[Recorded by Electronic Apparatus]
Tuesday, October 3, 1995
.0936 
[English]
The Chairman: Today we are commencing hearing witnesses on Bill C-232, An Act to amend the Divorce Act, which would grant access or custody of a child to a grandparent. Our witnesses today are from the the children and youth section of the Department of Justice. We have Marilyn Bongard, legal counsel, and Glenn Rivard, general counsel.
You can give your presentation in whatever order you want. Please proceed.
Mr. Glenn Rivard (General Counsel, Family, Children and Youth Section, Department of Justice): Thank you very much. It's a pleasure being here.
I will make some general remarks on the bill. Then my colleague will go through the clauses and provide an explanation and comment on them. I don't believe we'll be very long.
First and foremost about this bill, we have to recognize it will give to grandparents, when one of their children is divorcing or divorced, rights in law that the grandparents do not have if their child's family remains intact. This includes the absolute right to apply for custody or access of the children of the marriage and to apply for and receive information about their grandchild's health, education, and welfare.
About the first right, the one of applying for custody or access, this is generally not a right given to someone other than the children's parents except in the most egregious of circumstances, such as on proof of severe child abuse or neglect. This bill in effect treats divorce as ipso facto sufficient grounds to allow a third party to apply for custody of the child. This is a far more significant intrusion into the primacy of the parent-child relationship than in cases of child abuse or neglect, where at least harmful conduct toward the child should be established. This intrusion extends to the level of variations, and therefore it allows for the disrupting of existing custody and access arrangements.
About the right to information, society is generally of the view that personal information of this nature should be available only to the child's parents. This is reflected in the law that governs, for example, access to medical and school records. Divorce marks a breakdown in the relationship of the spouses but not in the parent-child relationship. This relationship is maintained in law, again except in the most exceptional circumstances, and all of our public policy strives to reinforce this parenting relationship. Examples include the obligation on the part of parents to support their child, the determination of their respective rights to custody and access, the provision in the Divorce Act that encourages the use of mediation, and the provision that supports maximizing the contact between the child and both parents to the extent that it is consistent with the best interests of the child.
Finally, I would urge the committee to give some consideration to the impact of this bill on the dynamics of the family going through the often difficult process of divorce. To the extent possible, public policy encourages the parents to determine the outcomes of their divorce themselves. In fact, almost all divorces are settled by agreement rather than by court order. This is a period of high stress for all the family members, including the children.
Studies indicate that the children's ability to adjust to their parent's divorce successfully is highly correlated with the amount of conflict surrounding the divorce and afterward. Usually complex and interacting issues have to be resolved, such as the grounds for the divorce, the property settlement, spousal support, child support, and the custody and access arrangements.
All of this is occurring in what is normally a highly charged, emotional atmosphere. Usually the children are coping with a precipitous decline in their standard of living, a consequence of which is often that they are forced to move from their family home, sometimes even their neighbourhood, and they may have to start up with new schools and new friends. It can often taken the children years to overcome the cumulative effects of this change and stress.
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Into this complex mix of legal and personal issues this bill would add one more potentially highly disruptive factor. Currently the law allows grandparents to apply for custody and access with the approval of the court. This requirement for approval acts as a gatekeeper to applications that are frivolous and vexatious. In effect, it acts as a powerful incentive for the families to work out the issue of grandparent access themselves. This will almost always guarantee a more satisfactory outcome than any court-imposed solution.
Bill C-232 would remove this protection and would allow grandparents unilaterally to disrupt the parenting arrangement worked out by the parents. In addition, it would force often poor mothers to bear the burden of expensive court proceedings to defend against the custody or access application by the grandparents.
Under the current law, in cases where the denial of grandparent access is not defensible and not in the best interests of the child, the courts will grant leave to grandparents to apply for custody or access. This requirement for leave therefore does not act as a barrier to legitimate applications, but it does act to encourage the parents and grandparents to resolve access themselves.
Ms Marilyn Bongard (Legal Counsel, Family, Children and Youth Section, Department of Justice): I might go through the actual provisions of Bill C-232 and give a legal explanation about what the provisions would do and perhaps some of the possible impacts on current family law practice.
Generally, Bill C-232 proposes amending the Divorce Act to give grandparents the same standing as parents to be granted access to or custody of their grandchildren. Technically, the bill proposes amendments to section 16 of the Divorce Act, which refers to orders for custody and access, and also to section 17 of the Divorce Act, which refers to orders for variation, rescission, or suspension of support or custody orders.
Specifically, amendments are proposed respecting subsections 16(3), 16(5), 16(9), 16(10), 17(2) and 17(9) of the Divorce Act. The proposed amendment to each of these subsections is really quite simple: it just adds the words ``or grandparent'' where currently the provision refers to spouse, current spouse, or parent. So it's not terribly complicated, but it does have some implications.
The first subclause, 1(1), of the bill would give grandparents the same standing as parents to make an application under subsection 16(3) of the Divorce Act as of right. Grandparents would no longer be required to obtain leave of the court to request an order respecting custody of and/or access to their grandchildren.
With respect to the impact of this proposal, as Mr. Rivard mentioned, currently under the Divorce Act third parties, including grandparents, are not precluded from getting formal court orders awarding them either custody or access, but they must first obtain leave of the court to make this application. This provides a safeguard that ensures that only proper applications are heard by the courts. The case-law indicates that judges tend to take into account considerations such as the quality of the relationship that has existed between grandparent and grandchild and the amount of prior contact. So it prevents frivolous, vexatious applications from ever getting to court.
The effect of this provision, as Mr. Rivard said, would be to treat divorce alone as sufficient grounds to allow grandparents to apply automatically for either custody or access. From a policy perspective, the committee might want to consider whether this is something that should be done.
