[Recorded by Electronic Apparatus]
Thursday, November 2, 1995
.0935 
[English]
The Chairman: We'll start now.
Good morning, Ms Baird.
Ms Barbara Baird (Individual Presentation): Good morning.
The Chairman: This morning we're continuing with Bill C-232, an act to amend the Divorce Act (granting of access to, or custody of, a child to a grandparent). Our witness today is Barbara Baird, a barrister and solicitor from Fredericton.
Ms Baird, we thank you very much for being available today. Please proceed with whatever presentation you wish to make. After that some of the committee members will have questions for you.
Ms Baird: I flew up today to present to the committee and add some commentary to what this committee has already received on this bill. Before proceeding, however, I would like to maybe comment a bit. Not only am I a practising lawyer coming into my twentieth year, I also have a masters degree in family law from the University of London, England. I have a specialty practice dealing in the area of family law. Interestingly enough, I am also one of the former leaders of the Progressive Conservative Party in New Brunswick, and I hope you won't hold that against me. But I did see it from the legislative end over the course of that part of my career.
I am a mother of two children and I hope some day to be a grandmother myself.
This is not just a legal issue; it's an issue that affects the way we think about families and the family unit in Canada, so I see the issue from two perspectives. First, what can the legislators do to perhaps facilitate the problem? Second, what can we as Canadians, both within the judicial system operating at the court level and as legislators, do to recognize the fact that perhaps the extended family should have a continuing role after separation and divorce?
.0940
I don't know how far the committee has gone with the presentations in terms of the Canadian law, or maybe even what the United States and Great Britain have done, but I am going to talk a little about comparative law because that's where I'm coming from.
It appears that in the 1960s in the United States there was a concerted movement by a number of lawyers to try to gain more access rights for grandparents on separation and divorce. In 1993, when we reviewed what had happened in the United States, we discovered that about 50 states had enacted some form of grandparents' rights legislation. The legislation is controversial, there's no question about it, but the fact remains that those states have recognized a need and have attempted to address the need through legislative remedies.
In Great Britain in 1979 there was a movement to attempt to introduce grandparents' access rights through legislation, which was successful as well.
I'm sure the committee is aware of article 659 in the Quebec Civil Code that essentially says no person shall place an obstacle between a grandchild and a grandparent on separation and divorce.
Across this country in the various provinces there is provincial legislation that attempts to address this question. For example, in Ontario the Family Law Reform Act has a section that allows any person to apply to the court for the custody of a child, or for access and visitation to a child.
Subsection 129(3) of the New Brunswick legislation, our Family Services Act, which is modelled after the Ontario legislation, is similar. It says that any person may apply for the custody of a child or access and visitation to a child.
These provincial statutes operate when a couple goes through separation but not divorce. For example, Mr. and Mrs. Smith decide to separate but they don't necessarily want to proceed with a divorce at that point, so an application is made to the court to settle the custody, support, and marital property matters. At that time grandparents can apply, without leave, have status before the court, and be heard on the question of custody, access, and visitation.
This week, before coming to the committee hearing today, I pulled out of our computer legal research data banks the cases in New Brunswick alone where grandparents have applied, without leave, to be heard by the court on the question of access and visitation to their grandchildren and custody.
I'm speaking now solely from my personal experience in New Brunswick. The judges have said if they find it's in the best interests of the child to have a continuing relationship with the grandparents after separation, they will make such an order. Those orders have always been made under the umbrella provision of the best interests of the child.
The grandparents may have had what we would call a close and loving relationship with the grandchildren. In many cases perhaps the grandparent has acted as a babysitter for the grandchildren. We all know that on separation and divorce sometimes the feelings are very bitter. I have personally experienced, in my practice, cases in which on separation perhaps one parent simply cuts off the other side of the family, and those people for all intents and purposes become strangers to their grandchildren.
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This is where the balancing act has to occur. The fundamental issue here is whether or not the child's right to have a relationship with the members of their extended family is more important than the custodial parents' rights to control the everyday life of the child.
