Mr. Speaker, I rise to speak on this issue as someone who grew up without knowing her grandparents because her grandparents were in another country. I have observed, as my brothers and sisters have had children, the special relationship that has developed between my parents and my nieces.
Bill C-232 can be supported in principle for attempting to address a very distressing situation. The relationship between grandparent and grandchild is something very special. Particularly after their parents' divorce a grandparent can be an important resource to children, someone who can offer care and support and buffer children from the many changes and stresses associated with family breakdown.
Research confirms the importance of the grandparent-grandchild relationship. Arthur Kornhaber, a noted child psychiatrist and researcher has conducted three years of lengthy, in depth, personal interviews with some 300 children and as many grandparents. His conclusion is that: "The bond between grandparents and grandchildren is second in emotional power and influence only to the relationship between child and parent". He has stated that a healthy and loving bond between grandparents and grandchildren is necessary for the emotional health and happiness of all three generations. This bond is a natural birthright for children, realized through an emotional attachment, a legacy bequeathed by their elders that benefits everyone in the family.
Given this very special and valuable role that grandparents play in a child's life, it is very upsetting to hear about cases where children are being denied access to their grandparents because of some very bitter disputes.
It is hoped that the situation is limited to unusual cases where the divorce has been especially bitter. However, it occurs frequently enough to warrant the formation of support groups. Organizations such as the Canadian Grandparents' Rights Association and Grandparents Requesting Access and Dignity help grandparents cope in these situations and do an admirable job.
The reality is there are cases where grandparents who wish to be able to continue to have contact with their grandchildren are being denied this contact and are forced to withdraw from their grandchildren's lives.
It is this situation that Bill C-232 proposes to address by identifying changes to the Divorce Act that could promote grandparent access. The main focus of Bill C-232 is an amendment to subsection 16(3) of the Divorce Act which currently states that a person, other than a spouse, may not make an application for child custody and access without leave of the court.
That means that currently the grandparent-grandchild relationship is accorded the same value as a child's relationship with any other third party. Grandparents must obtain leave of the court to make an application for custody or access to the grandchild.
The bill proposes an amendment that would distinguish the grandparent-grandchild relationship as a distinct type of relationship. It would give grandparents the same standing as parents so they would no longer be required to obtain leave to make such an application. Instead, grandparents would have independent standing to apply to the court for access or custody of their grandchild at the time the grandchild's parents are getting a divorce.
This is an important change to make to the Divorce Act. It would mean that the Divorce Act would formally recognize grandparents' legal rights to have access to their grandchildren.
Another important implication of the proposed amendment is that it would grant grandparents who have strong legitimate interests in their grandchildren greater leverage in their negotiations with the child's parents. This new legal standing would allow a grandparent to challenge a parent who is threatening to withhold or deny access without good cause. Hopefully the threat of a lawsuit would be enough to motivate that parent to resolve the dispute.
For these reasons I rise in support of Bill C-232 and suggest that we should applaud it for attempting to emphasize the beneficial role that grandparents may play with respect to their grandchildren. However, I must say that there are some aspects of the bill as it currently reads which must be reviewed.
First, there is concern that the bill may be over-reaching when it places grandparents on the same footing as parents for custody when the real problem is access. Consideration should be given to treating these two matters differently.
In addition to allowing grandparents to apply for custody and access as of right, the bill proposes an amendment to section 16(5) of the Divorce Act to give grandparents the same rights that this section currently provides to the parent who is granted access, namely the right to make inquiries and to be given information as to the health, education and welfare of the child.
This proposal is problematic because private and confidential information such as this is normally only available to parents. It is not clear that there are valid policy reasons to allow grandparents with access rights to obtain this information, especially since other grandparents, those with grandchildren in intact families, may have no such right.
It is also important to ask why grandparents need this right. It has to be recognized that different grandparents may have different motivations and that there is a potential for this amendment to promote further intergenerational disharmony if grandparents make use of the information they receive to challenge the custodial parent's decisions.
This part of Bill C-232 should be reviewed carefully by the Standing Committee on Justice and Legal Affairs, of which I am a member. The committee in reviewing the bill should be guided by the standard set out in section 16(8) of the Divorce Act which provides that in making any custody or access order the court should only take into consideration the best interests of the child of the marriage.
This is the standard that has come to be accepted both in Canada and internationally as the appropriate standard to apply with respect to matters relating to children. It means that laws directly affecting children should focus on the needs and best interests of the child rather than on the rights of adults.
It is this standard that the Standing Committee on Justice and Legal Affairs should utilize in assessing the other proposals of Bill C-232, such as the proposal to amend section 16(9) and (10) of the Divorce Act to include the word "grandparent" in the wording of these two provisions.
It is important that courts, in assessing whether grandparent access would be in the child's interest, continue to consider the quality of the relationship that has existed in the past between grandparent and grandchild, as well as the amount of prior contacts. Evidence about the prior relationship between the parents and grandparents, especially if it is conflictual, is arguably also very important.
In reviewing Bill C-232, the committee should also consider that while it allows grandparents to apply as of right to the courts for access to the grandchild, it does not address the problem about the high costs of these legal proceedings, costs which may very well be prohibitive to many grandparents and custodial parents.
There is another important point that must be made. It should be recognized that there are limitations to what a court order can
accomplish and what the law can do to enforce it. It would be ideal if a court order awarding grandparent access could ensure that meaningful access could occur without further problems.
Unfortunately this is not the case. The court cannot order people to change their attitudes, their feelings or manners of relating to one another. If the custodial parent continues to oppose access, the reality may very well be that attempts to enforce any access order would only lead to more conflict and perhaps even more litigation with the child caught in the middle. This can be detrimental to the well-being of the child.
It may be that there is a need to attempt to address some of the underlying fundamental problems surrounding the issue of grandparent access. The issue is closely related to other child custody and access issues and perhaps should be addressed in a more comprehensive way.
The committee in reviewing Bill C-232 may want to consider whether legislative reform alone can provide a solution to this very complex problem. Other non-legislative options that have been identified include judicial education, parenting education and improved counselling and mediation services. The committee may want to explore some of these longer term solutions to provide more services and supports to divorcing couples and their families, including the grandparents.
