Parliament of Canada, House of Commons Transcripts, October 17, 1995
[Regarding Bill C-232, an Act to amend the Divorce Act (specifically regarding grand-parental access to, or custody of, a grand-child after a divorce]
[Here prominent Watchtower Lawyer Mr. W. Glen How is arguing against the part of the proposal which would make it easier for grandparents to be involved in divorce litigation with respect to children]
The Chairman: Good morning. Today we are again dealing with Bill C-232, an Act to amend the Divorce Act (granting access to, or custody of, a child to a grandparent). We have as witnesses today Mr. Glen How, Q.C., Barrister and Solicitor. We also have Andrι Charbonneau, avocat.
Mr. W. Glen How (Barrister and Solicitor, W. Glen How & Associates): Mr. Chairman, hon. members, and the other witnesses who are here, it's a pleasure to be able to appear here and discuss this case and the problem of divorce.
Family litigation has become one of the major problems confronting our courts. It's been estimated that in Ontario, at least, about 50% of all the court work being done involves family law. So it's a very serious matter from the standpoint of both the people and the taxpayer, and I appreciate that you're giving this subject the attention you are.
I might say I've had a lot of experience in family law. The two latest cases on this subject in the Supreme Court of Canada were cases I argued. I would like to address those.
At the moment I would refer to Bill C-232, which is the subject-matter under discussion. I've filed a memorandum with my comments on Bill C-232. I just preface my comments with the point that the law regarding family law is not satisfactory. Even the Supreme Court couldn't figure it out. They filed judgments that are highly contradictory. Many academic writers - and I've quoted some of them here - have said it's so bad that it's time we took family law out of the courts and put it into some administrative tribunal.
I don't think I'll go quite that far. What I am really getting at is that here we're dealing with a subject where the law is in a very unsatisfactory state. I therefore appreciate that you're giving serious consideration to it.
The other feature I want to discuss is the rights of access for both parents and the right of both access parent and custodial parent to have free interchange of information and to teach the child what he believes as well as what the custodial parent believes. This is all part of family life. Lots of people disagree on many things. Children are entitled to know that and to know the access parent as well as the custodial parent as a person.
The kind of restrictions that have been put on many access parents... In fact, we have two of those cases, one at the Supreme Court. It's wrong. It's a violation of the charter, and these charter rights should be respected. I think all members of Parliament want charter rights to be respected.
I won't go into all the details. I have made here certain suggestions on what can be done about it and how the law can be improved. But I want to say one thing further.
We're all thinking and worrying and giving our best attention to what can be done to improve the separations and actions under the Divorce Act. But how about going back a little further and being realistic?
With respect, the point I am making is this. If we were to count the amount of money we are spending on courts, lawyers, and consideration of divorces and family break-up...if we spent a little of that money on trying to teach people how to stay together, we would be doing a whole lot more for families, for children, and for what can be done for the welfare of the Canadian people.
I make that submission as my conclusion. These are the points I would like to discuss. I know you have some gentlemen here who are great cross-examiners, so I will be glad to have their questions.
Mr. How: Yes. On page 124, in tab 2, I wrote:
By granting such restrictions and substituting prejudice for evidence, judges are undermining the liberties guaranteed by the Constitution. Rather than promoting tolerance, they are encouraging intolerance. Instead of providing guidelines that will help settle custody disputes, they're only paving the way for needless disputation.
This is an article I wrote discussing the Young and D.P. case.
Increased litigation is not the answer. Broken families cannot afford it. Litigation, particularly at the Supreme Court level, is only useful to develop clear ground rules that will provide consistency and predictability. With proper ground rules, lawyers will have a basis for settling cases instead of burdening the people and the judicial system with unnecessary and repetitive litigation.
That's what I'm trying to avoid.
Mrs. Jennings: Thank you, Mr. How, but I would respectfully submit that it depends on who the people are we're considering.
Mr. How: I agree with that. You probably know a lot of nice people, and nice grandparents - I do too, and I'm glad of that - but you have a lot of other people. They're really nice people if they behave themselves. Perhaps a lot of them hold their families together. But you have many broken families where children have never known what their real home is, and so on. Many of these cases I've had and that I've referred to here are cases where religious intolerance has been openly avowed as the intent of the parties involved.