Our New Brunswick Court of Appeal has said that the right of access is not the right of the parents but the right of the child. If we start with that fundamental principle, that the right of access is the right of the child and not the right of the parent, then, looking at the family in its totality, does the child not have a right to have a continuing relationship with members of its extended family upon separation and divorce?
How does that impact on Bill C-232? The unfortunate dichotomy that we have in Canada is the fact that we have two sets of legislation dealing with the same issues. The provincial legislators deal with the issues of custody, access, and visitation through the provincial statutes, and then suddenly the Divorce Act, which operates at the federal level, says, ``Grandparents, or any person, we aren't going to hear you unless you apply for leave. You must apply for leave, and only then will we hear you.''
I think that's fundamentally wrong, because many grandparents have absolutely no idea of what to do when they are faced with this situation.
I know that the chairman of the family law subsection of the Canadian Bar Association made a presentation to the committee. At one time I was the chairman of the family law subsection, and I can tell this committee that at no time have I, as a 20-year practitioner-lawyer, been canvassed on this question by the Canadian Bar Association. I don't believe that the presentation that was made to this committee by the Canadian Bar Association fully reflects the position of the practising bar or the judiciary, nor do I believe that the issue has been properly canvassed within that organization.
The concern that was put to the committee at the time of the Canadian Bar presentation was that there might be an influx or a plethora of cases of grandparents running off to the courts asking for access and visitation rights. That has not been our experience in New Brunswick, and I can't imagine that it's going to change fundamentally, other than perhaps to educate the practising bar and educate the grandparents who are out there in the community to the fact that they do have some limited rights or some ability to get into the courtroom and have their voices heard.
If a couple has gone through separation proceedings - perhaps they have a domestic contract or a separation agreement signed - and then elected to proceed with a divorce, at that time, under the current legislation, the grandparents have no vehicle to appear and be heard unless they apply for leave of the court, which is a somewhat cumbersome procedure.
In one of the cases I pulled, a recent case from New Brunswick, a 1995 decision that I was reading last evening, grandparents in this jurisdiction did make application to the court during the course of a divorce proceeding, and they were heard. As a result, they were granted custody of a child. The court felt that it was in the best interests of the child that the grandparents have custody of the child at that particular time. There were issues of child protection and care involved in that particular case.
.0950
I guess the fundamental problem we're having with this issue is really what is wrong with a grandparent appearing and making a case to have ongoing access to or an ongoing relationship with their grandchildren following divorce? Of course, that's always provided that it is in the best interests of the child, which is the fundamental test that the courts use in any event. The court always considers whether or not such a relationship is in the best interests of the child.
The spectre of meddling grandparents trying to tell the parents what to do or not to do with their children is a concern and a consideration. The courts have addressed that in some of the decisions that have been rendered, certainly in New Brunswick, but always within the context of the best interests of the child.
I would hate to think we have come so far with this only to see the ball dropped, because the reality is that many of those children out there do not have the opportunity to see their grandparents after divorce or separation.
I had one lady, a grandparent of 65 years of age, a healthy, vital, and just wonderful woman. Her son was in the Canadian Armed Forces and had gone through a divorce. The daughter-in-law moved to Nova Scotia and there was one child, a little girl, who had always had a close relationship with the grandmother. Suddenly, the daughter-in-law said no, I'm sorry; we're divorced, that's it, you're not seeing her any more. Freddie was off in Cyprus or wherever he was.
It took us quite some time and a fair amount of money, but we eventually did get an order. She now has access and visitation to that child in the summer. It has benefited both parties, both the grandparent and the child.
Looking at the bill itself, I know the committee probably will have questions on the bill, but I do not have a great deal of difficulty with this bill. I think the bill addresses a need.
