SJCA Committee Meeting

SPECIAL JOINT COMMITTEE ON THE CHILD CUSTODY AND ACCESS

COMITÉ MIXTE SPÉCIAL SUR LA GARDE ET LE DROIT DE VISITE DES ENFANTS

EVIDENCE

[Recorded by Electronic Apparatus]

Wednesday, February 18, 1998

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[Translation]

The Joint Chair (Mr. Roger Gallaway (Sarnia—Lambton, Lib.): Good afternoon.

Our witnesses today are four members of the Barreau du Québec, who have come to help us in our work. I would like to welcome them here and I believe Ms. Vadboncoeur is going to start off.

Ms. Vadboncoeur.

Ms. Suzanne Vadboncoeur (Director of Research and Legislation, Barreau du Québec, and Secretary of the Committee of the Bar on Family Law): Madam Joint Chair, Mr. Joint Chair, on behalf of the Barreau du Québec, it is a pleasure for me to be here with you today at this meeting of the Joint Committee of the Senate and House of Commons on Child Custody and Access.

For the purposes of our presentation today, I am accompanied by Ms. Miriam Grassby, a private practice lawyer in Montreal and Chair of the Committee of the Bar on Family Law, Mr. Roger Garneau, a private practice lawyer and member of the Committee of the Bar on Family Law, and Mr. Dominique Goubau, Professor of Family Law at the Faculty of Law of Laval University and member of the Committee of the Bar on Family Law. I am the secretary of the Committee of the Bar et Director of Legislation at the Barreau du Québec.

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To begin this approximately 15-minute presentation, for those who are not all that familiar with Quebec's legal system, I would like to explain how the system works as compared to the system in the rest of the country.

As you probably know, Quebec is a civil law jurisdiction, a province with a civil law tradition, whereas the nine other provinces operate under common law.

This means that all federal statutes, such as the Divorce Act, for example, apply to Quebec, but that all private law matters, that is to say relations between individuals and between corporations and individuals, are governed by the province's own statutes, but in particular, first and foremost, by the Civil Code of Quebec. Consequently, all civil law rules are codified in Quebec, as are the rules of civil procedure.

During our presentation, we will occasionally refer to certain rules of civil law which are codified in the Civil Code of Quebec, which is an entirely new instrument. The new Civil Code of Quebec went into effect on January 1, 1994, and is thus very recent.

With respect to child custody and access, the Quebec Civil Code emphasizes the interests of children. The Quebec Civil Code contains a basic rule, and I quote article 33:

33. Every decision concerning a child shall be taken in light of the child's interests and the respect of his rights.

Consideration is given, in addition to the moral, intellectual, emotional and material needs of the child, to the child's age, health, personality and family environment, and to the other aspects of his situation.

So as you see, we really emphasize the needs and interests of the children in every decision, not only legal decisions, but every decision made where children's interests are at stake. It is important to point that out.

The Parliamentary Research Branch's paper which was distributed to us outlines a number of problems. Going through this paper on child custody and access, you feel you are reading about a whole host of problems. But some of those problems have been resolved, at least in our province. When I say our province, I mean Quebec.

For example, there is access for grandparents. I know that a few attempts have been made here in the House of Commons to pass a bill on access for grandparents. Within the Barreau du Québec, we have opposed this because we believe that this is a matter of provincial jurisdiction and that the Quebec Civil Code provides for it. Article 611 of the Quebec Civil Code states that in no case may the father or mother, without a grave reason, interfere with personal relations between the child and his grandparents. Failing agreement between the parties, the terms and conditions of these relations are decided by the Court. It is obviously possible to review these orders whenever the need arises, and article 612 of the Quebec Civil Code provides for that eventuality.

Thus, the question of grandparents' access has been solved in law, in our view. Certain other problems have also been settled by the courts. For example, the problems of parental mobility or relocations have been settled by the Supreme Court in two important cases, including Gordon v. Goertz in 1996. The problem of religious freedoms was also solved by the courts, in particular by the Supreme Court. If you would like further information on this point, my colleague Professor Goubau will be pleased to discuss it a little further.

There are certain problems which, in our view, have been solved and require no legislative amendment or other type of accommodation.

As for the remaining difficulties, obviously there are some. On this point, I yield the floor to my colleague Dominique Goubau, who will discuss certain difficulties that are described in the working paper.

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Mr. Dominique Goubau (Professor of Family Law, Faculty of Law, Laval University (Quebec), and Member of the Committee of the Bar on Family Law): I'm going to discuss an issue that is raised in the paper that was submitted to us and that concerns the problem of the language used in matters pertaining to custody and access. This is a problem that is addressed on page 15 of the document that was distributed to us and one that often crops up.

Some witnesses have contended that the expressions “custody” and “non-custodial parent” have a reducing effect on the family, that they are not the right terms to use. It is true that this is an issue that is often raised.

We believe that it is the meaning of custody and the consequences of not having custody that pose a problem, much more so than the terminology used. It must nevertheless be admitted that the terminology is an irritant, and when we talk about a custodial versus a non-custodial parent, you can get the impression that there is a winner and a loser. That is true.

I can tell you that this isn't just an issue that arises in Canada or Quebec. Many countries are stuck with the same terminology and have tried to find solutions. I'll give you two examples: the terms “custodial” and “non-custodial” were dropped in France in 1993 and in Belgium in 1995.

Attempts are being made to find other terms, and a few have been found to replace them, but, in our view, they do not change much. Here's what people have found. For example, the terms “residential parents” and “non-residential parents” are used, but ultimately these could undoubtedly become just as pejorative as “custodial” and “non-custodial”.

In writings on the terminology issue, we see the following terminology used: “the parent who provides the child's principal accommodation” and “the parent who provides secondary or subsidiary accommodation”. Other authors have suggested talking about the residence, the parent who provides the child's ordinary residence. In short, efforts are under way everywhere—I have cited two countries and I could cite 12—to find a different terminology because the term “custodial” appears to be pejorative.

However, it must be understood that, in countries where this terminology was changed, it has been changed in a completely different context, one in which, at the time of separation, after the separation or after the divorce, the two parents, regardless of which one was the custodial parent, regardless of the person who most often had physical custody of the child, continue to exercise parental authority in that both parents continue to take part in the major decisions concerning the child, that is to say education, medical problems, choice of schools, choice of religion and so on.

Consequently, if the issue of language is raised, it seems to me we cannot avoid taking the discussion further and considering what that means when we talk about “custodial” and “non-custodial”. The paper we were handed states on page 7, in reference to Canada:

The power to decide has always been assumed by the parent who takes care of the child on a day-to-day basis and provides him with a home.

This is precisely the problem. In common law, and under the Divorce Act, when the Court grants a parent sole custody of the child, that parent exercises exclusive authority not only in everyday decisions, but also in important decisions for the child. Here precisely is one of the problems and undoubtedly one of the major sources of frustration for the non-residential or non-custodial parent.

The situation is different in Quebec, where we have the institution of parental authority, and the notion of custody is not one of a number of elements of this notion of “parental authority”. When the Court grants one of the parents sole custody of a child without providing any other indication in the judgment, that does not affect joint parental authority, except in the small everyday decisions which are obviously up to the parent who has the child with him or her on a daily basis. In the same way as the custodial parent makes these decisions when the child is with him or her, the “non-custodial” parent makes those decisions when exercising his or her right of access, visiting right and right to take the child on an outing.

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So this does not affect the parent's right to take part in the most important decisions concerning the child. In other words, unless the Court has ruled to the contrary, the parent is not dispossessed of his or her right to make decisions concerning the child, even though that parent does not have “custody” of that child.

It seems to me that this situation and these consequences of the granting of custody are extremely important in any debate over whether it is appropriate to introduce a presumption regarding custody. This is indeed the point raised by the document you have submitted to us.

For example, must a “primary caretaker” presumption be introduced? Is a presumption of joint custody necessary? The Barreau du Québec does not want to take a position on this issue because this is a great social issue. All we mean is that, before making a decision, and while discussing this issue, one must be aware that it involves two things: it involves not only custody in the sense of the physical presence of the child, but also decision-making power over children, regardless of how custody has been granted or arranged.

We find, for example, that the document that was submitted to us may be slightly tendentious with respect to certain presumptions and, more precisely, to the “primary caretaker” presumption, whereas there has been no debate on this point. When it is stated, on page 6 of the document, that this “primary caretaker” presumption is a highly useful criterion, this is an open question. For whom is it open? In what context is it useful? How is it useful? What studies have demonstrated its utility?

On page 15, again concerning the issues of joint custody and whether or not a presumption should be introduced, it states that a number of U.S. states have introduced this notion of joint custody. However, it says, a number of these countries have withdrawn...

[English]

Senator Anne C. Cools (Toronto Centre, Lib.): I believe they're reading from a particular document, and it's not clear to committee members what document it is they're reading from. This is what we're trying to find out, what pages. He's reading from something.

I think you said, “The document we gave to you...”.

Mr. Dominique Goubau: It's a document called La Garde d'enfants et le droit d'accès from the Library of Parliament. That's the document we received.

Senator Anne Cools: You received it from us, from the committee?

Mr. Dominique Goubau: I suppose so.

A voice: Do we have a copy?

Senator Anne Cools: If you would, just tell us the name of the document.

Mr. Dominique Goubau: It's a document called La Garde d'enfants et le droit d'accès, written by Kristen Douglas, from July 1997.

Senator Anne Cools: Oh, it's just a research paper.

Mr. Dominique Goubau: Is that okay?

Senator Anne Cools: Yes, that's fine. Thank you.

[Translation]

Mr. Dominique Goubau: I'll finish on this point. On page 15 of this paper, it states that a number of U.S. states have adopted the presumption of joint custody. However, the document states, most of those states have withdrawn it. This is true, but I would add that it would have been more accurate to say as well that other U.S. states have adopted the “primary caretaker presumption” and that they have also withdrawn it.

