[Recorded by Electronic Apparatus]
Thursday, November 2, 1995
.1055 
[English]
The Chairman: Good morning. Today, we have Sheila Keet, a barrister and solicitor from Vancouver.
Good morning, Ms Keet.
Ms Sheila Keet (Individual Presentation): Good morning.
The Chairman: We'll continue with Bill C-232, an act to amend the Divorce Act.
The procedure that we usually use is for you to make whatever presentation you wish with respect to this particular bill, for whatever length of time you wish. It can be from 5 to 15 minutes, or whatever. After you're done giving whatever presentation you wish on the bill, we then go with questions from the opposition parties and the government party. When they have completed their questioning, that is the end of the meeting. Please proceed with whatever presentation you wish to make to us today.
Ms Keet: Thank you.
I am a barrister and solicitor; my practice is restricted to family law. I was originally called in Ontario and I now practise in Richmond, which is just outside Vancouver.
I make this presentation primarily as a family law lawyer active in the area of grandparents' rights and grandparents obtaining custody and access to their grandchildren.
I also make this presentation as a member of both the Canadian Bar Association's family law section and the British Columbia Law Society.
I am also a board member of the Canadian Grandparents Rights Association, and I think you've had some presentations with respect to their position.
I would like to emphasize first that when we speak of the rights of the grandparents, we're really talking about the rights of the child to a relationship with the grandparent. These are not rights, in my view, that biological parents or the state should be entitled to remove or reassign unless there are serious reasons detrimental to the well-being of that child.
We need only to look at the province of Quebec and its provincial legislation, in my view, to see how to do it right. Article 611 of the Civil Code of Quebec states:
- In no case may the father or mother, without a grave reason, interfere with personal relations
between the child and his grandparents.
.1100
In the United States, each and every individual state, all of which have jurisdiction over matrimonial legislation, have enshrined in their statutes the rights of grandparents and grandchildren to a continuity of their relationship, during both the marriage and the relationship in some instances - which is a little unusual, and perhaps reflective of the Quebec position - and also, in all instances, the rights of the grandparents subsequent to a separation or a divorce.
In Great Britain, the same situation pertains. Family law legislation recognizes the rights of grandparents and grandchildren to an ongoing relationship after the separation or divorce of the parents and has ensured this continuity by, again, enshrining it in their legislation.
What is important here is that Quebec, all of the United States, and Great Britain recognize the inherent rights of the grandparent-grandchild relationship. The onus is on the individual or parent who seeks to exclude the grandparent from the life of the child to provide sufficient evidence to a court to prove that it is in the best interests of the child to restrict that contact, which is quite contrary to the situation outside Quebec in Canada.
It is also significant to note that in the jurisdictions there is no evidence of a floodgate of litigation initiated by parents seeking to keep alleged interfering, harassing grandparents away from their children. It just does not exist. I have not been able to find any research or statistics to reject a supposition that far less litigation arises where grandparents have a right to access than where they have to seek standing in a court to have that right affirmed.
I would point as well that subclauses 3(1) and 3(2) of Bill C-232 allow Parliament the unusual statutory right to review the effect of this legislation within six months' completion of what appears to be a four-year trial run of this amended legislation. If those of us in support of the bill are proven wrong and the amendments to the Divorce Act are not workable, you can terminate those proposed revisions. If the legislation requires administrative tinkering, then that can be accommodated as well.
It cannot be emphasized strongly enough that this amendment simply allows a grandparent standing in the event that the dissolution of the marriage of their grandchild's parent is eliminating them from that child's life. It establishes that the child is entitled to as much contact with a grandparent as is in that child's best interests. It allows for a grandparent with court-ordered access to make inquiries about the well-being of that child. That, I would suggest, is what a reasonable and caring society wants for its children. It eliminates the need for a grandparent to initiate a costly and separate action just for permission to tell a court that they want to love their grandchildren and wish to remain in their lives.
What we have in effect now is an extra step, and it's a waste of time and it's a waste of energy. I would like to refer you to section 16 of the Divorce Act. This addresses the factors that a court shall, that is, must take into consideration when making an order regarding access by an individual to a child. Only the best interests of the child of the marriage, as determined by reference to the condition, means, needs, and other circumstances of the child, will be taken into consideration. Children need their grandparents, more now than ever in a world that's falling apart around them as a result of the separation or divorce of their parents.
There has been a significant amount of contemporary research into the role today's grandparents play in the life of a child. It's a sad statement of our times perhaps, but a great deal of academic energy has gone into documenting, believe it or not, the role of grandparents and their significance in the lives of grandchildren.
One study was authorized by two Americans, Kornhaber and Woodward in 1981. It identifies the following roles for contemporary grandparents: that of an historian - that is, a link with the cultural and the familial past of the family; that of a role model, an example of older adulthood; that of a mentor, a wise adult experienced in life transitions; that of a wizard, as they call it, a master of story telling, to foster imagination and creativity; and, finally, that of the ``nurturer greatparent'', an ultimate support person for familial crises and transitions.