I have a concern about the leave requirements in the act. I don't like the idea that we don't have consistency across this country. I don't like the idea that in New Brunswick, if a couple chooses to go under the Family Services Act, the grandparent automatically has status without leave, but if the same couple goes under the Divorce Act tomorrow, a different standard would apply with respect to the same question. I don't like that inconsistency. I think the legislators have a responsibility to the families in this country to offer some degree of consistency on these questions.
I do have particular difficulty with the leave requirements in the Divorce Act. I don't understand why they were put there in the beginning, and I don't like that particular section of the act. In my view, one of the ways of solving this problem would be to incorporate an amendment into the Divorce Act that says that any person who has an interest in a child shall have the right to make application and be heard on the questions of custody, access, and visitation.
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Now that would allow a person to.... It's up to the judge. There is still a residue of judicial discretion in deciding whether the application has merit or not.
We have that section in New Brunswick and it is working. It has worked and it is working. I have made applications under subsection 129(3) of our act, and the court has heard the presentation of the evidence and has reserved unto itself the ultimate discretion of whether to order access and visitation. I think we can accomplish what we are trying to accomplish here by incorporating a similar provision in the Divorce Act.
In my view, the requirement for leave is cumbersome. It creates further expense and it's not necessary. I say that as a suggestion, and I say it from personal experience in our particular jurisdiction in New Brunswick.
Those are my remarks to this point.
The Chairman: Thank you very much.
First we will hear from a member of the Bloc Québécois for ten minutes, then one from the Reform Party, and then one from the government party. If there's any time left the chairman gets to ask a question or two.
I won't ask a question now, but I will mention that one concern has been the amendment you're talking about, the amendment of custody, access, and visitation in the Divorce Act, as to the constitutionality of something like that and whether it's within provincial jurisdiction only.
However, I'll leave that for now and we'll go to the Bloc for ten minutes.
[Translation]
Mr. Langlois (Bellechasse): Good morning, Ms Baird. I'll get back right away to the issueMr. Chairman Bodnar just left aside.
At first glance and up to a certain point, I am in favour of the concept that grandparents should have access, visitation and information rights. The problem I'm wondering about is essentially the following:
In view of the provisions contained in subsection 92(13) of The British North America Act of 1867, which establishes that any legislation pertaining to property or civil rights is under provincial jurisdiction, how do you see a request for amending the Divorce Act that, prima facie, seems to come under provincial jurisdiction?
[English]
Ms Baird: I do not feel that is a problem. Within the purview of the Divorce Act now we recognize the fact that the court, exercising its discretion under that federal legislation, does have the right to decide questions of custody, access, visitation, spousal support, child support, etc. It is not a constitutional question. That is my opinion.
[Translation]
Mr. Langlois: In your opinion, should the grandparents' intervention be allowed without leave and occur only when the divorce proceeding is initiated or when a divorce is under review, even if 10 years have gone by since the divorce was first granted? Should their intervention be possible at any stage of a divorce procedure?
[English]
Ms Baird: This is part of the point that I was attempting to make today. In a separation and a divorce there are many stages, as you recognize. After separation, the parties may decide they don't want to go to divorce immediately. Perhaps they initiate proceedings under the provincial legislation and an order issues at that time with respect to custody, access, and visitation.
In our province, grandparents have the right to apply, without leave, to be heard by the court on the question of their rights to have access and visitation. After a while the couple may decide to go for a divorce. A divorce petition is filed and they appear before the court.
.1000
My problem right now with the Divorce Act is that at this stage if the grandparents want to be heard by the court, they must apply for special leave to be heard. That is inconsistent with the provincial statute, particularly in New Brunswick. I don't feel it serves the best interest of the child.
The court at this stage has unto itself the right to decide whether or not to hear those people, whether or not they've applied for leave. The court has the right to say, sorry, your application has no merit or oui, je suis d'accord, I want to hear you and I think it's in the best interest of this child that he or she has a continuing relationship with the grandparents.