I can cite the example of Minnesota, which adopted this presumption and which today has changed its statute to prohibit it and which thus prohibits the courts from basing their decisions regarding the granting of child custody on a presumption such as that of the “primary caretaker”. So we are saying that you have to look at all the aspects of this issue when deciding whether or not to give preference at the outset to one presumption rather than another.

Having said that, and I will close on this point, you've seen that terminology poses a problem, but that, beyond terminology, the fundamental question is much more important. Beyond all these issues of presumption, the issue is not only the physical presence of a child, but also the sharing of authority between the parents after separation or divorce.

We submit that the solution currently in effect under Quebec law, which provides that, regardless of who is awarded custody, parental authority is still jointly held, except where the Court rules otherwise, is undoubtedly a promising avenue which definitely removes some of the irritants for the non-residential parent.

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[English]

Ms. Miriam Grassby (Private Practice Lawyer; President, Committee of the Bar on Family Law, Barreau du Québec): I'm going to address the issue of access. I'm not exactly sure how the committee is treating it in terms of what representations have been made, but it's a very difficult issue, and it's an issue that the courts, lawyers, and parents struggle with all the time.

First of all I'd like to make a distinction. There are two types of problems with access. One is, how is it determined, and is it determined in a proper way; and then, how is it exercised, and is it exercised appropriately?

There's a question of exercise of access and there's a question of non-exercise of access. We often hear about non-custodial parents who say the custodial parent doesn't provide the child at the proper times, but there's also the issue of the custodial parent who doesn't benefit from the fact that the non-custodial parent actually visits when he or she should be visiting. So there are two parts to that problem, and I'll address them after we look at the issue of determination of access.

I can remember once doing a hotline in family law, and I discovered that everybody who called me said the judge was biased. The men said the female judges were biased and the women said the male judges were biased. I realize it's just so hard to go into a courtroom, have your life discussed, and have a judgment that sets up parameters with which you may not be in complete agreement.

Lots of things are said and there's a lot of anger around the issues, but in fact it is not simple to determine access. Many factors are involved. For example, you may have one parent who says that what's important for the child is routine, stability, and giving the child organizational skills. You have also the fact that it's important for the child to have emotional support and contact with the non-custodial parent as much as possible. So you have these factors all vying for attention.

You can have, for example, a custodial parent who'll say they don't want the child to go out on Wednesday evening for an overnight, because they feel that child should be doing their homework and learning what a week's routine is, whereas you'll have the non-custodial parent saying it's important that the child go out. Depending on the family and the parents and the child, that visit may be wonderful or disruptive. Depending on the level of the conflict between the parents, that visit may be wonderful or disruptive.

Many parents are extremely flexible, and something simple, such as a mid-week visit, works out fabulously for children. In some cases it doesn't. What the courts have to deal with, if the parents haven't been able to deal with it, is to resolve what's good for that child in that situation.

Many things come into play when these decisions are made. For example, how does the question of conjugal violence, if there's been violence, affect custody and access? In fact, over the years in Canada, very often, if there's been no violence vis-à-vis the children, it doesn't enter into consideration at all. Many people have said that's a problem, because it can be relevant with questions of access.

The bar in Quebec are of the position that in questions of access, legislative changes may not be what's the most important. We feel there has to be much more support. For example, judges have to be given training to understand more what the dilemmas are, what the problems are.

We're in a society where we constantly are learning things about children and visiting. We often blame the courts, but they can't be a step ahead; they're a step behind, because we're learning these things. So they need education. We need experts who can give courses to judges and lawyers.

And we need to give courses to parents so they understand the kinds of issues they're going to have to deal with at a separation. For example, I don't ever want to see that other side of my couple again, but it really is important for my child that I deal with that. And I will see that parent again, for example, at a school meeting.

There are things they have to learn. There are things we have to do that we haven't done, such as explaining to parents that if you're the non-custodial parent, you're an equally important parent. A mother who might not want to have custody may be ashamed to not ask for custody, but that non-custodial role is also very important, and I don't think we've done enough to explain how the emotional support that comes from it is important. Judith Wallerstein wrote a book saying that what counts is if that child knows you care about what's happening on a daily level, even if you're not there each day.

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The court needs resources, too. We have psychosocial reports; in complicated situations, judges ask for them. The money isn't there to fund this, and you can wait six to nine months at home—and I'm sure it's like that across the country—to get the expertise to help the judge make a decision.

We need resources. There are places, for example, where supervised visits could take place, but they're underfunded and it's extremely difficult. If they were more available, the judges could use them more and the parents could use them more.

I think it's important to understand that most people work out the determination of access between them. Some people do it in mediation.

In Quebec—and I'm going to take a few extra seconds because we were going to mention this and it sort of slipped in our overall analysis—we have had for the last few months the right to benefit from six free mediation sessions, if the parents wish it. There is an obligation to go to one group session, where you can learn about mediation, and there is the right, if you wish it, to go and have six free mediations with your spouse or the parent of your child.

Mediation is a way that some people work out access, access that is refined for their couple and their family. So they can work it out themselves, or they can do it through mediation. Lots of people go to court and the judge resolves it, and they say “Thank you; it's been done well”, and they live with it.

Then there are the real problem cases, and often the same cases that keep coming back and coming back before the court. You have to be careful not to make legislation to resolve those problems, because those questions are often personality problems—high conflict, high anger—and they're not the norm. I think one must remember that those cases should not be the ones we legislate for.

Then there is the question of the exercise of access. Again, I believe mediation can be very helpful when there are problems of exercise. There should be more support. I think there are places, there are states, and I think we might look to that, where they are developing sort of a support system for parents who are having problems to seek help in terms of social workers and advice.

Also, one of the things we have often thought about is that when you have a highly conflictual access situation, where time and time again within the same family things don't work out—the children don't go to visit or the non-custodial parent doesn't visit—the family can go back before the same judge. That way, you don't start at square one each time there's a problem. There is one judge who follows it and strives to understand the family's dynamic without having to start at square one.

Also there's a question for questions for access: it might be pertinent to have motions that would go more quickly than regular motions, so that you don't have problems that are not resolved for a lengthy period of time.

There are a lot of issues around access. There are often children who refuse to see the other parent. It's easy to blame the custodial parent if the children don't want to visit the non-custodial parent. There are all kinds of dynamics.

I can remember a case I had where there was conjugal violence. There was a 5-year-old son, and the mother was accused of not wanting to have the child go overnight to the father. The child was 5 years old and had worked out his own system. He wanted to go see his father every second weekend, all day Saturday and all day Sunday, but he didn't want to sleep over Saturday night. For some reason it was that little child's way of being comfortable and secure in a situation he found quite frightening, because he knew there was a problem in terms of high violence.

As regards children, we need to have a way where we can see what's good for that child and that family. We have to be careful that we don't legislate as if there aren't different personalities in different families.

Roger.

[Translation]

Mr. Roger Garneau (Private Practice Lawyer and Member of the Committee of the Bar on Family Law): Ladies and gentlemen, I have also read the document by Kristen Douglas to which we drew your attention and which was forwarded to us by you.

At pages 14 and 15, the paper concludes that a number of issues are still unresolved.

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I wish to draw your attention to the fact that a number of these issues, which are said to remain outstanding, have been thoroughly examined by a special committee organized by the Fondation du Barreau du Québec. As you know, the Barreau du Québec has a foundation that was created in 1969. It is a non-profit organization funded by private sector gifts.

In 1995, the Fondation decided to support, on a priority basis, a family law research project. This research project was carried out over a period of approximately a year and a half.

For the purposes of the project, the Fondation instructed the Montreal polling firm Sondagem to conduct an extensive scientific survey of a sample of the population of the Province of Quebec who had experienced divorce.

The survey, which involved more than 1,000 divorced individuals and spouses, was supplemented by meetings with the principal stakeholders in society, judges, lawyers, social workers, psychologists, mediation specialists and administrators within the legal system.

I would like to draw your attention to the fact that, a few months ago, the Fondation submitted a clear and precise report which offers a few tentative solutions to certain issues before your committee.

I'm providing you with a few copies of this July 1997 report by the Fondation du Barreau. Should you require additional copies, the Fondation, whose headquarters is located at the Maison du Barreau in Montreal, will be pleased to forward them to you.

Allow me to draw your attention to a few of the conclusions and recommendations by the Fondation's special committee. First, to the general surprise of the judges and lawyers on the committee, it turned out that the vast majority of divorced persons interviewed were very satisfied with judges and with their lawyers during their divorce.

I admit that we lawyers and judges, who tend to criticize ourselves—this hasn't been going on for a long time, but it happens—were surprised to see such a high degree of satisfaction among litigants. If you ask me whether these are scientific conclusions, well, the specialists who conducted the survey say they are. The survey was conducted in accordance with the strictest scientific standards. We see that a vast majority of divorce cases do not go to trial and are settled in a virtually administrative way.

In spite of all this, there are nevertheless some problems. The matter was put before the committee and it subsequently made recommendations. I draw your attention to the main recommendations.

First of all, the Fondation examined the problems involved in asserting access rights, as described by my colleagues.

More specifically, in recommendation 2.0.4, which you will see on page 62 of the report, the Fondation recommends that in custody or access cases where there are concerns that it may be difficult to execute the judgment, the judge will automatically, or at the request of the parties, retain jurisdiction over the case for a specific period of two or three months and that he will conduct an interview with the parties and their counsel in which he will be given a report on the situation which will enable him to add to the decision any corrective measures or arrangements that may be necessary.

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This option is recommended by the Fondation, and it could yield good results. There may be some danger that less competent judges may take control of cases and play a moralistic role. However, if all judges are assumed to be competent, and the judges the government appoints are competent, conscientious and objective, I believe this problem should arise infrequently.

I draw your attention to another recommendation by the Fondation, recommendation 2.0.5, which appears on page 63 of the report, where the Fondation recommends that fast-tracking cases in which access rights are violated or there are problems of execution.

The Fondation recommends that, instead of resorting to contempt of court, a pointless and quarrelsome expedient, and one that is often dangerous when used in family cases—it is being suggested that it should be prohibited—litigants should instead merely file an application with the Court on appeal saying, “A judgment was rendered on such and such a date and my client was granted access to his or her children, and there's one party, no doubt the spouse in this case, who is obstructing access. We ask you, Your Honour, to intervene quickly to correct this, not in a month, not in three months or in a year, but within a few days.”

