[Recorded by Electronic Apparatus]
Tuesday, October 17, 1995
.1105 
[English]
The Chairman: We'll continue to deal with Bill C-232, An Act to amend the Divorce Act.
Today we have representatives from the National Association of Women and the Law, Lisa Addario and Michelle Smith. I've reviewed the procedure with you and I believe you have a presentation to make. After that we'll go to questions and answers. Please go ahead.
Ms Lisa Addario (Interim Director of Legislation, National Association of Women and the Law): Thank you, Mr. Chair. My name is Lisa Addario and I'm the interim director of legislation with the National Association of Women and the Law. With me is Michelle Smith, who is a family law practitioner in Ottawa and also a member of our association.
[Translation]
First of all, let me say that I am very sorry that our statement is not presently available in French.
[English]
I would request that our brief, which has been provided to this committee, be read into the record so that a French translation may be made available to you.
The Chairman: That's fine.
Ms Addario: The National Association of Women and the Law is a national, non-profit feminist organization active in legal research, education and law reform.
Our membership is comprised of lawyers, legal academics, students and other people from a variety of backgrounds and with a variety of perspectives, all of whom share a commitment to gender equality.
The association and its caucuses have lobbied on such matters as human rights, family law, tax law, the sexual assault provisions in the Criminal Code and the equality provisions in the Charter of Rights and Freedoms.
Given our interest and our expertise in matters affecting the legal rights of women, we are pleased to be appearing before this committee today.
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I would like to say by way of a preliminary comment that while we don't support Bill C-232, the message you should receive ought not to be that we discourage grandparents from maintaining close contact with their grandchildren, but rather that a legislative mechanism is already in place to provide access and custody entitlements to grandparents.
This is currently found in section 16 of the Divorce Act, which is a codification of the common law that held that the existence of an established close and meaningful relationship between a grandparent and a grandchild would entitle the grandparents to seek custody of or access to their grandchild. In our view, section 16 of the Divorce Act already accomplishes what Bill C-232 purports to do.
In procedural terms, the only difference is that under the existing provisions a grandparent must receive leave of the court before making an application. My review of the case law on this point indicates that where an application by a grandparent is obviously not frivolous or vexatious, leave to apply for custody will be granted.
We consider this, therefore, to be a fairly low threshold for a grandparent to meet and one that is not unduly restrictive. But we consider it to be an important test and one that the court ought to retain because it will give the court the opportunity to examine the motivation behind an application for custody or access by a grandparent. If the grandparent and grandchild have a close and established relationship, then the court will have no hesitation in granting the application. However, our concern is that in many cases the motivation behind a grandparent's application is not to take care of the child, but rather to permit the non-custodial parent greater access than he might receive through the court. I say ``he'' because the custodial parent is the woman in over 70% of all cases.
Grandparent access has proven to be, in many cases - and I say this based on the case histories of women coming from the battered women's shelter movement, not on the basis of empirical evidence - a strategy designed by fathers who have found it convenient to involve their parents or their ex-spouse's parents in the warfare they wage against the mothers. Bill C-232 therefore removes an important evaluative tool from the purview of the court.
Our second concern is that the bill places grandparents on an equal footing with parents who are seeking custody of their children. To be sure, grandparents are important and valuable members of a child's family life. But the presumption in favour of the primary caregiver as custodial parent ought not to be discarded. This is a presumption that is within the courts' consideration under the current legislation, and we submit it is in the best interests of the child.
In our view, in many instances, although certainly not in all instances, the best interests of children are intimately connected with their primary caregivers, usually mothers, and ways must be found to ensure that this is recognized. I refer the members of this committee to the comments of Madam Justice L'Heureux-Dubé in the Supreme Court of Canada decision of Young v. Young on page 4 of our brief. She comments on the reasons for supporting the primary caregiver presumption when determining what's in the best interests of the child.
- ...one of the principal rationales for endorsing this presumption is not to supplant the best
interests of the child as the ultimate objective but to ensure that those interests are protected. The
presumption explicitly restores the values of commitment and demonstrated ability to nurture
as well as continued psychological parenting to the child, factors which may be overshadowed
by other considerations in custody disputes.
I think the witness before us referred to the issue of religion in determining what's in the best interests of the child. I would also add to that factors such as who is making more money, whether the custodial parent has a disability, and whether the parent seeking custody is a lesbian. These are some of the factors the court might be open to considering if it isn't considering the presumption in favour of the primary caregiver.
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We submit that these factors, which otherwise would not influence the court's decision where the presumption is given to the primary caregiver, will have the potential to influence the decision to an inappropriate degree. The point is that such factors are irrelevant.
Whether we approve of a parent's lifestyle or not ought not to form part of a court's deliberations on ultimately what is in the best interests of the child.
In making this claim we are mindful of the words of former Justice of the Supreme Court Bertha Wilson, who said in 1990:
- I think that a distinctly male perspective is clearly discernible and has resulted in legal
principles that are not fundamentally sound....
