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EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, October 17, 1995

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[English]

The Chairman: Good morning. Today we are again dealing with Bill C-232, an Act to amend the Divorce Act (granting access to, or custody of, a child to a grandparent). We have as witnesses today Mr. Glen How, Q.C., Barrister and Solicitor. We also have André Charbonneau, avocat.

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Mrs. Jennings (Mission - Coquitlam): A point of order, Mr. Chairman.

The Chairman: Yes, Mrs. Jennings.

Mrs. Jennings: Mr. Chairman, I have two points of order I want to raise. The first deals with future witnesses on Bill C-232. The second deals with the presence of legislative counsel at these meetings

First, in my opinion this committee needs more information on Bill C-232. This study is far from over. So far the process has been unfair. The committee needs to hear from professionals in their field who can present a legal point of view not yet heard. Up until now, apart from myself and Nancy Wooldridge, all witnesses have been legal counsel opposed to the bill and some with no working experience with it. Surely, equity demands that the other side be heard.

Mr. Chairman, I gave you names that were on letters already given to committee members before I left on October 3. I hoped they would be called as witnesses.

Barbara Baird of Fredericton is highly qualified in family law and deals with grandparent issues on a continual basis. Gerald Culhane of Vancouver is experienced in grandparents' issues, is a grandparent himself, and has worked daily on grandparent issues for many years. There's also Sheila Keat, who is very upset over Steven Andrew's suggestion that he speaks for all. It hasn't been discussed as a family law, according to her, and he speaks for ten members of the committee. She hears approximately two people a day, new cases. Chuck Merovitz, right here in Ottawa, speaks in favour of Bill C-232.

I feel it's just not good enough. In fairness to the committee, we have to hear both sides.

The Chairman: If I can ask for some clarification, you've indicated that the process is unfair. What is unfair about the process thus far?

Mrs. Jennings: I feel that if I put in suggested names, those people should be considered. I am sponsoring the bill and obviously I want to make sure it gets a fair hearing. Those names as yet have not been put forward to my knowledge or been asked to be present here.

The Chairman: Are you suggesting that because names you've put forward are not called as witnesses the process becomes unfair?

Mrs. Jennings: No. I am suggesting that if I do not hear and I have not yet heard from legal counsel who are in favour of this bill, when I know, having travelled across Canada for the last year, that there are many, many counsellors across this country who are in favour, it is very odd that the justice committee cannot find any or has not yet made an attempt to make sure they're present in this -

The Chairman: Do you realize that decisions on witnesses are made by the steering committee and that your party has a representative on the steering committee?

Mrs. Jennings: Yes, I do, but unfortunately -

The Chairman: Have you discussed this with your representative?

Mrs. Jennings: Yes, I have, and I know Mr. Ramsay has put forward names and suggested that this is the case. It is unfortunate that Reform only has one member on the committee, and we can't do anything about that.

So I must insist, as sponsor of this bill, that we do hear from legal counsel on the other side of the issue.

The Chairman: One point of order deals with the witnesses that you wish called. The second point of order is...?

Mrs. Jennings: My second point of order deals with the presence of legislative counsel at these meetings. It is important that members who sponsor private members' bills before the justice committee have independent legal advice available to clear up legal questions about the bill in question. You'll remember that when I was hear speaking, there was a member here who spoke -

A voice: [Inaudible - Editor]

Mrs. Jennings: Yes, and I wasn't able to clear it up. I said unfortunately, the person who drafted my bill wasn't here. It put me at a real disadvantage, and that was unfortunate and should not have happened.

In my case, it would make sense to have the lawyer present from the legislative office who drafted the bill.

The Chairman: When do you want such counsel present? As you realize, when we deal with legislation it is impossible for us, with every piece of legislation, to have legislative counsel present. Generally, all we deal with is new legislation.

Mrs. Jennings: I think there are two points here. As I understand it, we only have 3.5 legal counsel available for this. Maybe we need more. The other thing is that perhaps at the time the member who sponsored the bill is actually appearing as a witness, it is necessary to have the person who drafted the bill present.

The Chairman: All right. When do you want this counsel present?

Mrs. Jennings: I guess now it's beyond.... I've already been a witness. It would now have to be done at clause-by-clause stage.

The Chairman: Okay, at the clause-by-clause discussion.

Yes, Mr. Ramsay.

Mr. Ramsay (Crowfoot): Perhaps I could just have it clarified. Why do we not have legal counsel here on a full-time basis?

The Chairman: We do. We have a research officer here right now.

Mr. Ramsay: I mean regular legal counsel such as we had sit throughout some of the other bills, including Bill C-68. We had two of them sitting here throughout the duration of the bill. Why do we not have that now?

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The Clerk of the Committee: Mr. Ramsay, a new approach has been established. Because there are not many legislative counsels, only 3.5, as you have said, it was decided that they would not attend any meetings except those dealing with clause by clause, unless there was a specific request from the chair. But we will see how it works, because Mr. Louis-Philippe Côté is at this time attending another meeting.

Mr. Ramsay: That's the question I'm raising. I think one of our colleagues from the Bloc asked the same question. Why is it we do not have legal counsel at all stages of consideration of these bills? Why, as members of the opposition as well as members of the government, do we not have available to us independent legal counsel to have their advice on issues that come up that we would like to have clarified? What do we do at this time if a matter comes up that is being presented that we would like an independent view on? Why do we not have this?

It's a change, and I want to understand why that change is there. I don't agree with us going forward without legal counsel available to us.