So, yes, if you have nice people, Mrs. Jennings, you probably won't have any of these situations, but you have to recognize that laws have to be made for everybody. Some are nice people, and a lot of them aren't.
Mrs. Jennings: Mr. How, I'd like to point out to you that Mr. Culhane deals with about 100 cases a year dealing with grandparents' issues. Most are settled out of court. This year 40 were in court, and he won them.
I agree with you that increased litigation is not the answer, but I suggest to you that this is exactly what we have now in the fact that grandparents have to go and initiate the action in court instead of it already being given withstanding in the courts. That necessitates a whole new action; sometimes a whole new judge who is unfamiliar with the case; costs to the taxpayers; a new courtroom; and the parents have to come back. That is increased litigation of far greater proportion than the litigation you suggest would be bothersome by the grandparents being heard at the same time.
I'd like your comments on that.
Mr. How: If they have a serious matter, yes, they can get leave of the judge, but if they can just go to court willy-nilly at any time and occupy the court's time and so on in a promotion that very often is going to be something contrary to the welfare of the child and based simply on family pride....
For example, I can give you a case - and I mentioned it in the letter I wrote to the committee to begin with - where a family was broken up. This young lady, the mother of the child, was a decent young woman and the husband was a drug dealer, was irresponsible, and was just a spoiled brat. He had been raised by a very wealthy family, but the pride of his parents wouldn't allow this poor little mother to have custody of the child.
So those wealthy parents spent a quarter of a million dollars in an effort to create a storm about the fact that the girl was one of Jehovah's Witnesses. They didn't like her religion. They were ready to spend this money to try to get that child into the hands of that irresponsible, criminal father. That's what the grandparents were doing. I have had similar cases in other places. That's just one of many.
So you see, that's why, Mrs. Jennings, you have to keep a balance. What might seem to do wrong in one case may do right in another, so you have to consider what, on balance, is going to be the best. You may point to one case that is wrong, that has had a bad result because of the requirement of a court order before they can start. Well, there are many other cases where grandparental interference has been very damaging. It cuts both ways.
All I'm saying is they can get into court if they have a serious point, but if they're just there to meddle, then it's good that they have a hurdle to get over.
I just think the requirement of getting leave provides a bit of a buffer so you don't have people running to court just because they've had an argument with their daughter-in-law or something of that kind. People with lots of money unfortunately don't mind spending it on purely personal disagreements.
That is how bad it is. I will tell you the solution. I proposed this to the Supreme Court when I was arguing the case: It is time you laid down some rules about what the ``best interest'' is. The best interest can be anything from good food or bad food, spanking or no spanking, or all the other different opinions abroad. That is not an opinion that a judge should get involved in.
Look at the judges in my cases. In British Columbia, there was the Young case. Madam Justice Proudfoot said to put a stop to this man; he was teaching something. Really, it was something she disagreed with, so she prohibited him from speaking to his family about his religion.
Then it went to the British Columbia Court of Appeal. They said it was a scandal and that she had no business to make any such order, so they reversed it. The Supreme Court maintained the British Columbia Court of Appeal.
So you've got these wild differences. They swing completely one way, then completely the opposite way. So if there are two lawyers looking at a problem, how are they ever going to have anything that they can put their hands on to try to make a settlement?
That is what should be done. We shouldn't be litigating these cases. When these cases have to go to litigation, all parties lose.
Mr. Gallaway: How much, in your view, does this proposed bill change the traditionally accepted role of who a parent is?
Mr. How: I already said that. It just opens the door to more interference without even the cautionary point of demonstrating to a judge that there is value in additional people being involved.
Anybody can be involved if they can show a good reason to the judge. In some cases, the grandparents should be involved, while in other cases, frankly, it is only family pride or something of that kind, rather than the welfare of the child. That's what I find very troublesome. I just think this is a useful check on improper and indefensible interference.
Mr. Ramsay: Thank you, Mr. Chairman.
I appreciate very much the question of discretion as you have applied it to this whole idea of the best interests of the child and how dangerous discretion can be. Yet, you would argue for the judge to maintain the discretion as to whether or not to accept the application of a grandparent for standing. You would argue that he should maintain the discretion when you speak so eloquently against that kind of discretion.