The Chairman: Thank you very much.
[Translation]
You have ten minutes, Mrs. Venne.
Mrs. Venne (Saint-Hubert): I would like to begin by referring to clause 1(2) of the bill which would amend subsection 16(5) and give grandparents
- (5)... the right to make inquiries, and to be given information, as to the health, education
and welfare of the child.
[English]
Ms Addario: Yes, I do.
[Translation]
Mrs. Venne: So you can see that the Bill would give grandparents the right to
- (5)... make inquiries, and to be given information, as to the health, education and welfare
of the child.
Moreover, this provision is a direct infringement on Quebec's jurisdiction regarding the protection of medical and school information. Quebec already has an Act respecting Access to Documents Held by Public Bodies and the Protection of Personal Information. So I would like to hear what you think about subclause 1(2).
[English]
Ms Addario: The Divorce Act is limited to proceedings between two people who are married. The question of custody and access can arise in one of three situations: as a corollary issue to a divorce proceeding between parents, as an issue when parents are married but no divorce petition has been filed, and as an issue between parties who were never married.
Since divorce is between two married people, the divorce proceeding is not the most appropriate forum for a grandparent seeking enhanced access to a grandchild, but, rather, the provincial legislation, which legislates the issue where the parties are not married; for example, in a dispute between a parent and a grandchild.
That having been said, you're quite right: the Divorce Act is limited to the issue of divorce, which is federal legislation. Provincial legislation provides for custody and access and would enable a grandparent to seek enhanced custody and access.
[Translation]
Mrs. Venne: The purpose of the Bill is clearly to make it easier for grandparents to intervene in a divorce proceeding by removing the need to request the leave of the court to make application to obtain the custody of their grandchildren.
If this bill were passed, do you think we would have to define the various types of grandparents? Should we include biological grandparents and de jure grandparents? What do you think?
Ms Michelle Smith (National Association of Women and the Law): They are not defined.
Mrs. Venne: Not at the moment, no, but do you think they should be defined? There could be a number of grandparents.
Ms Smith: Are you referring to maternal and paternal grandparents? I don't understand your point.
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Mrs. Venne: No. There are de jure grandparents who are grandparents because of marriage, and in some cases, they are also biological grandparents. So that's what I mean when I say that on the maternal side, there may be both de jure grandparents and biological grandparents.
Ms Smith: As a result of adoption or...?
Mrs. Venne: No. Let's take the example of a couple that gets a divorce. The parents of this couple the grandparents, exist de jure.
Ms Smith: Yes.
Mrs. Venne: But then there may be other grandparents added.
Ms Smith: As a result of other marriages.
Mrs. Venne: Yes. And if the children are adopted, there may be biological grandparents as well.
Ms Smith: That would complicate things.
Mrs. Venne: Don't you think rather, that it would clarify things to know who the grandparent is? You have no problem with the fact that there would be a number of grandparents?
[English]
Ms Smith: I do see a problem with it. I guess my answer to you would be that you're raising the issue of how complicated it becomes to define grandparents, which in my opinion reinforces why it's problematic to bring other parties into a divorce proceeding. It is for that reason: it would make it even more complicated...recalling that this is a proceeding to determine what's in the best interests of the child. It can't possibly be in the best interests of the child to prolong litigation almost indefinitely while you determine who's the rightful grandparent, who's not a rightful grandparent, and who might be an additional grandparent who might need to be brought into this proceeding.
[Translation]
Mrs. Venne: I thank you very much. That's all I had, Mr. Chairman.
[English]
The Chairman: Mrs. Jennings.
Mrs. Jennings (Mission - Coquitlam): Good morning, Ms Addario and Ms Smith.
I am concerned about a couple of things. Ms Addario, are you a lawyer?
Ms Addario: Yes, I am.
Mrs. Jennings: Have you been practising, representing grandparents in the courts?
Ms Addario: No, I haven't.
Mrs. Jennings: You have never had any experience representing grandparents?
Ms Addario: I have never been approached and asked to represent a grandparent in court.
Mrs. Jennings: Have you travelled across the country and spoken with grandparents, or have you had some personal experiences in this matter?
Ms Addario: I have grandparents. My husband has grandparents. I know other grandparents, and they live around the country, yes.
Mrs. Jennings: But you haven't travelled around the country and spoken to anyone or got a cross-section to see if this is a problem in our country or if it is not?
Ms Addario: To me the issue is not whether this is a problem in our country or not. The issue is whether or not the Divorce Act is the proper legislative forum for seeking this kind of amendment.
Mrs. Jennings: Your point is taken.
Well, Ms Addario, I'm not a lawyer. As a legislator elected by the people of this country, it's important to me that I deal with problems in the country, because there has to be a problem for me to try to put something right. In travelling across the country...this is a subject of great controversy. I've talked with grandparents coast to coast, and there have been thousands of petitions in the last two parliaments, not just this parliament. Apart from pensions, when speaking with grandparents...the number one issue - I've spoken to great crowds of them on this issue - is that they can't see their grandchildren.