The committee might also want to consider the potential impact of this bill on the current family law practice. As Mr. Rivard mentioned, only a small proportion of custody and access cases are actually litigated and have court-imposed orders granted. In the vast majority of cases the issues are settled by negotiations between the parties and their lawyers. The agreement is then incorporated into a consent order and legally recognized.
Allowing grandparents to apply to the court as of right adds a potentially highly disruptive factor to the settlement negotiations. It's clear that it will provide an added bargaining power to grandparents that they currently don't have.
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I guess there's a difference of opinion as to whether this would actually promote litigation or actually allow more settlement, because the threat of litigation alone might inspire people to settle. But it certainly does have a potential to allow grandparents to force divorcing parents who might otherwise be able to work out their own arrangements.... This would add another party to the proceeding, and in fact in some cases it could mean cases that would not otherwise go to court might have to go to court.
Specifically, subclause 1(2) proposes an amendment to subsection 16(5) of the Divorce Act to give grandparents the same rights as this subsection currently provides to a spouse granted access. This includes the right to make inquiries and receive information about the health, education, and welfare of the child.
I understand Ms Jennings, who has sponsored the bill, has suggested this subclause be withdrawn. I could get into some details or I could just leave it to questions if it's going to be withdrawn.
The bill also proposes that subsections 16(9) and 16(10) of the Divorce Act be amended. Currently subsection 16(9) prevents the court from considering the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of the child. The proposal in this bill is to add the words ``or grandparent'', so it would read:
- the court shall not take into consideration the past conduct of any person unless the conduct is
relevant to the ability of that person to act as a parent or grandparent of a child.
In a grandparent context, they're not parties to the divorce. I'm not sure exactly what purpose this clause would have if you added ``grandparent'' in there. I think it's possible to say the past conduct of grandparents would be relevant in determining custody. Especially if there's some history of conflict between the parents and grandparents I think it would be relevant.
Subsection 16(10) is the provision that directs the court to give effect to the principle that a child should have as much contact with each spouse as is consistent with his or her interest and that the court should consider the willingness of the person from whom custody is sought to facilitate such contact. The bill proposes that this subsection be amended specifically to include contact with grandparents as well.
I think it's important that the committee recognize that this proposed amendment goes beyond giving grandparents a right merely to apply for access to their grandchildren. This proposed subsection in fact would provide direction to the court on the actual issue of whether the application should be granted. Coupled with the right to make application for grandparents' access as of right, which would be the first clause in this bill, it would put the onus really on the custodial parent to justify why this access should be withheld. There's a fairly direct impact of the bill.
It might also be useful for the committee to note that a court order awarding grandparent access may not necessarily ensure access will in fact occur without further problems. A court can order access but it cannot order people to change their attitudes, feelings, or manner of relating to one another. A court-imposed order for grandparent access made despite strong objections for one or both parents could in fact lead to more conflict, and even more litigation.
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Finally, I would conclude by noting that clause 2 of the bill proposes amendments to section 17 of the Divorce Act, which is the section that deals with orders for variation, rescission or suspension of custody or access orders. This means that the bill has a very large potential impact because it would allow grandparents, as of right, to apply to the court to vary all existing custody and access orders if there is a change of circumstance.
That concludes my remarks. Both Mr. Rivard and I would be pleased to answer any questions.
The Chairman: Thank you very much. We'll proceed to the first round of questions.
Madam Venne, 10 minutes.
[Translation]
Mrs. Venne (Saint-Hubert): As you mentioned, Bill C-232 is intended to facilitate intervention on the part of grand-parents in a divorce action. Grandparents would no longer have to obtain leave of the court, and under Bill C-232, they would be on an equal footing with the spouses.
This means that there will now be six players instead of two, and no definition has been provided for the term ``grandparents'', which causes some problems. I wonder if you have any suggestions to make in that regard. Should the term ``grandparents'' be defined? Should grandparents be included as well as biological grandparents?
I would also like to know whether you think that, on the whole, these amendments to the divorce act are really in the best interests of the child.
[English]
Ms Bongard: First, as civil servants and officials in the Department of Justice, it's not appropriate for either of us to get into the policy aspects of what this bill should do. It's a private member's bill. It wasn't proposed by the government.
I agree that there currently is no definition of grandparent in the Divorce Act and this bill does not propose one, so that could be a gap unless it would allow for all grandparents, without being defined, to make application. Currently the Divorce Act only refers to third parties, and that would include grandparents. However, this would put grandparents on a different footing than other third parties, and there probably should be some attempt to define it in the act.
[Translation]
Mrs. Venne: Since you don't seem to want to get your feet wet, I will go immediately to my second question.
There is no legislation in the common law provinces, which explicitely protects the personnal relationship of the child with his or her grandparents. As you will no doubt understand, when I talk about common law provinces, I am differentiating between those provinces and the province of Quebec.
The province of Quebec has tried to protect the personal relationship between the child and his or her grandparents. Let me explain. As you know, section 611 of our Civil Code allows grandparents who feel their right to a relationship with their grand-children has been infringed upon, to go to court and ask for a judgement on the terms and conditions of that relationship. Such a request can be submitted whether or not the spouses are involved in a divorce action. Do you see the proposed legislation as an attempt to fill that gap by legislating at the federal level, and do you think that the Divorce Act is the appropriate vehicle to do this?
Mr. Rivard: As you mentioned, this amendment only applied where there is a divorce. However, the section of the Civil Code which you referred to applies to any situation involving family relationships.