You see, in my opinion as a mother - I have two children myself and I am a grandchild - what we ultimately have to consider is the child's best interests and the right of the child to have a continuing relationship with the extended family. This is particularly so in situations in which there is great bitterness and acrimony between the two families. Perhaps the mother has custody and she has cut off the other side. That is not....
Getting back to the social policy issue or question, do we not have a responsibility in this country to ensure that children maintain their relationships with members of their extended family?
In Quebec, article 659 recognized that point. That was very progressive thinking because it is vitally important in my view that children understand where they come from and who they are, and that they understand their roots and have a relationship with the other side of the family. If we continue to put obstacles in the way of those grandparents, if we say they have to apply for leave, we are not serving the best interest of that child in all cases.
[Translation]
Mr. Langlois: According to the assertion you're making and the theory you're defending, visitation rights are of prime and fundamental importance to the child himself. Do I understand you well?
The Divorce Act of 1985 already provides for a counsel to be retained on behalf of the child. Would it not be within that counsel's competence to secure access to the child for his grandparents, to ask the court directly, without any additional procedure, that access to grandparents be included in the judgment, even if it means the grandparents must come to testify? Rather than amending the act as proposed in Bill C-232, would we not avoid more complicated procedures if we left it to the care of the child's counsel to seek an order to this effect in court?
[English]
Ms Baird: Practically speaking, we do not have counsel for children in the divorce courts. My practice and particularly my experience here in this jurisdiction tells me that on only very rare occasions is a solicitor retained for the child. It very seldom happens and only when the child is 12, 13, or 14 in a custody dispute where the child wants to make his voice heard with respect to his wishes on custody or something of that nature.
If there is an infant child or a very young child who cannot speak for himself, those decisions are made in the absence of independent representation for the child. We have no vehicle in this province to appoint a court solicitor for the child. It just does not happen.
That is why I'm telling you to picture yourself in the courtroom. You have the judge, the two lawyers, and mom and dad sitting there trying to decide custody, access, and visitation for this child and the grandparents are there with their counsel.
.1005
The grandparents are called to the stand. They testify to the relationship that they've had with their grandchild and why they feel that they should have a continuing involvement in that child's life. What is so terribly wrong with that?
[Translation]
Mr. Langlois: These are questions I'm asking myself. I have not yet come to my final position on Bill C-232. I'm very sympathetic to aspects affected by the bill however.
Of course, you raise the problem of children representation by counsels in New Brunswick and I am glad that you make us aware of that practice in your province.
As a final question, I would like to ask you about orders intended to give grandparents access to their grandchildren. I imagine minor children are the target here. However, if children aged 15, 16 or 17 refused to see their grandparents one half-day a week even if there's an order that says they should or could do it, they wouldn't be punished for contempt of court. What specific category of children will benefit from that in your opinion?
[English]
Ms Baird: In my view, we're talking about children who are usually the subject of custody orders in any event. The judges are reluctant to order access or custody for children who are over the age of 12 or 13. They cut it off and they say that at that age the children will make their own decisions and decide what they're going to do. So I see this as something that occurs when you have very young children who would ordinarily be the subject of custody and access orders in any event, in the normal course of events.
Mr. Langlois: Merci.
Mr. Ramsay (Crowfoot): Ms Baird, I want to thank you for bringing a degree of clarity to this whole business that we have not had up until now. Some of the strongest objections to the bill have been raised by lawyers who have appeared before this committee and who claimed the bill would simply complicate divorce proceedings. Here we have representation now, not only from the wife and the husband but also from grandparents, and it might be by more than one set of grandparents, so the lawyers are objecting to that.
Up until now, it seemed very hypothetical to me, since they could not give examples of it because it is not in the federal statute now. But you have told us this morning that New Brunswick allows leave, that grandparents have that right. I would like to ask you to tell the committee whether or not some of the concerns expressed by the other witnesses who have appeared before the committee, concerning complicating the divorce proceedings, have occurred in New Brunswick as a result of the right of the grandparents to appear before the court and have leave.