The Chairman: Mr. Ramsay, I believe this is the first time since I've been chair that a request has been made for legal counsel to be present. We can review this matter, but as you're aware, with only 3.5 counsels available, and with all the committee work that is going on, it is impossible to have counsel present at all the meetings. It's a matter of cost, as well. I'm sure you're aware of and are quite conscious of the fact of costs. These matters have to be taken into consideration.

So if you have a request for counsel for a particular day, let Mr. Dupuis know, and he'll discuss it with me. We can perhaps make arrangements. We are not trying to make matters difficult. We want to accommodate, but there is the matter of logistics as well.

Mr. Ramsay: Then I would ask about the cost. Let's have the figures that would be involved if we had legal counsel here on a permanent basis. The fact of the matter is, we cannot determine what issues are going to come up on which we might require legal counsel's input on a day-to-day basis. I don't know what issues are going to be discussed today, certainly, so what do we do if we would like to refer a question to our legal counsel today? What do we do?

The Chairman: You have research counsel sitting right next to me. She's an independent person; she just doesn't draft legislation. You can refer matters to her at any time. She's here all the time for Bill C-232, and has been throughout the hearings. Matters can be referred to her for any legal opinion you wish.

Mr. Ramsay: Okay.

Mrs. Jennings: Mr. Chairman, it was Madam Venne who asked at the time I was here why there was not independent legislative counsel here. She did make that request.

You mentioned, Mr. Dupuis, that a change had come about. Was there a letter, a memo or something? If so, I would make a request to see that.

The Chairman: That is a matter you can discuss with Mr. Dupuis outside the meeting. I think we should get on with this meeting rather than have a discussion as to that matter. You can pursue that matter outside.

Mrs. Jennings: Can I not make a request at this meeting that I, in fact, and maybe all members, receive that memo or letter, whatever it is, that we're supposed to be aware of?

The Chairman: There was no indication that there is a memo or a letter to that effect here. If there is, then we can look into it, but -

Mrs. Jennings: I would request at this meeting, Mr. Chairman, that we in fact do see that.

The Chairman: As I said, that's a matter for you and Mr. Dupuis to discuss. I'm sure he will try to accommodate you in any manner he can.

Mrs. Jennings: Thank you.

The Chairman: Let's proceed with the witness.

Mr. How, please go ahead.

Mr. W. Glen How (Barrister and Solicitor, W. Glen How & Associates): Mr. Chairman, hon. members, and the other witnesses who are here, it's a pleasure to be able to appear here and discuss this case and the problem of divorce.

Family litigation has become one of the major problems confronting our courts. It's been estimated that in Ontario, at least, about 50% of all the court work being done involves family law. So it's a very serious matter from the standpoint of both the people and the taxpayer, and I appreciate that you're giving this subject the attention you are.

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I might say I've had a lot of experience in family law. The two latest cases on this subject in the Supreme Court of Canada were cases I argued. I would like to address those.

At the moment I would refer to Bill C-232, which is the subject-matter under discussion. I've filed a memorandum with my comments on Bill C-232. I just preface my comments with the point that the law regarding family law is not satisfactory. Even the Supreme Court couldn't figure it out. They filed judgments that are highly contradictory. Many academic writers - and I've quoted some of them here - have said it's so bad that it's time we took family law out of the courts and put it into some administrative tribunal.

I don't think I'll go quite that far. What I am really getting at is that here we're dealing with a subject where the law is in a very unsatisfactory state. I therefore appreciate that you're giving serious consideration to it.

One of the subjects, of course, that causes a great deal of trouble - and it's a serious subject - is the matter of the custody of children, which comes under sections 16 and 17 of the Divorce Act. This is the part Mrs. Jennings' proposed statute would be amending. Subsection 16(3) is the point she proposes to have amended, that:

Leave of the court is not an insuperable obstacle. If grandparents have a legitimate claim that's serious then the courts could reasonably be expected to grant them leave if they apply for it. But we have a situation where there's already a great deal of litigation, and that litigation is not necessarily for the welfare of the child.

Litigation polarizes the parties. The children get to feel part of the dispute. They are polarized against one of their parents. Litigation in this subject is not a good thing. It perhaps would better be described as a necessary evil. Giving power now not only to the spouses but also to the grandparents can only increase the amount of litigation. If it's serious litigation they're going to get the right of appeal anyhow. If not, if it's trivial, then the courts would probably refuse it. But giving them a right to go to court without even leave of the court is just going to complicate and confuse an already confused situation.

Therefore, while I respect the good wishes of those proposing this, it's not only what a law says; we all have to be realistic enough to look at what a law does. That's what is the final result. For that reason I question the propriety and the wisdom of adding to the amount of litigation we already have on this unhappy subject.

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Frankly, so many families and children are being torn apart by this...and the litigation, I am sorry to say, is sometimes caused by grandparents. You have cases where young married folks...often they get into arguments and disagreements among themselves that left alone they might easily get ironed out, but you get the families involved and you get more litigation. It can be very damaging and increase the damage to the children.

We have this beautiful language called the ``best interests of the child''. It sounds really sweet. Everybody likes to think they're doing much for the best interests of the child. So what is it? Who is it who knows what the best interests of the child are? You're looking at a little one anywhere from two to five or ten years of age. Nobody knows the direction that's going to take. Trying to give a decision now, in these early years, on what's in the best interests of the child...

To be frank, we're only kidding ourselves. None of us knows what the best interests of the child are. The judges will admit it. Even the great judge Ivan Rand said only omniscience really knows.

That's a very damaging theory. Instead of direction, it leads to total confusion, because nobody knows what the law is. It's whatever any judge thinks it is on a particular day.

The very broad discretion means that the litigation is unpredictable. So instead of getting settlements and getting the families and the parties quietened down, you just create a great deal of unnecessary trouble.