They're on limited funds - many of them are on pensions - so they cannot initiate new court actions. They have guilt in initiating a court action, and that's a natural feeling in families. You don't want to take your family to court. So they feel guilt. If they're not aware at the time of the divorce that there's going to be a problem, then they would see no reason to going at that time. So if at a later time the daughter-in-law or son-in-law remarries, that's when the problem might occur.
Why do you think it is, then...? You are coming here and saying, first, there's no problem, and secondly, if there is a problem, it can reasonably be settled with the present legislation. I have just pointed out it can't be, for them. Are all these grandparents wrong?
Ms Addario: I always try to respect my elders, Mrs. Jennings. I wouldn't say grandparents are all wrong. What I would say is that you yourself have identified that it's later when the problem occurs. That is what provincial legislation is for. The Divorce Act governs the legislation only at the time of divorce. You yourself have identified that it becomes a problem after the divorce is granted. That's not within the jurisdiction of the Divorce Act; that's within the jurisdiction of the province. So the remedy lies with the province.
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I don't think I said there is no problem. I think I said if there is a problem, grandparents already have legal recourse to resolving that problem through the court.
Ms Smith: I'd like to add something. I am a family law practitioner and I have spoken with grandparents. In the one case where I helped a grandmother, the parties were still married. So it's not just grandparents in situations where there is a divorce where there is a problem.
You spoke about grandparents not having enough income to start court actions. There is no cost to start an application for custody in provincial court in Ontario. In fact, in the case of this grandmother that I helped, I was duty counsel at legal aid and I helped her draft her materials, which she filed for free, and it was an application for access.
In the case of a divorce that happens in the Ontario Court, General Division, there is a cost. So even if grandparents want to make an application within the divorce proceeding, it will cost money.
Mrs. Jennings: Thank you.
My next question involves the two issues that seem to keep coming up: one is complexity and the other is cost.
I've addressed the issue of cost in the fact that grandparents do not have that extra money in their resources to initiate action. I have spoken to grandparents around this country whose costs have ranged, on separate actions, from $22,000 to $38,000 to $40,000 - to initiate a new action, to get lawyers involved. The stories are horrendous. I can, if this committee needs it, provide the costs to them, with proof. Cost is a definite factor. If it's done at the time of divorce, the cost of serving the grandparent is perhaps the cost that the parent might undergo. There is that to think about.
Another thing is that a lot of grandparents can't get legal aid because they own their own homes. Although they're not wealthy, they do have sustenance, and so don't qualify for legal aid.
Regarding complexity, I think that's realistic - extending the time of the court case. It can go on for days and days if the grandparents are allowed to speak for 15 minutes. Many of these actions happen in provincial family courts, so they don't have to have lawyers there. The grandparent can get up and speak if that's been granted.
Again regarding complexity, right now in the courtroom we have social workers, psychologists, child care workers - all sorts of people who work for the government - and yet we have nobody representing the family's role, or, as we fought so hard at the United Nations, for access of the child to their family. So it seems odd that we would have all these people in the courtroom and yet take such great exception to having the grandparents there, who care about the child and will care for the rest of their lives. Perhaps you could explain that?
Ms Addario: The first point I would make is that a custody application that costs $22,000 is not going to be significantly diminished by the fact that you don't have to seek leave of the court before you apply for custody of that child. The bulk of that cost is not going to come in fighting an application for leave to apply to the courts.
Mrs. Jennings: For clarity here, the cost is of course in the initial action being completed. It's not for applying for the leave....
Ms Addario: My first point would be that that cost isn't going to be significantly diminished by this bill.
Secondly, I'm not sure why you say nobody is representing the interests of the family. There are presumably two parents, or a primary caregiver and another parent, who are going to be representing the interests of the family.
The court has it within its purview to consider what's in the best interest of the child. I consider that to be sufficiently expansive to take into account what the interests of the grandparents might be. So I don't agree with you that nobody is taking into consideration what's in the interests of the family.
Michelle, if you'd like to add something to this, that would be quite useful.
Ms Smith: With regard to the issue of cost, the grandparent will still have to pay a lawyer. How will the grandparent not pay a lawyer?
Mrs. Jennings: First of all, the grandparent does not have to have a lawyer in court. I've represented myself in court many times without a lawyer. So a grandparent in a family court certainly doesn't have to have a lawyer there. Right now in British Columbia they are often there without a lawyer.
Ms Addario: Is your suggestion that under this bill grandparents won't need a lawyer to appear and apply for enhanced custody or access?
Mrs. Jennings: I'm suggesting that it doesn't necessarily have to be the case that they need a lawyer there. If they have standing in the court and have access to be there, they can just argue their case in front of the judge, and the judge will make his decision in the best interests of the child.