.1105
These authors also state that the complete emotional well-being of children requires that they have a direct, not merely derived, link with their grandparents.
Of course none of this is news to grandparents, but in my view it behoves the federal government and the House of Commons to acknowledge that grandparents are not legal strangers who should be required to demonstrate to a court that they have a right to ask that the bond with their grandchildren be allowed to continue.
Our divorce laws - and, for that matter, our provincial legislation - must recognize the obligation to enact, enforce, and protect the grandparent-grandchild bond. For grandparents the system is too slow, too expensive, and just too difficult.
This minor amendment to the Divorce Act removes a roadblock to grandparents seeking ongoing contact with their grandchildren. It provides no guarantees to grandparents. It poses no Draconian threat to the rights of parents.
This brings me to the position presented to you on behalf of the national family law section of the Canadian Bar Association through Steven Andrew, the chair of the section.
First let me point out that his September 18, 1995 correspondence represents the view of only ten members of that section. It was done as a reaction to a request by your committee for input essentially after the drafting had been done and without involvement by the CBA.
To the best of my knowledge, there has never been any national debate or exploration of the issues of grandparents' rights by the Canadian Bar Association family law section internally or by way of a Canadian Bar Association exercise involving the family law practitioners across this country. There probably should be, and it might be appropriate to involve the CBA family law section in the review anticipated in subclauses 3(1) and (2) of Bill C-232.
I've heard Mr. Andrew interviewed on CBC Radio and viewed a television interview with him on the day following his submissions to your committee. I respect Mr. Andrew's professional ability and his reputation, but I think it is noteworthy that he stated that in his fairly lengthy career as a family law lawyer he's had involvement in only two grandparents' rights cases.
For practitioners with more extensive involvement in that area, there are requests on an increasingly frequent basis to assist grandparents who have no alternative except to seek legal intervention to attain an active involvement in their grandchildren's lives.
This is a direct result of the significantly altered society that exists in this country compared to what existed even two decades ago. A little less than half of all of today's marriages can be expected to end in divorce. Literally, thousands of families dissolve through divorce in this country every year. Thousands of children are affected by marriage breakdown, and we have no statistics to determine how many are affected by the dissolution of common-law or less formal relationships.
We have court-appointed family counsellors; we have mediation; we have school-and church-affiliated counselling; we have psychiatric treatment centres; we have foster care. We have every imaginable variation of support services for families in this country, yet the most obvious support service, the grandparents, have to come to court and seek standing in order even to be heard.
Many times in this country children are removed into care without any consideration being given to the grandparent as the most logical alternative to foster care, and these grandparents have to fight in order to find out where their children and their grandchildren may be, and then have to fight again in order to have some sort of standing to participate in what will happen to those children. I would suggest a significant portion of social services dollars across this country could be eliminated by a greater involvement of grandparents.
.1110
Children who come out of family breakdown are nearly always adversely affected, and all too frequently they're damaged and they're dysfunctional. I submit, with the greatest of respect to my colleague Mr. Andrew, that the Canadian Bar Association proposal that the custodial parent determine who will have access to the child compounds the children's problems and the family's problems by allowing the children to become tools in punishing their spouses by not allowing the children to have contact with the other spouse's parents. I see this in my practice every day. Children and grandparents pay the price for that sort of negative control in litigation following marriage breakdown.
In my experience grandparents do not start frivolous and vexatious applications. It is rare, in my experience, anyway, to see legal action taken by a grandparent that was not tearfully and agonizingly considered. These are people who have already raised their children. They're often living on fixed incomes, and they are at or approaching a time in their lives when they expected to be enjoying the fruits of their labours. As one grandmother in British Columbia, a member of our organization, said recently about a five-year-old grandchild she now has custody of and who is in kindergarten - the grandmother is currently approaching her 25th wedding anniversary - ``I expected to celebrate my silver anniversary on a Caribbean cruise, not in Disneyland'', which is where they're going.
How can this committee or Parliament oppose a bill that would allow parents the right to appear before a court in a divorce action and to say, I love these children, or this child; they need me; let me be there as a historian, a role model, a mentor, a wizard, and a nurturer?
This amendment to the Divorce Act is absolutely necessary. In my view it does not go far enough, but it will set an example and provide leadership in encouraging needed changes in provincial legislation, which of course is not within the scope of your inquiry. The state of some of the provincial legislation across this country is appalling. For instance, if the parents choose not to proceed by way of a divorce, or were never married, there is no provincial legislation in Alberta that would allow them even to get before a court in order to initiate any kind of an action for ongoing contact with their grandchild. I think it behooves the federal government at least to allow the Divorce Act to compensate and to provide some leadership.