The other feature I want to discuss is the rights of access for both parents and the right of both access parent and custodial parent to have free interchange of information and to teach the child what he believes as well as what the custodial parent believes. This is all part of family life. Lots of people disagree on many things. Children are entitled to know that and to know the access parent as well as the custodial parent as a person.

The kind of restrictions that have been put on many access parents... In fact, we have two of those cases, one at the Supreme Court. It's wrong. It's a violation of the charter, and these charter rights should be respected. I think all members of Parliament want charter rights to be respected.

I won't go into all the details. I have made here certain suggestions on what can be done about it and how the law can be improved. But I want to say one thing further.

We're all thinking and worrying and giving our best attention to what can be done to improve the separations and actions under the Divorce Act. But how about going back a little further and being realistic?

With respect, the point I am making is this. If we were to count the amount of money we are spending on courts, lawyers, and consideration of divorces and family break-up...if we spent a little of that money on trying to teach people how to stay together, we would be doing a whole lot more for families, for children, and for what can be done for the welfare of the Canadian people.

I make that submission as my conclusion. These are the points I would like to discuss. I know you have some gentlemen here who are great cross-examiners, so I will be glad to have their questions.

The Chairman: Thank you. We do not have any members from the Bloc this morning, so...Ms Jennings, ten minutes.

Mrs. Jennings: Mr. How, thank you for relating your experiences to us.

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You mentioned that there's total confusion in the courts right now in divorce cases, so why allow grandparents in? I'm not a lawyer; however, I'm aware of lawyers who deal with grandparents' issues in the courts all the time. Mr. Culhane is one.

Regarding what you have just said, I'd like your comments on what Mr. Culhane says:

Could I have your comments on Mr. Culhane's point of view?

Mr. How: I'd be delighted. As a matter of fact, if you look at tab 2, filed with my memorandum, you will find that I have made many of the same points about the bad practice in family law matters. If you look at page 125, I wrote about these very things. If you look at page 124, in one of the statements I made down the page -

Mr. Regan (Halifax West): A point of order, Mr. Chairman. Can we just clarify that this is in the second section you're referring to? It isn't paginated all the way through.

Mr. How: Yes. On page 124, in tab 2, I wrote:

That's what I'm trying to avoid. I agree with some of what your friend has said.

As well, at page 127, under item 2, I discuss what the courts can and should be doing to improve the practice in family law. I address that in point 2(iii):

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So I agree with him. It's being badly done; there's no question about it. But the question I then raise follows from that: Is adding more people to it going to make any difference? My answer is, no, it isn't.

He raised the point that everybody can be heard except the grandparents. With respect, that really isn't so. Grandparents can be called the same as any other witnesses. They can say what they have to say. If there's a serious matter of justice, and there's some really serious impropriety, they can ask for leave of the court to become part of the proceedings.

You see, the difficulty you're getting is that, let's face it, people who once loved each other and lived together as man and wife don't separate because they're still happy and still love each other. They separate because a lot of animosity has broken it up. One or the other often feels rejected and feels very upset and angry about it. So you have people who already are very disturbed. Often there's no settlement. You can't get them happy. After they fight and litigate and say all the bad things about each other they still aren't happy about it, no matter what the judge decides. So adding to that -

The Chairman: I'm wondering if you could keep the answer somewhat short. I'm sure Ms Jennings has many other questions, and she has time restrictions.

Mr. How: Thank you, but a long series of questions arose -

The Chairman: I realize that.

Mr. How: - and I was trying to answer them. But very well.

I'm just saying that I don't think putting more people into this dreadful mix of confusion we already have is going to help the children or anybody else.

Mrs. Jennings: Thank you, Mr. How, but I would respectfully submit that it depends on who the people are we're considering.

Mr. How: I agree with that. You probably know a lot of nice people, and nice grandparents - I do too, and I'm glad of that - but you have a lot of other people. They're really nice people if they behave themselves. Perhaps a lot of them hold their families together. But you have many broken families where children have never known what their real home is, and so on. Many of these cases I've had and that I've referred to here are cases where religious intolerance has been openly avowed as the intent of the parties involved.

So, yes, if you have nice people, Mrs. Jennings, you probably won't have any of these situations, but you have to recognize that laws have to be made for everybody. Some are nice people, and a lot of them aren't.

Mrs. Jennings: Mr. How, I'd like to point out to you that Mr. Culhane deals with about 100 cases a year dealing with grandparents' issues. Most are settled out of court. This year 40 were in court, and he won them.

I agree with you that increased litigation is not the answer, but I suggest to you that this is exactly what we have now in the fact that grandparents have to go and initiate the action in court instead of it already being given withstanding in the courts. That necessitates a whole new action; sometimes a whole new judge who is unfamiliar with the case; costs to the taxpayers; a new courtroom; and the parents have to come back. That is increased litigation of far greater proportion than the litigation you suggest would be bothersome by the grandparents being heard at the same time.

I'd like your comments on that.

Mr. How: If they have a serious matter, yes, they can get leave of the judge, but if they can just go to court willy-nilly at any time and occupy the court's time and so on in a promotion that very often is going to be something contrary to the welfare of the child and based simply on family pride....

For example, I can give you a case - and I mentioned it in the letter I wrote to the committee to begin with - where a family was broken up. This young lady, the mother of the child, was a decent young woman and the husband was a drug dealer, was irresponsible, and was just a spoiled brat. He had been raised by a very wealthy family, but the pride of his parents wouldn't allow this poor little mother to have custody of the child.

