Canadian Grandparents Rights Association

When the Special Joint Committee on Child Custody and Access released their Report,
For the Sake of the Children, recognizing the need for and making 48 recommendations
to change the Divorce Act, thousands of excited grandparents, parents, and children across Canada waited with anticipation for the new legislation.

The first of 48 recommendations:
1. This Committee recommends that the Divorce Act be amended to include a Preamble alluding to the relevant Principles of the United Nations Convention on the Rights of the Child.

The Convention on the Rights of the Child was opened for signature by the United Nations General Assembly on 20 November 1989. Canada signed on 28 May 1990. After the requisite 30 nations had ratified the Convention, it came into force on 2 September 1990. Canada ratified it in December 1991 and submitted its initial report to the UN Committee on the Rights of the Child in June 1994. This Convention, which is the most widely ratified human rights treaty in history, sets minimum legal and moral standards for the protection of children’s human rights, including civil rights and freedoms, rights related to the provision of optimal conditions for growth and development (health care, education, economic security, recreation), and the right to protection from abuse, exploitation, neglect and unnecessary harm. The Convention expressly recognizes the special role of the family in the nurture of the child.

The key provisions of the Convention relating to the subject matter of this study include article 3, which states that in all actions concerning children, the best interests of the child shall be a primary consideration; article 9, which includes the right of the child to contact with both parents if separated from one of them; and article 12, which provides that children have the right to express their views freely in matters affecting them.

2. This Committee recognizes that parents’ relationships with their children do not end upon separation or divorce and therefore recommends that the Divorce Act be amended to add a Preamble containing the principle that divorced parents and their children are entitled to a close and continuous relationship with one another.

Comment: Isn’t it interesting, that after one year of open meetings with Canadians on Custody and Access, the conclusion decided upon by the Special Committee paraphrased the words of Justice Minister Mark MacGuigan, 1984.

“A child should have maximum access to both parents. Whatever the parent’s reasons for divorce, the child has an interest in maintaining a normal relationship with each parent … any animosity the parents may feel for each other should not be allowed to interfere with this interest… the court should consider the best interests of the child, particularly the child’s interest in having maximum access to both parents.”

The recommendations spoke of many issues and subsequent changes. Perhaps the most important was shared parenting becoming the cornerstone for the proposed new Divorce Act. When both parents are equally involved in all decisions, the children will be well.

As well, including grandparents and the extended family members allows for minimum change and more encouragement for the children. The terms custody and access will no longer be used. The court will have the power to appoint help for the children, and children will be more involved in family decisions. The federal government will work more closely with provinces and territories within the courts and justice system. The recommended changes are positive and will allow Canadian families to move forward.

The Canadian public was ready for the announcement for change. The journalists and newspapers were waiting for the announcement, and the Members of the House of Commons and the Senate were waiting for the announcement.

The Parliament of Canada had made their decision; the Special Committee had accepted that the current divorce law regime needed correction; the Canadian public agreed with the Committee’s findings. And the Minister of Justice?