As a family law lawyer with a practice that deals with these problems on a daily basis, and as a member of the law society of B.C. and the CBA, I ask that this bill be approached and passed, please, in a non-partisan manner. I certainly appear before you as a non-partisan witness on this bill. There are issues too important to be defeated by virtue of which party initiated the bill. I ask you in your collective wisdom to give it your stamp of approval and allow grandparents to get on with the job of grandparenting in situations in which they are most direly needed.
The Chairman: Thank you, Ms Keet. I assure you the committee looking into it, the justice committee, is an all-party committee, with members from the Bloc Québécois, the Reform Party, and the Liberal Party. We're looking at this bill to see the value of the bill and how it may or may not fit into the existing legislation. It is not a partisan matter and we're not looking at it in a partisan manner.
I can indicate to you that a concern I certainly have is the one about the constitutionality of some of these amendments. But that's a matter that will be brought up or that I can deal with later.
Mr. Ramsay, ten minutes.
Mr. Ramsay (Crowfoot): I would like to thank you very much for your presentation.
Of course I support the bill. There's talk of amendments to the bill, but I support the direction the bill is going in. I will, of course, be voting in favour of the bill.
.1115
As far as the constitutionality of the bill is concerned, Mr. Joseph Magnet, who is a professor on constitutional matters, appeared before our committee. I have a letter here in my hand in which he states that, in his opinion, as framed, the proposed amendments make no significant departure from the traditionally understood extent of Parliament's jurisdiction in relation to divorce.
Do you have any concerns about the constitutionality of this bill?
Ms Keet: Absolutely none. I understand that Professor Magnet has made those presentations to you. He's certainly in a far better position than I to make a determination of the constitutionality with respect to the bill, but it departs very little from the bill itself, apart from providing standing to grandparents.
I cannot see that is an erosion in any way on provincial powers with respect to some areas of support, custody, and access. That is a shared responsibility. Where there is a divorce action, then clearly it comes within the purview of the federal government such that it can also be dealt with within the purview of the provincial government.
Mr. Ramsay: Also, I wish for the sake of this bill that it had been brought forward by the government side, to be very frank. That's because I think the chances of survival would be far greater, perhaps with amendments. Nevertheless, I'm hoping that this committee can recommend to the government that this bill should survive, at least with amendments, and become part of the Divorce Act.
Of course, you didn't hear Barbara Baird from Fredericton, New Brunswick, testify this morning. She indicated clearly that under their provincial statutes, grandparents do have access to the courts; they don't have to ask for standing.
I was pleased to hear what she had to say about some of the speculation and theorizing as to the problems that this bill will create. This concerned complexity and grandparents making representations and so on in a highly emotional set of circumstances that may not be conducive to the best interests of the children. Her testimony indicated very clearly that, over the last ten years since their provincial law was passed allowing for access by grandparents, none of these problems have arisen.
I hope that will dispel some of the concerns some of us may have had as a result of suggestions made in earlier testimony. This includes the gentleman who appeared before our committee and submitted the letter from the family law section of the Canadian Bar Association.
It seems that the legal minds who have appeared before the committee are more concerned about this amendment creating a problem for them. They're not directing their concerns to the best interests of the child. They're more concerned about the problem of having another party enter into a divorce proceeding and what that's going to do for them in dealing with it. I hope my impression of that is not accurate, but that's the impression I've been left with nevertheless.
I'm interested in the statistics you have from other jurisdictions, including those states in the United States that have such a law. You say here that at least some of the social services requirements and costs could be eliminated as a result of involving the grandparents. I was very interested in that.
Could you expand on that a little bit? Is there any support from the social services department, which should be vitally aware of the plight or the best interests of the child, if I could put it in those terms, when a divorce or split-up occurs within a family? Have they supported the direction this bill is going in? Could you comment on that, please?
.1120
Ms Keet: To the best of my knowledge they have never even been polled with respect to their position, which is probably unfortunate.
The rights of grandparents, even though they're inherent, have really come to the fore only within perhaps the last decade. Certainly in the last five to six years it has come to the forefront of the media coverage when it comes to the issues of children.
We are starting to cross boundaries here. It is always under provincial legislation when children are taken into care. Those are the situations I was referring to, and that is not necessarily the result of a divorce.
From what I have been able to determine from the grandparents who come to see me on a frequent basis, it is not at all unusual that social services doesn't even think about the grandparents - or the aunts and the uncles for that matter - when they are looking at the placement of a child who needs to be removed for whatever reason from one or both biological parents. As a general rule it is just not even taken into consideration.
Mr. Ramsay: Well, how then do you draw your conclusion that some of the involvement of social services could be eliminated? I think that would come from the people charged with the task you have just described. It falls upon social services, when they have to intervene and apprehend a child whose best interest is not being met.
Ms Keet: Well, certainly far fewer taxpayers' dollars would be paid out to keep children in therapy and in homes other than their own if the immediate family, particularly the grandparents, were considered as caregivers in situations in which children have to be removed.