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So those wealthy parents spent a quarter of a million dollars in an effort to create a storm about the fact that the girl was one of Jehovah's Witnesses. They didn't like her religion. They were ready to spend this money to try to get that child into the hands of that irresponsible, criminal father. That's what the grandparents were doing. I have had similar cases in other places. That's just one of many.

So you see, that's why, Mrs. Jennings, you have to keep a balance. What might seem to do wrong in one case may do right in another, so you have to consider what, on balance, is going to be the best. You may point to one case that is wrong, that has had a bad result because of the requirement of a court order before they can start. Well, there are many other cases where grandparental interference has been very damaging. It cuts both ways.

All I'm saying is they can get into court if they have a serious point, but if they're just there to meddle, then it's good that they have a hurdle to get over.

Mr. Gallaway (Sarnia - Lambton): Thank you, Mr. How, for your presentation.

We've heard almost by way of ex parte introduction of evidence through letters that this legislation, if it were to proceed, would in certain cases increase the volume of litigation. Other people have a varying view of that.

You made the statement that this bill will increase the amount of litigation. I think the probability is if you're going to add to the mix of applicants, it just follows that you're going to have more people involved.

Yet we have been told that a number of jurisdictions in the United States and I believe in Great Britain have a piece of legislation that is somehow parallel or similar to this bill. Have you looked at the volume of litigation in these other jurisdictions? I noticed you referred to a Michigan publication. Have you looked at other jurisdictions?

Mr. How: Not on this particular point, but if you check them, my expectation would be that in most cases it would be the same as the present drafting of subsection (3), namely that grandparents can get involved in a situation where there is a lack between the spouses. If neither of the spouses is really available to look after the child, then any common law court is going to permit the grandparents to be involved.

I just think the requirement of getting leave provides a bit of a buffer so you don't have people running to court just because they've had an argument with their daughter-in-law or something of that kind. People with lots of money unfortunately don't mind spending it on purely personal disagreements.

I think that is just a useful balance wheel. That would be my view of it. It doesn't stop grandparents from getting involved, but it doesn't leave the door entirely open.

Mr. Gallaway: You also raised the whole issue of the best interests of the child. That's a notable and laudable objective.

Mr. How: It sounds great.

Mr. Gallaway: It sounds great, but who knows really what it is?

Mr. How: Nobody.

Mr. Gallaway: In your experience, and I know you have considerable experience before the Supreme Court, is this in any way a tangible, objective test or is it something that is entirely subjective that depends on the direction of the wind and the judge you appear before?

Mr. How: And what he ate last night for dinner. It's totally discretionary. There is no law. On this subject, frankly, there is no law, and that just isn't good enough.

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I draw your attention to page 126 of tab 2. I've quoted an old case from 1765, right in the middle of the page.

Mr. Regan: Why don't they quote that in court?

Some hon. members: Oh, oh!

Mr. How: Mr. Gallaway, that's not giving judges all the best of it, but it is showing what can happen. In some of the cases I can refer you to that I've been involved in, it has happened. I can quote some of them to you.

The point is this. The key to correcting some of this nonsense - and I say that advisedly because that's what it is in many cases - is to have some rules to go by. In the whole country we have around 1,000 or 1,500 judges, and if they all just toss it off the tops of their heads depending on how they feel that morning, you don't have any law. There's nothing that two lawyers in discussion can point to as being a controlling factor. If there were, they could settle more of these things.

``Best interests'' is really of no value. I might refer you to a statement of Rosalie Abella, who is now a judge of the Supreme Court of Canada. I have a statement here that she has given; it's on page 5 of the memorandum at the beginning. This is from a book on family law in Ontario. I'll just read the key point:

That really says it all as far as law is concerned. When it's totally discretionary, forget it; it's not law at all. It's open to what anybody wants to call it.

I might refer on this point to the Young and D.P. case I had in the Supreme Court. This has already been discussed, but the point of reference I'm going to make is not in my material because I had too much of it. This is from volume 49, Report on Family Law, third edition, page 133. It's a discussion by James McLeod, a well-known publisher on this subject. Here was his comment about those two Supreme Court decisions: These two decisions are all but irreconcilable.

So you have the Supreme Court itself having many different opinions, and they give two judgments on the same point on the same day that are exactly opposite.

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That is how bad it is. I will tell you the solution. I proposed this to the Supreme Court when I was arguing the case: It is time you laid down some rules about what the ``best interest'' is. The best interest can be anything from good food or bad food, spanking or no spanking, or all the other different opinions abroad. That is not an opinion that a judge should get involved in.

Look at the judges in my cases. In British Columbia, there was the Young case. Madam Justice Proudfoot said to put a stop to this man; he was teaching something. Really, it was something she disagreed with, so she prohibited him from speaking to his family about his religion.

Then it went to the British Columbia Court of Appeal. They said it was a scandal and that she had no business to make any such order, so they reversed it. The Supreme Court maintained the British Columbia Court of Appeal.

So you've got these wild differences. They swing completely one way, then completely the opposite way. So if there are two lawyers looking at a problem, how are they ever going to have anything that they can put their hands on to try to make a settlement?

That is what should be done. We shouldn't be litigating these cases. When these cases have to go to litigation, all parties lose.

Mr. Gallaway: How much, in your view, does this proposed bill change the traditionally accepted role of who a parent is?

Mr. How: I already said that. It just opens the door to more interference without even the cautionary point of demonstrating to a judge that there is value in additional people being involved.

Anybody can be involved if they can show a good reason to the judge. In some cases, the grandparents should be involved, while in other cases, frankly, it is only family pride or something of that kind, rather than the welfare of the child. That's what I find very troublesome. I just think this is a useful check on improper and indefensible interference.