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You're saying that if the grandparents are not there the judge should take the grandparents into account. I suggest to you that the judge doesn't take the grandparents into account if they're not there to state their case.
Ms Addario: Ms Jennings, the grandparents can state their case under the current Divorce Act.
Mrs. Jennings: Only if they know about it.
Ms Addario: Are you suggesting that parents are going to be required under this legislation to absorb the costs of notifying grandparents of a pending divorce action?
Mrs. Jennings: I'm suggesting to you that in serving a grandparent, which might be at the most $50, if it's that much, it's far less than if they have to absorb the costs. It's only service. I was in the serving business for a few years, so I know a little bit about it. If they're serving, it's not the same as a whole new court action that the grandparents have to initiate because you say they have the right in legislation and can do this.
So they initiate a whole new court action and a new court date, with probably a new judge, with lawyers involved because there's a whole big action in getting back to the court. It inconveniences them. It could all be done quietly at the time the divorce proceedings are taking place. It's not the wish of every grandparent to go to court.
Ms Addario: Whose legal onus is it to serve the grandparents or to pay this fee?
Mrs. Jennings: Oh, I'm not arguing legalities with you. I'm not a lawyer and I'm not going to get into that hassle.
Ms Addario: But you seem to be making a presumption that's not clear to me. You're suggesting that somebody has an onus for serving a grandparent.
Mrs. Jennings: I was told yesterday by our legislative counsel of the House of Commons that it would be required that the grandparents be served. If that were the case, it might fall on the parents. I'm saying to you that if that scenario were to happen, it would be far less costly to the parents in terms of inconvenience and everything else, because down the road they could be taken back into court and all this initiation would take place.
Ms Addario: I have some difficulty with the proposition that parents would have to bear the cost of serving notice on their grandparents merely because grandparents have an entitlement under a piece of legislation. It's not clear to me at all.
Mrs. Jennings: I think you misunderstood me. I didn't say they would have to bear the cost. I said the scenario was presented that they might have to. If that were the case, it would be far less costly to them in time, money and everything else than it would be further down the road. We have to deal with the real facts down the road of a whole new case coming into the system again. That is extremely costly to taxpayers and everybody else.
Ms Smith: But under the current legislation they can still be part of the action. They have only to ask.
Mrs. Jennings: That's only if they know about it. That's the problem.
Ms Smith: But the same problem would still be there.
Mrs. Jennings: Only if they know about it.
The Chairman: Mrs. Jennings, maybe you could help us and tell us who the legislative counsel is on this.
Mrs. Jennings: It's Mr. Côté.
The Chairman: Your 10 minutes are up.
Mrs. Jennings: Thank you.
The Chairman: Mr. Regan.
Mr. Regan (Halifax West): Thank you, Mr. Chairman.
Ms Addario, thank you for coming today. I appreciate your presentation. Can you give us a little more information on how the National Association of Women and the Law came to this position? How was it developed? What involvement did you have from the groups you have across the country?
Ms Addario: We have a working group of family law practitioners. In arriving at this position, I consulted with three family law practitioners, one non-practising lawyer and one law professor at the University of Victoria.
Mr. Regan: I had the impression that it perhaps had come from a whole bunch of different groups who have selected people who represent each of these groups. Is that how it works? How do you generally deal with that?
Ms Addario: We are an association of individuals. We're not an association of groups.
When people become members of the National Association of Women and the Law, they identify their particular interest in gender equality. It can range from Criminal Code interests to interests under family law to interests in children to interests in human rights.
Those people who identified themselves as interested in family law were contacted and I spoke with them about these provisions. That was how we arrived at the position we've taken in this brief.
Mr. Regan: I'm sorry. I had the impression that it was a body of subsections, because I'm aware of meetings of Women and the Law at Dalhousie Law School.
Ms Addario: Yes, we have regional caucuses. That's correct.
Mr. Regan: You have regional caucuses. Okay. I wondered if this came from a process of that sort. That isn't quite how it worked.
Have you considered the constitutional side of this? Today we've heard some questions about the Civil Code of Quebec and whether this should be done by a provincial statute in a way different from the Divorce Act. You've indicated it shouldn't be in the Divorce Act.
It strikes me that if you're doing it through the Divorce Act, you are no longer simply dealing with the rights of two parties to a divorce. It becomes a much broader thing, and you are creating rights for grandparents under a divorce situation that grandparents of an intact family don't have.
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Have you considered whether there would be a constitutional problem there in relation to...? Would it be ultra vires the federal government?
Ms Addario: Insofar as the court might be taking positions on issues of access, and the access parent has the right to make inquiries with respect to education and the welfare of the child, that may very well be an encroachment on provincial legislation.
Mr. Regan: I think my colleague here has some questions for you.
Mr. Knutson (Elgin - Norfolk): Maybe I can make a point. We're going to sort out this issue of the legislative counsel giving us one opinion and another body of other lawyers giving us another opinion on the right to notice.