I am frequently contacted by grandparents who discover after the fact that a child has been removed from their own biological child's home by virtue of drug addiction, alcohol, violence, or whatever. It may even be in another jurisdiction or another municipality. The grandparents who discover this and make inquiries about the child are often not even told by social services where the child is. It's called confidentiality.
Social services in this country frequently simply eliminate the grandparents. The grandparents have to actively seek standing in the courts or some standing within the social services milieu in order to even have contact with the child, never mind taking the child out of the foster home and into their own home.
Mr. Ramsay: What you are suggesting to me is that the social services may be a bar to the contact of grandparents with their children in the cases you've described. Is that your conclusion?
Ms Keet: All too frequently, the grandparents I have contact with view social services almost as the enemy. It is a very unfortunate situation. I have no statistics to tell you how often this may occur, but it seems to me that almost to a person the grandparents I speak with in this jurisdiction - and in the Ontario jurisdiction when I worked there - view social services as people who not only remove the child but who, probably believing that they are acting in that child's best interest, refuse to allow the grandparents or the immediate family to have contact with the child, never mind bringing the child into their home.
Mr. Ramsay: Would the social services people really be acting in the best interest of the child if they do not consider the involvement of the grandparents?
Ms Keet: No, not in my opinion.
I think it ought to be an automatic review. Automatically, social services should be looking to the extended family for the possibility of support or placement of that child.
Mr. Ramsay: You referred to article 611 of the Quebec Civil Code, which we are aware of. It seems to me that article 611 would at least be a guideline for the provincial social services agencies in those provinces. Perhaps it would alleviate some of this.
.1125
You can comment on that, but I'd also like to get to another point, which is your understanding and your knowledge of how this whole concern functions in other jurisdictions where access is there by law, in the United States and some of the European countries. That has to do with the complexity.
Does it increase complexity? Does it increase litigation? Does it cause added expense? Has it created a problem in those jurisdictions? Are you aware of any problem?
Ms Keet: No, and I've looked for that because that has been an argument. In fact, the Canadian Bar Association's argument was that this would increase litigation.
In actual fact, the reverse occurs. The litigation would have to be initiated by a biological parent who believed that it was in the best interests of the child to exclude the grandparents, and there is far less litigation coming from that source with respect to the exclusion of the grandparents than the reverse.
Keep in mind that this amendment to the Divorce Act only gives the grandparents standing. All it does is eliminate the need for the grandparent to initiate an action to prove to the court that they should be there at all. That's all it does. There's no guarantee that the grandparents will be granted access or custody in some cases. That has to be proven. A court has to take a look at the best interests of the child.
Mr. Knutson (Elgin - Norfolk): We've heard testimony from a number of family lawyers. I'll try to give you a summary of what I've heard.
One argument, which I think is quite compelling, is that they feel that involving two, three, four, or perhaps even as many as eight different grandparents, depending on what you assume about marriages breaking up or whatever.... One lawyer said that the time of divorce is probably the worst time to get them involved, because you're working with a damaged relationship anyway. You've possibly got a major battle going on between the mother and the father, and bringing in these outside parties at such a strenuous time is inappropriate to getting through the divorce and then having the relationships begin to heal or go on to some understanding.
Could I get your comments on that?
Ms Keet: Mr. Ramsay might have summed it up when he was questioning me a few moments ago. I believe that it is in the best interests of the child to have the grandparents involved at this point - maybe not in the best interests of the lawyers, but in the best interests of the child.
First, you aren't going to have a plethora of litigation and the involvement of all kinds of grandparents. As a general rule, in 95% of the divorce actions in which any family law lawyer is involved, the grandparents play a role in the background. Very often they try to walk on neutral ground, try not to take sides, and maintain a relationship with the children. I believe that grandparents have a tendency to put the children first far more often than the parents involved in the litigation themselves do. You won't have four or eight grandparents.
The only time you will see a grandparent seek standing and become involved is when they have been completely cut off from their grandchildren.
I see two, three, or four grandparents' rights issues situations a week. Almost none of those litigate.
Mr. Knutson: Let me make a side point, and then I'll come back to my second question.
I don't accept for a second that the lawyers who are coming in front of us are appearing in anything but good faith.
Ms Keet: Of course not.
Mr. Knutson: I don't think they're here in order to promote their own interest, to promote their own economic interest. They work day to day with family breakups. From their point of view anyway, they're trying to prevent a law that will make what generally is a bad situation worse. They may be right; they may be wrong. I don't know. We'll have to make a decision about that, but I think they're acting in good faith.
