Mr. Speaker, 1994 was declared the International Year of the Family. The theme as defined by the United Nations is Family, Resources and Responsibilities in a Changing World.
In making this proclamation, the United Nations outlined some basic principles. The first of these principles is that the family is the basic unit of society and therefore deserves special attention.
The widest possible protection and assistance should be given to families so that they can assume their responsibilities in the community. Another principle is that families take different forms and serve different functions from one country to another and within each country.
This is very important. Changing social and economic conditions are bringing to the fore new issues affecting families, particularly children. One of the realities that cannot be ignored is that many marriages in Canada now end in divorce. A related fact is that many children are directly affected by these divorces although it is difficult to determine the exact number because there is no official information about out of court custody decisions. We know, for example, that in 1990 approximately 34,000 children were involved in divorce cases in which the courts made custody decisions.
From a social policy perspective, this means that Canada's laws, policies and programs should take into account the many diverse needs of families today. More specifically, our laws restricting divorce should reflect our society's changing needs and continue to ensure that the best interests of the children are met. That is why I am pleased to be given the opportunity to comment on Bill C-232 which proposes amending the Divorce Act to promote grandparent access.
I want to start off by saying very clearly that I believe the relationship between grandparent and grandchild is something very special, especially after the parents divorce. Grandparents can be an important resource to children. They can offer care and support and buffer children from the many changes and stresses associated with family breakdown. I therefore agree wholeheartedly with the basic principle that a child's continued contact with grandparents, indeed with all members of the child's extended family, is something that very often is in the best interests of the child.
I emphasize that the best interests of the child test is a 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.
In applying this standard it is important to acknowledge the writings of sociologists and psychiatrists on the subject of the effect of divorce on children. Researchers generally agree that the breakdown of the parents' marriage brings about a major crisis in the lives of most children and adolescents. It is an acutely stressful event for a child. Equally important is the fact that researchers also highlight the detrimental effects on children of ongoing conflict and litigation.
There is widespread agreement that the most tragic and clinically vulnerable children are those who become the object of continued acrimonious custody or access battles. It is not difficult to imagine how upsetting such a court battle would be to a child with the stress, uncertainty and loyalty conflicts that
would accompany the litigation and with the child right in the centre. I bring this up because Bill C-232 seeks amendments to the Divorce Act which effectively would provide grandparents with independent standing to apply to the court for access to, or custody of their grandchildren at the same time the grandchildren's parents are getting a divorce.
This bill proposes that grandparents be allowed to make a custody and/or access application under the Divorce Act without being required to obtain leave of the court. Currently under the Divorce Act third parties, including grandparents, must have leave of the court to make an application for custody of or access to any or all children of the marriage. The requirement that grandparents obtain leave of the court to make application ensures that only where the truly serious disputes exist will recourse be made to the courts. In other words, it discourages the use of litigation.
I am concerned that despite its good intentions this bill, which would allow grandparents to make a custody or access application under the Divorce Act as a right, could have the effect of encouraging grandparents to formally apply for court imposed access orders. I realize this is not its primary goal; rather it is an attempt to formally recognize a grandparent's legal right to access. It may however have the unintentional effect of increasing custody and access disputes and promoting litigation. I do not believe that would be in the best interests of children because, as I mentioned earlier, the best interests standard means focusing on the needs of children rather than on the rights of adults.
I want to emphasize that I do appreciate the grandparents' overwhelming desire to ensure that they continue to see their grandchildren. We have to remember however that formal court intervention is not always required and should not be encouraged.
Surely it is preferable to encourage that arrangements for grandparent access be worked out on the basis of trust and co-operation. I believe that in many cases, indeed in the overwhelming majority of cases, regular contact between grandparents and children of a broken marriage can continue without the need for court intervention.
In my view, marriage breakdown is a traumatic personal experience for the parents and children. Children who are already experiencing the distress of a parental divorce do not need to be additionally upset by a courtroom dispute between the parents and grandparents concerning grandparent access rights.
Another important point which should be made is that it should be recognized there are limitations as 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 would occur without further problems. Unfortunately this is not the case.
A court cannot order people to change their attitudes, feelings or manner of relating to one another. In reality, attempts to enforce an access order often lead to more conflict and often even more litigation.
As I said earlier, I support wholeheartedly the idea that children should have continued and ongoing contact with their grandparents. However, I fear that Bill C-232 could have the effect of encouraging grandparents to formally apply for court imposed access orders. I do not think that would be in the best interests of a child. I truly believe there are more efficient and less stressful ways to work out post-divorce access arrangements without the need for court intervention.
The law is a blunt instrument. A court imposed judicially enforced order for grandparent access cannot take the place of a relationship that is allowed to occur and develop naturally.