This is one possible measure that would require a certain change in the legal organization of the courts, but that would not call for an amendment of the Act. This requires good will and a desire for efficiency on the part of judges and lawyers.

So much for access.

The Fondation made other recommendations concerning the problems you state, in particular trying to prevent the negative effects of divorce on the psychology of the children involved. I would ask you to refer to the Fondation's recommendation 2.0.1, which is that a series of measures be implemented to combat the feelings of powerlessness and disaffectation in a certain number of judges, men and women, with regard to family law, to stimulate their interest and to develop in them a more empathetic and more positive attitude toward litigants in this area.

In particular, the Fondation recommends additional efforts to promote conferences for judges and lawyers on the psychology of the children of divorce and on the emotional reactions of spouses and ex-spouses during the process. The Fondation encourages judges and lawyers to take an active part during the hearing in resolving the points at issue in a humane way because the goal we are pursuing at the Fondation is to humanize family law.

Lastly, I draw your attention to the recommendations on training and information for litigants, lawyers and judges. We at the Barreau du Québec believe that the statutes and Civil Code that are at our disposal are invaluable tools that must be used by competent judges and lawyers who are trained in family law and who have good judgment, good discernment.

In paragraph 3.0.4, the Fondation recommends that associations of family law practitioners prepare fact sheets explaining to their clients each of the legal stages in divorce and recommend that they be used. These fact sheets would contain details on each stage and would be given to clients some time before the stage in question to inform them about the legal adventure on which they are about to embark.

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In paragraph 3.0.5, on page 69 of the report, the Fondation recommends that a family law specialization be recognized by a certificate that could be published and would attest to the knowledge and experience acquired in the field by its holder. The more competent lawyers are, the less litigious they will be, and the more competent judges are and the more empathetic toward family problems, the more family problems will be settled in a calm atmosphere in a manner consistent with the Act and fairness.

Lastly, in paragraph 3.0.6, on page 70 of the brief, the Fondation of the Barreau recommends that courses be given in family law and that they be made more accessible to lawyers and judges as a whole. These courses should be provided at a reasonable cost and given at a number of strategic points in the province, not only in Montreal and Quebec City.

Lastly, I draw your attention to the Fondation's final recommendation, that family lawyers form associations that have rules of ethics tending to humanize family law.

These are the main considerations that I wanted to bring to your attention. I remind you that the Fondation's brief is at your disposal. If its recommendations were carried out, and the current conditions of the act make this possible, they would help humanize all of family law.

Ms. Suzanne Vadboncoeur: With your permission, Madam Joint Chair and Mr. Joint Chair, I have two copies of the Fondation's report which I would like to make available to you. I also have two copies of the Barreau's brief on family mediation, one for the Senate and one for the House of Commons. The Barreau du Québec spent four full days before a parliamentary committee and ruled against mandatory mediation. I think it is important to emphasize that. You would do well to examine the Barreau's brief.

In closing, I will be able to table two copies of each.

[English]

The Joint Chair (Mr. Roger Gallaway): We're going to start today with a slightly different order. We're going to start with Senator Cohen.

Senator Erminie J. Cohen (Saint John, PC): I must tell you that I was very impressed with your presentation. As for humanizing family law, I think Quebec's Civil Code is certainly doing that. There's far more sensitivity to both parents. There's a more balanced approach to both parents, which is something we're looking for to make the life of the child easier.

Having said thanks to you, as a grandparent I'm glad to see that the Quebec Civil Code does recognize the right of a grandparent to have access to a grandchild. My question to you is does this really work in practice? Must the parents facilitate that access? What happens if they don't?

Ms. Miriam Grassby: I'm going to answer it as a practician. I certainly approve of it being in the law. I think it's important.

But I think you have to remember that by the time you need to have a grandparent petitioning the court to have access, it's because the family split has become very dysfunctional. Generally speaking, a grandparent will have access to the child through his or her son or daughter who has custody or is the non-custodial parent. Generally it will be a situation often where his or her child will not be visiting with their child, otherwise they would see the child during the visits.

It's not as frequent as one might think, and it does reveal a certain level of dysfunction, but it is something that's there that can be used and has been used.

Senator Erminie Cohen: Can it be improved on?

Ms. Miriam Grassby: I'm not sure that it needs to be improved on. It's in the law. People know it's there. They know there has to be a reason. But generally speaking, if you have a non-custodial parent who is seeing the child, the grandparent will visit. Or if you have a custodial parent, the grandparent will visit when the custodial parent has the child.

So it doesn't necessarily apply so often. Perhaps my other colleagues may want to correct me on that, but that's what I have seen.

[Translation]

Mr. Dominique Goubau: I could add something to that.

In 1991-1992, I conducted a research project on this specific question, based on all the reported Quebec decisions on the matter, but also on unreported decisions.

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At the time, I wrote to various chief judges of the superior courts, who sent me, and asked the judges of the Superior Court to send me, various judgments concerning grandparents. I assembled some 70 judgments, reported and unreported, concerning grandparents.

One of the findings of this research was that the courts, in principle, generally look very favourably on requests by grandparents, but that they tend to limit requests by grandparents who are a little too demanding. Generally speaking, I imagine that is the general principle: I ask for this, expecting to receive that. Grandparents generally ask for a great deal, and the courts therefore tend to rein in grandparents' requests, to grant access, but to limit it.

The only cases where access is denied to grandparents are obviously cases involving family violence, but also cases where it has been shown that the grandparents tend to want to replace the parents in their role as educators. In those cases, the courts tend to dismiss grandparents' requests for access.

[English]

Senator Erminie Cohen: Thank you. It's a little clearer for me now.

The Joint Chair (Mr. Roger Gallaway): Thank you. Ms. Bakopanos.

Ms. Eleni Bakopanos (Ahuntsic, Lib.): Thank you.

[Translation]

Thank you very much for the information. I thought it was very interesting that you emphasized education, not only for parents, but also for judges and lawyers. We have heard of a number of examples of decisions that were changed by judges, and I believe that training that is a little more up to date will help a little to improve the judgments rendered.

I was also very much interested in one of the recommendations contained in the Fondation's report, the one concerning parents' preparation. I believe parents sometimes feel lost. Depending on the quality of the lawyers and judges, they find themselves on a path that is not always the best one for the child or for the parents.

I'm going to ask you a question which you did not address in your recommendations, but which I find interesting. This is a phenomenon that we see in the United States. Sometimes children of a certain age, of a certain degree of maturity, retain their own lawyers because they may not be satisfied with the parents' situation. You did not address this aspect. I know this is not in the document that was submitted. Do you believe that we should examine this aspect as a committee?

Ms. Suzanne Vadboncoeur: Yes, of course.

Ms. Eleni Bakopanos: It's in the child's best interests, isn't it?

Ms. Suzanne Vadboncoeur: Clearly. Moreover, this is done in Quebec. It's true that we didn't mention it, but children have been represented by counsel in Quebec for a long time. The Barreau du Québec has also prepared a fairly substantial report on this which I would be pleased to forward to the Joint Committee.

The right of representation for children exists. There are specific provisions in the Code of Civil Procedure that apply to child representation. It's very common. Parents have been the legal guardians of their children since the new Code went into effect in Quebec. But where the interests of the child differ from those of the parents, the Court may appoint a lawyer for the child. This is quite common. It is done. A number of lawyers even specialize in child law in Quebec.

So this is something that exists, but that we don't want to be excessive—my fellow practitioners can add to what I have to say here—about the obligation of children to testify in all cases because it's a fairly traumatizing, fairly difficult experience. And children must not feel obliged to take sides. Lastly, the entire psychological side of these disputes is quite significant.

It is nevertheless true that the child's lawyer plays a fairly substantial role in family law in Quebec, as well as in child law in general. So, yes, it is something that exists and it is common.

• 1620

[English]

Ms. Miriam Grassby: I might just add something to that. First of all, I'd like to say that in Quebec we do have a video made by the Quebec bar, and many judges insist that before the custody case proceeds they see the video. It talks about the difficulties of going through the system and how the best way to resolve things is to try to come to one's own solution.

On the question of the lawyers, however, nothing, of course, is straightforward, and there's a debate about what you do when you're a child's attorney. Do you say what the child wants you to say? Do you say what's in the child's best interests? For example, you'll often find a child with an alcoholic parent who wants to look after that parent and go with that parent. It may not be in that child's interest to do that. Having an attorney is sometimes quite difficult.

Ms. Eleni Bakopanos: I was also interested in the comments you made on the mediation.

[Translation]

You're saying you aren't in favour of mandatory mediation. This isn't a new phenomenon, but you have taken a position on it.

Ms. Suzanne Vadboncoeur: Yes, the Barreau du Québec's position is very clear on this point. It has always been clear.

Ms. Eleni Bakopanos: Would you like to sum it up briefly?

Ms. Suzanne Vadboncoeur: The mediation procedure has been in place for a long time. There's nothing new in it. In 1993, an act was passed in Quebec amending the Code of Civil Procedure to enable a judge hearing a family case to adjourn the hearing and to refer the parties to mediation.

The Barreau ruled in favour of this act, but it was never enacted. So it had never been implemented. In 1996, the Department of Justice, or the Government of Quebec, tabled Bill 65 in the National Assembly which was then debated extensively. Under the first versions of this bill, mediation would have been mandatory. In our view, mediation and obligation do not go together. To use a learned term, they were antinomic.

We were very much in favour of encouraging the parties to resort to mediation, of having lawyers even push their clients to rely on it, obviously in cases where mediation could be effective. So we were entirely in favour of encouraging mediation, but only where the parties agreed to it. In a family violence case, forcing the parties into mediation would subsequently make the situation 10 times worse. Violence would increase.

In essence, the Barreau's brief is based on the principle that mediation should be maintained, provided the parties consent to it. That is ultimately what was accepted.