One other point that has been made to us is that if you take an example where a relationship breaks down.... Let's say, for example, that the father is a drug addict or an abuser and is denied access to his children. He will then go to his own parents to circumvent that and the woman will have to fight off multiple actions: one from him, one from his parents. Let's also assume, for the sake of argument, that there are limited funds, that she doesn't have the resources. She just wants the issue put to rest. Then it's unfair to expect her to be fighting with multiple parties.
Apparently this comes up far too frequently.
.1130
Ms Keet: I don't think it comes up frequently, but it comes up. I would suggest to you that when we appear before a court - and that is the issue - I have yet to see a judge who didn't pick up on that almost immediately. I have seen many judges absolutely prohibit grandparents' involvement in those cases. Alternatively, they will place restrictions on the access those grandparents have to the children if it is clear to the court the evidence shows the grandparents are acting in good faith and in the best interests of the children.
Mr. Knutson: My last point is fairly minor compared with the other two. To give the bill effect we have to give the grandparents the right to be notified when their own children are getting divorced. Some people have indicated they don't want to have to notify their parents when they get divorced. I wonder if I can get your views on that issue.
Ms Keet: I agree, frankly; and I've wrestled with that one.
Mr. Knutson: You agree with which: that they shouldn't be notified or they shouldn't have to be notified...?
Ms Keet: I agree it poses difficulty where two consenting adults agree they're going to end their relationship but someone has to tell their parents on them. I'm not comfortable with that; I'll be perfectly honest with you. On the other hand, I'm uncomfortable with the number of grandparents I see who don't find out until the children have been spirited away and have jurisdictional difficulties with getting some kind of standing for ongoing contact with the children.
No, I don't agree with the idea that parents have to be notified when their adult children decide to end their marriage. I'm not comfortable with that.
Mr. Knutson: How would you advise us as lawmakers, though? If we don't put the notice clause in, I don't think the bill has much effect.
Ms Keet: I disagree. I think without the notice clause grandparents who were involved with their grandchildren are going to determine in pretty quick order whether or not they're being excluded from those children's lives because of difficulties within that family. I don't think it takes a notice provision to alert grandparents to the fact that they stand to lose contact with their grandchildren.
Mr. Knutson: So leave the notice provision out of the bill: that is your recommendation.
Ms Keet: As far as I'm concerned, yes.
The Chairman: I believe Ms Torsney was sharing time with Mr. Knutson.
Ms Torsney (Burlington): Thank you.
You just said the problems arise when the grandchildren have been spirited away and they didn't realize their adult children were getting divorced.
Ms Keet: That can happen.
Ms Torsney: You said those are the ones that are most complicated, because they get into jurisdictional disputes...and the fact that they didn't know their kids were getting divorced and they were going to have access problems with their grandchildren.
Ms Keet: No, that's not what I said; and those are not the most complicated.
I don't believe, frankly, adults ought to have to tell their parents whether or not a relationship is dissolving. It is problematic when grandparents live a distance from the children, the biological parents separate, the children have gone with the other spouse...and then choose to eliminate the grandparents. But that's one of many wrinkles. Just about every grandparent who walks in the door with a problem with custody or access will have a very different view and a very different story. There are no generalizations.
Ms Torsney: You mentioned England and the United States have these provisions. Is it not jurisdictional and constitutionally valid, then, because of the way their countries are made up, that we should be doing this at the provincial level, not the federal level?
Secondly, do grandparents currently have rights they don't know they have? The problem isn't really the whole standing issue. That's one small part of any of the legal proceedings around a divorce. It's the fact that they didn't know they should have been involved, or they didn't know they had access to a process. The children get divorced, and from what we've heard from a lot of the testimony from the supporters of this bill, the problems arise six months down the road, when they realize they can't get access. They had a good relationship before. They even knew their kids were getting divorced. But suddenly there's a bad situation and they need to go back to the court six months later to get access.
.1135
Ms Keet: First of all, I don't think it's something that should be left to the jurisdiction of the provinces because the Divorce Act comes within the federal purview. I absolutely believe the Divorce Act is the area in which most married parents determine custody and access and the arrangements that are going to be made for their children. It will be made under that legislation, not under provincial legislation.
Secondly, the provinces definitely ought to have corresponding legislation, because if the couple is not legally married or chooses not to initiate a divorce, if they are going to go to court to make these kinds of determinations with respect to their children, it has to be done through provincial legislation. I think we need an amendment to the federal legislation, and we also need enhanced provincial legislation. As matters have evolved, it would appear to me that the provinces do tend to follow when there is strong federal legislation, even though they may do so perhaps a little slowly.
I wouldn't want to be in Alberta right now if I were the grandparent of a child of unmarried parents. I would have no recourse through the courts.
As for your question respecting whether or not grandparents know they have rights, many of them do not know they have rights. These are older people who have never been involved in the court system in their lives. Perhaps they have never even had a divorce in their families. It isn't until you find you're cut off from your grandchildren that you begin to make inquiries about what rights you have. Often, that is when they walk into my office to determine what rights they do have. But I never recommend litigation as the foremost solution in these kinds of situations.