So I am at a bit of a loss to understand how you apply that. It doesn't seem to me that it is being applied equally. Maybe that is not a fair suggestion to make, but I would like you to clarify that for me.
On the one hand, it seems to me you are pointing out very well the damage that the discretion of the court can have. On the other hand, you are saying the judge should maintain that discretion when it comes to grandparents under the present Divorce Act by having to make an application. They are granted an application solely based upon the discretion of the judge -
Mr. How: May I answer you?
Mr. Ramsay: Let me finish - whereas the amendment to the Divorce Act would take that discretion away from the judge and grant grandparents the right of standing, which would, of course, remove the discretion that you have discussed here.
Mr. How: All right.
The point is this: it's a problem between uncontrolled discretion and controlled discretion. Controlled discretion means that there are some guidelines for the exercise of it; uncontrolled discretion means go whichever way the wind blows and do whatever you want.
Judges are very familiar with the principle of whether or not a person has a justiciable [sic] interest that would justify letting them get into a case, to be represented, or to be part of it. There are many legal rules and principles that can be applied to decide that. So it's an exercise of a controlled discretion.
What I'm objecting to as far as this business of "best interests" is concerned is that it's a totally uncontrolled discretion, which really is a violation of constitutional law.
Mr. Ramsay: I thank the chairman for this, because it's a follow-up, and five or ten minutes later it would be inappropriate to ask.
As far as my understanding of the Divorce Act is concerned, we have that discretionary power of the judge to say to any grandparent that he has considered their application, but that he rejects their application. So no grandparent appearing before that individual judge would ever have access, because the judge has that discretion. That's what I'm talking about now.
Under this bill, that discretion would be removed. Grandparents would have a right they never had before to present the case because of the power of discretion.
You have not argued well, in my mind - I say this with respect - concerning the contradiction that appears to be in your argument about discretion in terms of the ``best interests'' while denying it in this other case. I'm sorry, but you have not made the point.
I don't have a legal mind. Perhaps that is what is required to catch the point you've made, but you have not made that with me.
Ms Phinney: Your comments on page 5 of the introduction say that ``Uncontrolled discretion has led to religious discrimination.'' You commented briefly on that. Could you expand on that a bit?
Mr. How: Yes, I would be happy to. This is something that was the basis of the Young v. Young case. The mother came to court saying that she was intolerant and that she demanded her husband be stopped from talking about his religion to the children. Her intolerance was the basis of the case.
I will refer you back to tab 2. I've quoted some of the judgments to show you the completely opposite views of judges.
The trial judge was Justice Proudfoot. With the greatest of respect, she's a lady who sometimes seems to come to court with her mind already made up before the case starts. Worse than that, if counsels continue to disagree with her, she treats it as a personal affront.
In that particular case, when the case was over and she ruled against me, she also said that I ought to be condemned to pay all the costs, which was a little matter of around $50,000. I would have felt bad except that she had done the same thing with three other lawyers and the Court of Appeal reversed all those cases anyway.
This is what she ordered. This is not a legal order; this is a religious order:
The respondent shall not discuss the Jehovah's Witness religion with the children and shall not take any of the children to any religious services, canvassing or meetings, without the written consent of the petitioner...
Mind you, that's the petitioner who broadcast her own intolerance.
So he can't talk to them of it and he can't take them to church with him.
The judge said he:
...shall not expose the children to the religious discussions with a third party...
In other words, the subject of the religion of the father can't even be mentioned.
I'm on tab 2, page 111. At the bottom of the page was a decision of Judge Wood of the Court of Appeal. He discussed the guarantees in the charter. The charter guarantees free exercise of religion. If you can't talk to your own children, what freedom is there?
After discussing the charter, he says:
From this it follows that each parent is entitled to hold his or her own views on matters of religion. Each is entitled `without fear of hindrance or reprisal' to manifest their religious beliefs openly, `by worship and practice or by teaching and dissemination'. For each an important element of the right to teach and to disseminate their respective beliefs must surely be the right to share those beliefs with their children.