Mr. Gallaway: Okay, thank you.

The Chairman: Mr. Ramsay or Ms Jennings.

Mr. Ramsay: Thank you, Mr. Chairman.

I appreciate very much the question of discretion as you have applied it to this whole idea of the best interests of the child and how dangerous discretion can be. Yet, you would argue for the judge to maintain the discretion as to whether or not to accept the application of a grandparent for standing. You would argue that he should maintain the discretion when you speak so eloquently against that kind of discretion.

So I am at a bit of a loss to understand how you apply that. It doesn't seem to me that it is being applied equally. Maybe that is not a fair suggestion to make, but I would like you to clarify that for me.

On the one hand, it seems to me you are pointing out very well the damage that the discretion of the court can have. On the other hand, you are saying the judge should maintain that discretion when it comes to grandparents under the present Divorce Act by having to make an application. They are granted an application solely based upon the discretion of the judge -

Mr. How: May I answer you?

Mr. Ramsay: Let me finish - whereas the amendment to the Divorce Act would take that discretion away from the judge and grant grandparents the right of standing, which would, of course, remove the discretion that you have discussed here.

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Bear in mind, of course, that when I looked at this amendment, I saw that a judge always has the final say as to whatever presentation grandparents might make if and when they appear before the court in a case of access, visiting rights or custody.

Could you just comment on that?

Mr. How: Yes.

Mr. Ramsay: Leave me time for a question or two afterwards.

Mr. How: All right.

The point is this: it's a problem between uncontrolled discretion and controlled discretion. Controlled discretion means that there are some guidelines for the exercise of it; uncontrolled discretion means go whichever way the wind blows and do whatever you want.

Judges are very familiar with the principle of whether or not a person has a justiciable interest that would justify letting them get into a case, to be represented, or to be part of it. There are many legal rules and principles that can be applied to decide that. So it's an exercise of a controlled discretion.

What I'm objecting to as far as this business of ``best interests'' is concerned is that it's a totally uncontrolled discretion, which really is a violation of constitutional law.

Take the famous Roncareli case in which Mr. Justice Rand said at the time that there was no such thing in law as uncontrolled discretion. That's so for good law, but the Supreme Court, in these last two cases, has made bad law. When the courts go astray, then legislators can correct it. That's the distinction between the two situations.

You can provide some controls for the exercise of discretion, according to the principles I enunciated there at the end of tab 2. Make them and set out some rules. Second, require that the trial judges state what rules they rely on.

Right now they just say they make this order in terms of best interests. What are they relying on? Nobody knows.

If you go to the Court of Appeal, it says they mentioned the best interests. It's game over. There's nothing you can point to.

Frankly, it has made lawlessness, not law. That's why I said to the Supreme Court - I say this to you learned gentlemen here - it's time to make some rules and put some teeth in them. I know it sounds sweet to talk about the best interests of the child, but you're sure wasting everybody's time and money.

Mr. Ramsay: One more question?

The Chairman: Okay. Go ahead.

Mr. Ramsay: I thank the chairman for this, because it's a follow-up, and five or ten minutes later it would be inappropriate to ask.

As far as my understanding of the Divorce Act is concerned, we have that discretionary power of the judge to say to any grandparent that he has considered their application, but that he rejects their application. So no grandparent appearing before that individual judge would ever have access, because the judge has that discretion. That's what I'm talking about now.

Under this bill, that discretion would be removed. Grandparents would have a right they never had before to present the case because of the power of discretion.

You have not argued well, in my mind - I say this with respect - concerning the contradiction that appears to be in your argument about discretion in terms of the ``best interests'' while denying it in this other case. I'm sorry, but you have not made the point.

I don't have a legal mind. Perhaps that is what is required to catch the point you've made, but you have not made that with me.

I thank you, Mr. Chairman.

Mr. How: I am sorry if you are not convinced, but there are many judges whom I haven't convinced, so it's no problem.

The Chairman: Ms Phinney, for five minutes.

Ms Phinney (Hamilton Mountain): Thank you, Mr. Chairman.

Quebec has a bill in its Civil Code that roughly disallows an arbitrary refusal to let grandparents see their grandchildren.

Could you comment on that, and tell us whether you think all the provinces should have a similar -

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Mr. How: Anything that's arbitrary shouldn't be done. While judges are sometimes arbitrary, somebody has to make a decision.

Yes, they have a right to be there. I've forgotten the language. Do you have the language of that section? I don't have it in mine.

I'm a member of the Quebec bar, but I don't carry all the laws in my mind.

Ms Phinney: It's right here. Jack has it.

Mr. Ramsay: In the section we're talking about:

Mr. How: Yes, I have no problem with that. So you have to go to court. If you're going to do that, you'll have to get somebody to decide whether or not it's a grave reason. That is a parallel situation to the question of the judge making an order.

It seems to me that you have the very same point: there has to be a grave reason between the child and the grandparents. I see no major difference, with respect.

In other words, if there's a good reason, then grandparents of course ought to have rights to be involved with their grandchildren, but if there's a grave reason or no good reason why they should be involved - it's just the opposite side of the same coin - then they have to prove something in order to bypass the parents. I don't see any really serious distinction between those two propositions.

Ms Phinney: It wasn't exactly my question, but do you think we should have it in provincial law across Canada?

Mr. How: Whether they have it in the provincial or federal laws, this power over families is a two-sided thing. I haven't checked all the provincial laws on this point; I'm just thinking of this proposal. As I have explained, I just don't think it's necessary.

Ms Phinney: Your comments on page 5 of the introduction say that ``Uncontrolled discretion has led to religious discrimination.'' You commented briefly on that. Could you expand on that a bit?