The act, which is contained in Chapter 42 of the Statutes of Quebec 1997, requires the parties to attend an information session, either as a group or as a couple. A couple that is not working very well together is not required to attend the entire session. One of the two parties may invoke before a mediator his or her right not to attend the session, on any ground whatever. That party does not have to give a valid reason for not attending the information session.

If the person, who is not normally required under the Act to attend an information session, does not absolutely believe in mediation, he or she will definitely not have to attend it. That person need only obtain a signed dispensation, which is a very simple form, and that's it.

To sum up, mediation today has become much more flexible under the Act and is more consistent with the idea we had of it.

It did not begin to be implemented until last summer, on September 1. So it's quite recent. After a year has elapsed, we'll have a better idea what the results will be. The Barreau du Québec's position on this subject has always been the same, and it is very firm.

Ms. Eleni Bakopanos: Thank you.

• 1625

[English]

The Joint Chair (Mr. Roger Gallaway): Mr. Forseth, please.

Mr. Paul Forseth (New Westminster—Coquitlam—Burnaby, Ref.): I'd like to ask a number of very specific questions to get to where I'm going.

Let's outline a situation where it's not divorce. Parents live together. They have children. They get into conflict. They separate.

I take it that the Civil Code in Quebec can make orders or can perhaps even confirm the terms of an agreement that these parents enter into. So as part of it, one parent may be paying child maintenance to the other as per the Civil Code. Is that possible?

Okay. So I assume that the Civil Code has enforcement procedures for use when the maintenance payments are not made. The terms may also outline specific terms of child access. When those terms of child access are not followed, you've alluded to the procedure of perhaps a contempt of court proceeding, which you don't prefer. You've outlined some kind of other proceeding when mediation and other alternative dispute mechanisms are failing. What is the specific routine for a Civil Code operation to enforce access? What does the court do and what powers does it have?

[Translation]

Mr. Roger Garneau: First I'd like to point out that, under Quebec law, children born outside marriage have the same rights and the same benefits as the children of divorce. They have the same benefits and their interests, properly understood, are what should take precedence and what the courts seek in awarding custody, access and support. Precisely.

So if support is not paid or access is not granted, they enjoy the same rights as those we mentioned here a moment ago, that is to say that the party deprived of his or her rights must apply to a judge for corrective measures or sanctions in exactly the same way.

If support is not paid, you contact the support collector. In Quebec, as you are aware, we have a support collector, which represents those to whom support is owed. It will demand and collect payment of the amounts owed from the parent responsible. The Department of Revenue is the collector in Quebec.

Does that answer your question? Not completely?

[English]

Mr. Paul Forseth: I'm only using that as the example to get to the point of what the court does to enforce a specific term of access.

Ms. Miriam Grassby: I will continue my colleague's answer. He did the first half beautifully, but the second half is more complex. Actually, the first half doesn't work so well either. Let's face it.

Some hon. members: Oh, oh!

Mr. Paul Forseth: All right.

Ms. Miriam Grassby: The problem is the same everywhere, because if you have an order for access or you have an order where someone is supposed to take the children and doesn't do it, what do you do? Do you send the police? Are we a society that sends the police? We say no, we don't send the police. We have contempt of court. And how functional is it? Let's say there is a judgment that says the children should go on such-and-such a date. If there is a clear refusal to do so, there is a contempt proceeding that can be taken. And such proceedings are taken.

Senator Duncan J. Jessiman (Manitoba, PC): That's the non-custodial parent not turning up. Is that right?

Ms. Miriam Grassby: That's right. Or not having the children there. There can be a contempt—

Senator Duncan Jessiman: I guess the concern we have is the opposite way.

An hon. member: We've been here for half an hour—

A voice: If your question is what happened—

A voice: Oh, oh!

The Joint Chair (Mr. Roger Gallaway): Order. Could we have one person speaking at a time here? Mr. Forseth is the questioner and Madame Grassby is responding.

Mr. Paul Forseth: You were outlining the fact that one of the procedures is a contempt of court procedure. One of the ways we found around this in British Columbia, a softer approach, is that parties kept making applications to vary the original order, and through that procedure of an application to vary...because they're saying circumstances have changed and the circumstance, therefore, is that access is not happening or the parents are not cooperative. So that was a soft way around.

So then forever the parties were making applications to vary to get back to court to have a new nuance of the order written, yet never getting to the point of getting access delivered.

• 1630

I was saying that you're making a presentation here that perhaps the law in Quebec is somewhat different and that maybe you're meeting with somewhat more social success than other jurisdictions. I wanted to get down to the point of how these Civil Code procedures in Quebec are handled around non-performance of access.

Ms. Miriam Grassby: There's no difference. The problems are the same.

Mr. Paul Forseth: The problems are the same, but I wanted to know what is the technical solution.

Ms. Miriam Grassby: I'm telling you there isn't a technical solution that works any better than anywhere else in Canada.

Mr. Paul Forseth: But what is it?

Ms. Miriam Grassby: Are you asking what is the solution?

Mr. Paul Forseth: No, I'm asking what the technical procedures are.

Ms. Miriam Grassby: The technical procedures are that you can go back to court and you can ask for a motion for contempt. You can go back to court and ask for a change of custody. You can say the other parent is not a friendly parent, is not encouraging, and you want to have a change of custody. There are things that can be done. None of them work perfectly, but that's sort of a societal problem.

Mr. Paul Forseth: What does the civil court in Quebec do when they find a parent in contempt? They scold the parent and make a new order that says the parent shall perform the access. When they've had three of those contempt orders, what does the court do in Quebec?

Ms. Miriam Grassby: First of all, there can be penalties and there can be prison for a contempt of court.

Mr. Paul Forseth: This is spelled out in the code?

Ms. Miriam Grassby: Oh yes.

Mr. Paul Forseth: You can cite the sections?

Ms. Miriam Grassby: Oh, I can't cite the sections. I'm one of those lawyers who has to have the problem asked and I have to go look it up. It's the Code of Civil Procedure.

Mr. Paul Forseth: So you're saying there are specific penalties outlined. Normally there are no defined penalties in law for contempt of court. It's very much up to the judge.

Ms. Miriam Grassby: It is up to the judge to give a financial penalty or to give a penalty of imprisonment. Frankly, it's not used all that often because the problem is often more complex than that.

Mr. Paul Forseth: We understand that they're not all that well used, but the value of tracking through where the specific provisions are is the symbolism that people see in order to behave socially and do the right thing.

Now, you're telling me that in the Civil Code it's not just a generalized contempt of court procedure that doesn't have any codified penalties written down. You're saying that the options of something like directing a peace officer to go out and apprehend a child and bring it to the other—

Ms. Miriam Grassby: I'm not saying that. What I said was that a judge who grants a motion for contempt can order payment of a fine or imprisonment under the Code of Civil Procedure, which is our procedural arm of the Civil Code. Maybe Dominique Goubau can answer more to that.

[Translation]

Mr. Dominique Goubau: The problem raised by the contempt of court procedure provided for in the Code of Civil Procedure, and the case law is very clear on this, is that it requires evidence in the same way as under criminal law. In other words, you have to prove the other party's intent not to comply with the court order, which is very difficult to do. So contempt of court is not used a great deal by the courts in cases involving children.

This occurred recently in Quebec City. We saw a court unhesitatingly imprison a woman because she was systematically obstructing execution of the court order. Moreover, she had said before journalists that she did not want to comply with the court order. The matter was clear. But these are obviously not the kinds of cases we're interested in because they are exceptions.

I believe your question is a fundamental question. In what ways are access orders enforced? You named them. There's ultimately contempt of court, but no one really believes in that. There's the possibility of having the initial order amended. There's also, and this happens sometimes but it's rarer, the possibility of overturning the initial order and simply changing child custody where circumstances permit. Here again, this is not very satisfactory. We are all looking for mechanisms that would help enforce orders.

• 1635

We've talked about this. I can tell you that the new system that Quebec has adopted for setting maintenance payments, together with federal actions, takes into account custody time, the actual time spent in the child's physical presence, and the fact that one parent has access, fairly extensive visiting rights. This is obviously somewhat indirect.

While it is clear here that this right is taken into account in determining the amount of maintenance, it is just as clear that, if this right, once awarded, is not exercised, you can't go back before the court and eventually have support adjusted accordingly.

Today we see that the new system for fixing support payments provides a small additional weapon against potential obstruction of access.

Ultimately, if we want other solutions, we'll undoubtedly have to look at what is done elsewhere, in other countries. I know that some countries have opted for what is called penalty payments, that is to say a kind of civil fine, a private fine, as a result of which the person who does not make the child available for access or does not exercise his or her access, may be subject to a fine payable to the other parent.

Is this a good solution? I don't know, but it might be worth studying in greater detail. I know that it is in effect in Belgium, France and Italy as well, I believe.

[English]

The Joint Chair (Mr. Roger Gallaway): I'm afraid your time is up.

Next, we'll go to Madame St-Hilaire.

[Translation]

Ms. Caroline St-Hilaire (Longueuil, BQ): I believe it is Ms. Dalphond-Guiral's turn.

Ms. Madeleine Dalphond-Guiral (Laval-Centre, BQ): First I would like to thank you for being here, on a beautiful Wednesday afternoon.

I detected a number of values in your various speeches. First, of course, you talked about the good of the child. You talked about major reservations over a certain rigidity in the Act, the protection of children being the primary objective of a statute that is intended to protect them in difficult situations.

You also talked about maintaining the support provided by means of a kind of monitoring. Of course, we're not used to seeing judges as people who provide support. In family law, however, they have a certain kind of therapeutic role to play.

You mentioned a survey that was conducted of divorced parents. Did that survey manage to assess, I wouldn't say the children's satisfaction, but the way in which children experienced divorce and the post-divorce period?

This of course can't be done using answers like “somewhat, very much, enormously”. I imagine psychologists would be needed for that. Do we have any data on this subject? Since the purpose is the good of the children, the people we should be evaluating—even though I don't like that word—are the children. Do we have any data on this? Has this already been done?