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This section of the Civil Code applies whether or not a divorce is granted. Federal jurisdiction is limited strictly to divorce cases. It would be impossible for the federal government to regulate all family relationships.
Mrs. Venne: Shouldn't the other provinces do what the province of Quebec has done, that is enact legislation to allow grandparents to see their grandchildren? This could be done with a provision similar to what we have in our Civil Code.
Mr. Rivard: The other provinces could indeed enact legislation similar to the Quebec legislation.
Mrs. Venne: I believe that this could indeed be done. Do you agree?
Mr. Rivard: I am simply saying that it would be possible for the other provinces to do this.
Mrs. Venne: So it would up to the provinces to assume their responsibilities. At least that's the conclusion I come to.
I would like to ask you something else about this bill. It's regarding subclause 1(2), which would amend subsection 16(5) of the Divorce Act so as to allow grandparents to ask for information regarding the health, education and welfare of the child. Earlier, Ms Bongard said that she would be willing to discuss this.
Moreover, you know that we in Quebec are avant-garde: we have access to information legislation which provides for access to the documents of public organizations as well as privacy legislation. It seems to me that the provision would go against this Quebec legislation. I wonder if you would care to comment on that and if you would also tell us whether or not you think that this provision should be removed from the Bill.
[English]
Ms Bongard: With respect to subsection 16(5) of the act, currently it says ``unless the court orders otherwise''. Even with this amendment proposed by the bill, the court at its discretion could still decline this.
I do agree with you that this type of information as to the right to make inquiries and receive information as to health, education and welfare of the parents... Currently under the Divorce Act that is limited to spouses, and typically this is normally information that only parents do receive.
[Translation]
Mrs. Venne: I might also add that ``normal'' grandparents, that is grandparents of children whose parents are not divorced, would not have access to such information.
[English]
Ms Bongard: In effect, this would provide grandparents of divorcing families with a greater right than those of an intact family. I agree.
[Translation]
Mrs. Venne: Thank you very much.
[English]
Mr. Rivard: If I could just add to this, the constitutional authority of the federal government is quite clear with respect to divorce. It can govern the relationship of the parents through and after the divorcing process, including with respect to support, custody and access. There is no established case-law that would indicate that we can govern the relationship of another party, that is, grandparents, in the Divorce Act. They are not the parties that are being divorced.
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So I don't think we have a settled legal opinion, and there is no settled case-law in this matter, but certainly there is a question as to whether the marriage and divorce power of the federal government could extend to regulating the relationships with parties that are not the subject of the divorce.
Mr. Ramsay (Crowfoot): I would like to ask for a point of information from Madame Venne about whether or not there is a definition of ``grandparents'' in the Civil Code of Quebec.
[Translation]
Mrs. Venne: In Quebec, grandparents are grandparents de jure or biological grandparents. We no longer have a illegitimate children in Quebec. So it could be both.
[English]
Mr. Ramsay: Is there a definition? It refers to grandparents under section 611. Is there a definition of ``grandparents'' in the Civil Code?
[Translation]
Mrs. Venne: I would have to check.
[English]
It won't be long; I'll find it.
Mr. Ramsay: It seems to me that the justice department opposes this bill. Is that true?
Mr. Rivard: I think it's for the committee to decide on the policy. We have described both how we see the bill operating and its impact.
Mr. Ramsay: From your testimony it seems clear, at least to me, that you oppose the bill.
Mr. Rivard: I think we would see a number of negative impacts from it, yes.
Mr. Ramsay: So you'd oppose the bill?
Mr. Rivard: It's not up to me to oppose it or not. That's for the committee to determine.
Mr. Ramsay: Well, if your words oppose it, then you're opposing it.
Mr. Rivard: I would say there's a number of negative impacts to the bill, yes.
Mr. Ramsay: So you're opposing the bill?
Some hon. members: Oh, oh!
The Chairman: I think that question has been answered.
Mr. Ramsay: Ms Bongard, you used the phrase ``potentially highly disruptive''. Is there any statistical basis upon which you form that conclusion, or is that just speculation?
Ms Bongard: I said ``potentially'' because right now, as I indicated, it adds another party to the negotiations. That alone makes it potentially disruptive. Instead of having only two parties to agree, you have to get agreement from the divorcing parents and any or all interested grandparents. So it's potentially disruptive to the negotiation in that you have more parties involved in that negotiation.
Mr. Ramsay: I understand -
Ms Bongard: It's not based on any statistical evidence. It's just a potential.
Mr. Ramsay: So your opposition - if it is opposition - to this particular aspect that you were addressing is based upon just a potential?
Ms Bongard: Yes. As I indicated, it adds more parties to the negotiation process - to the people who have to agree. I think there's potential there for making it more complex.
Mr. Ramsay: I understand from the testimony we heard from the mover of the bill - and it came out of the exchange - that under the present legislation the grandparents do have the right to make application for access or even custody later on in the process. Is that correct?
Ms Bongard: Under the Divorce Act as it currently stands you need leave of the court at any stage, and that includes currently section 16, applications, and also section 17 for variation. So under the Divorce Act, no, they cannot currently apply unless there's leave of the court.
It may be possible under provincial legislation that is in a non-Divorce Act setting. For example, the Ontario Children's Law Reform Act provides for third parties to make application. So there may be other court procedures, but not under the Divorce Act.
Mr. Ramsay: But the Divorce Act does allow for leave?
Ms Bongard: Yes.
Mr. Ramsay: In other words, by law the leave is granted.
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Ms Bongard: No. Application for leave is made and then the court decides whether or not it should be granted.
Mr. Ramsay: I think the point raised by Ms Jennings is that inasmuch as the grandparents have leave to apply now subject to the decision of the judge, what is the difference?