Ms Torsney: So where do we go in terms of fixing the problem for both grandchildren of married children, grandchildren of divorced children, and grandchildren of unmarried children, and everything else? Do we explain to the Canadian public the value of grandparents and reinforce that? [Inaudible - Editor]...with the social services at the provincial level? Listen, I have parents who tell me social services is the enemy; it's not just grandparents who are saying that. We need to refocus on what those linkages are, on why they are so important. That would go a million times further in fixing the situation than this bill will, because even with this bill a lot of grandparents aren't going to know what their rights are or that they have these rights.
Ms Keet: I think both things should happen. There should absolutely be more education. It's a sad, sad situation in this country when we have to go out to educate people about the value of grandparents' ongoing relationship with their grandchildren, but I guess that's where we are. At the same time, that doesn't assist the grandparent who has been cut off and is faced with angry, warring spouses who are going to hurt the other spouse by denying access to a grandparent. All the education in the world is not going to assist them. Perhaps time will erode that.
Ms Torsney: But the grandparent has that right now.
Ms Keet: No, not entirely. With respect to their grandchildren, grandparents do not have rights to standing in court in every province in this country, unless it comes under the Divorce Act or unless the provincial legislation actually allows that kind of standing.
Mr. Ramsay: Just to continue, we heard from Barbara Baird this morning. She has her masters degree in family law and has practised for pretty close to twenty years, as I understand it from her testimony.
Ms Keet: I've read some of her work.
Mr. Ramsay: We asked her about the notification requirement. There is none in New Brunswick law, but that did not seem to impede the exercise of the law by grandparents.
Also, with regard to the knowledge of grandparents' rights, I think you're right when you say that until something happens with their children and a divorce occurs, no one has reason to need to know that right. They don't seek out that kind of knowledge. But we have to have that right there so that it is there if they need it.
.1140
There are organizations springing up across the country and speaking out about the grandparents' rights. I think they could perhaps be the conduit many grandparents could turn to in terms of understanding what their rights are when they're faced with this kind of a situation.
We have before the House - and this is a bit of an irony to me - a motion stating that in the opinion of the House, the government should consider designating the second Sunday in September of each year as ``Grandparents' Day'' in order to acknowledge their importance to the structure of the family in the nurturing, upbringing, and education of the children. I'm going to support that motion, of course, but it seems ironic to me that we would be placing something like this on the statutes. We are thereby creating the pretence that we recognize the importance of the grandparents to the family, while at the same time we're concerned about certain aspects of this bill that would give grandparents a kind of legal standing before the courts to allow them to maintain their contact and to allow them to continue to provide the benefit recognized in this motion to their children. I'm just putting that on the record for those purposes.
Based on the information you have with regard to the laws in the United States and Great Britain, and so on, I guess I would ask you if they have notification rights. Are you aware of those?
Ms Keet: I don't know.
Mr. Ramsay: You don't know whether or not they have notification rights.
Ms Keet: No.
Mr. Ramsay: All right.
I thank you, Mr. Chairman.
Ms Phinney (Hamilton Mountain): I have two questions, and I'll ask them both now so you can give as much time as you want to either one.
I believe you stated that you support Bill C-232, but you don't think it goes far enough. Could you tell us what you think should be included?
You said you didn't think there were any constitutional problems, but do you think we can give more rights to one set of grandparents than to another set of grandparents? I'm saying this given that when the parents of the children are still married, they can decide whether the grandparents have access or do not access. But when there is a divorce thrown in there, you're saying the grandparents should automatically have rights. Constitutionally, I think there might be a problem there. So maybe you could comment on that.
Ms Keet: In terms of the bill not going far enough, again I have to refer you back to the Civil Code in Quebec. In Quebec, and in my personal opinion, the correct approach to this is that the grandparents have inherent rights until it can be demonstrated they should be excluded because of the best interests of the child. I believe this inherent right should be enshrined in the statutes. That's why I say it doesn't go far enough. I think it should be clear, at the provincial level and at the federal level, that the grandparents will be automatically guaranteed ongoing contact with their grandchildren unless there is a very good reason why they should not be.
That deals with your first question, but I'm not entirely sure.... What's your second one?
Ms Phinney: Constitutionally, can one set of grandparents have more rights than another set of grandparents?
Ms Keet: Constitutionally, no. As a general rule, I think the grandparents.... I have seen two sets of grandparents actually collaborate in an action in order for the both of them to challenge because both sets of grandparents have been cut out.
Ms Phinney: I'm talking about a divorce situation versus a non-divorce situation. Parents of children can decide they don't want one set of grandparents to have access. You're suggesting that if you are a grandparent in a divorce situation, you have more rights than those other grandparents because you can go through the courts to get access whether the parents want it or not. You're saying to one set of grandparents that they have these rights, but to the other set of grandparents you're saying they don't have as many rights.