Mr. Roger Garneau: I regret to have to tell you that the survey was not conducted on the children of divorced parents. No, that has not been done. We have observed that most couples come to an agreement that protects the interests of their children.

The problems we have been discussing for an hour and a half are problems that arise in the Province of Quebec in at most only 20 percent of cases. They are significant and serious problems, but they are not the problems of the majority.

In most divorce cases that we have seen, the parents are aware of the problems and of their children's interests and agree, regardless from their passions and their grievances against one another, to respect the children's interests and welfare.

Ms. Madeleine Dalphond-Guiral: There are support groups, groups of parents who have gone through divorce and violence and who help each other. Can you tell us whether these groups have also had an extremely positive impact on people's experience following a divorce and helped them live in greater harmony? If that is the case, shouldn't these organizations be given adequate financial support to make useful, genuine and necessary services available?

• 1640

Mr. Roger Garneau: The Barreau's Fondation recommends that government and government institutions support these stakeholder groups, which we know and which have been questioned and an exhaustive list of which appears in the brief.

Yes, these groups play an extremely important social role. They are groups of volunteers, people who are interested in family problems. We have tried to meet them all. They have been surveyed and we have taken their opinions and experience into account. Yes, I believe that this is an area where the government should add resources so that this family support work can continue.

Ms. Miriam Grassby: I would just like to add, if I may, that there is a longitudinal study that was done, not in Canada, but in California. It was conducted on a number of children of divorced parents over a period of 10 and even 15 years by Judith Wallerstein. It's an extremely interesting study because interviews were conducted with the children one year after the divorce, five years later, 10 years later and, for some of them, even 15 years later. The study emphasized what was most important for these children, what was most disappointing and what the long-term effects of divorce were.

What she concluded from her study was that the conflict between the parents was the hardest thing for the children to endure. The most important thing for them was to feel that the parent who did not have custody still existed for them, that he or she could provide support. It was not important that custody be shared or that a parent have sole custody and the other have visiting rights.

This is an extremely important study, and one that is also relevant to us because it affects children and the way they have experienced divorce.

Ms. Madeleine Dalphond-Guiral: So we're sure that you will provide us with the references for that study, if our researchers haven't already done so.

Ms. Miriam Grassby: It's a book entitled Second Chances.

Ms. Madeleine Dalphond-Guiral: Thank you.

Ms. Miriam Grassby: It's excellent.

Ms. Madeleine Dalphond-Guiral: Thank you.

[English]

The Joint Chair (Mr. Roger Gallaway): Mr. Mancini.

Mr. Peter Mancini (Sydney—Victoria, NDP): Thank you, and my apologies for being late. Please excuse me for that.

Because it wasn't clear to me, I want to go back to something Senator Cohen asked, and that is the right of grandparents in Quebec to apply for access. Is there automatic standing before the court, or is there a test or hurdle over which the grandparents have to go? That's my first question.

Mr. Dominique Goubau: It's automatic.

Mr. Peter Mancini: Okay, that's interesting for me. In the jurisdiction I come from in Nova Scotia, there's an interested person test that the grandparent has to go through.

My experience has not been favourable dealing with grandparent situations. I wonder if your experience is that by providing grandparents with automatic standing, it only encourages more litigations or more actions before the court.

[Translation]

Mr. Dominique Goubau: That was precisely one of the objections that was raised by the Minister of Justice himself in 1981. The Parti québécois was in power at the time when the provision protecting access for grandparents was inserted in the Quebec Civil Code. The opposition had requested that this right be included in the Civil Code.

Lastly, there was an agreement to grant this right. Despite fears that there would be a sharp increase in the number of grandparents exercising their rights, this was not at all observed in actual fact. Ultimately, we saw that a number of cases involving the grandparents did not reach the courts. They were settled by agreement and the number of cases that ultimately wound up in court was very small.

Ms. Miriam Grassby: There were 60 cases over what period of time, Mr. Goubau?

Mr. Dominique Goubau: Well, I can't guarantee that the 60 or rather 70 cases I gathered together constituted all the cases. But they nevertheless represented a large portion. They date from 1992, more than 10 years after the act went into effect. So that's not much.

[English]

Mr. Peter Mancini: I do have a second question. I hope that's not a problem.

Monsieur Garneau indicated that one of the recommendations in the study you referred to said there should be more education for lawyers in areas outside of Montreal—at least, I think you said in the regions outside. Is it your experience that outside of the major centres, the problems of custody, access and enforcement are more complex because there may be fewer services? Is that an observation?

Mr. Roger Garneau: It is not my experience.

• 1645

[Translation]

No, I don't think so. The problem, where it arises, always occurs in the same place. However, the people in the regions, like the lawyers, outside Quebec City and Montreal, have fewer opportunities to take the Barreau's continuing training courses and to attend courses and conferences. If they want to do so, it's more costly for them. It's less accessible.

I have nothing to add to that, but I believe my colleague would like to continue.

Ms. Suzanne Vadboncoeur: Yes, I would like to supplement that. I even get the impression that the access problems that arise are probably worse in Montreal, because parents there are more mobile.

People living in the rest of the province outside Quebec City and Montreal are much more sedentary. They tend to stay put. So it's easier for them to have access. Obviously I'm not talking about a custodial parent's refusal to grant access to the child out of ill will. I'm talking about access in general.

In Montreal or Quebec City, the non-custodial parent, the father, because it's very often the father, will be required to go work elsewhere, in another city, or the mother may want to move with her child. In the large cities, the situation may be more difficult because of greater parent mobility.

[English]

The Joint Chair (Mr. Roger Gallaway): Mr. Hill, please.

Mr. Jay Hill (Prince George—Peace River, Ref.): Thank you, Mr. Chairman. I would like to address the issue of joint custody.

I'm the author of a private member's bill calling for joint custody, which I've introduced in both the last Parliament and again in this one. The reason for that is to try to address the issue of equal status, if you will, between the divorced parents, and because I fervently believe it is in the child's best interest to have guaranteed access to both parents following a divorce.

I was really interested in the comments made by Mr. Goubau during his presentation and the comments in regard to different states having tried joint custody—I'm well aware of the research involved in that—and that you had looked at that and instead went to a system that I believe you called “joint parental authority”.

I was temporarily enthused about that until my colleague Mr. Forseth was asking about access and how you enforce access and I learned that Quebec indeed admittedly has exactly the same problems as we experience in British Columbia, where I come from, in the sense that support payments, maintenance payments, are very stringently enforced, and yet access is a real problem to enforce.

So I wonder if you could explain the difference between joint parental authority and joint custody for me, and why joint parental authority is not giving the courts or the non-custodial parent the extra status necessary to guarantee access.

[Translation]

Mr. Dominique Goubau: I don't know whether I correctly understood your question. When you talk about joint custody, there's often this difficulty where physical custody, the presence of the child, is confused with the right to make important decisions concerning the child, regardless of the decision concerning the child's physical presence.

[English]

Mr. Jay Hill: I'm talking about the latter, equal status in making decisions about the child.

[Translation]

Mr. Dominique Goubau: Ultimately, in Quebec, the parents' joint authority is not affected by a custody decision. Do you understand that? In other words, if the court decides to grant custody to one parent rather than the other, both parents continue to exercise joint authority. Do you see? That's what I said.

[English]

Mr. Jay Hill: Okay, but—

• 1650

[Translation]

Mr. Dominique Goubau: What I would like to add is that there is no execution problem there. What does that mean? That simply means that both parents are automatically involved in important decisions concerning the child. In other words, the parent who has custody of the child, physical custody, cannot afford not to consult the other parent in making the decision. This is essentially what the joint exercise of parental authority after separation means.

Now what I can add to that is that this is currently the widespread trend in European law, in virtually all countries. I have cited a few and I could cite others. Germany just amended its legislation last summer. England also amended its statute a few months ago. All these acts, at least generally if not absolutely, support what they call co-parenting there. The idea is not to ensure at all costs that the child lives at the homes of both parents, but to maintain effective authority, regardless of the choice regarding physical presence.

Now, if your question concerns how this exercise is guaranteed, I believe we are indeed encountering the same problems as we're seeing with regard to access. One parent may make a unilateral decision concerning a child, whereas there is joint authority, but it is not very difficult to prove this.

[English]

Mr. Jay Hill: I guess that's what I'm getting at. From your presentation, you say you have this system in Quebec of joint parental authority. In other words, I'm assuming both parents have equal status when it comes to the authority to make decisions in the best interests of the child.

However, if it comes to a matter of access for the non-custodial parent—say they're being denied access—having equal status as far as the joint parental authority classification is concerned, if you will, does not guarantee them access. Therein lies the problem.

[Translation]

Mr. Dominique Goubau: How is access guaranteed? Access is in fact a situation in which the non-custodial parent does not have the child with him or her at all times. Of course you have to live with the separation. So the non-custodial parent only has this access. That's the essential limit of his or her authority.

But it does not affect the child's physical presence or obviously the day-to-day decisions concerning the child, but that does not have any influence over the parent's access to the child. This access is guaranteed by what? It is guaranteed either by the child...

[English]

Mr. Jay Hill: But if they're being denied access, having joint parental authority does not give them any increased status with the courts in order to enforce the access. That's what I'm trying to get at here.

Ms. Miriam Grassby: You have the same problem. What you have to try to do, if you'll excuse me, is separate your problems.

First, joint parental authority gives you the right to make decisions, such as a change of school or religion. You're in there, you're doing it. But that's a solution to one problem, i.e. not having it if it's not like that elsewhere, but it doesn't resolve the problem.

But I think you have to remember that the problems that come around access are often problems that come along with severe anger, for example. One of the things we feel in terms of educating—

Mr. Jay Hill: Anger is inherent in most divorces.

Ms. Miriam Grassby: One of the things when we talk about education is that—

The Joint Chair (Mr. Roger Gallaway): I'm sorry, Ms. Grassby.

Senator Jessiman, there are a large number of people on this committee.

Senator Duncan Jessiman: I asked to be recognized an hour ago.