I think it was pointed out that we must rely upon the assessment of the court based upon the circumstances of the individual case whether or not the parents have the right that would be granted by the amendment.
I don't see anything more potentially disruptive in this bill than what is existing now, other than - I don't suppose in every case today the grandparents would be making an application.
Ms Bongard: And they still have to make application. There's nothing in this bill that would give grandparents any more motivation.
This bill does removes a safeguard that currently exists. Right now the court has the authority in considering leave to rule out vexatious or wrongful kinds of applications. This bill would remove that and give every grandparent as of right the chance to go to court.
Mr. Ramsay: Is that happening now? Are grandparents making vexatious applications?
Ms Bongard: I haven't done research on that issue, but it's certainly not beyond the realm of possibility. As Mr. Rivard indicated, in cases where emotions run high, there are particularly nasty divorce negotiations and the thing is very messy. It wouldn't be unheard of or beyond the realm of possibility for grandparents to take sides, to get involved in the mess and to use this new automatic leave to start proceedings.
Mr. Ramsay: Yet at the same time, if this particular section were passed into law, the courts would have the same power to screen out any vexatious application.
Ms Bongard: No. They would have to go to court. They couldn't screen it out.
Mr. Ramsay: Yes. But the application -
Ms Bongard: Ultimately they could decide not to grant the custody or access.
Mr. Ramsay: Yes.
Ms Bongard: But you still have to go through the expense of the court procedure.
Mr. Ramsay: That expense - or at least a degree of expense - would be there if they make the application. If the application is granted, we're looking at the same kind of expensive process anyway.
Surely today grandparents are making application for leave to the courts and it's being granted. Is it not?
Mr. Rivard: Could I intervene?
As the Divorce Act stands now, it sends a very clear message that custody and access are primarily issues that must be resolved between the parents. Simply because they are divorcing from each other does not make them any less the parents, and they should resolve custody and access.
The power to allow a third party, including a grandparent, to seek leave for custody and access sends a clear message as well. It is that third parties are to be allowed to apply for custody and access only in extraordinary circumstances.
With this bill we are putting third parties - grandparents - on the same footing as parents vis-à-vis the children of the marriage. We are in effect saying to the parents that because they have decided to divorce from each other the custody and access of their children becomes a grab bag. Anyone, the parents or the grandparents, can now make a bid on these kids.
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We have to recognize that each family circumstance is very different. You can have relatively amicable divorces and extremely bitter ones. You can have extremely complex relationships where people are getting along with some people but not with others. You can have situations where the mother is getting along with the paternal grandparents but, obviously, not with the husband.
This takes away the focus of the Divorce Act, which is to say, parents, work out your custody and access arrangements as best you can. We know that in the great majority of cases parents in fact do work out those custody and access arrangements themselves and custody and access go to the parents.
It's very difficult to determine the disruptive impact that this might have on individual cases. You can't even simply measure the number of applications, because what will happen is that, in trying to settle their divorce, the parents now will have to look over their shoulders, in effect, and make sure the grandparents are also satisfied with the arrangement.
Our point is that these are extremely complex, highly charged situations and this adds another level of complexity to them.
Mr. Regan (Halifax West): I guess what you're telling us is that the difference here is that in one case at present grandparents have to seek standing, whereas under this bill they would automatically have standing before the court.
Mr. Rivard: Yes.
Mr. Regan: Let me ask you this in relation to the constitutional question.
In the case of a natural parent who is deceased, where the other parent therefore has custody of the children and denies access to the parents of the deceased parent, does the federal government have the jurisdiction or would it be within the powers of the federal government to legislate that those grandparents should be able to apply for access to that child?
Ms Bongard: No. I'll give a brief explanation.
Under the Constitution Act, 1867, Parliament is exclusively empowered to enact statutes respecting marriage and divorce. Provincial legislatures are empowered under subsection 92(13) to pass laws pertaining to property and civil rights in the province.
The provinces have exercised their constitutional authority by enacting laws governing subjects such as child welfare, adoption, and guardianship. With respect to support and custody, there is provincial legislation governing support, child custody, and access during the substance of a marriage or, as you mentioned, if one of the parties is deceased.
The federal Parliament has exercised its federal jurisdiction by enacting the Divorce Act, which sets out Canada-wide rules governing divorce law. The act also contains what are known as corollary relief proceedings, which refer to the issues corollary to divorce; namely, custody, access, and support.
So the answer is no: the federal government has jurisdiction only as it relates to divorce.
Mr. Regan: In other words, these are matters that are arising out of the break-up of these two people, which is what divorce is and where the federal government has jurisdiction.
Ms Bongard: Right.
Mr. Regan: My question really is this. If the federal government wouldn't have jurisdiction, if it would be ultra vires to legislate and say that the grandparent in the case where their child has died should have rights of access toward the child, then how can it legislate in the other case, just because it's a divorce and the divorce is a question of the break-up of the two parents? It's an interesting question.
What I really want to know here is your advice, as Justice counsel, on what the courts would hold as to the constitutionality of this bill and whether it would be ultra vires for the federal government or not.
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Mr. Rivard: There is a Supreme Court case on the matter, the Zacks v. Zacks case. It clearly decided that the divorce power extends beyond simply the authority to grant divorce and the basis for that, to include the resolution of corollary matters such as support and custody.
Mr. Regan: That's between the parents.
Mr. Rivard: No. There is a current provision in the Divorce Act that would allow third parties, with the approval of the court, to apply for custody. We believe that is within the federal jurisdiction, and it has never been successfully challenged.
