cohen: I would respectfully disagree with you.

Mrs. Jennings: You still have the common sense of the judges to deal with, and I'm willing to give them the benefit of the doubt.

The Chairman: Ms Jennings, my list is exhausted. I simply have one comment. I'm wondering whether part of what you're trying to accomplish would be better accomplished in the provincial legislatures, as has been done with the one example you gave. But that's a matter that'll have to be looked at by staff and research.

Thank you very much for your comments this morning.

This meeting is adjourned.

;