The Joint Chair (Mr. Roger Gallaway): I understand that. When you asked that, you were put on the list with the others.

I understand that you have to leave and go to a meeting. If you want to switch with one of your colleagues, that's fine, but you have to respect that there's a list here. We're meeting until 5.30 p.m. If you want to ask a question, you can remain and ask that question.

Ms. Miriam Grassby: We're talking about divorces, some of which are smooth and some of which have people who are devastated by that and who react with tremendous anger.

Here's one of the things, for example. If the courts and lawyers understood a little more about psychology, they could pick out perhaps what are going to be the problem situations. The problem situation is when one parent says the other parent is a lousy parent, when everybody can see that this parent is pretty good. But they're so angry, they can't see things clearly.

It works both ways. You'll have both parents come in and say the other is a terrible parent. They're both pretty good parents. They can't see properly because of anger.

Those are going to be the files where there may be the most problems with access, because people don't improve with time. If they're really pathological, it's not going to change.

Most things do improve. Most cases don't get that far. Most cases improve, and you have a very small number.

• 1655

You're asking how you resolve the problems when you have serious problems with anger and misperception. Who's got the answer?

Senator Anne Cools: Through an order.

Ms. Miriam Grassby: How do you enforce an order? Do you send the police? Nobody has the answers. We're all—

The Joint Chair (Mr. Roger Gallaway): Senator Cools, please, it's not your turn.

We're running short on time, so I'd like to proceed. Ms. Bennett.

Ms. Carolyn Bennett (St. Paul's, Lib.): Thank you.

This may help with the problem of Mr. Forseth and Mr. Hill. I think you said it's the same judge who sees them each time. With my experience as a family physician, I think that makes a huge difference when the judge actually sees the same people coming and reapplying for the variance. I think you already told us one of the solutions. I think that's making huge progress in terms of judicial reform by making sure a judge comes to know this couple very well, particularly the pathological ones.

I'm very big on evidence-based practice. I think that when we have the best interests of the child in law...then I guess I want to know whether we are doing enough. Is there any research in Quebec that measures tools, whether that's school performance, anxiety, depression, guilt, suicide, powerlessness, or blaming oneself? Is there an ongoing way for us to find out whether what we are doing is correct?

In my experience with alcoholics, sometimes the alcoholic behaves very well if they have the responsibility of the child. The minute the child is taken away, there's a diminution in access, or whatever, then the despondency has them relapse.

I would like to know that there were real tools by which we were measuring these kinds of things so that those of us making this decision have, in a common sense kind of way, what's in the best interests of a child actually backed up in real research so we can track this.

When the justice department presented, we saw that there is this longitudinal survey happening in Canada, but is there...? When you came to the foundation's recommendations, was there any real research on what is in the best interests of the child and how that's determined?

Ms. Miriam Grassby: I think the answer to that—my colleagues can correct me—is that I don't believe there is any longitudinal research. I just think the answer is no.

I want to clarify what I said when I talked about alcoholics. I wasn't suggesting that people who have problems with alcohol can't be good custodial parents or good parents. I'm just saying that there are situations in which children want to do things that may not be in their best interests. We have to be able to listen and also judge to help them not go into a difficult situation.

I don't think we have that research, and I think that's part of the problem.

Ms. Carolyn Bennett: I kept worrying about the father or the mother in the other space. They actually may also not be in their best interests.

Ms. Miriam Grassby: When a child goes off to parent the parent, that may not be in the child's best interests. That's where we have to be careful.

Ms. Carolyn Bennett: Except if they've been doing it forever.

Ms. Miriam Grassby: Right.

Ms. Carolyn Bennett: The kid's been doing it since he was four, and all of a sudden he's told he can't do that any more. It sometimes may not be in their best interests.

The second thing—

Ms. Suzanne Vadboncoeur: I'm sorry, maybe I could add something.

[Translation]

There may not be any legal research, but research has definitely been done in the social sciences: psychology, sociology and child psychology. I'm sure research has been done, even if only for master's and doctoral theses in child psychology or other social fields. Things have definitely been done, but we don't currently have them to hand.

[English]

Ms. Carolyn Bennett: I would hope that before we write the law, if there's anything out there that we would need to know, we should know it in order to make sure we're making the best decision.

Here's the second thing. You talk about the education of lawyers, parents, and judges. As a family physician, I think I was very aware of my role from the time of initial marital disharmony to the inevitability of divorce and the effect on the children in that time, which can be very short or very long. Are we doing anything collaboratively with family physicians?

• 1700

I also would like to know about the area of priests or some of the other people to whom people go when they think they're in trouble in a marriage. I think the kind of advice people get, to hang in, is sometimes extremely bad advice in potentially abusive situations, and we actually have to share this—

Ms. Miriam Grassby: All right, we're opening up the education program to priests, family lawyers, ministers...

Voices: Oh, oh!

Ms. Carolyn Bennett: The more people we have at the table when we try to do this education, the more likely it is that we can do a great job. But if they're getting a dissenting opinion from somebody who is very powerful in their lives and has been very supportive, I think we're going to have much more trouble effecting what is ultimately in the best interests of the child.

Ms. Miriam Grassby: I think you've put your finger on the fact that we're all learning together, because this is really the first generation of children who have grown up from divorced families. Social workers and physicians, lawyers, judges and parents are all learning, and we read everything that's out there.

[Translation]

Senator Marisa Barth Ferretti (Repentigny, Lib.): Thank you, Mr. Chairman. I would like to...

The Joint Chair (Mr. Roger Gallaway): Excuse me a minute, please.

[English]

Senator Mabel Margaret DeWare (Moncton, PC): I'll give it over to Senator Jessiman for now if I can come back later.

The Joint Chair (Mr. Roger Gallaway): If you wish to pull a switch, you're quite welcome to do so.

Senator Mabel DeWare: I'll let you go in my place, and I'll come back later.

The Joint Chair (Mr. Roger Gallaway): Senator Jessiman.

Senator Duncan Jessiman: Tell me, is it your Quebec Superior Court that deals with divorce and separation?

Mr. Roger Garneau: Yes.

Senator Duncan Jessiman: And do you have a special division in family law?

Ms. Suzanne Vadboncoeur:

Mr. Roger Garneau: No.

Senator Duncan Jessiman: You don't have a special division.

Mr. Roger Garneau: Unfortunately not.

Senator Duncan Jessiman: Isn't that too bad.

[Translation]

Mr. Roger Garneau: Unfortunately.

[English]

Senator Duncan Jessiman: Right. You said fortunately yes, but somebody else said fortunately no. I would think it would be unfortunately no. I know other jurisdictions do have judges just for family work. I know we do in Manitoba.

I know you determine the amount the non-custodial parent pays in a different manner than do the guidelines set out by the federal government. That's correct, right?

Mr. Roger Garneau: Yes.

Senator Duncan Jessiman: Are you subject to the same guidelines even though your schedule to them is different? Do you have different guidelines?

Ms. Miriam Grassby: Yes.

Senator Duncan Jessiman: I'd like to get a copy of your guidelines, then, if I may—maybe not for today, but I'd like to get them.

In your guidelines, I'm sure you talk of sole custody. I found it interesting that even though one gets sole custody, they effectively have joint rights. That's what was said. So do you also have joint custody, shared custody, split custody? Do you have all of those things?

Ms. Miriam Grassby: Yes, except they all have names in French.

Some hon. members: Oh, oh!

Senator Duncan Jessiman: Yes, well, I can't speak French. You're put on Earth and you get whatever.

Anyway, you have all that included.

The bill that brought this all about—why you're sitting here, why I'm sitting here—brought all the objections about the non-custodial parents being given access. They said we're now making the rules much more difficult for those who are paying as non-custodial parents, but we're doing nothing to help them get access to their children. One of the things that was included—we were told this by the minister from Saskatchewan, and I'm surprised that it's working—was that passports were being taken away from people who don't pay. She said that has helped in four cases. When they knew they couldn't use their passports, they started paying.

Now, in your mind, what would be wrong with taking away the passport of a custodial parent who refused access for some period of time? Isn't it reasonable that what's good for the goose should be good for the gander?

A voice: No.

Senator Duncan Jessiman: No? I'm just asking. That's my question.

Would you not think that in the event that you have a custodial parent who is being paid regularly, and she refuses to give access...? You're answer was that she's in contempt of court, and if she goes to court a number of times she can be thrown in jail. We all know that's impractical, but surely we can think of some other things.

• 1705

I'm suggesting the passport only because it was done on the other one. Why not do that in the case of non-access? I want to deal with that one first.

Senator Anne Cools: This is profound now.

Senator Duncan Jessiman: I don't know how profound, but it seems to make some sense to me.

Ms. Miriam Grassby: We're in no position as the Quebec bar to take a position on that, but I'm in a position to discuss it—

Senator Duncan Jessiman: Right, we're here to try to get knowledge.

Ms. Miriam Grassby: I would simply say in a discussion that, for one thing, taking away the passport isn't really all that effective for the money matters, because it affects only a very few people, but it is effective when it's effective. There's no reason per se that if it has been found after a hearing that there was no cause for visiting rights not to be respected...then it is something that could be envisaged. I'm wondering whether—

Senator Duncan Jessiman: There could be other things as well. A driver's licence.

Ms. Miriam Grassby: Could it work the other way, though, when parents don't exercise their visiting rights?

Senator Duncan Jessiman: Why not? Sure, I have no objection to that. We're here to try to be fair. The people who came before us mainly were complaining about the fact that they were being forced to pay and we, because we were passing the laws, were making it more stringent upon them, but we were doing nothing to help them because—this is what they were saying to us—they were having difficulty getting access to their children. Everyone sat back and said, well—just like you said—what is the answer? They're in contempt of court. Put them in jail. But that's not practical either.

But maybe that would be the answer. But there must be other ways you could penalize a custodial parent rather than by putting them in jail. We all speak as if they're always the female, and it is not always the case now.