Mr. How: Yes, I would be happy to. This is something that was the basis of the Young v. Young case. The mother came to court saying that she was intolerant and that she demanded her husband be stopped from talking about his religion to the children. Her intolerance was the basis of the case.

I will refer you back to tab 2. I've quoted some of the judgments to show you the completely opposite views of judges.

The trial judge was Justice Proudfoot. With the greatest of respect, she's a lady who sometimes seems to come to court with her mind already made up before the case starts. Worse than that, if counsels continue to disagree with her, she treats it as a personal affront.

In that particular case, when the case was over and she ruled against me, she also said that I ought to be condemned to pay all the costs, which was a little matter of around $50,000. I would have felt bad except that she had done the same thing with three other lawyers and the Court of Appeal reversed all those cases anyway.

This is what she ordered. This is not a legal order; this is a religious order:

Mind you, that's the petitioner who broadcast her own intolerance.

So he can't talk to them of it and he can't take them to church with him.

The judge said he:

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In other words, the subject of the religion of the father can't even be mentioned.

I'm on tab 2, page 111. At the bottom of the page was a decision of Judge Wood of the Court of Appeal. He discussed the guarantees in the charter. The charter guarantees free exercise of religion. If you can't talk to your own children, what freedom is there?

After discussing the charter, he says:

When that case went to the Supreme Court of Canada, they maintained the judgment of the Court of Appeal, but it was on a 4:3 decision.

Am I helping or confusing?

Ms Phinney: I'm not sure how this involves grandparents - but my time's up.

The Chairman: I'm sorry, but already we're well over the time on this five-minute round.

[Translation]

Mrs. Venne, would you like to ask a question?

Mrs. Venne (Saint-Hubert): Since I was delayed on the road, I will have a look at the brief. I thank their witness for coming.

[English]

Mrs. Jennings: Mr. How, a number of things you have said are of concern to me, including the discretion of the judges, of course. It may not be the best system in the world. It is, however, the system we have, and we use the judge's discretion at all times.

You made a comment that you're going to have all these grandparents going to court if Bill C-232 does pass. That's not the case at all. It'll probably be what happens now, that it's only those who are interested, who don't have the continual visitation rights. Many parents after divorce do wish grandparents on both sides to visit with the children. It is important, and they do this already. We have proof of that.

As well, Mr. Langlois, a lawyer practising in Quebec, pointed out here two weeks ago that to his knowledge, there has not been any increased litigation as a result of the Quebec law that right now forces parents to not put obstacles in the way of grandparents visiting children. So there are those concerns, which I want to make sure are very clear.

I'd like to also say that according to Mr. Culhane, a grandparent's main concern is seeing that the interests of the child are met, and it's not usually done quickly. They're not anxious to get into court. Nobody likes to go to court. Unfortunately, with the increasing number of broken families, the role of grandparents as a stabilizing and a continuing support to grandchildren is rising in importance. In all the controversies about children, marriage and divorce, the grandparents are about the only people who come into the matter, apart from the parents, ready to undertake the burden of actually looking after the children.

What do you say to Mr. Culhane, who states:

How do you respond to Mr. Culhane on that?

Mr. How: With great respect, he's in error; that's all. It's a different point of view. He can have a different point of view. But let's be realistic. He's oversimplifying it. It can be good. It can be bad. I don't think the world will stop going around if either point is taken.

So that's your view. I have sought to explain and to show, from my experience, a number of unnecessary cases. They leave a responsibility in Quebec on the grandparents to show that there has to be a grave reason against them. I think the same thing would be true in the common-law provinces. It's the same thing. I don't see any great difference.

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If there are no more questions, I would like to address -

Mrs. Jennings: Yes, there are more questions, Mr. How. As a matter of fact, I must agree with Mr. Ramsay in that you have not convinced me at all in your arguments.

You mentioned the best interests of the child. I would suggest to you that maybe the United Nations knows a little bit about the best interests of the child when they unanimously supported the UN Convention on the Rights of the Child, which said they must have access to their family.

I'm really interested in that, because I keep hearing that the grandparents might interfere and do all these things.

I suggest to you that, in the majority of cases, grandparents are good, caring people. You keep speaking of a few cases that are, to me, a very minimal amount. I've been across Canada. I've spoken to grandparents. I'm very concerned about this misrepresentation, as I see it.

Mr. How: I'm not trying to misrepresent anything. Most grandparents are good people, I agree with that. Most grandparents don't have to go to court. You don't have these arguments in most families.

Once in a while you do see this. I think this is a useful protection, because I have seen a number of cases in which grandparents sometimes have been helpful, and sometimes they've only created problems. It cuts both ways. I don't think the world's going to stop going around either way. I think the law, as it is, is adequate.

Mrs. Jennings: Would you comment on my question about the United Nations - and Canada - agreeing that the child has a right of access to his or her family?

Mr. How: Yes, I think so. I don't dispute that. I want families to be together. What I'm showing is that the matter of all these things going to court is often not a good thing and I don't want to encourage it.

That's my view. I see this as very damaging. Whether it's in or it's out, I don't think it's going to make a major thing. We're going too far on being legalistic, instead of trying to look after people and helping them keep their families together.

I have a volume here that suggests some of the things that could be done if we spent some more time keeping people together. This is called ``Making Your Family Life Happy''. It's the kind of a thing the government should be putting out.

If we held people together, it would save a lot more trouble in the long run. They'd be happier if they stayed together and sweated through a few problems, instead of throwing in the sponge the first time they get in an argument.