Ms Keet: If I understand you, you're saying there is no dissolution of the relationship and one set of grandparents has been excluded. Is that what you're saying?
Ms Phinney: Yes. The parents of these children can decide they don't want one grandparent to see those children.
Ms Keet: Yes. With the exception of Quebec, they can do that under all of the existing laws in this country, both federally and provincially.
.1145
Ms Phinney: Except if there's a divorce. Then that grandparent can go to court and get rights. But if there's no divorce -
Ms Keet: No.
Ms Phinney: - the grandparents can't go to court.
Ms Keet: They can still go to court under provincial legislation if that provincial legislation exists; for example, in both Ontario and British Columbia, which are the only two jurisdictions I'm very familiar with. There is provincial law in British Columbia. Under the family legislation, any individual can apply to have access to a child. Those parents maybe -
Ms Phinney: Can we at the federal level make a law that includes only one type of grandparents, the grandparents of divorced couples?
Ms Keet: Constitutionally, I don't believe that the federal government can deal with anything except the dissolution of a relationship pursuant to divorce. All other scenarios are the constitutional responsibility of the provinces, as I understand it.
The Chairman: Mr. Ramsay, do you have any other questions?
Mr. Ramsay: No, I'm fine.
Ms Torsney: There has been some debate as to whether this bill is legitimately called grandparents' rights or children's rights, In a lot of your testimony you really alluded to that, that children have a right to access to their grandparents, that children have a right to have that nurturing role and that wizard, and everything else. Perhaps it's in the wrong direction, and it shouldn't be the grandparents who have the rights inherently according to Bill C-232 the way it's set out, but it should be that children have rights to their grandparents.
Maybe the approach should be, for all children in Canada, that we will guarantee at the federal level that they will have a system whereby they can have access to their grandparents.
Ms Keet: Constitutionally, would that be possible? I think not.
Ms Torsney: Constitutionally, then, we can guarantee at a federal level that only the grandchildren of divorced parents can have access versus me and my grandparents when my parents are still married. I see that you're setting up an inequality there.
Ms Keet: That's a constitutional inequality, and I don't think it can be rectified. I think we have to work within the framework that exists, and that is that the federal government has responsibility for divorce but all other areas in terms of marriage and relationship breakdown are within the purview of the provinces.
In an ideal world, of course the children and the grandparents should have an inherent right to an ongoing contact no matter what happens with the biological parents. But our system is fragmented; it's constitutionally divided. That certainly wasn't the work of my generation, or that of my grandparents. That's the way it is. That's the framework within which we have to work.
Ms Torsney: Well, within the UN framework and in a number of other ways, we certainly have an opportunity to enact, as the federal government, rights of the child and everything else.
I also want to put on the record for you that, in a non-partisan way, there are people on both sides of the House who supported the bill coming to this committee, to find out about this. Just because we may not want personally to support it.... It is not Liberal versus Conservative or versus Reform or anybody else. People have some concerns about the process and what's going to happen. It's not on a partisan basis, and it doesn't mean that we don't care about grandparents. Some of us think there might be another mechanism. I'm not going to explain all my colleagues' views, but I just wish that there wasn't so much, ``If you don't support this, then you don't support grandparents.'' It has been made out to be a very unfair division about some of our concerns, certainly some of my concerns.
God help us. Grandparents can play a very powerful role in a child's life, and we should do everything to ensure that people know about that, the value of that, and healthy families, and everything else. But maybe Bill C-232 isn't the way to do it.
After listening to some of the discussion around the support payments issue, the task force that went out last year led by Sheila Finestone on the support payments issue, we know that the system is a mess. People are fighting in a horrific way. There are vexatious and frivolous actions against divorced parents on a continual basis, from one parent to the other. In Toronto it was the most disheartening thing I've ever had to sit through as an MP.
I really believe that some concerns will be exacerbated by this bill, that parents and grandparents will use it to bring actions against single moms who don't have the wherewithal to fight off the action, and that there will be some real problems with this bill. It's an ugly situation.
.1150
Ms Keet: The one thing I would like to emphasize is this bill only gives the grandparents standing to apply. The judges deal with these things every day, and the perspective of the bench is if you are trying to interject yourself in order to exacerbate the problems - it will ultimately have a very negative impact on those children - you're not going to get standing.
Ms Torsney: That's why we have the leave provision.
Mr. Knutson: We've had some evidence that said the threshold that's in the current law is perfectly appropriate; it helps the courts sort out cases where the grandparents really have no business applying. What's so bad with the current law, given there's a preliminary application process the grandparents have to go through before they get standing?
Ms Keet: One of the worst things about it is that it's expensive, it's costly, and it's very time-consuming. Contrary to the position that was taken by the CBA.... I heard the CBA representative state, well, it's only about another $1,000 added to the cost of litigation. When you're on a fixed income, that $1,000 is a lot of money.