[Translation]

Mr. Roger Garneau: The Barreau's Fondation has recommended that free access, quick access to a judge for action and possible revision of the decision be fast-tracked. There may be a change of custody. For a parent wanting custody of a child, being threatened with losing custody because he or she opposes to access may be an effective solution, I believe, if the judge takes his responsibilities seriously. That doesn't cost a cent, but it's much more important.

Those parents who abuse their custodial rights should be threatened with losing them. I believe this is an effective measure. You're suggesting others which, yes, we can consider.

[English]

Senator Duncan Jessiman: The only problem one has with that, the loss of custody, is that the other parent isn't always able to take care of the child; he doesn't have the facilities. I'm only using that as an alternative.

I have one other question and then I'll yield, if I may.

Have you ever considered supervised access in Quebec?

Ms. Miriam Grassby: We have supervised access in cases that require it, and that was one of the things where I was suggesting we need more financing, because if it was more readily accessible, a little bit easier to handle, it could be used more frequently. Supervised access is good in situations where there are some serious problems, but where there should still be contact between the parents.

Senator Duncan Jessiman: The experience is that for those have used it, it has worked out. Is this your—

Ms. Miriam Grassby: It does work. The only thing is that regretfully there's only one place, for example, in Montreal, and so you have to make an appointment. If we had more money, it would be preferable. We need resources.

Senator Duncan Jessiman: I have one other quick question. You say it's obligatory that they have one session and it's voluntary if they want to... It's obligatory before you're granted a divorce or given custody. Is that a three-hour session or...?

Ms. Miriam Grassby: It's a one-hour and ten-minute session, but you don't have to be together, husband and wife. It's obligatory to give you information on what mediation is about. Because of the problem with the power struggle sometimes in a couple, where one is more powerful than the other, it was decided not to make it obligatory and that they shouldn't have to be in the same place at the same time.

Senator Duncan Jessiman: Would you think that it might be going in the right direction to make it obligatory to spend more than one hour and a half?

Ms. Miriam Grassby: No.

Senator Duncan Jessiman: You don't think so?

Ms. Miriam Grassby: We worked hard on that one.

Senator Duncan Jessiman: Really?

• 1710

The Joint Chair (Mr. Roger Gallaway): Senator Cools.

Senator Anne Cools: Thank you, Mr. Chairman. I appreciate this opportunity.

I would like to thank the witnesses for coming before us. I believe at least one of these very same witnesses appeared before us last year. I know Ms. Grassby did, and maybe some of the other witnesses did. Was it the same group that came last year?

Ms. Suzanne Vadboncoeur: Yes, on Bill C-41.

Senator Anne Cools: Bill C-41? All right. I'll just welcome you again.

I have a couple of questions, and I'd like to lead to them. After listening to Mr. Goubau, I was ready to go out to recommend that this committee recommend the adoption of the Civil Code provisions and the Civil Code principles, but now Ms. Grassby tells us that they're not working adequately in the area of access either, so I shall exercise some restraint in the recommendation.

I would like to ask you a couple of things. I'll get the technical issues out of the way—the easy ones. The witness referred to a list of the case law—I think he said 70 cases, including some on grandparents' rights. I wonder if he could allow us copies of that list.

[Translation]

Mr. Dominique Goubau: Yes, yes, but I could give you the text I have written, which is based on the study of these cases.

[English]

Senator Anne Cools: Right. I'd just like to have it, because if you've done all the work, it's nice, as it saves us some work. I thank you for the list in advance.

The other thing I'd like to say is that you said early in your testimony—I think your exact words were that there was a need for the humanizing of family law. I believe the witness speaking at the time was Mr. Goubau. I was very struck by that remark. I found it a very stunning statement, that family law has been dehumanized. Again, I think it is striking.

I wonder if the witness could explain what he means when he says that family law has been dehumanized, and I wonder if he could share with us the social, the legal, and the political forces that have caused the dehumanization of family law.

[Translation]

Mr. Roger Garneau: I would like to say that I don't believe I said family law had been dehumanized. What I said was that the Barreau's Fondation had developed a research project precisely for the purpose of trying to make the practice of family law in the Province of Quebec more humane, to humanize it further. I didn't say that it had become dehumanized, but there is room for improvement. First we want to protect the interests of children and we want parents to be well received by the courts, to be listened to, properly understood and to have their problems resolved in a calm, human way.

[English]

Senator Anne Cools: I thought you said there was a need to humanize family law. I could be wrong, but I'm pretty certain I heard one of you say—

[Translation]

Mr. Roger Garneau: Well, I'm sure there is a need to humanize it.

[English]

Senator Anne Cools: —that there was a need to humanize. To humanize means to remove dehumanization.

A voice: No, it means more humanization.

[Translation]

Mr. Roger Garneau: No, I believe family law can be humanized further. Definitely.

[English]

Senator Anne Cools: Okay. In other words, it doesn't have enough humanity—that's what you're saying.

Mr. Roger Garneau: I beg your pardon?

Senator Anne Cools: You're saying, then, that family law in your province currently lacks sufficient humanity.

Mr. Roger Garneau: Sometimes, yes.

Senator Anne Cools: All right; I just want to be clear.

Mr. Roger Garneau: In practice.

Senator Anne Cools: In practice—very well.

Mr. Roger Garneau: Not in principle.

Senator Anne Cools: What is that practice, then, in family law that lacks humanity?

[Translation]

Mr. Roger Garneau: For example, the Fondation noted that one of the major grievances of divorced taxpayers concerns the long delays before sometimes small problems can be settled: waiting periods at courthouses, needless vacations, postponed hearings, postponements, the many postponements of proceedings that result in high costs to the litigants. This is all contrary to the interests of the people involved, and these are irritants that were raised by most people: the delays.

• 1715

They also mentioned the judges' lack of empathy and interest towards taxpayers who go to court to set out their problems. They mentioned the lack of time available to litigants, who are deprived of the opportunity to put all their problems before the judges. Some judges are not prepared to hear these cases, have no interest in these cases and, unfortunately, project a poor image of the justice system. Although they are in the minority, they nevertheless project a bad image. We noted that these are isolated cases, but we would nevertheless prefer that there be as few of them as possible.

[English]

Senator Anne Cools: Okay. Thanks. My other question is about the term “best interests of the child”, which is very commonly used these days. What is the origin of the term “best interests of the child”?

[Translation]

A Voice: The origin?

[English]

Senator Anne Cools: It doesn't live in the Divorce Act. The witnesses a few days ago would have had us believe that the term lives in the Divorce Act, but it doesn't. What is the origin of the term “the best interests of the child”?

[Translation]

Mr. Dominique Goubau: It's a case law notion; the courts were the first to talk about it. In English law, starting in the seventeenth century, you see traces of the notion of the interests of the child in certain English decisions. In the nineteenth century, the courts began to talk more and more about the notion of the interests of the child. In 1804, the Napoleonic Code adopted it completely, talking more about needs than interests.

Its spread, that is to say its central nature, in our Canadian statutes, both provincial and federal, mainly dates back to the late 1970s and early 1980s. At that time, this notion became a fundamental concern and was recognized in certain international instruments as the central pivot of...

[Editor's Note: Inaudible] ...with respect to children.

I believe the early eighties may be considered as the period when this notion became universal in family law.

[English]

The Joint Chair (Mr. Roger Gallaway): Thank you very much.

A voice: No, it's not.

The Joint Chair (Mr. Roger Gallaway): Madame St-Hilaire.

[Translation]

Ms. Caroline St-Hilaire: First I would like to thank the witnesses. I find the debate very interesting and I feel you have done a very good job of explaining the Quebec system to my colleagues on the committee. What I've been wondering since the committee was struck is to what extent the federal government can intervene to improve family law. Perhaps I would like to hear the Barreau's position on that.

You spoke about access for grandparents, which is precisely a provincial jurisdiction. How far can the federal government go before its actions amount to interference? Do you think the federal government should intervene if Quebec does not need it, regardless of whether things are working more or less as they should? It seems to me you have to take into account the fact that some things, like mediation, for example, have developed very recently. So I would like to know your position on this point. That's my first question.

Ms. Suzanne Vadboncoeur: Generally speaking, Ms. Grassby said earlier that the Barreau du Québec was rather opposed to legislative solutions in this area. Second, when you ask us what the Barreau' position is on potential federal government interference, obviously, that depends. We're speaking here in a highly hypothetical way. It is true that the Barreau has already intervened. I even have here a copy of the letter that was sent by the President of the Barreau du Québec at the time, in 1994, to the Minister of that time, Mr. Allan Rock, on the bill that was under consideration to grant access to grandparents.

However, we'll have to see. Obviously, we are here to give you our opinion, but if ever your proceedings resulted in legislative recommendations, the Barreau du Québec would definitely appear once again to give its opinion. In general, however, we are not in favour of legislative amendments at this stage.

Ms. Caroline St-Hilaire: My second question is for Mr. Garneau. You spoke briefly earlier about the fast-track. I don't know—please pardon my ignorance—if this is in effect or whether it was simply a suggestion.

• 1720

Mr. Roger Garneau: It was a suggestion by the Fondation and it has not yet been acted on.

Ms. Caroline St-Hilaire: Do you think it is feasible?

Mr. Roger Garneau: I believe it's feasible, but it would require considerable cooperation between the government, courthouses and judges.

Ms. Caroline St-Hilaire: Very good. Perfect.

Ms. Miriam Grassby: You must understand that there's a growing movement in the courts toward improving the situation. For example, I believe that Quebec was one of the first provinces to do this. We are now fast-tracking certain types of trials.

When you have a model, it then becomes easier to apply it elsewhere, in areas where there are problems. All this is part of the general movement toward improving the system, just as it may be seen that the purpose of the work done by the Fondation, which was established by the Barreau, was to try to improve the system.

Ms. St-Hilaire is asking us whether we are working with others, if we are conducting research. We can answer that, when problems arise, we try to find ways to solve them.

Ms. Caroline St-Hilaire: Thank you.

Ms. Suzanne Vadboncoeur: To round out the answer I gave you a moment ago, I would add that the Barreau definitely would not object to having certain criteria contained in the Quebec Civil Code incorporated in the Divorce Act.

A Voice: I believe that's right.