Ms Baird: I'm glad that you've asked that question, because when I became involved in this issue, in 1991, I became aware that it was a problem in some cases and I started working with the grandparents' rights organization at that time. One of the first things that surprised me, more than anything else, was the lack of knowledge of the practising bar on these issues. In fact, I had clients who came into my office and said that they had been advised by lawyers that they had no rights and that they could not apply for access to and visitation of their grandchildren. So we have embarked on an educational program, whereby we've been educating not only our fellow members of the bar but also the judiciary and certainly other grandparents that they do have these rights.
To answer your direct question about whether or not these applications complicate the procedures that ordinarily occur in the courtroom, I would have to say no. In fact, if anything, the grandparents often lend a unique perspective to the issue of parenting and the issues of custody and access that otherwise would not be given to the court when the court makes its determination.
.1010
I want to clarify something you said a few minutes ago. We do not have a leave application in New Brunswick. Subsection 129(3) says that any person may apply for custody, access to, and visitation of a child. So there is no leave required. The grandparents simply file their application documents and have a right to appear before the court and be heard. The judge then makes a determination on whether or not it's going to be in the best interests of the child.
That is one of the issues I have with the Divorce Act. The Divorce Act says you must apply for leave before you can be heard, and I think that's fundamentally wrong. It's expensive and cumbersome. You talk about simplifying the procedures. If you require the grandparent to apply for leave, you are complicating the procedure. If the grandparent can apply and be heard at the time of the divorce hearing, then you get it all done in the same day. The judge hears the witnesses and then exercises his or her discretion on the issues.
Mr. Ramsay: Thank you for that. I guess what we're hearing from you this morning is that the fears and apprehensions expressed by other witnesses before the committee concerning the problems that would be created are really non-existent from a province that has been practising it.
How many years has New Brunswick been practising this procedure?
Ms Baird: Our subsection 129(3) has been in existence since 1985, if my memory serves me correctly. It could be 1982; it's somewhere in the area of 1982 to 1985.
Mr. Ramsay: There has been discussion before the committee as well on increasing the cost of these proceedings by allowing the grandparents leave to appear before the court. What about that? Do you think it would add to the cost or would it reduce the cost? Or would the cost remain relatively the same?
Ms Baird: I don't think it would unreasonably add to the cost at all.
My main concern is this. You have to put yourself in that courtroom. The mother wants custody, the father wants custody, and the children are jammed in the middle of a bitter custody dispute where emotions are running very high. There is no more bitter dispute than a custody dispute in our family court system.
If there is a voice of reason, if the judge can look down over that sea of faces and see a grandparent who absolutely loves that child, can offer that child some emotional stability, can form a relationship with that child that will assist that child in its development and its growth and have a wonderful, happy relationship with that child, then the judge certainly wants to hear from that grandparent.
And they do. I've heard judges say in the course of their deliberations how happy they were that the grandparents were there to lend their views and opinions to this mess between the husband and the wife. I don't think costs should be a factor regardless of anything else. Costs should not be a factor. You can't put a dollar value on the best interests of the child.
But to answer that question, no. The only cost would be perhaps the lengthening of the time that would be necessary to take and hear the evidence. You may extend a hearing by an extra half-day, and that would increase the cost of the proceedings.
Mr. Ramsay: I would like you to tell us how often grandparents take advantage of the existing legislation in New Brunswick. We also had the spectre raised that suddenly the divorce courts would be flooded with grandparents. Could you tell us a little bit about that aspect of it?
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Ms Baird: The reality is that grandparents are reluctant to get involved in these disputes unless they feel it's absolutely necessary.
As I say, I pulled out the cases that have been reported in New Brunswick in the last two years. There might have been seven or eight reported decisions where grandparents intervened and actually had to put a case forward for custody or access and visitation.
My experience has been that once the application has been filed, the parties will often sit down to negotiate and they will come to an agreement themselves. For example, I had a case this summer in which the grandparents applied, and within a matter of three weeks we had a consent order and the grandparents have their access and visitation to this child. It was all done very amicably.