The Chairman: I think the witness this afternoon is a professor of law, so maybe we'll get it sorted out this afternoon.
Mr. Knutson: Maybe we can have the legislative counsel send us his reasons.
The Chairman: We'll discuss it with legislative counsel and find out.
Mr. Knutson: Can you take me through an example under Ontario law, if you would, as to what happens now, typically? I'm not a family lawyer.
My understanding is that normally a marriage develops problems, people separate, provincial law comes into play, determines access, custody and so on. There might be some separation agreement and then down the road they apply for divorce at a suitable time. Then the Divorce Act kicks in.
How do the rights of the grandparents arise? What should they do if they have a problem?
Ms Smith: First of all, that is a common scenario but it's not the only common scenario.
Mr. Knutson: Right.
Ms Smith: Once the marriage develops problems, right away a spouse can file a petition for divorce. If the grandparents have been taking care of the child, then at that point they can become involved either by asking for leave or, if it's done under provincial jurisdiction and they're not married or they're married but they're not seeking a divorce, they can be added as a party.
If the child is with the grandparents, then they will be made a party if someone else is asking for custody. But if they simply want to get involved, they can ask to be added as a party.
Ms Addario: In terms of how it plays out between federal legislation and provincial legislation if custody is being sought at the time of divorce -
Mr. Knutson: Let's just say it's access on the part of grandparents.
Ms Addario: The issues of access can be determined either at the time the parties are divorcing, in which case under section 16 of the Divorce Act a grandparent can seek leave of the court to seek application for access or custody, or after the marriage, the provincial legislation enables a grandparent to seek access or custody.
Mr. Knutson: Your point was that the law that is written now under the Divorce Act provides a threshold that the grandparent has to satisfy that helps sort out improperly motivated cases. Does that threshold exist under provincial law as well?
Ms Smith: No.
Mr. Knutson: So they just go and apply?
Ms Smith: Anyone can make an application for custody or access under provincial law in Ontario.
Mr. Knutson: Okay. It's been suggested by a previous witness that the actual time of the divorce is probably the worst time to sort this out because the relationship has been so injured and you don't want more parties than are absolutely necessary to try to sort out the details of the divorce. You want to give the relationship time to heal or whatever, reach some level of equilibrium. Would you agree with that?
Ms Smith: Most definitely. As a practitioner, it's already difficult enough with two parties involved, but with having potentially four parties - because there could be the maternal grandparents and the paternal grandparents - it would just make things even more difficult for the child, and this is all about the children.
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Mr. Knutson: Would your guess be that this body of grandparents around the country who aren't satisfied with the current circumstances are not properly educated or advised as to what their rights are under provincial law? Do you have any sense of why Parliament is getting all of these petitions if there is a remedy there?
Ms Addario: My guess is that they're not satisfied with the remedy. I would say that their recourse then is to seek amendments to the provincial legislation, not to the Divorce Act. But I can only presume that this is what their grievance is.
Mr. Knutson: You're an Ontario lawyer, correct?
Ms Addario: Yes.
Mr. Knutson: In Ontario, anyway, do you think the provincial law needs to be changed?
Ms Smith: Everyone has equal standing. Under provincial law, anyone can make an application. Although I don't know, it's possible that these grandparents are not satisfied with the result after a court has already made an order.
I might add that grandparents, through their child, the parent, can provide affidavits that support either party. So they can have a certain voice in the proceedings, such as saying that the mother or father or one of the spouses is denying access to the grandparent. The court can give weight to that.
Mr. Ramsay (Crowfoot): Thank you for appearing this morning.
From the witnesses we've heard so far, we've heard lawyers and legal opinions saying that the grandparents really don't know what they're asking for, that they have no problem. Again, we hear through your presentation that it's just going to involve more people in the process. It is as if it's an inconvenience to the lawyers who are dealing in family law.
We have hundreds and thousands of names on petitions expressing concern about the inadequacies of the law, yet we're hearing again and again that they seemingly don't know what they're talking about and the law is adequate.
In your presentation this morning and in the brief you've left with us, for which I thank you, you're saying the same thing.
Ms Addario: But to be clear, Mr. Ramsay -
Mr. Ramsay: Just a minute.
Ms Addario: - I'm not saying that they don't know what they're asking for.
Mr. Ramsay: Just let me finish. You say here that a grandparent may be manipulated or influenced by the non-custodial parent to seek greater contact with the grandchild so that the non-custodial parent will be able to accomplish what will otherwise not occur when his application for custody or access is considered by the court. Do you have any statistics to support the number of instances in which this type of situation arises?
Ms Addario: No. I think I made it clear when I made that statement that it wasn't based on empirical evidence and I don't hold it out as a statistical fact. It's based on the case histories of abused women coming from the battered women's shelter movement. One of the strategies that has been designed by parents who've found it convenient to wage war against the mother is to enlist their parents to seek access or custody of a grandchild.