There are other provisions in the bill that may be challenged, and I don't think we can give an opinion as to whether that challenge would be successful. I'm thinking in particular of the access to information provision. It's difficult for me to say whether that falls within the ambit of the divorce or a corollary matter relating to divorce.
Mr. Regan: In any case, this bill would not assist the grandparent whose son or daughter was deceased. In other words, where one of the natural parents is deceased it would not assist the grandparents in this case because there was no divorce.
Mr. Rivard: If there is no divorce then the Divorce Act simply doesn't apply. You're right. It's not a matter the federal government would resolve.
Mr. Regan: In terms of the concerns that have been raised in relation to this bill and some of the reasons behind it, it has been argued that for grandparents who wish to seek leave to apply for access there's a tremendous expense. It's very difficult and puts a hardship on a grandparent to apply for leave and go through that process, and then actually go through the application for access process. What other options are before legislators to deal with these concerns?
Mr. Rivard: I think you have to weigh the various difficulties the different options present. It is true that grandparents would currently have to bear the expense of leave to apply. But I suggest that is not the major expense they would have to bear, because if they did succeed they would then actually have to make the argument in court that they should have custody or access. That is likely to be the greater expense for them.
One of the concerns with the bill is that it could put particularly custodial parents, who our data quite clearly show are living in lower-income circumstances, in the position of having to bear the cost of defending a custody decision or obtaining custody in the first instance against the grandparents. So you are sort of shifting who's going to bear the expenses here. One of the effects of this bill is to put more expense on the shoulders of custodial parents. As I've said, our data quite clearly show that custodial parents suffer a significant decrease in their income after divorce and form a high percentage of lower-income families in Canada.
Mr. Regan: I'm aware that because of the overlap in relation to custody and access issues between the federal and provincial jurisdictions, there is quite a bit of cooperation. There is a federal-provincial-territorial family law committee that works on some of these issues. Are you aware of whether they are working on anything in relation to the issues of grandparents' rights to access? If so, what impact would this bill have on their efforts, if any?
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Mr. Rivard: The Department of Justice is interested in the general issues of custody and access, and this is only one of them. In cooperation with the family law committee it has engaged in some consultation on these issues. There is no widespread consensus on what to do with custody and access, whether legislative changes would even be beneficial, or whether we should be focusing more on delivery of services to parents to minimize the conflict between them, and therefore benefit the children as a result. At the moment, there are no set plans to proceed with any changes in this area.
Ms Bongard: As I mentioned, the court cannot order parties to change their attitudes and their minds. One of the difficulties with this is looking exclusively at statutory solutions to issues that are not really entirely legal in nature. I think the committee should remain open to other than statutory amendments in looking at this issue.
Mr. Gallaway (Sarnia - Lambton): You talked about studies that were done. Have you done any studies on the number of applications for leave?
Ms Bongard: No, and I don't know how easily that could be done. You would probably have to start by looking at all the different courts because each keeps its own statistics. I am not aware of any. I know we do have studies indicating that very few cases actually end up in court.
I did make a note that some research was done in the evaluation of the Divorce Act. It looked at four different research sites, and only 35 cases out of the total of 1,170 had actually gone to trial. The vast majority do not go to court and don't litigate the issue. This was an evaluation of the Divorce Act amendments of 1985, so it was done in the 1980s.
Mr. Gallaway: What were those numbers referring to - divorce?
Ms Bongard: It was the actual number of cases that ended up being litigated out of a total of 1,170 cases.
Mr. Gallaway: What kind of cases are you referring to?
Ms Bongard: They would be divorce cases.
Mr. Gallaway: Okay. But you don't have any evidence on the number of grandparents who applied under the current provisions.
Ms Bongard: No.
Mr. Gallaway: Do you know what criteria are used by judges in deciding whether to grant leave to apply?
Ms Bongard: I was looking at case-law before I came, and there is a case of M.R. v. B.G., which is a Newfoundland case. It indicates that leave to apply for custody should be granted to a non-parent where the claim is obviously not frivolous or vexatious. The application for leave should be decided on the basis of the information contained in the affidavit in support of the application, and a prior hearing on the merits is not necessary. So that is case-law guidance. There should be affidavit evidence, and it seems to suggest if it is not vexatious it should be granted.
Mr. Gallaway: Mr. Ramsay raised the whole notion of disruption. What we have under this bill is a potential situation where one could possibly have six parties and six lawyers if grandparents decided they each wanted independent counsel. Then you would have a judge who, assuming he would grant access.... I am talking only about access now as opposed to custody. It would be rather difficult that for the five parties - I am assuming one has custody in the end - a judge or somebody would be able to write an order specifying when access was to take place. I can't imagine how it would ever work.
I would also be concerned, following one step further, about how long a judgment would last in terms of six parties then having the right to apply for a variation to that original order. When would it end? Is there any end in sight? Or is there a potential end?
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Mr. Rivard: I think you've hit on a key aspect of this, which is that the provisions extend to variations. So there is basically always the possibility of any of these parties reopening the arrangements of custody and access. This puts the custodial parents in a very difficult situation, as they have relatively little security that a challenge won't come at some point in time to the custody arrangement.
As well, because it applies to variations, there's the potential to use this to reopen any of the thousands of existing orders concerning custody and access.
Mr. Gallaway: Is there a jurisdiction in Canada that will grant to grandparents access to grandchildren when the parents are living in a normal relationship, i.e., living together?
Ms Bongard: Yes. I think in Ontario the Children's Law Reform Act allows third parties to apply, including grandparents. There is case-law indicating that judges will, in some cases, grant access over the objections of both parents. It has been done.
Mr. Gallaway: Even when the parents are living together.
Ms Bongard: In an intact situation, yes.