It follows from all that has been said that the learned trial judge
- the one who made this gag order -
erred when she held that restrictions of the sort which were ultimately imposed on Mr. Young's right of access did not infringe his fundamental freedom of religion under s.2(a) of the Charter.
When that case went to the Supreme Court of Canada, they maintained the judgment of the Court of Appeal, but it was on a 4:3 decision.
Am I helping or confusing?
Ms Phinney: I'm not sure how this involves grandparents - but my time's up.
Mrs. Jennings: Yes, there are more questions, Mr. How. As a matter of fact, I must agree with Mr. Ramsay in that you have not convinced me at all in your arguments.
You mentioned the best interests of the child. I would suggest to you that maybe the United Nations knows a little bit about the best interests of the child when they unanimously supported the UN Convention on the Rights of the Child, which said they must have access to their family.
I'm really interested in that, because I keep hearing that the grandparents might interfere and do all these things.
I suggest to you that, in the majority of cases, grandparents are good, caring people. You keep speaking of a few cases that are, to me, a very minimal amount. I've been across Canada. I've spoken to grandparents. I'm very concerned about this misrepresentation, as I see it.
Mr. How: I'm not trying to misrepresent anything. Most grandparents are good people, I agree with that. Most grandparents don't have to go to court. You don't have these arguments in most families.
Once in a while you do see this. I think this is a useful protection, because I have seen a number of cases in which grandparents sometimes have been helpful, and sometimes they've only created problems. It cuts both ways. I don't think the world's going to stop going around either way. I think the law, as it is, is adequate.
Mrs. Jennings: Would you comment on my question about the United Nations - and Canada - agreeing that the child has a right of access to his or her family?
Mr. How: Yes, I think so. I don't dispute that. I want families to be together. What I'm showing is that the matter of all these things going to court is often not a good thing and I don't want to encourage it.
[Compare Watchtower quotes that do not keep families together: Disfellowshiping.]
That's my view. I see this as very damaging. Whether it's in or it's out, I don't think it's going to make a major thing. We're going too far on being legalistic, instead of trying to look after people and helping them keep their families together.
I have a volume here that suggests some of the things that could be done if we spent some more time keeping people together. This is called ``Making Your Family Life Happy''. It's the kind of a thing the government should be putting out.
If we held people together, it would save a lot more trouble in the long run. They'd be happier if they stayed together and sweated through a few problems, instead of throwing in the sponge the first time they get in an argument.
A lady came to ask about a divorce one time. I asked her a few questions. She and her husband got into an argument at the wedding reception and they broke up at that point. Now she was looking for a divorce. They never even got together to consummate the marriage.
We have a lot of funny people around these days. I try to keep a balance.
Ms Torsney: What was your earlier point that you wanted to elaborate on and you didn't have a chance to?
Mr. How: Thank you.
The point I wanted to make was arising from these several cases wherein there had been religious restrictions against a parent because the judges disapproved of their religion. This is a violation of the charter, but in Quebec it's a standard pattern. The Quebec Court of Appeal - I've been there on five different cases - always restricts the rights of Jehovah's Witnesses in every case. They've narrowed it down, they've reversed each other, but they always restrict. It's quite unfair, but this kind of abuse is reserved for Jehovah's Witnesses and nobody else.
I draw your attention to tab 2, and I quote from page 124, where there are comments by a legal writer, John Syrtash, who has written a book on religion and culture in the Canadian family. He points out the reality there:
The judicial prejudice against Jehovah's Witnesses and certain Pentecostal Churches in custody and access disputes is particularly disturbing.
The courts are prejudiced against those religions that encompass an entire way of life, and which insulate themselves from the community as a whole, even though the courts purportedly claim not to prefer one religion over another.
They are doing so.
[Note: see Quotes subject Paranoia]
Mr. How: May I say just one further thing? I have written a chapter on this subject of religion and custody and access disputes in Mr. McLeod's book. I wasn't able to get copies earlier in the day, but they've been brought in now. This is a subject that should be given consideration before this matter is completed, so I'd like to leave these. You can either pass them around -
The Chairman: Thank you very much, Mr. How. The clerk will pass them around to everyone on the committee.
Thank you. The meeting is adjourned.