Mr. Ramsay: Can you tell the committee how often you've run into this?
Ms Addario: I've heard of occasions of it occurring about fourteen times within a two-year period within one province.
Mr. Ramsay: What province was that?
Ms Addario: The province of Quebec.
Mr. Ramsay: What about the province of Ontario or any of the other provinces?
Ms Addario: I don't have information on whether it has occurred in the province of Ontario, but I suggest that Quebec wouldn't be unusual or unique insofar as hostilities between parents spilling over in a custody application and other parties being enlisted to come to the aid of one of the parents seeking custody is concerned.
Mr. Ramsay: So that's happening under the current Divorce Act.
Ms Addario: That's correct.
Mr. Ramsay: And you feel that it would be magnified if this amendment went through, granting grandparents standing in court?
Ms Addario: I feel that the court currently has a tool available to it to scrutinize the motivations of a grandparent seeking access or custody, and I wouldn't want to see that tool removed from the purview of the court.
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Mr. Ramsay: Even though the tool doesn't seem to be working in at least fourteen of the cases you've mentioned?
Ms Addario: It's not perfect. I quite agree with you.
Mr. Ramsay: Do you therefore feel, in view of this, that there should be greater restrictions placed upon the access period?
Ms Addario: No, I'm not going to speak to that, Mr. Ramsay. I will say, though, that one of the reasons why we know about it is that it has come before the court and the court has scrutinized the motivations of grandparents. This has been revealed through that scrutiny.
Mr. Ramsay: But don't you think the courts would have the same ability to provide the same scrutiny if they were allowed standing through the amendment that is presented?
Ms Addario: My position is that this ought to be a threshold test. This ought to root out the grandparents whose motivations are not to take care of the child but to assist their offspring, their child, who is seeking greater access or custody.
Madam Justice L'Heureux-Dubé has referred to the fact that there are often factors overshadowed by other considerations in custody disputes. I would want to see those cases weeded out at the outset before the waters get further muddied by additional factors such as questions about who is in a better financial position to take care of the child; whether two grandparents are better than a single mother; whether a grandparent who is able-bodied is better than a parent with a disability; whether a grandparent who is heterosexual is better than a mother who is a lesbian. I would want to see this issue decided before the court has to start looking at it, or the court leaves itself open to those kinds of considerations.
Mr. Ramsay: So your message to all these grandparents who are contacting their members of Parliament is that all is well?
Ms Addario: That is not my message.
Mr. Ramsay: What is your message?
Mr. Addario: My message is that there is currently legislation, provincially, that will grant them the opportunity to seek enhanced access or custody; that divorce is between two married people and that the Divorce Act is not the legislation and does not have the jurisdiction to raise additional issues with respect to grandparents.
Mr. Ramsay: So the needs of the grandparents, as surface to all of these contacts, are being provided for adequately by existing legislation.
Ms Addario: If the provincial legislation is not adequate - I refer to Mrs. Jennings, who identified the problem coming later in time, when a problem may occur after a divorce. If that's the case and they have a grievance with the way the procedure currently works, their remedy is with the province and through an amendment to the provincial legislation, not the Divorce Act. I'm not saying there's not a problem. I'm saying the Divorce Act is not the place to remedy it.
Mr. Ramsay: So you feel that dealing with it would fall into the realm of the provincial jurisdiction?
Ms Addario: Yes.
Mr. Ramsay: Thank you, Mr. Chairman.
The Chairman: Thank you, Mr. Ramsay.
Ms Torsney.
Ms Torsney (Burlington): Can we start at the beginning for a second?
There's a federal Divorce Act, which kicks in when I want to get divorced from the person I'm married to. The access to and custody of the children we have is decided by provincial guidelines.
Ms Addario: It can be decided by the Divorce Act if you're seeking an order for custody or access at the time of divorce. But the question of custody and access also arises when the parties are still married but neither party has filed a petition for a divorce, or when the parties are not married. In the last two situations, the provincial legislation is what governs.
Ms Torsney: In your experiences with cases before the courts - both of you - there frequently is an agreement made, but then there is a problem with that agreement or it's not being exercised appropriately, so there is a mechanism that allows people to go forward. Can I, as an aunt, make an application to have access to my nieces and nephews?
Ms Smith: Under provincial legislation.
Ms Torsney: Under provincial legislation. Can I get access to people to whom I'm not even related?
Ms Smith: Actually, with custody, you could do it under the Divorce Act.
Ms Torsney: People I don't even know? I could currently write up an application and ask to see my nieces or nephews who are currently with married parents or who are currently with divorced parents?
Ms Smith: Yes.
Ms Torsney: Does that cost me money?
Ms Smith: It doesn't in provincial court.