Mr. Gallaway: What would be the criteria for allowing that?
Ms Bongard: I'm not sure. I can refer you to the case-law, but it is allowed for. Your question was whether it is allowed for in provincial legislation. Yes, the Ontario act is one example in which third parties can apply.
Mr. Rivard: I'd like to intervene. First, I think these would be obviously very exceptional circumstances, but also the dynamics are quite different. In such a circumstance, it would appear that both parents, for whatever reason, are not facilitating contact between the grandparents, or at least one set of grandparents, and the child. Therefore, they, at least as parents, would appear to be sort of ad idem - of one mind - as to how to parent these kids.
In a divorcing situation, you quite often have a great deal of conflict between the parents. There can be situations in which perhaps because of his background or abilities or whatever.... I'll take a typical example in which the mother gets custody. The father may conclude that he cannot obtain custody of these children, but in fact the grandparents - his parents - may then seek to obtain custody by almost standing in his shoes, so to speak, and as a way of continuing the conflict.
So it's a very different dynamic. I'm not sure that a lot can be learned from the provision in Ontario.
Ms Bongard: The case I was referring to is called Chabot v. Halladay. The judge in that case accepted evidence that a relationship with caring, loving grandparents is important to children. It was particularly noted that the grandmother distinguished her case from other cases in that there was no ulterior motive; this was done out of love. As I understand it, the finding of the judge was that the parents' action was unreasonable.
Mr. Ramsay: Mr. Gallaway has suggested a scenario in which there may be six parties applying under this amendment. Do you know of any instances in which that number - the grandparents on both sides - have made application for leave under the present law?
Ms Bongard: No, I don't. The expense alone, I would think, would preclude a lot of people from doing it. But I think you shouldn't rule out the notion that this bill would propose to give grandparents a right that they do not have, and that giving rights tends to make people want to exercise that right in some cases. So even in cases in which there may not be a problem and they can work it out, they may want to go to court, if they have the financial resources to do it, to get the court order just in case they may feel they need it at some time in the future.
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Mr. Ramsay: You think that should be discouraged?
Ms Bongard: I think it's a possibility. There are litigious people who want to make use of their rights. This bill is providing a new right to grandparents.
Mr. Ramsay: Do you feel that should be discouraged by law?
Mr. Rivard: It's a very strong theme in family law to discourage litigation. Great efforts are put into having parties resolve their matters themselves, for quite a number of reasons. One reason is cost. But, again, a very consistent theme is that arrangements parties work out themselves are often much more satisfactory for everyone involved than an order imposed by a court.
Mr. Ramsay: So you feel these restrictions should exist in law?
Mr. Rivard: Yes.
Mr. Ramsay: Okay. We haven't talked very much about the welfare of the child. Although some parents and grandparents may have ulterior motives, I would suggest they would be in the minority of cases. In those cases, surely the court can be relied upon to weed out the vexatious applications. Do you not think so?
Mr. Rivard: That's exactly the power the court has now under the current Divorce Act. This provision would prevent the court from weeding out vexatious applications. The provision in the bill would prevent the court from weeding out vexatious applications, so it would have to proceed to a full custody hearing. The custodial parent would have to mount the full defence.
Mr. Ramsay: Yes. In that setting, do you not feel that the court has the same capability, in terms of the interests of the child, to make the proper decision?
Mr. Rivard: Yes, but it's a different, more expensive process. It actually puts the custody arrangement of the child at jeopardy or on trial, so to speak.
Mr. Ramsay: So the concern here is cost?
Mr. Rivard: It's cost. There's also a concern to discourage litigation and promote informal or formal agreements between the parties. There's also a concern to maintain the stability of the custody and access arrangement.
Again, children's ability to recover from the impact of a divorce is very closely related to the amount of conflict surrounding that divorce. If we want to put the interests of children first, then we have to take steps to reduce the conflict relating to divorce.
Mr. Ramsay: If this amendment becomes law, do you not feel that it will be a further inducement for private, out-of-court settlements?
Mr. Rivard: How it would operate would depend on the individual case. In some cases, as my colleague has indicated, I think it would act as a positive inducement for some grandparents to take the matter to court. In other cases, it may encourage a settlement. But would it encourage a settlement on the consideration of the child's best interests or out of fear that litigation will be provoked or even that custody may be lost?
Ms Torsney (Burlington): First, I would like to say at the outset that I am someone who didn't have access to her grandparents because they lived very far away, so I never really knew them.
I think the intent in bringing forth this issue is very important. We need to encourage positive contact among family members as much as possible. I know how important grandparents and grandchildren can be to each other. It's a wonderful relationship. Sometimes it far exceeds the relationship between parents and children.
One of the things I'm concerned about is the issue you raised in light of all the discussion that's been going on about the current situation among particularly women who have custody of children and their impoverished situation, frankly, and lack of access to legal aid in some provinces to fight off this kind of order.
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I've watched people go through divorce settlements. They negotiate everything to prevent a lot of costs when they get to court. They've figured it all out, but they know in the back of their minds that the other party can bring an action against them at any time to change the custody. They can send these things off continually, and it's very expensive. If you're already trying to provide food for your children and you're already having difficulty with that, court costs can be just too much.
The issue was raised about the child's welfare as well. One of the things people think about when they're trying to determine welfare is who can best provide for the child. I can envisage a situation where we have grandparents who have a more stable financial picture. They have more disposable income and are not planning for their retirement any more. Their children are not able to provide some of those things that people could say are good for children, whether it's education in a private school, travel, or better-quality food than a mother would have access to because of the situation she is in in some cases. We'd have this whole other game going on centring around what's in the best interest of the children. Is it to go to some private school? Is it to go and be able to have different meals, or some kind of cultural education, or whatever else?