A lady came to ask about a divorce one time. I asked her a few questions. She and her husband got into an argument at the wedding reception and they broke up at that point. Now she was looking for a divorce. They never even got together to consummate the marriage.

We have a lot of funny people around these days. I try to keep a balance.

I think I've said as much as I can say on this subject, but I would like to say something else while I'm here. I pointed out -

The Chairman: Does it relate to the question, Mr. How?

Mr. How: No, not to this question, but -

The Chairman: We're running into the time of the people who have questions to ask.

Mr. How: Yes, okay.

The Chairman: That is a problem, because we do have a number of people on the list yet. Maybe if they can ask these questions, they'll relate to what you have to indicate.

Mr. How: No problem.

The Chairman: Ms Skoke, five minutes.

Ms Skoke (Central Nova): Thank you, Mr. How. I'm the member of Parliament for Central Nova.

I certainly appreciate your comments. You have convinced me of your arguments.

Mr. How: I'm glad somebody's convinced.

Ms Skoke: Would you say for the record what cases you were involved with, with respect to the Supreme Court of Canada? Am I correct in understanding that it is was Young v. Young and D.P. v. C.S.?

Mr. How: That's correct. Those were the two cases. Those are the two latest decisions of the Supreme Court of Canada on this question.

Ms Skoke: You've indicated that these two cases certainly came down with opposite opinions, but I think you said it was ``bad law''.

Mr. How: Yes.

Ms Skoke: Can you briefly tell me what is the bad law they've enunciated?

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Mr. How: All right. First, may I just refer you quickly to some of the comments of some of the law writers? Look at tab 2 on page 110, which is the second page. The statement is made:

There have been some other comments on this. I mentioned Mr. McLeod's comment that these two judgments were irreconcilable.

Ms Skoke: I've read Mr. McLeod's comments. Actually, I've utilized them in a court case I'm involved with.

What can you tell us with respect to the practice of the Supreme Court of Canada regarding costs on charter challenges? If someone were to take a charter challenge, as your clients did in this case, what costs are involved, and how receptive is the Supreme Court of Canada in terms of either awarding costs or not?

Mr. How: I don't have too much of a complaint about their awarding costs. The trial judge awarded costs against me, of course, but the British Columbia Court of Appeal reversed that, and the Supreme Court maintained it.

Madam Justice L'Heureux-Dubé was still out to have me pay all the costs. That's her responsibility. But I'll be realistic about it: Madam Justice L'Heureux-Dubé's judgment wanders all over the map. You can take anything you want out of it. It is really a judgment that decides nothing. It left this total and uncontrolled discretion.

That's why I sought to get the Supreme Court - some of them agreed with me at the time - to lay down some rules.

I have laid down some of the rules at the end of my memorandum, at the beginning, and also in this article that I wrote about it.

Ms Skoke: As for the uncontrolled discretion of the judge you make reference to, particularly with respect to determining the best interests of the child, what challenge, if any, have you made regarding the jurisdiction of the court? Was it a charter challenge? How did you -

Mr. How: This was a charter challenge. I challenged ``best interests'' right here. I said this was not law at all.

What has been said by all the law writers confirms what I have had to say. One writer is Jeffrey Wilson. Look at tab 2 at the bottom of the first page, which is 109. He's a very knowledgeable man in this field. He said that if these judgments are the best the legal process can offer, the legal community has a duty to close it down and come up with a system that helps.

The same essential comment was made by Justice George Walsh, who is one of the most knowledgeable people in this field. You'll find this on page 125 of tab 2. This is the confusion I am talking about. Justice Walsh pointed to the future of the family law bar. Where is it going?

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He's a very balanced, conservative thinker. But he's realistic: it is just that bad.

The terrible thing about it is that the average family has a hard enough time to pay their bills when they're together. Consider that same income when they split up. You have two different households trying to live on the same income. You really have problems, and the children do suffer.

Ms Skoke: Unfortunately, my time is up. We'll have to talk about this later.

Mr. How: I'll be delighted to speak to you about it.

Mr. Ramsay: I'd just like to touch on one matter, which was brought up by Mrs. Venne.

In the discussion of section 611 of the Civil Code of Québec there's a different emphasis on the onus. In that section, the onus is placed upon the person who wants to deny the right of the grandparents to visit the child.

But in this other section, that onus is almost like a reverse onus, in that the onus is different in the application of this section to the amendment that's represented in Bill C-232. In this amendment, the grandparents would have the right to make presentations before the court for consideration by the court. That, of course, is what we're seeking.

Right now, the divorce bill does not grant that right. The onus is on the grandparent to make an application for standing. We get back into the discretion business with the judge, meaning whether he wishes to hear them or not, based upon the application.

But in section 611, the onus supports the right of the grandparent. The only way the grandparent can be denied access to the grandchildren is if someone puts forward an obstacle that is recognized by the courts.

Could you comment on that? When you addressed the question placed to you by Mrs. Venne, it wasn't very clear. I would like you to focus upon the onus.

Mr. How: What question is that?

Mr. Ramsay: Under section 611, the grandparents have rights that cannot be denied them unless someone raises a grave concern. But in this other area, you're seeking to deny grandparents the right of standing in the courtroom. That's what you're opposing. You're opposing the right of the grandparent without an application.

Mr. How: With section 611, how would it get to court? In other words:

That's a statement of the principle of law. But there would have to be some interference. They would have to come to court to prove some interference to begin with, wouldn't they?

Mr. Ramsay: So that protects the rights of the grandparents.

Mr. How: Just a minute. Let's think about -

Mr. Ramsay: Is it not?