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Ms Torsney: Perhaps there is some level of misinformation or a lack of information out there in the country. People aren't accessing the current system and the rights they currently have today. If grandparents have a problem with access -
Ms Smith: Perhaps. I don't know about other provinces, but in Ontario it doesn't cost anything in provincial court.
Ms Torsney: I guess I can envision a situation that might take place: I'm divorced and have a child, but I think my mother or father is the most evil person in the world and have completely screwed up my life. In what I think are the best interests of my child, I don't want my mother or father to have access to screwing up my child's life. With this proposed legislation, could I not be in a situation where I could be continually faced with applications that I would have to fend off from this person whom I think is crazy and could be harmful to my child? Would I have to continually incur legal costs to fend this person, this grandparent, off?
Ms Smith: Potentially, yes.
Ms Torsney: Isn't it true that a far too large number of women who have custody of their children are living in a poverty situation or in a diminished economic situation?
Ms Addario: Yes, that's correct. It's over 50%.
Ms Torsney: So if I'm in the family home that we had and I'm just barely making those mortgage payments, am I entitled to legal aid in Ontario, for instance?
Ms Addario: They'd put a lien on your home.
Ms Torsney: So grandma or grandpa can continue to, in my view, attack me because I really think they're nuts. We could debate that it might, in fact, repair this relationship by having a healthy relationship between the grandparent and the grandchild, but suppose that's not what could take place here. I could spend all of my time and money not making my mortgage payments - or end up having additional mortgage payments - and not putting food on the table for my child because I'm trying to protect my child from this grandparent. Is that not true? I'd have to keep fending him or her off - or potentially my ex-husband's parents, who I really thought did a bad job with him and could potentially do a bad job with my children.
Ms Addario: I think your point that this could lead to undue expense on the part of the parent who has custody is correct.
Ms Torsney: I guess the whole thing is that the Divorce Act is governing at the initial time of the split, and the standing that everybody has relates to the first agreement if the problems arise when my parents, later on down the road, can't get access to the children. Hopefully, they think at the time that there is going to be no problem.
Frequently, aren't most grandparents getting access when you have a joint custody or your children are visiting? Would they not have access at the time of those visits?
Ms Smith: That's right, they would.
Ms Torsney: Can I just ask one last, quick question?
The Chairman: Sure.
Ms Torsney: Let's say the grandparent got access. If this was enacted the way it is written - and we'll get debate about that notification - would it be possible that this child could potentially be with grandma A on Monday, grandpa B on Tuesday, mom on Wednesday, and dad on Thursday, with the whole week slotted because they've got all of these access provisions to get organized?
Ms Addario: Access is the right to make enquiries and seek information about the child. Custody is the right to make decisions and have actual physical control over the child. That's my understanding.
Ms Smith: Yes, that's right.
Ms Torsney: But if mom wasn't carting the kid to see grandma and grandpa, they could get a little bit stricter about days of enforcement?
Ms Smith: Potentially, if all four parties - mother, father, and maternal and paternal grandparents - make an application for custody, it's possible the child could be separated in four while we wait for the trial in order that no one's rights are hurt.
Ms Torsney: Okay.
The Chairman: Mrs. Jennings.
Mrs. Jennings: Regarding the scenario that Ms Torsney has put forward, I would suggest that it can happen right now. Grandma or grandpa A, B, C, or D, at this point in time, can do exactly what you're suggesting. At the time of the divorce it would be once only, when it's heard. That's all this bill is dealing with, not these other scenarios. The same thing goes with the father.
I did have a father phone me the other day with the exact problem you mentioned, Ms Torsney. Actually, he's fed up. His wife is dead. The grandparents, with legal aid, keep coming back to him month after month with new charges laid against him. He's very frustrated.
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So all this is talking about is one time, at the divorce; one time only. This is all we're dealing with. We're not talking about down the road repeatedly; we're talking only about access at the time of the divorce.
The one thing I wanted to say to you.... Ms Smith, you suggested that in fact grandparents can make application through the parent and maybe support one or the other. You said they could write a little note, or however you presented it. I wanted to point something out to both you and Ms Addario. In all my travels across the country, I haven't met the kind of people you're portraying are out there. Maybe I'm ignorant and naïve or whatever, but I've been trying as a grandparent, a grandmother of seven children, to find out the truth about what's happening, and I haven't seen that.
Do you know what grandparents are telling me? They're saying, we don't want to parent; we don't divorce our grandchildren when a divorce comes; what we like to have is access; we'd like to see them. So they're not interested in going to court to fight for the son or the daughter-in-law, or the daughter and son-in-law. They're only interested in seeing their grandchildren.
Is that totally naïve? Are you two presenting to me that those people are way off base and so few that the scenarios you're presenting, with all these other possibilities, are the true facts; that I've been misled as a member of Parliament out there amongst the people when I keep hearing this? Am I in the wrong and you have all the answers and you know these other scenarios are right? I'm very confused, because I thought I was hearing from the true people of Canada.