You end up having to go through the same process anyway. You get leave, and then you still have to demonstrate to a court that you have the right to be there and the right to have ongoing contact with the grandchild.
It seems to me it's an extra hurdle thrown in the way of these grandparents. It makes no sense. And if the couple choose not to participate in the divorce action, if they choose not to have a divorce, or worse yet, were never married, where do you stand?
But in terms of a divorce action, no, I don't. The current standard is too costly and too cumbersome, and it doesn't recognize the inherent right of the child to that grandparent. The grandparent ought to have an inherent right to be there if they're cut off from their grandchildren.
Mr. Knutson: What it recognizes is that for some families it's in the best interests of the child to maintain a relationship with its grandparents and in some cases it's not. It puts a thousand-dollar test - I don't know if that's the cost - or it puts a threshold that needs to be satisfied at a cost of about $1,000 dollars, so we can get rid of some of the cases where grandparents don't belong in courts...such as the parents of a father who has been an abuser, such as grandparents who may never have had a relationship but simply for the wrong reasons want to come forward now.
Ms Keet: I disagree. I'm sorry, sir. At it exists now, all a court determines is whether or not they should have standing. They don't look into the merits of the case. They don't make a determination on whether or not that grandparent ought to have contact and what evidence will be provided. That isn't what a court looks at, not when it's testing the standing.
Mr. Knutson: What criteria do they use, then, to determine whether they should get standing? Don't they see whether there's a prima facie case?
Ms Keet: Only in the most superficial way. Standing is not an in-depth look at the family situation or the evidence.
Mr. Knutson: It's a very low threshold they have to meet anyway - is that what I'm hearing - this preliminary test? If they put forward even a modicum of a case, then the courts are likely to give them standing at the main hearing?
Ms Keet: If they have any modicum of a case, as you put it, they likely will be granted standing. It's a costly exercise that simply forces them to spend money and litigate in an action separate from the divorce action in order to be included in it only with respect to their contact with the child. A court that is involved with the actual divorce action is probably more likely to be able to determine whether or not that grandparent should be involved in the process than a judge who simply determines whether or not they have to have standing. The same exercise can be done by the court having jurisdiction over the divorce action.
.1155
Mr. Knutson: I don't want to beat a dead horse here, but saying a court that's dealing with the divorce can decide whether they're involved in the process means you're asking us to decide in law in every single case that they have a right to be involved in the process. They have a right for standing in the main divorce action.
Ms Keet: Certainly.
Mr. Knutson: So if we do what you're suggesting we do, they're going to be there every single time.
Ms Keet: No, they are not.
Mr. Knutson: That's assuming that every single time they want to be there, they will be there. This is opposed to having to go through what you indicated is a fairly low test or threshold, albeit with a cost of $1,000. I'll take your word that's what it costs.
Ms Keet: No, that's not my determination. As far as I'm concerned, it will probably cost more than that. That was just what the CBA determined as a sort of national average.
But I disagree. The grandparents' involvement in that divorce action is going to be very narrowly defined. It will be restricted to the evidence with respect to the grandparents having contact with the grandchildren. They will not be included in any of the other issues or any of the other relief that one parent would be seeking against another.
The Chairman: I take it that these particular applications for standing are simply chamber applications on affidavit evidence, are they not?
Ms Keet: Initially, yes, unless it goes to trial.
The Chairman: At that stage, the judge determines whether the application is frivolous and vexatious and whether the person should get standing. Right?
Ms Keet: Again, it depends. A chamber's master or judge can only provide interlocutory relief. They can determine at that point - they often do - that there is a legitimate reason that, in the interim, the grandparents should or should not be involved on a regular basis with the children.
The other method they have of making this determination is to send it out for what we call in British Columbia a section 15 report. This is some professional involvement outside the family that can advise the court as to whether or not it is in the best interests of the children to have a grandparent involved on an ongoing basis. That can occur as well.
The Chairman: So what happens in this particular preliminary application is that the grandparents can get a fairly good idea, or at least a lawyer can advise them after the application, as to whether they would have a chance at an access or custody application. So even though this might cost a thousand dollars, it could save them many thousands in the future by not having to go through protracted hearings.
Ms Keet: Oh, frequently. You get a taste, if you will, of how the court is going to approach your client in these situations.
The other thing I can tell you is that family law lawyers in these situations don't take their clients into court without advising them in advance as to whether or not they should even be there. For instance, say I have grandparents who are seeking access to their grandchildren. If the biological parents are together and say in a unified manner that they don't want them involved with their children, then I'll almost never recommend they go to court.
The Chairman: Thank you very much, Ms Keet, for presenting your views here today. Someone with your experience is very much appreciated. I'm sure you have helped the committee. Thank you very much.
Ms Keet: Good luck in your determinations.
The Chairman: The meeting is adjourned.