So that puts my thoughts on the table.
If this went through, is it true that all five parties - because there are lots of grandparents who are divorced now, too - could continue to bring action against the person who has custody continually? In theory - because we have to plan for these theories, unfortunately, and think about them coming true - there could be another one every day. They could continue to do so and this person would have no recourse but to either fight them off or to throw their hands up and say, okay, take my child.
Mr. Rivard: It is conceivable that all six parties... Well, you have one party who has custody -
Ms Torsney: One has the child.
Mr. Rivard: - so there are five remaining, and they could continue to bring variation applications as a result of this bill.
Ms Bongard: Subsection 17(5) of the Divorce Act says:
- Before the court makes a variation order in respect of a custody order, the court shall satisfy
itself that there has been a change in the condition, means, needs or other circumstances of the
child of the marriage.
Mr. Rivard: That's the purpose of the leave to apply provision in the current act. Now grandparents would have to show, at least on their affidavit, that there had in fact been a change in circumstances that warranted a recondition of custody. If they couldn't show that, the custody matter would never proceed any further.
With this bill, the grandparents could force the custody hearing regardless of whether there had been any change in circumstance. If there hadn't been, they would of course lose. But they could nonetheless force the whole thing before the court.
Ms Torsney: And that's what is currently happening between divorced men and women who have children. It does happen; they just manage to try to say this.
Is it possible we could have five or six provinces involved in terms of access, and that we could have people saying they get visitation rights and that they want to bring an order in all these different provinces?
Ms Bongard: In a divorce situation, it would be the Divorce Act and it would apply to all provinces.
Ms Torsney: Okay.
Ms Bongard: There is no provincial legislation respecting divorce.
Ms Torsney: So you go into a federal court?
Ms Bongard: Yes.
Mr. Rivard: Perhaps I can just add one comment. Nobody is against grandparents having access to their grandchildren and vice versa. It's more a question of whether or not we have struck the proper balance in the current act. We believe - and the data shows us this - most arrangements are in fact worked out by the parties satisfactorily under the current provision. There is a provision in the act that does allow grandparents to proceed where they've been denied custody or access, but it also allows some check or balance, if you will, to eliminate vexatious applications that are not in the child's best interests.
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Mr. Ramsay: There must be a concern with the existing legislation, because of the letters I have received from grandparents, and of course the petitions and so on. So it seems as if there is a failing of the current legislation to provide, for those who are concerned about the welfare of children, that the best is not being done for the children. That failing of the law is an obstacle, and the grandparents want greater input into the situation with their grandchildren when there is a divorce situation.
I was handed this just before our meeting started. It is from the Civil Code of Quebec, and I would like you to comment on it. Section 611 states:
- In no case may the father or mother, without a grave reason, interfere with personal relations
between the child and its grandparents.
Mr. Rivard: Yes, we are.
Mr. Ramsay: Would you give your interpretation of that and how it fits into the rest of the Civil Code of Quebec and how it would impact upon the divorce situation?
Mr. Rivard: It's very difficult for us to respond to that, because we are not experts on the Civil Code of Quebec. It is a system of law very different from the common-law provisions, in the rest of the provinces at least. It tends to be based on broader statements of positive obligations or relationships, whereas the common law tends to focus on what can and cannot be prohibited.
Beyond saying that, it's really difficult for me to comment on the provision.
I would say this, though: the provision applies in all instances of family relationships. It is not limited to divorce.
Mr. Ramsay: How does section 611 impact upon divorce in Quebec? That's really the question I was asking. It says:
- In no case may the father or mother,
- - and this is to be enforced by the courts -
- without a grave reason, interfere with personal relations between the child and its grandparents.
Mr. Rivard: My understanding is that this section in the Civil Code can be used, and in some cases is used, by grandparents to obtain or maintain contact with their grandchildren, and it may be used in situations where the parents are divorced or where they are not divorced or where they are living common-law.
Mr. Ramsay: It seems to me - and it's just an observation - that the law in Quebec has recognized what the people who have been writing to me, and the motivation behind this amendment, have recognized some time ago, which is not only the right but the need for grandparents to be able to have contact of some sort with their grandchildren, not on an informal basis, but protected in law. In Quebec that is protected according to section 611.
I'm asking for a broader interpretation of what impact this is having, and perhaps we could ask Madame Venne or perhaps we could have witnesses from Quebec to expand on that if it's beyond your ability.
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Mr. Rivard: I'm concerned that the impression is being given that grandparents do not have rights under the Divorce Act. In point of fact they do. If they are not happy with the custody or access arrangement as it affects them, they can in fact seek leave of the court to apply for custody or access, and the case-law would appear to establish that it is granted unless that is a frivolous or vexatious application. Essentially, where custody has already been ordered, on the face of the affidavit at least, they would have to show some change in circumstance that would allow the court to consider changing the custody or access arrangement.
It's really a question, I think, that no matter what you do, there will be a down side. We are concerned that allowing an absolute right will promote litigation or promote settlements the parties are in fact not truly happy with in order to avoid the cost and other problems associated with litigation.
You've indicated that, yes, some grandparents are unhappy with the current provision. That may or may not indicate a failure in the legislation. As my colleague has indicated, you can do only so much with legislation. You can't make people get along with each other or like each other or cooperate with each other. What I would suggest is given the -
The Chairman: We're going over quite a bit. If you could keep your answers a little shorter and more succinct....
We still have Mr. Bélanger.
Mr. Bélanger (Ottawa - Vanier): We don't have statistics on how many grandparents applied for leave to put to the courts, but do we have any statistics on how many divorce proceedings ended up with grandparents being granted third-party custody? Are there any? Can you name one?