Ms Addario: I'm pretty confused too, Ms Jennings, because I see this bill as seeking application to be granted access or custody, and now you're saying they don't want to parent. Well, that's what custody is. So it's not clear to me why this bill would include custody if the grandparents don't want to parent their grandchildren.
Secondly, it's quite possible you and I are speaking to different people. I'm telling you some of my information, which has come from the battered women's shelter movement...and I don't know if you've spoken with women who come out of battered women's shelters -
Mrs. Jennings: Yes, I have.
Ms Addario: - on the issue of grandparents and what are the motivations of grandparents who are seeking enhanced access or custody, but my information has been that in some of those cases - and I haven't presented it as all of those cases - their motivation is to assist their children, rather than to take care of the grandchild.
I have not said grandparents are wrong and we have all the answers. I have a few answers. I'm just offering a few comments for this committee's consideration.
Mrs. Jennings: Unfortunately the bill does speak of visitation, access, and custody. In most cases it's visitation, which is access, and custody only in extreme cases, and that's what's been happening.
And this bill is not mine. This bill was put through two or three years ago. So it's nothing new. As I understand it, it's adequate and correct in its application.
I would like to thank you both for coming today. We'll have to agree to disagree.
The Chairman: Mr. Gallaway.
Mr. Gallaway (Sarnia - Lambton): We seem to be living in an anecdotal world here, simply because we're hearing all sorts of evidence about grandparents' groups approaching various members. I'm not saying there isn't a problem. It's a question of quantifying the size or the dimension of this problem.
And certainly courts have made decisions that are wrong. On occasion they do that; there's no question about it. But can a law rectify poor judgment on the part of the judiciary from time to time?
I want to see if you can indicate to us what you view as the size of this problem of grandparents' rights. We hear about hundreds, thousands. But I think one of you indicated you have been approached by a grandparent. Are you somehow removed from the mainstream?
Ms Smith: I hope not.
Mr. Gallaway: Do you see this as a large problem in society, or is it a case of grandparents disliking the fact that perhaps their child had divorced a spouse?
Ms Addario: I haven't been made aware of the magnitude of the problem with grandparents who aren't receiving the access or custody they would like to have. I practised law. It didn't come to my attention as a practising lawyer, and I practised law for five years before I stopped practising. Michelle is currently practising and I think she's identified one case where this has come to her attention. This would seem to suggest that it's not the norm, but that's not to say that the people who have raised issues with Ms Jennings ought not to have their concerns listened to or respected.
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Mr. Gallaway: If this bill were to be amended to remove the word ``custody'' and talk about only access, would this change the way you feel about it?
Ms Addario: The issue of access is problematic in the manner that Ms Torsney identified, insofar as access could be splintered among four people as of right, instead of the court considering what is the motivation behind an application for access. As I've indicated, I think that's an important factor for the court to consider.
Mr. Gallaway: My final question is with respect to the volume of litigation that potentially could be generated by such a law. We've also heard, somewhat anecdotally, that in other jurisdictions laws similar or parallel to Bill C-232 exist and that in fact this in no way significantly changes the volume of litigation. Are you aware of these other jurisdictions that have similar or parallel laws?
Ms Addario: Are you referring to other federal jurisdictions?
Mr. Gallaway: No, I'm referring to American jurisdictions, certain states, and, I believe, Great Britain.
Ms Addario: Their legal system and the system of the division of powers is so significantly different from what we have in Canada - anyway, it is in the States - that I'm not qualified to opine on how that compares with our Canadian system.
Mr. Gallaway: If this bill were to be passed, what would your guess be of the volume of litigation? How will it affect the nature and extent of applications before divorce courts?
Ms Addario: I think it could make litigation more protracted and more chaotic and more constitutionally confused.
The Chairman: This legislation has been proposed and everyone has the interest of, I think, grandparents in mind and wants at least the children to have access to their grandparents. I'm not sure that the reverse is necessarily in the best interest of a child at times. However, many children are born from parents living in common-law relationships in Canada. I take it that this legislation would have no effect on those particular relationships when they break up.
Ms Addario: That's correct.
The Chairman: Regarding the cost of service of documents, if we assume that Ms Jennings is correct that documents must be served on the grandparents at time of divorce - let's just assume that for now - then the cost, especially in Canada, where we have a very high immigrant population, could be very substantial if grandparents have to be served in different parts of the world: China, India, eastern Europe, etc.
Mr. Knutson: Saskatchewan.
The Chairman: Mr. Knutson's out of order.
The cost could be substantial, running into thousands of dollars. Correct?
Ms Addario: As I said before, the legislation doesn't require the parents to bear the cost of serving their parents with notice of a pending divorce. But if the relationship between the grandparent and the grandchild is as close as it needs to be in order for this grandparent to be making this application, then I presume that the grandparent would already know.
The Chairman: Thank you very much.
Ms Addario: You're welcome.
The Chairman: We stand adjourned until 3:30 p.m. in room 308.