Ms. Suzanne Vadboncoeur: A moment ago, I mentioned article 33 of the Quebec Civil Code, which provides the courts with certain criteria that must be taken into consideration when they reach decisions concerning children. We obviously would not object to having this article incorporated in the Divorce Act.

[English]

The Joint Chair (Senator Landon Pearson (Ontario, Lib.)): Senator DeWare.

Senator Mabel DeWare: Thank you. I really appreciate your coming before the committee. As I was chairing the one on Bill C-41, I would just like to say that's how this all came about.

The majority of the witnesses who came before the committee were very concerned with access and custody. They kept getting off-track of child support. We had to keep reminding them why they were there. Therefore, that's the importance of this.

I am pleased to hear you speak about better training, and we're talking about judges and maybe family lawyers.

Also, Dr. Bennett, I have a son who is a family practitioner. He tells me that a large percentage of his practice today is counselling in a lot of things, young people and families. Therefore, I think maybe you're going have to tack your family practitioners into this little group that you think needs... I don't think they need to be trained; they may need to be—

Ms. Carolyn Bennett: Consulted.

Senator Mabel DeWare: —consulted properly.

I'm still concerned about mediation. We had some information brought before the committee about Alberta. I'm not sure whether in Alberta it's compulsory or whether it's just offered, the same as you do, but there have apparently been some quite good results. I'm looking forward, if we do travel out there, to making sure we have those people come before our committee to give us the documentation on it.

I think it is, as you say, in the best interests of all concerned. It would keep the family unit together, if possible. I know when it comes time for a divorce, then we're in conflict and sometimes it isn't possible, but if it's possible, that would be our first objective.

The second objective would be joint custody. When I say joint custody, I mean actual access to the child. Have you any figures?

Ms. Miriam Grassby: Joint physical custody?

Senator Mabel DeWare: Yes. I don't know whether you speak of 40-60 or 30-70, or what you feel that joint physical custody contains, but would you have any figures on a case load that would show that's preferable to other kinds of custody?

Ms. Miriam Grassby: Are you asking if there is anything that would suggest that from the case law?

Senator Mabel DeWare: Yes.

Ms. Miriam Grassby: The answer is no. As Mr. Goubau mentioned, there have been various presumptions for it and certain places that have moved away from it.

One of the things I have found personally is that some families have the flexibility to live with it, and if there's no hostility and there's cooperation, it can sometimes work. But it's not something that necessarily works well, and I'm not sure we're here today to really discuss that issue. We haven't taken a position, but it would be a very big change. In Quebec, we like our parental authority.

Senator Mabel DeWare: The other question is do you ever see your judges, who see these people continually if the case has to come before them again, suggesting mediation at a later date?

• 1725

Ms. Miriam Grassby: There are judges who will suggest things like mediation or therapy, who will say it's a situation where family therapy would be helpful, or, for example, where a child refuses...because there are children who refuse in a situation. I've had situations where the children refuse to go with the father, for example, and it's often because the father made some mistakes. He moved out and the children were upset, or he moved in with somebody too quickly and there were other children. It makes for a very difficult situation. So seeing that, a judge may say, “Let a little time go by. Why don't you try a little therapy?”

I recently saw a case where it was very problematic and the judge recommended therapy. They try to resolve the issues with what's available.

Senator Mabel DeWare: That's very interesting.

Speaking of the word “custody”, has anybody ever suggested to you people, or have you looked at, trying to find another word for custody, like “parenting” or something along those lines?

Voices: Oh, oh!

Ms. Miriam Grassby: You know, there's an issue...and you can answer that, Maître Goubau, if you want to. You have to remember that one of the problems could be the word or it could be the fact that it's not you. It could be the word or the fact that you don't have as much control as you used to have, or that someone is telling you how to run your life. So I'm not sure that changing the word would make such a difference, because there would still be some who might feel that they haven't got the benefit of the word.

What Maître Goubau was saying, and he said it well—and he may want to add to it—was that if you do have joint parental authority and there is then an issue of who the child is going to live with, it may not feel so bad because you are keeping that decisional process.

It's a bit tricky for us in Quebec, though, to comment on some of the custody, because custody comes with a whole baggage of what goes with it and it sort of doesn't mean the same thing in Quebec because we have joint parental authority.

Senator Mabel DeWare: Yes, but when we had the bill before us it came up several times. People really found the word “custody”...I don't know whether they found it offensive, but they just hoped we could find a different word.

Ms. Suzanne Vadboncoeur: Maybe the solution would be not to use the word “access”. In French, if we say

[Translation]

“custody”, custody could be 60 percent and 40 percent, or 70 percent and 30 percent. If we're talking solely about custody, without talking about access, that would necessarily mean physical custody, and we would stick to the legal concept of parental authority.

[English]

Senator Mabel DeWare: Thank you very much.

The Joint Chair (Mr. Roger Gallaway): Last but not least, Mr. Lowther.

Mr. Eric Lowther (Calgary Centre, Ref.): Thank you, Mr. Chair. We're at the end of this and everybody is probably losing a little steam, but I just wanted to go back to something that was asked a little earlier.

We talked about the need to have the courts and lawyers “humanize”, I think the word was, the system a little more, and I thought that the role of law and law enforcement was not really so much the role of being family counsellors. I see this humanizing thing and the training that we talked about there a little...are we advocating that the legal system take on a sort of family counsellor role as opposed to the role of interpreting law and applying it? I know there may be some crossover there, but it seems as if you're stepping into the area of family counselling here. Is that true?

Ms. Miriam Grassby: When people come and ask for advice on a contract, for example, you use your experience in order to give your advice. If someone comes in and says to you he wants this and that and the other and is very strident, it's part of your role as an attorney to say, “Excuse me, this may be the position you take now, but this may have consequences for you. If you're too aggressive now, you may later regret it because there will be bad feelings, so why don't we look for another approach?” It's part of a lawyer's job to think of the long-term best interests of the children.

Mr. Eric Lowther: But I would think the focus would be more on interpreting law than on applying family-based counselling.

But if in fact this is the direction you're advocating, this family counselling role, I'd like to get some ideas as to what you see being the priorities within that role. What parameters are you running your family counselling program around? How do you decide what's important within this family counselling role with a sort of legal foundation underneath it? What are your priorities?

• 1730

Ms. Miriam Grassby: I don't think it's correct to say it's a family counselling role. That's why you deal with specialists in the field: because sometimes you can't just look at the short-term consequences, you have to look at the long-term consequences.

Mr. Eric Lowther: Excuse me, but you did say you should get more training in family matters and family counselling.

Ms. Miriam Grassby: Yes, in understanding what happens to people who divorce, in understanding how they make decisions, in understanding how their decisions affect their children. Those are the kinds of things we should be helping people with when they have to make legal decisions: Am I going to go to court? Am I going to appeal this decision? Am I going to appeal if I've lost the custody, or am I not going to file an appeal? It's part of our role as lawyers. We have to be able to advise them as to whether or not it is in the best interests of the children. I don't see that as family counselling, I see it as part of a lawyer's—

Mr. Eric Lowther: So is that the priority in a more human approach, then? Is part of this number one priority this term that we've used today, what's “in the best interests of the children”?

Ms. Miriam Grassby: As family law develops, I think what the lawyers attempt to do more and more is give good advice to parents in the interests of their children. When you have a study from the Comité du Barreau, for example, this amazing thousand-person survey, and when they see the situations in which that might not have been, for example, they say this could be improved on, because they want to go in that direction.

There's an interesting book written about the protection of rights and the protection of—well, I forget the term. You can go strictly for rights, or you can go for rights in the long-term interests of all the parties—all the parties being the “family unit”. I think that's what the family lawyers are attempting to do.

Mr. Eric Lowther: Okay.

Ms. Miriam Grassby: And the courts are, too.

Mr. Eric Lowther: I won't drag this on, Mr. Chairman, but what I'm wondering is this. Are we prioritizing the best interests of children if we're saying this is where we want to be, and that it could be clearly demonstrated that in the best interests of children they should have access to both parents?

Admittedly, your experience is that you've probably seen some situations in which one of the parents might not be deemed to be in the best interests of the child. In the majority, however—or in a number of cases, let's say—it's demonstrated that it is in the best interests of the child to have access to both parents. There are always the duelling study programs that people can get into, but I've seen some studies that suggest it is in the best interests of the child to have access to both parents.

I would think that if it is that you've taken on a bit of a family role here with this humanizing factor, if you also have the legal system behind you, and if a child was not allowed to have access to both parents because one of the parents was using it to get back at the other, you would be all the more predisposed to ensure that the child had access to both parents and was not used as a sort of pawn by one against the other or whatever. I don't see any expression of that in the greater humanization factor that's been expressed here. It's just a case of wanting to make everybody happy with this training, but I'm not seeing that other aspect.

Ms. Miriam Grassby: I think you're just not seeing it ,because I don't think it was something that was... What you heard was the fact that these thousand people who got divorced went through the system and felt the system had worked well for them, so they were happy with it. We weren't talking about specific issues. They dealt with issues of access, they dealt with issues of custody, and were generally satisfied.

I think you have to be careful, and I'm not sure what your question is. Are you asking if it is good for all children to have access to both parents and therefore should there be a presumption of joint custody? I don't think there's been any proof that this is the case, and I wouldn't want to get into that debate at the tail end of this meeting.

Certainly if you're saying that if you discover—and we've been saying this ourselves—that there is a problem of bad faith in non-access, of course there have to be solutions found to those problems.

[Translation]

The Joint Chair (Senator Landon Pearson): Thank you very much. This afternoon has been very interesting. We very much appreciate your coming here to talk to us. Each of you offered a particular view that added a great deal to our understanding of the subject before us. Thank you very much.

• 1735

[English]

The Joint Chair (Mr. Roger Gallaway): Before we break, members of the committee, the next meeting of the committee will be Monday afternoon, at which time we're going to discuss and hopefully approve our work plan and, most importantly, our budget. Tomorrow the steering committee meets at 9 a.m.

Thank you. The meeting is adjourned.