Ms Bongard: Is it custody you mean, or access?
Mr. Bélanger: Access or custody.
Ms Bongard: I think the Divorce Act's registry would keep track.... I don't know offhand, but there probably are statistics about custody. I'm not sure about access, because that's often not detailed in the order and so not -
Mr. Bélanger: I'm just trying to determine how difficult it is for grandparents to get access or custody under the current act. That was the only question I had.
Mr. Rivard: It happens in very few cases, but that may not be a measure of how difficult it is. It may simply be a measure of how rarely it is required that they seek custody.
Ms Bongard: I'm sure there is case-law indicating where the court finds both of the natural parents are not suitable. In fact, somewhere in this pile I have a case that has granted custody to the grandparents over both of the parents. But that's not -
Mr. Bélanger: All right, in that case did the court seek out the grandparents, or is it vice versa?
Ms Bongard: No, the courts wouldn't seek it out. It would be an application.
The facts of that case, as I remember them, are that the child lived with the grandparent at the time of divorce.
[Translation]
Mrs. Venne: Generally speaking, the Civil Code does not give definitions of parents, grand-parents, etc. However, if you read the definition of affiliation, you see that children are either legitimate or illegimate. There is no such thing anymore as an illegitimate child. Children are now biological or de jure. And this applies to parents and grand-parents.
When our witnesses from the Barreau du Québec come before us tomorrow or the day after, through the case law, they can elaborate on what I've just said.
Mr. Chairman, as an aside, how is it that we no longer have a legal counsel here? He or she could have done all this research for us this morning.
You may want to answer at another time, but I really would like to know.
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[English]
The Chairman: I'll discuss that with the clerk. I don't think we're anticipating that particular question on the Civil Code, but we do have legal counsel and research counsel here who could deal with it.
Questions with respect to the Civil Code we cannot deal with today.
[Translation]
Mrs. Venne: I see! Very well.
[English]
Mr. Regan: Are you aware of any cases where grandparents in Canada have been ordered to pay what I would call grandchild support? I can't call it child support. Has that ever happened in Canada, do you know?
Ms Bongard: I'm not aware of any, but I'm not saying there wouldn't be. It would be possible under provincial legislation. I'm not aware of any particular case offhand.
Mr. Regan: I want to get my head around the question of the different costs.
One of the arguments has been that the procedure in the present system, where after the divorce is already decided and the problems come up a grandparent has to apply first for leave and then go through the custody battle in court, if it goes to court, is very expensive. I'm trying to get an idea of what the differences are in the costs.
You've indicated that the actual applying for leave process is fairly straightforward in the sense that the Newfoundland court says affidavit evidence will do and you don't have to have a hearing, and therefore it's a lot less expensive than actually having the hearing. But you still would have the actual custody hearing.
It's hard for us to judge how much more or less expensive that would be than it would have been if it had been part of the divorce to begin with. I think it's fair to say it would be kind of hard for us to guess at that.
Mr. Rivard: If I can just clarify, they could seek leave to apply for custody access at the time of divorce and it could be determined at the time of divorce.
Mr. Regan: But they've argued that usually at the time of the divorce they don't anticipate that a problem is going to arise in terms of their access to the grandchild, because they expect perhaps that their child will get access to the grandchild and therefore they'll have the indirect access through their own child.
So they've argued that often it happens that after the divorce has already taken place and it's already been decided, problems arise. Then they have to apply for leave.
Ms Bongard: That is probably the reality, but there's nothing in this bill that would specifically address that problem.
Mr. Regan: In other words, if the problems don't arise until after the divorce, you still have to go through this whole thing, unless for some reason the grandparents decide during the divorce that they're going to get involved because they foresee problems. But of course they can do that now.
Ms Bongard: As I indicated, there may be a possibility for grandparents who think at the time of divorce that they should get involved in the litigation to get the court order for problems that may arise down the road.
Mr. Regan: But what you're saying is there's already a mechanism to do that now.
Ms Bongard: There's a mechanism with leave, and now it would make it even easier. That's one of the reasons you don't see that many cases going to court. But this might inspire grandparents to pursue court action in order to have an order in place down the road.
Mr. Regan: So it would appear to -
Ms Bongard: It could. As my colleague indicated, it might equally put enough bargaining pressure that people would agree to things, with the threat of litigation as the motivating factor to agree. It's difficult to predict, and it would depend, really, on the individual family situation.
Mr. Regan: But other than that, it would appear that the only difference in cost would be the cost for leave to apply, which is the cost of hiring a lawyer and getting the affidavits and the application to court drawn up, and so forth.
Mr. Rivard: I don't think you could say that, because again most divorces are settled by the parties, and this could in effect complicate the out-of-court settlement of divorces, as the parents have to look over their shoulders or deal directly with grandparents who wish to intervene. So it could in fact impose additional costs on parties who are able to settle out of court, as well.
Mr. Regan: Thank you.
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Mr. Ramsay: This week we're going to have witnesses from Quebec and we're going to have as witnesses some of the grandparents, so I will reserve my questions.
Of course my concern and interest is this. If this type of legislation is being applied in Quebec or other provinces, I want to know whether the concerns that have been raised here about vexatious and frivolous applications are legitimate concerns or whether it is simply a scenario that is not really based in fact.
I don't have any further questions for these witnesses.
The Chairman: Of course we'll also have the Canadian Bar here, and hopefully they'll have some answers on that.
I'm sure other questions will come up in the future, and you may be contacted on them. Thank you very much for appearing before the committee today.
We'll adjourn the meeting. We'll commence with the next presentation in five minutes.