I think that argument right now is fear mongering. I cannot legitimize that argument. You will not see a mad rush to the doorsteps of the courtroom. You will see grandparents who perhaps otherwise did not know they had the right to pursue an order, and you will see them requesting access and visitation. But I think reason often prevails.
Mr. Ramsay: If I can, I'd like to get two quick questions in before I'm finished. I want to ask whether or not you've ever experienced where more than one set of grandparents have appeared in court in New Brunswick. Secondly, if a divorce proceeding commences, is there a requirement that the grandparents be notified by law?
Ms Baird: No, there is no requirement for notice to grandparents at all under the Divorce Act. That provision does not exist. One has to assume the grandparents will have knowledge of a divorce proceeding through their children.
What was your first question again?
Mr. Ramsay: Have you ever had a case in which more than one set of grandparents have appeared?
Ms Baird: No.
Mr. Ramsay: Thank you.
Ms Torsney (Burlington): First of all, let me say that some of your principles and some of your reasons for supporting the bill are definitely some of the reasons why I am interested in having this bill before us. But I have a few problems with it in that what we're trying to figure out is whether or not this is the best way to solve the problem.
I found it interesting that you identified, for instance, that there is no notification mechanism. How are these grandparents, who you say didn't know they had the right to pursue access, going to find out they have the right?
Ms Baird: In New Brunswick, for example, we do not have a notice requirement. Subsection 129(3) just simply bold-facedly says that any person may apply. The grandparents, however, do somehow find out. But if we're going to move in this direction, this might be the first step.
I'm not sure how we would incorporate a notice provision in the Divorce Act in any event, because it is a federal piece of legislation. You could have a person who lives in British Columbia applying for a divorce, while the grandparents live in New Brunswick. Well, how are they going to find out? Administratively, that might be a very difficult, if not impossible, situation.
Having said that, if there is an amendment to the Divorce Act that puts the thing into context, any person may apply for access to a child. This would assume that even after the divorce judgment is issued, the grandparent still would have the right to apply to a court for access and visitation, and at some point they're going to find out.
Ms Torsney: Okay, but that brings me to the very point that some people have raised: most grandparents don't realize there's a problem with access until six months down the road, so there is a very good possibility that those who didn't.... You talked about this very bitter custody dispute in which the parents are fighting like hell and one parent loses. What happens is that six months down the road they use their parents to make a motion to come in to get these kids or get more access to these kids...but it is really for their son. That's why they're using this motion.
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So the parent who has custody - and we know that parents who have custody are often in very difficult financial situations - could potentially face having their in-laws coming after those kids on a regular basis. They would have to choose between putting food on the table and fending off this court proceeding because they don't have the money. There's no legal aid for this kind of situation in most provinces. What do you tell that mother or father who is saying, keep those people away from me, and who has a legitimate reason to keep those people away?
Ms Baird: There are situations in which it is not in the best interests of the children to have an ongoing relationship with their grandparents. We know that. In those situations in which the grandparents do pursue an application and the single mother with her children is required to fend it off - I can give you an example in which this happened in our jurisdiction, in Saint John, and in which the judge ordered solicitor-client costs against the grandparents - there is a vehicle in our court system that penalizes the grandparents if they fail. So she doesn't have to bear that expense.
Secondly, you brought up the argument about a grandparent coming along six months later to try to use the system, to manipulate the system to get access so that daddy can have more access to his children. I would hope those cases would be limited at best. But even if they do exist, I would also hope the wisdom of our judges would prevail, that the judicial system would prevail, and that a judge would see it for what it was. Once evidence is called and the witnesses have been heard, the judge certainly is going to see through scams like that.
Ms Torsney: In the meantime, the single mom, who is living literally from week to week, is faced.... I don't know they're going to award costs. I've had to build up this defence and I've had to find money somewhere to try to fend them off, sometimes taking it from my children's mouths - I believe this is what could happen in some cases - and all this time, with all this stress, I know those grandparents are going to be bad news, but I can't afford to fight this thing.