Mr. How: Look at the practical reality. They have to come to court first. The grandparents would have to go to court and prove first that there had been interference with their personal relationship between the child and the grandparents. Right?

Mr. Ramsay: I don't know if that's the way it would be.

Mr. How: With great respect, it is.

Then, if they show there is interference with the personal relationship between the child and the grandparents, as for the parents, or whomever was opposing their relations, once it's proven there is interference, the onus would shift to the responding party either to allow the relations or to show there was grave reason not to. So in both cases you have the necessity of going to court and you find the judge has to balance the interests of both sides and of the children.

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I don't really see much difference.

The Chairman: Ms Torsney will be the last questioner.

Ms Torsney (Burlington): My question follows directly on the last questions about the Civil Code and section 611.

Since the UN charter has been brought up, I'd also like to say I certainly hope Ms Jennings will be a member of the committee when we do the Young Offenders Act and the Reform Party wants to see youths under the age of eighteen in adult prisons, which is of course against the charter.

Section 611 of the Civil Code applies to all aspects of the relationship between children and grandchildren, with the exception of divorce, because the Divorce Act is a federal act and this relates to other acts. I wonder if you could elaborate on that, please.

Mr. How: You've just made the point. The Divorce Act is a federal act, but many of the things that are covered in the Civil Code are provided in the light of the fact that a divorce may be granted under a civil act.

Mr. Carbonneau is more of a specialist in civil law. Would you allow him to comment on section 611?

Ms Torsney: Sure.

[Translation]

Mr. André Carbonneau (counsel, W. Glen How & Associates): Section 611 exists in the context of the Civil Code of Quebec which contains the definition of parental authority. Grandparents are not given parental authority but they have a right to access.

Under this bill the grandparents and the parents are on the same footing. This could therefore be construed as putting them on the same footing as far as access to the child and its education is concerned. I am referring to proposed subsection 16(5) where it says:

Therefore, this bill raises the status of the grandparent to the same level of parental authority as the two parents. For lawyers it is a disturbing move. To take out of the Civil Code the section that gives grandparents access to the child without understanding that parental authority is excluded is like adding apples and oranges. Those are two different concepts.

[English]

In Quebec law grandparents do have access to their grandchildren, but they do not have parental authority. Parents are not allowed to intervene between the grandparents and their children. The onus is on the grandparent to say they're not being allowed to see their grandchildren, but they do not come to court with parental authority.

Bill C-232 seems to give them parental authority. I think that's where the problem is coming up.

Ms Torsney: Is it not also true that 611 governs parents and grandparents in situations of intact families as well as divorced families, whereas this bill would only make a change for those in divorced families? So because two people are still married, grandparents could still not have access to their grandchildren under this. This proposed bill doesn't govern that situation.

Mr. Carbonneau: That's right.

Ms Torsney: What was your earlier point that you wanted to elaborate on and you didn't have a chance to?

Mr. How: Thank you.

The point I wanted to make was arising from these several cases wherein there had been religious restrictions against a parent because the judges disapproved of their religion. This is a violation of the charter, but in Quebec it's a standard pattern. The Quebec Court of Appeal - I've been there on five different cases - always restricts the rights of Jehovah's Witnesses in every case. They've narrowed it down, they've reversed each other, but they always restrict. It's quite unfair, but this kind of abuse is reserved for Jehovah's Witnesses and nobody else.

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I draw your attention to tab 2, and I quote from page 124, where there are comments by a legal writer, John Syrtash, who has written a book on religion and culture in the Canadian family. He points out the reality there:

They are doing so.

Ms Torsney: That's a very interesting comment. In fact, in one of the other days of testimony, I think it was Mr. Ramsay who said he wouldn't want his parents interfering in the religion of his children.

Mr. How: Right. I agree, and the thing is that there should be something said here. When we set out some rules, they should be... On page 126 of tab 2, I state what's required:

In several of these cases - and I've put a reference in there - the judges of the Court of Appeal have ignored the evidence and have made speeches about their own private views on religion. That's all right, they're entitled to that for their own lives, but they frankly have no business sitting on the bench and saying they are going to make a court order to force a child to be a Roman Catholic. But that's exactly what's happened, and it's -

The Chairman: We have about one minute left. Thank you, Mr. How and Mr. Carbonneau, for coming today to enlighten us with your views on this particular bill. I'm sure everything you have said will be considered by the committee in the decision that it makes.

There is one final matter I'd like to cover, Mrs. Jennings, and that's your initial discussion about further witnesses being called. There is a bill that has been referred to us dealing with witness protection and it has to be dealt with. I'm sure this is for the steering committee to consider, but would there be any problem in having these witnesses - if the steering committee decides to hear further witnesses - heard after we deal with the witness protection bill?

Mrs. Jennings: What timeframe are we talking about?

The Chairman: I'm not sure. About one week.

Mrs. Jennings: About one week? I would think that -

The Chairman: Perhaps even two. It will be a relatively short time, but we'll deal with the witness protection bill and we'll have to have a steering committee meeting to decide whether these witnesses should even be called.

Mrs. Jennings: Thank you, Mr. Bodnar. I believe this is essential. Again, as sponsor of the bill, I insist that they have to be heard for fairness. I would therefore agree with you - one or two weeks.

The Chairman: Thank you.

Mr. How: May I say just one further thing? I have written a chapter on this subject of religion and custody and access disputes in Mr. McLeod's book. I wasn't able to get copies earlier in the day, but they've been brought in now. This is a subject that should be given consideration before this matter is completed, so I'd like to leave these. You can either pass them around -

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The Chairman: Thank you very much, Mr. How. The clerk will pass them around to everyone on the committee.

Thank you. The meeting is adjourned.

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