Mr. Speaker, I rise today to speak to this bill to amend the Divorce Act, Bill C-232. The bill would amend the Divorce Act to provide for a person to be granted custody of or access to any of his or her grandchildren. By virtue of this change, grandparents would no longer be required to obtain leave of the court to make such an application.
Furthermore, this bill would give grandparents the right to be given information as to the health, education and welfare of the child. Finally, this bill provides that these amendments to the Divorce Act would be reviewed by a parliamentary committee four years after coming into force.
Taken at face value, this bill appears eminently acceptable and I must admit that, as a grandmother myself, my gut reaction would be to support the bill.
After all, what grandparent would accept to be denied access to his or her grandchildren after their parents separate or get divorced? Of course, such sensitivity and feelings are only human and quite normal when, for example, they have fewer kids and they live far away, in poverty and in sickness, as the case may be.
Nonetheless, we think that this bill wanders from the primary objective, which is the welfare of the child. The emotional needs of grandparents should certainly not come before their grandchildren's quality of life.
As Madam Justice Andrée Ruffo said, it may be more appropriate to talk in terms of the rights of children to be granted access to their grandparents than the other way around. When there are children involved, the paramount criterion should be their best interests.
All in the name of commendable principles such as the rights of grandparents and the welfare of grandchildren, I can see how Bill C-232 could put the child in the middle not only of family disputes, but also of jurisdiction disputes.
Let us be quite clear on this point. Bill C-232 is inefficient if its primary goal is to facilitate contacts between grandparents and grandchildren. It may make the process easier for grandparents, but it may in turn make things more complicated when the parents are deemed to have retained parental control and there are no reasons for them to be disqualified.
Parental control, incidentally and to the best of our knowledge, is an exclusive provincial jurisdiction under paragraph 92(13) of the Constitution Act, 1867. We wonder if giving more rights to the grandparents, when there is a divorce, is not an encroachment on provincial jurisdiction.
As we know, the federal government has jurisdiction in divorce matters. In a general sense, we wonder if Bill C-232 is a challengeable extension of federal jurisdiction over divorce at the expense of provincial jurisdiction in family matters.
Other questions come to mind. What are the rights of grandparents when the parents are not married, as is now the case for 40 per cent of children born in Quebec? Federal parliamentarians must note that the continued rise in the number of children born outside marriage means that provincial family law is gradually replacing the federal Divorce Act on issues relating to child custody and access rights.
It must be understood that Bill C-232 only affects the children of couples in the process of divorcing or already divorced. Most children are not affected by divorce, while others live, as we have just pointed out, with parents who are not legally married.
This bill may not be as helpful to the grandparents who want access to their grandchildren as it purports to be.
Furthermore, the parents or people with legal custody of a child have primary responsibility for looking after the child's best interests. In abuse cases, judicial remedies may be authorized by provincial legislation. Provincial legislation also applies to all family situations, even in the absence of marriage leading to divorce.
After reviewing this bill, we fear that, despite honourable intentions, C-232 only compensates for some provinces' reluctance to legislate in this area.
As for Quebec, it passed legislation on this issue 14 years ago. Indeed, the Quebec civil code, through article 611, allows grandparents who suffer a prejudice, in terms of their relations with their grandchildren, to ask the courts to examine the details of these relations.
Article 611 of the Quebec civil code provides that fathers and mothers cannot, unless they have a major reason to do so, interfere with the personal relations of a child and his or her grandparents. Unless there is an agreement between the parties, the details of these relations are defined by the court.
This article from the Quebec civil code is not only comprehensive, it is also clear. It can be invoked before or after a divorce, in the case of married people, as well as in the case of common-law couples, single-parent families, or after the adoption of a child by a new spouse.
Quebec's legislation is already far ahead of this unbalanced bill. As we said earlier, the federal government does not have to compensate for the reluctance of other provinces to legislate.
We have problems with another provision of this legislation. I am referring to the fact that grandparents would have the right to make inquiries as to the health and education of a child. Based on Quebec's legislation on personal information, we thought
that the protection of information on health and education also fell under provincial jurisdiction.
It goes without saying that the parent of parents having custody of a child must not be allowed to break the contact between that child and his or her grandparents. The underlying principles of Bill C-232 are closely related to those of the Quebec civil code. However, the Divorce Act may not be the most appropriate tool to grant and recognize rights to grandparents.
I will conclude by saying that, as regards Quebec, we fear Bill C-232 would accentuate the existing double jurisdiction concerning family law. As you know, the federal Parliament has exclusive jurisdiction over marriages and divorces, while Quebec can legislate wedding celebrations, property and civil rights, marital regimes, adoptions, separations from bed and board, child custody and so on. This double jurisdiction not only leads to inconsistencies in family law, but also prevents Quebec from making an appropriate reform and creating a unified family court. Bill C-232 might worsen the situation for Quebec.
The Bloc Quebecois feels that this bill is premature and inappropriate. I want to point out to the hon. members that we only wanted to question the merits of that legislation, not necessarily oppose it.