What about the case of a mother who is acting in the best interests of her children and who has a horrible relationship with her own mother or father? She thinks they screwed up her life so badly that she doesn't want them to do it to her child. She's acting in the best interests of her children - we have to believe she wants to do that - yet she could have to fight off her own parents. And she could have to fight off her sisters and brothers, because you said anybody can have access. That means I could want to have access to my brother's kids, my sister's kids, or I could want to have to access to your kids. How do we control for the possibility that other people may start these access situations, leaving the single mom having to keep fighting off all these various people, yet each and every time the judge.... But if I've got lots of money and I'm a grandparent or I'm a father who wanted access.... As legislators, we have to think of the worst-case scenario as well to see that we're not exacerbating that.
What you're telling me is that the problem is that currently grandparents do not know the rights currently on the books, whether it's from the federal level or from the provincial level, and what we really need is not this piece of legislation. We need a huge advertising campaign or education campaign to tell grandparents and others what their current rights are.
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Ms Baird: I agree with that point absolutely, because from the provincial perspective that is absolutely correct. I don't think lawyers or grandparents, or in some cases even the judiciary themselves, realize these rights exist now. But what we're talking about is the Divorce Act, and I have a fundamental problem with this leave business. I don't understand why it was put in there. It is totally inconsistent with the provincial approach.
To go back to your other difficulty, I appreciate what you're saying, that applications may be coming from uncles, cousins, nieces, nephews, whatever, but that has not been our experience in this jurisdiction. This legislation has been in existence for I think just over ten years. I have a portion of it with me. I can't tell you on what date that section was proclaimed, but I think it's just over ten years, and we have not experienced that in this jurisdiction. That's not to say that down the road we wouldn't. But I always believe in the wisdom of the judiciary; that after all the evidence has been heard, the judges in this land will make a decision based on what they consider to be in the best interests of the child.
Unfortunately, manipulation occurs both ways. I've seen cases where parents have manipulated the situation to keep the children away from their grandparents. In your example the grandparents are manipulating the system.
The only safeguards we have in our system are the safeguards of evidence, truth, and judgment. The judiciary have to base their decision-making on the evidence they have before them. I would hope those concerns would never outweigh what I consider to be the most important element of this, and that is the child's right to have a relationship with its extended family - always if it's in its best interests.
The Chairman: Could I raise one matter with you, Ms Baird. First of all, if the Divorce Act is amended to indicate any person can apply, no longer do we have this as ancillary relief to a divorce, but we have other people applying for this particular type of remedy, being access, etc. I really question whether it is within the purview of the federal government to regulate. It may be completely within the provincial government jurisdiction, as I believe Mr. Langlois may have been referring to in his questions.
Secondly, if this matter has been working so well in New Brunswick with the act the way it is, and it appears perhaps your rules of court indicate the procedures for making such an application with the filing of documentation by grandparents, perhaps the solution is for all provinces to have similar rules of court pursuant to the Divorce Act. Then there is no problem. Would you agree?
Ms Baird: I am in favour of consistency. That's been one of the problems I've had with the current system. I'd love to have a philosophical discussion with you about that, because you do have the individual pieces of provincial legislation, which apply one way or the other across the board, and then suddenly you have the Divorce Act, which applies ``uniformly across the country'' and which in some respects is inconsistent with provincial legislation.
Yes, uniformity would be a wonderful thing. I think it's time we opened our eyes to certain realities in this particular area of family law: some people have been excluded from the process, and ultimately the victim is not the adult, it's the little child who's caught in the middle of the dispute. Anything we can do to facilitate better relationships and communications between those two family units post-divorce, or even post-separation, is positive, in my view.
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The Chairman: Thank you very much for appearing before the committee. Your experience in this area has certainly been most helpful. Thank you very much.
Ms Baird: Thank you.
The Chairman: We're adjourned until 11 a.m.